3.1.29 to 3.1.35

(28) The same rule applies, as some authorities hold, to the agnate who, if the next of kin should fail to accept the estate, would, nevertheless, be entitled to it by law. There are others, however, who hold that he should be called by the Prætor in the same order by which an estate is given to agnates under the law. (29) It is certain that female agnates, who are beyond the degree of sisters, are called in the third degree; that is to say, where there is no proper heir, nor any other agnate. (30) Those are also called in the same degree who are related through persons of the female sex. (31) Also, children belonging to an adoptive family are called to the succession of their natural parents in this same order. (32) Moreover, those whom the Prætor calls to a succession do not indeed become heirs by law, for the Prætor has no power to make heirs, and they become such only by some law, or some enactment which resembles a law; for example, by a Decree of the Senate, or an Imperial Constitution. When, however, the Prætor grants them possession of an estate they are placed in the position of heirs. (33) In granting possession of an estate, the Prætor also takes cognizance of several other degrees, and he does this in order that no one may die without leaving a successor. We purposely do not treat of this matter in these Commentaries, as we have discussed this entire right in other Commentaries specially devoted to the subject. (33a) It will be sufficient only to note the fact that, as we have already stated in the distribution of estates by law, cognation alone, as established by the Twelve Tables, would be of no advantage in taking an estate; and, therefore, unless a mother, in obtaining the estate of her children, has acquired the rights of consanguinity by being in the hand of her husband through marriage, she will have no right whatever under the law.