2.1.148 to 2.1.150

(124) If, however, the testator should pass over others of her children, the testament is valid, but the persons who have been passed over will have a right, with the heirs mentioned therein, to equal shares of the estate, if they are proper heirs; and to half of it if they are strangers. For example, if anyone should appoint his three sons his heirs, but should pass over his daughter, the daughter will become a co-heir to a fourth part of the estate; and for this reason will obtain the same share that she would have been entitled to if her father had died intestate; but if he should appoint foreign heirs, and pass over his daughter, the latter will be entitled to half of his estate. What we have mentioned with reference to a daughter we understand to apply to a grandson and to all the children of a son, of both sexes. (125) What course then should be pursued? Although according to what we have stated the heirs mentioned in the will are only deprived of half the estate by the children of the testator, still, as the prætor promises to give the latter possession contrary to the provisions of the will, and according to this rule, foreign heirs arc excluded from the entire estate, and merely become heirs without obtaining any of the property, (126) We formerly made use of this law as no difference between females and males existed; but the Emperor Antoninus recently stated in a rescript that women who were proper heirs could not obtain more by acquiring prætorian possession of an estate than they would by the right of accrual. This rule should also be observed in the case of daughters who have been emancipated; that is, they will obtain the same amount through prætorian possession of the property as they would have obtained by the right of accrual, if they had remained under the control of their father.