2.1.186 to 2.1.189

(156) Proper and necessary heirs are, for instance, a son or a daughter, a grandson or a granddaughter by a son, and their descendants, provided they were under the control of the testator at the time of his death. In order, however, that a grandson or a granddaughter may become a proper heir, it is not sufficient for him or her to have been under the control of their grandfather at the time of his death, but it is necessary that their father should, during the lifetime of his father, have ceased to be a proper heir, either on account of death, or because of having been released from parental control in any other way whatsoever, for then the grandson or granddaughter will succeed to the place of his or her father. (157) They are called proper heirs because they are family heirs, and even during the lifetime of their parent are to a certain extent considered to be joint owners of the estate, and therefore where anyone dies intestate, the first right to the succession belongs to his children. They are called necessary heirs for the reason that, under all circumstances, whether they are willing or unwilling, they become heirs in case of intestacy, as well as under the will. (158) The prætor, however, permits them to relinquish the succession, in order that the estate of their father may be sold for the payment of debts. (159) The same rule applies to the case of a wife who is in the hand of her husband, because she occupies the place of a daughter; as well as to a daughter-in-law who is in the hand of a son of the testator; for the reason that she occupies the place of a granddaughter.