3.1.36 to 3.1.40

(34) Sometimes, however, the Prætor promises possession of an estate neither for the purpose of correcting or opposing the ancient law, but for the sake of confirming it; as he also grants possession of an estate in accordance with the provisions of the will to those persons who have been appointed heirs under a properly executed testament. He also calls the proper heirs and agnates to the possession of an estate ab intestato . In this instance, the only benefit derived from his act is that he who, in this way, demands prætorian possession of the estate, can avail himself of the interdict which begins with the words: "Whatever portion of the property"; and the advantage of this interdict we shall explain in its proper place. On the other hand, if prætorian possession of the estate is not granted, it will belong to the said parties by the Civil Law. (35) Moreover, possession of an estate is often granted to persons in such a way that they will not be able to obtain it, and possession of this kind is said to be inoperative. (36) For example, if an heir is appointed by a properly executed will, and declares his acceptance of the estate, but refuses to demand prætorian possession of the same in accordance with the provisions of the will, being content with the fact that he is the heir under the Civil Law; still, those who, if a will had not been made, would have been entitled to the estate of the party who died intestate, can demand possession of the property, but the grant will be inoperative, as the testamentary heir can evict the estate. (37) The same rule applies where a person having died intestate, his proper heir refuses to demand prætorian possession, being content with his title of heir-at-law, for an agnate will have a right to obtain possession of the estate; but the grant will be inoperative because the estate can be evicted by the proper heir. In like manner, if the estate should belong to an agnate by the Civil Law, and he should enter upon the same, but should fail to demand prætorian possession, a cognate in the nearest degree can demand it; but his possession of the estate will be inoperative for the same reason.