But persons adopted by an ascendant are excepted in our constitutio; for, as natural and civil rights both concur in their favor, we have thought proper to preserve to this adoption its effect under the old law, as also to the arrogatio of a paterfamilias. But this, in all its details, may be collected from the tenor of the above-mentioned constitutio.
15. The ancient law, favoring descendants from males, called only grandchildren so descended to the succession as sui heredes, in preference to the agnati, while grandchildren born of daughters, and great-grandchildren born of granddaughters, were reckoned among cognati, and succeeded only after the agnati to their maternal grandfather and great-grandfather, or to their grandmother, or great grandmother, maternal or paternal.
But the emperors would not suffer such a violence against nature to continue without an adequate alteration; and, inasmuch as the name of the grandchild and great-grandchild is common, as well to descendants by females as by males, they gave all the same right and order of succession.
Female should be somewhat diminished
But, that persons whose privileges rested not only on nature but also on the ancient law might enjoy some peculiar advantage, they thought it right that the portions of grandchildren, great-grandchildren, and other lineal descendants of a female should be somewhat diminished, so that they should not receive so much by a third part as their mother or grandmother would have received, or, when the succession is the inheritance of a woman, as their father or grandfather, paternal or maternal would have received; and, although there were no other descendants, if they entered on the inheritance, the emperors did not call the agnati to the succession.
And as, upon the decease of a son, the law of the Twelve Tables calls the grandchildren and great-grandchildren, male and female, to represent their father in the succession to their grandfather, so the imperial constitutiones calls them to take in succession the place of their mother or grandmother, subject only to the above-mentioned deduction of a third part.
16. But, as there still remained matter of dispute between the agnati and the above-mentioned grandchildren, the agnati claiming the fourth part of the estate of the deceased by virtue of a constitutio, we have rejected this constitutio, and have not permitted it to be inserted into our code from that of Theodosius.
Read More about Silence part 6
