[ULPIANUS libro quadragensimo sexto ad edictum. ] §38.8.1.prHaec bonorum possessio nudam habet praetoris indulgentiam neque ex iure ciuili originem habet: nam eos inuitat ad bonorum possessionem, qui iure ciuili ad successionem admitti non possunt, id est cognatos.
[ULPIANUS on the Edict, book forty-six.] This possession of goods has only the bare indulgence of the praetor and does not have its origin in the civil law; for it invites to the possession of goods those who cannot be admitted to succession under the civil law, that is, cognates.
§38.8.1.1Cognati autem appellati sunt quasi ex uno nati, aut, ut Labeo ait, quasi commune nascendi initium habuerint.
Cognates, moreover, are so called as if born from one, or, as Labeo says, as if they had a common origin of birth.
§38.8.1.2Pertinet autem haec lex ad cognationes non seruiles: nec enim facile ulla seruilis uidetur esse cognatio.
However, this law applies to non-servile cognate relationships; for it is not easily considered that there is any servile cognate relationship.
§38.8.1.3Haec autem bonorum possessio, quae ex hac parte edicti datur, cognatorum gradus sex complectitur et ex septimo duas personas sobrino et sobrina natum et natam.
Furthermore, this possession of goods, which is granted under this part of the edict, embraces six degrees of cognates, and from the seventh degree two persons, the son and daughter born of a male or female second cousin.
§38.8.1.4Cognationem facit etiam adoptio: etenim quibus fiet adgnatus hic qui adoptatus est, isdem etiam cognatus fiet: nam ubicumque de cognatis agitur, ibi sic accipiemus, ut etiam adoptione cognati facti contineantur.
Adoption also creates a cognate relationship; for to whomever this person who is adopted becomes an agnate, he will also become a cognate to the same; for wherever we deal with cognates, we shall interpret it in such a way that those made cognates by adoption are also included.
euenit igitur, ut is qui in adoptionem datus est tam in familia naturalis patris iura cognationis retineat quam in familia adoptiua nanciscatur: sed eorum tantum cognationem in adoptiua familia nanciscetur, quibus fit adgnatus, in naturali autem omnium retinebit.
It happens, therefore, that he who has been given in adoption retains the rights of cognatic relationship in the family of his natural father as much as he acquires them in the adoptive family; but he will acquire the cognatic relationship in the adoptive family only of those to whom he becomes an agnate, while in his natural family he will retain it of all.
§38.8.1.5Proximus autem accipietur etiam is qui solus est, quamuis proprie proximus ex pluribus dicitur.
Moreover, even he who is alone will be accepted as the nearest, although properly "the nearest" is said of one out of several.
§38.8.1.6Proximum accipere nos oportet eo tempore, quo bonorum possessio defertur.
It is necessary for us to understand "the nearest" at the time when the possession of goods is offered.
§38.8.1.7Si quis igitur proximus cognatus, dum heredes scripti deliberant, diem suum obierit, sequens quasi proximus admittetur, hoc est quicumque fuerit tum deprehensus proximum locum optinens.
If, therefore, any nearest cognate should die while the appointed heirs are deliberating, the next in order will be admitted as if the nearest, that is, whoever is found at that time holding the nearest place.
§38.8.1.8Si quis proximior cognatus nasci speretur, in ea condicione est, ut dici debeat obstare eum sequentibus: sed ubi natus non est, admittemus eum, qui post uentrem proximus uidebatur.
If a nearer cognate is expected to be born, he is in such a condition that he must be said to stand in the way of those who follow; but when he is not born, we shall admit the one who appeared nearest after the unborn child.
sed hoc ita demum erit accipiendum, si hic qui in utero esse dicitur uiuo eo de cuius bonorum possessione agitur fuit conceptus, nam si post mortem, neque obstabit alii neque ipse admittetur, quia non fuit proximus cognatus ei, quo uiuo nondum animax fuerit.
But this is to be accepted only if this child who is said to be in the womb was conceived while he, whose possession of goods is concerned, was still alive; for if it was after his death, he will neither stand in the way of another nor be admitted himself, because he was not a nearest cognate to him, in whose lifetime he had not yet been quickened.
§38.8.1.9Si qua praegnas decesserit et utero exsecto partus sit editus, in ea condicione est partus iste, ut matris suae accipere bonorum possessionem possit 'unde proximi cognati'. sed post senatus consultum Orphitianum et 'unde legitimi' petere poterit, quia mortis tempore in utero fuit.
If any pregnant woman dies and a child is brought forth by Caesarean section, that offspring is in such a condition that it can receive the possession of goods of its mother "under the head of nearest cognates"; but after the Orphitian Senate-Consult, it will also be able to petition "under the head of statutory heirs", because it was in the womb at the time of her death.
§38.8.1.10Gradatim autem admittuntur cognati ad bonorum possessionem: ut qui sunt primo gradu, omnes simul admittuntur.
Cognates, moreover, are admitted to the possession of goods by degrees; so that those who are in the first degree are all admitted together.
§38.8.1.11Si quis apud hostes fuerit mortis tempore eius, de cuius bonorum possessione quaeritur, dicendum est bonorum possessionem peti ab eo posse.
If anyone was in the hands of the enemy at the time of the death of him whose possession of goods is in question, it must be said that the possession of goods can be petitioned for by him.