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Similarly, the reipus, or fine leviable on the re-marriage of a widow, did not enter into the allod of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected.
The guardianship is generally that of the male Agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother.
After family heirs, and persons who by the praetor and the imperial legislation are ranked as such, and after persons statutorily entitled, among whom are the agnates and those whom the aforesaid senatusconsults and our constitution have raised to the rank of agnates, the praetor calls the nearest cognates.
As long as the Family was an imperium in imperio, a community within the commonwealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the Agnates was a necessary security against a conflict of laws in the domestic forum.
The sole exceptions to this rule are emancipated brothers and sisters, though not in equal shares with them, but with some deduction, the amount of which can easily be ascertained from the terms of the constitution itself. But to other agnates of remoter degrees, even though they have not undergone loss of status, and still more to cognates, they are preferred by the aforesaid statute.
These were known as "agnates." Later, some relationship on the mother's side came to be recognized, but relatives on the mother's side were known as a "cognates," and for a long time property could not pass to them.
By the constitution which we have published, and by which we have altogether deprived it of validity, we have provided that in case of the survival of grandchildren by a daughter, greatgrandchildren by a granddaughter, or more remote descendants related through a female, the agnates shall have no claim to any part of the estate of the deceased, that collaterals may no longer be preferred to lineal descendants; which constitution we hereby reenact with all its force from the date originally determined: provided always, as we direct, that the inheritance shall be divided between sons and grandchildren by a daughter, or between all the grandchildren, and other more remote descendants, according to stocks, and not by counting heads, on the principle observed by the ancient law in dividing an inheritance between sons and grandchildren by a son, the issue obtaining without any diminution the portion which would have belonged to their mother or father, grandmother or grandfather: so that if, for instance, there be one or two children by one stock, and three or four by another, the one or two, and the three or four, shall together take respectively one moiety of the inheritance.
13 We should observe, however, that though children who are in an adoptive family, or who are emancipated by their adoptive after the decease of their natural father, are not admitted on the death of the latter intestate by that part of the edict by which children are called to the possession of goods, they are called by another part, namely that which admits the cognates of the deceased, who, however, come in only if there are no family heirs, emancipated children, or agnates to take before them: for the praetor prefers children, whether family heirs or emancipated, to all other claimants, ranking in the second degree statutory successors, and in the third cognates, or next of kin.
16 As, however, there was still some question as to the relative rights of such grandchildren and of the agnates, who on the authority of a certain constitution claimed a fourth part of the deceased's estate, we have repealed the said enactment, and not permitted its insertion in our Code from that of Theodosius.
15 By the ancient law too, which favoured the descent through males, those grandchildren only were called as family heirs, and preferred to agnates, who were related to the grandfather in this way: grandchildren by daughters, and greatgrandchildren by granddaughters, whom it regarded only as cognates, being called after the agnates in succession to their maternal grandfather or greatgrandfather, or their grandmother or greatgrandmother, whether paternal or maternal.
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