CASE 164: The Third Praetorian Class (Unde Cognati)
D. 38.8.1.3 (Ulpianus libro quadragensimo sexto ad edictum)
Haec autem bonorum possessio, quae ex hac parte edicti datur, cognatorum gradus sex complectitur et ex septimo duas personas sobrino et sobrina natum et natam.
(Ulpian in the forty-sixth book on the Edict)
The bonorum possessio that is given in this part of the Edict includes six degrees of cognates, as well as, in the seventh degree, the son and daughter of a male or female second cousin.
1. Seven Degrees of Separation.
On calculating degrees of kinship, see the Discussion on Case 11. First cousins (consobrini) were in the fourth degree of relationship; second cousins (sobrini) were in the sixth, thus placing their children in the seventh. Do you think it likely that persons beyond the third degree of relationship would be close acquaintances, close enough to have been remembered in a will?2. Praetorian Invention. Unlike the first two praetorian classes, the third class was entirely the creation of the praetor and replaced the old civil-law category of the gentiles. What motive can you supply for this move? Would you regard this innovation as a decisive strike against the previous legal preference for agnate relationship?
3. An Anomaly. According to Papinian (D. 38.8.9 pr.), an agnate in the eighth degree can claim possession under the unde legitimi rubric, even though he was not appointed heir in a will (that had presumably failed); but he is not eligible as a cognate even if he was named an heir. Should the same rules have been enforced for both groups? Another difference is that under the unde legitimi rubric, only the “nearest” agnate was called, and if he or she refused, that category was closed (Justinian, Inst. 3.2.7). By contrast, under the unde cognati rubric, if the nearest cognates declined, then the next nearest were eligible (Ulpian, D. 38.9.1.6, 10). What happened if two or more persons were related to the decedent in the same degree (e.g., two first cousins) and were each willing to take the estate? They divide it equally (Ulpian, D. 38.8.1.10; compare Gaius, Inst. 3.16).