6. A son, or a daughter, and a grandson or granddaughter by another son, are called equally to the inheritance; nor does the nearer in degree exclude the more remote; for it seems just that grandsons and granddaughters should succeed in the place of their father. For the same reason, a grandson or granddaughter by a son, and a great-grandson or great-granddaughter by a grandson, are called together.
Succeed in place of their parent
And since grandsons and granddaughters, great-grandsons and great-granddaughters, succeed in place of their parent, it appeared to follow that inheritances should not be divided per capita, but per stirpes; so that a son should possess one-half, and the grandchildren, whether two or more, of another son, the other half of the inheritance. So, where there were grandchildren by two sons, one or two perhaps by the one, and three or four by the other, the inheritance will belong half to the grandchild or the two grandchildren by the one son, and half to the three or four grandchildren by the other son.
7. When it is asked whether such a person is a suus heres, we must look to the time at which it was certain that the deceased died without a testament, including therein the case of the testament being abandoned.
Thus, if a son is disinherited and a stranger is instituted heir, and after the death of the son it becomes certain that the instituted heir will not be heir, either because he is unwilling or unable to be so, in this case the grandson of the deceased becomes the suus heres of his grandfather; for, at the time when it was certain that the deceased died intestate, there exists only the grandchild, and of this there can be no doubt.
8. And although a child is born after the death of his grandfather, yet, if he was conceived in the lifetime of his grandfather, he will, if his father is dead, and his grandfather’s testament abandoned, become the suus heres of his grandfather. But a child both conceived and born after the death of his grandfather, could not become the suus heres, although his father should die and the testament of his grandfather be abandoned; because he was never allied to his grandfather by any tie of relationship.
Neither is a person adopted by an emancipated son to be reckoned among the children of the father of his adoptive father. And not only are these adoptive children of an emancipated son incapable of taking the inheritance as children of the deceased grandfather, but they cannot demand possession of the goods as the nearest agnati. Thus much concerning sui heredes.
Read More about The Institutes 535 CE part 12
