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QVIBVS MODIS PER VNIVERSITATEM RES ADQVIRANTVR. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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QVIBVS MODIS PER VNIVERSITATEM RES ADQVIRANTVR.
§ 97.Hactenus tantisper admonuisse sufficit quemadmodum singulae res nobis adquirantur. nam legatorum ius quo et ipso singulas res adquirimus opportunius alio loco referemus. uideamus itaque nunc quibus modis per uniuersitatem res nobis adquirantur.
Inst. 2, 9, 6.
§ 98. Si cui heredes facti sumus, siue cuius bonorum possessionem petierimus, siue cuius bona emerimus, siue quem adoptauerimus, siue quam in manum ut uxorem receperimus, eius res ad nos transeunt.
Inst. l. c.
§ 99. Ac prius de hereditatibus dispiciamus quarum duplex condicio est: nam uel ex testamento uel ab intestato ad nos pertinent.
Inst. l. c.
§ 100. Et prius est, ut de his dispiciamus quae nobis ex testamento obueniunt.
Inst. l. c.
§ 101. Testamentorum autem genera initio duo fuerunt: nam aut calatis comitiis testamentum faciebant, quae comitia bis in anno testamentis faciendis destinata erant, aut in procinctu, id est cum belli causa arma sumebant; procinctus est enim expeditus et armatus exercitus. alterum itaque in pace et in otio faciebant, alterum in proelium exituri.
Inst 2, 10, 1.
§ 102. Accessit deinde tertium genus testamenti quod per aes et libram agitur. qui neque calatis comitiis neque in procinctu testamentum fecerat, is si subita morte urguebatur, amico familiam suam, id est patrimonium suum, mancipio dabat, eumque rogabat quid cuique post mortem suam dari uellet. quod testamentum dicitur per aes et libram, scilicet quia per mancipationem peragitur.
Inst. l. c.
§ 103. Sed illa quidem duo genera testamentorum in desuetudinem abierunt; hoc uero solum quod per aes et libram fit in usu retentum est. sane nunc aliter ordinatur quam olim solebat. namque olim familiae emptor, id est qui a testatore familiam accipiebat mancipio, heredis locum optinebat, et ob id ei mandabat testator quid cuique post mortem suam dari uellet; nunc uero alius heres testamento instituitur, a quo etiam legata relinquuntur, alius dicis gratia propter ueteris iuris imitationem familiae emptor adhibetur.
Inst. l. c.
§ 104. Eaque res ita agitur: qui facit 〈testamentum〉, adhibitis, sicut in ceteris mancipationibus, v testibus ciuibus Romanis puberibus et libripende, postquam tabulas testamenti scripserit, mancipat alicui dicis gratia familiam suam; in qua re his uerbis familiae emptor utitur familia pecvniaqve tva endo mandatelam cvstodelamqve meam, qvo tv ivre testamentvm facere possis secvndvm legem pvblicam, hoc aere, et ut quidam adiciunt aeneaqve libra esto mihi empta; deinde aere percutit libram, idque aes dat testatori uelut pretii loco; deinde testator tabulas testamenti tenens ita dicit haec ita vt in his tabvlis cerisqve scripta svnt, ita do ita lego ita testor itaqve vos qviritfs testimonivm mihi perhibetote; et hoc dicitur nuncupatio: nuncupare est enim palam nominare, et sane quae testator specialiter in tabulis testamenti scripserit, ea uidetur generali sermone nominare atque confirmare.
§ 105. In testibus autem non debet is esse qui in potestate est aut familiae emptoris aut ipsius testatoris, quia propter ueteris iuris imitationem totum hoc negotium quod agitur testamenti ordinandi gratia creditur inter familiae emptorem agi et testatorem; quippe olim, ut proxime diximus, is qui familiam testatoris mancipioaccipiebat heredis loco erat; itaque reprobatum est in ea re domesticum testimonium.
Inst. 2, 10, 9.
§ 106. Unde et si is qui in potestate patris est familiae emptor adhibitus sit, pater eius testis esse non potest; ac ne is quidem qui in eadem potestate est, uelut frater eius. sed si filius familias ex castrensi peculio post missionem faciat testamentum, nec pater eius recte testis adhibetur nec is qui in potestate patris est.
§ 107. De libripende eadem quae et de testibus dicta esse intellegemus; nam et is testium numero est.
§ 108. Is uero qui in potestate heredis aut legatarii est, cuiusue heres ipse aut legatarius in potestate est, quique in eiusdem potestate est, adeo testis et libripens adhiberi potest, ut ipse quoque heres aut legatarius iure adhibeantur. sed tamen quod ad heredem pertinet quique in eius potestate est cuiusue is in potestate erit, minime hoc iure uti debemus.
QVIBVS MODIS PER VNIVERSITATEM RES ADQVIRANTVR.
§ 97. So much at present respecting the modes of acquiring single rights; for bequest by way of legacy, another title whereby single rights are acquired, will find a more suitable place in a later portion of our treatise. We proceed to the titles whereby an aggregate of rights is acquired.
§ 98. If we become civil heirs of anyone, or claim praetorian succession to his property, or purchase the estate of an insolvent, or adopt a person sui juris, or receive a wife into our hand, the whole property of those persons is transferred to us in an aggregate mass.
§ 99. Let us begin with inheritances, whose mode of devolution is twofold, according as a person dies testate or intestate.
§ 100. And we first treat of acquisition by will.
§ 101. Wills were originally of two kinds, being made either at the comitia calata, which were held twice a year for making wills, or in martial array, that is to say, in the field before the enemy, martial array denoting an army equipped and armed for battle. One kind, then, was used in time of peace and quiet, the other by persons about to go to battle.
§ 102. More recently, a third kind was introduced, effected by bronze and balance. A man who had not made his will, either in the comitia calata or in martial array, being in apprehension of approaching death, used to convey his estate by mancipation to a friend, whom he requested to distribute it to certain persons in a certain manner after his death. This mode of testamentary disposition is called the will by bronze and balance, because it is carried out by the process of mancipation.
§ 103. The first two modes have fallen into desuetude, and that by bronze and balance, which alone survives, has undergone a transformation. In former times the vendee of the estate, the alienee by mancipation from the testator, held the place of heir, and received the testator’s instructions respecting the disposition of his property after his death. At the present day, the person who is instituted heir, and who is charged with the bequests, is different from the person who, for form’s sake, and in imitation of the ancient law, represents the purchaser.
§ 104. The proceedings are as follows: The testator having summoned, moned, as is done in other mancipations, five witnesses, all Roman citizens of the age of puberty, and a holder of the balance, and having already reduced his will to writing, makes a pro-formâ mancipation of his estate to a certain vendee, who thereupon utters these words: ‘Thy family and thy money into my charge, ward, and custody I receive, and, in order to validate thy will conformably to the public enactment (the Twelve Tables), with this ingot, and’—as some continue—‘with this scale of bronze, unto me be it purchased.’ Then with the ingot he strikes the scale, and delivers the ingot to the testator, as by way of purchase-money. Thereupon the testator, holding the tablets of his will, says as follows: ‘This estate, as in these tablets and in this wax is written, I so grant, so bequeath, so declare; and do you, Quirites, so give me your attestation.’ These words are called the nuncupation, for nuncupation signifies public declaration, and by these general words the specific written dispositions of the testator are published and confirmed.
§ 105. For the part of witness, it is a disqualification to be in the power of the purchaser of the estate or of the testator, because, the old proceeding furnishing the model, the whole testamentary process is supposed to be a transaction between the purchaser and the testator; and in old times, as was just observed, the purchaser was in the place of the heir; wherefore the testimony of persons in the same family was rejected.
§ 106. Hence too, if the vendee is a filiusfamilias, neither his father nor any one in his father’s power, his brother, for instance, is competent to attest; on the other hand if a filiusfamilias, after his discharge from service, make a will of his military peculium, neither his father nor any one in his father’s power is qualified to be a witness.
§ 107. The same rules apply to the balance-holder, for the balance-holder is reckoned as a witness.
§ 108. Not only is a person who is in the power of the heir or legatee, or a person who has power over the heir or legatee, or a person in the same power as the heir or legatee, capable of being witness or balance-holder. but the heir or legatee himself can act in this character. However, it is advisable that as regards the heir, and those in his power. and the person in whose power he is, the testator should not avail himself of this right.
§§ 97, 98. On the death of a civis all his rights and obligations (except those of a purely personal character, such as ususfructus and liability for delict) were regarded as constituting a universitas juris or undivided succession (supra, p. 126) called hereditas. The hereditas, in fact, was the legal personality of the deceased, and so the successor to it, called heres, had exactly the same position in respect of the entire family property as the deceased paterfamilias. Hence he was personally liable to pay all the debts in full, as if he had himself contracted them, cf. Sohm, § 108.
In the corresponding passage of Justinian’s Institutes bonorum emptio and conventio in manum, being obsolete, are not mentioned.
§§ 101-103. A will is thus defined by Ulpian: Testamentum est mentis nostrae justa contestatio, in id sollemniter facta ut post mortem nostram valeat, 20, 1. Testamentary disposition was an interference with the rights of family succession under the law of intestacy, which at first seemed so great an innovation as to require the sanction of the gentes. Accordingly the will executed in the Comitia Calata, or convocation of the gentes, was really a private law (perhaps originally instituted as a modified form of adoption, when a man had no children to succeed to his property); and even the will in procinctu, when we remember the original identity at Rome of the civil and military organization, may be regarded as the legislative act of the curiae in military convocation. The essential characteristic of this will was the nomination of a heres. Hence so important became the institution of a heres to the validity of a will in Roman law, that a Roman testament might be simply defined as the institution of a heres.
The mancipatory will, or will by bronze and scale, probably began to supersede the older form, which was perhaps confined to patricians, when the Twelve Tables gave legal force to the nuncupative part of mancipation (Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, Festus. ‘In contract or conveyance by bronze and balance, the oral declaration shall have legal force’), and had expressly recognized in every paterfamilias, whether patrician or plebeian, a power of testamentary disposition (Uti legassit super [familia], pecunia, tutelave suae rei, ita jus esto. Ulpian, 11, 14).
The introduction of writing marks an era in mancipatory wills. Originally, the testator gave oral instructions to the familiae emptor, or purchaser of the family property, in the presence of the witnesses, as to the terms on which the property was to be held by him and distributed after the testator’s death. These oral instructions, forming the lex mancipii, or conditions of the conveyance, called nuncupatio, served as a means, under the clauses of the Twelve Tables above cited, of nominating a heres. Hence a special lex curiata for this purpose was no longer necessary, and the familiae emptor, instead of being a kind of trustee for carrying out the testator’s wishes, became a mere formality, used simply for the purpose of making the will mancipatory. Afterwards, for the sake of secrecy, the testator committed his intentions to writing, and the nuncupation became a mere form of publication, or general ratification of the directions contained in the tablets which the testator held in his hand, when he executed the mancipation.
§ 105. It is an intelligible rule, that a person interested in the validity of a will should be incompetent as a witness; and, when the familiae emptor was in the place of the heir, it was reasonable to disqualify for attestation any one united in interest to him. But when the mancipation was purely fictitious (imaginaria mancipatio, Ulpian, 20, 2; imaginaria venditio, Inst. 2, 10, 1), one sesterce being paid as the nominal price, and the imaginary vendee distinct from the heir, the continuance of this disqualification shows the tendency of the Romans to venerate rules after the principles on which they were founded had ceased to operate. In the meantime the heir, who was, strictly speaking, really interested, was competent to be a witness. Cicero, for instance, mentions that he and Clodius were both witnesses to a will in which they were appointed heirs, Pro Milone, 18, 48; but in the time of Gaius, as we see by the text, § 108, such attestation was at least questionable, and when Ulpian wrote it seems to have been inadmissible. The whole law on this subject was, however, deranged: totum jus conturbatum erat, Inst. 2, 10, 10: the transference of interest from the familiae emptor to the heres not being accompanied by a corresponding transference of testimonial disqualification from the relatives of the familiae emptor to the relatives of the heres. Justinian converted the advice of Gaius into a fixed rule of law, and disabled the heir and persons united to him by the bond of potestas from giving attestation, Inst. 2, 10, 10. Legatees retained their competency to attest.
§ 106. This statement of Gaius respecting a will of castrense peculium is inadvertently transferred to Justinian’s Institutes, 2, 10, 9, but is inconsistent with a dictum of Ulpian’s in the Digest: Per contrarium quaeri potest, an pater ejus, qui de castrensi peculio potest testari, adhiberi ab eo ad testamentum testis possit. Et Marcellus libro decimo Digestorum scribit posse: et frater ergo poterit, Dig. 28, 1, 20, 2. We have here, then, a case of Antinomy (contradictory laws) in Justinian’s legislation. Vangerow, § 444, solves the antinomy by supposing that Ulpian speaks of a will made during service; the Institutes, like Gaius, of a will made post missionem.
By English law, 1 Vict. c. 26, any devise or legacy to an attesting witness is void, and the evidence of the witness admissible, and no person is incompetent to attest on account of being appointed executor.
In another form of will deriving its validity from the authority of the praetor, the form of mancipation was dropped, and the only authentication required was the apposition of the seals of seven attesting witnesses. Under such a will, however, the successor could not take the legal estate or hereditas, but only possession of the goods or bonorum possessio, §§ 119, 120, 148.
Before the time of Justinian, a form of will had been established deriving its validity from three orders of legislation (jus tripertitum), the civil law, the praetorian edict, and the imperial constitutions. In accordance with the last, the witnesses were required to sign or subscribe their names; in accordance with the praetorian edict they were required to attach their seals (signacula); and in accordance with the civil law, their number was required to be seven (a number obtained by adding the libripens and familiae emptor to the five witnesses of the mancipation), and the whole formality of attestation and publication was required to be continuous (unitas actus), that is, to proceed from beginning to end without interruption or interposition of any other business as one act. Inst. 2, 10, 3.
Another form of will is mentioned by Justinian as perfectly valid at civil law, the Nuncupative will, consisting solely of an oral declaration in the presence of seven witnesses, Inst. 2, 10, 14. A modification of this produced one of the most solemn forms of testament. The nuncupation was made before the Praeses provinciae, or a judex; and thereupon a memorandum or protocol (insinuatio) of the testator’s dispositions was made at length in the public records (acta or gesta) of the proceedings of the governor or court. This was called a public testament. Cod. 6, 23, 19.
By English law, 1 Vict. c. 26, only two witnesses are required to a will, whether of real or personal estate. The will must be in writing, signed at the end by the testator, or by some other person in his presence and by his direction; and such signature must be made or acknowledged by the testator in the presence of the two witnesses, who must be present at the same time, and who must attest and subscribe the will in the presence of the testator.
[DE TESTAMENTIS MILITVM.]
§ 109. Sed haec diligens obseruatio in ordinandis testamentis militibus propter nimiam inperitiam constitutionibus principum remissa est. nam quamuis neque legitimum numerum testium adhibuerint neque uendiderint familiam neque nuncupauerint testamentum, recte nihilo minus testantur.
Inst. 2, 11 pr.
§ 110. Praeterea permissum est iis et peregrinos et Latinos instituere heredes uel iis legare, cum alioquin peregrini quidem ratione ciuili prohibeantur capere hereditatem legataque, Latini uero per legem Iuniam.
§ 111. Caelibes quoque qui lege Iulia hereditatem legataque capere uetantur; item orbi, id est qui liberos non habent, quos lex —|NA
(48 uersus in C perierunt)—|—NAprohibentur hi—|—NA
(6 uersus in C legi nequeunt)—| —NA eius more faciant—|—|NAxxx annorum—|—NA
(8 uersus in C legi nequeunt)—|—NA res — |—NA
(2 uersus in C legi nequeunt)—|—NA
[DE TESTAMENTIS MILITVM.]
§ 109. But from these strict rules in the execution of a will soldiers, in consideration of their extreme ignorance of law, have by imperial constitutions a dispensation. For neither the legal number of witnesses, nor the ceremony of mancipation or of nuncupation, is necessary to give force to their will.
§ 110. Moreover, they may make aliens and Latini (Juniani) their heirs or legatees, whereas under other wills an alien is disqualified from taking a succession or legacy by the civil law, and Latini by the lex Junia.
§ 111. Celibates also, whom the lex Julia disqualifies for taking successions or legacies, and childless persons whom the lex Papia prohibits from taking more than half a succession or legacy (see § 286), are exempt from these incapacities under the will of a soldier.
§ 109. The military will could only be executed during actual service, and in this period only when the soldier was in camp, not when he was at home or on leave of absence. A will made after the soldier’s discharge from service or during his absence from camp was governed by the same rules as the will of a civilian (paganus). A military will, executed without the ordinary formalities, only remained valid during a year after discharge from service. Inst. 2, 11, 3.
§ 112. —ex auctoritate diui Hadriani senatusconsultum factum est quo permissum est |—NAfeminis etiam sine coemptione te|stamentum facere, si modo non minores essent annorum xii, scilicet ut quae tutela liberatae non essent, tutore auctore testari deberent.
§ 113. Videntur ergo melioris condicionis esse feminae quam masculi: nam masculus minor annorumxiiii testamentum facere non potest, etiamsi tutore auctore testamentum facere uelit, femina uero post xii annum testamenti faciendi ius nanciscitur.
§ 114. Igitur si quaeramus an ualeat testamentum, inprimis aduertere debemus an is qui id fecerit habuerit testamenti factionem; deinde si habuerit, requiremus an secundum iuris ciuilis regulam testatus sit, exceptis militibus, quibus propter nimiam inperitiam, ut diximus, quomodo uelint uel quomodo possint, permittitur testamentum facere.
§ 112. But a senatusconsult under the late emperor Hadrian, as already mentioned (1 § 115 a), made coemption unnecessary, and permitted women to make a will on attaining 12 years of age, only requiring their guardian’s sanction if they were still in a state of pupilage.
§ 113. Women, then, are in a better legal position than males, for a male under 14 years of age cannot make a will, even with his guardian’s sanction, but a female acquires testamentary capacity as soon as she is 12 years old.
§ 114. Accordingly, to determine the validity of a will, we must first ascertain whether the testator had testamentary capacity; next, if he had, whether he conformed to the requisitions of the civil law in its execution, with this reservation, that soldiers, on account of their extreme ignorance of law, as was mentioned, are allowed to make their wills in any way they like and in any way they can.
§ 112. On the lost leaf of the Veronese codex Gaius proceeded to mention the classes who were incompetent to make a will. Among these would be the filiusfamilias, who could only dispose of his peculium castrense. Cf. Inst. 2, 12; Ulp. 20, 10; Epit. 2, 2, 1.
§ 114. Testamenti factio is a term applied, (A) to the Testator, Testamenti factio activa; (B) to the object of his bounty, Testamenti factio passiva; (C) to the witnesses. Let us consider it in each of these applications.
(A) Testamenti factio activa sometimes comprehends all the conditions (physical included) of testamentary capacity, and then it excludes children below the age of puberty and lunatics: but the proper meaning of testamenti factio is the qualification by Status for mancipatio, and consequently for the mancipatory will: that is to say, it is equivalent to Commercium, and therefore is ascribed to all cives, all Latini, and all aliens who have received a grant of commercium.
To make a will, however, a testator must have not only personal capacity, but he must also have property to leave. This latter condition is necessarily wanting to the Filiusfamilias and to the Latinus Junianus: in their case, therefore, Testamenti factio does not mean capacity of being testator, but of playing some other part in the mancipatory will; i. e. of being heir, or legatee, or witness.
The testator’s capacity is required at two periods: at the time of making the will and at the time of the testator’s death. The strict civil law also required the continuance of capacity during the interval between these dates: but the praetor disregarded any intervening incapacity (capitis diminutio minima), and, notwithstanding such an event, gave the will efficacy by granting to the heir, not the civil hereditas (which was beyond his power), but juxta-tabular possession (bonorum possessio juxta or secundum tabulas), §§ 145-147, comm., Ulpian 23, 6. Dig. 37, 11, 1, 8 Exigit praetor ut is cujus bonorum possessio datur utroque tempore jus testamenti faciendi habuerit, et quum facit testamentum et cum moritur. . . . Sed si quis utroque tempore testamenti factionem habuerit, medio tempore non habuerit, bonorum possessio secundum tabulas peti poterit.
Two other cases of incapacity were cured by the principle of postliminy and the lex Cornelia testamentaria: if a testator suffered capitis diminutio maxima by falling into the hands of the enemy, when he returned from captivity his will reacquired validity by the operation of postliminy: if he never returned his will obtained validity by the fiction that he died a moment before his capture. Dig. 28, 3, 6, 12 Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adjiciendum est postliminio reversi vires suas recipere jure postliminii, aut si ibi decedat, lege Cornelia confirmari. Dig. 49, 15, 18 In omnibus partibus juris, is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est. Ulpian, 23, 5.
The physical conditions of testamentary incapacity (infancy, lunacy) are only critical at the date of making the will.
(B) The Honoratus or the recipient of the testator’s bounty, whether heres or legatarius, required testamenti factio passiva, which like testamenti factio activa meant Commercium or capacity of taking part in mancipatio. Accordingly both a filiusfamilias and a Latinus could be heres or legatee (for the limitation, however, of the capacity of Latinus Junianus by the lex Junia see below). This capacity must exist at three periods (tria tempora): the making of the will, the death of the testator, and the acquisition of the succession by the heres (aditio). The interval between the making of the will and the death of the testator was immaterial, Inst. 2, 19, 4, Dig. 28, 5, 60, 4. The interval between the death of the testator and the aditio of the heres was material, because on the first heres institutus becoming incapable the inheritance would be instantaneously delated (offered for acceptance) to the heres substitutus or to the heres ab intestato.
The looking to the capacity of Honoratus at the date of making the will as well as later, though apparently based on no motives of testamentary policy, but only due to the mancipatory form of the primitive will, which was ostensibly a mancipatio inter vivos, i. e. a disposition taking effect in the lifetime of the mancipator, was retained in Justinian’s legislation after wills had lost their mancipatory form.
In respect of Honoratus it is necessary to distinguish institutio from acquisitio (aditio); and testamenti factio passiva, competence for institution, from capacitas or jus capiundi, competence for acquisition. Testamenti factio passiva was required at the date of the making of the will; and in its absence a disposition was deemed to be unwritten (pro non scripto habetur); and the property disposed of went by Accretio to the other heredes scripti. Capacitas, in its distinctive sense, was only required at the date of acquisition; and in its absence the unacquired property became caducous, and devolved in part or in whole to persons fulfilling certain conditions or to the state, as determined by the laws of caducity.
Incapaces, or persons who, from want of capacity to take, forfeited part or the whole of the testator’s bounty, comprehended:
(1) Latini Juniani, who were made incapable by the lex Junia, 1 § 23, 2 §§ 110, 275. Cf. Ulpian, 17, 1.
(2) The unmarried (caelibes) were totally, and the married but childless (orbi) were made partially incapable by the lex Papia Poppaea.
(3) Husband or wife (vir et uxor), who by the same law could only take, as between one another if they had no children, one tenth of a heritage, and another tenth for every living child by a former marriage: further, another tenth for a common child that lived to the day of naming (nominum dies), or as Mommsen (Staatsr. 3, 202) would read the MS. of Ulpian, after the ninth day (nono die), or two tenths for two such children, but not more. In addition to their tenth, the husband or wife who were childless might have the usufruct of a third part, and, if they had had children, the property in a third, Ulpian, 1, 15.
These disqualifications were not recognized in Justinian’s legislation: so that at that period the distinction between capacitas and testamenti factio passiva had lost much of its importance. We find, however, under Justinian the penalty of forfeiture (ereptio, ablatio) for Indignitas. Indigni were persons deemed on various grounds unworthy of the testator’s bounty. The devolution of the property intended for them followed different rules from those which governed other cases of Incapacity. See § 151, comm.
(C) Testamenti factio was further applied to designate the qualification of the witnesses to a will. This was only required to exist at one period, the date of the execution of the will.
§ 113. By English law, the age at which a person was competent to make a will was formerly the same as by Roman law, namely, 12 years for females, 14 years for males; but now, by 1 Vict. c. 26, no one is competent to make a will before attaining 21 years of age.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§ 115. Non tamen, ut iure ciuili ualeat testamentum, sufficit ea obseruatio quam supra exposuimus de familiae uenditione et de testibus et de nuncupationibus.
§ 116. 〈Sed〉 ante omnia requirendum est, an institutio heredis sollemni more facta sit; nam aliter facta institutione nihil proficit familiam testatoris ita uenire testesque ita adhibere et ita nuncupare testamentum, ut supra diximus.
§ 117. Sollemnis autem institutio haec est titivs heres esto; sed et illa iam conprobata uidetur titivm heredem esse ivbeo; at illa non est conprobata titivm heredem esse volo; sed et illae a plerisque inprobatae sunt titivm heredem institvo, item heredem facio.
§ 118. Obseruandum praeterea est, ut si mulier quae in tutela est faciat testamentum, tutore auctore facere debeat; alioquin inutiliter iure ciuili testabitur.
§ 119. Praetor tamen si septem signis testium signatum sit testamentum, scriptis heredibus secundum tabulas testamenti bonorum 〈possessionem〉 pollicetur: 〈et〉 si nemo sit ad quem ab intestato iure legitimo pertineat hereditas, uelut frater eodem patre natus aut patruus aut fratris filius, ita poterunt scripti heredes retinere hereditatem. nam idem iuris est et si alia ex causa testamentum non ualeat, uelut quod familia non uenierit aut nuncupationis uerba testator locutus non sit.
§ 120. Sed uideamus an etiamsi frater aut patruus extent, potiores scriptis heredibus habeantur. rescripto enim imperatoris Antonini significatur, eos qui secundum tabulas testamenti non iure factas bonorum possessionem petierint, posse aduersus eos quiabintestato uindicant hereditatem defendere se per exceptionem doli mali.
§ 121. Quod sane quidem ad masculorum testamenta pertinere certum est; item ad feminarum quae ideo non utiliter testatae sunt, quia uerbi gratia familiam non uendiderint aut nuncupationis uerba locutae non sint; an autem et ad ea testamenta feminarum quae sine tutoris auctoritate fecerint haec constitutio pertineat, uidebimus.
§ 122. Loquimur autem de his scilicet feminis quae non in legitima parentum aut patronorum tutela sunt, sed [de his] quae alterius generis tutores habent, qui etiam inuiti coguntur auctores fieri; alioquin parentem et patronum sine auctoritate eius facto testamento non summoueri palam est.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§ 115. The civil law, however, is not satisfied by our observing the requisitions hereinbefore explained respecting mancipation, attestation, and nuncupation.
§ 116. Above all things, we must observe whether the institution of an heir was in solemn form; for if the institution of an heir was not in the prescribed form, it is unavailing that the mancipation, attestation, nuncupation, were regular.
§ 117. The solemn form of institution is this: ‘Be Titius my heir.’ The following also seems now to be recognized: ‘I order that Titius be my heir.’ ‘I wish Titius to be my heir’ is not admitted; and most reject the following: ‘I institute Titius my heir,’ ‘I make Titius my heir.’
§ 118. It is also to be remembered that a woman who has a guardian must have her guardian’s sanction to make a will, otherwise her will is invalid at civil law.
§ 119. The praetor, however, if the will is attested by the seals of seven witnesses, promises to put the persons named in the will in juxta-tabular possession, and if there is no one to take the inheritance by statutory right under the rules of intestacy, a brother by the same father, for instance, a father’s brother, or a brother’s son, the persons named in the will are able to retain the inheritance; for the rule is the same as if the will is invalid from any other cause, as because the familia has not been sold or because the words of nuncupation have not been spoken.
§ 120. But are not the heirs named in the will preferred even to a brother and paternal uncle? since the rescript of the emperor Antoninus permits the person named in the will who has obtained juxta - tabular possession under an informal will to repel the claimants in intestacy by the plea of fraud.
§ 121. This certainly applies both to the wills of males and also to the wills of females which are informal for such faults as omission to sell the familia or to say the words of nuncupation: whether the constitution applies also to wills of females executed without their guardians’s sanction, is a question.
§ 122. We are not speaking of females who are the statutory wards of their parent or patron, but of those who are wards of the other sort of guardian, who are compellable to give their sanction; for a parent or patron can certainly not be displaced by a will he has not chosen to sanction.
§ 117. The necessity of using formal words in the institution of an heir was abolished by a constitution of Constantius and Constans, a. d. 339, Cod. 6, 23, 15.
As to the nomenclature employed in the following exposition of Roman testamentary law, it must be observed that as the Roman conception of Heres is not found in English law, so we have no legal term corresponding to it. In the language of English jurisprudence Heir denotes a successor to real estate, while Executor, the notion of which is derived to some extent from Roman law, denotes a successor appointed to succeed to personal property. Again Heir denotes a successor to real estate in case of intestacy. Devisee denotes a successor to real estate under a will.
The word Executor is not available as a translation of heres. The Executor of English law, unless also a legatee, holds a merely onerous office; whereas the heres of Roman law was always, if there was any residue, a beneficiary. The Roman heres, in fact, united the characters of the English Executor and residuary legatee: and the lex Falcidia provided that the residue should as against the claims of legatus always amount to a fourth of the testator’s property. Nor is the executor, like the heres, personally liable for the debts of the deceased beyond assets.
In translating the word Heres heir, which is convenient from its relation to the indispensable terms disinherit and disinheritance, an English reader must not be misled by false associations with Real Property law, but must understand that it is used to signify the Universal successor of Roman law, whether designated by will or by the rules of intestacy.
Bequest (which in English law is related to personality as devise to realty) has been used in connexion with legacies, i. e. with dispositions in favour of legatarius as opposed to heres; in favour, that is, of a person who takes a single thing or things belonging to the testator, not his familia, that is, the Universitas of his rights and obligations, or a fraction of this Universitas.
§§ 119, 120. The praetor only sustained a testament in spite of its civil invalidity when the grounds of civil invalidity were want of mere external formalities (mancipation, nuncupation), not against more serious defects, such as preterition of self-successor. He sustained it, however, against the preterition of suus postumus, if suus postumus died before the testator, Dig. 28, 3, 12.
The praetorian succession, or right of succession introduced by the praetor under the name of Bonorum possessio, sometimes as supplementary to, and sometimes in the place of, civilis hereditas, may be divided into testate succession and intestate succession. The latter branch (bonorum possessio intestati) was firmly established at an earlier period than the former (bonorum possessio secundum tabulas). The rescript mentioned by Gaius, § 120, which is attributed by some writers to Antoninus Pius and by others to Marcus Aurelius, as is the more probable view, may be regarded as having definitively established the validity of the praetorian testament, not simply when supplementary to, but also when in opposition to, jus civile; in other words, a praetorian will might make a person bonorum possessor cum re, although the inheritance was claimed by some one with a valid civil title.
In its origin Bonorum possessio was probably only the provisional or interimistic possession granted to one of the parties in a suit of Hereditatis petitio, cf. Sohm, § 110. This suit was a species of Real action (actio in rem), and in all Real actions it is necessary to determine which of the litigants shall have possession during the pendency of the litigation. In the earliest period, that of statute-process (legis actio), the interim possession was called vindiciae, and the praetor who assigned it to one of the parties was said vindicias dicere, 4 § 16. In making the grant of vindiciae he was probably governed by the same rule which afterwards prevailed when the question of interim possession was determined by application of the Interdicts Utrubi and Uti possidetis: that is to say he probably allowed the party in actual possession to continue in possession. But this rule was inapplicable to the case of Hereditatis petitio, for at the decease of the proprietor who leaves an inheritance not one of the claimants to succeed may be in actual possession. Here accordingly the grant was governed by different principles: if a will, prima facie valid, was propounded, possession was granted to the claimant under the will (bonorum possessio secundum tabulas): if no such will was propounded, possession was granted to the civil heirs, the self-successor (suus heres) being eventually allowed to claim bonorum possessio unde liberi, coming before the nearest agnates (legitimi). Then as supplementary to the civil law, persons who were not recognized as heredes, namely persons claiming under a praetorian will, till they were preferred by statute to agnates, § 120, and next cognates (bonorum possessio unde cognati), and the wife or husband, as such (bonorum possessio unde vir et uxor), were put in possession in default of other heirs: children (liberi), who by emancipation had lost the character of self-successors, were nevertheless admitted to possession in the first order in preference to agnates of the second order, just as if they had continued unemancipated (bonorum possessio unde liberi). The right of provisional possession of course corresponded to a presumptive right of definitive ownership.
Although a will was propounded, yet if a descendant of the testator, who would have been self-successor if he had not been emancipated, was therein pretermitted (praeteritus), i. e. not either instituted heir or disinherited, possession was granted to such pretermitted descendant (bonorum possessio contra tabulas). Contra-tabular possession did not make a will absolutely void as the passing over of suus heres might do: if the praeteritus was an emancipated son, although he obtained contra-tabular possession, he was bound, as we shall see, by some of the dispositions of the will; so that his succession was partly intestate, partly testate.
§ 122. In ancient Rome, females, even after attaining their majority, were subject to perpetual guardianship. In the time of Gaius, the only survival of such guardianship to which they continued really subject appears to have been that of ascendants and patrons, cf. 1 §§ 189-193; 2 §§ 85, 112. But before the time of Justinian even this had ceased.
DE EXHEREDATIONE LIBERORVM.
§ 123. Item qui filium in potestate habet curare debet, ut eum uel heredem instituat uel nominatim exheredet; alioquin si eum silentio praeterierit, inutiliter testabitur, adeo quidem, ut nostri praeceptores existiment, etiamsi uiuo patre filius defunctus sit, neminem heredem ex eo testamento existere posse, quia scilicet statim ab initio non constiterit institutio. sed diuersae scholae auctores, siquidem filius mortis patris tempore uiuat, sane inpedimento eum esse scriptis heredibus et illum ab intestato heredem fieri confitentur; si uero ante mortem patris interceptus sit, posse ex testamento hereditatem adiri putant, nullo iam filio inpedimento; quia scilicet existimant 〈non〉 statim ab initio inutiliter fieri testamentum filio praeterito.
Inst. 2, 13 pr.
§ 124. Ceteras uero liberorum personas si praeterierit testator, ualet testamentum 〈sed〉 praeteritae istae personae scriptis heredibus in partem adcrescunt, si sui heredes sint in uirilem, si extranei, in dimidiam. id est si quis tres uerbi gratia filios heredes instituerit et filiam praeterierit, filia adcrescendo pro quarta parte fit heres, et ea ratione idem consequitur, quod ab intestato patre mortuo habitura esset; at si extraneos ille heredes instituerit et filiam praeterierit, filia adcrescendo ex dimidia parte fit heres. quae de filia diximus, eadem et de nepote deque omnibus liberorum personis seu masculini seu feminini sexus dicta intellegemus.
Inst. l. c
§ 125. Quid ergo est? licet eae secundum ea quae diximus scriptis heredibus dimidiam partem detrahant, tamen praetor eis contra tabulas bonorum possessionem promittit, qua ratione extranei heredes a tota hereditate repelluntur et efficiuntur sine re heredes.
§ 126. Et hoc iure utebamur, quasi nihil inter feminas et masculos interesset; sed nuper imperator Antoninus significauit rescripto suas non plus nancisci feminas per bonorum possessionem, quam quod iure adcrescendi consequerentur. quod in emancipatarum quoque persona obseruandum est, ut hae quoque, quod adcrescendi iure habiturae essent, si in potestate fuissent, id ipsum etiam per bonorum possessionem habeant.
§ 127. Sed siquidem filius a patre exheredetur, nominatim exheredari debet; alioquin non uidetur exheredari. nominatim autem exheredari uidetur, siue ita exheredetur titivs filivs mevs exheres esto,siue ita filivs mevs | exheres esto, non adiecto proprio nomine.
Inst. 2, 13, 1.
§ 128. Ceterae uero liberorum personae uel femini sexus uel masculini sa|tis inter ceteros exheredantur, id est his uerbis cete|ri omnes exheredes svnto,quae uerba — post in|stitutionem heredum adici solent. sed hoc ita— |NA.
Inst. l. c.
§ 129. Nam praetor omnes uirilis sexus liberorum personas, | id est nepotes quoque et pronepotes—|—|—|NA.
§ 130. Postumi quoque liberi uel heredes institui debent uel exheredari.
§ 131. Et in eo par omnium condicio est, quod 〈et〉 in filio postumo et in quolibet ex ceteris liberis siue feminini sexus siue masculini praeterito ualet quidem testamentum, sed postea agnatione postumi siue postumae rumpitur, et ea ratione totum infirmatur. ideoque si mulier ex qua postumus aut postuma sperabatur abortum fecerit, nihil inpedimento est scriptis heredibus ad hereditatem adeundam.
Inst. l. c.
§ 132.Sed feminini quidem sexus personae uel nominatim uel inter ceteros exheredari solent, dum tamen si inter ceteros exheredentur, aliquid eis legetur, ne uideantur per obliuionem praeteritae esse. masculini uero sexus personas placuit non aliter recte exheredari, quam si nominatim exheredentur, hoc scilicet modo qvicvmqve mihi filivs genitvs fverit ex|heres esto.
Inst. l. c.
§ 132 a —|NA potest u — |—NA
(4 uersus in C legi nequeunt)—|—NAagat—|n—|NA.
§ 133.Postumorum autem loco sunt et hi qui in sui heredis | locum succedendo quasi agnascendo fiunt parenti|bus sui heredes. ut ecce si filium et ex eo nepotem ne|ptemue in potestate habeam, quia filius gradu praecedit, | is solus iura sui heredis habet, quamuis nepos quo|que et neptis ex eo in eadem potestate sint; sed si filius meus me uiuo moriatur, aut qualibet ratione exeat de potestate mea, incipit nepos neptisue in eius locum succe|dere, et eo modo iura suorum heredum quasi agnatio|ne nanciscuntur.
Inst. 2, 13, 2.
§ 134. Ne ergo eo modo rumpatur mihi te|stamentum, sicut ipsum filium uel heredem instituere uel | exheredare debeo, ne non iure faciam testamentum, ita et ne|potem neptemue ex eo necesse est mihi uel heredem instituere uel exheredare, ne forte, me uiuo filio mortuo, succedendo in locum eius nepos neptisue quasi agnatione rumpat testamentum; idque lege Iunia Vellaea prouisum est, in qua simul exheredationis modus notatur, ut uirilis sexus 〈postumi〉 nominatim, feminini uel nominatim uel inter ceteros exheredentur, dum tamen iis qui inter ceteros exheredantur aliquid legetur.
Inst. l. c.
§ 135.Emancipatos liberos iure ciuili neque heredes instituere neque exheredare necesse est, quia non sunt sui heredes; sed praetor omnes tam feminini quam masculini sexus, si heredes non instituantur, exheredari iubet, uirilis sexus nominatim, feminini uel nominatim uel inter ceteros; quodsi neque heredes instituti fuerint neque ita ut supra diximus exheredati, praetor promittit eis contra tabulas bonorum possessionem.
Inst. 2, 13, 3.
§ 135 a. In potestate patris non sunt qui cum eo ciuitate Romana donati sunt nec in accipienda ciuitate Romana pater petiit, ut eos in potestate haberet, aut, si petiit, non inpetrauit, nam qui 〈in〉 potestatem patris ab imperatore rediguntur nihil diffe|runt a—.
§ 136. Adoptiui filii quamdiu manent in ado|ptione naturalium loco sunt; emancipati uero 〈a〉 patre adoptiuo neque iure ciuili neque quod ad edictum praetoris pertinet, inter liberos numerantur.
Inst. 2, 13, 4.
§ 137. Qua ratione accidit ut ex diuerso quod ad naturalem parentem pertinet, quamdiu quidem sint in adoptiua familia, extraneorum numero habeantur; si uero emancipati fuerint ab adoptiuo patre, tunc incipiant in ea causa esse qua futuri essent, si ab ipso naturali patre 〈emancipati〉 fuissent.
Inst. l. c.
DE EXHEREDATIONE LIBERORVM.
§ 123. Moreover, a testator who has a son in his power must take care either to institute him heir or to disinherit him individually, for passing him over in silence invalidates the will. So much so, that according to the Sabinians, even if the son die in the lifetime of the father, no one can take as heir under the will on account of the original nullity of the institution. But the followers of the other school hold that although the son, if alive at the time of his father’s death, bars the heirs mentioned in the will and takes as self-successor by intestacy, yet, if the son die before the father, the heirs under the will may succeed, the son being no longer in their way, because according to this view the will was not void ab initio by his silent pretermission.
§ 124. By the pretermission of other self-successors a will is not avoided, but the omitted persons come in to share with the heirs named in the will, taking an aliquot part if the latter are self-successors, a moiety if they are strangers. Thus if a man has three sons and institutes them heirs, saying nothing of his daughter, the daughter comes in as co-heir and takes a fourth of the estate, being entitled to the portion which would have devolved on her by intestacy: but when the instituted heirs are strangers, the daughter, if passed over, comes in and takes a moiety. What has been said of the daughter applies to the son’s children, male and female.
§ 125. But though a female according to this statement of the law only deprives the heirs under the will of a moiety, the praetor promises to give her contra-tabular possession, so that, if strangers, they lose the whole, and become heirs without taking anything.
§ 126. And this was once the law, and there was no distinction between males and females; but the Emperor Antoninus has recently decided by rescript that female self-successors shall not take more by contra-tabular possession than they would by coming in as co-heirs at civil law, by right of accrual. And the same rule applies to emancipated daughters, that is, they obtain by contra-tabular possession the same shares as they would have obtained as co-heirs by right of accrual if they had not been emancipated.
§ 127. A son must be disinherited individually; otherwise the disherison is invalid. Individual disherison may be expressed in these terms: Be Titius my son disinherited: or in these: Be my son disinherited, without inserting his name.
§ 128. Other male and all female self-successors may be sufficiently disinherited inter ceteros thus: Be the remainder disinherited, which words usually follow the institution of the heir: this, however, is only the rule of the civil law.
§ 129. For the Praetor requires all male self-successors, sons, grandsons, greatgrandsons, to be disinherited individually, although he permits females to be disinherited in an aggregate (inter ceteros), and, failing such disherison, promises them the contra-tabular succession.
§ 130. Children born after the making of the will must either be instituted heirs or disinherited.
§ 131. And in this respect all stand in the same position, that if a son or any other child, male or female, born after the making of the will, be passed over in silence, the will is originally valid, but subsequently rescinded and totally avoided by the birth of the child; so that if the woman from whom a child was expected have an abortive delivery, there is nothing to prevent the heirs named in the will from taking the succession.
§ 132. Female self-successors born after the making of the will may be disinherited either individually or inter ceteros, with this proviso, that if they are disinherited inter ceteros, some legacy must be left them in order that they may not seem to have been pretermitted through forgetfulness. Male self-successors, sons and further lineal descendants, are held not to be duly disinherited unless they are disinherited individually, thus: Be any son that shall be born to me disinherited.
§ 133. With children born after the making of the will are classed children who by succeeding to the place of self-successors become subsequent self-successors like the afterborn. For instance, if a testator have a son, and by him a grandson or granddaughter under his power, the son being nearer in degree alone has the rights of self-successor, although the grandson and granddaughter are equally in the ancestor’s power. But if the son die in the lifetime of the testator, or by any other means pass out of the testator’s power, the grandson and granddaughter succeed to his place, and thus acquire the rights of self-successors to the testator just as if they were children born after the making of the will.
§ 134. To prevent this subsequent rupture of my will, just as a son must be either instituted heir or disinherited individually to make a will originally valid, so a grandson or granddaughter by a son must be either instituted heir or disinherited, lest if the son die in the testator’s lifetime the grandson and granddaughter should take his place and rupture the will in the same way as if they had been children born after the execution of the will. The lex Junia Vellaea allows this and directs them to be disinherited like children born after a will is executed, that is to say, males individually, females either individually or inter ceteros, provided that those who are disinherited inter ceteros receive some legacy.
§ 135. Emancipated children by civil law need neither be appointed heirs nor disinherited because they are not self-successors. But the Praetor requires all, females as well as males, unless appointed heirs, to be disinherited, males individually, females either individually or inter ceteros, and if they are neither appointed heirs nor disinherited as described, the Praetor promises to give them the contratabular possession.
§ 135 a. Children who are made Roman citizens along with their father are not subject to his power, if at the time he either omitted to petition for, or failed to obtain, a grant of patria potestas: for those who are subjected to the father’s power by the emperor differ in no respect from those under power from time of birth.
§ 136. Adoptive children, so long as they continue in the power of the adoptive father, have the rights of his natural children: but when emancipated by the adoptive father they neither at civil law nor in the Praetor’s edict are regarded as his children.
§ 137. And conversely in respect of their natural father as long as they continue in the adoptive family they are reckoned as strangers: but when emancipated by the adoptive father they have the same rights in their natural family as they would have had if emancipated by their natural father (that is, unless either instituted heirs or disinherited by him, they may claim the contratabular succession).
§ 123. The praeterition of suus heres, another circumstance which as well as testamenti factio affected the validity of a will, was at civil law critical both at the time of making the will and at the time of the testator’s death and in the interval: but in later times this defect of a will was healed by the praetor, who granted juxta-tabular possession if the defect only existed at the first and third period, Dig. 28, 3, 12 pr., so that practically the existence of a pretermitted suus heres at the time of the testator’s death was alone important.
The necessity of disinheriting a suus heres is grounded on the principle of primitive law, that the child is co-proprietor with the parent: hence, unless something occurs to divest the child of his property, he will simply become sole proprietor by survivorship on the death of his father. Dig. 28, 2, 11, ‘In self-succession we have a still more striking instance of an unbroken continuity of dominion, for there appears to be no vesting by it of new property by inheritance, but the heir is deemed to have been previously proprietor even during the lifetime of the father. Hence the names filiusfamilias and paterfamilias imply a similar kind of legal relation to the patrimony, though one is parent and the other child. Therefore the death of the parent occasions no acquisition of new property by inheritance, but only an increased freedom in the administration of already existing property. Hence, even in the absence of testamentary institution, a self-successor is proprietor: and it is no objection to this, that a parent has the power of disinheriting a self-successor, for he also had the power of putting him to death.’
The characteristic of the Roman will that it grounded a Universal succession (unlike the English will which may be a merely Partial definition of the succession), which is expressed in the maxim, Nemo pro parte testatus, pro parte intestatus decedere potest, had its historic origin, not probably in a perception of its manifold utility, but in the primitive form of the will—a proposal, perhaps in the form of an adoption, laid before the legislative assembly for its sanction, § 101. The assembly could no more judge of the justice of a proposed arrangement without having laid before it the whole plan of succession than it could judge of the fairness of a contract by inspection of a single paragraph. It could not therefore allow the testator merely to lay before it certain partial modifications of the intestate succession and leave the rest of his inheritance to follow the general rules of intestacy, without further informing the assembly of their operation. Nor were the testamentary powers, conferred by the Twelve Tables, on which the mancipatory will was founded, intended to be used so as to defeat the claims of sui heredes (Muirhead, Roman Law, § 32). These considerations involve the rules respecting the effect of Praeteritio. If the testator’s dispositions were valid in spite of Praeteritio, he would have it in his power to commit a fraud upon the assembly by suppressing some element that was material to enable them to form a judgement. Accordingly Praeteritio was made to defeat itself, in the case of the son by nullification (inutilitas), in the case of other issue by Accretio, § 124. However, although by the Civil law Praeterition avoided a will and was not cured by the death of Praeteritus before Testator, yet Praetorian law only regarded the date of Testator’s death, and, if no Praeteritus was then existent, counteracted the nullity of the will by Juxta-tabulation.
After the introduction of the mancipatory will the fraud against the legislature would cease to be a motive for the rule requiring the testator to define a Universal succession; but the rule was retained for the sake of continuity and in order to force the testator to have before his mind a clear and systematic view of his intentions by requiring their simultaneous expression in a single act. It secured the afterborn from oblivion and protected the son who was falsely supposed to be dead from the consequences of the testator’s error. At the latest period the use of Codicils permitted to a certain extent the partial and fragmentary disposition of a patrimony, but this was not extended to the principal point, the heredis institutio. Ihering, § 53.
§ 124. Justinian abolished this accretion and equalized the sexes, enacting that the pretermission of any suus heres or sua heres should absolutely vacate a will, and entitle to bonorum possessio contra tabulas, like the pretermission of the son, Cod. 6, 28, 4; Inst. 2, 13, 5.
§ 127. Justinian abolished this distinction and required that all sui heredes should be disinherited individually like the son, ibid.
§ 130. Afterborn children (postumi), that is, children born after the making of a will, are uncertain persons, and, by the general rule that uncertain persons cannot be instituted or disinherited (incerta persona heres institui non potest, Ulpian 22, 4), ought to be incapable of institution or disinheritance, and, therefore, if they are sui heredes, would necessarily invalidate a will, because every will is informal when there exists a suus heres who is neither instituted nor disinherited. If the suus heres was born in the lifetime of the testator, the revocation of the will would not be an irremediable evil, because the testator would still have it in his power to make another will, and accordingly in this case the civil law left the general rule to operate. But if the suus heres were born after the death of the testator, the evil would be irreparable, and the testator would die intestate. To prevent this, the civil law made an exception to the rule that an uncertain person cannot be instituted or disinherited, and permitted the institution or disinheritance of any suus heres who should be born after the death of the testator: and on the authority of the celebrated jurist Aquilius Gallus, the inventor of a form of acceptilation (3 § 170), this power was extended to the institution or disinheritance of any afterborn grandchild of the testator whose father should die in the interval between the making of the will and the death of the testator. Dig. 28, 2, 29 pr. Gallus sic posse institui postumos nepotes induxit: Si filius meus vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis post mortem meam in decem mensibus proximis, quibus filius meus moreretur, natus nata erit, heredes sunto. ‘Gallus Aquilius introduced the institution of afterborn grandchildren in the following manner: If my son die in my lifetime, then let any grandson or granddaughter by him who may be born after my death within ten months after the death of my son, be my successor.’ Such grandchildren are called Postumi Aquiliani.
In respect of the suus heres born after the making of the will but in the lifetime of the testator, the case which the civil law left to the operation of the general rule, it might certainly be sometimes possible to make a new will after his birth, but it might sometimes be impossible or highly inconvenient; and accordingly the lex Junia Vellaea, which was probably passed at the close of the reign of Augustus, in its first chapter permitted such sui heredes, being children of the testator, and also grandchildren of the testator born after their father’s death in the lifetime of their grandfather, to be instituted or disinherited. Such children and grandchildren were called Postumi Vellaeani primi capitis. In its second chapter it permitted the institution or disinheritance of another class of uncertain persons, viz. quasi-afterborn children (postumorum loco); grandchildren, for instance, who were born before the making of the will, but whose acquisition of the character of sui heredes by the decease of their father is subsequent to the making of the will.
Such grandchildren are called Postumi Vellaeani secundi capitis.
Besides the Postumi Aquiliani, the Postumi Vellaeani primi capitis and the Postumi Vellaeani secundi capitis, the jurist Salvius Julianus, who systematized the Edict, established the validity of the institution or disinheritance of a fourth class, intermediate between the Postumi Vellaeani of the first and second chapter: grandchildren, namely, who, like the Vellaeani of the first chapter, were born after the making of the grandfather’s will, but who, like those of the second chapter, were born before the death of their father. Such grandchildren are not sui heredes to their grandfather at their birth, but only by succession, that is by the subsequent death of their father, like those of the second chapter, Dig. 28, 2, 29, 15.
The following is a conspectus of the different kinds of Postumi sui, i. e. descendants who after the making of a will come into the immediate power of a testator, whether (A) children or (B) grandchildren: to remoter descendants analogous principles will apply.
(A) Children are either
(a) Veritably afterborn, that is to say born after their father has made his will, whether after their father’s decease, in which case the civil law treated them as certae personae, or in their father’s lifetime, in which case they form a subdivision of Velleiani primi capitis:
(b) Or quasi-afterborn (loco postumorum), i. e. quasi-sons or quasi-daughters by adrogatio, adoptio, legitimatio, in manum conventio.
(c) Another quasi-afterborn is the child who falls under the immediate power of his soldier father, that is, becomes his suus heres, in consequence of the death of his grandfather, in whose power he previously was, after his father had made a will of castrense peculium. Dig. 28, 2, 28, 1.
(B) Afterborn grandchildren who, as self-successors to their grandfather, require institution or disinheritance in his will fall into four classes, differentiated by the order of priority in which certain events occur, as hereunder indicated:
Will of grandfather: Death of father: Death of grandfather: Birth of grandchild.
Postumi Vellaeani Primi Capitis,
Will of grandfather: Death of father: Birth of grandchild: Death of grandfather.
Will of grandfather: Birth of grandchild: Death of father: Death of grandfather.
Postumi Vellaeani Secundi Capitis,
Birth of grandchild: Will of grandfather: Death of father: Death of grandfather.
The last two cases depend on the principle of successio. The grandchild is at birth in the power of his grandfather, but is not his suus heres, so long as there is an intervening ascendant—the father—in the same power. On the death of the intervening ascendant the grandchild is said to succeed to his place, and becomes by such succession suus heres to his grandfather.
The afterborn stranger, though incapable at civil law of being appointed heir (§ 242), was relieved by the praetor who gave him the juxta-tabular possession. Justinian gave him a civil title, Inst. 3, 9 pr.
§ 132. To the necessity of leaving some legacy to the disinherited afterborn sua heres (and not, as Blackstone suggests, to the querela inofficiosi) we may perhaps attribute the vulgar error in England of the necessity of leaving the heir one shilling in order to cut him off effectually. The querela inofficiosi testamenti was a process by which a will formally valid could be either totally or partly upset at the instance of certain near relations on the ground that the claims of natural affection had been disregarded by the testator. The querela inofficiosi was not barred by any legacy, however slight, being left to such relation, but only by giving him one fourth of his intestate portion (§ 152, comm.; Sohm, § 113. For the changes which Justinian made in the law on this subject see Inst. 2, 18, 1, 2; Novella, 18, 1, and 115). Thus even a legacy left to an afterborn sua heres would be unavailing to save the will from being inofficiosum, unless it amounted to one fourth of her share by descent. If no legacy at all were left her, the will would be informal and absolutely void as against her, unless she was disinherited; if less than a fourth of her share were left, the will would not be absolutely void but voidable, i. e. liable to be altogether or in part overthrown if she chose to impeach it as inofficiosum.
§ 135. The Praeteritio of a descendant who is suus heres to the testator or, but for emancipation, would be suus heres, entitles the descendant to bonorum possessio. If the praeteritus is filius suus heres, the will is absolutely void and contra-tabular possession is an intestate succession: but if the praeteritus is emancipatus, the effect of contra-tabular possession is to divide the inheritance between the praeteritus and other descendants who were instituted heirs, excluding both instituted strangers and disinherited sui heredes.
Contra-tabular possession might be claimed either by the praeteritus himself, or by any of the instituted sui heredes. For if an instituted heir took less by his institution than he would by this partial intestacy, it would be his interest to claim contra-tabular possession, commisso per alium edicto, ‘the edict having been brought into operation by another,’ viz. by another descendant, who had been pretermitted.
The portions of the will that remained in force were:
(1) The exheredations: for such of the liberi as were duly disinherited continued, as was mentioned, excluded from the inheritance:
(2) The pupillary substitutions, the nature of which will hereafter (§ 179) be explained:
(3) Legacies given to certain conjunctae personae, e. g. legacies to ascendants or descendants of the testator, or a bequest to the wife of the dower which she had brought to her husband. If, instead of making the conjuncta persona a legatee, the testator had given his bounty in the form of a portion of the inheritance in which the conjuncta persona was instituted heir, such institution continued valid. The validity, however, of such legacies and institutions was by a constitution of Antoninus Pius, Dig. 37, 5, 7, and 8 pr. subjected to this limitation, that all the conjunctae personae together could not take more than a virilis portio, i. e. they were not entitled to more than fell to the lot of each contra-tabulant or claimant of contra-tabular possession; with this further proviso, that any conjuncta persona who is instituted heir of the inheritance in a portion of the heritage may retain as much thereof as he would have obtained by claiming contra-tabular possession, cf. Roby, vol. i, p. 250.
The partial intestacy produced by contra-tabular possession shows that the rule which we have already quoted, nemo pro parte testatus pro parte intestatus decedere potest, must be taken with some reservation. Although a testator cannot voluntarily dispose of only part of his heritage, such partial disposition may be introduced against the testator’s intention by the operation of law. The significance of the rule is principally this: that if a testator only names for a certain fraction of the inheritance, or if the fraction in which one of several heirs is instituted lapses by his decease before the testator’s death, the portion which was undisposed of or lapsed does not devolve, as it would in English law, to the heirs-at-law or persons entitled by intestacy, but goes by accrual (aceretio) to those to whom the remainder of the inheritance is left.
QVIBVS MODIS TESTAMENTA INFIRMENTVR.
§ 138. Si quis post factum testamentum adoptauerit sibi filium aut per populum eum qui sui iuris est, aut per praetorem eum qui in potestate parentis fuerit, omni modo testamentum eius rumpitur quasi agnatione sui heredis.
Inst. 2, 17, 1.
§ 139. Idem iuris est si cui post factum testamentum uxor in manum conueniat, uel quae in manu fuit nubat; nam eo modo filiae loco esse incipit et quasi sua.
§ 140. Nec prodest siue haec siue ille qui adoptatus est in eo testamento sit institutus institutaue; nam de exheredatione eius superuacuum uidetur quaerere, cum testamenti faciendi tempore suorum heredum numero non fuerit.
§ 141. Filius quoque qui ex prima secundaue mancipatione manumittitur, quia reuertitur in potestatem patriam, rumpit ante factum testamentum; nec prodest, 〈si〉 in eo testamento heres institutus uel exheredatus fuerit.
§ 142. Simile ius olim fuit in eius persona cuius nomine ex senatusconsulto erroris causa probatur, quia forte ex peregrina uel Latina quae per errorem quasi ciuis Romana uxor ducta esset natus esset; nam siue heres institutus esset a parente siue exheredatus, siue uiuo patre causa probata siue post mortem eius, omni modo quasi agnatione rumpebat testamentum.
§ 143. Nunc uero ex nouo senatusconsulto quod auctore diuo Hadriano factum est, siquidem uiuo patre causa probatur, aeque ut olim omni modo rumpit testamentum; si uero post mortem patris, praeteritus quidem rumpit testamentum, si uero heres in eo scriptus est uel exheredatus, non rumpit testamentum; ne scilicet diligenter facta testamenta rescinderentur eo tempore quo renouari non possent.
§ 144. Posteriore quoque testamento quod iure factum est superius rumpitur. nec interest an extiterit aliquis ex eo heres, an non extiterit; hoc enim solum spectatur, an existere potuerit. ideoque si quis ex posteriore testamento quod iure factum est aut noluerit heres esse, aut uiuo testatore aut post mortem eius antequam hereditatem adiret decesserit, aut per cretionem exclusus fuerit, aut condicione sub qua heres institutus est defectus sit, aut propter caelibatum ex lege Iulia summotus fuerit ab hereditate: quibus casibus pater familias intestatus moritur, nam et prius testamentum non ualet ruptum a posteriore, et posterius aeque nullas uires habet, cum ex eo nemo heres extiterit.
Inst. 2, 17, 2.
§ 145. Alio quoque modo testamenta iure facta infirmantur, ueluti 〈cum〉 is qui fecerit testamentum capite deminutus sit; quod quibus modis accidat, primo commentario relatum est.
Inst. 2, 17, 4.
§ 146. Hoc autem casu inrita fieri testamenta dicemus, cum alioquin et quae rumpuntur inrita fiant, 〈et quae statim ab initio non iure fiunt inrita sint; sed et ea quae iure facta sunt et postea propter capitis deminutionem inrita fiunt〉 possunt nihilo minus rupta dici. sed quia sane commodius erat singulas causas singulis appellationibus distingui, ideo quaedam non iure fieri dicuntur, quaedam iure facta rumpi uel inrita fieri.
Inst. 2, 17, 5.
QVIBVS MODIS TESTAMENTA INFIRMENTVR.
§ 138. If after making his will a man adopts as son either a person sui juris by means of the people (in comitia) or one subject to the power of an ascendant by means of the Praetor, his will is inevitably revoked as it would be by the subsequent birth of a self-successor.
§ 139. The same happens if after making his will the testator receives a wife into his hand, or marries a person who is in his hand, as she thereby acquires the status of a daughter and becomes his self-successor.
§ 140. Nor does it avail to prevent the rupture that such a wife or adopted son was in that will instituted heir, for as to disinheriting them, not having been self-successors when the will was made, the question could not then have been material.
§ 141. So a son manumitted after the first or second sale reverts into the power of his father and revokes a previous will, nor does it avail that he is therein appointed heir or disinherited.
§ 142. The same rule formerly held of the son in whose behalf the decree of the senate allows proof of error, if he was born of an alien or Latin mother who was married in the mistaken belief that she was a Roman: for whether he was appointed heir by his father or disinherited, and whether the error was proved in his father’s life or after his death, in every case the will was revoked as by the subsequent birth of a self-successor.
§ 143. Now, however, by a recent decree of the senate, made on the proposition of the late emperor Hadrian, if the father is alive when the error is proved, the old rule obtains and the will is in every case avoided; but when the error is proved after the father’s death, if the son was passed over in silence, the will is revoked; but if he was appointed heir or disinherited the will is not revoked; in order that carefully executed wills should not be rescinded at a period when reexecution is impossible.
§ 144. A subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or no; the only question is, whether one might. Accordingly, whether the heir instituted in a subsequent will duly executed declines to be heir, or dies in the lifetime of the testator, or after his death before accepting the inheritance, or is excluded by expiration of the time allowed for deliberation, or by failure of the condition under which he was instituted, or by celibacy as the lex Julia provides; in all these cases the testator dies intestate, for the earlier will is revoked by the later one, and the later one is inoperative, since no one becomes heir under it.
§ 145. There is another event whereby a will duly executed may be invalidated, namely, the testator’s undergoing a loss of status: how this may happen was explained in the preceding book.
§ 146. In this case the will may be said to be rescinded; for although both those wills that are revoked and those that are not from the first made in proper form may be said to be rescinded, and those that are made in proper form but subsequently annulled by loss of status may be said to be revoked, yet as it is convenient that different grounds of invalidity should have different names to distinguish them, we will say that some wills are not made in proper form, others made in proper form are either revoked or rescinded.
§ 138. A will may be void from the first because it is not duly made—testamentum nullum, injustum, non jure factum—or it may be avoided by some subsequent circumstance—testamentum ruptum §§ 138, 144, irritum § 146, destitutum—or it may be upset as being unduteous—inofficiosum. A will is destitutum, ‘cum ex eo nemo heres extiterit,’ § 144. A will may be revoked or ruptured by a subsequent will, but not by a codicil. The tearing up or destruction of a will does not revoke it, unless this is done by the testator ‘animo revocandi.’ See § 151, comm. The innovations of Justinian changed the effects of adoption. Under his enactment, if a child is adopted by an ascendant the old rules obtain; but a person adopted by a stranger only acquires rights in the adoptive family in case of the adopter’s intestacy, and therefore need not be instituted or disinherited by the adopter; he retains, however, his rights in his natural family, and therefore must be instituted or disinherited in the will of his natural parent. 1 §§ 97-107, comm.
§ 139. By English law the only circumstance by which a will is avoided (besides revocation, cancellation, execution of a later will) is the marriage of the testator, and this operates universally, irrespectively of the birth of children. Marriage without manus, which was usual in the time of Gaius, had no effect on a will.
§ 140. This was reversed before the time of Justinian, for we find in Dig. 28, 3, 18 that the institution of the future adoptive son saves a will from being ruptured by adoption. Indeed, considering that the object of the lex Vellaea was to save wills from rupture, we may be surprised that the extension of its provisions from the natural postumi to the artificial postumi or quasi postumi had not been established in the days of Gaius.
§ 141. Cf. 1 §§ 132-136.
§ 142. As to erroris causae probatio see 1 § 67.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§ 147. Non tamen per omnia inutilia sunt ea testamenta quae uel ab initio non iure facta sunt uel iure facta postea inrita facta aut rupta sunt. nam si septem testium signis signata sint testamenta, potest scriptus heres secundum tabulas bonorum possessionem petere, si modo defunctus testator et ciuis Romanus et suae potestatis mortis tempore fuerit. nam si ideo inritum factum sit testamentum, quod puta ciuitatem uel etiam libertatem testator amisit, aut is in adoptionem se dedit 〈et〉 mortis tempore in adoptiui patris potestate fuit, non potest scriptus heres secundum tabulas bonorum possessionem petere.
Inst. 2, 17, 4.
§ 148. 〈Itaque qui〉 secundum tabulas testamenti quae aut statim ab initio non iure factae sint, aut iure factae postea ruptae uel inritae erunt, bonorum possessionem accipiunt, si modo possunt hereditatem optinere, habebunt bonorum possessionem cum re; si uero ab iis auocari hereditas potest, habebunt bonorum possessionem sine re.
§ 149. Nam si quis heres iure ciuili institutus sit uel ex primo uel ex posteriore testamento, uel ab intestato iure legitimo heres sit, is potest ab iis hereditatem auocare; si uero nemo sit alius iure ciuili heres, ipsi retinere hereditatem possunt, nec ullum ius aduersus eos habent cognati qui legitimo iure deficiuntur.
§ 149 a. Aliquando tamen, sicut supra | quoque notauimus, etiam legitimis heredibus | potiores scripti habentur, ueluti si ideo non iure | factum sit testamentum, quod familia non uenierit aut nun|cupationis uerba testator locutus non sit; —|—NAagnati petant hereditatem — |NA ex constitutione
§ 150. — |NA ueri—lege Iulia—|NA possessores—e|a lege bona caduca fiunt et ad populum deferri | iubentur, si defuncto nemo—.
§ 151. | Potest ut iure facta testamenta contraria uoluntate | infirmentur. apparet 〈autem〉 non posse ex eo solo infirma|ri testamentum, quod postea testator id noluerit ualere, usque adeo ut si linum eius inciderit, nihilo minus iure ciuili ualeat. quin etiam si deleuerit quoque aut conbusserit tabulas testamenti, nihilo minus 〈non〉 desinent ualere quae ibi fuerunt scripta, licet eorum probatio difficilis sit
§ 151 a. Quid ergo est? si quis ab intestato bonorum possessionem petierit et is | qui ex eo testamento heres est petat hereditatem,—|—|—NAperueniat hereditas; et hoc ita rescripto imperatoris Antonini significatur.
BONORVM POSSESSIO SECVNDVM TABVLAS.
§ 147. Wills are not altogether inoperative either when originally informal or when though at first made in proper form they were subsequently rescinded or revoked; for if the seals of seven witnesses are attached, the testamentary heir is entitled to demand possession in accordance with the will, if the testator was a citizen of Rome and sui juris at the time of his death; but if the cause of nullity was, say, the testator’s loss of citizenship, or loss of liberty, or adoption and he dies subject to his adoptive father’s power, the heir instituted in the will is barred from demanding possession in accordance with the will.
§ 148. Persons granted possession in accordance with a will either originally not made in due form or originally made in due form and subsequently revoked or rescinded, have, if only they can maintain their right to the inheritance, effective possession of it (bonorum possessio cum re); but if they can be deprived of the property by an adverse claimant, the grant of possession to them is ineffective (bonorum possessio sine re).
§ 149. For an heir instituted according to jus civile either by an earlier or later will, or a statutory heir by intestacy, can evict the mere bonorum possessor according to the will from the inheritance; but in default of such claim on the part of a civil heir, such possessor according to the will can retain the inheritance, and cannot be deprived of it by cognates, these having no civil title.
§ 149 a. Sometimes, however, an heir with a civil title is postponed to an irregularly appointed heir; for instance, if the irregularity was only the absence of mancipation or nuncupatory publication, since if the agnates of the deceased claim the inheritance, they may be repelled by the plea of fraud, according to the constitution of the Emperor Antoninus.
§ 150. Possession according to the will is not defeated by the lex Julia, under which law a condition of caducity or devolution to the fiscus is the absence of every kind of heir, whether civil or praetorian.
§ 151. A validly executed will may be invalidated by a contrary expression of will: but a will is not, it is clear, invalidated by the mere intention of revocation. And consequently, in spite of the testator’s cutting the strings by which it is tied, it nevertheless, at civil law, continues valid: and his erasure or burning of the dispositions does not render them invalid, though it makes them difficult of proof.
§ 151 a. What then is the result? If a claimant demand bonorum possessio by intestacy. and a testamentary heir under such circumstances demand the civil inheritance under the will, the latter is repelled by the plea of fraud: and if no one should demand bonorum possessio by title of intestacy, the testamentary heir is superseded by the fiscus as unworthy of the succession in order to carry the testator’s intention of excluding him into effect: and this was enacted by a rescript of the Emperor (Marcus Aurelius) Antoninus.
§ 147. The validity of a testament implies, strictly speaking, the continuance of a testator’s intention, and therefore of his capacity of intention (testamenti factio), from its first declaration to the moment of his death. Accordingly an intermediate capitis diminutio avoided the will invalid (irritum) at civil law, § 146. The praetor, however, only looked at the first and last moments, and, if at these periods the testator had testamenti factio, sustained his intentions by granting possession according to the will, although he had undergone capitis diminutio minima in the intervening period.
So at civil law a will was revoked (ruptum) by after-birth (agnatio) of a self-successor, § 138; but if he died before the testator, the praetor sustained the will by granting possession according to the will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus praeteritus, vivo testatore natus, decessit: licet juris scrupulositate nimiaque subtilitate testamentum ruptum videatur, attamen si signatum fuerit testamentum, bonorum possessionem secundum tabulas accipere heres scriptus potest, remque obtinebit, ut et divus Hadrianus et Imperator noster rescripserunt. In order that possession in accordance with the will, granted when a will had been avoided (irritum) by intervening loss of capacity, might be efficacious (cum re), i. e. not defeasible by the claimant entitled at civil law by intestacy, it was necessary that the testator on reacquiring capacity should confirm his will by a codicil or other writing (codicillis aut aliis litteris), Dig. 37, 11, 11, 2.
§ 148. There was no ipso jure, or necessarius, bonorum possessor, corresponding to the heres necessarius, § 152, with whom delatio and adquisitio hereditatis were coincident: all bonorum possessores corresponded to the other class of heres, the heres extraneus or voluntarius, with whom adquisitio was distinct from delatio hereditatis, and required a voluntary act (aditio). That is to say, the person called (vocatus) by the praetorian edict to the succession forfeited his right to succeed unless he made his claim (agnitio, petitio, admissio bonorum possessionis) within a certain period, for ascendants and descendants a year, for others 100 dies utiles from the date of the vocatio (delatio). On the claim under the edict being made, the grant (datio) of bonorum possessio followed as a matter of course without any judicial investigation (causae cognitio). It was a mere formality, a certificate of the magistrate, the praetor or praeses provinciae, that the agnitio had been made within the allotted period, before the expiration of the term allowed for deliberation. If any real controversy arose, it was decided by one of two actions, hereditatis petitio, or the Interdict Quorum bonorum. If the claimant relied on his title at civil law, he sued by hereditatis petitio; if he relied on the title given him by the praetorian edict, he sued by the Interdict Quorum bonorum. See 4 § 144. If defeated in either of these proceedings, he gained nothing by having obtained the formal grant of praetorian succession—he had only bonorum possessio sine re.
§ 149 a. A praetorian title was, as a general rule, sine re, if a civil title was opposed to it, but the constitution of the Antonine emperor, probably Marcus Aurelius, mentioned here and in § 120, made an important inroad on this principle.
§ 150. Originally when a heritage was vacant from the failure of intestate successors, Ulpian 28, 7, or from the neglect of an heir to enter upon it, § 52, any stranger might take possession and acquire by usucapio, but this right was rendered ineffectual by Hadrian’s Senatusconsultum, § 57. The lex Julia de Maritandis ordinibus, which is the statute here referred to, was passed a. d. 4; for an account of its purport and of the meaning of the term caduca see § 190 and § 206, comm. Besides its rights to caduca under this statute the public treasury or that of the Emperor could claim all inheritances left without an heir (bona vacantia). The state did not become necessary successor (ipso jure) but had the delatio (ad populum deferri jubentur), i.e. had the right of deliberation and acceptance or repudiation, Inst. 3, 11, 1. As universal successor the state could recover from the unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could transfer its rights to a purchaser, as if the transfer were made under the Sc. Trebellianum, l. c. 54 pr. (cf. § 253).
The treasury was bound to pay all codicillary legacies and trusts: and succeeded to all the obligations active and passive, in other words, to all the personal rights and personal duties, of the heritageleaver: but like other successors in later times, under the law of Justinian, might, by taking advantage of the Benefice of inventory, confine its liability to the extent of the assets, §§ 158-162, comm. In the event of the repudiation of the succession by the Fiscus, the goods were sold for the benefit of creditors. Vangerow, § 564.
Gaius probably here means, though the MS is defective, that although a grant of bonorum possessio might be rendered ineffective (sine re) in consequence of the superior claims of a person with a civil title by whom the possessor could be evicted, the fiscus had no title to an inheritance under the lex Julia, if the deceased, though without a civil successor, had left a bonorum possessor. (Cf. note on § 150 in Muirhead’s Gaius.)
§ 151. The Rupture (ruptio) of a will was produced by two circumstances: (1) Agnatio postumi, the subsequent birth of a selfsuccessor, or the coming into existence of a quasi postumus, § 139: and (2) Revocation, §§ 138-146, comm. On the principle, Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est (Dig. 50, 17, 35), the most formal and originally the only mode of revoking a will would be the execution of a subsequent will. Another mode of Revocation sanctioned by Justinian depended on two conditions: a declaration attested by three witnesses or made in the form of a record or protocol deposited in the archives of a court, and the expiration of ten years from the date of the execution of the will, Cod. 6, 23, 27.
The mere cancellation or obliteration of a will, with the intention of revoking it, was an informal Revocation and left the will valid at civil law: the will, however, was not allowed to hold good against this evidence of the testator’s change of intention. The rescript of Marcus Aurelius a. d. 166 to this effect, to which Gaius alludes § 151 a, is preserved in the Digest, 28, 4, 3.
Justinian ordained that a will should be perfectly revoked and completely avoided by the cutting of the cords, or removal of the seals. or other intentional destruction of the outward signs of its due solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Vict. c. 26 § 20 and interpreted in the celebrated case of Lord St. Leonards, L. R. 1 P. D. 154, seems to be in conformity with Roman law on the subject of unintentional erasure or destruction of a will.
§ 151 a. Ereption for indignitas, an institution which survived in the legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished from the lapse of a testamentary disposition under the lex Julia (caducum), §§ 185-190, comm. In the latter case there was want of capacitas, as opposed to want of testamenti factio passiva, on the part of honoratus. In the case of the indignus there was not even incapacitas but only liability to deprivation. Some grounds of Ereption were common to the heir and legatee, others peculiar to the heir, others peculiar to the legatee. The forfeiture of the inheritance or legacy was sometimes in favour of the Fiscus, sometimes in favour of other persons, usually of those who would have taken but for the disposition in favour of indignus.
Instances of grounds for which either heir or legatee forfeited their interest to the Fiscus were: undertaking a secret unlawful trust, coercion of the testator in respect of his will, killing the testator or neglect to avenge his death, wrongful impeachment of his will for inofficiositas, &c.
Grounds for which their shares were forfeited to other persons than the Fiscus were: refusal of the office of guardian when the prospect of the discharge of this duty was the motive of the testator’s bounty, refusal to undertake the education of an infant child of the testator, neglect of the testator’s burial, &c.
Grounds on which the heir alone forfeited the whole or part of his inheritance to the Fiscus were: concealment of a portion of the hereditaments in order to defraud a legatee (whereupon the heir forfeited the fourth which he was entitled to retain from such legacy by the lex Falcidia), the discovery that though putative son he was not a genuine son of the testator, the deliberate cancellation of his name by the testator, the imperfect execution of a subsequent will in which he was excluded from the heritage, a codicillary declaration of his unworthiness to inherit, &c.
Grounds on which an heir forfeited his portion to persons other than the Fiscus were: neglect on the part of a mother to demand a guardian for her infant child, a second marriage by a mother who herself is guardian before she has caused another guardian to be substituted, neglect of a lunatic testator, neglect to ransom the testator, criminal prosecution of testator, &c.
Grounds exclusively affecting a legatee and that in favour of the heir are theft from the heritage and concealment of the testator’s will.
DE HEREDVM QVALITATE ET DIFFERENTIA.
§ 152. Heredes autem aut necessarii dicuntur aut sui et necessarii aut extranei.
Inst. 2, 19 pr.
§ 153. Necessarius heres est seruus cum libertate heres institutus, ideo sic appellatus, quia siue uelit siue nolit, omni modo post mortem testatoris protinus liber et heres est.
Inst. 2, 19, 1.
§ 154. Vnde qui facultates suas suspectas habet, solet seruum suum primo aut secundo uel etiam ulteriore gradu liberum et heredem instituere, ut si creditoribus satis non fiat, potius huius heredis quam ipsius testatoris bona ueneant, id est ut ignominia quae accidit ex uenditione bonorum hunc potius heredem quam ipsum testatorem contingat; quam-quam apud Fufidium Sabino placeat eximendum eum esse ignominia, quia non suo uitio sed necessitate iuris bonorum uenditionem pateretur; sed alio iure utimur.
Inst. l. c.
§ 155. Pro hoc tamen incommodo illud ei commodum praestatur, ut ea, quae post mortem patroni sibi adquisierit, siue ante bonorum uenditionem siue postea, ipsi reseruentur; et quamuis pro portione bona uenierint, iterum ex hereditaria causa bona eius non uenient, nisi si quid ei ex hereditaria causa fuerit adquisitum, uelut si † Latinus adquisierit, locupletior factus sit; cum ceterorum hominum quorum bona uenierint pro portione, si quid postea adquirant, etiam saepius eorum bona uenire solent.
Inst. l. c.
§ 156. Sui autem et necessarii heredes sunt uelut filius filiaue, nepos neptisue ex filio, 〈et〉 deinceps ceteri qui modo in potestate morientis fuerunt. sed uti nepos neptisue suus heres sit, non sufficit eum in potestate aui mortis tempore fuisse, sed opus est ut pater quoque eius uiuo patre suo desierit suus heres esse aut morte interceptus aut qualibet ratione liberatus potestate; tum enim nepos neptisue in locum sui patris succedunt.
Inst. 2, 19, 2.
§ 157. Sed sui quidem heredes ideo appellantur, quia domestici heredes sunt et uiuo quoque parente quodammodo domini existimantur; unde etiam si quis intestatus mortuus sit, prima causa est in successione liberorum. necessarii uero ideo dicuntur, quia omni modo, 〈siue〉 uelint siue 〈nolint, tam〉 ab intestato quam ex testamento heredes fiunt. Inst. l. c.
§ 158. Sed his praetor permittit abstinere se ab hereditate, ut potius parentis bona ueneant.
Inst. l. c.
§ 159. Idem iuris est et 〈in〉 uxoris persona quae in manu est, quia filiae loco est, et in nuru quae in manu filii est, quia neptis loco est.
§ 160. Quin etiam similiter abstinendi potestatem facit praetor etiam ei qui in causa mancipii est, 〈si〉 cum libertate heres institutus sit, quamuis necessarius, non etiam suus heres sit, tamquam seruus.
§ 161. Ceteri qui testatoris iuri subiecti non sunt extranei heredes appellantur. itaque liberi quoque nostri qui in potestate nostra non sunt heredes a nobis instituti [sicut] extranei uidentur. qua de causa et qui a matre heredes instituuntur eodem numero sunt, quia feminae liberos in potestate non habent serui quoque qui cum libertate heredes instituti sunt et postea a domino manumissi, eodem numero habentur.
Inst. 2, 19. 3.
§ 162. Extraneis autem heredibus deliberandi potestas data est de adeunda hereditate uel non adeunda.
Inst. 2, 19, 5.
§ 163. Sed siue is cui abstinendi potestas est inmiscuerit se bonis hereditariis, siue is cui de adeunda 〈hereditate〉 deliberare licet, adierit, postea relinquendae hereditatis facultatem non habet, nisi si minor sit annorum xxv. nam huius aetatis hominibus, sicut in ceteris omnibus causis deceptis, ita etiam si temere damnosam hereditatem susceperint, praetor succurrit. scio quidem diuum Hadrianum etiam maiori xxv annorum ueniam dedisse, cum post aditam hereditatem grande aes alienum quod aditae hereditatis tempore latebat apparuisset.
Inst. l. c., and 6.
§ 164. Extraneis heredibus solet cretio dari, id est finis deliberandi, ut intra certum tempus uel adeant hereditatem, uel si non adeant, temporis fine summoueantur. ideo autem cretio appellata est, quia cernere est quasi decernere et constituere.
§ 165. Cum ergo ita scriptum sit heres titivs esto, adicere debemus cernitoqve in centvm diebvs proximis qvibvs scies poterisqve. qvodni ita creveris, exheres esto.
§ 166. Et qui ita heres institutus est, si uelit heres esse, debebit intra diem cretionis cernere, id est haec uerba dicere qvod me p. mevivs testamento svo heredem institvit, eam hereditatem adeo cernoqve. quodsi ita non creuerit, finito tempore cretionis excluditur; nec quicquam proficit, si pro herede gerat, id est si rebus hereditariis tamquam heres utatur.
Inst. 2, 19, 7.
§ 167. At is qui sine cretione heres institutus sit, aut qui ab intestato legitimo iure ad hereditatem uocatur, potest aut cernendo aut pro herede gerendo uel etiam nuda uoluntate suscipiendae hereditatis heres fieri; eique liberum est quocumque tempore uoluerit, adire hereditatem; 〈sed〉 solet praetor postulantibus hereditariis creditoribus tempus constituere, intra quod si uelit adeat hereditatem, si minus, ut liceat creditoribus bona defuncti uendere.
§ 168. Sicut autem 〈qui〉 cum cretione heres institutus est, nisi creuerit hereditatem, non fit heres, ita non aliter excluditur, quam si non creuerit intra id tempus quo cretio finita est; itaque licet ante diem cretionis constituerit hereditatem non adire, tamen paenitentia actus superante die cretionis cernendo heres esse potest.
§ 169. At is qui sine cretione heres institutus est, quiue ab intestato per legem uocatur, sicut uoluntate nuda heres fit, ita et contraria destinatione statim ab hereditate repellitur.
§ 170. Omnis autem cretio certo tempore constringitur. in quam rem tolerabile tempus uisum est centum dierum. potest tamen nihilo minus iure ciuili aut longius aut breuius tempus dari; longius tamen interdum praetor coartat.
§ 171. Et quamuis omnis cretio certis diebus constringatur, tamen alia cretio uulgaris uocatur, alia certorum dierum: uulgaris illa, quam supra exposuimus, id est in qua adiciuntur haec uerba qvibvs sciet poteritqve; certorum dierum, in qua detractis his uerbis cetera scribuntur.
§ 172. Quarum cretionum magna differentia est. nam uulgari cretione data nulli dies conputantur, nisi quibus scierit quisque se heredem esse institutum et possit cernere. certorum uero dierum cretione data etiam nescienti se heredem institutum esse numerantur dies continui; item ei quoque qui aliqua ex causa cernere prohibetur, et eo amplius ei qui sub condicione heres institutus est, tempus numeratur; unde melius et aptius est uulgari cretione uti.
§ 173. Continua haec cretio uocatur, quia continui dies numerantur. sed quia [tamen] dura est haec cretio, altera in usu habetur; unde etiam uulgaris dicta est.
DE HEREDVM QVALITATE ET DIFFERENTIA.
§ 152. Heirs are either necessary successors or necessary self-successors or external successors.
§ 153. A necessary successor is a slave instituted heir with freedom annexed, so called because, willing or unwilling, without any alternative, on the death of the testator he immediately has his freedom and the succession.
§ 154. For when a man’s affairs are embarrassed, it is common for his slave, either in the first place (institutio) or as a substitute in the second or any inferior place (substitutio), to be enfranchised and appointed heir, so that, if the creditors are not paid in full, the property may be sold rather as belonging to this heir than to the testator, the ignominy of insolvency thus attaching to the heir instead of to the testator; though, as Fufidius relates, Sabinus held that he ought to be exempted from ignominy, as it is not his own fault, but legal compulsion, that makes him insolvent; this, however, is not in our view the law.
§ 155. To compensate this disadvantage he has the advantage that his acquisitions after the death of his patron, and whether before or after the sale, are kept apart for his own benefit, and although a portion only of the debts is satisfied by the sale, he is not liable to a second sale of his after-acquired property for the debts of the testator, unless he gain anything in his capacity as heir, as if he inherit the property of a Latinus Junianus [another freedman of the testator]; whereas other persons, who only pay a dividend, on subsequently acquiring any property, are liable to subsequent sales again and again.
§ 156. Sui et necessarii heredes are such as a son or daughter, a grandson or granddaughter by the son, and further lineal descendants, provided that they were under the power of the ancestor when he died. To make a grandson or granddaughter self-successor it is, however, not sufficient that they were in the power of the grandfather at the time of his death, but it is further requisite that their father in the life of the grandfather shall have ceased to be self-successor, whether by death or by any mode of liberation from parental power, as the grandson and granddaughter then succeed to the place of the father.
§ 157. They are called sui heredes because they are family heirs, and even in the lifetime of the parent are deemed to a certain extent co-proprietors; wherefore in intestacy the first right of succession belongs to the children. They are called necessary, because they have no alternative, but, willing or unwilling, both in testacy and intestacy, they become heirs.
§ 158. The praetor, however, permits them to abstain from the succession, and leave the estate of the ancestor to be sold as an insolvent one.
§ 159. The same rule governs a wife in the hand of a husband, for she is on the footing of a daughter, and a son’s wife in the hand of the son, for she is on the footing of a granddaughter.
§ 160. A similar power of abstention is granted by the praetor to a person held in mancipium when instituted heir with freedom annexed, although he is simply a necessary successor and not also a self-successor, mancipation being assimilated to servitude.
§ 161. Those who were not subject to the testator’s power are called strangers, or external heirs. Thus children not in our power, if instituted heirs, are deemed strangers; and for the same reason children instituted by their mother belong to this class, because women are not invested with power over their children. Slaves instituted heirs with freedom annexed, and subsequently manumitted, belong to the same class.
§ 162. External heirs have the right of deliberating whether they will or will not enter on an inheritance.
§ 163. But if either a person who has the power of abstention or a person who has the power of deliberation as to his acceptance of the inheritance, interferes with the property belonging to the inheritance, he has no longer the right of relinquishing the inheritance, unless he is a minor under twenty-five years of age; for minors, both when they take any other injudicious step, and when they incautiously accept a disadvantageous inheritance, obtain relief from the praetor. The late Emperor Hadrian even relieved a person who had attained his majority, when, after his acceptance of an inheritance, a great debt, unknown at the time of acceptance, had come to light.
§ 164. External heirs are commonly given by the will a prescribed term for decision (cretio), that is, a definite delay for deliberation, within which time they must formally accept, and in default of formal acceptance are barred. Cretio is so called because the word cernere is equivalent to decernere, that is, to come to a determination and resolution.
§ 165. Accordingly, after the words, ‘Titius, be thou my heir,’ we ought to add, ‘and formally declare thy acceptance within a hundred days in which thou knowest of thy institution and hast power to declare whether thou accept; or in default of so declaring be thou disinherited.’
§ 166. And the heir thus appointed, if he wish to inherit, must within the term prescribed solemnly declare his decision in the following words: ‘Whereas Publius Mevius in his will has made me his heir, that inheritance I hereby accept and adjudge to myself.’ In default of such formal declaration, the elapsing of the period allowed shuts him out from the inheritance, and it is of no avail that he behave as heir, that is, deal with the estate of the deceased as if he were heir.
§ 167. In the absence of a prescribed term for deliberation in the case of testamentary succession, and in the case of a statutory right of succession on intestacy, a man takes the inheritance either by formal declaration, or by behaving as heir, or by informal declaration, and is not barred from accepting by any lapse of time; but it is usual for the praetor, at the demand of the creditors of the deceased, to appoint a period, on the expiration of which without his acceptance the creditors are permitted to put up the estate of the deceased for sale.
§ 168. But just as a person who is instituted heir subject to a prescribed term for decision does not actually become heir unless he makes a formal declaration of his acceptance, so the only way he is excluded from the inheritance is by his not thus declaring within the last day of the appointed term; and though, pending the term, he may have made up his mind to disclaim, yet if he change his mind before the time is expired and formally declare his acceptance, he can become heir.
§ 169. If no term is prescribed in the institution, or in the case of a statutory right of succession on intestacy, just as an informal declaration makes him heir, so the contrary declaration immediately bars him from the succession.
§ 170. Every prescribed term of deliberation has a certain limit, and a reasonable limit is held to be a hundred days, yet by the civil law a longer or shorter period is allowed to be fixed, though a longer period is sometimes shortened by the praetor.
§ 171. Although, however, the time of deliberation is always limited to certain days, yet one mode of limitation is called ordinary, the other determinate; the ordinary being that above indicated, namely, with the addition of the words ‘in which he knows and is able’; determinate that in which these words are omitted.
§ 172. These modes are very different in effect, for when the ordinary period is allowed, the only days computed are those on which he knows of his institution and is in a position to decide, but when a determinate period is allowed, notwithstanding the heir’s want of knowledge of his institution, the days begin to be counted continuously; and so notwithstanding his inability from any cause to declare, or any condition annexed to his institution, nevertheless the days begin to be reckoned. Accordingly, it is better and more convenient to employ the ordinary mode of limitation.
§ 173. The determinate period is called continuous, because the days are reckoned continuously. On account of the harshness of this condition the other is commonly employed, and hence is called ordinary.
§ 152. The rules of institution and disinheritance were formal restrictions on the unlimited power of testamentary disposition, which was conferred by the terms of the Twelve Tables; § 102, comm. The general tendency and purpose of these restrictions are to protect children against the caprice of parents, and to be fully comprehended they should be viewed in connexion with the rules respecting testamentum inofficiosum, which were not simply formal but real restrictions of testamentary freedom. These limitations of testamentary power may be considered as consequences of the Roman conception of family duty. An English testator has unlimited power to dispose of his property, and natural feeling is supposed to be a sufficient guaranty that none of his children will be left without suitable provision. Of Roman testators Justinian says: Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel exheredant vel omittunt. The grounds on account of which parents may disinherit children, and children parents, are stated by Justinian in his 115th Nov., where the law on the subject of disinherison is consolidated and amended. They had to be mentioned in the will, and it was open to the disinherited person to show that they were unfounded. It is to be noticed that foreign systems of law, following the Roman example, generally restrict the father’s power of disinherison. Cf Sohm, § 113. The principal impediments to or restrictions on testamentary freedom in the history of Roman law may be distinguished as follows:—
(1) We have seen, § 123, that a suus heres must either be instituted or disinherited, a rule which the praetor extended to an emancipated child, § 135. This secured him against being simply forgotten.
(2) If a child was disinherited without a cause, or received less than one fourth, either as heir or legatee, of what his share would have been by intestate descent (portio legitima), he could by impeaching the will as immoral or unnatural (querela inofficiosi testamenti) have it set aside on the fictitious presumption of the testator’s insanity. The presumption, at least, was so far fictitious that it was not allowed to be rebutted by any other proof of his sanity except proof of the adequacy of the motives for which the child was disinherited. The querela inofficiosi was a form of petitio hereditatis, that is, a real action, and fell under the jurisdiction of the centumviral court, 4 § 31. Cf. Pliny, Ep. 5, 1; 6, 33. The amount of the share which must be left to a child to save a will from avoidance for inofficiositas bears some analogy to a requirement of the lex Falcidia, for it is identical with the amount which that law secures to the child or any one else when instituted heir as against the claims of legatees. The querela inofficiosi could not only be brought by a child but also by certain other near relatives, namely, parents, and by brothers and sisters, but by the last only if a turpis persona was instituted. Children and other near relations, even though emancipated, might be entitled to this remedy. See Inst. 2, 18; Dig. 5. 2; Cod. 3, 28.
(3) Although a child (or any one else) were instituted heir, yet the institution might be made illusory by the exhaustion of the whole inheritance in legacies, leaving nothing to the heir but the burden of administration. To meet this, the lex Falcidia provided that when more than three fourths of an inheritance is absorbed in legacies, all the legacies should abate proportionably so as to leave the heir a clear fourth of the portion in which he was instituted (quarta Falcidia), § 227.
(4) The senatus consultum Pegasianum provided in the same way against the inheritance being similarly exhausted by fideicommissa, § 254.
We may add that an impubes adopted by adrogation, if disinherited or without cause emancipated, was entitled to one fourth of the inheritance of his adoptive father (quarta Antonini), 1 § 102; Inst. 1, 11, 3.
§ 154. Primo aut secundo vel etiam ulteriore gradu, for an account of substitutio see § 174, &c.
§ 155. Velut si Latinus, cf. § 195 and 3 § 58; and for an explanation of the idiom see note to this passage in Muirhead’s Gaius.
§ 157. Communism or co-ownership appears to be an older institution than divided or individual ownership. Even after the rights of the paterfamilias had been enormously developed at the expense of the rest of the household, as may have been the case in prehistoric times, a vestige of the times when property vested rather in the family than in the chief was perhaps preserved in the rules respecting the suus heres. Suus heres appears equivalent to sibi heres, and implies that he who now enters on proprietary rights in the character of paterfamilias had already possessed proprietary rights over the same subject-matter in the character of filiusfamilias.
Less barbarous than self-successor (the term chosen to represent suus heres as expressing sibi heres) but too long for perpetual use, would have been the circumlocution, immediate lineal successor. Suus heres is a lineal descendant as opposed to the legitimus heres or nearest agnate, who is a collateral relation, on whom the inheritance devolves by the lex duodecim Tabularum in case there are no sui: and he is an immediate heir as opposed to an eventual heir. For instance, a grandson by an unemancipated son is in the grandfather’s power, and may eventually be his heir, but is not his suus heres during the life of the son.
§§ 158-162. After acquiring an inheritance the heir became personally liable to the testator’s creditors for the full amount of the testator’s debts. But to relieve sui et necessarii heredes from being thus compulsorily burdened, the beneficium abstinendi was given them, § 158. The praetor could not, indeed, unmake, any more than he could make, a heres, but by his control over procedure he could put a person who had a civil title in the same position as if he had none, while, on the other hand, he regarded persons, having no civil title to the inheritance, as if they were heredes.
Adquisitio hereditatis by an external or voluntary heres may probably have required at first in all cases a formal act (cretio); but acting the part of heres (pro herede gerere), however informally, came to be recognized as equivalent in legal effect to a formal declaration, unless an institution was expressly made ‘cum cretione.’ The object of instituting an heir ‘cum cretione’ was to oblige him to accept or abandon the inheritance within a prescribed term. For otherwise the law allowed him to postpone his decision indefinitely, § 167.
It was to get rid of the inconvenience caused by leaving the inheritance open for a long period, that the praetor at the request of creditors of the estate fixed a period, generally a hundred days (tempus deliberandi), after which he authorized the sale of the property, § 167. When it became customary for the praetor to prescribe this time for deliberation, the formularies of cretio had no intelligible policy and were regarded as irksome. After being dispensed with in certain cases by other emperors, they were totally abrogated by Arcadius and Theodosius, a. d. 407. Cod. 6, 30, 17 Cretionum scrupulosam sollennitatem hac lege penitus amputari decernimus. ‘Solemn declaration with its embarrassing formalities is hereby decreed to be absolutely abolished.’ (For allusions to cretio by Cicero see Roby, Roman Law, 1, p. 396 and App. Bk. III.) For the repudiation of an inheritance by a voluntary heir no solemn form was at any time in use, and perhaps such repudiation was not legally recognized in early law, though it was possible for the heres to assign his right by in jure cessio. Thus an inheritance could not be lost any more than it could be acquired by a mere expression of intention, and it has been suggested that the abeyance of inheritances on this account was a cause which gave rise to bonorum possessio. In the time of Gaius, however, a heres could on delatio reject an inheritance by any informal act expressive of his intention, and the acceptance or rejection of an inheritance once made was irrevocable. § 169.
To afford an escape from the danger of accepting inheritances more onerous than lucrative Justinian introduced the beneficium Inventarii, or privilege of making an inventory, reducing the liability of an heir who made the required inventory to the extent of the assets that came to his hands. The inventory must be commenced within thirty days from notice of the inheritance and completed in sixty other days. It must be executed in the presence of a notary (tabellarius) and the persons interested or three witnesses, Inst. 2, 19, 6; Cod. 6, 30, 22.
By English law the executor in every case is bound to make an inventory, and in no case is he answerable to the testator’s creditors beyond the assets that come to his hands, unless for a sufficient consideration he make his own estate chargeable by a written engagement, as provided by the Statute of Frauds.
§§ 164-173. When a right is extinguished by inactivity prolonged for a certain period, as in the case of a heres after delatio who has omitted to make cretio within the time prescribed, the period has two modes of measurement: either every day is counted, and then the period is called tempus continuum; or only available days, days on which activity is possible, are counted, and then the period is called tempus utile. When a general rule prescribes a term, not greater than a year, within which certain steps must be taken before a court or judicial authority, on pain of forfeiting certain rights, such a term must be measured as tempus utile. Such are the rules requiring certain suits to be instituted within a year from their nativity, that is, limiting a year for their period of prescription; and the rule requiring the demand of the possession of a heritage (agnitio bonorum possessionis), whether testate or intestate, to be made, if the claimant is an ascendant or descendant, within a year; if he is a stranger, within a hundred days. The demand was made in writing, addressed to a competent magistrate, and was followed by an immediate grant de plano in the form of a simple subscriptio, Do bonorum possessionem. Kuntze, 856. When the step required is rendered impossible, not by a permanent obstacle, such as infancy, lunacy, prodigality, or juristic personality, but by some transitory circumstance, the days on which the action is hindered are excluded from the computation of the term.
Such hindrance (1) may relate to the person entitled, and then will be his captivity, or his absence on public service, or his detention by weather or illness, coupled with inability to appoint a procurator:
(2) Or, in the case of the limitation of actions, it may relate to the person of the defendant: if, for instance, he is unknown, or concealed, or absent and undefended:
(3) Or it may consist in the absence of the praetor from the court. Such absence might be accidental, or it might arise from the regular intermission of the dies juridici, or days on which the praetor performed his judicial functions, § 279, comm. As in the time of Marcus Aurelius such days only amounted to 230 in a year (Suetonius, Octavianus, 32), this cause alone would make annus utilis equivalent to about 1½ ordinary years. The intermission of dies juridici was doubtless the principal cause of a claimant’s inability to perform an act in court on certain days; but in Roman law, as in modern times it was administered in Germany, when much of the procedure in an action had come to consist in delivery of writings at the office of a court, irrespectively of its session days and vacations, this cause lost its importance.
Knowledge (scientia) of the fact that he is entitled is not necessarily requisite on the part of the person entitled: in other words, his ignorance is not always sufficient to exclude a day from the number of dies utiles. The prescription of an action, when it is accomplished in annus utilis, begins to run from its nativity (actio nata), irrespectively of the plaintiff’s knowledge of his right to sue. Ignorance of a right of action is generally the effect of Negligence, and therefore undeserving of relief, and might be protracted for an indefinite period. On the contrary, ignorance is sometimes a condition that delays the commencement of tempus continuum: for instance, the 50 dies continui allowed to a person for stating the grounds on which he was entitled to be excused from accepting a guardianship only began to run when he had notice of his nomination, Inst. 1, 25, 16: which shows that scientia and ignorantia have no necessary relation to the distinction of dies utiles and dies continui.
In the demand (agnitio) of bonorum possessio, however, by the claimant of a testate or intestate succession, the edict expressly made the scientia as well as the potestas of the claimant a condition of dies utilis, Dig. 38, 15, 2. Indeed the aditio of an inheritance was not possible unless made with a knowledge of the fact of the delatio and of its nature, whether testacy or intestacy. Moreover the ignorance of his rights could not be ascribed to the negligence of the person entitled, nor was it likely to be indefinitely protracted, as it would be the interest of the person next entitled to give him notice of the delation. Knowledge will generally only affect the beginning of a term, and the person who is once made aware of the delation of an inheritance will usually continue aware: but it is possible that a period of error should supervene; for instance, that, after an agnate has notice that he is entitled by intestacy and after his term for acceptance has commenced to run, a forged will should be produced and obtain credit: in which case the dies utiles would not continue to run until the forgery of the will was ascertained. Savigny, § 189.
The testamentary clause allowing a term for cretio vulgaris in contrast to cretio continua, like the edict relating to bonorum possessio, made scientia as well as potestas a condition of tempus utile.
As we have seen no time was prescribed by law for the aditio of the civil inheritance, § 167: for the acquisition (agnitio) of the praetorian succession we have seen that for ascendants and descendants a year, for others a hundred days was prescribed, Inst. 3, 9, 9. Agnitio and Repudiatio could be made by a procurator or agent, Dig. 37, 1, 3, 7: not so Aditio, Dig. 29, 2, 90, and still less Cretio.
§ 174. [de svbstitvtionibvs.] Interdum duos pluresue gradus heredum facimus, hoc modo l. titivs heres esto cernitoqve in diebvs 〈centvm〉 proximis qvibvs scies poterisqve. qvodni ita creveris, exheres esto. tvm mevivs heres esto cernitoqve in diebvs centvm et reliqua. et deinceps in quantum uelimus substituere possumus.
Inst 2, 15 pr.
§ 175. Et licet nobis uel unum in unius locum substituere pluresue, et contra in plurium locum uel unum uel plures substituere
Inst. 2, 15, 1.
§ 176. Primo itaque gradu scriptus heres hereditatem cernendo fit heres et substitutus excluditur; non cernendo summouetur, etiamsi pro herede gerat, et in locum eius substitutus succedit. et deinceps si plures gradus sint, in singulis simili ratione idem contingit.
§ 177. Sed si cretio sine exheredatione sit data, id est in haec uerba si non creveris tvm p. mevivs heres esto, illud diuersum inuenitur, quod si prior omissa cretione pro herede gerat, substitutum in partem admittit et fiunt ambo aequis partibus heredes. quodsi neque cernat neque pro herede gerat, tum sane in uniuersum summouetur, et substitutus in totam hereditatem succedit.
§ 178. Sed Sabino quidem placuit, quamdiu cernere et eo modo heres fieri possit prior, etiamsi pro herede gesserit, non tamen admitti substitutum; cum uero cretio finita sit, tum pro herede gerente admitti substitutum. aliis uero placuit etiam superante cretione posse eum pro herede gerendo in partem substitutum admittere et amplius ad cretionem reuerti non posse.
§ 179. Liberis nostris inpuberibus quos in potestate habemus non solum ita ut supra diximus substituere possumus, id est ut si heredes non extiterint, alius nobis heres sit; sed eo amplius ut, etiamsi heredes nobis extiterint et adhuc inpuberes mortui fuerint, sit iis aliquis heres; uelut hoc modo titivs filivs mevs mihi heres esto. si filivs mevs mihi 〈heres non erit sive heres〉 erit et privs moriatvr qvam in svam tvtelam venerit, tvnc seivs heres esto.
Inst. 2, 16 pr.
§ 180. Quo casu siquidem non extiterit heres filius, substitutus patri fit heres; si uero heres extiterit filius et ante pubertatem decesserit, ipsi filio fit heres substitutus. quam ob rem duo quodammodo sunt testamenta, aliud patris, aliud filii, tamquam si ipse filius sibi heredem instituisset; aut certe unum est testamentum duarum hereditatum.
Inst. l. c.
§ 181. Ceterum ne post obitum parentis periculo insidiarum subiectus uideatur pupillus, in usu est uulgarem quidem substitutionem palam facere, id est eo loco quo pupillum heredem instituimus; 〈nam〉 uulgaris substitutio ita uocat ad hereditatem substitutum, si omnino pupillus heres non extiterit; quod accidit cum uiuo parente moritur, quo casu nullum substituti maleficium suspicari possumus, cum scilicet uiuo testatore omnia quae in testamento scripta sint ignorentur. illam autem substitutionem per quam, etiamsi heres extiterit pupillus et intra pubertatem decesserit, substitutum uocamus, separatim in inferioribus tabulis scribimus, easque tabulas proprio lino propriaque cera consignamus, et in prioribus tabulis cauemus, ne inferiores tabulae uiuo filio et adhuc inpubere aperiantur. sed longe tutius est utrumque genus substitutionis [separatim] in inferioribus tabulis consignari, quod si ita [consignatae uel] separatae fuerint substitutiones, ut diximus, ex priore potest intellegi in altera [alter] quoque idem esse substitutus.
Inst. 2, 16, 3.
§ 182. Non solum autem heredibus institutis inpuberibus liberis ita substituere possumus, ut si ante pubertatem mortui fuerint, sit is heres quem nos uoluerimus, sed etiam exheredatis. itaque eo casu si quid pupillo ex hereditatibus legatisue aut donationibus propinquorum adquisitum fuerit, id omne ad substitutum pertinet.
Inst. 2, 16, 4.
§ 183. Quaecumque diximus de substitutione inpuberum liberorum uel heredum institutorum uelexheredatorum, eadem etiam de postumis intellegemus.
Inst l. c.
§ 184. Extraneo uero heredi instituto ita substituere non possumus, ut si heres extiterit et intra aliquod tempus decesserit, alius ei heres sit; sed hoc solum nobis permissum est, ut eum per fideicommissum obligemus, ut hereditatem nostram totam uel 〈pro〉 parte restituat; quod ius quale sit, suo loco trademus.
Inst. 2, 16, 9.
§ 174. Sometimes two or more degrees of heirs are instituted, as follows: ‘Lucius Titius, be thou my heir, and declare solemnly within a hundred days after you know and are able: or, in default of so declaring, be disinherited. Thereupon, be thou, Mevius, my heir, and solemnly declare within a hundred days,’ &c.; and in this way we can make as many substitutions as we like.
§ 175. We may substitute in place of one either one or several, and, conversely, in the place of several we may substitute either several or one.
§ 176. Accordingly, if the person instituted in the first degree accepts the inheritance, he is heir, and the substitutes are excluded: if he fail to declare with due formality, he is barred in spite of acts of heirship, and his place is taken by the substitute; and if there are several degrees, in every one a similar result occurs.
§ 177. If the formula prescribing a term of deliberation contains no clause of disherison, but merely consists of these words: ‘If thou fail to declare, be Publius Mevius my heir’ [cretio imperfecta], the result is herein different, that, if the person first instituted, though he omit the solemn declaration, act as heir, the substitute is only admitted to a portion, and both take a moiety: if he neither formally declare nor act as heir, he is entirely excluded, and the substitute succeeds to the whole inheritance.
§ 178. It was the opinion of Sabinus that, as long as a term for formally declaring and thereby becoming heir subsists, a person in a higher grade does not let in the substitute, even if he informally act as heir, and that only after the expiration of the term is the substitute admitted instead of the person instituted, who has been acting as heir. But the other school held that, even pending the allotted term, informal acts of heirship let in the substitute and bar the prior heir from reverting to his right of formal declaration.
§ 179. To children below the age of puberty in the power of the testator, not only can such a substitute as we have described be appointed, that is, one who shall take the inheritance on their failure to inherit, but also one who, if after inheriting they die before attaining the age of puberty, shall be their heir; which may be done in the following terms: ‘Be my son Titius my heir, and if my son does not become my heir, or after becoming my heir die before becoming his own guardian, [that is before attaining the age of puberty], then be Seius the heir.’
§ 180. In which case, if the son fail to inherit, the substitute is the heir of the testator, but if the son die after inheriting and without attaining the age of puberty, the substitute is heir to the son. Thus there are two wills, so to speak, the father’s and the son’s. just as if the son himself had instituted an heir; or at any rate there is one will dealing with two inheritances.
§ 181. However, to save the ward from the danger of foul play after the death of the parent, it is common for the ordinary substitution to be made openly, that is, in the clause wherein the ward is instituted, for as the ordinary substitution only calls a man to the succession in case of the ward altogether failing to inherit, and this can only occur by his death in the lifetime of his parent, the substitute in this case is open to no suspicion of crime, because while the testator is alive the contents of the will are a secret. But the substitution, wherein a man is named heir after the succession and death of the ward before reaching the age of puberty, is written separately on later tablets, tied with their own cords and sealed with their own wax, and it is prohibited in the prior tablets that the will should be opened in the lifetime of the son before he attains the age of puberty. Indeed it is far safer that both kinds of substitution should be sealed up separately in two subsequent tablets, for if the ordinary substitution is contained in the first tablets it is easy to conjecture that the same substitute is appointed in the second.
§ 182. Not only when we appoint children under the age of puberty our heirs can we make such a substitution that if they die before puberty the substitute is their heir, but we can do it even when we disinherit them, so that in case the ward should acquire anything either by heirship, legacies, or by gifts of his relatives, all will belong to the substitute.
§ 183. What has been said of substitution to children below the age of puberty, whether appointed heirs or disinherited, is true of substitution to afterborn children.
§ 184. To a stranger instituted heir we cannot appoint a substitute who, if the stranger inherit and die within a certain time, is to be his heir; but we have only power to bind him by a trust to convey the inheritance to another, in part or in whole, a right which shall be explamed in the proper place. [2 § 277.]
§ 177. It will be observed that this rule deviates from the principle laid down in § 166. A constitution of Marcus Aurelius changing the law further in the same direction, and mentioned by Ulpian (Sed postea divus Marcus constituit, ut et pro herede gerendo ex asse fiat heres, 22, 34. ‘Subsequently Marcus Aurelius enacted that acts of heirship would make him [the person instituted, in the case of cretio imperfecta] exclusive heir’), was clearly not enacted when this paragraph was written by Gaius, and furnishes an indication of the date at which this book of his Institutions was published. Marcus Aurelius was sole emperor a. d. 169-176.
§ 179. Cicero frequently mentions a great case in which the question arose whether a vulgaris substitutio may be implied from a pupillaris substitutio. The centumviral court decided that the intention rather than the words of the testator should prevail, and that the heir appointed to succeed the son in case the son died before puberty should be deemed appointed to succeed the testator in case no son was born: Malim mihi L. Crassi unam pro M’. Curio dictionem quam castellanos triumphos duos, Brutus 73, ‘I would rather have made the single speech of Lucius Crassus for Manius Curius than have had two triumphs for the capture of fortresses.’ The other passages are worth referring to De Orat. 1, 39, 57; 2, 6, 32; Brutus, 39, 52; Pro Caecina, 18, 53; Topica, 10, 44. Marcus Aurelius enacted that in every case pupillaris substitutio should be implied in vulgaris substituto and vice versa, unless the contrary intention was expressed, Dig. 28, 6, 4.
§ 184. That is to say, we cannot by the ordinary rules of law limit an inheritance so as to make it subject to a resolutive condition or determinable at a future time. All we can do is to direct the heir by way of trust (fidei commissum) to reconvey the inheritance to some one at a future time or on the happening of some future event. Hereditas itself, strictly speaking, is indelible (semel heres semper heres). Regula est juris civilis qua constitutum est hereditatem adimi non posse, Dig. 28, 2, 13, 1. Cf. §§ 246-257, comm.
DE HEREDIBVS INSTITVENDIS.
§ 185. Sicut autem liberi homines, ita et serui, tam nostri quam alieni, heredes scribi possunt.
§ 186. Sed noster seruus simul et liber et heres esse iuberi debet, id est hoc modo stichvs servvs mevs liber heresqve esto, uel heres liberqve esto.
§ 187. Nam si sine libertate heres institutus sit, etiamsi postea manumissus fuerit a domino, heres esse non potest, quia institutio in persona eius non constitit; ideoque licet alienatus sit, non potest iussu domini noui cernere hereditatem.
§ 188. Cum libertate uero heres institutus siquidem in eadem causa durauerit, fit ex testamento liber et inde necessarius heres. si uero ab ipso testatore manumissus fuerit, suo arbitrio hereditatem adire potest. quodsi alienatus sit, iussu noui domini adire hereditatem debet, qua ratione per eum dominus fit heres; nam ipse neque heres neque liber esse potest.
Inst. 2, 14, 1.
§ 189. Alienus quoque seruus heres institutus si in eadem causa durauerit, iussu domini hereditatem adire debet; si uero alienatus ab eo fuerit aut uiuo testatore aut post mortem eius, antequam cernat, debet iussu noui domini cernere; si uero manumissus est, suo arbitrio adire hereditatem potest.
Inst. l. c.
§ 190. Si autem seruus alienus heres institutus est uulgari cretione data, ita intellegitur dies cretionis cedere, si ipse seruus scierit se heredem institutum esse, nec ullum inpedimentum sit, quominus certiorem dominum faceret, ut illius iussu cernere possit.
DE HEREDIBVS INSTITVENDIS.
§ 185. Not only freemen but slaves, whether belonging to the testator or to another person, may be instituted heirs.
§ 186. A slave belonging to the testator must be simultaneously instituted and enfranchised in the following manner: ‘Stichus, my slave, be free and be my heir;’ or, ‘Be my heir and be free.’
§ 187. If he is not enfranchised at the same time that he is instituted, no subsequent manumission by his owner enables him to take the succession, because the institution is originally void, and even if aliened he cannot formally declare his acceptance by the order of the new master.
§ 188. When a slave is simultaneously instituted and enfranchised, if he continue in the same condition, the will converts him into a freeman and a necessary heir: if the testator himself manumits him in his lifetime, he is able to use his own discretion about acceptance: if he is aliened he must have the order of his new master to accept, and then his master through him becomes heir, the alienated slave himself becoming neither heir nor free.
§ 189. When another person’s slave is instituted heir, if he continue in the same position, he must have the order of his master to accept the succession; if aliened by him in the lifetime of the testator, or after his death before formal acceptance, he must have the order of the new master to be able to accept: if manumitted before acceptance, he is able to follow his own judgement as to accepting.
§ 190. When a slave of another person is instituted heir with the ordinary term of cretio, the term only begins to run from the time when the slave has notice of his appointment, and is not prevented in any way from informing the master so that he may at his order make formal acceptance.
§ 187. This rule was abolished by Justinian, who enacted that the enfranchisement of the testator’s slave, though unexpressed, should always be implied in his institution as heir. Cod. 6, 27, 5; Inst. 1, 6, 2.
§ 188. Justinian explains why the slave lost his liberty: Destitisse enim a libertatis datione videtur dominus qui eum alienavit, Inst. 2, 14, 1. ‘A revocation of the bequest of liberty is inferred from the fact of his alienation.’ If we ask why the implied intention that suffices to revoke the enfranchisement does not suffice to revoke the institution, the answer is, that a bequest can be revoked by any act clearly implying an intention to revoke, whereas an institution requires a more solemn revocation, by execution of a later will, or some other means, §§ 147-151, comm.
§ 189. What was the motive of instituting as heir the slave of another person? Such a disposition could not be dictated by kindness to the slave, for he would probably gain nothing by his institution; but was a device adopted for two purposes, (1) for facilitating the conversion of a succession into money, and (2) for securing an institution against failure.
(1) By such a disposition the testator gave the proprietor of the slave, whose benefit was intended, the option of either becoming actual heir, or of doing, what he could not otherwise readily do, i. e. of receiving the net value, or a large portion of the net value, of the succession, without incurring the expense of the annexed sacred rites (sacra) and the burden of administration, by practically selling the succession for the highest price he could get to any one who was willing to incur these expenses and troubles as a matter of speculation. To effect this, he had only to sell the slave at a price enhanced by his character of institutus. The slave thereupon, making aditio of the inheritance in obedience to an order of the purchaser, vested the inheritance in the purchaser. If the former proprietor was reluctant to part with his slave, he had only to bargain for his reconveyance by a fiducia or condition annexed to the sale or mancipatio. Reddendus (or in the time of Gaius it might have been a case of mancipatio cum fiducia) est servus ea conditione ut, cum jussu ejus adierit, rursum retradatur. By this branch of speculation the instituted slave might pass through many hands before the succession vested, Dig. 37, 11, 2, 9.
(2) A second object gained by the institution of another person’s slave was the transmission of an inheritance to the heirs of such person. If the heir instituted died in the lifetime of the testator, the institution failed, and the failure could not be prevented by the substitution (secondary institution) of the heir of the person instituted, for such heir would be a persona incerta, § 242. The difficulty was met by instituting a slave, who on the death of his master, the virtual heir, would become the slave of the master’s heir, and acquire for him the succession of the testator. To guard against the contingency of the death of the slave in the lifetime of the testator, several slaves might be instituted by way of substitution. Ihering, § 56. An inheritance delated to a slave is said to be ambulatory: Ambulat cum dominio bonorum possessio, l. c. (In a similar way we might say: ambulat cum capite noxa, 4 § 77.)
§ 190. Si ipse servus scierit se heredem institutum. The knowledge of the slave was material for the purpose of acquisition, since the slave is regarded as if he were heir, though acquiring not for himself but for his master. Cf. Inst. 3, 17, 1 and 2.
A slave instituted heir might be the property of several masters, who when he entered upon the inheritance would become co-heredes of it according to their respective shares in him. Inst. 2, 14, 3. In the same title of the Institutes, Justinian mentions that an heir might either be appointed to take the whole of an inheritance or to share it with other co-heirs in any proportions. We may briefly state the technical terms and rules of interpretation by which different shares were allotted. An inheritance was commonly regarded as a pound (as) consisting of twelve ounces (unciae). The different fractions were thus denominated: uncia, a twelfth of an as, or an ounce; sextans, a sixth of an as, or two ounces; quadrans, a fourth of an as, or three ounces; triens, a third of an as, or four ounces; quincunx, five ounces; semis, half an as, or six ounces; septunx, seven ounces; bes (bis triens), two thirds of an as, or eight ounces; dodrans (deme quadrantem), an as minus a fourth, or nine ounces; dextans (deme sextantem), an as minus a sixth, or ten ounces; deunx (deme unciam), an as minus an ounce, or eleven ounces; as, twelve ounces.
An heir instituted in twelve ounces (ex asse) took the whole: but it was a rule that no one could be partly testate and partly intestate, and therefore if an heir were instituted in a part (ex parte) and no other co-heir instituted, that part represented a pound, and the heir took the whole. So if the shares allotted to several co-heirs amounted to more than twelve ounces, then, if no other heir was appointed with an unexpressed share, the as was deemed to consist of more than twelve ounces, and each co-heir took a ratable part of the inheritance. If one heir were instituted in a part, say ex besse, and a co-heir were instituted for whom no part was expressed, then the co-heir would take the residue of the as, that is, would be deemed to be instituted ex triente. But if the parts expressed for certain heirs exhausted or exceeded the as and another heir or heirs were named without express shares, then the whole inheritance was supposed to consist of two asses (dupondius) and the expressed shares were reduced to so many ounces out of twenty-four, the heir or heirs with unexpressed parts taking the residue. Similarly, if necessary, the inheritance was supposed to consist of thirty-six ounces.
If the institution of one co-heir lapsed, the shares of the remaining co-heirs were ratably augmented (accretio), just as, if originally less than twelve ounces had been distributed, the expressed shares of each would be ratably augmented so as to exhaust the inheritance.
This rule, however, was modified by the leges caducariae, passed chiefly to discourage celibacy, namely the lex Julia de maritandis ordinibus, a. d. 4, and the lex Papia Poppaea, on marriage and succession, a. d. 9, in which the provisions of the lex Julia were incorporated, for which reason both laws are sometimes referred to as lex Julia et Papia.
Caducum is a devise or bequest, valid at Civil law, but vacated by some particular law or statute, such as a legacy to a celibate or Latinus Junianus, in case the former fails within a hundred days to comply with the law [the Lex Papia], or the latter to acquire full citizenship; or in case of the institution of a co-heir, or bequest to a legatee who dies or becomes an alien before the will is opened, Ulpian, 17, 1. [By the Civil law, unconditional devises and bequests vested (dies cedit) at the death of the testator (though still defeasible by the failure of the will); by the lex Papia Poppaea not before the opening of the will, thus making the chance of a lapse greater, but Justinian re-established the rule of Civil law.] Cf. Roby, Roman Law, Bk. III, ch. x, B.
The leges caducariae, which fixed the conditions of caducity, were aimed against the coelebs and the orbus. Cf. §§ 111, 144, 286. Coelebs is defined to be an unmarried man between the age of twenty and sixty, or an unmarried woman between the age of twenty and fifty. Orbus is a man between fifty and sixty without children, natural or adoptive.
An unmarried person could take nothing as heres extraneus or legatee; an orbus could only take half of the devise or bequest intended for him. The inheritance or legacy thus lapsed was allotted by the leges caducariae in the first place, in the case of a legacy, to conjoint legatees of the same specific thing if the legatees had children; in the second place to children or parents of the deceased who were instituted heirs in his will; in the third place to heirs and other legatees having children; and in last remainder to the treasury (aerarium), § 206. Caracalla, a. d. 212-217, made them lapse immediately to the fiscus; Hodie ex constitutione imperatoris Antonini omnia caduca fisco vindicantur, sed servato jure antiquo liberis et parentibus, Ulpian, 17, 2. But from the rules of caducity ascendants and descendants of the testator to the third degree were excepted both by the lex Papia and by the constitution of Caracalla. Constantine, a. d. 320, abolished the pains and penalties of celibacy and childlessness, Cod. 8, 57, and Justinian formally and finally abrogated the leges caducariae.
By substitutions, or alternative institutions, testators were able to modify the course of accrual by Civil law (jus accrescendi), and, what perhaps was still more interesting, to escape from the operation of the laws of caducity, by which sometimes a whole inheritance might fall into the clutches of the treasury.
§ 191. Post haec uideamus de legatis. quae pars iuris extra propositam quidem materiam uidetur; nam loquimur de his iuris figuris quibus per uniuersitatem res nobis adquiruntur; sed cum omni modo de testamentis deque heredibus qui testamento instituuntur locuti sumus, non sine causa sequenti loco poterit haec iuris materia tractari.
Inst. 2, 20, pr.