§ 114. possessio data est restituere debeat. Pro herede autem possidere videtur qui putat se heredem esse. Pro possessore is possidet qui nullo jure rem hereditariam, vel etiam totam hereditatem, sciens ad se non pertinere possidet. L. 2 D. de poss. her. pet. (5, 5) (GAJUS): Per quam hereditatis petitionem tantundem consequitur bonorum possessor, quantum superioribus civilibus actionibus heres consequi potest. II. In some cases the law placed obstacles in the way of the vesting of an inheritance. 1. Inability to become heir. According to the law of the Empire children of persons guilty of high treason, apostates and heretics, and also widows who violated their year of mourning, were disqualified by special enactments from becoming heirs. As regards widows, however, their disqualification only extended to testamentary inheritances and to inheritances devolving upon them on intestacy ultra tertium gradum. For the rest, according to the law of Justinian, any one who enjoyed a general proprietary capacity was ipso facto qualified to become an heir, but it was essential that the person claiming to be heir should have been in existence--at any rate as a nasciturus (supra, pp. 170, 567)—at the time of the death of the deceased. In the case of a person disqualified from becoming an heir, there could not even be a delatio of the inheritance. The inheritance devolved in any such case in just the same manner as if the disqualified party did not exist. 2. 'Incapacity.' 'Incapacity,' in the special technical sense of the term, meant merely inability to acquire under a will. Incapacity did not prevent the delatio, but only the acquisitio of the inheritance. Incapacity, in this sense, was unknown in Justinian's law. The most notable case, prior to Justinian, was the incapacity annexed by the lex Julia et Papia Poppaea to celibacy and childlessness, caelibes being declared totally incapable of taking any inheritance or legacy that might be offered to them by virtue of a will, and orbi being only allowed to take one half of any such inheritance or legacy (supra, p. 498). 3. Unworthiness. Unworthiness did not prevent either delatio or acquisitio. But the law declared that the property which had vested in an indignus should be divested again (eripi), either in favour of the fiscus or in favour of a third party who had a claim to it (bona ereptoria). It was, for instance, a rule that if the heir killed the testator or intestate, he should forfeit his inheritance in favour of the fiscus. He was considered unworthy to keep the inheritance. I. Legatum. $115. Bequests. Legatum was the formal bequest of the civil law, a bequest charged verbis imperativis, in a set form of words, on a testamentary heir by means of a will. Its sole purpose was to confer on third parties certain separate benefits, at the expense of the deceased's estate. As opposed to the succession of an heir to his inheritancewhich was a universal succession-the succession of a legatee to his legacy was, in its essence, a singular succession. A legatum only conferred rights; debts could not be the subject of a bequest. According to the civil law a testator might convey a right to his legatee in one of two ways, either directly or indirectly. 1. The so-called 'legatum per vindicationem' operated as a direct conveyance of a right to the legatee. Its effect was to invest the legatee ipso jure with the ownership of, or with a right of servitude over, a thing that had belonged to the testator in quiritary ownership. For example: Titio hominem Stichum do lego, or: Titio usumfructum fundi Corneliani do lego. A legatee taking per vindicationem could proceed at once to assert his right by a rei vindicatio or by an action claiming the servitude (a 'juris vindicatio'), as the case might be, no prior mancipatio or traditio, or (if a servitude was bequeathed) no prior grant of the servitude being required on the part of the heir. 2. The so-called 'legatum per damnationem' was the form of legacy which was principally employed for the purpose of indirectly conveying a right to the legatee. The effect of such a § 114. § 115. § 115. legacy was to impose a solemn duty on the heir to procure the legatee the quiritary ownership in a thing, or some other proprietary benefit. For example: heres meus Stichum servum meum dare damnas esto. A legatee taking per damnationem did not acquire immediate ownership in the thing bequeathed; all he acquired was an obligatory right to a 'dare' or 'facere' (cp. supra, p. 386) on the part of the heir. A testator, however, could bequeath per damnationem not only his own, but also other persons' property. In the latter case the heir was bound either to procure the res aliena or to pay the legatee its value. In point of validity, the legatum per damnationem was the safest, and, in that sense, the best kind of legacy. There was another form of legacy-the 'legatum sinendi modo'which was akin to the legatum per damnationem. The words used by the testator were: heres meus damnas esto sinere L. Titium hominem Stichum sumere sibique habere. This form was available for the purpose of bequeathing not only things belonging to the testator, but also things belonging to the heir (not, however, things belonging to third persons). The effect of a legatum sinendi modo, like that of a legatum per damnationem, was merely to impose an obligation on the heir, but the object of the obligation was not 'dare,' but only 'sinere,' i. e. the heir was only bound to permit the legatee to take the thing bequeathed to him. Another form of legacy, the 'legatum per praeceptionem' (L. Titius hominem Stichum praecipito), was also related to the legatum per damnationem, but was only available for bequests of things comprised in the inheritance-whether they belonged to the testator in quiritary ownership or not-and only where the beneficiary was one of several co-heirs. Its effect was to impose a duty on the other co-heirs to allow the favoured co-heir, in the judicium familiae erciscundae (which was the proper proceeding for enforcing such a legacy), to retain the thing bequeathed to him in addition to his share of the inheritance 1. Not being couched in the imperative language of a legatum per damnationem, a legatum per praeceptionem merely signifies, legally speaking, a desire on the part of the testator (praecipito). There is accordingly no independent action by which such a legacy can be recovered, and the legatee must rely for the assertion of his claim on the officium judicis as exercised (ex bona fide) in the The SC. Neronianum enacted that any legacy which would § 115. otherwise have been void by reason of the failure of the testator to comply with the forms required in the particular legacy he had chosen (e. g. a legatum per vindicationem), should be construed as a legatum per damnationem and upheld as such. The effect of every legatum, after the senatusconsultum, was to impose an obligation on the heir to carry out the terms of the bequest. ULP. tit. 24 § 1: Legatum est quod legis modo, id est imperative, testamento relinquitur: nam ea quae precativo modo relinquuntur fideicommissa vocantur. GAJ. Inst. II § 193: Per vindicationem hoc modo legamus : Eod. 201: Per damnationem hoc modo legamus: HERES The judicium familiae erciscundae. ownership in the thing does not vest in the legatee (the co-heir) at once by virtue of the legacy, but only by virtue of the adjudicatio pronounced by the judge in the proceedings in which the inheritance is divided. Cp. Hölder, Beiträge z. Geschichte d. röm. Erbrechts, p. 80 ff.- § 115. § 202 Eoque genere legati etiam aliena res legari potest, ita ut heres redimere et praestare, aut aestimationem ejus dare debeat. § 203: Ea quoque res quae in rerum natura non est, si modo futura est, per damnationem legari potest, velut FRUCTUS QUI IN ILLO FUNDO NATI ERUNT, aut QUOD EX ILLA ANCILLA NATUM ERIT. § 204: Quod autem ita legatum est, post aditam hereditatem, etiamsi pure legatum est, non ut per vindicationem legatum continuo legatario adquiritur, sed nihilominus heredis est, et ideo legatarius in personam agere debet, id est intendere heredem sibi dare oportere : et tum heres, si res mancipii sit, mancipio dare aut in jure cedere possessionemque tradere debet; si nec mancipii sit, sufficit si tradiderit. Eod. § 209: Sinendi modo ita legamus: HERES MEUS DAMNAS ESTO SINERE LUCIUM TITIUM HOMINEM STICHUM SUMERE SIBIQUE HABERE. § 210: Quod genus legati plus quidem habet quam per vindicationem legatum; minus autem quam per damnationem. Nam eo modo non solum suam rem testator utiliter legare potest, sed etiam heredis sui : cum alioquin per vindicationem nisi suam rem legare non potest; per damnationem autem cujuslibet extranei rem legare potest. Eod. § 216: Per praeceptionem hoc modo legamus: L. TITIUS HOMINEM STICHUM PRAECIPITO. § 217: Sed nostri quidem praeceptores nulli alii eo modo legari posse putant nisi ei qui aliqua ex parte heres scriptus esset: praecipere enim esse praecipuum sumere; quod tantum in ejus persona procedit qui aliqua ex parte heres institutus est, quod is extra portionem hereditatis praecipuum legatum habiturus sit. § 219: Item nostri praeceptores, quod ita legatum est, nulla alia ratione putant posse consequi eum cui ita fuerit legatum, quam judicio familiae erciscundae, quod inter heredes de hereditate erciscunda, id est dividunda, accipi solet: officio enim judicis id contineri, ut ei quod per praeceptionem legatum est adjudicetur. ULP. tit. 24 § 11: Senatusconsulto Neroniano . . . cautum est ut, quod minus aptis verbis legatum est, perinde sit ac si optimo jure legatum esset: optimum autem jus legati per damnationem est. |