A so he is before Litis contestatio, if taxable with Mora. In this respect, then, Mora is more serious in its consequences than Mala fides: for Mora in every case is a title to liability for casus; whereas Mala fides only produces this liability in conjunction with Litis contestatio. Mora had also an important influence in fixing the date of litis aestimatio, i. e. the date for the valuation of the thing whose value the defendant was condemned to pay. See 3 § 180 com.; Savigny, §§ 264-277. § 283. Money paid by mistake was not recoverable when the payor was able to be sued for double damages, Inst. 3, 27, 7, because then the payment is not deemed to be a mistake, but a compromise, in order to avoid the chance of condemnation in double damages. The laws protecting certain rights by duplication of damages, 4 § 171, would have been evaded if a defendant was allowed to pay the simple damages and then attempt to recover them back by condictio indebiti soluti. § 285. So by English law aliens were not, till recently, allowed to purchase land or to take land by devise. Land purchased by an alien or devised to an alien was forfeited to the crown. An alien, however, could hold personal property and take bequests of personal property. In France, formerly, an alien was not allowed to make a will, but all his property at his death escheated to the crown by the droit d'aubaîne. [Aubain is from alibanus. Alibi in barbarous Latin produced alibanus, just as longiter produced lontanus and ante antianus. Diez.] § 289. Justinian abolished the distinction between legacies and trusts, enacting that legacies should no longer be governed by the rigours of the civil law, but subject to the same rules and construed with the same liberality as trusts, Inst. 2, 20, 3. Trusts being a matter of the praetor's cognitio extraordinaria cannot, properly speaking, be called a subject of Bonae fidei actio, for actio implies the cognizance of a judex: but the principles of cognitio extraordinaria were doubtless the same as those of bonae fidei actio. With this reservation, then, we may say that legata sinendi modo and per damnationem were before Justinian's time recoverable by stricti juris actio, and after his time by bonae fidei actio. By English law, a will of lands operates as a mode of conveyance requiring no extrinsic sanction to render it available as a document of title. A will of personalty requires for its authentication to be proved before a court by the oath of the executor and, unless the attestation clause is in a certain form, by the affidavit of one of the subscribing witnesses; or, if the validity of the will is disputed, by examination of the witnesses on oath in the presence of the parties interested. The will itself is deposited in the registry of the Court of Probate; a copy of it in parchment, under the seal of the Court of Probate, delivered to the executor along with a certificate of proof, is the only proper evidence of his right to intermeddle with the personal estate of the testator. The following were the corresponding formalities of Roman law :Tabulae testamenti aperiuntur hoc modo, ut testes vel maxima pars eorum adhibeatur qui signaverint testamentum; ita ut, agnitis signis, rupto lino, aperiatur et recitetur, atque ita describendi exempli fiat potestas, ac deinde signo publico obsignatum in archium redigatur, ut si quando exemplum ejus interciderit, sit unde peti possit. Testamenta in municipiis, coloniis, oppidis, praefectura, vico, castello, conciliabulo facta, in foro vel basilica praesentibus testibus vel honestis viris inter horam secundam et decimam diei recitari debebunt, exemploque sublato ab iisdem rursus magistratibus obsignari quorum praesentiâ constat aperta. Testamentum lex statim post mortem testatoris aperiri voluit, et ideo, quamvis sit rescriptis variatum, tamen a praesentibus intra triduum vel quinque dies aperiendae sunt tabulae; ab absentibus quoque intra eos dies cum supervenerint: nec enim oportet tam heredibus aut legatariis aut libertatibus quam necessario vectigali moram fieri, Paulus, Sent. Rec. 4, 6. 'A will is opened in the following manner: the witnesses, or the majority, who affixed their seals, are summoned and acknowledge their seals, the cord is broken, the tablets are opened, the will is read, a copy is taken, a public seal is affixed to the original, and it is deposited in the archives, so that if the copy is ever lost there may be a means of making another. 'In municipalities, colonies, towns, prefectures, wicks, castles, staples, a will must be read in the forum or basilica, in the presence of the attesting witnesses or of respectable persons, between eight o'clock in the morning and four o'clock in the afternoon; and, as soon as a copy has been made, must be sealed up again by the magistrate in whose presence it was opened. 'A will is intended by the law to be opened immediately after the death of the testator; accordingly, though rescripts have varied, it is now the rule that, if all the parties are present, three or five days is the interval within which the tablets must be opened; if they are absent, the same number of days after they are assembled; in order that heirs, legatees, manumitted slaves, and the military treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent. on the value of Roman citizens' testamentary successions), may come into their rights without unnecessary delay.' In cases of urgency, when the will was opened in the absence of the attesting witnesses in the presence of respectable persons, it was afterwards forwarded to the witnesses for the verification of their seals, Dig. 29, 3, 7. Every one who desired it had the power of inspecting a will and taking a copy, Dig. 29, 3, 8. BOOK III. DE RERUM UNIVERSITATIBUS ET DE OBLIGATIONIBUS. DE HEREDITATIBUS QUAE AB INTESTATO DEFERUNTUR. § 1. Intestatorum hereditates lege XII tabularum primum ad suos heredes pertinent. § 2. Sui autem heredes existimantur liberi qui in potestate morientis fuerint, veluti filius filiave, nepos neptisve ex filio, pronepos proneptisve ex nepote filio nato prognatus prognatave. nec interest utrum naturales sint liberi, an adoptivi. Ita demum tamen nepos neptisve et pronepos proneptisve suorum heredum numero sunt, si praecedens persona desierit in potestate parentis esse, sive morte id acciderit sive alia ratione, veluti emancipatione: nam si per id tempus quo quis moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus. § 1. Intestate successions by the law of the Twelve Tables devolve first to self-successors. § 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees. § 3. Uxor quoque quae in manu §3. A wife in the hand of the est sua heres est, quia filiae loco est; deceased is a self-successor, for she item nurus quae in filii manu est, is a quasi daughter; also a son's nam et haec neptis loco est. sed ita wife in the hand of the son, for she demum erit sua heres, si filius cuius is a quasi granddaughter; subject, in manu erit, cum pater moritur, however, to the proviso that she is in potestate eius non sit. idemque not self-successor if her husband is dicemus et de ea quae in nepotis in the power of his father at the manu matrimonii causa sit, quia time of his father's death. A wife proneptis loco est. in the hand of a grandson is a selfsuccessor, subject to the same proviso, because she is a quasi greatgranddaughter. § 4. After-born children, who, if born in the lifetime of the parent, would have been subject to his power, are self-successors. § 5. Also those in whose behalf the provisions of the lex Aelia Sentia (1 § 32) or the senatusconsult have been satisfied by proof of excusable error subsequently to the death of the parent, for if the error had been proved in the lifetime of the parent they would have been subject to his power. § 6. Also, a son, who has undergone a first or second mancipation and is manumitted after the death of the father, is a self-successor. § 7. Accordingly, a son or daughter and grandchildren by another son are called contemporaneously to the succession; nor does the nearer grade exclude the more remote, for justice seemed to dictate that grandchildren should succeed to their father's place and portion. Similarly, a grandchild by a son and a great-grandchild by a grandson by a son are called contemporaneously to the succession. § 8. And as it was deemed to be just that grandchildren and greatgrandchildren should succeed to their father's place, it seemed consistent that the number of stems, and not the number of individuals, should be the divisor of the succession; so that a son should take a moiety, and grandchildren by another son the other moiety; or if two sons left children, that a single grandchild or two grandchildren by one son should take one moiety, and three or four grandchildren by the other son the other moiety. |