TITLE XVIII.-OF AN INOFFICIOUS TESTAMENT.

Pr. An act is inofficiosum which violates any officium or duty arising out of affection, blood, or gratitude. Hence, a testament was inofficiosum which, though made in legal form, violated natural duty.

Pr. To prevent testators from abusing that absolute power of selecting hæredes which the Twelve Tables allowed, the prudentes held that the pater-familias who disinherited, and every other ancestor who omitted, without lawful cause, their issue, must be insane, and, under that pretext (hoc colore), they introduced the plaint or action of testamentum inofficiosum, by which children might claim the hæreditas against the instituti (1), and thus set aside the testament in question.

Pr. We say under this pretext, because it was only a means of avoiding a valid testament; for had there been actual imbecility, the testament would have been void ab initio.

§ 1. The plaint of inofficiositas was open to none, except those who would have succeeded, and according to the same order in which they would have succeeded had there been no testament; for they alone had an interest in avoiding it. But, again, it was not open to all of them; it was, certainly, open to all the issue, whether subject or not to the testator, whether natural or adopted (2); but in default of children, it was open to ancestors alone, and, in default of them, to brothers and sisters.

At first it was open only to the testator's brothers and sisters agnati; which excluded not merely uterine brothers, but also brothers and sisters. consanguinei, not being agnati. Justinian allowed it to all the brothers consanguinei, without distinction: it was not till after Nov. 118, which abolished all distinction between relations through the father and relations through the mother, that the uterini might prefer this plaint.

§ 1. This plaint lay against every institutus at the suit of the testator's lineal kindred; but it did not lie at the suit of brothers and sisters, except against instituti turpes, such as actors, gladiators, prostitutes, and infamous persons (C. 3. 28. 27).

§ 2. But this plaint was an extraordinary remedy, and therefore it was not allowed if the party preferring it had any other means of obtaining the whole or part of the succession. Hence it was not open to the pupillus adrogatus, who was afterwards disinherited by the

(1) The plaint of inofficiositas is therefore an action by which a man claims to be admitted as hæres (legitimus). It was brought before the centumvirs, as were all actions of petitio hæreditatis. The action

was also allowed against the fidei-commissarii and other possessors.

(2) Excepting, after the time of Justinian, the filius-familias adopted by a stranger.

adrogator, because the Antoninian quarter (B. 1, t. 11) was secured to him in such a case: nor to the emancipated son omitted from his father's testament, because he had the possession of the goods contra tabulas (p. 133).

§ 3. Prior to Justinian's time, a testament was sometimes attacked as inofficious, by a person himself appointed or instituted hæres by it. Such person might attack if he was not appointed to a fourth of what he would have had ab intestato; unless indeed the testator had expressly directed that the fourth should be made up, in which case he was entitled to a personal action for the fraction by which the fourth was deficient (1). But, on the other hand, no plaint could be preferred by the institutus, if he had received from the testator his fourth, though not as hæres; e.g., as legatee.

§ 3. But out of regard (§ 6) for the testator, Justinian decreed that if a man received anything as hæres or legatee, by way of fideicommissum, or donation mortis causâ, he should not be allowed this plaint, but should have an action to make up the fourth, even though the testator had not expressly directed it to be made up.

§ 3. This deficient fraction of the fourth was made up boni viri arbitratu, i.e., according to the valuation of the goods made by a person of acknowledged fairness; and this fraction must make up the fourth of that portion of the hæreditas which the party in question would have received had there been an intestacy (2). This fourth was called the portio legitima, or simply legitima: he who claimed it was a legiti

marius.

As a general rule nothing given inter vivos was reckoned as part of the legitima quarta. There was, however, an exception in certain cases defined by a Constitution referred to (§ 6, C. 3, 28, 35; C. 3, 28, 30). The grounds of the general rule are obvious; a party was entitled to the plaint in question, unless he had received the fourth of that which he would have received had there been no testament. Now goods given away inter vivos formed no part of the successio of the deceased; therefore they could not be included amongst those to which the hæredes legitimi, as such, laid claim.

This plaint de inofficioso being founded upon a kind of injury alleged by the legitimarii against the testator, who has disinherited or omitted

(1) An action to make up the proper sum (usque ad quartum legitimæ partis repleatur) is a personal action, permanent and assignable to the hæredes, and does not avoid the testament. The plaint of inofficiositas is a real action (a kind of petitio hæreditatis), not assignable to hæredes, and by virtue of which, if brought within five years, a testament is rescinded.

(2) The several fourths, in reference to the testator, make together a sum equal to the fourth of all his goods, which is to be divided amongst the legitimarii, however many; the share of each being proportionate to what each would have taken, if the whole hæreditas legitima had passed to them (§ 6).

them from his will, was extinguished in the same manner as other actions for injuries (B. 4, t. 12). 1. If the legitimarius died without having shown any intention to urge his claim. 2. If he allowed so much time to elapse that a tacit abandonment of the claim might be presumed this period was originally two, and afterwards five years. 3. If he directly or indirectly sanctioned the testament; e.g., by contracting with the hæredes instituti, as such, or by claiming voluntarily as an advocate or a mandatarius, as against the hæredes instituti, the execution of a legacy (D. 5, t. 2, 23 & 32). Judicium defuncti agnoscere videtur.

§ 4. The plaint de inofficioso was not denied to a tutor because, by his father's will, which disinherited him, he received a legacy for his pupil; on the contrary, the tutor might still have the plaint on his own behalf, because, unlike the advocate and the mandatarius, he was compelled to claim and receive his pupil's legacy.

§ 5. If a man preferred an unfounded plaint, he lost whatever the testator left him.

But if a tutor, as such, preferred this plaint on behalf of his pupil, he did not lose any legacy bequeathed to him: though the plaint failed, the tutor might claim his own legacy. He was not to be punished for what he did in pursuance of what he believed to be his duty.

After the publication of the Institutes, Justinian made certain alterations on this subject. He raised the legitima to half of the successio, when the children exceeded four, and to a third when they did not (Nov. 18, c. 1). Afterwards it was decreed (Nov. 115, c. 3) that the legitima must be left to the children and descendants as hæredes, and that they must be always instituti, if only for a specific thing, which, if insufficient, might be made up to the proper amount by an action for the deficiency: and Justinian defined fourteen causes, hitherto undefined, in which a testator would be justified in disinheriting or in omitting his descendants or ancestors. Moreover, he required such causes to be expressed in the testament, and that the burden of proving them should be on the institutus. Failing these conditions, the testament might be rescinded (1), not absolutely, but so far as the institutio hæredis went, the legacies and other dispositions remaining valid. Nov. 115.

(1) Provided the rescission was demanded within the proper time, and according to proper form.

TITLE XIX.-OF THE KINDS OF HÆREDES OR SUCCESSORS AND THE DIFFERENCE BETWEEN THEM.

Pr. There were three kinds of hæredes instituti: 1. Necessarii; 2. Sui et necessarii; 3. Extranei.

§ 1. Hæredes necessarii were slaves instituted or appointed successors by their master, on whom the testament conferred at once liberty and the hæreditas or succession (1). They were called necessarii, because they became hæredes whether they would or not. They did not accept the hæreditas, but it vested in them immediately on the testator's death, if the appointment was absolute, and on the condition happening if it was conditional.

1. Hæredes necessarii were thus liable, against their will, to be sued by the creditors of the deceased; for a hæres was liable to all the debts of the deceased, even out of his personal goods. But the Prætor relaxed the strictness of the civil law, and granted the benefit of separation of goods (D. 42, 6; C. 7, 72) to the hæres necessarius, who claimed it before meddling with the goods included in the hæreditas. By these means the creditors were confined to the goods of the hæreditas, and the hæres necessarius kept his own property free, including even what was due to him by the deceased (2).

§ 2. Sui et necessarii hæredes were those who, at the death, were subject to the power of the person whom they succeeded, either by ab intestato or by testamentary appointment. They are called sui because the filii-familias, immediately under the power of the pater-familias, were considered during his life as joint-proprietors of the goods of the family (vivo quoque patre Domini existimantur, § 2); so that, on becoming hæredes of the pater-familias, they succeeded to their own goods, and thus became their own hæredes or hæredes in their own right (sui hæredes) (3). They are called necessari, because the deceased by reason of the power (patria potestas) which he had over them (4), compelled

(1) For this purpose it was necessary that the slave should belong to the testator, both when the testament was made and when the hæreditas vested (§ 4). It mattered not what became of him between these two periods (p. 158). When the slave was appointed conditionally, and enfranchised absolutely, his liberty was sus pended until the condition was fulfilled, in order that the slave by receiving liberty and the hæreditas at once, might be hæres necessarius. So, from the same desire to favour the testator when the appointment was absolute, and the enfranchisement

conditional, the appointment was suspended until the slave acquired his liberty.

(2) The separatio was also granted to the creditors of a hæreditas; for where the hæres was insolvent, it was important to separate the goods of the deceased from those of the hæres.

(3) This is the view of Ortolan, and it is supported by a passage from Gaius (2, $157).

(4) It is the patria potestas which constitutes a hæres necessarius. Hence a pater-familias may, by a substitutio pupillaris, appoint as a hæres necessarius to his

them, as in case of slaves, to become heredes without exercising any choice. Such at least was the Civil Law.

§ 2. But it was not so by the Prætorian Law, for the Prætor did not regard the children as hæredes until they meddled with the goods of the deceased; till then, he refused to the creditors of the hæreditas any action against the sui hæredes who abstained.

§ 2. There was a difference between the benefit of abstaining and that of the separation of goods granted to the slave. The separation of goods had to be claimed by the appointed hæres ; nor did that prevent his being liable to the creditors of the hæreditas, so far as the goods left by the patron went; whereas the beneficium abstinendi absolutely protected the suus hæres, who was held to have abandoned the hæreditas of the pater-familias, without the necessity for his claiming such privilege, and by the mere fact of not meddling, after attaining full age, with the hæreditas (1).

§ 3. Extranei or stranger hæredes were those not under the testator's power, e.g., the testator's own children not being under his power, but appointed hæredes by his testament: children appointed of hæredes by their mother, because women had no power over their children, or slaves appointed hæredes by their masters, who had become free or subject to some other person's power before the devolution of the hæreditas (p. 137).

But these extranei did not become hæredes involuntarily and by operation of law: the hæreditas was proffered (delata) to them at the death of the testator, if the institutio or appointment was absolute, and if it was conditional, on the happening of the condition; but it was acquired by them by an act of will: hence they were called voluntary hæredes.

§ 4. Any extraneus institutus was not capable of acquiring the hæreditas; it was necessary that the testator should have testamenti-factio with them; ie, that they should be capable, if not of making a will, at least of accepting a benefit under another's testament, either on their own behalf or on behalf of their pater-familias or master (2).

§ 4. This testamenti-factio must exist :-1. When the testament is made. 2. When the hæreditas is proffered; i.e., at the testator's death, if the appointment is absolute, and if it is conditional, on the condition being fulfilled. 3. When the hæres accepts the hæreditas.

§ 4. If the hæres institutus lost the capacity to take the hæreditas for a period between the time when the testament was made, and

son under age the person whom he might as hæres necessarius to himself, e.g., his slave or the brother of the pupillus whom he has appointed a substitutus. (D. 28, t. 6, 10, § 1).

(1) Though an impubes did interfere, he retained the beneficium abstinendi.

(2) This was the passive, as opposed to the active testamenti-factio, by which a man had power to make a will.