the time when the hæreditas was proffered, it was of no consequence; but if he lost it between the time when the hæreditas was proffered, and the time when the hæreditas was accepted, his recovery thereof would not avail.

Extranei instituti accept or acquire a hæreditas proffered to them by an act of will, by showing an intention to acquire, either by words (verbis) or by acts (re). This was called doing the act of a hæres, or entering upon hæreditas (aditio) (1).

§ 7. The intention to becomes hæres was shown by acts when the institutus acted as hæres, or as master of the dead man's goods (veteres enim hæredes pro dominis appellabant), as when he sold or let out part of the hæreditas (2).

§ 7. A deaf and dumb person might accept an hæreditas by manifesting his intention so to do by his acts; it was enough if he understood what he was doing.

§ 7. As a general rule the hæres institutus, or appointed successor, must accept in person. Hence no procurator, curator, tutor, paterfamilias, or master of a hæres, whether institutus or legitimus, could accept or enter upon a hæreditas (3). For the same reason the institutus extraneus who died before accepting the hæreditas did not transmit to his hæredes the right to acquire it (4).

§ 7. Moreover it was requisite that the party accepting should know the circumstances of the hæreditas proffered to him: he must know whether the person he claimed to succeed was dead; whether the condition (if the institutio or appointment was conditional) had been fulfilled; and whether he succeeded ab intestato, or by force of the testament.

But it was not possible to acquire only part of a hæreditas: the hæreditas must be accepted or refused as a whole; and if a man accepted part, he was taken to have accepted the whole (5). The acceptance could not be conditional or for a fixed time.

(1) Strictly, pro hærede gerere applies to the intention evidenced by acts: adire, when the same is evidenced by words, Aditio ire ad hæreditatem.

(2) Observe that in every case the intention to be hæres is that which causes a man to acquire the hæreditas. Hence you might sell or let out a part of the hæreditas without becoming hæres, if the sale or letting took place by mistake or for temporary purposes (D. 29. 2. 20, § 1).

(3) But there were exceptions; e.g., a pater-familias might accept the hæreditas proffered to his filius-familias, if absent or an infans; and the tutor might do the same if the pupil was an infant (p. 49).

(4) But by a Constitution of Theodosius,

the descendants appointed hæredes by an ancestor, to whose power they were not subject, might, if they died before the opening of the testament, transmit to their posterity the share intended for them. Justinian decreed that persons dying during the year allowed for deliberation might transmit to all their hæredes the right proffered to them by testament or ab intestato, in the succession of a deceased ancestor.

(5) Even those portions, added to his own, in consequence of one of his co-hæredes renouncing or becoming incapable. For each hæres was called to the whole hæreditas, and the division was the mere result of several hæredes coming in together.

As to the effects of accepting or acquiring (adire) a hæreditas. The hæres on accepting was invested with all the rights of the deceased, and continued his legal person. He became proprietor of the goods of the hæreditas, and whatever accrued to it (1); moreover he was liable to all charges on the successio, i.e., to the whole amount of them if he was the only hæres, and in proportion to his share in the hæreditas, in case there were joint-hæredes, but the extent of liability was quite independent of the value of the hæreditas.

§ 7. A hæres extraneus might renounce the hæreditas proffered to him by expressing his will to that effect. A hæres, after refusing a successio, could not resume it unless he was under twenty-five, for then he might obtain from the prætor restitutio in integrum, or unless the hæreditas had been proffered to him by another title; thus, a person after renouncing the hæreditas as hæres institutus, might accept it as substitutus or as hæres legitimus (D. 29. 2. 76, § 1).

§ 5.-6. But a person might not relinquish after accepting (a hæreditas unless he was under twenty-five. But Adrian allowed one above twenty-five to relinquish it if he discovered, after acceptance, a considerable amount of debt; and in later times Gordian extended the same privilege to all soldiers.

By the old law, unless the institutio or terms of appointment were accompanied with cretio (2), the institutus might take as long as he pleased to decide whether he would accept it or not. But on the demand of parties interested, such as creditors, legatees, or substituti, the Prætor limited the time allowed to the hæres for deliberation.

§ 6. Justinian introduced, however, certain changes, by which hæredes instituti were relieved from claiming time for deliberation. Such was the benefit of the inventory (C. vi. 30, 22, § 4); under it a hæres might accept the hæreditas without being liable beyond such charges as the goods included in the hæreditas would cover, and without having his own goods mixed up with those of the deceased; for this purpose it was necessary, before meddling with the goods of the deceased, to have an inventory of them prepared within the time, and according to the form prescribed by the Emperor. Justinian declared, that by this precaution any person might accept an hæreditas without hesitation. But

(1) In one sense, the hæres succeeded at the moment of the death; but in another sense, the hæreditas of the dead man represented him till the aditio (p. 142).

(2) Cretio was when the testator had himself fixed a period within which the institutus must formally declare his intention to accept. If he did not make such declaration within the time fixed, he was excluded (Gaius, 2, § 164). The cretio was

added to an institutio, in order to make the hæres accept within a certain period, and to prevent the hæreditas from continuing uncertain for an indefinite period. After the Prætors had fixed a period for deliberation, cretio of course ceased; and it was expressly abolished by a Constitution (C. 6. 30. 17) of Arcadius, Honorius, and Theodosius (A.D. 407).

it was still competent for a hæres to demand a period for deliberation : by taking that course, however, he could not have the benefit of the inventory; and hence, to protect himself from liability to the charges upon the hæreditas, he was obliged expressly to renounce it before the time for deliberation had expired, which was nine months when granted by the magistrates, and one year when granted by the Emperor himself. C. vi. 30, 22, § 13.

§ 1. The ancients defined a legacy a sort of gift left by testament to be discharged by the hares. We say sort of gift, because a gift strictly implies the concurrence of two wills, donor's and donee's, whereas the legacy is good without the will or even the knowledge of the legatee: we say left by testament, because there is no legacy unless by testament, whereas a fuleicommissum may be made without testament, by codicil: we say to be discharged by the hæres, because the hæres alone can be charged with a legacy, whereas a fideicommissum may be charged upon a legatee or upon a fidei-commissary (or trustee).— After Justinian allowed legacies like fideicommissa to be made by codicil or at least by codicils confirmed (t. 25), a legacy may be defined to be a gift which a man makes by act of last will of a particular thing out of his successio or estate.

§ 2. There were in ancient times four kinds of legacies:-1. per vindicationem; 2. per damnationem; 3. sinendi modo; 4. per præceptionem. And each of them had its particular formalities.

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The legacy per vindicationem was that which transferred the property in the thing bequeathed directly, without imposing any obligation upon the hæres it was so called because it gave the legatee a right to the vindicatio or action in rem possessed by every proprietor. In it the testator did not address the hæres, but the legatee: capito, sumito; or he addressed no one: do, lego (Gaius, 2, § 196).

Only such things as the testator owned when he made the testament, and when he died, might be bequeathed per vindicationem (2): for these are the only things whereof the property could be transferred by testament. A legacy per vindicationem of any other description of thing

(1) Justinian, who is discussing the modes of acquisition per universitatem, having explained how the hæreditas is transferred by testament, ought now properly to proceed to show how it is transferred ab intestato; but he now proceeds to legacies and trusts (fideicommissa) — by which not res universitates but res sin

gulares are acquired—because they are the ordinary and most important incidents of testaments.

(2) By the Catonian rule. In case of res fungibiles it was enough if the testator owned them at his death (Gaius, 2, 196).

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was void, because the testator would not have transferred, and the hæres would not have been charged to transfer the property therein.

The legacy per damnationem was that which bound the hæres to give or to do something. This was its form: Hæres meus damnas esto dare; dato, facito, &c. This command to the hæres did not directly transfer the property to the legatce: the legatee could not, therefore, have vindicatio; but he had a personal action against the hæres to compel him to transfer the property bequeathed, or to do that which the testator directed (Gaius, 2, § 204).

As to what might be bequeathed in this way, not only things belonging to the testator might be, but those belonging to the hæres, or to any other person: for although a testator could not alienate the things of another, he might impose on himself or on his hæredes obligations in respect to them.

The legacy sinendi modo merely imposed on the hæres the passive obligation of allowing the thing bequeathed to be done or taken by the legatee. The testator said, Hæres meus damnas esto sinere Lucium Titium, Hominem Stichum sumere sibiqe habere (Gaius, 2, § 209). This did not directly transfer the property, and therefore gave no action in rem; but the legatee might acquire the property by taking possession of the bequest: he had a personal action against the hæres.

As to what might be bequeathed in this form, only such things might be as belonged to the testator himself or to his hæres. The obligation thus imposed on a hæres to allow the legatee to take the thing of another, is merely an obligation to suffer something to be done.

By the legacy per præceptionem the testator told the legatee not precisely to take the bequest, but to take it beforehand (præcipito).

As to its effect, and as to the persons to whom it might be made, opinions were divided. The Sabinians, adhering to the strict meaning of præcipere, to take before partition, held that the legacy was confined to the hæredes instituti; for they alone made partition, and therefore could take before partition; and hence the only action which the legatee had was the action for partition; viz., familiæ erciscundæ (B. 4, t. 17, § 4).

The Proculcians, considering it unreasonable that the syllable præ should diminish the force of capere, held that any legacy per præceptionem to persons not hæredes should be deemed to be the same as if made per vindicationem; and this opinion was sanctioned by a Constitution of Adrian (Gaius, 2, § 216-223).

§ 2. But in time all distinction between these various legacies was abolished. By the senatus-consultum Neronianum (A.D. 60) it was decreed that the legacy per vindicationem, if invalid, as such, by the old law (ie., if a testator had bequeathed the thing belonging to another, or to his hæres), should have the same effect as if it had been

made per damnationem. Constantine abolished the necessity of using particular forms; but that did not prevent the distinction being still made between a legacy per vindicationem, including all dispositions in which the testator showed an intention to immediately transfer the property, and a legacy per damnationem, including all in which his intention was to impose an obligation on his hæres. The differences in question, however, were absolutely abolished by Justinian (C. vi. 43, § 2); for he, desiring to give full effect to the intentions of testators, decreed that a legacy should be executed in any mode in which execution was possible, and that, without regard to the form of the disposition, the legatee should have the personal action formerly attached to a legacy per damnationem; and that if the thing belonged to the testator, the legatee should have the vindicatio formerly attached to the legacy per vindicationem or per præceptionem: finally, he allowed the legatees a right of hypotheca over all the goods of the deceased, and an action in rem, called hypothecaria or quasiserviana, to enforce it (B. 4, t. 6, § 7).

§ 3. But he went further; for he abolished all distinction between legacies and fideicommissa (1).

Speaking generally, only those things might be bequeathed which could be bought and sold (in commercio). But they might be in existence, or about to come into existence they might be corporeal or incorporeal. Hence (§ 7), a person might bequeath the fruits to be produced from certain land, and the children to be born of a slave.

§ 4. Moreover, the thing belonging to a third party might be bequeathed. Such a legacy bound the hæres to purchase it, and to give it to the legatee, or pay him its value, if the proprietor would not sell it (2). But in such case the testator must know that the thing bequeathed belongs to another; and the fact of knowledge must be proved by the legatee claimant. For the testator who has bequeathed a thing whereof he supposed himself owner, would not perhaps have done so had he known that it belonged to a third party, since it is less burdensome for the hæres to give up a thing forming part of the successio, being his own goods, than to purchase the property of another.

§ 11. On the other hand, if the testator bequeathed that which he supposed to belong to another, but which in fact belonged to himself, such legacy was valid; for the burden on the hæres was thereby diminished, and the testator's will not transgressed (3).

(1) For clearness these two subjects are treated separately.

(2) The thing so bequeathed must be in commercio, ($4), e.g., the legacy of a public building would be void, and the hæres would not be bound to pay the value. For when the thing is in commercio the hæres may possibly purchase, and therefore the

obligation is not impossible: but when the thing is not in commercio the hæres cannot purchase, and therefore the obligation is void.

(3) Here, plus valet quod in veritate est quam quod in opinione (§ 11); but in the last case, plus est in opinione quam in veritate (D. 29, t. 2, 15, 16).