TITLE IX.-OF THE POSSESSION OF GOODS.

Possessio bonorum is a right, granted by the Prætor, to succeed to the aggregate of rights (universitas) left by a deceased person, and to represent him (1).

This possessio bonorum the Prætor created not merely to amend, but to confirm and complete the old law.

Pr. Thus, when a man died intestate, the Prætor granted the possessio unde liberi to children who, in consequence of a diminutio capitis, were no longer sui hæredes by the civil law; when a man died testate the Prætor granted the possessio contra tabulas to an emancipated child, omitted by the pater-familias (B. 2, t. 13), secundum tabulas to a postumus alienus, who, before Justinian's time, could not have been institutus (2).

§ 1. The Prætor confirmed the old law when he granted the possessio bonorum to persons already called to the hæreditas. Thus: possessio unde liberi was granted, not only to children who had ceased to be of the family, but also to those who, continuing members, were still sui hæredes; so possessio unde legitimi was granted to agnati, and to those called to the hæreditas by the civil law in the second rank (ordo); so when there was a verbal testament, possessio secundum tabulas was granted to those well instituted according to civil law (B. 2, t. 10, fin. n.).

The object of granting the possessio when the hæres had been already called by the civil law, was that it entitled him to the interdict quorum bonorum (B. 4, t. 15).

The Prætor may be said to have completed (dilatare) the old law as to succession by creating certain ranks of successors, especially the third (unde cognati), for the nearest blood-relations. The right of succession, which by the Twelve Tables was too confined, was extended in order to prevent a man dying without a successor.

§ 2. But the successors, according to the Prætorian law, were not really hæredes: no man could be strictly a hæres except by a law, or some legislative provision, which, like a senatus-consultum, or an

(1) It arose thus: It was the Prætor's duty to deliver and secure to the hæres, in case of dispute, possession of the goods of the deceased. At first he simply executed the law, by giving the hæres the possession of such goods as came to him by law. Afterwards he granted the possession to certain relations whom the Civil law passed by; and sometimes he even set aside the legal hæres for other parties who had a prior claim, according to equity and natural

law. After the conquest of Italy and the provinces, it was necessary that a new rule of succession should be created for peregrini who had no right to the hæreditas (proper), .e., the quiritarian ownership; and this was done by the possessio bonorum.

(2) Observe, the Prætor did not admit to the hæreditas any expressly excluded by the law; he only called certain persons whom it had neglected (D. 37, 1, 12, 1).

imperial Constitution, established a right. Hence, Prætorian successors had not the qualities of hæredes, and were only called bonorum possessores, bonitarian, not quiritarian owners; as such, however, they possessed every right, and were liable to every obligation peculiar to a hæres, in whose place they stood.

The Prætor's edict arranged the possessiones bonorum after the example of the Twelve Tables; for first came the possessio bonorum, there being a testament; and second, the possessio bonorum, there being no testament.

§ 3. Supposing a testament there was, 1. The possessio contra tabulas, granted to children omitted from the testament of their father or their paternal grandfather; 2. The possessio secundum tabulas, granted to the hæredes instituti.

§ 3. Suppose there was no testament. In this case before Justinian's time there were eight possessiones: 1. Possessio unde liberi (1), by which the sui hæredes proper, and those ranked with them, were called successors; 2. Unde legitimi, by which hæredes legitimi, i.e., successors by the Civil law, in default of sui hæredes, were called, e.g., the patron and his children; 3. Unde decem persona, by which ten cognati were called in preference to the stranger-purchaser (extraneus manumissor) who, having acquired the deceased (filius-familias) by mancipatio, emancipated him, and so became his fictitious patron (B. 1, t. 12). These ten cognati were related in the first and second degree, viz., father, mother, grandfather, and grandmother paternal and maternal, son, daughter, grandson and granddaughter, brother and sister (2); 4. Possessio unde cognati (3), by which the nearest blood relations were called; 5. Possessio tum quem ex familiâ (4), by which the nearest member of the patron's family, i.e., his agnati, were called; 6. Possessio unde patronus patronave, by which the patron or the patroness of the patron, and their descendants and ancestors were called (5); 7. Possessio unde vir et uxor, by which the survivor of the husband and wife was called, in case the marriage continued till the death of the de cujus; 8. Possessio unde cognati manumissoris, by which the cognati of the patron were called (6).

(1) I.e., pars edicti unde liberi vocantur, &c.

(2) This kind of possessio (a mere exception from the last) was seldom granted. Generally, children mancipated to a stranger buyer were re-mancipated to their father, and enfranchised by him; thus the father, as patron, obtained by the civil law possession unde legitimi before any of the cognati. After Justinian's time, as emancipation was always considered to be made contracta fiducia, the possessio unde decem ceased.

(3) Generally, this possessio came third;

here it comes fourth, because of the possessio decem, which was confined to a particular case.

(4) Others say tum quâ. Justinian abolished this and the following, as being involved in inextricable confusion (§ 5).

(5) The patron is here presumed to be a freedman; so that the Prætor called as successor the agnati of the patron if he was born free, and the patron of the patron if he was a freedman.

(6) The various possessiones bonorum may be arranged thus:-1st case. The deceased freeborn and sui juris by birth, or

§ 4. Of these possessiones Justinian abolished 3, 5, 6, and 8; the unde decem, because in his time the emancipation of a filius-familias was always made contracta fiducia, and so the fictitious title of patron never belonged to a stranger: 5, 6, and 8, because such possessio was useless, after the same rule had been laid down in regard to the succession of freedmen as in regard to that of freeborn men, viz., that the patron's relations should succeed to the freedman as they would to the patron, and in the same order (1), so that each of them, as he was hæres legitimus, or cognatus of the patron, should have possessio unde legitimi, or unde cognati, in the goods of the freedman.

§ 4. After Justinian's changes six possessiones bonorum remained. Two, viz., contra and secundum tabulas, when there was a testament; and four when there was no testament, unde liberi, unde legitimi, unde cognati, et unde vir et uxor (§ 7). These six were the ordinary possessiones, because they were always granted to particular persons in particular circumstances, and in a settled order; there was, however, a seventh possessio bonorum, uti ex legibus, granted, both where there was and where there was not a testament, and which had no settled place among the possessiones.

To this extraordinary possessio the Prætor called all those to whom a law, a senatus-consultum or a Constitution directed that possessio should be given, and he called them in the order specified by such law, senatus-consultum or Constitution (2).

§ 8. In the case of possessio bonorum the succession devolved from one rank to another (ordo), and from one degree to another in the same rank; e.g., when there were several cognati, each was called, in default of one or more of them who preceded, and the most remote cognatus was always preferred to the surviving husband or wife.

§ 8. Again the Prætor fixed a period within which the possessio must be claimed; for thus the devolution of the hæreditas was acce

by capitis diminutio: (a) unde liberi; (b) unde legitimi (agnati); (c) unde cognati; (d) unde vir et uxor. 2nd. Deceased freeborn, emancipated sine fiducia: (a) unde liberi; (b) unde decem personœ; (c) unde legitimi (manumissor extraneus); (d) unde cognati; (e) unde vir et uxor. 3rd. Deceased freeborn, emancipated cum fiducia: (a) unde liberi; (b) unde legitimi (parens manumissor); (c) unde cognati; (d) unde vir et uxor. 4th. Deceased freedman emancipated by one freeborn: (a) unde liberi: (b) unde legitimi (patronus et liberi ejus); (c) tum quem ex familia; (d) unde vir et uxor; (e) unde cognati manumissoris. 5th. Deceased freedman

emancipated by another freedman: (a) unde liberi; (b) unde legitimi (patronus et liberi ejus); (c) unde patronus et patrona, &c.; (d) unde vir et uxor.

(1) But not beyond the fifth degree. (2) Observe, the possessio unde legitimi was granted in a certain order to those called to the hæreditas by the Civil law, and to the possessio by the Prætor; but in the possessio uti ex legibus it was the possessio bonorum-not the hæreditas-which was offered by the Civil law by such possessio, e.g., the patron came in with the children of the freedman, by virtue of lex Papia Poppaa.

lerated; the creditors of the deceased knew to whom they had to look ; the time within which they might bring their actions was limited, and it was therefore less easy for them to get put into possession of the goods of the deceased (vide t. 12).

§ 8. The period within which the possessio bonorum must be claimed was one year, when the claimant was a descendant or ancestor, and 100 days when he was a collateral. The time was to consist only of dies utiles (§ 10), i.e., it was not to include days on which the person to whom the possessio bonorum was offered was prevented from acting, either because he did not know that his right had accrued, or because the magistrate was not sitting (dies nefasti).

§ 9. If possessio was not claimed by the person entitled within the proper time, the right to claim was lost, and it passed to those called jointly with him. If called alone, the right to demand the possessio passed to those in the next rank (ordo): the same thing happened when, before the period elapsed, the possessio was renounced.

§ 10. In early times the form of demanding the possessio was that the party appeared before the Prætor and made a formal demand: but even before Justinian this form was abolished. It was enough to show, somehow, the will to accept.

But it sometimes happened that those to whom possessio was offered, according to the edict, did not obtain the goods forming the hæreditas; that was possessio bonorum sine re. Possessio was frequently offered to persons already called to the hæreditas by the Civil law: if such persons were satisfied with their title according to the Civil law, and accepted the hæreditas without demanding the possessio, this right devolved, at the expiration of the time, on the next rank (ordo): but if the person on whom the possessio thus devolved, demanded it, he got it sine re, because the legal hares was entitled to the (res) hæreditas in preference to him.

OF SUCCESSION (AB INTESTATO) ACCORDING TO NOVELLE 118 AND 127 (A.D. 543, 547).

Some years after the Institutes (A.D. 540) were published, Justinian abolished the succession rules of the Twelve Tables, which, notwithstanding the changes made by the edict by senatus-consulta and Imperial Constitutions, remained.

By Novella 118, the distinctions between the possessio bonorum and the hæreditas, and between agnati and cognati, were abolished; thence

forth, there were only three ranks of successors: first, descendants; second, ancestors; third, collaterals. According to the new rules, the order of succession was as follows:-1. All the descendants, whether emancipated or not, adoptive or natural, male or female, in the first or more remote degree: if they were in the first, they came in per capita, i.e., each for an equal share: if in a more remote degree, they came in per stirpes (1). 2. Failing descendants came the ancestors; but if there were brothers or sisters of the whole blood, each ancestor who had a claim, and such brothers and sisters, came in per capita: the ancestor nearest in degree always excluding the more remote. If there were no such brothers or sisters, but two or more ancestors in the same degree, some by the paternal, some by the maternal line, the ancestors of one line took half, and those of the other line the other half. 3. Failing ancestors, there came, first, brothers and sisters of the whole blood; and failing them, brothers and sisters by the half blood, whether consanguinei-æ or uterini-a. The children of the deceased brother or sister represented their father or mother, and succeeded jointly with the surviving brothers and sisters (2); but grandchildren did not represent their parents. Failing brothers and sisters, or children of brothers and sisters, the blood relation nearest in degree succeeded; if there were several in the same degree they succeeded per capita.

According to the rules laid down by Justinian, heretics were still incapable of succeeding.

These new rules of succession produced corresponding changes in the rules as to tutela legitima. In accordance with the principle that such tutela should belong to the presumptive hæres, it was decreed that if there was no testamentary tutor, the tutela should belong to the nearest male relations, according to the new rules of succession: the women being still incapable of being guardians, except a mother and a grandmother, who might be guardians if they did not marry again, and renounced the benefit of the senatus-consultum Velleianum, which forbade women from binding themselves for others.

(1) Children did not succeed their father and his relatives, unless the relationship arose from a legal marriage (justis nuptiis); bastards succeeded their mother (except in case, B. 3, t. 4), and the relations through the mother.

(2) It was only by Nov. 127 that chil

dren of a brother and sister of full blood were allowed to come in jointly with the ancestors by representation. Quarewhether nephews and nieces, in default of brothers and sisters of the deceased, succeeded per stirpes. Probably they did.