intestatus mortuus sit, prima causa est in successione liberorum. necessarii vero ideo dicuntur, quia omnimodo, sive velint sive nolint, tam ab intestato quam ex testamento heredes fiunt. sed his praetor permittit volentibus abstinere se ab hereditate, ut potius parentis quam ipsorum bona similiter a creditoribus possideantur.

Ceteri, qui testatoris iuri subiecti non sunt, extranei heredes 3 appellantur. itaque liberi quoque nostri, qui in potestate nostra non sunt, heredes a nobis instituti extranei heredes videntur. qua de causa et qui heredes a matre instituuntur, eodem numero sunt, quia feminae in potestate liberos non habent. servus quoque a domino heres institutus et post testamentum factum ab eo manumissus eodem numero habetur. In extra- 4 neis heredibus illud observatur, ut sit cum eis testamenti factio, sive ipsi heredes instituantur sive hi qui in potestate eorum sunt. et id duobus temporibus inspicitur, testamenti quidem facti, ut constiterit institutio, mortis vero testatoris, ut effectum habeat. hoc amplius et cum adit hereditatem, esse debet cum eo testamenti factio, sive pure sive sub condicione heres institutus sit: nam ius heredis eo vel maxime tempore inspiciendum Trinum. 2. 2. 48, where a son says to his father 'de meo: nam quod tuum'st, meum'st,' cf. also Terence, Heaut. 1. 1. 79, Cic. in Verr. 2. 1. 44 'quibuscum (i. e. ex liberis) vivi bona partimur,' Pliny, paneg. 37, Ausonius, Idyl. 3. 3.

This 'beneficium abstinendi' exempted a suus heres from all liability for his pater's debts, 'si se hereditati non immiscuerit,' i. e. if he did nothing from which acceptance of the hereditas could be inferred; 'ut quamvis creditoribus hereditariis iure civili teneantur, tamen in eos actio non detur, si velint derelinquere hereditatem' Dig. 29. 2. 57. pr. ; and a suus heres who was a minor was not prejudiced even by such 'immixtion,' § 5 inf., Dig. 29. 2. 57. pr. and 1. The result of this privilege was practically to assimilate the suus et necessarius heres to an extraneus ; consequently, he could, like the latter, be compelled by the magistrate to decide within a prescribed time whether he meant to avail himself of it or not, Dig. 28. 8. 7. pr., Cod. 6. 30. 19. If he did, he was treated as if he was not really heir at all; he had merely 'nudum nomen heredis' Dig. 38. 17. 2.8, hunc qui abstinuit praetor non habet heredis loco' Dig. 11. 1. 12. pr. Consequently, the inheritance became delata, in the first instance, to the substituti, Dig. 42. 1. 44, and in default of these to the heredes ab intestato in their several degrees of proximity, Dig. 29. 1. 4. 7, and in the last resort to the fiscus. The beneficium abstinendi passed to the heirs of the instituted suus, Dig. 29. 2. 7. 1, Cod. 6. 30. 19.

§ 4. For 'testamenti factio passiva' see on Tit. 14. pr., Tit. 17. 6 supr.

T

est, quo adquirit hereditatem. medio autem. tempore inter factum testamentum et mortem testatoris vel condicionem institutionis existentem mutatio iuris heredi non nocet, quia ut diximus tria tempora inspici debent. testamenti autem factionem non solum is habere videtur, qui testamentum facere potest, sed etiam qui ex alieno testamento vel ipse capere potest vel alii adquirere, licet non potest facere testamentum. et ideo et furiosus et mutus et postumus et infans et filius familias et servus alienus testamenti factionem habere dicuntur: licet enim testamentum facere non possunt, attamen ex testamento vel 5 sibi vel alii adquirere possunt. Extraneis autem heredibus deliberandi potestas est de adeunda hereditate vel non adeunda. sed sive is, cui abstinendi potestas est, immiscuerit se bonis hereditariis, sive extraneus, cui de adeunda hereditate deliberare licet, adierit, postea relinquendae hereditatis facultatem non habet, nisi minor sit annis viginti quinque: nam huius

§ 5. By the civil law the institutus was not bound to accept or decline the hereditas within any definite time, though such a period was often fixed by the testator, non-acceptance within which caused forfeiture of delatio to the substituti. Where this was done, both the prescribed interval and the signification of acceptance were called cretio, Gaius ii. 164, the latter was required to be made in a recognized form (ib. 166) and before witnesses (Varro, de ling. Lat. 6. 81, Cic. ad Att. 13. 46). Two kinds of cretio were distinguished, vulgaris (Gaius ii. 171. 2), by which the institutus was bound to accept within so many days only after he knew of his institution and was able to make aditio, and continua (Gaius ii. 172, 3), which was not so favourable to the institutus, because the time began to run immediately on the testator's decease, and might have wholly elapsed before he was able to take advantage of his rights or was even aware of them. The solemn forms of cretio, which are preserved by Gaius, were abolished A.D. 407 by Honorius and Arcadius, Cod. 6. 30. 17, though of course this did not in any way prevent testators from still making the institution conditional on acceptance within a fixed time from the date of decease.

But though no rule of law required a reasonably prompt aditio, it was always open to the deceased's creditors (and we may add to legatees, fideicommissarii, substituti, and other persons jointly instituted) to petition the praetor to fix a time within which it must be made, 'solet praetor, postulantibus hereditariis creditoribus, tempus constituere, intra quod si velit adeat hereditatem; si minus, ut liceat creditoribus bona defuncti vendere' Gaius ii. 167. The interval so fixed was called 'spatium deliberandi: ait praetor, si tempus ad deliberandum petet, dabo' Dig. 28. 8. 1. 1. Under Justinian no longer than nine months might be

aetatis hominibus sicut in ceteris omnibus causis deceptis, ita et si temere damnosam hereditatem susceperint, praetor suc

allowed for this purpose, though this might be extended to a year upon personal petition to the Emperor, Cod. 6. 30. 9, and he also entirely altered the legal position of the institutus by enacting that by doing nothing in the way of either refusal or acceptance within the time allowed he lost not the latter right but the former, Cod. 6. 30. 22. 14. An institutus whose title was threatened by querella inofficiosi was required to accept within six months, or within twelve if he and the claimant resided in different jurisdictions, Cod. 3. 28. 36. 2. Bonorum possessio (as contrasted with the hereditas) had in every case to be accepted within a fixed limit of time, a year being allowed to ascendants and descendants, and a hundred days to all other persons, Bk. iii. 9. 9 and 10 inf.

By the act of acceptance the interval which had elapsed since the decease was held by a fiction to be obliterated; 'heres quandoque adeundo hereditatem iam tunc a morte successisse defuncto intellegitur' Dig. 29. 2. 24. The effect of acceptance (until Justinian) had been to produce a confusio between the proprietary relations of the deceased and those of the heir; what had been two properties, two sets of rights of action, two sets of liabilities, were now combined in one; hence debts which either owed to the other were cancelled, 'si debitor heres creditori extiterit, confusio hereditatis perimit petitionis actionem' Dig. 46. 3. 75, and iura in re which the one had enjoyed over the property of the other were extinguished, Dig. 18. 4. 2. 18 and 19; cf. (2) p. 209 supr. But possession did not pass to the heir without an independent apprehensio by him, 'quia hereditas in eum id tantum transfundit, quod est hereditatis: non fuit autem possessio hereditatis' Dig. 47. 4. I. 15.

Subject to the exceptions noticed in the text, the acceptance was irrevocable. The heir might have been mistaken in his estimate of the assets and liabilities of the deceased, but having once taken upon himself the universitas iuris, he could not get rid of it: semel heres, semper heres. He thus became as fully liable for the deceased's debts as though he had contracted them himself, 'hereditas autem quin obliget nos aeri alieno etiamsi non sit solvendo plus quam manifestum est' Dig. 29. 2. 8. Under such circumstances the hereditas was said to be damnosa, Dig. 17. I. 32; 29. 2. 57. 1; but if its solvency appeared doubtful, the institutus could protect himself by making an arrangement with the creditors before acceptance, by which the latter resigned any claims which they might have against the estate beyond its actual value; he then accepted as their agent and mandatary, and could recover from them any loss which he might sustain in so doing, Dig. 17. 1. 32: the creditors might even agree by resolution to accept so much in the pound, and here the majority bound the minority, Dig. 2. 14. 7. 17, ib. 8-10. pr. Conversely, the creditors of the deceased might suspect that though the latter's assets were sufficient to meet all their claims, they would not,

6 currit. Sciendum tamen est divum Hadrianum etiam maiori viginti quinque annis veniam dedisse, cum post aditam hereditatem grande aes alienum, quod aditae hereditatis tempore latebat, emersisset. sed hoc divus quidem Hadrianus speciali beneficio cuidam praestitit: divus autem Gordianus postea in militibus tantummodo hoc extendit: sed nostra benevolentia

even with the heir's own property, suffice to pay the latter's debts also; in such a case as this they were entitled to apply within five years to the praetor for a separatio bonorum, the effect of which was to prefer their own rights against the bona separata to those of the heir's own creditors, though they forfeited all claim to any subsequent payment from the heir's own property, should the separated portion prove in fact insufficient for their satisfaction, Dig. 42. 6. I. I. The heir, however, is bound by his testator's dispositions. He may in his will have done more than institute an heir; he may have given legacies or fideicommissa, left instructions as to his funeral, appointed guardians to his children and settled the arrangements for their education, forbidden alienation of certain res hereditariae, and so forth. All these dispositions are valid and binding on the heir, Dig. 33. I. 7. I; 44. 7. 5. 2.

When there are two or more joint heirs, the hereditas passes to them collectively, as a whole; there is said to be a communio in it between them, but to each of them individually it passes only pro rata; each coheres is not liable for the testator's debts in full, but only in the same ratio in which he is instituted, the liabilities being divided between them ipso iure, Cod. 3. 36. 3. Division of course would usually take place by arrangement, but if any one refused to concur, he could be compelled by the actio familiae erciscundae, to which also he could resort if he thought he was being unfairly treated by his coheirs, 'haec actio proficiscitur ex lege duodecim tabularum, namque coheredibus, volentibus a communione discedere, necessarium videbatur aliquam actionem constitui, qua inter eos res hereditariae distribuerentur' Dig. 10. 2. 1. pr. Sometimes a coheres could not claim a division without bringing into the inheritance certain property of his own (collatio bonorum). This practice had originated in the praetorian bonorum possessio, whether contra tabulas or ab intestato; the praetor would not admit emancipati to share the estate with their unemancipated brothers and sisters unless they brought into 'hotchpot' all that they had acquired for themselves since their own release from potestas, Dig. 37. 6. 1. 14. The Emperors, especially A. Pius and Leo, further developed the obligation, requiring that where a number of descendants succeeded jointly to a common ascendant, each female should bring in the dos which she had received from the latter (dotis collatio), and the rule was subsequently extended to much other property which descendants of either sex had received from the common ascendant in his lifetime, Dig. 37. 6.

For the relief of minors by in integrum restitutio see on Bk. iv. 6. 33 inf. § 6. For the privilege of soldiers cf. Cod. 6. 30. 22. 4 and 15 'milites,

commune omnibus subiectis imperio nostro hoc praestavit beneficium et constitutionem tam aequissimam quam nobilem scripsit, cuius tenorem si observaverint homines, licet eis adire hereditatem et in tantum teneri, in quantum valere bona hereditatis contingit: ut ex hac causa neque deliberationis auxilium eis fiat necessarium, nisi omissa observatione nostrae constitutionis et deliberandum existimaverint et sese veteri gravamini aditionis supponere maluerint.

Item extraneus 7

etsi propter simplicitatem praesentis legis subtilitatem non observaverint, in tantum tamen teneantur, quantum in hereditate invenerint.'

By the important change to which he here alludes Justinian effected a complete reformation in the Roman law of inheritance, so far as relates to the character and liabilities of the heres. As Mr. Hunter says (Roman Law p. 574), 'it was a bold and successful stroke to convert the heir into a mere official, designated by the deceased for the purpose of winding up his affairs and distributing his property. The heir was now a mere executor, with the privilege of being residuary legatee, and if the testator did not forbid it, of retaining the Falcidian fourth.'

By this enactment (Cod. 6. 30. 22) Justinian gave the person to whom the hereditas was delata, whether ab intestato or under a will, the option between applying for a spatium deliberandi, and making a complete inventory of the property of the deceased. If he chose the latter, he must, with the assistance of a notary and a prescribed number of witnesses representing the creditors and legatees, begin the inventory within one month of his becoming aware of his right, and finish it within two months more: if, however, he was at a distance, he was allowed a year. During this interval neither creditors nor legatees might molest him in any way, though at its termination they could require him to swear to the accuracy of the inventory, which he also had to sign. By selecting this procedure, the heir was exempted from all liability beyond the assets of the deceased, Cod. loc. cit. 4, and also from the obligation of ascertaining rights of priority, etc. among creditors; these and legatees were to be paid in the order in which they applied to him, and if the assets were exhausted unpaid creditors might resort to paid legatees, Cod. ib. 4-8. The universitas iuris in fact no longer passed to the heir: there was no confusio between his proprietary relations and those of the deceased, so that iura in re aliena and debts were no longer affected in the way described, p. 275 supr., Cod. ib. 9.

If the institutus or person entitled preferred to apply for a spatium deliberandi, his old liabilities remained, ib. 14: even in this case he must make an inventory; if he did not, and accepted the inheritance, he lost his right to the Falcidian fourth, and must pay legacies and fideicommissa in full. The practical result, as Mr. Hunter remarks, was that if there was any doubt as to the solvency of the hereditas, the heir was compelled to make an inventory.

§ 7. No form was at any time prescribed by law for acceptance of an