$99. $ 100. consulto tamen concessum est, ut a libertis suis heredes institui possint. Eod. § 6: Deos heredes instituere non possumus praeter eos quos senatusconsulto constitutionibusve principum instituere concessum est, sicuti Jovem Tarpejum, Apollinem Didymaeum Mileti... Eod. 19: Eos qui in utero sunt, si nati sui heredes nobis futuri sint, possumus instituere heredes: si quidem post mortem nostram nascantur, ex jure civili; si vero viventibus nobis, ex lege Junia. § 9 I. de hered. inst. (2, 14): Heres et pure et sub condicione institui potest: ex certo tempore, aut ad certum tempus non potest. 10: Impossibilis condicio in institutionibus et legatis, nec non in fideicommissis et libertatibus pro non scripto habetur. The original idea of a will is that it enables a person, who has no son, to provide a son for himself (sup. p. 449), who shall 'perform all the duties of the testator, human and divine', that is, pay his debts and offer the funeral sacrifices. It follows, as a matter of course, that, where there are sons, there is no room for a will. This is the condition of the law as we find it in ancient Attica, where the rule was that a man who had lawful sons could not make a will. At a later stage, however, a man who had sons was permitted to make a will in which he appointed his sons heirs, or to make a will for the event of his sons not surviving him, or, at any rate, if they did survive him, dying before they attained majority 2. There are strong grounds for believing that early Roman law passed through a very similar course of development. If a man had a filius suus, he could not, at the outset, make a will at all; if he had a daughter or a grandchild in immediate paternal power, he could, it is true, make a will, but he could only appoint a stranger testamentary heir 1 Compare the law of Gortyn in Crete, about 400 B. C. X. 42, 43, in Zitelmann's Das Recht von Gortyn, p. 134 (sup. p. 387, n. 3). 2 Schulin, loc. cit. p. 15. together with the daughter or grandchild—a rule which probably § 100. contains the germ of the subsequent jus accrescendi of such sui (v. infra)3. As against the sui, the power to make a will was excluded by the mere fact that, on the death of the father or grandfather, the suus heres was deemed ipso jure in possession of the inheritance (p. 426), so that, even if testamentary heirs were appointed, there was no possibility of their obtaining possession (i. e. making cretio). Nevertheless, as in Athens so in Rome, the power to make a will notwithstanding the existence of sui came ultimately to be acknowledged. In Rome the development of the law resulted in the adoption of the principle of an unrestricted testamentary power, and it was only in certain formal requirements of wills that the associations of the original substantial claims of the sui continued to live on. It is probable that, as in other branches of the law, so here, the ultimate result was not reached by any abrupt change, but by a series of intermediate modifications of the earlier doctrine'. However this may be, the outcome was that, with the obliteration of the notion of the sui being ipso jure in possession of the inheritance, the ancient conception of family ownership lost all practical influence and made way for patria potestas with its paramount power of disposition over the property and the members of the household. That such was the earliest history of the Roman law of succession by necessity is an assumption which is supported by the form in which that law is actually presented to us in the historical records of Roman law. So far as Roman law can be historically authenticated, the law of in case the latter intra pubertatem § 100, succession by necessity is, in its nature, either formal or material. It is formal in the sense that it affects the form of wills, by providing that every will shall contain either an institution or a disinherison of the heir by necessity, in other words, by providing that the testator shall make express mention of his heir by necessity. It is material in the sense that it affects the substance of wills, by providing that in every will the testator shall give his heir by necessity a certain portion-a 'statutory' portion-of his property, in other words, that the testator shall confer a material benefit on his heir by necessity. The earliest phase of development being closed, Roman law starts, in historic times, with a purely formal law of succession by necessity, and proceeds then to work out a material law of succession by necessity. Finally, under Justinian, a uniform system is effected by a fusion of the formal and material law. I. According to the civil law, the sui heredes are the only persons who have a right of succession by necessity, but their right is a purely formal one. That is to say, it is one of the formal requirements of a valid will that the sui heredes shall either be instituted or disinherited. If the testator wishes to dispose of his estate in favour of other persons, he must first expropriate those who are co-owners of his property (exheredes facere), for, unless he does so, his property is encumbered and incapable of free disposition in favour of others. In this requirement of exheredatio we have a last trace or, perhaps, in a certain sense, an acknowledgment of the rights of the family- the family of descendants, namely — as owners of the estate". In order to extinguish the claims of the family and to convert the property into the free and unrestricted property of the holder, an exheredatio is indispensable. And the law requires that a filius suus shall be disinherited 'nominatim,' i. e. by special mention; in the case of daughters and grandchildren, it is sufficient if the will contains the clause which every prudent Roman was in the habit of appending to the in Hölder says (ZS. d. Sav. St. vol. iii. p. 219): 'Like all acts of expropriation a testamentary exheredatio, being an act which extinguishes a private right in due legal form, implicitly recognises the existence of the right it extinguishes.' stitution of the heir: ceteri exheredes sunto ('exheredatio inter § 100. ceteros'). If the formal requirements of the law concerning the right of heirs by necessity were not satisfied, in other words, if a suus was passed over-being neither instituted nor disinherited ('praeteritio')-the result was different, according as the suus was a filius suus or otherwise. If a filius suus was passed over, the formal defect was fatal to the will and intestate succession took place. If other sui -daughters or grandchildren-were passed over, the will remained valid, but the sui praeteriti came in together with the heirs appointed in the will (scriptis heredibus adcrescunt); if the latter were extranei, the sui praeteriti took together one moiety of the estate; if they were sui, each suus took an equal share (portio virilis). Nor, again, is it sufficient, if the suus is disinherited or instituted on a condition—unless indeed the condition is one which merely depends for its fulfilment on the free option of the person conditionally instituted (a so-called 'condicio potestativa ')-he must also be instituted or disinherited for the event of the condition failing. If the testator has provided for the appointment of several 'degrees' of heirs by means of an institutio and substitutio (sup. p. 459), the suus who is not instituted must be expressly disinherited 'ab omnibus gradibus,' i. e. the testator must declare his intention to disinherit him both as against the institutus and the substitutus— for which purpose, amongst other modes, an exheredatio at the beginning of the will (ante heredis institutionem; will suffice. At the outset a difficulty arose in connection with the postumi sui (sup. p. 416), who, being personae incertae (p. 458), could neither be instituted nor disinherited. With regard, however, to such postumi as were born after the death of the testator ('postumi legitimi'), traditional usage invested them with testamenti factio passiva, and a lex Junia Velleja conferred the same capacity on postumi born in the life-time of the testator, but after the execution of the will ('postumi Vellejani'). And prior to the last-named enactment, the praetor Gallus Aquilius had devised a formula by which it became possible effectually to institute a grandson by a son, who was born § 100. after the execution of the will, but who became the suus heres of his grandfather in consequence of the death of his (the grandson's) father during the life-time of the testator ('postumi Aquiliani '). It was thus that postumi sui gradually became capable of being effectually instituted and disinherited. A postumus filius must be disinherited nominatim; in the case of other postumi, an exheredatio inter ceteros is sufficient; if, however, the testator uses a general clause of this kind, he is bound to leave the disinherited daughters and grandchildren a legacy, in order to show that in using the clause 'ceteri exheredes sunto,' he had not overlooked such postumi. Hence it was thought more prudent, even in the case of these other postumi, to disinherit them by express mention (nominatim). The praeteritio of a postumus suus-whether a son, a daughter, or a grandchild-operated in all cases to invalidate the entire will ('ruptio testamenti') and to produce an intestacy. II. According to the praetorian law not only the sui, but all the liberi (sup. p. 438), have a formal right of succession by necessity, the rule being that male liberi (sons and grandsons) shall be disinherited nominatim, an exheredatio inter ceteros sufficing only in case of female liberi. The effect of praeteritio in the praetorian law is a bonorum possessio contra tabulas (juris civilis corrigendi gratia); it does not, accordingly, operate to nullify the will, but merely gives rise to a legal remedy by means of which a praeteritus, who has actually obtained the bonorum possessio contra tabulas from the praetor, is enabled-by the aid of the remedies of a bonorum possessor, viz. the interdictum quorum bonorum and the hereditatis petitio possessoria-successfully to uphold, as against the testamentary heirs, his contratabular praetorian title to the amount of his intestacy share. Accordingly the testamentary institutions. of heirs, and all legacies and manumissions which are based on such institutions, fall to the ground. On the other hand, the appointments of guardians, the pupillary substitutions (p. 461, note 4), and, more especially, the disinherisons in the will remain in force. If, therefore, a person who has a right of succession by necessity is duly disinherited, the praetor will not admit him to the bonorum possessio |