the fact of their being cognatic half-brothers and half-sisters, so that § 111. no distinction is made between consanguinei and uterini (supra, p. 469). Brothers and sisters of the half blood take in equal shares (successio in capita). If any of them have predeceased the intestate, the children step into the place of their parent by a right of representation, and take collectively (by a 'successio in stirpes') the share which their parent would have taken, if he had lived.

4. The fourth class consists of all the remaining collaterals. They. succeed according to proximity of degree. The praetorian rule by which the succession of collaterals was restricted to the sixth or, in one case (supra, p. 558), to the seventh degree, was abrogated. So far as collateral kinship can be proved at all, it may be urged in support of a claim to succeed, unless of course nearer relations intervene. As between these collaterals however there is neither a right of representation-the nearer degree absolutely shutting out the more remote one-nor is there a successio in stirpes, because several collaterals of the same degree invariably take in equal shares (in capita).

As between the several classes, the successio ordinum applies; that is to say, if no one belonging to the first class becomes heirthe persons entitled having either died (prior to aditio) or refused the succession-the estate devolves on the class next entitled. As between the several degrees within each class, the successio graduum applies; that is to say, if no one of the degree first entitled becomes heir, the estate devolves on the persons of the next degree.

The reforms effected by the 118th and 127th Novels only touched the succession of relations. The rules of the praetorian bonorum possessio unde vir et uxor continued to regulate the mutual succession of husband and wife, so that, in Justinian's law, the right of a husband or wife to succeed to his or her spouse remained postponed to that of all his or her relations. They were excluded by even the most remote collateral. Only a widow who was very poor and had no dos, was entitled, in Justinian's law, to certain claims against the estate of her husband, if the latter died in well-to-do circumstances. As against the relations of her husband, she was entitled to one

§ 111. fourth part of the estate, but if there were three or more children, she only took a 'portio virilis,' i. e. an equal share with the children. So far however as she thereby curtailed the shares of her own children, she did not acquire the ownership of her share, but only a usufruct in it. The right thus granted to a poor widow was one of which she could not be deprived even by the will of her husband.

The bonorum possessio unde vir et uxor represents, at the same time, the last remnant of the former praetorian rules of intestate succession which survived the law laid down in the 118th Novel. For the rest-as far as intestate succession was concerned-the dual system of hereditas and bonorum possessio had ceased to exist. Its removal was the result of a steady process of development from within, a development which culminated in the final displacement of the civil law system of succession in favour of the natural system championed by the praetor.

According to the law prior to the 118th Novel, when a filiusfamilias who had remained in the power of his father died, his entire property (including his peculium castrense and quasi castrense) reverted to his father jure peculii, just as though it had been the father's property all the time (supra, p. 504). The 118th Novel however provided that the estate of a filiusfamilias should devolve on his death in just the same manner as that of a paterfamilias. Accordingly it went in the first instance to the filiusfamilias' own children. The only difference was that the property which the children of a filiusfamilias took from their father was reckoned as bona adventicia, so that the grandfather, whose patria potestas extended to his grandchildren, had the usufruct and the management of it (supra, p. 505). In this matter too the 118th Novel represents the final consummation of a development extending over several centuries. The filiusfamilias having been declared capable of having heirs, his proprietary capacity was now complete. Thus the final recognition of the principle of cognatic intestate succession coincided with the final recognition of the complete proprietary capacity of the filiusfamilias. In both cases it was the civil law effects of the old conception of patria potestas that had yielded to the views of a different age.

Nov. 118 pr.: Quia igitur omnis generis ab intestato successio § 111. tribus cognoscitur gradibus, hoc est ascendentium et descendentium et ex latere, quae in agnatos cognatosque dividitur, primam esse disponimus descendentium.

c. I: Si quis igitur descendentium fuerit ei qui intestatus moritur, cujuslibet naturae aut gradus, sive ex masculorum genere sive ex feminarum descendens, et sive suae potestatis sive sub potestate sit, omnibus ascendentibus et ex latere cognatis praeponatur.

c. 2: Si igitur defunctus descendentes quidem non relinquat heredes, pater autem aut mater aut alii parentes ei supersint, omnibus ex latere cognatis hos praeponi sancimus. . . . Si vero cum ascendentibus inveniantur fratres aut sorores ex utrisque parentibus conjuncti defuncto, cum proximis gradu ascendentibus vocabuntur.

c. 3 pr.: Si igitur defunctus neque descendentes neque ascendentes reliquerit, primos ad hereditatem vocamus fratres et sorores ex eodem patre et ex eadem matre natos, quos etiam cum patribus ad hereditatem vocavimus. His autem non existentibus, in secundo ordine illos fratres ad hereditatem vocamus qui ex uno parente conjuncti sunt defuncto, sive per patrem solum sive per matrem. Si autem defuncto fratres fuerint et alterius fratris aut sororis praemortuorum filii, vocabuntur ad hereditatem isti cum de patre et matre thiis masculis et feminis, et quanticunque fuerint tantam ex hereditate percipient portionem quantam eorum parens futurus esset accipere, si superstes esset.—

c. 3 § 1: Si vero neque fratres neque filios fratrum, sicut diximus, defunctus reliquerit, omnes deinceps a latere cognatos ad hereditatem vocamus, secundum uniuscujusque gradus praerogativam, ut viciniores gradu ipsi reliquis praeponantur.

c. 4: Nullam vero volumus esse differentiam in quacunque successione aut hereditate inter eos qui ad hereditatem vocantur masculos ac feminas, quos ad hereditatem communiter definivimus vocari, sive per masculi sive per feminae personam defuncto jungebantur; sed in omnibus succes

§ 111.

§ 112.

sionibus agnatorum cognatorumque differentiam vacare praecipimus.

L. un. C. unde vir et uxor (6, 18) (THEODOS.): Maritus et uxor ab intestato invicem sibi in solidum pro antiquo jure succedant, quotiens deficit omnis parentum, liberorum, seu propinquorum legitima vel naturalis successio, fisco excluso.

§ 112. Testamentary Succession.

A will, in the form ultimately evolved by Roman law, is a unilateral juristic act by which a person institutes an heir and which takes effect as from the death of that person. It is unilateral (supra, p. 216), because it comes into existence solely by virtue of the will of the testator, a declaration of acceptance on the part of the instituted heir being neither necessary nor material. It does not take effect till death, because it is revocable as long as the testator lives. A second will necessarily operates to revoke the first; no one's estate can devolve by virtue of two wills. As between several wills the last one alone has legal validity. The necessary result of the last-made will is to offer the instituted heirs the entire inheritance, for 'nemo pro parte testatus, pro parte intestatus decedere potest' (supra, p. 529). The only persons who, in Roman law, were privileged to make a testamentary disposition of part of their inheritance were soldiers'. As regards the contents of a will, the essential part is the institution of the heir. If no heir is instituted, or if the institution fails in consequence either of the death of the heir, or of a disclaimer on his part, or for any other reason, the whole will is void. No will is valid which does not contain a valid institution of an heir. But in addition to the institution of the heir, a will may contain other dispositions designed to take effect on the death of the testator, such as manumissions (supra, p. 174), legacies, appointments of guardians; and the validity of all such dispositions depends on the validity of the institution of the heir.

A person who is qualified to execute a Roman will is said to have

1 Thus the rule is expressed more fully as follows: Nemo ex paganis pro

parte testatus &c. Paganus means a civilian as opposed to a miles.

'testamenti factio activa.' No one but a civis Romanus pater- § 112. familias with full capacity for all juristic acts has testamenti factio activa. A filiusfamilias can only dispose by will of his bona castrensia and quasi castrensia, in regard to which he stands in the same position as a paterfamilias. Impuberes, furiosi, and prodigi are not competent to make a will, because they lack capacity of action. A pubes minor, on the other hand, is competent to make a will, because he enjoys complete capacity of action (supra, p. 230). As long as the tutela mulierum was in force, women who were sui juris could only make a will with the auctoritas of their guardian; but the abolition of the tutela mulierum removed this restriction.

To have 'testamenti factio passiva,' on the other hand, is to be capable of being instituted heir or of being appointed legatee in a will. Testamenti factio passiva was a necessary incident of the jus commercii, i. e. of proprietary capacity according to the jus civile. In Justinian's law, where the antithesis of jus civile and jus gentium had disappeared, testamenti factio passiva was accordingly a necessary incident of proprietary capacity in general, in a word, of a man's personality as such (supra, p. 167). The only requirement was that the person instituted heir should be in existence at the death of the testator, at any rate as a nasciturus (supra, p. 170). In Justinian's law, the juristic persons of public law, such as the state, the church, or the communities, had testamenti factio passiva, but other juristic persons could only acquire it by special grant from the emperor (cp. p. 197, note 1). The incapacity to take as heirs or legatees which was imposed on certain classes of persons by positive enactments of a penal nature, necessarily involved a forfeiture of testamenti factio passiva (infra, p. 592).

The successive stages through which Roman wills passed in the course of their historical development will appear from the following exposition.

I. Wills in the Early Civil Law.

The only kind of will originally known to the early civil law was the 'testamentum calatis comitiis' 1a, i. e. a will made in the popular

1 As to the nature of the comitia calata v. Mommsen, Röm. Staatsrecht. vol. iii. p. 39.