BOOK III. Part III. a § 139. voluntatem agnovit is qui potestati subiectus est. —1. 25, § 4, l. 6, § 1, D. h. t.' (4) The inheritance, moreover, must be entered upon, just as it is offered, since partial entry or renunciation is contradictory to the principle of the totality of the inheritance. Paul. Qui totam hereditatem adquirere potest, is pro parte eam scindendo adire non potest.— 1. I eod. Ulp. Si ex asse heres destinaverit parten habere hereditatis, videtur in assem pro herede gessisse.-1. 10 eod.3 Marc. Respondit nihil actum esse, cum ex semisse scriptus heres ex quadrante per errorem adiit hereditatem.-1. 75 eod.* Ulp. Sed etsi quis ex pluribus partibus in eiusdem hereditate institutus sit, non potest quasdam partes repudiare quasdam adgnoscere.—1. 2 eod." $172. CAPACITY FOR ACQUISITION OF THE INHERITANCE. Capacity to inherita is the pre-requisite of a valid delatio, whilst capacity of the person called to acquire an inheritance is the pre-requisite of the acquisition. 1 The order of the pat. fam. must precede.-But in respect of bon. poss., it has been held that the act of a son subject to power who has laid claim to the bon. poss. against the wish (of the pat. fam.) can be confirmed (by him). 2 A person capable of acquiring the whole inheritance cannot by dividing it enter upon it only for a part. 3 If a universal successor have purposed to hold a part of the inheritance, he is considered to have acted as heir for the whole inheritance. 4 His answer is: Nothing was accomplished, because the heir designated for one half entered upon the inheritance by mistake for one fourth. 5 But although a man have been instituted for several parts in one and the same person's inheritance, he cannot renounce some parts and lay claim to others. The capacity to acquire a testamentary inheritance, or a legacy, was taken away from the following persons (incapaces). BOOK III. Part III. According to the lex Iulia et Papia Poppaea," as a § 44, ad fin. incapaces in respect of the testaments of all persons not related to them at the least in the sixth (to the seventh) degree, and of the next affines were (1) caelibes,' entirely. Gai. ii. § 286: Caelibes (2) 'orbi,' to the extent of half of that which is left to them. Gai. ii. § 286: Item orbi per legem Papiam dimidias partes hereditatum legatorumque perdunt.3 (3) Childless spouses, as between each other for certain portions; in which, however, many exceptions obtained, especially such as were founded on the 'ius liberorum.' Ulp. xv. I: Vir et uxor inter se matrimonii nomine decimam capere possunt; quodsi ex alio matrimonio liberos superstites habeant, praeter 1 Unmarried persons are forbidden by the l. Iulia to take inheritances and legacies. 2 If a man from any cause have forborne to take a testamentary gift, although it was bequeathed to him in such way that he could take it by civil law, it is called a Lapse, as if it had slipped from him; for example, if a legacy be left to an unmarried man, or to a Junian Latin, and either the unmarried man has not within one hundred days complied with the statute, or the Latin has not obtained Roman citizenship. 3 Childless persons, by the 1. Papia, lose one half of their inheritances and legacies. decimam, quam matrimonii nomine capiunt. totidem decimas pro numero liberorum accipiunt. -xvi. 1 Aliquando vir et uxor inter se solidum. capere possunt, velut si etc.a Libera inter eos testamenti factio est, si ius liberorum a principe impetraverint." According to the 1. Iunia, Latini Iuniani were incapaces. § 173. IN IURE CESSIO TRANSMISSIO HEREDITATIS. The delatio of the inheritance avails only for him personally that is called, so that he alone can enter upon the inheritance; but there are two exceptions to this. (1) The person, as a rule the proximus adgnatus (the suus and necessarius being excepted), whose right of inheritance was offered to him ab intestato, could still in the Classical Law, by means of 'in iure cessio' of such inheritance not yet acquired, transfer it to another person in such way that the cessionary was by the Praetorian addictio acknowledged as the actual heir. The want of an heir,d which was apt to arise, was thereby at the same time obviated. The in iure cessio of the inheritance already taken up effected only the transfer of the several things composing such inheritance, and resulted, moreover, in the transfer of its obligations, whilst the in iure cessio of an inheritance first 1 A husband and wife may receive one-tenth of each other's estate, on the strength of their marriage. But if either of them have children by another marriage surviving, they can, besides the tenth on the ground of their marriage, take as many mere tenths as is the number of their children.-Sometimes a husband and wife can receive from each other the whole inheritance, for example, if &c.—They have unrestricted testamentary capacity as between themselves if they have obtained from the Emperor the privileges accompanying issue. offered ex testamento was already rebutted by the juristic character of that legal act." a init. BOOK III. Gai. ii. §§ 34-7: Hereditas quoque in iure Cf. § 97, ad cessionem recipit. § Nam si is ad quem ab intestato legitimo iure hereditas pertinet, in iure eam alii ante aditionem cedat, id est antequam heres exstiterit, proinde fit heres is cui in iure cesserit, ac si ipse per legem ad hereditatem. vocatus esset post obligationem vero si cesserit, nihilominus ipse heres permanet et ob id creditoribus tenebitur, debita vero pereunt eoque modo debitores hereditarii lucrum faciunt; corpora vero eius hereditatis proinde transeunt ad cum cui cessa est hereditas, ac si ei singula in iure cessa fuissent. § Testamento autem scriptus heres ante aditam quidem hereditatem in iure cedendo eam nihil agit; postea vero quam adierit si cedat, ea accidunt quae proxime diximus de eo, ad quem ab intestato legitimo iure pertineat hereditas, si post obligationem in iure cedat. § Idem et de necessariis heredibus diversae scholae auctores existimant, quod nihil videtur interesse, utrum aliquis adeundo hereditatem fiat heres, an invitus existat; . . . sed nostri preceptores putant, nihil agere necessarium heredem, cum in iure cedat hereditatem.' 1 An inheritance also admits of surrender in court. § For if he to whom an inheritance under intestacy belongs by statutelaw makes a surrender of it to another before entry, i.e., before he has become heir, the surrenderee becomes heir, just as if he himself had been called by law to the inheritance. But if he have made a surrender of it after incurring liability, he still himself remains heir, and will therefore be liable to the creditors, but the debts are extinguished, and in that way debtors to the inheritance are gainers; the corporeal things, however, belonging to such inheritance pass to him to whom the inheritance has been surrendered, just as if they had been surrendered to him one by one. § But if the heir appointed by testament make a surrender to another before actual entry on the inheritance, he effects nothing; whilst if he surrender it after entry, BOOK III. a Sc. ad heredes. The delatio is regularly uninheritable. Imp. Iust. Hereditatem, nisi fuerit adita, transmitti a nec veteres concedebant nec nos patimur.-C. 6, 51, 1. un. § 5. But already in the Classical Law extraordinary relief was given in certain cases, where the person called was by no fault of his own-especially by legal obstacles not affecting him personally-temporarily prevented from entering upon the inheritance which Cf. D. 29, 2, had been lawfully offered to him, and had died during this period; and to his heirs by means of a decree of the Praetor. 84. eSc. ad hereditatem eius ex SC. Orph. Ulp. Si ea sit mater, de cuius statu dubitatur, utrum materfamilias sit an filiafamilias, ut puta quoniam pater eius ab hostibus captus sit, si certum esse coeperit matremfamilias esse, liberi admittentur; unde tractari potest, an medio tempore dum status pendet, succurri eis a praetore debeat, ne si medio tempore decesserint, nihil ad heredem transmittant: et magis est ut subveniatur, ut in multis casibus placuit.-D. 38, 17, 1, 1.3 the results are the same as those of which we have just spoken in respect of one to whom an inheritance on an intestacy belongs by statute-law, if he make a surrender after incurring liability. § The authorities of the opposite school think the same, as to heredes necessarii, from its seeming immaterial whether a man becomes heir by entering upon an inheritance, or becomes heir against his will. . . . But our teachers are of opinion that the heres necessarius does a void act when making a surrender of the inheritance. 1 Save as entry shall have been made upon it, neither did the ancients allow nor do we suffer the transmission of an inheritance. 2 If she be a mother concerning whose status doubt exists, whether she is a mat. fam. or a filia fam., for example, because her father has been captured by the enemy, her children will be admitted (i.e., to her inheritance, by the SC. Orph.) when it is once certain that she is a mat. fam. From this the question can arise whether relief must be afforded them by the Praetor in the interval during which the status is in suspense, lest if they die in the meantime, they should transmit nothing to their heir; and the fact is rather that relief is to be given, as has been held in many cases. |