3. De verbis fidei commissorum, p. 186. See the above cited note to 1 Caine's N. York rep. 85. and the note to Doe v. Aldridge, 4 Term rep. 265.

Tit. XXV. Codicillorum origo, p. 187. Formerly codicils made before a will were void. After trusts began to be favoured, they were considered as sufficient to support a trust; if not actually repealed by a subsequent will. But when Justinian put legacies and trusts on the same footing, either the one or the other might be given by a codicil, whether before or after a will, or by an intestate. But the institution of an heir can only be by will.

Codicillorum jus.] The word codicillus, or codicil, is a diminutive from codex, a book; and denotes any unsolemn last will, in which no heir or executor is named. "Codicilli dicti sunt parvi codices; id

"est, tabellæ ex codicibus aut ligno. Itaque, quemadmodum testa"mendum codex, appellatur,

"Codice sævo

"Hæredes vetat esse suos, &c. Juv. Sat. 10. quia testamentum in "codicibus tantum scribebatur, sive tabulis grandioribus, ita voluntas suprema, minus solemnis aut plena, codicilli, et aliquando numero “unitatis codicillus; propterea quod scribi solita erat in codicillis, id "est, tabulis brevioribus et tenuioribus, ita factis, ut facile, quo cuiHeineccio autem judice,

que commodum esset, circumferri possent. "codicilli apud veteres sunt epistolæ vel scripturæ ad alios missæ: "quia ergo codicilli plerumque perscribebantur in forma epistolarum, "hinc et nomen retinuerunt." Vinn.

§ 1. Codicilli fieri possunt, vel ante, vel post, &c. p. 188.

Non tantum testamentum.] "It is granted of all, [says Swinburn] "that a codicil may be made either by him, who died intestate, or by "him, who died with a testament. If the codicil is made by a per"son, who dies intestate, the legacies therein must be paid by him, "who shall have the administration of the goods of the deceased, with "the codicil or testamentary schedule annexed. And, if a codicil is "made by him, who hath also made a regular testament, then, whether "it was made before or after the testament, it is to be reputed as part "and parcel of the testament, and it is to be performed as well as the "testament; unless, being made before the testament, it appears to be "revoked by the testament, or to be contrary to that, which is contain"ed in the testament." Swin. part 1. sec. 5.

"Codicilli et ab intestato confici possunt, et facto testamento. Ab "intestato facti suis ipsis viribus nituntur et vicem testamenti exhi "bent: proinde quicunque intestati successor erit, sive legitimus, sive

"honorarius, etiam postea natus, codicillis relicta præstabit. Testa❝mento autem condito, codicilli, quocunque tempore facti fuerint, ad "testamentum pertinent, viresque ex eo capiunt, etiamsi in eo confir"mati non sint ; et infirmato testamento codicilli concidunt. Hud ve❝ro interest inter codicillos testamento nominatim confirmatos et nor "confirmatos, quod illis relicta etiam directo jure valent, veluti lega"ta et libertates directo data; perindeque omnia habeantur, ac si in "testamento scripta essent, excepta causa hæreditatis; at, quæ co"dicillis non confirmatis relicta sunt, sive verbis directis sive preca

riis, debentur jure fidei-commissi. Sed non est, quod de his am"plius dicamus; cum enim confusa nunc sit legatorum et fidei-com"missorum natura, dubitandum non est, quin legata, codicillis etiam "non confirmatis data directo, nunc valeant." Vinn.

§ 2. Codicillis hæreditas directo dari non potest, p. 188.

But it can be given indirectly as if a testator by codicil, charges his testamentary heirs to renounce in favour of the fidei-commissary of his codicil: Dig. de hered. inst. 77. Dig. de condit. instit. 10. And in one case there may be a direct substitution by codicil, as in Dig. ad senat. consult. Trebell. 76, where a direct pupillary substitution is converted into a trust benigna interpretatione. Heirship then, as it cannot regularly be given, cannot be taken away by codicil, which does not suffice for disinherison direct or conditional.

Codicillis autem hæreditas. Groenewegen, in his book of abrogated laws, says, that the distinctions between testaments and codicils have now ceased to be observed almost every where. Eandem enim ordinationis solemnitatem requirunt, atque ita suprema Hollandiæ curia censuit; et confusis eorum nominibus hæredi institutionem ad substantiam testamenti necessariam esse negant pragmatici; hinc quoque codicillis hæreditatem directo dari et adimi, ideoque et exhæredationem scribi, moribus nostris nil vetat. Groenew. de 11. abr. in Inst. 2. t. 21.

In England the appointment of an executor makes the only difference between a testament and a codicil; and this difference is little more than nominal; for whatever may be done by the one, may be also done by the other; so that a condition may be imposed, an estate may be given, or an heir disinherited, as well by codicil as by testament; and even lands may be disposed of by a codicil, if it is signed by the deceased, and attested by three witnesses in his presence, though the deceased left no testament; (for a codicil, in its true sense, denotes any testamentary schedule, and may stand singly, without relation to any other paper ;) and, even where there is a testament, disposing of real estate, that testament may be altered or revoked by a codicil pro

perly executed. And, where personal estate only is bequeathed, the same degree of proof, (and it has already been said what degree of proof is sufficient,) will establish either a testament or a codicil; and the one may revoke or confirm the other, either wholly or in part, according to its respective contents. Harris.

§ 3. De numero et solemnitate, p. 189.

A will, by the Roman law, is revoked by a subsequent will: a codicil is not revoked by a subsequent codicil. Hence there may be many valid codicils if they be not contradictory. A will is necessary to an heir, and an heir to a will, but it is not so with a codicil. The latter also required fewer ceremonics than a will. But a woman could not witness a codicil any more than a will.

Nullam solemnitatem. When it is said, that no solemnity is requir ed in making a codicil, the compilers of the institutions must be understood to mean no extraordinary solemnity, as that of bringing seven witnesses to subscribe it, as in case of a testament: for it is necessary by the civil law, that a codicil should be supported by five witnesses; Cod. 6. t. 36. l. 8, which is the ordinary number required to attest several other translations. Cod. 4. t 20. 1. 28. But, in England, there is in this respect no distinction between a testament and a codicil; for either may be supported by an equal number of witnesses: two are regularly required to a testament, and the same number is also required to a codicil; but, if either a testament or a codicil, contains a devise of a real estate, three witnesses are indispensably necessary by act of parliament. vid. 29 Car. 2. cap. 3. Harris.

LIB. III. Titul. I. De hereditatibus, quæ ab intestato deferuntur, p.

191.

The preceding book treats of Wills: the present of Intestacies; and the order of Succession, in cases where a man dies leaving property, but no will.

The 118th Novel, which still remains a part of the law of England on this subject, in cases not otherwise decided or provided for, has altered the doctrine laid down in this book of the Institutes; so that a brief history of the changes which the Roman law has undergone on the subject of successions ab intestato, will be more than expedient. I am chiefly indebted for the present preliminary remarks, to those which Ferriere has prefixed to the third book of the Institutes.

By the law of the 12 tables, there were but two classes of legitimate heirs sui hæredes, or proper heirs, and agnati or paternal heirs, the last succeeding only in default of the others.

1

A suus hæres, was required to be a descendant in the first degree from the intestate in a direct line, and to have been in the power of the intestate, at the time of his decease; hence the children of a deceased son who shared with the uncle, were sui hæredes to the uncle by representation only. § de heredit. quæ ab intest. defer.

The prætors and the emperors altered the law of the twelve tables. The prætors called to the succession emancipated children per bonorum possessionem unde liberi, on condition that they brought into hotchpot the property acquired during emancipation; so that the whole might be subject to an equal division among all the children of the deceased. 9 eod tit.

The imperial constitutions placed the children of deceased daughters in the rank of proper heirs, on condition that when they shared with proper heirs, they should take one third part less, and when with agnates, a fourth part less. ult. ibid.

In default of proper heirs, agnates or collaterals on the male side, were called as consanguine brothers, (born of the same father) paternal uncles and grand uncles, and their children, and other descendants of the paternal line, who had not quitted the family by any change of

state.

Hence, in defect of proper heirs, the law of the twelve tables called the nearest agnate to the succession, without distinction of sex: herein observing, that there was no right of representation among agnates, but the nearest excluded all the rest; and also, that if the nearest agnate renounced, the succession did not go to the next in order, but escheated to the treasury.

The jurisprudence of the middle age, retrenched from the disposition of the 12 tables, excluding all females from the succession, except sisters, and preferring more distant males. Vid. Vinn. § 3. de legitima agnat, success.

As the law of the 12 tables called up the nearest agnate only, if there were none such, or he renounced, the property escheated. But the prætorian law, moderated this rigour, and in these last mentioned cases, admitted the nearest cognates per bonorum possessionem, unde cognati: and still further, in defect of agnates and cognates, the husband or wife surviving, succeeded to the exclusion of the treasury, per bonorum possessionem unde vir et uxor.

According to the above account, the father was not considered as agnate to his emancipated son; but Justinian by the last law of Cod. de emancip. liber. disregarded the circumstance of emancipation. Al so the mother could not rank with the agnates of the son, nor the

daughter with the agnates of the mother; but the prætor admitted them reciprocally to succession ex ordine cognatorum, puta per bonorum possessionem unde cognati. But by the Senatus Consultum Trebellianum, a mother of several children was ranked in the first degree of agnation to her son, in default of 1st, proper heirs of the deceased: 2ndly, the father of a deceased son or daughter: 3rdly, the consanguine brother of the deceased, i. e. by the same father: the mother was admitted jointly with a consanguine sister, (a sister by the same. father); but this underwent some changes, which will be noted.

Finally, by the Orphitian Senatus Consultum, under Marcus Aurelius, the sons and daughters of a mother, were preferred to all the agnates of the mother, without excepting even brothers born of the same fathers.

These Senatus Consulta, regarded also the claims of children born. out of wedlock.

These remarks relate to the five first titles of the present Book of the Institutes.

We come next to succession in cases of Intestacy, under the 118th Novel, which establishes three degrees of legitimate succession, descendants, ascendants, and collaterals. And first of Descendants.

It calls to the succession all legitimate children without distinction; so that sons and daughters, grand-sons and grand-daughters exclude uncles or others in the ascending line, except as to the property acquired by the deceased for the father by virtue of the paternal power: for the usufruct granted to the father of certain property acquired by and belonging to the son, was preserved to the father. Without considering also any difference of state or quality of such children, whether under power or not at the death of the deceased; without regard to difference of sex or age, and of course neglecting all consideration of primogeniture. Without regard also, whether the descendants claimed from the male or female side, and without consideration of degree; enquifing only, whether they were in the direct line descending.

This Novel altered the former law in the following points.

1st. In making no difference, whether the deceased were under power as a filius familias, emancipated, or pater familias, at the time of his decease: under the previous law, the uncle succeeded to an intestate filius familias, in exclusion of the children, except in military and quasi military property; peculium castrense et quasi castrense; as the Institute remarks in the title Quibus non est permissum facere testamentum and all adventitious property belonged by right of peculi