BOOK III, Part III. Incertae personae have no capacity for inheritance; these are primarily juristic persons, in case capacity for inheritance has not been especially conferred upon them; and further, those persons of whose individuality the testator has no definite idea." To the latter belong also a Ulp. xxiv. 18. postumi; but those could be instituted who were born (postumi) sui' after the death of the testator, already Paul. iv. 8, 7. according to older civil Law-although not from the beginning, and those who were born 'sui' in his lifetime, after the making of the will, or had become 'sui' by the lapse of an intermediate person, according to the lex Iunia Velleia and the interpretation thereof. Justinian eventually permitted the institution of all incertae personae, including 'postumi alieni.' Ulp. xxii. 5, 6: Nec municipium nec municipes heredes institui possunt, quoniam incertum corpus est . . . Senatusconsulto tamen concessum est, ut a libertis suis heredes institui possint.Deos heredes instituere non possumus praeter eos, quos senatusconsulto constitutionibusve principum instituere concessum est.' Ib. § 4 Incerta persona heres institui non potest, velut hoc modo: QVISQVIS PRIMVS AD FVNVS MEVM VENERIT, HERES ESTO ; quoniam certum consilium debet esse testantis. Gai. ii. § 238: Incerta videtur persona, quam per incertam opinionem animo suo testator subiicit.3 hundred thousand asses, may yet take the inheritance bequeathed to her by way of fideicommissum. 1 Neither a municipality nor the burghers can be instituted heirs, since the body is an uncertain one. . . . A decree of the senate, however, has allowed them to be instituted heirs by their own freedmen.-We cannot institute the gods as heirs, except those whose institution has been allowed by the senate's decree or imperial constitutions. 2 An uncertain person cannot be instituted heir; for example, thus: Whoever shall first come to my funeral, let him be my heir,' since the institution of the testator must be definite. 3 An uncertain person appears to be one whom the testator brings before his mind without any definite idea (who he is). BOOK III. Ulp. Postumos autem dicimus eos dumtaxat, qui post mortem parentis nascuntur; sed et hi qui post testamentum factum in vita nascuntur. -D. 28, 3, 3, 1.' Gai. Postumorum loco sunt et hi, qui in sui heredis loco succedendo quasi adgnascendo fiunt parentibus sui heredes; ut ecce si filium et ex eo nepotem neptemve in potestate habeam, quia filius gradu praecedit, is solus iura sui heredis habet: . . sed si filius meus me vivo moriatur aut qualibet ratione exeat de potestate mea, incipit nepos neptisve in eius loco succedere et eo modo iura suorum heredum quasi adgnatione nanciscuntur.-1. 13 eod. Id. ii. § 242: Ne heres quidem potest institui postumus alienus: est enim incerta persona.— § 241 Est autem alienus postumus, qui natus. inter suos heredes testatoris futurus non est ; ideoque ex emancipato quoque filio conceptus nepos extraneus postumus est; item qui in utero est eius, quae iure civili non intelligitur uxor, extraneus postumus patris intelligitur." 1 Now we speak alone of those as posthumous who are born after the death of their parent; but such also are those who come into the world after the making of a testament. "In the position of posthumous persons are those also who by stepping into the place of a suus heres, as it were by agnation, become sui heredes to their parents; as, for instance, if I have a son and by him a grandson or granddaughter under my power; since the son comes before (the grandson) by one degree, he alone has the rights of a suus heres; but if my son die during my lifetime, or passes in any way from under my power, the grandson or granddaughter begins to step into his place. And in this way they acquire, as it were by agnation, the rights of sui heredes. 3 A posthumous stranger cannot even be appointed heir; for he is an indeterminate person. Now a posthumous stranger is a person who on birth will not be amongst sui heredes. And so a grandson conceived from an emancipated son is a posthumous stranger, likewise the unborn issue of her who is not regarded as wife by civil law is considered a posthumous stranger in respect of the father. BOOK III. Part III. Paul. Verum est omnem postumum qui moriente testatore in utero fuerit, si natus sit, bonorum possessionem a petere posse.-D. 37, II, 3.' a Sc. secundum The testator can nominate any number of heirs he likes. tabulas. Et unum hominem et plures in infinitum, quot quis velit, heredes facere licet.-Hereditas plerumque dividitur in duodecim uncias, quae assis appellatione continentur; habent autem et hae partes propria nomina ab uncia usque ad assem, ut puta haec sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as.§§ 4, 5, I. h. t. (=Ulp. 1. 50, § 2, D. h. t. 28, 5). The institution of heir can also take place subject to the addition of a 'suspensive' condition," but never-ex- D. 35, 1, 3; cept as to the testamentum militis-of a 'resolutory' condition, or of a dies ex quo or ad quem. (Semel heres, semper heres: PERPETUITY of the inheritance.) Heres et pure et sub condicione institui potest: ex certo tempore aut ad certum tempus non potest, veluti 'post quinquennium quam moriar' vel 'ex Kalendis illis' aut usque ad Kalendas illas heres esto'; diemque adiectum pro supervacuo haberi placet et perinde esse ac si pure heres institutus esset. 9, I. eod." 1 It is well founded that every posthumous person that shall have been in the mother's womb at the death of the testator, when he has been born, can claim the bon. poss. A man may appoint as heir either one person or as many as he pleases, without limitation.-An inheritance is generally divided into twelve unciae, which are included under the designation an as. Now these portions have special names, from the uncia up to the as, thus: sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as.o 28, 7, 9. e See Smith, s. Gr. sect. 189. 3 An heir may be instituted absolutely or conditionally: he is, or Roby, cannot be instituted from a certain time,' or 'to a certain time'; for instance, after five years from my death,' or 'from such Kalends,' or 'to such Kalends he shall be my heir;' and it is held that the date so added should be treated as superfluous, and that the heir was instituted absolutely. BOOK III. Part III. Ulp. Miles et ad tempus heredem facere potest et alium post tempus, vel ex condicione, vel in condicionem.-D. 29, 1, 15, 4.' § 160. SUBSTITUTIONS. The testator can in the institution of heir create several degrees, so that a second is nominated heir in the event of the first not being his heir-because he would not or could not be-and likewise a third in the place of the second, and so on (substituere,—primo, secundo, tertio gradu heredem scribere-primus, secundus heres). This eventual institution of heir is called SUBSTITUTION, 'substitutio vulgaris s. in primum casum.' : Mod. Heredes aut instituti dicuntur aut substituti instituti primo gradu, substituti secundo vel tertio.-1. I pr., D. h. t. (de vulg. et pup. subst. 28, 6). 2 Marcian. Potest quis in testamento plures gradus heredum facere, puta: Si ille heres non erit, ille heres esto,' et deinceps plures.-Et vel plures in unius locum possunt substitui vel unus in plurium, vel singulis vel singuli, vel invicem ipsi qui heredes instituti sunt.1. 36 eod.3 : Iul. Si Titius coheredi suo substitutus fuerit, deinde ei Sempronius, verius puto in utramque 1 A soldier can nominate an heir for a time, and another after the lapse of such time, or from (the fulfilment) of a condition, or until the fulfilment of a condition. 2 Heirs are called either instituted' or 'substituted': instituted, if in the first degree; substituted, if in the second or third degree. 3 A man can create several degrees of heirs in his testament; for example, 'If this one shall not be heir, that one shall be heir '; and several in succession.-And either several can be substituted in the place of one, or one in the place of several, or single heirs for single, or reciprocally those who themselves have been instituted heirs. partem Sempronium substitutum esse.-1. 27 If the institutus (primus heres) enters upon the inheritance, the substitution loses all significance. With the substitution it was still in the classical Law customary to connect the provision of the 'cretio perfecta or imperfecta-for the primus heres, that is, of a formal entry upon the inheritance within a definite interval." Gai. ii. § 174: Interdum duos pluresve gradus TOQVE IN DIEBVS CENTVM et reliqua ; et deinceps in Ulp. xxii. 34: Si sub imperfecta cretione 1 If Tit. shall have been substituted for his co-heir, and then Sempr. for Tit., I am of opinion that it is more correct that Sempr. is substituted for both parts. 2 Sometimes we create two or more degrees of heirs, in this way: Luc. Tit., be heir, and make your decision within the next hundred days after it comes to your knowledge and you are in a position to act. If you shall not accept, be disinherited. Then Maev., be heir, and decide within a hundred days whether you will act,' and so on; and we can in succession make as many substitutes as we wish. § Therefore the person nominated heir in the first degree by signifying his acceptance of the inheritance becomes heir, and the substitute is excluded. By not making such declaration, he is set aside, even though he act as heir, and the substitute steps into his place. BOOK III. a Gai. ii. 164-6. Ulp. xxii. 30-2. |