I both pan frot par It might he was not ne 282 LIB. II. TIT. XIV. the testament derived its force from the institution, it was considered that the institution ought to be put at the head or top of the testament, and any legacy or other disposition placed before it was passed over, and had no effect. An exception was made in behalf of an appointment of a tutor (see Bk. i. Tit. 14. 3); and the clause in which the testator disinherited his sui heredes was naturally placed before that in which he instituted testamentary heirs. Justinian, as we shall see in the 20th Title, paragr. 34, enacted that, provided the institution appeared in some part of the testament, it should be immaterial in what part it might be placed. Any one might be instituted, and consequently take as heir, who had the rights of a citizen, or, as it was technically termed, who had the testamenti factio cum testatore, i. e. the power of joining with the testator in going through the ceremonies of the jus Quiritium. It was not enjoyed by peregrini, deportati, dedecitii, nor by the Latini Juniani, unless they became citizens before entering on the inheritance. Women were prevented by the lex Vocomia (585 A.U.c.) (GAI. ii. 274), unmarried persons by the lex Julia, and orbi (childless persons) by the lex Papia Poppæa, from being instituted. Neither could any uncertain person be instituted, nor any corporate body, or any of the gods, except those in whose favour, as the Tarpeian Jupiter (ULP. Reg. 226), a special exception had been made by a senatus-consultum. All these distinctions had ceased in the time of Justinian, and none of those we have mentioned, except peregrini and persons who had lost their civil rights by deportatio, were excluded. There were still, however, some to whom the capacity for institution was specially denied, such as the children of persons convicted of treason (C. ix. 8. 5. 1), apostates and heretics (C. i. 7. 3), children of, and parties to, prohibited marriages. (C. v. 5. 6.) A second husband or wife could not be instituted, when there was issue of the first marriage (C. v. 9. 6); nor natural, where there were legitimate, children. (C. v. 27. 2.) If a person instituted his own slave, this was held to give the slave his liberty by necessary implication. If he instituted the slave of another, the slave took the inheritance for his master's benefit, provided the master had the testamenti factio with the testator; but if he had not, the institution of the slave was void. In the law before Justinian, enfranchisement by a person, who had only a bare property in a slave, was not held to confer freedom, a proprietatis domino manumissus liber non fit, sed servus sine domino est. (ULP. Reg. 1. 19.) Under Justinian the slave became free, and could acquire for himself, and could take as heir; but he was obliged to serve as slave to the usufructuary, during such time as the usufruct continued. The slave accused of adultery with his mistress might be subjected, as all slaves might, to the torture, to extract evidence of his guilt. If he had been enfranchised, he would have escaped this, and thus the mistress might have defeated justice, unless she had been restrained from using her power of enfranchising him. 1. Servus autem a domino suo heres institutus, si quidem in eadem causa manserit, fit ex testamento liber heresque necessarius; si vero a vivo testatore manumissus fuerit, suo arbitrio adire hereditatem potest, quia non fit necessarius, cum utrumque ex domini testamento non consequitur. Quod si alienatus fuerit, jussu novi domini adire hereditatem debet, et ea ratione per eum dominus fit heres; nam ipse alienatus neque liber neque heres esse po. test, etiamsi cum libertate heres institutus fuerit; destitisse enim a libertatis datione videtur dominus, qui eum alienavit. Alienus quoque servus heres institutus, si in eadem causa duraverit, jussu ejus domini adire hereditatem debet: si vero alienatus fuerit ab eo, aut vivo testatore, aut post mortem ejus antequam adeat, debet jussu novi domini adire ; at si manumissus est vivo testatore vel mortuo antequam adeat, suo arbitrio adire hereditatem potest. 1. A slave instituted heir by his master, if he remains in the same condition, becomes, by virtue of the testament, free and necessary heir. But, if his master has enfranchised him before dying, he may at his pleasure accept or refuse the inheritance, for he does not become a necessary heir, since he does not obtain both his liberty and the inheritance by the testament of his master. But, if he has been alienated, he must enter on the inheritance at the command of his new master, who thus through his slave becomes the heir of the testator. For a slave once alienated cannot gain his liberty, or himself take an inheritance by virtue of the testament of the master who alienated him, although his freedom was expressly given by the testament; because a master who has alienated his slave, has shown that he has renounced the intention of enfranchising him. So, too, when the slave of another is appointed heir, if melitution he remains in slavery he must take the inheritance at his master's bid- I olam ding; and if the slave be alienated in the lifetime of the testator, or after his death, but before he has actually nothing wint taken the inheritance, it is at the command of his new master that he must accept it. But, if he be en franchised during the lifetime of the Hauss master testator, or after his death, and before he has accepted the inheritance, he may enter upon the inheritance or not, at his own option. GAT. ii. 188, 189. It was necessary that the heir, as being the person who carried on the legal existence of the testator, should be possessed of civil rights. If, then, a slave of the testator was instituted, as it was in the power of the testator to make him free, and he had invested him with a character requiring freedom, this institution was considered to involve his freedom. The slave of any one else, if instituted, was only a channel by which his master, if possessed of civic rights, acquired the inheritance. (See Bk. i. Tit. 6. 1.) If a slave of the testator were instituted his heir, and remained his slave at the time of the testator's death, the slave, immediately upon the testator dying, became his heres necessarius, that is, became his heir without any option of refusing or taking the inheritance. But if it were given under any condition, and the condition failed, the institution then became invalid. If the slave instituted did not belong to the testator at the time of the testator's death, his condition at the time of his taking on him the inheritance (aditio hereditatis) determined for whom the inheritance was acquired. If at that time he was a slave, he acquired it for the person who was then his master; if free, for himself. Disposing of the slave to another revoked the gift of liberty, because this was considered as a legacy, a mere accessory to the inheritance, to revoke which anything was sufficient, which showed a change of intention on the part of the testator; but it did not revoke the institution, because this was the keystone of the testament, and could only be revoked by a new testament, or destruction of the old one. 2. Servus autem alienus post domini mortem recte heres instituitur, quia et cum hereditariis servis est testamenti factio: nondum enim adita hereditas personæ vicem sustinet, non heredis futuri, sed defuncti; cum etiam ejus qui in utero est, servus recte heres instituitur. 2. The slave of another may be instituted heir even after the death of his master, as there is testamenti factio with slaves belonging to an inheritance; for an inheritance not yet entered on represents the person of the deceased, and not that of the future heir. So, too, the slave even of a child in the womb, may be instituted heir. D. xxviii. 5. 31. 1; D. xxviii. 5. 64. After the death of a testator, and before the inheritance was entered on, the inheritance itself represented the person of the deceased, as it did that of an unborn child until the birth. A slave, during this interval, was said to belong to the inheritance, and if a testament was made by any one instituting as heir a slave belonging to the inheritance, the slave took the inheritance thus given him for the benefit of that inheritance to which he belonged. And that he should do so, it was not necessary that the person by whose testament he was instituted heir should have testamenti factio with the future heir, but it was only necessary that he should have it with the testator to whose inheritance the slave belonged. 3. Servus plurium cum quibus testamenti factio est, ab extraneo institutus heres unicuique dominorum cujus jussu adierit, pro portione dominii acquirit hereditatem. 3. If a slave belonging to several masters, all capable of taking by testament, is instituted heir by a stranger, he acquires a proportion of the inheritance for each master by whose command he took it, corresponding to the several interests they each have in him. D.-xxix. 2. 67, 68. If the slave were instituted heir by one of his masters, then, if this master expressly gave him his freedom, he became the heres necessarius of the master instituting him, and free; a due proportion of the price at which he was valued being paid to each of his other masters. But if his liberty were not expressly given him, the share which the testator had in him accrued proportionately to all those of his masters by whose orders he entered on the inheritance. (See Tit. vii. 4 of this Book.) 4. Et unum hominem et plures in infinitum, quot quis velit, heredes facere licet. 5. Hereditas plerumque dividitur in duodecim uncias, quæ assis appellatione continentur. Habent autem et hæ partes propria nomina ab uncia usque ad assem, ut puta hæc: uncia, sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as. Non autem utique duodecim uncias esse oportet, nam tot unciæ assem efficiunt, quot testator voluerit; et si unum tantum quis ex semisse, verbi gratia, heredem scripserit, totus as in semisse erit: neque enim idem ex parte testatus et ex parte intestatus decedere potest, nisi sit miles cujus sola voluntas in testando spectatur. Et e contrario potest quis, in quantascumque voluerit plurimas uncias, suam hereditatem dividere. 4. A testator may appoint one heir or several, the number being quite unrestricted. 5. An inheritance is generally divided into twelve ounces, comprehended together under the term of an as, and each of these parts, from the ounce to the as, has its peculiar name, viz. uncia, sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as. But it is not necessary that there should be always twelve ounces, for an as may consist of as many ounces as the testator pleases. If, for example, a man name but one heir, and appoint him ex semisse, i. e. the heir of six parts, then these six parts will make up the whole as; for no one can die partly testate and partly intestate, except a soldier, whose intention in making his testament is alone regarded. Conversely, a testator may divide his estate into as many ounces more than twelve as he thinks proper. D. xxviii. 5. 50. 2; D. xxviii. 5. 13. 1, and seq.; D. xxix. 1. 6. In making a testament, where the testator wished to give different shares to his heirs, the singular system, alluded to in the text, was often adopted. The testator did not give a fifth, The real rum g ponderous method of Calculation by the division of the "as" was the difficulty of expressing vulgar pactions i in Roman Mummals Me as was made the mit fil then was any differently from the beg a won int mere pto tran મો there was fewn the the pto git an dispona a fourth, &c., to each heir, but gave so many parts, e. g. five or four parts, to one heir and so many more to another. The number of parts given to each were added up, and the total formed the number of which these parts were taken to be a fraction. For instance, if a testator gave to A five parts, to B six, and to C two, the whole number amounting to thirteen, A took five-thirteenths, B six-thirteenths, and C two-thirteenths. So far all was simple, but a greater complication was introduced by adopting, conjointly with this calculation of parts, a mode of reckoning derived from the familiar measure of the as, or pound-weight, and its division into twelve ounces. The hereditas was considered to be represented by the as, and the parts by the ounces. But the testator had the power of determining how many ounces there should be in this imaginary pound. In the instance above given, the as contains thirteen unciæ. But supposing the testator assigned a certain number of parts to some of his heirs, and not to others; as, to A five parts, to B six parts, and then made C a co-heir, but without assigning him any number of parts; the law supposed the testator to have divided his pound into twelve ounces as the standard number, and gave the heir to whom no number of parts was assigned such a number as made up the as. In this instance, therefore, C would have one ounce or part. But if the whole number of parts expressly given exceeded twelve, then the testator was supposed to have been measuring out his inheritance by the double as (dupondius), and the heir to whom no express number was given took the number of parts wanting to make up 24. If the parts expressly given exceeded 24, then the tripondius, containing 36 ounces, was the measure, kull up the and so on. The testator never died only partly testate; for whatever he gave was taken to make up the whole inheritance. wint If his testament only disposed of a portion of his property in the way mentioned in the text, viz. by his only giving six ounces (semis) to his heir, and his instituting only one heir, six was considered to be the number of ounces he wished to have in the as, and, therefore, he died testate as to all his property. If he did not use any expression referring to the parts of an as, but gave his heir specific things, having other property besides, what he did give was considered to represent what he did not give; as, for instance, if a man possessed large estates, and made A his heir, giving him one farm, and named no other heir, A took all his property; for this one farm was taken to be a description of the whole. The as was thus divided: uncia, one ounce; sextans, onesixth of an as, or two ounces; quadrans, one-fourth, or three ounces; triens, one-third, or four ounces; quincunx, five |