ounces; semis, one-half, or six ounces; septunx, seven ounces; bes, contracted from bis triens, eight ounces; dodrans, contracted from de quadrans, the as minus a quadrans, nine ounces; dextans, contracted from de sextans, ten ounces, and deunx, eleven ounces. 6. Si plures instituantur, ita demum partium distributio necessaria est, si nolit testator eos ex æquis partibus heredes esse; satis enim constat, nullis partibus nominatis, ex æquis partibus eos heredes esse. Partibus autem in quorumdam personis expressis, si quis alius sine parte nominatus erit, si quidem aliqua pars assi deerit, ex ea parte heres fiet; et si plures sine parte scripti sunt, omnes in eadem partem concurrent. Si vero totus as completus sit, in dimidiam partem vocantur, et ille vel illi omnes in alteram dimidiam: nec interest primus an medius an novissimus sine parte heres scriptus sit; ea enim pars data intelligitur, quæ vacat. 6. If several heirs be appointed, it is not necessary that the testator should specify their several shares unless he intends that they should not take in equal portions. For if no division is made, the heirs clearly take equal portions. But if the shares of some should be specified, and another be named heir without having any portion assigned him, he will take the fraction that may be wanting to make up the as. And if several be instituted heirs without having any portion assigned them, they will all divide this fraction between them. But, if the whole as be given among those whose parts are specified, and there be then no fraction left, then they whose shares are not specified take one moiety, and he or they whose shares are specified the other moiety. It is immaterial whether the heir, whose share is not specified, hold the first, middle, or last place in the institution; it is always the part not specifically given that is considered to belong to him. D. xxviii. 5. 9. 12; D. xxviii. 5. 17, pr. and 3, 4; D. xxviii. 5. 20. From this paragraph we may add one more detail of the system pursued in calculating the parts of the inheritance. If the number of parts expressly given amounted exactly to twelve, and there was an heir instituted to whom no parts were given, as the parts given neither fell short of the as, nor broke into the dupondius, it was necessary to make some arbitrary regulation on the subject; and that adopted was, that the parts expressed should be taken to be equal to those not expressed; and these twelve expressed parts should cover one-half the inheritance. 7. Videamus, si pars aliqua vacet, nec tamen quisquam sine parte sit heres institutus, quid juris sit, veluti si tres ex quartis partibus heredes scripti sunt? Et constat vacantem partem singulis tacite pro hereditaria parte accedere, et perinde haberi ac 7. Let us inquire how we ought to decide in case a part remains unbequeathed, and yet each heir has his portion assigned him: as, if three should be instituted, and a fourth part given to each. It is clear, in this case, that the undisposed part si ex tertiis partibus heredes scripti essent; et ex diverso si plures in portionibus sint, tacite singulis decrescere, ut si verbi gratia quatuor ex tertiis partibus heredes scripti sint, perinde habeantur ac si unusquisque ex quarta parte scriptus fuisset. would be divided among them in proportion to the share bequeathed to each, and it would be exactly as if each had had a third part assigned him. And, on the contrary, if several heirs are instituted with such portions as in the whole to exceed the as, then each heir must suffer a proportionate diminution; for example, if four are instituted, and a third be given to each, this would be the same as if each of the written heirs had been instituted to a fourth only. D. xxvii. 5. 13. 2, and seq. In this section the division of the inheritance is into definite fractional parts, as one-third, one-fourth, one-fifth, a division the testator was always at liberty to adopt. If we were to use the terms derived from the as, and state the same case as that stated in the text, we should say, that if the testator gave a quadrans to three persons, he would thereby make his as to consist of nine ounces (which he was quite at liberty to do), and then a quadrans would give a third of the inheritance; if he gave a triens to four persons, he would make his as to consist of sixteen ounces, and then a triens would give a fourth of the inheritance. 8. Et si plures unciæ quam duodecim distributæ sint, is qui sine parte institutus est, quod dupondio deest habebit; idemque erit, si dupondius expletus sit. Quæ omnes partes ad assem postea revocantur, quamvis sint plurium unciarum. 8. If more than twelve ounces are bequeathed, then he who is instituted without any prescribed share shall have the amount wanting to complete the second as; and so, if all the parts of the second as are already bequeathed, he shall have the amount necessary to make up the third as. But all these parts are afterwards reduced to one single as, however great may be the number of ounces. D. xxviii. 5. 18. The concluding sentence of the section means, that though, for the sake of calculating the parts, we go beyond the as to the dupondius or tripondius, yet we must always consider the as as representing the inheritance. For example, to be quite correct, we must make 15-24ths into 7-12ths, so that the portions of the inheritance may be expressed with reference to the twelve unciæ of the as. 9. Heres pure et sub conditione institui potest, ex certo tempore aut ad certum tempus non potest, veluti 9. An heir may be instituted simply or conditionally, but not from or to any certain period; as, after post quinquennium quam moriar, vel ex calendis illis vel usque ad calendas illas heres esto. Denique diem adjectum haberi pro supervacuo placet, et perinde esse ac si pure heres institutus esset. five years from my death-or, from the calends of such a month. The term thus added is considered a su- D. xxviii. 5. If the institution is conditional, all those rights which otherwise would date from the death of the testator, date from the accomplishment of the condition. When the condition was accomplished, the heir entered on the inheritance, and then by this aditio (not by the accomplishment of the condition) his rights were carried back to the time when the testator died. Heres quandoque adeundo hereditatem jam tunc a morte, successisse defuncto intelligitur. (D. xxix. 2. 54.) It was a principle of Roman law that a person could not die u pon partly testate and partly intestate; if his testament was valid at all, his heredes ab intestato were entirely excluded. It was also a rule of law, that a person who once became heir, could not cease to be heir. Non potest (adjectus) efficere, ut qui semet heres exstitit desinat heres esse. (D. xxviii. 5. 88.) But if a person were instituted heir from a certain time, there would be no one but the heredes ab intestato to take in the meantime, and they must cease to be heirs when the time arrived; if the institution were to take effect only up to a certain time, the instituted heir would cease to be heir at the expiration of the time, and the heredes ab intestato would then take the inheritance. This would be making the testator die partly testate and partly intestate, and therefore the law did not permit such an institution. Such an institution would also have of fended against the second rule we have just mentioned, viz. that a person who had once been heir could not cease to be heir (D. xxviii. 5. 88), whence the adage semel heres semper heres; whereas in the first case, the heredes ab intestato, in the second the instituted heir, would cease, at the end of a certain time, to be heir. But if the institution were conditional, the heredes ab intestato did not take until the condition was fulfilled, but were excluded by the possibility which existed at every moment of time that the testamentary heir would be able to enter on the inheritance by the condition being accomplished. (See D. xxix. 2. 39.) The text speaks of certum tempus; if the time were uncertain, if, for instance, the testator said, let A be my heir from the date of B's death, this would operate to make the institution conditional. Dies incertus conditionem in testamento facit. (D. xxxv. 1. 75.) It would be uncertain whether A U impomble Condon void would outlive B; but if during A's lifetime, B died, which he might at any moment, the condition, viz. that A should outlive him, would be accomplished, and this possibility excluded the heredes ab intestato. 10. Impossibilis conditio in institutionibus et legatis, nec non fideicommissis et libertatibus, pro non scripta habetur. 10. An impossible condition in the institution of heirs, gift of legacies, creation of fideicommissa, and gifts of freedom, is considered as not inserted at all. D. xxviii. 7. 1; D. xxviii. 7. 14. That the institution was regarded as unconditional instead of void, when the condition was one not allowed by law, must be ascribed to the anxiety of Romans not to die intestate, and the consequent favour with which the law regarded any means of treating a will as valid. An obligation containing an impossible condition would be void. (Bk. iii. Tit. 9. 11.) Possibilis est quæ per rerum naturam admitti potest: impossibilis que non potest. (PAUL. Sent. iii. 4. 2. 1.) But a thing contrary to law, or to boni mores, was considered as impossible as if it were impossible per rerum naturam. (PAUL. Sent. iii. 4. 2.) 11. Si plures conditiones institutioni adscriptæ sunt, siquidem conjunctim, ut puta si illud et illud factum erit, omnibus parendum est; si separatim, veluti si illud aut illud factum erit, cuilibet obtemperare satis est. 11. When several conditions are attached to the institution, if they are placed in the conjunctive, as, if this and that thing be done, all the conditions must be complied with. But, if the conditions are placed in the disjunctive, as, if this or that be done, it will be sufficient to comply with any one. D. xxviii. 7. 5. 12. Ii quos numquam testator vidit, heredes institui possunt, veluti si fratris filios peregri natos, ignorans qui essent, heredes instituerit; ignorantia enim testantis inutilem institutionem non facit. Intabilution did not for a vested int. 12. A testator may institute persons his heirs, whom he has never seen, as, his brother's sons, born in a foreign country, and unknown to him; for the want of this knowledge will not vitiate the institution. C. vi. 24. 11. out subcltutus subilitats est substitutus incnticto TIT. XV. DE VULGARI SUBSTITUTIONE. Potest autem quis in testamento suo plures gradus heredum facere, ut puta si ille heres non erit ille heres A man by testament may appoint several degrees of heirs; as, for instance, if so and so will not be my LIB. II. TIT. XV. esto, et deinceps in quantum velit testator substituere potest, et novissimo loco in subsidium vel servum necessarium heredem instituere. heir, let so and so be my heir. And D. xxviii. 6. 36. a conditional misitution Substitution was really a conditional institution. If A is to provide agust not my heir, if, for instance, he die before me, I appoint B. totinguicy 7. The extent to which substitution was carried, was owing to the importance attached to dying testate; and partly also, in the atte apson militate time of the emperors, to the wish to guard against the operation of the lex Julia et Papia, which created numerous causes of incapacity to take under testament, and gave the shares of those instituted, but incapable to take, as caduca, to the public treasury. This kind of substitution is termed vulgaris, as opposed to substitutio pupillaris, the subject of the next Title. 1. Et plures in unius locum possunt substitui, vel unus in plurium, vel singuli singulis, vel invicem ipsi qui heredes instituti sunt. Mu may 1. A testator may substitute several in the place of one, or one in the place of several, or one in the place fural founal of each one, or he may substitute the instituted heirs themselves reciprocally to one another. D. xxviii. 6. 36. 1. for one No partial inhotac = Su mp 325. If any one the Roman Lan Vel invicem ipsi qui heredes instituti sunt. instituted heir died before the testator, or refused to take his share of the inheritance, his share was, in fact, undisposed of finy defpad of all so if not But as the testator was always supposed to have disposed of his whole estate if he disposed of any part, this share was pro- speupenly divided among all those who entered on the inheritance in portions corresponding to the share given them by the will. & the tutes Their claim to this was called the jus accrescendi. But a tes- jus accrescund tator sometimes produced nearly the same effect as the law would have produced for him, by substituting the heirs who entered on the inheritance in the place of those who did not, thus preventing any share from becoming vacant. The effect It was open to the was nearly the same, but not quite so. substituted heirs to refuse the inheritance of this new part, which required to be expressly entered on; whereas, if they once entered on the share given them by the testament, they could not decline accepting any further portion which devolved on them by the jus accrescendi. (D. xxix. 2. 35.) Again, the representatives of a deceased heir received his portion of the part given by the jus accrescendi. But only those living at the time when the choice of entering on the vacant share was U 2 |