deliberationis auxilium eis fiat necessarium, nisi omissa observatione nostræ constitutionis et deliberandum existimaverint et sese veteri gravamini aditionis supponere maluerint.

deliberation, unless, neglecting to conform to our constitution, they prefer to deliberate and submit themselves to the liabilities attending the entering on the inheritance under the old law.

GAI. ii. 163; C. vi. 30. 22.

Commentators have termed the privilege referred to here the beneficium inventarii. Within thirty days after the heir became acquainted with his rights, an inventory of the property might be begun, which was to be finished within ninety days from the same time. This inventory was to be made in presence of a tabellio, or public notary, and of any parties interested who might wish to be present, or else of three witnesses.

If the heir chose to avail himself of this privilege, he entirely separated the estate of the testator from his own; he could deduct anything that might be owing to him from it, and had to pay to it anything he might owe. He first paid the expenses of the funeral and of the inventory, and then all the creditors in the order in which they sent in their claims. If there was any surplus, he took it; if any deficiency, he was not liable. (C. vi. 30. 22.)

Justinian, by this sweeping change, entirely altered the position of the heir. He was no longer the representative of the deceased, bound to see that the debts of the deceased were paid. His estate and that of the testator were now distinct. He merely distributed the property which the deceased left, and if the deceased owed him anything he was entitled to pay himself as a creditor. Justinian did not, indeed, enact that every heir should hold this new character, but he took away the Falcidian fourth from an heir who did not make an inventory, and left him to pay not only the debts, but the legacies, even if the estate was insufficient for the purpose, so that heirs had every possible motive to accept the new position opened to them. (Nov. 1. 2. 2.)

7. An extraneus heres, instituted heir by testament, or called by law to a legal succession ab intestato, may become heir, either by doing some act as heir or even by the mere wish to accept the inheritance. And a man acts as heir if he treats any of the goods of the inheritance as his own, by selling any part, or by cultivating the ground, or letting it, or in any other way declares, either by act or word, his intention to enter on the inheritance, provided only that he knows that the person, with respect to whose estate he acts as heir, is dead, testate or intestate, and that he himself is the heir; for to act as heir is to act as proprietor; as the ancients frequently used the term heir to denote the proprietor. But as an extraneus heres

natione statim ab hereditate repellitur. Eum, qui mutus vel surdus natus est vel postea factus, nihil prohibet pro herede gerere et adquirere sibi hereditatem, si tamen intellegit, quod agitur.

may become heir by a mere intention, so, on the contrary, by a contrary intention, he is at once barred from the inheritance. Nothing prevents a person, who was born deaf and dumb, or subsequently became so, from acting as heir, and acquiring for himself the inheritance, if only he knows what is done.

GAI. ii. 166, 167. 169; D. xxix. 2. 5.

Besides the two modes here mentioned of ascertaining the entrance of the extraneus heres on the inheritance, namely, forming an intention to do so, and doing some act as heir, there was a mode, abolished by a constitution of Arcadius, Honorius, and Theodosius (A.D. 407), called cretio. Cretio appellata est, quia cernere est quasi decernere et constituere. (GAI. ii. 164.) The testator himself, in his will, fixed the time within which the heir was to decide whether he would accept the inheritance. Generally the time was made to run from the period when the heir became acquainted with his rights, and this was called the cretio vulgaris; sometimes from that when the rights accrued to him, and this was called the cretio continua, because the time ran on continuously whether the heir knew of his rights or not. The heir could alter his decision at any time within the limited period. His decision was expressed, when made, by forms more solemn than when the aditio was made by a simple declaration of intention. (Vide GAI. in loc. cit.) The heir was said adire hereditatem whenever he in any way entered on the inheritance, whether by doing some act as heir (pro herede gerere) or by the mere intention to be heir (nuda voluntate). Of course this intention would be manifested in some way or other; but it was the formation, not the expression, of the intention that constituted the entrance on the inheritance. Properly speaking, one person could not enter on an inheritance for another; but there were necessarily exceptions, such as that a tutor might accept an inheritance in behalf of his infant pupil. No one could enter on part of the inheritance, nor could he enter conditionally, or for a certain time. Directly he did enter, he was, under the law before Justinian, clothed with the persona of the deceased, whom he represented as if he had succeeded immediately on his death. (D. xxix. 2. 54.)

TIT. XX. DE LEGATIS.

Post hæc videamus de legatis. Quæ pars juris extra propositam quidem materiam videtur: nam loquimur de his juris figuris, quibus per universitatem res nobis adquiruntur. Sed cum omnino de testa

We will now proceed to treat of legacies. This part of the law may not seem to fall within our present subject, namely, the discussion of those methods by which things are acquired per universitatem; but, as we

mentis deque heredibus, qui testamento instituuntur, locuti sumus, non sine causa sequenti loco potest hæc juris materia tractari.

have already spoken of all points concerning testaments and testamentary heirs, we may not improperly pass to the subject of legacies.

GAI. ii. 191.

A legacy, being a mode by which the property in one or more particular things is acquired, ought not, properly, to be discussed in the part of the Institutes devoted to the discussion of the modes of acquiring a universitas rerum.

In Roman law a legacy was an injunction given to the heir to pay or give over a part of the inheritance to a third person-Legatum, quod legis modo, id est imperative, testamento relinquitur. (ULP. Reg. 24. 1.) Without an heir there could be no legacy; and therefore, if no instituted heir entered on the inheritance, the gift of the legacy was useless. The term was never applied, as in English law, to a direct bequest.

1. Legatum itaque est donatio quædam a defuncto relicta.

1. A legacy is a kind of gift left by a deceased person.

D. xxxi. 36.

2. Sed olim quidem erant legatorum genera quattuor: per vindicationem, per damnationem, sinendi modo, per præceptionem: et certa quædam verba cuique generi legatorum adsignata erant, per quæ singula genera legatorum significabantur. Sed ex constitutionibus divorum principum sollemnitas hujusmodi verborum penitus sublata est. Nostra autem constitutio, quam cum magna fecimus lucubratione, defunctorum voluntates validiores esse cupientes et non verbis, sed voluntatibus eorum faventes, disposuit, ut omnibus legatis una sit natura et, quibuscumque verbis aliquid derelictum sit, liceat legatariis id persequi non solum per actiones personales, sed etiam per in rem et per hypothecariam: cujus constitutionis perpensum modum ex ipsius tenore perfectissime accipere possibile est.

2. Formerly, there were four kinds of legacies, namely, per vindicationem, per damnationem, sinendi modo, and per præceptionem. There was a certain form of words proper to each of these, by which they were distinguished one from another. But these solemn forms have been wholly suppressed by imperial constitutions. We also, desirous of giving respect to the wishes of deceased persons, and regarding their intentions more than their words, have, by a constitution composed with great study, enacted that the nature of all legacies shall be the same; and that legatees, whatever may be the words employed in the testament, may sue for what is left them, not only by a personal, but_by a real or an hypothecary action. The well-weighed scheme of this constitution may be easily seen by a perusal of its dispositions.

GAI. ii. 192, 193. 201. 209. 216; C. vi. 37. 21; C. vi. 43. 1.

Per vindicationem. The formula in this species of legacy ran thus: Hominem Stichum do lego,' or 'do'; or 'capito, sumito, sibi habeto.' The legacy was said to be per vindicationem, because, immediately on the heir entering on the inheritance, the subject of the legacy became the property of the legatee ex jure Quiritium, who could accordingly claim it by vindicatio. The testator could only give, in this way, things of which he had the

dominium ex jure Quiritium, both at the time of making the testament and of his death: excepting that such dominium at the time of death alone was sufficient when the subject of the legacy was anything appreciable by weight, number, or measure, as wine, oil, money, &c. (GAI. ii. 196.)

Per damnationem. The formula ran thus: Heres meus damnas esto dare;' or Dato, facito, heredem meum dare jubeo." The legatee did not, by this legacy, become proprietor of the subject of the legacy; but he had a personal action against the heir to compel him to give (dare), to procure (præstare), or to do (facere), that which the terms of the legacy directed. Anything could be given by this legacy that could become the subject of an obligation, whether the property of the testator, the heir, or any one else. The rights it gave were, therefore, said to be the optimum jus legati. (ULP. Reg. 24. 11; GAI. ii. 204-208.)

Sinendi modo. The formula of this kind of legacy was : 'Heres meus damnas esto sinere Lucium Titium sumere illam rem sibique habere.' (GAI. ii. 209.) The heir is to allow the legatee to take the thing given. This form, then, was applicable to anything that belonged to the testator or to the heir, but not to anything belonging to a third person. The legatee did not become the owner of the thing given until he took possession. If the heir refused to allow the legatee to take possession, the legatee might compel him to do so by the personal action termed 'Quicquid heredem ex testamento dare facere oportet. (GAI. ii. 213, 214.)

Per præceptionem. The formula ran: Lucius Titius illam rem præcipito' (i.e. take beforehand). The proper application of this form was to a gift, made to one already instituted heir, of something which he was to take before receiving his share of the inheritance. The heir could enforce his claim to this something beyond his share by the action termed judicium familiæ erciscundæ, i.e. for having the inheritance portioned out by a judge, who assigned the thing given by the legacy to the heir as legatee. It was only by a mistake in language that this form was applied to a gift to a person not an heir; but a gift made in this form to a person not heir was not void; for the senatusconsultum Neronianum, about A.D. 60, made every such legacy valid as a legacy per damnationem. Gaius mentions that the Proculians attempted to get over the difficulty where the word præcipito was used to give a legacy to a person not heir, by reading 'præcipito' as 'capito;' and this construction was confirmed by a constitution of Hadrian. (GAI. ii. 218-221.)

Under the imperial legislation the value attached to these formula was gradually lessened. By the senatusconsultum Neronianum it was enacted that any legacy given in a form of words. not suited to the gift intended should be as valid as one given in the form most favourable to the legatee. Ut quod minus aptis verbis legatum est perinde sit ac si optimo jure legatum esset.'

(ULP. Reg. 24. 11; GAI. ii. 197. 218.) The formula remained, but a mistake in their use could no longer injure the legatee; and in every case the legacy, however expressed, had the effect of a legacy given per damnationem. In A.D. 342 a constitution of Constantine II., Constantius, and Constans, abolished the use of formulæ in all legal acts. (C. ii. 58. 1.) The division of legacies still theoretically remained, but the appropriate formula were no longer in use. Finally Justinian, as we see in the text, enacted that all legacies should be of the same nature, and that the legatee might enforce the legacy by personal, real, or hypothecary actions, according to the nature of the gift.

3. Sed non usque ad eam constitutionem standum esse existimavimus. Cum enim antiquitatem invenimus legata quidem stricte concludentem, fideicommissis autem, quæ ex voluntate magis descendebant defunctorum, pinguiorem naturam indulgentem, necessarium esse duximus omnia legata fideicommissis exæquare, ut nulla sit inter ea differentia, sed quod deest legatis, hoc repleatur ex natura fideicommissorum et, si quid amplius est in legatis, per hoc crescat fideicommissi natura. Sed ne in primis legum cunabulis permixte de his exponendo studiosis adulescentibus quandam introducamus difficultatem, operæ pretium esse duximus, interim separatim prius de legatis et postea de fideicommissis tractare, ut natura utriusque juris cognita, facile possint permixtionem eorum eruditi suptilioribus auribus accipere.

3. We have not, however, judged it expedient to confine ourselves within the limits of this constitution; for, observing that the ancients confined legacies within strict rules, but accorded a greater latitude to fideicommissa as arising more immediately from the wishes of the deceased, we have thought it necessary to make all legacies equal to fideicommissa, so that no difference may remain between them. Whatever is wanting to legacies they will borrow from fideicommissa, and communicate to them any superiority they themselves may have. that we may not raise difficulties, and perplex the minds of young persons at their entrance upon the study of the law, by explaining these two subjects jointly, we have thought it worth while to treat separately, first of legacies and then of fideicommissa, that, the nature of each being known, the student, thus prepared, may understand them with keener appreciation when mixed up the one with the other.

C. vi. 43. 2.

But,

All that remained, after the changes noticed in the text, to distinguish legacies from fideicommissa, was the general character of the expressions used. If they were imperative, the gift was a legacy; if they assumed the form of a request, and were given precative, they were fideicommissa. If a gift was in form imperative, but it was not valid as a legacy, it was valid as a trust. If such a gift could be valid as a legacy, it was of course regarded as a legacy, and not as a fideicommissum.

A difference still remained with respect to the gifts of liberty to a slave. (Vid. Tit. 24. 2.) A direct legacy of liberty made the slave the libertus of the testator; a gift of liberty by a fideicommissum made the slave the libertus of the fideicommissarius. 4. A testator may not only give as vel heredis res, sed et aliena legari a legacy his own property, or that of

4. Non solum autem testatoris