conceived before the date of the testament who should, after the date of the testament, be born his suus heres in his lifetime, thus giving a new signification to postumus (such a person was termed a postumus Velleianus, ULP. Frag. 22. 19), and (2ndly) that he might exclude a grandchild, or other descendant, born before the date of the testament, who might, if the son of the testator died in the testator's lifetime, step into the place of his father, and become a suus heres during the testator's lifetime. Previously such a person could not have been excluded in his capacity of suus heres, for at the date of the testament he was not in that position, which he only attained subsequently. He could, however, have been instituted before the lex Junia Velleia, for he was an existing person, and therefore not a persona incerta; but perhaps the second head of the lex Junia Velleia was regarded as confirming his institution in the special quality of a suus heres. (D. xxviii. 2. 29. 11 to end.) If persons, coming under the second head of the lex Junia Velleia, who received the name of quasi postumi Velleiani, were excluded, the lex Junia required that, as in the case of posthumous sui heredes, the males should be excluded nominatim, and the females inter ceteros, but with a legacy. In the case of the testator having subsequently a child not conceived when the testament was made and born in the testator's lifetime, and in the other cases of quasi-agnation mentioned above, no law helped the testator, and he had to make a new testament in order to die testate. 3. Emancipatos liberos jure civili neque heredes instituere neque exheredare necesse est, quia non sunt sui heredes. Sed prætor omnes tam feminini sexus quam masculini, si heredes non instituantur, exheredari jubet, virilis sexus nominatim, feminini vero et inter ceteros. Quodsi neque heredes instituti fuerint neque ita, ut diximus, exheredati, promittit prætor eis contra tabulas testamenti bonorum possessionem. 3. The civil law does not make it necessary either to institute emancipated children heirs, or to disinherit them in a testament; because they are not sui heredes. But the prætor orders, that all children, male or female, if they are not instituted heirs, shall be disinherited; the males by name, the females by name or under the general term ceteri: for, if they have neither been instituted heirs, nor disinherited in manner before mentioned, the prætor gives them possession of goods contra tabulas. GAI. ii. 135. An emancipated child, passing out of the testator's family, ceased to be his suus heres. But though he thus lost all legal claim upon the testator's inheritance, yet he had gained no provision by being emancipated, and the prætor, therefore, came to his relief, and set aside the testament, if he had not been expressly excluded. He did not do this nominally, for the testament was legally good, but he did what amounted to the same thing; he divided the property equally among all as if the testator had died intestate, giving the children what was termed possession of the goods; a possession said, in this case, to be contra tabulas, as it overthrew the provisions contained in the tablets of the testament. The emancipated son, however, had to bring into account the property he had acquired since emancipation, if the effect of his getting the testament set aside was injurious to the properly instituted suus heres. The properly instituted suus heres might, for example, have had only a quarter of the inheritance left him, and then he would gain, not lose, by the emancipated son getting the testament set aside and sharing the inheritance with him. (D. xxxvii. 4. 13.) An emancipad daughter might, under the prætorian system, be in a better position than an unemancipated, if both were passed over, and might in effect be in as good a position as the male suus heres who was passed over. For if the emancipated daughter was passed over, the testament would be overthrown altogether, and she would, if an only child, take all the property; whereas, if the unemancipated daughter was passed over, she could only take half at most. Antoninus put them on an equality, by giving the emancipated only the share she would have had, had she not been emancipated. (GAI. ii. 125, 126.) The old civil law permitted grandsons, not in the immediate power of the testator, to be disinherited by the general ceteri clause. The prætor required them to be disinherited nominatim. (GAI. ii. 129.) Further, whereas in the initiatory section we have been told that the testament was wholly void if a son passed over died in the lifetime of his father, and Gaius tells us that this was the opinion of the Sabinians, yet there are passages which seem to show that the prætors sometimes upheld a contrary rule. (D. xxxvii. 11. 2. pr.; D. xxviii. 93. 17.) 4. Adoptivi liberi quamdiu sunt in potestate patris adoptivi, ejusdem juris habentur, cujus sunt justis nuptiis quæsiti: itaque heredes instituendi vel exheredandi sunt secundum ea, quæ de naturalibus exposuimus: emancipati vero a patre adoptivo neque jure civili neque quod ad edictum prætoris attinet, inter liberos numerantur. Qua ratione accidit, ut ex diverso quod ad naturalem parentem attinet, quamdiu quidem sint in adoptiva familia, extraneorum numero habeantur, ut eos neque heredes instituere neque exheredare necesse sit. Cum vero emancipati fuerint ab adoptivo patre, tunc incipiunt in ea causa esse, in qua futuri essent, si ab ipso naturali patre emancipati fuissent. 4. Adoptive children, while under the power of their adoptive father, are in the same legal position as children sprung from a legal marriage; and therefore they must either be instituted heirs or disinherited, according to the rules we have laid down respecting natural children. But neither by the civil nor the prætorian law are such children, if emancipated by their adop tive father, reckoned among his natural children. On this principle it is that, conversely, adoptive children, while in their adoptive family, are considered strangers to their natural father, who need not institute them heirs or disinherit them; but if they are emancipated by their adoptive father, they then begin to be in the same position in which they would have been if emancipated by their natural father. GAI. ii. 136, 137. If an adopted son was emancipated by his adoptive father, he would, under the old law, have no legal claim on the inheritance of his adoptive or his natural father. But the prætor came to his aid, and gave him a possession of the goods' of his natural father, unless he was expressly excluded by his natural father's testament. On his adoptive father, he would, after emancipation, in no case have any claim whatever, until Justinian altered the law in the manner referred to in the next paragraph. 5. Sed hæc vetustas introducebat. Nostra vero constitutio inter masculos et feminas in hoc jure nihil interesse existimans, quia utraque persona in hominum procreatione similiter naturæ officio fungitur et lege antiqua duodecim tabularum omnes similiter ad successiones ab intestato vocabantur, quod et prætores postea secuti esse videntur, ideo simplex ac simile jus et in filiis et in filiabus et in ceteris descendentibus per virilem sexum personis non solum natis, sed etiam postumis introduxit, ut omnes, sive sui sive emancipati sunt, aut heredes instituantur aut nominatim exheredentur et eundem habeant effectum circa testamenta parentum suorum infirmanda et hereditatem auferendam, quem filii sui vel emancipati habent, sive jam nati sunt sive adhuc in utero constituti, postea nati sunt. Circa adoptivos autem certam induximus divisionem, quæ constitutione nostra, quam super adoptivis tulimus, continetur. 5. Such was the ancient law. But, thinking that no distinction can reasonably be made between the two sexes, inasmuch as they equally contribute to the procreation of the species, and because, by the ancient law of the Twelve Tables, all children were equally called to the succession ab intestato, which law the prætors seem afterwards to have followed, we have by our constitution made the law the same both as to sons and daughters, and also as to all other descendants in the male line, whether already born or posthumous so that all children, whether they are sui heredes or emancipated, must either be instituted heirs or be disinherited by name; and their omission has the same effect in making void the testaments of their ascendants, and taking away the inheritance from the instituted heirs, as would be produced by the omission of children who were sui heredes or emancipated, whether they have been already born, or having been already conceived are born afterwards. With respect to adoptive sons, however, we have established a distinction between them, which is set forth in our constitution on adoptive persons. C. i. 28. 4; C. viii. 47. 10. pr. and 1. Under the legislation of Justinian a testament would be rendered invalid by the omission of any one male or female whom it was necessary either to institute or exclude, and every exclusion must be made nominatim. An adopted son, if adopted by a stranger, i.e. not an ascendant, lost none of his claims upon his natural father's property, but only had a claim upon that of his adoptive father, if his father died intestate; for if the adoptive father made a testament, it was not necessary he should notice the adoptive son. But an adopted son, if adopted by an ascendant, either a maternal grandfather or an emancipated father (see Bk. i. Tit. 11. 2), stood in the position of a suus heres to the ascendant, and a testament made by such ascendant would be invalid in which he was passed over. 6. Sed si expeditione occupatus miles testamentum faciat et liberos suos jam natos vel postumos nominatim non exheredaverit, sed silentio præterierit, non ignorans, an 6. If a soldier on active service makes his testament, and neither disinherits his children already born, nor his posthumous children by name, but passes them over in silence, al habeat liberos, silentium ejus pro exheredatione nominatim facta valere constitutionibus principum cau tum est. though he is not ignorant whether he has children, it is provided by the constitutions of the emperors, that his silence shall be equivalent to disinheriting them by name. D. xxix. 36. 2. 7. Mater vel avus maternus necesse non habent liberos suos aut heredes instituere aut exheredare, sed possunt eos omittere. Nam silentium matris aut avi materni ceterorumque per matrem ascendentium tantum facit, quantum exheredatio patris. Neque enim matri filium filiamve neque avo materno nepotem neptentve ex filia, si eum eamve heredem non instituat, exheredare necesse est, sive de jure civili quæramus, sive de edicto prætoris, quo præteritis liberis contra tabulas bonorum possessionem promittit. Sed aliud eis adminiculum servatur, quod paulo post vobis manifestum fiet. 7. Neither a mother nor a maternal grandfather need either institute children as heirs, or disinherit them, but may pass them over in silence; for the silence of a mother or a maternal grandfather, or of any other ascendant on the mother's side, has the same effect as a father disinheriting them. For a mother is not obliged to disinherit her children, if she does not institute them her heirs; neither is a maternal grandfather under the necessity of instituting or of disinheriting his grandson or granddaughter by a daughter; whether we look to the civil law, or the edict of the prætor, by which he promises possession of goods contra tabulas to those children who have been passed over in silence. But children, in this case, have another remedy, which we will hereafter explain to you. GAI. iii. 71. The children could never be the sui heredes of their mother, for women never had any one in their power; nor could they be the sui heredes of a maternal ascendant, except by adoption, and the case of adoption is not spoken of here. Aliud adminiculum. This refers to the action for setting aside the testament as inofficious, that is, made without proper regard for natural ties. (See Tit. 18.) TIT. XIV. DE HEREDIBUS INSTITUENDIS. Heredes instituere permissum est tam liberos homines quam servos tam proprios quam alienos. Proprios autem olim quidem secundum plurium sententias non aliter quam cum libertate recte instituere licebat. Hodie vero etiam sine libertate ex nostra constitutione heredes eos instituere permissum est. Quod non per innovationem induximus, sed quoniam et æquius erat et Atilicino placuisse Paulus suis libris, quos tam ad Masurium Sabinum quam ad Plautium scripsit, refert. Proprius A man may institute as his heirs either freemen or slaves, and either his own slaves or those of another. Formerly, according to the more received opinion, no one could properly institute his own slaves, unless he also freed them; but now, by our constitution, a testator may institute his slave without expressly enfranchising him. And we have introduced this rule, not as an innovation, but because it seemed equitable; and Paulus, in his writings on Masurius Sabinus and Plautius, informs us that this was the opinion autem servus etiam is intellegitur, But of Atilicinus. Among a testator's own GAI. ii. 185–187; C. vi. 27. 5; C. vii. 15. 1; D. xxviii. 5. 48. 2; C. vii. 15. 1. 6 6 By institution is meant the declaration who is to be heir, that is, who is to carry on the legal existence, the persona, of the testator. And as, unless his existence was continued, there could be no thing or person from whom the testamentary dispositions could derive any force, or be of any efficacy, the institution was the all-important part of the testament. It was veluti caput atque fundamentum totius testamenti. All other dispositions were ac.. cessories to it, being only conditions or laws imposed upon the heir. In the older law a peculiar form of words was appropriated to the institution. Titius heres esto' was the recognised form. Even in the days of Gaius and Ulpian (GAI. ii. 116, 117; ULP. Reg. 20), such expressions as Titius heres sit,' Titium heredem esse jubeo,' terms of command, were considered right, and expressions such as Titium heredem esse volo,' heredem instituo,' 'heredem facio,' were considered wrong. And it was not till 389 A.D. that Constantine the Second permitted the institution to be made in any terms by which the meaning of the testator could be clearly ascertained. (C. vi. 23. 15.) Again, in the older law, as everything else in 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 Title 20. 34, enacted that, provided the institution appeared in some part of the testament, it should be immaterial in what part it might be placed. |