8. Et si plures unciæ quam duodecim distributæ sunt, is, qui sine parte institutus est, quod dipondio deest, habebit: idemque erit, si dipondius 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 their 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 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' autusque ad kalendas illas heres esto: 'diemque adjectum pro supervacuo haberi placet et perinde esse, ac si pure heres institutus esset.

9. An heir may be instituted simply or conditionally, but not from or to any certain period; as, ' after five years from my death,' or from the calends of such a month,' or 'until the calends of such a month.' The term thus added is considered a superfluity, and the institution is treated exactly as if unconditional.

D. xxviii. 5.

This paragraph must be understood as referring to heirs other than sui heredes. If a suus heres was instituted sub conditione, unless the fulfilment of the condition was within his own power, the testament was null. (D. xxviii. 2. 3. 1.)

If the institution was conditional, all those rights which otherwise would date from the death of the testator, dated 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.) Until the heir entered the inheritance was said jacere, to be in abeyance.

There are two rules of Roman law, which deserve attention, as illustrating how completely succession was regarded as the transfer of the whole persona of the deceased. It was a rule of law that a person could not die 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. But if a person was 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 was 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 offended 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 ; for 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 was conditional, the heredes ab intestato did not take until the condition was fulfilled, and 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. (D. xxix. 2. 39.)

The text speaks of certum tempus; if the time only was uncertain, if the event was one that must happen at some time, as that B should die, but the time of its happening was, as in this case, uncertain, and 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 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.

A soldier might make his testament ex certo tempore or ad certum tempus. (D. xxix. 1. 41. pr.)

10. Impossibilis condicio in institutionibus et legatis nec non in fideicommissis et libertatibus pro non scripto 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. 19. 11.) Possibilis est quæ per possibilis quæ non potest.

rerum naturam admitti potest: im(PAUL. Sent. iii. 4. 2. 1.) But a thing contrary to law, or to boni mores, was considered as impossible as if it was impossible per rerum naturam. (PAUL. Sent. iii. 4. 2.)

11. Si plures condiciones institutioni adscriptæ sunt, si quidem conjunctim, ut puta si illud et illud factum erit,' omnibus parendum est si separatim, veluti si

11. When several conditions are attached to the institution, if they are placed in the conjunctive, as, if this thing and that thing are done,' all the conditions must be complied with.

illud aut illud factum erit,' cuin But, if the conditions are placed in libet obtemperare satis est. the disjunctive, as, if, this or that is done,' it will be sufficient to comply with any one.

Substitution was really a conditional institution. If A is not my heir, if, for instance, he dies before me, I appoint B. The extent to which substitution was carried, was owing to the importance attached to dying testate; and partly also, in the 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 a testament, and gave the shares of those instituted, but incapable of taking, as caduca, to those named in the testament who were married and had children, and, if there were no such persons, to the ærarium, or public treasury. As the effect of the lex Julia et Papia cannot be discussed without taking legacies into consideration, a detailed account of the two laws known by this name is deferred till we reach the 20th Title. By substitution, that which under these laws was a caducum went to the substituted heir, if qualified to take, and did not follow the course of devolution which these laws prescribed.

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.

1. A testator may substitute several in the place of one, or one in the place of several, or one in the place of each one, or he may substitute the instituted heirs themselves reciprocally to one another.

D. xxviii. 6. 36. 1.

Three advantages which co-heirs gained by being substituted to each other are to be noticed: (1) If any one instituted heir died before the testator, or refused to take his share of the inheritance, his share was, in fact, undisposed of. But as the testator was always supposed to have disposed of his whole estate if he disposed of any part, this share was divided among all those who entered on the inheritance in proportions corresponding to the share given them by the will. Their claim to this was called the jus accrescendi. But a testator 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 was nearly the same, but not quite so. It was open to the substituted heirs to refuse the inheritance of this new part, which required to be expressly entered on: whereas, if instituted heirs 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.) (2) Surviving co-heirs might possibly gain by not having to share with the representatives of deceased heirs. The representatives of an instituted heir who died after entering on the inheritance received his portion of the share of a co-heir subsequently renouncing. But if the co-heirs were substituted to each other, then only those living at the time when the choice of entering on the vacant share was offered them, took by substitution (D. xxviii. 6. 23; D. xxviii. 5. 59. 7), the benefit of substitution, like that of institution, being personal; and the representatives of a co-heir who had died after entering, but before he had accepted the benefit of substitution, would lose what, under the jus accrescendi, would come to them. (D. xxviii. 6. 45. 1.) (3) The laws known under the joint name of the lex Julia et Papia Poppaa, had, while in force, given a further reason for this mode of mutually substituting the heirs to each other, as under their provisions some persons could take what was given them, but could not claim caduca. By substitution, an heir incapable of claiming a caducum under these laws might take it as substituted heir. For the mode in which these laws operated, see note on Tit. 20. 8.

It is easy to understand that, where there were more than two persons instituted, the devolution might not be the same by substitution and by the jus accrescendi. Supposing A, B, and C were all instituted heirs, and B substituted to A, and then D substituted to B; if A and B died, by B being substituted to A, the shares of A and B would both go to D; but by the jus accrescendi (i.e. supposing B had not been substituted to A) the share of A would have been vacant, and would have been divided between D and C.

2. Et si ex disparibus partibus heredes scriptos invicem substituerit et nullam mentionem in substitu

2. If a testator, having instituted several heirs with unequal shares, substitutes them reciprocally the one

tione habuerit partium, eas videtur partes in substitutione dedisse, quas in institutione expressit: et ita divus Pius rescripsit.

to the other, and makes no mention of the shares they are to have in the substitution, he is considered to have given the same shares in the substitution which he gave in the institution; thus the Emperor Antoninus decided by rescript.

C. vi. 26. 1.

If he chose, however, to specify the shares they were to take in that portion to which they were substituted, there was no necessity that they should be the same shares as those they were said to take by institution.

3. Sed si instituto heredi et coheredi suo substituto dato alius substitutus fuerit, divi Severus et Antoninus sine distinctione rescripserunt, ad utramque partem substitutum admitti.

3. If a co-heir is substituted to any instituted heir, and a third person to that co-heir, the Emperors Severus and Antoninus have by rescript decided that this third person shall be admitted to the portions of both without distinction.

D. xxviii. 6. 41.

A testator institutes two heirs, A and B. He substitutes B to A, and to B he substitutes C. Supposing neither A nor B takes the inheritance, C will take the part of each, utramque partem, and will take it without any distinction (sine distinctione) as to what was the order in which the testament was drawn up, or whether A or B first dies or refuses or becomes incapable of taking the inheritance. How he would take the part of B is clear enough ; but if B died or refused the inheritance before A, how would C take A's share? He did so by the rule substitutus substituto censetur substitutus instituto; the person substituted to the substitute is considered substituted to the instituted heir; C is substituted to B, who is substituted to A, and therefore C is, by what was termed a tacita substitutio, substituted to A, and takes his part.

4. Si servum alienum quis pa- 4. If a testator institutes the slave tremfamilias arbitratus, heredem of another his heir, supposing him to scripserit et, si heres non esset, be sui juris, and, to provide for the Mævium ei substituerit isque servus case of this person not becoming his jussu domini adierit hereditatem, heir, substitutes Mævius in his place; Mævius in partem admittitur. Illa then, if that slave should afterwards enim verba 'si heres non erit' in enter upon the inheritance at the comeo quidem, quem alieno juri sub- mand of his master, the substituted jectum esse testator scit, sic accipi- person, Mævius, would be admitted untur : si neque ipse heres erit to a part. For the words, if he does neque alium heredem effecerit in not become my heir,' in the case of a eo vero, quem patremfamilias esse person whom the testator knew to be arbitratur, illud significant : si here- under the dominion of another, are ditatem sibi eive, cujus juri postea taken to mean, if he neither becomes subjectus esse coeperit, non adqui- heir himself, nor causes another to be sierit. Idque Tiberius Cæsar in perheir; but in the case of a person whom sona Parthenii servi sui constituit. the testator supposed to be a paterfamilias, the words mean, if the heir