As we may gather from the text, a testament was termed inofficiosum, which was at variance with the dictates of natural affection, and those duties of near relationship which were expressed by the term officium pietatis. A presumption seemed to arise that the persons very closely connected with the testator, if passed over, must have done something to merit the testator's disapprobation. They might therefore naturally desire to have their character (æstimatio) protected against this imputation, and they therefore applied to the prætor to set the testament aside. A testament regularly and validly made, but liable to the objection that it was inofficiosum, was liable to be set aside on the application of the children, or, if there were no children, on that of the ascendants, or, if there were no ascendants, on that of the brother or sister of the deceased, the claim of these last, however, only prevailing where the person instituted was turpis.

It is not known at what date the action de inofficioso testamento was first introduced. It is referred to by Cicero (In Verr. i. 42). It was brought before the centumviri, as were all actions concerning inheritances, and if they pronounced the testamentinofficiosum,' all its dispositions were set aside, and the inheritance passed according to the succession ab intestato.

sec. 77.)

(See Introd.

The power of bringing the action was, however, not confined entirely to those who were disinherited. Children omitted by the mother, and grandchildren omitted by the maternal grandfather, might bring it, as we have already seen. (Tit. 13. 7.)

The object of permitting the action was that those permitted to bring it on account of their strong claims on the testator should not be disinherited or omitted altogether without sufficient cause. If, therefore, they got in any way a fourth of what they would have received in a succession ab intestato, or were excluded for what the law considered a just cause, such as gross misconduct towards the testator, they could not bring this action.

1. Non tantum autem liberis permissum est parentum testamentum inofficiosum accusare, verum etiam parentibus liberorum. Soror autem et frater turpibus personis scriptis heredibus ex sacris constitutionibus prælati sunt: non ergo contra omnes heredes agere possunt. Ultra fratres et sorores cognati nullo modo aut agere possunt aut agentes vincere.

1. It is not children only who are allowed to attack the testaments of their ascendants as inofficious. Ascendants are also permitted to attack those of their children. The brothers and sisters of a testator, also, by the imperial constitutions, are preferred to infamous persons, if any such have been instituted heirs. Thus, then, they cannot bring such an action against any heir. Beyond brothers and sisters no cognate can bring or succeed in such an action at all.

C. iii. 28. 21. 27.

Before Justinian, brothers and sisters could only bring this action while the tie of agnation was in existence. He permitted them to bring it durante agnatione vel non (C. iii. 28. 27), and

thus made it sufficient that they should be merely consanguinei, i.e. born of the same father. Subsequently, by the 118th Novel, uterine brothers or sisters were placed on the same footing as consanguinei.

2. Tam autem naturales liberi, quam secundum nostræ constitutionis divisionem adoptáti ita demum de inofficioso testamento agere possunt, si nullo alio jure ad bona defuncti venire possunt. Nam qui alio jure veniunt ad totam hereditatem vel partem ejus, de inofficioso agere non possunt. Postumi quoque, qui nullo alio jure venire possunt, de inofficioso agere possunt.

2. But natural children, as well as adopted (the distinction between adopted children laid down in our constitution being always observed), can only attack the testament as inofficious, if they can obtain the effects of the deceased in no other way; for those who can obtain the whole or a part of the inheritance by any other means, cannot bring an action de inofficioso. Posthumous children, also, who are unable to recover their inheritance by any other method, are allowed to bring this action.

D. v. 2. 6. 8. 15.

Those adopted by strangers could not impugn the testament of the adoptive father, if they were disinherited or passed over, but those who were adopted by their ascendants could. This is the divisio here alluded to. (See Bk. i. Tit. 11. 2.)

The actio de inofficioso testamento was only a last resource open to those who had no other: a pupil, therefore, arrogated, and afterwards disinherited by the arrogator, could not bring this action, because he was entitled to the quarta Antonina (see Bk. i. Tit. 11. 2); nor, again, could an emancipated son, omitted in the testament of his father, because the prætor gave him possession of the goods contra tabulas. (See Tit. 13. 3.)

3. Sed hæc ita accipienda sunt, si nihil eis penitus a testatoribus testamento relictum est. Quod nostra constitutio ad verecundiam naturæ introduxit. Sin vero quantacumque pars hereditatis vel res eis fuerit relicta, de inofficioso querela quiescente, id, quod eis deest, usque ad quartam legitimæ partis repletur, licet non fuerit adjectum, boni viri arbitratu debere eam repleri.

3. All this must be understood to take place only when nothing at all has been left them by the testament of the deceased; a provision introduced by our constitution, out of respect for the rights of nature. For, if the least part of the inheritance or any one single thing has been given them, they cannot bring an action de inofficioso testamento: but they must have made up to them one-fourth of what would have been their share, if the deceased had died intestate, supposing what is given does not amount to this fourth : and this, although the testator has not added to his gift any direction that this fourth is to be made up to them according to the estimate of a trustworthy person.

C. iii. 28. 30. pr. and 1.

A plebiscitum was passed in the year 714 A.U.C., called the lex Falcidia (Tit. 22), which provided that one clear fourth of the

inheritance must remain to the heir, and that legacies and trusts could only affect three-fourths. Either from the analogy of this law, or by some express enactment, it was decided that every one who was near enough in blood to the testator to bring the action de inofficioso, might bring it, though mentioned in the testament, unless one-fourth was thereby given him of what he would have received in a succession ab intestato. This fourth part was spoken of under different names. Sometimes it was itself termed the Falcidia (solam eis Falcidiam debitæ successionis relinquant, Cod. Theod. xvi. 7. 28). Sometimes it is spoken of as the portio legibus debita, or portio legitima (C. iii. 26. 28), and commentators have called it simply the legitima. In the text, it will be seen, the term legitima pars is used to express the share the persons would have taken ab intestato.

Before the time of Justinian (Cod. Theod. ii. 19. 4), unless a testator either expressly gave this fourth, or gave a direction that such an additional share of the goods should be added to that actually given, as some trustworthy person, who should make an estimate of the value of all the goods of the deceased, should consider would be necessary to make what was given equal to the fourth, the testament could be attacked and set aside as inofficious; but Justinian altered the law on this point, and enacted that if the testator gave anything at all, the action de inofficioso could not be brought, but only an action to obtain what was wanting to make up the fourth, while the testament itself remained valid. (C. iii. 28. 30.) There were considerable differences between this action to make up what was wanting to the fourth part (actio in supplementum legitima) and that de inofficioso; the former was a personal action, there was no limit to the time in which it was to be brought, it was transmissible to the heirs of the person who could bring it, and it left the testament valid; the latter was a real action, was obliged to be brought within a certain time (see note to paragr. 6), could not be transmitted to the heirs, unless the person entitled to bring it had manifested an intention to do so, and if it was successfully brought, the testament was set aside.

4. Si tutor nomine pupilli, cujus tutelam gerebat, ex testamento patris sui legatum acceperit, cum nihil erat ipsi tutori relictum a patre suo, nihilo minus possit nomine suo de inofficioso patris testamento

agere.

4. If a tutor accepts in the name of the pupil under his charge a legacy given in the testament of the tutor's own father, while nothing has been left to the tutor himself by his father's testament, he may nevertheless in his own name attack the testament of his father as inofficious.

D. v. 2. 10. 1.

To accept a legacy was to acquiesce in the validity of the testament; but it was reasonable that a tutor, who had an unavoidable duty to perform towards his pupil, should not be personally bound by an act done in his capacity as tutor.

5. Sed et si e contrario pupilli nomine, cui nihil relictum fuerit, de inofficioso egerit et superatus est, ipse quod sibi in eodem testamento legatum relictum est, non amittit.

5. Conversely, if a tutor, in the name of his pupil, to whom nothing has been left, attacks as inofficious the testament of the pupil's father, and attacks it unsuccessfully, he does not lose any legacy that may have been left himself in the same testament.

D. v. 2. 30. 1.

Any one who unsuccessfully attacked a testament as inofficious, forfeited to the fiscus whatever was given him by the

testament.

6. Igitur quartam quis debet habere, ut de inofficioso testamento agere non possit: sive jure hereditario sive jure legati vel fideicommissi, vel si mortis causa ei quarta donata fuerit, vel inter vivos in his tantummodo casibus, quorum nostra constitutio mentionem facit, vel aliis modis, qui constitutionibus continentur.

7. Quod autem de quarta diximus, ita intellegendum est, ut, sive unus fuerit sive plures, quibus agere de inofficioso testamento permittitur, una quarta eis dari possit, ut pro rata distribuatur eis, id est pro virili portione, quarta.

6. That a person should be debarred from bringing the action de inofficioso testamento, it is necessary that he should have a fourth, either by hereditary right, or by a legacy or a fideicommissum, or by a donatio mortis causa, or a donatio inter vivos in the cases mentioned in our constitution, or by any of the other means set forth in the constitutions.

7. What we have said of the fourth must be understood as meaning that, whether there is one person only or several, who can bring an action de inofficioso testamento, only one-fourth is to be distributed among all proportionally, that is, each is to have the fourth of his proper share.

D. v. 2. 8. 6. 8; D. v. 2. 25; C. iii. 28–30. 2.

If the donatio inter vivos had been made on the express condition that it should be reckoned as part of the quarta legitima (D. v. 2. 25; C. iii. 28. 35), or had been advanced for the purchase of a military rank (C. iii. 28. 30), then it was taken into account in estimating how much the recipient was entitled to as his fourth; but, generally speaking, as it was the receipt of the fourth of that which a person would have received ab intestato that excluded him from bringing the action de inofficioso, the right to this action could not be taken away by the receipt of gifts, which, having been made inter vivos, could not have formed part of the inheritance ab intestato.

The words, vel aliis modis, &c., refer to sums given by parents to their children as part of dotes, and to donationes propter nuptias (C. iii. 28. 29; C. vi. 20. 20. 1), which were taken into account in reckoning the amount due as the portio legitima.

The right to the action de inofficioso might be extinguished, (1) by the person entitled to the quarta legitima dying without having manifested an intention to dispute the testament: if he had done so, the right to the action passed to his heirs (D. v. 2. 6. 2); (2) if he had allowed a time, fixed first at two and subsequently at five years (Cod. Theod. ii. 19. 5), to elapse without

bringing the action; and (3) when he had acquiesced directly or indirectly in the testament; as, for instance, by making a contract with the persons instituted, in their capacity as heirs (D. v. 2. 20. 1), or by a demand against those persons for the payment of a legacy, or by desisting in the action when once brought. (D. v. 2. 8. 1.)

Justinian, in his Novels, introduced considerable changes in the law on these points. First, if those entitled to the portio legitima were more than four in number, they divided between them onehalf of the whole inheritance; if they were four or less than four, they divided between them a third of the whole inheritance. (Nov. 18. 1.) Secondly, those who could claim a portio legitima were required to be made heirs, and the testament was not to be upheld because those entitled to the portio legitima had something otherwise given them, as by legacy or trust. (Nov. 115. 3, 4.) Thirdly, if the testament was declared inofficious, it was only the institution of the heir or heirs that was to be set aside; the trusts, legacies, gifts of liberty, and appointments of tutors were to remain good. (Nov. 115. 4. 9.) And, fourthly, Justinian fixed and specified the reasons, such as attempts on the testator's life, accusing him of grave crime, &c., limiting them to fourteen in the case of ascendants and to a less number in other cases, for any one of which a testator might disinherit or omit his descendants or ascendants; the one on which the testator had acted was to be expressly stated. (Nov. 115. 3.)

TIT. XIX. DE HEREDUM QUALITATE ET

DIFFERENTIA.

Heredes autem aut necessarii Heirs are said to be necessarii, sui dicuntur aut sui et necessarii aut et necessarii, or extranei.

extranei

GAI. ii. 152.

1. Necessarius heres est servus heres institutus : ideo sic appellatur, quia, sive velit sive nolit, omnimodo post mortem testatoris protinus liber et necessarius heres fit. Unde qui facultates suas suspectas habent, solent servum suum primo aut secundo vel etiam ulteriore gradu heredem instituere, ut, si creditoribus satis non fiat, potius ejus heredis bona quam ipsius testatoris a creditoribus possideantur vel distrahantur vel inter eos dividantur. Pro hoc tamen incommodo illud ei commodum præstatur, ut ea, quæ post mortem patroni sui sibi adquisierit, ipsi reserventur: et quamvis non

1. A necessary heir is a slave instituted heir; and he is so called, because, whether he wishes or not, at the death of the testator he becomes instantly free, and necessarily heir; he, therefore, who suspects that he is not in solvent circumstances, commonly institutes his slave to be his heir in the first, second, or some more remote place; so that, if he does not leave a sum equal to his debts, it may be the goods of this heir, and not those of the testator himself, that are seized or sold by his creditors, or divided among them. But, to compensate for this inconvenience, a slave enjoys the advantage of having reserved to him