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 aequius erat et Atilicino placuisse Paulus suis libris, quos tam ad Masurium Sabinum quam ad Plautium scripsit, refert. proprius autem servus etiam is intellegitur, in quo nudam proprietatem testator habet, alio usum fructum habente. est autem casus, in quo nec cum libertate utiliter servus a domina heres instituitur, ut constitutione divorum Severi et Antonini cavetur, cuius verba haec sunt: 'Servum adulterio maculatum non iure testamento manumissum ante sententiam ab ea muliere videri, quae rea fuerat eiusdem criminis postulata, rationis est: quare sequitur, ut in eundem a domina collata institutio nullius momenti habeatur.' alienus servus etiam is 1 intellegitur, in quo usum fructum testator habet. Servus autem a domino suo heres institutus, si quidem in eadem

were properly disinherited in the will could take nothing under it, i. e. the exheredations stand, even though the will is practically nullified, unless the will itself becomes void by being destitutum.

(2) The effect of bonorum possessio contra tabulas being not to substitute the ordinary rules of intestacy, but to make the deceased's bona divisible among such liberi as are not duly disinherited, later changes in the law of intestate succession (e.g. Nov. 118) have no influence here, and the nova clausula Iuliani (for which see Mr. Poste's note on Gaius ii. 135) applies.

(3) Certain portions of the will, if valid iure civili, still remain in force, viz. (a) the exheredations, Dig. 37. 4. 8. pr., ib. 10. 5; (6) the pupillary substitutions (Tit. 16 inf.) and appointments of testamentary guardians; (c) legacies and fideicommissa to coniunctae personae, i. e. ascendants and descendants of the testator, and praelegata dotis to the wife (Tit. 20. 15 inf.), or wife of a descendant, Dig. 37. 5. 1. pr. A constitution of A. Pius (Dig. 37. 5.7) limited the amount of such dispositions by enacting that all the coniunctae personae together could not take more than each of the bonorum possessores.

Tit. XIV. If a slave in whom another had a usufruct was manumitted

causa manserit, fit ex testamento liber heresque necessarius. si vero a vivo testatore manumissus fuerit, suo arbitrio adire hereditatem potest, quia non fit necessarius, cum utrumque ex domini testamento non consequitur. quodsi alienatus fuerit, iussu novi domini adire hereditatem debet et ea ratione per eum dominus fit heres: nam ipse alienatus neque liber neque heres esse potest, etiamsi cum libertate heres institutus fuerit: destitisse etenim a libertatis datione videtur dominus qui eum alienavit. alienus quoque servus heres institutus si in eadem causa duraverit, iussu domini adire hereditatem debet. si vero alienatus ab eo fuerit aut vivo testatore aut post mortem eius

by his dominus, under the old law he remained a slave until the usufruct determined, Dig. 28. 5. 9. 20. By Justinian's constitution (Cod. 7. 15. 1. pr.) 'inter libertos proprietarii... quasi servus apud usufructuarium permaneat.'

The constitution of Severus and Antoninus here referred to had been in some degree suggested by the lex Iulia de adulteriis, which provided 'ne mulier intra sexagesimum divortii diem servos manumittat' Dig. 40. 9. 12-14. If manumitted under the circumstances of the text the act was not quite 'nullius momenti:' he became statu liber on the mistress' decease before trial, and absolutely free if acquitted-maculatum meaning 'accusatum' (Dig. 38. 5. 48. 2: cf. Theoph. voxov övтa tỷ μoixeia.)

The purpose of a will being the bestowal of the universal succession, the institution of the heir or heirs was regarded as of more importance than any other part-as in fact the only part which was in every case indispensable,' quia testamenta vim ex institutione heredis accipiunt, ob id velut caput et fundamentum intellegitur totius testamenti heredis institutio' Gaius ii. 229: cf. Tit. 20. 34 inf. Hence, under the old law, no disposition could precede it in the will except exheredations (e. g. legacy or manumission); and the Sabinians even held that the appointment of a testamentary guardian ante heredis institutionem was void (Gaius ii. 230-1). This was all changed by Justinian, Tit. 20. 34 inf., Bk. i. 14. 3 supr., Cod. 6. 23. 24.

Originally, too, solemn forms of institution were prescribed: 'heres institui recte potest his verbis: Titius heres esto, Titius heres sit, Titium heredem esse iubeo. Illa autem institutio; heredem instituo, heredem facio, plerisque improbata est' Ulpian, feg. 21. I: cf. Gaius ii. 117. The necessity of using such formulae was first abolished by Constantine II, A.D. 389, 'quibus libet confecta sententiis, vel quolibet loquendi genere formata institutio valeat, si modo per eam liquebit voluntatis intentio' Cod. 6. 23. 15; even the name of the heir was unnecessary, if it was certain who was intended, Dig. 28. 5. 9. 8: cf. Tit. 20. 29 inf.

Some persons cannot be validly instituted at all: they lack testamenti factio. Others, though they can be validly instituted, can either take

antequam adeat, debet iussu novi domini adire. at si manumissus est vivo testatore, vel mortuo antequam adeat, suo

nothing at all as heirs, or at least the portion they can take is limited by law. Between these two classes there is an important difference. The will is void, if the person instituted lacks testamenti factio at the date either of the execution of the will, or of the testator's decease, or at which he ought to make aditio, Dig. 28. 5. 49. 1, Tit. 19. 4 inf. But where one of the second class was instituted, the will was never void on that ground alone, and capacity to take was required to exist only at the time when the benefit vested: 'non oportet prius de condicione cuiusquam quaeri, quam hereditas legatumve ad eum pertinet.'

Those who could not be validly instituted at all are (1) peregrini; (2) intestabiles, Dig. 28. 1. 18. 1, ib. 26; Theoph. ad Inst. ii. 10. 6, though the incapacity of this class in Justinian's time has been doubted; (3) heretics, Cod. 1. 5. 4, and apostates, Cod. 1. 7. 3 and 4 ; (4) children of persons convicted of treason, Cod. 9. 8. 5. 1; (5) children of and parties to unlawful marriages could not be instituted, the former by the parents, the latter by one another, Cod. 5. 5. 6; 5. 9. 6, ib. 27. 2; (6) incertae personae, in particular (a) postumi; but the last relic of this rule, viz. that a postumus alienus could not be instituted heir or take a legacy was repealed by Justinian himself, Tit. 20. 28, Bk. iii. 9. pr. inf. and (b) juristic persons, Ulpian, reg. 22. 5. This restriction had, however, to a large extent been removed; the fiscus could be instituted heir, and so could municipal corporations (Cod. 6. 24. 12), churches, and religious and charitable foundations (Cod. 1. 2. 1 and 23). Other corporations could acquire testamenti factio only by special grant from the Emperor, Cod. 6. 24. 8; (7) the lex Voconia, B. C. 169, had made women incapable of being instituted heirs to persons ranked in the highest class of the census as possessing 100,000 sesterces or upwards (Gaius ii. 274), though they might be legatees to the extent of half the property, Quintil. declam. 264. This disqualification was quite obsolete under Justinian.

Among the enactments disabling certain classes from taking under a will either in whole or in part are the following:

(1) By the lex Iunia Norbana Latini Iuniani were prohibited from taking either as heirs or as legatees, unless they acquired the civitas within 100 days, Gaius i. 23-4, ii. 110, 275, Ulpian, reg. 17. 1.

(2) By a lex Iulia of Augustus, the coelebs (unmarried person) could take nothing under the will of one unrelated to him or her within the sixth degree as either heir or legatee, unless he or she married within 100 days next after hearing of the right. Certain classes were excepted on account of age, physical incapacity, etc., Ulpian, reg. 14. 16 and 18.

(3) By the lex Papia Poppaea, five years later in date, the orbus (i. e. person who had been married but had no children living, Ulpian, reg. 16. 1) could take under wills of persons outside the sixth degree only a moiety of what was given them. One child was sufficient to save a man from the statute, for ingenuae three, for libertae four were required.

arbitrio adire hereditatem potest. Servus alienus post domini 2 mortem recte heres instituitur, quia et cum hereditariis servis est testamenti factio: nondum enim adita hereditas personae vicem sustinet, non heredis futuri, sed defuncti, cum et eius,

Here again there were exceptions on the ground of age and absence reipublicae causa.

(4) By the same statute, husband and wife who had no children by the marriage could take under one another's wills only a tenth of what was given them (lex decimaria), though the amount was increased by the existence of issue by a previous marriage, or if such issue had died. They were, however, entitled in addition to the usufruct of a third of the residue from which they were excluded. Portions which under these last two statutes could not be taken by those for whom they had been intended, became caduca, and went in the first instance to co-legatees with children, in the second, to instituted male heirs with children, in the third, to male legatees with children, and in default of all, to the treasury. These restrictions, however, no longer existed under Justinian, the penalties of coelibatus and orbitas having been abolished by the sons of Constantine, Cod. 8. 16. 1, and the lex decimaria repealed by Honorius and Theodosius, Cod. 8. 58. 2.

(5) Domitian disqualified feminae probrosae from taking either the hereditas or legata, Dig. 29. 1. 41. 1, Cod. 5. 1. 23. For other disabilities imposed on persons who married a second time, or on illegitimate while legitimate children were living, see Cod. 5. 9. 6 and 10, Nov. 22. 27 and 28, Nov. 89. 12, for a different case, Tit. 17. 8 inf. Finally, the hereditas or legata were sometimes 'erepta' from the person prima facie entitled on the ground of unworthiness (see Dig. 34. 9, Cod. 6. 35), the forfeiture being sometimes in favour of the fiscus, sometimes in that of other persons.

For the institution of servus proprius sine libertate see Gaius ii. 186, Bk. 1. 6. 2 supr., Cod. 6. 27. 5.

§ 2. The opening words of this paragraph are ambiguous; they may refer to the institution of a slave actually at the time belonging to a hereditas iacens (Dig. 28. 5. 52, ib. 64), or to an institution not to take effect until the dominus of the slave instituted is dead, Theoph. The institution of a servus alienus is at first sight enigmatical, for as he could acquire the inheritance only for his master, why not institute the latter at once? The solution is twofold. Firstly, the institution of the slave secured the transmission of the inheritance to the heirs of his master, whereas if the latter had been instituted himself and had predeceased the testator, the institution would have lapsed: and this could not be prevented by giving a 'remainder' to his heirs by substitution, for they were incertae personae; nemo est heres viventis. To guard against the contingency of the slave's own death in the lifetime of the testator, several slaves might be instituted by way of substitution. The other advantage of instituting a servus alienus will appear from a considera

3 qui in utero est, servus recte heres instituitur. Servus plurium, cum quibus testamenti factio est, ab extraneo institutus heres unicuique dominorum, cuius iussu adierit, pro portione dominii adquirit hereditatem.

4

Et unum hominem et plures in infinitum, quot quis velit, 5 heredes facere licet. Hereditas plerumque dividitur in duode

tion of the difficulty of transferring an inheritance inter vivos. The maxim being semel heres, semper heres, it was idle to talk of transferring the universitas iuris when a man had once actually become heir by aditio. But at an earlier moment it might have been possible; what was there to prevent one to whom a hereditas was delata, and who thus had the right of accepting, from transferring that right of acceptance to another? The aditio of an inheritance, however, was an actus legitimus, performable only by the actual person to whom it was delata, so that even where the person was a slave, who got nothing by aditio, he must accept himself; his master could not do it for him, and consequently the Romans refused consistently to admit any such assignment. To this general rule there are but very few exceptions, usually called 'cases of transmission,' only one of which concerns us here. Gaius tells us (ii. 35) that when an inheritance was delata to an agnate under an intestacy, he could, in lieu of personally exercising his right of aditio, transfer it by in iure cessio to anyone he pleased, and then 'perinde fit heres is cui in iure cesserit, ac si ipse per legem ad hereditatem vocatus esset.' But this was the only case in which such transfer was possible and considering the Roman dislike of intestacy, and the subordinate position of agnates to sui, it must even in Gaius' time have been a very rare one.

If, however, A instituted C, the slave of B, on A's decease B could either actually become heir by directing C to make aditio, or he could get all the advantage derivable from the succession, without incurring the trouble of administration, by selling C at a price enhanced by his character of institutus: C then made aditio at the direction of the purchaser, who thereby became heres. If the first owner was reluctant to permanently part with his slave, he had only to bargain for his reconveyance by a covenant annexed to the sale, Dig. 28. 3. 58.

Another clumsy expedient for effecting the same purpose was a sale of the inheritance by the heres after acceptance. This was no violation of the rule semel heres, semper heres, because it did not produce a universal succession: the purchaser became owner of the deceased's tangible property only by traditio (Cod. 4. 39. 6), succeeded to his rights in personam only as cessionary (Dig. 18. 4. 2. 3 and 8), and became answerable for his debts only according to the ordinary rules of intercession. When, however, the inheritance was purchased from the fiscus, the vendee was a genuine universal successor, Cod. 4. 39. I. For practical illustrations of such sales see Tit. 23 inf.