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aut secundo vel etiam ulteriore gradu heredem instituere, ut, si creditoribus satis non fiat, potius eius heredis bona quam ipsius testatoris a creditoribus possideantur vel distrahantur vel inter eos dividantur. pro hoc tamen incommodo illud ei commodum praestatur, ut ea, quae post mortem patroni sui sibi adquisierit, ipsi reserventur: et quamvis non sufficiant bona
defuncti creditoribus, iterum ex ea causa res eius, quas sibi 2 adquisierit, non veneunt. Sui autem et necessarii heredes sunt veluti filius filia nepos neptisque ex filio et deinceps ceteri liberi, qui modo in potestate morientis fuerint, sed ut nepos neptisve sui heredes sint, non sufficit eum eamve in potestate avi mortis tempore fuisse, sed opus est, ut pater eius vivo patre suo desierit suus heres esse aut morte interceptus aut qualibet alia ratione liberatus potestate : tunc enim nepos neptisve in locum patris sui succedit. sed sui quidem heredes ideo appellantur, quia domestici heredes sunt et vivo quoque patre quodammodo domini existimantur. unde etiam, si quis
necessarii heredes, including also a free person in mancipio to him, who, however, was entitled, like sui, to the beneficium abstinendi, referred to in § 2 inf. (Gaius ii. 160). As appears from Tit. 15. pr. supr., it was usual for testators, if they had the least reason to suspect their circumstances to be embarrassed, to appoint one or more of their own slaves as final substituti, whereby they were saved from intestacy and posthumous insolvency: and by the lex Aelia Sentia the testamentary manumission and institution of a slave was allowed for this purpose even in fraudem creditorum, Gaius i. 21, Cod. 6. 27. 2. Under the bankruptcy system called venditio bonorum (Poste's Gaius p. 340 and notes) the bankrupt had become infamis, but in Justinian's time only fraudulent bankruptcy operated thus. The first stage in such proceedings was to obtain a decree from the praetor of missio in possessionem (bonorum) rei servandae causa : ultimately the property was sold in lots (bonorum distractio, whence distrahantur in the text) and the proceeds divided among the creditors according to their proved claims; see on Bk. iii. 12 inf.
The privilege which a necessarius heres enjoyed of being liable for the testator's debts only so far as the estate went, is called beneficium separationis, 'item sciendum est necessarium heredem servum cum libertate institutum impetrare posse separationem, scilicet ut, si non attigerit bona patroni, in ea causa sit, ut ei quicquid postea adquisierit separetur, sed et si quid ei a testatore debetur' Dig. 2. 6. 1. 18. Gaius (ii. 155) says that he was not entitled to keep for himself anything which
ei ex hereditaria causa fuerit adquisitum.' · 2. With the description of sui as domestici heredes cf. Plautus,
intestatus mortuus sit, prima causa est in successione liberorum. necessarii vero ideo dicuntur, quia omnimodo, sive velint sive nolint, tam ab intestato quam ex testamento heredes fiunt. sed his praetor permittit volentibus abstinere se ab hereditate, ut potius parentis quam ipsorum bona similiter a creditoribus possideantur.
Ceteri, qui testatoris iuri subiecti non sunt, extranei heredes 3 appellantur. itaque liberi quoque nostri, qui in potestate nostra. non sunt, heredes a nobis instituti extranei heredes videntur. qua de causa et qui heredes a matre instituuntur, eodem numero sunt, quia feminae in potestate liberos non habent. servus quoque a domino heres institutus et post testamentum factum ab eo manumissus eodem numero habetur. In extra- 4 neis heredibus illud observatur, ut sit cum eis testamenti factio, sive ipsi heredes instituantur sive hi qui in potestate eorum sunt. et id duobus temporibus inspicitur, testamenti quidem facti, ut constiterit institutio, mortis vero testatoris, ut effectum habeat. hoc amplius et cum adit hereditatem, esse debet cum eo testamenti factio, sive pure sive sub condicione heres institutus sit: nam ius heredis eo vel maxime tempore inspiciendum
Trinum. 2. 2. 48, where a son says to his father de meo : nam quod tuum'st, meum'st,' cf. also Terence, Heaut. 1. 1. 79, Cic. in Verr. 2. I. 44 'quibuscum (i.e. ex liberis) vivi bona partimur, Pliny, paneg. 37, Ausonius, Idyl. 3. 3.
This ‘beneficium abstinendi' exempted a suus heres from all liability for his pater's debts, 'si se hereditati non immiscuerit,' i.e. if he did nothing from which acceptance of the hereditas could be inferred; 'ut quamvis creditoribus hereditariis iure civili teneantur, tamen in eos actio non detur, si velint derelinquere hereditatem' Dig. 29. 2. 57. pr. ; and a suus heres who was a minor was not prejudiced even by such 'immixtion,' $ 5 inf., Dig. 29. 2. 57. pr. and 1. The result of this privilege was practically to assimilate the suus et necessarius heres to an extraneus ; consequently, he could, like the latter, be compelled by the magistrate to decide within a prescribed time whether he meant to avail himself of it or not, Dig. 28. 8. 7. pr., Cod. 6. 30. 19. If he did, he was treated as if he was not really.heir at all; he had merely 'nudum nomen heredis' Dig. 38. 17. 2. 8, 'hunc qui abstinuit praetor non habet heredis loco' Dig. 11. 1. 12. pr. Consequently, the inheritance became delata, in the first instance, to the substituti, Dig. 42. I. 44, and in default of these to the heredes ab intestato in their several degrees of proximity, Dig. 29. 1. 4. 7, and in the last resort to the fiscus. The beneficium abstinendi passed to the heirs of the instituted suus, Dig. 29. 2. 7. 1, Cod. 6. 30. 19.
4. For testamenti factio passiva' see on Tit. 14. pr., Tit. 17.6 supr.
est, quo adquirit hereditatem. medio autem tempore inter factum testamentum et mortem testatoris vel condicionem institutionis existentem mutatio iuris heredi non nocet, quia ut diximus tria tempora inspici debent. testamenti autem factionem non solum is habere videtur, qui testamentum facere potest, sed etiam qui ex alieno testamento vel ipse capere potest vel alii adquirere, licet non potest facere testamentum. et ideo et furiosus et mutus et postumus et infans et filius familias et servus alienus testamenti factionem habere dicuntur: licet enim testamentum facere non possunt, attamen ex testamento vel 5 sibi vel alii adquirere possunt. Extraneis autem heredibus deliberandi potestas est de adeunda hereditate vel non adeunda. sed sive is, cui abstinendi potestas est, immiscuerit se bonis hereditariis, sive extraneus, cui de adeunda hereditate deliberare licet, adierit, postea relinquendae hereditatis facultatem non habet, nisi minor sit annis viginti quinque : nam huius
§ 5. By the civil law the institutus was not bound to accept or decline the hereditas within any definite time, though such a period was often fixed by the testator, non-acceptance within which caused forfeiture of delatio to the substituti. Where this was done, both the prescribed interval and the signification of acceptance were called cretio, Gaius ii. 164, the latter was required to be made in a recognized form (ib. 166) and before witnesses (Varro, de ling. Lat. 6. 81, Cic. ad Att. 13. 46). Two kinds of cretio were distinguished, vulgaris (Gaius ii. 171. 2), by which the institutus was bound to accept within so many days only after he knew of his institution and was able to make aditio, and continua (Gaius ii. 172, 3), which was not so favourable to the institutus, because the time began to run immediately on the testator's decease, and might have wholly elapsed before he was able to take advantage of his rights or was even aware of them. The solemn forms of cretio, which are preserved by Gaius, were abolished A.D. 407 by Honorius and Arcadius, Cod. 6. 30. 17, though of course this did not in any way prevent testators from still making the institution conditional on acceptance within a fixed time from the date of decease.
But though no rule of law required a reasonably prompt aditio, it was · always open to the deceased's creditors (and we may add to legatees,
fideicommissarii, substituti, and other persons jointly instituted) to petition the praetor to fix a time within which it must be made, solet praetor, postulantibus hereditariis creditoribus, tempus constituere, intra quod si velit adeat hereditatem ; si minus, ut liceat creditoribus bona defuncti vendere ' Gaius ii. 167. The interval so fixed was called 'spatium deliberandi : ait praetor, si tempus ad deliberandum petet, dabo' Dig. 28. 8. 1. 1. Under Justinian no longer than nine months might be
aetatis hominibus sicut in ceteris omnibus causis deceptis; ita et si temere damnosam hereditatem susceperint, praetor suc
allowed for this purpose, though this might be extended to a year upon personal petition to the Emperor, Cod. 6. 30. 9, and he also entirely altered the legal position of the institutus by enacting that by doing nothing in the way of either refusal or acceptance within the time allowed he lost not the latter right but the former, Cod. 6. 30. 22. 14. An institutus whose title was threatened by querella inofficiosi was required to accept within six months, or within twelve if he and the claimant resided in different jurisdictions, Cod. 3. 28. 36. 2. Bonorum possessio (as contrasted with the hereditas) had in every case to be accepted within a fixed limit of time, a year being allowed to ascendants and descendants, and a hundred days to all other persons, Bk. iii. 9. 9 and 10 inf.
By the act of acceptance the interval which had elapsed since the decease was held by a fiction to be obliterated ; 'heres quandoque adeundo hereditatem iam tunc a morte successisse defuncto intellegitur' Dig. 29. 2. 24. The effect of acceptance (until Justinian) had been to produce a confusio between the proprietary relations of the deceased and those of the heir; what had been two properties, two sets of rights of action, two sets of liabilities, were now combined in one; hence debts which either owed to the other were cancelled, 'si debitor heres creditori extiterit, confusio hereditatis perimit petitionis actionem' Dig. 46. 3. 75, and iura in re which the one had enjoyed over the property of the other were extinguished, Dig. 18. 4. 2. 18 and 19; cf. (2) p. 209 supr. But possession did not pass to the heir without an independent apprehensio by him,'quia hereditas in eum id tantum transfundit, quod est hereditatis : non fuit autem possessio hereditatis' Dig. 47. 4. 1. 15.
Subject to the exceptions noticed in the text, the acceptance was irrevocable. The heir might have been mistaken in his estimate of the assets and liabilities of the deceased, but having once taken upon himself the universitas iuris, he could not get rid of it : semel heres, semper heres. He thus became as fully liable for the deceased's debts as though he had contracted them himself, 'hereditas autem quin obliget nos aeri alieno etiamsi non sit solvendo plus quam manifestum est? Dig. 29. 2. 8. Under such circumstances the hereditas was said to be damnosa, Dig. 17. I. 32 ; 29. 2. 57. 1; but if its solvency appeared doubtful, the institutus could protect himself by making an arrangement with the creditors before acceptance, by which the latter resigned any claims which they might have against the estate beyond its actual value ; he then accepted as their agent and mandatary, and could recover from them any loss which he might sustain in so doing, Dig. 17. 1. 32 : the creditors might even agree by resolution to accept so much in the pound, and here the majority bound the minority, Dig. 2. 14. 7. 17, ib. 8-10. pr. Conversely, the creditors of the deceased might suspect that though the latter's assets were sufficient to meet all their claims, they would not,
6 currit. Sciendum tamen est divum Hadrianum etiam maiori viginti quinque annis veniam dedisse, cum post aditam hereditatem grande aes alienum, quod aditae hereditatis tempore latebat, emersisset. sed hoc divus quidem Hadrianus speciali beneficio cuidam praestitit: divus autem Gordianus postea in militibus tantummodo hoc extendit: sed nostra benevolentia
even with the heir's own property, suffice to pay the latter's debts also; in such a case as this they were entitled to apply within five years to the praetor for a separatio bonorum, the effect of which was to prefer their own rights against the bona separata to those of the heir's own creditors, though they forfeited all claim to any subsequent payment from the heir's own property, should the separated portion prove in fact insufficient for their satisfaction, Dig. 42. 6. 1. 1. The heir, however, is bound by his testator's dispositions. He may in his will have done more than institute an heir ; he may have given legacies or fideicommissa, left instructions as to his funeral, appointed guardians to his children and settled the arrangements for their education, forbidden alienation of certain res hereditariae, and so forth. All these dispositions are valid and binding on the heir, Dig. 33. 1. 7. I ; 44. 7. 5. 2.
When there are two or more joint heirs, the hereditas passes to them collectively, as a whole; there is said to be a communio in it between them, but to each of them individually it passes only pro rata ; each coheres is not liable for the testator's debts in full, but only in the same ratio in which he is instituted, the liabilities being divided between them ipso iure, Cod. 3. 36. 3. Division of course would usually take place by arrangement, but if any one refused to concur, he could be compelled by the actio familiae erciscundae, to which also he could resort if he thought he was being unfairly treated by his coheirs,'haec actio proficiscitur ex lege duodecim tabularum, namque coheredibus, volentibus a communione discedere, necessarium videbatur aliquam actionem constitui, qua inter eos res hereditariae distribuerentur' Dig. 10. 2. 1. pr. Sometimes a coheres could not claim a division without bringing into the inheritance certain property of his own (collatio bonorum). This practice had originated in the praetorian bonorum possessio, whether contra tabulas or ab intestato; the praetor would not admit emancipati to share the estate with their unemancipated brothers and sisters unless they brought into 'hotchpot' all that they had acquired for themselves since their own release from potestas, Dig. 37. 6. 1. 14. The Emperors, especially A. Pius and Leo, further developed the obligation, requiring that where a number of descendants succeeded jointly to a common ascendant, each female should bring in the dos which she had received from the latter (dotis collatio), and the rule was subsequently extended to much other property which descendants of either sex had received from the common ascendant in his lifetime, Dig. 37. 6.
For the relief of minors by in integrum restitutio see on Bk. iv. 6. 33 inf. § 6. For the privilege of soldiers cf. Cod. 6. 30. 22. 4 and 15 ‘milites,