THE INSTITUTES OF JUSTINIAN. |
| ~ Book II ~ |
| ( J. B. Moyle, The Institutes of Justinian, 5th ed., Oxford, 1913 ). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 |
In the preceding book we have expounded the law of Persons: now
let us proceed to the law of Things. Of these, some admit of private
ownership, while others, it is held, cannot belong to individuals: for
some things are by natural law common to all, some are public, some
belong to a society or corporation, and some belong to no one. But most
things belong to individuals, being acquired by various titles, as will
appear from what follows. 1. Thus, the following things are by natural law common to all – the air, running water, the sea, and consequently the sea-shore. No one therefore is forbidden access to the sea-shore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations. 2. On the other hand, all rivers and harbours are public, so that all persons have a right to fish therein. 3. The sea-shore extends to the limit of the highest tide in time of storm or winter. 4. Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it. 5. Again, the public use of the sea-shore, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea. But they cannot be said to belong to any one as private property, but rather are subject to the same law as the sea itself, with the soil or sand which lies beneath it. 6. As examples of things belonging to a society or corporation, and not to individuals, may be cited buildings in cities – theatres, racecourses, and such other similar things as belong to cities in their corporate capacity. 7. Things which are sacred, devoted to superstitious uses, or sanctioned, belong to no one, for what is subject to divine law is no one's property. 8. Those things are sacred which have been duly consecrated to God by His ministers, such as churches and votive offerings which have been properly dedicated to His service; and these we have by our constitution forbidden to be alienated or pledged, except to redeem captives from bondage. If any one attempts to consecrate a thing for himself and by his own authority, its character is unaltered, and it does not become sacred. The ground on which a sacred building is erected remains sacred even after the destruction of the building, as was declared also by Papinian. 9. Any one can devote a place to superstitious uses of his own free will, that is to say, by burying a dead body in his own land. It is not lawful, however, to bury in land which one owns jointly with some one else, and which has not hitherto been used for this purpose, without the other's consent, though one may lawfully bury in a common sepulchre even without such consent. Again, the owner may not devote a place to superstitious uses in which another has a usufruct, without the consent of the latter. It is lawful to bury in another man's ground, if he gives permission, and the ground thereby becomes religious even though he should not give his consent to the interment till after it has taken place. 10. Sanctioned things, too, such as city walls and gates, are, in a sense, subject to divine law, and therefore are not owned by any individual. Such walls are said to be sanctioned, because any offence against them is visited with capital punishment; for which reason those parts of the laws in which we establish a penalty for their transgressors are called sanctions. 11. Things become the private property of individuals in many ways; for the titles by which we acquire ownership in them are some of them titles of natural law, which, as we said, is called the law of nations, while some of them are titles of civil law. It will thus be most convenient to take the older law first: and natural law is clearly the older, having been instituted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written. 12. Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it. 13. It has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it. 14. Bees again are naturally wild; hence if a swarm settles on your tree, it is no more considered yours, until you have hived it, than the birds which build their nests there, and consequently if it is hived by some one else, it becomes his property. So too any one may take the honey-combs which bees may chance to have made, though, of course, if you see some one coming on your land for this purpose, you have a right, to forbid him entry before that purpose is effected. A swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it. 15. Peafowl too and pigeons are naturally wild, and it is no valid objection that they are used to return to the same spots from which they fly away, for bees do this, and it is admitted that bees are wild by nature; and some people have deer so tame that they will go into the woods and yet habitually come back again, and still no one denies that they are naturally wild. With regard, however, to animals which have this habit of going away and coming back again, the rule has been established that they are deemed yours so long as they have the intent to return: for if they cease to have this intention they cease to be yours, and belong to the first person who takes them; and when they lose the habit they seem also to have lost the intention of returning. 16. Fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. Hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and any one who keeps them intending thereby to make a profit is held guilty of theft. 17. Things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves, though, if they escape from our power and return to their own people, they recover their previous condition. 18. Precious stones too, and gems, and all other things found on the sea-shore, become immediately by natural law the property of the finder: 19. and by the same law the young of animals of which you are the owner become your property also. 20. Moreover, soil which a river has added to your land by alluvion becomes yours by the law of nations. Alluvion is an imperceptible addition; and that which is added so gradually that you cannot perceive the exact increase from one moment of time to another is added by alluvion. 21. If, however, the violence of the stream sweeps away a parcel of your land and carries it down to the land of your neighbour it clearly remains yours; though of course if in the process of time it becomes firmly attached to your neighbour's land, they are deemed from that time to have become part and parcel thereof. 22. When an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied, it is held to belong to no one. If, however (as often occurs), an island rises in a river, and it lies in the middle of the stream, it belongs in common to the landowners on either bank, in proportion to the extent of their riparian interest; but if it lies nearer to one bank than to the other, it belongs to the landowners on that bank only. If a river divides into two channels, and by uniting again these channels transform a man's land into an island, the ownership of that land is in no way altered: 23. but if a river entirely leaves its old channel, and begins to run in a new one, the old channel belongs to the landowners on either side of it in proportion to the extent of their riparian interest, while the new one acquires the same legal character as the river itself, and becomes public. But if after a while the river returns to its old channel, the new channel again becomes the property of those who possess the land along its banks. 24. It is otherwise if one's land is wholly flooded, for a flood does not permanently alter the nature of the land, and consequently if the water goes back the soil clearly belongs to its previous owner. 25. When a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong – to the man who made it, or to the owner of the materials? For instance, one man may make wine, or oil, or corn, out of another man's grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or a plaster or eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair out of his timber. After many controversies between the Sabinians and Proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. If the new object can be reduced to the materials out of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. For instance, a vessel can be melted down, and so reduced to the rude material – bronze, silver, or gold – of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey out of which it was compounded. But if a man makes a new object out of materials which belong partly to him and partly to another – for instance, mead of his own wine and another's honey, or a plaster or eyesalve of drugs which are not all his own, or cloth of wool which belongs only in part to him – in this case there can be no doubt that the new object belongs to its creator, for he has contributed not only part of the material, but the labour by which it was made. 26. If, however, a man weaves into his own cloth another man's purple, the latter, though the more valuable, becomes part of the cloth by accession; but its former owner can maintain an action of theft against the purloiner, and also a condiction, or action for reparative damages, whether it was he who made the cloth, or some one else; for although the destruction of property is a bar to a real action for its recovery, it is no bar to a condiction against the thief and certain other possessors. 27. If materials belonging to two persons are mixed by consent – for instance, if they mix their wines, or melt together their gold or their silver – the result of the mixture belongs to them in common. And the law is the same if the materials are of different kinds, and their mixture consequently results in a new object, as where mead is made by mixing wine and honey, or electrum by mixing gold and silver; for even here it is not doubted that the new object belongs in common to the owners of the materials. And if it is by accident, and not by the intention of the owners, that materials have become mixed, the law is the same, whether they were of the same or of different kinds. 28. But if the corn of Titius has become mixed with yours, and this by mutual consent, the whole will belong to you in common, because the separate bodies or grains, which before belonged to one or the other of you in severalty, have by consent on both sides been made your joint property. If, however, the mixture was accidental, or if Titius mixed the two parcels of corn without your consent, they do not belong to you in common, because the separate grains remain distinct, and their substance is unaltered; and in such cases the corn no more becomes common property than does a flock formed by the accidental mixture of Titius's sheep with yours. But if either of you keeps the whole of the mixed corn, the other can bring a real action for the recovery of such part of it as belongs to him, it being part of the province of the judge to determine the quality of the wheat which belonged to each. 29. If a man builds upon his own ground with another’s materials, the building is deemed to be his property, for buildings become a part of the ground on which they stand. And yet he who was owner of the materials does not cease to own them, but he cannot bring a real action for their recovery, or sue for their production, by reason of a clause in the Twelve Tables providing that no one shall be compelled to take out of his house materials (tignum), even though they belong to another, which have once been built into it, but that double their value may be recovered by the action called de tigno iniuncto. The term tignum includes every kind of material employed in building, and the object of this provision is to avoid the necessity of having buildings pulled down; but if through some cause or other they should be destroyed, the owner of the materials, unless he has already sued for double value, may bring a real action for recovery, or a personal action for production. 30. On the other hand, if one man builds a house on another’s land with his own materials, the house belongs to the owner of the land. In this case, however, the right of the previous owner in the materials is extinguished, because he is deemed to have voluntarily parted with them, though only, of course, if he was aware that the land on which he was building belonged to another man. Consequently, though the house should be destroyed, he cannot claim the materials by real action. Of course, if the builder of the house has possession of the land, and the owner of the latter claims the house by real action, but refuses to pay for the materials and the workmen’s wages, he can be defeated by the plea of fraud, provided the builder’s possession is in good faith: for if he knew that the land belonged to some one else it may be urged against him that he was to blame for rashly building on land owned to his knowledge by another man. 31. If Titius plants another man’s shrub in land belonging to himself, the shrub will become his; and, conversely, if he plants his own shrub in the land of Maevius, it will belong to Maevius. In neither case, however, will the ownership be transferred until the shrub has taken root: for, until it has done this, it continues to belong to the original owner. So strict indeed is the rule that the ownership of the shrub is transferred from the moment it has taken root, that if a neighbour’s tree grows so close to the land of Titius that the soil of the latter presses round it, whereby it drives its roots entirely into the same, we say the tree becomes the property of Titius, on the ground that it would be unreasonable to allow the owner of a tree to be a different person from the owner of the land in which it is rooted. Consequently, if a tree which grows on the boundaries of two estates drives its roots even partially into the neighbour’s soil, it becomes the common property of the two landowners. 32. On the same principle corn is reckoned to become a part of the soil in which it is sown. But exactly as (according to what we said) a man who builds on another’s land can defend himself by the plea of fraud when sued for the building by the owner of the land, so here too one who has in good faith and at his own expense put crops into another man’s soil can shelter himself behind the same plea, if refused compensation for labour and outlay. 33. Writing again, even though it be in letters of gold, becomes a part of the paper or parchment, exactly as buildings and sown crops become part of the soil, and consequently if Titius writes a poem, or a history, or a speech on your paper and parchment, the whole will be held to belong to you, and not to Titius. But if you sue Titius to recover your books or parchments, and refuse to pay the value of the writing, he will be able to defend himself by the plea of fraud, provided that he obtained possession of the paper or parchment in good faith. 34. Where, on the other hand, one man paints a picture on another’s board, some think that the board belongs, by accession, to the painter, others, that the painting, however great its excellence, becomes part of the board. The former appears to us the better opinion, for it is absurd that a painting by Apelles or Parrhasius should be an accessory of a board which, in itself, is thoroughly worthless. Hence, if the owner of the board has possession of the picture, and is sued for it by the painter, who nevertheless refuses to pay the cost of the board, he will be able to repel him by the plea of fraud. If, on the other hand, the painter has possession, it follows from what has been said that the former owner of the board, [if he is to be able to sue at all], must claim it by a modified and not by a direct action; and in this case, if he refuses to pay the cost of the picture, he can be repelled by the plea of fraud, provided that the possession of the painter be in good faith; for it is clear, that if the board was stolen by the painter, or some one else, from its former owner, the latter can bring the action of theft. 35. If a man in good faith buys land from another who is not its owner, though he believed he was, or acquires it in good faith by gift or some other lawful title, natural reason directs that the fruits which he has gathered shall be his, in consideration of his care and cultivation: consequently if the owner subsequently appears and claims the land by real action, he cannot sue for fruits which the possessor has consumed. This, however, is not allowed to one who takes possession of land which to his knowledge belongs to another person, and therefore he is obliged not only to restore the land, but to make compensation for fruits even though they have been consumed. 36. A person who has a usufruct in land does not become owner of the fruits which grow thereon until he has himself gathered them; consequently fruits which, at the moment of his decease, though ripe, are yet ungathered, do not belong to his heir, but to the owner of the land. What has been said applies also in the main to the lessee of land. 37. The term "fruits," when used of animals, comprises their young, as well as milk, hair, and wool; thus lambs, kids, calves, and foals, belong at once, by the natural law of ownership, to the fructuary. But the term does not include the offspring of a female slave, which consequently belongs to her master; for it seemed absurd to reckon human beings as fruits, when it is for their sake that all other fruits have been provided by nature. 38. The usufructuary of a flock, as Julian held, ought to replace any of the animals which die from the young of the rest, and, if his usufruct be of land, to replace dead vines or trees; for it is his duty to cultivate according to law and use them like a careful head of a family. 39. If a man found treasure in his own land, the Emperor Hadrian, following natural equity, adjudged to him the ownership of it, as he also did to a man who found one by accident in soil which was sacred or religious. If he found it in another man’s land by accident, and without specially searching for it, he gave half to the finder, half to the owner of the soil; and upon this principle, if a treasure were found in land belonging to the Emperor, he decided that half should belong to the latter, and half to the finder; and consistently with this, if a man finds one in land which belongs to the imperial treasury or the people, half belongs to him, and half to the treasury or the State. 40. Delivery again is a mode in which we acquire things by natural law; for it is most agreeable to natural equity that where a man wishes to transfer his property to another person his wish should be confirmed. Consequently corporeal things, whatever be their nature, admit of delivery, and delivery by their owner makes them the property of the alienee; this, for instance, is the mode of alienating stipendiary and tributary estates, that is to say, estates lying in provincial soil; between which, however, and estates in Italy there now exists, according to our constitution, no difference. 41. And ownership is transferred whether the motive of the delivery be the desire to make a gift, to confer a dowry, or any other motive whatsoever. When, however, a thing is sold and delivered, it does not become the purchaser’s property until he has paid the price to the vendor, or satisfied him in some other way, as by getting some one else to accept liability for him, or by pledge. And this rule, though laid down also in the statute of the Twelve Tables, is rightly said to be a dictate of the law of all nations, that is, of natural law. But if the vendor gives the purchaser credit, the goods sold belong to the latter at once. 42. It is immaterial whether the person who makes delivery is the owner himself, or some one else acting with his consent. 43. Consequently, if any one is entrusted by an owner with the management of his business at his own free discretion, and in the execution of his commission sells and delivers any article, he makes the receiver its owner. 44. In some cases even the owner’s bare will is sufficient, without delivery, to transfer ownership. For instance, if a man sells or makes you a present of a thing which he has previously lent or let to you or placed in your custody, though it was not from that motive he originally delivered it to you, yet by the very fact that he suffers it to be yours you at once become its owner as fully as if it had been originally delivered for the purpose of passing the property. 45. So too if a man sells goods lying in a warehouse, he transfers the ownership of them to the purchaser immediately he has delivered to the latter the keys of the warehouse. 46. Nay, in some cases the will of the owner, though directly only towards an uncertain person, transfers the ownership of the thing, as for instance when praetors and consuls throw money to a crowd: here they know not which specific coin each person will get, yet they make the unknown recipient immediately owner, because it is their will that each shall have what he gets. 47. Accordingly, it is true that if a man takes possession of property abandoned by its previous owner, he at once becomes its owner himself: and a thing is said to be abandoned which its owner throws away with the deliberate intention that it shall no longer be part of his property, and of which, consequently, he immediately ceases to be the owner. 48. It is otherwise with things which are thrown overboard during a storm, in order to lighten the ship; in the ownership of these things there is no change, because the reason for which they are thrown overboard is obviously not that the owner does not care to own them any longer, but that he and the ship besides may be more likely to escape the perils of the sea. Consequently any one who carries them off after they are washed on shore, or who picks them up at sea and keeps them, intending to make a profit thereby, commits a theft; for such things seem to be in much the same position as those which fall out of a carriage in motion unknown to their owners. |
Some things again are corporeal, and others incorporeal. 1. Those are corporeal which in their own nature are tangible, such as land, slaves, clothing, gold, silver, and others innumerable. 2. Things incorporeal are such as are intangible: rights, for instance, such as inheritance, usufruct, and obligations, however acquired. And it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something corporeal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal. 3. So too the rights appurtenant to land, whether in town or country, which are usually called servitudes, are incorporeal things. |
The following are rights appurtenant to country estates:
iter, the right of passage at will for a man only, not of driving
beast or vehicles; actus, the right of driving beasts or vehicles
(of which two the latter contains the former, though the former does
not contain the latter, so that a man who has iter has not necessarily
actus, while if he has actus he has also iter,
and consequently can pass himself even though unaccompanied by cattle);
via, which is the right of going, of driving any thing whatsoever,
and of walking, and which thus contains both iter and actus;
and fourthly, aquaeductus, the right of conducting water over
another man’s land. 1. Servitudes appurtenant to town estates are rights which are attached to buildings; and they are said to appertain to town estates because all buildings are called "town estates," even though they are actually in the country. The following are servitudes of this kind – the obligation of a man to support the weight of his neighbour’s house, to allow a beam to be let into his wall, or to receive the rain from his neighbour’s roof on to his own either in drops or from a shoot, or from a gutter into his yard; the converse right of exemption from any of these obligations; and the right of preventing a neighbour from raising his buildings, lest thereby one’s ancient lights be obstructed. 2. Some think that among servitudes appurtenant to country estates ought properly to be reckoned the rights of drawing water, of watering cattle, of pasture, of burning lime, and of digging sand. 3. These servitudes are called rights attached to estates, because without estates they cannot come into existence; for no one can acquire or own a servitude attached to a town or country estate unless he has an estate for it to be attached to. 4. When a landowner wishes to create any of these rights in favour of his neighbour, the proper mode of creation is agreement followed by stipulation. By testament too one can impose on one’s heir an obligation not to raise the height of his house so as to obstruct his neighbour’s ancient lights, or bind him to allow a neighbour to let a beam into his wall, to receive the rain water from a neighbour’s pipe, or allow a neighbour a right of way, of driving cattle or vehicles over his land, or conducting water over it. |
Usufruct is the right of using and taking the fruits
of property not one’s own, without impairing the substance of that property;
for being a right over a corporeal thing, it is necessarily extinguished
itself along with the extinction of the latter. 1. Usufruct is thus a right detached from the aggregate of rights involved in ownership, and this separation can be effected in very many ways: for instance, if one man gives another a usufruct by legacy, the legatee has the usufruct, while the heir has merely the bare ownership; and, conversely, if a man gives a legacy of an estate, reserving the usufruct, the usufruct belongs to the heir, while only the bare ownership is vested in the legatee. Similarly, he can give to one man a legacy of the usufruct, to another one of the estate, subject to the other’s usufruct. If it is wished to create a usufruct in favour of another person otherwise than by testament, the proper mode is agreement followed by stipulation. However, lest ownership should be entirely valueless through the permanent separation from it of the usufruct, certain modes have been approved in which usufruct may be extinguished, and thereby revert to the owner. 2. A usufruct may be created not only in land or buildings, but also in slaves, cattle, and other objects generally, except such as are actually consumed by being used, of which a genuine usufruct is impossible by both natural and civil law. Among them are wine, oil, grain, clothing, and perhaps we may also say coined money; for a sum of money is in a sense extinguished by changing hands, as it constantly does in simply being used. For convenience sake, however, the senate enacted that a usufruct could be created in such things, provided that due security be given to the heir. Thus if a usufruct of money be given by legacy, that money, on being delivered to the legatee, becomes his property, though he has to give security to the heir that he will repay an equivalent sum on his dying or undergoing a loss of status. And all things of this class, when delivered to the legatee, become his property, though they are first appraised, and the legatee then gives security that if he dies or undergoes a loss of status he will pay the value which was put upon them. Thus in point of fact the senate did not introduce a usufruct of such things, for that was beyond its power, but established a right analogous to usufruct by requiring security. 3. Usufruct determines by the death of the usufructuary, by his undergoing either of the greater kinds of loss of status, by its improper exercise, and by its non-exercise during the time fixed by law; all of which points are settled by our constitution. It is also extinguished when surrendered to the owner by the usufructuary (though transfer to a third person is inoperative); and again, conversely, by the fructuary becoming owner of the thing, this being called consolidation. Obviously, a usufruct of a house is extinguished by the house being burnt down, or falling through an earthquake or faulty construction; and in such case a usufruct of the site cannot be claimed. 4. When a usufruct determines, it reverts to and is reunited with the ownership; and from that moment he who before was but bare owner of the thing begins to have full power over it. |
A bare use, or right of using a thing, is created in the same
mode as a usufruct, and the modes in which it may determine are the
same as those just described. 1. A use is a less right than a usufruct; for if a man has a bare use of an estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, straw, and wood upon it only so far as his daily needs require: he may remain on the land only so long as he does not inconvenience its owner, or impede those who are engaged in its cultivation; but he cannot let or sell or give away his right to a third person, whereas a usufructuary may. 2. Again, a man who has the use of a house is deemed entitled only to live in it himself; he cannot transfer his right to a third person, and it scarcely seems to be agreed that he may take in a guest; but besides himself he may lodge there his wife, children, and freedmen, and other free persons who form as regular a part of his establishment as his slaves. Similarly, if a woman has the use of a house, her husband may dwell there with her. 3. When a man has the use of a slave, he has only the right of personally using his labour and services; in no way is he allowed to transfer his right to a third person, and the same applies to the use of beasts of burden. 4. If a legacy be given of the use of a herd or of a flock of sheep, the usuary may not use the milk, lambs, or wool, for these are fruits; but of course he may use the animals for the purpose of manuring his land. 5. If a right of habitation be given to a man by legacy or in some other mode, this seems to be neither a use nor a usufruct, but a distinct and as it were independent right; and by a constitution which we have published in accordance with the opinion of Marcellus, and in the interests of utility, we have permitted persons possessed of this right not only to live in the building themselves, but also to let it out to others. 6. What we have here said concerning servitudes, and the rights of usufruct, use, and habitation, will be sufficient; of inheritance and obligations we will treat in their proper places respectively. And having now briefly expounded the modes in which we acquire things by the law of nations, let us turn and see in what modes they are acquired by statute or by civil law. |
It was a rule of the civil law that if a man in good faith bought
a thing, or received it by way of gift, or on any other lawful ground,
from a person who was not its owner, but whom he believed to be such,
he should acquire it by usucapion – if a movable, by one year’s possession,
and by two years’ possession if an immovable, though in this case only
if it were in Italian soil; – the reason of the rule being the inexpediency
of allowing ownership to be long unascertained. The ancients thus considered
that the periods mentioned were sufficient to enable owners to look
after their property; but we have arrived at a better opinion, in order
to save people from being over-quickly defrauded of their own, and to
prevent the benefit of this institution from being confined to only
a certain part of the empire. We have consequently published a constitution
on the subject, enacting that the period of usucapion for movables shall
be three years, and that ownership of immovables shall be acquired by
long possession – possession, that is to say, for ten years, if both
parties dwell in the same province, and for twenty years if in different
provinces; and things may in these modes be acquired in full ownership,
provided the possession commences on a lawful ground, not only in Italy
but in every land subject to our sway. 1. Some things, however, not withstanding the good faith of the possessor, and the duration of his possession, cannot be acquired by usucapion; as is the case, for instance, if one possesses a free man, a thing sacred or religious, or a runaway slave. 2. Things again of which the owner lost possession by theft, or possession of which was gained by violence, cannot be acquired by usucapion, even by a person who has possessed them in good faith for the specified period: for stolen things are declared incapable of usucapion by the statute of the Twelve Tables and by the lex Atinia, and things taken with violence by the lex Iulia et Plautia. 3. The statement that things stolen or violently possessed cannot, by statute, be acquired by usucapion, means, not that the thief or violent dispossessor is incapable of usucapion – for these are barred by another reason, namely the fact that their possession is not in good faith; but that even a person who has purchased the thing from them in good faith, or received it on some other lawful ground, is incapable of acquiring by usucapion. Consequently, in things movable even a person who possesses in good faith can seldom acquire ownership by usucapion, for he who sells, or on some other ground delivers possession of a thing belonging to another, commits a theft. 4. However, this admits of exception; for if an heir, who believes a thing lent or let to, or deposited with, the person whom he succeeds, to be a portion of the inheritance, sells or gives it by way of dowry to another who receives it in good faith, there is no doubt that the latter can acquire the ownership of it by usucapion; for the thing is here not tainted with the flaw attaching to stolen property, because an heir does not commit a theft who in good faith conveys a thing away believing it to be his own. 5. Again, the usufructuary of a female slave, who believes her offspring to be his property, and sells or gives it away, does not commit a theft: for theft implies unlawful intention. 6. There are also other ways in which one man can transfer to another property which is not his own, without committing a theft, and thereby enable the receiver to acquire by usucapion. 7. Usucapion of property classed among things immovable is an easier matter; for it may easily happen that a man may, without violence, obtain possession of land which, owing to the absence or negligence of its owner, or to his having died and left no successor, is presently possessed by no one. Now this man himself does not possess in good faith, because he knows the land on which he has seized is not his own: but if he delivers it to another who receives it in good faith, the latter can acquire it by long possession, because it has neither been stolen nor violently possessed; for the idea held by some of the ancients, that a piece of land or a place can be stolen, has now been exploded, and imperial constitutions have been enacted in the interests of persons possessing immovables, to the effect that no one ought to be deprived of a thing of which he has had long and unquestioned possession. 8. Sometimes indeed even things which have been stolen or violently possessed can be acquired by usucapion, as for instance after they have again come under the power of their real owner: for by this they are relieved from the taint which had attached to them, and so become capable of usucapion. 9. Things belonging to our treasury cannot be acquired by usucapion. But there is on record an opinion of Papinian, supported by the rescripts of the Emperors Pius, Severus, and Antoninus, that if, before the property of a deceased person who has left no heir is reported to the exchequer, some one has bought or received some part thereof, he can acquire it by usucapion. 10. Finally, it is to be observed that things are incapable of being acquired through usucapion by a purchaser in good faith, or by one who possesses on some other lawful ground, unless they are free from all flaws which vitiate the usucapion. 11. If there be a mistake as to the ground on which possession is acquired, and which it is wrongly supposed will support usucapion, usucapion cannot take place. Thus a man’s possession may be founded on a supposed sale or gift, whereas in point of fact there has been no sale or gift at all. 12. Long possession which has begun to run in favour of a deceased person continues to run on in favour of his heir or praetorian successor, even though he knows that the land belongs to another person. But if the deceased’s possession had not a lawful inception, it is not available to the heir or praetorian successor, although ignorant of this. Our constitution has enacted that in usucapion too a similar rule shall be observed, and that the benefit of the possession shall continue in favour of the successor. 13. The Emperors Severus and Antoninus have decided by a rescript that a purchaser too may reckon as his own the time during which his vendor has possessed the thing. 14. Finally, it is provided by an edict of the Emperor Marcus that after an interval of five years a purchaser from the treasury of property belonging to a third person may repel the owner, if sued by him, by an exception. But a constitution issued by Zeno of sacred memory has protected persons who acquire things from the treasury by purchase, gift, or other title, affording them complete security from the moment of transfer, and guaranteeing their success in any action relating thereto, whether they be plaintiffs or defendants; while it allows those who claim any action in respect of such property as owners or pledges to sue the imperial treasury at any time within four years from the transaction. A divine constitution which we ourselves have lately issued has extended the operation of Zeno’s enactment, respecting conveyances by the treasury, to persons who have acquired anything from our palace or that of the Empress. |
Another mode in which property is acquired is gift.
Gifts are of two kinds; those made in contemplation of death, and those
not so made. 1. Gifts of the first kind are those made in view of approaching death, the intention of the giver being that in the event of his decease the thing given should belong to the donee, but that if he should survive or should desire to revoke the gift, or if the donee should die first, the thing should be restored to him. These gifts in contemplation of death now stand on exactly the same footing as legacies; for as in some respects they were more like ordinary gifts, in others more like legacies, the jurists doubted under which of these two classes they should be placed, some being for gift, others for legacy: and consequently we have enacted by constitution that in nearly every respect they shall be treated like legacies, and shall be governed by the rules laid down respecting them in our constitution. In a word, a gift in contemplation of death is where the donor would rather have the thing himself than that the donee should have it, and that the latter should rather have it than his own heir. An illustration may be found in Homer, where Telemachus makes a gift to Piraeus. 2. Gifts which are made without contemplation of death, which we call gifts between the living, are of another kind, and have nothing in common with legacies. If the transaction be complete, they cannot be revoked at pleasure; and it is complete when the donor has manifested his intention, whether in writing or not. Our constitution has settled that such a manifestation of intention binds the donor to deliver, exactly as in the case of sale; so that even before delivery gifts are completely effectual, and the donor is under a legal obligation to deliver the object. Enactments of earlier emperors required that such gifts, if in excess of two hundred solidi, should be officially registered; but our constitution has raised this maximum to five hundred solidi, and dispensed with the necessity of registering gifts of this or of a less amount; indeed it has even specified some gifts which are completely valid, and require no registration, irrespective of their amount. We have devised many other regulations in order to facilitate and secure gifts, all of which may be gathered from the constitutions which we have issued on this topic. It is to be observed, however, that even where gifts have been completely executed we have by our constitution under certain circumstances enabled donors to revoke them, but only on proof of ingratitude on the part of the recipient of the bounty; the aim of this reservation being to protect persons, who have given their property to others, from suffering at the hands of the latter injury or loss in any of the modes detailed in our constitution. 3. There is another specific kind of gift between the living, with which the earlier jurists were quite unacquainted, and which owed its later introduction to more recent emperors. It was called gift before marriage, and was subject to the implied condition that it should not be binding until the marriage had taken place; its name being due to the fact that it was always made before the union of the parties, and could never take place after the marriage had once been celebrated. The first change in this matter was made by our imperial father Justin, who, as it had been allowed to increase dowries even after marriage, issued a constitution authorizing the increase of gifts before marriage during the continuance of the marriage tie in cases where an increase had been made to the dowry. The name "gift before marriage" was, however, still retained, though now inappropriate, because the increase was made to it after the marriage. We, however, in our desire to perfect the law, and to make names suit the things which they are used to denote, have by a constitution permitted such gifts to be first made, and not merely increased, after the celebration of the marriage, and have directed that they shall be called gifts "on account of" (and not "before") marriage, thereby assimilating them to dowries; for as dowries are not only increased, but actually constituted, during marriage, so now gifts on account of marriage may be not only made before the union of the parties, but may be first made as well as increased during the continuance of that union. 4. There was formerly too another civil mode of acquisition, namely, by accrual, which operated in the following way: if a person who owned a slave jointly with Titius gave him his liberty himself alone by vindication or by testament, his share in the slave was lost, and went to the other joint owner by accrual. But as this rule was very bad as a precedent – for both the slave was cheated of his liberty, and the kinder masters suffered all the loss while the harsher ones reaped all the gain – we have deemed it necessary to suppress a usage which seemed so odious, and have by our constitution provided a merciful remedy, by discovering a means by which the manumitter, the other joint owner, and the liberated slave, may all alike be benefited. Freedom, in whose behalf even the ancient legislators clearly established many rules at variance with the general principles of law, will be actually acquired by the slave; the manumitter will have the pleasure of seeing the benefit of his kindness undisturbed; while the other joint owner, by receiving a money equivalent proportionate to his interest, and on the scale which we have fixed, will be indemnified against all loss. |
It sometimes happens that an owner cannot alienate,
and that a non-owner can. Thus the alienation of dowry land by the husband,
without the consent of the wife, is prohibited by the lex Iulia, although,
since it has been given to him as dowry, he is its owner. We, however,
have amended the lex Iulia, and thus introduced an improvement; for
that statute applied only to land in Italy, and though it prohibited
a mortgage of the land even with the wife’s consent, it forbade it to
be alienated only without her concurrence. To correct these two defects
we have forbidden mortgages as well as alienations of dowry land even
when it is situated in the provinces, so that such land can now be dealt
with in neither of these ways, even if the wife concurs, lest the weakness
of the female sex should be used as a means to the wasting of their
property. 1. Conversely, a pledgee, in pursuance of his agreement, may alienate the pledge, though not its owner; this, however, may seem to rest on the assent of the pledgor given at the inception of the contract, in which it was agreed that the pledgee should have a power of sale in default of repayment. But in order that creditors may not be hindered from pursuing their lawful rights, or debtors be deemed to be overlightly deprived of their property, provisions have been inserted in our constitution and a definite procedure established for the sale of pledges, by which the interests of both creditors and debtors have been abundantly guarded. 2. We must next observe that no pupil of either sex can alienate anything without his or her guardian’s authority. Consequently, if a pupil attempts to lend money without such authority, no property passes, and he does not impose a contractual obligation; hence the money, if it exists, can be recovered by real action. If the money which he attempted to lend has been spent in good faith by the would-be borrower, it can be sued for by the personal action called condiction; if it has been fraudulently spent, the pupil can sue by personal action for its production. On the other hand, things can be validly conveyed to pupils of either sex without the guardian’s authority; accordingly, if a debtor wishes to pay a pupil, he must obtain the sanction of the guardian to the transaction, else he will not be released. In a constitution which we issued to the advocates of Caesarea at the instance of the distinguished Tribonian, quaestor of our most sacred palace, it has with the clearest reason been enacted, that the debtor of a pupil may safely pay a guardian or curator by having first obtained permission by the order of a judge, for which no fee is to be payable: and if the judge makes the order, and the debtor in pursuance thereof makes payment, he is completely protected by this form of discharge. Supposing, however, that the form of payment be other than that which we have fixed, and that the pupil, though he still has the money in his possession, or has been otherwise enriched by it, attempts to recover the debt by action, he can be repelled by the plea of fraud. If on the other hand he has squandered the money or had it stolen from him, the plea of fraud will not avail the debtor, who will be condemned to pay again, as a penalty for having carelessly paid without the guardian’s authority, and not in accordance with our regulation. Pupils of either sex cannot validly satisfy a debt without their guardian’s authority, because the money paid does not become the creditor’s property; the principle being that no pupil is capable of alienation without his guardian’s sanction. |
We acquire property not only by our own acts, but also by the
acts of persons in our power, of slaves in whom we have a usufruct,
and of freemen and slaves belonging to another but whom we possess in
good faith. Let us now examine these cases in detail. 1. Formerly, whatever was received by a child in power of either sex, with the exception of military peculium, was acquired for the parent without any distinction; and the parent was entitled to give away or sell to one child, or to a stranger, what had been acquired through another, or dispose of it in any other way that he pleased. This, however, seemed to us to be a cruel rule, and consequently by a general constitution which we have issued we have improved the children’s position, and yet reserved to parents all that was their due. This enacts that whatever a child gains by and through property, of which his father allows him the control, is acquired, according to the old practice, for the father alone; for what unfairness is there in property derived from the father returning to him? But of anything which the child derives from any source other than his father, though his father will have a usufruct therein, the ownership is to belong to the child, that he may not have the mortification of seeing the gains which he has made by his own toil or good fortune transferred to another. 2. We have also made a new rule relating to the right which a father had under earlier constitutions, when he emancipated a child, of retaining absolutely, if he pleased, a third part of such property of the child as he himself had no ownership in, as a kind of consideration for emancipating him. The harsh result of this was that a son was by emancipation deprived of the ownership of a third of his property; and thus the honour which he got by being emancipated and made independent was balanced by the diminution of his fortune. We have therefore enacted that the parent, in such a case, shall no longer retain the ownership of a third of the child’s property, but, in lieu thereof, the usufruct of one half; and thus the son will remain absolute owner of the whole of his fortune, while the father will reap a greater benefit than before, by being entitled to the enjoyment of a half instead of a third. 3. Again, all rights which your slaves acquire by tradition, stipulation, or any other title, are acquired for you, even though the acquisition be without your knowledge, or even against your will; for a slave, who is in the power of another person, can have nothing of his own. Consequently, if he is instituted heir, he must, in order to be able to accept the inheritance, have the command of his master; and if he has that command, and accepts the inheritance, it is acquired for his master exactly as if the latter had himself been instituted heir; and it is precisely the same with a legacy. And not only is ownership acquired for you by those in your power, but also possession; for you are deemed to possess everything of which they have obtained detention, and thus they are to you instruments through whom ownership may be acquired by usucapion or long possession. 4. Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary, or by their own work, is acquired for him; but what they acquire by any other means belongs to their owner, to whom they belong themselves. Accordingly, if such a slave is instituted heir, or made legatee or donee, the succession, legacy, or gift is acquired, not for the usufructuary, but for the owner. And a man who in good faith possesses a free man or a slave belonging to another person has the same rights as a usufructuary; what they acquire by any other mode than the two we have mentioned belongs in the one case to the free man, in the other to the slave’s real master. After a possessor in good faith has acquired the ownership of a slave by usucapion, everything which the slave acquires belongs to him without distinction; but a fructuary cannot acquire ownership of a slave in this way, because in the first place he does not possess the slave at all, but has merely a right of usufruct in him, and because in the second place he is aware of the existence of another owner. Moreover, you can acquire possession as well as ownership through slaves in whom you have a usufruct or whom you possess in good faith, and through free persons whom in good faith you believe to be your slaves, though as regards all these classes we must be understood to speak with strict reference to the distinction drawn above, and to mean only detention which they have obtained by means of your property or their own work. 5. From this it appears that free men not subject to your power, or whom you do not possess in good faith, and other persons’ slaves, of whom you are neither usufructuaries nor just possessors, cannot under any circumstances acquire for you; and this is the meaning of the maxim that a man cannot be the means of acquiring anything for one who is a stranger in relation to him. To this maxim there is but one exception – namely, that, as is ruled in a constitution of the Emperor Severus, a free person, such as a general agent, can acquire possession for you, and that not only when you know, but even when you do not know of the fact of the acquisition: and through this possession ownership can be immediately acquired also, if it was the owner who delivered the thing; and if it was not, it can be acquired ultimately by usucapion or by the plea of long possession. 6. So much at present concerning the modes of acquiring rights over single things: for direct and fiduciary bequests, which are also among such modes, will find a more suitable place in a later portion of our treatise. We proceed therefore to the titles whereby an aggregate of rights is acquired. If you become the successors, civil or praetorian, of a person deceased, or adopt an independent person by adrogation, or become assignees of a deceased’s estate in order to secure their liberty to slaves manumitted by his will, the whole estate of those persons is transferred to you in an aggregate mass. Let us begin with inheritances, whose mode of devolution is twofold, according as a person dies testate or intestate; and of these two modes we will first treat of acquisition by will. The first point which here calls for exposition is the mode in which wills are made. |
The term testament is derived from two words which mean a signifying
of intention. 1. Lest the antiquities of this branch of law should be entirely forgotten, it should be known that originally two kinds of testaments were in use, one of which our ancestors employed in times of peace and quiet, and which was called the will made in the comitia calata, while the other was resorted to when they were setting out to battle, and was called procinctum. More recently a third kind was introduced, called the will by bronze and balance, because it was made by mancipation, which was a sort of fictitious sale, in the presence of five witnesses and a balance holder, all Roman citizens above the age of puberty, together with the person who was called the purchaser of the family. The two first-mentioned kinds of testament, however, went out of use even in ancient times, and even the third, or will by bronze and balance, though it has remained in vogue longer than they, has become partly disused. 2. All these three kinds of will which we have mentioned belonged to the civil law, but later still a fourth form was introduced by the praetor’s edict; for the new law of the praetor, or "ius honorarium," dispensed with mancipation, and rested content with the seals of seven witnesses, whereas the seals of witnesses were not required by the civil law. 3. When, however, by a gradual process the civil and praetorian laws, partly by usage, partly by definite changes introduced by the constitution, came to be combined into a harmonious whole, it was enacted that a will should be valid which was wholly executed at one time and in the presence of seven witnesses (these two points being required, in a way, by the old civil law), to which the witnesses signed their names – a new formality imposed by imperial legislation – and affixed their seals, as had been required by the praetor’s edict. Thus the present law of testament seems to be derived from three distinct sources; the witnesses, and the necessity of their all being present continuously through the execution of the will in order that the execution may be valid, coming from the civil law: the signing of the document by the testator and the witnesses being due to imperial constitutions, and the exact number of witnesses, and the sealing of the will by them, to the praetor’s edict. 4. An additional requirement imposed by our constitution, in order to secure the genuineness of testaments and prevent forgery, is that the name of the heir shall be written by either the testator or the witnesses, and generally that everything shall be done according to the tenor of that enactment. 5. The witnesses may all seal the testament with the same seal; for, as Pomponius remarks, what if the device on all seven seals were the same? It is also lawful for a witness to use a seal belonging to another person. 6. Those persons only can be witnesses who are legally capable of witnessing a testament. Women, persons below the age of puberty, slaves, lunatics, persons dumb or deaf, and those who have been interdicted from the management of their property, or whom the law declares worthless and unfitted to perform this office, cannot witness a will. 7. In cases where one of the witnesses to a will was thought free at the time of its execution, but was afterwards discovered to be a slave, the Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus declared that of their goodness they would uphold such a will as validly made; for, at the time when it was sealed, this witness was admitted by all to be free, and, as such, had had his civil position called in question by no man. 8. A father and a son in his power, or two brothers who are both in the power of one father, can lawfully witness the same testament, for there can be no harm in several persons of the same family witnessing together the act of a man who is to them a stranger. 9. No one, however, ought to be among the witnesses who is in the testator’s power, and if a son in power makes a will of military peculium after his discharge, neither his father nor any one in his father’s power is qualified to be a witness; for it is not allowed to support a will by the evidence of persons in the same family with the testator. 10. No will, again, can be witnessed by the person instituted heir, or by any one in his power, or by a father in whose power he is, or by a brother under the power of the same father: for the execution of a will is considered at the present day to be purely and entirely a transaction between the testator and the heir. Through mistaken ideas on this matter the whole law of testamentary evidence fell into confusion: for the ancients, though they rejected the evidence of the purchaser of the family and of persons connected with him by the tie of power, allowed a will to be witnessed by the heir and persons similarly connected with him, though it must be admitted that they accompanied this privilege with urgent cautions against its abuse. We have, however, amended this rule, and enacted in the form of law what the ancients expressed in the form only of advice, by assimilating the heir to the old purchaser of the family, and have rightly forbidden the heir, who now represents that character, and all other persons connected with him by the tie referred to, to bear witness in a matter in which, in a sense, they would be witnesses in their own behalf. Accordingly, we have not allowed earlier constitutions on this subject to be inserted in our Code. 11. Legatees, and persons who take a benefit under a will by way of trust, and those connected with them, we have not forbidden to be witnesses, because they are not universal successors of the deceased: indeed, by one of our constitutions we have specially granted this privilege to them, and, a fortiori, to persons in their power, or in whose power they are. 12. It is immaterial whether the will be written on a tablet, paper, parchment, or any other substance: and a man may execute any number of duplicates of his will, for this is sometimes necessary, though in each of them the usual formalities must be observed. 13. For instance, a person setting out upon a voyage may wish to take a statement of his last wishes along with him, and also to leave one at home; and numberless other circumstances which happen to a man, and over which he has no control, will make this desirable. 14. So far of written wills. When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law. |
Soldiers, in consideration of their extreme ignorance
of law, have been exempted by imperial constitutions from the strict
rules for the execution of a testament which have been described. Neither
the legal number of witnesses, nor the observance of the other rules
which have been stated, is necessary to give force to their wills, provided,
that is to say, that they are made by them while on actual service;
this last qualification being a new though wise one introduced by our
constitution. Thus, in whatever mode a soldier’s last wishes are declared,
whether in writing or orally, this is a binding will, by force of his
mere intention. At times, however, when they are not employed on actual
service, but are living at home or elsewhere, they are not allowed to
claim this privilege: they may make a will, even though they be sons
in power, in virtue of their service, but they must observe the ordinary
rules, and are bound by the forms which we described above as requisite
in the execution of wills of civilians. 1. Respecting the testaments of soldiers the Emperor Trajan sent a rescript to Statilius Severus in the following terms: "The privilege allowed to soldiers of having their wills upheld, in whatever manner they are made, must be understood to be limited by the necessity of first proving that a will has been made at all; for a will can be made without writing even by civilians. Accordingly, with reference to the inheritance which is the subject of the action before you, if it can be shown that the soldier who left it, did in the presence of witnesses, collected expressly for this purpose, declare orally who he wished to be his heir, and on what slaves he wished to confer liberty, it may well be maintained that in this way he made an unwritten testament, and his wishes therein declared ought to be carried out. But if, as is so common in ordinary conversation, he said to some one, “I make you my heir,” or, “I leave you all my property,” such expressions cannot be held to amount to a testament, and the interest of the very soldiers, who are privileged in the way described, is the principal ground for rejecting such a precedent. For if it were admitted, it would be easy, after a soldier’s death, to procure witnesses to affirm that they had heard him say he left his property to any one they pleased to name, and in this way it would be impossible to discover the true intentions of the deceased." 2. A soldier too may make a will though dumb and deaf. 3. This privilege, however, which we have said soldiers enjoy, is allowed them by imperial constitutions only while they are engaged on actual service, and in camp life. Consequently, if veterans wish to make a will after their discharge, or if soldiers actually serving wish to do this away from camp, they must observe the forms prescribed for all citizens by the general law; and a testament executed in camp without formalities, that is to say, not according to the form prescribed by law, will remain valid only for one year after the testator’s discharge. Supposing then that the testator died within a year, but that a condition, subject to which the heir was instituted, was not fulfilled within the year, would it be feigned that the testator was a soldier at the date of his decease, and the testament consequently upheld? and this question we answer in the affirmative. 4. If a man, before going on actual service, makes an invalid will, and then during a campaign opens it, and adds some new disposition, or cancels one already made, or in some other way makes it clear that he wishes it to be his testament, it must be pronounced valid, as being, in fact, a new will made by the man as a soldier. 5. Finally, if a soldier is adrogated, or, being a son in power, is emancipated, his previously executed will remains good by the fiction of a new expression of his wishes as a soldier, and is not deemed to be avoided by his loss of status. 6. It is, however, to be observed that earlier statutes and imperial constitutions allowed to children in power in certain cases a civil peculium after the analogy of the military peculium, which for that reason was called quasi-military, and of which some of them were permitted to dispose by will even while under power. By an extension of this principle our constitution has allowed all persons who have a peculium of this special kind to dispose of it by will, though subject to the ordinary forms of law. By a perusal of this constitution the whole law relating to this privilege may be ascertained. |
Certain persons are incapable of making a lawful will.
For instance, those in the power of others are so absolutely incapable
that they cannot make a testament even with the permission of their
parents, with the exception of those whom we have enumerated, and particularly
of children in power who are soldiers, and who are permitted by imperial
constitution to dispose by will of all they may acquire while on actual
service. This was allowed at first only to soldiers on active service,
by the authority of the Emperors Augustus and Nerva, and of the illustrious
Emperor Trajan; afterwards, it was extended by an enactment of the Emperor
Hadrian to veterans, that is, soldiers who had received their discharge.
Accordingly, if a son in power makes a will of his military peculium,
it will belong to the person whom he institutes as heir: but if he dies
intestate, leaving no children or brothers surviving him, it will go
to the parent in whose power he is, according to the ordinary rule.
From this it can be understood that a parent has no power to deprive
a son in his power of what he has acquired on service, nor can the parent’s
creditors sell or otherwise touch it; and when the parent dies it is
not shared between the soldier’s son and his brothers, but belongs to
him alone, although by the civil law the peculium of a person in power
is always reckoned as part of the property of the parent, exactly as
that of a slave is deemed part of the property of his master, except
of course such property of the son as by imperial constitutions, and
especially our own, the parent is unable to acquire in absolute ownership.
Consequently, if a son in power, not having a military or quasi-military
peculium, makes a will, it is invalid, even though he is released from
power before his decease. 1. Again, a person under the age of puberty is incapable of making a will, because he has no judgement, and so too is a lunatic, because he has lost his reason; and it is immaterial that the one reaches the age of puberty, and the other recovers his faculties, before his decease. If, however, a lunatic makes a will during a lucid interval, the will is deemed valid, and one is certainly valid which he made before he lost his reason: for subsequent insanity never avoids a duly executed testament or any other disposition validly made. 2. So too a spendthrift, who is interdicted from the management of his own affairs, is incapable of making a valid will, though one made by him before being so interdicted holds good. 3. The deaf, again, and the dumb cannot always make a will, though here we are speaking not of persons merely hard of hearing, but of total deafness, and similarly by a dumb person is meant one totally dumb, and not one who merely speaks with difficulty; for it often happens that even men of culture and learning by some cause or other lose the faculties of speech and hearing. Hence relief has been afforded them by our constitution, which enables them, in certain cases and in certain modes therein specified, to make a will and other lawful dispositions. If a man, after making his will, becomes deaf or dumb through ill health or any other cause, it remains valid notwithstanding. 4. A blind man cannot make a will, except by observing the forms introduced by a law of our imperial father Justin. 5. A will made by a prisoner while in captivity with the enemy is invalid, even though he subsequently returns. One made, however, while he was in his own state is valid, if he returns, by the law of postliminium; if he dies in captivity it is valid by the lex Cornelia. |
The law, however, is not completely satisfied by the observance
of the rules hereinbefore explained. A testator who has a son in his
power must take care either to institute him heir, or to specially disinherit
him, for passing him over in silence avoids the will; and this rule
is so strict, that even if the son die in the lifetime of the father
no heir can take under the will, because of its original nullity. As
regards daughters and other descendants of either sex by the male line,
the ancients did not observe this rule in all its strictness; for if
these persons were neither instituted nor disinherited, the will was
not avoided, but they were entitled to come in with the instituted heirs,
and to take a certain portion of the inheritance. And these persons
the ascendant was not obliged to specially disinherit; he could disinherit
them collectively by a general clause. 1. Special disinherison may be expressed in these terms – "Be Titius my son disinherited," or in these, "Be my son disinherited," without inserting the name, supposing there is no other son. Children born after the making of the will must also be either instituted heirs or disinherited, and in this respect are similarly privileged, that if a son or any other family heir, male or female, born after the making of the will, be passed over in silence, the will, though originally valid, is invalidated by the subsequent birth of the child, and so becomes completely void. Consequently, if the woman from whom a child was expected to have an abortive delivery, there is nothing to prevent the instituted heirs from taking the inheritance. It was immaterial whether the female family heirs born after the making of the will were disinherited specially or by a general clause, but if the latter mode be adopted, some legacy must be left them in order that they may not seem to have been passed over merely through inadvertence: but male family heirs born after the making of the will, sons and other lineal descendants, are held not to be properly disinherited unless they are disinherited specially, thus: "Be any son that shall be born to me disinherited." 2. With children born after the making of the will are classed children who succeed to the place of a family heir, and who thus, by an event analogous to subsequent birth, become family heirs to an ancestor. For instance, if a testator have a son, and by him a grandson or granddaughter in his power, the son alone, being nearer in degree, has the right of a family heir, although the grandchildren are in the testator’s power equally with him. But if the son die in the testator’s lifetime, or is in some other way released from his power, the grandson and granddaughter succeed to his place, and thus, by a kind of subsequent birth, acquire the rights of family heirs. To prevent this subsequent avoidance of one’s will, grandchildren by a son must be either instituted heirs or disinherited, exactly as, to secure the original validity of a testament, a son must be either instituted or specially disinherited; for if the son die in the testator’s lifetime, the grandson and granddaughter take his place, and avoid the will just as if they were children born after its execution. And this disinherison was first allowed by the lex Iunia Vallaea, which explains the form which is to be used, and which resembles that employed in disinheriting family heirs born after the making of a will. 3. It is not necessary, by the civil law, to either institute or disinherit emancipated children, because they are not family heirs. But the praetor requires all, females as well as males, unless instituted, to be disinherited, males specially, females collectively; and if they are neither appointed heirs nor disinherited as described, the praetor promises them possession of goods against the will. 4. Adopted children, so long as they are in the power of their adoptive father, are in precisely the same legal position as children born in lawful wedlock; consequently they must be either instituted or disinherited according to the rules stated for the disinherison of natural children. When, however, they have been emancipated by their adoptive father, they are no longer regarded as his children either by the civil law or by the praetor’s edict. Conversely, in relation to their natural father, so long as they remain in the adoptive family they are strangers, so that he need neither institute nor disinherit them: but when emancipated by their adoptive father, they have the same rights in the succession to their natural father as they would have had if it had been he by whom they were emancipated. Such was the law introduced by our predecessors. 5. Deeming, however, that between the sexes, to each of which nature assigns an equal share in perpetuating the race of man, there is in this matter no real ground of distinction, and marking that, by the ancient statute of the Twelve Tables, all were called equally to the succession on the death of their ancestor intestate (which precedent the praetors also seem to have subsequently followed), we have by our constitution introduced a simple system of the same kind, applying uniformly to sons, daughters, and other descendants by the male line, whether born before or after the making of the will. This requires that all children, whether family heirs or emancipated, shall be specially disinherited, and declares that their pretermission shall have the effect of avoiding the will of their parent, and depriving the instituted heirs of the inheritance, no less than the pretermission of children who are family heirs or who have been emancipated, whether already born, or born after, though conceived before the making of the will. In respect of adoptive children we have introduced a distinction, which is explained in our constitution on adoptions. 6. If a soldier engaged on actual service makes a testament without specially disinheriting his children, whether born before or after the making of the will, but simply passing over them in silence, though he knows that he has children, it is provided by imperial constitutions that his silent pretermission of them shall be equivalent to special disinherison. 7. A mother or maternal grandfather is not bound to institute her or his children or grandchildren; they may simply omit them, for silence on the part of a mother, or of a maternal grandfather or other ascendant, has the same effect as actual disinherison by a father. For neither by the civil law, nor by that part of the praetor’s edict in which he promises children who are passed over possession of goods against the will, is a mother obliged to disinherit her son or daughter if she does not institute them heirs, or a maternal grandfather to be equally precise with reference to grandchildren by a daughter: though such children and grandchildren, if omitted, have another remedy, which will shortly be explained. |
A man may institute as his heirs either free men or
slaves, and either his own slaves or those of another man. If he wished
to institute his own slave it was formerly necessary, according to the
more common opinion, that he should expressly give him his liberty in
the will: but now it is lawful, by our constitution, to institute one’s
own slave without this express manumission – a change not due to any
spirit of innovation, but to a sense of equity, and one whose principle
was approved by Atilicinus, as it is stated by Paulus in his books on
Masurius Sabinus and on Plautius. Among a testator’s own slaves is to
be reckoned one of whom he is bare owner, the usufruct being vested
in some other person. There is, however, one case in which the institution
of a slave by his mistress is void, even though freedom be given him
in the will, as is provided by a constitution of the Emperors Severus
and Antoninus in these terms: "Reason demands that no slave, accused
of criminal intercourse with his mistress, shall be capable of being
manumitted, before his sentence is pronounced, by the will of the woman
who is accused of participating in his guilt: accordingly if he be instituted
heir by that mistress, the institution is void." Among "other
persons’ slaves" is reckoned one in whom the testator has a usufruct. 1. If a slave is instituted heir by his own master, and continues in that condition until his master’s decease, he becomes by the will both free, and necessary heir. But if the testator himself manumits him in his lifetime, he may use his own discretion about acceptance; for he is not a necessary heir, because, though he is named heir to the testament, it was not by that testament that he became free. If he has been alienated, he must have the order of his new master to accept, and then his master becomes heir through him, while he personally becomes neither heir nor free, even though his freedom was expressly given him in the testament, because by alienating him his former master is presumed to have renounced the intention of enfranchising him. When another person’s slave is instituted heir, if he continues in the same condition he must have the order of his master to accept; if alienated by him in the testator’s lifetime, or after the testator’s death but before acceptance, he must have the order of the alienee to accept; finally, if manumitted in the testator’s lifetime, or after the testator’s death but before acceptance, he may accept or not at his own discretion. 2. A slave who does not belong to the testator may be instituted heir even after his master’s decease, because slaves who belong to an inheritance are capable of being instituted or made legatees; for an inheritance not yet accepted represents not the future heir but the person deceased. Similarly, the slave of a child conceived but not yet born may be instituted heir. 3. If a slave belonging to two or more joint owners, both or all of whom are legally capable of being made heirs or legatees, is instituted heir by a stranger, he acquires the inheritance for each and all of the joint owners by whose orders he accepts it in proportion to the respective shares in which they own him. 4. A testator may institute either a single heir, or as many as he pleases. 5. An inheritance is usually divided into twelve ounces, and is denoted in the aggregate by the term as, and each fraction of this aggregate, ranging from the ounce up to the as or pound, has its specific name, as follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12), semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6), deunx (11/12), and as. It is not necessary, however, that there should always be twelve ounces, for for the purposes of testamentary distribution an as may consist of as many ounces as the testator pleases; for instance, if a testator institutes only a single heir, but declares that he is to be heir ex semisse, or to one half of the inheritance, this half will really be the whole, for no one can die partly testate and partly intestate, except soldiers, in the carrying out of whose wills the intention is the only thing regarded. Conversely, a testator may divide his inheritance into as large a number of ounces as he pleases. 6. If more heirs than one are instituted, it is unnecessary for the testator to assign a specific share in the inheritance to each, unless he intends that they shall not take in equal portions; for it is obvious that if no shares are specified they divide the inheritance equally between them. Supposing, however, that specific shares are assigned to all the instituted heirs except one, who is left without any express share at all, this last heir will be entitled to any fraction of the as which has not been disposed of; and if there are two or more heirs to whom no specific shares have been assigned, they will divide this unassigned fraction equally between them. Finally, if the whole as has been assigned in specific shares to some of the heirs, the one or more who have no specific shares take half of the inheritance, while the other half is divided among the rest according to the shares assigned to them; and it is immaterial whether the heir who has no specified share come first or last in the institution, or occupies some intermediate place; for such share is presumed to be given to him as is not in some other way disposed of. 7. Let us now see how the law stands if some part remains undisposed of, and yet each heir has his share assigned to him – if, for instance there are three heirs instituted, and each is assigned a quarter of the inheritance. It is evident that in this case the part undisposed of will go to them in proportion to the share each has assigned to him by the will, and it will be exactly as if they had each been originally instituted to a third. Conversely, if each heir is given so large a fraction that the as will be exceeded, each must suffer a proportionate abatement; thus if four heirs are instituted, and to each is assigned a third of the inheritance, it will be the same as if each had been originally instituted to a quarter. 8. If more than twelve ounces are distributed among some of the heirs only, one being left without a specific share, he will have what is wanting to complete the second as; and the same will be done if more than twenty-four ounces are distributed, leaving him shareless; but all these ideal sums are afterwards reduced to the single as, whatever be the number of ounces they comprise. 9. The institution of the heir may be either absolute or conditional, but no heir can be instituted from, or up to, some definite date, as, for instance, in the following form – "be so and so my heir after five years from my decease," or "after the calends of such a month," or "up to and until such calends"; for a time limitation in a will is considered a superfluity, and an heir instituted subject to such a time limitation is treated as heir absolutely. 10. If the institution of an heir, a legacy, a fiduciary bequest, or a testamentary manumission is made to depend on an impossible condition, the condition is deemed unwritten, and the disposition absolute. 11. If an institution is made to depend on two or more conditions, conjunctively expressed, – as, for instance, "if this and that shall be done" – all the conditions must be satisfied: if they are expressed in the alternative, or disjunctively – as "if this or that shall be done" – it is enough if one of them alone is satisfied. 12. A testator may institute as his heir a person whom he has never seen, for instance, nephews who have been born abroad and are unknown to him: for want of this knowledge does not invalidate the institution. |
A testator may institute his heirs, if he pleases,
in two or more degrees, as, for instance, in the following form: "If
A shall not be my heir, then let B be my heir"; and in this way
he can make as many substitutions as he likes, naming in the last place
one of his own slaves as necessary heir, in default of all others taking.
1. Several may be substituted in place
of one, or one in place of several, or to each heir may be substituted
a new and distinct person, or, finally, the instituted heirs may be
substituted reciprocally in place of one another. 2. If
heirs who are instituted in equal shares are reciprocally substituted
to one another, and the shares which they are to have in the substitution
are not specified, it is presumed (as was settled by a rescript of the
Emperor Pius) that the testator intended them to take the same shares
in the substitution as they took directly under the will. 3. If
a third person is substituted to one heir who himself is substituted
to his co-heir, the Emperors Severus and Antoninus decided by rescript
that this third person is entitled to the shares of both without distinction.
4. If a testator institutes another man’s
slave, supposing him to be an independent person, and substitutes Maevius
in his place to meet the case of his not taking the inheritance, then,
if the slave accepts by the order of his master, Maevius is entitled
to a half. For, when applied to a person whom the testator knows to
be in the power of another, the words "if he shall not be my heir"
are taken to mean "if he shall neither be heir himself nor cause
another to be heir"; but when applied to a person whom the testator
supposes to be independent, they mean "if he shall not acquire
the inheritance either for himself, or for that person to whose power
he shall subsequently become subject," and this was decided by
Tiberius Caesar in the case of his slave Parthenius. |
To children below the age of puberty and in the power of the testator,
not only can such a substitute as we have described be appointed, that
is, one who shall take on their failing to inherit, but also one who
shall be their heir if, after inheriting, they die within the age of
puberty; and this may be done in the following terms, "Be my son
Titius my heir; and if he does not become my heir, or, after becoming
my heir, die before becoming his own master (that is, before reaching
puberty), then be Seius my heir." In which case, if the son fails
to inherit, the substitute is the heir of the testator; but if the son,
after inheriting, dies within the age of puberty, he is the heir of
the son. For it is a rule of customary law, that when our children are
too young to make wills for themselves, their parents may make them
for them. 1. The reason of this rule has induced us to assert in our Code a constitution, providing that if a testator has children, grandchildren, or great-grandchildren who are lunatics or idiots, he may, after the analogy of pupillary substitution, substitute certain definite persons to them, whatever their sex or the nearness of their relationship to him, and even though they have reached the age of puberty; provided always that on their recovering their faculties such substitution shall at once become void, exactly as pupillary substitution proper ceases to have any operation after the pupil has reached puberty. 2. Thus, in pupillary substitution effected in the form described, there are, so to speak, two wills, the father’s and the son’s, just as if the son had personally instituted an heir to himself; or rather, there is one will dealing with two distinct matters, that is, with two distinct inheritances. 3. If a testator be apprehensive that, after his own death, his son, while still a pupil, may be exposed to the danger of foul play, because another person is openly substituted to him, he ought to make the ordinary substitution openly, and in the earlier part of the testament, and write the other substitution, wherein a man is named heir on the succession and death of the pupil, separately on the lower part of the will; and this lower part he should tie with a separate cord and fasten with a separate seal, and direct in the earlier part of the will that it shall not be opened in the lifetime of the son before he attains the age of puberty. Of course a substitution to a son under the age of puberty is none the less valid because it is a integral part of the very will in which the testator has instituted him his heir, though such an open substitution may expose the pupil to the danger of foul play. 4. Not only when we leave our inheritance to children under the age of puberty can we make such a substitution, that if they accept the inheritance, and then die under that age, the substitute is their heir, but we can do it when we disinherit them, so that whatever the pupil acquires by way of inheritance, legacy or gift from his relatives or friends, will pass to the substitute. What has been said of substitution to children below the age of puberty, whether instituted or disinherited, is true also of substitution to afterborn children. 5. In no case, however, may a man make a will for his children unless he makes one also for himself; for the will of the pupil is but a complementary part of the father’s own testament; accordingly, if the latter is void, the former will be void also. 6. Substitution may be made either to each child separately, or only to such one of them as shall last die under the age of puberty. The first is the proper plan, if the testator’s intention is that none of them shall die intestate: the second, if he wishes that, as among them, the order of succession prescribed by the Twelve Tables shall be strictly preserved. 7. The person substituted in the place of a child under the age of puberty may be either named individually – for instance, Titius – or generally prescribed, as by the words "whoever shall be my heir"; in which latter case, on the child dying under the age of puberty, those are called to the inheritance by the substitution who have been instituted heirs and have accepted, their shares in the substitution being proportionate to the shares in which they succeeded the father. 8. This kind of substitution may be made to males up to the age of fourteen, and to females up to that of twelve years; when this age is once passed, the substitution becomes void. 9. To a stranger, or a child above the age of puberty whom a man has instituted heir, he cannot appoint a substitute to succeed him if he take and die within a certain time: he has only the power to bind him by a trust to convey the inheritance to another either wholly or in part; the law relating to which subject will be explained in its proper place. |
A duly executed testament remains valid until either revoked or
rescinded. 1. A will is revoked when, though the civil condition of the testator remains unaltered, the legal force of the will itself is destroyed, as happens when, after making his will, a man adopts as his son either an independent person, in which case the adoption is effected by imperial decree, or a person already in power, when it is done through the agency of the praetor according to our constitution. In both these cases the will is revoked, precisely as it would be by the subsequent birth of a family heir. 2. Again, a subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or not; the only question is whether one might conceivably have done so. Accordingly, whether the person instituted declines to be heir, or dies in the lifetime of the testator, or after his death but before accepting the inheritance, or is excluded by failure of the condition under which he was instituted – in all the cases the testator dies intestate; for the earlier will is revoked by the later one, and the later one is inoperative, as no heir takes under it. 3. If, after duly making one will, a man executes a second one which is equally valid, the Emperors Severus and Antoninus decided by rescript that the first is revoked by the second, even though the heir instituted in the second is instituted to certain things only. The terms of this enactment we have ordered to be inserted here, because it contains another provision. "The Emperors Severus and Antoninus to Cocceius Campanus. A second will, although the heir named therein be instituted to certain things only, is just as valid as if no mention of the things had been made: but the heir is bound to content himself with the things given him, or with such further portion of the inheritance as will make up the fourth part to which he is entitled under the lex Falcidia, and (subject thereto) to transfer the inheritance to the persons instituted in the earlier will: for the words inserted in the later will undoubtedly contain the expression of a wish that the earlier one shall remain valid." This accordingly is a mode in which a testament may be revoked. 4. There is another event by which a will duly executed may be invalidated, namely, the testator’s undergoing a loss of status: how this may happen was explained in the preceding Book. 5. In this case the will may be said to be rescinded, though both those that are revoked, and those that are not duly executed, may be said to become or be rescinded; and similarly too those which are duly executed but subsequently rescinded by loss of status may be said to be revoked. However, as it is convenient that different grounds of invalidity should have different names to distinguish them, we say that some wills are unduly executed from the commencement, while others which are duly executed are either revoked or rescinded. 6. Wills, however, which, though duly executed, are subsequently rescinded by the testator’s undergoing loss of status are not altogether inoperative: for if the seals of seven witnesses are attached, the instituted heir is entitled to demand possession in accordance with the will, if only the testator were a citizen of Rome and independent at the time of his decease; but if the cause of the rescission was the testator’s subsequent loss of citizenship or of freedom, or his adoption, and he dies an alien, or slave, or subject to his adoptive father’s power, the instituted heir is barred from demanding possession in accordance with the will. 7. The mere desire of a testator that a will which he has executed shall no longer have any validity is not, by itself, sufficient to avoid it; so that, even if he begins to make a later will, which he does not complete because he either dies first, or changes his mind, the first will remains good; it being provided in an address of the Emperor Pertinax to the Senate that one testament which is duly executed is not revoked by a later one which is not duly and completely executed; for an incomplete will is undoubtedly null. 8. In the same address the Emperor declared that he would accept no inheritance to which he was made heir on account of a suit between the testator and some third person, nor would he uphold a will in which he was instituted in order to screen some legal defect in its execution, or accept an inheritance to which he was instituted merely by word of mouth, or take any testamentary benefit under a document defective in point of law. And there are numerous rescripts of the Emperors Severus and Antoninus to the same purpose: "for though," they say, "the laws do not bind us, yet we live in obedience to them." |
Inasmuch as the disinherison or omission by parents
of their children has generally no good reason, those children who complain
that they have been wrongfully disinherited or passed over have been
allowed to bring an action impeaching the will as unduteous, under the
pretext that the testator was of unsound mind at the time of its execution.
This does not mean that he was really insane, but that the will, though
legally executed, bears no mark of that affection to which a child is
entitled from a parent: for if a testator is really insane, his will
is void. 1. Parents may impeach the wills of their children as unduteous, as well as children those of their parents. Brothers and sisters of the testator are by imperial constitutions preferred to infamous persons who are instituted to their exclusion, so that it is in these cases only that they can bring this action. Persons related to the testator in a further degree than as brothers or sisters can in no case bring the action, or at any rate succeed in it when brought. 2. Children fully adopted, in accordance with the distinction drawn in our constitution, can bring this action as well as natural children, but neither can do so unless there is no other mode in which they can obtain the property of the deceased: for those who can obtain the inheritance wholly or in part by any other title are barred from attacking a will as unduteous. Afterborn children too can employ this remedy, if they can by no other means recover the inheritance. 3. That they may bring the action must be understood to mean, that they may bring it only if absolutely nothing has been left them by the testator in his will: a restriction introduced by our constitution out of respect for a father’s natural rights. If, however, a part of the inheritance, however small, or even a single thing is left them, the will cannot be impeached, but the heir must, if necessary, make up what is given them to a fourth of what they would have taken had the testator died intestate, even though the will does not direct that this fourth is to be made up by the assessment of an honest and reliable man. 4. If a guardian accepts, under his own father’s will, a legacy on behalf of the pupil under his charge, the father having left nothing to him personally, he is in no way debarred from impeaching his father’s will as unduteous on his own account. 5. On the other hand, if he impeaches the will of his pupil’s father on the pupil’s behalf, because nothing has been left to the latter, and is defeated in the action, he does not lose a legacy given in the same will to himself personally. 6. Accordingly, that a person may be barred from the action impeaching the will, it is requisite that he should have a fourth of what he would have taken on intestacy, either as heir, legatee direct or fiduciary, donee in contemplation of death, by gift from the testator in his lifetime (though gift of this latter kind bars the action only if made under any of the circumstances mentioned in our constitution) or in any of the other modes stated in the imperial legislation. 7. In what we have said of the fourth we must be understood to mean that whether there be one person only, or more than one, who can impeach the will as unduteous, one-fourth of the whole inheritance may be given them, to be divided among them all proportionately, that is to say, to each person a fourth of what he would have had if the testator had died intestate. |
Heirs are of three kinds, that is to say, they are either necessary,
family heirs and necessary, or external. 1. A necessary heir is a slave of the testator, whom he institutes as heir: and he is so named because, willing or unwilling, and without any alternative, he becomes free and necessary heir immediately on the testator’s decease. For when a man’s affairs are embarrassed, it is common for one of his slaves to be instituted in his will, either in the first place, or as a substitute in the second or any later place, so that, if the creditors are not paid in full, the heir may be insolvent rather than the testator, and his property, rather than the testator’s, may be sold by the creditors and divided among them. To balance this disadvantage he has this advantage, that his acquisitions after the testator’s decease are for his own sole benefit; and although the estate of the deceased is insufficient to pay the creditors in full, the heir’s subsequent acquisitions are never on that account liable to a second sale. 2. Heirs who are both family heirs and necessary are such as a son or a daughter, a grandchild by a son, and further similar lineal descendants, provided that they are in the ancestor’s power at the time of his decease. To make a grandson or granddaughter a family heir it is, however, not sufficient for them to be in the grandfather’s power at the moment of his decease: it is further requisite that their own father shall, in the lifetime of the grandfather, have ceased to be the family heir himself, whether by death or by any other mode of release from power: for by this event the grandson and granddaughter succeed to the place of their father. They are called family heirs, because they are heirs of the house, and even in the lifetime of the parent are to a certain extent deemed owners of the inheritance: wherefore in intestacy the first right of succession belongs to the children. They are called necessary heirs because they have no alternative, but, willing or unwilling, both where there is a will and where there is not, they become heirs. The praetor, however, permits them, if they wish, to abstain from the inheritance, and leave the parent to become insolvent rather than themselves. 3. Those who are not subject to the testator’s power are called external heirs. Thus children of ours who are not in our power, if instituted heirs by us, are deemed external heirs; and children instituted by their mother belong to this class, because women never have children in their power. Slaves instituted heirs by their masters, and manumitted subsequently to the execution of the will, belong to the same class. 4. It is necessary that external heirs should have testamentary capacity, whether it is an independent person, or some one in his power, who is instituted: and this capacity is required at two times; at the same time of the making of the will, when, without it, the institution would be void; and at the same time of the testator’s decease, when, without it, the institution would have no effect. Moreover, the instituted heir ought to have this capacity also at the time when he accepts the inheritance, whether he is instituted absolutely or subject to a condition; and indeed it is especially at this time that his capacity to take ought to be looked to. If, however, the instituted heir undergoes a loss of status in the interval between the making of the will and the testator’s decease, or the satisfaction of the condition subject to which he was instituted, he is not thereby prejudiced: for, as we said, there are only three points of time which have to be regarded. Testamentary capacity thus does not mean merely capacity to make a will; it also means capacity to take for oneself, or for the father or master in whose power one is, under the will of another person: and this latter kind of testamentary capacity is quite independent of the capacity to make a will oneself. Accordingly, even lunatics, deaf persons, after-born children, infants, children in power, and other persons’ slaves are said to have testamentary capacity; for though they cannot make a valid will, they can acquire for themselves or for another under a will made by someone else. 5. External heirs have the privilege of deliberating whether they will accept or disclaim an inheritance. But if a person who is entitled to disclaim interferes with the inheritance, or if one who has the privilege of deliberation accepts it, he no longer has the power of relinquishing it, unless he is a minor under the age of twenty-five years, for minors obtain relief from the praetor when they incautiously accept a disadvantageous inheritance, as well as when they take any other injudicious step. 6. It is, however, to be observed that the Emperor Hadrian once relieved even a person who had attained his majority, when, after his accepting the inheritance, a great debt, unknown at the time of acceptance, had come to light. This was but the bestowal of an especial favour on a single individual; the Emperor Gordian subsequently extended the privilege, but only to soldiers, to whom it was granted as a class. We, however, in our benevolence have placed this benefit within the reach of all our subjects, and drafted a constitution as just as it is splendid, under which, if heirs will but observe its terms, they can accept an inheritance without being liable to creditors and legatees beyond the value of the property. Thus so far as their liability is concerned there is no need for them to deliberate on acceptance, unless they fail to observe the procedure of our constitution, and prefer deliberation, by which they will remain liable to all the risks of acceptance under the older law. 7. An external heir, whether his right accrue to him under a will or under the civil law of intestate succession, can take the inheritance either by acting as heir, or by the mere intention to accept. By acting as heir is mean, for instance, using things belonging to the inheritance as one’s own, or selling them, or cultivating or giving leases of the deceased’s estates, provided only one expresses in any way whatsoever, by deed or word, one’s intention to accept the inheritance, so long as one knows that the person with whose property one is thus dealing has died testate or intestate, and that one is that person’s heir. To act as heir, in fact, is to act as owner, and the ancients often used the term "heir" as equivalent to the term "owner." And just as the mere intention to accept makes an external heir heir, so too the mere determination not to accept bars him from the inheritance. Nothing prevents a person who is born deaf or dumb, or who becomes so after birth, from acting as heir and thus acquiring the inheritance, provided only he knows what he is doing. |
Let us now examine legacies: – a kind of title which seems foreign
to the matter at hand, for we are expounding titles whereby aggregates
of rights are acquired; but as we have treated in full of wills and
heirs appointed by will, it was natural in close connexion therewith
to consider this mode of acquisition. 1. Now a legacy is a kind of gift left by a person deceased; 2. and formerly they were of four kinds, namely, legacy by vindication, by condemnation, by permission, and by preception, to each of which a definite form of words was appropriated by which it was known, and which served to distinguish it from legacies of the other kinds. Solemn forms of words of this sort, however, have been altogether abolished by imperial constitutions; and we, desiring to give greater effect to the wishes of deceased persons, and to interpret their expressions with reference rather to those wishes than to their strict literal meaning, have issued a constitution, composed after great reflection, enacting that in future there shall be but one kind of legacy, and that, whatever be the terms in which the bequest is couched, the legatee may sue for it no less by real or hypothecary than by personal action. How carefully and wisely this constitution is worded may be ascertained by a perusal of its contents. 3. We have determined, however, to go even beyond this enactment; for, observing that the ancients subjected legacies to strict rules, while the rules which they applied to fiduciary bequests, as springing more directly from the deceased person’s wishes, were more liberal, we have deemed it necessary to assimilate the former completely to the latter, so that any future features in which legacies are inferior to fiduciary bequests may be supplied to them from the latter, and the latter themselves may in future possess any superiority which has hitherto been enjoyed by legacies only. In order, however, to avoid perplexing students in their first essays in the law by discussing these two forms of bequests together, we have thought it worth while to treat them separately, dealing first with legacies, and then with fiduciary bequests, so that the reader, having first learnt their respective natures in a separate treatment, may, when his legal education is more advanced, be able easily to comprehend their treatment in combination. 4. A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff. 5. If the thing which a testator bequests is in pledge to a creditor, the heir is obliged to redeem it, subject to the same distinction as has been drawn with reference to a legacy of a thing not belonging to the testator; that is to say, the heir is bound to redeem only if the deceased knew the thing to be in pledge: and the Emperors Severus and Antoninus have decided this by rescript. If, however, the deceased expresses his intention that the legatee should redeem the thing himself, the heir is under no obligation to do it for him. 6. If a legacy is given of a thing belonging to another person, and the legatee becomes its owner during the testator’s lifetime by purchase, he can obtain its value from the heir by action on the will: but if he gives no consideration for it, that is to say, gets it by way of gift or by some similar title, he cannot sue; for it is settled law that where a man has already got a thing, giving no consideration in return, he cannot get its value by a second title of the same kind. Accordingly, if a man is entitled to claim a thing under each of two distinct wills, it is material whether he gets the thing, or merely its value, under the earlier one: for if he gets the thing itself, he cannot sue under the second will, because he already has the thing without giving any consideration, whereas he has a good right of action if he has merely got its value. 7. A thing which does not yet exist, but will exist, may be validly bequeathed: – for instance, the produce of such and such land, or the child of such and such female slave. 8. If the same thing is given as a legacy to two persons, whether jointly or severally, and both claim it, each is entitled to only a half; if one of them does not claim it, because either he does not care for it, or has died in the testator’s lifetime, or for some other reason, the whole goes to his co-legatee. A joint legacy is given in such words as the following: "I give and bequeath my slave Stichus to Titius and Seius": a several legacy thus, "I give and bequeath my slave Stichus to Titius: I give and bequeath Stichus to Seius": and even if the testator says "the same slave Stichus" the legacy is still a several one. 9. If land be bequeathed which belongs to some one other than the testator, and the intended legatee, after purchasing the bare ownership therein, obtains the usufruct without consideration, and then sues under the will, Julian says that this action for the land is well grounded, because in a real action for land a usufruct is regarded merely as a servitude; but it is part of the duty of the judge to deduct the value of the usufruct from the sum which he directs to be paid as the value of the land. 10. A legacy by which something already belonging to the legatee is given him is void, for what is his own already cannot become more his own than it is: and even though he alienates it before the testator’s death, neither it nor its value can be claimed. 11. If a testator bequeaths something belonging to him, but which he thought belonged to another person, the legacy is good, for its validity depends not on what he thought, but on the real facts of the case: and it is clearly good if he thought it already belonged to the legatee, because his expressed wish can thus be carried out. 12. If, after making his will, a testator alienates property which he has therein given away as a legacy, Celsus is of opinion that the legatee may still claim it unless the testator’s intention was thereby to revoke the bequest, and there is a rescript of the Emperors Severus and Antoninus to this effect, as well as another which decides that if, after making his will, a testator pledges land which he had therein given as a legacy, the part which has not been alienated can in any case be claimed, and the alienated part as well if the alienator’s intention was not to revoke the legacy. 13. If a man bequeaths to his debtor a discharge from his debt, the legacy is good, and the testator’s heir cannot sue either the debtor himself, or his heir, or any one who occupies the position of heir to him, and the debtor can even compel the testator’s heir to formally release him. Moreover, a testator can also forbid his heir to claim payment of a debt before a certain time has elapsed. 14. Contrariwise, if a debtor leaves his creditor a legacy of what he owes him, the legacy is void, if it includes no more than the debt, for the creditor is thus in no way benefited; but if the debtor unconditionally bequeaths a sum of money which the creditor cannot claim until a definite date has arrived or a condition has been satisfied, the legacy is good, because it confers on the creditor a right to earlier payment. And, even if the day arrives, or the condition is satisfied, during the testator’s lifetime, Papinian decides, and rightly, that the legacy is nevertheless a good one, because it was good when first written; for the opinion that a legacy becomes void, because something happens to deprive it of all material effect, is now rejected. 15. If a man leaves his wife a legacy of her dowry, the gift is good, because the legacy is worth more than a mere right of action for the dowry. If, however, he has never received the dowry which he bequeaths, the Emperors Severus and Antoninus have decided by rescript that the legacy is void, provided the general term "dowry" is used, but good, if in giving it to the wife a definite sum or thing is specified, or described generally by reference to the dowry deed. 16. If a thing bequeathed perishes through no act of the heir, the loss falls on the legatee: thus if a slave belonging to another person, who is given in this way, is manumitted through no act of the heir, the latter is not bound. If, however, the slave belongs to the heir, who manumits him, Julian says that he is bound, and it is immaterial whether he knew or not that the slave had been bequeathed away from him. 17. If a testator gives a legacy of female slaves along with their offspring, the legatee can claim the latter even if the mothers are dead, and so again if a legacy is given of ordinary slaves along with their vicarii or subordinates, the latter can be claimed even if the former are dead. But if the legacy be of a slave along with his peculium, and the slave is dead, or has been manumitted or alienated, the legacy of the peculium is extinguished; and similarly, if the legacy be of land with everything upon it, or with all its instruments of tillage, by the alienation of the land the legacy of the instruments of tillage is extinguished. 18. If a flock be given as a legacy, which is subsequently reduced to a single sheep, this single survivor can be claimed; and Julian says that in a legacy of a flock are comprised sheep which are added to it after the making of the will, a flock being but one aggregate composed of distinct members, just as a house is but one aggregate composed of distinct stones built together. 19. So if the legacy consists of a house, we hold that pillars or marbles added to it after the making of the will pass under the bequest. 20. If a slave’s peculium be given as a legacy, the legatee undoubtedly profits by what is added to it, and is a loser by what is taken from it, during the testator’s lifetime. Whatever the slave acquires in the interval between the testator’s death and the acceptance of the inheritance belongs, according to Julian, to the legatee, if that legatee be the slave himself who is manumitted by the will, because a legacy of this kind vests from the acceptance of the inheritance: but if the legatee be a stranger, he is not entitled to such acquisitions, unless they are made by means of the peculium itself. A slave manumitted by a will is not entitled to his peculium unless it is expressly bequeathed to him, though, if the master manumits him in his lifetime, it is enough if it be not expressly taken from him, and to this effect the Emperors Severus and Antoninus have decided by rescript: as also, that a legacy of his peculium to a slave does not carry with it the right to sue for money which he has expended on his master’s account, and that a legacy of a peculium may be inferred from directions in a will that a slave is to be free so soon as he has made a statement of his accounts and made up any balance, which may be against him, from his peculium. 21. Incorporeal as well as corporeal things can be bequeathed: thus a man can leave a legacy even of a debt which is owed to him, and the heir can be compelled to transfer to the legatee his rights of action, unless the testator has exacted payment in his lifetime, in which case the legacy is extinguished. Again, such a legacy as the following is good: "be my heir bound to repair so and so’s house, or to pay so and so’s debts." 22. If a legacy be a general one, as of a slave or some other thing not specifically determined, the legatee is entitled to choose what slave, or what thing, he will have, unless the testator has expressed a contrary intention. 23. A legacy of selection, that is, when a testator directs the legatee to select one from among his slaves, or any other class of things, was held to be given subject to an implied condition that the legatee should make the choice in person; so that if he died before doing so the legacy did not pass to his heir. By our constitution, however, we have made an improvement in this matter, and allowed the legatee’s heir to exercise the right of selection, although the legatee has not done so personally in his lifetime; which enactment, through our careful attention to the subject, contains the further provision, that if there are either several co-legatees to whom a right of selection has been bequeathed, and who cannot agree in their choice, or several co-heirs of a single legatee, who differ through some wishing to choose this thing and others that, the question shall be decided by fortune – the legacy not being extinguished, which many of the jurists in an ungenerous spirit wished to make the rule –; that is to say, that lots shall be drawn, and he on whom the lot falls shall have a priority of choice over the rest. 24. Three persons only can be legatees who have testamentary capacity, that is, who are legally capable of taking under a will. 25. Formerly it was not allowed to leave either legacies or fiduciary bequests to uncertain persons, and even soldiers, as the Emperor Hadrian decided by rescript, were unable to benefit uncertain persons in this way. An uncertain person was held to be one of whom the testator had no certain conception, as the legatee in the following form: "Whoever bestows his daughter in marriage on my son, do thou, my heir, give him such or such land." So too a legacy left to the first consuls designate after the writing of the will was held to be given to an uncertain person, and many others that might be instanced: and so it was held that freedom could not be bequeathed to an uncertain person, because it was settled that slaves ought to be enfranchised by name, and an uncertain person could not be appointed guardian. But a legacy given with a certain demonstration, that is, to an uncertain member of a certain class, was valid, for instance, the following: "Whoever of all my kindred now alive shall first marry my daughter, do thou, my heir, give him such and such thing." It was, however, provided by imperial constitutions that legacies or fiduciary bequests left to uncertain persons and paid by mistake could not be recovered back. 26. An after-born stranger again could not take a legacy; an after-born stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emancipated son was held to be an after-born stranger to his grandfather. 27. These parts of the law, however, have not been left without due alteration, a constitution having been inserted in our Code by which we have in these respects amended the rules relating to legacies and fiduciary bequests no less than to inheritances, as will be made clear by a perusal of the enactment, which, however, still maintains the old rule that an uncertain person cannot be appointed guardian: for when a testator is appointing a guardian for his issue, he ought to be quite clear as to the person and character of the party he selects. 28. An after-born stranger could and still can be instituted heir, unless conceived of a woman who cannot by law be a man’s wife. 29. If a testator makes a mistake in any of the names of the legatee, the legacy is nevertheless valid provided there is no doubt as to the person he intended, and the same rule is very properly observed as to heirs as well as legatees; for names are used only to distinguish persons, and if the person can be ascertained in other ways a mistake in the name is immaterial. 30. Closely akin to this rule is another, namely, that an erroneous description of the thing bequeathed does not invalidate the bequest; for instance, if a testator says, "I give and bequeath Stichus my born slave," the legacy is good, if it quite clear who is meant by Stichus, even though it turn out that he was not born the testator’s slave, but was purchased by him. Similarly, if he describe Stichus as "the slave I bought from Seius," whereas in fact he bought him from some one else, the legacy is good, if it is clear what slave he intended to give. 31. Still less is a legacy invalidated from a wrong motive being assigned by the testator for giving it: if, for instance, he says, "I give and bequeath Stichus to Titius, because he looked after my affairs while I was away," or "because I was acquitted on a capital charge through his undertaking my defence," the legacy is still good, although in point of fact Titius never did look after the testator’s affairs, or never did, through his advocacy, procure his acquittal. But the law is different if the testator expresses his motive in the guise of a condition, as: "I give and bequeath such and such land to Titius, if he has looked after my affairs." 32. It is questioned whether a legacy to a slave of the heir is valid. It is clear that such a legacy is void if given unconditionally, even though the slave ceases to belong to the heir during the testator’s lifetime: for a legacy which would be void if the testator died immediately after making his will ought not to become valid by the simple fact of the testator’s living longer. Such a legacy, however, is good if given subject to a condition, the question then being, whether at the vesting of the legacy the slave has ceased to belong to the heir. 33. On the other hand, there is no doubt that even an absolute legacy to the master of a slave who is instituted heir is good: for, even supposing that the testator dies immediately after making the will, the right to the legacy does not necessarily belong to the person who is heir; for the inheritance and the legacy are separable, and a different person from the legatee may become heir through the slave; as happens if, before the slave accepts the inheritance at his master’s bidding, he is conveyed to another person, or is manumitted and thus becomes heir himself; in both of which cases the legacy is valid. But if he remains in the same condition, and accepts at his master’s bidding, the legacy is extinguished. 34. A legacy given before an heir was appointed was formerly void, because a will derives its operation from the appointment of an heir, and accordingly such appointment is deemed the beginning and foundation of the whole testament, and for the same reason a slave could not be enfranchised before an heir was appointed. Yet even the old lawyers themselves disapproved of sacrificing the real intentions of the testator by too strictly following the order of the writing: and we accordingly have deemed these rules unreasonable, and amended them by our constitution, which permits a legacy, and much more freedom, which is always more favoured, to be given before the appointment of an heir, or in the middle of the appointments, if there are several. 35. Again, a legacy to take effect after the death of the heir or legatee, as in the form: "After my heir’s death I give and bequeath," was formerly void, as also was one to take effect on the day preceding the death of the heir or legatee. This too, however, we have corrected, by making such legacies as valid as they would be were they fiduciary bequests, lest in this point the latter should be found to have some superiority over the former. 36. Formerly too the gift, revocation, and transference of legacies by way of penalty was void. A penal legacy is one given in order to coerce the heir into doing or not doing something; for instance, the following: "If my heir gives his daughter in marriage to Titius," or, conversely, "if he does not give her in marriage to Titius, let him pay ten aurei to Seius"; or again, "if my heir parts with my slave Stichus," or, conversely, "if he does not part with him, let him pay ten aurei to Titius." And so strictly was this rule observed, that it is declared in a large number of imperial constitutions that even the Emperor will accept no legacy by which a penalty is imposed on some other person: and such legacies were void even when given by a soldier’s will, in which as a rule so much trouble was taken to carry out exactly the testator’s wishes. Moreover, Sabinus was of opinion that a penal appointment of a co-heir was void, as exemplified in the following: "Be Titius my heir: if Titius gives his daughter in marriage to Seius, be Seius my heir also"; the ground of the invalidity being that it made no difference in what way Titius was constrained, whether by a legacy being left away from him, or by some one being appointed co-heir. Of these refinements, however, we disapproved, and have consequently enacted generally that bequests, even though given, revoked, or transferred in order to penalize the heir, shall be treated exactly like other legacies, except where the event on which the penal legacy is contingent is either impossible, illegal, or immoral: for such testamentary dispositions as these the opinion of my times will not permit. |
Legacies may be revoked either in a later clause of
the will or by codicils, and the revocation may be made either in words
contrary to those of the gift, as the gift thus "I give and bequeath,"
the revocation thus "I do not give and bequeath," or in words
not contrary, that is to say, in any words whatsoever. 1. A legacy may also be transferred from one person to another, as thus: "I give and bequeath to Seius the slave Stichus whom I bequeathed to Titius," and this may be done either by a later clause of the will or by codicils; the result being that the legacy is taken away from Titius and simultaneously given to Seius. |
We have finally to consider the lex Falcidia, the
most recent enactment limiting the amount which can be given in legacies.
The statute of the Twelve Tables had conferred complete liberty of bequest
on testators, by which they were enabled to give away their whole patrimony
in legacies, that statute having enacted: "let a man’s testamentary
disposition of his property be regarded as valid." This complete
liberty of bequest, however, it was thought proper to limit in the interest
of testators themselves, for intestacy was becoming common through the
refusal of instituted heirs to accept inheritances from which they received
little or no advantage at all. The lex Furia and the lex Voconia were
enactments designed to remedy the evil, but as both were found inadequate
to the purpose, the lex Falcidia was finally passed, providing that
no testator should be allowed to dispose of more than three-quarters
of his property in legacies, or in other words, that whether there was
a single heir instituted, or two or more, he or they should always be
entitled to at least a quarter of the inheritance. 1. If two heirs, say Titius and Seius, are instituted, and Titius’s share of the inheritance is either wholly exhausted in legacies specifically charged thereon, or burdened beyond the limit fixed by the statute, while no legacies at all are charged on Seius, or at any rate legacies which exhaust it only to the extent of one half or less, the question arose whether, as Seius has at least a quarter of the whole inheritance, Titius was or was not entitled to retain anything out of the legacies which had been charged upon him: and it was settled that he could keep an entire fourth of his share of the inheritance; for the calculation of the lex Falcidia is to be applied separately to the share of each of several heirs in the inheritance. 2. The amount of the property upon which the calculation is brought to bear is its amount at the moment of the testator’s decease. Thus, to illustrate by an example, a testator who is worth a hundred aurei at his decease gives the whole hundred away in legacies: here, if before the heir accepts, the inheritance is so much augmented through slaves who belong to it, or by births of children from such of them as are females, or by the young of cattle that, even after paying away a hundred aurei in legacies, the heir will still have a clear fourth of the inheritance, the legatee’s position is in no way improved, but a quarter of the sum given in legacies may still be deducted for himself by the heir. Conversely, if only seventy-five aurei are given in legacies, and before acceptance the inheritance is so much diminished in value, say by fire, shipwreck, or death of slaves, that no more or even less than seventy-five aurei are left, the legatees can claim payment of their legacies in full. In this latter case, however, the heir is not prejudiced, for he is quite free to refused the inheritance: consequently, the legatees must come to terms with him, and content themselves with a portion of their legacies, lest they lose all through no one’s taking under the will. 3. When the calculation of the lex Falcidia is made, the testator’s debts and funeral expenses are first deducted, and the value of slaves whom he has manumitted in the will or directed to be manumitted is not reckoned as part of the inheritance; the residue is then divided so as to leave the heirs a clear fourth, the other three quarters being distributed among the legatees in proportion to the amount of the legacies given them respectively in the will. Thus, if we suppose four hundred aurei to have been given in legacies, and the value of the inheritance, out of which they are to be paid, to be exactly that sum, each legatee must have his legacy abated by one-fourth; if three hundred and fifty have been given in legacies, each legacy will be diminished by one-eighth; if five hundred, first a fifth, then a fourth, must be deducted: for when the amount given in legacies actually exceeds the sum of the inheritance, there must be struck off first the excess, and then the share which the heir is entitled to retain. |
We now proceed to fiduciary bequests or trusts; and let us begin
with trust inheritances. 1. Legacies or inheritances given by trust had originally no binding legal force, because no one could be compelled against his will to do what he was merely asked to do. As there were certain classes of persons to whom testators were unable to leave inheritances or legacies, when they wished to effect these objects they used to trust to the good faith of some one who had this kind of testamentary capacity, and whom they asked to give the inheritance, or the legacy, to the intended beneficiary; hence the name "trusts," because they were not enforced by legal obligation, but only by the transferor’s sense of honesty. Subsequently the Emperor Augustus, either out of regard for various favourites of his own, or because the request was said to have been made in the name of the Emperor’s safety, or moved thereto by individual and glaring cases of perfidy, commanded the consuls in certain cases to enforce the duty by their authority. And this being deemed equitable, and being approved by the people, there was gradually developed a new and permanent jurisdiction, and trusts became so popular that soon a special praetor was appointed to hear suits relating to them, who was called the trust praetor. 2. The first requisite is an heir directly instituted, in trust to transfer the inheritance to another, for the will is void without an instituted heir in the first instance. Accordingly, when a testator has written: "Lucius Titius, be thou my heir," he may add: "I request you, Lucius Titius, as soon as you can accept my inheritance, to convey and transfer it to Gaius Seius"; or he can request him to transfer a part. So a trust may be either absolute or conditional, and to be performed either immediately or on a specified future day. 3. After the transfer of the inheritance the transferor continues heir, the transferee being sometimes regarded as quasi-heir, sometimes as quasi-legatee. 4. But during the reign of Nero, in the consulate of Trebellius Maximus and Annaeus Seneca, a senatusconsult was passed providing that, when an inheritance is transferred in pursuance of a trust, all the actions which the civil law allows to be brought by or against the heir shall be maintainable by and against the transferee: and after this enactment the praetor used to give indirect or fictitious actions to and against the transferee as quasi-heir. 5. However, as the instituted heirs, when (as so often was the case) they were requested to transfer the whole or nearly the whole of an inheritance, declined to accept for what was no benefit, or at most a very slight benefit, to themselves, and this caused a failure of the trusts, afterwards, in the time of the Emperor Vespasian, and during the consulate of Pegasus and Pusio, the senate decreed that an heir who was requested to transfer the inheritance should have the same right to retain a fourth thereof as the lex Falcidia gives to an heir charged with the payment of legacies, and gave a similar right of retaining the fourth of any specific thing left in trust. After the passing of this senatusconsult the heir, wherever it came into operation, was sole administrator, and the transferee of the residue was in the position of a partiary legatee, that is, of a legatee of a certain specified portion of the estate under the kind of bequest called participation, so that the stipulations which had been usual between an heir and a partiary legatee were now entered into by the heir and transferee, in order to secure a rateable division of the gains and losses arising out of the inheritance. 6. Accordingly, after this, if no more than three- fourths of the inheritance was in trust to be transferred, then the SC. Trebellianum governed the transfer, and both were liable to be sued for the debts of the inheritance in rateable portions, the heir by civil law, the transferee, as quasi-heir, by that enactment. But if more than three-fourths, or even the whole was left in trust to be transferred, the SC. Pegasianum came into operation, and when once the heir had accepted, of course voluntarily, he was the sole administrator whether he retained one-fourth or declined to retain it: but if he did, he entered into stipulations with the transferee similar to those usual between the heir and a partiary legatee, while if he did not, but transferred the whole inheritance, he covenanted with him as quasi-purchaser. If an instituted heir refuse to accept an inheritance from a suspicion that the liabilities exceed the assets, it is provided by the SC. Pegasianum that, on the petition of the person to whom he is requested to transfer, he shall be ordered by the praetor to accept and transfer it, whereupon the transferee shall be as capable of suing and being sued as the transferee under the SC. Trebellianum. In this case no stipulations are necessary, because by a concurrent operation of the two senatusconsults both the transferor is protected, and all actions relating to the inheritance pass to and against the transferee. 7. As, however, the covenants which had become necessary through the SC. Pegasianum were disliked even by the older lawyers, and are in certain cases considered injurious by the eminent jurist Papinian, and it being our desire that our statute book should be clear and simple rather than complicated, we have, after placing these two senatusconsults side by side and examining their points of resemblance and difference, resolved to repeal the SC. Pegasianum, as the later enactment, and to give exclusive authority to the SC. Trebellianum, under which in future all trust inheritances are to be transferred, whether the testator has freely given his heir a fourth of the property, or more or less, or even nothing at all: provided always, that when the heir has either nothing or less than a fourth, it shall be lawful for him, under our authority expressed in this statute, to retain a fourth, or to recover it by action if he has already paid it over, the heir and the transferee being capable both of suing and being sued in proportion to their shares in the inheritance, after the analogy of the SC. Trebellianum; and provided also, that if the heir voluntarily transfers the whole inheritance, the transferee shall be able to sue and be sued on all actions relating to the inheritance whatsoever. Moreover, we have transferred to the SC. Trebellianum the leading provision of the SC. Pegasianum, whereby it was enacted that when an instituted heir refused to accept an inheritance offered to him, he could be compelled to accept and transfer the whole inheritance if the intended transferee so desired, and that all actions should pass to and against the latter: so that it is under the SC. Trebellianum alone that the heir, if unwilling to accept, is now obliged to do so, if the intended transferee desire the inheritance, though to him personally no loss or profit can accrue under the transaction. 8. It makes no difference whether it is a sole or part heir who is under a trust to another, or whether what he is requested to transfer is the whole or only a part of that to which he is heir; for we direct that the same rules shall be applied in the case of a part being transferred as we have said are observed in the transference of a whole inheritance. 9. If the request addressed to the heir is to transfer the inheritance after deducting or reserving some specific thing which is equal in value to a fourth part thereof, such as land or anything else, the conveyance will be made under the SC. Trebellianum, exactly as if he had been asked after retaining a fourth part of the inheritance to transfer the residue. There is, however, some difference between the two cases; for in the first, where the inheritance is transferred after deducting or reserving some specific thing, the senatusconsult has the effect of making the transferee the only person who can sue or be sued in respect of the inheritance, and the part retained by the heir is free from all encumbrances, exactly as if he had received it under a legacy; whereas in the second, where the heir, after retaining a fourth part of the inheritance, transfers the rest as requested, the actions are divided, the transferee being able to sue and be sued in respect of three-fourths of the inheritance, and the heir in respect of the rest. Moreover, if the heir is requested to transfer the inheritance after deducting or reserving only a single specific thing, which, however, in value is equivalent to the greater part of the inheritance, the transferee is still the only person who can sue and be sued, so that he ought well to weigh whether it is worth his while to take it: and the case is precisely the same, whether what the heir is directed to deduct or reserve before transferring is two or more specific things, or a definite sum which in fact is equivalent to a fourth or even the greater part of the inheritance. What we have said of a sole heir is equally true of one who is instituted only to a part. 10. Moreover, a man about to die intestate can charge the person to whom he knows his property will go by either the civil or praetorian law to transfer to some one else either his whole inheritance, or a part of it, or some specific thing, such as land, a slave, or money: but legacies have no validity unless given by will. 11. The transferee may himself be charged by the deceased with a trust to transfer to some other person either the whole or a part of what he receives, or even something different. 12. As has been already observed, trusts in their origin depended solely on the good faith of the heir, from which early history they derived both their name and their character: and it was for that reason that the Emperor Augustus made them legally binding obligations. And we, in our desire to surpass that prince, have recently made a constitution, suggested by a matter brought before us by the eminent Tribonian, quaestor of our sacred palace, by which it is enacted, that if a testator charges his heir with a trust to transfer the whole inheritance or some specific thing, and the trust cannot be proved by writing or by the evidence of five witnesses – five being, as is known, the number required by law for the proof of oral trusts – through there having been fewer witnesses than five, or even none at all, and if the heir, whether it be his own son or some one else whom the testator has chosen to trust, and by whom he desired the transfer to be made, perfidiously refuses to execute the trust, and in fact denies that he was ever charged with it, the alleged beneficiary, having previously sworn to his own good faith, may put the heir upon his oath: whereupon the heir may be compelled to swear that no trust was ever charged upon him, or, in default, to transfer the inheritance or the specific thing, as the case may be, in order that the last wishes of the testator, the fulfilment of which he has left to the honour of his heir, may not be defeated. We have also prescribed the same procedure where the person charged with a trust is a legatee or already himself a transferee under a prior trust. Finally, if the person charged admits the trust, but tries to shelter himself behind legal technicalities, he may most certainly be compelled to perform his obligation. |
Single things can be left in trust as well as inheritances; land,
for instance, slaves, clothing, gold, silver, and coined money; and
the trust may be imposed either on an heir or on a legatee, although
a legatee cannot be charged with a legacy. 1. Not only the testator’s property, but that of an heir, or legatee, or person already benefited by a trust, or any one else may be given by a trust. Thus a legatee, or a person in whose favour the testator has already created a trust, may be asked to transfer either a thing left to him, or any other thing belonging to himself or a stranger, provided always that he is not charged with a trust to transfer more than he takes by the will, for in respect of such excess the trust would be void. When a person is charged by a trust to transfer a thing belonging to some one else, he must either purchase and deliver it, or pay its value. 2. Liberty can be left to a slave by a trust charging an heir, legatee, or other person already benefited by a trust of the testator’s, with his manumission, and it makes no difference whether the slave is the property of the testator, of the heir, of the legatee or of a stranger: for a stranger’s slave must be purchased and manumitted; and on his master’s refusal to sell (which refusal is allowable only if the master has taken nothing under the will) the trust to enfranchise the slave is not extinguished, as though its execution had become impossible, but its execution is merely postponed; because it may become possible to free him at some future time, whenever an opportunity of purchasing him presents itself. A trust of manumission makes the slave the freedman, not of the testator, though he may have been his owner, but of the manumitter, whereas a direct bequest of liberty makes a slave the freedman of the testator, whence too he is called "orcinus." But a direct bequest of liberty can be made only to a slave who belongs to the testator both at the time of making his will and at that of his decease; and by a direct bequest of liberty is to be understood the case where the testator desires him to become free in virtue, as it were, of his own testament alone, and so does not ask some one else to manumit him. 3. The words most commonly used to create a trust are I beg, I request, I wish, I commission, I trust to your good faith; and they are just as binding when used separately as when united. |
It is certain that codicils were not in use before the time of
Augustus, for Lucius Lentulus, who was also the originator of trusts,
was the first to introduce them, in the following manner. Being on the
point of death in Africa, he executed codicils, confirmed by his will,
by which he begged Augustus to do something for him as a trust; and
on the Emperor’s fulfilling his wishes, other persons followed the precedent
and discharged trusts created in this manner, and the daughter of Lentulus
paid legacies which could not have been legally claimed from her. It
is said that Augustus called a council of certain jurists, among them
Trebatius, who at that time enjoyed the highest reputation, and asked
them whether the new usage could be sanctioned, or did not rather run
counter to the received principles of law, and that Trebatius recommended
their admission, remarking "how convenient and even necessary the
practice was to citizens," owing to the length of the journeys
which were taken in those early days, and upon which a man might often
be able to make codicils when he could not make a will. And subsequently,
after codicils had been made by Labeo, nobody doubted their complete
validity. 1. Not only can codicils be made after a will, but a man dying intestate can create trusts by codicils, though Papinian says that codicils executed before a will are invalid unless confirmed by a later express declaration that they shall be binding. But a rescript of the Emperors Severus and Antoninus decides that the performance of a trust imposed by codicils written before a will may in any case be demanded, if it appears that the testator had not abandoned the intention expressed in them. 2. An inheritance can neither be given nor taken away by codicils, nor, accordingly, can a child be disinherited in this way: for, if it were otherwise, the law of wills and of codicils would be confounded. By this it is meant that an inheritance cannot directly be given or taken away by codicils; for indirectly, by means of a trust, one can very well be given in this manner. Nor again can a condition be imposed on an instituted heir, or a direct substitution be effected, by codicils. 3. A man can make any number of codicils, and no solemnities are required for their execution. |
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