Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/108

80 such a case the substitute becomes heir to the father, if the son does not become heir, and heir to the son, if the son has become heir but dies before puberty. Nor was a testator bound to appoint his son heir; he might disinherit him and yet appoint an heir to any property which came to his son from inheritance or gift from others. Justinian allowed a father to make a similar will for a son of full age who was demented.

If an heir is appointed on a condition, which at the time of testator's death it is impossible to fulfil, the condition goes for nothing and the appointment is absolute. But if the appointed heir is a son, the appointment is treated as bad, and the son being thus passed over, the will is null, and the son becomes heir on an intestacy. A condition which could be fulfilled but involved an illegal or immoral action was treated as impossible, Papinian laying down the principle that acts should be deemed impossible which do violence to dutiful affection, to fair repute, to respectful modesty, and generally which are opposed to good conduct.

A testator could make one of his slaves heir, if he also gave him his freedom. The slave then became heir of necessity, and this plan was sometimes adopted by a testator who was insolvent, in order that the disgrace of the estate being sold in bankruptcy might fall on him rather than on the testator. As compensation for this misfortune, the creditors were not allowed any right to be paid out of acquisitions made by him since testator's death.

Madmen, dumb, infants, posthumous, children under power, others' slaves, were capable of being heirs.

The position of an heir as a representative of the deceased was in many cases attended with much uncertainty and serious risk. His own estate was liable, if testator's was not sufficient, to pay the creditors. If more than one person was appointed heir, each was liable in proportion to his share as specified by testator, or, if no share was named, then in equal shares. Testator might give away from his heirs such parts of his property as he chose, and these legacies, unlike the heirship, carried no unexpressed burden with them: a legatee was a mere recipient of bounty, unless some condition was attached: he was a successor to testator's rights in a particular thing only.

In such circumstances the appointed heir or heirs could not prudently accept the inheritance until after careful inquiry into the solvency of the estate, and even then the emergence of some previously undiscovered debt might upset all his calculations and ruin him. Further, besides testator's debts, the heir is liable also to pay the legacies, and cannot prevent the loss to the estate of the slaves to whom testator may have given freedom by his will. Hence there might be further ground for hesitation in accepting the inheritance, and yet if no heir named accepts, the will becomes a dead letter, intestacy results, and the legacies and freedoms fall to the ground.