Page:Catholic Encyclopedia, volume 9.djvu/107

 LAW

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LAW

as the various servitudes of drawing water, of driving cattle to water, of pasturage, of burning lime, of dig- ging sand or gravel, and the like. Servitudes of this character could be extinguished by the consolidation of ownership of both servient and dominant estate in the same owner, and by remission or release; by non- user for the prescriptive period, and by the destruction of the dominant or servient estate.

Usufruct was the greatest of personal servitudes; jret, as its measure was not the stnct personal needs of its subject, it exceeded a personal servitude. During the period of enjoyment it was almost ownership, and was described as a personal servitude consisting in the use and enjoyment of the corporeal things of another without change in their substance. Usvsfructus was the right ulendi^ fmendi, salva substantia. In a strict sense it applied only to corporeal things which were neither consumed nor dimimshed by such use. After Tiberius, a quasi-usufruct (as of money) was recog- nized. Monev, although not consumable naturaliter, was consumable civUiter. Usufruct could arise by operation of law, by judicial decision (as in partition), by convention, by laist will, and even by prescription. The natural or civil death of the usufructuary ex- tinguished the right, as did non-user and the complete loss of the thing.

Use and habitation were lesser rights of the same general nature. Ustis was the right to use the things of another, but only to the extent of the usee's necessi- ties, and always sdva substantia. Habitation was the right of dwelhng in another's building in those apart- ments which were intended for habitation, salva sub- stantia (i. e., without substantial modification). The personal servitude operce servorum embraced every utility from the labour of another's slave or slaves. "The actions from servitudes were confessoria or nega- toriay in assertion of the servitude or in denial of it.

Ownership might further be acquired by usucap- ion (usucapio) and prescription for a long period. Prescription (a slight modification of the older usu- capion) is the dispensing with evidence of title, and is acquisitive when it is the means of acquiring owner- ship and extinctive (divestitive) when it bars a right of action. Acquisitive prescription reauired (1) a thing subject to prescription, (2) good faitn, (3) continuous possession, and (4) the lapse of the prescribed time.

Again, ownership could be acquired by donation, the gratuitous transfer of a thing to another person. Donations were mortis causa or inter vivos, and the former was in reality a conditional testamentary dis- position and very similar to a legacy, while the latter did not require the death of the donor for its perfec- tion. A species of donation inter vivos was the donatio propter nuptias from the husband.

T/he juridical consequence of ownership is the power of alienation, and yet the law limited certain owners in this respect. The husband owned the dowry, but was suDJect to restrictions; the pupil under tutorship was owner, but without power to alienate, except probably in the single case ota sister's dowry. Even where one was owner without these specific limitations, if he had conceded rights in re to another, he could not alienate prejudicially to such other: thus, the pledge debtor could not prejudice the rights in re of the pledge creditor.

Acquisition could be made, not only personally, but through children and slaves; and, m the later law, through a mandatory or procurator. Acquisition could be made of possession, of ownership, and of the right of pledge.

Succession. — Succession to a deceased person was either testate or intestate: particular things were ac- quired by legacies or by trust-bequests (fidei-comn missa), A universal succession was an inheritance. The Twelve Tables recognized the right of testation, and the civil law later conceived of a partnership ot blood in both testate and intestate successions. The

praetor's intervention was frequent in testamentary matters; and in equitable cases he soften^ the rigour of the law and gave the possessio bonorum. A testa- ment was the legally declared last will in which an heir was instituted. Some departure from the strict formalities was permitted in the case of soldiers' wills. The right of testament was active and passive. Per- sons generally who were under no incapacity could make a will; those prohibited were such as had some defect of status, some vice or defect of mind, or even some sufficient defect of body, and those guilty of crime or improbity. The passive right of testament was the right to take under a will. Heirs were volun- tary or necessary (forced). In the early freedom of the law, Romans might disinherit without cause; later, this liberty was restricted to disherison for just cause, and a legitima^ or statutory provision, was prescribed. Disherison was the express exclusion from the whole inheritance of one who was entitled to the legiHma, One was prceteritus who was neither instituted an heir nor disinherited. Since disherison- was required to be express, one conditionally instituted was only preter- mitted. Further, disherison required exclusion from all heirs and from every degree. Under the early law, sons were required to be excluded by name; daughters and grandchildren could be excluded by class. The later law required that all children should be deprived by name. Justinian enumerated the " just' causes of disherison in Novel cxv; they are sub- stantially the same in the modern civil codes.

The instituted heir, as successor to the universal rights of the decedent, was required to have passive t^tamentary capacity at the time of the will and at the time of the acath; the intervening period was of no consequence. It was, however, requisite that he should retain capacity from the time of the death until the taking of the inheritance. In a conditional in- stitution of the heir, capacity was necessary at the time of the will, at the time of the death, and at the time of the happening of the condition. Slaves as well as freemen could oe instituted heirs, and, in the case of a slave the gift of liberty was implied. Un- certain and indeterminate persons might he instituted if they could be rendered certain; such were the poor, the municipalities, and licit corporations. Where co- heirs were instituted without definite shares, they took equally. The heir might be instituted abso- lutely or conditionally, but not merely for a time. A physically impossible condition, negatively added, left the institution absolute; in general, the condi- tions annexed were various and quite similar to the classes of conditions known to the modern civil law. Where one of several co-heirs failed to take, his por- tion accrued to the others as a matter of law, without their knowledge and even against their wiQ: this was called the ju^ accrescendi.

As already intimated, the testator mi^ht institute one or several heirs; if all were instituteaat the same time, they were direct heirs; but one might be direct and the other substituted by way of fidei-commissum. Again, the testator could suDstitute an heir, in case the first should not take. Direct substitution, therefore, was the institution of a second heir, in case the first failed to take: with respect to the person making the substitution, it was eitner military or non-military. The case in which the substitution was intended to take place classed it as vulgar, pupillary, or c[uasi- pupillary: vulgar was the ordinary substitution in which one was named to take, in case the first "heir de- faulted or died; pupillary, was where an heir was insti- tuted to succeed a child under pubeijy (since such child could not make a will, the parent in a sense made two wills, one for himself to the child and one for the child in case the latter should die before puberty).

Testaments were vitiated in several ways: nuUum, void from the begining, where there was a defect in the institution of the heir or incapacity in the teetator;