Page:Catholic Encyclopedia, volume 9.djvu/108

 LAW

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LAW

inpt^uMf not' legally executed and hence void; rup- hun, by revocation or by the agnation of a posthumous diild, either natural or civil; irruptunif where the testator had lost the civil status necessary for testa- tion; deatUtUum, where the heir defaulted because dead or unwilling, or upon failure of the condition; ndssumf as the consequence of a legal attack upon an undutif ul will.

It has been said that heirs were either necessary or voluntary: necessary heirs were either such as could not be pretermitted or such as were forced to accept. These were again sui el neceaaarii or necessarii omy. The former were children under the patria potesias, and they were aui because one's own, and necessarii, because the civil law made them forced heirs, although the prsdtor ^ve to such the heneiicium abstinenai. Voluntary heirs were strangers who nad a perfect right of election to accept or reject the inheritance. The praetor conceded to the heir a period of time in which to balance the advantages and disadvantages of the inheritance, called the jus ddiherandi. Justinian added to this the benefit of inventory.

Aside from the inheritance proper, a will could con- tain le^^ies whereby things were bequeathed by a single title and hy express words; they could be im- perative or precative. Legacies were by vindication, where the express words justified a direct legal claim by the legatee; by condemnation, where the language condemned or ordered the heir to transmit the legacy; by prcBceptio, where a legacy was left to one only of several co-heirs; and stnendi modo, by permissive words. As in the case of joint-heirs, the jus accres- cendi existed also amon^ joint-legatees.

By reason of the ambulatory character (as Hcin- eccius terms it) of man's will, legacies and trust-be- quests (fideircommissa) were subject to ademption and tmnsfer to another legatee. The Lex Falcidia, which created the statutory fourth portion, applied to lega- cies as well as to other testamentary provisions. Fidei^commissa were created by precative words ad- dressed to the conscience of the heir, and were at first not lesally enforceable. Trust-bequests were later g^ven I^al sanction; and the^r were universal or of single things. The modern civil law is hostile to trusts of any kind.

If a last will contained the institution of an heir, it was a testament; if it contained less, it was a codi- dl. Originally, codicils were only letters; later, they began to have testamentary force, containing, how- ever, nothing which pertamed to the direct insti- tution of the heir. There could be several non- repugnant codicils. Not only could they contain no institution of an heir, but they could not provide for disherison or substitution. They were made either in connexion with a will or, in some cases, with a view to the intestate succession of the heir.

If there was an invalid will or no will at all, the suc- cession was intestate: in the ancient law the basis of intestate succession was the peculiarly Roman arti- ficial family made up of the agnates. Emancipated childreoi and non-agnatic cognates did not succeed, since they were no part of the family. In the first rank, the heirs were the decedent's children (natural or adoptive) who took per capita^ in the nearest degree and per stirpes, or by representation, in remot<?r decrees. Elmancipated. children had no claim until Kter, when they were aided by the prsetor's edict, " Unde liberi ". The Twel vfe Tables provided that, in the absence of children, the nearest agnate should be called: this was known as the statutory sucession of the agnates. Those only were called who were lx)und in amation to the deceased through males; hence fenudes beyond sisters were not called. The pnetor, however, provided for the more remote in the edict, " Unde cognati "• Agnates by adoption enjoyed the same rights as agnates by nature. The nearest agnate todc, and there was no right of representation, al-

though here again the prsetor made innovations which were supplemented by the legislation of Justinian. The father did not succeed to the son, consistently with the idea that the son could have nothing of his own, and, where the father took, it was by n^ht of resumption. The father succeeded to his emancipated child, not as an agnate, but as a manumissor. The mother was not an agnate, and did not succeed to her children, nor did they succeed to her. Here, again, changes were effected by the edict, "Unde cognati", and by the Senatus-consulta Tertullianum and Or- phitianum. The former senatv^'ConsuUum provided that, if a free mother gave birth to three chil(&en, or a freedwoman to four, there should be a right of suc- cession, and this legislation was modified by Justinian even more favourably to the mother. The Senatus- consultum Orphitianum was the complement of the other, and nrovideii th.it the right of succession be- tween mother and children should be reciprocal. These rights were extended by imperial constitution to grandchildren.

If agnates were wanting, the Twelve Tables called the gentiles in the next rank, and not the cognates: the praetor, however, in the edict **Unde cognati", called the cog^nates in this rank.

Servile cognation (that contracted in slavery) had been an impediment of marriage; but the slave wo- man, manumitted with her chudren, could not avail herself either of the Senatus-consultum Tertullianum or of the possession of goods derived from the edict "Unde cognati". Justinian created rights of suc- cession to remedy this defect.

The former master or, by assignment of f reedmen, his children, stood in loco jxirentis to the freedman, and succeeaed to his patrimony. Even the predeceased patron, through his nearest children (repre- sentation being excluded) succeeded to the goods of his former slave. Libertini, freedmen, were restricted in their capacity to make a will. The prsetor con- sidered it no more than equitable that the libertinus should leave one-half his property to his former master. A higher equity arose where the freedman left children of his own, and in this case the patron might be ex- cluded, the whole pjatrimony going to the treedman's children. In all other cases, and even contra tabulas, the patron took one half: later, in special circum- stances depending upon the freedman s wealth, Jus- tinian, developing the principles of the Lex Fapia Foppsea, increased the patron's portion.

The prse tor's intervention in succession matters did not directly overturn the provisions of the ius civile, but he devised the possessio bonorum, applicable to both testate and intestate successions. Justinian recognized and gave sanction to three kinds of jws- sessvo: first, contra tabulas (contrary to the will), where persons had been inequitably pretermitted; second, secundum tabulas; third, possession of an in- testate's estate. The bonorum possessor was not an heir in accordance with jtLS civile^ yet he enjoyed all of the privileges of an heir. Justiman placed the right of succession upon a basis of cognation, or blood re- lationship, and succession by right of blood occurred in four orders which may be mdicated as follows: First order (a) the sui heredes, or natural heirs, who suc- ceeded in virtue of the con-dominium in the inherit- ance; (b) those whose strict legal right had been barred (as by emancipation), but whom the praetor called to the inheritance; (c) emancipated sons to whom Justinian's constitution restored natural rights. Second order, (a) statutory heirs, agnates; (b) persons entitled under the Senatus-consultum Tertullianum; (c) those entitled under the Senatus-consultum Orphitianum. Third order, the cognates. (Hein- eccius gives tables of descent both before and after Justinian's legislation). None of these orders being entitled to take, the estate escheat-ed to the fiscuSj or public treasury. The adjective law (below, undex