Page:Harvard Law Review Volume 4.djvu/118

102 102 HARVARD LAW REVIEW. deceased person's successor was by refusing to accept the suc- cession.^ It will be seen, therefore, that the remedy of a creditor of a deceased debtor was very simple under the Roman law, i.e., he sued the heir of the deceased, just as he would have sued the deceased during his life, and with the same consequences; and this state of things continued without material change throughout the whole period of the Roman law, i.e.y down to the time of Jus- tinian. Justinian introduced one important change, and only one, namely, that of allowing the heir the benefit of inventory {benefi- cium inventarit) ; for he declared that such heirs as chose to pre- pare and file, within the time and in the manner directed by him, an inventory of the estate of the deceased should be liable to the creditors of the latter only to the extent of such estate.^ From this time, therefore, an heir was liable under the old law or the new, according as he did or did not comply with the new law. If he did, he incurred a liability only to account for the estate of the deceased ; if he did not, he remained personally liable for all the debts of the deceased as before. If an heir availed himself of the new law, of course he became bound to keep the estate of the deceased separate from his own estate. After the Roman empire became Christian, the Church by slow degrees obtained control of the administration of the estates of all deceased persons. This result it finally accomplished by obtain- ing for its bishops the right to administer the estates of all deceased persons within their respective dioceses. In this way it came to be the law, throughout Western Christendom at least, that the heir of every deceased person was the Ordinary, i.e., the bishop of the diocese. This, however, did not mean that the estates of deceased persons were administered by the bishop personally, — it only meant that they were administered by persons appointed by him, who derived their authority from him, and who were accountable to him. Nor did this right of the bishop practically interfere with the immemorial right of every person to appoint his own heir by will. On the contrary, this latter right continued to be exercised as before, the only difference being that an heir appointed by will must now obtain the bishop's sanction before he could act, — a sanction, however, which was seldom withheld.^ It thus came 1 Justinian, Inst., L. 2, Tit. 19, § 5 ; Gaius, L. 2, §§ 162, et seqq. 2 Inst., L. 2, Tit. 19, § 6 ; Code, L. 6, Tit. 30, § 22. to do so, a mandamus would issue, i Williams, Executors (ist ed.), 214.
 * By the law of England the bishop was bound to give his sanction, and, if He refused