THE DIGEST OR PANDECTS. BOOK XXVIII.

TITLE I. WHO CAN MAKE WILLS AND IN WHAT MANNER THEY SHOULD BE EXECUTED.

1. Modestinus, Pandects, Book II.

A will is the lawful expression of our wishes with respect to what anyone desires to be done after his death.

2. Labeo, Abridgments of Last Works by Javolenus, Book I.

Soundness of mind is required of a testator at the time that he makes a will, but bodily health is not necessary.

3. Papinianus, Questions, Book XIV.

The execution of a will is not a private right, but a matter of public law.

4. Gaius, Institutes, Book II.

If we make inquiry as to whether a will is valid, we should first ascertain whether he who made it had the right to do so, and then, if he had, we should ascertain whether it was drawn up in accordance with the rules of the Civil Law.

5. Ulpianus, On Sabinus, Book VI.

Let us consider at what age males or females can make a will. The better opinion is that males must have attained the age of fourteen and females that of twelve, to fulfill the legal requirements. In order to make a will, is it sufficient for a party to have reached the age of fourteen, or must he have passed that age? Suppose a person born on the Kalends of January makes his will upon his fourteenth birthday, will such a will be valid? I hold that it will be valid, and I go even farther, and say that if he made his will upon the day preceding the Kalends of January, after the sixth hour of the night, his will will be valid, for, according to Marcianus, he is then considered to have completed his fourteenth year.

6. Gaius, On the Provincial Edict, Book LXX.

Where an individual is under the control of his father, he has no right to make a will; and to such an extent is this true that even if the father should grant him permission, he, nevertheless, cannot legally execute a will.

(1) Persons who are deaf and dumb cannot make a will, but where anyone becomes dumb or deaf through illness, or any other accident, after the will has been executed, it will still be valid.

7. Æmilius Macer, On the Twenty Per Cent Law of Inheritance, Book I.

Where a person who is dumb or deaf obtains permission from the Emperor to make a will, it will be valid.

8. Gaius, On the Provincial Edict, Book VII.

A will executed by a person while in the power of the enemy is not valid, even though he should return.

(1) Where fire and water have been forbidden to anyone, no will which he made previously or subsequently will be valid, and whatever property he was possessed of at the time of his condemnation shall be confiscated; or, if it does not seem to be sufficiently valuable for this to be done it shall be abandoned to his creditors.

(2) Persons who have been deported to an island are in the same condition.

(3) Those, however, who have been relegated to an island, and such as have been forbidden to remain in Italy or in their own province, retain the right to make a will.

(4) Moreover, those who have been sentenced to fight in the arena, or to be thrown to wild beasts, or to work in the mines, forfeit their liberty, and their property is confiscated; from whence it is evident that they lose the right to make a will.

9. Ulpianus, On the Edict, Book XLV.

If anyone accused of crime should die in prison before being convicted, his testament will be valid.

10. Paulus, Opinions, Book III.

Where a man has lost his hands, he can make a will, even though he is unable to write.

11. Ulpianus, On Sabinus, Book X.

Hostages cannot execute a will, unless permission is granted them to do so.

12. Julianus, Digest, Book XLII.

According to the Lex Cornelia, the wills of those who die while in the power of the enemy are confirmed, just as if those who had executed them had never been in the hands of the enemy, and their estates pass to whomever are entitled to them under the testamentary provisions. Wherefore, in case a slave is appointed heir by a person who dies while in the power of the enemy, he will become free and the heir of the testator, whether he is willing or not; although he is improperly said to be a necessary heir, for the son of a man who dies while in the hands of the enemy must assume the obligation of the estate, even if unwilling to do so, although he cannot be said to be his heir, as he was not under his control at the time of his death.

13. Marcianus, Institutes, Book IV.

Those who have been captured by robbers, as they remain free, can make a will.

(1) Moreover, those who perform the duties of envoys in foreign countries can make a will.

(2) Where anyone convicted of a capital crime appeals, and makes a will in the meantime, while the appeal is pending, and then dies, his will is valid.

14. Paulus, Rules, Book II.

Where a slave manumitted by the will of his master is not aware that the latter is dead, and that the heir has entered upon his estate, he cannot execute a will, even though he may already be the father of a family, and his own master; for he who is uncertain as to his own condition cannot make an absolute testamentary disposition of property.

15. Ulpianus, On the Edict, Book XII.

Those who entertain any doubt with reference to their condition or are mistaken concerning it cannot execute a will; as the Divine Pius stated in a Rescript.

16. Pomponius, Rules.

It is held that a son under paternal control, the slave of another, a posthumous child, and a deaf person, have the right to take under a will; for, although they cannot execute one, still they can acquire property by a will, either for themselves or for others.

(1) Marcellus observes that an insane person also has the right to take under a will although he cannot execute one; hence a party is understood to possess this right, because he can acquire for himself either a legacy or a trust, for the right to bring a personal action is also acquired by parties that are not aware of the fact, but who are of sound mind.

17. Paulus, Sentences, Book III.

Where a party loses his mind on account of bodily illness, he cannot make a will as long as this condition exists.

18. Ulpianus, On Sabinus, Book I.

He who is legally prohibited from managing his own property cannot make a will, and if he should make one, it will not be valid in law. Where, however, he executed a will before his interdiction, it will be valid. Hence it is reasonable that he cannot be offered as a witness to a will, since he has not the right to make one himself.

(1) Where anyone has been convicted of public libel, it is stated in the Decree of the Senate that he cannot make a will; hence he can neither execute one, nor be offered as a witness to prove the will of another testator.

19. Modestinus, Pandects, Book V.

Where a son under paternal control, a ward, or a slave draws up a will and seals it, possession of the property mentioned therein cannot be granted to the legatees, even though the testator should be a son who is independent, or a ward who has reached the age of puberty, or a slave who should become free, at the time of his death; for the reason that a will drawn up by one who has no right to do so is void.

20. Ulpianus, On Sabinus, Book I.

Where an heir is appointed by will, he cannot be a witness to it. The contrary rule applies to a legatee, and to one who is appointed guardian, for such persons can act as witnesses, if no other impediment exists; as, for instance, where the party had not arrived at puberty, or was under the control of the testator.

(1) The term "control" not only applies to children who are in the power of their father, but also to one whom the testator has redeemed from the hands of the enemy, although it is established that such a person shall not be a slave, but shall merely be kept under restraint until he has paid the amount of his ransom.

(2) On the other hand, the question may be asked whether a father can be offered as a witness to a will by which his son disposes of his peculium castrense. And Marcellus states in the Tenth Book of the Digest that he can be a witness, and that his brother can also be one.

(3) Moreover, what we have stated with reference to the testimony of those who are under the control of a testator being prevented from witnessing a will is applicable to all cases where any kind of business is transacted by means of which property is acquired.

(4) Nor can an insane person be offered as a witness, as he is not of sound mind. If, however, he has lucid intervals, he can testify during their continuance; a will which he has executed before he became insane will be valid; and he should be entitled to the possession of property in accordance with the terms of the will.

(5) I think that anyone who has been convicted of embezzlement cannot be a witness to a will, since his testimony in court is forbidden.

(6) A woman cannot act as a witness to a will, although she can be a witness in court; as is established by the Lex Julia de Adulteriis, which prohibits a witness who has been convicted of adultery from testifying or making a deposition.

(7) A slave cannot participate in the formalities attaching to the execution of a will, and very properly, as he has no share whatever in the rights conferred by the Civil Law, or indeed in those granted by the Prætorian Edict.

(8) The ancient authorities thought that those who are summoned to take part in the solemn formalities of a will should remain until the last attestation had been completed.¹

¹ This is no doubt the origin of the Common Law requirement that the attestation of persons called to witness a will should be made in the presence of each other, which rule is still in force in England and many States of the Union. — ED.

(9) We do not, however, require that a witness should understand the language of the testator; for the Divine Marcus, in a Rescript addressed to Didius Julianus, stated this with reference to a witness who was ignorant of the Latin language; for it is sufficient if the witness perceives by his senses for what purpose he was summoned.

(10) Where the witnesses are detained against their consent, the authorities hold that the will is not valid.

21. The Same, On Sabinus, Book II.

The name of the heir should be plainly spoken, in order that it may be heard. The testator is, therefore, permitted either to mention the heirs by name, or to write down their names, but if he mentions them he must do so distinctly. What does the term "distinctly" mean? It does not mean that this shall be done publicly, but in such a way that the names may be heard, not, indeed, by everyone, but by the witnesses to the will; and where there are several witnesses, it will be sufficient for them to be heard by the number specified by law.

(1) Where the testator wishes to change his will, it is established that everything must be done over again from the beginning. The question, however, arises whether, after the legal formalities have been complied with, he can explain anything which may happen to be obscure in his will, either in words or in writing. As, for instance, where he makes a bequest of Stichus, when he has several slaves of that name, and did not mention which one he had reference to; or where he makes a bequest to Titius, when he has several friends who are called Titius; or where he has made a mistake either in the name, the title or the surname of a party, but did not make a mistake with reference to the article bequeathed; can he afterwards state what he meant? I think that he can, for he does not give anything by doing so, but merely points out what was given. But if he should subsequently append a note to a legacy, either orally or in writing, or add a certain sum, or insert the name of the legatee which he had not yet filled out, or mention the kind of money with which the legacy is to be paid, will he act in accordance with law? I think that even the kind of money to be paid can afterwards be designated, for where he has not done so, it will be necessary to determine this with reference to the bequest, either from documents drawn up at the same time, or in accordance with the custom of his family or of the province.

(2) It is held in the case of wills, where witnesses are asked to be present for the purpose of attesting the same, that if they have been summoned for any other purpose, they will not be competent; and it must be understood in this instance that even though they may have been requested to appear, or were collected for some other purpose, and, before they act as witnesses, they are informed that they are to be employed for that purpose, they can legally act as such.

(3) The will must be drawn up with reference to itself alone, and this is done where nothing foreign to the purpose of the instrument is introduced; but where any act connected with the will is performed, the validity of the latter will not be affected.

22. The Same, On the Edict, Book XXXIX.

In order to obtain at the same time the legal number of witnesses, the father, the son, and any other persons who are under his control may be called.

(1) In order to establish the condition of the witnesses, we should consider the time when they attached their seals to the will, and not the time when the testator died. Therefore, if at the time they attached their seals they were competent to do so, the validity of the will can not be questioned if anything should afterwards happen to the witnesses.

(2) If I take a ring from the testator himself, and make use of it to seal his will, the latter will be valid, just as if I had sealed it with another ring.

(3) If the seals should be broken by the testator himself, the will will not be held to have been sealed.

(4) Where one of the witnesses did not sign his name, but, nevertheless, attached his seal, it is the same as if he had not been present; and if he signed it (as many do) without attaching his seal, we hold that the same rule applies.

(5) Can we only attach our seals by means of a ring, or if we do not use a ring can we do so with any other article, as men frequently do? The better opinion is that the seal can only be impressed by means of a ring, for it must have a form and be engraved with a device.

(6) There is no doubt that a will can be sealed at night.

(7) A will must be considered to have been sealed when the seals have been impressed upon the cloth in which it is wrapped.

23. The Same, Disputations, Book IV.

If the seals of a will have been broken by the testator, and it has been sealed a second time by himself and seven witnesses, it will not be void, but will be valid by both the Prætorian and the Civil Law.

24. Florentinus, Institutes, Book X.

Anyone can make several copies of the same will, and indeed this is sometimes necessary; for example, where the testator is about to take a sea voyage, and desires to leave the will behind him, and take a copy with him.

25. Javolenus, On the Last Works of Labeo, Book V.

Where anyone who makes a will after having mentioned the first heirs loses the power of speech before he can mention the second ones, the better opinion is that he has begun to make a will rather than that he has made it; which view Verus stated, in the First Book of the Digest, was entertained by Servius; therefore the first heirs appointed cannot take under such a will. Hence Labeo thinks that this is correct, if it should be established that the testator who executed the will intended to appoint several heirs. I do not think that Servius intended anything else.

26. Gaius, On the Provincial Edict, Book XXII.

Whenever anyone is declared by law to be incapable of becoming a witness, this means that his testimony cannot be received, and, moreover (as certain authorities hold), that no testimony can be introduced in his behalf.

27. Celsus, Digest, Book XV.

"Domitius Labeo to his friend Celsus, Greeting. I ask whether he is to be included in the number of witnesses who, after having been requested to write a will, attached his seal to the same after he had done so."

"Jubentius Celsus, to his friend, Labeo, Greeting. I either do not understand the point with reference to which you desire to consult me, or your request for advice is certainly foolish, for it is ridiculous to doubt whether such a person can act as a witness, since he himself drew up the will."

28. Modestinus, Rules, Book IX.

A slave, even though he belongs to another person, is not prohibited from drawing up a will by order of the testator.

29. Paulus, Opinions, Book XIV.

Nothing can be claimed under a written instrument which was drawn up as a will, where it was not legally completed, not even where something has been left by way of trust.

(1) By the following words which the head of a household added to a written document, namely: "I desire this will to be valid as far as possible"; he seems to have intended that every bequest that he left by said document should be valid, even though he might die intestate.

30. The Same, Opinions, Book III.

It is proper for every witness to a will to sign his name in his own hand, as well as that of the party to whose will he attached his seal.

31. The Same, Opinions, Book V.

The Treasury cannot seize the property of anyone who publicly announces that he is going to make the Emperor his heir.

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TITLE II. CONCERNING THE APPOINTMENT AND DISINHERITANCE OF CHILDREN AND POSTHUMOUS HEIRS.

1. Ulpianus, On Sabinus, Book I.

Let us consider what is meant by the term "specific disinheritance." Must the name, the title, and the surname be mentioned, or will it be sufficient for any of them to be stated? It is established that it is sufficient for one of them to be mentioned.

2. The Same, Rules, Book VI.

It is held that a son is specifically disinherited in the following words, "Let my son be disinherited", even if his name is not expressly stated, where the testator has only one son; for where he has several, the opinion is entertained by most authorities, in accordance with the more beneficent interpretation, that none of the sons will be disinherited.

3. The Same, On Sabinus, Book I.

Where the testator does not mention his son by name, but merely states that he was born of Seia, he legally disinherits him. And if he should refer to him in terms of reprobation, as, for example: "He who is not to be mentioned by me"; or "He who is not my son, who is a robber and a gladiator"; the better opinion is that the son is legally disinherited. The same rule applies where he refers to him as born of adulterous intercourse.

(1) Julianus thinks that a son should be unconditionally disinherited, which opinion we have adopted.

(2) The son can be legally disinherited between the separate appointments of two heirs, and, in this instance, he will be removed from every degree of inheritance, unless the testator should have disinherited him as only one of his heirs; for if he does this, the disinheritance will be defective, just as if he had expressed himself in the following terms: "Whoever my son will be, I disinherit him." For (as Julianus says) a disinheritance of this kind is defective, since the testator desires his son to be excluded after he has entered upon the estate, which is impossible.

(3) A son who is disinherited before the appointment of an heir is excluded from all degrees.

(4) In accordance with the opinion of Scævola, which I think to be correct, where a son is disinherited between two degrees of inheritance, he is excluded from both.

(5) Mauricianus properly holds that where two degrees of succession are mingled, the act of disinheritance will be valid, for example: "I appoint the first heir to half of my estate; if there is no first heir, the second heir shall inherit half of my estate, and the third the other half. I disinherit my son if there is no third heir, and I appoint the fourth in his stead"; for the son is, in this instance, excluded from every degree.

(6) Where a father executes a will in such a way as to pass over his son in the first degree, and disinherits him only in the second, Sabinus, Cassius, and Julianus hold that the first degree having been disposed of, the will begins to be operative from that degree from which the son was disinherited. This opinion should be approved.

4. The Same, On Sabinus, Book III.

It is established that every man can appoint a posthumous child his heir, whether he is married or not. For, indeed, a husband can repudiate his wife, and one who has not contracted marriage can subsequently do so; and where a husband appoints a posthumous heir, it is held that this does not only apply to a child who is born of the present wife of the testator, but also to one who is unborn, and indeed may be born of any wife whomsoever.

5. Javolenus, On Cassius, Book I.

Therefore, where a man has appointed a posthumous heir, and, after the execution of the will, marries again, he is held to have been appointed who is the issue of the subsequent marriage.

6. Ulpianus, On Sabinus, Book III.

The question arose whether a man who has not complete power of reproduction can appoint a posthumous heir. Cassius and Javolenus say that he can do so, because he can marry and adopt children. Labeo and Cassius state that one who is temporarily impotent can also appoint a posthumous heir, since in this instance neither age nor sterility can be considered as impediments.

(1) Where, however, the individual in question has been castrated, Julianus, following the opinion of Proculus, does not think that he can appoint a posthumous heir. This is the modern practice.

(2) An hermaphrodite can appoint a posthumous heir, if the male organs predominate in his physical conformation.

7. Paulus, On Sabinus, Book I.

If a son who is under paternal control should be passed over in his father's will, and die during the lifetime of the latter, the will is not valid, and where there is a former one, it will not be broken. This is also the rule at the present time.

8. Pomponius, On Sabinus, Book I.

If I disinherit my son by the appointment of an heir in the first degree, but do not disinherit him from the second degree of substitution, and if, while the first heir appointed is hesitating whether he will enter upon the estate or not, the son should die, the second heir, according to the rule which we have adopted, will have no rights under the will on account of having been improperly appointed in the beginning, since the son was not disinherited from the second degree. If this should occur in the case of a posthumous child, so that it is born during the lifetime of the father, by whom it was disinherited, and it should afterwards die, the same rule must be held to apply with reference to the substituted heir, since when this child was born he occupied the place of the one who survived.

9. Paulus, On Sabinus, Book VII.

Where anyone who, on account of age or ill health, cannot have children, appoints posthumous heirs, a former will is broken, because the nature of man and the capacity for procreation must rather be considered than a temporary defect or illness, by reason of which a man is deprived of the power of generation.

(1) Where, however, a man appoints a posthumous child as his heir who is to be born of the wife of another, the appointment will not be valid in law, for the reason that it is dishonorable.

(2) If I disinherit my son, and pass over my grandson born to said son, and appoint another person my heir, and my son survives, even though he should die before my estate is entered upon, my grandson cannot, nevertheless, break my will; so Julianus, Pomponius, and Marcellus hold.

The case is different where my son is in the hands of the enemy and dies there, for my grandson in this instance can break my will, since, when his grandfather died, the right of the son was in suspense, and was not extinguished, as in the former instance. Where, however, the appointed heir rejects the estate, the grandson will be the lawful heir, as these words, "If he should die intestate", have reference to the time when the will ceased to be valid, and not to that when the party died.

(3) But where I appoint a posthumous heir to be born of a woman whom it is wrong to marry, Pomponius does not think that the will is broken.

(4) If I have an adopted sister, I can appoint her posthumous child my heir, for the reason that if the adoption is annulled I can marry her.

10. Pomponius, On Sabinus, Book I.

A child that is yet unborn may very conveniently be appointed an heir, in the following terms: "If, during my lifetime or after my death, a child should be born to me, I appoint him my heir"; or this may be done absolutely, without making mention of either time. If either of these contingencies is omitted, and the child is born, so far as the one which is omitted is concerned the will will be broken, because the said child is not understood to have been born subject to the condition under which it was appointed heir by the will.

11. Paulus, On Sabinus, Book II.

In the case of proper heirs, it is perfectly evident that a continuation of ownership legally remains, so that there appears to be no succession; since those should be held to be the owners of the estate who, during the lifetime of their father, were already considered to occupy that position. Wherefore, the son of a family is so called, just as a father is styled the father of a family, so that it is only by the prefix that the parent is distinguished from the child. Hence, after the death of the father, the children are not considered to have obtained the inheritance, but rather to have acquired the free administration of the property. For this reason they are owners, even though they have not been appointed heirs, for there is no reason why he should not possess the right of disinheriting those whom he formerly had the right to put to death.

12. Ulpianus, On Sabinus, Book IX.

When it is said that the birth of a child breaks a will, the term "birth" must be understood to also apply where it has been taken from its mother's womb by means of a surgical operation. For in this case a child breaks a will, provided it is born under paternal control.

(1) But what if the child should be born deformed, but still of sound mind; would the will be broken in this instance? It must be held that it would be.

13. Julianus, Digest, Book XXIX.

The following was set forth in a will: "If a child should be born to me, I appoint him heir to two-thirds of my estate, and I appoint my wife heir to the remaining third; if, however, a daughter should be born to me, I appoint her an heir to one-third of my estate, and my wife to the remaining two-thirds." In case both a son and daughter are born, it must be held that the estate should be divided into seven parts, out of which the son should be entitled to four, the wife to two, and the daughter to one portion. Thus, in compliance with the will of the testator, the son should have twice as much as the wife, and the wife twice as much as the daughter, and although, according to the strict rule of law, it might be held that the will was broken; still, as the testator desired that his wife should have something in case either of the children mentioned should be born, recourse was had to this interpretation through motives of humanity, and it was also clearly accepted by Juventius Celsus.

(1) It has been established by a rule of the Civil Law that an estate once granted cannot be taken away; wherefore, in case a slave is directed to become free and an heir, even though his master should deprive him of freedom by the same will, he shall, nevertheless, be entitled to both his freedom and the estate.

(2) When a will is framed in the following terms: "Let Titius be my heir, after the death of my son, and I disinherit my son"; it is of no effect, because the son is disinherited after the death of the testator, and for this reason he can obtain possession of the estate in opposition to the wills of the freedmen of his father.

14. Africanus, Questions, Book IV.

Where a posthumous child has been disinherited in the first degree, and passed over in the second, even though it was born at the time when the estate belonged to heirs appointed in the first degree, it is held that the will is broken with reference to the second degree, so that if the heirs who have been appointed fail to enter upon the estate, it itself will become the heir. Nay more, if the heirs who have been appointed fail to enter upon the estate after its death, the substituted heirs cannot do so. So if the posthumous child who was disinherited in the first degree, passed over in the second, and disinherited in the third, should die while the first heirs are deliberating whether they will accept the estate or not, it may be asked if the first ones should reject the estate, whether it will belong to those who are appointed in the third degree, or to the heirs-at-law. In this instance it is also held to be more equitable that it should belong to the heirs-at-law. For in a case where two heirs have been appointed and substitution has been made for each of them, and the posthumous child has been disinherited in the first degree, and passed over in the second, if either of the appointed heirs should not accept the estate — even though the posthumous child may have been excluded — still the substituted heir cannot be admitted.

(1) While it is commonly asserted that the rule having reference to a degree in which a child is passed over is not valid, this is not true in every instance; for if a son has been appointed heir in the first degree, he should not be disinherited in the substitution. Therefore, where a son and Titius have been appointed heirs, and Mævius was substituted for Titius, Titius having refused the estate, Mævius can enter upon it, even though the son may not have been disinherited in the second degree.

(2) If anyone should make the following statement in his will: "I disinherit So-and-So, whom I know is not my son"; a clause of this kind will be of no force or effect, where it is proved that the party referred to is the son of the testator; for a son is not held to have been disinherited merely because his father spoke disparagingly of him at the time, and added that he disinherited him for this reason, and it is proved that the father was mistaken with reference to his motive for disinheriting him.

15. Ulpianus, On Sabinus, Book I.

The same rule applies if the testator should have said: "I disinherit So-and-So, the son of So-and-So," attributing an adulterous father to him through mistake.

16. Africanus, Questions, Book IV.

Where a son is appointed heir by his father, who passes over a posthumous child, and his grandson who is the son of the said heir is afterwards substituted for him, and the son, in the meantime, dies, and the posthumous child should not be born, the said grandson will be the heir of both his father and grandfather. Where, however, no one is substituted for the son, and he alone is appointed heir, then, for the reason that, at the time when the son died, it begins to be certain that there will be no heir under the will, the son himself will become the heir of his father if the latter dies intestate; just as frequently happens where a son who is under the control of his father is appointed heir under some condition, and dies before he has complied with it.

17. Florentinus, Institutes, Book X.

Sons can also be disinherited in the following terms: "Let my son be disinherited"; "My son shall be disinherited."

18. Ulpianus, On the Edict, Book LVII.

Many fathers disinherit their children not on account of any disgrace or to do them injury, but with a view to their own welfare (as, for instance, those who have not arrived at puberty), and bequeath their estates to them in trust.

19. Paulus, On Vitellius, Book I.

A certain man appointed his daughter sole heir to his estate, and bequeathed ten aurei to his son, who was under his control, and added: "My son shall be disinherited so far as the remainder of my estate is concerned." The question arose whether he could be held to be legally disinherited. Scævola answered that he did not seem to be properly disinherited, and, while discussing the point, added that the disinheritance was void, for a child could not be legally disinherited when this only had reference to a certain tract of land; and that the case was different where anyone is appointed an heir, for the reason that appointments are understood to be subject to the most liberal interpretation, but no encouragement should be given to disinheritances.

20. Modestinus, Pandects, Book II.

Where a son is appointed an heir under some condition, and while the condition is pending gives himself to be arrogated, he will cease to be a necessary heir.

21. Pomponius, On Quintus Mucius, Book II.

If I should disinherit my son by name and afterwards appoint him my heir, he will be my heir.

22. Terentius Clemens, On the Lex Julia et Papia, Book XVII.

When a posthumous child is appointed an heir under some condition, and the condition is fulfilled before he is born, the will will not be broken by the birth of the said posthumous child.

23. Papinianus, Questions, Book XII.

Where a father, after emancipation granted by him to his son, resumes control over him again by arrogation, I have stated that the disinheritance previously made by his father will prejudice his rights; for it is proper to be observed in almost every law that an adopted son can never be understood to hold that relation towards his real father, in order to prevent the truth of nature from being obscured by a mere formality; so that the son is not considered to have been brought under the care of his father, but to have been returned to his control. In the case suggested, I do not think that it makes much difference whether the father arrogated his disinherited son either as his son or his grandson.

(1) Where Titius is appointed an heir and adopted in the place of a grandson, and afterwards the son who was considered the father of said grandson dies, the will is not broken by the succession of the grandson, so far as he who has been appointed heir is concerned.

24. Paulus, Questions, Book IX.

Where a posthumous child appointed heir under some condition is born while the condition is pending, and during the lifetime of its father, this breaks the will.

25. The Same, Opinions, Book XII.

Titius appointed an heir by will, and having a son disinherited him, as follows: "Let all my other sons and daughters be disinherited." Paulus was of the opinion that the son seemed to have been legally disinherited. Afterwards, having been asked whether a son whom his father believed to be dead could have been held to have been disinherited, he answered that, in accordance with the case stated, the sons and daughters were specifically disinherited, but, with reference to the case of the father who was mistaken with reference to the death of his son, the point should be determined in court.

(1) Lucius Titius, while drawing up his last will in the city, had a granddaughter by his daughter who was at that time in the country, and pregnant, stated that her unborn child should be heir to a portion of his estate. I ask, if on the very day when Titius drew up his will in town, about the sixth hour, his granddaughter Mævia brought forth a male child in the country; whether such an appointment was valid, since at the time when the will was drawn up the child had already been born? Paulus answered that the terms of the will seemed to have reference to a great-grandchild to be born after the execution of the will; but if, as in the case stated, the granddaughter of the testator was born upon the same day on which the will was executed, and before it was drawn up, even though the testator may have been ignorant of the fact, still, the appointment must be held to have been legally made; and this opinion is in accordance with law.

26. Paulus, Decisions, Book III.

Where a son under paternal control is serving in the army he should, just as any civilian, be appointed an heir, or be disinherited by his father by name; for the Edict of the Divine Augustus, by which it was provided that a father should not disinherit his son while in the army, has been repealed.

27. The Same, On Neratius, Book III.

A father can appoint as his heir a posthumous child the issue of him and any widow whomsoever.

28. Tryphoninus, Disputations, Book XX.

A son who was appointed an heir by his father while under control of the latter, dependent upon a certain condition with which he had nothing to do, and who was disinherited when the condition was not fulfilled, died while the condition of his appointment, as well as of his disinheritance, was still pending. I held that the son, when he died, was the heir of his intestate father, since during his lifetime he was neither the heir under his will, nor was he disinherited. Where a son is appointed heir to a certain share of an estate, his co-heir can be appointed after the death of the son.

(1) A son under paternal control, who was in the military service, made a will disposing of his peculium castrense, having at the same time a son under his control. After he left the service, and his father, who was also a grandfather, died; the question arose whether his will was broken. He did not, in fact, adopt anyone, nor had any son recently been born to him, nor was his nearest heir removed from his control, so that the next in order might take his place; still, he began to have under his control a person not previously in that position, and at the same time he became the head of a family and his own son became subject to his authority. Therefore, his will is broken. If, however, his said son had been either appointed or disinherited by his will, it would not be broken; for the reason that he obtained power not by any innovation on his part, but in the natural course of affairs.

(2) Where a party appoints an heir to be born of a certain wife of his he runs the risk of breaking his will if children are born to him by some other woman.

(3) If a testator appoints as heir a child to be born from a certain woman who at that time could not be his wife, and he afterwards was legally able to marry her; the question arises whether a child born under such circumstances can be an heir under the will. For example, if to-day you appoint as an heir a child born to yourself and Titia, and Titia at the time is a female slave, or a minor under twenty-five years of age, or because your father administered her guardianship, or you yourself administered it, and Titia afterwards should become your legal wife, either because she obtained her freedom, or reached the age of twenty-five years, her legal majority, or your accounts as guardian had been rendered; would your child born of her be your heir?

Certainly, no one will doubt that such a child born after you married her would be your heir, even though on account of her age she could not be legally married at the time that the will was executed. And, generally speaking, whenever an heir appointed by a will is born after it is made, he has a right to enter upon the estate, no matter in what condition the woman who subsequently married the testator may have been in at the time of the execution of the will.

(4) But what if the testator had appointed the son and daughter to be born after his will his heirs, the son for two-thirds, and the daughter for one-third of his estate, without appointing any co-heir, or substituting one for the other? The child that was born would be the sole heir under the will.

29. Scævola, Questions, Book VI.

Gallus stated that posthumous grandchildren could be appointed heirs in the following terms, namely: "If my son should die during my lifetime, and within ten months after my death any grandchildren, either male or female, should be born to his wife, let them be my heirs."

(1) Certain authorities hold that the appointment of heirs will be legal, even if the father does not mention the death of the son, but simply appoints his grandchildren his heirs; since it may be inferred from his words that in such an event the appointment will be valid.

(2) It must also be believed that Gallus held the same opinion with reference to grandchildren, when the testator says: "If my grandson should die during my lifetime, then my great-grandchild who is his issue," etc.

(3) If, however, the grandson should die during the lifetime of the son, leaving his wife pregnant, and the testator should make a will; he can say: "If my son should die during my lifetime, then my great-grandson sprung from him shall be my heir."

(4) While the testator's son and grandson are still living, can the testator provide for the succession of his great-grandson, under the assumption that both the former will die during his lifetime? This also must be admitted, in order to prevent the will from being broken by the succession, if in fact the grandson should die, and then the son after him.

(5) What if the testator should only anticipate the event of the death of his son, and what would be the result if the testator should suffer the interdiction of water and fire? What if the grandson, the father of the great-grandson appointed heir, as we have stated, should be emancipated? These instances, as well as any of those in which a lawful heir is born after the death of his grandfather, have no connection with the Lex Velleia. But, in accordance with the spirit of the Lex Velleia, all these matters should be taken into consideration, just as other cases should be admitted, for example, where death occurs.

(6) What course must be pursued where the person who makes the will has a son in the hands of the enemy? Why has it not been held that, if the son should die before returning from captivity, but after the death of his father, then the grandson who was born during their lifetime, or even after the death of his grandfather, could not break the will? This case has no relation to the Lex Velleia.

The better opinion therefore is that, for the sake of convenience, and especially after the Lex Velleia, which disposed of many cases where a will could be broken, the interpretation should be adopted that, where a testator appoints his grandson who was born after his death, he shall be held to have appointed him legally. And no matter under what circumstances the grandson born after the testator's death may become his heir, whenever he has been passed over in the will, he can break it. Even if its provisions are stated in general terms, for instance: "Any children born to me after my death, or whoever shall be born after my death, shall be appointed my heir"; provided such a child should be born his heir.

(7) Where anyone has a son, and appoints his grandson born of said son his heir, and his daughter-in-law, being pregnant, is captured by the enemy, and while in their hands, and, during the lifetime of the grandfather and his son, brings forth a child, and the latter, after the death of his father and grandfather returns; is this case included in the Lex Velleia, or must recourse be had to the ancient law, so that the grandson who is appointed may not break the will either under the ancient law or the Lex Velleia?

This question may be raised, if, after the death of the son, the grandfather appoints his grandson his heir, and the latter returns after the death of his grandfather. However, when the will cannot be broken by him who was appointed, it makes no difference whether he is excluded from the succession by the ancient law or by the Lex Velleia.

(8) Someone perhaps may doubt whether, in this instance, if the grandson should be born after the execution of the will, and during the lifetime of his father and grandfather, he can be appointed an heir because his father had not been legally appointed. There should be no apprehension on this ground, for the grandchild is born of a lawful heir after the death of his ancestors.

(9) Hence, if a great-grandson, born of a grandson, can be admitted to the succession, if afterwards his son should be living, a son born to him will also be entitled to the succession.

(10) In all these instances, it must be observed that only a son who is under parental control can be appointed heir to any portion of an estate, for his disinheritance after the death of the testator will be void. It is not necessary, however, for the son to be disinherited if he is in the hands of the enemy and dies there; and certainly with respect to the grandson and great-grandson, we never require their appointment if their children are appointed heirs, because they can be passed over.

(11) Let us now examine the Lex Velleia. It prescribes that children born in our lifetime, in like manner, cannot break our wills.

(12) The first section of the law has reference to those who after they are born, will become proper heirs. I ask, if you should have a son, and appoint as your heir your grandson by said son, who is not yet born, and your son should die, and your grandson should be born during your lifetime, what will be the result?

It must be held from the words of the law that the will is not broken, as it not only states in the first section if the grandson is appointed at the time during which the son was not in existence, but also if he should be born during the lifetime of his father. In this case, why should it be necessary for the time when the will was executed to be considered, since it is sufficient to observe the time when the grandson was born? For, in fact, the following are the words of the law: "He who makes a will can appoint as heirs all those children of the male sex who will be his proper heirs"; and also, "even though they may have been born during the lifetime of their father".

(13) In the next section of the law, it is not provided that those who succeed to the place of the children can break the will; and this must be interpreted in such a way that if you have a son, a grandson, and a great-grandson, and after the death of the first two, your grandson having been appointed and succeeding the lawful heir, will not break the will.

It has been very properly decided that the words: "If any one of his heirs should cease to be his heir"; have reference to all those cases to which we have stated the formula of Gallus Aquilius is applicable; for not only where a grandson dies during the lifetime of his father, the great-grandson succeeding his deceased grandfather does not break the will, but also where he survives his father and then dies, provided he has either been appointed heir, or been disinherited.

(14) It should be considered whether by the words of this last section, namely: "If any of his heirs should cease to be his heir, his children shall become heirs in his stead", are susceptible of the interpretation that if, having a son in the hands of the enemy, you appoint your grandson by said son your heir, not only if your son should die during your lifetime, but even after your death and before he returns from captivity, he does not break the will by the succession, for the testator added nothing by which the time might be indicated, unless you may rather rashly hold that he has ceased to be a lawful heir during the lifetime of his father (although he died after the death of the latter), because he did not and could not return.

(15) The following case is a difficult one. If you have a son and you appoint your grandson, who is not yet born, your heir, and the latter is born during the life of his father, and then his father dies, he is not his heir at the time when he was born, nor afterwards, for by his succession he who has already been born is held to be forbidden to break the will. Hence, by the first section of the law, those children are permitted to be appointed heirs who are as yet unborn, and who, after they are born, will be proper heirs.

By the second section, their appointment is not permitted, but the law forbids them to break the will; nor on this account should the second section be considered of inferior importance. However, the child who was not yet born at the time he was appointed should take the place of his father (which in fact he could not do by law), just as if he had been legally appointed. Julianus, however, held that the two confused sections of the law might be reconciled in such a way as to prevent wills from being broken.

(16) After adopting the opinion of Julianus, let us, however, examine whether if a grandson is born during the lifetime of his father, and is subsequently emancipated, he can voluntarily enter upon the estate. This opinion should be approved, for a party cannot become a proper heir by emancipation.

30. Gaius, On the Provincial Edict, Book XVII.

Among other things which are necessarily provided for in the execution of wills, one of the most important has reference to the appointment or disinheritance of children as heirs; lest, they having been passed over, the will may be broken; for a will is void where a son who is under paternal control is passed over.

31. Paulus, On Sabinus, Book II.

Where a son is a captive in the hands of the enemy, his father can legally make a will and pass him over; but if the son was under paternal control, the will will be void.

32. Marcianus, Rules, Book II.

Where a son has been disinherited after his emancipation, and another, who is under the control of the father, is passed over, and the one who is emancipated contests the will, his act will be void; for both the proper heir and the son who is emancipated will be entitled to the succession ab intestato.

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TITLE III. CONCERNING ILLEGAL, INVALID, AND BROKEN WILLS.

1. Papinianus, Definitions, Book I.

A will is said not to have been executed in compliance with the law, where the legal formalities are lacking; or to be of no force and effect, where a son who is under the control of his father is passed over; or broken by another subsequent will, when by the terms of the latter, an heir is created, or the birth of a proper heir takes place; or where it does not become operative because the estate is not entered upon.

2. Ulpianus, On Sabinus, Book II.

Hence, a first will is broken when a second one is properly executed, unless the latter has been executed in accordance with military law, or where the testator stated therein who would be entitled to succeed ab intestato; for, in this instance, the first will is broken by the second, although it may not be perfect.

3. The Same, On Sabinus, Book III.

Posthumous children who descend through the male sex are disinherited by name, just in the same way as the living children of the testator, unless they break the will by their birth.

(1) We only style those children "posthumous" who are born after the death of their father; those who are born after the execution of the will are, in accordance with the Lex Velleia, forbidden to break the will, where they are disinherited by name.

(2) Wherefore, children can be also disinherited either before the appointment of an heir, or between the appointment of several heirs, or between the different degrees of inheritance; for the Divine Marcus decreed that the same rule should be observed with reference to a posthumous child, as in the case of a living one, since no reason for establishing a difference can be given.

(3) From these matters it is apparent that a difference exists between living children and those subsequently born. The former always render the will illegal, the latter break it, and when they are born do not find themselves disinherited.

(4) Where a former will by which a posthumous child is disinherited exists, it is established that it is broken, whether the child is born after the death of the testator, or during his lifetime; the first one is broken by the second, and the second by the birth of the posthumous child.

(5) A posthumous child is also considered to be expressly disinherited where the testator says: "Let any child whosoever that is born to me be disinherited, whether it has been brought forth by Seia, or whether it is still unborn." If, however, he should say: "Let my posthumous child be disinherited"; and it is born either after the death, or during the life of the testator, it will not break the will.

(6) However, even though a posthumous child who has been passed over breaks a will by its birth, still, it sometimes happens that only a portion of the will is broken; as, for example, where the posthumous child was disinherited in the first degree, and passed over in the second; for in this instance the appointment in the first degree will be valid, if that in the second is void.

4. The Same, Disputations, Book IV.

Then, if the heirs appointed in the first degree deliberate as to the acceptance of the estate, those appointed in the second degree cannot obtain it, because the second degree being broken and weakened, the estate can no longer be acquired from that source.

5. The Same, On Sabinus, Book III.

Where anyone is appointed an heir under some condition, by which a posthumous child is not disinherited, still, the degree is broken while the condition is pending, as Julianus stated. But when someone is substituted, even where the condition upon which the appointment in the first degree depends is not fulfilled, the substituted heir will not be admitted to the succession from which the posthumous heir has not

been disinherited.

I think, therefore, that if the condition of the appointment under the first degree is complied with, the posthumous heir will have the preference. However, the birth of the posthumous child, after failure to comply with the condition, does not destroy the appointment in the first degree, because the latter becomes null and void. By breaking the will, the posthumous child makes a place for himself, even though the son causes the second degree from which he was disinherited to become valid. Where, however, the posthumous child who was passed over in the first degree and disinherited in the second is born at the time when one of the appointed heirs is living, the entire will is broken; for, by destroying the first degree, he makes a place for himself in the succession.

6. The Same, On Sabinus, Book X.

Where anyone, after having disinherited his son, dies, leaving his daughter-in-law pregnant, and appoints a stranger his heir under some condition, and while the condition is pending and after the death of the father, or while the heir is deliberating as to whether or not he will enter upon the estate, the disinherited son should die, and a grandson should be born, will this break the will? We say that the will is not broken, as a grandson ought not to be disinherited in this way by his grandfather, who preceded his father in the succession.

It is clear that if the appointed heir should refuse to accept the estate, there can be no doubt that this heir would inherit from his grandfather ab intestato. Both of these cases are founded upon good and sufficient reasons, for a posthumous child breaks a will by his birth, where no one took precedence of him at the time of the death of the testator, and he succeeds ab intestato where the succession has not been granted to anyone before him. It is evident that, in this instance, the succession has not been granted to the son, since he died while the appointed heir was deliberating as to his acceptance of the estate. This, however, is the rule only where the grandson was still unborn at the time of the death of his grandfather; for Marcellus says that if he had been conceived after that time, he could not be admitted to the succession either as a proper heir, a grandson, or a cognate, or would be entitled to prætorian possession of the estate.

(1) Where the father of a grandson who, at the time of the death of the grandfather, was in the hands of the enemy, and died in captivity, the said grandson, by obtaining the succession after the death of his grandfather, breaks the will, because his aforesaid father was not in his way; for, as he died while a captive, he is not considered to have been alive when his grandfather died, and even if the captive father should return, this would render the will of his father illegal, as he had been passed over therein.

(2) If a grandson was either conceived in his own country or among the enemy, as the right of postliminium is also granted to unborn children, the will will be broken by his birth.

(3) Therefore, those who succeed to proper heirs do not break the will, whether they are appointed heirs or disinherited in the degree in which the succession is granted, provided that this is valid.

(4) However, no matter in what way fathers standing first in the succession may cease to be under paternal control, whether through captivity, death, or the infliction of some penalty, their children who succeed them and who are either appointed heirs or disinherited by a will cannot break it.

(5) A will becomes invalid whenever anything happens to the testator himself; as, for instance, where he loses his civil rights through being suddenly reduced to slavery, for example, where he is captured by the enemy; or where, being over twenty years of age, he permits himself to be sold for the purpose of transacting the business of his purchaser, or to share in his own price.

(6) Where, however, anyone convicted of a capital crime is condemned to be thrown to wild beasts, or to fight as a gladiator, or some other sentence is imposed which will deprive him of life, his will becomes void, not from the time when he suffered punishment, but from the date of his sentence, for he then at once becomes a penal slave; unless, being a soldier, he is convicted of some military offence, for under such circumstances, it is customary for him to be permitted to make a will, as the Divine Hadrian stated in a Rescript; and I think that he can make one in accordance with military law. On this principle, therefore, as he is allowed, to make a will after his conviction, should one which he had previously executed be held valid, if he was allowed to make it, or should it be considered void on account of the penalty, after it has been made? There can be no doubt that, if he has a right to make a will by military law, and wishes the first will to be valid, he will be considered to have executed it.

(7) The will of a person who has been deported does not immediately become void, but only after the Emperor has confirmed the sentence, for then he who was condemned loses his civil rights. Where, however, the punishment of a Decurion is concerned, or that of his son or grandson, and the Governor refers the case to the Emperor, I do not think that the convicted party becomes at once a penal slave, although it is customary to incarcerate him for safe-keeping. Therefore, his will does not become void before the Emperor issues his decree that he must suffer the punishment. Hence, if he should die before this is done, his will will be valid, unless he takes his own life; for, by the Imperial Constitutions the wills of those who are conscious of their guilt are void, even though they may die while in possession of their civil rights.

But where anyone, through weariness of life, or because he is unable to endure the suffering of illness, or through a desire for notoriety commits suicide, as certain philosophers do, this rule does not apply, as the wills of such persons are valid. The Divine Hadrian also made this distinction with reference to the will of a soldier, in a letter addressed to Pomponius Falco, stating that if anyone belonging to the army preferred to kill himself because he was guilty of a military offence, his will shall be void; but if he does so because he is tired of life, or on account of suffering, it will be valid, and if he should die intestate, his property can be claimed by his relatives, or, if he has none, by his legion.

(8) All those persons, whose wills we have stated become void because of their condemnation, do not lose their civil rights if they appeal from the decision of the tribunal; and therefore any wills which they may have previously executed do not become void, and it has very frequently been decided they can still make a will. They are not held to resemble those who are doubtful concerning their condition, and have not testamentary capacity, for they are certain of their condition, and they are only uncertain of themselves while the appeal is pending.

(9) But what if the Governor did not receive the appeal, but delayed the infliction of the penalty until it was confirmed by the Emperor? I think that the party in question would, in the meantime, also preserve his status, and that his will would not become invalid. For (as has been stated in the Address of the Divine Marcus) where an appeal which has been taken by the party directly, or by someone acting for him is not received, the infliction of the penalty must remain in abeyance until the Emperor answers the letter of the Governor and returns his decision together with the letter; unless the accused is a notorious robber, or has been guilty of fomenting sedition, or has perpetrated bloodshed, or where some other good reason exists which can be set forth by the Governor in his letter, and which does not admit of delay, not for the purpose of hastening the punishment, but in order to provide against danger to the community; for, under such circumstances, he is permitted to inflict the penalty and then communicate the facts to the Emperor.

(10) Let us see where someone has been illegally condemned and the penalty has not been inflicted, whether his will will be invalid. Suppose, for instance, that a decurion has been sentenced to be thrown to wild beasts, will he lose his civil rights, and will his testament become void? I do not think that this will be the case, as the sentence cannot legally bind him. Therefore, where a magistrate finds someone guilty who is not subject to his jurisdiction, his will will not be void, as has been frequently decided.

(11) The wills of those whose memory is condemned after their death, for example, on account of high treason, or some similar offence, are invalid.

(12) With reference, however, to what we have stated, namely, that the will of anyone captured by the enemy becomes invalid, it must be added that the will regains its validity through the right of postliminium, if the testator should return; or if he dies while in captivity, it is confirmed by the Lex Cornelia. Therefore, where anyone is convicted of a capital crime, and is restored to his civil rights through the indulgence of the Emperor, his will again becomes valid.

(13) It has been settled that the will of a son under paternal control who has served his time in the army, and has become his own master through the death of his father, is not void; for when a son disposes of his castrense peculium by will, he must be considered as the head of a household, and therefore it is certain that the will of a soldier or a veteran does not become void by his emancipation.

7. Ulpianus, On Sabinus, Book X.

If a soldier should make a will in accordance with the Civil Law, and appoint an heir in the first degree, which he is entitled to do under military law, and in the second degree should substitute someone as heir which he can do by the Common Law, and should die a year after his discharge, the first degree becomes invalid, and the will commences with the second.

8. The Same, On Sabinus, Book XI.

It is true that a will is broken by either the adoption or the arrogation of a son or a daughter, just as it is ordinarily broken by the birth of an heir.

(1) Where a daughter and a grandson are emancipated, this does not break a will, because they are released from paternal control by a single sale.

9. Paulus, On Sabinus, Book II.

Where a father is taken captive by the enemy, and his son retains his citizenship, the father's will is not broken by his return.

10. The Same, On Vitellius, Book I.

Nor does a son returning from captivity break the will of his father through the right of postliminium, which is the opinion held by Sabinus.

11. Ulpianus, On the Edict, Book XLVI.

Where two wills executed at different times are produced, and each of them is sealed with the seals of seven witnesses, and the last one, having been opened, is found to be blank, that is, without any writing whatsoever, the first will is not broken for the reason that the second one is void.

12. The Same, Disputations, Book IV.

A posthumous child, having been passed over, was born and died during the lifetime of the testator. Although by strict construction of the law, and by the employment of excessive subtlety, the will may be held to be broken, still, if it was properly sealed, the heir who was entitled to the possession of the estate in accordance with the terms of the will will acquire it; as the Divine Hadrian and Our Emperor stated in Rescripts. For this reason the legatees, as well as the beneficiaries of the trust, will be secure in the possession of whatever has been left to them. The same must be said with reference to a will improperly executed, or one which is void, where the possession of the estate was granted to him who could have obtained it ab intestato.

(1) Where a civilian who had already made one will makes another, and provides in the latter that the heir shall be entrusted with the execution of the first will, the first is unquestionably broken. Having been broken, it may be asked whether it should not be valid as a codicil. Since the words of the testator in the second will refer to a trust, undoubtedly all matters therein contained relate to a trust, not only the legacies and the property left to be administered in a fiduciary capacity but also all manumissions, as well as the appointment of an heir.

13. Gaius, Institutes, Book II.

Those also are included among posthumous children who, by succeeding to the place of proper heirs, through their birth become the lawful heirs of their parents. For instance, if I have a son, and a grandson or a granddaughter born to him, all under my control, as the son takes precedence by a degree in the succession, he alone has the right of a direct heir, even though the grandson and granddaughter, who are his children, are also under my control. If, however, my son should die during my lifetime, or, for any reason whatsoever, should be released from my control, the said grandson and granddaughter will take his place in the succession, and in that way their rights as direct heirs will be acquired, as it were by birth, but my testament will not be broken in this way, just as if I should appoint or disinherit my son as my heir; nor can I legally make a will in such a way that it will become necessary for me to appoint as heir, or disinherit my grandson or my granddaughter, unless my son having died during my lifetime, and my grandson or granddaughter having taken his place in the succession, should break the will, just as is done by birth; and this the Lex Julia Velleia provided for.

14. Paulus, Concerning the Assignment of Freedmen.

Where disinheritance is expressed as follows: "If a male or female child should be born, let it be disinherited"; and both are born, the will is not broken.

15. Javolenus, Epistles, Book IV.

A man whose wife was pregnant fell into the hands of the enemy. I ask where a son was born, at what time the will executed by the testator, who was there in the enjoyment of his civil rights, was broken, and if the son should die before the father, whether the testamentary heirs will be entitled to the estate. 1 answered that I did not think that there could be any doubt, in accordance with the Cornelian Law, which was enacted for the confirmation of the wills of those who died while in captivity, that, if a son was born, the will of a testator who was in the hands of the enemy would be broken. It follows, therefore, that the estate will belong to no one by this will.

16. Pomponius, On Quintus Mucius, Book II.

When in the second will we appoint an heir who is living, whether this is done either absolutely or conditionally, and the condition can be fulfilled even though this may not take place, the first will is broken. It makes a great deal of difference, however, what the imposed condition was; for everyone that can be conceived has reference either to the past, the present, or the future. One is imposed with reference to the past, for instance: "If Titius has been consul"; and if this condition is true (that is to say if Titius has actually been consul), the heir will be appointed in such a way that the first testament will be broken, for he becomes the heir for this reason. If, however, Titius has not been consul, the former testament will not be broken.

Where the condition imposed with reference to the appointment of an heir relates to the present time, as for instance: "If Titius is consul"; the result will be the same, so that, if he is consul, the party can become the heir, and the former testament will be broken. But if he is not consul, the party cannot become the heir, and the former testament will not be broken.

If conditions are imposed with reference to a future time, and they are possible and can be fulfilled, even though they may not take place, they cause the former will to be broken. Where, however, they are impossible, as, for example, "Let Titius be my heir if he has touched the sky with his finger", it is held that this condition is just as if it had not been prescribed, as it is impossible.

17. Papinianus, Opinions, Book V.

Where a son who was under his father's control has been passed over, no manumissions or legacies granted by the will are valid, if the son who was passed over does not claim his share of the estate from his brothers. If, however, he refuses to accept any of his father's estate, although, in accordance with the strict interpretation of the law, the will may be considered void, still, the wishes of the testator will be complied with on the principles of justice and equity.

18. Scævola, Questions, Book V.

Where anyone who has been appointed heir by a testator is arrogated by him, it can be said that he has done enough for him, because before he adopted him, his appointment was merely that of a stranger.

19. The Same, Questions, Book VI.

If Titius and myself should be appointed heirs, and by our appointment a posthumous child is disinherited, or one is not disinherited on account of our substitution as heirs, and Titius should die, I cannot enter upon the estate; for the will is broken on account of the appointment of a person by which the posthumous child is disinherited, and who is called to the succession as a substituted heir, by whom the posthumous child is not disinherited.

(1) Where, however, Titius and myself are substituted for one another, even though the posthumous child may not have been disinherited in that part of the will which mentions the substitution, and Titius either dies, or rejects the estate, I think that I can enter upon and become the heir of all of it.

(2) However, in the first case, even though Titius may be living, I cannot enter upon the estate without him, nor can he do so without me, for the reason that it is uncertain whether the will may not be broken by one of us refusing to accept, and therefore we should both enter upon the estate together.

20. The Same, Digest, Book XIII.

Lucius Titius, while of sound mind and in good health, made a will in the proper manner, and afterwards became ill, and while insane mutilated the instrument. I ask whether the heirs appointed by the said will can enter upon the estate. The answer was, that in accordance with the facts stated, they will be prevented from doing so.

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TITLE IV. CONCERNING ERASURES, CANCELLATIONS, OR ADDITIONS TO A WILL.

1. Ulpianus, On Sabinus, Book XV.

Where any words have undesignedly been erased or blotted in a will, so that they can still be read, they will, nevertheless, be valid; but this is not the case where it has been done purposely. Where anything has been obliterated or erased without the order of the testator, it is of no effect. The term "read" must be understood to mean not that the sense can be ascertained, but that what has been written can be perceived by the eyes. But where the meaning can be gathered from some other source, the words are not held to be legible. It is sufficient, however, for them to be legible where they have been thoughtlessly erased, either by the testator or by someone else, against his will. The word "blotted" must be understood to signify that the words are obscured.

(1) Hence, where anything of this kind has been done unintentionally and the writing can be read, it is just as if it had not been done at all. Therefore, if at the end of the will (as is customary) there was written: "I, myself, have made all the erasures, insertions, and changes herein contained"; it is not held that this has reference to anything which may have been erased accidentally; for if a testator should write that he had made the erasures unintentionally, the words will remain, and if he has rendered them illegible, they will not be considered to be so.

(2) Where words of this kind cannot be read, and have been unintentionally erased, it must be held that nothing is granted by them; provided, however, that this was done before the completion of the will.

(3) Where, however, words have been intentionally erased, parties claiming under them will be barred by an exception, but if this was done undesignedly, they will not be barred, whether the words can, or cannot be read; since if the entire will does not exist, it is established that everything therein contained will be valid. If indeed the testator mutilated the will, actions will be denied to parties mentioned in it; this, however, will not be the case where the mutilations were made against the consent of the testator.

(4) When the heir has been deprived of a portion of the estate, or of all of it, and a substitute has been appointed, the act will be held to be legally performed; but the estate will not be considered to have been taken away from the heir, but never to have been given to him, as where an estate has once been granted it is not easily taken away.

(5) Where anyone confirmed his codicils by a will, and added something in a codicil which he afterwards erased, but which is still legible; will any obligation be incurred by it? Pomponius says that a codicil which has been erased is void.

2. The Same, Disputations, Book IV.

A certain individual cancelled his will, or erased it, and stated that he did so on account of a certain heir, and this same will was afterwards sealed by witnesses. The question arose with reference to the validity of the instrument, and of that portion of it which the testator said that he had cancelled on account of the said heir. I held that if the testator had erased the name of one of the heirs, the remainder of the will would undoubtedly be valid, and the right of action would be absolutely refused to the said heir; but where he had been specifically charged with legacies they would be due, if it was the intention of the testator that only his appointment as heir should be annulled. If, however, he erased the name of the appointed heir, and retained that of the substituted heir, he who was appointed would not be entitled to anything out of the estate. But if (as in the case stated), the testator should erase all the names, and should allege that he had done so on account of his dislike to a single heir, I think that it makes a great deal of difference whether he merely desired to deprive the said heir of his inheritance, or whether, on his account, he intended to invalidate the entire will; so that, although only one heir was the cause of the erasure, all of them would be prejudiced by it. If, however, he only wished to deprive a single heir of his share of the estate, the erasure will not prejudice the others, any more than if the testator, while intending to erase the name of one heir, had also unintentionally erased that of another. If the testator thought that his entire will should be cancelled because one of the heirs was undeserving, the right of action will be denied to all of them. But it may be asked whether the right of action should also be denied to the legatees. So far as this doubtful question is concerned, it should be held that the legacies are due, and that the appointment of the co-heir is not invalidated. 3. Marcellus, Digest, Book XXIX.

A case was recently brought to the attention of the Emperor, where a certain testator erased the names of the heirs, and the estate was claimed as forfeited to the Treasury. There was doubt for a long time as to what disposition should be made of the legacies, and especially of such as had been bequeathed to those whose appointment as heirs had been erased. Several authorities decided that the legatees should be excluded, and I thought that this course should be adopted if the testator had cancelled his entire will; others were of the opinion that what had been erased was abrogated by operation of law, but that all the remainder was valid. What course should then be pursued? Could it not sometimes be held that a testator who had erased the names of his heirs was aware that he would be in the same position as if he had died intestate? Where a point is in doubt, it is not less just than safe to follow the more indulgent interpretation.

The following is the decision by the Emperor Antoninus Augustus, during the Consulship of Pudens and Pollio: "Since Valerius Nepos, having changed his mind, has mutilated his will, and erased the names of his heirs, his estate, in accordance with the Constitution of my Divine Father, does not seem to belong to the heirs mentioned therein". He also stated to the advocates of the Treasury: "You have your own judges". Vivius Zeno said, "I ask, O Lord Emperor, that you hear me patiently, what do you decide with reference to the legacies?" The Emperor Antoninus replied: "Does it seem to you that a testator who erased the names of his heirs intended that his will should stand?" Cornelius Priscianus, the advocate of Leo, said: "The testator only erased the names of his heirs". Calpernius Longinus, the Advocate of the Treasury, answered, "No will can be valid in which an heir is not appointed". Priscianus added, "He manumitted certain slaves, and bequeathed legacies."

The Emperor Antoninus, having caused all the parties to retire while he considered the matter, and having ordered them to be again admitted, said: "The present case seems to admit of an indulgent interpretation, so that we think that the testator Nepos only intended that portion of his will which he erased to be annulled". He had actually erased the name of a slave whom he had ordered to be free. Antoninus stated in a Rescript that the slave would, nevertheless, be liberated. He decided the question in this way on account of the favor conceded to freedom.

4. Papinianus, Opinions, Book VII.

A testator solemnly indicated his wishes in a will, several copies of which were made at the same time; and he afterwards removed and erased some of these which had been deposited in a public place. Whatever provisions were legally made by said will, and which could be established by the other copies of the same which the testator did not remove, were not held to have been annulled.

Paulus states that if the testator defaced the will in order that he might die intestate, and if those who desired to inherit ab intestato were able to prove this, the heirs mentioned in the will would be deprived of the property.

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TITLE V. CONCERNING THE APPOINTMENT OF HEIRS.

1. Ulpianus, On Sabinus, Book I.

He who executes a will should generally begin with the appointment of an heir. He can also begin with a disinheritance specifically made; for the Divine Trajan stated in a Rescript that a son may be disinherited by name, even before the appointment of an heir.

(1) We also say that an heir has been appointed where the testator did not write, but only mentioned his name.

(2) A person who is dumb, or one who is deaf, can legally be appointed an heir.¹

¹ This was not the case in ancient India. "Eunuchs and outcasts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage. But it is just that the heir, who knows his duty, should give all of them food and raiment for life without stint, according to the best of his power; he who gives them nothing, sinks assuredly to a region of punishment." (Sir Wm. Jones Works, The Laws of Menu, Vol. III, Page 363.) — ED.

(3) Where a testator is not about to bequeath any legacies or disinherit anyone, he can make a will in five words, by saying: "Let Lucius Titius be my heir". This formula can also be used by a person who does not commit his will to writing, and who can even make a will in three words, as where he says: "Let Lucius be heir"; for the words my and Titius are superfluous.

(4) Where anyone is appointed sole heir to a tract of land, the appointment will be valid, without any mention of the land.

(5) If anyone should write as follows: "Lucius heir", even though he may not add, "Let him be"; we hold that this is a nuncupative, rather than a written will. And if he should write: "Let Lucius be", we hold that it would amount to the same thing. Therefore, if he should only write "Lucius", Marcellus thinks, and not without reason, that this form would not be accepted at the present time.

The Divine Pius, however, in the case where a testator, who was distributing certain portions of an estate among his heirs, merely said: "So-and-So to all this share, and So-and-So to all that"; but did not add "Let him be heir", the Emperor stated in a Rescript that the appointment was valid, and this opinion was also adopted by Julianus.

(6) The Divine Pius also stated in a Rescript that an appointment was valid when made in the following terms: "Let my wife be", even though the word "heir" was lacking.

(7) Julianus does not think, that an appointment made as follows, "So-and-So to be heir," is valid, since something is lacking. This appointment, however, will be valid, because the words, "I order", are understood.

2. The Same, On Sabinus, Book II.

Where a testator makes use of the words: "I appoint So-and-So and So-and-So to be my heirs according to their shares"; with reference to those who are appointed heirs, Marcellus does not think that they become such where no shares have been assigned to them, just as if they had been designated in the following terms: "If I should specify their shares". The better opinion is, that where the wishes of the deceased are not disregarded, each appointment should be understood, for instance: "I appoint them heirs for the shares of the estate which I shall assign to them, but not to equal shares"; just as if a twofold appointment had been made. This opinion Celsus approves in the Sixteenth Book of the Digest. But he thinks otherwise where an appointment is made as follows: "Let Seius be my heir to the same portion to which Titius has appointed me heir"; for if he was not appointed by Titius, Seius will not be appointed by him. This opinion is not unreasonable, for in this instance a condition is involved. Marcellus, however, thinks that the cases are similar.

(1) It makes a difference where a party writes: "Of those shares which I have assigned to him", or "Which I shall assign to him", for, in the first instance, you can say that where no shares are designated, there is no appointment; just as Marcellus decided in a case where the appointment was made as follows: "Let So-and-So and So-and-So be heirs to those portions to which they have been appointed by the will of their mother", and if their mother should die intestate, they will not be legally appointed.

3. The Same, On Sabinus, Book III.

A slave who belongs entirely, or partly, to another, can be appointed the heir of the testator, without the grant of his freedom.

(1) If I appoint my slave to be absolutely my heir, but grant him his freedom under a certain condition, his appointment will be deferred until the time when his freedom is granted him.

(2) Where a party stated in his will: "If Titius shall be my heir, let Seius be my heir and let Titius be my heir"; the acceptance of Titius is awaited as a condition for Seius to become the heir. And, indeed, this is reasonable, and seems so to Julianus and Tertyllianus.

(3) Where an heir has accepted a trust by which freedom is conditionally granted to a slave, the said slave can be appointed heir by the former, with an absolute grant of his freedom, without waiting for the fulfillment of the condition, and he will obtain both his freedom and the estate. In the meantime, he will be a necessary heir, and will become a voluntary heir when the condition is fulfilled, so that he will not cease to be an heir, but the right of succession will be changed so far as he is concerned.

(4) Delay in opening a will does not affect the rights of a necessary heir, as we are accustomed to hold where anyone is substituted for a minor. For it has been established that if the substitute gives himself to be arrogated by the minor, as the son of the deceased, he will become his necessary heir.

4. The Same, On Sabinus, Book IV.

A direct heir can also be appointed under a condition. The son of the testator must, however, be excepted, because he cannot be appointed under any condition whatsoever. He can, indeed, be appointed under a condition which it is in his power to carry out, and on this opinion all authorities are agreed; but will the appointment take effect if he fulfills the condition, or will it do so if he should not fulfill it, and dies?

Julianus thinks, where a son has been appointed heir under such a condition, that he cannot be removed from the succession, even if he should not comply with the condition, and therefore when he is appointed in this way and has a co-heir, the latter is not obliged to wait until the son complies with the condition; since, although the latter, by not complying with it, can render his father intestate, there is no doubt that the co-heir should wait. This opinion seems to me to be correct, so that where a son is appointed under a condition, compliance with which depends upon his will, he cannot by avoidance render his father intestate.

(1) I think that, generally speaking, a question of fact is involved in the case where a condition is, or is not, dependent upon the power of the son to carry it out. For a condition like this: "If he should go to Alexandria", does not depend upon the will of the son, if the weather should be severe, but it may depend upon it where the condition was imposed upon a person who only lived a mile from Alexandria. The following condition: "If he should pay ten aurei to Titius", presents a difficulty, if Titius should be absent upon a long journey. Hence, recourse must be had to the general definition of a condition which can be complied with by the party in question.

(2) If, however, after the testator appointed his son his heir under a condition which the latter was able to carry out, or where he appointed a stranger, I think that the substitute cannot become an heir during the lifetime of the son, but can after his death; and it is not necessary for the son to be disinherited by the appointment of the substitute. And even if the disinheritance should be made it would be void; for we have shown elsewhere that where this takes place after the death of the son it is invalid. Therefore, we are of the opinion that where a son has been appointed under such a condition, and is under the control of his father, he does not need to be disinherited from the following degrees; otherwise he must also be disinherited by the appointment of a co-heir.

5. Marcellus, On Julianus, In the Twenty-ninth Book of the Digest, Observes That:

If the condition under which the son was appointed an heir is of such a character that it is certain that at the last moment of his life it cannot be fulfilled, and, while it is pending, the son dies, he will be the heir to his father just as if the latter was intestate; for instance: "If he should go to Alexandria, let him be my heir". If, however, the condition can be complied with during the last hours of his life, for example, "If he pays ten aurei to Titius, let him be my heir", I hold that the contrary is true.

6. Ulpianus, On Sabinus, Book IV.

Where a certain time is mentioned in the condition, for instance: "If he goes up to the Capitol within thirty days"; it can be said that if he does not comply with the condition, the son will be excluded from, and the substitute will be admitted to the succession. This is the result of the opinion of Julianus and myself.

(1) The grandsons and other successors of the testator, who, when appointed, do not break the will under the Lex Velleia, can be appointed under any condition whatsoever, although they occupy the position of a son.

(2) We are accustomed to say that anything which occurs in the intermediate time does not injuriously affect the heir; for example, where the party appointed is a Roman citizen, and becomes a foreigner during the lifetime of the testator, and afterwards recovers his Roman citizenship, what has happened to him in the meantime does not prejudice his rights. Where a slave belonging to another is appointed an heir, and afterwards is delivered to another slave belonging to the estate, and is then acquired by a stranger through usucaption, his appointment as heir is not annulled.

(3) When a master appoints a slave, owned by him in common with another, his heir with the grant of his freedom, and ransoms him from his joint-owner, he becomes a necessary heir. Where, however, the slave is substituted for a minor, and the latter purchases the share of the other joint-owner, Julianus says that the said slave does not become a necessary heir.

(4) It is asked by Julianus whether this slave, appointed heir with a grant of his freedom, can subsequently be deprived of it by means of a codicil. He holds that in the case where the said slave becomes a necessary heir, any deprivation of his freedom will not be valid, for he would be compelled to deprive himself of it; as where a slave is appointed an heir, he receives his freedom from himself. This opinion is reasonable, for as he cannot bequeath his freedom to himself, so also he cannot deprive himself of it.

7. Julianus, Digest, Book XXX.

When a slave held in common is appointed an heir under some condition, and obtains his freedom during the lifetime of the testator, he can enter upon the estate while the condition under which he is to obtain freedom by the will, is still pending.

(1) Again, he will be entitled to the estate by the order of his master, even if the testator had alienated him during his lifetime, or the heir has done so after the death of the testator.

8. The Same, On Urseius Ferox, Book II.

Two partners by their will directed a certain slave owned in common by them to be their heir and free, and both of them perished at the same time by the fall of a house. Several authorities gave it as their opinion that, in this instance, the slave became the heir of, and obtained his freedom from both of them; and this opinion is correct.

(1) Where two partners direct a slave owned in common by them shall become free and their heir, under the same condition, and the condition is complied with, the same rule of law will apply.

9. Ulpianus, On Sabinus, Book V.

Whenever a testator who wishes to appoint an heir appoints another person through a mistake in the individual (as for instance, "My brother, my patron"), it is settled that neither of them will be his heir; he who is mentioned, for the reason that it was not the intention of the deceased to appoint him; nor he whom he intended to appoint, because he was not mentioned.

(1) In like manner, if a testator should make a mistake with reference to the property (for instance, if he should leave a garment when he intended to leave a dish), he will owe neither. This rule applies whether the testator wrote his will himself, or dictated it to be written by another.

(2) Where, however, the testator was not mistaken with reference to the article itself, but only as to a part of what was to be bequeathed (for example, if, while dictating, he stated that a certain party should be appointed heir to half his estate, while, in fact, he was appointed only to a fourth), Celsus says, in the Twelfth Book of Questions and the Eleventh Book of the Digest, that it can be maintained that the party is heir to half of the estate, as the larger amount was mentioned, but the smaller one was written; and this opinion is supported by certain general rescripts. The same rule will apply if the testator himself writes down a smaller amount when he intended to write a larger one.

(3) But if the person who drew up the will put down the larger amount or (which is a matter more difficult of proof), the testator himself did so, as, for instance, a half instead of a quarter, Proculus thinks that the heir will only be entitled to the quarter, since the quarter is contained in the half. This opinion is also approved by Celsus.

(4) Where, however, the testator writes two hundred for one hundred in figures, the same rule of law will apply, because both the sum that he intended and what was added to it were written at the same time. This opinion is not unreasonable.

(5) Marcellus discusses this same point with reference to a party who, intending to insert a condition in his will, did not do it; and he holds that the heir should not be considered as having been properly appointed. If, however, he added a condition without intending to do so, it will be annulled, and the heir will be admitted to the succession; since whatever is written contrary to the intention of the testator is not held to have been mentioned by him.

This opinion is adopted by Marcellus, and we approve it.

(6) He also discusses the point that, if the person who draws up the will omitted the condition against the wishes of the testator, or changed it, the heir will not be entitled to the succession, and will be considered as not appointed.

(7) But where the testator who intended to appoint one heir to half his estate, appoints both a first and second heir, the first one will solely be considered his heir, and the only one appointed to half the estate.

(8) Where a testator does not mention the name of his heir, but designates him by some mark which does not admit of doubt, and which differs very little from mentioning him by name, without, however. adding any epithet which may cause him injury, the appointment will be valid.

(9) No one can appoint an heir without designating him with certainty.

(10) When a testator says: "Let whichever of my brothers, Titius and Mævius, who may marry Seia, be my heir to three quarters of my estate, and the one that does not marry her, be my heir to the remaining quarter"; in this instance, it is certain that the appointment is legally made.

(11) It is clear that an appointment made in the following terms, namely: "Let whichever of my above-mentioned brothers who marries Seia be my heir", comes under the same rule. I think that this appointment is valid, as being made subject to a condition.

(12) Heirs are legal successors, and, where several are appointed, their respective rights must be apportioned among them by the testator; for if he does not do this, all of them will share equally as heirs.

(13) Where two heirs are appointed, one to a third of the Cornelian Estate, and the other to two-thirds of the same estate, Celsus adopts the very appropriate opinion of Sabinus that, leaving the mention of the land out of consideration, the heirs whose names appear in the will are entitled to the estate just as if their respective shares had not been indicated; provided that it is perfectly evident that the will of the testator has not been disregarded.

(14) Where a testator inserts in his will: "Let Stichus be free, and after he becomes free let him be my heir", Labeo, Neratius, and Aristo hold that if the word "after" should be omitted, the slave will obtain his freedom and the estate at the same time.

(15) If anyone should appoint an heir to a third of his estate, and another also to a third, and, in case there should be no second heir, appoints still another heir to the two-thirds; in this instance, if the second should reject the estate, the third heir appointed will be entitled to two-thirds of it, not only by the right of substitution, but also by that of appointment; that is to say, he will have one-third of the estate by the right of substitution, and one-third by the right of appointment.

(16) Where a slave is appointed an heir with the grant of his freedom, and then is alienated, he can enter upon the estate by the order of the party to whom he has been transferred. If, however, he should be ransomed by the testator, his appointment will be valid, and he will become a necessary heir.

(17) If a slave should be granted his freedom to date from a certain time, and is left the estate absolutely, and he is afterwards alienated or manumitted, let us see whether his appointment will be valid. And, indeed, if he should not be alienated, it can be maintained that his appointment will be valid, so that he will become a necessary heir when the day he receives his freedom, and which delays his right to the estate, arrives.

(18) But where his freedom is granted him from a certain time, and the estate is left to him under a certain condition, if the condition should be fulfilled after the day of his freedom arrives, he will become both free and the heir.

(19) When a slave has been appointed an heir unconditionally, and his freedom is to date from a certain time, if he should be either alienated or manumitted, it must be said that he can become the heir.

(20) Where, however, not the slave himself, but only the usufruct in him is alienated, his appointment will be valid, but it will be postponed until the time when the usufruct is extinguished.

10. Paulus, On Sabinus, Book I.

When anyone appoints heirs to different portions of different tracts of land, it will be the same as if they had not been appointed to certain portions of the same; for it is not easy to ascertain what their shares will be in the different tracts. Therefore, it is more expedient, as Sabinus says, for it to be considered that the testator had neither mentioned the land, nor the shares to which they were entitled.

11. Javolenus, Epistles, Book VII.

"Let Attius be my heir to the Cornelian Estate, and let the two persons named Titius be my heirs to such-and-such a house." The persons named Titius will be entitled to half of the estate, and Attius to the remaining half. This opinion is held by Proculus; what do you think of it? The answer is that the opinion of Proculus is correct.

12. Paulus, On Sabinus, Book II.

Where unequal shares in an estate were bequeathed by a testator, and he added, "Let those heirs to whom I have allotted unequal portions share equally"; it should be held that they do share equally, provided this clause was inserted before the completion of the will.

13. Ulpianus, On Sabinus, Book VII.

Sometimes, this addition, "Let my heirs share equally", expresses the intention of the testator; as, for instance: "Let the first, and the sons of my brother share equally"; for this addition indicates that all the heirs are appointed for equal shares, as is stated by Labeo; and if it is omitted, the first will be entitled to half the estate, and the sons of the testator's brother to the other half.

(1) The father of a family can divide his estate into as many portions as he wishes, but the regular division of an estate is made into twelve shares, called unciæ.

(2) Hence, if the testator divides his estate into a smaller number than this, recourse is had to this rule by operation of law; for example, where a testator appoints two heirs each to a fourth of his estate, for in this case the remainder of the estate is apportioned in such a way that each heir is held to have been appointed for six shares.

(3) Where, however, one heir is appointed for one-fourth of the estate, and another for half, the remaining fourth will be added in proportion to the shares which they inherit respectively.

(4) If a testator should divide his estate into more than twelve shares, a diminution will then be made pro rata, as for example, if he appointed me heir to twelve shares, and you heir to six, I will be entitled to eight shares of the estate, and you to four.

(5) When a testator appoints two heirs for the entire estate and two others for twelve parts of the same, the inquiry is made by Labeo, in the Fourth Part of his Last Works, whether an equal distribution shall be made. And he holds that the former are entitled to half the estate, and those who are appointed for twelve shares of it will be heirs to the other half. I think that this opinion should be adopted.

(6) If, however, a testator should appoint two heirs for his entire estate, and then appoint a third for a half and a sixth of the same, Labeo says, in the same book, that the entire estate should be divided into twenty parts, of which the two first heirs shall have twelve, and he who was appointed for the half and the sixth will be entitled to eight.

(7) Labeo also gives as an example: "Let Titius be appointed for a third of my estate"; and then, after the entire estate had been disposed of was added: "Let the same Titius be appointed for a sixth". Trebatius says that this estate should be divided into fourteen parts.

14. Javolenus, On Cassius, Book I.

If anyone should appoint heirs as follows: "Let Titius be heir to the first share, Seius to the second, Mævius to the third, and Sulpicius to the fourth", equal shares of the estate will belong to the parties appointed; for the reason that the testator is held to have named them rather to show the order of their designation, than to prescribe the method of dividing the estate into shares.

15. Ulpianus, On Sabinus, Book XXX.

Julianus states in the Thirtieth Book that where a testator appointed his heirs as follows: "Let Titius be the heir to half of my estate, and Seius to half, and out of the portion which I have left to Seius, let Sempronius be my heir to an equal amount"; it may be doubted whether the testator intended to divide his estate into three shares, or whether he intended to join Seius and Sempronius as heirs to the same half. The latter is the better opinion, and therefore these two are held to have been appointed heirs to the same portion of the estate; hence the result is that Titius will be entitled to half of the estate, and each of the others to a fourth of the same.

(1) The same authority stated in the same book, that where a testator said, "If the first is heir to one-half, the second will be heir to the other half; but if the first should not be an heir, let the third be substituted as heir for three-quarters of my estate". This is indeed a question of fact, but it may very properly be said that if the first heir enters upon the estate, the others will be entitled to equal shares of the same; but if he rejects it, it must be divided into fifteen parts, of which the third heir will be entitled to nine, and the second to six.

16. Julianus, Digest, Book XXX.

For the third heir occupies the position of one who has been both appointed and substituted, as he is held to have been appointed for three parts of the estate, and substituted for six.

17. Ulpianus, On Sabinus, Book VII.

Sabinus says that where a share has not been allotted to one of the heirs this requires investigation. For instance, where a testator appointed two heirs, each to a fourth of the estate, but did not assign anything to the third, the latter will be entitled to the remainder. Labeo also adopts this opinion.

(1) The same authority discusses the question: "Where a testator appointed two heirs to eleven shares of his estate, and two without any, and afterwards one of those to whom no share was assigned rejected the succession, will the twenty-fourth to which he was entitled belong to all the heirs, or to him alone to whom no share was assigned? He does not determine this point. Servius, however, says that the share will belong to all the heirs, and I think that this opinion is the better one; for, so far as the right of accrual is concerned, those who are appointed without any share are not joint heirs with the others. This opinion is adopted by Celsus in the Sixteenth Book of the Digest.

(2) Sabinus also holds that where the testator has disposed of the entire estate, and appointed two heirs without assigning them any portion thereof, neither of them will be joint-heirs with the others.

(3) But if, after having disposed of the entire estate, he should appoint another without any share, the latter will be entitled to half of double the amount of the original shares of the said estate. It will be otherwise, however, if, after having disposed of his entire estate, the testator should provide: "Let So-and-So be my heir to the remainder"; since, as there is nothing left, an heir cannot be appointed for any share.

(4) But if, after the entire estate was disposed of, two heirs should be mentioned without any shares being assigned to them, the question arises, shall these two be united in the doubling of the estate, or only in a single division of the same? Labeo thinks, and it is the better opinion, that they will be entitled to share in a single division; for, where one has been appointed without the assignment of any share, and afterwards two are appointed together without any share being assigned to them, Celsus says, in the Sixteenth Book, the estate should not be divided into three portions, but only into two.

(5) But if the testator, after doubling the shares of the estate, should divide it between two heirs, and should appoint a third without any share, the number of original shares will not be tripled; but the said third heir will be entitled to a third part of the same, as Labeo stated in the Fourth Book of his Last Works, and this opinion is not referred to by either Aristo or Paulus, perhaps because they deemed it correct,

18. Paulus, On Vitellius, Book I.

Sabinus says: "The question arises where a testator had distributed among his heirs a larger number of shares than the usual division of an estate requires, and had appointed one heir without any share; will the latter be entitled to half the double division, or only what is lacking of the twenty-four shares?" I think that the latter opinion is the more correct one, so that the same ratio shall be observed where the division is doubled, or any other greater number of shares is made than is done in the ordinary distribution of an estate. Paulus: "The same ratio must be observed in the second division as in the first".

19. Ulpianus, On Sabinus, Book VII.

Pomponius and Arrianus assert that a discussion arose with reference to the following point, namely, where a man left a portion of his estate undisposed of, and then provided, "If Seius" (whom he had not appointed) "should not be my heir, let Sempronius be my heir", whether the latter could take that portion of the estate which had not been allotted to anyone. Pegasus thinks that he would be entitled to this portion. Aristo holds the contrary opinion, because a share was allotted to him which did not exist. Javolenus, Pomponius, and Arrianus approve this opinion, which prevails at the present time.

20. Paulus, On Sabinus, Book II.

It makes no difference to what place an heir to whom no portion of the estate has been given is assigned, whether to the first, the intermediate, or the last.

(1) Where the fourth of an estate has been left to a person who is already dead, and the remaining three-fourths to another, and a third part was mentioned without any share of the estate being allotted to him, Labeo says that the one who was appointed heir without any share will be entitled to half of the doubled shares of the estate, and that this was the intention of the testator. Julianus also approves this opinion, and it is correct.

(2) Where a person who is living and one who is dead are appointed joint-heirs to half of an estate, and a third party to the other half; he says that they will be entitled to equal shares, because the share assigned to the deceased is considered as not having been mentioned.

21. Pomponius, On Sabinus, Book I.

Trebatius says that the following is not correctly stated: "Whoever shall be my heir, let Stichus be free and my heir", but that the slave will, nevertheless, become free. Labeo holds, and very properly, that he will also be the heir.

(1) I think it very probable that freedom can be absolutely granted to a slave, and that the estate can, at the same time, be bequeathed under some condition, in such a way, however, that both provisions will depend upon the condition.

22. Julianus, Digest, Book XXX.

The condition having been fulfilled, the slave will become free and an heir; no matter in what part of the will freedom has been conferred upon him. Where, however, the condition has not been fulfilled, it is considered that freedom has been bestowed upon him without the estate.

23. Pomponius, On Sabinus, Book I.

Where an heir is appointed for a time which is either certain or uncertain, he can claim possession of the estate, and can dispose of it as the heir.

(1) But if he should not claim possession of the estate, but postpones compliance with the condition, which he can very easily carry out (for instance, if the condition was that he should manumit a slave who is under his control, but he does not do so), in this case it is the duty of the Prætor to issue his edict designating the time within which the heir shall enter upon the estate.

(2) Likewise, if the heir cannot comply with the condition because it is not in his power (for instance, when it consists of something to be done by another, or depends upon some uncertain event, for example: "If he should become Consul"); and the Prætor should then decide, upon application of the creditors, that unless the estate was accepted and entered upon within a certain time, he would direct the said creditors of the estate to take possession of the property of the deceased, and, in the meantime, would order any of the property which it was necessary to dispose of to be sold by agents appointed for that purpose.

(3) Where, however, an heir is appointed under a condition, and the indebtedness of the estate is considerable, and is liable to be increased by the imposition of penalties, and especially where there is a public debt, the indebtedness should be discharged by means of an agent, just as where an unborn child is in possession of the estate, or there is a minor heir who has no guardian.

(4) And therefore he says that an investigation should be made with reference to those heirs who are absent, without wilfully being in default; but who are prevented either by acute or chronic illness from coming into court, and have no one to appear in their defence.

24. Celsus, Digest, Book XVI.

"Let Titius and Seius, or the survivor of either of them, be my heir." I think that if both of them survive, both will be heirs, but if one of them should die, the survivor will be heir to the entire estate:

25. Ulpianus, Rules, Book VI.

For the reason that a tacit substitution seems to be included in the appointment.

26. Celsus, Digest, Book XVI.

The Senate also decided this question where a legacy was bequeathed in the same way.

27. Pomponius, On Sabinus, Book III.

If I appoint you absolutely my heir to half of my estate, and appoint another heir to the other half under some condition, and I then appoint a substitute for you, Celsus says that if the condition is not complied with, the substitute will be the heir to that portion of the estate.

(1) But if I appoint you my heir unconditionally, and afterwards appoint you under some condition, the second appointment will not be valid, because the first one takes precedence of the other.

(2) Where, however, several appointments have been made for the same share of an estate under different conditions, and the first condition is fulfilled, the result will be the same that we stated above, where the appointment was made absolutely, and also under a condition.

28. Ulpianus, On Sabinus, Book V.

If anyone should be appointed an heir as follows: "Let Titius be my heir, if Secundus will not be my heir", and afterwards he says, "Let Secundus be my heir", it is settled that Secundus is appointed in the first degree.

29. Pomponius, On Sabinus, Book V.

By the term "either" all the heirs are meant, and therefore Labeo says that if the following was inserted in the will, namely: "Let Titius and Seius be my heirs to the amount that either of them has appointed me his heir". If both of them did not appoint the testator their heir, neither of them will be his heir, since the phrase has reference to the act of all; but in this instance, I think that the intention of the testator should be considered. It is more equitable, therefore, that he whom the testator would have designated to inherit his estate should be his heir to that amount, and that he whom he would not have appointed, should not be admitted to share in his estate.

30. Ulpianus, On the Edict, Book XXI.

The Emperor Severus stated in a Rescript that where a slave was pledged he could be the necessary heir of his master, provided that he was ready to satisfy the creditor beforehand.

31. Gaius, On the Provincial Edict, Book XVII.

We can appoint as heirs not only slaves but freemen, provided that the slaves belong to parties whom themselves we can appoint, since the making of a will with reference to slaves is a right derived from the authority of their masters.

(1) The power to appoint a slave who forms part of an estate before the estate has been entered upon is based upon the principle that the estate is considered to be the owner of the slave, and to occupy the place of the deceased.

32. The Same, Concerning Wills; On the Edict of the Urban Prætor, Book I.

The appointment of an heir, as follows, "Those whom Titius may wish", is defective, for the reason that it depends upon the desire of another. For the ancient authorities very frequently decided that the validity of wills must be derived from themselves, and not depend upon the wishes of others.

(1) Anyone who is in the hands of the enemy can legally be appointed an heir, because, by the law of postliminium, all his personal rights of citizenship remain in suspense, and are not annulled. Therefore, if he should return from captivity he can enter upon the estate. His slave can also legally be appointed heir, and if his master returns from captivity, he can be ordered to enter upon the estate. If, however, he should die, his legal successor will become his heir through the act of the slave.

33. The Same, Concerning Wills; On the Edict of the Urban Prætor, Book II.

If anyone should write the following into a will, namely: "Let Titius be heir to half of my estate, and let the same Titius be heir to the other half if a ship arrives from Asia", as the heir enters upon the estate by reason of an unconditional appointment, although the condition of the second appointment may still be pending, he becomes the heir to the entire estate, even if the condition should not be fulfilled, as its fulfillment will not, in any way, benefit him; since there is no doubt that if a party is appointed heir to half of an estate, and no other heir should afterwards appear, he is held to have been appointed heir to the whole of it.

34. Papinianus, Definitions, Book I.

An estate cannot legally be bequeathed¹ from a certain time or until a certain time, but the defect with reference to the time having been ignored, the appointment of the heir will stand.

¹ The Romans applied the term "bequeath" to real and personal property without distinction; just as they "pledged" both land and chattels. — ED.

35. Ulpianus, Disputations, Book IV.

In a case which was stated, a certain testator appointed two heirs, one to his property situated in a province, the other to his property situated in Italy; and as it was his custom to bring merchandise into Italy, he sent money into the province for the purpose of buying some, and this merchandise was purchased either during his lifetime or after his death, but had not yet been brought into Italy.

The question arose whether the said merchandise belonged to the heir to whom the property in Italy had been bequeathed, or whether he was entitled to it to whom that in the province had been left? I stated that it was settled that heirs could be appointed for different kinds of property, and that the appointment was not void; but that it was the duty of the judge having jurisdiction of the partition of the estate to see that no heir to whom a certain portion of the estate had been left, should receive any more than he was entitled to under the will.

This should be understood as follows: for example, suppose two heirs were appointed, one to the Cornelian Estate, the other to the Livian Estate, and that one of these tracts of land compose three-fourths of the property, and the other the remaining fourth; the said heirs will then inherit equal portions of the estate, just as if they had been appointed without any designation of their shares; but it will be the duty of the court to see that the land which was devised to each of them shall be adjudged or allotted to him.

(1) Hence, I am aware that the question arises for what portion of the debts of the estate shall each of these heirs be liable. Papinianus, whose opinion I myself have approved, holds that each of them should be liable for the debts of the estate, in proportion to his hereditary share, that is to say, for half of it; for these lands are understood to have been received as a preferred legacy. Therefore, if the indebtedness was so great that nothing will remain after it has been discharged; we hold consequently that such appointments made with reference to the disposition of certain specific property are of no force or effect.

If the application of the Falcidian Law should cause the diminution of the legacies, it will then become the duty of the judge to reduce these preferred legacies, so that neither one of the heirs may receive more than he would have been entitled to if he had obtained a bequest, or any other property, or even the said legacies. But if there should be any doubt as to the application of the Falcidian Law, it will be perfectly right for the judge to require the parties to furnish security to one another.

(2) This being the case, the appointment which we are considering should not be rejected as invalid, where one heir was left property situated in a province, and the other property situated in Italy. It will be the duty of the judge to assign to each of the heirs that part of the estate which was bequeathed to him. Nevertheless, the said heirs will each be entitled to half of the estate, because no share was allotted to them by the testator. The result of this is, that if there should be more of certain assets of the estate in one place than in another (for example, more in Italy than in the province), and payment of the debts is pressing, it must be held that the same diminution must be made which we have mentioned above. Hence, where legacies have been left to others, contribution for their settlement should be made by the heirs.

(3) It should now be ascertained what is meant by property situated in Italy, or in the provinces. The intention of the deceased must determine this point, for consideration must be given to what he had in mind. Nevertheless, it must be understood that by the term "property in Italy" all those things are included which the testator always had there, and made arrangement to keep there. Again, if he transferred property temporarily from one place to another, not for the purpose of keeping it there, but with a view to restoring it to its former location, this will not increase the amount of the property in the place to which he transported it, nor diminish that in the place from whence he took it; as, for instance, if he should send from his Italian estate certain slaves into a province (as in Gaul) either for the purpose of paying a debt, or to buy merchandise, who were to return after they had made their purchases, there is no doubt that it must be said that they continue to belong to the Italian estate; as was stated by Mucius where a tract of land was devised, either with all the means of cultivation or with the property which is situated thereon.

For Mucius says that where a slave named Agaso was sent to a country estate by his master, he did not belong to the land which was devised, because he had not been sent there to remain permanently; hence, where a slave is sent to a country estate to remain there for a certain time, because he had offended his master; he is, as it were, temporarily banished, and it is held that he does not constitute a part of the estate devised. Hence, slaves who are accustomed to labor on one farm and who are sent to another, being as it were loaned by one tract of land to the other, do not form part of the estate devised, because they do not seem to be permanently attached to the land. In the present instance it must be held that property situated in Italy is such as the testator intended should remain there permanently.

(4) Hence, where a man sends money into a province for the purpose of buying merchandise, and it has not yet been purchased, I say that the money which was sent there to obtain goods to be brought into Italy must be held to form part of the Italian estate; for if the testator had sent into the province money which he was accustomed to use in Italy, and it was taken and returned from one place to another, it should be considered to belong to the Italian estate.

(5) I therefore stated that the result would be that the said merchandise which had been purchased to be conveyed to Rome, whether it was transported during the lifetime of the testator, or whether this had not yet been done, and whether the testator knew, or did not know this to be the fact, it will belong to that heir to whom the Italian estate was bequeathed.

36. The Same, Disputations, Book VIII.

Where anyone appoints an heir as follows: "Let Titius be the heir to that portion of my estate to which I have appointed him by a codicil"; he will still be the heir, as having been appointed without any certain share, even though his share was not mentioned in the codicil.

37. Julianus, Digest, Book XXIX.

When a testator makes the following disposition in his will: "If my son should die during my lifetime, and the grandson by him should be born after my death, let him be my heir", there are two degrees of succession, for under no circumstances can both of them be admitted to share in the estate. From this it is evident that, if Titius should be substituted for the grandson, and the son should be the heir of his father, Titius cannot be the heir of his son, for the reason that he is substituted not in the first, but in the second degree.

(1) The following clause: "Let Publius, Marcus, Gaius, substitutes for one another, be my heirs", should be understood to mean that the testator seems to have appointed three heirs in a very few words, and to have substituted them for one another, just as if he had written, "Let So-and-So, So-and-So, and So-and-So be appointed my heirs, and be substituted".

(2) Where a man has three sons and wrote in his will: "Let my sons be my heirs, and let my son Publius be disinherited", he is considered to have only appointed two of his sons his heirs in the first part of his will.

38. The Same, Digest, Book XXX.

Where a testator bequeathed a slave named Pamphilus to his disinherited son, a minor, he can appoint the said slave heir to a portion of his estate in the same way, after the death of his son, just as anyone who bequeaths a slave to Sempronius, can appoint the said slave heir to a portion of his estate, after the death of Sempronius.

(1) When a slave is unconditionally appointed heir by a will, but is not directed to be free unless he pays ten aurei before the Kalends of December, and he subsequently obtains his freedom absolutely by a codicil, he will neither be free nor an heir, unless he pays the ten aurei before the Kalends of December; but if he should not do so, he will become free by reason of the codicil.

(2) If a testator should absolutely appoint a slave to be his heir, but should grant him his freedom under a condition and sell him while the condition was pending, the slave can enter upon the estate by order of his purchaser, because the appointment is valid, and the purchaser has a right to give the slave the order.

(3) When the slave has been alienated, after failure to comply with the condition has occurred, he cannot enter upon the estate by order of the purchaser, because at the time when he passed into the hands of the latter the appointment, having become void, was of no effect.

(4) Therefore, where a slave is directed to become free under a certain condition, and receives a legacy absolutely, and, while the condition is pending, he is either manumitted or alienated, he will be entitled to the legacy, or will obtain it for his master, even though, at the time of the death of the testator, the condition upon which his condition depended had not been fulfilled. If, however, he had been manumitted or alienated after the failure to comply with the condition had taken place, the legacy will become invalid.

(5) Where a vendor orders a slave, who has been appointed heir to a portion of the estate of the purchaser before his delivery to the latter, to accept the bequest, he will be required to return what he has received to the co-heir of the slave, because he should not profit by the right of the slave whom he sold. It is evident that he is not required to return everything which he received, but only the proportionate share which the slave had in common with his co-heir.

39. Marcianus, Rules, Book II.

That is to say, the half of the slave and the fourth of the estate, as Marcellus observes in the Thirtieth Book of the Digest of Julianus, and he holds that he ought to surrender this because the vendor could not recover it if the slave had been delivered before he entered upon his share of the estate, which opinion is correct.

40. Julianus, Digest, Book XXX.

The head of a family appointed Titius, whom he supposed to be freeborn, his heir, and substituted Sempronius for him, if he should not be his heir; and when Titius, being a slave, entered upon the estate by order of his master, it can be held that Sempronius should be admitted to a share of the estate; because where a man knowing someone to be a slave, appoints him his heir, giving him a substitute, as follows: "If Stichus should not be my heir, let Sempronius be my heir," it is understood that he means to say that if Stichus should not be the heir he cannot transfer the possession to anyone else.

But where anyone appoints as his heir a person whom he thinks to be free, in these terms, namely, "If he should not be my heir," he is considered to intend nothing more than that if he should acquire the estate for himself, or his condition should be changed, he cannot appoint another his heir. This addition has reference to those who are appointed heirs of the head of the family, and are afterwards reduced to slavery; therefore, in this instance, the estate will be divided into two parts, of which one-half will go to him who was the master of the slave appointed heir, and the other half to the substitute.

41. Pomponius, Various Passages, Book XII.

Tiberius Cæsar rendered this decision with reference to Parthenius, who had been appointed heir, as being freeborn, and who entered upon an estate while he was the slave of the Emperor; for, as Sextus Pomponius relates, the estate was divided between Tiberius and the person who had been substituted for Parthenius.

42. Julianus, Digest, Book LXIV.

A man who was not solvent directed by his will that two slaves named Apollonius should be free and his heirs. One of the said slaves having died before the will was opened, it cannot improperly be held that the survivor would become free and the sole and necessary heir of the testator. If, however, both of them were living, the appointment would be void in accordance with the Lex Ælia Sentia, which prohibits the appointment of more than one necessary heir:

43. Paulus, On the Law of Ælia Sentia, Book I.

For then they stand in one another's way.

44. Alfenus, Digest, Book V.

The head of a family appointed two heirs by his will, and ordered them to erect a monument for him within a certain time, and he afterwards inserted in his will: "Let him who does not do this be disinherited". One of the heirs refused to enter upon the estate, and the other, inasmuch as he himself had built the monument, asked for an opinion as to whether he would not be entitled to the estate, because his co-heir had refused to accept it. The answer was that no one can be bound for, or deprived of, an estate by the act of another; but wherever anyone has complied with the condition, he will become the heir to the estate, even though none of the other heirs have entered upon the same.

45. The Same, On the Epitomes of the Digest, by Paulus, Book II.

"If my mother, Mævia, and my daughter Fulvia, should be living, then let Lucius Titius be my heir." Servius was of the opinion that if the testator never should have a daughter and his mother should survive, Titius would still be his heir, because where anything that is impossible is inserted into a will it has no force.

46. Africanus, Questions, Book II.

A certain individual desiring to make a son under paternal control his heir, but in such a way that none of the estate would go to his father, stated his wishes to the son. The latter, fearing to offend his father, requested the testator to appoint him his heir under the condition that he should be emancipated by his father, and gained his consent to appoint one of his friends his heir, and in this way, the friend of the son who was unknown to the testator was appointed his testamentary heir, and nothing was required of him.

The question arose, if the said friend was unwilling to enter upon the estate, or if, after having entered upon it he should refuse to surrender it, whether it could be demanded of him as trustee, or whether any action could be brought against him, or whether one would lie against the father, or the son. The answer was that, even though it was evident that the appointed heir was merely a trustee, still, the estate could not be demanded of him unless it could be proved that the testator himself regarded him in that light.

If, however, the friend, having been requested by the son under paternal control, agreed to enter upon the estate, and to surrender it after he became his own master, it cannot improperly be held that an action on mandate could be brought, and that such an action would not lie in favor of the father, because good faith did not require that he should be given what the testator was unwilling should come into his hands. Nor will the common action on mandate be available to the son, but a prætorian action will be; as it has been settled that one should be granted to a party who while a son under paternal control, has become surety for someone, and after becoming his own master is obliged to make payment.

47. The Same, Questions, Book IV.

Where it is stated in a will, "Let Titius, not Seius, be my heir", the opinion was that Seius alone will be the heir. Where, however, the following words are used: "Let Titius be my heir, not let Seius be my heir," the same rule will apply.

(1) A certain testator appointed his heirs as follows: "Let Titia, my daughter, be my heir; and if any children are born to me during

my lifetime, or after my death, then let one or more of those of the male sex who are born inherit half and a quarter of my estate, and let one or more of those of the female sex who may be born be heirs to the fourth part of my estate"; a posthumous male child was born to the testator, and it was asked what portion of the estate he would inherit. The answer was that the estate should be divided into seven parts, and that the daughter would be entitled to four of them, and the posthumous child to three; for the reason that the entire estate was bequeathed to the daughter, and three-fourths of it to the posthumous child, so that the daughter was entitled to a fourth more than the posthumous child. Therefore, if a posthumous daughter has also been born, the first daughter should be entitled to as much as both the posthumous children together. Hence, in the case stated, as the entire estate was given to the daughter, and three-fourths of it to the posthumous child, it should be divided into twenty-one shares, so that the daughter might have twelve shares and the son nine.

(2) Where the following provision was made in a will: "Let Lucius Titius be the heir to six shares of my estate, Gaius Attius to one share, Mævius to one share, and Seius to two shares", the question arose as to what the law would be in this case. The answer was that the will should be interpreted in such a way that Lucius Titius should have one-sixth, and the others, as they had been appointed without definite shares, should be the heirs to the remainder of the estate, which should be divided so that Seius would receive five shares, and Attius and Mævius the remaining five between them.

48. Marcianus, Institutes, Book IV.

The appointment of an heir is legally made when expressed as follows: "Let Titius be the owner of my estate."

(1) The following appointment is valid: "Let my most unnatural son, who has deserved so ill of me, be my heir"; for he is absolutely appointed heir, although in terms of reproach, and all appointments of this kind are accepted.

(2) Sometimes a slave is not legally appointed an heir with the grant of his freedom by his mistress, as is indicated by a Constitution of the Divine Severus and Antoninus, which is in the following words: "It is reasonable that a slave accused of adultery should not, before judgment has been rendered, be legally enfranchised by the same woman with whom he was implicated, where she is accused of the same crime. Hence it follows that his appointment as an heir by his mistress is of no force and effect."

(3) Where the testator makes a false statement with reference to the father, the nationality, or any similar relationship of his heir, the appointment will be valid, provided the identity of the party designated is established.

49. Florentinus, Institutes, Book X.

If I should direct a slave belonging to another to be free and my heir, and the slave should afterwards become mine, neither of these provisions will be valid, for the reason that freedom cannot legally be granted to the slave of another.

(1) So far as foreign heirs are concerned, the rule must be observed that, where all have testamentary capacity, whether they themselves are appointed heirs, or others are appointed who are under their control, the appointment has reference to two different times, that of the execution of the will, in order that the appointment may be made, and that of the death of the testator, in order that it may take effect. Moreover, the execution of the instrument will have reference to the acceptance of the estate, whether the heir was appointed absolutely or under some condition; for, with regard to the right of the heir, special attention must be paid to the time when he acquires the estate. A change in the right of the heir, if it took place in the intermediate time, that is, during the interval between the execution of the will and the death of the testator or the fulfillment of the condition of the appointment, will not prejudice him, because, as I have stated, we must take into consideration these three different dates.

50. Ulpianus, Rules, Book VI.

If, during my lifetime, I should sell my slave, whom I had appointed my heir with the grant of his freedom, to a party who did not have testamentary capacity, and afterwards I should redeem said slave, he can be my heir under the will; nor will the intermediate time during which he was in the hands of another master annul the appointment, because it is certain that he has been mine at both times, namely that of the execution of the will, and that of death. Wherefore, if he had remained in the hands of his other master, the appointment would become void; or if he had been transferred to someone who had testamentary capacity, he would acquire my estate for the latter through entering upon it by his direction.

(1) If the condition upon which the appointment of an heir was dependent stated that some act was not to be performed, and it was impossible, the person designated will be the heir in accordance with the opinion of all authorities, just as if he had been unconditionally appointed.

(2) An estate is generally divided into twelve parts, which are included in the appellation as. These parts all have their own names from the uncia to the as, for example, the following: "The sixth, the fourth, the third, five-twelfths, half, seven-twelfths, two-thirds, three-fourths, five-sixths, eleven-twelfths, the as."

51. Marcianus, Rules, Book III.

Certain authorities held that the following appointment was not valid: "Let Stichus be free, and if he should become free, let him be my heir." The Divine Marcus stated in a Rescript that this appointment is valid, just as if the addition, "If he should become free", had not been made.

(1) Where anyone makes the following provisions in a will, namely: "If Stichus should still belong to me when I die, let him be free, and my heir." If Stichus is alienated, he cannot enter upon the estate by order of the purchaser, although, even if the testator had not declared it to be his intention, the slave cannot become free and the heir, unless he was under his control at the time of his death. If, however, he should manumit him during his lifetime, Celsus says in the Fifteenth Book of the Digest that Stichus will become his heir; for it is evident that the testator did not intend to exclude this case, nor are his words at all contradictory, for even though he is no longer his slave, he certainly is his freedman.

52. Paulus, Rules, Book II.

A slave belonging to the estate can be appointed an heir, provided that he had testamentary capacity with the deceased, even though this may not have been the case so far as the heir appointed by the testator was concerned.¹

¹ It must be borne in mind that the term testamenti factio, or testamentary capacity, as defined by the Roman jurists, not only referred to the legal power of a testator to make a bequest, but also to that of the beneficiary of the will to take under it. — ED.

53. Marcellus, Opinions.

Lucius Titius, after having appointed Seius and Sempronius equal heirs to his estate, and his other sons having been disinherited, substituted each of the said heirs for the other, and then bequeathed certain legacies, and manumitted certain slaves, and afterwards added the following: "Let Cornelius, Sallustius, and Varo be heirs to equal portions of my estate, and I substituted them for one another." 1 ask, what portion of the estate the first heirs, who are appointed for the whole of it, and what portion the last heirs should have? Marcellus answered that it was doubtful whether the testator intended to appoint Cornelius, Sallustius, and Varo his heirs in the first, second, and third degrees; but according to the terms of the will as set forth, it would appear that the estate was given to all of the heirs after the shares had been doubled.

54. Neratius, Parchments, Book I.

A father substituted his slave as heir to his minor son, and at the same time granted the latter his freedom, and the minor sold the said slave to Titius. Titius, who had already made one will, in a second ordered the slave to be free and his heir. The first will of Titius was broken because the said slave could be his heir; and as the first will was broken, it is sufficient that the one subsequently executed provided that the heir appointed by it should, in a certain contingency, succeed to the testator.

With reference to the effect of this appointment, the result will be that as long as the heir can succeed to the minor by reason of this substitution, he can not obtain his freedom and the estate under the will of Titius. If the heir should obtain control of himself, he would then obtain his freedom, and the estate by the terms of the will of Titius, just as if he had not been substituted for the minor; and if he should become the heir of the minor, there is the best reason to conclude that he could also be the heir of Titius, if he was willing.

55. Paulus, On the Lex Ælia Sentia, Book I.

If a man who is not solvent should, in the first place, appoint Stichus his heir with a grant of his freedom, and in the second, another slave, upon whom he conferred freedom by the terms of a trust, Neratius says that the slave appointed in the second place will be the heir, because he is not considered to have been manumitted for the purpose of defrauding creditors.

56. The Same, On Second Wills.

Anyone can appoint an heir as follows: "If I die in my seventieth year, let So-and-So be my heir." In this instance, the person executing the will should not be considered to be partly testate, but to have made the appointment under a condition.

57. The Same, On the Edict, Book LI.

If anyone who is insolvent appoints his slave, with the grant of his freedom, his heir, and substitutes a freeman for him, the substitute will be first entitled to the estate, for the Lex Ælia Sentia confirms the freedom of the slave only where he has not been appointed heir for the purpose of defrauding creditors, if there is no one else who can be an heir under a will.

58. The Same, On Vitellius, Book IV.

No one doubts that an heir can legally be appointed as follows: "Let him be my heir," where the party indicated is present.

(1) If a person is not a brother of the testator, but entertains fraternal affection for him, he can legally be appointed his heir, by mentioning his name with the appellation of brother.

59. Celsus, Digest, Book XVI.

A man who is free, but who is serving you as a slave, having been appointed an heir, enters upon the estate by your order. Trebatius says that he is the heir, but Labeo maintains that he is not, if he acted through necessity, and not, on the contrary, because he intended to bind himself.

(1) If anyone should appoint an heir as follows: "Let Titius be my heir to the portion in which he is a partner with me in the lease of the salt-pits," certain authorities hold that if this statement had been made by the testator after the entire property had been divided, even though Titius was a partner to a very large extent, the appointee would not be the heir; but if there was a certain share which had not been bequeathed, he would be the heir to it. This opinion is absurd and incorrect, for what prevents the testator from legally making Titius his heir for the fourth part, which perhaps was the amount in which he was interested as a partner, after the entire property had been disposed of under the ordinary division?

(2) "Let Titius be my heir, and let Seius and Mævius also be my heirs." It is true, as is held by Proculus, that the estate should be divided into two portions, one of which should be given to the two heirs who were appointed together.

(3) Where one of several heirs who has not been appointed conjointly with anyone else declines to take under the will, his share will accrue to all the others in proportion to their hereditary shares; and it does not make any difference whether any of them was appointed in the first place, or is substituted for someone else.

(4) Where a person appointed heir was a Roman citizen at the time that the will was executed, and was afterwards interdicted from water and fire, he will be the heir if he should return between the time of his sentence and that of the death of the testator, or if he was appointed an heir under a certain condition, and returns at the time that the condition was fulfilled. The same rule also applies to legacies, and the prætorian possession of estates.

(5) "Let Titius be my heir to half of my estate, Seius to a quarter, and Titius to the other quarter if he ascends to the Capitol." If he conducts himself as heir before he ascends to the Capitol, he will be entitled to half of the estate; if he should do so afterwards, he will be heir to a quarter of the same; for it will not be necessary for him to signify his acceptance, since he is already an heir.

(6) Where the following is stated in a will: "Let Titius be my heir to a third part of my estate, and Mævius be my heir to another third, and let Titius be my heir to the remaining third, if a ship should arrive from Asia within three months." Let us see whether Titius will not immediately become the heir to half of my estate, for two heirs have been appointed. Titius will either be an heir to one-half of it, or to two-thirds, so that a sixth of the estate will be in abeyance, and if the condition should be fulfilled, Titius will be the heir to two-thirds of the estate, but if it should not be fulfilled, the sixth will accrue to Mævius.

If, however, Titius should die before the condition is fulfilled, and it should be fulfilled afterwards, the sixth of the estate which remained in abeyance will not accrue to the heir of Titius, but to Mævius; for Titius died when it was still doubtful as to whether he or Mævius would be entitled to the said sixth, since it could not be understood to have been given to him who was no longer in existence at the time it should have been allotted.

(7) If Attius should appoint Titius, Mævius, and Seius heirs to equal portions of his estate, and, in the meantime, Titius was the only one who accepted, and he appointed Seius his heir, Seius would enter upon the estate of Titius, and could either accept or decline that of Attius; but before he accepted or rejected the estate of Attius, he would still be the heir to half of it. If Seius should enter upon the estate of Attius, Titius would only be the heir to one-third of the same, and through inheritance only a third of the estate of Titius would come into the hands of Seius, but he would be entitled to another third by virtue of his appointment. But what if Titius and Seius, having been appointed heirs of Attius, Titius should enter upon the estate, and Seius should become the heir of Titius, could he, or could he not refuse the estate of Attius, or would he necessarily be the heir to the entire estate? As no one else was appointed but the person who was already the heir to a certain portion of the estate, it is just the same as if he had been appointed sole heir by Titius.

60. Celsus, Digest, Book XXIX.

A man who was insolvent appointed one slave in the first place, and another in the second place, his heirs. He alone who was appointed in the first place is entitled to the estate, for by the Lex Ælia Sentia, it is provided that where two or more are designated in the same way, the first one mentioned becomes the heir.

61. Modestinus, Opinions, Book VIII.

A testator who wished to disinherit his daughter inserted the following clause into his will: "As for you, my daughter, I have disinherited you because I desired that you should be content with your dowry." I ask whether she was legally disinherited. Modestinus answered that there was nothing in the case stated which would prevent her from being disinherited by the will of the testator.

62. The Same, Pandects, Book II.

It is an act of kindness for an heir to be appointed for the time that he can obtain the benefit of the inheritance, as for instance: "Let Lucius Titius be my heir for the time when he can obtain my estate." The same rule applies to legacies.

(1) Whenever it is not apparent who the appointed heir is, the appointment will not be valid; and this may happen where the testator had several friends of the same name, and in designating the one whom he appointed he used only a single name; unless it is disclosed by the clearest evidence whom the testator had in his mind.

63. Javolenus, On Cassius, Book VI.

Where heirs are appointed without the designation of their shares, it is important to ascertain whether they are appointed conjointly, or separately; because if any one of those appointed conjointly should die, his share will not belong to all the heirs, but only to the remaining ones who are appointed along with him; but where one of those appointed separately dies, his share will belong to all of the heirs appointed under the will.

64. The Same, Epistles, Book VII.

Labeo has frequently stated that the slave of a person born after my death can be appointed my heir. The truth of this is readily established, for the reason that a slave forming part of an estate can be appointed an heir before the estate is entered upon, even though at the time of the execution of the will he did not belong to anyone.

65. The Same, Epistles, Book XII.

An estate cannot, under any circumstances, belong to Statius Primus, since he has not been appointed heir, and it would be of no benefit to him whatever if he were charged with the payment of a legacy, or if the freedman of the deceased was entrusted to his care by testamentary disposition; for he will remain a slave for all time, if he should not be manumitted.

66. Pomponii, On Quintus Mucius, Book I.

If anyone should appoint heirs as follows: "Let Titius be my heir, and let Gaius and Mævius be heirs to equal portions of my estate"; although the word "and" is a conjunction; still, if either of the parties should die, his share will not accrue to the other alone, but to all his co-heirs in proportion to their interest in the estate; because it is held that the testator did not mean to unite the two heirs, but intended to mention them more particularly.

67. The Same, On Quintus Mucius, Book II.

Where the following was inserted in a will: "Let Tithasus be my heir if he ascends to the Capitol; let Tithasus be my heir"; the second clause will have the greater effect, for it is more complete than the first one.

68. The Same, On Quintus Mucius, Book VII.

A certain man appointed Sempronius his heir under the following condition: "If Titius should ascend to the Capitol." Even though Sempronius could not become the heir unless Titius should ascend to the Capitol, and this absolutely depends upon the inclination of Titius, for the reason that the desire of Titius is not expressly referred to in the will the appointment will be valid. But if the testator had said, "If Titius is willing, let Sempronius be my heir"; the appointment would be void. For certain things which are mentioned in wills have no force or effect, if, when they are obscured by words, they have the same signification as if they had been expressed, and have a certain amount of weight; for instance, the disinheritance of a son will be valid where there is an heir, and still no one doubts that if a testator should disinherit his son as follows: "Let Titius be my heir, and when he is my heir, let my son be disinherited"; that a disinheritance of this kind if of no force whatever.

69. Proculus, Epistles, Book II.

"Let Cornelius or Mævius, whichever one of them may desire to have my estate, be my heir." Trebatius holds that neither of them is the heir, but Cartilius maintains that both of them are heirs. Whose opinion do you adopt? Proculus, I agree with Cartilius, and think that the addition, "Whichever one of them may desire to have my estate", is superfluous; for if this addition had not been made, the result would be that whichever of them wished to take under the will would be the heir, and that the one who was not willing would not be.

If, however, these parties were included in the number of necessary heirs, then this clause would not have been added in vain; and it would not only prevent the appearance, but would also have the effect of a condition; still, I would say that both of them would be heirs, if they desired to be.

70. Papinianus, Opinions, Book VI.

When the Senate disapproved of testamentary appointments of heirs which were obtained by intrigue, it did not include such as were dictated by mutual affection, but those in which a condition was imposed for the purpose of secretly obtaining an advantage through the will of another.

71. Paulus, On the Lex Julia et Papia, Book V.

The following appointment does not come under the head of such as are corruptly sought after; for instance, where a testator appoints an heir as follows: "Let Mævius be my heir, to the same portion to which Titius has appointed me to his heir"; for the reason that the appointment has reference to the past and not to the future.

(1) It may be asked, however, whether the same rule established by the Senate should be observed where the testator attempts to secure an estate for some other person; for instance, if he should say, "Let Titius be my heir, if he can show and prove that Mævius had been appointed his heir by his will". There is no doubt that this comes within the terms of the Decree of the Senate.

72. Terentius Clemens, On the Lex Julia et Papia, Book IV.

Where anyone who has been designated an heir to the entire estate is for some legal reason incapable of acquiring it, and was appointed by a party who died insolvent, Julianus is of the opinion that he can inherit the whole estate, for the law is not applicable to the estate of one who was insolvent.

73. Gaius, On the Lex Julia et Papia, Book XIII.

Where an heir is appointed under a condition, and we substitute another for him, unless, when doing so, we repeat the same condition, the substitution of the heir will be understood to be absolute.

74. Licinius Rufinus, Rules, Book II.

If anyone should appoint an heir as follows: "Let him be my heir, with the exception of the land and the usufruct", according to the Civil Law, this will be just as if the heir was appointed without the property; and this rule was established by the authority of Gaius Aquilius.

75. Papinianus, Questions, Book XII.

Where a son is substituted for an heir who has been passed over, he will be entitled to the estate by virtue of the will, and not on account of his father dying intestate; for if anyone else had been substituted, and the son had been disinherited, the will would begin to be operative from the degree in which the son was disinherited.

76. The Same, Questions, Book XV.

Where a slave is given by a husband to his wife, mortis causa, he remains the property of the husband, as was held by Julianus. Moreover, if he receives his freedom and the estate at the same time, he will be the necessary heir of the husband, as nothing can be left to him without granting him his freedom.

77. The Same, Questions, Book XVII.

His entire estate not having been distributed, a testator inserted in his will: "Let him be the heir whom I shall appoint by my codicil." He appointed Titius his heir by his codicil. This appointment is valid, for although an estate cannot be bequeathed by a codicil; still, in this instance, it is held to have been left by the will. The heir, however, will only be entitled to that portion of the estate which has not yet been disposed of.

78. The Same, Opinions, Book VI.

A man who was not in the army appointed his freedman heir to certain property derived from his mother which he possessed in Pannonia, and appointed Titius heir to his paternal estate, which he held in Syria. It is established by law that each of the heirs would be entitled to half of his estate; but the court having jurisdiction of the distribution of the same followed the last will of the testator, and adjudged to each of the heirs what he had left them, after having required them to furnish security against any proceedings which might be instituted under the Falcidian Law; that is to say, that they should reserve the right to retain a fourth of the bequest, so that whatever each of them might have to pay could be set off by means of an exception on the ground of bad faith.

(1) Lucius Titius and Publius Mævius, having been appointed heirs, the first to two shares of an estate, and the second to three shares of the same, I gave it as my opinion that the intention was that the estate should be divided into nine parts, for the reason that the value of the two shares had been deducted by the testator from the value of the other three. In this same manner, the ancient authorities decided that where a sum of money was bequeathed to Titius, and the kind of coin was not specified, this could be ascertained by an examination of the other legacies bequeathed by the testator.

(2) Where children were appointed heirs to equal portions of an estate, and afterwards the son of a brother was appointed for two shares, it was decided that the intention was that the ordinary division of the estate should prevail; and accordingly that the children should receive ten shares of the same.

A bequest is understood to have been made with a view to doubling the number of shares where the estate having been specifically bequeathed, or the twelve shares distributed, the remaining share can not be found. It makes no difference, however, in what place an heir has been appointed without a share, provided he appears to have received the remainder of the estate.

(3) Seius appointed Mævius heir to a portion of his estate, which he could take according to law, and appointed Titius heir to the remainder. If Mævius could take the entire estate, Titius, who was added to, or substituted for him, would not be an heir.

79. The Same, Definitions, Book I.

If no mention was made of the remainder, and the number of the shares was doubled, Mævius would only be entitled to as much as Titius would have been entitled to in the first place.

80. The Same, Opinions, Book VI.

But if Mævius was not capable of taking under the will the substitute would be entitled to the entire estate.

81. Paulus, Questions, Book IX.

Clemens Patronus provided by his will, "that if a son should be born to him, he should be his heir; if two sons should be born to him they should be his heirs to equal portions of his estate; if two daughters were born to him, the same division should be made; if a son and daughter should be born, two-thirds of the estate should be given to the son, and one-third to the daughter". Two sons and a daughter having been born, the question arose how we should make the division of the estate in the case stated? Since the sons inherit equally, each of them should have twice as much as their sister; therefore the estate should be divided into five parts, out of which four should be given to the male heirs, and one to the female heir.

(1) A testator inserted the following into his will: "Let Sempronius be my heir to the share to which I was appointed heir by Titius, and which I shall apply for in person." This appointment does not come under the head of seeking after an estate; for it is evident that the appointment will be void if the will of Titius is not offered by the testator himself, all suspicion of the appointment for interested purposes having been removed.

82. Scævola, Questions, Book XV.

Where a testator appoints an heir as follows: "If my lawful heir refuses to accept my estate", I think the condition of the will is not fulfilled, if the heir should claim the estate.

83. The Same, Questions, Book XVIII.

If another law than that of Ælia entia, or a decree of the Senate, or even an Imperial Constitution prevents the grant of freedom to a slave, the latter cannot become a necessary heir, even though the testator may be insolvent.

(1) In the time of the Divine Hadrian, the Senate decreed that if a testator was not solvent when he died, and granted freedom to two or more slaves, and directed his estate to be given to them, if the appointed heir should say that he suspects that the estate would impose burdens upon him, he will be forced to accept it, in order that the slave first mentioned in the will may receive his freedom, and the estate be surrendered to him. The same rule must be observed in the case of those to whom freedom has been granted by virtue of a trust. Therefore, if the heir appointed in the first place wishes to enter upon the estate, no difficulty will arise; but if those slaves mentioned afterwards allege that they also should be free, and demand the surrender of the estate to them, an investigation must be made by the Prætor as to the solvency of the estate, and he must cause it to be delivered to all of said slaves who will become free. Where, however, the first slave is absent, and the one afterwards mentioned wishes to enter upon the estate, he shall not be heard, because if the first desires the estate to be given to him, he must be preferred, and the second must remain a slave.

84. Paulus, Questions, Book XXIII.

Where freedom was granted to a slave by virtue of a trust, and the heir appointed the same slave his own heir with the grant of his freedom, the question arose whether the said slave became a necessary heir. It is more just, and more consonant with the principles of equity, that he should not become a necessary heir, for he who could compel his freedom to be granted him even if the deceased had been unwilling when he ordered him to be free does not seem to have obtained great favor from the deceased, and, indeed, he is regarded rather to have received the freedom to which he was entitled, rather than to have had a favor conferred upon him.

(1) The same principle is applicable to the case of a slave whom a testator purchased under the condition that he would manumit him, if he should be appointed heir; for leaving the favor of the testator out of consideration, he can obtain his freedom in accordance with the Constitution of the Divine Marcus.

(2) The same rule applies to a slave who was purchased by another with his own money, for he also can compel the same testator to grant him his freedom.

85. Scævola, Opinions, Book II.

Lucius Titius, who had a brother, made the following provision in his will: "Let my brother Titius be the heir to my entire estate. If Titius is unwilling to be my heir, or (which is something that I do not wish to happen) if he should die before entering upon my estate, or should not have a son or daughter born to him, then let Stichus and Pamphilus, my slaves, be free, and heirs to equal portions of my estate." I ask, if Titius should accept the estate, and should have no children at that time, whether Stichus and Pamphilus can become free and heirs, by virtue of the substitution. I ask also, if they can be neither free nor heirs under the said substitution, whether they can be held to be co-heirs to a portion of the estate. The answer was that it is clear that it was not the intention of the testator to appoint any co-heir with his brother, whom he had evidently designated as heir to his entire estate. Hence if the brother enters upon the estate, Stichus and Pamphilus will not be heirs, for the reason that the testator did not wish them to be, if his brother should die and leave children before accepting it. The wise disposition of the testator must be noted, as he not only gave preference to his brother over the substitutes, but also to his brother's children.

86. Marcianus, Trusts, Book VII.

There is no longer any room for doubt that heirs can be appointed under the following condition, namely: "If they wish to be heirs, and if they do not wish to be, another, who seems to be acceptable, shall be substituted for them." In this instance, it has been denied that it is necessary to disinherit a son under the contrary condition; in the first place, because this is only required when the condition is in his •power, or he is the heir of his father, and its fulfillment is dependent upon some outside influence and must be awaited; second, because no matter what kind of a condition has been imposed, the son should be disinherited under the contrary condition, and in the case stated disinheritance cannot possibly take place; and certainly if it were expressed in words it would be absurd, for what other terms can be conceived which would be contrary to this condition: "If he is willing, let him be my heir", than these: "If he is unwilling to be my heir, let him be disinherited"? It is evident to every one that such a provision is ridiculous.

(1) It does not seem to be foreign to the subject to add here, by way of supplement, that when heirs are appointed under the condition, "If they wish to be heirs", they should not be permitted to reject the estate for the reason that where they are appointed under this condition they are not necessary heirs, but become such voluntarily. Nor are they entitled to the right to reject the estate under other conditions which they are able to comply with, and have fulfilled.

87. Hermogenianus, Epitomes of Law, Book III.

Where an heir has been appointed first in order to half of an estate, and a second to two-thirds, and a third to the remaining portion, or if he has been appointed without mentioning what he shall receive, the said third heir will be entitled to five-twelfths of the estate; for if it is divided into twenty-four parts, the rules of calculation will give him ten twenty-fourths of the same, which is equivalent to five shares.

88. Gaius, On Cases.

Where a testator, who is insolvent, happens to have an heir in addition to a slave who has been appointed his heir with the grant of his freedom, for instance, where the testator in appointing the slave his heir with the grant of his freedom added: "If Stichus should be my heir, then let Titius also be my heir"; for Titius cannot be the heir before Stichus becomes such under the will, and as the slave has at once become the heir, he who was added cannot share in the estate; so that where the slave becomes the heir, the other ceases to be one.

89. Paulus, Manuals, Book II.

Where a partner is appointed sole heir to an estate, and the legacy is bequeathed to a slave held in common by both partners, without the grant of his freedom, this legacy is void. It is evident that a legacy can legally be bequeathed under a condition, and without the grant of freedom, since a bequest can be made legally to one's own slave, and the heir be charged with the execution of it under a condition. Wherefore, where a partner is appointed an heir, a slave can be also appointed his co-heir, without the grant of his freedom, as, for instance, where he belongs to another; because a slave can be appointed an heir after his master has already been appointed.

90. Tryphoninus, Disputations, Book XXI.

Where a slave is appointed an heir with the grant of his freedom, but conditionally, by the will of his master; and while the condition is still pending, he discovers the murderers of his master, and the Prætor decides that he deserves his freedom, even though the condition of the will should afterwards be complied with, the said slave will become free, for another reason, that is to say, he will be liberated by way of reward, and not on account of the will. Hence, he is not the necessary heir of his master, although he can enter upon the estate if he desires to do so.

91. Paulus, Decisions, Book V.

It is odious for anyone to appoint the Emperor his heir in order to carry on a lawsuit, for it is not proper to make use of the Imperial authority for the purpose of encouraging vexatious litigation.

92. The Same, On the First of the Six Books Relating to the Imperial Decisions; or the Second Book of the Decrees.

Pactumeius Androsthenes appointed Pactumeia Magna, the daughter of Pactumeius Magnus, heir to his entire estate, and substituted her father for her. Pactumeius Magnus, having been killed, and the rumor having been spread that his daughter was also dead, the testator changed his will, and appointed Novius Rufus his heir, with this preamble: "Let Novius Rufus be my heir, for the reason that I have not been able to retain those heirs whom I desired to have." Pactumeia Magna applied to our Emperors, and the case having been heard, it was decided that she was entitled to relief, as this was in compliance with the wishes of the testator; and while there was a certain reason for the appointment of the other heir, still, as it was ill founded, it could not legally be interposed. Therefore, the decision was that the estate belonged to Magna, but that she would be compelled to pay the legacies bequeathed by the second will, just as if she herself had been appointed heir by the said will.¹

¹ It was a fundamental rule that the Prætor could not appoint an heir. This, however, he readily evaded by granting a claimant possession of the estate, which practically conferred upon him all the rights of inheritance. — ED.

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TITLE VI. CONCERNING ORDINARY AND PUPILLARY SUBSTITUTIONS.

1. Modestinus, Pandects, Book II.

Heirs are said to be either appointed or substituted. Those who are appointed belong to the first degree, those who are substituted to the second, or the third degree.

(1) There are two kinds of substitutions, the simple, as, for example: "Let Lucius Titius be my heir, and if Lucius Titius should not be my heir, then let Seius be my heir; if he should not be my heir, or should be and die before arriving at puberty, then let Gaius Seius be my heir."

(2) We can substitute an heir for others who have been appointed, as well as for those who have disinherited; and we can substitute an heir who has already been appointed, or anyone else.

(3) A father cannot substitute an heir for his children, unless he appoints one for himself; for without the appointment of an heir no provision of a will is valid.

2. Ulpianus, On Sabinus, Book VI.

It was introduced by custom, that if anyone made a will for his children under puberty, it would only be valid until his sons attained the age of fourteen years, and his daughters that of twelve. This must, however, be understood to apply where the children are under his control. We cannot substitute other heirs for emancipated children, but it is clear that we can do so for posthumous children, as we also can grandchildren and their successors, if they are not liable to again come under the authority of their father.

If, however, they precede their parents, they can only be substituted for them where they have been appointed heirs or disinherited; for, according to the Lex Velleia they do not break the will of their grandfather by the succession, since if the principal will is broken, the pupillary one cannot stand. But if anyone appoints as his heir a child who has not yet reached puberty, he can appoint a substitute for him, provided he adopted him instead of his grandson, or arrogated him, and his son precedes him.

(1) Where anyone makes a will for the benefit of a child who has not reached puberty, he must also make one for himself. He cannot, however, make a will for his son alone, unless he happens to be a soldier; therefore, unless he also executes one for himself, it will not be valid, and unless the estate of the father is entered upon, the pupillary will will be of no effect. It is evident that if the estate is not affected under the principal will, it will come into possession of the heir ab intestato, and it must be held that the pupillary substitution will be preserved.

(2) Sometimes, in order to establish the validity of a pupillary substitution, the appointed heir can be compelled to enter upon the estate, or this can be done to uphold a trust in the second will; for instance, where the minor has already died. But if he is still living, Julianus thinks that he is despicable who solicits an estate during the lifetime of the owner.

(3) I think that where a minor under the age of twenty-five years is granted restitution because of having entered upon an estate, that this will confirm the second will, and enable the Prætor to grant an equitable action to the substitute.

(4) The testator should first mention his own heir, and then he can appoint a substitute for his son, and he must not reverse this order of appointment. Julianus also thinks that he should first appoint an heir for himself, and afterwards one for his son. If, however, he should first make a will for his son, and afterwards one for himself, his acts will not be valid. This opinion is adopted in a Rescript of our Emperor addressed to Virius Luppus, Governor of Britain, for it is clear that there is but one will, although there are two estates, so that, where anyone appoints necessary heirs for himself, he also appoints them for his son, and a man can substitute his posthumous child for his son who has not yet reached the age of puberty.

(5) Where a testator stated in his will: "If my son should die before reaching the age of fourteen years, let Seius be my heir", and then added, "Let my son be my heir"; the substitution will be valid, although he inserted the provision in a reversed order.

(6) But where he said: "If my son should not be my heir, let Seius be my heir, let my son be my heir"; Seius is appointed heir in the second degree; and if his son should be his heir, there is no doubt that Seius will be the heir of the son; but if the son becomes the heir and dies before attaining the age of puberty; Seius is held to have been properly admitted to the succession, as not the order observed in the will, but the order of the succession must be considered.

(7) Therefore, when it was said that a substitution could be made for each one of the children, this was added in order to show that the father should not begin with the will of a son, who has not yet reached the age of puberty.

3. Modestinius, Differences, Book I.

Where a father made a substitution for his son who had not yet arrived at puberty, as follows: "Whoever becomes my heir, let him also be the heir of my son who has not yet arrived at the age of puberty"; it was decided that only such heirs as had been mentioned with reference to this substitution in the will should be admitted to share in the estate. Hence a master who, by means of his slave, had acquired a portion of the estate, could not become the heir by virtue of his substitution for a child who had not attained the age of puberty, if the slave was no longer under his control.

4. The Same, Concerning Inventions.

At the present time, we are governed by the Constitution of the Divine Marcus and Verus, which provides that whenever a father makes a substitution for his child under the age of puberty instead of another, where there are two, he will be understood to have made the substitution in both instances; that is, where his son was not his heir, or was his heir but died before attaining the age of puberty.

(1) It is held that this privilege should also be extended to the third kind of substitution. For if a father should appoint, as his heirs, his two sons who are under the age of puberty, he substitutes them for one another, and the Divine Pius decreed that it should be held that the substitution was reciprocal in both cases.

(2) Where, however, two children, one of whom has reached the age of puberty, and the other has not, are reciprocally substituted by the ordinary formula: "I substitute them each for the other"; the Emperors Severus and Antoninus decided that in this instance only the ordinary substitution should be held to have been made; for it seemed to have been inconsistent that the double substitution should take place with reference to one of the heirs, but that, so far as the other was concerned, only the ordinary substitution should be provided; therefore, in this case, the father ought to have made a substitution for each one separately, so that if the child who had arrived at puberty should not be his heir, the one who had not reached puberty should be substituted for him; but if the one who had not reached puberty should be his heir, and die before attaining that age, his brother might be substituted for the share of his co-heir. Under these circumstances, the brother will be held to have been substituted in both ways; as, if he were not substituted in the ordinary way for the heir who had not arrived at puberty, the question would arise as to the intention of the father, and whether he was understood to have had in mind but one substitution for both his children, since one substitution is only understood to be included in the other, where the wishes of the parent are not opposed; or if, for the particular purpose of avoiding a dispute, he should, in any event, substitute the brother for the child who had not arrived at puberty, as follows: "Whether he does not become my heir, or whether he does, but dies under the age of puberty."

5. Gaius, On the Lex Julia et Papia, Book III.

Where several heirs mentioned in a will were substituted for someone, as follows: "If he should not be my heir, let whoever will be inherit his share of my estate", it is settled that each heir will be called to the share of the heir of him who is lacking; and it does not make any difference whether he who becomes heir to the larger portion of the estate does so by virtue of his appointment, or whether he has obtained it through some law by which he was granted the share of another.

6. Terentius Clemens, On the Lex Julia et Papia, Book IV.

Where anyone who is not capable of acquiring the entire estate of the testator is substituted for the son of the latter who has not yet reached the age of puberty, he can acquire the entire estate for the reason that he obtains it through the minor. Our Julianus holds that this opinion should be interpreted in such a way that the party in question will not be entitled to all the property of the testator. If, however, anything should subsequently be acquired by the minor from another source, or if he should be disinherited, the substitute will not be prevented from acquiring the estate, since he obtains it from the minor.

7. Papinianus, Opinions, Book VI.

In accordance with the terms of the Civil Law, it is not permitted to make a substitution after the fourteenth year. A party who cannot be admitted as a substitute cannot be admitted as an heir, lest, against the will of the testator, the son may in the meantime fail to obtain what his father gave him by his will.

8. Ulpianus, On Sabinus, Book IV.

Where a father appoints a substitute for his children who have not reached the age of puberty, he usually does so absolutely, or under some condition. He does so absolutely when he says: "If my son should die before reaching the age of puberty, let Seius be my heir." Either Seius is here appointed an heir, and is appointed a substitute for a minor without any condition, or he is merely substituted. But if the testator substitutes an heir who has been appointed, that is to say as follows, "If he should be my heir"; he does not become the heir by reason of a substitution, unless he was the heir by appointment. Such a substitution resembles the following one, namely, "Whoever will have been my heir in accordance with what has been previously stated"; for this substitution contains a condition similar to the former one.

(1) These words: "Let him be heir to my son under the age of puberty who would have been my own heir," have the following meaning, that not every one who might be the heir of the father can be held to be substituted, but only the testamentary appointee. Therefore, neither a father who becomes an heir through his son, nor a master who becomes one through his slave, is admitted to the substitution; nor can the heir of the heir be admitted, because these parties are not entitled to the estate through the wish of the testator. Substitutes have a right to the same shares to which they would be entitled out of the estate of the head of the family himself.

9. Labeo, Abridgments of the Last Works of Javolenus, Book I.

Where a father substituted for his son under the age of puberty the same persons whom he appointed his own heirs, and you in addition, you will be entitled to half of the estate of the son, and the other heirs of the father will be entitled to the other half, so that the undivided half will belong to you, and a division of the remaining half will be made in proportion to the shares of the estate of their father to which the others would have been entitled by inheritance.

10. Ulpianus, On Sabinus, Book IV.

Where, however, several parties have been substituted as follows: "Whoever shall be my heir in accordance with what has been previously stated", and then some of them die after having become the heirs of their father, the surviving heirs, in accordance with the substitution, can only take that portion of the estate to which they are entitled pro rata by their appointment, and no one will be entitled to it as a representative of the deceased heirs.

(1) Those whom I can appoint my own necessary heirs, I can also substitute as the heirs of my son, my slave, or my brother, even though they are not yet born. Therefore, a posthumous child can be the necessary heir of his brother.

(2) A certain man was substituted by the testator for a child not yet arrived at puberty, and who had been appointed heir to an entire estate. If the son becomes the heir of his father, can the substitute separate the two estates, so that he may take that of the son, but not that of the father? He cannot do so; for he must either accept or reject the estate of both, because they are undivided.

(3) The same rule applies if a father should appoint me heir to one portion of his estate, and his son to another portion, and I should reject the bequest of the father, for I cannot have that of the son.

(4) Where anyone is appointed sole heir to an estate, and, having been substituted for a disinherited son, rejects the estate of the father, as he was not substituted, he cannot acquire the estate of the son; for the will of the son will not be valid, unless he accepted the estate of his father, since, in order to establish the validity of the substitution, the will must have been so drawn that the estate could be entered upon by the heir.

(5) Whatever comes into the hands of the pupillary substitute after the death of the testator belongs to him, for the testator did not substitute him for his own estate, but for that of the minor; as anyone can make a substitution for a disinherited son, unless you give as an example the case of a soldier who substitutes an heir for his son, with the intention that only such property as would have come into the hands of the son will belong to the substitute.

(6) We also hold that, in the case of a minor who has been arrogated, the property to which he would have been entitled if this had not taken place will not belong to his substitute, but that alone which the arrogator himself gave him; unless we make the distinction that the fourth part which, in accordance with the terms of the Rescript of the Divine Pius, he is obliged to leave him, cannot be acquired by the substitute.

Scævola, however, holds in the Tenth Book of Questions that the arrogator should be permitted to do this, which opinion is reasonable. I, however, go still further, and think that the substitute will be entitled to any property which has been acquired by reason of the adoption, as for instance, where a friend or relative of the arrogator left anything to the heir.

(7) No one who is appointed, and at the same time substituted for himself, will gain anything without a change of parties; but this occurs when there is only one degree. Where, however, there are two degrees, it can be said that the substitution will be valid, as Julianus holds in the Thirtieth Book of the Digest. Should the testator make the appointment of an heir, when Titius is his co-heir, in the following terms: "If Stichus should not be my heir, let him be free and be my heir", the substitution will not be valid. But if he should say, "If Titius should not be my heir, then let Stichus be free, and be heir to his share", there are two degrees of substitution, and therefore if Titius should reject his portion of the estate, Stichus will become free and the heir of the testator.

11. Paulus, On Sabinus, Book I.

Where the party who is appointed heir is substituted for a son, he will not be prevented from taking under the substitution, if he can do so after the death of the son. Again, on the other hand, he can be held liable to certain penalties under the will of the minor, although he may not be subject to any under that of the father.

12. Papinianus, Questions, Book III.

If a son who has been appointed the heir of his father, and afterwards becomes the heir of his brother through substitution, rejects the estate of his father, but prefers to retain that of his brother, he should be heard. For I think it is more equitable that the Prætor should permit the separation of the estates of the brother and the father; for he has the right to decide that children shall be freed from the burdens of an estate which they have not voluntarily assumed, but no right excludes them from an estate against their will; and especially when, leaving the substitution out of consideration, the substituted brother would be entitled to the estate. Hence, only the legacies should be paid in accordance with the substitution, and the rule of division established by the Falcidian Law should be followed, not with reference to the estate of the father, as is customary, but with respect to that of the child who had not yet arrived at puberty.

13. Pomponius, On Sabinus, Book XIII.

It makes no difference in what degree an heir may be substituted for children.

14. The Same, On Sabinus, Book II.

In a pupillary substitution, even though a longer time may have been fixed, the substitution will, nevertheless, terminate at the age of puberty.

15. Papinianus, Opinions, Book VI.

A centurion directly substituted an heir for his son: "If he should die without issue before reaching the age of twenty-five years." The substitution for the son would acquire his estate by Common Law if the latter should die before his fourteenth year; after that age, however, he could not, under military privilege, acquire anything more than the estate of the father and the profits derived from the same found among the effects of the son.

16. Pomponius, On Sabinus, Book III.

If anyone should bequeath a slave by his will, and afterwards order a substitute, whom he had appointed for his son, to liberate said slave, the latter will become free, just as if the bequest of the legacy was annulled; for so far as the legacy is concerned, what was last mentioned in these wills must be considered, as is done in the case of the same will, or where codicils have been confirmed by a will.

(1) Where, after a testator has executed his will, he afterwards makes one for his son in the presence of competent witnesses, this act will, nevertheless, be valid, and the will of the father will stand; but if the father should make a will for both himself and his son, and afterwards one only for himself, both the will and the substitution first made will be broken. Where, however, the father made the second will and appointed his heir, as follows: "If his son should die in his lifetime", it can then be said that the first will is not broken, for the reason that the second, in which the son was passed over, is void.

17. The Same, On Sabinus, Book IV.

Anyone can be substituted for a child, even though he should be born after the death of the child for whom he was substituted as heir.

18. Ulpianus, On Sabinus, Book XVII.

If a slave, owned in common with another, is substituted for a son not yet arrived at puberty, together with the grant of his freedom, and he should be purchased by the testator, he will become a necessary heir of the minor; but if he should be purchased by the latter, he will not be his necessary, but his voluntary heir; as Julianus states in the Thirtieth Book of the Digest. But whether he was purchased by the father or the minor, equity suggests that he himself, if he tenders the price of his master's share, can obtain both his freedom and the estate.

(1) Where a slave is bequeathed to Titius, he can be substituted for the minor son of the testator with the grant of his freedom; just as where he is bequeathed and appointed heir, and the legacy will vanish when the condition on which the substitution depends is complied with.

19. Julianus, Digest, Book XIII.

The same rule applies where a slave is substituted after the death of a legatee.

20. Ulpianus, On Sabinus, Book XVI.

The will of the father and that of the son are considered as one, in accordance with the Prætorian law; for (as Marcellus states in the Ninth Book of the Digest), it will suffice for the will of the father to be sealed, if that of the son is also sealed; and the seven seals of the witnesses attached to the father's testament will be sufficient.

(1) Where a father makes a written will for himself and an oral will for his son, or vice versa, both will be valid.

21. The Same, On the Edict, Book XLI.

If a testator should make a substitution as follows: "If my son dies before reaching his tenth year, let Seius be my heir"; and the son should die after his tenth year, but before reaching his fourteenth, the better opinion is that the substitute cannot demand possession of the estate, for he is not held to have been appointed a substitute in this case.

22. Gaius, On the Provincial Edict, Book XVII.

Where a son demands possession of the estate of his father in opposition to the terms of the will of the latter, and he has been substituted by the said will for his brother under the age of puberty, he will be excluded from the substitution.

23. Papinianus, Opinions, Book VI.

Where a testator appointed several heirs, and said: "I substitute them all reciprocally", and, after his death, the estate was entered upon by some of them, one of the heirs being dead, if the condition upon which the substitution depended is fulfilled, and another heir rejects his share, all of it will belong to the survivors, because they are held to have been substituted for one another with reference to the entire estate. If, however, the testator should appoint heirs and say: "I substitute them reciprocally", those will be held to have been substituted who accept the estate.

24. Ulpianus, Disputations, Book IV.

Where several heirs are appointed for different shares of an estate, and all of them are substituted for one another, they should generally be considered as substituted for the same shares to which they were appointed heirs; for example, if one was appointed heir to one-twelfth, another to one-eighth, and a third to a quarter of the estate, and the latter should reject his share, the quarter shall be divided into nine parts, to eight of which he will be entitled who was appointed heir to two-thirds, unless it was the intention of the testator that he who was appointed heir to one-twelfth should receive one share, and this is hardly to be believed unless it was explicitly stated.

25. Julianus, Digest, Book XXIV.

Where a father substituted his two sons under the age of puberty reciprocally, and Titius for the one who would die last; the opinion was that the brothers alone were entitled to the possession of the estate, and that there were in this instance two degrees of appointment, as it were; so that, in the first place, the brothers should be substituted for one another, and if they should not be heirs, then Titius was to be called to the succession.

26. The Same, Digest, Book XXIX.

If a father should appoint as his heir his son who is under the age of puberty, and appoint as his substitute a posthumous child, and a child should be born during the lifetime of its father, the will will be broken if the other child is living. If, however, the said child should be born during the lifetime of its father, but after the death of its brother, it will be the sole heir of its father.

27. The Same, Digest, Book XXX.

If Titius should be substituted for his co-heir, and Sempronius should afterwards be substituted for him, I think that the better opinion is that Sempronius was substituted for both shares of the estate.

28. The Same, Digest, Book XXX.

The Lex Cornelia, which confirms the wills of those who die in the hands of the enemy, not only has reference to the estates of persons who made their wills, but to all estates which can belong to anyone by testamentary disposition, even if they had not fallen into the hands of the enemy. Hence, where a father died in captivity, leaving in his own country a son under the age of puberty, and the latter died before reaching that age, the estate belonged to the substitute; just as if the father had not been captured by the enemy.

Where, however, the father died at home, and his minor child died in the hands of the enemy, having been captured after his father's death; will it not be proper to hold that his estate belongs to the substitute, under the terms of the said law? But if the son falls into the hands of the enemy during the lifetime of his father, I do not think that the Lex Cornelia will apply, because it does not provide that he who left no property in his own country shall have any heirs.

Wherefore, even if the son, having arrived at puberty, should be captured during the lifetime of the father, and should afterwards die while in the hands of the enemy, after the death of his father at home, the estate of his father will belong to his next of kin, by virtue of the Law of the Twelve Tables, but the estate of the son will not belong to the latter by the terms of the Cornelian Law.

29. Scævola, Questions, Book XV.

Where a father as well as his son have been captured by the enemy, and both die in captivity; even though the father may die first, the Cornelian Law does not confirm the substitution, unless the minor should die after returning home; although if both should die at home, the substitute will be entitled to the estate.

30. Julianus, Digest, Book LXXVIII.

A certain man, by his will, appointed Proculus heir to a fourth part of his estate, and Quietus to the remaining three-fourths of the same; and afterwards substituted, as heirs, Florus for Quietus, and Sosias for Proculus; then, if neither Florus nor Sosias should become the heirs, he substituted the colony of the Leptitians heirs to three-quarters, and several heirs to an amount exceeding the remaining quarter. Proculus and Sosias died during the lifetime of the testator and Quietus entered upon the estate. The question arose whether the fourth left to Proculus should belong to Quietus, or to those who had been substituted in the third degree. I answered that the intention of the testator seemed to have been that those heirs whom he substituted in the third degree should only have a right to the succession where the entire estate had been abandoned; and that this intention was apparent from the fact that he had distributed more than twelve shares among the substitutes; and therefore that the fourth part of the estate, which was in question, would belong to Quietus.

31. The Same, On Ambiguities.

A substitution was made as follows: "Let the same person be my heir who will be my heir, as above stated." The question arises what heir is to be understood by this, whether it would be anyone whosoever, or only the party who would be the heir at the time when the son died? It was decided by men learned in the law that he would be the heir who might succeed the testator at any time whatsoever; for even though the appointed heir had died during the lifetime of the minor, and the will had been attacked as being inofficious with reference to a certain part, it should be held that the other is still the heir under the substitution.

(1) The rule cannot be said to be the same in the following case: for instance, where a testator has two sons, Gaius, who has arrived at puberty, and Lucius, who has not, and he makes the substitution as follows: "If my son Lucius should die without reaching the age of puberty, and Gaius should not be my heir, then let Seius be my heir"; for legal authorities have interpreted this to mean that the condition of the substitution should be referred to the death of the son who has not arrived at puberty.

32. The Same, On Urseius Ferox, Book I.

Where a testator appointed several heirs, among whom was Attius, to unequal shares of his estate, and if Attius should not accept, he substituted the others as heirs in proportion to their interest, and then added that Titius should be the co-heir of those who were substituted.

The question arose to what share Titius would be entitled, and what the others would have. I answered that Titius would be entitled to one share and the others to shares in proportion to their rights in the estate; for instance, if there were three of them, Titius would have the fourth part of the share of Attius, and the other heirs would have the three-fourths remaining, in proportion to the shares to which they were entitled by appointment. If, however, the testator should add not only Titius, but other heirs, the latter would be entitled to a portion equal to that of the share of the substitute; for example, suppose that three co-heirs were substituted and two foreign heirs added, the latter would be entitled to five parts of the share of Attius, and the remaining co-heirs would receive the balance in proportion to their respective shares.

33. Africanus, Questions, Book II.

If a mother should make a will and appoint her son her heir, as soon as he arrives at the age of fourteen years, and in case he should not be her heir, appoints another for him by pupillary substitution, this will be valid.

(1) Where a son is appointed an heir, and his own posthumous son another, in compliance with the rule of Gallus Aquilius, and Titius is substituted for the grandson if he should not be the heir, if the son becomes his father's heir, the opinion was given that Titius should be absolutely excluded; that is to say, even if a grandson should not be born.

34. The Same, Questions, Book IV.

A testator who had two sons not yet arrived at puberty, substituted a certain person as heir of the survivor. If both should die at the same time, it was held that the substitute would be the heir of both, because the survivor is understood to mean not only one who comes after another, but also he whom no one succeeds; just as, on the other hand, the first is understood to mean not only one who comes before another, but also him who has no one before him.

(1) A testator appointed a son, who had not reached puberty, and Titius, his heirs. He substituted Mævius for Titius, and for his son he substituted any of his heirs who had previously been mentioned by him. Titius rejected the estate; Mævius entered upon it. The son having afterwards died, it was decided that the estate of the minor, which was derived from the substitution, would go to Mævius, as the sole heir who had entered upon the estate of the father.

(2) Even though application may be made for the possession of the estate contrary to the will of the father, the pupillary substitution will still be valid, and all the legacies bequeathed under said substitution should be paid.

35. The Same, Questions, Book V.

Where prætorian possession of an estate is applied for by a minor in opposition to the will of his father, an action to compel the payment of legacies should still be granted against the substitute; and, for the reason that the son does not owe any legacies bequeathed to strangers, those granted under the substitution shall be increased; just as where legacies are bequeathed under the substitution, if more comes into the hands of the son through prætorian possession of the estate than he would otherwise receive, so, also will he owe more to persons who are privileged.¹

¹ That is to say, relatives of the testator, in either the ascending or descending line. — ED.

I think that the result of this will be that where a son who has not arrived at puberty is appointed heir to the entire estate, and he is deprived of half of it through prætorian possession, the substitute will be free from liability to pay half of the legacies, just as the portion which is added through obtaining possession of an estate increases the legacies, so also, in this instance, the amount which is lost diminishes them.

36. Marcianus, Institutes, Book IV.

Anyone can establish several degrees of heirs in a will, for example: "If So-and-So does not become my heir, let So-and-So not be my heir", and I appoint several others in succession, so that in the last place, by way of reserve, a slave is appointed a necessary heir.

(1) Several heirs can be substituted instead of one, or one instead of several, or particular heirs instead of each one, or those who have been appointed heirs can be substituted for one another.

37. Florentinus, Institutes, Book X.

An heir can be substituted for each of the children of a testator, or for one of them who may survive; for each one, where he does not wish that any of them should die intestate, for the survivor, if he desires the right of legitimate succession to remain unimpaired.

38. Paulus, On Pupillary Substitutions.

Where a man has several children, he can substitute an heir for any of them, and it is not necessary for him to do so for all; just as he can make a substitution for one of them.

(1) Therefore, he can make a substitution for a short period during the lifetime of his heir; for instance, "If my son should die before reaching the age of ten years, let Titius be his heir".

(2) Moreover, the substitution will be admitted if he appoints several heirs for different terms of the age of the son, as, for example: "If he should die before reaching the age of ten years, let Titius be his heir; if he should die after his tenth year, but before reaching his fourteenth, let Mævius be his heir."

(3) Where an heir appointed by a father, who has been charged with delivery of the estate, enters upon it, after having been compelled to do so by the beneficiary of the trust, although the other bequests mentioned in the will may be confirmed by this acceptance, as for example, legacies, and grants of freedom; still, where the will has become inoperative under the Civil Law, the pupillary substitution included therein is not revived; as Quintus Cervidius Scævola held.

Many authorities, however, are of a different opinion, for the reason that the pupillary substitution is a part of the former will; and this is the practice at present.

39. Javolenus, On the Last Works of Labeo, Book I.

A man had, by his son, two grandsons who were under puberty, one of whom was under his control, and the other was not. He wished them to inherit equal portions of his estate, and provided that, if either of them died before reaching the age of puberty, his share should be transferred to the other; and in compliance with the advice of Labeo, Ofilius, Cascellius, and Trebatius, he appointed as his sole heir the grandson who was under his control, and charged him with the delivery of half of his estate to his other grandson when he arrived at puberty, and substituted the other heir for the one who was under his control, if the latter should die before reaching that age.

(1) We can substitute two heirs under different conditions for a son under the age of puberty; for instance, one of them can be substituted if the son should have no children, and another child should be born and die before reaching the age of puberty.¹

¹ Pupillary substitution, at Civil Law, could only be made where the child was subject to paternal authority; hence, if, at the time, it was beyond the age of puberty, or was emancipated, the substitution was void, and if it was admitted to the succession before reaching puberty, the appointment likewise became of no effect when that age was attained. Substitutions of every description were primarily designed to prevent the occurrence of intestacy, a condition regarded with great disfavor by the Roman jurists. This was further provided against by the final appointment of a slave as heir, so that if the assets of the estate were insufficient to discharge the indebtedness, and the appointed heir refused to accept it, the slave might be compelled to do so; and the infamy attaching to the succession of a person who died insolvent would be avoided.

In pupillary substitution there were practically two wills executed by the father, one for himself, and the other for his son, although they were considered identical; and the law, generally so exacting in all matters affecting testation, only required the seals of seven witnesses to be attached to both.

Substitutio quasi pupillaris, authorized by Justinian through motives of benevolence, was applicable to children who were weak minded, or imbecile. It was not necessary for the child to be under the age of puberty, or subject to the control of its father. While in ordinary cases of pupillary substitution, if the child died before puberty, the substitute was entitled to the estates of both father and child, including the peculium of the latter, and even the mother was deprived of her share; this was not the case, however, under the "substitutio quasi pupillaris", as, if the subject of it died without issue, the appointment of its relatives in the ascending and collateral lines was imperatively demanded of the testator, and the mother received the share to which she was legally entitled.

Pupillary substitution is not known to the English or American law. It is recognized in Scotland to the extent that the substitute can take under it, without regard to the time when the heir may have died. The reciprocal substitution of children is permitted. (Erskine, Principles of the Laws of Scotland III, VIII, 21.)

Spanish law specifically provides for it in the case of children of both sexes under fourteen years of age, or when they are older and of unsound mind. "Los padres y demás ascendientes podrán nombrar sustitutos á sus descendientes menores de catorce años, de ambos sexos para el caso de que mueran antes de dicha edad."

"El ascendiente podrá nombrar sustituto al descendiente mayor de catorce años que, conforme á derecho, haya sido declarado incapaz par enajenacion mental". (Código Civil de España, Arts. 775, 776.) — ED.

(2) A certain testator appointed four heirs, and substituted others for all of them except one, and the one for whom no substitute had been appointed, as well as one of the others, died during the lifetime of the father. Ofilius and Cascellius held that the share of the one for whom no one had been substituted also belonged to the substitute of the deceased heir; which opinion is correct.

40. Papinianus, Questions, Book XXIX.

An heir who had not reached the age of puberty, and who had been arrogated after proper investigation, died. Just as in the case of heirs-at-law, by Imperial authority, a bond must be furnished, so, if a natural father has substituted an heir for his son under the age of puberty, recourse must be had to the substitute; for only prætorian actions can be granted to heirs-at-law.

41. The Same, Opinions, Book VI.

An heir was substituted for his co-heir, but died before he entered upon the estate, or the condition upon which the substitution depended was fulfilled. Both shares of the estate will belong to him who was substituted, either before the substitution of the heir, or afterwards; nor will it make any difference whether the substitute dies after or before the appointed heir.

(1) By the following words: "I substitute them for one another", the share refused by one of the heirs will go to those mentioned in the will, in proportion to what they themselves obtain by their appointment, or what has been acquired by the person to whose control they are subject.

(2) Where a father makes a substitution for his daughter, or for a grandson who occupies the place of his son, or who has held it after the execution of the will, the pupillary substitution becomes void if any of these should not belong to the family of the testator at the time of his death.

(3) If a father should appoint his son his heir and request him, if he should die before reaching the age of puberty, to give his estate to Titius, it has been established that the lawful heir of the son shall be forced to surrender the estate of his father, with the exception of the right granted by the Lex Falcidia, just as if the estate had been granted in trust to the heir of the said minor after his death.

The same rule should be observed when a condition upon which the substitution depends is expressed in ambiguous terms, and extends beyond the age of puberty. This, however, will only apply where the will of the father is valid in law; for if the instrument which he drew up as his will is not valid, it will not be admitted as a codicil unless this is expressly stated, nor will the property belonging to the son be bound by the trust. Therefore, if the father has disinherited the son, and left him nothing, the trust will be void. Otherwise, if the son has received either a legacy or a trust from his father, the trust of the estate with which he is charged will be due in proportion to the property which he has received, without reference to the proportion allowed by the Falcidian Law.

(4) Where a testator bequeathed different shares separately to several heirs, and after doing so said: "I substitute my heirs for one another", he is held to have substituted those joined in the first place reciprocally, and if they do not accept their shares, all the other coheirs should be admitted.

(5) Where a testator appointed a father and his son heirs to a share of his estate, and substituted them one for the other, and then bequeathed the rest of his property to their co-heirs, and afterwards disposed of the entire estate as follows: "I substitute all of these heirs reciprocally", the question arose as to his intention, and whether by mentioning all of them he included the father and son in the substitution of the co-heir, or whether he only intended the will to apply to all the others. The latter opinion appears to be the more probable, on account of the special substitution which he made with reference to the father and son.

(6) Where a co-heir is given to a son under the age of puberty, who has also been substituted for him, he will be obliged to pay any legacies bequeathed under the substitution, just as if he had received a part of the estate absolutely, and another part of it conditionally. The same rule will not apply in case of the substitution of another, for he will bring about the application of the Lex Falcidia, just as if the heir had clearly been appointed under a condition in the first place; although the co-heir given to the son would certainly be entitled to the entire fourth of his share, for where a legacy was granted to Titius by the will, and the same property was given to Sempronius by the substitution, Sempronius will share the property with Titius.

(7) Where a father having two daughters, both under the age of puberty, made a pupillary substitution for the one who should survive, and the daughter who had not reached puberty died, being survived by her sister who had attained that age, it was held that the substitution was void, both with reference to the first daughter above mentioned, because she did not die last, as well as with reference to the second one, because she had reached the age of puberty.

(8) It was held that a substitution expressed in the following terms is not defective: "If my son should die before reaching the age of puberty, which I trust will not be the case, then let Titius be my heir in his stead and to his portion"; any more than if he had directed him to be substituted as his heir, after prescribing a certain condition; for where anyone is appointed an heir to certain property, and a co-heir has not been appointed, he will be entitled to the entire estate.

42. The Same, Definitions, Book I.

Where a man left two children his heirs who had not yet reached the age of puberty, and made a substitution for them as follows: "If both of them should die", and both died at the same time, after the death of their father, the two estates will belong to the substitute; but if they died at different times, the substitute will find in the estate of the boy who died last that of his brother who died previously, but, according to the terms of the Falcidian Law, the estate of the first boy will not be included; the substitute cannot claim more than an eighth of the estate under the will; and the legacies, with whose distribution the substitute of the son who first died intestate was charged, become of no effect.

43. Paulus, Questions, Book IX.

A question arises in the following case. A certain man who had a son past the age of puberty that was deaf, obtained permission from the Emperor to appoint a substitute for him, and substituted Titius. The said deaf son married a wife after the death of his father and a son was born to him. I ask whether the will was broken. I answered that princes themselves are accustomed to explain rights which they have granted, but where the intention of the prince is examined in this case, it can be said that he only intended the right to be conceded to the father so long as his son remained in the same condition; and that, just as, according to the Civil Law, pupillary substitution is terminated by puberty, so the Emperor imitated this rule in the case of the son, who was incapable of making a will on account of his infirmity. For if he had made the substitution for a son who was insane, we would say that the will would cease to be valid when the son became of sound mind, because then he himself could make a will; and indeed the privilege bestowed by the Emperor would become unjust if we should hold that the will was valid after this, for it would deprive a man who was sane of the right to make his own will.

Therefore it must be held that substitution is also annulled by the birth of a legal heir, because it makes no difference whether the son himself subsequently appointed another heir, or whether he received one by law; for it is not probable that either the father or the Emperor, in this instance, had in view the disinheritance of the son who was afterwards born. Nor does it make any difference in what way the privilege granted by the Emperor may interfere with the execution of the will, or whether it has reference to one, or to several persons.

(1) I also ask where a substitution is made as follows: "If my son should die under the age of ten years, let Titius be my heir; if he should die under the age of fourteen years, let Mævius be my heir", and the son died at the age of eight years, will Titius be his sole heir by virtue of the substitution, or will Mævius also be one, because it is certain that the son died under the age of ten years, as well as under the age of fourteen. I answered that the father had a right to make a substitution for his son during the entire time before he attained the age of puberty, but puberty put an end to this right. The better opinion is that the time prescribed separately for each party should be observed, unless it is clearly evident that the will of the testator was opposed to this.

(2) Lucius Titius, while having children under his control, appointed his wife his heir, and substituted the children for her. The question arose whether the appointment of the wife was of no force or effect, for the reason that the children were not disinherited in this degree. I answered that the degree in which the children were passed over was of no importance, since the same parties were appointed as substitutes who were heirs under the will, that is to say, because the children do not annul the entire will, but only the degree mentioned which was not valid from the beginning; just as it has been determined that if a child is passed over in the first degree, he is disinherited in the second. But it makes no difference for what reason the institution of the second heir is valid, whether because the son was disinherited by his appointment, or because the son himself was appointed a substitute.

(3) Julius Longinus, a father, substituted for his children the heirs that he had appointed for himself as follows: "Whoever shall be my heir." One of the heirs appointed had tacitly agreed to give a share of what he received to a person who was not capable of taking it, having been admitted to the substitution of the son under the age of puberty; what share should he be permitted to have, the one for which he was appointed, or the one which he took, in order that his share might be increased in the substitution. I answered that he who consents to a fraud against the law, by entering upon an estate, becomes the heir, nor does he cease to be such even though he be deprived of the property left to him under such circumstances. Hence, he can be the heir under the pupillary substitution only to the share to which he was appointed, for he is sufficiently punished for what he did contrary to law; and, indeed, I would say the same even though he ceased to be the heir.

The same rule should be understood to apply to anyone who, after he had been appointed heir and entered upon the estate, is reduced to slavery, and is subsequently presented with his freedom, who is permitted to be admitted to the substitution left to him by the will; for although he has lost the inheritance to which he was entitled by his appointment as heir, still, by virtue of the substitution, he can receive the same share which he lost.

44. The Same, Questions, Book X.

Marcianus states that the principal will can neither be wholly or partly confirmed by pupillary substitution.

45. The Same, Opinions, Book XII.

Lucius Titius appointed as his heirs his legitimate son and a natural son, and substituted them for one another. The legitimate son, Titius, whom his father left only a year old, died after the death of his father without reaching the age of puberty, being survived by his mother, and his natural brother who was also his co-heir. I ask whether his estate will belong to his natural brother, by virtue of the substitution, or will it go to his mother. I answered that the substitution in question relates to the first case where the parties appointed are not heirs, and not to the second where one of the heirs died subsequently under the age of puberty; because double substitution cannot exist in the person of the natural son, and therefore the estate will belong to the mother of the legitimate son ab intestato.

(1) Paulus gave it as his opinion that, "If all the appointed heirs were substituted for one another, the portion of one of them who, after some of his co-heirs have died, rejected his share, will, by virtue of the substitution, belong to the heir alone who was living at the time".

46. The Same, Opinions, Book XIII.

The father of a family having appointed his posthumous child his heir by his will, substituted his brother, Gaius Seius, for himself, or his son if he should die before reaching the age of puberty, and then substituted Titius for Gaius Seius, and afterwards said: "If my brother, Gaius Seius, whom I substituted in the first place, should be my heir, then I appoint Titius trustee." I ask, if the son should be the heir of his father, and having died before the age of puberty, his brother should become the heir of the testator by virtue of the substitution, whether the trust must be discharged when it was created as follows: "If Gaius Seius, my brother, should be my heir"? I answered that the brother of the deceased, who was appointed or substituted in both cases, must deliver the property which the testator bequeathed, if the son should die before reaching the age of puberty, and that the meaning of the following words cannot be disputed: "If Gaius Seius should be my heir, then I desire the property to be given", since it is a fact that he was the heir of the testator.

47. Scævola, Opinions, Book II.

A certain person had a son and a daughter, both under the age of puberty, and having appointed his son his heir, he disinherited his daughter, and substituted her for his son, "If the latter should die under the age of puberty"; and then he appointed his wife and his sister as substitutes for his daughter, if she should die before being married. I ask, if the daughter should die first, after having reached the age of puberty, and her brother afterwards, before reaching that age, whether the estate of the son would by the right of substitution belong to the wife and sister of the testator. I answered that, in accordance with the facts stated, it would not belong to them.

48. The Same, Questions Publicly Treated.

We own a slave in common; he is appointed an heir; and Mævius is substituted for him in case he should not be the heir. The slave accepts the estate by the direction of only one of his masters, and the question arises whether there is ground for the admission of the substitute, or not. The better opinion is that there is ground for his admission.

(1) "Let Titius be my heir. I give and bequeath Stichus to Mævius. Let Stichus be my heir, if Stichus should not become my heir, let Stichus be free and my heir." In this instance, inquiry must first be made whether there is one degree or two, and whether the condition of the substitution is changed, or remains the same. And, indeed, the question frequently arises whether a party can be substituted for himself, and the answer is that where the condition of the appointment is changed he can be substituted. Therefore, if Titius is appointed heir, and if he should not accept he is ordered to become the heir, the substitution is of no force or effect. Where, however, a party is appointed an heir under a condition, but is substituted absolutely, the case is changed, since the condition upon which the appointment depends may not be fulfilled, and the substitution may be productive of some advantage to the heir. But if the condition should be fulfilled, there are two absolute appointments, and the substitution will have no force or effect.

On the other hand, if anyone appoints an heir absolutely, and then substitutes him for himself under some condition, this conditional substitution is inoperative, nor is anything understood to be changed, since, if the condition had been fulfilled, there would be two absolute appointments of the same individual. According to this, the question stated is as follows: "Let Titius be my heir, I give and bequeath Stichus to Mævius; let Stichus be my heir, if Stichus should not be my heir, let him be free and be my heir". We know that since Stichus was bequeathed and received his freedom by virtue of the same will, his freedom will take precedence, and if it does, the legacy will not be due, and he cannot enter upon the estate by order of the legatee, and therefore Stichus is not an heir and by virtue of the words which follow he is entitled to freedom; as it is held that there is but one degree of appointment.

But what if Titius should not accept the estate?. Stichus would begin to be free and an heir by virtue of the substitution. Hence, as long as he does not enter upon the estate by order of the legatee, it is understood that he does not become the property of the legatee on account of the legacy, and therefore it is certain that he is not an heir; but he becomes free and an heir by virtue of the following words: "If he should not be my heir, let Stichus be free and be my heir." Julianus also approves of our opinion in his works. (2) If a minor alienates a slave who has been substituted for himself, and the purchaser of said slave appoints him his heir with the grant of his freedom, will the substituted slave be entitled to the entire estate of the minor by reason of the substitution? If the minor should reach the age of puberty, the slave will become the necessary heir of the purchaser by virtue of his will, but if the minor should die before attaining that age, the slave will become free and his heir on account of the substitution, and also will become the necessary heir of the father of the minor, but he will be the voluntary heir of the purchaser.

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TITLE VII. CONCERNING THE CONDITIONS OF APPOINTMENTS.

1. Ulpianus, On Sabinus, Book V.

It is established that an appointment made under a condition which is impossible, or through mistake, is not void.

2. The Same, On Sabinus, Book VI.

Where it was stated in a will: "Let a certain slave, if he should be mine"; or, "If he should be mine at the time I die, be my heir", the question arises how should the term "mine" be understood. If the testator should alienate the usufruct in the slave, the latter will, nevertheless, belong to him; but the question is whether the condition of the appointment would fail if he alienated a portion of his ownership in said slave. The better opinion is, that the condition would not fail, unless it appeared by the clearest evidence that the intention of the testator, when he inserted the words relative to the condition, was that the entire ownership of the slave should remain in him, for then, if any part in him was alienated, the condition would not be fulfilled.

(1) Where, however, there are two slaves who are appointed heirs in the following words: "If the first and second slaves mentioned should belong to me at the time of my death, let them be free and my heirs", and one of them should be alienated, Celsus very properly holds that the language should be understood to mean the same as if the testator had appointed the slaves his heirs separately, and under the same condition.

3. Paulus, On Sabinus, Book I.

If I am appointed an heir under the condition: "If I pay ten aurei", and the party to whom I am ordered to pay the money refuses to accept it, the condition is held to have been complied with.

4. Ulpianus, On Sabinus, Book VIII.

If certain heirs should be appointed as follows: "If they remain partners in my property until they reach the age of sixteen years, let them be my heirs", Marcellus says that an appointment made in language of this kind is void. Julianus, however, holds that such an appointment is valid, since the partnership can be formed for some future purpose, before the estate is entered upon. This is correct.

(1) Julianus also says, where anyone appoints an heir under the condition: "If he does not alienate a certain slave belonging to the estate", that the condition is fulfilled when the heir furnishes his coheir with security. However, where only one heir is mentioned, he is held to have been appointed under an impossible condition, which opinion is correct.

5. Paulus, On Sabinus, Book II.

Where several conditions together are imposed upon an heir, all of them must be complied with, for the reason that they are considered as one; where, however, they are imposed separately, each must be complied with by itself.

6. Ulpianus, On Sabinus, Book IX.

Where an heir has been appointed under the condition: "If he should erect a monument to the testator within three days after his death", and the monument cannot be completed in three days, it must be said that the condition vanished, as being impossible.

7. Pomponius, On Sabinus, Book V.

If anyone should appoint heirs under the condition: "If they give security to one another to pay the legacies left by the will", it is established that they are released from complying with the condition, because it was made in violation of the laws which forbid certain persons to receive legacies; although, even if security should be furnished, the heirs would be protected by an exception in an action at law.

8. Ulpianus, On the Edict, Book L.

Whatever is left by a testator under the condition of taking an oath is disapproved by the Prætor. For he takes care that no one who accepts any property under the condition of taking an oath, or by omitting to comply with the condition, shall lose the estate, or a legacy, or that he shall be compelled shamefully to take an oath on condition of receiving what was bequeathed to him.

The Prætor, therefore, sees that anyone to whom property was left under the condition of taking an oath, can acquire it just as those do upon whom no condition of being sworn is imposed, and in this case he acts very properly, as there are some men who, through their contempt for religion, are always ready to take an oath, and there are others who are timid, even to superstition, on account of their fear of Divinity; hence the Prætor most wisely interposes his authority, in order that neither the latter nor the former may either acquire or lose what was left to them in this manner. For he who wishes, by the influence of religion, to restrain those to whom he left property under the condition of taking an oath, would not be able to accomplish his purpose unless they did so; for the parties complying with the condition would be admitted to the succession, or if they failed to comply with it, they would be excluded on account of non-fulfillment of the condition.

(1) This Edict also relates to legacies, and not merely to the appointment of heirs.

(2) With reference to trusts, it is also necessary for those who have jurisdiction over a trust to obey the Edict of the Prætor; for the reason that trusts are discharged in the same manner as legacies.

(3) In the case of donations mortis causa, it must be said that there is ground for the application of the Edict; if, for instance, anyone should provide that the party must surrender whatever he received, unless he swears that he will perform some act. Therefore, it will be necessary for the bond to be given up.

(4) Where anyone has been appointed under the condition of taking an oath, as well as under some other condition, it must be considered whether he can be released from the performance of the condition. The better opinion is, that he should be released from the condition of the oath, although he may be obliged to comply with the other condition.

(5) But where an heir has been appointed under the condition of taking an oath, or of the payment of ten thousand aurei, that is to say, that he is required either to pay the money or be sworn, it must be considered whether he should not be released from one condition because he can be secure by complying with the other. The better opinion is, that he should be released from the first condition, lest, by some means, he may be compelled to take the oath.

(6) Whenever an heir is ordered by the testator, "To give something, or to perform some act", which is not dishonorable, he will not be entitled to an action unless he gives or does what he was ordered to swear to do.

(7) When an heir was appointed on the condition that he would swear to manumit Stichus, and Stichus died, or was manumitted during the lifetime of the testator, the condition will not be held to have been violated; although it is true that the heir would have been compelled to manumit the slave if he had lived.

The same rule applies where an heir was appointed as follows: "Let Titius be my heir, in order that he may manumit Stichus"; or, "I bequeath a hundred aurei to Titius, in order that he may manumit Stichus". For if Stichus should die, no one can say that the heir will be barred from receiving the legacy, for he is not considered to have failed to comply with the condition, when he was unable to do so, and the will of the testator must be executed if this can be done.

(8) It is not necessary to appear before the Prætor for the purpose of being released from this oath, for where a release is once given by the Prætor it is good for all time; and a release is not obligatory in each individual instance. Therefore, it is held that a release is granted from the day on which the legacy was payable, even though the appointed heir was ignorant of the fact. Hence, it is very properly held in the case of the heir of a legatee, that if the legatee should die after the day appointed for the payment of the legacy, his heir must make use of the action de legato, just as if the legacy had been left unconditionally to the party whom he succeeded as heir.

9. Paulus, On the Edict, Book XLV.

A release is also given from conditions which are opposed to good morals, for instance, "If he should not ransom his father from the enemy"; or "If he should not furnish support to his parents or his patron".

10. Ulpianus, Disputations, Book VIII.

An appointment like the following: "If I appoint Seius my heir by a codicil, let him be my heir", is not void, so far as the appointed heir is concerned, except where that heir is a son; for this is a conditional appointment, and the estate is not held to be bequeathed by a codicil, which is forbidden by law, but it is a conditional appointment made by will. Hence, if the testator should say: "Let him be my heir whose name I shall insert in a codicil", it must be held, for the same reason, that the appointment will be valid, there being no law preventing it.

(1) If we make an appointment as follows: "Let So-and-So be my heir, if I have appointed him heir by a codicil", the appointment will be valid, even with reference to a son who is under paternal control, because a condition is not imposed every time that the past or present is referred to; for example: "If the King of the Parthians should be living"; "If a ship should be in port."

11. Julianus, Digest, Book XXIX.

Where a party makes an appointment by will, as follows: "Let my son be my heir, if he adopts Titius, and if he does not adopt him, let him be disinherited"; and if the son is ready to adopt him, but Titius is unwilling to be arrogated, the son will become the heir, just as if the condition had been fulfilled.

12. Hermogenianus, Epitomes of Law, Book III.

The following words: "Let Publius Mævius be my heir if he is willing", establish a condition with reference to the necessary heir, so that he will not become the heir if he is unwilling; for these words are fruitlessly added with reference to a voluntary heir, for even if they had not been added, the appointee would not become the heir against his will.

13. Julianus, Digest, Book XXX.

Where anyone receives an estate or a legacy under the condition, "If he should pay ten aurei", neither the estate nor the legacy can be acquired by him, unless, after having fulfilled the condition, he, either as heir or legatee, complies with the legal formalities by means of which an estate or a legacy is ordinarily obtained.

14. Marcianus, Institutes, Book IV.

When conditions are prescribed in violation of the Edicts of the Emperors, or against the laws, or contrary to whatever obtains the force of law, or which are opposed to good morals, or imply derision, or are such as the Prætors would not approve of, they are held not to have been written, and the estate or the legacy will pass to the heir or legatee, just as if the condition had not been prescribed.

15. Papinianus, Questions, Book XVI.

Where a son under paternal control is appointed an heir, under a condition which is one that the Senate or the Emperor does not tolerate, it invalidates the will of the father, just as if the condition could not be complied with by the son; for where any acts injuriously affect our piety, reputation, or self-respect, and, generally speaking, are contrary to good morals, it is held that we are unable to perform them.

16. Marcianus, Institutes, Book IV.

Julianus states that the following appointment is void, namely: "If Titius should be my heir, let Seius be my heir; if Seius should be my heir, let Titius be my heir", as the condition cannot take place.

17. Florentinus, Institutes, Book X.

Where several appointments of heirs to the same share of an estate have been made under different conditions, the condition which is first performed will confer priority on the appointment.

18. Marcianus, Institutes, Book VII.

Where a slave was granted his freedom absolutely, and an heir was appointed under a condition, and it was provided that if the latter should not be the heir he would be entitled to a legacy, the Divine Pius stated in a Rescript that the conditions seemed to have been repeated in the legacy.

(1) With a view to this, Papinianus stated that where a grandmother appointed her grandson heir to a portion of her estate, under the condition that he should be emancipated, and afterwards, by a codicil, bequeathed to him whatever she had not left him as an heir, the condition of the emancipation was also held to have been repeated in the legacy; although in bequeathing the legacy, she made no substitution, any more than she did in leaving him a share of her estate.

19. The Same, Institutes, Book VIII.

Where it was set forth in a will: "Let Titius be my heir, and if Titius should be my heir let Mævius be my heir", if Titius should accept the estate, which was suspected of being insolvent, Mævius can voluntarily accept it, and retain a fourth of the same.

20. Labeo, Epitomes of the Last Works of Javolenus, Book II.

A woman who was indebted to her husband for money promised to him by way of dowry, appointed him her heir, "Under the condition that he would not claim or exact the money which she had promised as dowry". I think that if the husband should notify the other heirs that he is not unwilling to give a release for what was due to him by way of dowry, he will immediately become the heir. If, however, he should be appointed heir under such a condition, I hold that he will, nevertheless, forthwith become the heir, because performance of the condition is impossible, and any such condition must be considered as not having been imposed.

(1) If anyone should be ordered to manumit a slave belonging to an estate, and to become the heir, even though he should manumit him, and perform an act which is void, he will, nevertheless, become the heir; for while it is true that he manumitted the slave, the freedom granted to the latter after the estate was entered upon will become valid in accordance with the wish of the testator.

(2) If anyone should appoint you an heir under the condition that you appoint him one, or bequeath something to him, it makes no difference in what degree he has been appointed an heir by you, or what has been left to him, provided you can prove that you have done this in any degree whatsoever.

21. Celsus, Digest, Book XVI.

A slave belonging to another can be appointed an heir, "When he shall become free"; but a slave belonging to the testator cannot be appointed in this manner.

22. Gaius, On the Provincial Edict, Book XVIII.

Because reason suggests that he who can bestow freedom should himself grant it, either at the present time, or after a certain period, or under some condition, and he has not the power to appoint a slave his heir in case he should obtain his liberty in any other way whatsoever.

23. Marcellus, Digest, Book XII.

"Let whichever of my brothers, who shall marry our cousin, be my heir to three-fourths of my estate, and let the one who does not marry her be my heir to one-fourth of the same." The said cousin either marries another, or does not wish to marry anyone. The brother who marries the cousin will be entitled to three-fourths of the estate, and the remaining fourth will belong to the other. If, however, neither of them marries the girl, not because they were unwilling to do so, but because she refused to be married, both of them will be admitted to equal shares of the estate; for generally, the condition: "If he should marry a wife; if he should pay a sum of money; if he should perform some act"; must be understood to mean that it is not his fault if he does not marry the woman, pay the money, or perform the act.

24. Papinianus, Opinions, Book VI.

"Let the one of my brothers who marries his cousin Titia be the heir to two-thirds of my estate, and the one who does not marry her be the heir to the remaining third of the same." If the cousin should die during the lifetime of the testator, both of the brothers will be entitled to equal shares of his estate, because it is true that they were appointed heirs, but were entitled to different shares in case the marriage took place.

25. Modestinus, Rules, Book IX.

Where a slave is appointed an heir under a certain condition, he cannot comply with the condition without the order of his master.

26. Pomponius, On Quintus Mucius, Book II.

If a minor should be appointed an heir under some condition, he can comply with the condition, even without the authority of his guardian. The same rule applies where a legacy has been bequeathed to him under some condition, because when the condition has been fulfilled, he is in the same position as if the estate or the legacy had been left to him unconditionally.

27. Modestinus, Opinions, Book VIII.

A certain man appointed an heir by his will under the condition: "If he throws my remains into the sea". As the heir did not comply with the condition, the question arose whether he should be excluded from the succession to the estate. Modestinus answered: "The heir should rather be praised than censured, who did not throw the remains of the testator into the sea, in accordance with the will of the latter, but gave them up to burial in memory of the duty due to humanity". It must first be considered whether a man who imposes a condition of this kind is of sound mind, and, therefore, if this suspicion is not removed by convincing evidence, the heir-at-law cannot in any way dispute the right to the estate with the heir who was appointed.

(1) A testator, by a codicil, imposed a condition upon his heir whom he had appointed absolutely by his will, I ask whether it is necessary for him to comply with it. Modestinus answers: "An estate can neither be granted, nor taken away by a codicil". The testator, however, is understood, in this instance, to have had in his mind the exclusion of the heir from the succession in case of his failure to comply with the condition.

28. Papinianus, Questions, Book XIII.

If a son should be appointed an heir under a condition, and grandchildren by him are substituted; as it is not sufficient for a son to be appointed an heir under any kind of a condition whatsoever, the will is only held to be valid where the fulfillment of the condition is in the power of the son. Let us therefore consider whether it makes any difference what condition was imposed, whether it was one that could not be carried out if the son should die, as, for instance, "If my son should go to Alexandria, let him be my heir", and he dies at Rome; or if it is one which can be fulfilled at the last moment of his life, for example, "If he should pay ten aurei to Titius, let my son be my heir", for this condition can be performed by another party in the name of the son.

The first kind of a condition above mentioned admits the grandsons to the succession during the lifetime of the father, who, if he should have no substitute, becomes the lawful heir of his father when he dies. This is established by what is stated by Servius, for he relates that a certain person had been appointed an heir under the condition, "If he should ascend to the Capitol, and even if he should not do so, a legacy shall be given to him", and the heir died before he ascended to the Capitol. With reference to this, Servius gave the opinion that the condition failed through the death of the heir, and therefore at the time of his death he began to be entitled to the legacy.

The other kind of a condition, however, does not admit grandsons to the succession during the lifetime of the son, who, if they should not be substituted, would be the heirs of their intestate grandfather; for the son would not be held to have stood in their way, as after the death of the father, his will becomes of no effect; just as if the son having been disinherited, the grandsons had been appointed heirs at the time that the son died.

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TITLE VIII. CONCERNING THE RIGHT OF DELIBERATING.

1. Ulpianus, On the Edict, Book LX.

If a slave should be appointed an heir, we cannot grant him time for deliberation, but it is granted to him to whom the slave belongs; for the reason that slaves are considered by the Prætor as of no importance. Moreover, if the slave belongs to several masters, we grant time for deliberation to all of them.

(1) The Prætor says, "If anyone asks time for deliberation I will grant it".

(2) When the Prætor says that he will grant time, but does not say how much, he undoubtedly means that it is in the power of the court having jurisdiction to fix the term to be allowed.

2. Paulus, On the Edict, Book LVII.

And no less than a hundred days should be granted.

3. Ulpianus, On the Edict, Book LX.

It must be noted that sometimes one term, and sometimes several, are granted for deliberation, when the Prætor is convinced that the time that he allowed when first applied to was not sufficient.

4. The Same, On the Edict, Book LXI.

This indulgence should not be granted, unless where a very good reason exists.

5. The Same, On the Edict, Book LXX.

Aristo says that the Prætor should come to the relief not only of creditors, but also of the heir who has been appointed, and that they should furnish the latter with a copy of their claims, in order that he may ascertain whether it is to his interest to accept the estate or not.

(1) If the estate is quite valuable, and while the heir is deliberating there is property forming part of it which will be spoiled by lapse of time, upon application to the Prætor, the person who is deliberating can sell the said property for a fair price, without being prejudiced thereby; and he can also sell any property which is too expensive to keep, as, for instance, beasts of burden, or slaves which were for sale; as well as such articles as become deteriorated by delay. He also should take care that any debt which is due, or which is subject to a penalty, or which is secured by valuable pledges, is paid.

6. Gaius, On the Provincial Edict, Book XXIII.

Hence, where wine, oil, wheat, or money constitutes part of the estate, it should be used to pay the debts. If there are none of these articles, money must be collected from the debtors of the estate, and if there are no debtors, or they contest the claims against them, any superfluous property should be sold.

7. Ulpianus, On the Edict, Book LX.

The Prætor says: "If time is requested in the name of a male or female minor, for the purpose of deliberation as to whether it will profit him or her to retain the estate, and this is granted, if there seems to be good reason to diminish the assets of the estate in the meantime, I shall forbid this to be done, unless the report of a reputable citizen recommends it after thorough investigation."¹

¹ The term, boni homines, had several significations among the Romans. Its primary meaning was "complete citizens" (who during the decadence of the Western Empire alone enjoyed the privilege of full citizenship), and was synonymous with Decurions. Hence, it was sometimes used to designate arbiters and other magistrates, especially those belonging to a municipality. It was also identical with Curiales, during the barbarian domination. — ED.

8. The Same, On the Edict, Book LXI.

Where a proper heir, after having rejected the estate, requests time for deliberation, let us see whether he ought to obtain it. The better opinion is that he should obtain it, where proper cause is shown, and the property of the estate has not yet been sold.

9. Paulus, On the Edict, Book LVIII.

While the son is deliberating, he should be supported at the expense of the estate.

10. Marcellus, Digest, Book XXVIII.

When there are several degrees of appointed heirs, the Prætor says that he will examine them one by one in regular succession, in accordance with the time granted each for deliberation; in order that, while the estate is passing from the first to the following degrees, he may as soon as possible find the heir who can satisfy the creditors of the deceased.

11. Javolenus, On the Last Works of Labeo, Book IV.

A former slave had a son who was a freedman, and whom he appointed his heir, and he then inserted into his will: "If I should have no son who will become his own master, then let Damas the slave be free". The minor son of the testator had been emancipated. The question arose whether Damas should be free. Trebatius declares that he should not, because the term freedman is also included in the appellation of son. Labeo holds the contrary opinion, because in this instance a true son must be understood. I adopt the view of Trebatius, in case it should become evident that the testator had reference to the said son.

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