BOOK III. l'art III. Quos autem praetor solus vocat ad hereditatem, heredes quidem ipso iure non fiunt (nam praetor heredem facere, non potest: per legem enim tantum vel similem iuris constitutionem heredes fiunt, veluti per senatusconsultum et constitutiones principales): sed cum eis praetor dat bonorum possessionem, loco heredum constituuntur et vocantur bonorum possessores.-§ 2, I. h. t.' : Ulp. In omnibus vice heredum bonorum possessores habentur.-1. 2, D. h. t.2 Gai. iv. 34: Habemus adhuc alterius generis fictiones in quibusdam formulis, veluti cum is, qui ex edicto bonorum possessionem petit, ficto se herede agit cum enim praetorio iure, non legitimo succedat in locum defuncti, non habet directas actiones et neque id, quod defuncti fuit, potest intendere SVVM ESSE, neque id, quod ei debebatur, potest intendere DARI SIBI OPORTERE; itaque ficto se herede intendit, velut hoc modo: IVDEX ESTO. SI AVLVS AGERIVS (id est ipse actor) LVCIO TITIO HERES ESSET, TVM SI FVNDVM, DE QVO AGITVR, EX IVRE QVIRITIVM EIVS ESSE OPORTERET; [et si debebatur L. Titio pecunia] praeposita simili fictione intentio ita subiicitur: TVM SI PARET NVMERIVM NEGIDIVM AVLO AGERIO SESTERTIVM X MILIA DARE OPORTERE.3 1 But those whom it is the Praetor alone calls to an inheritance do not in fact become heirs-at law (for the Praetor cannot make an heir, heirs being only created by statute or like appointment by law, for example, by a decree of the senate and imperial constitutions); but when the Praetor grants them possession of the goods, they are placed in the position of heirs, and are called possessors of the goods.' In all things the bonorum possessores are regarded as instead of heirs. 3 We have, moreover, fictions of another kind in certain formulae; as, for instance, when he that seeks bonorum possessio on the ground of the Edict snes upon the fiction that he himself is heir; for since he succeeds to the place of the deceased according to Praetorian, not according to Statutory right, he As regards the civil heir, the bonorum possessio is sometimes cum re' (with result), at other times 'sine re' (without result): the former, if the civil heir is called after or together with the Praetorian in the edict for bonorum possessio; the latter, if the civil heir is appointed before him, and thus would himself have been able to acquire the bonorum possessio,— in which case the bonorum possessio is given only provisionally." BOOK III. a Cf. Gai. ii. 120, and inf. Ulp. xxviii. 13: Bonorum possessio aut cum § 161. Gai. iii. 36: Nam si verbi gratia iure facto has no direct actions, and he cannot maintain that to be his own' which belonged to the deceased, nor can he maintain that what was owing to the deceased ought to be paid to him'; and so, upon the fiction that he is heir, he states his claim, for example, thus: Let so and so be iudex. If Aul. Ag.' (that is, the plaintiff himself) were the heir of Luc. Tit., then should it appear that the estate in question ought to be his by the law of the Quirites'; (and if money was owing to L. T.) a like fiction is prefixed, and the claim is appended thus: "Then if it appear that Num. Neg. ought to give Aul. Ag. 10,000 sesterces.' 1 Bon. poss. is granted either cum re or sine re: cum re when the recipient can retain the goods effectively; sine re, when some one else can by civil law wrest the inheritance from him. 2 For if, by way of example, the heir instituted in a testament legally executed have declared his acceptance of the inheritance, For cretio, sce but have not cared to sue for possession of the goods in § 171. accordance with the tablets,' content with the fact that he is heir by civil law, those who, in the absence of a testament, are BOOK III. a Supra. Both systems of succession remained independently collateral to one another down to the Justinianean period, although in the course of time some persons acquired a right of civil inheritance who at the first were entitled to merely Praetorian inheritance. Bonorum possessio and hereditas were first essentially blended together through the comprehensive reform by Justinian of the whole Law of Inheritance. In the history of bonorum possessio much is obscure and largely controverted, as in particular its startingpoint, that is, the question, what was its original signification, and further, how the whole Praetorian system of succession in general arose, and in what form, in relation to the Civil Law, it first procured validity. Most probable is the supposition that bonorum possessio was introduced originally 'adiuvandi iuris civilis gratia' for the civil heirs, whether testamentary or intestate, so as to remove possible delay in entering upon an inheritance in the absence of civil intervals for deliberation," and for prevention of the breaking up of the heritage impending in the civil pro herede usucapio'; but then (perhaps already simultaneously) it was also given ‘supplendi iuris civilis gratia '-in order further to obviate the want of an heir, which readily happened according to Civil Law-in default of civil heirs of other persons;" and that, on the contrary, the corrective function of bonorum possessio, given along with, indeed before, the civil heir, was not developed until later on, keeping pace with §§ 163, 168; legal conceptions of the ius gentium, which made their way also into the Law of Inheritance. § 155. Supra, and § 162, ad fin. с d Ab intestato, § 163, ad fin., and sec. tab. § 157. Ulp. xxii. 23. 1 § 80. § 155. PRO HEREDE USUCAPIO. In the oldest law the hereditas itself, or a fraction. thereof, could be acquired through usucapio by every one called to the property of the intestate can nevertheless sue for possession of the property; but the bon. poss. belongs to them sine re, since an heir appointed by the testament can wrest the inheritance from them. BOOK III. Part III. without bona fides and iustus titulus, if there had been continued possession for one year of the hereditary things, which was acquired as against the heir; with restriction, however, to the acquisition of corpora hereditaria,' so that such person assumed the position of an heir, particularly in relation to the creditors of an inheritance. But later on, this usucapion of the hereditas itself was a Perhaps converted into a usucapion of the several things com- the end of the posing the inheritance, which gradually began to come Republic. in conflict with the general ideas of Law. (Improba, lucrativa usucapio.) already towards Gai. ii. §§ 52-56: Rursus ex contrario accidit, ut qui sciat alienam rem se possidere, usucapiat, veluti si rem hereditariam, cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum est usucapere, si modo ea res est, quae recipit usucapionem: quae species possessionis et usucapionis pro herede vocatur. § Et in tantum haec usucapio concessa est, ut et res quae solo continentur, anno usucapiantur. § Quare autem etiam hoc casu soli rerum annua constituta sit usucapio, illa ratio est, quod olim rerum hereditariarum possessione velut ipsae hereditates usucapi credebantur, scilicet anno: lex enim XII tabularum soli quidem res biennio usucapi iussit, ceteras vero anno; ergo hereditas in ceteris rebus videbatur esse, quia soli non est, quia neque corporalis est. Et quamvis postea creditum sit ipsas hereditates usucapi non posse, tamen in omnibus rebus hereditariis, etiam quae solo tenentur, annua usucapio remansit. § Quare autem omnino tam improba possessio et usucapio concessa sit, illa ratio est, quod voluerunt veteres maturius hereditates adiri, ut essent qui sacra facerent, quorum illis temporibus summa observatio fuit, et ut Compare next creditores haberent, a quo suum consequerentur. also Maine, § Haec autem species possessionis et usucapionis and Custom,' etiam lucrativa vocatur: nam sciens quisque rem ch. iv., and alienam lucrifacit. § 58: Necessario tamen 745, SIL. extract. See 'Early Law Hunter, pp. BOOK III, a Sc. a iurisconsultis. herede exstante nihil ipso iure pro herede usucapi potest.1 Cic. de legib. ii. 48-49:—ut conserventur semper et perpetua sint sacra. Quaeruntur, qui adstringantur sacris. Heredum causa iustissima est . . ; deinde qui morte testamentove eius tantumdem capiat quantum omnes heredes . . . ; tertio loco, si nemo sit heres, is qui de bonis, quae eius fuerint cum moritur, usuceperit plurimum possidendo; quarto qui [de] creditoribus eius plu 1 Again, on the other hand, it sometimes happens that he who is aware he possesses a thing belonging to another may yet acquire by usus, as for instance, if any one should take possession of an article appertaining to an inheritance which the heir has not yet reduced into possession; for the right of acquiring by usus is allowed to him, provided such property is susceptible of usucapion. This kind of possession and usucapion is designated pro herede (in the character of heir). § And this acquisition by usus has been allowed to such an extent that even things which appertain to the soil may be acquired in one year. § Now the reason why in this case usucapion in one year of immovables has been established is, because it was formerly supposed that the thing appertaining to the inheritance could, like the inheritance itself, be acquired by usus, and that in one year; for a law of the Twelve Tables directed that things forming part of the soil may be acquired by usus in two years, but the rest of things in one year. Therefore an inheritance seemed to be included among the rest of things,' because it is no part of the soil, as not being even a corporeal thing. And although the view has later on been accepted that inheritances themselves cannot be acquired by usus, yet in respect of all things appertaining to inheritances, even those which are attached to the soil, usucapion in one year held its ground. § Now the reason why such an unjust possession and usucapion have been allowed at all is, because our ancestors wished inheritances to be entered upon very promptly, so that there might be persons to perform family rites, the observance of which was of chief moment in those times, and that creditors might have some one from whom they could recover their claim. § But this kind of possession and usucapion is also styled 'profitable'; because every one knowingly makes profit of a thing owned by another. § Nevertheless, if there is a necessary heir in existence, there can be no usucapion pro herede of anything by operation of law. 6 |