BOOK III. Part III. Ulp. Miles et ad tempus heredem facere potest et alium post tempus, vel ex condicione, vel in condicionem.-D. 29, 1, 15, 4.' § 160. SUBSTITUTIONS. The testator can in the institution of heir create several degrees, so that a second is nominated heir in the event of the first not being his heir-because he would not or could not be-and likewise a third in the place of the second, and so on (substituere,-primo, secundo, tertio gradu heredem scribere-primus, secundus heres). This eventual institution of heir is called SUBSTITUTION, 'substitutio vulgaris s. in primum casum.' Mod. Heredes aut instituti dicuntur aut substituti instituti primo gradu, substituti secundo vel tertio.-1. 1 pr., D. h. t. (de vulg. et pup. subst. 28, 6).2 Marcian. Potest quis in testamento plures gradus heredum facere, puta: Si ille heres non erit, ille heres esto,' et deinceps plures.-Et vel plures in unius locum possunt substitui vel unus in plurium, vel singulis vel singuli, vel invicem ipsi qui heredes instituti sunt.— 1. 36 eod.3 Iul. Si Titius coheredi suo substitutus fuerit, deinde ei Sempronius, verius puto in utramque 1 A soldier can nominate an heir for a time, and another after the lapse of such time, or from (the fulfilment) of a condition, or until the fulfilment of a condition. 2 Heirs are called either instituted' or 'substituted': instituted, if in the first degree; substituted, if in the second or third degree. 3 A man can create several degrees of heirs in his testament; for example, 'If this one shall not be heir, that one shall be heir'; and several in succession.-And either several can be substituted in the place of one, or one in the place of several, or single heirs for single, or reciprocally those who themselves have been instituted heirs. partem Sempronium substitutum esse.-1. 27 If the institutus (primus heres) enters upon the inheritance, the substitution loses all significance. With the substitution it was still in the classical Law customary to connect the provision of the 'cretio perfecta or imperfecta-for the primus heres, that is, of a formal entry upon the inheritance within a definite interval." Gai. ii. § 174: Interdum duos pluresve gradus TOQVE IN DIEBVS CENTVM et reliqua ; et deinceps in Ulp. xxii. 34: Si sub imperfecta cretione 1 If Tit. shall have been substituted for his co-heir, and then Sempr. for Tit., I am of opinion that it is more correct that Sempr. is substituted for both parts. 2 Sometimes we create two or more degrees of heirs, in this way: 'Luc. Tit., be heir, and make your decision within the next hundred days after it comes to your knowledge and you are in a position to act. If you shall not accept, be disinherited. Then Maev., be heir, and decide within a hundred days whether you will act,' and so on; and we can in succession make as many substitutes as we wish. § Therefore the person nominated heir in the first degree by signifying his acceptance of the inheritance becomes heir, and the substitute is excluded. By not making such declaration, he is set aside, even though he act as heir, and the substitute steps into his place. BOOK III. a Gai. ii. 164-6. Ulp. xxii. 30-2. BOOK 11. l'art III. admittit substitutum; sed postea D. Marcus constituit, ut et pro herede gerendo ex heres.1 asse fiat Substitutio in secundum casum, that is, substitution in the event of the instituted heir dying after the acquisition of the inheritance, is-except as to the testamentum militis as a rule inadmissible, since it § 159, ad fin. contradicts the nature of Inheritance." § 171. Gai. ii. § 184: Extraneo heredi instituto ita substituere non possumus, ut si heres exstiterit et intra aliquod tempus decesserit, alius ei heres sit.3 Tryph. Miles ita heredem scribere potest: 'quoad vivit Titius heres esto, post mortem eius Septicius.-D. 29, 1, 41.3 It is permitted in Roman Law alone in the form of Pupillary substitution. That is, the testator can nominate an heir for the child under age in his potestas, not merely in the event of its not acquiring the inheritance (either by dying before the father, or by reason of abstinence), but also in the event of its dying before the attainment of puberty. Gai. ii. §§ 179-180: Liberis nostris impuberibus, quos in potestate habemus, non solum ita substituere possumus, ut si heredes non 1 If an heir have been substituted under an imperfect cretio, that is, without the addition of the following words: If you shall not decide, be disinherited,' but thus: 'If you shall not decide, then, Maevius, be heir,' by the very act of deciding the first heir excludes the one postponed to him; if however he do not decide, but act as heir, the first heir lets in the substituted heir for a part of the inheritance. But the late Emp. Marcus afterwards by a constitution enacted that, even by acting as heir, he (i.e., the heir proper) becomes heir to the whole. 2 When a stranger is instituted heir, we cannot substitute to him in such way, that if he become our heir and die within a certain time, another person shall be heir to him. 3 A soldier can nominate an heir thus: ' So long as Tit. lives, he shall be my heir; after his death, Sept.' exstiterint, alius nobis heres sit, sed eo amplius et VENERIT, TVNC SEIVS HERES ESTO. § Quo casu si The pupillary substitute is the father's heir in accordance with the original fundamental idea in pupillaris substitutio'; according to the later one, he is nominated by the father for the impubes, who can himself be disinherited, so that the pupillary substitute receives nothing whatever of the paternal property, but, on the other hand, he appears as the father's heir always alone indirectly when the child has not been disinherited. Cicero, de invent. ii. 21, 62: Quidam pupillum heredem fecit; pupillus autem ante mortuus est, quam in suam tutelam venit; de hereditate ea, 1 We can substitute an heir for our children under the age of puberty, and under our power, not only in such way that, if they shall not become heirs, another person may be our heir; but further that, if they do become our heirs, and yet shall have died under puberty, somebody may be heir to them; for example, thus: Tit., my son, be my heir; if my son shall not be my heir, or if he become heir, and die before he is free from guardianship, then, Seius, be heir.' § In which case, if in fact the son shall not become heir, the substitute becomes heir to the father; but if the son become heir, and die before puberty, the substitute becomes heir to the son himself. Wherefore there are in a way two testaments, one of the father, the other of the son, just as if the son himself had instituted his own heir; or at any rate there is one testament in respect of two inheritances. BOOK III. Part III. BOOK III. a Or' his property in tutela.' quae pupillo venit, inter eos, qui patris pupilli heredes secundi sunt, et inter adgnatos pupilli controversia est; possessio heredum secundorum est. Intentio est adgnatorum: nostra pecunia est, de qua is cuius adgnati sumus testatus non est.' Depulsio est: 'immo nostra, qui heredes secundi testamento patris sumus.' Quaestio est : utrorum sit? Ratio: pater enim et sibi et filio testamentum scripsit, dum is pupillus esset; quare quae filii fuerunt, testamento patris nostra fiant necesse est.' Infirmatio rationis: immo pater sibi scripsit et secundum heredem non filio, sed sibi iussit esse; quare, praeterquam quod ipsius fuit, testamento illius vestrum esse non potest.' Iudicatio possitne quisquam de filii pupilli re testari; an heredes secundi ipsius patrisfamilias, non filii quoque eius pupilli heredes sint'?1 Ulp. Moribus introductum est, ut quis liberis impuberibus testamentum facere possit, donec 1 A certain person made his ward his heir, but the ward died before he entered into his tutelage." There is a dispute as to the inheritance which devolved upon the ward, between the secondary heirs of the ward's father and the next of kin of the ward: the possession belongs to the secondary heirs. The statement of claim by the next of kin is: 'The money is ours of which he whose next of kin we are made no disposition.' The rebutter is: Nay rather, it is ours who are secondary heirs by the father's testament.' The issue is: To which of the two does it belong? The principle (set up) is: "The father wrote a testament for himself and his son whilst a ward; wherefore things which belonged to the son must needs become ours by the father's testament.' The demurrer to such principle is : 'Nay rather, the father wrote the will for himself, and directed that the secondary heir should be not his son's, but his own; wherefore, save as to what was the son's own, (the property) cannot be yours by the father's testament.' It is for the judge to say, whether any man can make a testament in respect of property of a son who is a ward, or whether the secondary heirs are heirs of the pat. fam. himself, and not also those of his son, being a ward. |