BOOK III. Part III. the same stock, e.g., of the grandchild by its father. In their case the division in stirpes obtains. The second class : ASCENDANTS (according to proximity of degree); brothers and sisters fully related and children of deceased brothers and sisters fully related. Equally near ascendants divide in lineas. When ascendants are concurrent with brothers and sisters, division in capita comes in. A-E each receive When brothers and sisters are concurrent with children of brothers and sisters, division is made in stirpes. BOOK III. Part III. The third class: Brothers and sisters of the halfblood, and children of deceased brothers and sisters of the half-blood. The fourth class: The remaining collateral relations of the testator, according to proximity of degree, and without restriction to any remote degree; those equally near inherit according to heads. (The uncle always precedes the grand-nephew and cousin, the nephew the uncle.) E B C A-D each receive The Praetorian Law of inheritance of spouses" was a § 163, ad fin. retained as subsidiary. Intestate succession to the heritage of a freedman was settled by a constitution of Justinian (A.D. 531): that descendants from freedmen, sprung from their own body, should first be their heirs; in default of such, the patron and his descendants; and finally, the patron's collateral relations to the fifth degree inclusively. The right of inheritance of the pa- cr. §.163. rens manumissor was completely abolished by Nov. 118. SUCCESSION CONTRARY TO A TESTAMENT (LAW OF NECESSARY INHERITANCE). LAW OF PRAETERITIO (FORMAL LAW OF § 167. ACCORDING TO IUS CIVILE It is doubtful whether freedom of testation in the oldest Law was entirely unlimited, so that no succession against the Testament itself was opened to the next relations who were passed over. Of the original form of the mancipatory testament, to which indeed. also the uti legassit' of the Twelve Tables" relates, it can with certainty alone be shown that in it neither institution nor disinherison of the fil. fam. was possible, and that consequently it was intended for the case where the paterfamilias had not already an heir in the fil. fam., in which event the latter was replaced by the familiae emptor. But since at the moment of the death of the pater fam. the 'sui' enter ipso iure into control of the property left behind, it is most improbable that the testament had no validity, if sui heredes' existed; and even if the filii fam., in consequence of the familiae mancipatio, had been excluded from expectation of the property already in the lifetime of him in whom resided the potestas, by the familiae emptor standing related to them as master of the familia defuncti, this could have held good always alone in respect of such as were living at the moment. of the testator's death, not of those only born later on (postumi).d Pomp. Verbis legis XII tabularum his VTI LEGASSIT SVAE REI ITA IVS ESTO latissima potestas tributa videtur et heredis instituendi et legata et libertates dandi, tutelas quoque constituendi: sed id interpretatione coangustatum est vel legum vel auctoritate iura constituentium.-D. 50, 16, At any rate, this freedom of testation already very early, and indeed from the first, found its corrective in the legal proposition, 'adgnatione postumi testamentum rumpitur,' which already supplemented the presumed will of the testator. Ulp. xxii. 18: Postumi quicumque liberi cuiuscumque sexus omissi, quod valuit testamentum, adgnatione rumpunt.* Id. xxiii. 3: Adgnascitur suus heres aut adgnascendo aut adoptando aut in manum conveniendo aut in locum sui heredis succedendo, velut nepos mortuo filio aut emancipato, aut manumissione, id est si filius prima secundave mancipatione manumissus reversus sit in patris potestatem.' Finally, a formal limitation also of the freedom of testation was undoubtedly blended with the recasting of the form of the testament. For since now the heir nominated in the testament did not become owner of the property by acquisition of the inheritance until after the testator's death, but the control of the property ipso iure fell to the sui' immediately upon the death of the pat. fam., it was necessary for the testator, in order to obtain the heritage for him, to remove the 'sui' from the inheritance by express and 1 By these words of a Law of the Twelve Tables, 'As a man shall have bequeathed his property, so let it be regarded as law,' the most comprehensive power seems to be given both of instituting heirs and bequeathing legacies and freedom, besides creating guardianships; but this has been in part curtailed by statutory rules, and in part by the opinion of those who frame the laws. 2 Any after-born descendants of either sex, left out, by their after-birth upset a testament previously valid. 3 A suus heres accrues either by after-birth or by adoption, or by passing under manus, or by stepping into the place of a suus heres, as a grandson, if the son have died or been emancipated, or by manumission, that is, if a son who has been manumitted from a first or second mancipation have returned under his father's power. BOOK III. Part III. BOOK III. Part III. formal declaration in the testament, that is, to deprive them of the character of heirs (ex-heredes). Thus, then, arose the legal rule, that a testament in which the testator has not thought of his already existing 'suus' (ie., has passed him over) is from the beginning invalid, and the duty arose for the testator either of instituting as heirs his 'sui'-both those already existing, and 'postumi'—or of duly (rite) disinheriting them (exheredare). The persons in respect of which this merely formal duty devolves upon the testator are called heirs by necessity'a; the legal rules redistinguished lating to this constitute the Law of 'praeteritio,' or Law of formal necessary inheritance. a Which have indeed to be from heredes Id. xxii. 14: Sui heredes vel instituendi sunt vel exheredandi.' Gai. ii. § 123: Qui filium in potestate habet, curare debet, ut eum vel heredem instituat vel nominatim exheredet; alioquin si eum silentio praeterierit, inutiliter testabitur: adeo quidem, ut nostri praeceptores existiment, etiamsi vivo patre filius defunctus sit, neminem heredem ex eo testamento existere posse, quia scilicet statim ab initio non constiterit institutio; sed diversae scholae auctores, si quidem filius mortis patris tempore vivat, sane impedimento eum esse scriptis heredibus et suum ab intestato heredem fieri confitentur, si vero ante mortem patris interceptus sit, posse ex testamento hereditatem adiri putant, nullo iam filio impedimento." 1 Sui heredes must be either instituted or disinherited. 2 He who has a son under his power must take care either to institute him heir or expressly to disinherit him; otherwise, if he pass him over in silence, the testament will be void; and this is so far the fact that, as our authorities think, even if the son should have died in the lifetime of his father, there can be no heir under that testament, because of course the institution was void from the very first. But the authorities of the opposite school acknowledge that, if the son in fact should be alive at the time of the death of the father, he certainly is in the way of the appointed heirs, and becomes suus heres by intestacy; |