BOOK III. Ulp. Circa inofficiosi querelam evenire plerumque adsolet, ut in una atque eadem causa diversae sententiae proferantur. Quid enim si fratre agente heredes scripti diversi iuris fuerunt? Quod si fuerit, pro parte testatus pro parte intestatus decessisse videbitur.-1. 24 eod.' The whole Law of the legitimate part is in abeyance in the case of a testamentum militis. § 170. THE LAW OF NECESSARY INHERITANCE ACCORDING TO Nov. 115. By Nov. 115 (542 A.D.) the previous Law of praeteritio and that of the legitimate part were blended as follows. (1) Ascendants may henceforth neither pass over nor disinherit their descendants (taken as purely cognatic) and reversely-not even with a bequest of the legitimate part-save for certain statutory reasons to be alleged in the testament itself, and to be proved by the heir instituted. Of such grounds for exclusion on account of grave culpability, there are fourteen for disinherison of descendants, eight for that of ascendants. (2) In the case of praeteritio or groundless disinherison of a necessary heir-and it is immaterial whether anything have been otherwise left to him -the result shall be avoidance of the testament in respect of the institution of heirs, in case the necessary heir that has suffered injury makes it available (contested, so-called relative nullity), and pure intestate succession; but its other contents (as In respect of a complaint as to want of affection, it commonly happens that in one and the same case different judgments are put forth. For how if, when a brother sues, the designated heirs have been in opposite legal relations? If this is the case, it will be considered that the testament subsists in part, and in part does not. BOOK III. Part III. provision for legacies and guardianships and the like) are upheld.—The persons disinherited or passed over make good their right by hereditatis petitio.'a a § 176. If the necessary heirs have been instituted, but for an amount less than the legitimate part, they can only require the making good the deficiency by the other testamentary heirs." In respect of the brothers and sisters of the testator, no change was made in the existing Law. Inst. ii. 18, 3. CHAPTER III. ACQUISITION OF INHERITANCE AND PROTECTION § 171. MANNER AND FORM OF ACQUISITION. DELATIO confers only the legal possibility of becoming heir the delatee first becomes actual heir by acquisition of the inheritance (adquisitio hereditatis). The acquisition is, as a rule, effected by a voluntary act on the part of the person called (heredes voluntarii, extranei). Gai. ii. § 152: Heredes autem aut necessarii 1 Now heirs are said to be necessarii or sui et necessarii or extranei.-Those who are not subject to the power of the testator are called stranger-heirs; therefore our children also who are not under our power, when they are instituted heirs by us, are looked upon as strangers. For which cause also those who are instituted heirs by their mother are in the same category, because women have no children under their power. D. 50, 16, 151. (§ 153, supra.) BOOK III. a Gai. ii. 157; D. 28, 2, 11. In respect, however, of certain persons it obtains ipso iure, independently of the cognizance and volition of the person called. Ib. § 157:-necessarii vero ideo dicuntur, quia omnimodo sive velint sive nolint, tam ab intestato quam ex testamento heredes fiunt.1 Hermog. Verba haec: Publius Maevius si volet, heres esto' in necessario condicionem faciunt, ut si nolit, heres non existat: nam in voluntarii heredis persona frustra adduntur, cum, etsi non fuerint addita, invitus non efficitur heres.-D. 28, 7, 12.2 These persons (heredes necessarii) are (1) the sui' of the testator," to whom, however, the Praetor gives the beneficium abstinendi,' which is of importance in the case of an inheritance burdened with debt. : Gai. Necessariis heredibus non solum impuberibus, sed etiam puberibus abstinendi se ab hereditate proconsul potestatem facit, ut quamvis creditoribus hereditariis iure civili teneantur, tamen in eos actio non detur, si velint derelinquere hereditatem. Sed impuberibus quidem etiamsi se immiscuerint hereditati, praestat abstinendi facultatem, puberibus autem ita, si se non immiscuerint.-1. 57 pr., D. h. t. (de A. v. O. H. 29, 2).3 1 But they are called necessarii, because in any case, whether they are willing or not, they become heirs, as well under intestacy as by virtue of a testament. The following words: 'P. M. shall be heir, if he will,' create a condition in respect of a necessary heir, so that if he is unwilling, he does not become heir. For in the case of a voluntary heir their addition is useless, since although the addition were not made, he does not become heir against his will. 3 To necessary heirs, not only impuberes but even puberes, the proconsul gives power to renounce an inheritance, so that, although by civil law they are liable to the creditors of the inheritance, yet no action is given against them if they desire to abandon the inheritance. But upon impuberes he confers Ulp.non est sine herede," qui suum heredem habet licet abstinentem se.-D. 40, 5, 30, 10.1 Iul. Praetor permittendo his, qui in potestate fuerint, abstinere se hereditate paterna manifestum facit ius se in persona eorum tribuere, quod futurum esset, si liberum arbitrium adeundae. hereditatis habuissent.-1. 89, D. de leg. 1.2 (2) Slaves whom the testator has instituted as heirs cum libertate.'b Gai. ii. §§ 153-155: Necessarius heres est servus cum libertate heres institutus; ideo sic appellatus, quia, sive velit sive nolit, omnimodo post mortem testatoris protinus liber et heres est. Unde qui facultates suas suspectas habet, solet servum primo aut secundo vel etiam ulteriore gradu liberum et heredem instituere, ut si creditoribus satis non fiat, potius huius heredis quam ipsius testatoris bona veneant, id est ut ignominia, quae accidit ex venditione bonorum, hunc potius heredem quam ipsum testatorem contingat; quamquam apud Fufidium Sabino placeat eximendum eum esse esse ignominia, quia non suo vitio, sed necessitate iuris bonorum venditionem pateretur: sed alio iure utimur. Pro hoc tamen incommodo illud ei commodum praestatur, ut ea quae post mortem patroni sibi adquisierit, sive ante bonorum venditionem sive postea, ipsi reserventur.3 this power even if they have intermeddled with the inheritance; upon puberes, however, in case they have not intermeddled. 1 A man is not without an heir who has a suus heres, although he renounce. 2 The Praetor, by allowing those who were under power to renounce their ancestor's inheritance, shows plainly that he confers on them the right that they would have had if they had had free discretion as to entering upon the inheritance. 3 A necessary heir is a slave instituted heir with a grant of freedom: : so called because, whether he will or not, he is in any case and forthwith free and heir upon the death of the testator. BOOK III. a Sc. iure civili. §§ 37, 159: Gai. iii. 78. ROOK III. l'art 111. Ulp. xxii. 24: Necessariis tantum heredibus abstinendi potestas non datur.' Gai. ii. 160: Quin etiam similiter abstinendi potestatem facit praetor etiam ei qui in causa mancipii est, si cum libertate heres institutus sit, quamvis necessarius, non etiam suus heres sit, tamquam servus.' a The voluntary heir acquires the inheritance by entry Brown, s. vv. (aditio hereditatis). This comes about either by means of express, yet informal, declaration of the will to be heir, or tacitly by acts expressing, and giving effect to, such will (pro herede gestio). Paterson, s. 781; Bell, s. Behaviour as heir.' : Ulp. Pro herede gerere videtur is, qui aliquid facit quasi heres: . . . nam hoc animo esse debet, ut velit esse heres; ceterum si quid pietatis causa fecit, si quid custodiae causa fecit, apparet non videri pro herede gessisse.-1. 20 pr., D. h. t.s . Wherefore, a man who is apprehensive of his own insolvency commonly appoints a slave free and heir in the first, second, or even a lower grade, so that if there is not sufficient for the creditors, the goods may be sold rather as those of such heir than of the testator himself; that is, that the disgrace which attaches to the sale of the goods may fall upon this heir rather than upon the testator himself: although Sab., according to Fufid., holds that the slave cught to be exempted from disgrace, because he submits to the sale of the goods not from his own fault, but from legal necessity; but we follow the contrary rule. § In return, however, for this drawback there is allowed to him the advantage that whatever he himself has acquired after the patron's death, whether before the sale of the goods or after, is reserved for his own use. 1 To heirs alone that are necessarii no power is granted of renunciation. 2 Nay more, in like manner the Praetor gives power of renunciation to a person who is in the condition of bondage, if he has been appointed heir with grant of freedom, since he, although he is a heres necessarius, is not also a suus, as being a slave. 3 He is considered to act as heir who performs any act as if heir . . . for he must be in such a mind as to wish to be heir; but if he has done anything from pious impulse, or any act for |