: a BOOK III. Part III. Paul. Si quis eum, qui in utero est, praetermiserit, etiam nondum nato eo alius a qui heres institutus est, bonorum possessionem contra tabulas Sc. e liberis. admittere potest.-Sed et si decesserit, antequam peteret bonorum possessionem, non est iniquum praetorem decernere heredibus (eius) salvum fore commodum bonorum possessionis secundum tabulas vel contra tabulas.-D. 37, 4, 1. 4, § 3 (Paul.), 1. 5 (Iul.).' In the later Law, the delatio to the heirs of the person called (successio in delationem) was developed for certain cases (so-called cases of transmission) as a regular institute of law; of widest extent is the socalled transmissio Iustinianca. Imp. Iust. Sancimus: si quis vel ex testamento vel ab intestato vocatus deliberationem meruerit vel hoc quidem non fecerit, non tamen successioni renuntiaverit, . . . praedictum arbitrium in successionen suam transmittat, ita tamen, ut unius anni spatio eadem transmissio fuerit conclusa; et si quidem is, qui sciens hereditatem sibi esse vel ab intestato vel ex testamento delatam, deliberatione minime petita intra annale tempus decesserit, hoc ius ad suam successionem intra annale tempus extendat.-C. 6, 30, 19.2 If a man has passed over a child in the womb, another person who has been appointed heir, even if the child has not yet been born, can claim bon. poss. as against the testament.But also if the child has died before he claimed bon. poss., it is not unfair for the Praetor to decide that the advantage of the bon. poss. shall remain secured to his heirs, as well in agree. ment with the testament as contrary to it. 2 We enact that every one who, having been called to the testamentary or the intestate succession, is entitled to deliberation, or has not in fact done so, but has not renounced the inheritance, may transmit to his heirs the above-mentioned legal privilege, in such manner, however, that the same transmission shall be completed within the space of one year. And if he who is aware that an inheritance has devolved upon him, either under intestacy or by virtue of a testament, dies within a year without laying claim to the respite for deliberation, he may transmit this right to his heirs within the period of one year. BOOK III. a § 153 Gai. iv. 34. e D. 29, 2, 8, pr.; 37, 1, 3 pr. $174. EFFECT OF THE ACQUISITION (BENEFICIUM INVEN- By the acquisition of an inheritance the control of Pomp. Heres in omne ius mortui, non tantum singularum rerum dominium succedit, cum et ea, quae in nominibus sint, ab hereditatem transeant.-D. 29, 2, 37.' Flor. Heres quandoque adeundo hereditatem, iam tunc a morte successisse defuncto intelligitur. -1. 54 eod. Paul. Omnis hereditas, quamvis postea adeatur, tamen cum tempore mortis continuatur.— D. 50, 17, 138.3 Thus he enters also in respect of the ownership, as well as of the claims and debts of the testator, entirely into his place, so that in proprietary relations both count as one person; therefore in respect of inherited actions the intentio is always placed to the name of the heir; and the heir is liable for debts of the testator beyond the extent of the inheritance." Pomp. Hereditatis appellatio sine dubio continet etiam damnosam hereditatem: iuris enim nomen est, sicuti bonorum possessio.-D. 50, 16, I 19.* 1 An heir succeeds to the whole legal position of the deceased, not only to the ownership of the individual objects, since even the liabilities pass to the heir. At whatever time the heir enters upon the inheritance, he Every inheritance, although the entry be made at a later a BOOK III. Part III. stone, ii. 510 Paterson, ss. present law in Liability for the debts beyond the value of the inheritance, the heir that enters can, from the time of Justinian, avoid by preparation of an inventory of the estate (beneficium inventarii)," in certain form and Cf. Blackwithin certain intervals. Soldiers are exceptionally (Steph. ii. 202); always liable alone to the extent of the property left. Markby, s. 800: On the other hand, the Classical Law already gives to 695, 782.-The the creditors of the testator-for protection against Scotland rests the risk of the personal insolvency of the heir-the upon the Con beneficium separationis,' by means of which they can of 1874, sect. effect a severance, through the magistrate, of the property inherited from that which is the heir's own, and exclusive satisfaction from the former in preference to the creditors of the heir. Ulp. Solet autem separatio permitti credi- veyancing Act 12. BOOK III. a Cf. § 135. creditores vero testatoris ex bonis heredis nihil.— D. 42, 6, l. 1, §§ 1, 2, 10, 12, 14, 17.' If several heirs (cohaeredes) exist, there arises between them by the entry a communio, in respect of the inheritance, to accomplish the destruction of which, by severance and settlement of accounts, there belongs to each the actio erciscundae, 'erctum ciere.' " : a Gai. Haec actio proficiscitur e lege XII tabularum namque coheredibus a communione discedere necessarium videbatur aliquam actionem constitui, qua inter eos res hereditariae distribuerentur.—1. 1 pr., D. fam. erc. 10, 2.3 Ulp. Familiae erciscundae iudicium ex duobus 1 Now separation is commonly allowed to creditors from the following causes: e.g., some one has Seius as his debtor; the latter is dead: Tit. becomes his heir; he is insolvent and suffers a sale; the creditors of Seius say his goods meet their claim, the creditors of Tit., accordingly, must be satisfied with the property of Tit., and that thus a sale must take place of two estates, so to speak. But on the other hand, the creditors of Tit. will not claim a separation. For any one is at liberty to place his creditor in a worse position by getting a new creditor.—It is to be noted that only those creditors can claim separation who have taken a stipulation from the heir with no thought of novation; but . . . they have forfeited the advantage of separation, for such persons have once for all followed the indebtedness of the heir, and cannot now detach themselves from him, since they have in a manner made choice of him; the same will hold good even if they have required interest from him with the intention, as it were, of making choice of him.-It is, moreover, to be noted that after the hereditary goods have been mingled with those of the heir, it is impossible to claim separation. . . . Now the praetor or president with regard to all such matters shall determine whether separation is to be allowed or not.-Moreover, it is to be noted that it is commonly held that, if aught remains over from the bon. poss. of the testator, the heir's creditors may have it for their claims, but the testator's creditors can have nothing from the goods of the heir. 2 This action is derived from a law of the Twelve Tables; for it seemed necessary that an action should be created for those heirs who wish to be quit of the community, by virtue of which the hereditary property should be divided amongst them. constat, id est rebus atque praestationibus, quae The claims and debts of the inheritance are divided ipso iure in the ratio of shares in the inheritance. Imp. Gord. Et quae in nominibus sunt non recipiunt divisionem, cum ipso iure in portiones hereditarias ex lege XII tabularum divisa sunt.1. 6, C. eod. 3, 36.2 Gai. Plane ad officium iudicis nonnumquam pertinet, ut debita et credita singulis pro solido aliis alia adtribuat, quia saepe et solutio et exactio partium non minima incommoda habet; nec tamen scilicet haec adtributio illud efficit, ut quis solus totum debeat vel totum alicui soli debeatur, sed ut, sive agendum sit, partim suo partim procuratorio nomine agat, sive cum eo agatur, partim suo partim procuratorio nomine conveniatur.-1. 3, D. eod.3 $ 175. RIGHT OF ACCRUAL. CADUCA. EREPTORIA. 1. Ius antiquum. If of several testamentary or intestate heirs one lapse before the acquisitionwhether because the condition under which he has been instituted is defective, or that it is not his will to acquire his hereditary portion (repudiation and omission), The action for partition of an inheritance comprises two objects, things and performances, which (latter) are personal. 2 That which consists of debts does not admit of division, since, according to a Law of the Twelve Tables, it has by operation of law been divided into shares of the inheritance. 3 It is clearly part of the duty of the iudex to assign debts and credits integrally to individual heirs, different ones to different persons, because the payment and getting in of the shares is often attended by great inconvenience. The result of this assignment, however, is not that a single heir undertakes a whole debt, or the whole is owed to any one heir alone, but that, whether it be necessary to bring an action, he shall sue firstly in his own name, partly as agent, or if proceedings be taken against him, he must be sued partly in his own name, partly as agent." BOOK III. Part III. a Cf. Hunter, PP. 759, 89. |