POOK III. Part III. or that he cannot do so (death before entry upon the inheritance, loss of the testamenti factio)-then, in default of substitutions, and except as to cases of transmission, the hereditary portion which lapses is ipso iure and of necessity acquired by the joint-heirs, in virtue of the principle of the totality of the inheritance" right of ACCRUAL, or augmentation (ius For the Eng- adcrescendi). a § 153. lish doctrine of survivorship in Joint Tenancy, see Blackst. ii. 183-4 (Steph. i. 342-3). Gai. Qui semel aliqua ex parte heres exstitit, deficientium partes etiam invitus excipit, id est tacite ei deficientium partes etiam invito adcrescunt.-D. 29, 2, 53, 1.' Marc. Si ex pluribus legitimis heredibus quidam omiserint adire hereditatem, vel morte vel qua alia ratione impediti fuerint, quominus adeant, reliquis qui adierint adcrescit illorum portio, et licet decesserint antequam adcresceret, hoc ius ad heredes eorum pertinet.—D. 38, 16, 9.* If several heirs exist, the hereditary portion which lapses accrues to all in the ratio of their own portions in such inheritance. Cels. Cum quis ex institutis, qui non cum aliquo coniunctim institutus sit, heres non est, pars eius omnibus pro portionibus hereditariis adcrescit.—1. 60 (59), § 3, D. de her. inst. 28, 5.3 This is, however, subject to the institution of an heir jointly with the one that has lapsed, to the same hereditary portion, or his inheriting with such in the same He that has once become heir for any share takes, even against his will, the shares of those that fail, i.e, the shares of those that fail come tacitly to him even without his wishing it. 2 If some of several heirs-at-law have neglected to enter upon the inheritance, whether as hindered from entering by death, or any other cause, their share accrues to the rest who have entered, and though they may have died before such accrual, this right belongs to their heirs. When one of those nominated, who was not nominated jointly with some one, is not heir, his share accrues to all in the ratio of their shares in the inheritance. stock, in which case the portion that becomes unappropriated accrues to him alone. Iavol. Heredes sine partibus utrum coniunctim an separatim scribantur, hoc interest, quod, si quis ex coniunctis decessit, non ad omnes, sed ad reliquos qui coniuncti erant: sin autem ex separatis, ad omnes, qui testamento eodem scripti sunt heredes, portio eius pertinet.—1. 64 (63) eod.' Cels. Coniunctim heredes instituti aut coniunctim legari hoc est: totam hereditatem et tota legata singulis data esse, partes autem concursu fieri.-1. 80, D. de leg. III. (32). Gai. Si duobus filiis et ex altero filio duobus nepotibus bonorum possessio competat, et alter ex nepotibus non petat, pars eius fratri adcrescit; si vero ex filiis alter non petat, tam fratri quam nepotibus id prodest: namque tunc duo semisses fiunt, ex quibus alterum filius alterum nepotes consequuntur.-D. 37, 4, 12 pr.3 2. Into the pre-existing Law the lex Iulia et Papia Poppaea penetrated very deeply with its capricious rules upon escheat. As caducum-in contrast with the 'pro non scripto,' i.e., what was from the outset imperfectly bequeathed, in respect of which it remained in the subsisting Law-everything counts that cannot 1 Whether heirs without definite shares are nominated jointly or separately causes this difference, that if one of those jointly nominated should die, his share comes not to all, but only to the rest of those jointly nominated with him. But if one of those separately instituted should die, his share belongs to all who were designated heirs in the same testament. 2 By joint institution of heirs or a joint bequest is meant, that the whole inheritance and the whole of the legacies have been given to individuals, but that the shares arise by coalescence. If the bon. poss. belongs to two sons and two grandsons by another son, and one of the grandsons makes no claim, his share accrues to his brother; but if one of the sons makes no claim, that benefits as well his brother as the grandsons; for there are then formed two halves, of which the son receives one, and the two grandsons receive the other. BOOK III. BOOK III. a § 171. be acquired by a testament," whether on account of incapacity of the person to whom regard is had (part heir or legatee), or by reason of a disposition by last will being impaired or not operating, either after the death of the testator (caducum in the narrower sense) or while he is still alive (in causa caduci). By the lex Papia, no right of accrual obtained in respect of the caducum, but the heirs instituted in the testament, and after them the legatees, who had children (ius patrum) could-down to Caracalla-vindicate it cum suo onere; and in this 'collegatarii coniuncti' had §183. ad fin. precedence over all others. Gai. ii. § 207: Et quamvis prima causa sit in caducis vindicandis heredum liberos habentium, deinde si heredes liberos non habeant, legatariorum liberos habentium, tamen ipsa lege Papia significatur, ut collegatarius coniunctus, si liberos habeat, potior sit heredibus, etiamsi liberos habebunt.1 Ulp. xvii. 3: Caduca autem cum suo onere fiunt: ideoque libertates et legata vel fideicommissa ab eo data, ex cuius persona hereditas caduca facta est, salva sunt." The earlier right of accrual only remained for ascendants and descendants to the third degree instituted in the testament. : Id. xviii. Item liberis et parentibus testatoris usque ad tertium gradum lex Papia ius antiquum dedit, ut heredibus illis institutis, quod quis ex 1 And although in claiming lapses, one primary right is that of the heirs who have children, and then, if the heirs have no children, the right belongs to the legatees that have children, yet it is expressly stated in the 1. Papia itself that a conjoint co-legatee, if he have children, is preferred to heirs, even though they shall have children. 2 Now lapses ensue with their own burdens; and therefore gifts of freedom, legacies, or bequests in trust, charged upon him in whose person the inheritance has lapsed, are not affected. eo testamento non capit, ad hos pertineat aut In default of such, and previously also of persons entitled to the caducorum vindicatio,' the caducum fell to the Treasury. Id. xvii. 2 Hodie ex constitutione imperatoris. Imp. Iust. Sed et ipsis testamentorum con- : Mod. In tempus capiendae hereditatis institui heredem posse, benevolentiae est, veluti Lucius Titius, cum capere poterit heres esto'; idem et in legato.-1. 63 (62) pr., D. de her. inst.* 3. Justinian, by a Constitution of the year 534 (1. un. C. 6, 51), abolished the whole law of the caducorum vindicatio, and re-established the earlier law of accrual (ius antiquum) in its full extent. The 1. Papia has likewise granted the ancient right to descendants and ascendants of the testator as far as the third degree; so that when such have been appointed heirs, anything which another person does not take under the testament belongs to them in whole or in part, according as it can belong. "At the present day, by virtue of a constitution of the Emp. Antonine, all lapses are claimed for the Treasury, but with a reservation of the old rule for the benefit of descendants and ascendants. * But also as regards testators themselves, the practice as to lapses seemed so very onerous that they introduced substitutions, to avoid lapses, and if they did occur, arranged them so as to fall back upon certain persons, defeating the methods established by the l. Papia in respect of lapses. 4 That an heir can be instituted for the period when he can take the inheritance, is a mark of leniency, for example: 'L. T. shall be heir when he is able to take.' The like also in respect of a legacy. BOOK III. BOOK III. Part III. There is finally a series of cases in which the inheritance or a legacy--has devolved ab intestato or is again taken away ex testamento from the successor, capable of inheritance and acquisition, because of unfitness (indignitas). What is thus taken away (ereptorium s. erepticium) passes as a rule to the Treasury, a Cf. D. 28, 4, 1. in certain cases to other persons." 1, § 3, 1. 4; 38, 6. I, 8. Pap. Cum heredis nomen mutata voluntate paterfamilias incisis tabulis induxisset atque ideo fisco portionis emolumentum adiudicatum fuisset, eam rem legatariis non obesse, qui retinuerunt voluntatem, D. Marco placuit, et ideo cum suo onere fiscum succedere.-D. 34, 9, 16, 2.1 Marc. Aufertur hereditas ex asse et ad fiscum pertinet, si emancipatus filius contra tabulas bonorum possessionem patris ut praeteritus petierit et ex substitutione impuberis adierit hereditatem. -Indignum esse D. Pius illum decrevit, qui manifestissime comprobatus est id egisse, ut per negligentiam et culpam suam mulier, a qua heres institutus erat, moreretur.-1. 2 pr., 1. 3 eod. § 176. PROTECTION OF THE RIGHT OF INHERITANCE. The action with which the heir makes good his right of inheritance is the 'hereditatis petitio,' an actio arbitraria. 1 When the pat. fam. shall have altered his intention, struck out the name of the heir and cut through the tablets, and the amount of his share has accordingly been confiscated to the Treasury, the late Emp. Marcus decided that such circumstance does not prejudice the legatees, who have retained the disposition made to them, and therefore the Treasury succeeds with the heir's own burden. 2 If an emancipated son, who has been passed over, has laid claim to the possession of the father's goods in opposition to his testament, and upon the ground of substitution for a minor has entered upon the inheritance, the whole inheritance is taken from him, and devolves upon the Treasury.-The late Emp. Pius has pronounced such person unworthy as has been quite clearly proved to have brought about by his negligence and fault the death of a woman by whom he was appointed heir. |