a Anct. Law,' ch. vi.; Markby, ch. xviii. PART III.-LAW OF INHERITANCE." BOOK III. Part III. CHAPTER I. GENERAL DOCTRINES. § 153. NATURE AND SUBJECT-MATTER OF THE LAW OF INHERITANCE. THE Law of INHERITANCE in the wider sense is the sum of legal rules as to the succession of living persons to the property, or heritage, left by a deceased person. If there be only single portions of property upon which the survivor enters, Singular Succession occurs. Such a singular succession can also come into account in the Law of Inheritance in respect of the doctrine of legacies; but in it lies not the essence of inheritance, which is the rather presupposed by it, and in relation to it is seen as something subordinate and immaterial. According to Roman Law, Inheritance D. 37, 1, 3 pr., or Succession is always UNIVERSAL Succession, that § 17. is, the succession of one or several survivors to the property of the deceased as a whole, by which the successor takes the place of the previous subject of ownership, and becomes the one who sustains the control of the property (familia defuncti); in other words, assumes the personality of the deceased under Property Law, and by representation continues it. The totality of the legal precepts that avail as to this succession, as well as the subjective ius succedendi,' is the Law of Inheritance in the wider sense, HEREDITAS, which word likewise designates the heritage, whilst the successor is called 'heres' (heir). Iul. Hereditas nihil aliud est, quam successio in universum ius quod defunctus habuerit.— : Ulp. Heredem eiusdem potestatis iurisque esse, cuius fuit defunctus, constat.-1. 59 eod.* Pap. Hereditas etiam sine ullo corpore iuris intellectum habet.-D. 5, 3, 50 pr.3 Cic. de legib. ii. 48: Nulla est persona, quae ad vicem eius, qui e vita migravit, propius accedat," The succession is as a rule perfected first by the acquisition of the inheritance (adquisitio hereditatis); but the acquisition always supposes the calling to, or devolution of, the inheritance (delatio hereditatis), that is, a legal right to assume it. Ter. Clem.: Delata hereditas intelligitur, quam quis possit adeundo consequi.-1. 151, D. de V. S. 50, 16.' 'Delatio' and acquisition of the inheritance are exceptionally concurrent in the case of heredes necessarii,'b BOOK III. Part III. a Sc. quam heres. See § 171, ad init. tract: cf, D. 45, 1, 61. In Roman Law there are only two grounds of delatio, viz., Testament and Law; and accordingly, a dis- Not Continction is made between TESTAMENTARY succession (successio heres ex testamento s. secundum tabulas sc. testamenti) and INTESTATE or Legal succession (successio intestati s. ab intestato, legitima hereditas, legitimus heres). Gai. ii. § 99: (Hereditatum) duplex condicio 1 Inheritance is nothing else than the succession to the whole of the rights which a deceased person shall have possessed. 2 It is well known that the heir has the same power and the same rights which the deceased possessed. 3 Hereditas constitutes a legal conception even without any material thing. There is no person that more nearly (that is, than the heir) approaches representation of him that has departed this life. "An inheritance is regarded as offered which a man can acquire by entry. BOOK III. est: nam vel ex testamento, vel ab intestato ad nos pertinent.' The latter, that is, the appointment to the inheritance of certain persons closely related to the deceased, in a certain order of succession, by the law itself, only obtains in the absence of a testament. Ulp. Quamdiu potest ex testamento adiri hereditas, ab intestato non defertur.-D. 29, 2, 39.2 Both grounds of delatio simply exclude each other according to Roman civil Law, so that, if the testator has nominated an heir only for the one part of his heritage, the legal heirs are nevertheless not collateral to the latter, or called to the other part, but the former remains sole heir. The ground for this lies, on the one hand, in the principle of the Totality of the inheritance,—because he that nominates his heir by a testament simply makes a disposition of his property as a WHOLE and of the continuance of his absolute control under Property Law-; on the other hand, in the subsidiary character of the Legal succession, which cannot In t. 2, 18, 6. obtain so long as the testament is effectual." Pomp.: Ius nostrum non patitur eundem in paganis et testato et intestato decessisse, earumque rerum naturaliter inter se pugna est: 'testatus' et 'intestatus.'-1. 7, D. de R. J.3 Cic. de inv. ii. 21, 63: Unius pecuniae plures dissimilibus de causis heredes esse non possunt, nec umquam factum est, ut eiusdem pecuniae alius testamento alius lege heres esset.* Inheritances have a twofold character; for they belong to us either upon the ground of a testament, or by an intestacy. 2 As long as entry can be made upon an inheritance, there is no devolution of it by intestacy. Our law does not admit amongst civilians of the same person having died both with a testament and intestate, and there is a natural repugnancy between those two relations: 'testate' and 'intestate.' 4 Several cannot be heirs to one sum of money for different reasons; nor has it ever been effected that one person was heir by a testament, another heir by law to the same sum of money. Ulp.: Miles pro parte testatus potest decedere, BOOK III. pro parte intestatus.-D. 29, 1, 6.1 In certain cases a Legal succession obtains even contrary to the testament: successio contra tabulas,' the law of NECESSARY succession." Part 111. a § 167. iacens: sce From the death of the testator until acquisition of the inheritance the heritage remains as an independent Hereditas property, regarded yet as still controlled and kept to- Brown and Bell, gether by the will of the testator-upon whose continued action, indeed, the very significance and opera- mortuus saisit tion of the testament are based. Ulp. Hereditas' iuris nomen est, quod et accessionem et decessionem in se recipit.-1. 178, § 1, de V. S. Hermog. Hereditas in multis partibus iuris pro domino habetur adeoque hereditati quoque ut domino per servum hereditarium adquiritur.— D. 41, 1, 61 pr.3 : Ulp. Hereditas non heredis personam sed defuncti sustinet.-1. 34 eod.* Iavol. Heres et hereditas tametsi duas appellationes recipiunt, unius personae tamen vice funguntur.-D. 41, 3, 22.5 Gai. Res hereditariae, antequam aliquis heres existat, nullius in bonis sunt.-D. 1, 8, 1 pr. Iavol. Inter hereditarium servum et eum, qui 1 A soldier can die with a testament in respect of part of his property, intestate in respect of (the other) part. 2 Inheritance' is the name of a right which admits both of increase and decrease. 3 An inheritance in many parts of the Law is regarded in the light of its owner, and so an acquisition is made for the inheritance as owner by a slave appertaining to the inheritance, just as for his owner. The inheritance represents not the person of the heir, but that of the deceased. Although heir and inheritance are two different designations, both nevertheless represent one person. Inheritances belong to no one previous to the coming forward of an heir. s. vv. Contra, in English Law: vivum' (Paterson, s. 779). BOOK III. a Cf. ibid. § 83. pro derelicto habetur, plurimum interest, quoniam alter hereditatis iure retinetur nec potest relictus videri, qui universo hereditatis iure continetur.— D. 45, 3, 36.a1 Scaevola ait . . . hereditati furtum non fieri, quia possessionem hereditas non habet, quae facti est et animi.-D. 47, 4, 1, 15.2 § 154. THE PRAETORIAN SUCCESSIONAL SYSTEM OF BONORUM POSSESSIO. Besides the civil successional system of hereditas,' which rests essentially on the Twelve Tables, there arose already during the Republic the Praetorian D. 37, 1, 3 pr. successional system of bonorum possessio,' which, as the Praetorian Law in general, taking account of the growing and more elastic conceptions and requirements of Law-- adiuvandi, supplendi, corrigendi iuris civilis gratia '-connected itself with the system of the ius civile. Ulp. Lege obvenire hereditatem non improprie quis dixerit et eam, quae ex testamento defertur, quia lege xii tabularum testamentariae hereditates confirmantur.-D. 50, 16, I 30.3 Paul.: Hereditatis appellatione bonorum quoque possessio continetur.-1. 138 eod.* 1 There is much difference between a slave of the inheritance and him that is regarded as abandoned, since the former is retained by the right belonging to the inheritance, and he cannot be regarded as abandoned who is embraced in the aggregate of the rights of the inheritance. 2 Scaev. says. an inheritance cannot be stolen, because the inheritance has not possession, which is a matter of fact and of intention. 3 One might not improperly say that even such an inheritance devolves by Law which is offered by virtue of a testament, because testamentary inheritances are confirmed by the Law of the Twelve Tables. Under the designation hereditas is also comprised possession of the goods. |