BOOK III. a Supra. Both systems of succession remained independently collateral to one another down to the Justinianean period, although in the course of time some persons acquired a right of civil inheritance who at the first were entitled to merely Praetorian inheritance. Bonorum possessio and hereditas were first essentially blended together through the comprehensive reform by Justinian of the whole Law of Inheritance. In the history of bonorum possessio much is obscure and largely controverted, as in particular its startingpoint, that is, the question, what was its original signification, and further, how the whole Praetorian system of succession in general arose, and in what form, in relation to the Civil Law, it first procured validity. Most probable is the supposition that bonorum possessio was introduced originally 'adiuvandi iuris civilis gratia' for the civil heirs, whether testamentary or intestate, so as to remove possible delay in entering upon an inheritance in the absence of civil intervals for deliberation," and for prevention of the breaking up of the heritage impending in the civil pro herede usucapio'; but then (perhaps already simultaneously) it was also given ‘supplendi iuris civilis gratia '-in order further to obviate the want of an heir, which readily happened according to Civil Law-in default of civil heirs of other persons;d and that, on the contrary, the corrective function of bonorum possessio, given along with, indeed before, the civil heir, was not developed until later on, keeping pace with §§ 163, 168; legal conceptions of the ius gentium, which made their way also into the Law of Inheritance. & § 155. Supra, and § 162, ad fin. e d Ab intestato, § 163, ad fin., and sec. tab. § 157. Ulp. xxii. 23. § 80. § 155. PRO HEREDE USUCAPIO. In the oldest law the hereditas itself, or a fraction. thereof, could be acquired through usucapio by every one called to the property of the intestate can nevertheless sue for possession of the property; but the bon. poss. belongs to them sine re, since an heir appointed by the testament can wrest the inheritance from them. BOOK III. Part III. without bona fides and iustus titulus, if there had been continued possession for one year of the hereditary things, which was acquired as against the heir; with restriction, however, to the acquisition of corpora hereditaria,' so that such person assumed the position of an heir, particularly in relation to the creditors of an inheritance. But later on, this usucapion of the hereditas itself was Perhaps converted into a usucapion of the several things com- the end of the posing the inheritance, which gradually began to come Republic. in conflict with the general ideas of Law. (Improba, lucrativa usucapio.) already towards Gai. ii. §§ 52-56: Rursus ex contrario accidit, ut qui sciat alienam rem se possidere, usucapiat, veluti si rem hereditariam, cuius possessionem heres nondum nactus est, aliquis possederit; nam ei concessum est usucapere, si modo ea res est, quae recipit usucapionem: quae species possessionis et usucapionis pro herede vocatur. § Et in tantum haec usucapio concessa est, ut et res quae solo continentur, anno usucapiantur. § Quare autem etiam hoc casu soli rerum annua constituta sit usucapio, illa ratio est, quod olim rerum hereditariarum possessione velut ipsae hereditates usucapi credebantur, scilicet anno: lex enim XII tabularum soli quidem res biennio usucapi iussit, ceteras vero anno; ergo hereditas in ceteris rebus videbatur esse, quia soli non est, quia neque corporalis est. Et quamvis postea creditum sit ipsas hereditates usucapi non posse, tamen in omnibus rebus hereditariis, etiam quae solo tenentur, annua usucapio remansit. § Quare autem omnino tam improba possessio et usucapio concessa sit, illa ratio est, quod voluerunt veteres maturius hereditates adiri, ut essent qui sacra facerent, quorum illis temporibus summa observatio fuit, et ut Compare next creditores haberent, a quo suum consequerentur. also Maine, § Haec autem species possessionis et usucapionis and Custom," etiam lucrativa vocatur: nam sciens quisque rem ch. iv., and alienam lucrifacit.-§ 58: Necessario tamen 745, 877. b extract. See Early Law Hunter, pp. BOOK III, a Sc. a iurisconsultis. herede exstante nihil ipso iure pro herede usucapi potest.1 Cic. de legib. ii. 48-49:—ut conserventur semper et perpetua sint sacra. . . . Quaeruntur," qui adstringantur sacris. Heredum causa iustissima est . . . ; deinde qui morte testamentove eius tantumdem capiat quantum omnes heredes . . . ; tertio loco, si nemo sit heres, is qui de bonis, quae eius fuerint cum moritur, usuceperit plurimum possidendo; quarto qui [de] creditoribus eius plu 1 Again, on the other hand, it sometimes happens that he who is aware he possesses a thing belonging to another may yet acquire by usus, as for instance, if any one should take possession of an article appertaining to an inheritance which the heir has not yet reduced into possession; for the right of acquiring by usus is allowed to him, provided such property is susceptible of usucapion. This kind of possession and usucapion is designated pro herede (in the character of heir). § And this acquisition by usus has been allowed to such an extent that even things which appertain to the soil may be acquired in one year. § Now the reason why in this case usucapion in one year of immovables has been established is, because it was formerly supposed that the thing appertaining to the inheritance could, like the inheritance itself, be acquired by usus, and that in one year; for a law of the Twelve Tables directed that things forming part of the soil may be acquired by usus in two years, but the rest of things in one year. Therefore an inheritance seemed to be included among the rest of things,' because it is no part of the soil, as not being even a corporeal thing. And although the view has later on been accepted that inheritances themselves cannot be acquired by usus, yet in respect of all things appertaining to inheritances, even those which are attached to the soil, usucapion in one year held its ground. § Now the reason why such an unjust possession and usucapion have been allowed at all is, because our ancestors wished inheritances to be entered upon very promptly, so that there might be persons to perform family rites, the observance of which was of chief moment in those times, and that creditors might have some one from whom they could recover their claim. § But this kind of possession and usucapion is also styled 'profitable'; because every one knowingly makes profit of a thing owned by another. § Nevertheless, if there is a necessary heir in existence, there can be no usucapion pro herede of anything by operation of law. rimum servet. . . Haec nos a Scaevola didici- Seneca de benef. vi. 5 Iurisconsultorum istae α BOOK III. Part III. 41, 5, 2, I. This lucrativa pro herede usucapio held its ground notwithstanding throughout the classical Law," although a D. 41, 2, 3, 19: it had lost its importance for inheritance and continued 4, 3, 33, 1; to be of practical use only when no heir existed. This was after the Praetor had put forward the interdictum quorum bonorum for the protection of the bonorum § 176, ad fin. possessor against every possessor of hereditary property, and accordingly, a senatus-consultum under Hadrian had declared the pro herede usucapio inoperative b 1-that family worship may be always kept up and maintained. . . . The question (raised by lawyers) is, who are under Quaeruntur is obligation to perform the family worship? The case of heirs is for Quaeritur, by attraction. most consonant with justice. . .; next he that shall take in the event of death or by bequest just as much as all heirs . . .; thirdly, if there be no heir, he that of the goods belonging to the testator at his death has acquired most by length of possession; fourthly, he that preserves to the creditors of the deceased most of their claims. . . . These points we have learnt from Scaevola; they have not been so put forth by older jurists. For their teaching was to the following effect, that a man was bound to perform family worship in one of three ways: in respect of the inheritance, or if he should take the greater part of the money, or, the greater part of the money having been bequeathed, if he have taken anything of it. 2 Sagacious are the subtleties of lawyers who say that it is not an hereditas which can be acquired by usucapion, but such things as are contained in the hereditas: just as if an hereditas were something different from the things contained in such hereditas. BOOK III. also against the civil heir coming forward with hereditatis petitio. Part III. a D. 47, 19, 6; D. 47, 4, 1, 15. Gai. iii, 201; whether this Gai. ii. § 57: Sed hoc tempore iam non est lucrativa: nam ex auctoritate D. Hadriani senatusconsultum factum est, ut tales usucapiones revocarentur; et ideo potest heres ab eo, qui rem usucepit, hereditatem petendo proinde eam rem consequi, atque si usucapta non esset.' Besides, later on even a special crimen expilatae hereditatis,' as representing the actio furtia (here inadmissible), was introduced, because of thefts of hereditary property the possession of which had not yet been acquired by the heir. Paul. ii. 31, § II: Rei hereditariae, antequam ab herede possideatur, furtum fieri non potest.2 Marc.: Si quis alienam hereditatem expilaverit, extra ordinem solet coerceri per accusationem expilatae hereditatis, sicut et oratione D. Marci cavetur.-D. 47, 19, 1.3 But furthermore, there still existed (and it is the only one that continues to exist in the Law of Justinian) a usucapio pro herede as ordinary usucapio с It is doubtful of hereditary property, on the part of him who erroneously gives himself out as heir, and of the bonorum possessor.d down to Jus tinian was universally in the space of one year. e For such putative title, Paul. Constat eum, qui testamenti factionem habet, pro herede usucapere posse.-D. 41, 5, 4.1 see § 80. 1 But at the present time it is no longer profitable; for it was Gai. iii. § 80. enacted by a decree of the Senate, upon the authority of the late Emp. Hadrian, that such acquisitions by usus should be annulled; and therefore the heir, by suing for the inheritance, can obtain such property from him who has acquired it by usus, just as though it had not been so acquired. 2 There cannot be a theft of successional property before possession is had by the heir. 3 He that has pillaged an inheritance belonging to another is generally punished by the extraordinary process, through a charge made of having pillaged the inheritance, as is provided in a speech of the late Emp. Marcus. It is settled that he who has testamentary capacity can as heir make a title by usus. |