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rimum servet. . . Haec nos a Scaevola didici-
mus; non ita descripta sunt ab antiquis. Nam illi
quidem his verbis docebant tribus modis sacris
adstringi hereditate, aut si maiorem partem pe-
cuniae capiat, aut, si maior pars pecuniae legata
est, si inde quippiam ceperit.'

Seneca de benef. vi. 5 Iurisconsultorum istae
ineptiae sunt acutae, qui hereditatem negant
usucapi posse, sed ea quae in hereditate sunt :
tamquam quidquam aliud sit hereditas, quam ea
quae in hereditate sunt.2

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

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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.

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 furti" (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

c

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,

see § 80.

Paul. Constat eum, qui testamenti factionem habet, pro herede usucapere posse.-D. 41, 5, 4.*

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.

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Iul. Si quis emerit fundum sciens ab eo cuius
non erat, possidebit pro possessore; sed . .
si iustam causam habuerit existimandi se here-
dem vel bonorum possessorem domino exstitisse,
fundum pro herede possidebit nec causam posses-
sionis sibi mutare videtur.-D. 41, 3, 33, 1.1

Imp. Diocl. Nihil pro herede posse usucapi
suis existentibus heredibus obtinuit.-C. 7, 29, 2.*

BOOK III.

Part III.

a Cf. ibid. § 89.

CHAPTER II.

DELATIO OF THE INHERITANCE.

SUCCESSION EX TESTAMENTO: TESTAMEN-
TARIA HEREDITAS.

§ 156. NATURE OF A TESTAMENT. CAPACITY FOR

MAKING ONE.

For the history of testamentary succession, see Anct. Law,' chh. vi.vii. To the Biblical pas

sages adduced by Blackstone

(ii. 490-1, cf.

TESTAMENTUM is the free declaration of the testator by last will, in a solemn form, as to who shall be his heir, and the further disposition of property left by him Steph. i. 594) which is linked to it, though not of necessity.

Ulp. xx. 1: Testamentum est mentis nostrae iusta contestatio, in id sollemniter facta, ut post mortem nostram valeat.3

add such as Isa. 38, I (see Delitzsch, ad

loc.), where set his house

literally 'gave commandment

§ 159.

Mod. Testamentum est voluntatis nostrae to,' &c.
iusta sententia de eo, quod quis post mortem suam
fieri velit.-1. 1, D. h. t. (qui test. fac. 28, 1).

d Cited in Steph. i. 592,

note.

ii. 499.

'If any one has knowingly purchased an estate from him to Cited by whom it did not belong, he will possess it pro possessore, but if Blackstone, he has had a legitimate reason for the belief that he became the heir or the bon. poss. to the owner he will possess the land pro herede, and he is not regarded as changing his possessory title. 2 The opinion has prevailed, that nothing can be acquired by use pro herede if necessary heirs exist.

3 A testament is the legal voucher of our intention made in solemn form, so as to be operative after our death.

A testament is the legal declaration of our will concerning that which a man wishes should be done after his death.

BOOK III.
Part III.

a D. 28, 1, 5.

¿ D. 28, 1, 12.

e Strictly,

' deceased.'

Pap. Testamenti factio non privati sed publici iuris est.-1. 3, D. eod.1

Lex XII tab. (Ulp. xi. 14): VTI LEGASSIT SVPER (FAMILIA?) PECVNIA (QVE?) TVTELAVE SVAE REI,

ITA IVS ESTO.

Ulp. Ambulatoria est voluntas defuncti usque ad vitae supremum exitum.-D. 34, 4, 4.3

3

The requisites of validity of the testament are, observance of the prescribed form, and capacity of the testator for making it. The following are the presumptions of the latter.

Capacity to act," and absence of those defects which exclude the observance of the testamentary forms.

Ulp. xx. 12-13: Impubes, licet sui iuris sit, facere testamentum non potest, quoniam nondum plenum iudicium animi habet.-Mutus surdus furiosus itemque prodigus, cui lege bonis interdictum est, testamentum facere non possunt.*

Bytestamenti factio' is to be understood Roman legal capacity (commercium) in relation to testamentary acts in general, that is, the capacity either to make a testament, or to be honoratus,' i.e., to be instituted or treated as heir, to be nominated tutor, or to take part in the testamentary act as witness.

Gai. ii. § 114: Igitur si quaeramus, an valeat

1 The making of a testament appertains not to Private but to Public Law.

2 'In accordance with the bequest that a man shall have made concerning his household and money, or the tutelage of his property, so let it be law.'

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3 The will of a testator is shifting up to his final departure from life.

A person not of the age of puberty, although he be independent, cannot make a testament, since he does not yet possess full mental discrimination.-A dumb person, or deaf person, or madman, and also a spendthrift, who is by law forbidden the control of his property, cannot make a testament.

testamentum, imprimis advertere debemus, an is
qui fecerit, habuerit testamenti factionem.'

Ulp. xxii. 1 Heredes institui possunt, qui
testamenti factionem cum testatore habent.2

Iust. ii. 10, 6: Testes autem adhiberi possunt ii, cum quibus testamenti factio est.3

No 'testamenti factio' is possessed by slaves, peregrini, and those persons from whom it has been penally taken away."

BOOK III.
Part III.

a Gell. xv. 13,
II:
D. 28, I,

Iust. ii. 12, 5: Eius qui apud hostes est 26. testamentum quod ibi fecit, non valet, quamvis redierit: sed quod dum in civitate fuerat fecit, sive redierit, valet iure postliminii, sive illic decesserit, valet ex lege Cornelia.*

Ulp. xx. 16: Servus publicus populi Romani pro peculii parte dimidia testamenti faciendi habet ius."

Gai. Si cui aqua et igni interdictum sit, eius nec illud testamentum valet quod ante fecit, nec id quod postea fecerit.-1. 8, § 1, D. h. t.-Ulp. : Hi quibus aqua et igni interdictum est, item deportati... nec testamenti faciendi ius habent, cum sint áróλideç.-1. 1, § 2, D. de leg. III. 32.o

1 If then we are inquiring whether a testament be valid, we first ought to ascertain whether he who made it had testamentary capacity.

2 Those can be instituted heirs who have testamentary capacity in connection with the testator.

3 Now those persons can be called in as witnesses in connection with whom the testator has testamentary capacity.

The testament of such person as is in the hands of the enemy, made by him there, is invalid even if he return; but that made whilst he was at home is valid, if he return, by the ius postliminii, if he have died there, according to the l. Cornelia.

A public slave of the Roman people has the right of making a testament of one-half his separate property.

If a man has been forbidden water and fire, neither is such testament valid as he has previously made, nor that which he has made subsequently.--Those who have been interdicted water and fire, deportati too,. have not the right of testation, since they are without a country.

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