BOOK III. a Ulp. xxix. 2. in bona castrensia non esse dandam contra tabulas filiifamilias bonorum possessionem D. Pius Antoninus rescripsit.-D. 29, 1, 1. 29, § 3 (Marc.), 1. 30 (Paul.).' After that the Law of inheritance in respect of the Patron-especially as regards the liberta a and the patrona had been much modified by the lex Papia Poppaea, and in the course of time had become not a little confused, it was reformed by Justinian, and • § 166, ad fin. again brought back to simpler principles." Gai. iii. § 42: Postea lege Papia aucta sunt iura patronorum, quod ad locupletiores libertos pertinet cautum est enim ea lege, ut ex bonis. eius, qui sestertiorum nummorum centum milium plurisve patrimonium reliquerit et pauciores quam tres liberos habebit, sive is testamento facto sive intestato mortuus erit, virilis pars patrono debeatur.2 In bonis libertinarum nullam iniuriam antiquo iure patiebantur patroni: cum enim hae in patronorum legitima tutela essent, non aliter scilicet testamentum facere poterant, quam patrono auctore. Sed postea lex Papia cum quattuor liberorum iure libertinas tutela patronorum liberaret et eo modo concederet eis etiam sine tutoris auctoritate condere testamentum, prospexit, ut 1 To the father of such (soldier) as in respect of emancipation had himself become a patron it is held bon. poss. contra tab. must be given for the portion due to him, with the exception of such things as the son had acquired in the field, in respect of which he has unlimited testamentary capacity; for, by a rescript of the late Emp. Antonine, bon. poss. contra tab. in regard of a fil. fam. is not to be given over military property. Later on, by the 1. Papia, the rights of patrons were increased in respect of the more affluent freedmen . . . for it was provided by that statute that a proportionate share shall be due to the patron of the property of him who has left a patrimony of 100,000 sesterces or more, and had fewer than three children, whether he had made a testament or died intestate. pro ... ita Inst. iii. 7, 3: Sed nostra constitutio 1 Patrons used to suffer no injustice by the old law in respect of the property of freedwomen; for since they were under the statutory guardianship of their patrons, of course they could not make a testament except with the patron's sanction.-But later on, when the 1. Papia liberated freed women with four children from the guardianship of their patrons, and thereby empowered them to make testaments even without the patron's sanction, it provided that a proportionate share should be due to the patron according to the number of the children that the freedwoman had at the time of her death. a BOOK III. 2 But a constitution of ours . . . has thus determined cases of this kind: that if in fact a freedman or freedwoman be less than centenarii, that is, have property of less value than 100 gold-pieces," the patron shall have no title to their " I.e., 100,000 inheritance, if they have made a testament.-But when they are more than centenarii, and have one or more children of whichever sex or degree, as their heirs or possessors of the sesterces. BOOK III. Part III. a See Anct. Law,' pp. 215, 877.; Bell, Dict. 8. Legitim.' § 169. RIGHT TO THE LEGITIMATE PORTION (MATERIAL LAW OF NECESSARY INHERITANCE)." The testator has in the testament not merely to remember certain persons (by institution or disinherison), but to bequeath to them a certain part of his property, otherwise the testament can be disputed (set aside) by them. This material Law of NECESSARY inheritance especially gained acceptance by the practice of the Centumviral court, and was further developed and established by Jurisprudence, and later on by Legislation. This was effected by an action for rescission of the testament (querela inofficiosi sc. testamenti) being given to the near kinsman of the testator, whom the latter had allowed to go away empty from mere lack of affection, and by no fault of his own; because of the violation of officium pietatis,' under the aspect of such unsound state of the testator's mind as this expressed (color insaniae). The action was not here11. 491-3 (Steph, ditary, and lapsed in five years. Cf. Blackstone, i. 447-8; Marcian. Hoc colore de inofficioso testamento agitur, quasi non sanae mentis fuerunt, cum testamentum ordinarent; et hoc dicitur non quasi vere furiosus vel demens testatus sit, sed recte quidem fecit testamentum, sed non ex officio pietatis: nam si vere furiosus esset vel demens, nullum est testamentum.-1. 2, D. h. t. (de inoff. 5, 2).1 property, we have conferred on them the inheritance of their parents, rejecting all patrons along with their issue. . . . But if they have in fact made a testament, and have passed over patrons or patronesses, while having no descendants, or if they have any, have disinherited them, then by our constitution, the patrons or patronesses obtain by bon. poss. contra tab., not a moiety as previously, but a third part of the freedman's property: .. so that as well patrons and patronesses, as their descendants and collaterals besides to the fifth degree, are called to the inheritance of freedmen. 1 Proceedings are taken upon an undutiful testament under the appearance of the testators having been of unsound mind when Marcell. Inofficiosum testamentum dicere hoc est allegare, quare exheredari vel praeteriri non debuerit; quod plerumque accidit, cum falso parentes instimulati liberos suos vel exheredant vel praetereunt.-Huius autem verbide inofficioso' vis illa est: docere, immerentem se et ideo indigne praeteritum vel etiam exheredatione summotum; resque illo colore defenditur apud iudicem, ut videatur ille quasi non sanae mentis fuisse, cum testamentum inique ordinaret.-11. 3, 5 eod.1 Such a claim to consideration, and so the querela inofficiosi,' is possessed (1) by ascendants and descendants (without reference to agnation and paternal power). Nam et his, qui non ex masculis descendunt, facultas est agendi, cum et de matris testamento agant et obtinere adsidue soleant. cit. 1. 5.2 Pap. Nam etsi parentibus non debetur filiorum hereditas propter votum parentum et naturalem erga filios caritatem: turbato tamen ordine mor they made their testament. And this is not said as though the testator was actually mad or void of understanding, but he did in fact duly make the testament, yet not from dictates of affection; for if he was actually mad or void of understanding, the testament is null. 1 To speak of a testament as undutiful means, to bring forward reasons why one ought not to have been disinherited or passed over; and this generally happens when parents, governed by a wrong reason, disinherit or pass over their children. Now the force of that phrase 'concerning want of natural affection' is: to prove that one was unworthily, and therefore also without having given occasion, passed over, or even set aside by disinherison; and the matter is contested before the iudex under the aspect of his appearing, as it were, to have been of unsound mind when he made an unfair testament. For those also who are not descended from males have a right of action, since they sue even upon a mother's testament, and are wont frequently to obtain (their rights). BOOK III. Part III. BOOK III, a § 57. talitatis non minus parentibus quam liberis pie relinqui debet.-1. 15 pr. eod.' (2) By brothers and sisters, from the time of Constantine, alone when the heir who is preferred to them is a turpis persona,' " and to the exclusion of 'uterini.-And further, he that would dispute the testament by the querela inofficiosi must at the time be the nearest intestate heir, by Civil or Praetorian Law. B A and B are excluded by C. Imp. Const.: Fratres vel sorores uterini ab inofficiosi actione contra testamentum fratris vel sororis penitus arceantur; consanguinei autem [adgnatione durante] contra testamentum fratris vel sororis de inofficioso quaestionem movere possunt, si scripti heredes infamiae vel turpitudinis vel levis notae macula adsparguntur.-1. 27, C. eod. 3, 28; cf. l. 1, C. Th. 2, 19.2 The testator can prevent the querela inofficiosi by bequeathing a portion of his property (legitimate part, legitima portio), which (1) was originally unlimited, but later on, accord For although parents have no claim to inherit from their children, because of desire and natural affection for them, yet if the order of mortality be reversed, a bequest ought to be made to parents from filial regard, no less than to children. 2 Brothers and sisters by the same mother are to be altogether precluded from the suit for want of affection in opposition to a brother's or sister's testament; but those of the same blood can [whilst agnation continues] take proceedings in opposition to a brother's or sister's testament upon want of affection, if the designated heirs are tainted by the blemish of infamy or immorality or minor brand. |