a BOOK III. Part 111. ing to the analogy of the lex Falcidia," amounted to one-fourth of the portion under intestacy appertaining to the necessary heir; but Justinian by Nov. 18 § 182. raised this to one-third, in the case of four or less portions for intestate inheritance, and to one-half in the case of more than four. Ulp. : Quoniam autem quarta debitae portionis sufficit ad excludendam querelam, videndum erit, an exheredatus partem faciat, qui non queritur: ut puta sumus duo filii exheredati. Et utique faciet, ut Papinianus respondit, et si dicam inofficiosum, non totam hereditatem debeo sed dimidiam petere. Proinde si sint ex duobus filiis nepotes, ex uno plures, tres puta, ex uno unus: unicum sescuncia, unum ex illis semuncia querela excludit.—Quarta autem accipietur scilicet deducto aere alieno.-1. 8, §§ 8, 9, D. h. t.' If to the necessary heir there have been bequeathed only something less than the legitimate part, by a constitution of Justinian he can sue alone for the deficiency (actio ad supplendam legitimam s. suppletoria). Sin vero quantacumque pars hereditatis vel res eis fuerit relicta, de inofficioso querela quiescente id quod eis deest usque ad quartam legitimae partis repletur, licet non fuerit adiectum boni viri arbitratu debere eam repleri.-§ 3. I. h. t. 2, 18.2 1 But since a fourth part of the portion due is enough to avert a complaint, we shall have to consider whether a disiuherited person is to be included who raises no complaint: for example, we are two brothers disinherited. And at any rate, according to the opinion given by Papinian, he will be included, and if I allege that the testament is undutiful, I must claim not the whole inheritance, but a moiety. If, accordingly, there are grandsons by two sons, by the one several, say three, by the other only one, the receipt of a quarter of the moiety hinders the one, that of a quarter of the sixth part each of those, from raising a complaint. Now by quarter will of course be understood, after deduction of debts. 2 But if any portion whatsoever of the inheritance or any BOOK III. Part III. The legitimate part need not be left exactly in the form of the institution of heir, but can be in any discretionary form, whilst originally the mere satisfaction with a portion of property, without institution of heir, scarcely sufficed in fact. Igitur quartam quis debet habere, ut de inofficioso testamento agere non possit: sive iure hereditario, sive iure legati vel fideicommissi, vel si mortis causa ei quarta donata fuerit.§ 6, I. eod.1 The whole querela inofficiosi is only a subsidiary legal remedy, and is thus, e.g., excluded by the possibility of bonorum possessio contra tabulas. —Liberi . . . ita demum de inofficioso testamento agere possunt, si nullo alio iure ad bona defuncti venire possunt ; nam qui alio iure veniunt ad totam hereditatem vel partem eius, de inofficioso agere non possunt.-§ 2, I. h. t.2 Paul. iv. 5, § 5: Filius ex asse heres institutus inofficiosum dicere non potest: nec interest, exhausta nec ne sit hereditas, cum apud eum quarta aut legis Falcidiae aut senatusconsulti Pegasiani beneficio sit remansura.3 article has been left to them, the complaint of an undutiful will is in abeyance, and the deficiency is made up to them, so far as the quarter of the legitimate part, although there was nothing added to the effect that it should be made up according to the arbitrament of an honest man. 1 Therefore, a person must have a fourth part, in order that he should be unable to sue upon an undutiful testament: whether he have this part by inheritance, or legacy, or bequest in trust, or as a gift mortis causa. Children . . . can only sue upon an undutiful testament if they can come at the property of the deceased by no other process; for those who can come at the whole inheritance or a part thereof by other process cannot sue upon an undutiful testament. 3 A son instituted universal heir cannot allege that the testament is undutiful; neither does it matter whether the inheritance be exhausted or not, since the fourth part will Its object and its effect is, rescission of the testament and letting in intestate succession. Si ex causa de inofficiosi cognoverit iudex et pronuntiaverit contra testamentum nec fuerit. provocatum, ipso iure rescissum est; et suus heres erit secundum quem iudicatum est et bonorum possessor, si hoc se contendit, et libertates ipso iure non valent, nec legata debentur.-1. 8, § 16, D. h. t.' But under certain circumstances even merely partial avoidance of the testament can ensue, and inheritance to the testator thus be pro parte testatus pro parte intestatus.' Paul. Mater decedens extraneum ex dodrante remain in his hands by the aid either of the 7. Falcidia or the SCtum Pegasianum. If a iudex in a suit upon want of affection has investigated the matter, and pronounced against the testament, without an appeal having been brought, it is rescinded by force of law; he in whose favour judgment has been given will be both suus heres and bonorum possessor, if this is the contention; and the manumissions take no effect by force of law, neither are the legacies obligatory. A dying mother has instituted a stranger heir to threefourths, one of her daughters to a fourth, and has passed over another daughter. . . . The opinion I gave was: the daughter passed over must claim what she would have had if her mother had been intestate. . . . But it is inadmissible that she should have audience by bringing an action for want of affection against her sister . . . and therefore that one half must be claimed from the stranger . . . a whole moiety, so to speak, belongs to the latter sister. According to this, not the whole testament is invalidated, but the mother becomes intestate for a part. BOOK III. Part III. L BOOK III Ulp. Circa inofficiosi querelam evenire plerumque adsolet, ut in una atque eadem causa diversae sententiae proferantur. Quid enim si fratre agente heredes scripti diversi iuris fuerunt? Quod si fuerit, pro parte testatus pro parte intestatus decessisse videbitur.-1. 24 eod.' The whole Law of the legitimate part is in abeyance in the case of a testamentum militis. 170. THE LAW OF NECESSARY INHERITANCE ACCORDING TO Nov. 115. By Nov. 115 (542 A.D.) the previous Law of praeteritio and that of the legitimate part were blended as follows. 1 (1) Ascendants may henceforth neither pass over nor disinherit their descendants (taken as purely cognatic) and reversely-not even with a bequest of the legitimate part-save for certain statutory reasons to be alleged in the testament itself, and to be proved by the heir instituted. Of such grounds for exclusion on account of grave culpability, there are fourteen for disinherison of descendants, eight for that of ascendants. : (2) In the case of praeteritio or groundless disinherison of a necessary heir-and it is immaterial whether anything have been otherwise left to him -the result shall be avoidance of the testament in respect of the institution of heirs, in case the necessary heir that has suffered injury makes it available (contested, so-called relative nullity), and pure intestate succession; but its other contents (as) In respect of a complaint as to want of affection, it commonly happens that in one and the same case different judgments are put forth. For how if, when a brother sues, the designated heirs have been in opposite legal relations? If this is the case, it will be considered that the testament subsists in part, and in part does not. BOOK III. provision for legacies and guardianships and the like) are upheld.-The persons disinherited or passed over make good their right by hereditatis petitio.'a a § 176. If the necessary heirs have been instituted, but for an amount less than the legitimate part, they can only require the making good the deficiency by the other testamentary heirs. In respect of the brothers and sisters of the testator, no change was made in the existing Law. Inst. ii. 18, 3. CHAPTER III. ACQUISITION OF INHERITANCE AND PROTECTION § 171. MANNER AND FORM OF ACQUISITION. : DELATIO confers only the legal possibility of becoming heir the delatee first becomes actual heir by acquisition of the inheritance (adquisitio hereditatis). The acquisition is, as a rule, effected by a voluntary act on the part of the person called (heredes voluntarii, extranei). Gai. ii. § 152: Heredes autem aut necessarii dicuntur aut sui et necessarii aut extranei.§ 161: Qui testatoris iuri subiecti non sunt, extranei heredes appellantur : itaque liberi quoque nostri, qui in potestate nostra non sunt, heredes a nobis instituti sicut extranei videntur; qua de causa et qui a matre heredes instituuntur, eodem numero sunt, quia feminae liberos in potestate non habent.' 1 Now heirs are said to be necessarii or sui et necessarii or extranei.-Those who are not subject to the power of the testator are called stranger-heirs; therefore our children also who are not under our power, when they are instituted heirs by us, are looked upon as strangers. For which cause also those who are instituted heirs by their mother are in the same category, because women have no children under their power. D. 50, 16, 151. (§ 153, supra.) |