a BOOK III. Part III. legatees. creditors of the inheritance" by means of interrogatio in iure press for a declaration of the heir that is called, a respite can upon his petition be appointed him Or perhaps by the magistrate (tempus, beneficium deliberandi), which, however, according to Justinian's rule, may not Paterson, s. exceed one year. 779. cretione heres Gai. ii. § 167: Eid liberum est, quocumque & Sc. qui sine tempore voluerit, adire hereditatem, sed solet institutus est praetor postulantibus hereditariis creditoribus tempus constituere, intra quod, si velit, adeat hereditatem, si minus, ut liceat creditoribus bona. defuncti vendere.1 Qui interrogatur, an heres sit, . . . ad deliberandum tempus impetrare debet:-et quia hoc defunctorum interest, ut habeant successores, interest et viventium, ne praecipitentur, quamdiu iuste deliberant.-D. II, 1, 1. 5 (Gai.), l. 6 pr. (Ulp.).2 Ulp. Ait praetor: SI TEMPVS AD DELIBERANDVM PETET, DABO.-Cum dicit tempus' nec adiicit. diem, sine dubio ostendit esse in ius dicentis potestate, quem diem praestituat.—Itaque pauciores centum dierum non sunt dandi.-D. 28, 8, 1. 1, §§ 1-2 (Ulp.), 1. 2 (Paul.).3 The lex Iulia et Papia Poppaea introduced a limita 1 He (i.e., who has been instituted heir without cretio) is free to enter upon the inheritance whenever he chooses; but the Praetor usually, on the petition of the creditors of the estate, fixes a period within which he may enter upon the inheritance if he please; but if he does not enter, the creditors are allowed to sell the effects of the deceased. He to whom the question is put whether he is heir, . . . ought to claim time for deliberation :-and inasmuch as it is of importance to deceased persons that they should have successors, it is of importance to the living not to be hurried, as long as they are within their rights in deliberation. 3 The Praetor says: If he seek time for deliberation, I will grant it.'—When he says 'time,'and does not add the fixed term, he undoubtedly sets forth that it is in the power of the judge, what term to vouchsafe. Accordingly, not less than one hundred days must be given. Part III. BOOK III. tion in respect of the period for the acquisition of the inheritance, according to which no acquisition can occur upon the ground of a testament before it is opened." a § 175. The entrance upon, as well as the renunciation of, the inheritance (repudiatio hereditatis) apart from delatio, supposes (1) knowledge of the delatio and the species thereof. Pomp. In repudianda hereditate vel legato certus esse debet de suo iure is qui repudiat.1. 23, h. t.1 Ulp. Sed et si de condicione testatoris incertus sit, paterfamilias an filiusfamilias sit, non poterit adire hereditatem.-1. 32, § 2 eod.2 Iul. Si quis se filiumfamilias existimat, cum sit paterfamilias, poterit adquirere hereditatem.— D. 35, 1, 21.3 : Paul. Ut quis pro herede gerendo obstringat se hereditati, scire debet qua ex causa hereditas ad eum pertineat: veluti adgnatus proximus iusto testamento scriptus heres, antequam tabulae proferantur, cum existimaret intestato patremfamilias mortuum, quamvis omnia pro domino fecerit, heres tamen non erit.-1. 22, D. h. t.' Ulp. Heres institutus idemque legitimus si : In the renunciation of an inheritance or a legacy the renouncing party ought to be assured as to his legal position. 2 But if he be uncertain as to the status of the testator, whether he was a pat. fam. or a fil. fam., he cannot enter upon the inheritance. 3 When any one supposes he is a fil. fam., whilst he is a pat. fam., he will be able to acquire the inheritance. 4 In order that a man by acting as heir should make himself liable for the inheritance, he ought to know upon what title the inheritance belongs to him: for example, the nearest agnate designated heir by a lawful testament, whilst supposing that the pat. fam. died intestate, will not be heir before the tablets are propounded, although he have transacted everything as owner. quasi institutus repudiaverit, quasi legitimus non (2) Capacity for obligation of the person entering. (3) Command of the pater fam. or master, in the case of one subject to power. Gai. ii. § 87: Ipse qui in potestate nostra est, . . . si heres institutus sit, nisi nostro iussu hereditatem adire non potest; et si iubentibus nobis adierit, hereditas nobis adquiritur proinde atque si nos ipsi heredes instituti essemus.3 Ulp. Iussum eius, qui in potestate habet, praecedere debet.-Sed in bonorum possessione placuit ratam haberi posse eam, quam citra If an instituted, and at the same time legal, heir shall renounce the inheritance as instituted, he does not also forfeit it in the character of legal heir, we must presume that he renounced both. If he does not know of it, the renunciation will in no way harm him, either with regard to the testamentary inheritance, because this he did not renounce, or with regard to the legal, since it has not yet been offered to him. 2 According to the Customary Law of our state, wards of either sex can incur no liability without the sanction of their guardian; but it is notorious that an inheritance makes us liable for the payment of debts, even if it be in a state of insolvency. A person that is under our power, if he be instituted heir, cannot enter upon the inheritance, except by our direction; and if he shall enter by our direction, the inheritance is acquired for us, just as if we ourselves were the instituted heirs. BOOK III. Part III. BOOK III. l'art III. § 159. voluntatem agnovit is qui potestati subiectus est. -1. 25, § 4, l. 6, § 1, D. h. t.' (4) The inheritance, moreover, must be entered upon, just as it is offered, since partial entry or renunciation is contradictory to the principle of the totality of the inheritance. Paul. Qui totam hereditatem adquirere potest, is pro parte eam scindendo adire non potest.1. I eod. Ulp. Si ex asse heres destinaverit partem habere hereditatis, videtur in assem pro herede gessisse.-1. 10 eod.3 Marc. Respondit nihil actum esse, cum ex semisse scriptus heres ex quadrante per errorem adiit hereditatem.-1. 75 eod.1 Ulp. Sed etsi quis ex pluribus partibus in eiusdem hereditate institutus sit, non potest quasdam partes repudiare quasdam adgnoscere.-1. 2 eod.5 § 172. CAPACITY FOR ACQUISITION OF THE INHERITANCE. Capacity to inherit" is the pre-requisite of a valid delatio, whilst capacity of the person called to acquire an inheritance is the pre-requisite of the acquisition. 1 The order of the pat. fam. must precede.-But in respect of bon. poss., it has been held that the act of a son subject to power who has laid claim to the bon. poss. against the wish (of the pat. fam.) can be confirmed (by him). 2 A person capable of acquiring the whole inheritance cannot by dividing it enter upon it only for a part. 3 If a universal successor have purposed to hold a part of the inheritance, he is considered to have acted as heir for the whole inheritance. His answer is: Nothing was accomplished, because the heir designated for one half entered upon the inheritance by mistake for one fourth. 5 But although a man have been instituted for several parts in one and the same person's inheritance, he cannot renounce some parts and lay claim to others. The capacity to acquire a testamentary inheritance, or a legacy, was taken away from the following persons (incapaces). a BOOK III. According to the lex Iulia et Papia Poppaea," as a § 44, nd fin. incapaces in respect of the testaments of all persons not related to them at the least in the sixth (to the seventh) degree, and of the next affines were (1) 'caelibes,' entirely. Gai. ii. § 286: Caelibes.. (2) 'orbi,' to the extent of half of that which is left to them. Gai. ii. § 286: Item orbi per legem Papiam dimidias partes hereditatum legatorumque perdunt.3 (3) Childless spouses, as between each other for certain portions; in which, however, many exceptions obtained, especially such as were founded on the ius liberorum.' Ulp. xv. I: Vir et uxor inter se matrimonii nomine decimam capere possunt; quodsi ex alio matrimonio liberos superstites habeant, praeter 1 Unmarried persons are forbidden by the l. Iulia to take inheritances and legacies. 2 If a man from any cause have forborne to take a testamentary gift, although it was bequeathed to him in such way that he could take it by civil law, it is called a Lapse, as if it had slipped from him; for example, if legacy be left to an unmarried man, or to a Junian Latin, and either the unmarried man has not within one hundred days complied with the statute, or the Latin has not obtained Roman citizenship. 3 Childless persons, by the l. Papia, lose one half of their inheritances and legacies. |