BOOK III. a § 171. be acquired by a testament," whether on account of incapacity of the person to whom regard is had (part heir or legatee), or by reason of a disposition by last will being impaired or not operating, either after the death of the testator (caducum in the narrower sense) or while he is still alive (in causa caduci). By the lex Papia, no right of accrual obtained in respect of the caducum, but the heirs instituted in the testament, and after them the legatees, who had children (ius patrum) could-down to Caracalla-vindicate it cum suo onere; and in this collegatarii coniuncti' had § 183. ad fin. precedence over all others. Gai. ii. § 207: Et quamvis prima causa sit in caducis vindicandis heredum liberos habentium, deinde si heredes liberos non habeant, legatariorum liberos habentium, tamen ipsa lege Papia significatur, ut collegatarius coniunctus, si liberos habeat, potior sit heredibus, etiamsi liberos habebunt.' Ulp. xvii. 3: Caduca autem cum suo onere fiunt: ideoque libertates et legata vel fideicommissa ab eo data, ex cuius persona hereditas caduca facta est, salva sunt. The earlier right of accrual only remained for ascendants and descendants to the third degree instituted in the testament. Id. xviii. Item liberis et parentibus testatoris usque ad tertium gradum lex Papia ius antiquum dedit, ut heredibus illis institutis, quod quis ex 1 And although in claiming lapses, one primary right is that of the heirs who have children, and then, if the heirs have no children, the right belongs to the legatees that have children, yet it is expressly stated in the 1. Papia itself that a conjoint co-legatee, if he have children, is preferred to heirs, even though they shall have children. Now lapses ensue with their own burdens; and therefore gifts of freedom, legacies, or bequests in trust, charged upon him in whose person the inheritance has lapsed, are not affected. eo testamento non capit, ad hos pertineat aut Id. xvii. 2: Hodie ex constitutione imperatoris Imp. Iust. Sed et ipsis testamentorum con- Mod. In tempus capiendae hereditatis institui heredem posse, benevolentiae est, veluti Lucius Titius, cum capere poterit heres esto'; idem et in legato.-1. 63 (62) pr., D. de her. inst.* 3. Justinian, by a Constitution of the year 534 (1. un. C. 6, 51), abolished the whole law of the caducorum vindicatio, and re-established the earlier law of accrual (ius antiquum) in its full extent. 1 The 1. Papia has likewise granted the ancient right to descendants and ascendants of the testator as far as the third degree; so that when such have been appointed heirs, anything which another person does not take under the testament belongs to them in whole or in part, according as it can belong. At the present day, by virtue of a constitution of the Emp. Antonine, all lapses are claimed for the Treasury, but with a reservation of the old rule for the benefit of descendants and ascendants. 3 But also as regards testators themselves, the practice as to lapses seemed so very onerous that they introduced substitutions, to avoid lapses, and if they did occur, arranged them so as to fall back upon certain persons, defeating the methods established by the l. Papia in respect of lapses. 4 That an heir can be instituted for the period when he can take the inheritance, is a mark of leniency, for example: 'L. T. shall be heir when he is able to take.' The like also in respect of a legacy. BOOK III. BOOK III. Part III. a Cf. D. 28, 4, L. 1. § 3, 1.4; 38, 6. I, 8. There is finally a series of cases in which the inheritance or a legacy-has devolved ab intestato or is again taken away ex testamento from the successor, capable of inheritance and acquisition, because of unfitness (indignitas). What is thus taken away (ereptorium s. erepticium) passes as a rule to the Treasury, in certain cases to other persons." Pap. Cum heredis nomen mutata voluntate paterfamilias incisis tabulis induxisset atque ideo fisco portionis emolumentum adiudicatum fuisset, eam rem legatariis non obesse, qui retinuerunt voluntatem, D. Marco placuit, et ideo cum suo onere fiscum succedere.-D. 34, 9, 16, 2.' Marc. Aufertur hereditas ex asse et ad fiscum pertinet, si emancipatus filius contra tabulas bonorum possessionem patris ut praeteritus petierit et ex substitutione impuberis adierit hereditatem. -Indignum esse D. Pius illum decrevit, qui manifestissime comprobatus est id egisse, ut per negligentiam et culpam suam mulier, a qua heres institutus erat, moreretur.-1. 2 pr., 1. 3 eod.2 § 176. PROTECTION OF THE RIGHT OF INHERITANCE. The action with which the heir makes good his right of inheritance is the 'hereditatis petitio,' an actio arbitraria. 1 When the pat. fam. shall have altered his intention, struck out the name of the heir and cut through the tablets, and the amount of his share has accordingly been confiscated to the Treasury, the late Emp. Marcus decided that such circumstance does not prejudice the legatees, who have retained the disposition made to them, and therefore the Treasury succeeds with the heir's own burden. 2 If an emancipated son, who has been passed over, has laid claim to the possession of the father's goods in opposition to his testament, and upon the ground of substitution for a minor has entered upon the inheritance, the whole inheritance is taken from him, and devolves upon the Treasury.-The late Emp. Pius has pronounced such person unworthy as has been quite clearly proved to have brought about by his negligence and fault the death of a woman by whom he was appointed heir. , a BOOK III This lies against every one who possesses an object belonging to the inheritance 'pro herede' (i.e., assuming to itself a right of inheritance), or 'pro possessore (without appeal to a ground of law). The fictus possessor, as in the case of rei vindicatio, is on a par with the actual possessor." ❝ § 90. Regulariter definiendum est eum demum teneri petitione hereditatis, qui vel ius pro herede vel pro possessore possidet vel rem hereditariam-licet minimam. Itaque qui ex asse vel ex parte heres est, intendit quidem hereditatem suam esse totam vel pro parte, sed hoc solum ei officio iudicis restituitur quod adversarius possidet, aut totum, si ex asse sit heres, aut pro parte ex qua heres est. Pro herede possidet, qui putat se heredem esse; sed an et is, qui scit se heredem non esse, pro herede possideat, quaeritur: et Arrianus putat teneri, quo iure nos uti Proculus scribit. Pro possessore vero possidet praedo,-qui interrogatus cur possideat, responsurus sit 'quia possideo,' nec contendet se heredem vel per mendacium,-nec ullam causam possessionis possit dicere: et ideo fur et raptor petitione hereditatis tenentur.-1. 9 (Ulp.), l. 10 (Gai.), 1. 11-1. 13 pr. (Ulp.), D. h. t. (de H. P. 5, 3).' 1 One can as a rule state that he alone is liable to the inheritance action who commands a right, or an inheritance as heir or as possessor,-although it be of the least extent. He therefore that is universal or partial heir does in fact claim the inheritance as his wholly or partially, but by the aid of the iudex that alone is restored to him which the opponent possesses, either the whole, if he be universal heir, or according to the share for which he is heir.-He possesses as heir who considers himself to be the heir.-But the question arises whether he who knows he is not heir, does possess as heir: Arrian is of opinion that he is liable, and Proculus writes that this is our law. . . . A robber occupies as possessor,-who when asked the reason of his possession can only answer, Because I possess,' and will not, or only by means of a falsehood, maintain that he is heirand can allege no ground of his possession; and therefore the thief and the robber are liable to the inheritance action. Ulp. Item a debitore hereditario, quasi a iuris possessore, posse hereditatem peti constat. Item qui a debitore hereditario exegit, petitione hereditatis tenetur.—Ulp. l. 13, § 15, 1. 16, § I eod.' The object of the action is the inheritance itself; a it is an hereditatis vindicatio (s. in rem actio de universitate)' which, however, comprises also personal performances. Its purpose is, judicial recognition of the right of inheritance and restitution of the objects of inheritance' cum omni causa,' and after deduction of the outlay, with discrimination between the bonae and malae fidei possessor. Id. Petitio hereditatis, etsi in rem actio sit, habet tamen praestationes quasdam personales, ut puta eorum quae a debitoribus sunt exacta.—1. 25, § 18 eod." Gai. iv. § 133: Olim quaedam (praescriptiones) et pro reo opponebantur, qualis illa erat praescriptio: EA RES AGATVR, SI IN EA RE PRAEIVDICIVM HEREDITATI NON FIAT, quae nunc in speciem exceptionis deducta est et locum habet, cum petitor hereditatis alio genere iudicii praeiudicium hereditati faciat, veluti cum res singulas petat.' 1 It is well known that an inheritance can likewise be sued for from a debtor of the inheritance as if from the possessor of a right. Likewise a person that has recovered from a debtor of the inheritance is liable to the inheritance action. 2 The inheritance action, although it is a real action, nevertheless embraces certain personal performances, as for example, of that which has been recovered from debtors. 3 Formerly some (prescriptions) were set up on behalf of the defendant; as was such a prescription as this: "That matter may be the subject of the action, provided it does not involve a prior decision as to the inheritance,' which is now thrown into a kind of plea, and is employed when a claimant of the inheritance, by another sort of action, may get a prior decision as to the inheritance; for example, when he sues for particular things. |