BOOK III, a §§ 178. 181. Cf. § 161. Brown, s. vv. aliis supervenientibus partes a priore abstrahentibus, ut ex aliorum quidem concursu prioris legatum minuatur.-C. 6, 51, 1. un. § 11. $184. LAPSE OF BEQUESTS. The grounds of the lapse of a bequest can be: Cels. Catoniana regula sic definit: quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum, quandocumque decesserit, non valere; quae definitio in quibusdam falsa est. 1. I pr., D. de reg. Cat. 34, 7.2 Inst. ii. 20, § 10: Si rem legatarii quis ei legaverit, inutile legatum est, quia quod proprium est ipsius, amplius eius fieri non potest; et licet alienaverit eam, non debetur nec ipsa nec aestimatio eius.3 1 But when there are two, it may be, or several legatees or fideicommissaries, to whom something has been left, and it is left to them jointly, and a certain part thereof falls through, we enact that if they all prefer to have it, it shall accrue to all with its burdens, in the proportions prescribed by civil law, or if all decline it, it shall remain with those by whom it has been bequeathed; but when some wish for it, and some decline it, the whole accrues alone to those who care for it. If, however, anything shall be left severally, and all shall both be able and prefer to receive it, let each receive a single share; . . . but if not all the legatces to whom the property has been left severally agree upon the acquisition thereof, but perhaps only one will acceptit, it shall wholly belong to him, because the language of the testator seems at first sight to assign the whole to all, when others coming in besides subtract shares from the first, so that by the joint action of the later ones the legacy of the first is diminished. 2 The Catonian rule is in the following terms: Such legacy as, if the testator had died at the time of making the testament would have been void, is of no effect, whensoever the testator shall have died. This definition in certain cases is erroneous. 3 If a man have bequeathed to a legatee the property of such, Pap. Catoniana regula non pertinet ad ea legata, quorum dies non mortis tempore, sed post aditam cedit hereditatem.-1. 3, D. de reg. Cat.' Ulp. Sed si sub condicione (res mea mihi) legetur, poterit legatum valere, si existentis condicionis tempore mea non sit . . . quia ad condicionalia (legata) Catoniana non pertinet.1. 41, § 2, D. de leg. I.' Id. xxiv. 23 Ei, qui in potestate manu mancipiove est scripti heredis, sub condicione legari potest, ut requiratur, an quo tempore dies legati cedit, in potestate heredis non sit." BOOK III. (2) Revocation (ademptio legati)," which can occur a See Brown, s. either expressly or tacitly. Ulp. xxiv. 29: Legatum quod datum est adimi potest vel eodem testamentum, vel codicillis testamento confirmatis: dum tamen eodem modo adimatur, quo modo datum est.' Inst. ii. 20, § 12: Si rem suam legaverit testator posteaque eam alienaverit, Celsus existimat, si non animo adimendi vendidit, nihilominus deberi, idque divi Severus et Antoninus rescripserunt. the legacy is void, because what is a man's own cannot be made still more his property; and although he have alienated it, neither the thing itself nor its value is due. 1 The Catonian rule does not apply to those legacies the vesting of which takes place, not at the time of death, but after entry upon the inheritance. 2 But if (my property) is bequeathed (to me) conditionally, the legacy can stand good so far as the thing is not my property upon the fulfilment of the condition . . . because the Catonian rule does not apply to conditional legacies. 3 A legacy can be given conditionally to a person who is under the potestas, manus, or mancipium of the appointed heir; so as to require his not being under the potestas of the heir at the time the legacy vests. A legacy that has been given can be revoked either by the same testament, or by a codicil confirmed by the testament, provided, however, that it is revoked in the same mode in which it was given. 5 If a testator shall have bequeathed his own property, and afterwards have alienated it, Cels. thinks that the legacy is Ademptio. Cf. Story, § 1114 (Grigsby, p. 772). Ulp. Non solum autem legata, sed et fideicommissa adimi possunt et quidem nuda voluntate. Unde... si capitales vel gravissimae inimicitiae intercesserint, ademptum (fideicommissum) videri. Secundum haec et in legato tractamus doli exceptione opposita.-D. 34, 4, 3, II.' The revocation can also be accomplished by means of alteration or transfer of the legacy (translatio egati). Paul. Translatio legati fit quattuor modis: aut enim a persona in personam transfertur; aut ab eo qui dare iussus est transfertur, ut alius det; aut cum res pro re datur, ut pro fundo decem aurei; aut quod pure datum est transfertur sub condicione.-1. 6 pr. eod.2 (3) If the testament itself become invalid, or destitutum,' the bequests bequests together collapse." But the Praetorian edict ('si quis omissa causa testamenti ab intestato possidet hereditatem') protects the legatees, if the person instituted in the testament, to nullify the bequests, craftily does not enter upon the inheritance ex testamento, in order thus either himself to acquire it ab intestato or to appropriate it to another (intestate heirs or substitutes). Ulp. Praetor voluntates defunctorum tuetur et eorum calliditati occurrit, qui omissa causa still due, if the testator did not sell it with the intention of adeeming the legacy; and the late Empp. Severus and Antoniuus have so decided by rescript. 1 Now not only legacies but gifts in trust can be revoked, and that by mere declaration. We must therefore consider that (a gift in trust) has been revoked if a mortal or very violent feud has arisen. We deal with a legacy according to the same rule when a plea of fraud has been set up. 2 The transfer of a legacy comes about in four ways; for it is either transferred from one person to another; or the transfer is made by him who is directed to convey, in order that another may convey; or if instead of one thing another is given, for example, instead of an estate, ten gold-pieces; or if anything given absolutely is transferred conditionally. testamenti ab intestato hereditatem partemve eius Id.: ubi pecunia accepta repudiavit, ibi BOOK III. Part III. On the other hand, if merely the oneratus fail, the burden of the bequests passes with the hereditary portion to the joint-heirs," or substitutes, acquiring a § 175. such by accrual. Id.: post rescriptum Severi, quo fidei commissa ab instituto relicta a substitutis de b а bentur, et hic quasi substitutus cum suo onere 'Sc. coheres. consequetur adcrescentem portionem.—1. 61, § 1, D. de leg. II. (31).3 The Praetor protects the dispositions of deceased persons, and counteracts the craft of those who, ignoring the testamentary title, have possession of the inheritance or a part thereof as heirs by intestacy, with the object of depriving those to whom something would have been due according to the judgment of the deceased, were not the inheritance possessed ab intestato; and he promises an action against them.-If a man have fraudulently forborne to take up an inheritance, in order that it may devolve upon the heir-at-law, he will be liable to a claim for legacies. 2 when he received money for his renunciation, we shall say that a person who has ignored the title should be sued, but even when it has been without reward, yet in fraud of those to whom anything has been bequeathed, the possessor ought to be sued by an equitable action. 3 since the rescript of Severus, whereby fideicommissa charged upon the heir are a debt from the after-heirs, he (i.e., the co-heir) also, in the character of after-heir, will acquire the accrued inheritance with its incumbrances. Воок 111. a Gai. ii. 274 and 226. b Cf. ibid. (§ 73) $ 185. PARTITIO LEGATA AND UNIVERSAL Not merely a single object of property, but also a share of the Inheritance itself can be the object of the legacy, so that the heir has to divide the latter with the legatee this is the PARTITIO LEGATA, the origin of which is connected with the lex Voconia." Ulp. xxiv. 25: Sicut singulae res legari possunt, ita universarum quoque summa id est pars legari potest, quae species partitio appellatur; ut puta hoc modo: HERES MEVS CVM TITIO HEREDITATEM MEAM PARTITO DIVIDITO; quo casu dimidia pars bonorum Titio legata videtur: potest autem et alia pars velut tertia vel quarta legari.1 Pomp. Cum bonorum parte legata dubium sit, utrum rerum partes, an aestimatio debeatur, Sabinus quidem et Cassius aestimationem, Proculus et Nerva rerum partes esse legatas existimnaverunt. Sed oportet heredi succurri, ut ipse eligat, sive rerum partes sive aestimationem dare. maluerit.-1. 26, § 2, D. de leg. I. 30.62 The taker of the bequest (legatarius partiarius) remains singular successor, to whom pass neither claims nor debts of the inheritance; therefore special, reciprocal 'stipulationes partis et pro parte' were commonly concluded between him and the heir, as to proportional 1 Just as single articles can be bequeathed, so can an aggregate of things, that is, a share, which kind of legacy is called a 'partition'; as for example, in this way: 'Let my heir share and divide my inheritance with Tit.' In this case half of the estate is considered as bequeathed to Tit.; but yet other shares can be bequeathed, as a third or fourth. 2 When as regards the bequest of a part of the estate it is doubtful whether shares of the property or their value ought to be rendered, Sab. and Cass. thought that it was the value, but Proc. and Nerva that it was the shares which were bequeathed. But we must aid the heir, that he himself may choose whether he prefer to give shares of the property or their value. |