the testator, must make a claim for the possessio bonorum contra tabulas in order to obtain it. Ulpian says (D. 37, t. 11, pr. 2), Voluit enim (prætor) ad liberos bonorum possessionem contra tabulas pertinere ; mox si inde non occupata, judicium defuncti sequendum. Strictly, exhæredatio is not an essential formality, without which a testament is null and void. The testament exists in the eyes of the Prætor, notwithstanding such omissions, although it is liable to be set aside. Indeed the very expression, possessio bonorum contra tabulas, presumes the existence of a testament, and is in this respect to be distinguished, at least in name, from the possessio bonorum unde liberi granted to the same persons when there is no testament, si tabulæ testamenti nullæ extabunt (1).

Hence if the children omitted from the testament failed to demand the possessio bonorum contra tabulas, the Prætor granted it secundum tabulas to the hæredes instituti, even where by the Civil Law the testament would have been held void because a suus hæres proper had been omitted. Upon the same principle, when the quasi-postumus whose agnatio or quasi-agnatio had avoided the testament, died before the testator, the Prætor gave effect to the testament by granting the possessio bonorum secundum tabulas to the hæredes instituti.

§ 4. Whilst adopted children were in the adopted family, they occupied the same position there as offspring of a lawful marriage; and it was necessary for the adopting father to appoint them hæredes, or to disinherit them, as if they had been his legitimate offspring; but once emancipated by their adopted father, they ceased to be his children. either by the Civil or by the prætorian law. On the other hand, as to the natural father, his children, who had become members of an adopted family, were strangers to him, because they could not belong to two families at once; but as soon as they were emancipated by their adopted father they became like children who had been emancipated by their natural father; and the prætorian law directed him to appoint them hæredes or disinherit them in express terms.

§ 5. Justinian altered the law on this subject. He abolished all distinction between the sons and other issue (or descendants), between posthumous males and posthumous females; and he decreed that all the issue (whether sui hæredes or emancipated), if it was intended to disin

(1) The Prætor granted the possessio bonorum to a testator's daughters and granddaughters, the omission of whom from the testament would, according to the Civil Law, have entitled them to jus accrescendi. Thus, as Gaius says (B. 2, § 125), the hæredes extranis would have been totally excluded from taking anything under the testament. Thus also, he adds, § 126, there would be no difference between children male and female; but the

Emperor Antoninus determined by a rescript that the woman should obtain no more by the bonorum possessio than by the jus accrescendi. A child who was appointed hæres of a very small portion, was not entitled to claim the possessio bonorum; but the right to claim this possessio vested in him if any other child had been omitted, even although the child so omitted preferred no claim (D. 37, t. 4, 10, § 6).

herit them, must be disinherited by name, whatever their degree of remoteness, and whatever their sex; and that, if they were omitted from the testament, it should be absolutely null. As to adopted children, the changes made by Justinian as to adoption, rendered it unnecessary to disinherit any persons except those adrogati or filii-familias, adopted by an ancestor; for they alone (at least generally) continued to pass under the power of their adopter (B. 1, t. 11).

§ 6. But soldiers were not obliged to disinherit by express words those children whom they would not appoint (instituere) hæredes. The silence of a military testator was sufficient to exclude his children from the hæreditas, provided he was aware of the existence of such children, whether born or only conceived; for though the intention to disinherit need not be expressed, still it must be proved as a fact; and therefore, as the existence of hæredes, forgotten by the testator, rendered a soldier's testament void ab initio, so the coming into existence of hæredes likewise forgotten rendered it thenceforth ineffectual.

§ 7. Nor were the mother and the maternal ancestors obliged to appoint their issue hæredes or to disinherit them. The only persons whom it was necessary to disinherit were the sui hæredes, and those whom the Prætor regarded as such, notwithstanding their emancipation. Now, children were not sui hæredes of their mother or of their maternal grandfather: because they were not members of the family of either. The silence of the mother or of the maternal grandfather in their testament had therefore the same effect as when the father expressly disinherited; and the only case in which a child could impugn the mother's testament, from which it had been omitted, was the case in which it would have been competent for such child to impugn a father's testament, from which it had been excluded, viz., when the will was void, as inofficiosum (t. 18, post).

TITLE XIV.—OF THE APPOINTMENT (INSTITUTIO) OF HÆREDES. Institutio hæredes is the appointment of the person or persons whom the testator desires to be his hæres (successor), i.e., to be his general representative; in other words, the individual or individuals who are to continue his legal person.-This appointment was essential to the validity of all the particular dispositions made by the testator: so that if it failed, either on account of the hæres refusing to accept, or otherwise, the legacies and other dispositions, which might be regarded as so

many laws imposed upon the hæres institutus, and as incident to the institutio, also failed (1).

A testator might institute as hæredes or appoint as his legal successor, those with whom he had testamenti-factio (t. 19, post), i.e., any Roman citizen (2). Hence, neither peregrini nor deportati could be instituti.

Every citizen, however, was not capable of being appointed hares. Thus, by the old law, and by the lex Voconia, A. U. C. 585, women could not be appointed hæredes by a testator being in the first class of the census, i.e., possessing 100,000 asses. Under Justinian this was repealed. But apostates and heretics remained incapable (C. 1, t. 7, 3). Incestuous children could not be appointed by their father or mother (C. 5, t. 5, 6); nor the second husband or wife by his or her consort, if there were any children by a first marriage (C. 5, t. 9, 6); nor natural children by their father, if he had legitimate children (C. 5, t. 27, 2).

Pr. Slaves might be appointed hæredes. A testator might appoint the slaves of another, if he had testamenti-factio with their master, or a testator might appoint his own slaves, by bequeathing them liberty, so that they become citizens.

Pr. By the old law a master who appointed his own slave hæres, was bound to enfranchise him expressly, because the old forms of enfranch isement prevented its being tacit. Justinian, however, decreed that the mere fact of being appointed hæres by his master should be deemed a tacit enfranchisement (3).

Pr. A testator might institute the slave whereof he had only a bare property. A slave so instituted will become free, but must remain in the service of the usufructuary during the term of his usufruct. For he who has the bare property in a slave is held to be the proprietor (4). When the slave appointed hæres by his master remained the slave

(1) Originally, certain formal words were used for this purpose: Titius hæres estoTitium hæredem esse jubeo (Gaius, 2, 116 and 117). But Constantine II., A.D. 389, decreed that any words should be sufficient. Moreover, this institutio was originally required to head the testament (caput testamenti); but vide, t. 20, § 34.

(2) A testator had testamenti-factio with municipalities and other corporations legally constituted. By the old law, no temples could be hæredes instituti except such as were designated by a Senatus Consultum or an imperial Constitution (Ulp. 22, §6). Prior to Justinian's time, Latini Juniani, who had the jus commercii, and were capable of appearing as emptores in the mancipatio might be haredes instituti; hence there was testamenti-factio with them. they had not the jus capiendi; i.e., they

But

could not derive any benefit from the appointment unless after the making of the testament and before accepting the hæreditas, they became citizens (Gaius, 23, 1, 24). So cœlibes (unmarried persons without children), and orbi (married persons without children), by the laws Julia and Papia Poppaa had the testamenti-factio, but not the jus capiendi.

(3) Vide B. 1, t. 6, § 2. Enfranchisement, express or implied, is essential to the validity of the institutio: and if the enfranchisement is impossible, the institutio is void. Hence, a woman accused of adultery with her slave could not appoint him hæres before judgment pronounced in the suit, because, till then, she could not en franchise him (Pr.).

(4) For the ususfructus is a right in the thing belonging to another.

of the testator till the testator's death, such slave became free and hæres necessarius at once (B. 1, t. 6, § 1; B. 2, t. 19, § 1).

§ 1. But if he had been enfranchised during the testator's life, then, as the testament did not convey to him his freedom and the hæreditas at once, he could not become hæres except voluntarily, and by accepting (aditio) the hæreditas; lastly, if the appointed slave had been alienated after the making of the testament, he could not become hæres unless he accepted the hæreditas by command of his new master.

§ 1. When another man's slave was appointed hæres, he became hæres on accepting the hæreditas by command of his master, if he continued subject to the same (in eadem causa); if he had changed his master, he could only accept the hæreditas by command of his new master (1); if he had been enfranchised during the testator's life, or after his death, but before the hæreditas was accepted, he accepted and acquired the hæreditas voluntarily and for his own benefit.

§ 2. After the death of A., and before any one, by accepting his hæreditas, assumed the place of A.'s successor, B. might institute the slaves left by A. as part of his hæreditas; and that, even though there was no testamenti-factio with slaves except in right of their master: for until the hæreditas was accepted, it represented the deceased, and continued his person (vicem persona defuncti sustinet). It was competent, therefore, for a testator to institute slaves forming part of a hæreditas until such hæreditas was accepted, in any case where the testator had testamenti-factio with the deceased, even though he might not have it with his hæres or representative. Hence, though a testator might have no power to appoint a posthumous child hæres, he might have power to appoint as hæredes the slaves which were about to belong to the posthumous child at its birth, as part of that hæreditas which was about to vest in him as postumus suus of the deceased.

§ 3. When a slave belonging to several masters was appointed hæres, he acquired the hæreditas for each of the masters with whom the testator had testamenti-factio, and who directed him to accept it for them: not, however, in equal shares, but in proportion to the shares held by each in the slave.

§ 3. Suppose a slave, held as joint-property, was appointed hæres by one of his masters and joint-proprietors, what then? If freedom was expressly given by the testament, the slave became free, provided the other jointowners were indemnified. But if freedom was not expressly given, I question whether one of several masters of a slave, who appoints him hæres, must be taken to enfranchise him. Where there is only one

(1) The hæreditas is acquired by the slave's owner at the time of acceptance. Until acceptance, the benefit of the insti

tutio follows the slave, hæreditas ambulat cum domino (D. 37, t. 11, 4, § 9).

master, the slave must be enfranchised or the testament must be void; but where the slave has several masters, he may accept the hæreditas for their benefit, and yet remain a slave (Ulp. 22, § 7, 10; I. B. 2, t. 7, § 4).

§ 12. Moreover, a testator might appoint as hæredes those whom he has never seen, even under the old law, according to which there was no testamenti-factio with incerti, for a person who has not been seen is not incertus, provided that a clear idea of him as an existing being has been formed. Thus I may institute my nephews born abroad, though I have never seen them.

§ 4. A testator might appoint as many hæredes as he pleased. All the instituti or appointees are called to the whole hæreditas; in other words, the whole vests in them, either jointly or successively, i.e., in some failing the others: for the rule of law is, that a man cannot die partly testate and partly intestate. The testator's power, however, is confined to this, viz., defining the share to be taken by each hæres institutus, in case several hæredes should come in jointly in

fact.

§§ 5, 8. The hæreditas called as (1), an expression which amongst the Romans denotes unity or the dividend, was usually divided into twelve equal parts, called unciæ. And this division the testator is

supposed to adopt, when there is nothing to indicate the contrary.

§ 5. Suppose the testator has appointed one hæres, and given him six uncia (semissem). In this case the testator cannot be supposed to have divided the as into twelve uncia, unless you assume that he has disposed of only half his hæreditas, and consequently intended to die partly testate and partly intestate. Therefore it is assumed that he has divided the as into six unciæ, i.e., into sixths, not twelfths. But a soldier's testament is privileged, and therefore, if he has disposed only of six uncia, he will be taken to have disposed of only half his hæreditas.

§ 7. Again, suppose the testator has distributed amongst the several hæredes instituti more or less than twelve unciæ; suppose, e.g., three instituti and three uncia (ex quadrante) to each, or four instituti and four uncia to each. In the first case the hæreditas must be divided into nine, in the second into sixteen unciae: each haeres, therefore, would in the first case have three-ninths or one-third, and in the second four-sixteenths or one-fourth. If the testator gave cach of the instituti unequal shares,