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601

HERBS.

For instance, if the heredes instituti were sui, the person or persons passed over took an equal share with them. If the heredes instituti were extranei, the person or persons passed over took a half of the whole hereditas ; and as the praetor gave the contra tabulas bonorum possessio to the person so passed over, the extranei were deprived of all the hereditas. A rescript of the emperor M. Antoninus limited the amount which women could take by the bonorum possessio to that which they could take jure adcrescendi ; and the same was the law in the case of emancipated females.

It was necessary cither to institute as heredes, or to exheredate posthumous children nominatim, otherwise the will, which was originally valid, became invalid (ruptum} ; and the will became invalid by the birth either of a posthumous son or daughter, or, as the phrase was, adgnascendo rum-pitur testamentum. (Cic. de Or. i. 57.) Postumi were not only those who were born after the tes­tator's will was made, and came into his power or would have come into his power if he had lived, but also those who might become the sui heredes of the testator by the death of some other person in the testator's lifetime. Thus, if a testator's son, who was in his power, had children, and the son died in the testator's lifetime, the grandchildren became sui heredes, and the testament became ruptum by this quasi agnatio: it was therefore a necessary precaution to institute as heredes or to exheredate such grandchildren. It follows that if the testament could be made invalid by this quasi agnatio, it must have become invalid by a son being born in the lifetime of the testator, unless the will had provided for the case ; for it became invalid if the testator adopted a son or a daughter (Ulpian) either by adrogation or adoption properly so called, after the date of his will. The case was the same if he took a wife in manum after the date of the will.

The word Postumus has clearly the same signi­fication as Postremus, and literally means a child born last. The passage of Gains is defective where he treats of Postumi; but the definition of Postumi, as preserved in the Breviarium, appears to be exact: " Postumorum duo genera sunt: quia postumi adpellantur hi, qui post mortem patris de uxore nati fuerint, et illi qui post testamentum factum nascuntur." Sometimes the word postumus is defined only as a child born after a father's death, as we see in some of the Glossae, and in Plutarch (Sulla, 37) ; but there is no proof that the meaning was limited to such children ; and the passages sometimes cited as being to that effect (Dig. 50. tit. 16. s. 1 64; 28. tit. 3. s. 3) have been misunderstood. .

As to Postumi alieni, see Gains, i. 147, ii. 242; Vangerow, Pandekten, &c. vol. ii. p. 90.

Other cases in which a valid testamentum became ruptum or irritum, are more properly con­sidered under testamentum.

The strictness of the old civil law was modified by the praetorian law, which gave the bonorum possessio to those who could not take the hereditas by the rules, of the civil law. [bonorum pos­sessio.]

The heres represented the testator and intestate (Cic.. de Leg. ii. 19), and had not only a claim to all his property and all that was due to him, but was bound by all his obligations. He succeeded to the sacra privata, and was bound to maintain them,

HERES.

but only in respect of the property, for the.obliga­tion of the sacra privata was attached to property and to the heres only as the owner of it. Hence the expression " sine sacris hereditas " meant an hereditas unencumbered with sacra. (Plant. Capi. iv. 1. 8, Trinum. ii. 4. 83; Festus, s. v. Sine sacris hereditas.}

The legislation of Justinian released the heres, who accepted an hereditas, from all the debts and obligations of the testator or intestate, beyond what the property would satisfy, provided he made out an inventory (inventarium} of the property in a certain form and within a given time. (Cod. 6. tit. 30. s. 22.) It also allowed the institution of a man's own slave as heres without giving him his freedom. (List. 2. tit. 14; comp. Gains, ii. 185.)

The heres could claim any property which be­longed to his testator or intestate by the heredita-tis petitio (Dig. 5. tit. 3. s. 20), which was an actio in rem, and properly belonged to a heres only, though it was afterwards given to the bonorum possessor. Each heres claimed only his share. (Cic. Pro Rose. Com. c. 18.)

The coheredes shared among themselves the pro­perty, and bore their share of the debts in the same proportions. For the purpose of division and set­tling the affairs of the testator, a sale was often necessary. (Cic.adAtt. xi. 15.) If the parties could not agree about the division of the property, any of them might have an actio familiae erciscundae. [familiae erc. Ac.]

The hereditas might be alienated by the form of in jure cessio. The heres legitimus might alienate the hereditas before he took possession of it, and the purchaser then became heres, just as if he had been the legitimiis' heres. The scriptus heres could only alienate it after the aditio : after such aliena­tion by him, or by the heres legitimus after aditio, both of them still remained heredes, and conse­quently answerable to creditors, but all debts due to them as heredes were extinguished.

The hereditates of freedmen are more properly considered under liberti and patroni.

Before it was determined who was heres, the hereditas was without an owner, and was said " jacere." When a heres was ascertained, such person was considered to possess all the rights in­cident to the hereditas from the time of the death of the testator or intestate. But this does not ex­plain how we are to view the, hereditas in the in­terval between the death of the former owner and the time when the heres is ascertained. During such interval, according to one form of expression used by the Roman jurists, the hereditas is a juris­tical person (vice personae fimgitur\ and is the domina, that is, the domina of itself ; according to another form of expression, it represents the de­funct, and not the person of the future heres. These two forms are the same in meaning, and they express a fiction which has relation to the legal capacity of the defunct, and not that of the future heres, and which does not involve the no­tion of any juristical personality of the hereditas. The relation to the legal capacity of the defunct is this : — Slaves generally belonged to an hereditas. A slave, as is well known, could acquire property for his living master, even without his knowledge ; but the validity of the act of acquisition, in some cases, depended on the legal capacity of his master to acquire. Now, while the hereditas was without an ascertained owner, many acts of a slave by

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