THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. XIV.
CINCINNATI
THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME XIV.
THE CODE OF JUSTINIAN.
SECOND EDITION. (Continued.)
BOOK VI.
(Continued.)
TITLE XXVII. PAGE
CONCERNING THE APPOINTMENT AND SUBSTITUTION OP SLAVES AS NECESSARY HEIRS ........:...................................... 3
TITLE XXVIII. CONCERNING PASSING OVER AND DISINHERITANCE. ................... 6
TITLE XXIX.
CONCERNING THE APPOINTMENT, DISINHERITANCE, AND OMISSION OF POSTHUMOUS HEIRS IN A WILL. ................................ 9
TITLE XXX.
CONCERNING THE RIGHT OF DELIBERATING, AND OF ENTERING UPON OR ACQUIRING AN ESTATE ........................................ 10
TITLE XXXI. CONCERNING THE REJECTION OR REFUSAL TO ACCEPT AN ESTATE ........ 22
TITLE XXXII.
IN WHAT WAY WILLS ARE OPENED, EXAMINED, AND COPIES OF THEM MADE ...................................'.................... 24
TITLE XXXIII.
CONCERNING THE ANNULMENT OF THE EDICT OF THE DIVINE HADRIAN, AND IN WHAT WAY AN APPOINTED HEIR MAY BE PLACED IN POSSESSION OF AN ESTATE ........................................... 25
TITLE XXXIV.
WHERE ANYONE HAS FORBIDDEN OR COMPELLED ANOTHER TO MAKE A WILL ....................................................... 26
TITLE XXXV.
CONCERNING THOSE WHO ARE DEPRIVED OF ESTATES AS BEING UNWORTHY, AND ON THE SYLLANIAN DECREE OF THE SENATE. ........ 27
TITLE XXXVI. CONCERNING CODICILS ............................................ 30
TITLE XXXVII. CONCERNING LEGACIES ............................................ 32
TITLE XXXVIII. CONCERNING THE MEANING OF WORDS AND THINGS. .................. 38
TITLE XXXIX. WHERE PROPERTY LEFT BY WILL is REJECTED. ....................... 41
TITLE XL.
CONCERNING WHAT is REQUIRED OF WIDOWHOOD, AND THE ABROGATION OF THE LAW OF JULIA MISCELLA ................................ 41
TITLE XLI.
CONCERNING PROPERTY MENTIONED IN OR LEFT .BY A WILL OR A CODICIL, UNDER A PENALTY ........................................... 43
TITLE XLII. CONCERNING TRUSTS ............................................. 44
TITLE XLIII.
REGULATIONS WHICH ARE EQUALLY APPLICABLE TO LEGACIES AND TRUSTS, AND CONCERNING THE ABOLITION OF THE ACT OF PLACING THE PARTY INTERESTED IN POSSESSION OF THE PROPERTY BEQUEATHED ................................................... 51
TITLE XLIV.
CONCERNING FALSE STATEMENTS MADE IN THE CASE OF LEGACIES OR TRUSTS ..................................................... 55
TITLE XLV. CONCERNING LEGACIES OR TRUSTS LEFT FOR A SPECIFIC PURPOSE ........ 57
TITLE XLVI.
CONCERNING CONDITIONS INSERTED IN THE BEQUESTS OF LEGACIES, TRUSTS, AND GRANTS OF FREEDOM .............................. 57
TITLE XLVII. CONCERNING THE INTEREST AND THE PROFITS OF LEGACIES AND TRUSTS .. 59
TITLE XLVIII. CONCERNING UNCERTAIN PERSONS. THIS TITLE is LACKING. ........... 60
TITLE XLIX. CONCERNING THE TREBELLIAN DECREE OF THE SENATE ................ 60
TITLE L. ON THE FALCIDIAN LAW ........................................... 64
TITLE LI.
CONCERNING THE ABOLITION OF THE FORFEITURES OF SUCCESSIONS TO THE STATE ...................................................... 69
TITLE LII.
CONCERNING THOSE WHO CAN TRANSMIT AN ESTATE BEFORE THE WILL HAS BEEN OPENED ........................................... 75
TITLE LIII. AT WHAT TIME A RIGHT TO LEGACIES OR TRUSTS VESTS ................ 76
TITLE LIV.
WHEN SECURITY SHOULD BE FURNISHED TO PROVIDE FOR THE PLACING OF LEGATEES OR BENEFICIARIES OF A TRUST IN POSSESSION OF WHAT HAS BEEN BEQUEATHED TO THEM ................................... 77
TITLE LV.
CONCERNING PROPER HEIRS, AND LEGITIMATE CHILDREN AND GRANDCHILDREN, BORN OF A DAUGHTER, WHO ARE ENTITLED TO AN ESTATE AS HEIRS AT LAW ............................................... 79
TITLE LVI. ON THE TERTULLIAN DECREE OF THE SENATE ......................... 81
TITLE LVII. ON THE ORPHITIAN DECREE OF THE SENATE .......................... 85
TITLE LVIII. CONCERNING HEIRS AT LAW ........................................ 89
TITLE LIX. MATTERS COMMON TO SUCCESSIONS. ................................. 96
TITLE LX.
CONCERNING THE ESTATES OF MOTHERS AND OF THOSE IN THE MATERNAL LINE ........................................................ 99
TITLE LXI.
CONCERNING PROPERTY ACQUIRED BY CHILDREN WHILE UNDER THE CONTROL OF THEIR FATHER, EITHER BY MARRIAGE OR IN ANY OTHER MANNER, AND ITS ADMINISTRATION ............................. 101
THE TEXT OF THE CODE ........................................... 105
TITLE LXII.
CONCERNING THE ESTATES OF DECURIONS, MASTERS OF SHIPS, ATTENDANTS OF MILITARY COHORTS, AND EMPLOYEES IN ARSENALS. ........ Ill
BOOK VII.
TITLE I. PAGE
CONCERNING FREEDOM GRANTED BY THE WAND OF THE PRAETOR, AND MANUMISSION CONFERRED IN THE COUNCIL. ...................... 112
TITLE II. CONCERNING TESTAMENTARY MANUMISSION .......................... 113
TITLE III. CONCERNING THE ABOLITION OF THE LEX FUSIA CANINIA. ............. 118
TITLE IV. CONCERNING GRANTS OF FREEDOM BY MEANS OF TRUSTS .............. 118
TITLE V. CONCERNING THE ANNULMENT OF CONDITIONAL GRANTS OF FREEDOM ... 122
TITLE VI.
CONCERNING THE ABOLITION OF LATIN FREEDOM, AND ITS TRANSFERENCE IN CERTAIN WAYS TO THE ENTIRE BODY OF ROMAN CITIZENS. ....... 123
TITLE VII. CONCERNING THE MANUMISSION OF A SLAVE OWNED IN COMMON 127
TITLE Vill.
CONCERNING THE MANUMISSION OF A SLAVE WHO HAS BEEN GIVEN IN PLEDGE ..................................................... 129
TITLE IX. CONCERNING THE MANUMISSION OF SLAVES BELONGING TO THE STATE .... 130
TITLE X. CONCERNING SLAVES MANUMITTED BY OTHERS THAN THEIR MASTERS. ... 131
TITLE XI.
WHO CANNOT MANUMIT SLAVES, AND CONCERNING THE PREVENTION OF MANUMISSION FOR THE PURPOSE OF DEFRAUDING CREDITORS ........ 132
TITLE XII. WHO CANNOT OBTAIN THEIR FREEDOM .............................. 134
TITLE XIII. FOR WHAT REASONS SLAVES CAN RECEIVE THEIR FREEDOM AS A REWARD 134
TITLE XIV. CONCERNING THE MANUMISSION OF FREEBORN PERSONS ................ 135
TITLE XV. GENERAL PROVISIONS WITH REFERENCE TO MANUMISSIONS. ............ 138
TITLE XVI. CONCERNING CASES INVOLVING FREEDOM ............................. 140
TITLE XVII. CONCERNING THE ABOLITION OF LEGAL ASSERTIONS THAT A MAN is FREE 147
TITLE XVIII.
WHAT SLAVES ARE NOT PERMITTED TO DECLARE THAT THEY ARE FREE, AND CONCERNING THE PROPERTY OF THOSE WHO ARE FORBIDDEN TO DO so ....................................................... 148
TITLE XIX. CONCERNING THE ORDER OF JUDICIAL INQUIRIES ....................... 149
TITLE XX. CONCERNING THE DETECTION OF COLLUSION .......................... 151
TITLE XXI.
THE STATUS OF A DECEASED PERSON CANNOT BE BROUGHT IN QUESTION AFTER THE EXPIRATION OF FIVE YEARS .......................... 152
TITLE XXII.
CONCERNING THE PRESCRIPTION OF LONG TIME WHICH is PLEADED IN BEHALF OF AND NOT AGAINST FREEDOM .......................... 154
TITLE XXIII. CONCERNING THE PECULIUM OF HIM WHO HAS OBTAINED His FREEDOM. . 154
TITLE XXIV. CONCERNING THE ABOLITION OF THE CLAUDIAN DECREE OF THE SENATE ... 155
TITLE XXV. CONCERNING THE ABOLITION OF THE MERE CIVIL RIGHT OF ROMANS. ..... 155
TITLE XXVI.
CONCERNING USUCAPTION EITHER IN FAVOR OF THE PURCHASER OR ACQUIRED BY VIRTUE OF THE TRANSACTION ......................... 156
TITLE XXVII. CONCERNING THE USUCAPTION OF PROPERTY WHICH HAS BEEN DONATED 158
TITLE XXVIII. CONCERNING USUCAPTION IN THE CASE OF A DOWRY. .................. 158
TITLE XXIX. CONCERNING USUCAPTION WITH REFERENCE TO AN HEIR. .............. 158
TITLE XXX. GENERAL RULES WITH REFERENCE TO USUCAPTION .................... 159
TITLE XXXI.
CONCERNING THE TRANSFER OF THE RIGHT OF USUCAPTION AND THE ABOLITION OF THE DISTINCTION OF EES MANCIPI AND RES NEC MANCIPI .................................................... IGO
TITLE XXXII. CONCERNING THE ACQUISITION AND RETENTION OF POSSESSION. ........ 161
TITLE XXXIII.
CONCERNING THE PRESCRIPTION OF LONG TIME BASED UPON OCCUPANCY FOR TEN OR TWENTY YEARS ................................... 153
XXXIV.
To WHAT CASES PRESCRIPTION OF LONG TIME DOES NOT APPLY. ....... 167
TITLE XXXV. IN WHAT CASES PRESCRIPTION OF LONG TIME CANNOT BE PLEADED. .... 168
TITLE XXXVI. WHERE PRESCRIPTION is PLEADED AGAINST A CREDITOR ............... 169
TITLE XXXVII. CONCERNING THE PRESCRIPTION OF FORTY YEARS ...................... 170
TITLE XXXVIII.
THE CLAIM TO PROPERTY BELONGING TO THE CROWN, OR TO THAT BELONGING TO THE TEMPLES, SHALL NOT BE BARRED BY PRESCRIPTION 172
TITLE XXXIX. CONCERNING THE PRESCRIPTION OF THIRTY AND FORTY YEARS. ......... 173
TITLE XL.
CONCERNING THE ABOLITION OF THE PRESCRIPTION OF A YEAR AFFECTING CONTRACTS MADE IN ITALY, AND THE DIFFERENT TERMS, EXCEPTIONS, PRESCRIPTIONS, AND INTERRUPTIONS OF THE SAME. ......... 179
TITLE XLI.
CONCERNING ALLUVION, MARSHES, AND PASTURES BROUGHT INTO ANOTHER CONDITION ............................................ 182
TITLE XLII. CONCERNING THE DECISIONS OF PR^TORIAN PREFECTS. ................ 183
TITLE XLIII.
How AND WHEN A JUDGE SHOULD RENDER A DECISION IN THE PRESENCE OF BOTH PARTIES, OR IN THE ABSENCE OF ONE OF THEM ............ 183
TITLE XLIV.
CONCERNING OPINIONS RENDERED WITH REFERENCE TO STATEMENTS
MADE IN A WRITTEN PETITION .................................. 186
TITLE XLV. CONCERNING THE FINAL AND INTERLOCUTORY DECISIONS OF ALL JUDGES 187
TITLE XLVI.
CONCERNING DECISIONS WHICH ARE RENDERED WITHOUT STATING THE EXACT AMOUNT TO BE PAID .................................... 190
TITLE XLVII.
CONCERNING DECISIONS RENDERED FOR DAMAGES. .................... 190
TITLE XLVIII.
WHERE A DECISION HAS BEEN RENDERED BY A JUDGE WHO is SAID NOT TO BE COMPETENT ............................................ 191
TITLE XLIX.
CONCERNING THE PENALTY TO WHICH A JUDGE is LIABLE WHO HAS RENDERED AN IMPROPER DECISION, AND THE PUNISHMENT WHICH MAY BE INFLICTED UPON ANYONE WHO ATTEMPTS TO CORRUPT A JUDGE, OR His ADVERSARY ............................ 192
TITLE L. A DECISION WHEN ONCE RENDERED CANNOT BE REVOKED. ............. 193
TITLE LI. CONCERNING THE PROFITS AND THE EXPENSES OF LITIGATION ........... 193
TITLE LII. CONCERNING RES JUDICATA ........................ 195
TITLE LIII. CONCERNING THE EXECUTION OF JUDGMENT. ......................... 196
TITLE LIV. CONCERNING INTEREST ON A JUDGMENT ............................... 197
TITLE LV. WHERE JUDGMENT is RENDERED AGAINST SEVERAL PERSONS AT ONCE .... 199
TITLE LVI. WHO ARE NOT INJURED BY A JUDGMENT. ............................ 199
TITLE LVII.
NOTICES, LETTERS, PROCLAMATIONS, AND SIGNATURES DO NOT POSSESS THE AUTHORITY OF JUDGMENTS ..................................... 20°
TITLE LVIII. WHERE A JUDGMENT is BASED ON FORGED DOCUMENTS OR FALSE EVIDENCE 201
TITLE LIX. CONCERNING CONFESSIONS ........................................ 202
TITLE LX.
ACTS PERFORMED OR JUDGMENTS RENDERED BETWEEN SOME PERSONS CANNOT PREJUDICE THE RIGHTS OF OTHERS ..............:....... 202
TITLE LXI. PAGE CONCERNING REFERENCES TO THE EMPEROR. ......................... 202
TITLE LXIL
CONCERNING APPEALS AND IMPERIAL DECISIONS. ..................... 203
THE TEXT OP THE CODE ........................................... 205
TITLE LXIII.
CONCERNING DELAYS, AND THE AMENDMENTS OF APPEALS OR REFERENCES TO THE EMPEROR............................................. 214
TITLE LXIV. WHEN IT is NECESSARY TO APPEAL. ................................. 219
TITLE LXV. WHOSE APPEALS SHOULD NOT BE RECEIVED. .......................... 221
TITLE LXVI. WHERE THE APPELLANT DIES WHILE THE APPEAL is PENDING. ......... 223
TITLE LXVII. CONCERNING THOSE WHO DO NOT APPEAL THROUGH FEAR OF THE JUDGE 224
TITLE LXVIII. WHERE ONE OR MORE OF THE PARTIES APPEAL. ....................... 225
TITLE LXIX. WHERE AN APPEAL is TAKEN AGAINST TEMPORARY POSSESSION. ....... 225
TITLE LXX.
No ONE SHALL BE PERMITTED TO APPEAL FOR THE THIRD TIME IN ONE AND THE SAME CASE, OR TO REFUSE TO OBEY THE JUDGMENT OF A COURT WHICH HAS BEEN RENDERED TWICE AND CONFIRMED BY THE DECISION OF A PREFECT ........................................ 226
TITLE LXXI. WHO CAN MAKE AN ASSIGNMENT OF THEIR PROPERTY. ................ 227
TITLE LXXII.
CONCERNING THE SEIZURE AND SALE OF PROPERTY BY AUTHORITY OF COURT, AND THE SEPARATION OF THE SAME ....................... 230
TITLE LXXIII. CONCERNING THE PRIVILEGE OF THE TREASURY ........................ 233
TITLE LXXIV. CONCERNING THE PRIVILEGE OF DOWRY .............................. 234
TITLE LXXV.
CONCERNING THE REVOCATION OF CONTRACTS BY WHICH PROPERTY HAS BEEN ALIENATED FOR THE PURPOSE OF DEFRAUDING CREDITORS. ..... 235
BOOK Vill.
TITLE I. PAGE CONCERNING INTERDICTS .......................................... 236
TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM ...................... 237
TITLE III. CONCERNING THE INTERDICT QUORUM LEGATORUM ..................... 238
TITLE IV. CONCERNING THE INTERDICT UNDE Vi............................... 238
TITLE V.
WHERE THE POSSESSION OF AN ABSENT PERSON is INTERFERED WITH BY FORCE OR IN ANY OTHER WAY ................................. 241
TITLE VI. CONCERNING THE INTERDICT UTI POSSIDETIS ......................... 242
TITLE VII. CONCERNING THE PRODUCTION OF WILLS. ............................ 242
TITLE Vill.
CONCERNING THE PRODUCTION OR INTRODUCTION OF CHILDREN AND FREEMEN IN COURT ............................................... 243
TITLE IX. CONCERNING THE PRECARIOUS AND SALVIAN INTERDICTS. .............. 243
TITLE X. CONCERNING PRIVATE BUILDINGS ................................... 244
TITLE XI.
CONCERNING THE NOTICE PROHIBITING THE ERECTION OF A NEW STRUCTURE ....................................................... 247
TITLE XII. CONCERNING PUBLIC WORKS. ...................................... 248
TITLE XIII.
CONCERNING THE CONTRACTORS OF PUBLIC WORKS AND THE SENATORS OF CITIES ...................................................... 252
TITLE XIV. CONCERNING PLEDGES AND HYPOTHECATIONS ......................... 253
TITLE XV.
CONCERNING CASES IN WHICH PROPERTY is TACITLY PLEDGED OR HYPOTHECATED ................................................. 251
TITLE XVI. PAGE WHERE PROPERTY BELONGING TO ANOTHER is PLEDGED. ............... 260
TITLE XVII.
WHAT PROPERTY WHEN PLEDGED CAN OR CANNOT BE RENDERED LIABLE FOR A DEBT, AND IN WHAT WAY A PLEDGE is GIVEN ............... 262
CONSTITUTION OF FREDERICK ....................................... 263
TITLE XVIII. WHO ARE PREFERRED CREDITORS WHEN PROPERTY is PLEDGED. ......... 264
TITLE XIX. CONCERNING THOSE WHO SUCCEED TO THE PLACES OF PRIOR CREDITORS .. 269
TITLE XX. WHERE A PRIOR CREDITOR SELLS THE PROPERTY PLEDGED. .............. 270
TITLE XXI. WHERE PROPERTY OWNED IN COMMON is PLEDGED. ................... 270
TITLE XXII.
CONCERNING THE PR^TORIAN PLEDGE AND ITS APPLICATION EVEN TO THE ACTIONS OF DEBTORS .......................................... 271
TITLE XXIII.
WHERE PROPERTY is SEIZED IN PURSUANCE OF A JUDGMENT. ............ 271
TITLE XXIV. WHERE PROPERTY is PLEDGED A SECOND TIME ........................ 272
TITLE XXV.
CONCERNING THE OFFSPRING OF PROPERTY WHICH HAS BEEN PLEDGED AND ALL OTHER INCREASE OF THE SAME. ........................ 273
TITLE XXVI. CONCERNING THE RELEASE OF PLEDGES .............................. 273
TITLE XXVII.
PLEDGES CAN EVEN BE HELD TO SECURE THE PAYMENT OF MONEY EVIDENCED BY A WRITTEN INSTRUMENT ............................. 275
TITLE XXVIII. CONCERNING THE SALE OF PLEDGES ................................. 276
TITLE XXIX. A DEBTOR CANNOT PREVENT THE SALE OF THE PROPERTY PLEDGED ...... 280
TITLE XXX.
WHERE PROCEEDINGS ARE INSTITUTED ON ACCOUNT OF THE SALE OF A PLEDGE ..................................................... 280
TITLE XXXI. PAGE CONCERNING THE RELEASE OF PLEDGES ............................. 281
TITLE XXXII.
WHERE ONE OF SEVERAL HEIRS OF THE DEBTOR OR CREDITOR EITHER PAYS OR RECEIVES His SHARE OF THE DEBT ........................... 282
TITLE XXXIII.
WHERE THE PAYMENT OF MONEY is NOT MADE AFTER A CONTRACT FOR THE PLEDGING OF PROPERTY HAS BEEN ENTERED INTO. ............ 282
TITLE XXXIV.
CONCERNING THE RIGHT TO OBTAIN OWNERSHIP OF THE PROPERTY OF A DEBTOR ..................................................... 283
TITLE XXXV.
CONCERNING CONTRACTS RELATING TO PLEDGES AND THE ABOLITION OF THE LAW OF CONDITIONAL AVOIDANCE WITH REFERENCE TO PLEDGES 285
TITLE XXXVI. CONCERNING EXCEPTIONS OR PRESCRIPTIONS. ......................... 286
TITLE XXXVII. CONCERNING DISPUTED PROPERTY .................................. 288
TITLE XXXVIII. CONCERNING THE CONTRACTION OF A STIPULATION ....... ............. 290
TITLE XXXIX. CONCERNING STIPULATIONS WHICH ARE VOID. ........................ 294
TITLE XL. WHERE Two OR MORE PERSONS STIPULATE AND PROMISE. ............... 296
TITLE XLI. CONCERNING SURETIES AND MANDATORS. ............................. 297
TITLE XLII. CONCERNING NOVATIONS AND ASSIGNMENTS. ......................... 304
TITLE XLIII. CONCERNING PAYMENTS AND RELEASES. ................ ............ 306
TITLE XLIV. CONCERNING VERBAL RELEASES .................................... 310
TITLE XLV. CONCERNING EVICTIONS ........................................... 311
TITLE XLVI.
A CREDITOR is NOT RESPONSIBLE FOR EVICTION. ...................... 317
TITLE XLVII. CONCERNING PATERNAL CONTROL ................................... 318
TITLE XLVIII. PAGE CONCERNING ADOPTIONS ........................................... 320
TITLE XLIX. CONCERNING THE EMANCIPATION OF CHILDREN. ...................... 324
TITLE L. CONCERNING UNGRATEFUL CHILDREN ............................... 326
TITLE LI.
CONCERNING PERSONS WHO RETURN BY THE RIGHT OF POSTLIMINIUM, AND THE RANSOM OF CAPTIVES FROM THE ENEMY. ................ 326
TITLE LII.
CONCERNING THE ABANDONMENT OF CHILDREN BOTH FREE AND SLAVE, AND CONCERNING THOSE WHO RECEIVED NEWBORN CHILDREN FOR THE PURPOSE OF REARING THEM ................................ 332
TITLE LIII. WHAT is MEANT BY LONG-CONTINUED CUSTOM ........................ 333
TITLE LIV. CONCERNING DONATIONS .......................................... 334
THE TEXT OF THE CODE............................................ 342
TITLE LV.
CONCERNING DONATIONS WHICH ARE MADE PROVISIONALLY OR UNDER A CONDITION, OR TO TAKE PLACE AT A CERTAIN TIME. ............... 346
TITLE LVI. CONCERNING THE REVOCATION OF DONATIONS. ........................ 347
TITLE LVII. CONCERNING DONATIONS CAUSA MORTIS ............................... 350
TITLE LVIII.
CONCERNING THE ABOLITION OF THE PENALTIES OF CELIBACY AND WIDOW-ERHOOD AND THE ABROGATION OF TITHES......................... 351
TITLE LIX. CONCERNING THE RIGHT OF CHILDREN. .............................. 352
BOOK IX.
TITLE I. CONCERNING THOSE WHO CANNOT BRING AN ACCUSATION .............. 352
TITLE II. CONCERNING ACCUSATIONS AND DENUNCIATIONS IN WRITING ........... 358
TITLE III. PAGE
CONCERNING THE PRODUCTION AND TRANSFER OF PERSONS ACCUSED OF ^
CRIME ........."'"'""'"'"'
TITLE IV. CONCERNING THE CUSTODY OF ACCUSED PERSONS. ..................... 363
TITLE V.
CONCERNING THE PROHIBITION OF PRIVATE PRISONS. .................. 365
THE CODE OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SECOND EDITION. (Continued.)
BOOK VI.
(Continued.)
TITLE XXVII.
CONCERNING THE APPOINTMENT AND SUBSTITUTION OF SLAVES AS NECESSARY HEIRS.
1. The Emperor Antoninus to Aufidius and Others.
If, notwithstanding you were slaves, you were appointed heirs under the designation of freedmen, your appointment as such should be liberally interpreted, just as if you had been liberated and appointed heirs at the same time. This does not apply to a legacy.
Given on the seventh of the Kalends of March, during the Consulate of Priscus and Apollinaris, 170.
2. The Emperor Pertinax to Lucretius.
A person who is not solvent can appoint a necessary heir, even if he defrauds his creditors. If, however, you were given in pledge and still remain in the same condition, you cannot become free and a necessary heir of your master, who was a debtor, and insolvent.
Published on the eleventh of the Kalends of April, during the Consulate of Falco and Clarus, 194.
3. The Emperors Diocletian and Maximian, and the Caesars, to Felix.
As your guardian married your female slave, and afterwards appointed her his heir, he could not, by an act of this kind, deprive you of your title to her, and you will be legally empowered to order her to enter upon the estate for the purpose of acquiring it.
Given on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors, 193.
4. The Emperor Justinian to Julian, Prsetorian Prefect.
A certain man appointed his son, who had not yet reached the age of puberty, his heir, and in positive terms bequeathed his slave his freedom. He then, by a pupillary substitution, substituted the said slave for his son, in the second degree, without granting him his freedom, and the question arose among persons learned in the law
whether, by a substitution of this kind, the slave would become the necessary heir of the minor. The reason for this dispute arose from the ancient rule, by which it was universally held that such a slave becomes the necessary heir of his master, when the estate and his liberty are left to him at the same time.
In the present instance, however, the grant of freedom and the substitution are not combined in the same act, but take place at different dates. Hence, for the purpose of deciding this controversy, it appeared to Us extraordinary for anyone to think that the intention of the testator should be thwarted by a subtle distinction of this kind, especially where the testator is a master, and to think that the slave does not become his necessary heir, but that he gave him the right to obtain his freedom and reject the estate, and in this way oppose his will. Anyone who attempts to do this should be punished. Therefore the slave should become free during the lifetime of the minor, because this was the intention of the testator, and if the minor should die, the slave will become his necessary heir, because the testator desired that this should be the case.
Given at Constantinople, on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.
5. The Same to John, Prsetorian Prefect.
When anyone makes a will and appoints two heirs, one of them to a certain portion of his estate, and makes a slave (mentioning him by name) heir to the remaining portion without giving him his freedom, and afterwards leaves said slave to another person, or, after the appointment of the slave as his heir, bequeaths him by a legacy, and then appoints him his heir without giving him his freedom, a doubt arose whether a legacy or an appointment of this kind could have any force in law, and as to who would be entitled to the legacy or the appointment. There was some ground for doubt, because he appointed the slave, who still belonged to'him, his heir without his freedom, and such a dispute arose among the ancient authorities that it seemed scarcely possible to settle it. Leaving aside this ancient controversy, We have discovered another way of disposing of the matter, as We always follow the indications of the intention of the testator. Therefore, as We find it has been established by Our law that if anyone should appoint his slave guardian of his children, without bestowing upon him his freedom, by the mere appointment of guardianship he is presumed to have been granted his freedom on account of his wards, for which reason We have considered that it is only for the benefit of the estate, as well as more humane and in favor of liberty, that if anyone should appoint his slave his heir without his freedom, he, through that very fact, becomes a Roman citizen. Relying upon this conclusion, We hold that the slave cannot be acquired, and that the protracted and inexplicable discussions of the ancients are not applicable. For it should not be presumed that persons are so destitute of understanding as to appoint their own slaves as heirs without granting them their freedom, and afterwards by a legacy bequeath the same slaves to others.
(1) But the ancient authorities raised .another doubt, by stating that if anyone should appoint his slave his heir to a part of his estate by his will, without granting him his freedom, and then should grant him his freedom by a codicil, whether such an appointment would be valid, and whether he would become the heir as well as be free, lest it might appear that the estate was granted by the codicil, as an estate could not under the ancient rules be left in this way.
We, however, being inclined to a liberal and beneficent interpretation in a disposition of this kind, even though it may have been inserted in a codicil, order that freedom and the estate shall be granted at the same time to slaves, in order to render them grateful to Us that they do not remain in servitude, but become free, and heirs. Our benevolence is exerted in their behalf to such an extent that, although their freedom may not have been granted to them either by a will or a codicil, nevertheless, when an estate is left to slaves it should be considered that they have obtained their liberty.
(2) It should, however, be observed that when a legacy or a trust is bequeathed to slaves without their freedom, they will remain in servitude; but it is to be hoped that heirs do not exist who are so wicked as to thwart the liberality of the testator, and fraudulently deprive the slaves of the remuneration to which they are entitled, and that they will not be ignored, even though the bequest was made to them while still in servitude.
(3) This legal regulation of Ours is also extended to another ambiguous case; for if anyone should, by the principal part of his will, bequeath a slave to another person, and then by pupillary substitution substitute the said slave for his son without granting him his liberty, the question arose whether a substitution of this kind would be valid, and if it would be acquired by the legatee through the slave who was bequeathed after the death of the minor; or whether such a substitution would be void because it was made with reference to the slave without bestowing his freedom upon him.
The better opinion seems to Us to be to hold that the title to him was not immediately acquired by the legatee, but that the substitution remains in suspense, and if the minor should die, there will be ground for the substitution, and the slave will at once become free and the heir. If, however, there should be no ground for the substitution and the minor should reach the age of puberty, then the title to the slave will pass to the legatee. For, just as the ancient authorities, when substitution was made at the same time with the grant of freedom, came to the conclusion that the grant of freedom should remain in abeyance, and the slave should be considered entitled to it under a condition, so, by Our interpretation, where the grant of freedom does not accompany the substitution, the slave becomes free and the heir of the minor.
Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 531.
6. The Same to John, Praetorian Prefect.
The decision which We have just rendered, declaring that a slave appointed heir by his master without the grant of freedom must be
considered free, shall remain undisputed; and if anyone should absolutely appoint his slave his heir, but grant him his liberty under a condition, and the condition is such that it can be complied with by the slave, and he should be guilty of negligence and fail to fulfill it, he, through his own fault, shall forfeit both his freedom and the estate.
Where, however, the condition was accidental, and fails on account of the vicissitudes of fortune, then, on the ground of humanity, the slave will undoubtedly be entitled to his freedom, but the estate, if it is solvent, shall go to those legally entitled to it, if no substitute was appointed. But, if it should not be solvent, and the slave should have been appointed a necessary heir, he shall obtain both his liberty and the estate at the same time, for he will then be free and a necessary heir, not only by the ruling of the ancient authorities, but also in accordance with Our decision.
Given at Constantinople, on the second of the Kalends of August, after the fifth Consulate of Lampadius and Orestes, 531.
TITLE XXVIII. CONCERNING PASSING OVER AND DISINHERITANCE.
1. The Emperor Antoninus to Favianus.
As a disinheritance clause should be inserted in the will after all the appointments of heirs, if the testator should add that his son is disinherited in all the degrees of succession, there is no doubt that the requirements of the law will be satisfied. And, indeed, if he did not add this clause, it would still be apparent that this was his intention, if he mentioned the disinheritance in general terms, and the testament will be considered to have been legally executed. Therefore, if the head of a family should disinherit his son after having appointed his sons his heirs, and substituted them for one another, he must be under- stood to have made the disinheritance with reference to both degrees; for the same heirs having been appointed, no good reason can be advanced why the testator should have intended to apply the disinheritance only to the last case.
Published on the sixth of the Kalends of July, during the Consulate of Chilo and Libo, 205.
2. The Emperor Alexander to Heraclida.
If your grandfather appointed your father and your step-mother heirs to equal portions of his estate but did not disinherit you by name, although you were under your father's control at the time, and your father died during the lifetime of your grandfather, you will have a right to succeed to your father, notwithstanding the provisions of the Velleian Law, for you have broken the will of your grandfather and his entire estate will belong to you.
Published on the sixth of the Ides of April, during the Consulate of Fuscus, Consul for the second time, and Dexter, 226.
3. The Emperor Justinian to John, Prsetorian Prefect.
Where anyone disinherits his own son, as follows, "Let So-and-So, my son, have no share of my estate," a son under the construction of a clause of this kind is understood not to have been passed over, but to have been disinherited. For where the intention of the testator is perfectly clear, the interpretation of the words is never important enough to prevail over it.
Given on the tenth of the Kalends of March, after the fifth Consulate of Lampadius and Orestes, 531.
4. The Same Emperor to John, Prsetorian Prefect.
By the present law, We correct the greatest defect to be found in the legal enactments of the ancients, which held that different rules should be observed in the testamentary disposition of the estates of parents, so far as males and females were concerned, while both sexes enjoyed the same rights under an intestate succession. They decided that a son should be disinherited by a certain form of words, and a daughter by another, and in some instances they introduced the Civil, and in others the praetorian law, in the case of grandchildren.
Where a son was passed over, he either annulled the will under the law, or he obtained praetorian possession of the entire estate contrary to the testamentary provisions. A daughter, however, who was passed over, was entitled to the right of accrual by the ancient law, so that at the same moment that the will of her father was set aside with reference to a certain portion of the estate, the right of accrual vested, and she herself was considered as included among the legatees; and, moreover, under prsetorian law she was entitled to complete possession of the property of the estate contrary to the terms of the will.
A constitution of the Great Antoninus provided that under praetorian law she could only take what she was entitled to by the right of accrual. Jurists who established such distinctions as those above mentioned appear as accusers of Nature for not having solely produced males, so that those from whom they spring should not have been created.
In order to remedy this, We follow in the path of our ancestors, who clearly appear to have entertained the same idea, for We know that in former times it was permitted to include both sons and daughters, and all others, among those disinherited in general terms.
The centumvirs afterwards made another distinction, and from their injustice a second defect arose which has been brought to Our knowledge through the works of Ulpianus, which he composed on the Edict of the Praetor, and those of Tribonian, Our most illustrious Quaestor, and other eminent jurisconsults. The last resort of children who have been passed over is the complaint of inofficiousness in a will, and as a daughter could not have recourse to it, if she were passed over, her position was worse than if she had been disinherited. For since a daughter who was passed over would receive half of the estate either through prsetorian possession contrary to the provisions of the will, or by the right of accrual, and she was compelled to contribute
to the payment of all legacies up to the amount of three-quarters of her share, she would, in fact, only be entitled to a twelfth and a half of the estate. If, however, she were disinherited, a fourth part of the entire estate must, by all means, have been given to her; and hence she whom her father thought worthy of being excluded from participation in his estate would receive more than a daughter whom he silently passed over in the appointment of his heirs.
And if, in accordance with the terms of Our Constitution which We have promulgated with reference to the supplementing of the fourth part, the deficiency should have been made up, in like manner, the deficiency of the disinherited daughter, so far as the fourth part of her share of the estate was concerned, still existed, and thus the defect remained in existence and was not corrected by Our Constitution. Therefore, We order, as in the succession of parents which passes by intestacy, both males and females shall stand upon an equal footing; that females shall be benefited by the terms of wills; that specific disinheritances shall be stated in identical language; and that a daughter shall have praetorian possession of an estate contrary to the provisions of the will in the same manner as a son, who is his own master or emancipated, is entitled to; so that, if passed over, she can cause the will to be set aside by law in the same way as an emancipated son, or one who is independent, whether he causes the will to be annulled by process of law, or obtains praetorian possession of the estate in contravention of its terms. This rule shall apply not only to daughters, but also to grandsons and granddaughters, and We decree that it shall be observed with reference to other descendants, provided they are derived from males.
But, for the reason that still another defect has arisen under the pretext of a difference, and one set of rules is observed with reference to the disinheritance of posthumous children, and another concerning those already born, as it was necessary for a posthumous female child to be disinherited with the others, and to be benefited by a legacy, but a daughter already born was not entitled to the legacy, We have extended this principle to the utmost by means of a very brief additional clause, directing that the same rule shall apply to the disinheritance of posthumous children, either of the male or female sex, which We have already established with reference to other sons and daughters; that is to say, that they must be disinherited by name, so that, in the case of posthumous children, they shall be specifically designated.
Given at Constantinople, during the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531.
Extract from Novel 113, Chapter HI. Latin Text.
A parent is not allowed to disinherit or pass over any of his children, unless the child is proved to have been ungrateful, and the testator specifically mentions the acts of ingratitude in his will. Fourteen kinds of ingratitude are enumerated by a new constitution.
Extract from the Same Novel. Latin Text.
A will is void only with reference to the appointment of heirs, where disinheritance or the passing over of other heirs is involved. The other testamentary provisions remain unaltered.
TITLE XXIX.
CONCERNING THE APPOINTMENT, DISINHERITANCE, AND OMISSION OF POSTHUMOUS HEIRS IN A WILL.
1. The Emperor Antoninus to Brutatius.
If, after having made his will by which the testator omitted all mention of his posthumous children, a son or daughter should be born to him, he is considered to have died intestate, as the will is broken by the birth of a posthumous child of either sex, who was not mentioned therein. It is a well-established legal principle that nothing is due, or can be demanded under the terms of a will which has been broken.
Given on the fourth of the Kalends of July, during the Consulate of Antoninus, Consul for the fourth time, and Balbinus, 214.
2. The Emperors Diocletian and Maximian, and the Csesars, to Sotericus.
The will of a husband is not annulled by a miscarriage of his wife; but it is a perfectly clear rule of law that, when a posthumous child has been passed over, the will is broken and cannot be renewed, even if the child should die immediately after birth.
Given on the twelfth of the Kalends of March, during the Consulate of the Caesars.
3. The Emperor Justinian to John, Prsetorian Prefect.
We now decide a matter which has been the subject of controversy among the ancients. Therefore, while an unborn child, who was passed over in its father's will, became the heir of its father when it came into the world, provided no other child had preceded it, and by its birth broke the will; where a posthumous child, having been born, died without uttering a cry, it was doubted if such a child could break the will by its birth; and the minds of the ancient authorities were at a loss to determine what opinion should be rendered with reference to the will of the father.
The Sabinians held that if the child was born alive, and did not utter a cry it broke the will; but it is evident that if it was born dumb it could not do so. We also adopt this opinion, and order that when a child is born alive, even though it should immediately die, or perish while in the hands of the midwife, the testament will, nevertheless, be broken. It is, however, absolutely necessary for it to come into the world alive, and not have the shape of a monster, or be horribly deformed.
Given at Constantinople, on the fifteenth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.
4. The Same Emperor to John, Prsstorian Prefect.
Where a man, when making his will, used the following language, "If a son or a daughter should be born to me, within the term of ten months after my death, he or she shall be my heir," or if he wrote as follows, "Let my son or my daughter, who may be born within ten months after my death, be my heir," a dispute arose among the ancient interpreters of the law whether the said posthumous heir should be considered as not having been included in the will, and to have broken it. Hence, as We have promulgated many laws for the purpose of aiding the intention of testators, We, for the purpose of deciding this question, now direct that a will shall not be considered as having been broken by the use of either of these forms of expression; but if a son or a daughter should be born within ten continuous months from the death of the testator, or during his lifetime, his will shall remain unaltered, in order that he who did not pass over his children in his will may not suffer the penalty for having done so.
Given at Constantinople, on the twelfth of the Kalends of December, during the fifth Consulate of Lampadius and Orestes, 530.
TITLE XXX.
CONCERNING THE RIGHT OF DELIBERATING,1 AND OP ENTERING UPON OR ACQUIRING AN ESTATE.
1. The Emperor Antoninus to Titia.
If, having been emancipated by your father, you did not take possession of his estate after his death, you need be under no apprehensions that you will be obliged to do so, because you manumitted some of his
1 From the right of deliberation as to the acceptance or rejection of an estate, accorded to heirs, is probably derived the family council, which, utterly inconsistent with the institution of the patria potestas, and invested with a quasi judicial authority, was called to settle domestic differences; to provide for the appointment and discharge of guardians; to sanction marriages and arrange for dowries and ante-nuptial donations; to authorize the encumbrance of property; and to perform many other acts having reference to the welfare and protection of minors, and especially of orphans. This tribunal is provided for by the codes of most European nations, and as well as by that of Louisiana. It is ordinarily composed of relatives, connections, or friends of the minor and a magistrate of the district, who convokes it, and presides. Application for the organization of a family council may be made by anyone related by either blood, marriage, or attachment to the minor whose interests are involved. Those who are summoned to attend are liable to a fine if they absent themselves; and in case of injury to the minor resulting from the malice or negligence of the members, the latter will be responsible. (Code Civil de France, Arts. 405, 409, Codigo Civil de Espana, Arts. 295-313, Codigo Civil Portuguez, Arts. 220, 226, Codice Civile de Regna d'ltalia, Arts. 47, 235, 237, 255, 260, 327, 334, Burgerlich.es Gesetzbuch, Arts. 1858-1881.)
An assemblage of this kind is called a "family meeting" in Louisiana, and the appointments are made by a judge, who designates a justice of the peace before whom it shall be held. Those who participate, five in numberpreferably the eldest of the next of kinare sworn to give their advice to the best of their
slaves without authority, and sold certain property and other slaves for the purpose of paying the funeral expenses.
Published on the Kalends of July, during the Consulate of Messala and Sabinus, 215.
2. The Emperor Alexander to the Soldier Florentinus.
As you state that you have paid a certain debt of your father's, there is no doubt that you should be considered to have accepted his estate, so far as your share of it is concerned.
Published on the sixth of the Ides of February, during the Consulate of Maximus, Consul for the second time, and ^Elianus, 224.
3. The Emperor Gordian to the Soldier Florentinus.
If your brother, at the time of his death, was under the control of his father, whether he was appointed heir to his entire estate, and would have been the heir even if the will had not been opened, or whether he was the heir only to a portion of the same, he will, none the less, become at once the proper heir of his father; and therefore, for the reason that he died a few days after the latter, you cannot succeed to the estate of your brother. If, however, he was his own master, and died before entering upon the estate, you are the lawful heir of your brother, whether you obtained possession of the estate within the time prescribed by the Edict, or whether the property belonging to it is unjustly retained by someone else, the Governor of the province will cause restitution to be made to you.
Published on the fifteenth of the Kalends of September, during the Consulate of Gordian, Consul for the second time, and Pompeianus, 242.
4. The Emperor Decius to Athenais.
It has frequently been stated in rescripts that where the son of a family has obtained an inheritance, and his father has acted in behalf of the heir with his consent, the legal formalities shall be considered to have been complied with.
Published on the tenth of the Kalends of March, during the Consulate of Decius and Gratus, 251.
5. The Emperors Valerian and Gallienus to Paulus.
A ward can acquire an estate through his guardian acting as heir, but the consent of the latter will be necessary; for if the guardian should do anything without his knowledge, he cannot acquire the estate for him.
Published on the sixteenth of the Kalends of July, during the Consulate of Valerian, Consul for the fourth time, and Gallienus, Consul for the third time, 258.
knowledge. The official before whom the meeting is held is required to draw up a report of the proceedings, sign it, and cause those who attend also to attach their "signatures. A copy is given to the latter, who must have it published. (Civil Code of Louisiana, Arts. 305-311.)ED.
6. The Emperors Diocletian and Maximian to Philip/pa.
If your grandmother appointed your father her heir to two-twelfths of her estate, your father will become her heir solely by the disclosure of her intention. Therefore, if she stated in her will that you were to receive the said two-twelfths, you can obtain possession of the amount by applying to the Governor of the province.
Published on the sixteenth of the Kalends of August, during the Consulate of the above-mentioned Emperors, 290.
7. The Same Emperors and Csesars to Eusobinus.
As you allege that your sister died before she knew that any of the estate of her brother had been left to her, it is perfectly clear and evident that the estate of the deceased could not be transmitted to her heirs, before she herself performed some act as heir, or obtained prse-torian possession of the property.
Published during the Kalends of May, during the Consulate of the above-mentioned Emperors.
8. The Same Emperors and Csesars to Claudius.
Although the proper heirs did not immediately busy themselves with the property of the estate of their father, still, if they were ignorant that it was left to them, they_cannot be excluded by prescription of long time from claiming it according to law.
Ordered on the seventeenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.
9. The Same Emperors and Caesars to Plato.
If, by the properly executed will of your former curator, or on the ground of intestacy, you have obtained legal succession of his estate, in this instance he who did not reject it will be permitted to enter upon the same. Therefore, the Governor of the province, having been applied to, should interrogate those who are the heirs, and have not yet bound themselves, as to whether they will accept the estate, or not; and if they demand time for deliberation, he shall grant it to them as he thinks best.
Ordered on the sixteenth of the Kalends of January, during the Consulate of the above-mentioned Emperors.
10. The Same Emperors and Csesars to Sabina.
If, having passed the age of twenty-five years, you have interfered with the property of your father's estate, the insolvency of your father will not excuse you, nor will the violence of your brother who has appropriated your share, or suppressed the will, release you from the demands of the creditors, who have a right, under the Civil Law, to sue you for your hereditary share of the estate.
Ordered on the sixteenth of the Kalends of January, during the Consulate of the Csesars.
11. The Same Emperors and Cxsars to Philumena.
Your father, under whose control you were, can not, against your consent, accept an estate which has been legally left to you, nor can he confer freedom upon the slaves belonging to the same by manumitting them.
Ordered on the sixth of the Ides of February, during the Consulate of the Csesars.
12. The Same Emperors and Csesars to Antony.
There is no doubt that a child, who has arrived at the age of puberty, by accepting possession of the property of an estate after it has been left to him, acts in the capacity of heir.
Ordered on the third of the Kalends of December, during the Consulate of the Csesars.
13. The Same Emperors and Csesars to Sclepolis.
It is an established rule of law that a proper heir can obtain the estate of his father by rejecting prsetorian possession of the same.
Ordered at Nicomedia, on the third of the Ides of December, during the Consulate of the Csesars.
14. The Same Emperors and C&sars to Flavia.
If your brother was the legal successor of your sister, under both the Civil and praetorian law, even though it cannot be proved that he was in possession of the property of the estate, he, nevertheless, becomes the heir, and can institute proceedings against those who are in possession.
Ordered at Nicomedia, on the twelfth of the Kalends of January, during the Consulate of the Caesars.
15. The Emperor Constantius to Leontius, Count of the East.
There is no doubt that if a son should become his own master before he accepts an estate by order of his father, he can voluntarily claim the estate for himself.
Given on the seventh of the Kalends of April, during the Consulate of Limeneus and Catulinus, 349.
16. The Emperors Arcadius and Honorius to Annodius.
No one can be compelled, against his will, to purchase anything, to accept a donation, or to enter upon an estate which is onerous.
Given on the sixth of the Kalends of January, during the Consulate of Olybrius and Probinus, 295.
17. The Emperors Arcadius, Honorius, and Theodosius to Anthe-mius, Prsetorian Prefect.
We decree by this law that the vain formality of declaring that an estate is accepted is absolutely abolished.
Given at Constantinople, on the fifth of the Kalends of April, during the Consulate of Honorius, Consul for the seventh time, and Theodosius, 307.
18. The Emperors Theodosius and Valentinian to the Senate.
Where an estate is left to an infant, that is a child under the age of seven years, who is still under the control of its grandfather or great-grandfather, or where it becomes the heir at law of its mother or of anyone in the descending line of the latter, or of any other person whomsoever, the relative having charge of it shall be permitted to accept the estate, or praetorian possession of the same, in the name of the said child.
(1) If the said relative should fail to do this, and the infant should die under the above-mentioned age, the surviving relative can then obtain the entire estate by paternal right, no matter by what succession it descended to the said infant, just as if it had been acquired by the latter.
(2) Where, however, the relative is not living, and some other person has become, or has been appointed guardian of the infant after the death of said relative, the guardian can, while the child is still in the age of infancy, accept the estate in its name, whether it became entitled to it during the lifetime of its parents, or after his death; or he can demand prsetorian possession of the property, and in this manner acquire the estate for the said infant.
(3) But when there is no guardian, or if there is one and he should neglect to do these things, and the child should die in infancy, all the estates to which he had been entitled but had not accepted are understood to be in the same condition as if they had never been transmitted to him, and then they will pass to those persons who would have been called to the succession, if the infant had not been entitled to the same. These rules which we have established with reference to an infant under the control of its parents will also apply if the said infant should, under any circumstances, be ascertained to be his own master.
(4) If, however, the said minor has passed the age of seven years, and on account of the death of his father was under the care of a guardian, and died before reaching the age of puberty, We order that the regulations contained in the ancient laws shall prevail; and there can be no doubt that the minor, after having attained the age of seven years, can himself enter upon the estate and demand prsetorian possession of the same with the consent of his relative if he is still under his control, or by the authority of his guardian if he is independent; or where he has no guardian, he can appear before the Praetor and obtain this right in pursuance of his decree.
Given at Ravenna, on the sixth of the Ides of November, during the Consulate of Theodosius, Consul for the twelfth time, and Valentinian, Consul for the second time, 426.
19. The Emperor Justinian to Demosthenes, Prsetorian Prefect.
As We have found in the ancient laws, and especially in the Questions of Julius Paulus, that sons under paternal control who die while deliberating whether they will accept the estate of their father or not, can transmit the same to their own posterity, together with other privileges to which persons of this kind are entitled, We hereby declare
that this right of deliberation shall be granted to all their successors, whether they are cognates or strangers. Therefore, We order that when anyone is called to a succession either under a will, or as heir at law, he shall be entitled to deliberate, and if he has not done so, and has not rejected the estate, so that he appears to be deliberating on this account, and if he has performed no act which may indicate his acceptance, or his conduct as an heir, he can transmit this right of deliberation to his successors; provided, however, that the said transmission shall be terminated within the period of one year after the estate could have been entered upon. And, indeed, if anyone, knowing that he is entitled to an estate either as heir at law, or under the terms of the will, should, without having requested time for deliberation, die within a year, this right shall descend to his heirs, if it is exercised within the prescribed period. For if, after the will has been recorded, or after the heir kn,ows that he has been called to the succession either on the ground of intestacy or under the terms of the will, or under any other title, he should allow the term of a year to elapse without doing anything to manifest his intention of either accepting or rejecting the estate, he, together with his successors, shall be deprived of this privilege.
If, however, he should die within a year, he undoubtedly will leave to his successors the right to decide as to the acceptance of the estate during the unexpired time. When this has elapsed, however, neither he nor his heirs will have any claim to the possession of the estate.
Read in the New Consistory of the Palace of Justinian.
Given on the third of the Kalends of November, during the fifth Consulate of Decius.
20. The Same Emperor to John, Prsetorian Prefect.
Where a testator, having made a will, appointed an heir to certain shares of his estate, and afterwards by the same will appointed the said person heir to other shares of no matter what amount, and then, a third time, left him a certain number of shares of the same estate; the heir, having accepted his appointment to one or more of the shares, and having decided that one or more of the others should be rejected by him, the question arose among the ancient authorities whether he should be permitted to do this.
In like manner, when a testator appointed his son, who was under the age of puberty, his heir to a portion of his estate, and a certain stranger to the remaining portion, and made a pupillary substitution of the latter, and the testator afterwards died, and the minor became the heir .of his father, and the stranger entered upon the estate, and subsequently the minor died before reaching the age of puberty, it was doubted whether the pupillary substitution would take effect. The substitute being unwilling to accept the said share of the estate, the question also arose whether the testamentary heir could reject the pupillary substitution.
We think that both of these doubts should be removed by Us at the same time; hence, in the case of the appointment of the heir, or in
that of pupillary substitution, in order that everything may be accepted or rejected, We have decided that the necessity is imposed upon the heir who is especially appointed to accept either one or both parts of the estate, and that the pupillary substitution should also either be accepted or rejected.
Given at Constantinople, on the day before the Kalends of May, after the fifth Consulate of Lampadius and Orestes, 531.
21. The Same Emperor to John, Praetorian Prefect. Where a testator appointed as his heir a person who had a contest in court with a third party with reference to his status, and who claimed him as a slave, and he who alleged that he was his master ordered him to accept the estate, in order that the acquisition of the same might be obtained through his agency, and the latter refused to obey him as his master, a doubt arose among the ancient authorities whether any penalty should be inflicted for insolence of this kind. They held diiferent opinions on this point, and We, desiring to dispose of this discord, direct that the question should be decided in such a way that a nice distinction may be established in the case. For if the appointment was made in the following terms, "I appoint So-and-So, the slave of So-and-So, my heir," for the reason that it is perfectly clear that the appointment was made with reference to the master, it will, by all means, be necessary for the slave to be compelled by a competent judge to enter upon the estate, and acquire it for his alleged master; and if he should afterwards be declared to be free, he will not be subjected to any injury on this account, but all loss or gain will be sustained or enjoyed by the person who attempted to reduce him to servitude; and all actions having reference to the estate, both for and against him, will be refused, and his rights will not be prejudiced in any way for this reason.
If, however, he should be appointed heir as one who is free, without any mention of a master or a slave being made in his appointment, then, under no circumstances, can he be compelled to accept the estate, nor shall unrestricted choice be denied him, but the disposition of the estate will depend upon his condition, and will remain in abeyance till a decision is rendered, whether he be plaintiff or defendant in the case; so if he should be decided to be a slave, he will then acquire the estate for his master, but if he is found to be free, he himself will obtain it if he should desire to do so.
Given at Constantinople, on the second of the Kalends of May, after the fifth Consulate of Lampadius and Orestes.
22. The Same Emperor to the Senate.
We know that two constitutions have already been promulgated by Our authority, one having reference to those who thought they should deliberate with reference to the acceptance of estates which had been left to them, and the other concerning the appearance of unexpected debts, and the uncertain result to which heirs are subjected by the discovery of conflicting claims. We are not, however, ignorant of the
existence of certain ancient constitutions which the Divine Gordian addressed to Plato concerning soldiers who, through ignorance, entered upon an estate, and which provides that they can only be sued for the amount of property which belonged to the deceased, and that their own possessions cannot be interfered with by the creditors of the latter. This provision of the above-mentioned constitution has been adopted by Us, for the Imperial legislator was of the opinion that soldiers should rather be versed in arms than learned in the law. Therefore it appeared to Us to be beneficial to consolidate all these provisions in the same enactment, and not only to relieve soldiers by a privilege of this kind, but also to extend it to all other persons, as well where an unforeseen indebtedness appears as where anyone finds an estate which he had accepted to be onerous. Hence the privilege of deliberation would not be sufficient, unless in the case of men who are timorous and apprehensive of things which are unworthy of suspicion.
(1) Therefore, when an estate, either wholly or in part, vests in anyone, either under the terms of a will or on the ground of intestacy, and the heir prefers to accept it directly, and does so with a certain expectation of acquiring it, or meddles with it in such a way that he cannot afterwards reject it, in this instance, no inventory is required, as he is liable to all the creditors just as if he had voluntarily assumed the financial responsibilities of the estate. In like manner, if he thought that the estate should either be rejected or repudiated by him without hesitation, and within the term of three months after he knew that he was appointed heir, or called to the succession on the ground of intestacy, he publicly renounces the estate, he will not be obliged to make an inventory, or comply with any other formalities, and shall be considered as having no interest in the said estate, whether it be an onerous or a profitable one.
(2) Where, however, he is doubtful whether or not the estate of the deceased should be accepted, and does not think it necessary for him to deliberate, but enters upon it, or occupies himself with its management in any way, then an inventory should be drawn up by him without fail, so that, within thirty days after the will has been opened, or after he has been notified that this has taken place, or he has learned that the estate has descended to him as heir at law, he must begin the inventory of the property which the deceased possessed at the time of his death. This inventory must, by all means, .be completed within the other sixty days, in the presence of the notaries and other persons who are necessary for its preparation. The heir will be required to sign it, and state that it mentions the property belonging to the estate, and' that he has not committed, and will not commit any fraudulent act with reference to said property, which shall remain in his possession; or if he is ignorant of letters, or is unable to write, he can summon a special notary for the sole purpose of signing his name, and the venerated sign of the cross shall be prefixed to his signature by the hand of the heir; and this shall be done in the presence of witnesses who are acquainted with the latter, and who are present by his order to witness the signature of the notary in his, behalf.
(3) If, however, the heir should happen to be absent from the place where the property of the estate or the greater part of the same is situated, then We grant the period of one year dating from the death of the testator for the completion of the above-mentioned inventory ; for the time aforesaid will be sufficient, even though the property may be situated at a great distance. We concede to persons the power of drawing up an inventory either themselves or by attorneys instructed by them to do so, and who are sent to the places where the property is situated.
(4) Where the inventory has been drawn up in accordance with what has been previously stated, the heirs shall be entitled to the estate without running any risk, and can avail themselves of the benefit of the Falcidian Law against the legatees, so that they will only be liable to the heirs of the estate to the amount of the value of the property which may come into their hands, and they must satisfy those creditors who first appear; and, if after this is done, nothing remains, any creditors who afterwards appear shall be dismissed, and the heirs shall lose absolutely nothing of their own property, lest when they expect to make a profit they may suffer loss. If, however, in the meantime, the legatees appear, they must satisfy them either out of the actual property of the deceased, or out of its proceeds when sold.
(5) But when creditors, who have not yet been paid, appear after the estate has been exhausted, they shall not be allowed to annoy the heir himself, nor those who have purchased property from him, the proceeds of which have been used for the payment of legacies or trusts, or for the satisfaction of other creditors.
Creditors shall not be refused the right to appear against legatees, either in the hypothecary action, or in that to collect money which was not due, and to recover what they have received, as it would be perfectly absurd for laws enacted to benefit legatees to deny to creditors their right to obtain legal relief, as well as for legatees who are seeking for gain to be given their bequests in full.
(6) When, however, the heirs have surrendered the property of the estate to the creditors of the same, in satisfaction of debts, or have done so by the payment of money, the other creditors who have prior liens secured by hypothecation can appear against them, and recover the property from the subsequent creditors in accordance with the laws, either by an hypothecary action, or by a personal one for recovery, unless they voluntarily offer to discharge the indebtedness.
(7) As has frequently been stated, no action shall be granted against the heir himself, who has exhausted all the property belonging to the estate.
(8) They shall not, however, be permitted to proceed against the purchasers of property belonging to the estate which the heir himself sold for the payment of debts or legacies, as We have sufficiently provided for prior creditors by allowing them to proceed against subsequent ones, or against legatees who have been paid, and in this way to assert their rights.
(9) In estimating the amount of the estate, We grant the heir permission to accept and retain anything disbursed in funeral ex-
penses, or for the registry of the will, or for drawing up the inventory, or for any other necessary matters connected with the estate, which he can prove that he has paid. If, however, he himself had any rights of action against the deceased, these shall not be merged, and he shall share equally with the other creditors in every respect, but the right of priority shall be enjoyed by the latter.
(10) Permission should be given to creditors, legatees, and beneficiaries of trusts, if they think that the amount of the estate left by the deceased was larger than that stated by the heir in the inventory, to prove the excess by any lawful means which they may adopt, either by torturing the slaves of the estate, in accordance with the former law promulgated by Us, which treats of putting slaves to the question or by the oath of the heir, if other evidence should be lacking; and the truth must be ascertained whenever this can be done, in order that the heir may not obtain profit, or suffer loss through acceptance of an estate of this kind.
It must, however, be observed that if the heirs should abstract or conceal property belonging to the estate, or should take measures to remove anything, they shall restore double the amount, after they have been convicted, or shall be compelled to account for the same to the estate.
(11) While the inventory is in course of preparation, and is completed within three months when the assets are at hand, or within three years when they are elsewhere, in accordance with the former provision, neither creditors, legatees nor beneficiaries of a trust shall be permitted to either molest the heirs or bring them into court, or claim property belonging to the estate on the ground of its having been hypothecated, but this term shall be legally granted to the heirs for the purpose of deliberation, and during the interval no prejudice shall be created by the hereditary heirs on the ground of prescription.
(12) Where, however, after the heirs have entered upon the estate, or if, being either present or absent, they have occupied themselves with its management, and have neglected to draw up an inventory, and the time prescribed by Us for doing so has elapsed, then, for the very reason that they did not make an inventory in accordance with the provisions of this constitution, they shall undoubtedly be considered as heirs, and shall be liable for the entire amount of the indebtedness due from the estate, nor shall they enjoy the advantages of Our law, as they saw fit to treat it with contempt.
(13) We have established these regulations with reference to those who did not deem it advisable to ask for time to deliberate, which We hold is entirely superfluous, after the passage of this law, and should be refused. For as they are permitted by the authority of the present law to enter upon the estate and subsequently reject it, what ground remains for deliberation? But for the reason that certain men, either through unfounded fear or sinister design, think it necessary to petition Us to allow them to deliberate for the term of a year for the purpose of examining the affairs of the estate, and perfecting their insidious plots against it, and, by the employment of repeated supplications and weak arguments they often request further delay, in order
that no one may think that We absolutely despise the customs of antiquity, We allow them to ask time for deliberation, either from Us personally, or from Our judges, but no more than a year shall be granted by the Emperor, and no more than nine months by Our judges, so that they can obtain no further time through the indulgence of Imperial generosity. If any longer period should be granted, it shall be considered void; for We only concede one term for deliberation, and no more.
(14) When, however, anyone has fulfilled all these requirements, and drawn up the inventory (for it is necessary for the heir, while he is deliberating, to make it out with the greatest exactness), he shall not be permitted to enjoy the benefit of Our law after the prescribed time (that is, if he does not reject the estate, but decides to accept it), but he shall be liable to all the creditors for the full amount of their claims in accordance with the ancient laws. As, however, two ways are open, one of them derived from former enactments which allowed time for deliberation, the other more direct and recent adopted by Us, by which heirs accepting an estate are protected against loss, We give the heir his choice to make use of Our law and enjoy the benefit of the same, or, if he thinks that the estate ought to be rejected, and that he should have recourse to the aid of deliberation, he can do so; but if he does not reject the estate within the prescribed time he will be liable for the entire indebtedness due to the estate, and not merely to the amount of the property constituting it, but if it is found to be too small to pay all the claims, he shall, as heir, be bound for all the claims, and he can only blame himself for having chosen the ancient burden, instead of the modern benefit.
Hence, We wish that to the grant of time for deliberation and the Imperial Rescript promulgated with reference to the same, the following shall be added, namely: that all persons shall be notified that, if after having requested time for deliberation, they enter upon an estate, or perform any acts in the capacity of heir, or do not reject the estate, they will be liable for the full amount of the debts due to the same. When anyone rashly demands time for deliberation, but neglects to draw up an inventory, and either enters upon the estate or fails to reject it, he shall not only be liable to the creditors for the entire amount of their claims, but shall also be excluded from the benefit of the Falcidian Law. If, however, after having deliberated, he should reject the estate without having made out the inventory, he shall then be compelled by law to surrender the property of the estate to the creditors of the same, or transfer to those entitled to the succession the property which he has received, after having established the amount by his oath, which valuation must also be verified by the judge. Our former constitutions, promulgated with reference to these matters, have been repealed by a recent enactment which provides for all contingencies. In one of these constitutions is contained the confirmation of that of the Emperor Gordian, as this one has been found to be better as well as more comprehensive than the other; and as the three constitutions above mentioned have been consolidated into one, which
seems to apply to soldiers, as well as to all other persons, and because We do not wish the subjects of Our Empire to be annoyed by the enforcement of the former constitutions, We decree that soldiers who, on account of their ignorance, may not have fully complied with the provisions of the present law, shall only be liable for the amount of the assets of the estate.
We order that, in cases of this kind, this rule shall hereafter also apply to senators.1
Given at Constantinople, on the fifth of the Kalends of December, after the fifth Consulate of Lampadius and Orestes, 531.
1 The beneficium inventarii was the privilege accorded to an heir by a law of Justinian, to have a publicly and officially authenticated account of the condition of the estate drawn up, showing a complete list of its assets and liabilities; and by this means prevent him from becoming pecuniarily responsible for the debts of an estate, which was either absolutely insolvent, or encumbered to such an extent as to render its acceptance onerous and inadvisable. In this manner, the limited representation of the deceased by his successor was established, and the fatal effects of entering upon a damnosa hiereditas avoided. Everyone who had any interest whatever in the estate was notified to be present, a rule which applied to all the heirs of the deceased, legatees, creditors, and claimants of every description. It was necessary for the inventory to be drawn up under the direction of a certain member of tabularii, officials who exercised the functions of both accountants and notaries public, and had charge of the public registers. When neither the parties in interest nor the tabularii appeared, the signatures of three competent witnesses were sufficient to render the inventory legal.
This proceeding was of great benefit to the heir, inasmuch as it exempted him from any liability for the indebtedness of the estate over and above the value of the assets. He could pay the legatees and creditors whenever they, presented their claims. No action at law could be brought against him within the term prescribed for the preparation of the inventory. Under these circumstances, the time formerly allowed for deliberation as to whether the estate should be accepted or not could be dispensed with. If, however, the heir failed to make out the inventory, or decided to deliberate, he became personally responsible for the entire indebtedness, even if the estate was not solvent, and even forfeited his right to retain the fourth to which he would otherwise be entitled under the Falcidian Law. The cost of the inventory was payable out of the property of the estate.
Most of the nations of Continental Europe have adopted, with but slight alterations, the beneficium inventarii as authorized by Justinian.
In Spain, every heir has a right to have an inventory drawn up, even against the express prohibition of the testator, and can avail himself of the same to determine his acceptance or rejection of the estate. The proceeding may take place before a notary or a competent judge.
"Todo heredero puede aceptar la herencia a beneficio de inventario, aunque el testador se lo haya prohibido."
"Tambien podrd pedir la formation de inventario antes de aceeptar 6 repudiar la herencia para deliberar sobre este punto." (Codigo Civil de Espana, Art. 1010.)
The heir is entitled to a hundred days for its preparation, thirty of which are allowed from the date of the notification of creditors and legatees for its commencement, and seventy for its completion afterwards. He is required to state in court whether he will accept the estate, or not, thirty days after the inventory has been finished.
"El inventario se principiard dentro de los treinta dias siguientes A la citation de los acreedores y legatarios y concluird dentro de otros sesenta." (Ibid., Arts. 1017, 1019.) Priority is always given to creditors over legatees. (Ibid., Art. 1027.)
TITLE XXXI. CONCERNING THE REJECTION OR REFUSAL TO ACCEPT AN ESTATE.
1. The Emperor Antoninus to Mutatius.
If it is established that you have declined to accept the estate of your father, and it should be clearly proved that you did not reside in his house as an heir, but as a tenant or a custodian, or in any other legal capacity, my attorney will prevent you from being sued as the representative of your father.
Published on the Ides of July, during the Consulate of Messala and Sabinus, 215.
2. The Same Emperor to Severus.
If you declined to accept the estate of your father, you cannot legally be sued by other subsequent creditors who lent money to your
French law provides for the demand for an inventory before the clerk of the Court of the First Instance having jurisdiction, as well as its immediate registry. The heir has three months in which to complete the inventory, and forty days more to decide as to what course he will pursue with regard to the estate. Where conflicting claims exist, their priority must be decided by the court; when this is not the case, legatees as well as creditors are paid in the order in which they present themselves. The heir is only liable for gross negligence in the management of the estate.
"La, declaration d'un heritier qu'il entend ne prendre cette qualite que sous benefice d'inventalre, doit etre faite au greffe du tribunal de premiere instance 'dans I'arrondissement duquel la succession s'est ouverte; elle doit etre inscrite su le registre destine a recevoir les actes de renonciation."
"L'heritier a trois mois pour faire inventaire, a compter du jour de I'ouverture de la succession."
"II a de plus, pour deliberer sur son acceptation ou sur so, renonciation, un delai de quarante jours."
"II n'est tenu que des fautes graves dans I'administration dont il est charge."
"S'il y a des creanciens opposants, I'heritier beneficiaire ne pent payer que dans Vordre et de la maniere regies par le juge."
"S'il n'y a pas de creanciers opposants, il paye les creanciers et les legataires a mesure qu-'ils se presentent." (Code Civil de France, Arts. 793, 795, 804, 808.)
The law of Belgium practically coincides with that of France. (Code Civil, Arts. 793, 795, 797, 802.)
In Italy, when there are several heirs, and one of them desires the benefit of an inventory, but the others do not, the former alone can formulate the demand, and the privilege will be granted. The heir who has charge of the estate is, under all circumstances, obliged to account to the creditors and legatees for his administration of the same.
"Se tra piu eredi taluno vuole accettare I'eredita con benefizio del I'inventario ed altri senza, I'eredita deve essere accettata col detto benefizio."
"In questo caso basta ehe un solo faccia la dichiarazione."
"L'erede con benefizio d'inventario ha I'obbligo di amministrare i beni ereditari e di render conto della sua amministrazione ai creditori ed ai legatari." (Codice Civile del Regna d'ltalia, Arts. 958, 969.)
Both the Austrian and Portuguese Codes recognize the beneficium inventorii in enactments resembling those of other European countries. (Allgemeines Burgerliches Gesetzbuch, Arts. 802, 803, 804, Codigo Civil Portuguez, Arts. 2044-2063.)ED.
father under the same obligations, on the ground that you purchased property belonging to the estate from certain creditors of the same (provided you acted in good faith).
Ordered on the fifth of the Kalends of July, during the Consulate of Laetus, Consul for the second time, and Cerealis, 216.
3. The Emperors Diocletian and Maximum, and the Csesars, to Theodotianus.
Where a proper heir, by means of an exception based on an agreement, alleges that a will is unjust, and afterwards claims nothing from his father's estate, and does not appear in court on account of the donation, but for the purpose of compromise, as he could not reject the estate after having once acquired it, and as a compromise will be void by which nothing has been granted or retained, or any promise given, he cannot be deprived of the inheritance.
Without date, during the Consulate of the Csesars.
4. The Same, and the C&sars, to the Soldier Modestinus.
Just as a person more than twenty-five years of age, having rejected an estate to which he was entitled before having accepted it, cannot afterwards acquire it, so he who rejects an estate which he has once acquired performs an act void in law, but retains the right which he originally possessed; and because it has been decided that a confession in court shall be considered as equivalent to a decision, this does not apply to one who rejects an estate, but only to him who acknowledges that he owes a certain amount of money.
Ordered on the fifth of the Kalends of January, during the Consulate of the Emperors.
5. The Same Emperors and Csesars to Claudiana.
The rejection by wards of an estate to which they were entitled, without the authority of their guardian, does not prejudice their rights in any way.
Ordered on the second of the Kalends of January, during the Consulate of the above-mentioned Emperors.
6. The Emperor Justinian to John, Prsetorian Prefect.
When anyone rejects the estate of his father, and afterwards desires to accept it, he should unquestionably be permitted to do so, as long as the estate remains in the same condition, and he should be allowed to claim it even after a long time has elapsed.
We, desiring to correct this, do hereby order that if any of the property of the estate has been sold, it cannot be entered upon, which was the rule in ancient times. But where none of the property has been alienated, and the heir is of age, and the entire time for demanding restitution has expired, permission shall only be granted to him to do this within three years.
If, however, he is a minor, and has been appointed during the legal time, then, after the period of four years has elapsed (which term was
prescribed instead of the available year conceded to those who enjoyed the right of restitution), another term of three years shall be granted to the heir, within which he can accept the estate, if the property belonging to it remains in the same condition, and he can revoke his former rejection of the same.
After this period has passed, however, no right whatever to enter upon the estate of his father shall be granted him, unless, while he was still a minor, property forming part of it was sold; for then he shall not be denied the right to enter upon the estate, obtain complete restitution, recover the property, and satisfy his father's creditors.
Given at Constantinople, on the thirteenth of the Kalends of November, after the fifth Consulate of Lampadius and Orestes, 532.
TITLE XXXII.
IN WHAT WAY WILLS AKE OPENED, EXAMINED, AND COPIES OP
THEM MADE.
1. The Emperor Alexander to Procula.
A competent judge will order the will which you allege has been executed to be produced and publicly read.
Published on the second of the Kalends of April, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.
2. The Emperors Valerian and Gallienus to Alexander.
As you state that the will made by your father was given to you in order that it might be taken to his country, you can take it there and have it recorded in compliance with the laws and customs of the place; but if the witnesses should not be present, you must personally appear before the tribunal of the province, or present a petition to the Governor, and with his consent have honorable men summoned, and the will opened in their presence, and signed by them also.
Published on the fourth of the Kalends of January, during the Consulate of Maximus, Consul for the second time, and Glabrio, 237.
3. The Emperors Diocletian and Maximian to Aristotele.
With reference to the new will executed by your father, concerning which you took the oath of calumny, the Governor of the province will grant you the privilege of examining and copying said will, with the exception of that part which the deceased forbade to be opened, or which is alleged to disgrace someone, and also omitting the date and the designation of the Consulate.
Given on the sixth of the Kalends of May, during the Consulate of the Caesars.
4. The Emperors Gratian, Valentinian, and Theodosius to Hes-perius, Prsetorian Prefect.
Codicils, or any instruments in writing, no matter what may be their tenor, which have reference to the final disposition of property,
must be produced in public with the same formalities with which wills
are published.
Given at Milan, on the third of the Kalends of August, during the
Consulate of Ausonius and Olybrius, 379.
TITLE XXXIII.
CONCERNING THE ANNULMENT OF THE EDICT OP THE DIVINE HADRIAN, AND IN WHAT WAY AN APPOINTED HEIR MAY BE PLACED IN POSSESSION OF AN ESTATE.
1. The Emperors Severus and Antoninus to Lucillus.
When a controversy arises between an appointed heir and his substitute, he who was appointed in the first place shall be placed in possession of the estate.
Published on the twelfth of the Kalends of December, during the Consulate of Dexter and Priscus, 197.
2. The Emperor Alexander to Eutactus.
Although the son of the deceased may allege that he has been passed over, or the will is stated to be forged or inofficious, or have some other defect, or the deceased is said to have been a slave, it is, nevertheless, customary for the heir to be placed in possession.
Published on the sixth of the Kalends of November, during the Consulate of Maximus, Consul for the second time, and ^lianus, 224.
3. The Emperor Justinian to Julian, Prsetorian Prefect.
As the Edict of the Divine Hadrian, which was promulgated concerning the twentieth part of an estate, gave rise to many ambiguities, difficulties, and complicated statements, because it prevented the twentieth part of the inheritance from being exacted in Our Empire, and abolished all those provisions which had been promulgated with reference to the fulfillment and interpretation of the said edict, We hereby order that if anyone should be appointed heir to the whole or a portion of an estate, and should produce in the presence of a competent judge a will which had not been cancelled or annulled, and was not defective in any respect, but appears in its original form without alteration, and is fortified by the attestation of the legal number of witnesses, he shall be placed in possession of the property which belonged to the testator at the time of his death, and cannot lawfully be held by anyone else, and which he received in the presence of public officials.
If, however, any contestant should appear, then the claim to possession and its subsequent denial must be argued before a competent judge, and possession shall be acquired by him who can show the best legal right to the estate, whether it be the one who was first placed in possession, or he who, on the other hand, has present control of the property. No delay shall ensue in placing the proper person in possession; and, whether anyone obtained it too soon or too late, the
decision of the law must be adhered to, and the reason must be considered why one of them was granted possession, and the other disputed his right.
When anyone has been placed in possession of an estate after the expiration of a year, or even after a longer period (provided this was done in accordance with the terms of a legally executed will), no objection on the ground of prescription can be raised, unless a sufficient time has elapsed to afford complete security of ownership to the possessor, or to exclude every claim of him who was granted possession. For it is perfectly clear that if prescription can be pleaded on either side, not only the act of placing the party in possession, but also the principal cause of action will be disposed of.
Given at Constantinople, on the twelfth of the Kalends of April, after the fifth Consulship of Lampadius and Orestes, 531.
TITLE XXXIV.
WHERE ANYONE HAS FORBIDDEN OR COMPELLED ANOTHER TO MAKE A WILL.
1. The Emperor Alexander to Severa.
Where a testator did not make his will voluntarily, but was compelled to do so by him who was appointed his heir, or was forced by some other person to appoint heirs whom he did not wish to designate, a crime is added to the civil cause of action.
Ordered on the fourteenth of the Kalends of January, during the Consulate of Alexander, 223.
2. The Emperors Diocletian and Maximian to Nicogoras.
It is a well-known rule of law that those who are shown to have prevented the execution of a will by placing obstacles in the way of the testator should be deprived of the right of succession as being persons unworthy of it.
Published on the Kalends of January, under the Consulate of Diocletian, Consul for the second time, and Aristobulus, 285.
3. The Same Emperors and Csssars to Eutyches.
It is not a criminal act for a husband, by his representations, to induce his wife to make her will in his favor.
Given on the fifth of the Kalends of January, during the Consulate of the CaBsars.
TITLE XXXV.
CONCERNING THOSE WHO ARE DEPRIVED OF ESTATES AS
BEING UNWORTHY, AND ON THE SYLLANIAN DECREE OF
THE SENATE.
1. The Emperors Severus and Antoninus to Celer.
It is established that heirs who have neglected to avenge the death of a testator can be compelled to surrender all the property of the estate, for they who knowingly have failed to perform the duty demanded by affection cannot be considered to have been possessors in good faith before the controversy arose; and they shall be required to pay interest on the price paid for property belonging to the estate, which has been sold, or on money collected from debtors after the contest for the estate has been begun in court.
There is no doubt that this will also apply to the crops acquired with the land belonging to the estate, or which they have sold after they have been gathered. The payment of six per cent interest will be
sufficient.
Given on the fifteenth of the Kalends of April, during the Consulate
of Chilo and Libo, 205.
2. The Saane Emperors to Verus.
It is not necessary that any business which Polla, who had the free administration of her father's estate, has finished, should be made the subject of dispute for the reason that a minor has become her heir. But if you, in behalf of the minor, intend to allege that the will under which Polla has transacted the affairs of the estate is forged, you can bring suit, provided you bear in mind that if you should not gain the case, you must make good the share to which the minor is entitled under the will, and of which it will be necessary to deprive the said minor in conformity to the requirements of the law; and the Governor of the province will take cognizance of the false accusation of which you have been guilty, even though you are considered to have acted in the name of the minor when you attempted to have the acts performed by a co-heir set aside.
Published on the seventh of the Kalends of May, during the Consulate of Antoninus, Consul for the third time, and Geta, 209.
3. The Emperor Alexander to Antiochianus,
If the following point can be raised against the children of her whom you allege to be your cousin, namely, that the will of their father, who is said to have been killed by his slaves, has been opened and read before the slaves were put to the torture, according to the provisions of the Decree of the Senate, the estate will be confiscated to the Treasury. Therefore the case should be brought before My representative, because at that time the children were not minors.
Published on the second of the Nones of April, during the Consulate of Alexander, 223.
4. The Same to Philomusus.
The testamentary disposition of an estate cannot be revoked, even in direct terms, by a letter or a codicil. But even if the testatrix stated in her will that one of her heirs was not worthy of her bounty, it is not reasonable that his share should be transferred to another, but it ought to be confiscated to the Treasury. The grants of freedom bestowed by the said letter can, however, be demanded.
Published on the second of the Kalends of December, during the Consulate of Maximus, Consul for the second time, and Julianus, 224.
5. The Same to Tyrannus.
It is not necessary that unworthy heirs should be deprived of an estate under the pretext that they did not comply with the provisions of the last will of the deceased with reference to his burial.
Published on the seventh of the Ides of March, during the Consulate of Julianus, Consul for the second time, and Crispinus, 225.
6. The Same to Venustus and Clementimis.
It has been decided that heirs under the age of twenty-five years shall not be charged with the offence of having left unavenged the death of a testator. As, however, you allege that you have brought an accusation, and that some of the guilty parties have been punished, you should be under no apprehension of suffering the loss of your father's estate by confiscation to the Imperial Treasury, even though he who is said to have ordered the murder to be committed has appealed, for it is your filial duty to contest the appeal. If, however, you should be of age at the time, you will not necessarily be required to contest the appeal, as you can enter upon the estate.
Published on the fifteenth of the Kalends of July, during the Consulate of Alexander, Consul for the third time, and Dio.
7. The Same to Vitalia.
If, therefore, revenge for the death of the testator has not been demanded, for the reason that those who committed the murder could not be found, no objection can be urged against the heirs on this account, as they are not to blame.
Published on the Ides of March, during the Consulate of Lupus and Maximus, 233.
8. The Emperor Gordian to Tatia.
The position of a person who has attacked a will as being forged, conducted the case to a conclusion, and lost it, is different from that of one who, having begun an accusation of this kind, has abandoned it; for the Treasury will obtain the share of the former, but the latter, against whom a judgment was not rendered, does not forfeit the right to claim his share of the estate.
Published on the thirteenth of the Kalends of February, during the Consulate of Gordian and Aviola, 240.
9. The Emperors Diocletian and Maximian, and the Cxsars, to Mlianus.
As you allege that your brother was killed by poison, it is necessary for you to avenge his death to prevent your being deprived of your right to his estate; for although those who are heirs at law are not forbidden to enter on the estates of persons who have lost their lives through treachery, still, if they should not avenge their death, they cannot obtain their estates.
Published during the Consulate of Tyberianus and Dio, 291.
10. The Same Emperors and Cassars to Sylvana. It is not proper for a sister, after having avenged the death of her brother as required by law, to deprive his wife of an estate to which she has been legally appointed heir. In accordance with this, if you are confident of your innocence, and are certain that you can prove that your husband did not lose his life through any malicious act of yours, and that you were not, for some other reason, unworthy of the estate, you can rest secure against any false accusation.
Given on the twelfth of the Kalends of May, during the Consulate of the Caesars.
11. The Emperor Justinian to John, Prsetorian Prefect. The Syllanian Decree of the Senate is considered by Us not only to be meritorious, but also worthy of confirmation, together with the Rescript of the Divine Marcus published with reference to it, but since We find in it no mention of grants of freedom, and a question arose among the ancient authorities concerning grants of freedom left by the will of a murdered testator, i