De Heredvm Qvalitate Et Differentia. (2)

Heirs are either necessary successors or necessary self-successors or external successors.

§ 153. A necessary successor is a slave instituted heir with freedom annexed, so called because, willing or unwilling, without any alternative, on the death of the testator he immediately has his freedom and the succession.

For when a man’s affairs are embarrassed, it is common for his slave, either in the first place (institutio) or as a substitute in the second or any inferior place (substitutio), to be enfranchised and appointed heir, so that, if the creditors are not paid in full, the property may be sold rather as belonging to this heir than to the testator, the ignominy of insolvency thus attaching to the heir instead of to the testator; though, as Fufidius relates, Sabinus held that he ought to be exempted from ignominy, as it is not his own fault, but legal compulsion, that makes him insolvent; this, however, is not in our view the law.

To compensate this disadvantage he has the advantage that his acquisitions after the death of his patron, and whether before or after the sale, are kept apart for his own benefit, and although a portion only of the debts is satisfied by the sale, he is not liable to a second sale of his after-acquired property for the debts of the testator, unless he gain anything in his capacity as heir, as if he inherit the property of a Latinus Junianus [another freedman of the testator]; whereas other persons, who only pay a dividend, on subsequently acquiring any property, are liable to subsequent sales again and again.

§ 156. Sui et necessarii heredes are such as a son or daughter, a grandson or granddaughter by the son, and further lineal descendants, provided that they were under the power of the ancestor when he died. To make a grandson or granddaughter self-successor it is, however, not sufficient that they were in the power of the grandfather at the time of his death, but it is further requisite that their father in the life of the grandfather shall have ceased to be self-successor, whether by death or by any mode of liberation from parental power, as the grandson and granddaughter then succeed to the place of the father.

They are called sui heredes because they are family heirs, and even in the lifetime of the parent are deemed to a certain extent co-proprietors; wherefore in intestacy the first right of succession belongs to the children. They are called necessary, because they have no alternative, but, willing or unwilling, both in testacy and intestacy, they become heirs.

The praetor, however, permits them to abstain from the succession, and leave the estate of the ancestor to be sold as an insolvent one.

§ 159. The same rule governs a wife in the hand of a husband, for she is on the footing of a daughter, and a son’s wife in the hand of the son, for she is on the footing of a granddaughter.

§ 160. A similar power of abstention is granted by the praetor to a person held in mancipium when instituted heir with freedom annexed, although he is simply a necessary successor and not also a self-successor, mancipation being assimilated to servitude.

§ 161. Those who were not subject to the testator’s power are called strangers, or external heirs. Thus children not in our power, if instituted heirs, are deemed strangers; and for the same reason children instituted by their mother belong to this class, because women are not invested with power over their children. Slaves instituted heirs with freedom annexed, and subsequently manumitted, belong to the same class.

§ 162. External heirs have the right of deliberating whether they will or will not enter on an inheritance.

§ 163. But if either a person who has the power of abstention or a person who has the power of deliberation as to his acceptance of the inheritance, interferes with the property belonging to the inheritance, he has no longer the right of relinquishing the inheritance, unless he is a minor under twenty-five years of age; for minors, both when they take any other injudicious step, and when they incautiously accept a disadvantageous inheritance, obtain relief from the praetor. The late Emperor Hadrian even relieved a person who had attained his majority, when, after his acceptance of an inheritance, a great debt, unknown at the time of acceptance, had come to light.

External heirs are commonly given by the will a prescribed term for decision (cretio), that is, a definite delay for deliberation, within which time they must formally accept, and in default of formal acceptance are barred. Cretio is so called because the word cernere is equivalent to decernere, that is, to come to a determination and resolution.

§ 165. Accordingly, after the words, ‘Titius, be thou my heir,’ we ought to add, ‘and formally declare thy acceptance within a hundred days in which thou knowest of thy institution and hast power to declare whether thou accept; or in default of so declaring be thou disinherited.’

§ 166. And the heir thus appointed, if he wish to inherit, must within the term prescribed solemnly declare his decision in the following words: ‘Whereas Publius Mevius in his will has made me his heir, that inheritance I hereby accept and adjudge to myself.’ In default of such formal declaration, the elapsing of the period allowed shuts him out from the inheritance, and it is of no avail that he behave as heir, that is, deal with the estate of the deceased as if he were heir.

§ 167. In the absence of a prescribed term for deliberation in the case of testamentary succession, and in the case of a statutory right of succession on intestacy, a man takes the inheritance either by formal declaration, or by behaving as heir, or by informal declaration, and is not barred from accepting by any lapse of time; but it is usual for the praetor, at the demand of the creditors of the deceased, to appoint a period, on the expiration of which without his acceptance the creditors are permitted to put up the estate of the deceased for sale.

§ 168. But just as a person who is instituted heir subject to a prescribed term for decision does not actually become heir unless he makes a formal declaration of his acceptance, so the only way he is excluded from the inheritance is by his not thus declaring within the last day of the appointed term; and though, pending the term, he may have made up his mind to disclaim, yet if he change his mind before the time is expired and formally declare his acceptance, he can become heir.

§ 169. If no term is prescribed in the institution, or in the case of a statutory right of succession on intestacy, just as an informal declaration makes him heir, so the contrary declaration immediately bars him from the succession.

§ 170. Every prescribed term of deliberation has a certain limit, and a reasonable limit is held to be a hundred days, yet by the civil law a longer or shorter period is allowed to be fixed, though a longer period is sometimes shortened by the praetor.

§ 171. Although, however, the time of deliberation is always limited to certain days, yet one mode of limitation is called ordinary, the other determinate; the ordinary being that above indicated, namely, with the addition of the words ‘in which he knows and is able’; determinate that in which these words are omitted.

§ 172. These modes are very different in effect, for when the ordinary period is allowed, the only days computed are those on which he knows of his institution and is in a position to decide, but when a determinate period is allowed, notwithstanding the heir’s want of knowledge of his institution, the days begin to be counted continuously; and so notwithstanding his inability from any cause to declare, or any condition annexed to his institution, nevertheless the days begin to be reckoned. Accordingly, it is better and more convenient to employ the ordinary mode of limitation.

§ 173. The determinate period is called continuous, because the days are reckoned continuously. On account of the harshness of this condition the other is commonly employed, and hence is called ordinary.

The rules of institution and disinheritance were formal restrictions on the unlimited power of testamentary disposition, which was conferred by the terms of the Twelve Tables; § 102, comm. The general tendency and purpose of these restrictions are to protect children against the caprice of parents, and to be fully comprehended they should be viewed in connexion with the rules respecting testamentum inofficiosum, which were not simply formal but real restrictions of testamentary freedom. These limitations of testamentary power may be considered as consequences of the Roman conception of family duty. An English testator has unlimited power to dispose of his property, and natural feeling is supposed to be a sufficient guaranty that none of his children will be left without suitable provision. Of Roman testators Justinian says: Inst. 2, 18 pr. Plerumque parentes sine causa liberos suos vel exheredant vel omittunt. The grounds on account of which parents may disinherit children, and children parents, are stated by Justinian in his 115th Nov., where the law on the subject of disinherison is consolidated and amended. They had to be mentioned in the will, and it was open to the disinherited person to show that they were unfounded. It is to be noticed that foreign systems of law, following the Roman example, generally restrict the father’s power of disinherison. Cf Sohm, § 113. The principal impediments to or restrictions on testamentary freedom in the history of Roman law may be distinguished as follows:—

(1) We have seen, § 123, that a suus heres must either be instituted or disinherited, a rule which the praetor extended to an emancipated child, § 135. This secured him against being simply forgotten.

(2) If a child was disinherited without a cause, or received less than one fourth, either as heir or legatee, of what his share would have been by intestate descent (portio legitima), he could by impeaching the will as immoral or unnatural (querela inofficiosi testamenti) have it set aside on the fictitious presumption of the testator’s insanity. The presumption, at least, was so far fictitious that it was not allowed to be rebutted by any other proof of his sanity except proof of the adequacy of the motives for which the child was disinherited. The querela inofficiosi was a form of petitio hereditatis, that is, a real action, and fell under the jurisdiction of the centumviral court, 4 § 31. Cf. Pliny, Ep. 5, 1; 6, 33. The amount of the share which must be left to a child to save a will from avoidance for inofficiositas bears some analogy to a requirement of the lex Falcidia, for it is identical with the amount which that law secures to the child or any one else when instituted heir as against the claims of legatees. The querela inofficiosi could not only be brought by a child but also by certain other near relatives, namely, parents, and by brothers and sisters, but by the last only if a turpis persona was instituted. Children and other near relations, even though emancipated, might be entitled to this remedy. See Inst. 2, 18; Dig. 5. 2; Cod. 3, 28.

(3) Although a child (or any one else) were instituted heir, yet the institution might be made illusory by the exhaustion of the whole inheritance in legacies, leaving nothing to the heir but the burden of administration. To meet this, the lex Falcidia provided that when more than three fourths of an inheritance is absorbed in legacies, all the legacies should abate proportionably so as to leave the heir a clear fourth of the portion in which he was instituted (quarta Falcidia), § 227.

(4) The senatus consultum Pegasianum provided in the same way against the inheritance being similarly exhausted by fideicommissa, § 254.

We may add that an impubes adopted by adrogation, if disinherited or without cause emancipated, was entitled to one fourth of the inheritance of his adoptive father (quarta Antonini), 1 § 102; Inst. 1, 11, 3.

Primo aut secundo vel etiam ulteriore gradu, for an account of substitutio see § 174, &c.

Velut si Latinus, cf. § 195 and 3 § 58; and for an explanation of the idiom see note to this passage in Muirhead’s Gaius.

Communism or co-ownership appears to be an older institution than divided or individual ownership. Even after the rights of the paterfamilias had been enormously developed at the expense of the rest of the household, as may have been the case in prehistoric times, a vestige of the times when property vested rather in the family than in the chief was perhaps preserved in the rules respecting the suus heres. Suus heres appears equivalent to sibi heres, and implies that he who now enters on proprietary rights in the character of paterfamilias had already possessed proprietary rights over the same subject-matter in the character of filiusfamilias.

Less barbarous than self-successor (the term chosen to represent suus heres as expressing sibi heres) but too long for perpetual use, would have been the circumlocution, immediate lineal successor. Suus heres is a lineal descendant as opposed to the legitimus heres or nearest agnate, who is a collateral relation, on whom the inheritance devolves by the lex duodecim Tabularum in case there are no sui: and he is an immediate heir as opposed to an eventual heir. For instance, a grandson by an unemancipated son is in the grandfather’s power, and may eventually be his heir, but is not his suus heres during the life of the son.

After acquiring an inheritance the heir became personally liable to the testator’s creditors for the full amount of the testator’s debts. But to relieve sui et necessarii heredes from being thus compulsorily burdened, the beneficium abstinendi was given them, § 158. The praetor could not, indeed, unmake, any more than he could make, a heres, but by his control over procedure he could put a person who had a civil title in the same position as if he had none, while, on the other hand, he regarded persons, having no civil title to the inheritance, as if they were heredes.

Adquisitio hereditatis by an external or voluntary heres may probably have required at first in all cases a formal act (cretio); but acting the part of heres (pro herede gerere), however informally, came to be recognized as equivalent in legal effect to a formal declaration, unless an institution was expressly made ‘cum cretione.’ The object of instituting an heir ‘cum cretione’ was to oblige him to accept or abandon the inheritance within a prescribed term. For otherwise the law allowed him to postpone his decision indefinitely, § 167.

It was to get rid of the inconvenience caused by leaving the inheritance open for a long period, that the praetor at the request of creditors of the estate fixed a period, generally a hundred days (tempus deliberandi), after which he authorized the sale of the property, § 167. When it became customary for the praetor to prescribe this time for deliberation, the formularies of cretio had no intelligible policy and were regarded as irksome. After being dispensed with in certain cases by other emperors, they were totally abrogated by Arcadius and Theodosius, a. d. 407. Cod. 6, 30, 17 Cretionum scrupulosam sollennitatem hac lege penitus amputari decernimus. ‘Solemn declaration with its embarrassing formalities is hereby decreed to be absolutely abolished.’ (For allusions to cretio by Cicero see Roby, Roman Law, 1, p. 396 and App. Bk. III.) For the repudiation of an inheritance by a voluntary heir no solemn form was at any time in use, and perhaps such repudiation was not legally recognized in early law, though it was possible for the heres to assign his right by in jure cessio. Thus an inheritance could not be lost any more than it could be acquired by a mere expression of intention, and it has been suggested that the abeyance of inheritances on this account was a cause which gave rise to bonorum possessio. In the time of Gaius, however, a heres could on delatio reject an inheritance by any informal act expressive of his intention, and the acceptance or rejection of an inheritance once made was irrevocable. § 169.

To afford an escape from the danger of accepting inheritances more onerous than lucrative Justinian introduced the beneficium Inventarii, or privilege of making an inventory, reducing the liability of an heir who made the required inventory to the extent of the assets that came to his hands. The inventory must be commenced within thirty days from notice of the inheritance and completed in sixty other days. It must be executed in the presence of a notary (tabellarius) and the persons interested or three witnesses, Inst. 2, 19, 6; Cod. 6, 30, 22.

By English law the executor in every case is bound to make an inventory, and in no case is he answerable to the testator’s creditors beyond the assets that come to his hands, unless for a sufficient consideration he make his own estate chargeable by a written engagement, as provided by the Statute of Frauds.

When a right is extinguished by inactivity prolonged for a certain period, as in the case of a heres after delatio who has omitted to make cretio within the time prescribed, the period has two modes of measurement: either every day is counted, and then the period is called tempus continuum; or only available days, days on which activity is possible, are counted, and then the period is called tempus utile. When a general rule prescribes a term, not greater than a year, within which certain steps must be taken before a court or judicial authority, on pain of forfeiting certain rights, such a term must be measured as tempus utile. Such are the rules requiring certain suits to be instituted within a year from their nativity, that is, limiting a year for their period of prescription; and the rule requiring the demand of the possession of a heritage (agnitio bonorum possessionis), whether testate or intestate, to be made, if the claimant is an ascendant or descendant, within a year; if he is a stranger, within a hundred days. The demand was made in writing, addressed to a competent magistrate, and was followed by an immediate grant de plano in the form of a simple subscriptio, Do bonorum possessionem. Kuntze, 856. When the step required is rendered impossible, not by a permanent obstacle, such as infancy, lunacy, prodigality, or juristic personality, but by some transitory circumstance, the days on which the action is hindered are excluded from the computation of the term.

Such hindrance (1) may relate to the person entitled, and then will be his captivity, or his absence on public service, or his detention by weather or illness, coupled with inability to appoint a procurator:

(2) Or, in the case of the limitation of actions, it may relate to the person of the defendant: if, for instance, he is unknown, or concealed, or absent and undefended:

(3) Or it may consist in the absence of the praetor from the court. Such absence might be accidental, or it might arise from the regular intermission of the dies juridici, or days on which the praetor performed his judicial functions, § 279, comm. As in the time of Marcus Aurelius such days only amounted to 230 in a year (Suetonius, Octavianus, 32), this cause alone would make annus utilis equivalent to about 1½ ordinary years. The intermission of dies juridici was doubtless the principal cause of a claimant’s inability to perform an act in court on certain days; but in Roman law, as in modern times it was administered in Germany, when much of the procedure in an action had come to consist in delivery of writings at the office of a court, irrespectively of its session days and vacations, this cause lost its importance.

Knowledge (scientia) of the fact that he is entitled is not necessarily requisite on the part of the person entitled: in other words, his ignorance is not always sufficient to exclude a day from the number of dies utiles. The prescription of an action, when it is accomplished in annus utilis, begins to run from its nativity (actio nata), irrespectively of the plaintiff’s knowledge of his right to sue. Ignorance of a right of action is generally the effect of Negligence, and therefore undeserving of relief, and might be protracted for an indefinite period. On the contrary, ignorance is sometimes a condition that delays the commencement of tempus continuum: for instance, the 50 dies continui allowed to a person for stating the grounds on which he was entitled to be excused from accepting a guardianship only began to run when he had notice of his nomination, Inst. 1, 25, 16: which shows that scientia and ignorantia have no necessary relation to the distinction of dies utiles and dies continui.

In the demand (agnitio) of bonorum possessio, however, by the claimant of a testate or intestate succession, the edict expressly made the scientia as well as the potestas of the claimant a condition of dies utilis, Dig. 38, 15, 2. Indeed the aditio of an inheritance was not possible unless made with a knowledge of the fact of the delatio and of its nature, whether testacy or intestacy. Moreover the ignorance of his rights could not be ascribed to the negligence of the person entitled, nor was it likely to be indefinitely protracted, as it would be the interest of the person next entitled to give him notice of the delation. Knowledge will generally only affect the beginning of a term, and the person who is once made aware of the delation of an inheritance will usually continue aware: but it is possible that a period of error should supervene; for instance, that, after an agnate has notice that he is entitled by intestacy and after his term for acceptance has commenced to run, a forged will should be produced and obtain credit: in which case the dies utiles would not continue to run until the forgery of the will was ascertained. Savigny, § 189.

The testamentary clause allowing a term for cretio vulgaris in contrast to cretio continua, like the edict relating to bonorum possessio, made scientia as well as potestas a condition of tempus utile.

As we have seen no time was prescribed by law for the aditio of the civil inheritance, § 167: for the acquisition (agnitio) of the praetorian succession we have seen that for ascendants and descendants a year, for others a hundred days was prescribed, Inst. 3, 9, 9. Agnitio and Repudiatio could be made by a procurator or agent, Dig. 37, 1, 3, 7: not so Aditio, Dig. 29, 2, 90, and still less Cretio.

§ 174. [de svbstitvtionibvs.] Interdum duos pluresue gradus heredum facimus, hoc modo l. titivs heres esto cernitoqve in diebvs 〈centvm〉 proximis qvibvs scies poterisqve. qvodni ita creveris, exheres esto. tvm mevivs heres esto cernitoqve in diebvs centvm et reliqua. et deinceps in quantum uelimus substituere possumus.

Inst 2, 15 pr.

§ 175. Et licet nobis uel unum in unius locum substituere pluresue, et contra in plurium locum uel unum uel plures substituere

Inst. 2, 15, 1.

§ 176. Primo itaque gradu scriptus heres hereditatem cernendo fit heres et substitutus excluditur; non cernendo summouetur, etiamsi pro herede gerat, et in locum eius substitutus succedit. et deinceps si plures gradus sint, in singulis simili ratione idem contingit.

§ 177. Sed si cretio sine exheredatione sit data, id est in haec uerba si non creveris tvm p. mevivs heres esto, illud diuersum inuenitur, quod si prior omissa cretione pro herede gerat, substitutum in partem admittit et fiunt ambo aequis partibus heredes. quodsi neque cernat neque pro herede gerat, tum sane in uniuersum summouetur, et substitutus in totam hereditatem succedit.

§ 178. Sed Sabino quidem placuit, quamdiu cernere et eo modo heres fieri possit prior, etiamsi pro herede gesserit, non tamen admitti substitutum; cum uero cretio finita sit, tum pro herede gerente admitti substitutum. aliis uero placuit etiam superante cretione posse eum pro herede gerendo in partem substitutum admittere et amplius ad cretionem reuerti non posse.

§ 179. Liberis nostris inpuberibus quos in potestate habemus non solum ita ut supra diximus substituere possumus, id est ut si heredes non extiterint, alius nobis heres sit; sed eo amplius ut, etiamsi heredes nobis extiterint et adhuc inpuberes mortui fuerint, sit iis aliquis heres; uelut hoc modo titivs filivs mevs mihi heres esto. si filivs mevs mihi 〈heres non erit sive heres〉 erit et privs moriatvr qvam in svam tvtelam venerit, tvnc seivs heres esto.

Inst. 2, 16 pr.

§ 180. Quo casu siquidem non extiterit heres filius, substitutus patri fit heres; si uero heres extiterit filius et ante pubertatem decesserit, ipsi filio fit heres substitutus. quam ob rem duo quodammodo sunt testamenta, aliud patris, aliud filii, tamquam si ipse filius sibi heredem instituisset; aut certe unum est testamentum duarum hereditatum.

Inst. l. c.

§ 181. Ceterum ne post obitum parentis periculo insidiarum subiectus uideatur pupillus, in usu est uulgarem quidem substitutionem palam facere, id est eo loco quo pupillum heredem instituimus; 〈nam〉 uulgaris substitutio ita uocat ad hereditatem substitutum, si omnino pupillus heres non extiterit; quod accidit cum uiuo parente moritur, quo casu nullum substituti maleficium suspicari possumus, cum scilicet uiuo testatore omnia quae in testamento scripta sint ignorentur. illam autem substitutionem per quam, etiamsi heres extiterit pupillus et intra pubertatem decesserit, substitutum uocamus, separatim in inferioribus tabulis scribimus, easque tabulas proprio lino propriaque cera consignamus, et in prioribus tabulis cauemus, ne inferiores tabulae uiuo filio et adhuc inpubere aperiantur. sed longe tutius est utrumque genus substitutionis [separatim] in inferioribus tabulis consignari, quod si ita [consignatae uel] separatae fuerint substitutiones, ut diximus, ex priore potest intellegi in altera [alter] quoque idem esse substitutus.

Inst. 2, 16, 3.

§ 182. Non solum autem heredibus institutis inpuberibus liberis ita substituere possumus, ut si ante pubertatem mortui fuerint, sit is heres quem nos uoluerimus, sed etiam exheredatis. itaque eo casu si quid pupillo ex hereditatibus legatisue aut donationibus propinquorum adquisitum fuerit, id omne ad substitutum pertinet.

Inst. 2, 16, 4.

§ 183. Quaecumque diximus de substitutione inpuberum liberorum uel heredum institutorum uelexheredatorum, eadem etiam de postumis intellegemus.

Inst l. c.

§ 184. Extraneo uero heredi instituto ita substituere non possumus, ut si heres extiterit et intra aliquod tempus decesserit, alius ei heres sit; sed hoc solum nobis permissum est, ut eum per fideicommissum obligemus, ut hereditatem nostram totam uel 〈pro〉 parte restituat; quod ius quale sit, suo loco trademus.

Inst. 2, 16, 9.

§ 174. Sometimes two or more degrees of heirs are instituted, as follows: ‘Lucius Titius, be thou my heir, and declare solemnly within a hundred days after you know and are able: or, in default of so declaring, be disinherited. Thereupon, be thou, Mevius, my heir, and solemnly declare within a hundred days,’ &c.; and in this way we can make as many substitutions as we like.

§ 175. We may substitute in place of one either one or several, and, conversely, in the place of several we may substitute either several or one.

§ 176. Accordingly, if the person instituted in the first degree accepts the inheritance, he is heir, and the substitutes are excluded: if he fail to declare with due formality, he is barred in spite of acts of heirship, and his place is taken by the substitute; and if there are several degrees, in every one a similar result occurs.

If the formula prescribing a term of deliberation contains no clause of disherison, but merely consists of these words: ‘If thou fail to declare, be Publius Mevius my heir’ [cretio imperfecta], the result is herein different, that, if the person first instituted, though he omit the solemn declaration, act as heir, the substitute is only admitted to a portion, and both take a moiety: if he neither formally declare nor act as heir, he is entirely excluded, and the substitute succeeds to the whole inheritance.

§ 178. It was the opinion of Sabinus that, as long as a term for formally declaring and thereby becoming heir subsists, a person in a higher grade does not let in the substitute, even if he informally act as heir, and that only after the expiration of the term is the substitute admitted instead of the person instituted, who has been acting as heir. But the other school held that, even pending the allotted term, informal acts of heirship let in the substitute and bar the prior heir from reverting to his right of formal declaration.

To children below the age of puberty in the power of the testator, not only can such a substitute as we have described be appointed, that is, one who shall take the inheritance on their failure to inherit, but also one who, if after inheriting they die before attaining the age of puberty, shall be their heir; which may be done in the following terms: ‘Be my son Titius my heir, and if my son does not become my heir, or after becoming my heir die before becoming his own guardian, [that is before attaining the age of puberty], then be Seius the heir.’

§ 180. In which case, if the son fail to inherit, the substitute is the heir of the testator, but if the son die after inheriting and without attaining the age of puberty, the substitute is heir to the son. Thus there are two wills, so to speak, the father’s and the son’s. just as if the son himself had instituted an heir; or at any rate there is one will dealing with two inheritances.

§ 181. However, to save the ward from the danger of foul play after the death of the parent, it is common for the ordinary substitution to be made openly, that is, in the clause wherein the ward is instituted, for as the ordinary substitution only calls a man to the succession in case of the ward altogether failing to inherit, and this can only occur by his death in the lifetime of his parent, the substitute in this case is open to no suspicion of crime, because while the testator is alive the contents of the will are a secret. But the substitution, wherein a man is named heir after the succession and death of the ward before reaching the age of puberty, is written separately on later tablets, tied with their own cords and sealed with their own wax, and it is prohibited in the prior tablets that the will should be opened in the lifetime of the son before he attains the age of puberty. Indeed it is far safer that both kinds of substitution should be sealed up separately in two subsequent tablets, for if the ordinary substitution is contained in the first tablets it is easy to conjecture that the same substitute is appointed in the second.

§ 182. Not only when we appoint children under the age of puberty our heirs can we make such a substitution that if they die before puberty the substitute is their heir, but we can do it even when we disinherit them, so that in case the ward should acquire anything either by heirship, legacies, or by gifts of his relatives, all will belong to the substitute.

§ 183. What has been said of substitution to children below the age of puberty, whether appointed heirs or disinherited, is true of substitution to afterborn children.

To a stranger instituted heir we cannot appoint a substitute who, if the stranger inherit and die within a certain time, is to be his heir; but we have only power to bind him by a trust to convey the inheritance to another, in part or in whole, a right which shall be explamed in the proper place. [2 § 277.]

It will be observed that this rule deviates from the principle laid down in § 166. A constitution of Marcus Aurelius changing the law further in the same direction, and mentioned by Ulpian (Sed postea divus Marcus constituit, ut et pro herede gerendo ex asse fiat heres, 22, 34. ‘Subsequently Marcus Aurelius enacted that acts of heirship would make him [the person instituted, in the case of cretio imperfecta] exclusive heir’), was clearly not enacted when this paragraph was written by Gaius, and furnishes an indication of the date at which this book of his Institutions was published. Marcus Aurelius was sole emperor a. d. 169-176.

Cicero frequently mentions a great case in which the question arose whether a vulgaris substitutio may be implied from a pupillaris substitutio. The centumviral court decided that the intention rather than the words of the testator should prevail, and that the heir appointed to succeed the son in case the son died before puberty should be deemed appointed to succeed the testator in case no son was born: Malim mihi L. Crassi unam pro M’. Curio dictionem quam castellanos triumphos duos, Brutus 73, ‘I would rather have made the single speech of Lucius Crassus for Manius Curius than have had two triumphs for the capture of fortresses.’ The other passages are worth referring to De Orat. 1, 39, 57; 2, 6, 32; Brutus, 39, 52; Pro Caecina, 18, 53; Topica, 10, 44. Marcus Aurelius enacted that in every case pupillaris substitutio should be implied in vulgaris substituto and vice versa, unless the contrary intention was expressed, Dig. 28, 6, 4.

That is to say, we cannot by the ordinary rules of law limit an inheritance so as to make it subject to a resolutive condition or determinable at a future time. All we can do is to direct the heir by way of trust (fidei commissum) to reconvey the inheritance to some one at a future time or on the happening of some future event. Hereditas itself, strictly speaking, is indelible (semel heres semper heres). Regula est juris civilis qua constitutum est hereditatem adimi non posse, Dig. 28, 2, 13, 1. Cf. §§ 246-257, comm.