De Heredibvs Institvendis. (2)

§ 185. Not only freemen but slaves, whether belonging to the testator or to another person, may be instituted heirs.

§ 186. A slave belonging to the testator must be simultaneously instituted and enfranchised in the following manner: ‘Stichus, my slave, be free and be my heir;’ or, ‘Be my heir and be free.’

If he is not enfranchised at the same time that he is instituted, no subsequent manumission by his owner enables him to take the succession, because the institution is originally void, and even if aliened he cannot formally declare his acceptance by the order of the new master.

When a slave is simultaneously instituted and enfranchised, if he continue in the same condition, the will converts him into a freeman and a necessary heir: if the testator himself manumits him in his lifetime, he is able to use his own discretion about acceptance: if he is aliened he must have the order of his new master to accept, and then his master through him becomes heir, the alienated slave himself becoming neither heir nor free.

When another person’s slave is instituted heir, if he continue in the same position, he must have the order of his master to accept the succession; if aliened by him in the lifetime of the testator, or after his death before formal acceptance, he must have the order of the new master to be able to accept: if manumitted before acceptance, he is able to follow his own judgement as to accepting.

When a slave of another person is instituted heir with the ordinary term of cretio, the term only begins to run from the time when the slave has notice of his appointment, and is not prevented in any way from informing the master so that he may at his order make formal acceptance.

This rule was abolished by Justinian, who enacted that the enfranchisement of the testator’s slave, though unexpressed, should always be implied in his institution as heir. Cod. 6, 27, 5; Inst. 1, 6, 2.

Justinian explains why the slave lost his liberty: Destitisse enim a libertatis datione videtur dominus qui eum alienavit, Inst. 2, 14, 1. ‘A revocation of the bequest of liberty is inferred from the fact of his alienation.’ If we ask why the implied intention that suffices to revoke the enfranchisement does not suffice to revoke the institution, the answer is, that a bequest can be revoked by any act clearly implying an intention to revoke, whereas an institution requires a more solemn revocation, by execution of a later will, or some other means, §§ 147-151, comm.

What was the motive of instituting as heir the slave of another person? Such a disposition could not be dictated by kindness to the slave, for he would probably gain nothing by his institution; but was a device adopted for two purposes, (1) for facilitating the conversion of a succession into money, and (2) for securing an institution against failure.

(1) By such a disposition the testator gave the proprietor of the slave, whose benefit was intended, the option of either becoming actual heir, or of doing, what he could not otherwise readily do, i. e. of receiving the net value, or a large portion of the net value, of the succession, without incurring the expense of the annexed sacred rites (sacra) and the burden of administration, by practically selling the succession for the highest price he could get to any one who was willing to incur these expenses and troubles as a matter of speculation. To effect this, he had only to sell the slave at a price enhanced by his character of institutus. The slave thereupon, making aditio of the inheritance in obedience to an order of the purchaser, vested the inheritance in the purchaser. If the former proprietor was reluctant to part with his slave, he had only to bargain for his reconveyance by a fiducia or condition annexed to the sale or mancipatio. Reddendus (or in the time of Gaius it might have been a case of mancipatio cum fiducia) est servus ea conditione ut, cum jussu ejus adierit, rursum retradatur. By this branch of speculation the instituted slave might pass through many hands before the succession vested, Dig. 37, 11, 2, 9.

(2) A second object gained by the institution of another person’s slave was the transmission of an inheritance to the heirs of such person. If the heir instituted died in the lifetime of the testator, the institution failed, and the failure could not be prevented by the substitution (secondary institution) of the heir of the person instituted, for such heir would be a persona incerta, § 242. The difficulty was met by instituting a slave, who on the death of his master, the virtual heir, would become the slave of the master’s heir, and acquire for him the succession of the testator. To guard against the contingency of the death of the slave in the lifetime of the testator, several slaves might be instituted by way of substitution. Ihering, § 56. An inheritance delated to a slave is said to be ambulatory: Ambulat cum dominio bonorum possessio, l. c. (In a similar way we might say: ambulat cum capite noxa, 4 § 77.)

Si ipse servus scierit se heredem institutum. The knowledge of the slave was material for the purpose of acquisition, since the slave is regarded as if he were heir, though acquiring not for himself but for his master. Cf. Inst. 3, 17, 1 and 2.

A slave instituted heir might be the property of several masters, who when he entered upon the inheritance would become co-heredes of it according to their respective shares in him. Inst. 2, 14, 3. In the same title of the Institutes, Justinian mentions that an heir might either be appointed to take the whole of an inheritance or to share it with other co-heirs in any proportions. We may briefly state the technical terms and rules of interpretation by which different shares were allotted. An inheritance was commonly regarded as a pound (as) consisting of twelve ounces (unciae). The different fractions were thus denominated: uncia, a twelfth of an as, or an ounce; sextans, a sixth of an as, or two ounces; quadrans, a fourth of an as, or three ounces; triens, a third of an as, or four ounces; quincunx, five ounces; semis, half an as, or six ounces; septunx, seven ounces; bes (bis triens), two thirds of an as, or eight ounces; dodrans (deme quadrantem), an as minus a fourth, or nine ounces; dextans (deme sextantem), an as minus a sixth, or ten ounces; deunx (deme unciam), an as minus an ounce, or eleven ounces; as, twelve ounces.

An heir instituted in twelve ounces (ex asse) took the whole: but it was a rule that no one could be partly testate and partly intestate, and therefore if an heir were instituted in a part (ex parte) and no other co-heir instituted, that part represented a pound, and the heir took the whole. So if the shares allotted to several co-heirs amounted to more than twelve ounces, then, if no other heir was appointed with an unexpressed share, the as was deemed to consist of more than twelve ounces, and each co-heir took a ratable part of the inheritance. If one heir were instituted in a part, say ex besse, and a co-heir were instituted for whom no part was expressed, then the co-heir would take the residue of the as, that is, would be deemed to be instituted ex triente. But if the parts expressed for certain heirs exhausted or exceeded the as and another heir or heirs were named without express shares, then the whole inheritance was supposed to consist of two asses (dupondius) and the expressed shares were reduced to so many ounces out of twenty-four, the heir or heirs with unexpressed parts taking the residue. Similarly, if necessary, the inheritance was supposed to consist of thirty-six ounces.

If the institution of one co-heir lapsed, the shares of the remaining co-heirs were ratably augmented (accretio), just as, if originally less than twelve ounces had been distributed, the expressed shares of each would be ratably augmented so as to exhaust the inheritance.

This rule, however, was modified by the leges caducariae, passed chiefly to discourage celibacy, namely the lex Julia de maritandis ordinibus, a. d. 4, and the lex Papia Poppaea, on marriage and succession, a. d. 9, in which the provisions of the lex Julia were incorporated, for which reason both laws are sometimes referred to as lex Julia et Papia.

Caducum is a devise or bequest, valid at Civil law, but vacated by some particular law or statute, such as a legacy to a celibate or Latinus Junianus, in case the former fails within a hundred days to comply with the law [the Lex Papia], or the latter to acquire full citizenship; or in case of the institution of a co-heir, or bequest to a legatee who dies or becomes an alien before the will is opened, Ulpian, 17, 1. [By the Civil law, unconditional devises and bequests vested (dies cedit) at the death of the testator (though still defeasible by the failure of the will); by the lex Papia Poppaea not before the opening of the will, thus making the chance of a lapse greater, but Justinian re-established the rule of Civil law.] Cf. Roby, Roman Law, Bk. III, ch. x, B.

The leges caducariae, which fixed the conditions of caducity, were aimed against the coelebs and the orbus. Cf. §§ 111, 144, 286. Coelebs is defined to be an unmarried man between the age of twenty and sixty, or an unmarried woman between the age of twenty and fifty. Orbus is a man between fifty and sixty without children, natural or adoptive.

An unmarried person could take nothing as heres extraneus or legatee; an orbus could only take half of the devise or bequest intended for him. The inheritance or legacy thus lapsed was allotted by the leges caducariae in the first place, in the case of a legacy, to conjoint legatees of the same specific thing if the legatees had children; in the second place to children or parents of the deceased who were instituted heirs in his will; in the third place to heirs and other legatees having children; and in last remainder to the treasury (aerarium), § 206. Caracalla, a. d. 212-217, made them lapse immediately to the fiscus; Hodie ex constitutione imperatoris Antonini omnia caduca fisco vindicantur, sed servato jure antiquo liberis et parentibus, Ulpian, 17, 2. But from the rules of caducity ascendants and descendants of the testator to the third degree were excepted both by the lex Papia and by the constitution of Caracalla. Constantine, a. d. 320, abolished the pains and penalties of celibacy and childlessness, Cod. 8, 57, and Justinian formally and finally abrogated the leges caducariae.

By substitutions, or alternative institutions, testators were able to modify the course of accrual by Civil law (jus accrescendi), and, what perhaps was still more interesting, to escape from the operation of the laws of caducity, by which sometimes a whole inheritance might fall into the clutches of the treasury.

§ 191. Post haec uideamus de legatis. quae pars iuris extra propositam quidem materiam uidetur; nam loquimur de his iuris figuris quibus per uniuersitatem res nobis adquiruntur; sed cum omni modo de testamentis deque heredibus qui testamento instituuntur locuti sumus, non sine causa sequenti loco poterit haec iuris materia tractari.

Inst. 2, 20, pr.