Bonorvm Possessio Secvndvm Tabvlas. (4)

Wills are not altogether inoperative either when originally informal or when though at first made in proper form they were subsequently rescinded or revoked; for if the seals of seven witnesses are attached, the testamentary heir is entitled to demand possession in accordance with the will, if the testator was a citizen of Rome and sui juris at the time of his death; but if the cause of nullity was, say, the testator’s loss of citizenship, or loss of liberty, or adoption and he dies subject to his adoptive father’s power, the heir instituted in the will is barred from demanding possession in accordance with the will.

Persons granted possession in accordance with a will either originally not made in due form or originally made in due form and subsequently revoked or rescinded, have, if only they can maintain their right to the inheritance, effective possession of it (bonorum possessio cum re); but if they can be deprived of the property by an adverse claimant, the grant of possession to them is ineffective (bonorum possessio sine re).

§ 149. For an heir instituted according to jus civile either by an earlier or later will, or a statutory heir by intestacy, can evict the mere bonorum possessor according to the will from the inheritance; but in default of such claim on the part of a civil heir, such possessor according to the will can retain the inheritance, and cannot be deprived of it by cognates, these having no civil title.

Sometimes, however, an heir with a civil title is postponed to an irregularly appointed heir; for instance, if the irregularity was only the absence of mancipation or nuncupatory publication, since if the agnates of the deceased claim the inheritance, they may be repelled by the plea of fraud, according to the constitution of the Emperor Antoninus.

Possession according to the will is not defeated by the lex Julia, under which law a condition of caducity or devolution to the fiscus is the absence of every kind of heir, whether civil or praetorian.

A validly executed will may be invalidated by a contrary expression of will: but a will is not, it is clear, invalidated by the mere intention of revocation. And consequently, in spite of the testator’s cutting the strings by which it is tied, it nevertheless, at civil law, continues valid: and his erasure or burning of the dispositions does not render them invalid, though it makes them difficult of proof.

What then is the result? If a claimant demand bonorum possessio by intestacy. and a testamentary heir under such circumstances demand the civil inheritance under the will, the latter is repelled by the plea of fraud: and if no one should demand bonorum possessio by title of intestacy, the testamentary heir is superseded by the fiscus as unworthy of the succession in order to carry the testator’s intention of excluding him into effect: and this was enacted by a rescript of the Emperor (Marcus Aurelius) Antoninus.

The validity of a testament implies, strictly speaking, the continuance of a testator’s intention, and therefore of his capacity of intention (testamenti factio), from its first declaration to the moment of his death. Accordingly an intermediate capitis diminutio avoided the will invalid (irritum) at civil law, § 146. The praetor, however, only looked at the first and last moments, and, if at these periods the testator had testamenti factio, sustained his intentions by granting possession according to the will, although he had undergone capitis diminutio minima in the intervening period.

So at civil law a will was revoked (ruptum) by after-birth (agnatio) of a self-successor, § 138; but if he died before the testator, the praetor sustained the will by granting possession according to the will to the heir instituted in it. Dig. 28, 3, 12 pr. Postumus praeteritus, vivo testatore natus, decessit: licet juris scrupulositate nimiaque subtilitate testamentum ruptum videatur, attamen si signatum fuerit testamentum, bonorum possessionem secundum tabulas accipere heres scriptus potest, remque obtinebit, ut et divus Hadrianus et Imperator noster rescripserunt. In order that possession in accordance with the will, granted when a will had been avoided (irritum) by intervening loss of capacity, might be efficacious (cum re), i. e. not defeasible by the claimant entitled at civil law by intestacy, it was necessary that the testator on reacquiring capacity should confirm his will by a codicil or other writing (codicillis aut aliis litteris), Dig. 37, 11, 11, 2.

There was no ipso jure, or necessarius, bonorum possessor, corresponding to the heres necessarius, § 152, with whom delatio and adquisitio hereditatis were coincident: all bonorum possessores corresponded to the other class of heres, the heres extraneus or voluntarius, with whom adquisitio was distinct from delatio hereditatis, and required a voluntary act (aditio). That is to say, the person called (vocatus) by the praetorian edict to the succession forfeited his right to succeed unless he made his claim (agnitio, petitio, admissio bonorum possessionis) within a certain period, for ascendants and descendants a year, for others 100 dies utiles from the date of the vocatio (delatio). On the claim under the edict being made, the grant (datio) of bonorum possessio followed as a matter of course without any judicial investigation (causae cognitio). It was a mere formality, a certificate of the magistrate, the praetor or praeses provinciae, that the agnitio had been made within the allotted period, before the expiration of the term allowed for deliberation. If any real controversy arose, it was decided by one of two actions, hereditatis petitio, or the Interdict Quorum bonorum. If the claimant relied on his title at civil law, he sued by hereditatis petitio; if he relied on the title given him by the praetorian edict, he sued by the Interdict Quorum bonorum. See 4 § 144. If defeated in either of these proceedings, he gained nothing by having obtained the formal grant of praetorian succession—he had only bonorum possessio sine re.

A praetorian title was, as a general rule, sine re, if a civil title was opposed to it, but the constitution of the Antonine emperor, probably Marcus Aurelius, mentioned here and in § 120, made an important inroad on this principle.

Originally when a heritage was vacant from the failure of intestate successors, Ulpian 28, 7, or from the neglect of an heir to enter upon it, § 52, any stranger might take possession and acquire by usucapio, but this right was rendered ineffectual by Hadrian’s Senatusconsultum, § 57. The lex Julia de Maritandis ordinibus, which is the statute here referred to, was passed a. d. 4; for an account of its purport and of the meaning of the term caduca see § 190 and § 206, comm. Besides its rights to caduca under this statute the public treasury or that of the Emperor could claim all inheritances left without an heir (bona vacantia). The state did not become necessary successor (ipso jure) but had the delatio (ad populum deferri jubentur), i.e. had the right of deliberation and acceptance or repudiation, Inst. 3, 11, 1. As universal successor the state could recover from the unentitled occupant by Hereditatis petitio, Dig. 5, 3, 20, 7, and could transfer its rights to a purchaser, as if the transfer were made under the Sc. Trebellianum, l. c. 54 pr. (cf. § 253).

The treasury was bound to pay all codicillary legacies and trusts: and succeeded to all the obligations active and passive, in other words, to all the personal rights and personal duties, of the heritageleaver: but like other successors in later times, under the law of Justinian, might, by taking advantage of the Benefice of inventory, confine its liability to the extent of the assets, §§ 158-162, comm. In the event of the repudiation of the succession by the Fiscus, the goods were sold for the benefit of creditors. Vangerow, § 564.

Gaius probably here means, though the MS is defective, that although a grant of bonorum possessio might be rendered ineffective (sine re) in consequence of the superior claims of a person with a civil title by whom the possessor could be evicted, the fiscus had no title to an inheritance under the lex Julia, if the deceased, though without a civil successor, had left a bonorum possessor. (Cf. note on § 150 in Muirhead’s Gaius.)

The Rupture (ruptio) of a will was produced by two circumstances: (1) Agnatio postumi, the subsequent birth of a selfsuccessor, or the coming into existence of a quasi postumus, § 139: and (2) Revocation, §§ 138-146, comm. On the principle, Nihil tam naturale est quam eo genere quidque dissolvere quo colligatum est (Dig. 50, 17, 35), the most formal and originally the only mode of revoking a will would be the execution of a subsequent will. Another mode of Revocation sanctioned by Justinian depended on two conditions: a declaration attested by three witnesses or made in the form of a record or protocol deposited in the archives of a court, and the expiration of ten years from the date of the execution of the will, Cod. 6, 23, 27.

The mere cancellation or obliteration of a will, with the intention of revoking it, was an informal Revocation and left the will valid at civil law: the will, however, was not allowed to hold good against this evidence of the testator’s change of intention. The rescript of Marcus Aurelius a. d. 166 to this effect, to which Gaius alludes § 151 a, is preserved in the Digest, 28, 4, 3.

Justinian ordained that a will should be perfectly revoked and completely avoided by the cutting of the cords, or removal of the seals. or other intentional destruction of the outward signs of its due solemnization, Cod. 6, 23, 30. English law, as laid down in 1 Vict. c. 26 § 20 and interpreted in the celebrated case of Lord St. Leonards, L. R. 1 P. D. 154, seems to be in conformity with Roman law on the subject of unintentional erasure or destruction of a will.

Ereption for indignitas, an institution which survived in the legislation of Justinian, Dig. 34, 9, Cod. 6, 35, must be distinguished from the lapse of a testamentary disposition under the lex Julia (caducum), §§ 185-190, comm. In the latter case there was want of capacitas, as opposed to want of testamenti factio passiva, on the part of honoratus. In the case of the indignus there was not even incapacitas but only liability to deprivation. Some grounds of Ereption were common to the heir and legatee, others peculiar to the heir, others peculiar to the legatee. The forfeiture of the inheritance or legacy was sometimes in favour of the Fiscus, sometimes in favour of other persons, usually of those who would have taken but for the disposition in favour of indignus.

Instances of grounds for which either heir or legatee forfeited their interest to the Fiscus were: undertaking a secret unlawful trust, coercion of the testator in respect of his will, killing the testator or neglect to avenge his death, wrongful impeachment of his will for inofficiositas, &c.

Grounds for which their shares were forfeited to other persons than the Fiscus were: refusal of the office of guardian when the prospect of the discharge of this duty was the motive of the testator’s bounty, refusal to undertake the education of an infant child of the testator, neglect of the testator’s burial, &c.

Grounds on which the heir alone forfeited the whole or part of his inheritance to the Fiscus were: concealment of a portion of the hereditaments in order to defraud a legatee (whereupon the heir forfeited the fourth which he was entitled to retain from such legacy by the lex Falcidia), the discovery that though putative son he was not a genuine son of the testator, the deliberate cancellation of his name by the testator, the imperfect execution of a subsequent will in which he was excluded from the heritage, a codicillary declaration of his unworthiness to inherit, &c.

Grounds on which an heir forfeited his portion to persons other than the Fiscus were: neglect on the part of a mother to demand a guardian for her infant child, a second marriage by a mother who herself is guardian before she has caused another guardian to be substituted, neglect of a lunatic testator, neglect to ransom the testator, criminal prosecution of testator, &c.

Grounds exclusively affecting a legatee and that in favour of the heir are theft from the heritage and concealment of the testator’s will.