The Institutes of Justinian Part 9

9 The inst.i.tution of the heir may be either absolute or conditional, but no heir can be inst.i.tuted from, or up to, some definite date, as, for instance, in the following form--'be so and so my heir after five years from my decease,' or 'after the calends of such a month,' or 'up to and until such calends'; for a time limitation in a will is considered a superfluity, and an heir inst.i.tuted subject to such a time limitation is treated as heir absolutely.

10 If the inst.i.tution of an heir, a legacy, a fiduciary bequest, or a testamentary manumission is made to depend on an impossible condition, the condition is deemed unwritten, and the disposition absolute.

11 If an inst.i.tution is made to depend on two or more conditions, conjunctively expressed,--as, for instance, 'if this and that shall be done'--all the conditions must be satisfied: if they are expressed in the alternative, or disjunctively--as 'if this or that shall be done'--it is enough if one of them alone is satisfied.

12 A testator may inst.i.tute as his heir a person whom he has never seen, for instance, nephews who have been born abroad and are unknown to him: for want of this knowledge does not invalidate the inst.i.tution.

t.i.tLE XV. OF ORDINARY SUBSt.i.tUTION

A testator may inst.i.tute his heirs, if he pleases, in two or more degrees, as, for instance, in the following form: 'If A shall not be my heir, then let B be my heir'; and in this way he can make as many subst.i.tutions as he likes, naming in the last place one of his own slaves as necessary heir, in default of all others taking.

1 Several may be subst.i.tuted in place of one, or one in place of several, or to each heir may be subst.i.tuted a new and distinct person, or, finally, the inst.i.tuted heirs may be subst.i.tuted reciprocally in place of one another.

2 If heirs who are inst.i.tuted in equal shares are reciprocally subst.i.tuted to one another, and the shares which they are to have in the subst.i.tution are not specified, it is presumed (as was settled by a rescript of the Emperor Pius) that the testator intended them to take the same shares in the subst.i.tution as they took directly under the will.

3 If a third person is subst.i.tuted to one heir who himself is subst.i.tuted to his coheir, the Emperors Severus and Antoninus decided by rescript that this third person is ent.i.tled to the shares of both without distinction.

4 If a testator inst.i.tutes another man's slave, supposing him to be an independent person, and subst.i.tutes Maevius in his place to meet the case of his not taking the inheritance, then, if the slave accepts by the order of his master, Maevius is ent.i.tled to a half. For, when applied to a person whom the testator knows to be in the power of another, the words 'if he shall not be my heir' are taken to mean 'if he shall neither be heir himself nor cause another to be heir'; but when applied to a person whom the testator supposes to be independent, they mean 'if he shall not acquire the inheritance either for himself, or for that person to whose power he shall subsequently become subject,' and this was decided by Tiberius Caesar in the case of his slave Parthenius.

t.i.tLE XVI. OF PUPILLARY SUBSt.i.tUTION

To children below the age of p.u.b.erty and in the power of the testator, not only can such a subst.i.tute as we have described be appointed, that is, one who shall take on their failing to inherit, but also one who shall be their heir if, after inheriting, they die within the age of p.u.b.erty; and this may be done in the following terms, 'Be my son t.i.tius my heir; and if he does not become my heir, or, after becoming my heir, die before becoming his own master (that is, before reaching p.u.b.erty), then be Seius my heir.' In which case, if the son fails to inherit, the subst.i.tute is the heir of the testator; but if the son, after inheriting, dies within the age of p.u.b.erty, he is the heir of the son.

For it is a rule of customary law, that when our children are too young to make wills for themselves, their parents may make them for them.

1 The reason of this rule has induced us to a.s.sert in our Code a const.i.tution, providing that if a testator has children, grandchildren, or greatgrandchildren who are lunatics or idiots, he may, after the a.n.a.logy of pupillary subst.i.tution, subst.i.tute certain definite persons to them, whatever their s.e.x or the nearness of their relations.h.i.+p to him, and even though they have reached the age of p.u.b.erty; provided always that on their recovering their faculties such subst.i.tution shall at once become void, exactly as pupillary subst.i.tution proper ceases to have any operation after the pupil has reached p.u.b.erty.

2 Thus, in pupillary subst.i.tution effected in the form described, there are, so to speak, two wills, the father's and the son's, just as if the son had personally inst.i.tuted an heir to himself; or rather, there is one will dealing with two distinct matters, that is, with two distinct inheritances.

3 If a testator be apprehensive that, after his own death, his son, while still a pupil, may be exposed to the danger of foul play, because another person is openly subst.i.tuted to him, he ought to make the ordinary subst.i.tution openly, and in the earlier part of the testament, and write the other subst.i.tution, wherein a man is named heir on the succession and death of the pupil, separately on the lower part of the will; and this lower part he should tie with a separate cord and fasten with a separate seal, and direct in the earlier part of the will that it shall not be opened in the lifetime of the son before he attains the age of p.u.b.erty. Of course a subst.i.tution to a son under the age of p.u.b.erty is none the less valid because it is a integral part of the very will in which the testator has inst.i.tuted him his heir, though such an open subst.i.tution may expose the pupil to the danger of foul play.

4 Not only when we leave our inheritance to children under the age of p.u.b.erty can we make such a subst.i.tution, that if they accept the inheritance, and then die under that age, the subst.i.tute is their heir, but we can do it when we disinherit them, so that whatever the pupil acquires by way of inheritance, legacy or gift from his relatives or friends, will pa.s.s to the subst.i.tute. What has been said of subst.i.tution to children below the age of p.u.b.erty, whether inst.i.tuted or disinherited, is true also of subst.i.tution to afterborn children.

5 In no case, however, may a man make a will for his children unless he makes one also for himself; for the will of the pupil is but a complementary part of the father's own testament; accordingly, if the latter is void, the former will be void also.

6 Subst.i.tution may be made either to each child separately, or only to such one of them as shall last die under the age of p.u.b.erty. The first is the proper plan, if the testator's intention is that none of them shall die intestate: the second, if he wishes that, as among them, the order of succession prescribed by the Twelve Tables shall be strictly preserved.

7 The person subst.i.tuted in the place of a child under the age of p.u.b.erty may be either named individually--for instance, t.i.tius--or generally prescribed, as by the words 'whoever shall be my heir'; in which latter case, on the child dying under the age of p.u.b.erty, those are called to the inheritance by the subst.i.tution who have been inst.i.tuted heirs and have accepted, their shares in the subst.i.tution being proportionate to the shares in which they succeeded the father.

8 This kind of subst.i.tution may be made to males up to the age of fourteen, and to females up to that of twelve years; when this age is once pa.s.sed, the subst.i.tution becomes void.

9 To a stranger, or a child above the age of p.u.b.erty whom a man has inst.i.tuted heir, he cannot appoint a subst.i.tute to succeed him if he take and die within a certain time: he has only the power to bind him by a trust to convey the inheritance to another either wholly or in part; the law relating to which subject will be explained in its proper place.

t.i.tLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID

A duly executed testament remains valid until either revoked or rescinded.

1 A will is revoked when, though the civil condition of the testator remains unaltered, the legal force of the will itself is destroyed, as happens when, after making his will, a man adopts as his son either an independent person, in which case the adoption is effected by imperial decree, or a person already in power, when it is done through the agency of the praetor according to our const.i.tution. In both these cases the will is revoked, precisely as it would be by the subsequent birth of a family heir.

2 Again, a subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or not; the only question is whether one might conceivably have done so. Accordingly, whether the person inst.i.tuted declines to be heir, or dies in the lifetime of the testator, or after his death but before accepting the inheritance, or is excluded by failure of the condition under which he was inst.i.tuted--in all the cases the testator dies intestate; for the earlier will is revoked by the later one, and the later one is inoperative, as no heir takes under it.

3 If, after duly making one will, a man executes a second one which is equally valid, the Emperors Severus and Antoninus decided by rescript that the first is revoked by the second, even though the heir inst.i.tuted in the second is inst.i.tuted to certain things only. The terms of this enactment we have ordered to be inserted here, because it contains another provision. 'The Emperors Severus and Antoninus to Cocceius Campa.n.u.s. A second will, although the heir named therein be inst.i.tuted to certain things only, is just as valid as if no mention of the things had been made: but the heir is bound to content himself with the things given him, or with such further portion of the inheritance as will make up the fourth part to which he is ent.i.tled under the lex Falcidia, and (subject thereto) to transfer the inheritance to the persons inst.i.tuted in the earlier will: for the words inserted in the later will undoubtedly contain the expression of a wish that the earlier one shall remain valid.' This accordingly is a mode in which a testament may be revoked.

4 There is another event by which a will duly executed may be invalidated, namely, the testator's undergoing a loss of status: how this may happen was explained in the preceding Book.

5 In this case the will may be said to be rescinded, though both those that are revoked, and those that are not duly executed, may be said to become or be rescinded; and similarly too those which are duly executed but subsequently rescinded by loss of status may be said to be revoked.

However, as it is convenient that different grounds of invalidity should have different names to distinguish them, we say that some wills are unduly executed from the commencement, while others which are duly executed are either revoked or rescinded.

6 Wills, however, which, though duly executed, are subsequently rescinded by the testator's undergoing loss of status are not altogether inoperative: for if the seals of seven witnesses are attached, the inst.i.tuted heir is ent.i.tled to demand possession in accordance with the will, if only the testator were a citizen of Rome and independent at the time of his decease; but if the cause of the rescission was the testator's subsequent loss of citizens.h.i.+p or of freedom, or his adoption, and he dies an alien, or slave, or subject to his adoptive father's power, the inst.i.tuted heir is barred from demanding possession in accordance with the will.

7 The mere desire of a testator that a will which he has executed shall no longer have any validity is not, by itself, sufficient to avoid it; so that, even if he begins to make a later will, which he does not complete because he either dies first, or changes his mind, the first will remains good; it being provided in an address of the Emperor Pertinax to the Senate that one testament which is duly executed is not revoked by a later one which is not duly and completely executed; for an incomplete will is undoubtedly null.

8 In the same address the Emperor declared that he would accept no inheritance to which he was made heir on account of a suit between the testator and some third person, nor would he uphold a will in which he was inst.i.tuted in order to screen some legal defect in its execution, or accept an inheritance to which he was inst.i.tuted merely by word of mouth, or take any testamentary benefit under a doc.u.ment defective in point of law. And there are numerous rescripts of the Emperors Severus and Antoninus to the same purpose: 'for though,' they say, 'the laws do not bind us, yet we live in obedience to them.'

t.i.tLE XVIII. OF AN UNDUTEOUS WILL

Inasmuch as the disinherison or omission by parents of their children has generally no good reason, those children who complain that they have been wrongfully disinherited or pa.s.sed over have been allowed to bring an action impeaching the will as unduteous, under the pretext that the testator was of unsound mind at the time of its execution. This does not mean that he was really insane, but that the will, though legally executed, bears no mark of that affection to which a child is ent.i.tled from a parent: for if a testator is really insane, his will is void.

1 Parents may impeach the wills of their children as unduteous, as well as children those of their parents. Brothers and sisters of the testator are by imperial const.i.tutions preferred to infamous persons who are inst.i.tuted to their exclusion, so that it is in these cases only that they can bring this action. Persons related to the testator in a further degree than as brothers or sisters can in no case bring the action, or at any rate succeed in it when brought.

2 Children fully adopted, in accordance with the distinction drawn in our const.i.tution, can bring this action as well as natural children, but neither can do so unless there is no other mode in which they can obtain the property of the deceased: for those who can obtain the inheritance wholly or in part by any other t.i.tle are barred from attacking a will as unduteous. Afterborn children too can employ this remedy, if they can by no other means recover the inheritance.

3 That they may bring the action must be understood to mean, that they may bring it only if absolutely nothing has been left them by the testator in his will: a restriction introduced by our const.i.tution out of respect for a father's natural rights. If, however, a part of the inheritance, however small, or even a single thing is left them, the will cannot be impeached, but the heir must, if necessary, make up what is given them to a fourth of what they would have taken had the testator died intestate, even though the will does not direct that this fourth is to be made up by the a.s.sessment of an honest and reliable man.

4 If a guardian accepts, under his own father's will, a legacy on behalf of the pupil under his charge, the father having left nothing to him personally, he is in no way debarred from impeaching his father's will as unduteous on his own account.

5 On the other hand, if he impeaches the will of his pupil's father on the pupil's behalf, because nothing has been left to the latter, and is defeated in the action, he does not lose a legacy given in the same will to himself personally.

6 Accordingly, that a person may be barred from the action impeaching the will, it is requisite that he should have a fourth of what he would have taken on intestacy, either as heir, legatee direct or fiduciary, donee in contemplation of death, by gift from the testator in his lifetime (though gift of this latter kind bars the action only if made under any of the circ.u.mstances mentioned in our const.i.tution) or in any of the other modes stated in the imperial legislation.

7 In what we have said of the fourth we must be understood to mean that whether there be one person only, or more than one, who can impeach the will as unduteous, onefourth of the whole inheritance may be given them, to be divided among them all proportionately, that is to say, to each person a fourth of what he would have had if the testator had died intestate.

t.i.tLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS