I. tron by the of the of the jus connubii, his children were his sui here- CHAP. des; but failing these where were his relations? He had none jure sanguinis, therefore the Twelve Tables declared, Si Libertus intestato moritur, cui Succession suus heres nec escit, ast patronus, patronive liberi of the Pa escint, ex ea familia in eam familiam proximo 12 Tables. pecunia duitor. It appears, therefore, that if the Libertus died intestate, provided he left no children natural or adopted, and no uxor in manu, that then only his Patronus succeeded. This was considered unfair towards the patron, and the præ- Prætorian torian edict declared that the Libertus who had succession no children should leave half his property to his Patronus. patronus; and if he omitted the patron in his will, or left him less than half, the possessio contra tabulas should be granted him. And if he died intestate leaving an adopted son, or an uxor in manu, or a daughter-in-law, the patron was also entitled to half. Afterwards by the Lex Papia, Lex Papia. which conferred the jus trium et quatuor liberorum, if the Libertus left fewer than three children, whether he made his will or not, the patron was entitled to his pars virilis, which would amount to half, or a third, of the estate, according as there might be one or two children. If three children the patron had nothing; but this supposed the Libertus to die possessed of 100,000 sesterces; for if his property were less than this he might dispose of it by will as he pleased, and the patron got nothing, unless he died childless and intestate; in which case the patron or his son succeeded as heirat-law1. With regard to the property of the Liberta, inasmuch as she could have no sui heredes, Succession her heir-at-law was her patron; but the Lex Papia to the pro emancipated her from the tutelage of her patron if Patrona. she had four children, or had the jus quatuor liberorum conceded her by the emperor; and allowed her to dispose of her property by will, reserving a perty of the BOOK pars virilis, according to the number of children, to her patron1. III. Property berti La tini. The edict of the Prætor applied only to the patronus, therefore the Lex Papia provided that a patrona ingenua with two children (liberis honorata), or a patrona libertina with three, should enjoy the same rights as the edict had given to the patronus. With respect to the property of the Liberta, the Lex Papia gave no advantage to the Patrona, and so, if neither the Patrona nor the Liberta were capite diminute by the law of the Twelve Tables, the property of the latter belonged to the former excluding the children, and that whether the Patrona were liberis honorata or not. When a Liberta died testate the Patrona, who had no jus liberorum, had no claim on the estate, but if she had the jus liberorum, the Lex Papia conferred on her the same rights as the Patronus enjoyed3. As to the property of the Latini, Gaius states of the Li- that the lex Junia Norbana expressly reserved the rights of the Patronus to all the possessions of the Libertus Latinus on his death, as though they were the mere peculium of the slave; and if the Latinus had several patrons, they shared according to the amount of interest they had in the slave before his manumission, and not equally as in the case of the Libertus Romanus. Justinian's tion. Justinian, by a constitution which is now lost, reduced the above rules to a more concise form. He abolished all distinction between the patronus and the patrona, and decreed that if a freedman or woman died testate and worth less than 100 aurei, the patronus or patrona should take nothing. But if they died intestate leaving no children, then they should succeed to the whole, according to the old law of the Twelve Tables. In the case of those who died worth 100 aurei, 1 Ulp. Fr. XXIX. 2. 2 Id. XXIX. 5. 6. 4 A.D. 16. I. if they left children as heirs the patron was to CHAP. have nothing; if without children, the patronus and patrona took the whole; and if they made a will passing them over, they were then entitled to the bonorum possessio as far as the third part of the estate, free of all deductions; and this right of succession was extended to the collateral relatives of the patron as far as the fifth degree'. Justinian also abolished the distinctions between the Latini and the Dedititii. Succession Liberti. The succession of the patroni to the property Rule of of the Liberti-was governed by the same rules as to the prothat of the agnati; there was no right of repre- perty of sentation, but it was always in capita: a surviving patronus excluded the children of a deceased co-patronus3. the пит. If a patron had two or more children he might Right of assign his jura patronatus to which he pleased; assigning and he might do this by will or codicil, or as a tronus. gift inter vivos, or mortis causa. This was regulated by the Sctum Claudianum passed in the year Setum U.C. 798. If the child to whom the assignment Claudiahad been made were afterwards emancipated the assignment became void: also if a co-patronus assigned his share of the jus patronatus to one of his children, and died surviving the other patronus, the assignment became void, because the whole of the rights vested by law in the survivor", as in the case of joint tenants by the English law. And it must Shares of be remarked, that however unequal might be the co-patroni rights of the domini in the case of a servus com- emanci munis, if by manumission he received the Libertas pated slave. Romana, they then shared equally the jura patro natus 6. 1 I. III. 8. 3. 3 Gai. III. 60. 5 D. XXXVIII. 4. 12. 2 C. VII. 5. C. VI. 1. 12. 4 D. XXXVIII. 4. I. 6 Gai. III. 59. in an BOOK CHAPTER II. Of the Bonorum Possessio. BONORUM POSSESSIO is the right of claiming III. and retaining the inheritance of a person deceased Bonorum not strictly due by the Civil Law, but granted by Possessio. the Prætor from a principle of equity. We have already seen that where by the strict interpretation of the Jus civile persons were necessarily excluded from succeeding to property, to these the Prætor, in the exercise of his equitable authoDefinition. rity, dabat bonorum possessionem. The bonorum possessio is defined as Jus persequendi retinendique patrimonii, sive rei, quæ cujusque cum moritur fuit'. Gaius well explains the difference between those who thus acquired the property, and those who succeeded by law: "Quos autem Prætor vocat ad hereditatem hi heredes ipso quidem jure non fiunt, nam Prætor heredes facere non potest; per legem enim tantum, vel similem juris constitutionem heredes fiunt, veluti per senatusconsultum, et constitutionem principalem, sed eis siquidem Prætor det bonorum possessionem loco heredum constituuntur?." The bonorum possessio was either edictal or ordinary, and, secondly, decretal or extraordinary. In the former case the Ordinary cause was not heard judicially. In the latter, where an extraordinary grant was made to particular persons by a special law or constitution, there was no decision nisi causa cognita, without a judiOrdinary. cial investigation. The edictal, or ordinary, grant, which is now the subject of our inquiry, took place either when there was a testament, or when there ordinary. was no testament; and this was either contra tabu- CHAP. las, or secundum tabulas. Contra tabulas was, II. or secundum and adop 1. Where the Prætor gave the emancipated, or Contra taadopted children, their share if passed over by the bus father, and who had not been duly disinherited tabulas. for some just cause'. In that case they must 1. To the undertake to make the collatio bonorum, i.e. to emancipati bring in all their own property, which must be tivi. added to the hereditas before the division is made, so placing themselves in the position they would have occupied had they never left the family. The hotch-pot of the English law is exactly similar, and no doubt derived from it. The sui heredes, if præteriti, could resort to the querela. 2. The Prætor gave the patronus his share of 2. To the the estate of the libertus if passed over by him*. Patroni. quasi-Pa tabulas. 3. The father in the character of quasi-patro- 3. To the nus, if passed over by his emancipated sons, might troni. obtain the bonorum possessio contra tabulas. In the above cases the Prætor set aside a will good in form, but bad in substance; but in the bonorum Secundum possessio secundum tabulas he amended a will, which (with one exception) having originally been good in substance had subsequently become bad. The first of these was the testamentum prætorium, where the ceremony of mancipation per æs et libram had been omitted, still if septem signis testium signatum sit, the Prætor gave the bonorum possessio to the parties named in it, provided there was no one entitled ab intestato. Also if a testament were ruptum, nullum or irritum, the Prætor might, according to the circumstances of the case, grant the bonorum possessio secundum tabulas". The bonorum possessio ab intestato, or where Ab Intesthe possessor died intestate, and where, if the sui agnati and Gentiles failed, according to the strict 1 D. XXXVII. 4. I. and 3. 3 D. XXXVII. 6. 1. Ulp. Fr. XXVIII. 4. 4 D. XXXVIII. 2. 2. 6 Gai. II. 119. 3 See Blackstone. Testamentum prætorium. 7 Colq. 1397. |