USUSFRUCTUS - RIGHT OF TESTAMENT, ETC.

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occasions; particularly on the Kalends of January, called STRENÆ; at the feasts of Saturn, and at public entertainments, APOPHORETA; to guests, XENIA; on birth-days, at marriages, &c. Plin. & Martial. passim.

Those things which were acquired by any of the above-mentioned methods, or by inheritance, by adoption (arrogatione), or by law, as a legacy, &c. were said to be IN DOMINIO QUIRITARIO, i. e. justo et legitimo: Other things were said to be IN BONIS, and the proprietors of them were called BONITARII, whose right was not so good as that of the DOMINI QUIRITARII, qui optimo jure possidere dicebantur, who were secure against lawsuits. But Justinian abolished these distinctions.

When a person had the use and enjoyment of a thing, but not the power or property of alienating, it was called USUSFRUCTUS, either in one word; thus Usumfructum omnium bonorum suorum Casenniæ legat, ut frueretur unà cum filio, Cic. Cæcin. 4.; or in two; as, Usus enim ejus et fructus fundi testamento viri fuerat Cæsenniæ, Ib. 7. and the person FRUCTUARIUS, or USUFRUCTUARIUS.

6. THE RIGHT OF TESTAMENT AND INHERITANCE.

NONE but Roman citizens (sui juris) could make a will, or be witnesses to a testament, or inherit any thing by testament, Cic. pro Arch. 5. Dom. 32. [The wills of minors were valid.]

Anciently testaments used to be made at the Comitia Curiata, which were in that case properly called Calata, Gell. xv. 27.

The testament of a soldier just about to engage, was said to be made IN PROCINCTU, when in the camp, while he was girding himself, or preparing for battle, in presence of his fellow-soldiers, without writing, he named his heir (nuncupavit), Cic. de Nat. D. ii. 3. de Orat. i. 53. So, in procinetu carmina facta, written by Ovid at Tomi, where he was in continual danger of an attack from the Getæ, Pont. i. 8. 10. †

But the usual method of making a will, after the laws of the twelve tables were enacted, was PER ES ET LIBRAM, or per familiæ emptionem, as it was called; wherein before five witnesses, a libripens and an antestatus, the testator, by an imaginary sale, disposed of his

"Usus was the occupation, for which an individual rendered a stated due, fructus. In this sense Lucretius says: Vitaque mancipio nulli datur, omnibus usu, (for usui.) Life belongs to the common stock of nature; she withdraws it from the possessor at her pleasure; it never becomes his property. Mancipium was the old word for property; usus, according to its most ancient meaning, was the act of possessing; possessio, the object possest: hence usu capere.”. Nieb. ii. p. 137.

By the laws of Rome, a son, during the life of his father, could not dispose of his effects by will. Soldiers were excepted, but this exception only related to what they got by their military services (peculium castrense.)

"Solis præterea testandi militibus jus

Vivo patre datur: nam quæ sunt parta labore

Militiæ, placuit non esse in corpore census,

Omne tenet cujus regimen pater."-Juv. Sat. xvi. 51.

Their peculium castrense was not looked upon as a part of their private fortune (in corpore census), over the whole of which the father had a power, so that they could not dispose of it by will during his lifetime.

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FORMS OF MAKING A WILL.

family and fortunes to one who was called FAMILIÆ EMPTOR, who was not the heir, as some have thought, Suet. Ner. 4. but only admitted for the sake of form (dicis causá), that the testator might seem to have alienated his effects in his lifetime. This act was called FAMILIE MANCIPATIO; which being finished in due form, the testator, holding the testament in his hand, said HÆC, UTI IN HIS TABULIS CERISVE SCRIPTA SUNT, ITA DO, ITA LEGO, ITA TESTOR,

ITAQUE VOS, QUIRITES, TESTIMONIUM PRæbetote. Upon which, as was usual in like cases, he gently touched the tip of the ears of the witnesses (auriculâ tactâ antestabatur, quòd in imâ aure memoriæ locus erat, Plin. xi. 45.); this act was called NUNCUPATIO TESTAMENTI, Plin. Ep. viii. 18. Hence nuncupare hæredem, for nominare, scribere, or facere, Suet. & Plin. passim. But sometimes this word signifies, to name one's heir vivá voce, without writing;_as Horace just before his death is said to have named Augustus. the above-mentioned formalities were not always observed, especially in later times. It was reckoned sufficient if one subscribed his will, or even named his heir viva voce, before seven witnesses. Something similar to this seems to have prevailed anciently, Cic. Verr. i. 45. whence an edict about that matter is called by Cicero, VETUS et TRANSLATICIUM, as being usual, Ib. 44.

For

Sometimes the testator wrote his will wholly with his own hand, in which case it was called holographum. Sometimes it was written by a friend or by others, Plin. Epist. vi. 26. Thus the testament of Augustus was partly written by himself, and partly by two of his freedmen, Suet. Aug. 102. Lawyers were usually employed in writing or drawing up wills, Cic. de Orat. ii. 6. Suet. Ner. 32. But it was ordained under Claudius or Nero, that the writer of another's testament (called by lawyers testamentarius) should not mark down any legacy for himself, Suet. Ner. 17. When a testament was written by another, the testator wrote below, that he had dictated and read it over (SE ID DICTASSE ET RECOGNOVISSE). Testaments were usually written on tables covered over with wax, because in them a person could most easily erase what he wished to alter, Quinctilian. x. 3. 31. Hence CERE is put for tabula ceratæ or tabulæ testamenti, Juvenal. i. 63. Martial. iv. 70. PRIMA CERA, for prima pars tabulæ, the first part of the will, Horat. Sat. ii. 5. 53. and CERA EXTREMA, or ima, for the last part, Cic. Verr. i. 36. Suet. Cæs. 83. But testaments were called TABULE, although written on paper or parchment, Ulpian.

Testaments were always subscribed by the testator, and usually by the witnesses, and sealed with their seals or rings (signis eorum obsignabantur), Cic. pro Cluent. 13. 14. and also with the seals of others, Cic. Att. vii. 2. Suet. Tib. c. ult. Plin. Ep. ix. 1. They were likewise tied with a thread. Hence nec mea subjectâ convicta est gemma tabella Mendacem linis imposuisse notam, Nor is my ring, i. e. nor am I convicted of having affixed a false mark or seal, to the thread on a forged deed or will, Ovid. Pont. ii. 9.69. It was ordained that the thread should be thrice drawn through holes, and sealed, Suet. Ner. 17.

The testator might unseal (resignare) his will, if he wished to alter or revise it (mutare vel recognoscere). Sometimes he cancelled it

RIGHTS OF INHERITING, DISINHEriting, etc.

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altogether; sometimes he only erased (inducebat v. delebat) one or two

names.

Testaments, like all other civil deeds, were always written in Latin. A legacy expressed in Greek was not valid, Ulpian. Fragm. xxv. 9. There used to be several copies of the same testament. Thus Tiberius made two copies of his will, the one written by himself, and the other by one of his freedmen, Suet. Tib. c. ult.

Testaments were deposited, either privately in the hands of a friend, or in a temple with the keeper of it (apud Ædituum). Thus Julius Cæsar is said to have intrusted his testament to the eldest of the Vestal Virgins, Suet. Jul. 83.

In the first part of a will, the heir or heirs were written thus: TITIUS MIHI HÆRES ESTO, sit v. erit; or thus, TITIUM HÆREDEM ESSE JUBEO, vel volo; also, hæredem facio, scribo, instituo. If there were several heirs, their different portions were marked. If a person had no children of his own, he assumed others, not only to inherit his fortune, but also to bear his name (nomen suum ferre), as Julius Cæsar did Augustus (in familiam nomenque adoptavit, adscivit, Suet. Assumpsit, Plin.)

If the heir or heirs who were first appointed (instituti) did not choose to accept, (hæreditatem adire, v. cernere nollent,) or died under the age of puberty, others were substituted in their room, called HÆREDES SECUNDI; secundo loco v. gradu scripti v. substituti, Cic. pro Cluent. 11. Horat. Sat. ii. 5. 45. Suet. Jul. 83.

A corporate city (respublica) could neither inherit an estate, nor receive a legacy, Plin. Ep. v. 7.; but this was afterwards changed.

A man might disinherit (exhæredare) his own children, one or all of them, and appoint what other persons he pleased to be his heirs; thus, TITIUS FILIUS MEUS EXHERES ESTO, Plin. Ep. v. 1. Hence Juvenal. Sat. x. 236. Codice savo hæredes vetat esse suos. Sometimes the cause (ELOGIUM, i. e. causa exhæredationis) was added, Cic. pro Cluent. 48. Quinctilian. vii. 4. 20. decl. 2. A testament of this kind was called INOFFICIOSUM, and when the children raised an action for rescinding it, it was said to be done per querelam INOFFICIOSI. Sometimes a man left his fortune in trust (fidei committebat) to a friend on certain conditions, particularly that he should give it up (ut restitueret v. redderet) to some person or persons. Whatever was left in this manner, whether the whole estate, or any one thing, as a farm, &c., was called FIDEICOMMISSUM. a trust; and a person to whom it was thus left, was called HÆRES FIDUCIARIUS, who might either be a citizen or a foreigner, 1. 8. § 4. D. de acceptil.

A testament of this kind was expressed in the form of request or entreaty (verbis precativis); thus, ROGO, PETO, VOLO, MANDO, FIDEI TUE COMMITTO, Ter. And. ii. 5.; and not by way of command (verbis imperativis), as all testaments were, and might be written in any language.

In the last part of the will (in tabulis secundis), tutors were appointed for one's children, and legacies (legata) left to legatees (legatariis) all in direct and commanding words: Thus, TUTOR ESTO, vel TUTORES SUNTO: TUTOREM V. -ES DO, Cic. Ep. xiii. 61. Plin. Ep. ii. 1. And to their protection the testator recommended his children, Ovid. Trist. iii. Eleg. 14.

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WAYS IN WHICH LEGACIES WERE LEFT.

Legacies were left in four different ways, which lawyers have distinguished by the following names.-1. Per VINDICATIONEM ; thus, Do, LEGO; also, CAPITO, SUMITO, V. HABETO, to which Virgil alludes, En. v. 533. This form was so called from the mode of claiming property, Cic. pro Muren. 12.-2. Per DAMNATIONEM; thus, HERES MEUS, DAMNAS ESTO DARE, &C. Let my heir be bound, &c. Quinctil. viii. 9. 9.; and so in the plural, DAMNAS SUNTO. By this form the testator was said damnare hæredem, to bind his heir. Hence damnare aliquem votis, Virgil. Æn. v. 80. Civitas damnata voti, bound to perform, Liv. v. 25. But it was otherwise expressed thus, HÆRES MEUS DATO, FACITO; HÆREDEM MEUM DARE JUBEO.-3. SINENDI modo; thus, HERES MEUS SINITO, vel DAMNAS ESTO SINERE LUCIUM TITIUM SUMERE ILLAM REM, V. SIBI HABERE. 4. Per PRÆCEPTIONEM; thus, L. TITIUS ILLAM REM PRÆCIPITO, E MEDIO, vel e MEDIA HÆREDITATE SUMITO, SIBIQUE HABETO, vel Præcipiat, &c. when any thing was left to any person, which he was to get before the inheritance was divided, or when any thing particular was left to any one of the co-heirs besides his own share, to which Virgil alludes, En. ix. 271. Hence PRÆCIPERE, to receive in preference to others; and PRÆCEPTIO, a certain legacy to be paid out of the first part of the fortune of the deceased, Plin. Ep. v. 7. as certain creditors had a privilege to be preferred to others, (PROTOPRAXIA, i. e. privilegium quo cæteris creditoribus præponantur,) Id. x. 109, 110.

When additions were made to a will, they were called CODICILLI. They were expressed in the form of a letter addressed to the heirs, sometimes also to trustees (ad fideicommissarios). It behoved them however to be confirmed by the testament, Plin. Ep. ii. 16.*

After the death of the testator, his will was opened, Horat. Ep. i. 7. in presence of the witnesses who had sealed it (coram signatoribus), or a majority of them, Suet. Tib. 23. And if they were absent or dead, a copy of the will was taken in presence of other respectable persons, and the authentic testament was laid up in the public archives, that if the copy were lost another might be taken from it (esset unde peti posset). Horace ridicules a miser who ordered his heirs to inscribe on his tomb the sum he left, Sat. ii. 3. 84.

It was esteemed honourable to be named in the testament of a friend or relation, and considered as a mark of disrespect to be passed over, Cic. pro Domo, 19. 32. pro Sext. 52. Phil. ii. 16. Suet. Aug. 66. It was usually required by the testament, that the heir should

*"A person might leave several codicils; whereas no pagan, that is, no person who was not a soldier, could leave more testaments than one. It was essential to the character of a testament that it should institute an heir; but a codicil was in all cases incompetent for that purpose, and could only bequeath legacies and trusts: it therefore could not disinherit one heir and substitute another. As the law stood in the age of Caius, a legacy bequeathed by a codicil, and not ratified by a testament, was null and void. The notion of Dr Adam, that a codicil must succeed a testament, and that it must nevertheless be confirmed by a testament, cannot very easily be comprehended; but the statement of Pliny, when properly understood, is easily reconciled to the doctrine of the civilians. The individual whom he mentions had first made a codicil, and afterwards a testament, and had neglected to confirm in the one a legacy which had been bequeathed in the other; a direct bequest could not be made effectually in this manner; but Pliny expresses his determination to take no advantage of the legal informality."— Encyc. Britann. art. Civil Law.

RIGHT OF TUTELAGE OR WARDSHIP.

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enter upon the inheritance within a certain time, in 60 or 100 days at most, Cic. ad Att. xiii. 46. de Orat. i. 22. Plin. Ep. x. 79.* This act was called HÆREDITATIS CRETIO, (hæres cùm constituit se hæredem esse, dicitur CERNERE, Varr. L. L. vi. 5.) and was performed before witnesses in these words: CUM ME MÆVIUS HÆREDEM INSTITUERIT, EAM HÆREDITATEM CERNO ADEOQUE. After saying which (dictis cretionis verbis), the heir was said HÆREDITATEM ADISSE. But when this formality (CRETIONIS SOLEMNITAS) was not required, one became heir by acting as such (pro hærede SE GERENDO vel GESTIONE), although he might also, if he chose, observe the solemn. form.

If the father or grandfather succeeded, they were called hæredes ASCENDENTES; if, as was natural, the children or grandchildren, DESCENDENTES; if brothers or sisters, COLLATERALES.

If any one died without making a will (intestatus), his goods devolved on his nearest relations; first to his children; failing them to his nearest relations by the father's side (agnatis), and failing them to those of the same gens (gentilibus). At Nice, the community claimed the estate of every citizen who died intestate, Plin. Ep. x. 88. The inheritance was commonly divided into twelve parts, called uncia. The whole was called AS. Hence hæres ex asse, heir to one's whole fortune; hæres ex semisse, ex triente, dodrante, &c. to the half, third, three fourths, &c.

The UNCIA was also divided into parts; the half SEMUNCIA, the third DUELLA, or binæ sextula, the fourth SICILICUM, v. -us, the sixth SEXTULA, Cic. pro Cæcin. 6.

7. THE RIGHT OF TUTELAGE OR WARDSHIP.

ANY father of a family might leave whom he pleased as guardians (tutores) to his children, Liv. i. 34. But if he died intestate, this charge devolved by law on the nearest relation by the father's side. Hence it was called TUTELA LEGITIMA. This law is generally blamed, as in later times it gave occasion to many frauds in prejudice of wards (pupilli), Horat. Sat. ii. 5. Juvenal. Sat. vi. 38.†

When there was no guardian by testament, nor a legal one, then a guardian was appointed to minors and to women by the prætor, and the majority of the tribunes of the people, by the Atilian law, made A. U. 443. But this law was afterwards changed.

Among the ancient Romans, women could not transact any private business of importance, without the concurrence of their parents, husbands, or guardians, Liv. xxxiv. 2. Cic. Flacc. 34, 35.; and a husband at his death might appoint a guardian to his wife, as to his daughter, or leave her the choice of her own guardians, Liv. xxxix. 19. Women, however, seem sometimes to have acted as guardians, Liv. xxxix. 9.

If any guardian did not discharge his duty properly, or defrauded

A legacy of movable goods was due ten months after the death of the

testator.

† “Orbæ eloquentiæ quasi tutores relicti domi teneamus eam septam liberali custodiâ. Cic. Brut. 96."— T.