Part 14 (1/2)

11 In reckoning the interval, only those days are considered upon which the persons ent.i.tled could have made application.

12 Earlier emperors, however, have judiciously provided that no one need trouble himself expressly to apply for the possession of goods, but that, if he shall within the prescribed time in any manner have signified his intention to accept, he shall have the full benefit of such tacit acceptance.

t.i.tLE X. OF ACQUISITION BY ADROGATION

There is another kind of universal succession which owes its introduction neither to the statute of the Twelve Tables nor to the praetor's Edict, but to the law which is based upon custom and consent.

1 When an independent person gives himself in adrogation, all his property, corporeal and incorporeal, and all debts due to him formerly pa.s.sed in full owners.h.i.+p to the adrogator, except such rights as are extinguished by loss of status, for instance, bounden services of freedmen and rights of agnation. Use and usufruct, though formerly enumerated among such rights, have now been saved by our const.i.tution from extinction by the least loss of status.

2 But we have now confined acquisition by adrogation within the same limits as acquisition through their children by natural parents; that is to say, adoptive as well as natural parents acquire no greater right in property which comes to children in their power from any extraneous source than a mere usufruct; the owners.h.i.+p is vested in the children themselves. But if a son who has been adrogated dies in his adoptive family, the whole of his property vests in the adrogator, failing those persons who, under our const.i.tution, are preferred to the father in succession to property which is not acquired immediately from him.

3 Conversely, the adrogator is not, by strict law, suable for the debts of his adoptive son, but an action may be brought against him as his representative; and if he declines to defend the latter, the creditors are allowed, by an order of the magistrates having jurisdiction in such cases, to take possession of the property of which the usufruct as well as the owners.h.i.+p would have belonged to the son, had he not subjected himself to the power of another, and to dispose of it in the mode prescribed by law.

t.i.tLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE THE GIFTS OF LIBERTY

A new form of succession was added by a const.i.tution of the Emperor Marcus, which provided that if slaves, who have received a bequest of liberty from their master in a will under which no heir takes, wish to have his property adjudged to them, their application shall be entertained.

1 Such is the substance of a rescript addressed by the Emperor Marcus to Popilius Rufus, which runs as follows: 'If there is no successor to take on the intestacy of Virginius Valens, who by his will has conferred freedom on certain of his slaves, and if, consequently, his property is in danger of being sold, the magistrate who has cognizance of such matters shall on application entertain your desire to have the property adjudged to you, in order to give effect to the bequests of liberty, direct and fiduciary, provided you give proper security to the creditors for payment of their claims in full. Slaves to whom liberty has been directly bequeathed shall become free exactly as if the inheritance had been actually accepted, and those whom the heir was requested to manumit shall obtain their liberty from you; provided that if you will have the property adjudged to you only upon the condition, that even the slaves who have received a direct bequest of liberty shall become your freedmen, and if they, whose status is now in question, agree to this, we are ready to authorize compliance with your wishes. And lest the benefit afforded by this our rescript be rendered ineffectual in another way, by the Treasury laying claim to the property, be it hereby known to those engaged in our service that the cause of liberty is to be preferred to pecuniary advantage, and that they must so effect such seizures as to preserve the freedom of those who could have obtained it had the inheritance been accepted under the will.'

2 This rescript was a benefit not only to slaves thus liberated, but also to the deceased testators themselves, by saving their property from being seized and sold by their creditors; for it is certain that such seizure and sale cannot take place if the property has been adjudged on this account, because some one has come forward to defend the deceased, and a satisfactory defender too, who gives the creditors full security for payment.

3 Primarily, the rescript is applicable only where freedom is conferred by a will. How then will the case stand, if a man who dies intestate makes gifts of freedom by codicils, and on the intestacy no one accepts the inheritance? We answer, that the boon conferred by the const.i.tution ought not here to be refused. No one can doubt that liberty given, in codicils, by a man who dies having made a will, is effectual.

4 The terms of the const.i.tution show that it comes into application when there is no successor on an intestacy; accordingly, it is of no use so long as it is uncertain whether there will be one or not; but, when this has been determined in the negative, it at once becomes applicable.

5 Again, it may be asked whether, if a person who abstains from accepting an inheritance can claim a judicial restoration of rights, the const.i.tution can still be applied, and the goods adjudged under it? And what, if such person obtains a restoration after they have been actually adjudged in order to give effect to the bequest of freedom? We reply that gifts of liberty to which effect has once been given cannot possibly be recalled.

6 The object with which this const.i.tution was enacted was to give effect to bequests of liberty, and accordingly it is quite inapplicable where no such bequests are made. Supposing, however, that a man manumits certain slaves in his lifetime, or in contemplation of death, and in order to prevent any questions arising whether the creditors have thereby been defrauded, the slaves are desirous of having the property adjudged to them, should this be permitted? and we are inclined to say that it should, though the point is not covered by the terms of the const.i.tution.

7 Perceiving, however, that the enactment was wanting in many minute points of this kind, we have ourselves issued a very full const.i.tution, in which have been collected many conceivable cases by which the law relating to this kind of succession has been completed, and with which any one can become acquainted by reading the const.i.tution itself.

t.i.tLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM

There were other kinds of universal succession in existence prior to that last before mentioned; for instance, the 'purchase of goods' which was introduced with many prolixities of form for the sale of insolvent debtors' estates, and which remained in use under the socalled 'ordinary' system of procedure. Later generations adopted the 'extraordinary' procedure, and accordingly sales of goods became obsolete along with the ordinary procedure of which they were a part.

Creditors are now allowed to take possession of their debtor's property only by the order of a judge, and to dispose of it as to them seems most advantageous; all of which will appear more perfectly from the larger books of the Digest.

1 There was too a miserable form of universal acquisition under the SC.

Claudianum, when a free woman, through indulgence of her pa.s.sion for a slave, lost her freedom by the senatusconsult, and with her freedom her property. But this enactment we deemed unworthy of our times, and have ordered its abolition in our Empire, nor allowed it to be inserted in our Digest.

t.i.tLE XIII. OF OBLIGATIONS

Let us now pa.s.s on to obligations. An obligation is a legal bond, with which we are bound by a necessity of performing some act according to the laws of our State.