CHAP. X. facts is expressed by the English law-terms' act of law' and ' act of party.'

The per

sons.

The extent.

A translative fact may operate wholly 'inter vivos,' or it may pass a right from a deceased to a living person, or from a natural to an artificial person, or from one artificial person to another. The artificial person may in some cases be the State itself.

The right passed by the translative fact cannot, as a rule, be of greater extent than the right whence it is derived. 'Non debeo melioris conditionis esse quam auctor meus a quo ius in me transit 1.' It may however either be of less extent, as when a leasehold interest, or an easement, is granted by Succession. an owner of land; or it may be the very right itself, in which latter case the translative fact is called a Succession.'

Singular.

Universal.

When, as is usually the case, the succession passes one or more separate rights, as the ownership of an estate, or a leasehold interest in a house, it is called 'singular,' and was described in Roman law by the phrases 'succedere in rem,' in rei dominium,'

But there is a more complex kind of succession, known as 'universal,' which the Romans described by the phrases 'succedere per universitatem,' 'in universum ius,' 'in universa bona,' 'adquirere per universitatem 3. What here passes is what German jurists call the Gesammtheit des Vermögens,' the whole mass of a man's property, whether consisting of rights 'in rem' or of rights in personam,' or of both combined; and with the property, or assets, 'bona activa,' the liabilities, bona passiva,' pass also. Such a 'universal succession' takes place when an executor, or administrator, or trustee in bankruptcy succeeds to a whole group of the rights

1 Dig. 1. 17. 175. 1. But Casaregis would substitute in mercantile transfers the principle possession vaut titre.' This theory seems to have been carried very far, in the interests of commerce, by recent German decisions. Vierteljahrschrift für Rechtswissenschaft, &c., N. F. vii. p. 204.

Dig. xii. 2. 8; xxi. 3. 3. 1; xxxix. 2. 24. 1; xliii. 3. 1. 13. 3 Gai. ii. 97.

and liabilities of a testator, or an intestate, or a bankrupt CHAP. X. respectively.

Many forms of universal succession have now only an antiquarian interest. This is the case, for instance, with the 'addictio bonorum libertatium conservandarum causa1,' with the Senatusconsultum Claudianum 2, with the 'bonorum venditio.' Other forms, such as confiscation to the State, bankruptcy and heirship, can never be out of date.

The passage of the rights of a deceased person to his heirs, the successio in universum ius quod defunctus habuit 3,' which is the most important of all universal successions, is brought about either by an involuntary fact, the man's death intestate, or by a voluntary act, the making of his will.

succession.

Intestate is chronologically anterior to testamentary succes- Intestate sion. Recent investigators, and especially Sir Henry Maine, have abundantly shown that there is in early times but little trace of individual ownership. Even grown-up children had only the most precarious interest during their lives in the property which they were allowed to handle, and on their deaths their father took possession of it as a matter of course. When the father himself died, his property passed of right to his surviving children, or if he left no children, then to certain precisely designated collateral members of his family, or in default, to that wider family which is known as a 'gens' or clan. The idea that property really belongs to a family group, and that the right of an individual is merely to administer his share of it during his lifetime, may be said still to survive in those provisions against the total disinheriting of relations which modern systems have borrowed from Roman law, and less obviously in the rights given to next of kin under statutes of distribution. The feudal doctrine as to the succession of the heir-at-law to real property, and of escheat,

1 Inst. iii. II.

3 Gaius, Dig. 1. 16. 24.

2 Inst. ii. 12.

E. g. Code Civil, liv. iii. tit. 2. chap. 3, 'de la Portion de Biens disponible, et de la Réduction.'

CHAP. X. in default of an heir, to the lord of the fee, is widely different in character. It is as a consequence of this latter doctrine, that no one individual is recognised by English law as succeeding to all the rights of an intestate who dies leaving both real and personal property, and that the heir and the administrator divide between them what under the Roman system devolved wholly on the 'heres.'

Testamentary succession.

Such a

The principle that a man may voluntarily select the person on whom his property is to devolve after his death 1 is of later origin than the principle of intestate succession. selection had at first to be ratified by legislative authority, in order to oust the rights of the relatives. The gradual growth of the power of making a will, from the days when it could only be made in the 'comitia calata,' or in the face of the people drawn up in battle array, 'in procinctu,' through the twelve tables, and the praetorian relaxations, down to the wide liberty enjoyed under the later Empire, is one of the most interesting topics of the history of Roman law. The points to which attention must be directed in studying the subject of testamentary disposition in its fully developed form, and with reference to each of which very various provisions are contained in actual systems of law, are the following:

(1) The capacity of the testator, as to age, freedom from 'patria potestas,' 'coverture,' or the like.

(2) The effect, if any, to be given to proof that the testator acted under mistake 2.

(3) The formalities necessary for the exccution of a will,

1 'Le testament est un acte par lequel le testateur dispose pour le temps où il n'existera plus, de tout ou partie de ses biens.' Code Civil, art. 895. 'Neque enim aliud videtur solatium mortis quam voluntas ultra mortem.' Quint. Declam. 308. A curious a priori justification of Wills is given by Leibnitz: 'Testamenta mero iure nullius essent momenti, nisi anima esset immortalis. Sed quia mortui revera adhuc vivunt, ideo manent domini rerum, quod vero heredes reliquerant, concipiendi sunt procuratores in rem suam.' Nova Methodus Iurisprudentiae, P. II. § 20.

"On the differences between Roman and modern English law on this point, see Lord Hardwicke's judgment in Milner v. Milner, 1 Vesey, 106, and Story, Equity Jurispr. § 179.

such as signing, sealing, attestation, or enrolment in a public CHAP. X. office; and the special cases in which fewer or more formalities than ordinary are insisted upon 1.

(4) The contents of the will. Whether any relatives must be expressly, or may be only tacitly, disinherited; whether the heir must be instituted before other matters are mentioned; and so forth.

(5) The capacity of the heir, or other person who is to take beneficially under the will. The incapacities, under various systems, of 'incertae personae,' corporations, priests, witnesses, charities and churches.

(6) The modes in which a will, when once well made, may subsequently become invalid; as in Roman law by the agnation of a new 'suus heres,' and in English law by marriage; or in which it may be set aside, e.g. by the 'querela inofficiosi.'

(7) Whether the inheritance devolves immediately through the operation of the will, or whether any act is necessary on the part of the heir or executor, such as the 'cretio' or 'aditio' of heirs other than the 'necessarii' in Roman law 2, or the procuring of probate from a judicial authority, which is demanded from an English executor 3.

(8) Whether the heir can refuse to accept, and how far he can claim to be relieved from liabilities in excess of assets.

It may be well to observe that although an English executor does not take the whole property of a person who dies leaving real as well as personal property, yet he may well be regarded as a universal successor, so far as relates to the personal property and the claims upon it 4.

1 The formalities will, for instance, be more elaborate in the case of a blind man, less so in the case of a soldier on active service.

2 Before which the hereditas was described as 'iacens,' and was treated as a juristic person.

3 He may also render himself liable by intermeddling with the estate, when he is said to become 'executor de son tort.'

The early history of the English executor is discussed with great learning by Mr. Justice Holmes, The Common Law, p. 347.

CHAP. X.

One form of singular succession is so closely connected with Legacies. universal succession under a testament as to be unintelligible apart from it1. A Legacy, 'donatio quaedam a defuncto relicta 2, is a deduction from an inheritance for the benefit of some one. It is the creation of a claim upon the universal successor 3, and a distinction is drawn between the 'vesting' of the legacy, 'dies cedit,' and its becoming payable, 'dies venit.' It may be revoked by the testator, or it may lapse.' It will be void if inconsistent with any rule of law as to the amount of legacies, or as to the proportion which they may bear to the property which is to remain with the heir, or as to Donationes the persons who may receive them. A Legacy must be distinguished from a 'donatio mortis causa' which, though it takes effect on the death of the donor, does not do so by way of deduction from the inheritance.

mortis

causa.

Having now considered the general characteristics of law and of rights, we are in a position to enter upon a more detailed examination of our subject, under the three great heads of 'private,' 'public,' and 'international' law.

1 'Quae pars iuris extra propositam quidem materiam videtur: nam loquimur de his iuris figuris quibus per universitatem res nobis adquiruntur: sed cum omnimodo de testamentis. . . locuti sumus, non sine causa sequenti loco poterat haec iuris materia tractari.' Gai. ii. 191.

2 Inst. ii. 20. I.

3 Although, according to Neratius, 'ea quae legantur recta via ab eo qui legavit ad eum cui legata sunt transeunt.' Dig. xlvii. 2. 64.

'Cum magis se quis velit habere quam eum cui donatur, magisque eum cui donat quam heredem suum.' Inst. ii. 20. 1. On the evils of the wide applicability to securities of 'donatio mortis causa' at the present day, see 2 L. Q. R. 444.