2 Heirs who are both family heirs and necessary are such as a son or a daughter, a grandchild by a son, and further similar lineal descendants, provided that they are in the ancestor's power at the time of his decease. To make a grandson or granddaughter a family heir it is, however, not sufficient for them to be in the grandfather's power at the moment of his decease: it is further requisite that their own father shall, in the lifetime of the grandfather, have ceased to be the family heir himself, whether by death or by any other mode of release from power: for by this event the grandson and granddaughter succeed to the place of their father. They are called family heirs, because they are heirs of the house, and even in the lifetime of the parent are to a certain extent deemed owners of the inheritance: wherefore in intestacy the first right of succession belongs to the children. They are called necessary heirs because they have no alternative, but, willing or unwilling, both where there is a will and where there is not, they become heirs. The praetor, however, permits them, if they wish, to abstain from the inheritance, and leave the parent to become insolvent rather than themselves.
3 Those who are not subject to the testator's power are called external heirs. Thus children of ours who are not in our power, if instituted heirs by us, are deemed external heirs; and children instituted by their mother belong to this class, because women never have children in their power. Slaves instituted heirs by their masters, and manumitted subsequently to the execution of the will, belong to the same class.
4 It is necessary that external heirs should have testamentary capacity, whether it is an independent person, or some one in his power, who is instituted: and this capacity is required at two times; at the same time of the making of the will, when, without it, the institution would be void; and at the same time of the testator's decease, when, without it, the institution would have no effect. Moreover, the instituted heir ought to have this capacity also at the time when he accepts the inheritance, whether he is instituted absolutely or subject to a condition; and indeed it is especially at this time that his capacity to take ought to be looked to. If, however, the instituted heir undergoes a loss of status in the interval between the making of the will and the testator's decease, or the satisfaction of the condition subject to which he was instituted, he is not thereby prejudiced: for, as we said, there are only three points of time which have to be regarded. Testamentary capacity thus does not mean merely capacity to make a will; it also means capacity to take for oneself, or for the father or master in whose power one is, under the will of another person: and this latter kind of testamentary capacity is quite independent of the capacity to make a will oneself. Accordingly, even lunatics, deaf persons, afterborn children, infants, children in power, and other persons' slaves are said to have testamentary capacity; for though they cannot make a valid will, they can acquire for themselves or for another under a will made by someone else.
5 External heirs have the privilege of deliberating whether they will accept or disclaim an inheritance. But if a person who is entitled to disclaim interferes with the inheritance, or if one who has the privilege of deliberation accepts it, he no longer has the power of relinquishing it, unless he is a minor under the age of twentyfive years, for minors obtain relief from the praetor when they incautiously accept a disadvantageous inheritance, as well as when they take any other injudicious step.
6 It is, however, to be observed that the Emperor Hadrian once relieved even a person who had attained his majority, when, after his accepting the inheritance, a great debt, unknown at the time of acceptance, had come to light. This was but the bestowal of an especial favour on a single individual; the Emperor Gordian subsequently extended the privilege, but only to soldiers, to whom it was granted as a class. We, however, in our benevolence have placed this benefit within the reach of all our subjects, and drafted a constitution as just as it is splendid, under which, if heirs will but observe its terms, they can accept an inheritance without being liable to creditors and legatees beyond the value of the property. Thus so far as their liability is concerned there is no need for them to deliberate on acceptance, unless they fail to observe the procedure of our constitution, and prefer deliberation, by which they will remain liable to all the risks of acceptance under the older law.
7 An external heir, whether his right accrue to him under a will or under the civil law of intestate succession, can take the inheritance either by acting as heir, or by the mere intention to accept. By acting as heir is mean, for instance, using things belonging to the inheritance as one's own, or selling them, or cultivating or giving leases of the deceased's estates, provided only one expresses in any way whatsoever, by deed or word, one's intention to accept the inheritance, so long as one knows that the person with whose property one is thus dealing has died testate or intestate, and that one is that person's heir. To act as heir, in fact, is to act as owner, and the ancients often used the term 'heir' as equivalent to the term 'owner.' And just as the mere intention to accept makes an external heir heir, so too the mere determination not to accept bars him from the inheritance. Nothing prevents a person who is born deaf or dumb, or who becomes so after birth, from acting as heir and thus acquiring the inheritance, provided only he knows what he is doing.
TITLE XX. OF LEGACIES
Let us now examine legacies:—a kind of title which seems foreign to the matter at hand, for we are expounding titles whereby aggregates of rights are acquired; but as we have treated in full of wills and heirs appointed by will, it was natural in close connexion therewith to consider this mode of acquisition.
1 Now a legacy is a kind of gift left by a person deceased;