Ulpianus, On Sabinus, Book VII. Sometimes, this addition, “Let my heirs share equally”, expresses the intention of the testator; as, for instance: “Let the first, and the sons of my brother share equally”; for this addition indicates that all the heirs are appointed for equal shares, as is stated by Labeo; and if it is omitted, the first will be entitled to half the estate, and the sons of the testator’s brother to the other half. 1The father of a family can divide his estate into as many portions as he wishes, but the regular division of an estate is made into twelve shares, called unciæ. 2Hence, if the testator divides his estate into a smaller number than this, recourse is had to this rule by operation of law; for example, where a testator appoints two heirs each to a fourth of his estate, for in this case the remainder of the estate is apportioned in such a way that each heir is held to have been appointed for six shares. 3Where, however, one heir is appointed for one-fourth of the estate, and another for half, the remaining fourth will be added in proportion to the shares which they inherit respectively. 4If a testator should divide his estate into more than twelve shares, a diminution will then be made pro rata, as for example, if he appointed me heir to twelve shares, and you heir to six, I will be entitled to eight shares of the estate, and you to four. 5When a testator appoints two heirs for the entire estate and two others for twelve parts of the same, the inquiry is made by Labeo, in the Fourth Part of his Last Works, whether an equal distribution shall be made. And he holds that the former are entitled to half the estate, and those who are appointed for twelve shares of it will be heirs to the other half. I think that this opinion should be adopted. 6If, however, a testator should appoint two heirs for his entire estate, and then appoint a third for a half and a sixth of the same, Labeo says, in the same book, that the entire estate should be divided into twenty parts, of which the two first heirs shall have twelve, and he who was appointed for the half and the sixth will be entitled to eight. 7Labeo also gives as an example: “Let Titius be appointed for a third of my estate”; and then, after the entire estate had been disposed of was added: “Let the same Titius be appointed for a sixth”. Trebatius says that this estate should be divided into fourteen parts.

Ulpianus, On Sabinus, Book XXX. Julianus states in the Thirtieth Book that where a testator appointed his heirs as follows: “Let Titius be the heir to half of my estate, and Seius to half, and out of the portion which I have left to Seius, let Sempronius be my heir to an equal amount”; it may be doubted whether the testator intended to divide his estate into three shares, or whether he intended to join Seius and Sempronius as heirs to the same half. The latter is the better opinion, and therefore these two are held to have been appointed heirs to the same portion of the estate; hence the result is that Titius will be entitled to half of the estate, and each of the others to a fourth of the same. 1The same authority stated in the same book, that where a testator said, “If the first is heir to one-half, the second will be heir to the other half; but if the first should not be an heir, let the third be substituted as heir for three-quarters of my estate”. This is indeed a question of fact, but it may very properly be said that if the first heir enters upon the estate, the others will be entitled to equal shares of the same; but if he rejects it, it must be divided into fifteen parts, of which the third heir will be entitled to nine, and the second to six.

Ulpianus, On Sabinus, Book VII. Sabinus says that where a share has not been allotted to one of the heirs this requires investigation. For instance, where a testator appointed two heirs, each to a fourth of the estate, but did not assign anything to the third, the latter will be entitled to the remainder. Labeo also adopts this opinion. 1The same authority discusses the question: “Where a testator appointed two heirs to eleven shares of his estate, and two without any, and afterwards one of those to whom no share was assigned rejected the succession, will the twenty-fourth to which he was entitled belong to all the heirs, or to him alone to whom no share was assigned? He does not determine this point. Servius, however, says that the share will belong to all the heirs, and I think that this opinion is the better one; for, so far as the right of accrual is concerned, those who are appointed without any share are not joint heirs with the others. This opinion is adopted by Celsus in the Sixteenth Book of the Digest. 2Sabinus also holds that where the testator has disposed of the entire estate, and appointed two heirs without assigning them any portion thereof, neither of them will be joint-heirs with the others. 3But if, after having disposed of the entire estate, he should appoint another without any share, the latter will be entitled to half of double the amount of the original shares of the said estate. It will be otherwise, however, if, after having disposed of his entire estate, the testator should provide: “Let So-and-So be my heir to the remainder”; since, as there is nothing left, an heir cannot be appointed for any share. 4But if, after the entire estate was disposed of, two heirs should be mentioned without any shares being assigned to them, the question arises, shall these two be united in the doubling of the estate, or only in a single division of the same? Labeo thinks, and it is the better opinion, that they will be entitled to share in a single division; for, where one has been appointed without the assignment of any share, and afterwards two are appointed together without any share being assigned to them, Celsus says, in the Sixteenth Book, the estate should not be divided into three portions, but only into two. 5But if the testator, after doubling the shares of the estate, should divide it between two heirs, and should appoint a third without any share, the number of original shares will not be tripled; but the said third heir will be entitled to a third part of the same, as Labeo stated in the Fourth Book of his Last Works, and this opinion is not referred to by either Aristo or Paulus, perhaps because they deemed it correct,

Ulpianus, On Sabinus, Book VII. Pomponius and Arrianus assert that a discussion arose with reference to the following point, namely, where a man left a portion of his estate undisposed of, and then provided, “If Seius” (whom he had not appointed) “should not be my heir, let Sempronius be my heir”, whether the latter could take that portion of the estate which had not been allotted to anyone. Pegasus thinks that he would be entitled to this portion. Aristo holds the contrary opinion, because a share was allotted to him which did not exist. Javolenus, Pomponius, and Arrianus approve this opinion, which prevails at the present time.

Ulpianus, On Sabinus, Book VII. In accordance with the custom of our country, neither a male nor a female ward can bind themselves without the authority of their guardian. It is, however, perfectly evident that the acceptance of an estate, even if it is not solvent, renders us liable for its debts. In this instance, we refer to an estate to which parties do not succeed as necessary heirs. 1A child not arrived at the age of puberty, who is under the control of another and enters upon an estate by order of the latter, acquires it, even though he is not legally capable of deliberation.

Ulpianus, On Sabinus, Book VII. Where an heir to an entire estate intends only to accept a portion of the same, he is held to have acted as heir to the entire estate.

The Same, On Sabinus, Book VII. A party who has been appointed an heir, or one to whom the estate has descended by law, loses it by rejecting it. This is true only where the estate is in such a condition that it can be entered upon, but where the heir is appointed under a condition, and rejects the estate before the condition has been fulfilled, his act will be void, no matter what the condition may be, and even if it is dependent upon his will. 1Where an heir is in doubt as to whether the testator is living or not, and rejects the estate, his act is void. 2In like manner, if a substitute rejects an estate before the appointed heir makes up his mind with reference to it, his rejection will not be valid. 3If a son under paternal control, or a father, rejects an estate neither will prejudice the rights of the other, but both of them can reject it together.

Ulpianus, On Sabinus, Book VII. He who thinks that he is the necessary heir, when he is a voluntary heir, cannot reject an estate; for, in this instance, more weight is attached to opinion than to the truth.

The Same, On Sabinus, Book VII. Nor can anyone who thinks that a will is void, or forged, reject it. But if it is certain that a will which is said to be forged is not so; since by entering upon the estate, he can acquire it, so also by rejecting it he will lose it. 1Ad Dig. 29,2,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 599, Note 14.Where an appointed heir, who is at the same time heir-at-law, rejects the estate by reason of his appointment, he cannot be admitted to the succession on account of his being the heir-at-law; if, however, as the heir-at-law he should reject the estate, knowing at the same time that he has been appointed heir to the same, it should be held that he has rejected it in both capacities. If he was not aware of his appointment, his rejection will not prejudice him in either respect, not with reference to the testamentary succession, as he did not reject this, nor with reference to the legal succession, as it was not yet granted him.

The Same, On Sabinus, Book VII. Where a stranger has in his possession property belonging to an estate which he has purloined or stolen, he does not act in the capacity of heir, for his act shows a contrary intention. 1Sometimes the mere intention of the heir makes him responsible for the estate; as, for instance, when, in the capacity of heir, he makes use of some property which does not belong to it. 2Still, no one can acquire an estate by acting in the capacity of heir, where it has already descended to him. But we say that in those cases where we have held that the rejection of an estate is void, it must be noted that where the party acts as heir, his acceptance will also be void. 3Where anyone does not know to what portion of the estate he has been appointed heir, Julianus says that this does not prevent him from acting in that capacity. This opinion is also approved by Cassius, if the party was aware of the condition under which he was appointed; provided that the condition has been complied with. But what if he did not know that the condition had been complied with? I think that he can enter upon the estate in the same way that he could if he was not aware that the portion of his co-heir, for whom he was substituted, had been increased by the rejection of the latter.

Ad Dig. 29,2,24Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 677, Note 11.Ulpianus, On Sabinus, Book VII. The question arose whether a person is held to have acted in the capacity of heir who receives a sum of money as compensation for rejecting an estate. It was decided that he who received the money in consideration of relinquishing the estate did not act as heir; but that he would still be liable to the penalty imposed by the Edict of the Prætor. Therefore whether he received the money from the substitute, or from the heir-at-law, he is held to have received it mortis causa. The same rule will apply if he did not receive the money, but it was merely promised to him, for he obtains it by virtue of the stipulation, mortis causa.

The Same, On Sabinus, Book VII. Although he who relinquishes an estate in consideration of the payment of a sum of money may not be considered to have assumed the part of an heir, an action should, nevertheless, be granted against him, as in the case of a party who, having declined to take an estate under a will, obtains possession of it on the ground of intestacy, as the Divine Hadrian stated in a Rescript. For this reason he will be liable to be sued by the legatees and other beneficiaries of the estate. 1But should the action be brought against him in the beginning, and recourse then be had to the heir; or shall we change the order? The more equitable opinion seems to me to be that proceedings should first be instituted against the possessor of the estate, especially if the possession of the same is profitable to him.

The Same, On Sabinus, Book VII. Where anyone, having received a sum of money, rejects an estate, whether it passes to a substitute, or whether an heir succeeds to it on the ground of intestacy, he is considered to have obtained the money mortis causa; for whatever is acquired on account of the death of anyone is obtained mortis causa. Julianus adopts this opinion, and we make use of it. For where anything is received by a slave, who is to be free under a certain condition, for the purpose of complying with the condition; or anything is obtained by a legatee mortis causa; or where a father gives anything on account of the death of his son, or of a relative; Julianus states that it is acquired mortis causa. 1Hence, he says that a donation can be made in such a way that it will revert to the donor, if the sick person should recover.

The Same, On Sabinus, Book VII. An unborn child is not a minor.

Ulpianus, On Sabinus, Book VII. A person does not wish to be an heir who is willing that an estate should be transferred to another.