Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

HItEIRES. HERES. 599
hIeredes when named heredes ill her will. Extranei the acting as heres equivalent to cretion, provided
heredes had the potestas or jus deliberandi (Dig. such acting took place within the time of cretion.
28. tit. 8. s. 1), or privilege of considering whe- (Compare Gaius, ii. 177, &c., with Ulpian, F/lag.
ther they would accept the hereditas or not: but xxii. 34.)
if either extranei heredes, or those who had the In tile case of liberi impuberes, who were in the
abstinenldi potestas, meddled with the testator's power of a testator, there mightt be not only the
property, they could not afterwards disclaim the kind of substitution just mentioned (vulgazris subinheritance, unless the person who had so meddled stitmtio), but the testator nmight declare that if such
was under twenty-five years of age, and so be- clchildreni should live to become his heredes, and
longed to a class who were relieved by the praetor should die impuberes, some other person, whoism he
in all cases where they were overreached [CURA- named, should be his heres. This was expressed
Tron], and also ill cases where they had accepted thus, " si prius moriatur quanm in suanm tutelam
an insolvent hereditas (dcaminzosa hlereditas). The vencrit" (Cic. de In.velt. ii. 42,'op. 10; Gains,
emperor Hadrian gave this relief to a personl ii. 179), for the termination of imnpuberty and of
above twenty-five yelars of age who had accepted the tutela were coincident. [CURATOR.] Thus,
an hereditas, and afterwa.rs ciscovered that it was as Gains remarks, onle testamentary disposition
incumbered with a heavy debt. (Gains, ii. 1 63.) coillprised two hereditates. Thllis was called pupilA cel rtaini time was allowed to extranei for thle laris substitutio. (Inst. 2. tit. 16.) This kind of
eretio helreditatis, that is, for them to determine substitution was contained in a clause by itself, and
wllether they would take the hereditas or not: in a separate part of the will, which was secured
hence the pl-hrase " cernere hereditatem." (Cic. by the testator's own thread and seal, with a prod Al dtt. xi. 12.) Thus, if the testator had written vision in the first part of the will that this second
in his will 5 Ileres Titinis esto," he ought to add, part should not be opened so long as the son lived
" Cernitoque in centum diebus proxmnnis quibus and was impubes. A substitution could also be
scies poterisque: quod iii ita creveris exheres esto." made in the case of children being exheredated
(Gaits, ii. 16; Cic. de Orat. i. 22.) If the ex- (disinherited) by the parent's will, and the subtraneus wished to take the hereditas, lie was re- stituted person then took all that the pupillus acqcuired to make a formal declaration of his intention quired by hereditas, legatum (legacy) or gift.
within the time inamed (isitra dieim cretioy2is). The Gaius observes (ii. 183) that all his remarks with
formal words of cretioll were "cam herecditatem reference to substitution for children impuberes,
adeo cernoque." Unless he did this, he lost the when made heredes or exheredated, apply to posthereditas, and he could not obtain it merely by humous (postuiei) children, of which there is an
actingl as heres (pro herede yerezido). If a person example cited by Cicero (bop. 10. Si filiis natus
was named heres without any time of cretion being esset in decem mensibus, &c.).
fixed, or if lie succeeded (legitimso jtsre) to the If an extrameus was smade heres, there could be
property of an intestate, he might become lieres no substitution to the effect, that if lie died within
without any formal declaration of his intention, a certain tilme, another person should be hieses: for
and might take possession of the hereditas when though a testator could attach a condition to be
lie pleased: but the praetor was accustomed, upon performed before a person could take the hereditas,
the demand of the creditors of the testator or in- a personl when he had once become heres continued
testate, to name a time within which the heres such. The case of a pulpillaris substitutio, which
should take possession, and in default of his doing was an exceptioml to this general rule, was probably
so, he gave the creditors permission to sell the founded on the patria potestas. The heres might,
property. The comlmon form of cretion in the will however, be charged with a fideicommissum, in
(v2ua1ris cretio) has been already mentioned. which case le w as heres fiduciarius. [FIDEICOuMSometimes the words "quibus sciet poteritque' AIIRssUiMI.]
were omitted, and it was then specially called As to conditions which the hieres was bound to
"eretio) certorum diclrum," which was the more performl, they might be any that were not contrary
disadvantageous to thle heres, as the days beogan to to positive law or positive morality; such as the
be reckoned, or, as we say, the time began to run setting up of statues, &c. (Cic. Veir. ii. 8, 9,14)
immediately, and it was not reckoned fieom the or changing the name (ad Att. vii. 8). Impostime when the hieres knewv that lie was miamned sible conditions were treated as if there were no
heres9, and had no impedliment to his cretion. conlditiols mentioned (pro non scripto, Inst. 2. tit.
It was not unusual to make several degrees of 14. s. 10).
heredes iin a will, which was called stlbstitltio. If a aian's own slave was made heres by his
(Iost. 2. tit. 15.) Thus in the formula begimnnimig will, it was necessary that he should be made free
" ielres Titius)o, &c., after thle words " exheres also by the will: the words were " Stichus sercsto,' the testator might add, "Tunl MeViaevi us nvus liber heresque esto." If the slave were
heres esto cernitoque in diebus centunl," &c.; and not aoade free by the testament, he could not take
lie might go on substituting as far as he pleased. umder it, even if he were mamumitted by his
The person first nanmed as heres (primo pradud) master, and of course he could not if he were sold;
becamle heres by the act of cretion; and the anLd the reason is, that the institution was not
suibstitutus (scczunclms heles, Cic. bTo. 10; Her. valid. If he was instituted free as well as heres,
Sat. ii. 5. 48; Tacit. Ann. i. 8) was then entirely he became botlh a freeman and heres lecessarius by
excluded. If the words " si nona creveris " were the death of his master: if he was manumitted by
not followed by words of exheredation, this gave his master in his lifetime, he might accept the ilsome advaltage to the first heres: for instance, if heritance or refuse it. If he was sold by his mashe neglected the formality of cretion, and only acted ter in his lifetime, he could take possession of the
as heres, he did not lose all, but shared the hereditas inheritamce with the permission of his new master,
equally with the substituted person. This was the who thus became heres through the medium of his
old rule; but a constitution of M. Antoninus made slave, If the slave whowas made heres was at
QQ 4