CASE 172: Common Substitution*
Gaius, Institutiones 2.174-175
(174) Interdum duos pluresve gradus heredum facimus, hoc modo: “L.
Titius heres esto cernitoque in diebus centum proximis, quibus scies poterisque. quod ni ita creveris, exheres esto. tum Maevius heres esto cernitoque in diebus centum et reliqua”; et deinceps in quantum velimus, substituere possumus. (175) Et licet nobis vel unum in unius locum substituere pluresve, et contra in plurium locum vel unum vel plures substituere.(Gaius in the second book of his Institutes)
(174) Sometimes we make two or more ranks of heirs, as follows: “Let Lucius Titius be heir and let him formally declare acceptance within the next one hundred days once you (i.e., Lucius Titius) know and are able. But if you do not make a formal declaration, you are disinherited. At that point let Maevius be heir and let him formally declare acceptance within the next one hundred days, etc.”; and from that point onward, as far as we like, we can make substitutions. (175) We are also permitted to substitute one person or several for one person, and conversely either one or several persons for several persons.
color=black face="Book Antiqua">1. No Limits? These two passages suggest that a broad discretion was allowed the testator. In case one of his primary heirs predeceased him or refused the inheritance, a testator could name substitutes. Are any limits implied by Gaius's words? What would happen if the primary heir died a day after accepting the inheritance?
2. Wording of the Substitution.
The testator was not bound to the precise formula laid out by Gaius. What were the consequences if he or she omitted the time period for acceptance? If the primary heir is not expressly disinherited when the time limit expires? In the latter case, Gaius, Inst. 2.177, holds that both the primary and the secondary heirs share the estate equally unless the primary heir either disavows the inheritance or takes no action to assume control of the property.3. Reciprocal Substitution. Some testators fine-tuned their wills by making the coheirs reciprocal substitutes. Suppose a will appoints three heirs to unequal shares: A to a twelfth of the estate, B to eight-twelfths, and C to a quarter. And suppose that C declines the inheritance. If A and B had both accepted, and all three were also appointed as substitutes for one another, would each receive an additional one-eighth, or would their respective shares depend on the mathematical proportions they originally received? The latter is true; see Ulpian, D. 28.6.24. So A ends up with a total of one-ninth of the entire estate, and B gets eight-ninths. Follow the math?