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The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there. To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental.
At the beginning of the ninth century the donee has power to leave the property to whomsoever he will, or, in still broader terms, to exchange or grant in his lifetime, and after his death to leave it to whom he chooses, or to sell, exchange, and leave to whatsoever heir he chooses. /1/ This choice of heirs recalls the quos heredes appellavit of the Salic law just mentioned, and may be compared with the language of a Norman charter of about the year 1190: "To W. and his heirs, to wit those whom he may constitute his heirs." /1/
Here then was a voluntary transfer of more or less property at pleasure to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name heredes.
By its provisions no man who possessed property valued in the censors' lists at 100,000 sesterces or more, could appoint a woman or women as his heres or heredes; further, no person or persons, male or female, could receive under the will legacies amounting in all to a larger sum than that received by the principal heir or heirs.
Sororum filiis idem apud avunculum, qui ad patrem honor. Quidam sanctiorem arctioremque hunc nexum sanguinis arbitrantur, et in accipiendis obsidibus magis exigunt; tanquam et in animum firmius, et domum latius teneant. Heredes tamen successoresque sui cuique liberi: et nullum testamentum. Si liberi non sunt, proximus gradus in possessione fratres, patrui, avunculi.
Also in Gaius, ii, 227, and Paulus, iii, viii, 1-3, and iv, 3, 3, and 5 and 6. Paulus, iv, Tit. v, 1. Cases in which "Complaints of Undutiful Will" were the issue will be found, e.g., in Codex, iii, 28, 1 and 19 and 28; id., iii, 29, 1 and 7. Ulpian in Dig., 38, 16, 1: suos heredes accipere debemus filios filias sive naturales sive adoptivos.
Every Roman will named a heres or heredes, on whom devolved all the privileges and duties of the deceased, with such duties as were enjoined by the will; particularly the duty of paying the legacies left to those who were not heredes. See Maine, Ancient Law, Ch. 6; also Hunter, Introd. to Roman Law, Ch. 5.
Heirs are called sui heredes, that is, heirs of themselves or of their own property, as is explained by Gaius. /1/ Paulus says that they are regarded as owners in a certain sense, even in the lifetime of their father, and that after his death they do not so much receive an inheritance as obtain the full power of dealing with their property. /2/
According to K., teneant has for its subject not sororum filii, but the same subject as exigunt. Heredes properly refers to property, successores to rank, though the distinction is not always observed. Liberi includes both sons and daughters. Patrui, paternal uncles; avunculi, maternal. Propinqui, blood relations; affines, by marriage. Orbitatis pretia. Pretia==proemia. Orbitatis==childlessness.
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