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 p208  Bonorum Possessio

Article by George Long, M.A., Fellow of Trinity College
on pp208‑209 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

BONO′RUM POSSE′SSIO is defined by Ulpian (Dig. 37 tit. 1 s3) to be "the right of suing for or retaining a patrimony or thing which belonged to another at the time of his death." The strict laws of the Twelve Tables as to inheritance were gradually relaxed by the praetor's edict, and a new kind of succession was introduced, by which a person might have a bonorum possessio who could have no hereditas or legal inheritance.

The bonorum possessio was given by the edict both contra tabulas, secundum tabulas, and intestati.

An emancipated son had no legal claim on the inheritance of his father; but if he was omitted in his father's will, or not expressly exheredated, the praetor's edict gave him the bonorum possessio contra tabulas, on condition that he would bring into hotchpot (bonorum collatio) with his brethren who continued in the parent's power, whatever property he had at the time of the parent's death. The bonorum possessio was given both to children of the blood (naturales) and to adopted children, provided the former were not adopted into any other family, and the latter were in the adoptive parent's power at the time of his death. If a freedman made a will without leaving his patron as much as one half of his property, the patron obtained the bonorum possessio of one half, unless the freedman appointed a son of his own blood as his successor.

The bonorum possessio secundum tabulas was that possession which the praetor gave, conformably to the words of the will, to those named in it as heredes, when there was no person intitled to make a claim against the will, or none who chose to make such a claim. It was also given secundum tabulas in cases where all the requisite legal formalities had not been observed, provided there were seven proper witnesses to the will (Gaius, II.147, "si modo defunctus", &c.).

In the case of intestacy (intestati) there were seven degrees of persons who might claim the bonorum possessio, each in his order, upon there being no claim of a prior degree. The three first classes were children, legitimi heredes and proximi cognati. Emancipated children could claim as well  p209 as those who were not emancipated, and adoptive as well as children of the blood; but not children who had been adopted into another family. If a freedman died intestate, leaving only a wife (in manu) or an adoptive son, the patron was entitled to the bonorum possessio of one half his property.

The bonorum possessio was given either cum re or sine re. It was given cum re, when the person to whom it was given thereby obtained the property or inheritance. It was given sine re, when another person could assert his claim to the inheritance by the jus civile: as if a man died intestate leaving a suus heres, the grant of the bonorum possessio would have no effect; for the heres could maintain his legal right to the inheritance. Or if a person who was named heres in a valid will was satisfied with his title according to the jus civile, and did not choose to ask for the bonorum possessio (which he was entitled to if he chose to have it), those who would have been heredes in case of an intestacy might claim the bonorum possessio, which, however, would be unavailing against the legal title of the testamentary heres, and therefore sine re.

Parents and children might claim the bonorum possessio within a year from the time of their being able to make the claim; others were required to make the claim within a hundred days. On the failure of such party to make his claim within the proper time, the right to claim the bonorum possessio devolved on those next in order, through the seven degrees of succession.

He who received the bonorum possessio was not thereby made heres, but he was placed heredis loco; for the praetor could not make a heres. The property of which the possession was thus given was only In bonis, until by usucapion the possession was converted into Quiritarian owner­ship (dominium). All the claims and obligations of the deceased person were transferred with the bonorum possessio to the possessor or praetorian heres; and he was protected in his possession by the interdictum Quorum bonorum. The benefit of this interdict was limited to cases of bonorum possessio, and this was the reason why a person who could claim the inheritance in case of intestacy by the civil law sometimes chose to ask for the bonorum possessio also. The praetorian heres could only sue and be sued in respect of the property by a legal fiction. He was not able to sustain a directa actio; but in order to give him this capacity, he was by a fiction of law supposed to be what he was not, heres; and he was said ficto se herede agere, or intendere. The actions which he could sustain or defend were actiones utiles. (Cic. ad Fam. VII.21; Gaius, III.25‑38, IV.34; Ulp. Frag. tit.28, 29; Dig. 37 tit. 4 s19; tit. 11; Dig. 38 tit. 6; a good general view of the bonorum possessio is given by Marezoll, Lehrbuch der Institutionen des Röm. Rechts, § 174; Thibaut, System des Pandekten Rechts, § 843, 9th ed.)

See also the article Interdictum.

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