"It is possible to acquire by being instituted or appointed heir in a testamentary disposition." For the testator Caius promises and declares in his last will to Titius, who knows nothing of this promise, to transfer to him his estate in case of death, but thus continuing as long as he lives sole owner of it.Now by a mere unilateral act of will, nothing can in fact be transmitted to another person, as in addition to the promise of the one party there is required acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of will (voluntas simultanea) which, however, is here awanting.So long as Caius lives, Titius cannot expressly accept in order to enter on acquisition, because Caius has only promised in case of death; otherwise the property would be for a moment at least in common possession, which is not the will of the testator.However, Titius acquires tacitly a special right to the inheritance as a real right.This is constituted by the sole and exclusive right to accept the estate (jus in re jacente), which is therefore called at that point of time a haereditas jacens.Now as every man- because he must always gain and never lose by it-necessarily, although tacitly, accepts such a right, and as Titius after the death of Caius is in this position, he may acquire the succession as heir by acceptance of the promise.And the estate is not in the meantime entirely without an owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the right of choice as to whether he will actually make the estate bequeathed to him his own or not.
Hence testaments are valid according to mere natural right (sunt juris naturae).This assertion however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the civil state, whenever it is instituted.For it is only the common will in the civil state that maintains the possession of the inheritance or succession, while it hangs between acceptance or rejection and specially belongs to no particular individual.
35.III.The Continuing Right of a Good Name after Death.(Bona fama Defuncti).
It would be absurd to think that a dead person could possess anything after his death, when he no longer exists in the eye of the law, if the matter in question were a mere thing.But a good name is a congenital and external, although merely ideal, possession, which attaches inseparably to the individual as a person.Now we can and must abstract here from all consideration as to whether the persons cease to be after death or still continue as such to exist; because, in considering their juridical relation to others, we regard persons merely according to their humanity and as rational beings (homo noumenon).Hence any attempt to bring the reputation or good name of a person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed- for to that extent the brocard "De mortuis nil nisi bene"* is wrong.Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
*[Let nothing be said of the dead but what is favourable.]
