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.
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