Ruminations |
erty before he died , the legatee could pursue the man who bought it and recover the property . In Vermont , when a legacy has been sold by the testator before he dies , it may be lost , as rights to inheritances vest only upon death . 111
Justinian ’ s third book dealt with intestacy , and established a system for designating heirs . Sons and daughters came first , taking per stirpes and not per capita . Grandchildren took their father ’ s share . Emancipated children had no right to the inheritance of their parents . Adopted children had fewer rights than natural children , as a judge might restore a natural child to a preemancipated status , while adopted children , once emancipated , became strangers . Emancipation changes nothing about the right to inherit in intestacy in Vermont . Spouses inherit the estate . If predeceased , the children inherit , in equal shares , and on up the genealogic tree . 112 Justinian changed the Roman law on intestacy by recognizing the rights of women to shares of an estate , in the same regimen as male heirs . The old law had limited daughters to inherit from their mothers only , but Justinian included them as heirs of the father as well . Vermont is gender-neutral in intestacy . 113
Particularly in Book III , there is an extensive discussion of prior Roman law , whenever Justinian repairs or amends the rules on intestacy . His line of descent matches the Vermont common law as to degrees of consanguinity and affinity . He even includes a “ tablet with degrees of cognation inscribed upon it .” 114
Title 14A
Vermont has adopted the Vermont Trust Code . 115 Justinian covered the subject of testamentary trusts ( fiduciary inheritances ) in Book II of the Institutes . This included extensive details on how testators could recover the estate from an heir who had misappropriated it . 116
Title 15
Matrimony , according to Justinian , is a law of nature “ not only to man , but likewise to all other animals , whether produced on the earth , in the air , or in the waters .” So with the procreation and education of children . Justinian added that “ We perceive also , that other animals are considered as having some knowledge of this law .” 117
The rights of parents over their children is addressed in the first book of the Institutes . Children had no rights . Fathers had power over their children , their son ’ s children , and their grand-children , but not over the children of their daughters . Sons needed the consent of their parents to marry , unless the parents are mad , where no consent
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is required . 118
Marriage is forbidden between parents and children or grandchildren , between brothers and sisters , or between nieces and nephews and their aunts and uncles , and when they do this is incest and a crime . The rule applies to adopted children as well . First cousins may marry . 119 The same prohibitions apply today . First cousins are not forbidden to marry in Vermont . 120
With the Institutes , children born out of wedlock are not under the power of the father , as other children are . Vermont requires fathers to support them . 121
The process of adoption received extensive treatment in the Institutes . Adoptive sons inherited from adoptive fathers . Adoptive sons had to be at least 18 years younger than adoptive fathers . Women could not adopt , nor could castrated men . The law did not place even a woman ’ s own children under her power , unless her natural children had died , but they might adopt others , “ with the indulgence of the prince , . . . as a comfort for their loss .” Fathers needed the consent of their sons to adopt other sons . In Vermont , the Probate Courts administer the laws of adoption , and anyone may adopt another person to create the relationship of parent and child . 122
Under Roman law , children remain under the power of their parents until they are emancipated , which was done by the parent or an imperial order . Children , even after they reached the age of majority , did not have rights to declare themselves emancipated . Minors are emancipated at the age of eighteen in Vermont , but may petition the Probate Court for an earlier manumission . 123
Title 18
In the Institutes , a man might bury his dead on his own land . In Vermont , you may bury your dead on your land with permission of the local health officer , who is responsible for ensuring that there is ample distance from a water supply and the body is at least five feet below the surface of the ground . 124
Title 19
The Institutes treat the use of highways , roads , and trails . A trail , or path , is only for walking , but not for driving cattle or carriages . On a road , that is allowed , but not walking . A highway allows both . In Vermont , we have highways and trails , and if properly limited , trails can be limited to non-motorized traffic . 125
Justinian is not cited expressly in the cases that followed the discovery of ancient roads and the adoption of Vermont ’ s unidentified corridor law , but the idea that a road once adopted by the State or town
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remains a public highway until formally discontinued has its origins in Roman law . Abandonment is not enough .
Title 24
The Roman law prohibits a man from raising a house so as to darken a neighbor ’ s house . Vermont never adopted the law of ancient lights . Without a view easement , keeping a neighbor from shutting out the sun is beyond a landowner ’ s control . 126
Abandoned property loses its identity as belonging to the owner , and the person who takes it owns it , in the Institutes . The laws on abandoned property in Vermont are administered by the State Treasurer . 127
Title 27 ; Property
Bona fide purchasers of real estate without notice have priority over the original owners by Vermont common law . The same rule is found in the Institutes . 128
Alluvion is the gradual erosion and accretion causing the gradual increase of land abutting a river or stream . Both Roman and Vermont law recognize this as the gradual change of land boundaries along running water . Both also recognize that , as Justinian describes it , “ if the impetuosity of a river should sever a part of your estate , and adjoin it to that of your neighbor , it is certain , such part would still continue yours .” If you neglect to reclaim it , if trees take root in the land , your claim to it is lost . 129
Justinian “ corrected ” the law Julia , and allowed a husband to alienate lands given him as a “ marriage portion ,” but prohibited sale of other land owned by her . The reason given for granting the husband this liberty was , “ lest the frailty of women should occasion the ruin of their fortune .” Women have the same rights of men under Vermont law to own and convey property . 130
Equity
The word appears frequently in the Institutes . It is undefined , but it promises fairness , giving every man his due . Injunctions , called interdictions by Justinian , are described in Book IV to include orders to do what is required or to cease what is not right . In Vermont , injunctive relief is available through a civil action by the civil rules . 131
How the Vermont Supreme Court used Justinian
The first reported citation to Justinian in Vermont Reports came from the arguments of Defendant ’ s counsel in the report of the 1826 decision in James Barrett & Co . v . Hall , involving a claim for a warranty for a cooking stove . Samuel S . Phelps argued there was no implied warranty , sup-
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