Acquisition of legacies
A matter of some dispute among Roman jurists was when, exactly, the legatee acquired ownership over the legacy. The idea that ultimately prevailed was that it occurred upon the heir’s entry into the inheritance, which, as mentioned above, occurred at the moment of the testator’s death (or at the opening of the will) in case of family heirs, and at the moment of acceptance (aditio hereditatis) in case of external heirs.
The nonclassical Latin term to refer to this moment of acquisition was dies veniens. Since a certain period of time could pass before the external heir accepted the estate, an expectation transmissible to his own heirs was acquired by the legatee the very day of the testator’s death. Under the aforementioned lex Papia Poppaea (9 ce), this expectancy was delayed until the day on which the will was officially opened, but Justinian restored the original rule (C.J. 6.51.1). The nonclassical term to refer to this moment in which the legacy began to be transmissible was dies cedens. Obviously, the dies cedens and the dies veniens coincided in the case of family heirs or necessary heirs. If the legatee died before the testator, or before the opening of the will (dies cedens), the legacy was not transmitted to his heirs.In the case of a legacy by vindication, following the prevailing opinion of the Sabinians, the legatee became owner automatically on the dies veniens. But if the legatee refused the legacy, jurists considered the legacy never to have been acquired by the legatee. In the case of a legacy per damnationem, the legatee became creditor on the dies veniens. If the legacy was submitted to a condition, the dies cedens was delayed until the fulfillment of the condition. In the legacy of usufruct, since the usufruct was nontransferable, the dies cedens occurred only upon entry by the heirs. Casuistry abounded.
The possessor of the estate was protected by the praetor with a special interdict, called quod legatorum, against the legatee who took possession of his legacy inopportunely and without the possessor’s consent.
During the proceeding, however, the possessor of the estate had to give security for the restoration of the legacy in case the legatee proved to be chargeable.Fideicommissum
Fideicommissum, or trust, was an informal request made by the deceased to an heir or other beneficiary of his estate (e.g., a legatee or a recipient of a donation mortis causa) in favor of a third party (fideicommissarius). The trust might be left not only in a will but in any kind of codicil, even orally. Thus, not only testamentary heirs but also intestate heirs could be charged with a trust. Fideicommissa made possible the distribution of all the estate without the making of a will.
Fideicommissa constituted an alternative to legacies from the beginning of the Principate. There were many reasons for their introduction. No legal formality limited either the creation or the revocation of fideicommissa. They could benefit those who were unable to become heirs or legatees because of legal incapacity, or those who tried to avoid the Augustan marriage legislation. On the other hand, fideicommissa benefitted from the procedural advantages of the extraordinary cognition.
The object of a fideicommissum could be virtually anything, including the whole estate or a portion of it (the so-called fideicommissum hereditatis). In such cases, the fideicommissarius became successor to the whole inheritance or cosuccessor with the fiduciary heir. The fideicommissum hereditatis had obvious disadvantages for the heir. He could remain as a simple intermediary between the deceased and the fideicommissarius with the additional burden of being liable to the creditors of the deceased. In this situation, the acceptance of the inheritance by the heir was at risk. A resolution of the Senate, the senatus consultum Trebelianum (ca. 56 ce) placed the fideicommissarius in the position of an heir. The fideicommissarius would be responsible for the liabilities of the estate proportionally to his share of the estate.
Moreover, all the actions in favor of or against the heir could now be granted by the praetor in favor of or against the fideicommissarius (Gaius 2.253). A second senatorial resolution, the senatus consultum Pegasianum (c. 73 CE) extended the restriction of the lex Falcidia to the fideicommissa. As a result, the heir could keep a quarter of the estate free of fideicommissa. Conversely, the fideicommissarius could compel the heir to accept the inheritance. Under Justinian, legacies and fideicommissa were fused (C.J. 6.43.2.1). The new system was closer to the flexibility of the fideicommissa than to the formalities of the classic legacies.Further reading
Amelotti, Mario. Il testamento romano. Florence: Le Monnier, 1966.
Berger, Adolf. Encyclopedic Dictionary of Roman Law. Philadelphia, PA: The American Philosophical Society, 1953; reprint 1980.
Biondi, Biondo. Successione testamentaria e donazioni. 2nd ed. Milan: Giuffrè, 1955. Buckland, William Warwick. A Text-Book of Roman Law. 3rd ed. Revised by Peter
Stein, 282-404. Cambridge: Cambridge University Press, 1963.
Buckland, William Warwick, and Arnold D. McNair. Roman Law and Common Law. 2nd ed. Revised by F. H. Lawson, 143-192. Cambridge: Cambridge University Press, 1952.
Caseau, Beatrice and Sabine R. Huebner, eds. Inheritance, Law, and Religions in the Ancient and Mediaeval Worlds. Paris: Collège de France-CNRS, 2014.
Champlin, Edward. Final Judgments: Duty and Emotion in Roman Wills, 200 B.C. A.
D. 250. Berkeley: University of California Press, 1991.
Finnazi, Giovanni. La sostituzione pupillare. Naples: Jovene, 1997.
Frier, Bruce W, and Thomas A. J. McGinn. A Casebook on Roman Family Law. Oxford: Oxford University Press, 2001.
Gonzalez Roldan, Yuri. Il diritto ereditario in età adrianea: legislazione imperiale e senatus consulta. Bari: Cacucci, 2014.
Grosso, Giuseppe. I legati nel diritto romano. 2nd ed. Turin: G. Giappichelli, 1962.
Johnston, David.
The Roman Law of Trusts. Oxford: Clarendon Press, 1988.Johnston, David. “Succession.” In The Cambridge Companion to Roman Law, edited by David Johnston, 199-212. Cambridge and New York: Cambridge University Press, 2015.
Kaser, Max. Das romische Privatrecht. Vol. I, Das altromische, das vorklassische und klassische Recht, 668-765. 2nd ed. Munich: Beck Verlag, 1971.
Mouritsen, Henrik. The Freedman in the Roman World. Cambridge: Cambridge University Press, 2011.
Mousourakis, George. Fundamentals of Roman Private Law, 279-308. Berlin, Heidelberg: Springer, 2012.
Müller-Ehlen, Martina. Hereditatis petitio. Cologne, Weimar, and Vienna: Bohlau Verlag, 1998.
Novak, Maria. Wills in the Roman Empire: A Documentary Approach. Warsaw: University of Warsaw, 2015.
Nicholas, Barry. An Introduction to Roman Law, 234-270. Oxford: Clarendon Press, 1975.
Rüfner, Thomas. “Intestate Succession on Roman Law.” In Comparative Succession Law. II. Intestate Succession, edited by Kenneth Reid, Marius de Waal, and Reinhard Zimmermann, 1-32. Oxford and New York: Oxford University Press, 2015.
Rüfner, Thomas. “Testamentary Formalities in Roman Law.” In Comparative Succession Law. I. Testamentary Formalities, edited by Kenneth Reid, Marius de Waal, and Reinhard Zimmermann. Oxford and New York: Oxford University Press, 2011.
Scherillo, Gaetano. Corso di dirittto romano. Il testamento. 2 vols. Milan: La Golliardica, 1965-67.
Schulz, Fritz. Classical Roman Law, 203-333. Oxford: Clarendon Press, 1951.
Spina, Alessia. Ricerche sulla successione testamentaria nei responsa di Cervidio Scevola. Milano: Giuffrè, 2012.
Terranova, Francesca, Richerche sul testamento per aes et libram. I. Il ruolo del familiae emptor. Turin: G. Giappichelli Editore, 2011.
Thomas, J. A. C. Textbook of Roman Law, 483-526. Amsterdam, New York, and Oxford: North-Holland Publishing Company, 1976.
Voci, Pasquale. Diritto ereditario romano. 2 vols. 2nd ed. Milano: Giuffrè, 1963, 1967.
Waelkens, Laurent. Amne adverso. Roman Legal Heritage in European Culture, 257-275. Leuven: Leuven University Press, 2015.
Watson, Alan. The Law of Succession in the Later Roman Republic. Oxford: Clarendon Press, 1971.
Zimmermann, Reinhard. “Compulsory Heirship in Roman Law.” In Exploring the Law of Succession, edited by Kenneth Reid, Marius de Waal, and Reinhard Zimmermann, 27-48. Edinburgh: Edinburgh University Press, 2007.
Zulueta, Francis de. The Institutes of Gaius. Part II. Commentary. Oxford: Clarendon Press, 1953.
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More on the topic Acquisition of legacies:
- Legacies
- Restrictions on Legacies
- Legacies
- Types of legacies
- Acquisition, Maintenance and Loss of Possession
- MODES OF ACQUISITION OF CORPOREAL THINGS
- Acquisition of ownership
- The acquisition of ownership in Roman law took various forms.
- APPENDIX III. FORM USED BY SLAVE IN ACQUISITION BY MANCIPATIO, ETC.
- Acquisition of fruits
- Acquisition and Administration of the Inheritance
- Acquisition of the ownership of fruits
- The acquisition of proprietary interests was the chief concern of the law of property.
- In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.
- As previously noted, the Romans considered the law of succession to be part of the law of things, since succession was construed as a mode of acquisition of rights over things in a mass (per universitatem).
- Index
- Original modes of acquiring ownership