I. GENERAL PRINCIPLES-- CIVIL LAW

Universal succession. By this is meant the succession of one man (or several jointly) to the sum of the rights and duties of another.

Universal succession might occur in several ways, by adrogatio, for example, or by the acquisition of manus over a woman already sui iuris, but by far the most important is that with which we are here concerned, universal succession on death.

Any treatment of this subject must ultimately fall into two parts according as there is or is not a will, but some fundamental notions are common to both.

Heres, hereditas.

A glance at modern English law may make this peculiarity clearer. An English will usually appoints an executor (or execu­tors) to wind up the estate and to carry out the wishes of the testator, but the executor is only superficially the counterpart of the heres. On the one hand the appointment of an executor is not essential. If none is appointed or none of those named is willing to act, the court will appoint an administrator; but if a Roman will omitted to institute a heres, or the instituted heres refused to act, the will was void and an intestacy resulted. On the other hand the modern executor is not a successor in the Roman sense. There is no merger of the two legal personalities. The executor is merely a personal representative appointed to carry out the wishes of the testator, and he is therefore neither liable for debts of the testator in excess of the assets, nor entitled to any surplus not expressly disposed of by him. The heres, on the other hand, takes both burden and benefit. Thus, the damnosa hereditas (in which the liabilities exceed the assets) presents, as we shall see, a stock problem to the Roman lawyer. Equally, the right of the heres to any undistributed surplus is funda­mental to the idea of universal succession. It is, for example, implicit in the maxim that a man cannot die partly testate and partly intestate,¹ i.e. that a man cannot by will dispose of only part of his estate, allowing the rest to pass, as it would in English law and in other systems, to those entitled on intestacy.

¹ ‘Nemo pro parte testatus pro parte intestatus decedere potest.’ only succeed to the whole hereditas, will accord to him the whole. (The logical alternative was to declare the will void for lack of a heres, but the Romans had, as we shall see,¹ a deep-rooted dislike of intestacy.)

Nor was the possibility of appointing several heredes to different shares any contradiction of the principle of universal succession. They succeeded not to separate parts of the hereditas, but to undivided shares of the whole. Thus, if X was appointed heres to a quarter, and Y to three quarters, each was joint owner, in those proportions, of everything comprised in the hereditas (and was liable for the debts in the same proportions). The ownership was divided, not the things themselves: if the hereditas included a four-acre field, X was entitled, not to one acre, but to a quarter share of the whole field. Any joint heres could call for a division of the common property, and in historical times this was no doubt what usually happened, but the principle of the unity of the hereditas persisted.

This continuation of the dead man in his heres or heredes probably had its roots in social and religious rather than in economic considerations. It manifested the continuity of the patriarchal family and ensured that there should be someone on whom the duty of maintaining the family sacra would devolve. Thus the first principle of the early law of succession is that the inheritance devolves on the dead man’s children. Their joint succession is, as Gaius puts it, legitima simul ac naturalis—derived on the one hand from man-made law but on the other hand expressing the natural continuation of the paterfamilias in his children.

Types of heres. Though all heredes are alike in that they are universal successors, they differ in that some acquire the charac­ter of heres automatically—without their consent and even with­out their knowledge—whereas others do so only if and when they make a voluntary act of acceptance. Three types must be dis­tinguished—

(a) Sui heredes. The suus heres is the ‘family’ heres who has just

¹ Below, p. 251.

been mentioned. He must now be more accurately defined. He is any person in the potestas or manus of the dead man who becomes sui iuris by his death. The principle is exclusively agnatic. The wife in manu takes her place along with the sons and daughters in potestate and with any adopted children. They are all jointly sui heredes. Conversely, emancipated children or children given in adoption are excluded.

It is the sui heredes who are primarily entitled on the death of the paterfamilias, and their vested interest in the family property in early law is reflected in their name. They are ‘heirs to them­selves’. As Gaius puts it, even in the lifetime of their father they are in some way already owners of the family property. In this we hear an echo of the conception of the paterfamilias as the transitory head of a self-perpetuating organism, as the trustee of the family property rather than the absolute owner. This con­ception had of course long since disappeared and had been replaced by that of the paterfamilias as Gaius knew him, an autocrat enjoying in his lifetime untrammelled powers of aliena­tion over the family property, and able by will to pass it quite outside the agnatic relationship.

Since the sui succeeded to property which was in this vestigial sense already theirs, the succession took effect immediately on the death of the paterfamilias. The continuity of the family is reflected here also. There was no gap in the ownership of the family property or in the conduct of the family sacra. ‘The King is dead, long live the King’ expresses the same principle. The sui, moreover, had no power of refusal. They were sui et necessarii. The continuity of the family is more important than the interests of the individual.

The suus heres is the model of the universal successor. The others are formed more or less after this model, but it is only in the suus that the peculiarities of the Roman institution find their explanation.

(b) Extranei heredes. The hereditas might pass to persons outside the family—either by a properly drafted will or, in the absence of sui heredes, by the rules of intestate succession. These extranei heredes differed from the sui in that their succession was neither automatic nor immediate. They had a choice (and are there­fore also called heredes voluntarii), and they did not acquire the character of heres until they had manifested their decision to ‘enter upon’ the inheritance (adire hereditatem), either by a set form of words (cretid) or by an act which could be construed as showing that they had made such a decision (pro herede gestid}. As to this last there was much subtle argument, and the prospective heres anxious to discover whether the hereditas was worth enter­ing upon had to tread carefully.

(r).Necessarii heredes.

Devices to mitigate the inconveniences of universal succession. There were three principal inconveniences: (i) the burden on the heres of the damnosa hereditas’, (ii) the converse difficulty of the heavily indebted heres of a solvent man; (iii) the quandary in which the heres extraneus might find himself, that it was difficult to discover whether the inheritance was worth accepting without entering on it. All these inconveniences derived directly from the principle of universal succession, and any direct attack on them would have struck at the root of the whole system. From such drastic measures the lawyers were, as always, averse. The Praetor’s Edict could achieve the substance of what was needed, while leaving the formal statement of the law unaltered. The devices used are complicated and technical, but they provide a good illustration of the methods of Praetorian law reform.

(i)"Times New Roman"'>  The burden of the damnosa hereditas falls on the heres suus et necessarius equally with the heres necessarius, but the means devised to relieve them differed.

(a) Separatio bonorum in favour of heres necessarius. As we have seen, the testator’s usual purpose in instituting such a heres was to prevent the stigma of insolvency from attaching to his name. This would happen if the selling up of the estate by the creditors, which was the consequence and the public manifesta­tion of insolvency, took place in the testator’s name. It was important therefore that the sale should be of the estate of the manumitted slave, and that any actions brought in the course of getting in the estate should be brought in his name. This purpose of the testator’s was achieved by the automatic entry of the heir on the inheritance, but there remained the other consequence that the heir was saddled with any debts which had not been satisfied by the sale of the inheritance. It was doubtless no part of the testator’s purpose to confer this benefit on the creditors, and the lawyers saw no reason to insist on it. The Praetor’s Edict therefore provided that the heres necessarius might ask that the assets which he acquired after the death of the testator, i.e. those which he acquired in his own capacity, should be kept separate from those which he had acquired by succession. In this way both the formal legal position that the heir was liable for the testator’s debts would be maintained, and the substantial result of reversing the principle of universal succession would be achieved.

(b} Relief of the heres suus et necessarius. Here the Romans saw no reason why the suus rather than the dead man should bear the stigma of insolvency. The Praetor therefore gave the different relief of allowing the heir to ‘abstain from the inherit­ance’ (sometimes called beneficium abstinendi). The selling up of the estate took place in the name of the dead man, and the Praetor simply refused to grant any actions against the heir. The heir was thus able to abstain from the disadvantageous consequences of his position, but he was nevertheless still heir. In consequence the will still took effect as far as possible: the appointment of a tutor, for example, was valid, and if, when the creditors had been satisfied, there was after all a surplus,

the heir and the legatees, if any, were entitled to it in the ordi­nary way.

(ii)   Separatio bonorum in favour of creditors. The converse case presented a similar difficulty. The inheritance might be solvent and the heir (whether suus or extraneus) not. In this case the creditors of the dead man (and the wealthier a man the more likely he is to have creditors) might be unfairly disappointed of their expectations by having to share equally with the creditors of the heir. The device which the Praetor adopted was another form of separatio bonorum. The dead man’s creditors could ask for the two estates to be kept separate until their claims had been satisfied.

(iii)  Beneficium inventarii. The problem facing the heres extraneus was different. He could choose whether to accept or refuse the inheritance, but the choice might be difficult without an investi­gation of the solvency of the inheritance, and an adequate investigation might be construed as pro herede gestio. From this dilemma the law provided no escape until Justinian allowed the beneficium inventarii. If the heir made an inventory of the inherit­ance, which must be begun within 30 days of his knowing of his right and completed within a further 60, he would not be liable beyond the assets. This made, in effect, a fundamental altera­tion in the character of the keres. He now resembled the modern executor and residuary legatee. He was only liable for the debts to the extent of the estate, and he was entitled to any undistri­buted residue. But the parallel must not be pressed too far. He could still refuse the inheritance altogether, and then the rule that without an heir a will is void would still apply. And if he accepted but did not choose to take an inventory, or took it too late, the old law still held good.

In the different social conditions of the medieval and modern world the suus heres and the heres necessarius had of course no place, but the principle of universal succession was retained and with it the beneficium inventarii and the separatio bonorum in favour of the creditors. They still exist in French law, though the German Civil Code, while maintaining the principle of universal suc­cession, has devised other means to mitigate its disadvantages.

Semel heres, semper heres. ‘Once an heir, always an heir.’ This maxim, coined by the commentators, expresses a last funda­mental principle of universal succession. It is indeed implicit in much of what has gone before. The hereditas as a whole, or the quality of being heres, cannot be shifted from one person to another. This principle has two practical consequences: the heres cannot transfer the hereditas to another person; and the testator cannot provide that first one person shall be heres for a certain time (or for life), and then another person shall succeed.

(i)   Heres may not transfer hereditas. He cannot, either before or after entry, make another person heres in his place, either by an act of transfer or by revoking his acceptance and allowing the person next entitled to enter. He could, and commonly did, sell the inheritance in the sense that he sold the corporeal things included in it, and transferred any rights by cessio actionum, but he was still heres, and so would still be liable for the debts. He therefore habitually exacted from the purchaser an undertaking by stipulation to indemnify him against any liability. Techni­calities of the forms of action apart, he might then seem to have achieved the practical result of making the purchaser heres. The insolvency or disappearance of the purchaser would, however, show that he had not.

There was one exception to the inalienability of the hereditas (though not to the principle semel heres, semper heres}. By the civil law the person entitled on intestacy if there were no sui heredes was the nearest agnate.¹ Gaius tells us that he could, before entry, convey the hereditas by in iure cessio (the method appro­priate to such a res incorporalis} and would thereby make the recipient heres. This power was not however extended to the testamentary heir, perhaps because it would have enabled him to exclude the person next entitled under the will and thereby to defeat the intention of the testator.

The lawyers devised an ingenious method by which a testator could enable his hereditas to be transferred before entry. If he wished to give to X the choice of either entering on the in­heritance or transferring it to someone else, he would insti­tute as his heres not X but one of X’s slaves. The slave was not of course capable of being heres, but would by entry acquire the hereditas, like any other property, for his master. Since, how­ever, a hereditas included liabilities as well as assets, and since

¹ See below, p. 248.

a slave could not burden his master without his consent, the slave could make no effective entry on the hereditas without his master’s authorization. On the other hand, since it was the slave and not X who was named in the will, it was the slave who must enter, and it would be the slave’s master at the time of the entry who would acquire the inheritance. If, therefore, X sold the slave before he had entered, the purchaser would acquire not merely the slave but also the power to acquire the inheritance. He was in effect buying the slave together with an option on the inheritance, and this would of course be reflected in the purchase price. The hereditas could in this way be made freely negotiable.

(ii)   Testator may not appoint successive heredes. From the principle semel heres, semper heres it also followed that a testator could not provide that X should be heres and on X’s death (or after a certain time) Y should be heres. This meant that the common provision in a modern English will, ‘to my wife for life and then to my children’, was not in the old civil law open to the Roman testator. He could indeed partially achieve his object by giving his wife a usufruct of specific things, but even this would be restricted, until the recognition of quasi-usufruct, to non­fungible things. In the early Empire, however, the development of the fideicommissum hereditatis¹ did at last make possible the creation of successive interests in the hereditas.