5. GIFTS OUT OF THE INHERITANCE

To institute an heir and to devolve upon him the hereditas was the essential function of a will, but very early there developed other functions also—the manumission of slaves, the appointment of tutors, and especially the making of gifts out of the inheritance.

Such gifts normally took the form of legacies.

Forms of legacy. There were four forms of legacy (legatum), two basic forms each with one variant. The basic forms only need be dealt with here. Each required appropriate formal words, and these must not precede the institution of the heir, upon which their validity depended. The two forms differed essentially in that one created in the legatee a right in rem in respect of the thing bequeathed, the other only a right in personam against the heres that he should convey the thing.

A legatum per vindicationem (for which the appropriate words were originally do, lego, ‘I give and bequeath’) vested in the legatee the ownership of the thing immediately on the entry of the heres. The legatee could then assert his ownership by vindicatio against the heres or anyone else in possession, without the need for any further act by the heres. He thus enjoyed the usual advantages of a right in rem, except that if the liabilities of the inheritance exceeded the assets or the lex Falcidia applied, the amount of the legacy was automatically reduced. The advantages of this form of legacy also, however, entailed restrictions on its scope. It was confined to things which could be the object of a vindicatio—specific corporeal things and iura in re aliena—and moreover only things of which the testator had the dominium ex iure Quiritium both when he made the will and when he died (i.e.

things which he could himself have vindicated). A legacy of, for example, a slave of whom the testator had only bonitary ownership when he made the will but whom he had since then usucapted would be void. The only exception allowed, obviously for practical reasons, was that for fungible things (e.g. ‘the wine in my cellar’) dominium at the time of death was sufficient. A particularly important consequence was that a bequest of money, except in the very limited form of the coins held by the testator at his death, could not be made in this way.

A legatum per damnationem (for which the usual form was heres meus dare damnas esto, ‘let my heir be strictly bound to convey’) created only a right in personam against the heres, but had the advantage of much greater flexibility. Anything which could be bequeathed by legacy per vindicationem could be bequeathed in this way also, and without the need for dominium ex iure Quiritium in the testator. Indeed it was possible to make a legacy of something belonging to someone else. The heres was then bound to buy the thing for the legatee or to pay him the value of it if the owner would not sell. Moreover a legacy might be of ‘future things’ (e.g. ‘the first child of my slave-woman’), of an annuity, of a fraction of the net inheritance, or it might be the gift of his peculium to a slave manumitted by the will; it might even be of an act to be performed by the heres (to build a house for the legatee, or to pay off his debts).

The restricted scope of the legacy per vindicationem and especially the requirement that the testator must have been quiritary owner of the thing both when he made the will and when he died made it a treacherous form in which to frame a gift. A senatusconsultum in the reign of Nero (a.d. 54-68) removed this pitfail. From this Sc. Neronianum was derived the rule that if a legacy was expressed in an inappropriate form it should be construed as if expressed in the most favourable form.

As between the two forms with which we are concerned this meant that if a gift was void because expressed as a legacy per vindicationem but would have been valid per damnationem, it should be read as if expressed in the latter form. A legacy would thus no longer fail merely because an inappropriate form was used, but apparently a testator still had to use one of the recognized forms of words, until a constitution of a.d. 339 made even this unnecessary and one more of the hazards of the home-made will was removed. Justinian took the final step of subjecting all legacies to the same rules and allowing either the actio in rem or the actio in personam according to the circumstances.

A legacy, like the institution of an heir or the manumission of a slave, could be conditional, and a conditional legacy could serve many purposes. For example, if the testator wished to secure the manumission of a slave belonging to another person he could attempt to do so by giving to that person a legacy conditional on his manumitting the slave.

Restrictions on amount of legacies—lex Falcidia. Legacies were a charge on the heres—he was only entitled to what remained after paying the debts and satisfying the legacies. There was here a source of danger to the will. If a testator miscalculated the value of his property (or if, as is more probable, its value had fallen after he made the will), the legacies might absorb so much of the inheritance that the heres, if he were an extraneus and therefore had the choice, would not find it worth his while to enter. This difficulty was met by the lex Falcidia (40 b.c.). Legacies were not to be allowed to reduce what remained to the heir below a quarter of the value of the net inheritance (i.e. after deducting funeral expenses, the value of slaves manumitted, &c.). If less than a quarter was left, the legacies were reduced pro rata. If there were several heirs, each was entitled to a quarter of his share of the inheritance.

Donatio mortis causa.

This was a gift made in contemplation of death in some particular eventuality (e.g. a dangerous journey which the donor was about to undertake), and only becoming fully effective if the donee survived the donor. Until then it was revocable either in the sense that no right passed to the donee (suspensive condition) or, more often, that the donee could be required to restore what he had received (resolutive condition). Like an ordinary gift {donatio inter vivos}, it could be any voluntary enrichment of the donee by the donor, whether by the transfer of property, or the creation of a contractual right, or the extinction of a debt. In the later law there was no need for any immediate prospect of death, the gift being said to be made in contemplation of mortality rather than of death, and a man could in this way in effect make gifts out of his inheritance without the need of making a will or of satisfying any of the formal requirements of a legacy. Because of its substantial similarity to a legacy it was, however, subjected to some of the same rules. In general only those persons who could take a legacy could take a donatio mortis causa; by a constitution of Septimius Severus (a.d. 193-21 i) the heres could assert his entitlement under the lex Falcidia against a donee mortis causa; and, at any rate in the law of Justinian, the gift could be reduced by the claims of the debtors of the inheritance, and would be taken into account in calculating the donee’s legitima portio.

Fideicommissa. Certain classes of person were incapable of being either heres or legatee. These included peregrines (who, it must be remembered, might be close relatives), Junian Latins, ‘uncertain persons’ (including what we should call corporate bodies and persons not born at the time of the will), and, under Augustus’ legislation for the encouragement of marriage and the bearing of children, most unmarried adults (coelibes} and married persons who were childless (prbi—they were allowed to take only half of whatever they were given). In order to circumvent these and other restrictions on legacies the practice had grown up before the end of the Republic of requesting a validly appointed heir or legatee to make over the whole or some part of what he received to the person whom the testator wished to benefit.

Such a request was without legal effect: its fulfilment was ‘committed to the faith of’ the heir or legatee. In a few special cases, however, Augustus ordered the consuls to intervene administratively to give effect to them, and thereafter they rapidly became a recognized legal institution. They remained, however, outside the formulary system and the jurisdiction of the Urban Praetor, and were enforced under extraordinaria cognitio by a specially appointed Praetor fideicommissarius. They are thus not a Praetorian but an imperial creation, elaborated by the jurists, and provide an illustration of the changing basis of the constitution. The fideicommissum in its developed form was an astonishingly flexible institution which was allowed to ignore a number of fundamental principles of the ordinary law of succession. Neither writing nor formal words were necessary. It was sufficient that the intention to make a request was clear. The person charged with a fideicommissum {fiduciarius') could be anyone who took any benefit from the inheritance, even the heres ab intestato, so that it was now possible to make a bequest without a will. The scope offideicommissa was as wide as that of legacies per damnationem and in one important respect wider: there could be a fideicommissum to buy and manumit a slave belonging to a third person. The original advantage, however, that the beneficiary {fideicommissarius) could be someone who was incapable of being heres or legatee was gradually whittled away so that by the time of Gaius the only substantial category left was that of the Junian Latin.

The most important use of the fideicommissum was not, however, to provide a more flexible substitute for the legacy of individual things, but to effect a transfer of the hereditas (or part of it). The heres was requested to transfer the hereditas to the fideicommissarius either immediately or (and herein lay the importance of the device) at some later date or on the occurrence of some future event.

Since a fideicommissum could be imposed even on a fideicommissarius and (originally) in favour of persons not yet born, the Roman could satisfy the common human desire, until now frustrated by the rule semel heres, semper heres, to ‘tie up’ his property—to control it beyond the hands of the first recipient, perhaps in perpetuity. He could make his son his heir, or give him by legacy or fideicommissum a piece of land, subject to a fideicommissum requiring him to preserve it and on his death to transfer it to his eldest son, who would in turn be required to transfer it to his son and so forth. Attempts to create such ‘perpetuities’ present a difficult problem to the lawyer or lawgiver—that of striking a balance between the claims of the living and the dead. The satisfaction of a man’s natural desire to ensure that his property will serve certain purposes even after his death entails the disadvantage to his successors and to society as a whole that the adventuring of capital is thereby restricted. Whether for this reason or not, Hadrian forbade the making of fideicommissa in favour of‘uncertain persons’, and testators were left to the device of forbidding alienation outside the family, but even such family settlements seem to have been restricted to persons alive at the testator’s death and the first unborn generation. Justinian, however, once more allowed fideicommissa in favour of‘uncertain persons’. His purpose was probably to encourage gifts to charities, but the result was also to make possible unrestricted perpetuities. Faced later with just such a case, he decreed in a Novel that thereafter property could not be tied up for more than four generations. This is a very long period indeed by the standards of English law, but it remained the rule in most systems derived from Roman law, often until modern times. ‘Fideicommissary substitutions’, as they were called, were sufficiently popular among the French nobility for the period to be reduced by legislation in 1560 to two generations, and one of the early acts of the reformers of the French Revolution was to forbid such substitutions altogether. This prohibition was repeated, with very limited exceptions, in the Code Civil* and reappears in almost all the codes derived from it. The modern German law takes a different route. It still allows the appointment of successive heirs, but in general declares void any such appointment which has not taken effect within thirty years of the death of the testator.

There are obvious affinities between the fideicommissum and the English trust. The fideicommissum cannot however be created inter vivos, and the position of the fideicommissary is different from that of the trustee. On the one hand, where the fideicommissum requires the immediate transfer of the property his position is merely formal and transitory, and on the other hand where the fideicommissum creates a settlement he acquires a full beneficial interest. It seems, however, that, at any rate in Justinian’s law, the fideicommissary could, like the beneficiary of a trust, claim the property from anyone who had taken it with notice of the fideicommissum.

Assimilation of fideicommissum, legacy, and donatio mortis causa. Justinian declares that legacy and donatio mortis causa have become almost indistinguishable, and that he has wholly assimilated legacy and fideicommissum. The wish is to some extent here father to the thought. A handful of differences remained. As between legacy and fideicommissum, for example, it was still the rule that a gift of freedom to a third person’s slave could only be by fideicommissum, and therefore the slave still became the freedman of the fiduciarius and not of the testator, as he would have been if the gift could have been made by legacy. And as between donatio mortis causa and legacy, it was still the rule that a donatio mortis causa vested immediately on the death, not on the entry of the heir.

Codicils. The English codicil is merely a postscript to a will which differs not at all, in the formalities required and often in substance also, from a will. The Roman codicil, however, differed both in form and in substance from the will. It was an informal document (literally ‘little book’) dealing with the disposal, in any way other than by instituting an heir, of the whole or any part of an inheritance. It is mentioned here because, though codicils and fideicommissa have no necessary connexion, the two were in their origin and in their subsequent history closely related. We are told that one Lentulus when dying in Africa wrote codicils, which he had confirmed by anticipation in a will, requesting Augustus by way of fideicommissum to do something. Augustus carried out his wishes and then asked the lawyers whether codicils were consistent with the law. Opinion was in favour, the argument of convenience being adduced that it was difficult when abroad to satisfy the formalities of a will, and when Labeo made them there could be no further doubt of their legality. The developed law distinguished between codicils which had been confirmed by a will, either subsequently or by anticipation, and those which either had not been confirmed or were directed to the heres ab intestato. The former were taken to be incorporated in the will and could do anything which a will could do except institute or disinherit an heir; the latter could only create fideicommissa. The later law tended to require witnesses for codicils as for wills, Justinian fixing the number at five.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

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