Heirs

Pomponius, Sabinus, book 5: An heir succeeds to the whole legal position of the deceased and not only to the ownership of individual things, because the assets which take the form of debts due also pass to the heir.

The principle of universal succession meant that the heir stepped into the shoes of the testator for all legal purposes, taking the inheritance subject to the provi­sions of the will. The heir was the administrator of the estate and often the chief beneficiary. He was responsible for the payment of the testator's debts and legacies. Moreover, he had to pay the inheritance tax (at 5 per cent) that Augustus intro­duced in order to pay for his armies. It was later raised to 10 per cent by Caracalla but was abolished by Justinian. However, the heir could deduct the tax proportion­ately from the legacies in the will, unless directed otherwise by the testator.

8.5.1 Types of heir

The legal position of the appointed heir depended partly on the category of heir to which he belonged. There were three types of heir: sui et necessarii heredes, necessarii heredes, and extranei heredes. See Frier and McGinn, Casebook, 353-66.

8.5.1.1 Sui et necessarii heredes

(Inst.Gai.2.152., D.38.16.)

This category comprised sui heredes, i.e. all those who became sui juris on the tes­tator's death (including children born after his death). They were termed necessarii because they could not refuse the inheritance if they were appointed—they neces­sarily became heirs on the death of the testator:

Gaius, Lex Julia etPapia, book 13: In the case of sui heredes, formal acceptance is not a requisite because they immediately fall to be heirs by operation of law. (D.38.16.14.)

What if the estate was insolvent? The ius civile position was that sui (their shortened name) had to pay the debts out of their own pockets, if necessary.

Ulpian, Edict, book 61: If a person who is suus heres, after having refrained from [dealing with the inheritance], then asks for time for consideration, let us see whether he ought to succeed with his request; and the preferable view is that he ought to succeed in his request on cause shown, where the property has not yet been sold. (D.28.8.8.)

Justinian fixed a maximum period of three years for sui to make up their minds (if the estate had not been realized by the creditors before then). If the ius abstinendi was exercised, and the creditors sold off the estate, sui were entitled to any surplus, i.e. the balance after all debts and legacies had been paid. The provisions of the will were upheld as far as possible—manumissions were valid providing that they were not intended to defraud creditors.

8.5.1.2 Necessarii heredes

(C.6.27.)

These were slaves who had been voluntarily manumitted by will and appointed as heirs. The appointment was considered to be ineffective unless the slave was expressly freed, but Justinian eventually provided that manumission could be implied from the appointment. The normal purpose of appointing a slave as heir was to saddle him with the stigma of a possible insolvency, since the slave could not refuse the inheritance—he was a necessarius.

A necessarius was given some protection by the praetor as regards an insolvent estate. He was entitled to retain as his separate property anything personally acquired by him after the testator's death (other than as heir) and things owed to him by the deceased. His remedy was to petition for separation of property (separa- tio bonorum) providing that he had not meddled with the estate:

Ulpian, Edict, book 64: It should further be known that a slave, granted his freedom and made necessarius heres to an inheritance, since he cannot refuse it, can petition for separation, doubtless because, if he has no dealings with his patron's estate, he is in such a case that any subsequent acquisitions that he makes are to be appropriated to himself. So also if the testa­tor owe him anything. (D.42.6.1.18.)

Consequently, the creditors were entitled only to the assets of the estate and any­thing acquired after the testator's death by the necessarius in his capacity as heir.

8.5.1.3 Extranei

(Inst.Gai.2.161.-73.)

All testamentary heirs other than sui and necessarii were extranei—they were 'extraneous' in the sense that usually they were not members of the testator's household. The position of extranei was fundamentally different from that of the other types of heir because extranei could refuse to accept—there was no automatic vesting of the inheritance. An acceptance was valid only if the heir took the whole of his interest in the inheritance:

Paul, Sabinas, book 2: A person who can take up a whole inheritance cannot, by splitting it up, accept it only in part. (Ulpian, Sabinas, book 4][2]: But even if someone has been instituted in respect of several shares in the inheritance of the same person, he cannot reject certain shares and accept certain shares. (D.29.2.1.-2.)

Acceptance was affected in the Republic by a formal declaration (cretio) usually made before witnesses.

In the absence of the requirement of a cretio, the inheritance could be accepted informally by any act that showed acceptance, e.g. behaving as an heir by admin­istering or meddling with the estate. But acting out of a sense of duty, piety, or a desire simply to protect the inheritance did not necessarily constitute acceptance:

Ulpian, Edict, hook 61: A person is regarded as acting as heir when he does some act as if he were heir... but acting as heir is not so much a matter of action as of mind; for he ought to have in mind that he wishes to be heir. But if he has done something as a matter of piety, if he has done something as a matter of protection, if he has acted not as heir, but as owner under some other title, it is clear that he is not regarded as having acted as heir. (D. 2 9.2.2 Opr.)

The extraneus would naturally shirk at accepting a damnosa hereditas—a ruinous inheritance—although he might accept it out of a feeling of respect or gratitude to the testator for past services.

What was the position regarding the inheritance before the extraneus decided whether to accept? Assuming there were no sul or necessarii, the inheritance was vacant and could thus be acquired by a stranger through usucapio (see 7.2.1). A vacant inheritance could acquire rights and duties through contracts made by slaves belong­ing to the inheritance, or because of delicts committed by or against them. Such obli­gations attached to the person who eventually became heir, 'lb that extent a vacant inheritance arguably had a measure of legal personality, although the jurists preferred to think of the inheritance rather as 'sustaining' the personality of the deceased:

Lllpian, Disputations, book 4: Whenever the slave of an inheritance takes a stipulation or receives something by delivery, his act is effective by virtue of the personality of the deceased, as Julian maintains; his view has prevailed that the person to whom to look is the testator. [Ulpian, Census, book 4][34]: For the inheritance sustains the personality of the deceased, not that of the heir... (D.41.1.33.2., 34.)

Although this view was the predominant one in the classical period, some jurists thought that an inheritance represented the personality of the prospective heir. There was, in any case, general agreement that once the extraneus accepted, his posi­tion as heir operated retrospectively to the testator's death—he was subject to all the rights and duties that arose in respect of the inheritance between the testator's death and his own acceptance:

Florentinos, Institutes, book 8: Whatever the time at which an heir accepts an inheritance, he is understood to have succeeded to the deceased as from the time of death. (D.29.2.54.)

How was an interest in an intestate estate accepted by those who had a right to refuse, (e.g.

Once the heir accepted (or refused) the inheritance, the decision was normally irrevocable. Minors, however, could change their minds and seek restitutio in inte­grum, as could those whose decision had not been freely made, e.g. through duress.

8.5.2 Debts

An heir was responsible for the payment of the deceased's debts. If there were two or more heirs, they had to pay the debts in proportion to their respective shares in the inheritance unless the testator directed otherwise. The payment of debts could cre­ate some difficulties in practice. Consequently, certain devices were made available to help creditors and heirs, particularly separatio bonorum and beneftcium inventarii.

8.5.2.1 Separatio bonorum for creditors

Because of the principle of universal succession, the heir’s personal estate was regarded as merging with that of the deceased. That could disadvantage the credi­tors (including legatees) of the deceased if the heir was personally insolvent. The praetor therefore allowed them to apply for separatio bonorum, which ensured that the two estates were kept separate until the debts had been paid out of the inheritance—the creditors of the deceased were entitled to payment in full from the inheritance in priority to the heir’s creditors. There was a time limit of five years within which claims under separatio had to be settled, although it is not clear whether the limitation period operated before Justinian. Separatio was not possible if the heir had already sold the inheritance in good faith.

8.5.2.2 Beneficium inventarii

Justinian greatly improved the position of all heirs by introducing the beneficium inventarii ('the benefit of an inventory'). An heir's liability for the deceased's debts was confined to the assets of the inheritance, provided that he made an inventory of the deceased's estate. Strict time limits were imposed: the inventory had to be begun within a month and finished within three months of a person discovering that he was heir. The inventory had to be drawn up formally before witnesses. The beneficium inventarii affected the position of the extraneus, in particular, since he was now much more likely to accept a suspect inheritance. It is surprising that the device had not been introduced much earlier. A possible reason for the delay was the development of the practice whereby extranei agreed to accept inheritances on condition that they paid only a proportion of what was due to the creditors.

8.5.3 Benefits

The principle of universal succession meant that the heir inherited the rights and benefits of the deceased, not just the debts and obligations. The heir would thus be able to enforce any contractual and delictual obligations owed to the deceased that had not been extinguished by death.

The chief ins civile remedy for the heir against anyone wrongfully in possession of the whole or part of an inheritance was the hereditas petitio. It was an action in rem for the recovery of the relevant property. And the defendant would have to account for his dealings with the property and any resulting profits or losses:

Ulpian, Edict, book 15: Furthermore, he who is in possession of payments made for things belonging to the inheritance and likewise he who has exacted money from a debtor of the inheritance are also liable to a claim for the inheritance. (£>.5.3.16.1.)

The rule that the defendant was liable for all losses caused by his acts was confined, after Hadrian, to those who had possessed in bad faith. Bona fide possessors were liable only to the extent of their actual enrichment at the time of joinder of issue. Apart from the ius civile remedies, an heir could seek praetorian help through bono­rum possessio (see generally 8.3.2).

Universal succession is a familiar concept in modern systems. In continental codes the position is generally very similar to the Roman—the inheritance passes automatically to the heirs on the deceased's death. But in England the estate passes to the deceased's personal representatives, who must administer it and distribute the residue (after payment of debts and liabilities) to those entitled under his will or intestacy.

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