Institution of the heir

The institution of an heir (or heirs) was the main purpose of making a will (Gaius 2.229). Thus, originally, the testator had to make the appointment of the heirs first, before any other provision or indication.

If the testator did not specify portions for coheirs, their shares had to be equal. When a testator did institute heirs to specific portions of the inheritance (e.g., half for Titius, a fourth for Caius, and a fourth for Sempronia), he had to cover the whole property. If the sum of the portions did not add up to one, the will would be interpreted to distribute the remainder among the testa­mentary heirs. For instance, if the testator declared: “Titius and Caius shall be my heirs of my landed property,” jurists would interpret the will to give each instituted heir one half of the whole inheritance.

All family heirs had to be mentioned in the will, either to be instituted as heirs or to be expressly disinherited. Sons and posthumous children of both genders could be disinherited only by name (nominatim). But other family heirs (a wife under marital power, daughters, and grandchildren) could be disinherited by a general provision, e.g., “all other family members shall be disinherited.” The omission of a son or posthumous child made the will null and void. If the other family members were omitted, the testament remained

The law of succession 173 valid, but the omitted members would receive a share of the inheritance despite their omission and notwithstanding other provisions of the will.

An heir could be appointed conditionally, i.e., depending on an event both future and uncertain: e.g., “Titius shall be my heir if he has at least three children when I die.” The condition had to be satisfied before entry into the inheritance. Conditional institutions were submitted to some limits, however. Impossible, immoral, and illegal conditions, for instance, were struck: e.g., “Titius shall be heir if he touches the sun with his right hand,” or “Titius shall be heir if he commits adultery,” or “Titius shall be heir if he institutes Caius as heir.” Institutions limited by a future but certain event (e.g., “Caius shall be my heir until he turns twenty-five”) or submitted to a resolutory or dissolving condition (e.g., “Titius shall be my heir until he is married”) were also struck as conflicting with the rule of “once an heir, always an heir” (semel heres, semper heres). Under classical law, the following testamentary provision was also considered to be against the “semel heres” rule: “My wife Titia shall be my unique heir; after her death, my children Caius and Sempronius shall be my heirs.”