Legacies

(Chiefly Inst.Gai.2.91.-2.245., Inst.2.20„ D.30., 31., 32., C.6.37.)

Although the appointment of an heir was the most important function of a Roman will, the heart of the will lay in the legacies granted by the testator.

Legacies were governed by extremely detailed rules, as evidenced by their lengthy treatment in the Digest, which contains separate titles on legacies of furniture, dow­ries, stores, provisions, valuables, and sections on gifts of perfumes, clothes, statues, wine, and oil, inter alia. There is little purpose in struggling through the morass of detail involved—only the barest of outlines will be attempted. It must be empha­sized at the outset how wide the potential scope of legacies was. It was not just corporeal things that could be gifted to legatees, but also a host of rights, interests, and privileges, e.g. servitudes, maintenance, release from debts; even entitlement to the distribution of free corn—in D.31.87pr., we find Paul discussing a legacy of a ticket 'for the corn dole'.

8.6.1 Forms of legacy

Legacies could take several forms, the most important of which were legacies per vindicationem and those per damnationem.

8.6.1.1 Legacies per vindicationem

Such legacies took their name from the right of the legatee to bring a vindicatio, if necessary, to obtain the property from the person in possession. The legatee’s right arose as soon as the heir entered on the inheritance and it seems that ownership of the legacy passed directly from the testator to the legatee without vesting in the heir. However, if the legacy was conditional, the legatee could not bring a vindicatio until the condition was satisfied.

Ulpian, Edict, book 19: Anything left as a conditional legacy belongs to the heirs in the interim.... (D.10.2.12.2.)

In order to create a legacy per vindicationem, the testator originally had to use the words 'do, lego’ ('I give and bequeath') but Gaius tells us (Inst.Gai.2.193.) that either word was acceptable and that other similar expressions sufficed, at least by his time. The legacy was void unless the testator was the owner of the property both at the time of making the will and at his death—this was a major limitation. However, in the case of fungibles (see 6.1.4), it was sufficient if the testator had been their owner when he died.

8.6.1.2 Legacies per damnationem

These legacies took their name from the instruction by the testator to the heir to give the legacy to the legatee—the heir was charged (usually by the words damnas esto) with making the gift. It was a less direct form of legacy in that the testator obliged the heir to give to the legatee, whereas in the case of a legacy per vindica­tionem the testator did the giving himself. Set words had to be used originally (e.g. a common form was: Heres meus Stichum servum dare damnas esto—let my heir be condemned to give [quiritary ownership] of the slave called Stichus to the legatee), but the form was relaxed by the classical period. The legatee obtained a right in personam against the heir, enforceable by the actio ex testamento (double damages if the heir denied liability unsuccessfully).

Legacies per damnationem were of very wide scope since the testator could bequeath virtually anything, including property he did not own, e.g. property belonging to the heir or to some other person. However, as the legatee did not have a right in rem, the heir was not obliged to give the specified thing; the equivalent in value sufficed.

8.6.1.3 Other forms of legacy

(a) Legacy per praeceptionem Such a legacy could be created if the testator used the word praecipito (‘let him take before'). This allowed the legatee to take the gift before the inheritance was distributed. The Sabinians regarded such a legacy as possible only if made in favour of a joint heir; but the Proculians denied the restric­tion, and their view prevailed. The right was enforceable by a vindicatio. The testa­tor did not have to be the owner; and property acquired after the making of the will could be bequeathed in this manner.

(b) Legacy sinendi modo (‘in the permissive manner¹) In this form of legacy the heir was charged with the duty to permit the legatee to take the thing for himself, e.g. 'Let my heir be charged to allow Lucius Titius to take the slave Stichus and have him as his own' (Inst.Gai.2.209.). Such legacies could be made of anything that belonged to the testator or his heir at the time of the testator's death. The legatee had a right in personam, enforceable through an actio ex testamento. This form of legacy eventually faded from use, as did the legacy perpraeceptionem.

8.6.1.4 Incorrect form

What if a legacy was made in the incorrect form? In pre-classical law the position was strict—the legacy failed. Thus, if A gave B a legacy in the form ‘do, lego’ of prop­erty belonging to C, the gift failed. The position was considerably relaxed by the S. C. Neronianum, AD 64, as the result of a case where a testator had attempted to leave a legacy per vindicationem of property which he did not own. The senatus con- sultum provided that the legacy should be construed in the most favourable form to make it effective, namely as a legacy per damnationem. See Schulz, F., Classical Roman Law (1951), 318-19. In the later Empire, it was decreed that the intention of the testator was paramount, the form of words used being unimportant.

8.6.2 Time of enforcement

When could the legatee enforce his claim? A distinction was drawn between the time when the legatee acquired his right to the legacy, and thus to any accretions, and the time when he could actually enforce his claim through legal action. The right to a legacy normally arose on the testator's death. Augustus, however, pro­vided that the right arose only when the will was opened; but Justinian reverted to the previous position. As regards the enforcement of the right, the general rule was that the legatee had to wait until the heir accepted:

Ulpian, Sabinus, book 20: Though a legacy cannot be demanded until the heir has accepted, its vesting is not postponed. (D.36.2.7pr.)

It followed that when heirs took automatically, i.e. as sui or necessarii, the time when the right to a legacy arose, and when it became enforceable, coincided.

8.6.3 The lex Falcidia

(D.35.2., C.6.50.)

An extranet« was more likely to accept the inheritance if he stood to benefit from it substantially. Hence, if the testator was too generous in his legacies to others, he ran the risk that the extraneus might refuse the inheritance, and that intestacy would thus result. Republican legislation was occasionally passed aimed at restrict­ing the size of legacies. The most effective and important measure was the lex Falcidia, 40 BC:

Paul, Lex Falcidia, sole book: Any Roman citizen who... makes his will shall have the right and power, under the general law, to give and bequeath money to any Roman citizen so long as the legacy [or legacies] be such that the heirs take not less than a quarter of the estate under the will... (D.35.2.1pt.)

The lex Falcidia did not guarantee that the heir would benefit from the inheritance— he would take nothing, e.g., if the estate was insolvent.

If there were two or more heirs, their entitlement was to at least a quarter of the net estate between them—not to a quarter each. But the testator could direct that certain legacies should be charged on particular heirs; or he might exempt certain legacies from reduction, in which case the unexempted legacies would have to bear a greater share of the necessary reduction. Whatever the testator did, each heir was entitled to at least his share of one-quarter of the net estate. What if a legacy (that had to be reduced) had been given in an indivisible form? The legatee could retain the legacy but had to refund a proportionate share:

Gaius, Praetor's Edict, Legacies, book 3: Legacies, then, which do not admit of division, belong exclusively to the legatee. The heir, though, can invoke the relief that having valued the legacy, he may give notice to the legatee that the latter bear his share of the valuation... (D.35.2.80.1.)

An accurate valuation of the net estate might not have been possible for some time after the testator's death, in which case, it would have been uncertain whether a Falcldian reduction was necessary. Rather than delaying a legatee from benefiting, it became the practice to allow him to take the whole gift on his undertaking to repay whatever proved to be excessive:

Ulpian, Edict, book 79: If someone receive a legacy beyond the legal maximum and there be valid ground for doubt whether or not the lex Falcidia should come into account, the praetor affords the heir the relief that the legatee is to give him an undertaking that should it become apparent that he has taken by way of legacy more than is permitted to him by the lex Falcidia, he will give him the money value of the excess...

Although there were a few exceptional cases where the lex Falcidia did not apply, notably soldiers' wills, its provisions remained virtually unchanged until the late Empire. Justinian made important changes: the heir could claim his quarter provid­ing that he made an inventory of the estate and the testator had not prohibited him from taking. Previously, the testator could not prevent the heir from taking a quarter.

8.6.4 Special cases

Certain categories of legacy merit attention because of the special rules applying to them. The most important were as follows.

8.6.4.1 Conditional legacies

The general rule was that the legatee had to satisfy the condition before taking the legacy. However, as in the case of the appointment of heirs, illegal, immoral, impos­sible, and resolutive conditions were ignored, the legatee taking free of them. But if the condition was 'not to do something’, e.g. 'if Milo does not manumit Stichus', a special rule was applied. For such cases, the cautio Muciana was devised by the jurist Quintus Mucius Scaevola (see 2.2.3.2), a procedure whereby the legatee took the gift on his undertaking to repay the legacy should he break the condition. The proce­dure was applied in the late Empire to gifts of the inheritance, not just to legacies,

8.6.4.2 Legacy of an option (legatum optionis)

This was a legacy whereby the legatee was expressly given the right to choose from two or more things. The legatee had an unrestricted choice—within the option—he could choose the best thing available. What if the legatee died before making his selec­tion? The legacy failed, since it was considered to be conditional on a choice being made. Justinian, however, held that the right to choose passed to the legatee's heirs.

8.6.4.3 Legacy of a thing of a kind (legatum generis)

This was a legacy of a thing of a kind, something not specifically identified, e.g. 'I give Balbus a horse.’ The legatee did not have an unrestricted choice; indeed, he might not have a choice at all—if the legacy was per damnationem, the choice was with the heir. But the exercise of the choice was subject to the following rules: if the heir had the choice, he could not choose the worst; if the legatee chose, he could not choose the best. Thus, if there were only two things from which the choice had to be made, it was more beneficial not to have the choice. If the legatee failed to make a choice, the right passed to his heirs.

8.6.4.4 Legacy of part of the inheritance (legatum partitionis)

This occurred if a legatee was given a share of the inheritance, e.g. 'Let my heir, Balbus, share the inheritance with Milo.' The legatee could not become heir in this way since he had not been appointed as heir. It was normal for the heir and legatee to enter into an agreement specifying their respective rights and liabilities. The jurists disputed whether the legatee was entitled to an actual share of the inherit­ance or simply the value of the share:

Pomponius, Sabinus, book 5: When part of an estate has been bequeathed and it is doubtful whether a share of the things or the value is due, Sabinus and Cassius held that the value has been left, Proculus and Nerva a share of the things. But it is necessary to came to the relief of the heir, so that he himself may choose whether he prefers to give a share of things or the value. However, an heir is permitted to give a part of such things as may be divided without loss. If they are by nature undivided or cannot be divided without loss, the value must be paid by the heir in al) cases. (D.30.26.2.)

8.6.4.5 Legacy of a debt (legatum debit!)

If the testator gave a legacy to his creditor, consisting of the debt that the testator owed, the legacy was a nullity since the creditor had received nothing of value. But it was different if the creditor received some extra benefit, e.g. earlier payment of the debt than was required. Such a legacy, the legation debiti, was valid according to Julian:

Julian, Digest, book 36:1 have given it as my opinion that whenever a debtor made a legacy to his creditor, it was thus ineffective, unless the creditor derived some new cause of action on the will as opposed to the former obligation. (D.34.3.11.)

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