A legacy (legatum) was a particular form of testamentary disposition whereby the testator left one or more specific objects to some person who was not one of his heirs.

Otherwise than in the case of the heir, the legatee (legatarius) benefited under a special title (tituto singulari) which meant that he only acquired certain individu­ally designated objects (res singulae).^[1144] Moreover, in contrast to the heir as universal assignee, the legatee was not liable for the testator’s debts; although he could not take, or having taken retain, the legacy until the debts of the estate were paid.

Originally, a legacy could be bequeathed only in a will after the institution of an heir (heredis institutio)^{[1146] [1147] [1148]} and on the premise that the will itself was valid. In later law a legacy could also be created in a codicil confirmed by a will (codicillus testamento confirmatus),¹⁰¹ and in the time of Justinian even in a codicil not confirmed by a will. Furthermore, by Justinian’s time the use of formal words was no longer required for the creation of a legacy and any words could be used as long as the testator’s intent was clear and unambiguous. The beneficiary in terms of a legacy was required to have the testamenti factio.^w* A legacy could not be bequeathed to an unspecified person (persona incerta), although a testator could bequeath a legacy to more than one person or even in favour of a person nominated as an heir. On the other hand, only an heir who had been appointed in a will could be charged with the payment of a legacy.^[1149]

In early Roman law there were four types of legacy: the legatum per vindicationem; legatum per damnationem; legatum sinendi modo; and the legatum per praeceptionem.^[1150] Each of these types of legacy had to be created by the use of special formal words and had its own scope of application and effects.^[1151] In order to address the problems caused by the rigid formalism surrounding the creation of legacies, the senatus consultum Neronianum (passed in the first century ad) provided that a legacy expressed in a form that was not applicable thereto should be upheld as valid as if the correct form had been used.^[1152] This senatus consultum had the effect that the various formal requirements concerning legacies gradually became superfluous and Emperor Constantine abolished them in the early fourth century ad.^[1153] The final step in the process was initiated by Justinian who declared there was only one type of legacy, for which no formal words were needed.

Virtually anything could be the object of a legacy, including rights arising from claims, release from payment of a debt, usufruct or a portion of an inheritance. The testator could even bequeath property belonging to another person (aliena res), in which case it was the duty of the heir to buy the property from the owner and to transfer it to the legatee or, if he was unable to do so, to pay the legatee the value of such property. However, things that fell outside the sphere of commercial transactions (res extra commercio) or that were already the property of the legatee could not be the objects of a legacy.^[1155]

A legacy depended on the testator’s will coming into effect; if the will for some reason did not become operative then the legacy also took no effect. It should be noted, further, that according to the regula Catoniana a legacy had to be valid at the time when it was created. If it suffered from some defect at that time, it was deemed void and could not later be validated even if the defect had in the meantime been removed.^[1156]

As previously noted, where a suus heres had been instituted as heir the will became effective immediately upon the testator’s death or the falling open of the inheritance (delatio hereditatis). The right of the legatee in respect of the legacy arose simultaneously and he could claim it immediately.^[1157] A heres extraneus or voluntarius, on the other hand, had to accept the inheritance (by aditio hereditatis) in order to become heir. However, considerable time could elapse before the person nominated as heir made up his mind whether to accept the inheritance or not, and in principle the legatee had no right until the heir accepted.

Legacies could be extinguished in various ways and the principal methods were revocation by the testator in a will or a codicil^{style='font-size:9.5pt;font-family: "Times New Roman",serif;color:black'>[1159]}; alteration of the substance of a legacy; destruction of the object of a legacy; the death of the legatee before the dies cedens or his refusal to accept the legacy.

5.6.1