Types of legacies

The two basic forms of legacy were the legacy per vindicationem and the legacy per damnationem. The first was a particular disposition with the following formal words (or similar phrasing: Gaius 2.193): “I give (do) and bequeath (lego) to Titius.” The scope of this legacy was confined to things that could be vindicated: land, usufruct, predial servitudes, slaves, and specific physical things, among others.

More common, general, and flexible than the legacy per vindicationem was the legacy per damnationem, by means of which the testator charged an obliga­tion upon the heir. The solemn form of this legacy was, “Be my heir under a charge to give” (heres meus dare damnas esto). Anything that could be left by legacy per vindicationem could be bequeathed by legacy per damnationem, but the legacy per damnationem covered more: since the testator did not need to be the civil owner of the object of the legacy, the testator could make a legacy of something belonging to someone else, or of a future thing. He could even charge the legatee with the performance of a concrete act. “Be my heir Titius under the charge to build a house for my legatee Caius close to my farm and to give him all the animals born in my farm in the three years following my death”; or “Be my heir Titius under the charge of paying off all the debts of the legatee.” The legatee could bring an action, called actio ex testamento, against the heir for the legacy or its value.

Mistakes in form made the legacy null and void at civil law. The formalities required for legacies, however, were attenuated after the enactment of a senatorial decree under the reign of Nero. The rule derived from it was that if a legacy was articulated in the wrong form, it should be construed as if it had been expressed in the most adequate form necessary for its validity. In post- classical law, the importance of words was relaxed. Justinian submitted all legacies to the same rules and remedies (C.J. 6.37.21).