Roman Law of Successions (2)

8/13/2019 Roman Law of Successions (2)

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James Grech

LL.B 1st Year

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R W LEE: The Elements of Roman Law

Roman Law of Succession

I. Testamentary Succession

!!. We will first speak of testamentary succession. There were three principal

requisites for the validity of a Roman will.

i) A will valid ab initio.

To constitute a will valid ab initio,

The will must be made in proper form

An heir or heirs must be duly instituted.

Testator, heir and witnesses must have testamentary competence

ertain persons must either be instituted or disinherited.

ii) !t must remain valid until the heir enters upon the inheritance.

iii) The heir must duly enter.

II. The "ormal Re#uirements of the Roman Will

The followin" types of will were in use at different periods of Roman #aw$

!$. %&' Testament ma(e )efore the comitia$ The comitia curiata met two times a

year for the purpose of makin" wills-when it did so, it was known as the comitia

calata. !t seems probable that this type of will, like adro"atio, was an act of the Roman

%eople. There is close parallelism between this type of testament and adro"atio, and

perhaps thus type of will was used to provide for the continuation of the family in theabsence of a male child, or served to prefer one son to another in succession.

!*. %B' Testament ma(e )efore the &rmy$ This type of will as well as the one

mentioned above, passed out before the end of the Republic.

$+,$-. %' Testament )y Bron/e an( Balance %testamentum 0er aes et li)ram'$

This was a testament by bron&e and balance. The mancipatory testament 'as it is

sometimes called), "ranted the testator unlimited power to dispose in whatever way he

wanted. This was done orally, thus the five witnesses were very important.


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$. %2' 3raetorian Testament$ (trictly speakin", this was not a testament, for the

praetor couldnt make an heir but he could "ive possession of the estate '*onorum

possessio) which eventually came to have the same effect. The testament unlike the

mancipatory testament, was written, and the seven witnesses required used to put their

seals on the document.

$4. %E' Testamentum Tri0ertitum$ This was the will of the later +mpire. !t was

called tripartite because it was derived from three sources

'a) the whole will must be made at one and the same time in presence of

witnesses.

'b) The witnesses must be seven and must seal the document.

'c) The testator and the witnesses must subscribe the will. (ubscribin" meant

more than sealin"- it meant makin" a formal acknowled"in" of the will. The

document was the sealed in a wrapper and sealed on the outside by witnesses

who set their names a"ainst their respective seals.

$5. %"' 6uncu0ati7e Will$ This replaced the oral mancipatory will, its basicdifference bein" that there were seven witnesses instead of five. ustinian "ave it the

effect of a civil law will.

$!. %G' &)normal or Irre8ular Wills$ *esides all the above-mentioned types of

wills, there were a number of wills applicable only to certain classes of people, or in

special circumstances. /ften, the usual formalities were rela0ed or dispensed with.

(ome of these were$

The most important of these was the military will. This allowed a soldier in

service to make a will in any way he pleased- it mi"ht written, orally in front

of two or three comrades, even by tracin" characters of blood on his shield, ormade with a sword in the dust. !f then the testator, still survived, such a will

was valid for one year after honourable dischar"e from service, 'unless he

replaced it by another one).

A will made in time of pestilence$ the witnesses neednt be all to"ether at the

same time.

Wills made in the countryside required only five witnesses.

A parents will disposin" property amon" his children, if written in the

parents handwritin" neednt have any witnesses.

The will of a blind man required an ei"ht witness- a public official 'town

secretary).

$$. %9) 1inally, in the later empire, two more types of wills were admitted

- A testament made before a ma"istrate and lod"ed in court

- A testament presented to the +mperor

III: Institution of 9eirs

234. An heir or heirs must be duly instituted. This was the essence and foundation of

the whole testament. Thus, there were several thin"s which needed to be considered,

namely,


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'A) The "orm of institution

'*) 3lace of Institution in the Will

') The Institution must )e the whole Inheritance

'5) The Institution must )e &)solute or on(itional

'+) & testator mi8ht institute more than one heir

*+ %&' "orm of institution$ /ri"inally only the words 6*e Titius my heir7 or 6!

direct Titius to be my heir7, were valid forms of institution. !n the later law, this

insistence on form disappeared and instead it was established that any form of words

clearly e0pressin" the testators e0pression were to be deemed valid.

*1 %B' 3lace of Institution in the Will$ The institution of the heir had to come first,

because everythin" else depended upon it. onsequently, if a le"acy or a "ift came

before the institution of the heir, then this had no effect. ustinian rendered

unnecessary this requirement.

* %' The Institution must )e the whole Inheritance$ 8obody can die partlytestate, partly intestate. The consequence was that if a person was appointed heir for

half of the testators estate, and no disposition was made to the other half, then that

person took the other half as well and was re"arded as sole heir. The same happened

if a co-heir refused to accept the inheritance. The others took his share by the same

percenta"e which they had taken their own share. '5r. 9ifsud *onnici here points out

a different stream of thou"ht which believes that in such circumstances, the

inheritance would be considered to be ab intestato). An e0ception was admitted in the

case of the military will.

*-. %2' The Institution must )e &)solute or on(itional $ *y conditional we

mean, that there could be a suspensive condition- e0$ *e Titius my heir if he marries

my dau"hter /R if he becomes a doctor. :owever, there couldnt be resolutive

conditions- e0$ *e Titius my heir, but if he doesnt become a lawyer /R if he marries

9ary, then he is no lon"er my heir). The latter would a"ainst the ma0im 6once an heir

always an heir7. /ne last word about the suspensive condition- there was to be no

time limit attached to it i.e. theres not time limit until when Titius is to become a

doctor. !f he becomes a doctor one month after the testators death, he will inherit

then if he becomes a doctor si0 years later, he will inherit then.

*. %E' & testator mi8ht institute more than one heir$ When there was more than

one heir, then they mi"ht either be instituted equal shares, or else different shares asthe testator pleased.

*4 %"' & testator coul( a00oint a free man (uly #ualifie( %-+!' as heir BT

&LS; a sla7e< either his own or some)o(y else=s$ !f his own, the old required also a

"ift of e0pression but ustinian established that institution as heir was itself a "ift of

freedom. !f another mans slave was instituted, then the slave acquired for his master,

provided that his master was qualified ';


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I>: Su)stitution of 9eirs:

*5. >ul8ar Su)stitution:!f a person was instituted as sole heir and for any reason

did not accept the inheritance the will failed, and the inheritance went ab intestato. To

avoid this, testators usually instituted a second heir in case the first heir refused the

inheritance. This was known as vul"ar substitution. There could be at all times aplurality of heirs or substitutes- 'e0$ *e Titius my heir, if he refuses be oe, %aul and

>ince be my heirs /R be oe, %aul and >ince be my heirs, if not be Alan my heir). !t

was usual to name several substitutes one after another, and finally there would be a

slave of the testator who coul( not refuse the inheritance, and for this reason, was

called the necessary heir.

*!.!n the old law, there was the practice to fi0 a time limit, usually of one hundred

days, within which, the heir had to make a formal acceptance. !f he failed to do so, he

would be disinherited, and a substitute would take his place. ustinian abolished this.

?et, it can be assumed that if there was unreasonable delay, the substitute could apply

to the praetor to fi0 a period of time within which to deliberate whether to accept ornot 'spatium deliberandi) ';;=).

*$. 3u0illary Su)stitution$ *esides the vul"ar substitution, there was another type

of substitution known as pupillary substitution. This took place when a father

appointed a son as his heir, but in the same testament also provided a substitute in

case the son died before puberty 'i.e. before acquirin" testamentary capacity of his

own). This was used a "reat deal, also in the event that a son entered into a reli"ious

order, the father would appoint a substitute for his son. The father could also name a

substitute for a disinherited child. !t must be said that the father could not make a will

for his child unless at the same time he made a will for himself.

244. ustinian e0tended the principle of pupillary substitution to descendants who

were insane. This had been termed quasi-pupillary substitution. This was more

restricted because than the pupillary substitution because the testator could not

substitute any one he pleases- they had to be related to the insane persons.

>: 3ersonal ?ualifications of Testator< 9eir< an( Witness:

;


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returned, and by a certain le0 ornelia if he died in captivity. (o, the captive could not

make a will after bein" already in captivity.

-+-. %B'The testator must be sui @uris$ %ersons in patria potestas could not make a

will because they owned nothin" and therefore could leave nothin". :owever, male

descendants in power could dispose by will of their peculium castrense and underustinian also of their quasi-castrense. The bona adventicia could not be disposed by

will because the father had usufruct over it.

-+. %'The testator had to be above the a"e of puberty and "enerally competent to

form and e0press a sound @ud"ement. Thus, insane persons 'unless in lucid intervals)

and interdicted prodi"als could not make a will. /ri"inally, deaf and dumb people

could not make a mancipatory will because they could not take part in that ceremony,

but when the written will came into use this disqualification disappeared.

-+4. %2'There were some cases when incapacity to make a will was a penalty

imposed by le"islation- e0$ in the older law, the author of defamatory writin"s, in thelate +mpire, upon certain heretics.

-+5 %E'Women could not take part in the business of the comitia and therefore, could

not make a will before it. :owever, they could make a mancipatory will provided they

were sui @uris and had anythin" to dispose of. There were further restrictions

re"ardin" women of which we will not "o into detail, but it is suffice to say that when

the women were "iven the @us liberorum, these restrictions no lon"er applied and had

disappeared lon" before ustinian.

-+!. Who @ay )e Institute( 9eir$ The capacity to be instituted heir was "enerally

wider then that of the capacity to make a will, because here it included sons in power

and slaves, youn" children and insane persons, thou"h in the last two instances, the

question of acceptance raised problems.

:owever the followin" were disqualified$

') %ere"rini

'2) !ncertae %ersonae$ 'which included)$ 'the last two were to"ether called

postumi)

These were persons who were not precisely and clearly determined in the

mind of the testator. +0$ 6Whoever is the first to come to my funeral, is my

heir.7

%ersons not yet born at the date of the will. This was slowly removed, and till

ustinian, all such persons could be instituted unless the child was the issue of

the testator and a woman he could not le"ally marry, for e0ample, a married

woman. A practical limit was set that the child had to be born at the time of

the inheritance fell vacant.


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!ncorporate bodies. The problem here was no specific person to accept the

inheritance. The idea of a @uridical person only started to emer"e slowly. At

first, Blpian says a municipality couldnt be instituted heir because its

members were all the time fluctuatin". The (tate was reluctant to concede

corporate personality to combinations of individuals or to foundations. !n the

late +mpire and particularly by ustinian, the scope of such bodies wasenlar"ed and it became possible to institute municipalities, the hurch,

reli"ious or charitable foundations, and even private associations 'however,

after obtainin" a special licence).

';) *y the le0 >oconia '* C3) a woman could not be instituted heir by a

testator who was in the first class accordin" to the census. (ince the early

empire, this came into disuse to"ether with the census.

-+$. Who @ay Witness a Will$

The disqualifications were "enerally the same as those for the testator. !t must be said

that women and deaf or dumb persons still couldnt act as witnesses even after they

had been "ranted the ri"ht to be testators.

Another disqualification was close family relationship with the principal parties in the

will, i.e. the testator or the heir. The witnesses had to be independent. :owever,

le"atees were competent to be witnesses.

>I: Who must )e Institute( or 2isinherite(:

ertain persons had to be instituted or disinherited.

-1-. %1' *y civil law, sons in power had to be instituted or else e0pressly disinherited

'they couldnt be left completely out). !f the testator failed to institute or disinherit a

son, the will was invalid.

-1. %'The praetor e0tended the rule requirin" institution or disinheritance to include

all descendants whom he had admitted to succession ab intestato.

-14. %-' ustinian maintained the praetorian system but with a more strin"entrequirement for disinheritance- i.e. it had to be made in e0press terms. /therwise the

sui heredes could impeach the will as bein" wholly void. Bnder ustinian, adoptive

children need not be taken into account 'neednt be mentioned) because they did not

any lon"er leave their family of ori"in 'e0cept in adoptio plena).

>II: The 3laint of the n(uteous Will %?uerela Inofficiosi Testamenti':

-15. We have seen above that parents had to institute their children or else officially

disinherit them. This rule applied only to the father 'or "randfather) and not to

mothers. *ut towards the be"innin" of the +mpire, a new principle asserted itselfnamely that a testator was not free to dispose of his property as he pleased D certain


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family relations had to be provided for. !f he failed to do so, the will mi"ht be

impeached and revoked by the plaint of the unduteous will 'the querela inofficiosi

testamenti). This was brou"ht an actio brou"ht a"ainst the heir who had entered on the

inheritance. This querela was based upon the un@ust reflection cast upon the person

left out or insufficiently provided for.

-1!. Who mi8ht )rin8 this #uerela Bsually the descendants and ascendants of the

testator brou"ht this querela.

-1$. n(er what circumstances mi8ht this #uerela )e )rou8ht

'a) The person brin"in" must show that he had received less than a fair share of

the testators estate. :e need not be the heir- he could also be a le"atee or a

person provided for by a "ift mortis causa. 1or e0ample, by the le0 1alicidia

the heir was entitled to one-fourth of the estate which he could retain a"ainst

le"atees. This idea of 6fair share entitled to you7 was called the 6le"itima

portio7, in modern usa"e called the 6le"itim7.

'b) A person could not brin" this action if he had been disinherited on @ust"rounds.

'c) :e must have no other means of attackin" the will. The querela was only as a

last resort. Therefore a suus heres or an emancipated son passed over could not

brin" it because they had other actions available. The querela was thus an

e0traordinary remedy.

'd) The querela was time-barred by the lapse of five years since the heir had

entered on the inheritance. Another way in which it couldnt be brou"ht, was

if the person brin"in" the action had reco"nised the validity of a will by

acceptin" a benefit under it.

-1*. What was the effect of the #uerela if successful !t rendered the will void as if

there had been no will. %roblems arose if there were two instituted heirs, and the

challen"e brou"ht by the complainant was successful as re"ards to only one of them-

this brou"ht the anomalous result that the testator had died partly testate, and partly

intestate. This was contrary to the "eneral rule. This same result happened if two

persons attacked the will 'e0$ two sons claimin" that they were both un@ustly

inherited) and only of them did so successfully.

-+. Another point worth considerin" is that the testator mi"ht miscalculate the

amount or his fortune or it mi"ht increase after the date in which the will was made.

This made no difference- if the persons entitled did not receive his @ust proportion, thewill could be successfully challen"ed. To avoid this, however, what was done was,

that a clause was usually inserted sayin" that if a share was found to be too small, it

should be referred to a fair-minded man to brin" it up to the ri"ht amount. This saved

the will.

-1.(o far we have spoken about the situation before ustinian. 8ow we will see the

chan"es brou"ht by ustinian.

'a) The querela was only brou"ht if the person entitled received nothin" at all. !f

somethin", however little, was left to him, then he could not brin" the querela

to render the will invalid D he could, however, brin" another action to have therest of the le"itim. !f successful, this action 'actio ad supplendam le"itimam),


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would reduce the amount which went to the instituted heirs and the rest of the

will would remain intact.

'b) After the date of the !nstitutes, the amount of le"itim due to children was

increased. !f there were not more than four children, it was to be one third of

the intestate succession 'for if it was testate, the father could leave his whole

estate to his children). !f there were more than four children, then the le"itimwas one-half. The share of ascendants and of brothers and sisters remainin"

was one quarter.

'c) The @ust "rounds for disinheritance established by ustinian are still the same

today in our ivil ode 'presumably defined by 8ovel E).

'd) 1inally, by 8ovel E, ustinian introduced an entirely new condition by

requirin" the persons entitled to the le"itim to be instituted heirs, thou"h not

necessarily to the amount of the le"itim. !f somebody was disinherited without

@ust cause, then he could brin" the querela but could only upset the will as

re"ards the institution of the heirs. The other provisions of the will remained

unaffected.

;2;. The 9odern #aw of #e"itim$ The principle of the le"itim is an inte"ral part of

those modern systems of law that have a Roman ancestry.

>III: 9ow Wills "ail to taAe Effect:

;2F. !t is not enou"h that a will should be valid ab initio 'when it is made). !t is

further necessary that it remains valid until the heir enters upon the inheritance. A will

could fail to take effect by any of the followin" ways

-4,-5. %1'*y the subsequent introduction of a new suus heres which takes place

'a) by birth ' a child is born to the testator after the date of the will

'b) 'in the older law) when a woman became a wife in 9anus to the testator,

thereby acquirin" the status of a dau"hter.

'c) When owin" to the death or emancipation of a son durin" the testators

lifetime, the sons children took his place as sui heredes.

'd) When the testator acquires a new suus heres by adoption.

Anciently, any one of these events was fatal to the will. :owever, later it became

possible to save the will by providin" in advance for the event of a new suus heres ofthe testator. 'e0$ providin" that if a new son is born, he is to be instituted, or he is to

be disinherited). !f this precaution was not taken, then the will would become invalid.

-! %'*y makin" a subsequent will. !n this event, however, nobody accepted the

inheritance. !f the second will was a praetorian will, then the first will was not

technically revoked, but the praetor "ave *onorum possessio accordin" to the second

will.

-* %-'!f the testator underwent chan"es of status 'capitis deminutio) after he made

the will, the will was said to be inoperative 'without effect). The praetor, however,

could in certain circumstances come to the aid of the instituted heir by "ivin" him

*onorum possessio secundum tabulas.


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--!. Etranei 9ere(es$ these were persons not sub@ect to the testators power. These

could accept or not. /ften the testator used to prescribe a time limit 'normally of one

hundred days) within which the heir must make a formal acceptance, if he wanted to

accept at all. !f he failed to do so, he would be disinherited, and a substitute would

take his place. ustinian abolished this. ?et, it can be assumed that if there was

unreasonable delay, the substitute could apply to the praetor to fi0 a period of timewithin which to deliberate whether to accept or not 'spatium deliberandi). !n the

meantime the inheritance was vacant and the heir was said to be delated- 6a delated

inheritance means one which one can acquire by enterin" upon. !t is noteworthy that

an acceptance or refusal made a once was not retractable 'e0cept by minors and

soldiers).

-+. Beneficium In7entarii$ *y a constitution of E; A5, it was provided that any

heir who had doubts about acceptin" or refusin" mi"ht accept with benefit of

inventory. *y doin" so, he avoided the risk of acceptin" an inheritance which had

more liabilities than assets.

C: Le8acies:

-1. The topic of le"acy is intimately connected with testamentary succession.

Without a will, there cannot be a le"acy, thou"h obviously there can be wills without

le"acies. !n the !nstitutes a le"acy is described as a "ift by a deceased person.

/bviously the le"acy would be reduced from the total amount "oin" to the heirs. (o,

whereas inheritance was a form of universal succession, le"acy was a particular

succession. (o, while the heir was liable for the debts of the testator, the le"atee was

not. :owever, the le"atee could not take unless first, all the debts had been settled.

-. A le"acy commonly consisted in a "ift of a corporeal thin" or thin"s. :owever, it

could assume may forms. Bsufruct or a praedial servitude could be left by way of

le"acy. A debtor could be "iven a le"acy for"ivin" him the debt. A le"acy mi"ht even

be part of the inheritance, e0$ 6#et my heir %aul divide my inheritance with oe. !n

this case the person would be called a partial le"atee7, and would be entitled to one

half of the inheritance unless otherwise provided.

--. What (istin8uishes a le8acy from a fi(eicommissumG A le"acy was left by

imperative words and was le"ally bindin" upon the heir. A fideicommissum on the

contrary was left by words of request and was at first merely a moral obli"ation. Ale"acy mi"ht be left by a will and from the be"innin" of the +mpire by a codicil. A

fideicommissum could only be left by an unconfirmed codicil. We will deal with

fideicommissa and codicils later.

;FF. Bntil ustinian, le"acies were of four kinds

%1' Le8atum 0er >in(icationem %)y 7in(ication'

%' Le8atum 0er 2amnationem %)y con(emnation'

%-' Le8atum sinen(i mo(o %)y way of sufferance'

%' Le8atum 0er 0raece0tionem %)y taAin8 in a(7ance'


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-4. %1' Le8atum 0er >in(icationem: This "ave the le"atee the ri"ht to claim the

ob@ect concerned from the heir in a real action. The effect of this le"acy was that the

ob@ect became the property of the le"atee by quiritary title from the moment of the

acceptance of the inheritance. This type of le"acy was also used to constitute a

usufruct or a praedial servitude over property which belon"ed to the testator by

quiritary title. !n the case also, the ri"ht vested directly in the le"atee and he couldenforce it by a real action- the actio confessoria.

-5. %' Le8atum 0er 2amnationem$ :ere the testator would "ive somethin" to the

le"atee and in so doin" would be condemnin" the heir to do somethin". The testator

mi"ht "ive anythin8by this method- even thin"s belon"in" to the heir or to third

parties. !n the latter case, the testator was imposin" upon the heir the duty to do

whatever he could to acquire that property from the third party so that he could "ive it

to the le"atee. !f he failed in acquirin" it, then he was bound to "ive him its value. A

thin" not yet in e0istence could also be bequeathed. 1or e0ample, the testator could

condemn the heir to "ive one half of ne0t years harvest or an unborn slave to a

le"atee. The le"atees remedy was a personal action a"ainst the heir. !f the heir deniedhis liability to perform one of the thin"s, then the le"atee could seek double value in

the action.

-!. %-' Le8atum Sinen(i @o(o$ This was like a mi0ture of the above two. The

formula was 6*e my heir condemned to allow oe to take for himself my slave Alan

or my 1iat.7 !t is similar to #e"atum per 5amnationem with the difference the testator

rather than "ivin" a ri"ht to the le"atee, was puttin" an obli"ation on the heir. The heir

had to suffer an act, without hinderin" the le"atee in the process. The testator could

only leave a thin" which belon"ed to him in this manner, and not thin"s belon"in" to

third parties. The appropriate action available for the le"atee was a personal action

a"ainst the heir.

-$. %' Le8atum 0er 0raece0tionem %)y taAin8 in a(7ance': :ere, the le"atee

could take somethin" out of the estate before the heirs. This was important- lets "ive

a practical e0ample$ ! leave my two sons as my heirs. :owever, ! want to leave my

car to one of the sons specifically. (o ! leave him a le"acy sayin" that before the

inheritance is divided, he takes the car. Then, when the property is to be divided in

two halves, the value of that car is ad@udicated and reduced from the share of the son

who took it.

-*,-4. Take a quick look at the book.

CI: The Le "alci(ia:

-4. *y the law of the Twelve Tables, a testator mi"ht have le"acies to any amount.

The consequence was that there were many intestacies because heirs often thou"ht

that it was not worth it to accept an inheritance which would be of little or no value.

Three laws were passed to remedy this situation. The first two were unsuccessful

';EE-;EC) the third was successful- it was the le0 1alcidia of F


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-4$. The statute was inter0rete( as follows$

'a) !f there were more than one heir, each had to take one fourth of the whole

estate 'Huarta 1alcidia). !t was not enou"h that the heirs collectively took one-

fourth of the whole estate between them.'b) The value of the estate was computed as it was at the time of death.

(ubsequent increase or decrease did not affect the valuation.

'c) !n arrivin" at the valuation, deduction was first made of debts, funerals, and

the value of slaves manumitted by the will. The rest was then distributed to

reserve one-fourth to the heir, and then to the le"atees in proportion to the

amount of their respective le"acies.

'd) !f the sub@ect of the le"acy was indivisible 'e0$ a ri"ht of way, not a sum of

money which is divisible), it rested in the le"atee.

-4*. The le0 1alcidia did not apply to military wills. *efore ustinian, it applied to all

other wills without e0ception. :owever, ustinian established some e0ceptions whenthe benefit of the le0 1alcidia was withheld, namely, from heirs who claimed a

spatium deliberandi and did not make an inventory, A85 in every case allowed a

testator to e0clude it, by e0press provision in his will. 'Thus, if an heir specifically

wanted his heir to have less than one-fourth because he wanted more to "o to the

le"atees.).

CII: "i(eicommissa:

-5+.This was a special way of passin" property to people who were not qualified to

take as heir or le"atee at civil law. What happened was the testator requested the heir

to pass the property or part of it, to someone else. !ma"ine the situation when a father

had children who were not Roman citi&ens. This meant that even thou"h he wished to

leave his estate to them, they couldnt inherit under civil law. (o, he left a person he

trusted as his heir with the formal request that he passed the property to his children.

Thus the pere"rine child could inherit by fideicommissum. Iaius says that this was

the principal reason for the introduction of the fideicommissa. !n essence, it was a

trust reposed upon a persons "ood faith. The person to whom the property was "iven

at first instance was known as the fiduciarius, and the person to whom it was to be

handed over was the fideicommissarius.

-51. /ri"inally, the fideicommissum created merely a moral obli"ation. Au"ustus,

however, made it enforceable by le"al process.

-5. The heir, as we have said, mi"ht be requested to hand over part of the inheritance

or the whole inheritance. Thus in a sense the fideicommissum was employed as a

substitute either for the civil law inheritance or for the civil law le"acy. ustinian

treats these separately, thou"h the same principles apply for the fideicommissum

itself. A problem arose as to the situation between the fideicommissarius and the

creditors of the estate. !t will be necessary to consider this question in some detail.


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-5-. "i(eicommissary Inheritance$ The formula was this$ 6*e :oratio %ace my heir.

! request you %aul, as soon as you enter upon my inheritance to make it over to

Redeemer *or"7. Ienerally any other words that conveyed the testators meanin"

could do @ust as well. !f the heir accepted the inheritance, he had to "ive effect to the

obli"ation imposed upon him, by "ivin" the items of the estate to Redeemer in

appropriate methods. :owever, he remained liable to the creditors of the estate, @ustas debtors to the estate remained liable to him alone, thou"h he still had hand over to

the fideicommissarius what he recovered from them. As can be seen this was a

situation where few heirs would be willin" to accept. (ome method had to be found to

ensure that the person who took the benefit of the estate 'the fideicommissarius),

should also sustain its burdens. The steps taken to secure this are an interestin" and

complicated chapter in le"al history.

-5. An heir, as we have already mentioned could be desired to hand over the whole

inheritance or part of it. !f the whole, it was the practice for the heir to sell the

inheritance for a nominal price to the fideicommissarius the parties entered into the

stipulations 'FFF) 'a form of contract), which were usual when an inheritance wassold. The heir stipulated for an indemnity a"ainst claims, and promised on his part to

"ive to the fideicommissarius any property which mi"ht come to him as heir, and to

make cession to him of ri"hts of action. !f part of the inheritance was to be made over,

then there was no pretence of sale yet, stipulations directed to the same ends were

entered into to secure a proportionate division of benefit and burdens. This system

seems to have had many inconveniences, primarily that if one of the parties became

insolvent, the other one "ot fucked up 'if the heir became insolvent, the

fideicommissarius "ot nothin", if the fideicommissarius became insolvent, the heir

lost the benefit of the indemnity).

-54,-5!. (ee *ook

-5$,-5*. "ormal Re#uirements of "i(eicommissum$ 1ideicommissa were usually

contained in a will or a codicil, which in ustinians system required the presence of

seven and five witnesses respectively. Any person who could make a will, could leave

a fideicommissum. /ri"inally many persons who could not be instituted heirs or take

a le"acy, could take a fideicommissum. Thus, for e0ample, pere"rines could take.

:owever, later on, most of these loopholes were closed.

-!+. "amily Settlements$ (ometimes, fideicommissa were used to tie up property

throu"h successive "enerations. Thus, a testator mi"ht leave a property to A, andchar"e him to pass it over to *, and * mi"ht be similarly char"ed to pass it over to .

The idea was to leave the property within the family. At one point, the emperor

:adrian prohibited fideicommissa to personae incertae. There were other restrictions,

however, ustinian removed previously e0istin" restrictions on "ifts to incertae

persons, thus openin" the door to perpetual fideicommissa. :owever, by 8ovel E4,

he decreed that the property mi"ht not be tied beyond the fourth "eneration. This may

be described as the Roman #aw a"ainst perpetuities. !t passed in modern systems

derived from Roman #aw. Thou"h most of them have confined the testators power of

tyin" up property within more reasonable limits, the Roman law a"ainst perpetuities

still e0ists as it did then in the Law of @altaand (outh Africa.


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-!1. "i(eicommissa of Sin8le Thin8s$ We have mentioned that fideicommissa could

be used not only for whole estates, but also for sin"le thin"s. This was in a way a

substitute for the civil law le"acy and an escape from the restrictions attached to it.

There were many differences between them. We will list some of them as Iaius

mentions them.

'i) A le"acy was a char"e imposed upon a testamentary heir. A

fideicommissum mi"ht be char"ed upon an heir ab intestato, or a le"atee,

or a fideicommissarius.

'ii) A le"acy could only be left by will, or by a codicil confirmed by will. A

fideicommissum could be elft by an unconfirmed codicil.

'iii) #e"acies were e0pressed in imperative terms whilst fideicommissa were

e0pressed in the lan"ua"e of request.

'iv) #e"acies must be in #atin. 1ideicommissa mi"ht be in Ireek or in any

other lan"ua"e.

'v) /ri"inally a le"acy could not benefit a person who was not qualified to

take under a will, whilst fideicommissa could "o to pere"rines, and so on.#ater, however, these were restricted.

'vi) !ncertae personae and postumi could not take by le"acy, but they could

take by fideicommissum. As we have seen +mperor :adrian restricted

this, but later was re-allowed by ustinian.

'vii) A "ift of liberty could not be made directly to another mans slave by

le"acy, but it could be made by fideicommissum. This was usually done by

directin" a beneficiary to buy the slave and free him, or by leavin"

somethin" to his owner with a direction to free him. This usually, thou"h

not necessarily, produced the desired effect.

'viii) #e"acies did not carry interest if there was unnecessary delay

fideicommissa, however, did.

CIII: o(icils:

-!-,-!. odicils were closely connected in ori"in to fideicommissa. odicils were

informal directions written to an heir, often conveyed in a letter. A codicil mi"ht be

written or unwritten, and ustinian established that there had to be five witnesses.

-!4. !t was not a necessary condition of the validity of a will that the deceased should

have made a will. !t mi"ht take effect as a direction to the heir ab intestato. !f,however, there was a will, the codicil stood or fell with it, avoidance of the will

avoided the codicil also. odicils mi"ht come before or follow a will. To sum up,

there was the codicil testamentario and the codicil ab intestato.

-!5. !t is important to note that a codicil couldnt nominate an heir, disinherit an heir,

nor attach a condition to an instituted heir, nor make a direct substitution. Bsually,

supplementary instructions were written in the codicil.

-!!.There was also the codicil confermatorio- were you confirm whats written down

in the testament and possibly add somethin" else. To prevent a will miscarryin"

throu"h some defect of form, it was usual to insert a clause desirin" that the writin"should also have the effect of a codicil. Refer to #ee for more details.


15/18

CI>: Intestate Succession %&) Intestato'$

-!*. There were 1/BR principal periods which developed the Roman law of intestate

succession.

%&'The Twel7e Ta)les%B' The 3raetor=s E(ict

%'Im0erial Le8islation )efore Justinian=s 6o7el 11$ %Senatusconsulta'

%2'Justinian=s 6o7els

%&'

The Twel7e Ta)les:

-$+. *ythe #aw of the Twelve Tables, succession went to,

%i' sui here(es

%ii' the nearest a8nates

%iii' mem)ers of the clan %8ens'

-$1. %i' Sui 9ere(es$ This class consists of free persons in the power of the testator

who became sui @uris after his death. Thus, it includes sons, and "randsons, natural or

adoptive. 'Irandsons only if their father had already died or been emancipated). !n

the old law a wife married in 9anu counted as a dau"hter. (imilarly, the sons wife

married in 9anu counted as a "randdau"hter. !n the latter case, however, she was not

a sua heres unless her husband had ceased to be in power before his fathers death. A

child not already born before the testators death counted as a sui heredes if he had

been conceived durin" his lifetime and if upon the testators death he would havebecome sui @uris 'e0$ he could have been his on, or "randson !1 his father had already

fallen out of the power of the testator).

-$. (ui heredes became such even thou"h they were i"norant of the testators death

or insane. !f they were under a"e, no authority consent of tutor or curator was needed

'remember that the tutor only needed to interpose his authority if the ward was to

make his position worse, and by inheritance he would be makin" it better). The idea

of the sui heredes was to continue the family ownership immediately after the death of

the paterfamilias. As an e0ception we mi"ht say that if the paterfamilias was after his

death pronounced "uilty of treason, the sui heredes did not inherit his estate, but his

estate was forfeited to the fiscus.

-$-. !f all the sui were in the first de"ree of ascent, they shared equally with no

preference of males over females. hildren in the second or remoter de"ree took per

stirpes, i.e. representin" their deceased parent 'ftakar fkif il-ku"ini @irtu n-nanna).

-$. %ii' &8nates$ 1ailin" succession sui heredes, the succession went to the nearest

a"nate of the deceased. *y 6nearest7 as always what is meant is the nearest person

when the intestacy is ascertained 'not when the testator actually died). (uccession of

this type was per capita, not per stirpes, all a"nates of equal de"ree takin" equally and

without representation. !f the nearest a"nate 'i.e. the person who is to inherit

everythin" if he is on his own), refused to accept the inheritance or died before doin"so, then the inheritance did not pass to a remoter a"nate nor to the ne0t class 'the


16/18

members of the clan). !nstead, it became vacant, and any person mi"ht assume its

ri"hts and responsibilities after the end of one year from so doin", he became owner

of the thin"s comprised in the inheritance by the period of usucapio. (ubsequently to

the Twelve Tables 'but before the amendments brou"ht about by the %raetors +dict),

a rule came into e0istence which was unfavourable to female a"nates, for it said that

unless they were sisters of the deceased, they were e0cluded from inheritance.

-$4. %iii' @em)ers of the lan$ 1ailin" a"nates, the succession went to the members

of the clan. Bnder Roman law, the community was of "reat importance, and this was

demonstrated in the #aw of the Twelve Tables.

;3C$ 5isadvanta"es of the mode of succession ab intestato accordin" to the Twelve

Tables$

Relations throu"h females were wholly e0cluded.

There was no succession between mother and children 'in free marria"es).

There was no succession to emancipated children or children "iven in

adoption.

There was no succession of collaterals 'relatives) when the a"natic bond had

been broken by capitis deminutio.

When the nearest a"nate refused, there was no succession to remoter a"nates.

1emale a"nates beyond the de"ree of sisters could not succeed.

8either could co"nates who were not at the same time a"nates succeed.

These disadvanta"es were to be removed by the praetor. This leads us to the second

period in the history of intestate succession.

%B'

The 3raetor=s E(ict$

-$!. Thou"h the praetor could not make an heir, he could "ive bonorum possessio.

The praetor "ranted this to persons who claimed to be entitled and it was the

praetorian counterpart to civil law succession. *onorum possessio under the +dict was

"iven in the event of a deceased person dyin" either a testate or intestate. !f a person

died without a will, various classes of persons were entitled to claim as praetorian

successors ab intestato. !n the case of freeborn persons, four classes were reco"nised.

These were the$

%i' Li)eri

%ii' Le8ittimi

%iii' o8nati

%i7' >ir et uor

-$$. %i' Bonorum 0ossessio un(e li)eri$ Bnder this head, the praetor included sui

heredes as well as emancipated sons and dau"hters 'includin" sons and dau"hters

"iven in adoption and subsequently emancipated by the adoptive parents) and the

issue of emancipated children. !t must be said that this class of people is only in

relation to a male ascendant 'other developments are to come at later periods).

-$* %ii' Bonorum 0ossessio un(e le8ittimi:This corresponds with the civil lawsuccession of the nearest a"nates ';3F).


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-*+. %iii'Bonorum 0ossessio un(e co8nati: This class comprised all blood relations

throu"h males or females as far as the si0th or seventh de"ree. !t included children in

an adoptive family, female a"nates remoter than sisters, a"nates who had under"one

capitis deminutio, mothers to children and vice versa.

-*1. %i7'Bonorum 0ossessio un(e 7ir et uor: This is the cate"ory where we find

the survivin" spouse be it a wife survivin" her husband, or a husband survivin" his

wife.

-*. The praetor called these four classes of people one after the other. Thus, it was

necessary to fi0 a limit of time within which persons entitled in each class must make

the claim. This was normally one year for children or parents, and one hundred days

for all the others. :owever, it is important to note that if members of one class failed

to claim within the time allowed, they had the opportunity of comin" in, in a later

class. /bviously, in these instances, persons who failed to claim in their proper class,

could find themselves bound to share with others to whom they would otherwise havebeen preferred.

-*-. When the praetor let in emancipated children alon" the children in power, he did

so upon the condition that they brou"ht alon" the property that had accrued to them

since they hade been emancipated, for had they not been emancipated, all their "ains

would have increased the funds available for distribution.

-*. To conclude upon this, we can notice that the praetor did not in every case depart

from the civil law on succession. (ometime he confirmed the civil law 'e0$ by "ivin"

bonorum possessio to the sui or the nearest a"nate etc.) sometimes he supplemented

the civil law 'e0$ allowin" emancipated children with the sui, allowin" a husband to

succeed a wife etc.) sometimes he corrected the civil law.

%'

Im0erial Le8islation )efore 6o7el 11$$

-*4. 9any chan"es were made by various emperors. Bsually these had the effect of

promotin" people in the cate"ory of co"nati to the more privile"ed positions of liberi

or le"ittimi. The part, which we shall e0amine, is that which relates to the succession

of mothers to children, and children to mothers. The two senatusconsulta takin"central sta"e here are the senatusconsultum Tertullianum, and the senatusconsultum

/rfitianum.

-*5.The senatusconsultum Tertullianum established under :adrian, "ave mothers the

@us liberorum. !t established that the mother became heir to her son if there were none

of these cate"ories sons of the son, if the father is not alive, and if there are no

brothers. !f there were sisters, then the mother shared equally as if she too was a

sister. !t was as if the mother was "iven a promotion from co"nati to le"ittimi.

-*!. The senatusconsultum /rfitianum was established under 9arcus Aurelius. :ere,

the sons 'natural or le"itimated) became the heirs of the mother in preference to anyother person. (o, if the woman in a free marria"e 'or also in 9anus marria"e) died,


18/18

the sons, not the father, inherited. #ater le"islation then e0tended this to

"randchildren. !t was not affected by capitis deminutio minima.

%2'

Justinian=s 6o7els

-*$. !n 8ovels 3 and 2=, amended the scheme of succession in favour of the

claims of natural succession. Bnder his system, succession went to the followin"

classes$

. 5escendants 'natural or adopted), the nearer e0cludin" the more remote, with

representation per stirpes.

2. !n this class we find the ascendants, the brothers and sisters of the deceased,

and the children of a deceased brother or sister representin" the deceased 'but

only if one brother or sister survived. (o, nephews and nieces, if no brother or

sister was livin", were not admitted in this class but came later in class ; or F).

All these (subject to representation) took equally.

;. :ere, we find half-brothers and half-sisters and the issue of a deceased half-

brother or sister. 1or the latter to be found here, it is sub@ect to the condition

that at least one half-brother or one half-sister is still alive.

F. All other blood relations with no limits of remoteness.

E. :usband and wife. They inherit each other equally.

;44. This latest phase of the Roman law of intestate succession has profoundly

affected the le"al systems of +urope.

F

Documents

Roman Law of Successions (2)