LEGA´TUM
LEGA´TUM is defined by Florentinus in Dig 30, 116,
as “delibatio hereditatis qua testator ex eo quod universum heredis
foret alicui quid collatum velit:” another less full definition
given by Modestinus in
Dig. 31,
1,
36, and practically adopted by Justinian
in
Inst. 2.20, 1, is “donatio testamento
relicta.” Thus the notion of a legatum implies both that of a
testament and that of a universal succession. There might be fideicommissa
or trust bequests, but there could be no legata, without a testament: and by
a testament the deceased person's
universitas
juris devolves on the heir or person
in loco
heredis [
BONORUM POSSESSIO]. The testator first bestows his
hereditas--the aggregate of his proprietary
relations--on his heir or heirs, and any legacies which he may proceed to
give are so much deducted from what the heir would otherwise have. And the
rule that there can be no legatum without a will was never altered, though,
from the time of the classical jurists onwards, it had been so far relaxed
as to admit the validity of legacies given in
codicilli confirmed by the will: “legatum codicillis
relictum non aliter valet, quam si a testatore confirmati fuerint, id
est nisi in testamento caverit testator, ut quicquid in codicillis
scripserit, id ratum sit” (Gaius, 2.270 a). The fact that the
heir suffered by every legacy given explains the phrase
ab herede legare, to give a legacy away from the heir (
Cic. Clu. 12;
Dig. 30,
16). The Roman term for the legatee is
legatarius. He did not succeed in any way to the
universum jus of the deceased
(
Inst. 2.10, 11), and for that reason he could not in his
turn be charged with the payment of a legatum out of what was given him,
though he could be saddled with a
[p. 2.20]fideicommissum:
“a legatario legari non potest,” Gaius, 2.271.
The word
legatum contains the same element as
lex: legare is to dispose of a matter (e.
g. “legatum negotium,” Plaut.
Cas. 1.1, 12), and
it is used in this comprehensive sense to denote a man's testamentary
dispositions in general in the Twelve Tables: “verbis legis xii.
tabularum his, uti legassit suae rei, ita jus esto, latissima potestas
tributa videtur et heredes instituendi, et legata et libertates dandi,
tutelas quoque constituendi,”
Dig. 50,
16,
120. Ulpian accordingly explains the word
legatum by referring to its etymology, and likening
a legatum to a
lex properly so called: “A
legatum,” he says, “is that which is left by a testament,
legis modo, that is,
imperative; for those things which are left
precativo modo are called fideicommissa”
(
Reg. 24, 1). Being, as contrasted with a fideicommissum,
an institution of the
jus civile, it had always
under the older Roman law to be expressed in Latin (Gaius, 2.281; Ulp.
Reg. 25, 9), and (as will be seen below) in certain set
forms,
civilia verba. A legacy which was valid
or good was legatum
utile; one which was void
was
inutile; if it was free from all
conditions, it was
pure datum, or, as is said
in
Dig. 36,
2,
5, legatum
purum.
Originally there were four forms in which alone legata could be given, and up
to the time of Nero (and perhaps far later still), unless they were given in
one or other of them, they were void. These forms were called
per vindicationem, per damnationem, sinendi modo,
and
per praeceptionem. A legatum
per vindicationem was expressed thus: “L.
Titio hominem Stichum do lego;” or “L. Titius hominem
Stichum sumito, capito,” or “sibi habeto” (Gaius,
2.193). Its name was derived from the legatee's remedy, if anyone in
possession of the
res legata refused to give it
up: for immediately on the heir's acceptance of the inheritance the
ownership of the
res legata vested in the
legatee by operation of law (whence legatum is a mode in which ownership is
acquired): it became his
ex jure Quiritium, and
he could maintain a real action (
vindicatio)
for its recovery, though, as had been held by the Proculian school of
jurists, whose view was confirmed by Pius Antoninus, an acceptance express
or tacit was required on his part before the property became definitely his
(Gaius, 2.195). There was a similar difference of opinion between the
Sabinian and the Proculian schools in the case of a legacy
per vindicationem subject to a condition: the former
holding that the thing belonged to the
heres
during the pendency of the condition, while the latter maintained that in
the interval it was
res nullius (Gaius, 2.200).
Nothing, as a rule, could be bequeathed
per
vindicationem which did not belong to the testator
ex jure Quiritium, at the time both of the execution
of the will and of his decease, though it was sufficient if the so-called
res fungibiles ( “res quae pondere, numero
vel mensura constant,” e. g. wine, oil, corn, “pecunia
numerata,” &c.) were his
ex jure
Quiritium at the latter date only (Gaius, 2.196; Ulp.
Reg. 24, 7). If the same thing was given
per vindicationem to more than one person either
jointly (
conjunctim, e.g. “Titio et Seio
hominem Stichum do lego” ) so is to make them
collegatarii, or severally (
conjunctim, e.g. “Titio hominem Stichum do lego: Seio
eundem hominem do lego” ), each took an equal share: the share of
any who failed to take accrued to the rest in equal portions (Gaius, 2.199).
The form of legacy
per damnationem was
“Heres meus Stichum servum dare damnas esto” or
“dato.” In this mode a testator could lawfully bequeath
property which belonged to anyone (the heir being bound, if it belonged to a
third party, to do all he could to buy it, or, if this was impossible, to
pay its value to the legatee), and also things which were not in existence
at the time when the will was executed--e. g. the future offspring of an
ancilla or female slave. The result of
acceptance of the inheritance by the heir was different from that in legacy
per vindicationem: the
res legata did not become the property of the legatee by
operation of law, but a quasi-contractual obligation was established between
him and the heir, by virtue of which he was able to bring an
actio in personam for its transfer to him by the
appropriate mode of conveyance (
mancipatio, in jure
cessio, or
traditio). If the
legacy was of an ascertained sum of money and the heir denied his liability,
the legatee could, on proving his case, recover twice the original sum (
“infitiando lis crescit in duplum,” Gaius, 2.283;
Inst. 3.27, 7). There was a difference, too, in the
matter of joint legatees. If the same thing was given
per
damnationem to two or more persons
conjunctim, each took an equal share, though, if any failed,
their portion fell by the original law into the
hereditas, and did not accrue to the co-legatees: but the Lex
Papia made it
caducum, and gave it first to
collegatarii who had children, then to the
heredes who had children, and finally to the other
legatees who had children; a privilege alluded to by Juvenal (
dulce caducum, 9.88). Gaius says (2.208) that most
authorities held that the rules of the Lex Papia as to
caducitas applied also to “conjunctive” legacies
given
per vindicationem. In the case of a
legacy of the same thing given
per damnationem
to two or more persons
disjunctim, the heir had to
give it to one, and pay its full value to each of the rest (Gaius,
2.201-208).
The form of legacy
sinendi modo was “heres
meus damnas esto sinere L. Titium hominem Stichum sumere sibique
habere:” by means of it a testator could bequeath anything which
belonged either to himself or to his heir at the time of his decease, and,
as in the previous case, the legatee had merely an
actio
in personam against the
heres,
though it was doubted whether the form of bequest imposed any active duty on
the latter: it being argued that his only obligation was to allow the
legatee to “take” the object bequeathed to him. This difference
of opinion led to a similar difficulty where the same thing was given in
this form to two or more persons
disjunctim: it
being questioned whether the whole was due to each, or whether on the
principle of “first come first served” the heir's obligation
was not altogether satisfied when one of the legatees had got the
res legata. If the same thing was left to two or
more
conjunctim, they took it in common, but
without any right by accrual to the shares of any who failed to take (Gaius,
2.209-215).
Legatum
per praeceptionem was in the form
“L. Titius hominem Stichum praecipito.” The
[p. 2.21]Sabinian school held that
praecipere here meant “praecipuum sumere,” so that a
legacy could be left in this way only to one of two or more
coheredes, and not to anyone else: the legacy
meaning no more than that the testator wished one of his heirs to have some
specific piece of his property rather than any of the rest. Consistently
with this they maintained that the only action by which the legatee could
get the
res legata was that called
familiae erciscundae, the heir's partition suit, and
also that nothing could be left thus which was not the testator's at the
time of his decease: and finally they held that a bequest in this form to
any person other than an heir was not validated by the Senatusconsultum
Neronianum (of which below), because, according to them, that enactment
related only to defects of form, and had no bearing on legacies which were
void by reason of the incapacity or disqualification of the legatee. The
Proculians, on the other hand, were of opinion that a legacy could be given
to anyone
per praeceptionem, its effect being
much the same as if the form had been
per
vindicationem, and the legatee's remedy (as in that case) being a
real action: and Gaius says (2.221) that their view was held to be supported
by an enactment of Hadrian. If the same thing was thus left to more than
one, either
disjunctim or
conjunctim, each had only his share.
Per
vindicationem, praeceptionem, and
sinendi
modo, only
res corporales and
jura in re aliena could be bequeathed:
per damnationem, anything whatever could be
bequeathed which could be the object of an obligation.
The importance of precisely observing these forms was considerably diminished
by a senatusconsult of Nero, A.D. 64: “Sc°. Neroniano cautum
est, ut quod minus aptis (ratis?) verbis legatum est, perinde ac si
optimo jure legatum esset: optimum autem jus legati per damnationem
est,” Ulpian,
Reg. 24, 11. The effect of this seems to
have been that a legacy given
per vindicationem, sinendi
modo, or
per praeceptionem, which
would hitherto have been void owing to the neglect of some formal rule
applicable to the particular form employed, was now to be taken to have been
given
per damnationem (e. g. Gaius, 2.197, 212,
218, 220); though Gaius' words in § 218 suggest that the
senatusconsult may have dispensed with the necessity of observing any one of
the four established forms at all, while it still required the use of Latin.
Some hundreds of years later testators were enabled by enactments of
Constantius, A.D. 339, and Theodosius II., A.D. 439, to give legacies in any
words they chose, whether Greek or Latin (Cod. 6, 37, 21; 6, 23, 21, 6).
Justinian finally assimilated the civil law legatum in every way to
fideicommissa, which had always been governed by laxer rules, both as to
form and substance. Any superiority in law which either had possessed over
the other was in future to be common to both, and the object of a bequest,
whether technically a legatum or a fideicommissum, was to be recovered by
the beneficiary by the most appropriate remedy, real or personal
(
Inst. 2.20, 3). The legatee acquired a
“real” right to the
res legata in
every case where it belonged to the testator, and in no other, unless indeed
the testator himself expressed a contrary intention (Cod. 6, 43, 1): he
acquired a personal right against the heir in every case, and this was
secured by a statutory hypotheca, first given by Justinian himself, over
everything which the person on whom the legacy or fideicommissum was charged
had himself received from the inheritance (Cod. 6, 43, 2). In their
celebrated phrase “uti legassit,” &c., the Twelve
Tables were interpreted to have given testators absolute freedom to dispose
of their property as they pleased. The result was that they were commonly so
lavish in legacies as to leave practically nothing to the instituted
heres, so that the latter refused the
inheritance, and the deceased became intestate (Gaius, 2.224). The Roman
dislike of intestacy accordingly led to a series of statutes restricting the
freedom of testamentary disposition conferred by the Twelve Tables. The
first of these was the Lex Furia testamentaria, B.C. 183 (Gaius, 2.225,
4.23, 24; Ulpian,
Reg. 1.2; 28, 7; Varro, 3; Cic.
pro Balbo, 8), which imposed a penalty of four times
the excess upon anyone (except the cognates, if any, of the person by whom
the testator had been emancipated or manumitted, Ulpian,
l.c.), who took by way of legacy or
donatio
mortis causa more than 1000 asses from the same person. But
this enactment, as Gaius remarks, altogether failed in its object, because
it did not prevent a man from giving as many several thousands to as many
persons as he pleased, and so exhausting the estate. The Lex Voconia (Cic.
pro Balbo, l.c.;
in Verr. 2,
1, 42, 43;
de Senect. 5;
de Fin.
2, 17;
de Republ. 3, 10), fourteen years later in date,
enacted (according to Gaius, 2.226) that no one should take as legatee or
donee
mortis causa more than the heir or any
one of two or more coheirs: but in reality it seems to have only been a
relaxation of the Lex Furia in favour of wealthy testators; any person
ranked in the first class of the census as possessing 100,000 sesterces or
upwards (Cic.
in Verr. l.c.) being allowed to bequeath away
as much as he pleased, provided no legacy or gift
mortis
causa exceeded the proportion specified. In any case it was no
less a failure than the Lex Furia, because by the testator distributing his
property among numerous legatees the
heres
might have so small a portion as not to make it worth his while to assume
the burdens and liabilities attached to the
hereditas. The Lex Falcidia (
D. C.
48.33;
Plin. Ep. 5,
1; Isidor.
Origg. 5, 15), passed
B.C. 40, eventually provided a satisfactory remedy by enacting that, if a
testator gave more than three-fourths of his property in legacies, these
must abate proportionately, the heir or heirs being in all cases entitled to
a clear fourth of the inheritance (see Gaius, 2.227;
Inst.
2.22). After the Lex Julia vicesimaria the state had a direct interest in
the upholding of testaments, and so in the Lex Falcidia, so that, if a
testator forbade his heir to deduct the “Falcidian fourth,” the
jurists held the prohibition void: but by Justinian this was allowed
(
Nov. 1.2; 119.11). For the extension of the principle of
the Lex Falcidia to trust bequests [
FIDEICOMMISSUM], see Gaius, 2.254;
Inst. 2.23, 5;
Dig. 35,
2,
18: and to
donationes mortis causa,
Dig. 24,
1,
32,
1;
31,
77,
1.
The chief rules as to the necessary form
[p. 2.22]of legacies
have already been touched on. Under the older law it had been impossible
validly to give a bequest before the institution of the heir, because the
latter was “caput et fundamentum totius testamenti” (Gaius,
2.229), but this restriction was eventually removed by Justinian
(
Inst. 2.20, 34). The other grounds upon which a legacy
might be void are: (1) The character of the legatee; (2) the character of
the bequest itself; and (3) the legal character of the
res legata.
1. A legacy was void if left to a person who had not the
commercium (in particular
peregrini), for without the
commercium he had no
testamentifactio.
Latini Juniani, though possessed of
commercium,
were expressly disabled by the Lex Junia Norbana from taking any benefit
under a will either as heirs or legatees (Gaius, 1.23, 24) [
LATINITAS]. Until quite late
again in the history of Roman law, no legacy could be validly given to
incertae personae (including
postumi alieni, children unborn at the making of the
will, and who on being born would not be in the testator's potestas): an
incerta persona being one of whom the
testator had no determinate conception ( “quam per incertam opinionem
animo suo testator subjicit,” Gaius, 2.238). But even in Gaius's
time a legacy to an
incerta persona
“sub certa demonstratione” was good (e. g. “ex cognatis
meis qui nunc sunt, qui primus ad funus meum venerit, ei decem milia
heres meus dato,” Gaius,
l.c.); and
between the times of Gaius and Justinian the rule about
incertae personae was gradually so broken down that in the
latter's legislation its only remaining trace is that certain corporations
cannot validly be either instituted heirs or made legatees without special
permission from the emperor. Lastly, the Proculian school, arguing on the
so-called “regula Catoniana” (
Dig. 34,
7,
1), held that no
legacy could validly be given to any person in the power of the instituted
heir. The Sabinians, whose view was adopted as law by Justinian
(
Inst. 2.20, 32), were of opinion that a legacy might
well be given to such person
sub conditione,
i.e. provided he was not in the power of the heir when the latter accepted
the inheritance; while Servius Sulpicius had thought such a bequest good at
the outset, even though unconditionally expressed; though liable to become
void by the legatee being in the
institutus'
power at the testator's decease (Gaius, 2.244). A legacy to the dominus or
paterfamilias in whose potestas the instituted heir was was not void
(according to Gaius, 2.245, confirmed by Justinian, 2.20, 33), though it
would be extinguished if the dominus or paterfamilias became heir through
the instituted slave or son, because a man could not owe a thing to himself:
but if the son was emancipated, or the slave was manumitted or transferred
to another, so that the former became heir for himself, or the latter made
another person heir, the legacy was due to the father or former master.
Ulpian, however, had held such a legacy void
ab
initio (
Beg. 24, 24).
2. Legacies given to take effect only after the death of the heir (e. g. in
the forms “cum heres meus mortuus erit” or “pridie quam
heres meus morietur” ) were void under the earlier law, though
Gaius says (2.232) that in the form “cum heres morietur” or
“moriatur” they were good: a distinction which he himself
considers was “non pretiosa ratione receptum.” Under Justinian,
however, all these forms were equally valid (
Inst. 2.20, 35).
Similarly, up till the time of that emperor, legacies given
poenae nomine, i.e. for the purpose of inducing the
heir to do, or not to do, some particular act (e. g. “si heres meus
filiam suam Titio in matrimonium collocaverit, decem milia Seio
dato,” Gaius, 2.235), were void: but Justinian repealed this rule
except where the act or forbearance which the testator wished to secure was
either illegal or
contra bonos mores
((
Inst. 2.20, 36).
3. A legacy of a
res extra commercium (e.g. a
basilica or a temple) was void (
Inst. 2.20, 4); as also was
one of property which at the moment of the execution of the will already
belonged to the legatee (ib. 10).
The objects of a legatum (things which could be bequeathed) comprise tangible
objects, whether the testator's own or some other person's (the heir in this
case being bound to try and get them for the legatee, otherwise to pay him
their value,
Inst. 2.20, 4), and whether actually in
existence or not, provided they probably will exist at some future time (ib.
7; Gaius, 2.203): release from a debt owed to the testator by the legatee
(ib. 13), or money owed to the latter by the testator, provided the legacy
put him in a better position than he was in before (ib. 14): claims of the
testator against third persons, the heir being bound to assign the legatee
his rights of action against them (ib. 21); in fact, any act or forbearance
which could lawfully be the object of an obligation in general: and finally
servitudes and other
jura in re aliena. By a
senatusconsultum passed about the end of the Republic, it became possible to
create by legacy a quasiusufiuct of “res quae usu consumuntur”
(e. g. wine), which could not be done by agreement
inter
vivos (
Cic. Top.
3;
Inst. 2.4, 2). But the legacy need not be of any
single thing, corporeal or incorporeal, nor even of any aggregate of them:
the heir might be directed to transfer a half or any other definite quota of
the
hereditas to a legatee ( “legatum
partitionis,”
Cic. de Legg. 2.2. 0;
pro Caec. 4; Ulpian,
Reg. 24, 25). In such
a case the instituted heir not unfrequently refused to accept unless
guaranteed
pro rata portione against creditors'
claims and other expenses, so that it became usual for the heir and partiary
legatee to enter into a formal contract ( “stipulationes partis et pro
parte” ), by which the latter engaged to indemnify the former
against liabilities in proportion to the share of the estate transferred to
him, and the former that he would hand over to the legatee his fair
proportion of the assets.
A legacy might be transferred from the legatee to another person, or
altogether taken away by another will, or
codicilli confirmed by the original testament
(
Inst. 2.21): it might also be revoked by erasure of the gift
from the will (
Dig. 34,
4,
16 and 17), or tacitly by any act from which it
could be gathered that the testator no longer wished the legatee to have
it--e. g. by alienation of the
res legata in
the testator's lifetime (
Inst. 2.20, 12;
Dig. 34,
4,
15).
The acquisition of
legata depends on the
[p. 2.23]meaning of two expressions--“dies (legati)
cedit,” and “dies (legati) venit,” which mark two
points of time in the history of the legatee's rights.
Dies cedit means that he acquires a provisional right to the
bequest: a right which he can only lose by failure of all instituted heirs
to accept under the will, so that if he dies immediately after
dies cedit, but before
dies
venit, the right passes to his heir. The date of this was the
testator's decease (altered by the Lex Papia Poppaea to the opening of the
will, but the old rule was restored in Justinian's time), unless the legacy
was subject to a condition precedent or a
dies ex
quo (e.g. six months after my decease), in which case
dies cedit only on the fulfilment of the condition
or the arrival of the
dies. Dies venit means
that the legatee acquires a right to demand the
res
legata by action: its date is acceptance of the inheritance by
the heir, unless
dies cedit itself occurs later
by reason of a condition precedent or a
dies ex
quo. (Gaius, 2.191-245;
Inst. 2.20; Ulpian,
Reg. 24; Paul.
Sent. rec. 3.6;
Dig. 30-
32; Cod. 6, 37; 6,
43; Rosshirt,
Die Lehre von den Vermächtnissen nach
röm. Rechte, Heidelberg, 1835.)
[
G.L] [
J.B.M]