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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]

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