Legātum
A legacy; a term of Roman law defined in the
Digest (31, 1, 36), as
donatio testamento relicta—i. e. a legatum implies a formal
testament and universal succession. A legacy could only be given in the Latin language. If
given unconditionally, it was said to be given
pure; if otherwise,
sub condicione.
There were four forms in which a legacy could be left:
per vindicationem, per
damnationem, sinendi modo, per praeceptionem.
A legatum
per vindicationem was given in these words:
Hominem
Stichum do, lego, or the words might be with reference to the legatee,
Capito,
sumito, sibi habeto. A legatum
per vindicationem was so called
with reference to the legal means by which the legatee asserted his right to the legacy
against the heir or any possessor, which was by a
vindicatio (q. v.) or
an
actio in rem (see
Actio); for
as soon as the
hereditatis aditio had taken place, the legatee had the
quiritary (
ex iure Quiritium) ownership of the legacy. If the same thing was
given to more than one person, either jointly (
coniunctim), so as to make
them
collegetarii, or severally (
disiunctim),
each took an equal share. A legatum was given
coniunctim, thus:
Titio et Seio hominem Stichum do, lego; disiunctim, thus:
Titio hominem
Stichum do, lego; Seio eundem hominem do, lego. If one
collegatarius failed to take, his portion went to the others.
The formula
per damnationem was this:
Heres meus Stichum servum
meum dare damnas esto; but the word dato was equally effective. A thing which
belonged to another (
aliena res) could be thus left, and the heres was
bound to procure the thing for the legatee, or to pay him the value of it. A thing not in
existence at the date of the will might be left by this form—i. e. the future
produce of a female slave (
ancilla). The legatee did not acquire the
quiritary ownership of the legacy by virtue of the
hereditatis aditio;
the thing still remained the property of the heir, and the legatee could only sue for it by an
actio in personam. If it was a thing
mancipi, the
legatee could only acquire the quiritary ownership of it by
mancipatio or
in
iure cessio from the heir; if it was merely delivered, the
legatarius only acquired the complete ownership (
plenum
ius) by
usucapion (q. v.).
The form of legacy
sinendi modo was “
Haeres meus damnas
esto sinere L. Titium hominem Stichum sumen sibique habere”, by
which formula the testator could bequeath anything that belonged 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 heir, 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.
The
legatum per praeceptionem was in this form:
Lucius Titius
hominem Stichum praecipito—i. e. “take first.” The
Sabiniani were of opinion that a legacy could only thus be left to one who was also made an
heir; but a
senatus consultum of Nero made the legacy good, even if it
was thus left to another than the heir, provided the legatee was a person to whom a legacy
could be left in any of the three other modes.
By the Twelve Tables, a man could dispose of his property as he pleased, and he might
exhaust (
erogare) the whole
hereditas by legacies
and bequests of freedom to slaves, so as to leave the heir nothing. The consequence was that
in such cases the heirs refused to take the
hereditas, and there was, of
course, an intestacy. The first legislative measure on this subject was the Lex Furia
Testamentaria (B.C. 183), which did not allow a testator to give as a
donatio
mortis causa or as a legacy more than a thousand asses to one person, certain relatives
excepted. But this measure did not prevent a man from giving as many several thousands to as
many persons as he pleased, and so exhausting his estate. The Lex Voconia (B.C. 169)
afterwards enacted that no person should take, by way of legacy or
donatio
mortis causa, more than the heirs (severally, as it seems); but this was also
ineffectual; for, by distributing the
hereditas among numerous legatees,
the heir might have so small a portion as not to make it worth his while to assume the burdens
attached to the inheritance. The Lex Falcidia (B.C. 40) at last took away all means of evasion
by declaring that a testator should not give more than three fourths in legacies, and thus a
fourth was secured to the heir. The Lex Falcidia applied to the wills of persons who died in
captivity (
apud hostes), for a previous Lex Cornelia had given to the
wills of such persons the same force as if they had died
cives.
Legata were
inutilia or void if they were given before an heir was
instituted by the will, for the will derived all its legal efficacy from such institution;
there was the same rule as to a gift of freedom. It was void if in form the gift was given
after the death of the heir, but it might be given on the event of his death; it was also void
if given in form on the day before the death of the testator. A legatum could not be left in
the way of a penalty (
poenae nomine）—that is, for the purpose
of compelling the heir to do, or restraining him from doing, any particular act. A legacy
could not be left to an uncertain person (
incerta persona). The notion of
an uncertain person was not of a person who could never be ascertained, but the notion of the
uncertainty was referred to the mind of the testator at the time of making his testament.
Accordingly, the person was not considered uncertain where he was one of a certain class, such
as
cognati, though the individual of the class might be uncertain till
the event happened which was to determine who out of the class was intended by the
testator. Such a form of bequest was called a
certa demonstratio incertae
personae. A legacy could not be left to a
postumus alienus, nor
could such a person be a
heres institutus, for he was an
incerta persona. It has been explained elsewhere who is a
postumus (see
Testamentum); a
postumus alienus is one who, when born, cannot be among the
sui heredes of the testator.
