my son disinherited,' or in these, 'Be my son disinherited,' without
inserting the name, supposing there is no other son. Children born
after the making of the will must also be either instituted heirs or
disinherited, and in this respect are similarly privileged, that if a
son or any other family heir, male or female, born after the making of
the will, be passed over in silence, the will, though originally valid,
is invalidated by the subsequent birth of the child, and so becomes
completely void. Consequently, if the woman from whom a child was
expected to have an abortive delivery, there is nothing to prevent the
instituted heirs from taking the inheritance. It was immaterial
whether the female family heirs born after the making of the will were
disinherited specially or by a general clause, but if the latter mode be
adopted, some legacy must be left them in order that they may not seem
to have been passed over merely through inadvertence: but male
family heirs born after the making of the will, sons and other lineal
descendants, are held not to be properly disinherited unless they are
disinherited specially, thus: 'Be any son that shall be born to me
disinherited.'
2 With children born after the making of the will are classed children
who succeed to the place of a family heir, and who thus, by an event
analogous to subsequent birth, become family heirs to an ancestor.
For instance, if a testator have a son, and by him a grandson or
granddaughter in his power, the son alone, being nearer in degree,
has the right of a family heir, although the grandchildren are in the
testator's power equally with him. But if the son die in the testator's
lifetime, or is in some other way released from his power, the
grandson and granddaughter succeed to his place, and thus, by a kind of
subsequent birth, acquire the rights of family heirs. To prevent this
subsequent avoidance of one's will, grandchildren by a son must be
either instituted heirs or disinherited, exactly as, to secure the
original validity of a testament, a son must be either instituted or
specially disinherited; for if the son die in the testator's lifetime,
the grandson and granddaughter take his place, and avoid the will just
as if they were children born after its execution. And this disinherison
was first allowed by the lex Iunia Vallaea, which explains the form
which is to be used, and which resembles that employed in disinheriting
family heirs born after the making of a will.
3 It is not necessary, by the civil law, to either institute or
disinherit emancipated children, because they are not family heirs. But
the praetor requires all, females as well as males, unless instituted,
to be disinherited, males specially, females collectively; and if they
are neither appointed heirs nor disinherited as described, the praetor
promises them possession of goods against the will.
4 Adopted children, so long as they are in the power of their adoptive
father, are in precisely the same legal position as children born
in lawful wedlock; consequently they must be either instituted or
disinherited according to the rules stated for the disinherison of
natural children. When, however, they have been emancipated by their
adoptive father, they are no longer regarded as his children either
by the civil law or by the praetor's edict. Conversely, in relation to
their natural father, so long as they remain in the adoptive family they
are strangers, so that he need neither institute nor disinherit them:
but when emancipated by their adoptive father, they have the same rights
in the succession to their natural father as they would have had if it
had been he by whom they were emancipated. Such was the law introduced
by our predecessors.
5 Deeming, however, that between the sexes, to each of which nature
assigns an equal share in perpetuating the race of man, there is in this
matter no real ground of distinction, and marking that, by the ancient
statute of the Twelve Tables, all were called equally to the succession
on the death of their ancestor intestate (which precedent the praetors
also seem to have subsequently followed), we have by our constitution
introduced a simple system of the same kind, applying uniformly to sons,
daughters, and other descendants by the male line, whether born before
or after the making of the will. This requires that all children,
whether family heirs or emancipated, shall be specially disinherited,
and declares that their pretermission shall have the effect of avoiding
the will of their parent, and depriving the instituted heirs of the
inheritance, no less than the pretermission of children who are family
heirs or who have been emancipated, whether already born, or born after,
though conceived before the making of the will. In respect of adoptive
children we have introduced a distinction, which is explained in our
constitution on adoptions.
6 If a soldier engaged on actual service makes a testament without
specially disinheriting his children, whether born before or after the
making of the will, but simply passing over them in silence, though he
knows that he has children, it is provided by imperial constitutions
that his silent pretermission of them shall be equivalent to special
disinherison.
7 A mother or maternal grandfather is not bound to institute her or his
children or grandchildren; they may simply omit them, for silence on the
part of a mother, or of a maternal grandfather or other ascendant, has
the same effect as actual disinherison by a father. For neither by the
civil law, nor by that part of the praetor's edict in which he promises
children who are passed over possession of goods against the will, is
a mother obliged to disinherit her son or daughter if she does not
institute them heirs, or a maternal grandfather to be equally precise
with reference to grandchildren by a daughter: though such children and
grandchildren, if omitted, have another remedy, which will shortly be
explained.
TITLE XIV. OF THE INSTITUTION OF THE HEIR
A man may institute as his heirs either free men or slaves, and either
his own slaves or those of another man. If he wished to institute
his own slave it was formerly necessary, according to the more common
opinion, that he should expressly give him his liberty in the will:
but now it is lawful, by our constitution, to institute one's own slave
without this express manumission--a change not due to any spirit of
innovation, but to a sense of equity, and one whose principle was
approved by Atilicinus, as it is stated by Seius in his books on
Masurius Sabinus and on Plautius. Among a testator's own slaves is to be
reckoned one of whom he is bare owner, the usufruct being vested in some
other person. There is, however, one case in which the institution of a
slave by his mistress is void, even though freedom be given him in
the will, as is provided by a constitution of the Emperors Severus and
Antoninus in these terms: 'Reason demands that no slave, accused of
criminal intercourse with his mistress, shall be capable of being
manumitted, before his sentence is pronounced, by the will of the woman
who is accused of participating in his guilt: accordingly if he be
instituted heir by that mistress, the institution is void.' Among 'other
persons' slaves' is reckoned one in whom the testator has a usufruct.
1 If a slave is instituted heir by his own master, and continues in that
condition until his master's decease, he becomes by the will both free,
and necessary heir. But if the testator himself manumits him in his
lifetime, he may use his own discretion about acceptance; for he is not
a necessary heir, because, though he is named heir to the testament, it
was not by that testament that he became free. If he has been alienated,
he must have the order of his new master to accept, and then his master
becomes heir through him, while he personally becomes neither heir nor
free, even though his freedom was expressly given him in the testament,
because by alienating him his former master is presumed to have
renounced the intention of enfranchising him. When another person's
slave is instituted heir, if he continues in the same condition he
must have the order of his master to accept; if alienated by him in
the testator's lifetime, or after the testator's death but before
acceptance, he must have the order of the alienee to accept; finally, if
manumitted in the testator's lifetime, or after the testator's death but
before acceptance, he may accept or not at his own discretion.
2 A slave who does not belong to the testator may be instituted heir
even after his master's decease, because slaves who belong to an
inheritance are capable of being instituted or made legatees; for an
inheritance not yet accepted represents not the future heir but the
person deceased. Similarly, the slave of a child conceived but not yet
born may be instituted heir.
3 If a slave belonging to two or more joint owners, both or all of whom
are legally capable of being made heirs or legatees, is instituted heir
by a stranger, he acquires the inheritance for each and all of the joint
owners by whose orders he accepts it in proportion to the respective
shares in which they own him.
4 A testator may institute either a single heir, or as many as he
pleases.
5 An inheritance is usually divided into twelve ounces, and is denoted
in the aggregate by the term as, and each fraction of this aggregate,
ranging from the ounce up to the as or pound, has its specific name, as
follows: sextans (1/6), quadrans (1/4), triens (1/3), quincunx (5/12),
semis (1/2), septunx (7/12), bes (2/3), dodrans (3/4), dextans (5/6),
deunx (11/12), and as it is not necessary, however, that there
should always be twelve ounces, for for the purposes of testamentary
distribution an as may consist of as many ounces as the testator
pleases; for instance, if a testator institutes only a single heir,
but declares that he is to be heir ex semisse, or to one half of the
inheritance, this half will really be the whole, for no one can die
partly testate and partly intestate, except soldiers, in the carrying
out of whose wills the intention is the only thing regarded. Conversely,
a testator may divide his inheritance into as large a number of ounces
as he pleases.
6 If more heirs than one are instituted, it is unnecessary for the
testator to assign a specific share in the inheritance to each, unless
he intends that they shall not take in equal portions; for it is obvious
that if no shares are specified they divide the inheritance equally
between them. Supposing, however, that specific shares are assigned to
all the instituted heirs except one, who is left without any express
share at all, this last heir will be entitled to any fraction of the as
which has not been disposed of; and if there are two or more heirs
to whom no specific shares have been assigned, they will divide this
unassigned fraction equally between them. Finally, if the whole as has
been assigned in specific shares to some of the heirs, the one or more
who have no specific shares take half of the inheritance, while the
other half is divided among the rest according to the shares assigned to
them; and it is immaterial whether the heir who has no specified share
come first or last in the institution, or occupies some intermediate
place; for such share is presumed to be given to him as is not in some
other way disposed of.
7 Let us now see how the law stands if some part remains undisposed of,
and yet each heir has his share assigned to him--if, for instance
there are three heirs instituted, and each is assigned a quarter of the
inheritance. It is evident that in this case the part undisposed of will
go to them in proportion to the share each has assigned to him by
the will, and it will be exactly as if they had each been originally
instituted to a third. Conversely, if each heir is given so large a
fraction that the as will be exceeded, each must suffer a proportionate
abatement; thus if four heirs are instituted, and to each is assigned
a third of the inheritance, it will be the same as if each had been
originally instituted to a quarter.
8 If more than twelve ounces are distributed among some of the heirs
only, one being left without a specific share, he will have what is
wanting to complete the second as; and the same will be done if more
than twenty-four ounces are distributed, leaving him shareless; but all
these ideal sums are afterwards reduced to the single as, whatever be
the number of ounces they comprise.
9 The institution of the heir may be either absolute or conditional, but
no heir can be instituted from, or up to, some definite date, as, for
instance, in the following form--'be so and so my heir after five years
from my decease,' or 'after the calends of such a month,' or 'up to and
until such calends'; for a time limitation in a will is considered a
superfluity, and an heir instituted subject to such a time limitation is
treated as heir absolutely.
10 If the institution of an heir, a legacy, a fiduciary bequest, or a
testamentary manumission is made to depend on an impossible condition,
the condition is deemed unwritten, and the disposition absolute.
11 If an institution is made to depend on two or more conditions,
conjunctively expressed,--as, for instance, 'if this and that shall be
done'--all the conditions must be satisfied: if they are expressed
in the alternative, or disjunctively--as 'if this or that shall be
done'--it is enough if one of them alone is satisfied.
12 A testator may institute as his heir a person whom he has never seen,
for instance, nephews who have been born abroad and are unknown to him:
for want of this knowledge does not invalidate the institution.
TITLE XV. OF ORDINARY SUBSTITUTION
A testator may institute his heirs, if he pleases, in two or more
degrees, as, for instance, in the following form: 'If A shall not be
my heir, then let B be my heir'; and in this way he can make as many
substitutions as he likes, naming in the last place one of his own
slaves as necessary heir, in default of all others taking.
1 Several may be substituted in place of one, or one in place of
several, or to each heir may be substituted a new and distinct person,
or, finally, the instituted heirs may be substituted reciprocally in
place of one another.
2 If heirs who are instituted in equal shares are reciprocally
substituted to one another, and the shares which they are to have in
the substitution are not specified, it is presumed (as was settled by
a rescript of the Emperor Pius) that the testator intended them to take
the same shares in the substitution as they took directly under the
will.
3 If a third person is substituted to one heir who himself is
substituted to his coheir, the Emperors Severus and Antoninus decided
by rescript that this third person is entitled to the shares of both
without distinction.
4 If a testator institutes another man's slave, supposing him to be an
independent person, and substitutes Maevius in his place to meet the
case of his not taking the inheritance, then, if the slave accepts
by the order of his master, Maevius is entitled to a half. For, when
applied to a person whom the testator knows to be in the power of
another, the words 'if he shall not be my heir' are taken to mean 'if
he shall neither be heir himself nor cause another to be heir'; but when
applied to a person whom the testator supposes to be independent, they
mean 'if he shall not acquire the inheritance either for himself, or for
that person to whose power he shall subsequently become subject,' and
this was decided by Tiberius Caesar in the case of his slave Parthenius.
TITLE XVI. OF PUPILLARY SUBSTITUTION
To children below the age of puberty and in the power of the testator,
not only can such a substitute as we have described be appointed, that
is, one who shall take on their failing to inherit, but also one who
shall be their heir if, after inheriting, they die within the age of
puberty; and this may be done in the following terms, 'Be my son Titius
my heir; and if he does not become my heir, or, after becoming my heir,
die before becoming his own master (that is, before reaching puberty),
then be Seius my heir.' In which case, if the son fails to inherit,
the substitute is the heir of the testator; but if the son, after
inheriting, dies within the age of puberty, he is the heir of the son.
For it is a rule of customary law, that when our children are too young
to make wills for themselves, their parents may make them for them.
1 The reason of this rule has induced us to assert in our Code a
constitution, providing that if a testator has children, grandchildren,
or greatgrandchildren who are lunatics or idiots, he may, after the
analogy of pupillary substitution, substitute certain definite persons
to them, whatever their sex or the nearness of their relationship to
him, and even though they have reached the age of puberty; provided
always that on their recovering their faculties such substitution shall
at once become void, exactly as pupillary substitution proper ceases to
have any operation after the pupil has reached puberty.
2 Thus, in pupillary substitution effected in the form described, there
are, so to speak, two wills, the father's and the son's, just as if the
son had personally instituted an heir to himself; or rather, there is
one will dealing with two distinct matters, that is, with two distinct
inheritances.
3 If a testator be apprehensive that, after his own death, his son,
while still a pupil, may be exposed to the danger of foul play, because
another person is openly substituted to him, he ought to make the
ordinary substitution openly, and in the earlier part of the testament,
and write the other substitution, wherein a man is named heir on the
succession and death of the pupil, separately on the lower part of the
will; and this lower part he should tie with a separate cord and fasten
with a separate seal, and direct in the earlier part of the will that it
shall not be opened in the lifetime of the son before he attains the age
of puberty. Of course a substitution to a son under the age of puberty
is none the less valid because it is a integral part of the very will
in which the testator has instituted him his heir, though such an open
substitution may expose the pupil to the danger of foul play.
4 Not only when we leave our inheritance to children under the age
of puberty can we make such a substitution, that if they accept the
inheritance, and then die under that age, the substitute is their heir,
but we can do it when we disinherit them, so that whatever the pupil
acquires by way of inheritance, legacy or gift from his relatives or
friends, will pass to the substitute. What has been said of
substitution to children below the age of puberty, whether instituted or
disinherited, is true also of substitution to afterborn children.
5 In no case, however, may a man make a will for his children unless
he makes one also for himself; for the will of the pupil is but a
complementary part of the father's own testament; accordingly, if the
latter is void, the former will be void also.
6 Substitution may be made either to each child separately, or only to
such one of them as shall last die under the age of puberty. The first
is the proper plan, if the testator's intention is that none of them
shall die intestate: the second, if he wishes that, as among them, the
order of succession prescribed by the Twelve Tables shall be strictly
preserved.
7 The person substituted in the place of a child under the age of
puberty may be either named individually--for instance, Titius--or
generally prescribed, as by the words 'whoever shall be my heir'; in
which latter case, on the child dying under the age of puberty,
those are called to the inheritance by the substitution who have been
instituted heirs and have accepted, their shares in the substitution
being proportionate to the shares in which they succeeded the father.
8 This kind of substitution may be made to males up to the age of
fourteen, and to females up to that of twelve years; when this age is
once passed, the substitution becomes void.
9 To a stranger, or a child above the age of puberty whom a man has
instituted heir, he cannot appoint a substitute to succeed him if he
take and die within a certain time: he has only the power to bind him by
a trust to convey the inheritance to another either wholly or in part;
the law relating to which subject will be explained in its proper place.
TITLE XVII. OF THE MODES IN WHICH WILLS BECOME VOID
A duly executed testament remains valid until either revoked or
rescinded.
1 A will is revoked when, though the civil condition of the testator
remains unaltered, the legal force of the will itself is destroyed, as
happens when, after making his will, a man adopts as his son either an
independent person, in which case the adoption is effected by imperial
decree, or a person already in power, when it is done through the agency
of the praetor according to our constitution. In both these cases the
will is revoked, precisely as it would be by the subsequent birth of a
family heir.
2 Again, a subsequent will duly executed is a revocation of a prior
will, and it makes no difference whether an heir ever actually takes
under it or not; the only question is whether one might conceivably have
done so. Accordingly, whether the person instituted declines to be heir,
or dies in the lifetime of the testator, or after his death but before
accepting the inheritance, or is excluded by failure of the condition
under which he was instituted--in all the cases the testator dies
intestate; for the earlier will is revoked by the later one, and the
later one is inoperative, as no heir takes under it.
3 If, after duly making one will, a man executes a second one which is
equally valid, the Emperors Severus and Antoninus decided by rescript
that the first is revoked by the second, even though the heir instituted
in the second is instituted to certain things only. The terms of this
enactment we have ordered to be inserted here, because it contains
another provision. 'The Emperors Severus and Antoninus to Cocceius
Campanus. A second will, although the heir named therein be instituted
to certain things only, is just as valid as if no mention of the things
had been made: but the heir is bound to content himself with the things
given him, or with such further portion of the inheritance as will make
up the fourth part to which he is entitled under the lex Falcidia, and
(subject thereto) to transfer the inheritance to the persons instituted
in the earlier will: for the words inserted in the later will
undoubtedly contain the expression of a wish that the earlier one shall
remain valid.' This accordingly is a mode in which a testament may be
revoked.
4 There is another event by which a will duly executed may be
invalidated, namely, the testator's undergoing a loss of status: how
this may happen was explained in the preceding Book.
5 In this case the will may be said to be rescinded, though both those
that are revoked, and those that are not duly executed, may be said to
become or be rescinded; and similarly too those which are duly executed
but subsequently rescinded by loss of status may be said to be revoked.
However, as it is convenient that different grounds of invalidity should
have different names to distinguish them, we say that some wills are
unduly executed from the commencement, while others which are duly
executed are either revoked or rescinded.
6 Wills, however, which, though duly executed, are subsequently
rescinded by the testator's undergoing loss of status are not altogether
inoperative: for if the seals of seven witnesses are attached, the
instituted heir is entitled to demand possession in accordance with the
will, if only the testator were a citizen of Rome and independent at
the time of his decease; but if the cause of the rescission was
the testator's subsequent loss of citizenship or of freedom, or his
adoption, and he dies an alien, or slave, or subject to his adoptive
father's power, the instituted heir is barred from demanding possession
in accordance with the will.
7 The mere desire of a testator that a will which he has executed shall
no longer have any validity is not, by itself, sufficient to avoid
it; so that, even if he begins to make a later will, which he does not
complete because he either dies first, or changes his mind, the first
will remains good; it being provided in an address of the Emperor
Pertinax to the Senate that one testament which is duly executed is not
revoked by a later one which is not duly and completely executed; for an
incomplete will is undoubtedly null.
8 In the same address the Emperor declared that he would accept no
inheritance to which he was made heir on account of a suit between the
testator and some third person, nor would he uphold a will in which he
was instituted in order to screen some legal defect in its execution,
or accept an inheritance to which he was instituted merely by word of
mouth, or take any testamentary benefit under a document defective in
point of law. And there are numerous rescripts of the Emperors Severus
and Antoninus to the same purpose: 'for though,' they say, 'the laws do
not bind us, yet we live in obedience to them.'
TITLE XVIII. OF AN UNDUTEOUS WILL
Inasmuch as the disinherison or omission by parents of their children
has generally no good reason, those children who complain that they have
been wrongfully disinherited or passed over have been allowed to bring
an action impeaching the will as unduteous, under the pretext that the
testator was of unsound mind at the time of its execution. This does
not mean that he was really insane, but that the will, though legally
executed, bears no mark of that affection to which a child is entitled
from a parent: for if a testator is really insane, his will is void.
1 Parents may impeach the wills of their children as unduteous, as well
as children those of their parents. Brothers and sisters of the testator
are by imperial constitutions preferred to infamous persons who are
instituted to their exclusion, so that it is in these cases only that
they can bring this action. Persons related to the testator in a further
degree than as brothers or sisters can in no case bring the action, or
at any rate succeed in it when brought.
2 Children fully adopted, in accordance with the distinction drawn in
our constitution, can bring this action as well as natural children, but
neither can do so unless there is no other mode in which they can obtain
the property of the deceased: for those who can obtain the inheritance
wholly or in part by any other title are barred from attacking a will as
unduteous. Afterborn children too can employ this remedy, if they can by
no other means recover the inheritance.
3 That they may bring the action must be understood to mean, that
they may bring it only if absolutely nothing has been left them by the
testator in his will: a restriction introduced by our constitution out
of respect for a father's natural rights. If, however, a part of the
inheritance, however small, or even a single thing is left them, the
will cannot be impeached, but the heir must, if necessary, make up what
is given them to a fourth of what they would have taken had the testator
died intestate, even though the will does not direct that this fourth is
to be made up by the assessment of an honest and reliable man.
4 If a guardian accepts, under his own father's will, a legacy on behalf
of the pupil under his charge, the father having left nothing to him
personally, he is in no way debarred from impeaching his father's will
as unduteous on his own account.
5 On the other hand, if he impeaches the will of his pupil's father on
the pupil's behalf, because nothing has been left to the latter, and is
defeated in the action, he does not lose a legacy given in the same will
to himself personally.
6 Accordingly, that a person may be barred from the action impeaching
the will, it is requisite that he should have a fourth of what he would
have taken on intestacy, either as heir, legatee direct or fiduciary,
donee in contemplation of death, by gift from the testator in his
lifetime (though gift of this latter kind bars the action only if made
under any of the circumstances mentioned in our constitution) or in any
of the other modes stated in the imperial legislation.
7 In what we have said of the fourth we must be understood to mean that
whether there be one person only, or more than one, who can impeach the
will as unduteous, onefourth of the whole inheritance may be given them,
to be divided among them all proportionately, that is to say, to each
person a fourth of what he would have had if the testator had died
intestate.
TITLE XIX. OF THE KINDS AND DIFFERENCES BETWEEN HEIRS
Heirs are of three kinds, that is to say, they are either necessary,
family heirs and necessary, or external.
1 A necessary heir is a slave of the testator, whom he institutes as
heir: and he is so named because, willing or unwilling, and without
any alternative, he becomes free and necessary heir immediately on the
testator's decease. For when a man's affairs are embarrassed, it is
common for one of his slaves to be instituted in his will, either in
the first place, or as a substitute in the second or any later place, so
that, if the creditors are not paid in full, the heir may be insolvent
rather than the testator, and his property, rather than the testator's,
may be sold by the creditors and divided among them. To balance this
disadvantage he has this advantage, that his acquisitions after the
testator's decease are for his own sole benefit; and although the estate
of the deceased is insufficient to pay the creditors in full, the heir's
subsequent acquisitions are never on that account liable to a second
sale.
2 Heirs who are both family heirs and necessary are such as a son or a
daughter, a grandchild by a son, and further similar lineal descendants,
provided that they are in the ancestor's power at the time of his
decease. To make a grandson or granddaughter a family heir it is,
however, not sufficient for them to be in the grandfather's power at
the moment of his decease: it is further requisite that their own father
shall, in the lifetime of the grandfather, have ceased to be the family
heir himself, whether by death or by any other mode of release from
power: for by this event the grandson and granddaughter succeed to the
place of their father. They are called family heirs, because they are
heirs of the house, and even in the lifetime of the parent are to a
certain extent deemed owners of the inheritance: wherefore in intestacy
the first right of succession belongs to the children. They are called
necessary heirs because they have no alternative, but, willing or
unwilling, both where there is a will and where there is not, they
become heirs. The praetor, however, permits them, if they wish, to
abstain from the inheritance, and leave the parent to become insolvent
rather than themselves.
3 Those who are not subject to the testator's power are called external
heirs. Thus children of ours who are not in our power, if instituted
heirs by us, are deemed external heirs; and children instituted by their
mother belong to this class, because women never have children in
their power. Slaves instituted heirs by their masters, and manumitted
subsequently to the execution of the will, belong to the same class.
4 It is necessary that external heirs should have testamentary capacity,
whether it is an independent person, or some one in his power, who is
instituted: and this capacity is required at two times; at the same time
of the making of the will, when, without it, the institution would be
void; and at the same time of the testator's decease, when, without
it, the institution would have no effect. Moreover, the instituted
heir ought to have this capacity also at the time when he accepts
the inheritance, whether he is instituted absolutely or subject to a
condition; and indeed it is especially at this time that his capacity to
take ought to be looked to. If, however, the instituted heir undergoes
a loss of status in the interval between the making of the will and
the testator's decease, or the satisfaction of the condition subject to
which he was instituted, he is not thereby prejudiced: for, as we
said, there are only three points of time which have to be regarded.
Testamentary capacity thus does not mean merely capacity to make a will;
it also means capacity to take for oneself, or for the father or master
in whose power one is, under the will of another person: and this latter
kind of testamentary capacity is quite independent of the capacity to
make a will oneself. Accordingly, even lunatics, deaf persons, afterborn
children, infants, children in power, and other persons' slaves are said
to have testamentary capacity; for though they cannot make a valid will,
they can acquire for themselves or for another under a will made by
someone else.
5 External heirs have the privilege of deliberating whether they will
accept or disclaim an inheritance. But if a person who is entitled
to disclaim interferes with the inheritance, or if one who has the
privilege of deliberation accepts it, he no longer has the power of
relinquishing it, unless he is a minor under the age of twentyfive
years, for minors obtain relief from the praetor when they incautiously
accept a disadvantageous inheritance, as well as when they take any
other injudicious step.
6 It is, however, to be observed that the Emperor Hadrian once relieved
even a person who had attained his majority, when, after his accepting
the inheritance, a great debt, unknown at the time of acceptance, had
come to light. This was but the bestowal of an especial favour on
a single individual; the Emperor Gordian subsequently extended the
privilege, but only to soldiers, to whom it was granted as a class. We,
however, in our benevolence have placed this benefit within the reach of
all our subjects, and drafted a constitution as just as it is splendid,
under which, if heirs will but observe its terms, they can accept an
inheritance without being liable to creditors and legatees beyond the
value of the property. Thus so far as their liability is concerned there
is no need for them to deliberate on acceptance, unless they fail to
observe the procedure of our constitution, and prefer deliberation, by
which they will remain liable to all the risks of acceptance under the
older law.
7 An external heir, whether his right accrue to him under a will or
under the civil law of intestate succession, can take the inheritance
either by acting as heir, or by the mere intention to accept. By acting
as heir is mean, for instance, using things belonging to the inheritance
as one's own, or selling them, or cultivating or giving leases of the
deceased's estates, provided only one expresses in any way whatsoever,
by deed or word, one's intention to accept the inheritance, so long as
one knows that the person with whose property one is thus dealing has
died testate or intestate, and that one is that person's heir. To act as
heir, in fact, is to act as owner, and the ancients often used the term
'heir' as equivalent to the term 'owner.' And just as the mere intention
to accept makes an external heir heir, so too the mere determination not
to accept bars him from the inheritance. Nothing prevents a person who
is born deaf or dumb, or who becomes so after birth, from acting as heir
and thus acquiring the inheritance, provided only he knows what he is
doing.
TITLE XX. OF LEGACIES
Let us now examine legacies:--a kind of title which seems foreign to
the matter at hand, for we are expounding titles whereby aggregates of
rights are acquired; but as we have treated in full of wills and heirs
appointed by will, it was natural in close connexion therewith to
consider this mode of acquisition.
1 Now a legacy is a kind of gift left by a person deceased;
2 and formerly they were of four kinds, namely, legacy by vindication,
by condemnation, by permission, and by preception, to each of which a
definite form of words was appropriated by which it was known, and which
served to distinguish it from legacies of the other kinds. Solemn
forms of words of this sort, however, have been altogether abolished by
imperial constitutions; and we, desiring to give greater effect to the
wishes of deceased persons, and to interpret their expressions with
reference rather to those wishes than to their strict literal meaning,
have issued a constitution, composed after great reflection, enacting
that in future there shall be but one kind of legacy, and that, whatever
be the terms in which the bequest is couched, the legatee may sue for
it no less by real or hypothecary than by personal action. How carefully
and wisely this constitution is worded may be ascertained by a perusal
of its contents.
3 We have determined, however, to go even beyond this enactment; for,
observing that the ancients subjected legacies to strict rules, while
the rules which they applied to fiduciary bequests, as springing more
directly from the deceased person's wishes, were more liberal, we have
deemed it necessary to assimilate the former completely to the latter,
so that any future features in which legacies are inferior to fiduciary
bequests may be supplied to them from the latter, and the latter
themselves may in future possess any superiority which has hitherto
been enjoyed by legacies only. In order, however, to avoid perplexing
students in their first essays in the law by discussing these two forms
of bequests together, we have thought it worth while to treat them
separately, dealing first with legacies, and then with fiduciary
bequests, so that the reader, having first learnt their respective
natures in a separate treatment, may, when his legal education is more
advanced, be able easily to comprehend their treatment in combination.
4 A legacy may be given not only of things belonging to the testator
or heir, but also of things belonging to a third person, the heir being
bound by the will to buy and deliver them to the legatee, or to give him
their value if the owner is unwilling to sell them. If the thing given
be one of those of which private ownership is impossible, such, for
instance, as the Campus Martius, a basilica, a church, or a thing
devoted to public use, not even its value can be claimed, for the legacy
is void. In saying that a thing belonging to a third person may be given
as a legacy we must be understood to mean that this may be done if the
deceased knew that it belonged to a third person, and not if he was
ignorant of this: for perhaps he would never have given the legacy if
he had known that the thing belonged neither to him nor to the heir, and
there is a rescript of the Emperor Pius to this effect. It is also the
better opinion that the plaintiff, that is the legatee, must prove that
the deceased knew he was giving as a legacy a thing which was not his
own, rather than that the heir must prove the contradictory: for the
general rule of law is that the burden of proof lies on the plaintiff.
5 If the thing which a testator bequests is in pledge to a creditor,
the heir is obliged to redeem it, subject to the same distinction as has
been drawn with reference to a legacy of a thing not belonging to
the testator; that is to say, the heir is bound to redeem only if the
deceased knew the thing to be in pledge: and the Emperors Severus and
Antoninus have decided this by rescript. If, however, the deceased
expresses his intention that the legatee should redeem the thing
himself, the heir is under no obligation to do it for him.
6 If a legacy is given of a thing belonging to another person, and the
legatee becomes its owner during the testator's lifetime by purchase,
he can obtain its value from the heir by action on the will: but if he
gives no consideration for it, that is to say, gets it by way of gift or
by some similar title, he cannot sue; for it is settled law that where
a man has already got a thing, giving no consideration in return, he
cannot get its value by a second title of the same kind. Accordingly, if
a man is entitled to claim a thing under each of two distinct wills, it
is material whether he gets the thing, or merely its value, under the
earlier one: for if he gets the thing itself, he cannot sue under
the second will, because he already has the thing without giving any
consideration, whereas he has a good right of action if he has merely
got its value.
7 A thing which does not yet exist, but will exist, may be validly
bequeathed:--for instance, the produce of such and such land, or the
child of such and such female slave.
8 If the same thing is given as a legacy to two persons, whether jointly
or severally, and both claim it, each is entitled to only a half; if one
of them does not claim it, because either he does not care for it, or
has died in the testator's lifetime, or for some other reason, the whole
goes to his colegatee. A joint legacy is given in such words as the
following: 'I give and bequeath my slave Stichus to Titius and Seius': a
several legacy thus, 'I give and bequeath my slave Stichus to Titius: I
give and bequeath Stichus to Seius': and even if the testator says 'the
same slave Stichus' the legacy is still a several one.
9 If land be bequeathed which belongs to some one other than the
testator, and the intended legatee, after purchasing the bare ownership
therein, obtains the usufruct without consideration, and then sues under
the will, Julian says that this action for the land is well grounded,
because in a real action for land a usufruct is regarded merely as a
servitude; but it is part of the duty of the judge to deduct the value
of the usufruct from the sum which he directs to be paid as the value of
the land.
10 A legacy by which something already belonging to the legatee is given
him is void, for what is his own already cannot become more his own
than it is: and even though he alienates it before the testator's death,
neither it nor its value can be claimed.
11 If a testator bequeaths something belonging to him, but which he
thought belonged to another person, the legacy is good, for its validity
depends not on what he thought, but on the real facts of the case: and
it is clearly good if he thought it already belonged to the legatee,
because his expressed wish can thus be carried out.
12 If, after making his will, a testator alienates property which he has
therein given away as a legacy, Celsus is of opinion that the legatee
may still claim it unless the testator's intention was thereby to
revoke the bequest, and there is a rescript of the Emperors Severus
and Antoninus to this effect, as well as another which decides that
if, after making his will, a testator pledges land which he had therein
given as a legacy, the part which has not been alienated can in any case
be claimed, and the alienated part as well if the alienator's intention
was not to revoke the legacy.
13 If a man bequeaths to his debtor a discharge from his debt, the
legacy is good, and the testator's heir cannot sue either the debtor
himself, or his heir, or any one who occupies the position of heir to
him, and the debtor can even compel the testator's heir to formally
release him. Moreover, a testator can also forbid his heir to claim
payment of a debt before a certain time has elapsed.
14 Contrariwise, if a debtor leaves his creditor a legacy of what he
owes him, the legacy is void, if it includes no more than the debt,
for the creditor is thus in no way benefited; but if the debtor
unconditionally bequeaths a sum of money which the creditor cannot claim
until a definite date has arrived or a condition has been satisfied, the
legacy is good, because it confers on the creditor a right to earlier
payment. And, even if the day arrives, or the condition is satisfied,
during the testator's lifetime, Papinian decides, and rightly, that
the legacy is nevertheless a good one, because it was good when first
written; for the opinion that a legacy becomes void, because something
happens to deprive it of all material effect, is now rejected.
15 If a man leaves his wife a legacy of her dowry, the gift is good,
because the legacy is worth more than a mere right of action for the
dowry. If, however, he has never received the dowry which he bequeaths,
the Emperors Severus and Antoninus have decided by rescript that the
legacy is void, provided the general term 'dowry' is used, but good,
if in giving it to the wife a definite sum or thing is specified, or
described generally by reference to the dowry deed.
16 If a thing bequeathed perishes through no act of the heir, the loss
falls on the legatee: thus if a slave belonging to another person, who
is given in this way, is manumitted through no act of the heir, the
latter is not bound. If, however, the slave belongs to the heir, who
manumits him, Julian says that he is bound, and it is immaterial whether
he knew or not that the slave had been bequeathed away from him.
17 If a testator gives a legacy of female slaves along with their
offspring, the legatee can claim the latter even if the mothers are
dead, and so again if a legacy is given of ordinary slaves along with
their vicarii or subordinates, the latter can be claimed even if
the former are dead. But if the legacy be of a slave along with his
peculium, and the slave is dead, or has been manumitted or alienated,
the legacy of the peculium is extinguished; and similarly, if the legacy
be of land with everything upon it, or with all its instruments of
tillage, by the alienation of the land the legacy of the instruments of
tillage is extinguished.
18 If a flock be given as a legacy, which is subsequently reduced to a
single sheep, this single survivor can be claimed; and Julian says that
in a legacy of a flock are comprised sheep which are added to it after
the making of the will, a flock being but one aggregate composed of
distinct members, just as a house is but one aggregate composed of
distinct stones built together. So if the legacy consists of a house,
we hold that pillars or marbles added to it after the making of the will
pass under the bequest.
20 If a slave's peculium be given as a legacy, the legatee undoubtedly
profits by what is added to it, and is a loser by what is taken from
it, during the testator's lifetime. Whatever the slave acquires in
the interval between the testator's death and the acceptance of the
inheritance belongs, according to Julian, to the legatee, if that
legatee be the slave himself who is manumitted by the will, because a
legacy of this kind vests from the acceptance of the inheritance: but
if the legatee be a stranger, he is not entitled to such acquisitions,
unless they are made by means of the peculium itself. A slave manumitted
by a will is not entitled to his peculium unless it is expressly
bequeathed to him, though, if the master manumits him in his lifetime,
it is enough if it be not expressly taken from him, and to this effect
the Emperors Severus and Antoninus have decided by rescript: as also,
that a legacy of his peculium to a slave does not carry with it the
right to sue for money which he has expended on his master's account,
and that a legacy of a peculium may be inferred from directions in a
will that a slave is to be free so soon as he has made a statement of
his accounts and made up any balance, which may be against him, from his
peculium.
21 Incorporeal as well as corporeal things can be bequeathed: thus a man
can leave a legacy even of a debt which is owed to him, and the heir can
be compelled to transfer to the legatee his rights of action, unless the
testator has exacted payment in his lifetime, in which case the legacy
is extinguished. Again, such a legacy as the following is good: 'be my
heir bound to repair so and so's house, or to pay so and so's debts.'
22 If a legacy be a general one, as of a slave or some other thing not
specifically determined, the legatee is entitled to choose what slave,
or what thing, he will have, unless the testator has expressed a
contrary intention.
23 A legacy of selection, that is, when a testator directs the legatee
to select one from among his slaves, or any other class of things, was
held to be given subject to an implied condition that the legatee should
make the choice in person; so that if he died before doing so the legacy
did not pass to his heir. By our constitution, however, we have made an
improvement in this matter, and allowed the legatee's heir to exercise
the right of selection, although the legatee has not done so personally
in his lifetime; which enactment, through our careful attention to
the subject, contains the further provision, that if there are either
several colegatees to whom a right of selection has been bequeathed,
and who cannot agree in their choice, or several coheirs of a single
legatee, who differ through some wishing to choose this thing and others
that, the question shall be decided by fortune--the legacy not being
extinguished, which many of the jurists in an ungenerous spirit wished
to make the rule--; that is to say, that lots shall be drawn, and he on
whom the lot falls shall have a priority of choice over the rest.
24 Three persons only can be legatees who have testamentary capacity,
that is, who are legally capable of taking under a will.
25 Formerly it was not allowed to leave either legacies or fiduciary
bequests to uncertain persons, and even soldiers, as the Emperor Hadrian
decided by rescript, were unable to benefit uncertain persons in this
way. An uncertain person was held to be one of whom the testator had
no certain conception, as the legatee in the following form: 'Whoever
bestows his daughter in marriage on my son, do thou, my heir, give him
such or such land.' So too a legacy left to the first consuls designate
after the writing of the will was held to be given to an uncertain
person, and many others that might be instanced: and so it was held that
freedom could not be bequeathed to an uncertain person, because it was
settled that slaves ought to be enfranchised by name, and an uncertain
person could not be appointed guardian. But a legacy given with a
certain demonstration, that is, to an uncertain member of a certain
class, was valid, for instance, the following: 'Whoever of all my
kindred now alive shall first marry my daughter, do thou, my heir,
give him such and such thing.' It was, however, provided by imperial
constitutions that legacies or fiduciary bequests left to uncertain
persons and paid by mistake could not be recovered back.
26 An afterborn stranger again could not take a legacy; an afterborn
stranger being one who on his birth will not be a family heir to the
testator; thus a grandson by an emancipated son was held to be an
afterborn stranger to his grandfather.
27 These parts of the law, however, have not been left without due
alteration, a constitution having been inserted in our Code by which
we have in these respects amended the rules relating to legacies and
fiduciary bequests no less than to inheritances, as will be made clear
by a perusal of the enactment, which, however, still maintains the old
rule that an uncertain person cannot be appointed guardian: for when a
testator is appointing a guardian for his issue, he ought to be quite
clear as to the person and character of the party he selects.
28 An afterborn stranger could and still can be instituted heir, unless
conceived of a woman who cannot by law be a man's wife.
29 If a testator makes a mistake in any of the names of the legatee, the
legacy is nevertheless valid provided there is no doubt as to the person
he intended, and the same rule is very properly observed as to heirs as
well as legatees; for names are used only to distinguish persons, and
if the person can be ascertained in other ways a mistake in the name is
immaterial.
30 Closely akin to this rule is another, namely, that an erroneous
description of the thing bequeathed does not invalidate the bequest;
for instance, if a testator says, 'I give and bequeath Stichus my born
slave,' the legacy is good, if it quite clear who is meant by Stichus,
even though it turn out that he was not born the testator's slave, but
was purchased by him. Similarly, if he describe Stichus as 'the slave
I bought from Seius,' whereas in fact he bought him from some one else,
the legacy is good, if it is clear what slave he intended to give.
31 Still less is a legacy invalidated from a wrong motive being assigned
by the testator for giving it: if, for instance, he says, 'I give and
bequeath Stichus to Titius, because he looked after my affairs while I
was away,' or 'because I was acquitted on a capital charge through his
undertaking my defence,' the legacy is still good, although in point of
fact Titius never did look after the testator's affairs, or never did,
through his advocacy, procure his acquittal. But the law is different
if the testator expresses his motive in the guise of a condition, as: 'I
give and bequeath such and such land to Titius, if he has looked after
my affairs.' 32 It is questioned whether a legacy to a slave of the
heir is valid. It is clear that such a legacy is void if given
unconditionally, even though the slave ceases to belong to the heir
during the testator's lifetime: for a legacy which would be void if
the testator died immediately after making his will ought not to become
valid by the simple fact of the testator's living longer. Such a legacy,
however, is good if given subject to a condition, the question then
being, whether at the vesting of the legacy the slave has ceased to
belong to the heir.
33 On the other hand, there is no doubt that even an absolute legacy
to the master of a slave who is instituted heir is good: for, even
supposing that the testator dies immediately after making the will, the
right to the legacy does not necessarily belong to the person who is
heir; for the inheritance and the legacy are separable, and a different
person from the legatee may become heir through the slave; as happens
if, before the slave accepts the inheritance at his master's bidding,
he is conveyed to another person, or is manumitted and thus becomes heir
himself; in both of which cases the legacy is valid. But if he remains
in the same condition, and accepts at his master's bidding, the legacy
is extinguished.
34 A legacy given before an heir was appointed was formerly void,
because a will derives its operation from the appointment of an heir,
and accordingly such appointment is deemed the beginning and foundation
of the whole testament, and for the same reason a slave could not be
enfranchised before an heir was appointed. Yet even the old lawyers
themselves disapproved of sacrificing the real intentions of the
testator by too strictly following the order of the writing: and we
accordingly have deemed these rules unreasonable, and amended them by
our constitution, which permits a legacy, and much more freedom, which
is always more favoured, to be given before the appointment of an heir,
or in the middle of the appointments, if there are several.
35 Again, a legacy to take effect after the death of the heir or
legatee, as in the form: 'After my heir's death I give and bequeath,'
was formerly void, as also was one to take effect on the day preceding
the death of the heir or legatee. This too, however, we have corrected,
by making such legacies as valid as they would be were they fiduciary
bequests, lest in this point the latter should be found to have some
superiority over the former.
36 Formerly too the gift, revocation, and transference of legacies by
way of penalty was void. A penal legacy is one given in order to coerce
the heir into doing or not doing something; for instance, the following:
'If my heir gives his daughter in marriage to Titius,' or, conversely,
'if he does not give her in marriage to Titius, let him pay ten aurei
to Seius'; or again, 'if my heir parts with my slave Stichus,' or,
conversely, 'if he does not part with him, let him pay ten aurei to
Titius.' And so strictly was this rule observed, that it is declared
in a large number of imperial constitutions that even the Emperor will
accept no legacy by which a penalty is imposed on some other person: and
such legacies were void even when given by a soldier's will, in which
as a rule so much trouble was taken to carry out exactly the testator's
wishes. Moreover, Sabinus was of opinion that a penal appointment of a
coheir was void, as exemplified in the following: 'Be Titius my heir: if
Titius gives his daughter in marriage to Seius, be Seius my heir also';
the ground of the invalidity being that it made no difference in what
way Titius was constrained, whether by a legacy being left away from
him, or by some one being appointed coheir. Of these refinements,
however, we disapproved, and have consequently enacted generally
that bequests, even though given, revoked, or transferred in order to
penalize the heir, shall be treated exactly like other legacies, except
where the event on which the penal legacy is contingent is either
impossible, illegal, or immoral: for such testamentary dispositions as
these the opinion of my times will not permit.
TITLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES
Legacies may be revoked either in a later clause of the will or by
codicils, and the revocation may be made either in words contrary
to those of the gift, as the gift thus 'I give and bequeath,' the
revocation thus 'I do not give and bequeath,' or in words not contrary,
that is to say, in any words whatsoever.
1 A legacy may also be transferred from one person to another, as thus:
'I give and bequeath to Seius the slave Stichus whom I. bequeathed to
Titius,' and this may be done either by a later clause of the will or by
codicils; the result being that the legacy is taken away from Titius and
simultaneously given to Seius.
TITLE XXII. OF THE LEX FALCIDIA
We have finally to consider the lex Falcidia, the most recent enactment
limiting the amount which can be given in legacies. The statute of the
Twelve Tables had conferred complete liberty of bequest on testators, by
which they were enabled to give away their whole patrimony in legacies,
that statute having enacted: 'let a man's testamentary disposition of
his property be regarded as valid.' This complete liberty of bequest,
however, it was thought proper to limit in the interest of testators
themselves, for intestacy was becoming common through the refusal of
instituted heirs to accept inheritances from which they received
little or no advantage at all. The lex Furia and the lex Voconia
were enactments designed to remedy the evil, but as both were found
inadequate to the purpose, the lex Falcidia was finally passed,
providing that no testator should be allowed to dispose of more than
three-quarters of his property in legacies, or in other words, that
whether there was a single heir instituted, or two or more, he or they
should always be entitled to at least a quarter of the inheritance.
1 If two heirs, say Titius and Seius, are instituted, and Titius's share
of the inheritance is either wholly exhausted in legacies specifically
charged thereon, or burdened beyond the limit fixed by the statute,
while no legacies at all are charged on Seius, or at any rate legacies
which exhaust it only to the extent of one half or less, the question
arose whether, as Seius has at least a quarter of the whole inheritance,
Titius was or was not entitled to retain anything out of the legacies
which had been charged upon him: and it was settled that he could keep
an entire fourth of his share of the inheritance; for the calculation
of the lex Falcidia is to be applied separately to the share of each of
several heirs in the inheritance.
2 The amount of the property upon which the calculation is brought to
bear is its amount at the moment of the testator's decease. Thus, to
illustrate by an example, a testator who is worth a hundred aurei at his
decease gives the whole hundred away in legacies: here, if before the
heir accepts, the inheritance is so much augmented through slaves who
belong to it, or by births of children from such of them as are females,
or by the young of cattle that, even after paying away a hundred aurei
in legacies, the heir will still have a clear fourth of the inheritance,
the legatee's position is in no way improved, but a quarter of the
sum given in legacies may still be deducted for himself by the heir.
Conversely, if only seventyfive aurei are given in legacies, and before
acceptance the inheritance is so much diminished in value, say by
fire, shipwreck, or death of slaves, that no more or even less than
seventyfive aurei are left, the legatees can claim payment of their
legacies in full. In this latter case, however, the heir is not
prejudiced, for he is quite free to refused the inheritance:
consequently, the legatees must come to terms with him, and content
themselves with a portion of their legacies, lest they lose all through
no one's taking under the will.
3 When the calculation of the lex Falcidia is made, the testator's debts
and funeral expenses are first deducted, and the value of slaves whom he
has manumitted in the will or directed to be manumitted is not reckoned
as part of the inheritance; the residue is then divided so as to leave
the heirs a clear fourth, the other three quarters being distributed
among the legatees in proportion to the amount of the legacies given
them respectively in the will. Thus, if we suppose four hundred aurei
to have been given in legacies, and the value of the inheritance, out
of which they are to be paid, to be exactly that sum, each legatee must
have his legacy abated by onefourth; if three hundred and fifty have
been given in legacies, each legacy will be diminished by one-eighth; if
five hundred, first a fifth, then a fourth, must be deducted: for
when the amount given in legacies actually exceeds the sum of the
inheritance, there must be struck off first the excess, and then the
share which the heir is entitled to retain.
TITLE XXIII. OF TRUST INHERITANCES
We now proceed to fiduciary bequests or trusts; and let us begin with
trust inheritances.
1 Legacies or inheritances given by trust had originally no binding
legal force, because no one could be compelled against his will to do
what he was merely asked to do. As there were certain classes of persons
to whom testators were unable to leave inheritances or legacies, when
they wished to effect these objects they used to trust to the good faith
of some one who had this kind of testamentary capacity, and whom
they asked to give the inheritance, or the legacy, to the intended
beneficiary; hence the name 'trusts,' because they were not enforced
by legal obligation, but only by the transferor's sense of honesty.
Subsequently the Emperor Augustus, either out of regard for various
favourites of his own, or because the request was said to have been made
in the name of the Emperor's safety, or moved thereto by individual
and glaring cases of perfidy, commanded the consuls in certain cases to
enforce the duty by their authority. And this being deemed equitable,
and being approved by the people, there was gradually developed a new
and permanent jurisdiction, and trusts became so popular that soon a
special praetor was appointed to hear suits relating to them, who was
called the trust praetor.
2 The first requisite is an heir directly instituted, in trust to
transfer the inheritance to another, for the will is void without an
instituted heir in the first instance. Accordingly, when a testator has
written: 'Lucius Titius, be thou my heir,' he may add: 'I request you,
Lucius Titius, as soon as you can accept my inheritance, to convey and
transfer it to Gaius Seius'; or he can request him to transfer a part.
So a trust may be either absolute or conditional, and to be performed
either immediately or on a specified future day.
3 After the transfer of the inheritance the transferor continues heir,
the transferee being sometimes regarded as quasi-heir, sometimes as
quasi-legatee.
4 But during the reign of Nero, in the consulate of Trebellius Maximus
and Annaeus Seneca, a senatusconsult was passed providing that, when
an inheritance is transferred in pursuance of a trust, all the actions
which the civil law allows to be brought by or against the heir shall be
maintainable by and against the transferee: and after this enactment the
praetor used to give indirect or fictitious actions to and against the
transferee as quasiheir.
5 However, as the instituted heirs, when (as so often was the case)
they were requested to transfer the whole or nearly the whole of an
inheritance, declined to accept for what was no benefit, or at most a
very slight benefit, to themselves, and this caused a failure of the
trusts, afterwards, in the time of the Emperor Vespasian, and during the
consulate of Pegasus and Pusio, the senate decreed that an heir who
was requested to transfer the inheritance should have the same right
to retain a fourth thereof as the lex Falcidia gives to an heir charged
with the payment of legacies, and gave a similar right of retaining the
fourth of any specific thing left in trust. After the passing of this
senatusconsult the heir, wherever it came into operation, was sole
administrator, and the transferee of the residue was in the position of
a partiary legatee, that is, of a legatee of a certain specified portion
of the estate under the kind of bequest called participation, so that
the stipulations which had been usual between an heir and a partiary
legatee were now entered into by the heir and transferee, in order to
secure a rateable division of the gains and losses arising out of the
inheritance.
6 Accordingly, after this, if no more than threefourths of the
inheritance was in trust to be transferred, then the SC. Trebellianum
governed the transfer, and both were liable to be sued for the debts
of the inheritance in rateable portions, the heir by civil law,
the transferee, as quasiheir, by that enactment. But if more than
threefourths, or even the whole was left in trust to be transferred, the
SC. Pegasianum came into operation, and when once the heir had accepted,
of course voluntarily, he was the sole administrator whether he retained
onefourth or declined to retain it: but if he did, he entered into
stipulations with the transferee similar to those usual between the heir
and a partiary legatee, while if he did not, but transferred the whole
inheritance, he covenanted with him as quasi-purchaser. If an instituted
heir refuse to accept an inheritance from a suspicion that the
liabilities exceed the assets, it is provided by the SC. Pegasianum
that, on the petition of the person to whom he is requested to transfer,
he shall be ordered by the praetor to accept and transfer it, whereupon
the transferee shall be as capable of suing and being sued as the
transferee under the SC. Trebellianum. In this case no stipulations are
necessary, because by a concurrent operation of the two senatusconsults
both the transferor is protected, and all actions relating to the
inheritance pass to and against the transferee.
7 As, however, the covenants which had become necessary through the SC.
Pegasianum were disliked even by the older lawyers, and are in certain
cases considered injurious by the eminent jurist Papinian, and it being
our desire that our statute book should be clear and simple rather than
complicated, we have, after placing these two senatusconsults side by
side and examining their points of resemblance and difference, resolved
to repeal the SC. Pegasianum, as the later enactment, and to give
exclusive authority to the SC. Trebellianum, under which in future
all trust inheritances are to be transferred, whether the testator has
freely given his heir a fourth of the property, or more or less, or even
nothing at all: provided always, that when the heir has either nothing
or less than a fourth, it shall be lawful for him, under our authority
expressed in this statute, to retain a fourth, or to recover it by
action if he has already paid it over, the heir and the transferee being
capable both of suing and being sued in proportion to their shares in
the inheritance, after the analogy of the SC. Trebellianum; and provided
also, that if the heir voluntarily transfers the whole inheritance, the
transferee shall be able to sue and be sued on all actions relating to
the inheritance whatsoever. Moreover, we have transferred to the SC.
Trebellianum the leading provision of the SC. Pegasianum, whereby it was
enacted that when an instituted heir refused to accept an inheritance
offered to him, he could be compelled to accept and transfer the whole
inheritance if the intended transferee so desired, and that all actions
should pass to and against the latter: so that it is under the SC.
Trebellianum alone that the heir, if unwilling to accept, is now obliged
to do so, if the intended transferee desire the inheritance, though to
him personally no loss or profit can accrue under the transaction.
8 It makes no difference whether it is a sole or part heir who is under
a trust to another, or whether what he is requested to transfer is the
whole or only a part of that to which he is heir; for we direct that the
same rules shall be applied in the case of a part being transferred as
we have said are observed in the transference of a whole inheritance.
9 If the request addressed to the heir is to transfer the inheritance
after deducting or reserving some specific thing which is equal in value
to a fourth part thereof, such as land or anything else, the conveyance
will be made under the SC. Trebellianum, exactly as if he had been
asked after retaining a fourth part of the inheritance to transfer the
residue. There is, however, some difference between the two cases; for
in the first, where the inheritance is transferred after deducting or
reserving some specific thing, the senatusconsult has the effect of
making the transferee the only person who can sue or be sued in respect
of the inheritance, and the part retained by the heir is free from all
encumbrances, exactly as if he had received it under a legacy; whereas
in the second, where the heir, after retaining a fourth part of the
inheritance, transfers the rest as requested, the actions are divided,
the transferee being able to sue and be sued in respect of threefourths
of the inheritance, and the heir in respect of the rest. Moreover, if
the heir is requested to transfer the inheritance after deducting or
reserving only a single specific thing, which, however, in value is
equivalent to the greater part of the inheritance, the transferee is
still the only person who can sue and be sued, so that he ought well
to weigh whether it is worth his while to take it: and the case is
precisely the same, whether what the heir is directed to deduct or
reserve before transferring is two or more specific things, or a
definite sum which in fact is equivalent to a fourth or even the greater
part of the inheritance. What we have said of a sole heir is equally
true of one who is instituted only to a part.
10 Moreover, a man about to die intestate can charge the person to whom
he knows his property will go by either the civil or praetorian law to
transfer to some one else either his whole inheritance, or a part of it,
or some specific thing, such as land, a slave, or money: but legacies
have no validity unless given by will.
11 The transferee may himself be charged by the deceased with a trust
to transfer to some other person either the whole or a part of what he
receives, or even something different.
12 As has been already observed, trusts in their origin depended solely
on the good faith of the heir, from which early history they derived
both their name and their character: and it was for that reason that the
Emperor Augustus made them legally binding obligations. And we, in
our desire to surpass that prince, have recently made a constitution,
suggested by a matter brought before us by the eminent Tribonian,
quaestor of our sacred palace, by which it is enacted, that if a
testator charges his heir with a trust to transfer the whole inheritance
or some specific thing, and the trust cannot be proved by writing or
by the evidence of five witnesses--five being, as is known, the number
required by law for the proof of oral trusts--through there having been
fewer witnesses than five, or even none at all, and if the heir, whether
it be his own son or some one else whom the testator has chosen to
trust, and by whom he desired the transfer to be made, perfidiously
refuses to execute the trust, and in fact denies that he was ever
charged with it, the alleged beneficiary, having previously sworn to his
own good faith, may put the heir upon his oath: whereupon the heir may
be compelled to swear that no trust was ever charged upon him, or, in
default, to transfer the inheritance or the specific thing, as the case
may be, in order that the last wishes of the testator, the fulfilment
of which he has left to the honour of his heir, may not be defeated. We
have also prescribed the same procedure where the person charged with a
trust is a legatee or already himself a transferee under a prior trust.
Finally, if the person charged admits the trust, but tries to shelter
himself behind legal technicalities, he may most certainly be compelled
to perform his obligation.
TITLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS
Single things can be left in trust as well as inheritances; land, for
instance, slaves, clothing, gold, silver, and coined money; and the
trust may be imposed either on an heir or on a legatee, although a
legatee cannot be charged with a legacy.
1 Not only the testator's property, but that of an heir, or legatee, or
person already benefited by a trust, or any one else may be given by
a trust. Thus a legatee, or a person in whose favour the testator has
already created a trust, may be asked to transfer either a thing left
to him, or any other thing belonging to himself or a stranger, provided
always that he is not charged with a trust to transfer more than he
takes by the will, for in respect of such excess the trust would be
void. When a person is charged by a trust to transfer a thing belonging
to some one else, he must either purchase and deliver it, or pay its
value.
2 Liberty can be left to a slave by a trust charging an heir, legatee,
or other person already benefited by a trust of the testator's, with
his manumission, and it makes no difference whether the slave is the
property of the testator, of the heir, of the legatee or of a stranger:
for a stranger's slave must be purchased and manumitted; and on his
master's refusal to sell (which refusal is allowable only if the master
has taken nothing under the will) the trust to enfranchise the slave is
not extinguished, as though its execution had become impossible, but its
execution is merely postponed; because it may become possible to free
him at some future time, whenever an opportunity of purchasing him
presents itself. A trust of manumission makes the slave the freedman,
not of the testator, though he may have been his owner, but of the
manumitter, whereas a direct bequest of liberty makes a slave the
freedman of the testator, whence too he is called 'orcinus.' But a
direct bequest of liberty can be made only to a slave who belongs to the
testator both at the time of making his will and at that of his decease;
and by a direct bequest of liberty is to be understood the case where
the testator desires him to become free in virtue, as it were, of his
own testament alone, and so does not ask some one else to manumit him.
3 The words most commonly used to create a trust are I beg, I. request,
I wish, I commission, I trust to your good faith; and they are just as
binding when used separately as when united.
TITLE XXV. OF CODICILS
It is certain that codicils were not in use before the time of Augustus,
for Lucius Lentulus, who was also the originator of trusts, was the
first to introduce them, in the following manner. Being on the point of
death in Africa, he executed codicils, confirmed by his will, by which
he begged Augustus to do something for him as a trust; and on the
Emperor's fulfilling his wishes, other persons followed the precedent
and discharged trusts created in this manner, and the daughter of
Lentulus paid legacies which could not have been legally claimed from
her. It is said that Augustus called a council of certain jurists, among
them Trebatius, who at that time enjoyed the highest reputation, and
asked them whether the new usage could be sanctioned, or did not rather
run counter to the received principles of law, and that Trebatius
recommended their admission, remarking 'how convenient and even
necessary the practice was to citizens,' owing to the length of the
journeys which were taken in those early days, and upon which a man
might often be able to make codicils when he could not make a will.
And subsequently, after codicils had been made by Labeo, nobody doubted
their complete validity.
1 Not only can codicils be made after a will, but a man dying intestate
can create trusts by codicils, though Papinian says that codicils
executed before a will are invalid unless confirmed by a later express
declaration that they shall be binding. But a rescript of the Emperors
Severus and Antoninus decides that the performance of a trust imposed
by codicils written before a will may in any case be demanded, if it
appears that the testator had not abandoned the intention expressed in
them.
2 An inheritance can neither be given nor taken away by codicils, nor,
accordingly, can a child be disinherited in this way: for, if it were
otherwise, the law of wills and of codicils would be confounded. By this
it is meant that an inheritance cannot directly be given or taken away
by codicils; for indirectly, by means of a trust, one can very well
be given in this manner. Nor again can a condition be imposed on an
instituted heir, or a direct substitution be effected, by codicils.
3 A man can make any number of codicils, and no solemnities are required
for their execution.