CASE 204: Legacy of a Peculium*
D. 33.8.26 (Scaevola libro tertio Responsorum)
“Tit fili, e medio praecipito sumito tibique habeto domum illam, item aureos centum”; alio deinde capite peculia filiis praelegavit.
quaesitum est, an peculio praelegato et centum aurei et usurae eorum debentur, cum rationibus breviariis in aero alieno et sortem et usuras inter ceteros creditores complexus sit. respondit, si id faenus nomine filii exercuisset et usuras ita, ut proponeretur, filio adscripsisset, id quoque peculio legato deberi.(Scaevola in the third book of his Responses)
(In his will, a testator provided:) “Titus, my son, take by preference and have for yourself that (particular) house, plus 100 gold coins.” In another clause, he left his sons an advance legacy (praelegatum) of their peculia. It was asked whether, under the advance legacy of the peculium, both the 100 gold coins and the interest (earned) on them are owed; for in his account books, both the principal and the interest were listed by him (the testator) under debts, together with his other creditors.
He (Scaevola) responded that if, in the manner stated, he had loaned out the money in his son’s name and had credited the interest to the son, this too was owed under the legacy of a peculium.
Hypothetical Situation
A testator had an estate worth 1,000 gold coins at the time of his death. In his will, he left his estate in equal shares to his two sons; but he also made two legacies in favor of the sons Titus and Marcus.
First, he legated to his son Titus a house and 100 gold coins, which Titus was to take “by preference.” Second, he made an “advance legacy” of their peculia to both sons. During his lifetime, the testator had kept a separate account of 100 gold coins under Titus's name; he had lent out this money and credited the interest as well to Titus, with the result that the account is now worth 200 gold coins. How is this account to be handled in relation to the two legacies?1. Preferential Legacy and Advance Legacy. These are two special forms of legacy, the technical details of which need not detain us. Both allow a testator to assign particular pieces of property to a legatee, who may also be an heir. The testator's will in this Case made two legacies to his son Titus. The first is a preferential legacy (legatum per praeceptionem) under which Titus's half share of the estate will include a house plus 100 gold coins, both of which he takes by preference when the inheritance is divided with his brother; so this legacy does not increase Titus's share of the value of the inheritance, though he does get the house and money. The second is an advance legacy (praelegatum) to Titus and his brother of their peculia, which they will be allowed to remove from the inheritance before its division; this legacy therefore can possibly increase the value of what Titus receives. Testators often used these forms of legacy to direct a particular object to a family member, usually when the item had sentimental value; a nice example is Paul, D. 34.2.32.4 (a business woman leaves her daughter a preferential legacy of her “womens jewelry”; this does not include jewelry that she traded as part of her business). Was the testator in the present Case motivated by sentimental concerns, do you think?
2. Which Legacy? If the inheritance is divided equally between Titus and Marcus, his brother, each will receive (in the hypothetical situation outlined above) 500.
The legacy by preference to Titus just means that the house and the coins will be allocated to his half. It therefore makes an enormous difference to Titus (and also to Marcus) if the special account, now worth 200, can be considered part of Titus's peculium, since he will acquire this peculium before the division. That is, if (for instance) the brothers have no other assets in their peculia, Titus will ultimately receive the 200 in the special account and 400 as half of the remaining estate, or a value of 600 in all; while his brother will receive only 400. One issue that therefore arises in this Case is whether the money in the account should be counted as part of the son's peculium. Does it seem to meet the technical requirements for peculium property in Cases 125-127? Is there any indication that Titus was administering this fund himself? What do you think it likely that the testator was actually trying to do, and why did he fail: because of carelessness or inattention? Why does Scaevola decide as he does?3. Calculating the Peculium. A legacy of a peculium had to be expressly left in a will; it was not presumed. (Why not?) In interpreting the legacy, some of the same problems arise as with the action on a peculium (Cases 134-135). The child or slave who is legated a peculium receives it as it existed when the testator died. However, any debts owed to the testator or to the heir are deducted (Ulpian, D. 33.8.6 pr., 5), while anything they owed to the peculium is added (Ulpian, D. 33.8.6.4, who notes that this rule was reversed by Septimius Severus and Caracalla for slaves who were freed with their peculia). Is it possible that Scaevola regards the account administered by the testator for Titus as, in effect, a loan by Titus to his father? Before the fathers death, does it seem that Titus ever had the money in his peculium? Did he even know of the account?
4. A Problem. A son manumitted a slave in his peculium without his father's permission. Later the father died and in his will left the peculium to his son. Does the slave become free retrospectively? See Papinian, D. 33.8.19.2 (no); why not? Would it matter if the slave was manumitted after the father wrote his will? No again, says Marcian (D. 33.8.20).