Freedom of Testation and Strategies of Succession
Freedom of Testation
Certain formal requirements for making a valid will and other testamentary dispositions have already been mentioned.
These, however, in no sense restricted freedom of testation; all they did was require that set forms be followed. From the XII Tables onwards Roman law allowed the testator a great degree of freedom. Provided he complied with the formal requirements, he could validly dispose of his property as he saw fit.Towards the end of the republic, however, it came to be recognized that certain relatives of the testator should share in his estate. They could challenge the will by raising court proceedings in the form of the complaint of the undutiful will (querela inofficiosi testamenti). A challenge could be mounted by any descendant or ascendant who could show that he or she had received less than a quarter of the share of the estate to which he or she would have been entitled had the testator died intestate, and that the testator had had no good reason for cutting him or her out. Relatives who challenged successfully would receive their whole intestate share. The claim appears to have rested on a fiction that the will was so ‘undutiful’ that the testator cannot at the time of making it have been in his right mind. The logical consequence of that would be that the whole will should be avoided, but in fact the practice was to set it aside only so far as necessary to cover the successful claimant’s share. Although there were perfectly good and accepted reasons for disinheriting relatives, the jurists do not discuss them, and they are left to the attention of the rhetorical treatises. Only in late classical law is there imperial legislation referring to certain classes of people who could validly be disinherited without further inquiry into their conduct: examples are those leading immoral lives, and gladiators.28 In AD 542 Justinian brought this legislative development to its natural conclusion by promulgating a lengthy list of accepted grounds for disinheriting relatives.29
It is nonetheless appropriate to stress the limitations of this inroad on freedom of testation.
For a testator with three children, each child would have a prospective share of one-third of the estate on intestacy. In order to bar the querela, each would have to be left not less than a quarter of that - namely one-twelfth. The testator would remain free to do as he wished with the remaining three-quarters of the estate. These figures were adjusted somewhat by Justinian in his later legislation30 so that, in relation to claims brought by descendants only, the testator was entitled freely to dispose of two-thirds of his estate (if he had up to three children) or half (if he had more than that). The figures remained the same so far as other claimants were concerned. The querela therefore amounted to a modest first step in protecting the expectations of relatives. But by recognizing that there was such a thing as a fixed expectation it marked a sea change in the Roman approach to testate succession. One remarkable feature of the querela is that, unlike almost all other innovations in the law of succession, it owed nothing to the work of the praetor. Indeed, litigation took place not in the praetor’s jurisdiction but before the centumviri, a large lay ‘jury’ much frequented by aspiring and established orators.31Strategies of Succession
The Roman had at his or her disposal a remarkable range of legal institutions in order to regulate the devolution of his or her estate on death. The evidence in the Digest does not, of course, allow us to draw direct conclusions about what happened in practice. But it is surely legitimate to draw from the evidence preserved there some conclusions about how or how well the law facilitated various strategies of succession and what strategies the Roman testator, armed with these legal institutions, chose to pursue.32
In general, the overwhelming impression is that the concern of the Roman testator was primarily with arranging the destination of his or her property within the circle of his or her living kin and freedmen; it was not with devising grand schemes for posterity.
So, for example, most of the fideicommissa hereditatis now attested, while they could have been employed for more elaborate purposes, appear to have been drafted with reference to the current generation and with an eye to directing benefits to those who were actually living in the testator’s household. Two further, general points may be made. First, it is quite striking how many of the wills quoted in the Digest are concerned with directing benefits to the testator’s freedmen, who would of course bear his surname (nomen). This secured for him a degree of commemoration in posterity. Second, given the harsh incidence of mortality, testators had good reason to be preoccupied with ensuring that provision was made for their immediate descendants, with anticipating the possibility (or likelihood) that some of their children might predecease them, as well as with considering what arrangements to make for the event that one of the parents died before their children grew up to adulthood.Earlier it was suggested that the desire to avoid fragmentation of the estate may have encouraged Roman testators to make wills, precisely because by doing so they could leave their property to their children in unequal shares. Nonetheless, the surviving evidence does not suggest that this freedom was typically allowed to produce great inequality. So, for example, Modestinus cites a will in which the paterfamilias is at pains to ask his daughter not to be angry that in his will he has left more property to her brother and to remind her of the various burdens that her brother will have to bear.33 Clearly, from one text one cannot draw any conclusions of wide-ranging validity, but this is at least consistent with the view that emerges from other evidence that a typical will might be expected to leave substantial property to each of a testator’s children, even if it did not leave them precisely the same amount.
Notes
1. A.
Smith, Lectures on Jurisprudence, ed. R. Meek, D. Raphael, and P. Stein (Oxford, 1978), 63.2. The leading modern account is by P. Voci, Diritto ereditario romano, 2 vols. (Florence, 1963,1967).
3. On this theme in general, see, esp., F. von Woess, Das römische Erbrecht und die Erbanwärter (Berlin, 1911); E. Champlin, Final Judgments (Princeton, 1991); cf. also K. Hopkins, Death and Renewal (Cambridge, 1983), ch. 4.
4. See, the chapter by, Ibbetson, 34.
5. Plut. Cato 9.6.
6. H. Maine, Ancient Law, 8th edn. (London, 1880), 223. Cf. also D. Daube, ‘The Preponderance of Intestacy at Rome’, Tulane Law Review 39 (1965): 253—62; J. Crook, ‘Intestacy in Roman Society’, Proceedings of the Cambridge Philological Society 19 (1973): 3 8-44.
7. lang=EN-US>Champlin (n. 3), 46-9.
8. Champlin (n. 3), 107-20. For a valuable discussion of surviving documentary evidence of Roman wills, see M. Amelotti. Il testamento romano (Florence, 1966).
9. D.
28.2.18 and 38.2.12.2.10. Instead, see, most recently, M. Müller-Ehlen, Hereditatis petitio (Cologne - Weimar - Vienna, 1998).
11. For details, W. W. Buckland, A Textbook of Roman Law, 3rd edn. by P. Stein (Cambridge, 1963), 381-98.
12. See, in general, G. Grosso, I legati nel diritto romano (Turin, 1966).
13. L. Boyer, ‘La fonction sociale des legs d’apres la jurisprudence classique’, RHD 43 (1965): 333—408; R. Sailer, Personal Patronage under the Early Empire (Cambridge, 1982).
14. See D. 35.2.
15. D. 33.1.4.
16. D. 33.1.21.3.
17. See, in general, D. Johnston, The Roman Law of Trusts (Oxford, 1988); V. Giodice Sabbatelli, La tutela giuridica dei fedecommessi fra Augusto e Vespasiano (Bari, 1993); V. Giodice Sabbatelli, Fideicommissorum persecutio: contributo allo studio delle cognizioni straordinarie (Bari, 2001).
18. For this, see the chapter by Metzger, 287—9.
19. For the details, U.
Manthe, Das senatus consultum Pegasianum (Berlin, 1989).20. G. Impallomeni, Le manomissioni mortis causa: studi sullefonti autoritative romane (Padua, 1963).
21."Times New Roman"'> D. 35.1.102; D. 36.1.56; D. 36.1.60.8. Cf. L. Desanti, Restitutionis post mortem onus. Ifedecommessi di restituirsi dopo la morte dell'onerato (Milan, 2003).
22. For differing views on this point, see M. Humbert, Le remariage a Rome: Etude d'histoire juridique et sociale (Milan, 1972), 207—40, and S. Treggiari, Roman Marriage (Oxford, 1991), 392.
23. D. 32.38 pr.
24. D. 31.32.6.
25. Nov. 159 (AD 565).
26. D. 29.7.8.1.
27. D. 31.88.17.
28. C. 3.28.11 (AD 224); C. 3.28.19 (AD 293).
29. Nov. 115.
30. Nov. 18 (AD 536).
31. Plin. Ep. 1.18.3, 4.24.1, 6.12.2; cf. Buckland (n. 11), 615.
32. On this theme and what follows, see, above all, R. Sailer, Patriarchy, Property and Death in the Roman Family (Cambridge, 1994), ch. 7.
33. D. 31.34.6.