Legacies and Disinheritance
Although the most important thing for a will to do was to institute an heir, the testator might not wish the heir to inherit all of his or her property. Part of the estate might be given over to others as legacies, the recipient of a legacy being known as a legatee.
Part of the heir's duty was to allow the legatees to have what they were entitled to.[1828] Indeed, once the legatees had had their legacies, there might be little or nothing left for the heir. At the same time, because a legatee was not an heir, a legatee was in no way liable for the debts of the deceased. This was the case even where the will directed the heir to share the estate with the legatee (a legatumpartitionis, or ‘legacy of a share').[1829] Subject to the protections for heirs that were described above, the heir remained liable for the testator's debts. To that extent, therefore, a legatee was in a preferable position to that of the heir. In this section, we look at the position of a legatee, considering first the requireÂments for a valid legacy, and then the rules that developed to restrict the testator's freedom to dispose of his or her property in this way.(1) Legacies
(a) Forms of Legacy
The precise effect of a legacy depended on the way in which it was expressed. In classical law, a legacy could be granted in four ways. Originally, the legacy had to be expressed in Latin, but later was allowed to be made in Greek.[1830] The two main forms of legacy were the legatum per damnationem and the legatum per vindicationem.
The most common form of legacy was the legatum per damnationem. This was in the form heres meus damnas esto dare (‘let my heir be under an obligation to give'). This was the most flexible form, as it could be used for any legacy of money or property. This was because the effect of a legacy in this form was to give the legatee a personal right against the heir, obliging the heir to deliver the property identified.[1831] It could therefore be used for anything that a person might be put under an obligation to give.
It could even be used for things owned by third parÂties, in which case the heir was obliged to attempt to acquire the thing.[1832] It could also be used for a thing not yet in existence, such as an unborn slave-child or crops to be grown.[1833]A legatumper vindicationem was made in the form do lego (‘I give and bequeath').146 With this, the legatee was given immediate ownership of the property.147 The legÂatee therefore could bring a real action to recover the property from whichever person had it, rather than having simply a personal action against the heir. For this reason, though, there were restrictions on this form of legacy, arising from the general law on transfer of property. A person could not transfer property he or she did not own.148 Accordingly, this form of legacy could not be used where the testator did not own the property. Nor, as general principles prevent the transÂfer of a thing that is not specifically identified,149 could it be used to give a legacy of money without identifying the source or to give a legacy of a thing identified by a generic description (a legatum generis).150
Two other forms of legacy existed. The legatumperpraeceptionem was in the form Titius rempraecipito (‘let Titius take the thing first'), and directed the legatee to take the property so identified before the testator's estate was divided. A legacy in this form gave a real right to the legatee, as with the legatum per vindicationem. It could therefore only be used for things actually belonging to the testator, although if the legatee was also an heir then bonitary ownership151 was enough.152 The Sabin- ians in fact took the view that the wording of this form of legacy assumed that the legatee was also an heir, and accordingly denied its effectiveness in other cases.153 The Proculian position to the contrary prevailed, however.154
Finally, and probably the least important in practice, was the legatum sinendi modo.
This was in the form heres meus damnas esto Titium sinere rem capere sibique habere (‘let my heir be under an obligation to allow Titius to take the thing to hold for himself'). This gave the legatee a personal right to take the thing.155 156While, then, there was sometimes a free choice as to which form a legacy should take, in other cases the choice was constrained. This mattered because, at least in earlier law, use of an inappropriate form made the legacy void. This changed in time, however, consistently with a general trend of not allowing the testator's intentions to be frustrated by technicalities. Under the reign of Nero (reigned AD 54—68), a senatusconsultum Neronianum provided that inappropriate words were to be read in the most favourable way, that is as a legatum per damnationem.150 Under
G.2.193.
On this and its reception in some modern systems, see L Salomon, ‘The Acquisition of Possession in LegaÂcies per vindicationem in Classical Roman Law and its Influence in the Modern Civil Codes' (2006) 3 Roman Legal Tradition 65.
See pp. 202-3.
See p. 207.
On the legatum generis, see Buckland, Textbook 346.
See pp. 201-2. Bonitary ownership was the protected state of a person who had acquired property by an informal transfer that required a formal mode of transfer.
G.2.222.
G.2.217. Even on this view, however, a legacy in this form to a non-heir would be saved, from the time of Nero, by the Senatusconsultum Neronianum, discussed below.
G.2.221.
Constantine, it was provided that the specific words used were not of relevance.[1834] Finally, underJustinian, the different types of legacy were abolished, and the legaÂtee was given both a personal right and a real right to recover the legacy.[1835]
A legacy could be revoked, either in the same will or in a codicil, by directly contrary words.[1836] Thus, for example, a legatum per vindicationem (made in the form do lego, ‘I give and bequeath') would be revoked with the words non do non lego (‘I do not give and I do not bequeath').
This revocation was known as ademptio (‘ademption').(b) Identifying the Legatee
For a legacy to be effective, it was obviously necessary to identify who was to take. An error in the name of the legatee was not fatal, however, as long as the intention was clear.[1837] This was true even where the legacy was motivated by a false belief on the part of the testator.[1838] The law did not usually enquire into the testator's reasons for making the legacy. For example, suppose that the legacy was stated in the will to have been given on account of a service rendered by the legatee, such as managing the testator's affairs in the testator's absence. This would be a valid legacy, even if the legatee had not in fact managed the testator's affairs. The false belief would only undermine the validity of the legacy if it was expressed as a condition (e.g where the will gave a legacy to a particular person, ‘if he was the one who managed my affairs in my absence').
There was a general prohibition on legacies to ‘uncertain persons' (incertae personae).[1839] Thus, for example, a legacy to ‘whomsoever comes to my funeral' or to ‘the person who gives his daughter in marriage to my son' would be void.[1840] However, this rule was qualified when the uncertain person was a member of an identifiable group. For example, a legacy could not be validly given to ‘the first person who comes to my funeral', but could be validly given to ‘the first person among my relatives now living who comes to my funeral'.[1841]
A special case of uncertain persons was the class of postumi, meaning those born alive after the making of the will.[1842] The position of postumi of the testaÂtor himself was complicated by the rule that the birth of a suus heres invalidated previous wills. This rule, and the position of postumi of the testator himself, are considered below. As far as postumi of someone other than the testator were conÂcerned, the rule of the civil law was that no legacy at all could be made to such a person.[1843] [1844] The praetor intervened, however, and allowed such a person a bonorum possessio}61 This prohibition was abolished by Justinian, who allowed legacies to such persons.[1845] Sometimes a legacy might be made jointly to two or more people. A legatee who was considered to be unworthy could be made to forfeit the legacy to the imperial treasury. Examples given in the texts include a freedman who denounced his patron for committing unlawful acts. The freedman forfeited the legacy that the patron had made him, even though the freedman had earned a reward by making the denunciation.[1850] This might also be the result if ‘mortal enmity' arose between the legatee and the testator, such that the testator was unlikely to have wanted the legatee to have the legacy,[1851] of if the legatee ‘openly and publicly' insulted the testator.[1852] (c) Identifying the Legacy It was of course also necessary to identify what was to be given as legacy. the intention of the testator causes difficulty, if he himself had been in the habit of using certain clothes which were also suitable for women. And so it must be said in the first place that the legacy is of what the testator intended, not what is in fact for women or for men. For Quintus Titius also says that he knows a certain senator who was in the habit of using women’s dinner dress. If he were to make a legacy of women’s clothes, he would not be regarded as having expressed an intention with respect to what he used as if it was suitable for men.[1854] Some special rules existed for particular situations. In a legatum optionis (legacy of an option), the legatee was given the right to select what he or she was to receive from an identified class of things. An example might be allowing the legatee to take whichever one of the slaves of a household the legatee preferred. In classical law, this was treated as a conditional legacy (see below), with the result that, if the legatee died without making the choice, the legacy was held to have failed.[1855] This rule was changed by Justinian so that the right of choice passed to the legatee’s heir.[1856] Another special situation was the legatum debiti (legacy of a debt). Where a legacy was made of something already owed to the legatee, the legacy was void as it added nothing to what was already owed. The exception to this was where the legacy improved the legatee’s position.[1857] For example, suppose that I was under an obligation to deliver certain property to you on the Ides of March[1858] next year. If I made a legacy to you of the same thing, that would be void. If, however, the legacy was to the effect that you should get the same thing immediately, that would be a valid legacy. (d) Conditional Legacies The normal rule was that the right to the legacy vested immediately in the legatee.[1859] This, though, could be delayed by making the legacy conditional on the occurrence of a certain event or on the legatee doing or not doing a certain thing. Where a legacy was made conditionally, the legatee was only entitled to the legacy if the condition was satisfied. If it was not satisfied, the legacy failed. Where, however, the condition was illegal, immoral or impossible, it was simply ignored, and the legacy was treated as being unconditional.[1860] There was an obvious practical difficulty where the condition was that the legatee should not do some stated thing. What if the legatee took the legacy, conÂsumed or otherwise disposed of it, and then did the forbidden thing? The answer was found in the cautio Muciana, named for the early jurist who devised it, Quintus Mucius Scaevola. The cautio Muciana was an undertaking that the legatee could be required to give to the person who would otherwise have taken the legacy under civil law.[1861] If legatee took the legacy and then breached the condition, the legatee could be sued on the basis of this undertaking. Gaius[1862] deals with the situation where a legacy was intended to operate as a penalty against the heir doing or not doing something. An example might be a direction to the heir to pay money if he marries his daughter to a particular person. This money would obviously have to come out of funds otherwise falling to the heir. Such a condition was void, although this rule was abolished byJustinian.[1863] There was a general rule in the interpretation of legacies that, if a legacy would have been invalid if the testator had died immediately after making it, it could not be made valid by any subsequent event. This rule of interpretation was called the regula Catoniana.[1864] An example of its operation might be to strike down a legacy to a person who did not have capacity to take at the time the will was made, but who later acquired capacity. The regula Catoniana did not, however, strike down conditional legacies where the condition was not met at the time of the will being made, but which was subsequently met. For instance, Paul gives the example of a legacy given on condition of the testator’s daughter marrying a particular person.[1865] It was no objection to this condition that the daughter was below marriageable age at the time the will was made. It was enough that she did subsequently go on to marry the person named. (2) Disinheritance (Exheredatio) In any legal system, the question arises: to what extent should the wishes of the deceased determine the distribution of his or her property after death? It would be possible for a legal system to deny the right to make wills at all, instead distributing the deceased’s property according to predetermined legal rules. Equally, a legal system could allow full testamentary freedom, including the power to exclude spouse and children from benefiting from the deceased’s estate, and including the right to waste the estate on frivolous or immoral purposes. Arguments could be made for either position, or for any point in-between. This depends in part on the weight given to the respect owed to the wishes of the deceased, and in part on whether other considerations are recognised as overriding these wishes, especially family duties.[1866] In Roman law, some slight protection was given to the testator’s own children by the rule that sui heredes had to be disinherited by express provision, this having to be by name in the case of sons.[1867] Otherwise, though, the Roman testator’s right to disinherit his[1868] children was originally unrestricted. In time, however, restrictions on testamentary freedom did develop. Before turning to these restrictions, though, there is a complication relating to postumi, who were children born after the will was made. The difficulty was that such children could neither be instituted as heirs (because they were incertae personae) nor be disinherited by name (since they had none). The result then was that the birth of a suus heres child to the testator, after the will was made, automatiÂcally revoked the will.[1869] However, in the classical period both the requirement to disinherit by name and (as we have seen) the concept of incertae personae were interpreted in a fairly permissive way. The requirement of disinheriting by name was satisfied if a description was given by which the son was clearly identifiable, for example by the testator referring to ‘my son’ when he had only one.[1870] Equally, potential postumi could be seen as a clearly enough defined class not to count as incertae personae. Thus, in classical law, it was enough to disinherit afterborn sons in the following terms: ‘let any son that will be begotten by me be disinherited’, while otherpostumi could be disinherited by general words.[1871] The Roman rules on postumi have influenced the development of Scots law, which operates a presumption (known as the conditio si testator sine liberis decesserit) that the testator would intend the will to be revoked in the event of a child subseÂquently being born. However, this is not a case of the Roman rules being directly transplanted. A direct transplantation would not make sense in this context, given that Scots law has not adopted the rule that children must be expressly disinherited. The development of the Scots position has also drawn, for example, on the querela inofficiosi testamenti, considered below, and ‘the true position probably comprises a mixture of both unintentional and deliberate re-interpretation of Roman and Civilian sources'.[1872] (3) Protection against Disinheritance In classical law, protection against disinheritance was provided by the querela inofÂficiosi testamenti, the ‘complaint of the undutiful will'. Notionally, this claim was based on the idea that the testator must have been insane to make the will in the terms that he or she did. This was a fiction, however, as the logical conclusion of the testator being insane would be that the whole will was void, which was not the position that the law took.[1873] Instead, the true basis of the querela inofficiosi testamenti was that the testator had excluded the complainer from the will, despite the complainer having good reason to expect to be included. It was failure of the testator's duty that was complained of, not a failure of the testator's wits. The duty referred to is a social or moral duty, rather than a legal duty.[1874] Indeed, as the querela inofficiosi testamenti cast aspersions on the testator's character,[1875] it was not available to anyone with any other remedy.[1876] It could only be used as a last resort, where no other remedy was available.[1877] For the same reason, a failed chalÂlenge on this ground resulted in loss of anything that had been given in the will.[1878] The duty that the testator was alleged to have breached was the duty owed to family. Non-family members therefore had no claim on this basis, no matter how apparently justified their expectations of taking something under the will. Only ascendants, descendants and siblings could claim.[1879] There was no restriction to agnatic relations, so a son for example could claim on this basis in respect of his mother's will.[1880] A sibling could only claim if a turpispersona (‘disgraceful person') was instituted as heir.[1881] What made someone a turpis persona is not entirely clear, however, beyond the term implying a poor moral character.[1882] To say that a will was undutiful was to say that the one should not have been passed over. It was not necessary that the failure of duty should have been intentional. It was enough that there was a failure of duty, even if it arose through a mistake or misunderstanding.[1883] The traditional wicked stepmother makes her appearance here. Gaius says: For it is not to be allowed to parents that they do their children wrong in their wills. For they often do this, passing an adversejudgement on their own blood, when they have been led astray by the blandishments or incitements of stepmothers.[1884] This is unlikely to be altogether without justification, although the language used is probably over-dramatic in most cases. The person bringing the complaint had to prove that he or she had been unjustly excluded from the will. A child claiming in respect of a parent's will had to show that he or she had continually shown proper obedience and respect (obsequium) to the parent.[1885] If this had not been shown, the complaint would fail. Similarly, we are told that a mother challenging her son's will would lose if she had previously acted ‘as an enemy rather than a mother', for example by befriending his enemies or committing dishonourable acts against him.[1886] Later,Justinian enacted a list of acceptable grounds of disinheritance.[1887] This included the case where a child committed a serious and dishonourable wrong against the parents or made plots against their lives. Also properly excluded from the will were a child who became a gladiator or mime against the parents' wishes, unless they were of the same proÂfession, and a daughter who ‘chooses to spend a life of self-indulgence' instead of being decently married in accordance with parental wishes. Alongside the querela inofficiosi testamenti there developed the idea of the portio legitima or pars legitima (‘legitimate share'), which a person was entitled to expect in normal circumstances. In classical law, this was a quarter of a person's share on intestacy. If less than this was given in the will, the querela could be brought to bring the complainer up to that share. UnderJustinian, only those who had been excluded entirely could bring the querela. Those included in the will, but with a smaller share, were instead given an action for making up the deficit, the actio ad supplendam legitimam portionem.[1888] Justinian also subsequently made new provision for the extent of the share that could be claimed by the testator's children. Where there were four or fewer children, they were entitled to share a third of the estate. Where there were five or more, they shared half of the estate.[1889] Could the testator avoid the consequences of the querela inofficiosi testamenti by making lifetime gifts, reducing the value of the estate in advance of death? To avoid this possibility, there developed the querela inofficiosae donationis (‘complaint of the undutiful gift'). This allowed excessive gifts to be returned to make up the expected shares of the disappointed children.[1890] What is unclear is whether the excessive gift had to be made with the intention of defeating the querela inofficiosi testamenti, or whether it was enough merely that it had that effect. Proof of intent was not required for the querela inofficiosi testamenti itself, so on one view it would be surprising if it was required for this, which is, after all, intended to prevent avoidance of the querela inofficiosi testamenti. On the other hand, some texts appear to imply that intent was required.[1891] The law in this area bears some resemblance to the modern law of legitim,[1892] particularly the portio legitima. Indeed, Erskine says that that is the origin of the name ‘legitim’.[1893] However, it appears that the rule itself is a native Scots rule.[1894] As one commentator has said of legitim and the equivalent rights given to widows and widowers: ‘no institutions in our jurisprudence have more persistently and erroneously had their origins ascribed to the jurisprudence of Rome’.[1895] This is a reminder, if one was needed, that not all rules of Scots law come from Roman law, even where they have a Roman name and a similar content to a Roman rule. E.