Similar Devices
Wills were not the only means by which a person could dispose of his or her property on death. In this final section of the chapter, we will consider three devices with a similar function.
(1) Donatio Mortis Causa
A person, contemplating death and wanting to dispose of property, could make a gift (donatio) instead of (or in addition to)[1896] making a will. Gifts were of two kinds. They could either be inter vivos (‘between living persons’) or mortis· causa (‘on account of death’). In accounts of the law, these tend to be dealt with together.[1897] However, they were in fact quite different. One of the main differences is that an inter vivos gift was irrevocable. In other words, it was a gift in the normal sense of the word, being an outright, gratuitous transfer. By contrast, a mortis· causa gift could be freely revoked by the donor up until the donor’s death.[1898] We will focus here on mortis causa gifts. Inter vivos gifts are considered elsewhere.[1899]
A mortis causa gift was a gift made by a person in contemplation of death. This might most commonly be done when death or danger of it was imminent, but this need not be so: the gift could simply be motivated by ‘contemplation of mortality'.[1900] The gift could be absolute or conditional and could be made in suspensive or resolutive terms. A gift made in suspensive terms would be one in which ownership only passed to the donee on the donor's death. In a gift in resolutive terms, ownership passed on delivery to the donee, subject to an obligation to restore the property if the gift failed, for example because a condition was not met. Where ownership had not passed to the donee, the gift could be recovered in the normal way by the donor, by vindicatio.[1901] If ownerÂship had passed, a condictio could be brought.[1902] Under Justinianic law, ownerÂship reverted automatically to the donor in such cases if the gift failed, and so presumably the property could be recovered by vindicatio.[1903] The gift was made by delivery[1904] or by whatever alternative means were appropriate to the property.[1905] Justinian provided for gifts to be made in the presence of five witÂnesses, though without displacing previous methods, which therefore remained as alternatives.[1906]
As a mortis· causa gift took final effect only on the donor's death, it was not subÂject to the restrictions applying to inter vivos gifts.
For example, it was not subject to the bar on gifts between spouses.[1907] However, because mortis causa gifts operated in a very similar way to legacies, the limitations applying to legacies were progresÂsively applied to mortis· causa gifts as well. By the end of the classical period, the restrictions in the lex Furia testamentaria, the lex Voconia and the lex Falcidia applied to mortis causa gifts.[1908] Ulpian gives a statement of general principle: ‘It will be important to remember that, generally, mortis causa gifts are comparable to legaÂcies. Accordingly, any rule that applies to legacies is to be accepted as applying to mortis causa gifts.'[1909] Justinian, though, went too far in saying that mortis causa gifts were in his day ‘completely assimilated to legacies'.[1910] Some important difÂferences remained. Unlike a legacy, a mortis causa gift did not depend on the valid making of a will or the valid institution of an heir. The gift was separate from any will made by the donor, and so did not fail simply because the will might happen to fail. Likewise, an unsuccessful challenge to a will based on the querela inofficiosi testamenti did not result in loss of the gift, as it was not contained in the will that was being challenged.(2) Fideicommissa
In simple terms, a fideicommissum23 involved property being vested in one person for the benefit of another. Originally it was purely a non-binding request to act in a particular way. The name of the institution indicates this: the property was entrusted (commissum) to the faith fides) of the recipient. Most commonly, this would be done as a way of circumventing restrictions on a particular person takÂing under a will. Instead of directly instituting that person as heir or making a legacy to him or her, a request would be made to the heir or legatee to transfer the property to the intended beneficiary.
For example, suppose that the testator is Marcus.
He wants to leave his farm to Lucius, who is for one reason or another barred from taking under the will. Marcus might then make a legacy of the farm to Quintus, followed by the words ‘I, Marcus, ask you, Quintus, to transfer the farm to Lucius.' Originally Quintus could not have been compelled to comply with the request. This changed, howÂever, in the reign of Augustus. The story[1911] [1912] is that this began with a Roman politiÂcian called Lucius Lentulus, who died in AD 4 while attempting to supress a native uprising as governor of the province of Africa Proconsularis. While dying, he wrote some codicils[1913] requesting that Augustus carry out certain acts. Augustus complied with the requests. Having given fideicommissa this recognition himself, he apparently regularly ordered the consuls to enforce compliance with fideicommissa, either because his own name had been invoked in the fideicommissum or because of ‘outrageous breaches of trust'.[1914] Litigation concerning fideicommissa became so common that a special praetorship, the praetor fideicommissarius, was created to deal with it.Fideicommissa bear undeniable similarity to modern trusts. Both, after all, have the same basic form, with property being entrusted by one person to another for the benefit of a third. Indeed, the term fideicommissum is often translated as ‘trust'.[1915] That usage is avoided here as, despite the similarities, trusts do not seem to bear any historical relationship with fideicommissa. To call them trusts is thereÂfore potentially misleading, by suggesting a relationship that does not exist.[1916] Further, there are important differences. Modern trusts can be (and often are) created by living persons. In that sense, their connection with the law of sucÂcession is incidental, arising because they are often created in wills. By contrast, fideicommissa developed entirely in the context of succession, and are intimately linked with it.
That being the case, it is no surprise that the rules of the general law of sucÂcession increasingly came to apply to fideicommissa as well. For example, peregrini1'4' could originally take under a fideicommissum despite not being able to do so under a will, but this was changed under Hadrian. Instead, the property was forfeited to the imperial treasury.[1917] [1918] The restrictions on succession by unmarried and childÂless persons also came to apply to fideicommisa.2i‘[1919] Again, Hadrian extended to fideicommissa the rule barring legacies to uncertain persons.[1920] This last is of parÂticular interest because it prevented the use of fideicommissa to keep property in the family.[1921] This device, called fideicommissary substitution, involved making a fideicommissum directing each successive heir in turn not to alienate the property and to bind his or her own heir in the same way. This was no longer possible after Hadrian. A liberalising enactment of Justinian allowed this once more,[1922] until a particularly involved case caused him to limit fideicommissary substitution to four generations.[1923] The request made in a fideicommissum could be absolute or conditional and, where any such condition was not met, there was of course no need to comÂply with the request.[1924] Where a fideicommissum was imposed on the heir, he or she remained heir, even after complying with it.[1925] The heir therefore remained liable for the deceased’s debts, even if all benefit had been transferred to the beneficiary of the fideicommissum. This understandably made heirs reluctant to agree to act in such cases. However, during the first century AD, two resoluÂtions of the Senate improved the position of heirs taking subject to fideicomÂmissa. Under Nero, the SC Trebellianum of AD 56/57 provided that, once the fideicommissum had been performed, the rights and obligations of the heir were divided with the beneficiary of the fideicommissum in proportion to what each ended up with.[1926] Later, under Vespasian, the SC Pegasianum extended to fideicomÂmissa the rule of the lex Falcidia, entitling the heir to take at least a quarter of the deceased’s estate. (3) Codicils It was noted above that the fideicommissa of Lucius Lentulus were created in codiÂcils. In modern practice, the term ‘codicil’ is used for a deed that amends an existÂing will, for example where it is intended to alter a legacy without having to redo the whole will. This is not the meaning of the term in Roman law. A codicil in Roman law can be defined as a document that makes testamenÂtary provision, but which does not meet the requirements for a will. They were not enforceable before Augustus. Their coming to be enforceable arises from the same story of Lucius Lentulus recounted above.[1929] After he had performed the fideicommissa, Augustus consulted the leading jurists of the time, to ask whether codicils should be considered legally effective. Augustus accepted the view of Trebatius, that the ability to make a legally effective codicil would be useful to those on journeys, who might not be able to make a will. This accordingly became the law. A codicil could be made even where no will was made.[1930] A distinction was made between codicils confirmed by a will[1931] and those not confirmed by a will. A codicil that was not confirmed by a will could only be used to create a fideicomÂmissum. By contrast, a confirmed codicil could do anything a will could do except for instituting an heir.[1932] In classical law, there were no specific requirements of form for a valid codicil. It is no doubt this that led to the inclusion in wills of a clause called the clausula codicillaris, which Ulpian tells us was done in the majority of cases.[1933] This clause provided that, if the will failed, it was to be treated as a codicil and its provisions as fideicommissa. In the post-classical period, though, the distinction between wills and codicils was reduced by the introduction of a witnessing requirement along the same lines as wills.[1934] The final position was that five witnesses were needed for a valid codicil.[1935]