Testate Succession

Making a Will

The earliest wills could be made only at a twice-yearly assembly (comitia calata) or when war was imminent (in procinctu).

It was open to any Roman citizen who was of age to make a will. A woman could make a will with the authority of her tutor. The formal requirements for validity were strict. The essential feature of a Roman will was the appointment of an heir or heirs. The jurist Gaius described this as the source and foundation (caput etfundamentum) of the will (Gaius 2.229).

The first provision in the will had to be the appointment of the heir in set words. There were also formal requirements for disinheriting certain people. The ius civile protected the expectations of a testator’s children by requiring that certain formalities be observed. Male children, if not appointed heirs, had to be disinherited by name. Female children could be disinherited by a general clause of disherison, without being specifically named. The praetor extended the rule to require that even an emanci­pated son ought to be appointed or disinherited expressly.

Position of the Heir

The heir or heres was regarded for most purposes as stepping into the shoes of the deceased. Although certain rights did not survive the death of the deceased (for example, usufruct) and certain obligations were extin­guished by his death (such as mandate, partnership, marriage, delictual obligations except to the extent the heir had benefited from the proceeds), the general principle was that the heir enjoyed the same rights and obligations as had the deceased.

The whole estate of the deceased devolved on the heir. That included debts, and the heir’s liability was unlimited. For this reason appointment as an heir to a particular estate might be extremely undesir­able. Apart from the financial burden, there was the prospective ignominy of being the subject of bankruptcy proceedings. For these purposes the sui heredes were in a different position from others. Under the ius civile they had no power to refuse appointment as heir: for that reason their full title was sui et necessarii heredes (see Gaius 2.56-8).

There was one further kind of heir who could not refuse appoint­ment (heres necessarius), and this was a slave who was freed by the testator in his will and at the same time appointed heir. Although there was in his case no means of avoiding being implicated in any bankruptcy proceedings, even here the praetor provided some protection by allowing the slave to keep his own property separate from that of the estate (Gaius 2.155).

Other heirs appointed in the will were free to accept or reject appointment and were formally recognized as heirs only once they had accepted or otherwise dealt with property of the estate in such a way as to be regarded as accepting. There is some evidence that, in order to spare their children the burdens and responsibilities of being heirs, some testators preferred to disinherit them and appoint someone else as an heir. That person might then be requested by fideicommissum (see below, 206-9) to transfer the property to the children.⁹ In Justinian’s law a new institu­tion, the privilege of inventory or beneficium inventarii, provided that an heir must, within 30 days of knowing of his right to the estate, begin to make an inventory of it. If he did so, his personal liability would not extend beyond the assets set out in the inventory.

Taking Possession of the Estate

The ius civile provided an action by means of which the heir could claim possession of the estate: hereditatis petitio.

The Content of a Will

The only essential content of a will was the appointment of an heir, but in it a testator might also appoint tutors to his children, manumit slaves, and charge his heir to pay legacies. The appointment of tutors by will had been recognized as early as the XII Tables. In the early empire statutory restrictions were placed on the number of slaves who could be manumitted by will, apparently because of concerns about the number of freedmen created in this way. The limits depended on how many slaves the deceased had, but regardless of that an absolute maximum of 100 was imposed (lex Fufia Caninia of 2 BC; Gaius 1.42-3).

Legacies

Legacies are worth somewhat closer consideration.¹² Roman society was one in which the wide dispersion of property by legacy on death appears to have been common.

In Justinian’s Digest the various types of legacy are discussed at length. The main (but not the only) forms were the legacy per vindicatio­nem, which made the legatee owner of the object of the legacy and entitled him to claim it by vindicatio; and the legacy per damnationem, which imposed an obligation on the heir to make payment. It is, however, less the legal form than the wide range of content of legacies which is interesting as a matter of social history. It is not possible here to discuss this exhaustively, and the following is no more than a selection of the more interesting points. Books 33 and 34 of the Digest devote attention to such curiosities as legacies of dowry, wine, farm equipment, peculium (a fund given to a slave or dependent child to administer), and penus (furniture). Digest 33.1 is concerned with legacies of annuities, mostly to old retainers. These were payments of annual sums for the remainder of the lifetime of the payee.

Fideicommissa The fideicommissum or trust was an important alternative to the legacy. 1⁷ It evolved as a legal institution from the beginning of the empire. Prior to that, the fideicommissum had been regarded as generating no more than a moral obligation. The emperor Augustus changed this by charging the consuls with the responsibility for enforcing certain fideicom­missa. This jurisdiction was replaced by that of two standing praetors for fideicommissa under Claudius; they were later reduced to one. The procedure before these magistrates was the new extraordinary procedure (cognitio extra ordinem).¹ The fideicommissum was a request made by a testator to a person who benefited from his estate. Typically it was a request to transfer part or all of it to another person. A simple fideicommis­sum such as a request to make a payment to a beneficiary would look much the same as a legacy, the difference being that the only person who could be charged with the payment of legacies was the heir, whereas anyone who benefited from the estate could be charged with a fideicommissum.

size=1 color=black face="Book Antiqua">One of the initial attractions of fideicommissa was that they could benefit people who were unable to become heirs or legatees under ius civile. This would in principle apply to proscribed persons and to foreign­ers. It might also apply to those who fell foul of the Augustan marriage legislation (lex Iulia de maritandis ordinibus of 18 BC and lex Papia Poppaea of AD 9), by virtue of which (subject to a number of exceptions depending on the closeness of their relation to the deceased) unmarried adults were debarred from receiving inheritances or legacies, and married but childless adults were permitted to receive only half of what they had been left. A logical problem resides, however, in trying to understand how far magistrates can really have enforced fideicommissa in favour of those who had been subjected to restrictions by the ius civile or by statute. There is at any rate no doubt that so far as fideicommissa created loopholes in the law, these were progressively restricted: for example, the SC Pegasianum of AD 73 debarred the unmarried and childless from benefiting by way of fideicommissum.1⁹

The Uses of Fideicommissa The simplest kind of fideicommissum was one which, like a legacy, was directed at having a particular item conveyed to a particular beneficiary. But the flexibility of the institution was such that it was possible to do a number of more elaborate things. One was to ask a person to free a slave.²⁰ More adventurously, a testator’s heir could be asked to make over the entire estate to some other person {fideicommissum hereditatis) either immediately, after an interval, or on his own death. As Gaius explains, ‘When we have written “Let Lucius Titus be heir”, we can add “I ask and request of you, Lucius Titius, that as soon as you are able to accept the inheritance you make it over to Gaius Seius”.’ (Gaius 2.250) Here Lucius Titius was to transfer the estate immediately; in other cases the heir was asked to transfer it only after an interval; commonly this was on his own death.²¹ Functionally, this is equivalent to the legacy of a usufruct (see above, 205-6): in effect, the enjoyment of a life interest and the ultimate title are split. As with usufruct, it appears that this method was sometimes used to divide rights in property between the testator’s widow and his children. Equally, there appear to be cases where it was used to protect the interests of children against their stepmothers.²²

Since a fideicommissum could be charged on a person other than the heir, it was possible to use it so as to affect later generations. Scaevola provides numerous examples, of which the following is one: ‘A father prohibited his son and heir from alienating or mortgaging lands and entrusted to his faith that they would be preserved for his legitimate children and other relatives.’²³ Here, on his father’s death, the son became owner of the land, but it was not his to dispose of, since the father’s will already determined who was to receive it. This kind of arrangement could have operated over several generations, although it seems to have been valid in classical law only if the beneficiaries could be identified. The most remote beneficiaries who were regarded as identifiable were the imme­diate issue of those living at the date of death of the person who set up the fideicommissum.²⁴ This kind of device might in principle have been employed in order to generate family settlements of property lasting for a number of generations, as occurred in Europe in early modern times. For Rome, however, there is some but not much evidence that this was done. While Justinian did legislate to set a maximum four-generation limit on such arrangements, there is little to suggest that this was a response to widespread use or abuse offideicommissa of this kind.²⁵

Fideicommissa could be imposed not simply on the heir under a will, but on anybody who received a benefit from the deceased on succession. This applied not just to legatees (or for that matter the beneficiaries of fideicommissa) but also to those who succeeded as heirs on intestacy. As Paul observed, ‘Fideicommissa can be charged on heirs on intestacy, since the paterfamilias is regarded as intentionally leaving them his estate on intes- tacy.’²⁶ Here, paradoxically, the fideicommissum made it possible to die without leaving a will and yet still determine where some or all of the estate was to go. Since it was possible to charge a fideicommissum on the prospective heir on intestacy, there was in fact no need to make a will at all. Nonetheless, in classical times (up to the mid-third century AD or so) there is no indication that making wills declined in favour of creating fideicommissa on intestacy. What is notable, however, is that in post- classical writings the term fideicommissum is often used in contrast to testamentary succession. This may suggest an increased role for intestacies which fell to be regulated by fideicommissum, as opposed to ‘pure’ intest­acies governed by the default rules of the civil law.

While a will required set words for appointing an heir and charging legacies, no formal constraints affected fideicommissa. This led to the development of a practice of asking that a will, if it turned out to be formally invalid, should be upheld in fideicommissary form. That strata­gem could work, as long as it was possible to identify that the testator was indeed attempting to create a fideicommissum. An example appears in an opinion of Scaevola recorded in Justinian’s Digest: ‘ “I, Lucius Titius, have made this will without any legal expert, observing the reason of my own mind rather than excessive and miserable pedantry; if I have done any­thing without legality and skill, let the wishes of a sane man be treated as valid in law.” He then appointed his heirs. A question arose when the property was claimed on intestacy.’²⁷ Here, in spite of the testator’s plea, the will was void, but the jurists were willing to allow the shares set out in the will to be claimed on the grounds that they could be regarded as fideicommissa.

It appears that the lasting attraction of fideicommissa lay in part with the flexible procedural advantages of cognitio extra ordinem and principally in their lack of legal formality. Under Justinian the two institutions of legacy and fideicommissum were fused. The unitary system which resulted was much closer to the fideicommissum than to the legacy. Justinian regarded the fideicommissum as the more ‘humane’ of the two institutions, so the informal nature of the fideicommissum was extended to legacies. Where the rules of the two institutions conflicted, Justinian determined that those of the fideicommissum should apply. The result was an institution of great flexibility, apt both for straightforward bequests and for more elaborate strategies of succession over one generation or more.

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