The Nature of the Roman Law of Succession
(1) Introduction
The one unavoidable thing in life is death. When the inevitable comes, one thing that has to be considered is how the assets of the deceased are to be distributed and,just as importantly (not least for the deceased’s creditors), the deceased’s liabilities have to be considered.
In modern legal systems, we can distinguish two main approaches to this. In one of these, the deceased’s whole patrimony — both assets and liabilities — vests in a trustee, called the executor.[1689] The executor is responsible for satisfying the liaÂbilities and distributing the assets in accordance with any will left by the deceased or according to legal rules. An executor in modern law, however, does not act in a personal capacity. Instead, he or she acts as a trustee, holding the property on behalf of those entitled to benefit from the deceased person’s estate. Accordingly, a modern executor is not personally liable for the deceased’s debts, and nor are the deceased’s assets available to the executor’s personal creditors. Equally, the beneficiaries of the deceased are not personally liable for the deceased’s debts. This is the approach taken in Scots law.
Roman law took an alternative approach, known as universal succession. In a system of universal succession,[1690] both the assets and the liabilities of the deceased pass directly to the heir (or heirs), in the heir’s personal capacity. The heir thus becomes personally liable for the deceased’s debts[1691] or other liabilities,[1692] a situation that can lead to the so-called damnosa hereditas, or ‘ruinous inheritance', when the deceased's debts exceed the assets available to pay them. This is particularly so given that the heir need not necessarily be the sole or even the main beneficiary under the will. The will may also include legacies to other people, which may have the effect of leaving the heir with nothing but debts.
For these reasons, meaÂsures are often developed to protect the position of the heir. As we shall see, this was true in Roman law.(2) The Position of the Heir and the Creditors of the Deceased
We see then that, in the Roman law of succession, the deceased's whole patriÂmony passed to the heir (or heirs), who therefore became in principle liable for the deceased's debts. In effect, the heir stepped into the shoes of the deceased, as if the heir and the deceased were the same legal person. This could have unfortuÂnate consequences. How these consequences were resolved varied depending on circumstances. It is necessary at this point to distinguish between different types of heir, who were treated in different ways. It is also necessary to consider the position of the creditors of the deceased.
(a) Sui et Necessarii Heredes
We have seen[1693] that, unless released from that authority by emancipation,[1694] a Roman citizen who had been born of a valid Roman marriage was subject to the authority, orpatria potestas, of his or her eldest male agnatic ascendant.[1695] This person was called the paterfamilias. A woman in a manus marriage[1696] was subject to the patria potestas of her husband or his paterfamilias, if he had one.
The sui heredes[1697] were the people who became sui iuris (i.e. legally independent)[1698] on the death of the paterfamilias.[1699] [1700] These were the children of the paterfamilias92 and, if married cum manu, his wife, and they could not refuse the inheritance.[1701] Instead, they would ‘immediately become heirs by force of law',[1702] without any need for formal or informal acceptance of the inheritance, unless the deceased had left a will appointing someone else as heir. For this reason, they were said to be necessarii heredes (necessary heirs), hence the full title sui et necessarii heredes. Adopted children were included in the category,[1703] but emancipated children were excluded. Children of a predeceasing or previously emancipated son were included.[1704] A daughter’s children would not, however, be included, as they would be in the potestas of their own father (or his paterfamilias'). They did not, therefore, become sui iuris on the death of their mother’s paterfamilias. A wife in a marriage sine manu[1705] was excluded, as she was not in her husband’s power. The inability of sui heredes to refuse the position of heir could have harsh conÂsequences if the paterfamilias was insolvent. As the heir was liable for the debts of the deceased, he or she could potentially end up being subjected to insolvency proceedings, with the stigma that went along with them, despite not being at fault. Accordingly, the praetor intervened to protect sui heredes in this position. The praetor allowed sui heredes the beneficium abstinendi (‘the right of abstaining’), as long as they had done nothing to interfere with the deceased’s property. This had two related consequences. First, if the deceased’s property had to be sold on account of insolvency, this would be done in the name of the deceased rather than that of the heir.[1706] As a result, the heir would avoid the stigma of insolvency. Second, the praetor would deny to creditors of the deceased any action against an heir exercising the beneficium abstinendi for the deceased’s debts.[1707] This was the case even though the heir was still liable according to the civil law: the beneficium abstinendi did not take away the status of heir.[1708] Accordingly, if the estate turned out not to be insolvent after all, the heir remained entitled to the surplus.[1709] (b) Necessarii Heredes A person who was doubtful of the solvency of his or her estate, and who had no sui heredes who had no choice about accepting the inheritance, had a problem. While someone else could be instituted as heir, as we shall see such a person did not have to accept. To give some protection to freed slaves in this position, the separatio bonorum (‘separation of property’) was introduced. By this, the ex-slave was entitled to have any property acquired after freedom excluded from liability for the debts of the deceased, excepting only things acquired in the capacity of heir.[1712] (c) Extranei The third category of heirs was extranei (‘outsiders’). Anyone who did not fall into the categories of sui heredes or necessarii heredes fell into the category of extranei instead. The main difference with extranei was that, unlike the other two categoÂries of heir, they could refuse the inheritance. It might be difficult for an extraneus[1713] to decide whether to accept the inheriÂtance. After all, as we have seen, acceptance (known as aditio) would make the heir liable for the debts of the deceased. Accordingly, the extraneus was allowed time for deliberation (spatium deliberandi) to consider whether to accept.[1714] How this worked depended on the terms of the will, specifically whether the will contained a requirement for cretio.[1715] Where cretio was required, there was a period for consideration during which the heir could give formal acceptance of the inheritance. Failure to do so within the time allowed resulted in forfeiture of the inheritance. The term cretio could be used to refer both to the giving in the will of the period for consideration[1716] and to the formal acceptance by the heir. Where there was no requirement for cretio, informal acceptance was enough.[1721] This could even be implied by the heir's acts. Acts are ambiguous,[1722] however, and so express words were always to be preferred. The civil law did not prescribe any maximum period for consideration. Lengthy delays no doubt sometimes caused anxiety to the creditors of the deceased, who after all wanted to know to what person they were to look for payment, and so creditors could petition the praetor to fix a time limit for the heir to accept the inheritance.[1723] When the person instituted as heir accepted the inheritance, he or she took the position of heir, including liability for the testator's debts. (d) Protection of Creditors It was not only the person instituted as heir who might be concerned with issues of solvency. What if it was the heir who was insolvent? As the deceased’s patriÂmony merged with that of the heir, any creditors of the deceased might have unexpected difficulty in getting payment. This issue was resolved by allowing the creditors of the deceased to apply to the praetor for separatio bonorum, allowing them to enforce the rights they held against the deceased as if the two patrimoÂnies remained separate.[1726] This had to be done within five years from the heir’s acceptance of the inheritance.[1727] B.