The primary function of a will in classical Roman law was to appoint an heir or heirs, who would then succeed into the position of the testator according to their shares of the inheritance.
The testators estate may therefore be thought of as a sort of pie that is apportioned by the will. The ultimate size of the pie, however, can be strongly affected by legacies and other bequests, which can substantially reduce the assets of an estate.
As Florentinus puts it (D. 30.116 pr.): “A legacy is a deduction from the inheritance by which a testator wishes there to be transferred to someone property out of that which would (otherwise) be entirely the heir's.”Strategies of property devolution become ever more complex as we move to consider nonheir bequests. These must be examined in light of the testators plan regarding the heirs to the estate. For example, a child might be disinherited only so that he or she might be spared the obligations of inheritance and advantaged by a legacy or trust; the jurist Ulpian tells us explicitly that trusts were used in this way (D. 28.2.18 = Case 180). While reading the Cases below, ask yourself precisely how these bequests are being used to supplement the testators goals in instituting heirs.
Multiplying the testators options could support a variety of ends. If the children were deemed the main beneficiaries of the estate, how would a widow be provided for? A legacy of personal belongings, as well as the obligatory return of the dowry, was one answer. A life interest in a share of the property, to revert to the heirs upon her death, was another possibility. Many scholars think usufruct was invented to serve precisely such a purpose.
The three main forms of bequest—legacy, trust, and gift on account of death (mortis causa)—each display a similar process of transformation at work. Each was introduced to provide testators with greater freedom and flexibility; and each was then gradually domesticated by subjecting it to the broader rules that governed the law of succession.
This begins with legacies, which together with inheritance itself were regulated by positive legislation such as the lex Falcidia and the Augustan marriage law. The jurists, in close consultation with the Roman government, next extended these regulations to trust, and then to gift mortis causa. This process may be viewed as one more example of the tension between personal freedom and social responsibility that stands out as a defining characteristic of the Roman law of succession.Even the present chapters very short introduction to the law of succession should be sufficient to persuade you of the extraordinary complexity of this area of Roman law. One may well come away with mixed feelings. As Fritz Schulz once observed, “The classical lawyers have studied the law of legacies (legata and fideicommissa) with unconcealed predilection. The classical writings... are full of subtle and detailed inquiries concerning legacies.. .. However, this achievement of the classical lawyers reveals their limitations as well as their greatness. Studying these discussions in full detail, one cannot help wondering whether it was really justifiable to spend so much time and labour on these difficult and tortuous questions, the practical importance of which was so slight.” As you read this part, see if you agree.