Abstract
As previously noted, the Roman jurists regarded the law of succession as a part of the law of property since succession was construed as a mode of acquisition of ownership per universitatem, i.e. of an estate as a whole, in contrast with acquisition of ownership over individual objects (singulae res). Since, however, it was not merely the assets of the deceased that passed to the heirs but also his debts or obligations, the law of succession is more appropriately treated for present purposes as an independent section of private law.
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- 1.
The great importance of succession in early times derived from its connection with religion: it was deemed necessary that someone should take the place of the deceased in carrying out the duties of family worship. In the course of time, a further pragmatic need arose; namely, that creditors should have information on the person designated to tackle payment of the deceased’s debts.
- 2.
See Inst 3. 1 pr: “A person dies intestate, who either has made no testament at all, or has made one not legally valid; or if the testament he has made is revoked, or made useless; or if no one becomes heir under it.” And see D 38. 16. 1 pr.
- 3.
XII T 5.4 & 5.
- 4.
Consider G 3. 1–4; Inst 3. 1. 1 ff.
- 5.
If a suus heres was unable to inherit, representation (representatio) was possible. This meant that the descendants of an alieni iuris (e.g. grandchildren) obtained their parent’s share, insofar as they were alieni iuris of the testator and became sui iuris on his death.
- 6.
G 3. 10–11. And see G 3. 12–16. Female agnatic relatives could succeed only if they were sisters of the deceased. Further degrees of female agnates were excluded.
- 7.
G 3. 17.
- 8.
G 3. 32. Consider also Inst 3. 9.
- 9.
Originally, this bonorum possessio did not operate against third parties who had a claim to the testator’s property in accordance with the ius civile. In later times, however, such possession was protected by the interdictum quorum bonorum and other remedies.
- 10.
The chief aim of the relevant edict (edictum unde liberi) was to facilitate emancipated children to inherit from their father. In this instance, the testator’s estate was divided into as many equal portions as there were surviving and predeceased children who left descendants. Each surviving child took one share, and the share of a predeceased child was divided among his children (representation per stirpes).
- 11.
The relevant group included children in an adoptive family; female agnates remoter than sisters; agnates who had suffered a capitis deminutio; and other remoter agnates. It should be noted that this was the first time that succession based on cognatio was recognized in Roman law. The blood relatives of the nearest degree inherited first to the exclusion of those who were further removed. If there were several such relatives of the same degree, the testator’s estate was divided per capita, i.e. each of them was given an equal share (as remoter degrees of relationship were excluded, there was no representation per stirpes).
- 12.
The four categories of persons mentioned in this context pertained only to free-born persons (ingenui).
- 13.
This event occurred in accordance with the so-called leges caducariae (the lex Iulia de maritandis ordinibus and the lex Papia Poppaea). It should be noted that as the fiscus was not regarded as an heir, it could not be held liable for the debts of the deceased. An heir, on the other hand, was deemed fully responsible for the testator’s liabilities and if the assets of the estate were insufficient to satisfy the creditors, he would have to pay from his own pocket.
- 14.
Free-born women who had three children and freedwomen who had four were released from the guardianship to which women were subject (tutela mulierum) by the ius liberorum. The women’s ius liberorum prevailed even where the children were no longer alive.
- 15.
According to this resolution, the children of the deceased succeeded first, then the father and, subsequently, the mother along with the brothers and sisters.
- 16.
Later legislation extended this privilege to grandchildren. It should be noted that with respect to both the senatus consultum Tertullianum and the senatus consultum Orfitianum, it was irrelevant whether the child was legitimate or not.
- 17.
Under this system adopted descendants had a double succession: to the property of their natural parents and to that of their adoptive parents.
- 18.
As previously indicated, division per stirpes (“per branch”) means that each branch of the deceased person's family received an equal share of the estate, regardless of how many people are in that branch. The method of division per capita, on the other hand, weighs each person equally, rather than each branch equally.
- 19.
Under the praetorian system of intestate succession, blood relatives beyond the sixth degree could not succeed. This limitation was apparently no longer recognized.
- 20.
Justinian’s system of intestate succession served as a model for the legal systems of Continental Europe and thereby the legal systems of many countries around the world.
- 21.
The essential element of the testamentum calatis comitiis was the nomination of a universal successor (heredis institutio). There is in fact a close connection between this form of will and the institution of adoption (adrogatio per populum): as adrogatio effected an adoption inter vivos, so the testament effected an adoption mortis causa. In both cases the principal motive was to secure the continuation of the family in the absence of a male descendant. Furthermore, it is probable that through the creation of a testament before the assembly a paterfamilias had an opportunity to nominate a successor (usually from among his sui heredes) and to explicitly exclude other sui heredes whom he considered unsuitable.
- 22.
G 2. 101: “Originally there were two kinds of wills: parties either made a will at the comitia calata, which were assembled twice a year for that purpose; or in the face of the enemy, that is to say when the testator took up arms for the purpose of making war, for the term [procinctus] refers to an army ready for battle. Hence, persons made one kind of a will in time of peace and tranquillity, and another when about to go into battle.” And see Inst 2. 10. 1.
- 23.
The relevant document was sealed by the familiae emptor, the libripens and the five witnesses to the mancipatio procedure. On the mancipatory testament see G 2. 102–108; Inst 2. 10. 1.
- 24.
The possession of the testator’s estate in this case was referred to as bonorum possessio secundum tabulas: possession in accordance with a will. See G. 2. 119. The seven witnesses corresponded to the five witnesses of the testamentum per aes et libram together with the libripens and the familiae emptor, who was now regarded as no more than a witness.
- 25.
Consider G 2. 120–121; G 2. 147.
- 26.
C 6. 23. 21.
- 27.
The word ‘subscripsi’ (‘I have subscribed’) was in most cases sufficient, although other formulae might also be employed. It should be noted that Justinian initially required that the name of the heirs should be written by the testator himself or, alternatively, by the witnesses following an oral pronouncement of the testator, in their subscriptiones. However, a later decree of Justinian abolished this requirement. On this form of will consider Inst 2. 10. 3 & 4; C 6. 23. 29; Nov 119. 9.
- 28.
The military will, which must be distinguished from the old testamentum in procinctu, was introduced by Julius Caesar as a temporary concession and became an established form of will in the Principate era.
- 29.
However, this did not exempt the soldier from compliance with certain fundamental principles of the ius civile. See Inst 2. 11 pr.
- 30.
Inst 2. 11. 4.
- 31.
Inst 2. 11. 3. On the soldier’s will consider also G 2. 109–111 & 114; D 29. 1; C 6. 21.
- 32.
The legal capacity to create a will is referenced in later literature by the term testamenti factio activa. This is distinguished from the legal capacity to be instituted as heir in a will, referred to as testamenti factio passiva. The term testamenti factio relativa denotes the legal capacity to act as a witness to a will. It should be noted, however, that these terms do not appear in the Roman juridical sources.
- 33.
Persons in potestate could not compose a will since such persons, in principle, owned nothing. However, in later law certain exceptions were introduced regarding the peculium castrense and quasi castrense of the filiusfamilias (see the relevant section in the previous chapter on the law of persons). Furthermore, the testament of an insane person was deemed valid if he made it during a ‘lucid interval’ (dilucidum intervallum), i.e. a period during which an insane person regained full mental capacity.
- 34.
Slaves could not create a valid will, although a master might in effect allow his slaves to dispose of their peculia by will amongst themselves. A Roman citizen captured by the enemy was considered to be in the same position as a slave. However, a will he had composed before he was seized during war would be deemed valid by right of postliminium (the right in virtue of which a former captive was restored to the position he had prior to his enslavement) if he returned, and by the operation of the lex Cornelia de captivis (82–79 bc) if he died in captivity. The latter law introduced what is described as the benefit of the lex Cornelia (beneficium legis Corneliae) or the fiction of the lex Cornelia (fictio legis Corneliae). Although the nature of this benefit or fiction remains unclear, it appears that the relevant statute confirmed the succession to the testator’s estate as if the latter had never been captured.
- 35.
On the issue of testamentary capacity see D 28. 1. 2 & 4; Inst 2. 12.
- 36.
One could institute a slave as an heir in the last resort also in order to avoid the ignominy of a post mortem bankruptcy.
- 37.
Under the lex Voconia (c. 169 bc), a woman could not be instituted as heir by a testator whose estate had a value greater than a fixed amount (probably 100,000 asses or sesterces). See G 2. 274.
- 38.
In Justinian’s time it was possible to institute the state, the Church and religious or charitable organizations as heir but private associations could only be instituted as heir by special licence. Evidence from the sources suggests that Justinian issued a constitution that finally abolished the general principle that a persona incerta could not inherit.
- 39.
Although Gaius appears to suggest that only Roman citizens could witness a will (see G 2. 104), foreigners vested with the ius commercii also had the legal capacity to be witnesses.
- 40.
However, it should be noted that a person to whom a legacy had been bequeathed under a will could witness such a will without forfeiting the legacy.
- 41.
D 28. 1. 22. 1.
- 42.
Consider G 2. 229; G 2. 116 & 248. The requisite formal words had to be peremptory or imperative, e.g. Titius heres esto (‘Let Titius be my heir’), or Titium heredem esse iubeo (‘I direct Titius to be my heir’). The testator could not merely express the desire that someone should be his heir. See G 2. 117.
- 43.
Inst 2. 20. 34; C 6. 23. 15; C 6. 23. 21. 6.
- 44.
The institution of an heir to a specific object (not to a fraction of the estate) was referred to as heredis institutio ex re certa. Although originally such an institution was not valid and rendered the will void, from the time of Augustus it was recognized that an heir thus instituted should be regarded as heir to the entire estate as if the particular object were not mentioned. Under the law of Justinian, if one person was instituted to a particular object and another generally, the first institution was treated as a legacy. See C 6. 24. 13.
- 45.
An exception was recognized in the case of the military will. Inst 2. 14. 5.
- 46.
If the co-heirs were collectively instituted for more than the deceased’s estate was worth, their shares were proportionately decreased. Inst 2. 14. 4–8.
- 47.
In such a case one became heir only if some specified future event occurred.
- 48.
For example, in accordance with such a modus the heir could be burdened with the duty to erect a tombstone for the testator.
- 49.
Resolutive conditions or terms and impossible conditions were regarded as not written (pro non scripto) and the will was construed as if they did not exist at all. See Inst 2. 14. 9–10; G 2. 184. The phrase semel heres, semper heres is not found in the Roman juridical sources but is derived from texts such as D 28. 5. 89.
- 50.
Bequests contrary to good morals (boni mores) were usually also invalid. On the issues of duress, fraud and mistake see the relevant sections in the chapter on the law of obligations.
- 51.
As a heres necessarius, the slave could not refuse the inheritance.
- 52.
The usual form of substitutio vulgaris would appear as follows: ‘Let Titius be my heir; if Titius shall not be my heir, then let Maevius be my heir.” Consider G 2. 174; Inst 2. 15 pr.
- 53.
The relevant formula was as follows: “Let my son Titius be my heir; if my son Titius shall not be my heir, or shall be my heir and die before he becomes his own master (i.e. before reaching puberty), then let Seius be heir.” See Inst 2. 16 pr.
- 54.
Inst 2. 16. 1; C 6. 26. 9.
- 55.
If extranei had been instituted as heirs, the sui heredes who had been passed by were entitled to half of the estate. Consider G 2. 123–124.
- 56.
Disherisons were not affected by the grant of bonorum possessio contra tabulas. On the historical evolution of the rules governing disinheritance see Inst 2. 13 pr −5.
- 57.
No formal words were required for the disinheritance. See C 6. 28. 3.
- 58.
C 6. 28. 6.
- 59.
The grounds that would justify disinheritance had a predominately casuistic nature and included an attempt by the heir to murder the testator, insulting a forefather and heresy.
- 60.
It should be noted that in the eyes of the Romans the family constituted a unit, and even before the death of the paperfamilias the alieni iuris members of the family were considered to have some right to the family’s estate.
- 61.
As previously observed, an insane person was incapable of making a valid will.
- 62.
Inst 2. 18 pr; D 5. 2. 2. 3 & 5. If the court reached the conclusion that the disinheritance had been justified, the querela would fail. See D 5. 2. 8. 16; C 3. 28. 11. It should be noted that the relevant remedy was excluded if the complainant had at an earlier stage already recognized the validity of the will by, for example, accepting a benefit under it or by entering into an agreement with the appointed heirs.
- 63.
Thus, a suus heres passed over in the will could not rely on the querela since he had his remedy by petitio hereditatis, a kind of rei vindicatio based on a specific title of the plaintiff, i.e. the right of an heir. Similarly, an emancipated son who had been passed over could not institute this remedy because he could be granted bonorum possessio contra tabulas by the praetor. But either of them could employ the querela if he was disinherited without good cause, as in that case no other remedy was available.
- 64.
D 5. 2. 8. 10. The claim might under circumstances be directed against the bonorum possessor contra tabulas, the fideicommissarius and the fiscus. Consider D 5. 2. 16. 1; C 3. 28. 1 & 10.
- 65.
Although the phrase personae turpes is not clearly defined, it probably includes persons technically infamous (infames) as well as persons of bad character or low social standing. See on this issue C 3. 28. 27.
- 66.
D 5. 2. 8. 6 & 8; C 3. 28. 31 & 36.
- 67.
It was also known as quarta falcidia, as it was laid down by a lex Falcidia (40 bc).
- 68.
Inst 2. 18. 3; Inst 2. 18. 6.
- 69.
As in the case of the querela, the defendant could raise against this action the defence that the complainant had been justly disinherited.
- 70.
The share of ascendants and of brothers and sisters remained fixed at one-quarter.
- 71.
Inst 2. 17 pr.
- 72.
As explained in our discussion of exheredatio and the querela inofficiosi testamenti above.
- 73.
However, if the will satisfied certain requirements the praetor could in this case grant the instituted heir a bonorum possessio secundum tabulas (possession in accordance with the will). See Inst 2. 17. 6.
- 74.
Inst 2. 17. 1 & 4–6; G 2. 131, 138 & 145–147.
- 75.
G 2. 144; Inst 2. 17. 2.
- 76.
G 2. 151 & 151a. And see C 6. 23. 30.
- 77.
Literally ‘small letters’ that were originally written on tables of wax.
- 78.
According to the sources, this development was initiated by a Roman citizen, Lucius Lentulus, who shortly before his death in Africa directed a request to Augustus in the form of a fideicommissum contained in codicilli. Subsequently, on the recommendation of some of the most eminent jurists of the time, the emperor granted recognition to codicilli as a means of expressing a last will. See Inst 2. 25 pr. For the validity of a codicil as an expression of one’s last will it was required that its author should have the testamenti factio. D 29. 7. 6. 3. Later imperial legislation required the presence of five witnesses, although in Justinian’s time even oral codicilli were accepted. Where the codicil was in writing the witnesses had to add a written confirmation (subscriptio) at the foot of the document for purposes of identification. Consider C 6. 36. 8. 3. It should be noted that a testator might state in his will that, if the will should be declared void because of some deficiency, it should be treated as a codicil. However, such a statement could have practical consequences only if the will itself had met the requirements for a codicil. Consider D 28. 3. 12. 1; D 29. 1. 3.
- 79.
D 29. 7. 8 pr & 18; D 50. 16. 123; Inst 2. 25. 1 & 2; G 2. 273. And see D 29. 7. 3. 2.
- 80.
G 2. 270a. If such an unconfirmed codicil existed in addition to a will, it was considered to be independent of whether such a will had validity.
- 81.
In classical law this normally occurred at the time of the testator’s death. However, where there was a will, the opening of the will was the crucial point or, in the case of a conditional appointment of an heir, the fulfilment of the relevant condition. It would appear that in the time of Justinian the delatio hereditatis always took place at the testator’s death.
- 82.
G 2. 157: “They are called necessary heirs for the reason that, under all circumstances, whether they are willing or unwilling, they become heirs in case of intestacy, as well as under the will.”
- 83.
The ius abstinendi was not accorded to slaves as heredes necessarii. However, a slave who inherited an insolvent estate could request the separation of estates (separatio bonorum) in order to keep intact anything that he acquired or would acquire in the future as his own property. G 2. 158; G 2. 153–155.
- 84.
However, at the request of the testator’s creditors the praetor could prescribe the period within which the heir should decide whether he planned to accept the inheritance or not. This period (spatium deliberandi) could vary between one hundred days and a year. D 28. 8. 2; C 6. 30. 22. 13a. See also G 2. 167.
- 85.
G 2. 164–167. Pro herede gestio pertained to any juridical act that appeared to be that of an heir. See D 11. 7. 14. 8; Inst 2. 19. 7.
- 86.
G 2. 9; D 1. 8. 1 pr.
- 87.
For this kind of usucapio, possession of the relevant estate for a year was sufficient.
- 88.
D 42. 5. 31 pr. In the case of refusal, the creditors could be granted possession (missio in possessionem) of the heir’s property.
- 89.
The separatio bonorum was connected with the so-called beneficium separationis: the right to have the goods of an heir separated from those of the testator.
- 90.
Under normal circumstances, this occurred at the opening of the testator’s will or otherwise when delatio hereditatis transpired.
- 91.
C 6. 30. 22. 2a; See also C 6. 30. 22. 11.
- 92.
D 10. 2; C 3. 36 & 38.
- 93.
As explained in the discussion of the praetorian system of intestate succession above.
- 94.
D 37. 6. 1. The collatio was usually preceded by the emancipatus giving a guarantee (satisdatio). See D 37. 6. 1. 9 ff.
- 95.
Consider D 37. 7. It should be noted that in later law the principle underpinning the collatio bonorum was extended to all descendants of the deceased person: whatever they had received from the deceased until his death (for example, in the form of donations or other benefits) had to be ‘brought in’ and taken into consideration when their shares in the inheritance were calculated. Of course, the testator could expressly increase the share of a particular heir by declaring that there was no need for collatio with respect to such an heir.
- 96.
Unlike the rei vindicatio comprised of an action by which the plaintiff could only claim specific or individual things (actio in rem specialis), the hereditatis petitio was an actio de universitate, i.e. an action that could be used to claim an estate or part thereof as a whole, including incorporeal objects (rights) and liabilities.
- 97.
The bona fide possessor was under the impression that he was the true heir, whilst the mala fide one did not claim any valid title (sine causa). The same action could be instituted against a non-possessor who purported to be in possession (liti se obtulit quasi possideret) or who had fraudulently relinquished possession of the property in question (dolo desiit possidere).
- 98.
Justinian extended the scope of the hereditatis petitio to make it also available to the bonorum possessor in the form of hereditatis petitio possessoria.
- 99.
See relevant discussion in the previous chapter on the law of property.
- 100.
The senatus consultum Iuventianum was originally concerned with claims of the state treasury against private individuals for the recovery of vacant inheritances. Post-classical and Justinian’s law broadened its scope and rendered it applicable to hereditatis petitiones among private individuals.
- 101.
Inst 4. 17. 2; D 5. 3. 20. 3.
- 102.
D 5. 3. 39. 1 & 50.1 as contrasted with D 5. 3. 38.
- 103.
See on this matter D 43. 2. 1; G 3. 34; Inst 4. 15. 3.
- 104.
Where the legacy consisted of a fraction of the deceased estate (not single things), the legatee was referred to as legatarius partiarius.
- 105.
In D 30. 116 pr, a legacy is defined as “a diminution of the inheritance whereby the testator directs that something that would otherwise form part of the estate going to the heir is to go to some other person.” See also Inst 2. 20. 1: “a legacy is a kind of gift left by a deceased person.” Consider also D 31. 36. It is interesting to note that both Gaius and Justinian shared the opinion that the legacy did not fall within the field of the law of succession because it was not a form of acquisition of ownership of things per universitatem. Since, however, the topic of legacy was closely connected with testamentary succession, they felt that they could deal with it as a sub-division of the law of succession. See G 2. 191 and Inst 2. 20 pr.
- 106.
In G 2. 229 it appears that legacies preceding the institution of an heir were void. Justinian departed from this rule in Inst 2. 20. 34. And see C 6. 23. 24.
- 107.
G 2. 270a.
- 108.
Inst 2. 20. 24: “Legacies can be left only to persons who have testamentary capacity, that is, who are legally capable of taking under a will.”
- 109.
A legatarius could not himself be burdened with a legacy in favour of another person.
- 110.
G 2. 192.
- 111.
The legatum per vindicationem was used to make the legatee owner of the thing bequeathed on the death of the testator and without intervention of the heir. In this case the legatee could claim the object from whoever possessed it by means of the rei vindicatio. The legatum per damnationem, probably the most important form of legacy, had a wider scope. By means of this form the legatee acquired a claim, supported by a strong personal action (actio ex testamento), against the heir or heirs for payment of the legacy. The effect was that the legatee was in almost the same position as a creditor of the deceased estate. Virtually any kind of thing could be the object of such a legacy, including incorporeal things, services and even future things. The third type of legacy, the legatum sinendi modo, could involve things that belonged to the testator or to the heir at the time of the testator’s death. If the heir refused to comply with the testator’s order, the legatee could enforce his right by means of the actio incerti ex testamento (a personal action) against the heir. The legatum per praeceptionem appears to have been the subject of controversy among jurists. According to the Sabiniani, such legacy could be bequeathed only in favour of an heir. On the other hand, the Proculiani held (and their view finally prevailed) that third persons who were not heirs could also be benefited by this kind of legacy. In effect, if the beneficiary was a third party this form of legacy was, to all intents and purposes, similar to the legatum per vindicationem. Where the legatee was an heir, he had a preferent claim against the estate for his legacy and only after the legacy had been paid out to him could he obtain his share of the remainder of the estate. On the history of these legacies see G 2. 191–223.
- 112.
This meant, in effect, that most legacies deemed invalid due to the use of the wrong form were construed to be a legatum per damnationem.
- 113.
C 6. 37. 21. And see C 6. 23. 15.
- 114.
C 6. 43. 1; Inst 2. 20. 2.
- 115.
A testator might stipulate that the legatee should receive the benefit only after he carried out some duty or charge imposed upon him (modus) in conjunction with the benefit.
- 116.
D 34. 7. The relevant rule was named after the famous jurist Cato.
- 117.
The exercise by a suus heres of his ius abstinendi did not negate legacies if the estate was solvent.
- 118.
If the legacy depended upon a suspensive condition, the term dies cedens denoted the day on which the condition was fulfilled.
- 119.
See Inst 2. 21; D 34. 4.
- 120.
The lex Furia testamentaria prohibited the bequest of legacies greater than one thousand asses each, with the exception of legacies bequeathed to one’s nearest relatives, spouse or bride. However, this enactment was not wholly effective as it did not limit the number of legacies of one thousand asses each that one could bequeath. The lex Voconia provided that the share of the estate left to an heir should not be smaller than the largest legacy. The problem was not satisfactorily addressed in this way either, as the estate could be exhausted by a large number of small legacies, even if the largest of these was smaller than the smallest share of the inheritance. Consider G 2. 225 & 226.
- 121.
G 2. 227. Where there was more than one heir, each had to have a clear fourth part of the share of the estate to which he was instituted. It was not sufficient that the heirs collectively took one-fourth of the estate between them. The estate’s value was calculated as it was at the time of the testator’s death; a subsequent increase or decrease did not affect this valuation. In calculating the value of the estate, a deduction was computed in regard to debts, funeral expenses and the value of slaves freed by the will. Inst 2. 22 pr-3.
- 122.
D 29. 1. 17. 4.
- 123.
Furthermore, under the law of Justinian an heir could not rely on the lex Falcidia unless he employed the beneficium inventarii.
- 124.
The relevant actions were the rei vindicatio and the actio ex testamento respectively.
- 125.
See C 6. 43. 1; Inst 2. 20. 2. Since Justinian wholly assimilated the legacy and the fideicommissum, the legal remedies of the legatee also became available to the fideicommissarius.
- 126.
There was no specific formula for the relevant request, but the commonly used phrase was fidei tuae committo: ‘I commit myself to your faith or confidence’ (hence the term fideicommissum).
- 127.
Where the bequest had been made in the provinces, the relevant procedure transpired before the provincial governor.
- 128.
For example, the restrictions associated with the testamenti factio or the application of the lex Falcidia.
- 129.
G 2. 281; D 32. 11 pr; D 40. 5. 47. 4. A variety of verbs were used in this regard, such as rogo (ask), peto (request) or volo (wish), and of course the phrase fidei tuae committo. But mere suggestions or recommendations were not sufficient.
- 130.
This is one of the principal differences between fideicommissum and legacy. Gaius deals with the differences between these institutions in G 2. 268–289.
- 131.
G 2. 270; G 2. 260 & 271; D 32. 1. 6. Even the state treasury (fiscus) as an acquirer of bona vacantia could be burdened in this way. Consider D 30. 114. 2.
- 132.
The fideicommissum could be subject to a suspensive condition or period, although the dies cedens normally coincided with the testator’s death.
- 133.
G 2. 184 & 277; D 36. 1. 1. 2.
- 134.
G 2. 252 & 257. The fiduciary heir also had to allow the fideicommissarius to institute claims relating to the estate as his representative (referred to as cognitor when appointed in a formal manner, and procurator when appointed informally).
- 135.
As previously noted, according to this rule once the heir accepted the inheritance he was responsible for the estate’s liabilities.
- 136.
G 2. 254.
- 137.
Inst 2. 23. 7.
- 138.
C 6. 43. 2. 1. In his Institutes, Justinian deals with legacies and fideicommissa separately as, according to him, such an approach would facilitate an understanding of the relevant institutions by students.
- 139.
As the donatio mortis causa was closely associated with legacy, it appears appropriate to discuss it in the chapter on the law of succession, although the institution of donation (donatio) in general is usually considered to belong to the law of obligations.
- 140.
D 39. 6. 1.
- 141.
See D 39. 6. 2.
- 142.
D 39. 6. 15; D 12. 1. 19 pr; D 39. 6. 18. 1; D 39. 6. 29.
- 143.
See Inst 2. 7. 1: “These gifts in contemplation of death now stand on exactly the same footing as legacies; for as in some respects they were more like ordinary gifts, in others more like legacies, the jurists doubted under which of these two classes they should be placed, some being for gift, others for legacy; and consequently we have enacted by constitution that in nearly every respect they shall be treated like legacies, and shall be governed by the rules laid down respecting them in our constitution…”.
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Mousourakis, G. (2012). The Law of Succession. In: Fundamentals of Roman Private Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-29311-5_5
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DOI: https://doi.org/10.1007/978-3-642-29311-5_5
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