The Institutes of Justinian Part 10

Heirs are of three kinds, that is to say, they are either necessary, family heirs and necessary, or external.

1 A necessary heir is a slave of the testator, whom he inst.i.tutes as heir: and he is so named because, willing or unwilling, and without any alternative, he becomes free and necessary heir immediately on the testator's decease. For when a man's affairs are embarra.s.sed, it is common for one of his slaves to be inst.i.tuted in his will, either in the first place, or as a subst.i.tute in the second or any later place, so that, if the creditors are not paid in full, the heir may be insolvent rather than the testator, and his property, rather than the testator's, may be sold by the creditors and divided among them. To balance this disadvantage he has this advantage, that his acquisitions after the testator's decease are for his own sole benefit; and although the estate of the deceased is insufficient to pay the creditors in full, the heir's subsequent acquisitions are never on that account liable to a second sale.

2 Heirs who are both family heirs and necessary are such as a son or a daughter, a grandchild by a son, and further similar lineal descendants, provided that they are in the ancestor's power at the time of his decease. To make a grandson or granddaughter a family heir it is, however, not sufficient for them to be in the grandfather's power at the moment of his decease: it is further requisite that their own father shall, in the lifetime of the grandfather, have ceased to be the family heir himself, whether by death or by any other mode of release from power: for by this event the grandson and granddaughter succeed to the place of their father. They are called family heirs, because they are heirs of the house, and even in the lifetime of the parent are to a certain extent deemed owners of the inheritance: wherefore in intestacy the first right of succession belongs to the children. They are called necessary heirs because they have no alternative, but, willing or unwilling, both where there is a will and where there is not, they become heirs. The praetor, however, permits them, if they wish, to abstain from the inheritance, and leave the parent to become insolvent rather than themselves.

3 Those who are not subject to the testator's power are called external heirs. Thus children of ours who are not in our power, if inst.i.tuted heirs by us, are deemed external heirs; and children inst.i.tuted by their mother belong to this cla.s.s, because women never have children in their power. Slaves inst.i.tuted heirs by their masters, and manumitted subsequently to the execution of the will, belong to the same cla.s.s.

4 It is necessary that external heirs should have testamentary capacity, whether it is an independent person, or some one in his power, who is inst.i.tuted: and this capacity is required at two times; at the same time of the making of the will, when, without it, the inst.i.tution would be void; and at the same time of the testator's decease, when, without it, the inst.i.tution would have no effect. Moreover, the inst.i.tuted heir ought to have this capacity also at the time when he accepts the inheritance, whether he is inst.i.tuted absolutely or subject to a condition; and indeed it is especially at this time that his capacity to take ought to be looked to. If, however, the inst.i.tuted heir undergoes a loss of status in the interval between the making of the will and the testator's decease, or the satisfaction of the condition subject to which he was inst.i.tuted, he is not thereby prejudiced: for, as we said, there are only three points of time which have to be regarded.

Testamentary capacity thus does not mean merely capacity to make a will; it also means capacity to take for oneself, or for the father or master in whose power one is, under the will of another person: and this latter kind of testamentary capacity is quite independent of the capacity to make a will oneself. Accordingly, even lunatics, deaf persons, afterborn children, infants, children in power, and other persons' slaves are said to have testamentary capacity; for though they cannot make a valid will, they can acquire for themselves or for another under a will made by someone else.

5 External heirs have the privilege of deliberating whether they will accept or disclaim an inheritance. But if a person who is ent.i.tled to disclaim interferes with the inheritance, or if one who has the privilege of deliberation accepts it, he no longer has the power of relinquishing it, unless he is a minor under the age of twentyfive years, for minors obtain relief from the praetor when they incautiously accept a disadvantageous inheritance, as well as when they take any other injudicious step.

6 It is, however, to be observed that the Emperor Hadrian once relieved even a person who had attained his majority, when, after his accepting the inheritance, a great debt, unknown at the time of acceptance, had come to light. This was but the bestowal of an especial favour on a single individual; the Emperor Gordian subsequently extended the privilege, but only to soldiers, to whom it was granted as a cla.s.s. We, however, in our benevolence have placed this benefit within the reach of all our subjects, and drafted a const.i.tution as just as it is splendid, under which, if heirs will but observe its terms, they can accept an inheritance without being liable to creditors and legatees beyond the value of the property. Thus so far as their liability is concerned there is no need for them to deliberate on acceptance, unless they fail to observe the procedure of our const.i.tution, and prefer deliberation, by which they will remain liable to all the risks of acceptance under the older law.

7 An external heir, whether his right accrue to him under a will or under the civil law of intestate succession, can take the inheritance either by acting as heir, or by the mere intention to accept. By acting as heir is mean, for instance, using things belonging to the inheritance as one's own, or selling them, or cultivating or giving leases of the deceased's estates, provided only one expresses in any way whatsoever, by deed or word, one's intention to accept the inheritance, so long as one knows that the person with whose property one is thus dealing has died testate or intestate, and that one is that person's heir. To act as heir, in fact, is to act as owner, and the ancients often used the term 'heir' as equivalent to the term 'owner.' And just as the mere intention to accept makes an external heir heir, so too the mere determination not to accept bars him from the inheritance. Nothing prevents a person who is born deaf or dumb, or who becomes so after birth, from acting as heir and thus acquiring the inheritance, provided only he knows what he is doing.

t.i.tLE XX. OF LEGACIES

Let us now examine legacies:--a kind of t.i.tle which seems foreign to the matter at hand, for we are expounding t.i.tles whereby aggregates of rights are acquired; but as we have treated in full of wills and heirs appointed by will, it was natural in close connexion therewith to consider this mode of acquisition.

1 Now a legacy is a kind of gift left by a person deceased;

2 and formerly they were of four kinds, namely, legacy by vindication, by condemnation, by permission, and by preception, to each of which a definite form of words was appropriated by which it was known, and which served to distinguish it from legacies of the other kinds. Solemn forms of words of this sort, however, have been altogether abolished by imperial const.i.tutions; and we, desiring to give greater effect to the wishes of deceased persons, and to interpret their expressions with reference rather to those wishes than to their strict literal meaning, have issued a const.i.tution, composed after great reflection, enacting that in future there shall be but one kind of legacy, and that, whatever be the terms in which the bequest is couched, the legatee may sue for it no less by real or hypothecary than by personal action. How carefully and wisely this const.i.tution is worded may be ascertained by a perusal of its contents.

3 We have determined, however, to go even beyond this enactment; for, observing that the ancients subjected legacies to strict rules, while the rules which they applied to fiduciary bequests, as springing more directly from the deceased person's wishes, were more liberal, we have deemed it necessary to a.s.similate the former completely to the latter, so that any future features in which legacies are inferior to fiduciary bequests may be supplied to them from the latter, and the latter themselves may in future possess any superiority which has. .h.i.therto been enjoyed by legacies only. In order, however, to avoid perplexing students in their first essays in the law by discussing these two forms of bequests together, we have thought it worth while to treat them separately, dealing first with legacies, and then with fiduciary bequests, so that the reader, having first learnt their respective natures in a separate treatment, may, when his legal education is more advanced, be able easily to comprehend their treatment in combination.

4 A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff.

5 If the thing which a testator bequests is in pledge to a creditor, the heir is obliged to redeem it, subject to the same distinction as has been drawn with reference to a legacy of a thing not belonging to the testator; that is to say, the heir is bound to redeem only if the deceased knew the thing to be in pledge: and the Emperors Severus and Antoninus have decided this by rescript. If, however, the deceased expresses his intention that the legatee should redeem the thing himself, the heir is under no obligation to do it for him.

6 If a legacy is given of a thing belonging to another person, and the legatee becomes its owner during the testator's lifetime by purchase, he can obtain its value from the heir by action on the will: but if he gives no consideration for it, that is to say, gets it by way of gift or by some similar t.i.tle, he cannot sue; for it is settled law that where a man has already got a thing, giving no consideration in return, he cannot get its value by a second t.i.tle of the same kind. Accordingly, if a man is ent.i.tled to claim a thing under each of two distinct wills, it is material whether he gets the thing, or merely its value, under the earlier one: for if he gets the thing itself, he cannot sue under the second will, because he already has the thing without giving any consideration, whereas he has a good right of action if he has merely got its value.

7 A thing which does not yet exist, but will exist, may be validly bequeathed:--for instance, the produce of such and such land, or the child of such and such female slave.

8 If the same thing is given as a legacy to two persons, whether jointly or severally, and both claim it, each is ent.i.tled to only a half; if one of them does not claim it, because either he does not care for it, or has died in the testator's lifetime, or for some other reason, the whole goes to his colegatee. A joint legacy is given in such words as the following: 'I give and bequeath my slave Stichus to t.i.tius and Seius': a several legacy thus, 'I give and bequeath my slave Stichus to t.i.tius: I give and bequeath Stichus to Seius': and even if the testator says 'the same slave Stichus' the legacy is still a several one.

9 If land be bequeathed which belongs to some one other than the testator, and the intended legatee, after purchasing the bare ownership therein, obtains the usufruct without consideration, and then sues under the will, Julian says that this action for the land is well grounded, because in a real action for land a usufruct is regarded merely as a servitude; but it is part of the duty of the judge to deduct the value of the usufruct from the sum which he directs to be paid as the value of the land.

10 A legacy by which something already belonging to the legatee is given him is void, for what is his own already cannot become more his own than it is: and even though he alienates it before the testator's death, neither it nor its value can be claimed.

11 If a testator bequeaths something belonging to him, but which he thought belonged to another person, the legacy is good, for its validity depends not on what he thought, but on the real facts of the case: and it is clearly good if he thought it already belonged to the legatee, because his expressed wish can thus be carried out.

12 If, after making his will, a testator alienates property which he has therein given away as a legacy, Celsus is of opinion that the legatee may still claim it unless the testator's intention was thereby to revoke the bequest, and there is a rescript of the Emperors Severus and Antoninus to this effect, as well as another which decides that if, after making his will, a testator pledges land which he had therein given as a legacy, the part which has not been alienated can in any case be claimed, and the alienated part as well if the alienator's intention was not to revoke the legacy.

13 If a man bequeaths to his debtor a discharge from his debt, the legacy is good, and the testator's heir cannot sue either the debtor himself, or his heir, or any one who occupies the position of heir to him, and the debtor can even compel the testator's heir to formally release him. Moreover, a testator can also forbid his heir to claim payment of a debt before a certain time has elapsed.

14 Contrariwise, if a debtor leaves his creditor a legacy of what he owes him, the legacy is void, if it includes no more than the debt, for the creditor is thus in no way benefited; but if the debtor unconditionally bequeaths a sum of money which the creditor cannot claim until a definite date has arrived or a condition has been satisfied, the legacy is good, because it confers on the creditor a right to earlier payment. And, even if the day arrives, or the condition is satisfied, during the testator's lifetime, Papinian decides, and rightly, that the legacy is nevertheless a good one, because it was good when first written; for the opinion that a legacy becomes void, because something happens to deprive it of all material effect, is now rejected.

15 If a man leaves his wife a legacy of her dowry, the gift is good, because the legacy is worth more than a mere right of action for the dowry. If, however, he has never received the dowry which he bequeaths, the Emperors Severus and Antoninus have decided by rescript that the legacy is void, provided the general term 'dowry' is used, but good, if in giving it to the wife a definite sum or thing is specified, or described generally by reference to the dowry deed.

16 If a thing bequeathed perishes through no act of the heir, the loss falls on the legatee: thus if a slave belonging to another person, who is given in this way, is manumitted through no act of the heir, the latter is not bound. If, however, the slave belongs to the heir, who manumits him, Julian says that he is bound, and it is immaterial whether he knew or not that the slave had been bequeathed away from him.

17 If a testator gives a legacy of female slaves along with their offspring, the legatee can claim the latter even if the mothers are dead, and so again if a legacy is given of ordinary slaves along with their vicarii or subordinates, the latter can be claimed even if the former are dead. But if the legacy be of a slave along with his peculium, and the slave is dead, or has been manumitted or alienated, the legacy of the peculium is extinguished; and similarly, if the legacy be of land with everything upon it, or with all its instruments of tillage, by the alienation of the land the legacy of the instruments of tillage is extinguished.

18 If a flock be given as a legacy, which is subsequently reduced to a single sheep, this single survivor can be claimed; and Julian says that in a legacy of a flock are comprised sheep which are added to it after the making of the will, a flock being but one aggregate composed of distinct members, just as a house is but one aggregate composed of distinct stones built together. So if the legacy consists of a house, we hold that pillars or marbles added to it after the making of the will pa.s.s under the bequest.

20 If a slave's peculium be given as a legacy, the legatee undoubtedly profits by what is added to it, and is a loser by what is taken from it, during the testator's lifetime. Whatever the slave acquires in the interval between the testator's death and the acceptance of the inheritance belongs, according to Julian, to the legatee, if that legatee be the slave himself who is manumitted by the will, because a legacy of this kind vests from the acceptance of the inheritance: but if the legatee be a stranger, he is not ent.i.tled to such acquisitions, unless they are made by means of the peculium itself. A slave manumitted by a will is not ent.i.tled to his peculium unless it is expressly bequeathed to him, though, if the master manumits him in his lifetime, it is enough if it be not expressly taken from him, and to this effect the Emperors Severus and Antoninus have decided by rescript: as also, that a legacy of his peculium to a slave does not carry with it the right to sue for money which he has expended on his master's account, and that a legacy of a peculium may be inferred from directions in a will that a slave is to be free so soon as he has made a statement of his accounts and made up any balance, which may be against him, from his peculium.

21 Incorporeal as well as corporeal things can be bequeathed: thus a man can leave a legacy even of a debt which is owed to him, and the heir can be compelled to transfer to the legatee his rights of action, unless the testator has exacted payment in his lifetime, in which case the legacy is extinguished. Again, such a legacy as the following is good: 'be my heir bound to repair so and so's house, or to pay so and so's debts.'

22 If a legacy be a general one, as of a slave or some other thing not specifically determined, the legatee is ent.i.tled to choose what slave, or what thing, he will have, unless the testator has expressed a contrary intention.

23 A legacy of selection, that is, when a testator directs the legatee to select one from among his slaves, or any other cla.s.s of things, was held to be given subject to an implied condition that the legatee should make the choice in person; so that if he died before doing so the legacy did not pa.s.s to his heir. By our const.i.tution, however, we have made an improvement in this matter, and allowed the legatee's heir to exercise the right of selection, although the legatee has not done so personally in his lifetime; which enactment, through our careful attention to the subject, contains the further provision, that if there are either several colegatees to whom a right of selection has been bequeathed, and who cannot agree in their choice, or several coheirs of a single legatee, who differ through some wishing to choose this thing and others that, the question shall be decided by fortune--the legacy not being extinguished, which many of the jurists in an ungenerous spirit wished to make the rule--; that is to say, that lots shall be drawn, and he on whom the lot falls shall have a priority of choice over the rest.

24 Three persons only can be legatees who have testamentary capacity, that is, who are legally capable of taking under a will.

25 Formerly it was not allowed to leave either legacies or fiduciary bequests to uncertain persons, and even soldiers, as the Emperor Hadrian decided by rescript, were unable to benefit uncertain persons in this way. An uncertain person was held to be one of whom the testator had no certain conception, as the legatee in the following form: 'Whoever bestows his daughter in marriage on my son, do thou, my heir, give him such or such land.' So too a legacy left to the first consuls designate after the writing of the will was held to be given to an uncertain person, and many others that might be instanced: and so it was held that freedom could not be bequeathed to an uncertain person, because it was settled that slaves ought to be enfranchised by name, and an uncertain person could not be appointed guardian. But a legacy given with a certain demonstration, that is, to an uncertain member of a certain cla.s.s, was valid, for instance, the following: 'Whoever of all my kindred now alive shall first marry my daughter, do thou, my heir, give him such and such thing.' It was, however, provided by imperial const.i.tutions that legacies or fiduciary bequests left to uncertain persons and paid by mistake could not be recovered back.

26 An afterborn stranger again could not take a legacy; an afterborn stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emanc.i.p.ated son was held to be an afterborn stranger to his grandfather.

27 These parts of the law, however, have not been left without due alteration, a const.i.tution having been inserted in our Code by which we have in these respects amended the rules relating to legacies and fiduciary bequests no less than to inheritances, as will be made clear by a perusal of the enactment, which, however, still maintains the old rule that an uncertain person cannot be appointed guardian: for when a testator is appointing a guardian for his issue, he ought to be quite clear as to the person and character of the party he selects.

28 An afterborn stranger could and still can be inst.i.tuted heir, unless conceived of a woman who cannot by law be a man's wife.

29 If a testator makes a mistake in any of the names of the legatee, the legacy is nevertheless valid provided there is no doubt as to the person he intended, and the same rule is very properly observed as to heirs as well as legatees; for names are used only to distinguish persons, and if the person can be ascertained in other ways a mistake in the name is immaterial.

30 Closely akin to this rule is another, namely, that an erroneous description of the thing bequeathed does not invalidate the bequest; for instance, if a testator says, 'I give and bequeath Stichus my born slave,' the legacy is good, if it quite clear who is meant by Stichus, even though it turn out that he was not born the testator's slave, but was purchased by him. Similarly, if he describe Stichus as 'the slave I bought from Seius,' whereas in fact he bought him from some one else, the legacy is good, if it is clear what slave he intended to give.

31 Still less is a legacy invalidated from a wrong motive being a.s.signed by the testator for giving it: if, for instance, he says, 'I give and bequeath Stichus to t.i.tius, because he looked after my affairs while I was away,' or 'because I was acquitted on a capital charge through his undertaking my defence,' the legacy is still good, although in point of fact t.i.tius never did look after the testator's affairs, or never did, through his advocacy, procure his acquittal. But the law is different if the testator expresses his motive in the guise of a condition, as: 'I give and bequeath such and such land to t.i.tius, if he has looked after my affairs.' 32 It is questioned whether a legacy to a slave of the heir is valid. It is clear that such a legacy is void if given unconditionally, even though the slave ceases to belong to the heir during the testator's lifetime: for a legacy which would be void if the testator died immediately after making his will ought not to become valid by the simple fact of the testator's living longer. Such a legacy, however, is good if given subject to a condition, the question then being, whether at the vesting of the legacy the slave has ceased to belong to the heir.

33 On the other hand, there is no doubt that even an absolute legacy to the master of a slave who is inst.i.tuted heir is good: for, even supposing that the testator dies immediately after making the will, the right to the legacy does not necessarily belong to the person who is heir; for the inheritance and the legacy are separable, and a different person from the legatee may become heir through the slave; as happens if, before the slave accepts the inheritance at his master's bidding, he is conveyed to another person, or is manumitted and thus becomes heir himself; in both of which cases the legacy is valid. But if he remains in the same condition, and accepts at his master's bidding, the legacy is extinguished.

34 A legacy given before an heir was appointed was formerly void, because a will derives its operation from the appointment of an heir, and accordingly such appointment is deemed the beginning and foundation of the whole testament, and for the same reason a slave could not be enfranchised before an heir was appointed. Yet even the old lawyers themselves disapproved of sacrificing the real intentions of the testator by too strictly following the order of the writing: and we accordingly have deemed these rules unreasonable, and amended them by our const.i.tution, which permits a legacy, and much more freedom, which is always more favoured, to be given before the appointment of an heir, or in the middle of the appointments, if there are several.

35 Again, a legacy to take effect after the death of the heir or legatee, as in the form: 'After my heir's death I give and bequeath,'

was formerly void, as also was one to take effect on the day preceding the death of the heir or legatee. This too, however, we have corrected, by making such legacies as valid as they would be were they fiduciary bequests, lest in this point the latter should be found to have some superiority over the former.

36 Formerly too the gift, revocation, and transference of legacies by way of penalty was void. A penal legacy is one given in order to coerce the heir into doing or not doing something; for instance, the following: 'If my heir gives his daughter in marriage to t.i.tius,' or, conversely, 'if he does not give her in marriage to t.i.tius, let him pay ten aurei to Seius'; or again, 'if my heir parts with my slave Stichus,' or, conversely, 'if he does not part with him, let him pay ten aurei to t.i.tius.' And so strictly was this rule observed, that it is declared in a large number of imperial const.i.tutions that even the Emperor will accept no legacy by which a penalty is imposed on some other person: and such legacies were void even when given by a soldier's will, in which as a rule so much trouble was taken to carry out exactly the testator's wishes. Moreover, Sabinus was of opinion that a penal appointment of a coheir was void, as exemplified in the following: 'Be t.i.tius my heir: if t.i.tius gives his daughter in marriage to Seius, be Seius my heir also'; the ground of the invalidity being that it made no difference in what way t.i.tius was constrained, whether by a legacy being left away from him, or by some one being appointed coheir. Of these refinements, however, we disapproved, and have consequently enacted generally that bequests, even though given, revoked, or transferred in order to penalize the heir, shall be treated exactly like other legacies, except where the event on which the penal legacy is contingent is either impossible, illegal, or immoral: for such testamentary dispositions as these the opinion of my times will not permit.

t.i.tLE XXI. OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES

Legacies may be revoked either in a later clause of the will or by codicils, and the revocation may be made either in words contrary to those of the gift, as the gift thus 'I give and bequeath,' the revocation thus 'I do not give and bequeath,' or in words not contrary, that is to say, in any words whatsoever.