80

Heirs on condition. Slave heirs

such a case the substitute becomes heir to the father, if the son does not become heir, and heir to the son, if the son has become heir but dies before puberty. Nor was a testator bound to appoint his son heir; he might disinherit him and yet appoint an heir to any property which came to his son from inheritance or gift from others. Justinian allowed a father to make a similar will for a son of full age who was demented.

If an heir is appointed on a condition, which at the time of testator's death it is impossible to fulfil, the condition goes for nothing and the appointment is absolute. But if the appointed heir is a son, the appointment is treated as bad, and the son being thus passed over, the will is null, and the son becomes heir on an intestacy. A condition which could be fulfilled but involved an illegal or immoral action was treated as impossible, Papinian laying down the principle that acts should be deemed impossible which do violence to dutiful affection, to fair repute, to respectful modesty, and generally which are opposed to good conduct.

A testator could make one of his slaves heir, if he also gave him his freedom. The slave then became heir of necessity, and this plan was sometimes adopted by a testator who was insolvent, in order that the disgrace of the estate being sold in bankruptcy might fall on him rather than on the testator. As compensation for this misfortune, the creditors were not allowed any right to be paid out of acquisitions made by him since testator's death.

Madmen, dumb, infants, posthumous, children under power, others' slaves, were capable of being heirs.

INHERITANCE. The position of an heir as a representative of the deceased was in many cases attended with much uncertainty and serious risk. His own estate was liable, if testator's was not sufficient, to pay the creditors. If more than one person was appointed heir, each was liable in proportion to his share as specified by testator, or, if no share was named, then in equal shares. Testator might give away from his heirs such parts of his property as he chose, and these legacies, unlike the heirship, carried no unexpressed burden with them: a legatee was a mere recipient of bounty, unless some condition was attached: he was a successor to testator's rights in a particular thing only.

In such circumstances the appointed heir or heirs could not prudently accept the inheritance until after careful inquiry into the solvency of the estate, and even then the emergence of some previously undiscovered debt might upset all his calculations and ruin him. Further, besides testator's debts, the heir is liable also to pay the legacies, and cannot prevent the loss to the estate of the slaves to whom testator may have given freedom by his will. Hence there might be further ground for hesitation in accepting the inheritance, and yet if no heir named accepts, the will becomes a dead letter, intestacy results, and the legacies and freedoms fall to the ground.

Beneft of inventory. Lex Falcidia

81

The first-named difficulty was met very imperfectly by testator's fixing a period for the heir to make his decision (cretio); afterwards by statute (529) allowing an heir a year for deliberation without his losing the right, if he died before decision, of transmitting to his child or other successor his claim to the inheritance. But a still more effective remedy was enacted in 531. The heir was empowered, under suitable precautions for accuracy and after inviting the presence of creditors and legatees, to make an inventory and valuation of the assets of the deceased, and was then not bound to discharge debts and legacies beyond that total amount. He need not distribute the value of the estate pro rata to the claimants, but (unless fully aware of the insufficiency of the estate) could pay them in the order of their application. Then creditors who had any right or priority could proceed against any posterior to themselves who had received payment, or against holders of any property specifically pledged to them, and all creditors not satisfied could proceed against legatees who had been paid out of what turned out to be insufficient to cover the debts. This provision for limiting the heir's liability was called "the benefit of an inventory," and heirs were thus no longer prevented from promptly accepting an inheritance which might turn out to be ruinous.

Further difficulty arose from legacies and freedoms left in the will. Testator's estate might be able to meet the debts, but if there were many or heavy charges for bequests, there might be nothing left to make it worth while for the heir to accept the inheritance, and the will might therefore be nullified. Several attempts to meet this difficulty were made, but nothing effectual, until a Lex Falcidia was passed c. B.C. 40. This law, as interpreted by the lawyers, allowed the heir or heirs, if necessary, to reduce the amount of each legacy by so much as would leave the heir or heirs collectively one-fourth of the inheritance in value, the value being taken as at the time of death after deducting the value of slaves freed, the debts, and funeral expenses. If any legacies lapsed or other gain accrued to the heirs from the estate, this would be counted towards the Falcidian fourth (as it was called). By this arrangement the heir was sure of getting something, if he accepted a solvent inheritance. And as, if he refused, the will would drop and the legacies be lost, the legatees might be willing to accept possibly a further deduction to prevent intestacy. The application of the Falcidian law had been so thoroughly worked out by the lawyers that Justinian seems to have found little occasion for further enactment, except (535) to provide for the presence of the legatees or their agents at taking the inventory, with power to put the heir on his oath and to examine the slaves by torture for the purpose of getting full information. An heir neglecting to make an inventory was liable to creditors in full and could not use the Falcidian against the legatees. In 544 Justinian directed that the Falcidian should not apply to any immovable which testator had

C. MED. H. VOL. II. CH. III.

6

82

Trusts. Fideicommissa

expressly desired should not be alienated from his family, otherwise it might have now to be sold. In 535 he had directed the Falcidian not to be used, if testator had expressly so willed.

Differences in the form of legacies led to many legal discussions which Justinian settled by treating all the forms as having the same effect, and giving the legatee both a direct claim to the thing bequeathed and also a personal claim on the heir to transfer it. TRUSTS (Fideicommissa 1) were another subject of complication. In or before the time of Augustus attempts were made by testators to leave their estates, or a legacy, to persons legally disqualified to take them (e.g. foreigners, Latins, unmarried persons, women in some cases). In a trust the heir was not directed to transfer the estate or legacies but simply requested to do so. There was no legal compulsion, the heir could fulfil the testator's desire or not as he chose; if the property was transferred, it was as the act of the living heir and not therefore hampered by restrictions which affected gifts from the dead. Augustus, after much hesitation, treated such a desire as obligatory on the heir. Gradually such appeals to the honour and good faith of the heir became frequent and obtained full recognition and use. Advantage was eagerly taken of this untechnical language to get round many of the limitations of ordinary testamentary law; and if only an heir was duly appointed and entered on the inheritance, almost any dispositions, direct or contingent, present or future, might be made of the estate or part of it through him as a channel. Thus testator might secure the transfer of his estate or of a legacy in certain events from the person first made heir or legatee to another person. Or he might prevent his estate from being alienated from his family by requesting the successive holders to pass it on at their deaths to other members. And trusts might be imposed not on only named persons, but on the heir or heirs by intestacy, in case the will should not have regular validity. The Courts strove to give effect to the intentions of a testator however mildly or informally expressed, and to protect the trust against the heir. But the old difficulties then recurred: the heir might as easily be overburdened with trusts as with legacies, and if he did not think it worth while to enter on the inheritance, the will failed and the trust with it. It was thus found necessary (c. A.D. 70) to ensure

1 The difference between an English trust and a Roman fideicommissum is rather in the practical object and working than in the conception. In both one person

holds property under an obligation to give another the benefit of it, and ceases to hold it on the obligation being completely fulfilled. But a trustee has usually, as Morice points out, a continuous duty lasting some time according to the needs of the cestui que trust. A fiduciary usually has no duty other than the transference of the property to the fidei-commissary on the occurrence of a condition. Both can claim

to be put to no expense, but a trustee does not benefit as a rule even (at any rate since the Intestates' Estate Act 1884) if the purpose cannot be executed. A fiduciary retains the property in such a case for his own account. A fiduciary heir could in any case claim under the Falcidian Law.

Legitim. Children's rights

83

that any heir burdened with a trust should get some advantage out of it; and accordingly he was empowered, if he entered and accepted the liabilities, to retain one-fourth as by the Falcidian statute. Or if he suspected the estate to be insolvent, he might restore, as the phrase went, the inheritance altogether to the person favoured by the trust and be free from both risk and advantage. Otherwise he might indeed take his fourth, but would, as partial heir, be liable for his share of the heir's obligations. If however testator had directed him to retain a certain thing or a certain amount, which was equal in value at least to onefourth of the inheritance, and restore the rest, he was regarded as a legatee and not in any way liable to the creditors of deceased's estate. The risk and difficulty attending heirs did not arise where a trust was imposed on a legatee; he was liable for no more than he received; and as the validity of the will was not at stake, there was no necessity for the law to bribe him to accept by a share of the gift.

Justinian swept away a mass of distinctions and perplexities by putting trusts and legacies in other respects on the same footing, giving legacies the flexibility of trusts and fortifying trusts with the legal character and effective suits belonging to legacies. The phraseology was held to be unimportant, the intention was to prevail. Not only the trust but the will and legacies might now be written in Greek.

When an oral trust was added to a written will, or the will itself was oral and contained a trust, and the regular number of witnesses had not been present on the occasion, Justinian enacted that if the heir denied the trust, the person claiming under it should, having first sworn to his own good faith, put the heir on his oath whether he had not heard the testator declare the trust the heir's answer on oath was then decisive.

LEGITIM. The Statute of the XII Tables authorised, according to tradition, full effect to be given to a Roman's will for the disposal of his estate at his death. But a paterfamilias was expected to shew in the will that he had duly considered the claims of his children in his power, and especially of his sons, they being his natural representatives. He must either appoint them heirs or expressly disinherit them, whether they were sons by birth or by adoption and even if posthumous. In default of such express notice, the will was set aside. Others in his family, whether daughters or grandchildren by his sons, had either to be appointed heirs or to be disinherited, but general terms were sufficient, e.g. "all others are disinherited." If no notice was taken of them, the will was partly broken, for the daughters and grandchildren were admitted to share with the appointed heirs. Justinian in 531 abolished the distinction in these matters between sons and daughters and between those in testator's power and those emancipated, and required express notice for all. The praetor had already in practice made the like amendments of the old civil law.

84

Plaint of unduteous will

But disinheritance, as well as disregard, of his children imperilled the will. As next heirs on an intestacy they could complain to the Court that the will failed in the due regard which a sane man would shew to his children. This was the "plaint of an unduteous will" (querela inofficiosi testamenti). If complainant established his case, the will with all its legacies and gifts of freedom drops and intestacy results. To establish his case he has to prove three things: that his conduct did not justify disinheritance, that he did not get under the will (e.g. by legacy) at least one-fourth of the share of the inheritance to which he would have been entitled under an intestacy, and that he had not in any way shewn an acceptance of the will as valid. Parents could in the same way complain of their children's wills, and brothers and sisters of the testator could complain of his will, if the heirs appointed were disreputable. An illegitimate child could complain of his mother's will. If complainant had judgment given against him, he lost anything given him by the will. An analogous complaint was allowed against excessive donations which unfairly diminished a child's or parent's claim.

The value of the estate is taken for this purpose as for the Falcidian fourth. Justinian in 528 enacted that if complainants had been left something but not enough, the deficiency could be supplied without otherwise upsetting the will, provided testator had not justly charged them with ingratitude. In 536 Justinian raised the share of the inheritance which would exclude the plaint to one-third, if there were four or fewer children, and to one-half if there were more than four, i.e. to one-third or one-half of what would be claimant's share on an intestacy. Thus supposing two children, each would now be entitled to one-sixth (instead of one-eighth) of the estate: if three children, to one-ninth if five, to one-tenth, and so on. Such share is called "statutory portion" (portio legitima) and could be made up either by an adequate share of the inheritance, or by legacy, or through a trust, or by gift intended for the purpose or by dowry or nuptial gift or purchaseable office in the imperial service (militia), or a combination of such. This statutory portion becomes in French law "legitim," in German "Pflichttheil."

In 542 Justinian put the matter on a new footing by requiring children to be actually named as heirs in their father's or mother's or other ascendant's will, unless the will alleged as the cause of disherison "ingratitude" on one at least of certain grounds, and the heirs prove the charge to be true. These grounds are: laying hands on parents, gravely insulting them, accusation of crimes (other than crimes against the Emperor or the State), associating with practisers of evil acts, attempting parent's life by poison or otherwise, lying with step-mother or father's concubine, informing against parents to their serious cost, refusing, if a son, to be surety for an imprisoned parent, hindering his parents from making a will, associating with gladiators or actors against his parent's