[De Legatis.] (2)

§ 192. Legacies are of four kinds; by vindication, by condemnation, by permission, by preception.

§ 193. A legacy by vindication is in the following form: ‘To Lucius Titius I give and bequeath, say, my slave Stichus,’ or only one word need be used as, ‘I give or I bequeath;’ and other terms such as: ‘Let him take,’ ‘Let him have,’ ‘Let him seize,’ equally confer a legacy by vindication according to the prevailing opinion.

It is so called, because immediately on the acceptance of the inheritance the thing becomes the Quiritarian property of the legatee, and if he claims it from the heir or any other possessor, he ought to vindicate it, that is, claim by action that he is owner thereof by law of the Quirites.

§ 195. So far the two schools are agreed, the only point in dispute between them is this, that according to Sabinus and Cassius and the other authorities of my school, what is thus left becomes the property of the legatee immediately on the acceptance of the inheritance, even before he has notice of the legacy, and on notice and repundiation by the legatee, the legacy is cancelled. While Nerva and Proculus and the jurists of that school make the passing of the property to the legatee depend on his accepting the legacy; and now a constitution of the late emperor Pius Antoninus seems to have established the doctrine of Proculus as the rule, for in the case of a Latinus Junianus bequeathed by vindication to a colony, the Emperor said, ‘The decurions must deliberate whether they wish to become owners as they would have to do if the bequest was to an individual.’

Only those things are properly bequeathed by vindication which are the Quiritarian property of the testator; things, however, estimated by weight, number, or measure, need only be the Quiritarian property of the testator at the time of his death, for instance, wine, oil, corn, ready-money: other things are required to be the testator’s Quiritarian property at both periods, both at the time of his death and at the time of making his will, or the legacy is void.

§ 197. However, this is only the civil law. In later times, on the proposition of Nero, a senatus-consult was passed, providing that if a testator bequeathed a thing which never belonged to him, the bequest should be as valid as if it had been made in the most favourable form; the most favourable form being by condemnation, whereby the property of another person may be bequeathed, as will presently appear.

§ 198. If a man bequeath a thing belonging to him, and afterwards aliene it, most jurists hold that the bequest is not only avoided at civil law, but does not obtain validity by the senatusconsult, the ground of this opinion being that, even when a thing is bequeathed by condemnation and afterwards aliened, although the legacy is due ipso jure, a claim to it, as most jurists hold, may be repelled by the plea of fraud, as contravening the testator’s intention.

It is a settled rule, that if the same thing be bequeathed by vindication to two or more persons, whether jointly [in the same sentence] or severally [in different sentences], and all claim the legacy, each is only entitled to a ratable part, but a lapsed portion accrues to the co-legatees. A joint bequest is as follows: ‘To Titius and Seius I give and bequeath my slave Stichus;’ a several bequest as follows; ‘To Lucius Titius I give and bequeath my slave Stichus. To Seius I give and bequeath the same slave.’

§ 200. When a condition is annexed to a bequest by vindication, it is a question who, pending the condition, is the owner: my school say, the heir, as in the case of the slave conditionally enfranchised by will, who is admittedly in the interim the property of the heir: the other school assert that there is no interim proprietor, and they insist still more strongly that this is so in the case of an unconditional simple bequest before the acceptance by the legatee.

§ 201. A legacy by condemnation is in the following form: ‘Be my heir condemned to give my slave Stichus,’ or simply, ‘Let my heir give my slave Stichus.’

§ 202. By this form a testator may bequeath a thing belonging to another person, binding the heir to purchase and deliver the thing, or pay its value.

§ 203. A thing which does not exist provided that it will exist may be bequeathed by condemnation, as the future produce of such and such land, or the child to be born of such and such female slave.

§ 204. A bequest in this form, even though no condition is annexed, unlike a bequest by vindication, is not forthwith on the acceptance of the inheritance the property of the legatee, but continues the property of the heir; hence the legatee must sue for it by personal action, that is, lay claim that the heir is bound to convey it to him; and in this case the heir, if the thing is mancipable, ought to convey it to him by mancipation or to surrender it before a magistrate and deliver possession of it; if not mancipable, mere delivery of possession suffices: for if a mancipable thing is merely delivered without mancipation, the legatee must acquire plenary ownership by usucapion, and usucapion, as before mentioned, in the case of movables requires a year’s possession, in the case of landed property two years’ possession.

§ 205. There is another difference between bequest by vindication and bequest by condemnation herein, that if the same thing is bequeathed to two or more by condemnation, if they are named jointly, each is entitled to a ratable part, as in legacy by vindication; if severally, each is entitled to the whole, and the heir is bound to convey the specific thing to one, and the value to the other; and in a joint bequest a lapsed portion does not accrue to the co-legatee, but belongs to the heir.

§ 206. The statement that a lapsed portion in legacy by condemnation falls to the heir, and in legacy by vindication accrues to the co-legatee, be it observed, gives the rule of the civil law before the lex Papia; but since the lex Papia, a lapsed portion becomes caducous, and belongs to the legatees who have children.

And although the first title to a caducous legacy is that of heirs with children, and the second, if the heirs are childless, of legatees with children, yet the lex Papia itself declares that in a joint bequest a co-legatee with children is to be preferred to heirs even though they have children.

§ 208. And most jurists hold that, as to the rights which the lex Papia gives to joint legatees, it makes no difference whether the bequest is by vindication or by condemnation.

§ 209. A bequest by permission is in the following form: ‘Be my heir condemned to permit Lucius Titius to take and to have to himself my slave Stichus.’

§ 210. A bequest in this form has a wider scope than one in the form of vindication, but less than one in the form of condemnation, for hereby not only can the testator’s property be effectively bequeathed, but also that of the heir, whereas by the form of vindication the testator can only bequeath his own property, and by the form of condemnation he can bequeath the property of any stranger.

§ 211. If at the time of the testator’s death the thing thus bequeathed belong to the testator or the heir, the bequest is valid, even though at the time of making the will it belonged to neither.

§ 212. If it first belong to the heir after the death of the testator it is a question whether the bequest is valid, and it is most generally held to be invalid. However, even though a thing bequeathed never belonged to the testator or after his death became the property of the heir, by the senatusconsult of Nero all bequests are put on the same footing as a bequest by condemnation.

§ 213. Just as a thing bequeathed by condemnation does not immediately on the acceptance of the inheritance belong to the legatee, but continues to belong to the heir until by delivery, or mancipation, or surrender before the magistrate, he makes it the property of the legatee; so it happens in bequest by permission, and accordingly this form of bequest is ground to support a personal action in the terms: ‘Whatever the heir is bound by the will to convey or perform.’

§ 214. Although some hold that a bequest in this form does not bind the heir to mancipate or surrender before the magistrate, or convey by tradition, but is satisfied by his permitting the legatee to take the thing, as the testator only enjoined the heir to let him have it.

A more serious question arises in another point respecting this form of bequest: if the same thing is bequeathed severally to two or more, some hold that each is entitled to the whole, [as in bequest by vindication (? condemnation);] others hold that the first occupant is alone entitled, because as this form of bequest only condemns the heir to suffer the legatee to have the thing, as soon as the first occupant has been suffered to take it, the heir is safe against any subsequent claimant, as he neither has possession of the thing, so as to let it again be taken, nor has fraudulently parted with possession.

§ 216. A bequest by preception is in the following form: ‘Let Lucius Titius take my slave Stichus by preception [before partition].’

§ 217. My school hold that such a bequest can only be made to one of several co-heirs, because preception, or previous taking, can only be attributed to a person who, taking as heir, over and above his portion as heir, and before partition of the inheritance between the coheirs takes something as legatee.

§ 218. Therefore, if a stranger is given a legacy in this form it is void, and Sabinus held that the flaw is not remedied by the senatusconsult of Nero, for that senatusconsult only cures verbal flaws which make a bequest void at civil law, not personal disabilities of the legatee. Julian, however, and Sextus held that this bequest also is made valid by the senatusconsult, as only being avoided at civil law by a verbal informality; as appears from the fact that the very same person might take by the bequest in another form, as in those by vindication, condemnation, or permission, whereas a personal defect in the legatee only invalidates the legacy, if the legatee is a person totally disqualified from taking any legacy whatever, e. g. an alien, who is incapable of taking anything under a will: in which case (they contend) the senatusconsult is clearly inapplicable.

§ 219. Again, my school hold that in this form of bequest, the only action by which a legatee can recover is the action for partition of an inheritance, the judge’s commission including a power of adjudicating a thing bequeathed by preception.

§ 220. From this it follows that, according to my school, nothing can be bequeathed by preception but what belongs to the testator, for nothing but what belongs to the inheritance forms the subject of this action. If, then, a thing that does not belong to the testator is bequeathed in this form, the bequest is void at civil law, but made valid by the senatusconsult. In one case they admit that another person’s property may be bequeathed by preception, for instance, if a man bequeath a thing which he has conveyed by fiduciary mancipation to a creditor, as it is within the powers of the judge to order the co-heirs to redeem the property by payment of the mortgage debt, and thus enable the legatee to exercise his right of preception.

§ 221. The other school hold that a stranger may take a bequest in the form of preception just as if it were in the form: ‘Let Titius take my slave Stichus,’ the addition [by preception, or, before partition] being mere surplusage, and the bequest being in effect in the form of vindication; and this opinion is said to be confirmed by a constitution of the late emperor Hadrian.

§ 222. According to this view, if the thing was the Quiritarian property of the defunct, it can be recovered in a vindicatio by the legatee, whether an heir or a stranger, but if it was only the bonitarian property of the testator, a stranger will recover the bequest under the senatusconsult, an heir by the authority of the judge in an action for partition of inheritance. But if it was in no sense the property of the testator, either an heir or a stranger may recover it under the senatusconsult.

§ 223. Whether they are heirs, according to my school, or strangers, according to the other, if two or more legatees have the same thing bequeathed to them jointly or severally, each legatee is only entitled to a ratable portion.

Justinian seems to accept the Sabinian view that an unconditional legacy is acquired by the legatee immediately upon the heir’s entrance on the inheritance, without his assent or even his knowledge, though he may subsequently reject it: in the latter case the effect is the same as if the right had never been acquired. So also Justinian clearly takes the Sabinian view on the question of interim ownership mentioned in § 200. Cf. Dig. 8, 6, 19, 1. The testamenti factio passiva of municipalities, that is, their capacity as juristic persons to be made heirs or legatees, has already been noticed, 1 §§ 197-200, comm. § 238, comm.

Cf. Si ea res, quae non fuit utroque tempore testatoris ex jure Quiritium, per vindicationem legata sit, licet jure civili non valeat legatum tamen senatusconsulto Neroniano firmatur quo cautum est ut quod minus pactis (aptis?) verbis legatum est perinde sit ac si optimo jure legatum esset: optimum autem jus legati per damnationem est, Ulpian, 24, 11 a.

By this senatusconsult of the Emperor Nero the four forms of legacy are not entirely abolished, but the importance of their distinctions is very much diminished. A legacy, by whatever form bequeathed, is henceforth always recoverable, provided it could have been effectively bequeathed in any form. As Sc. Neronianum made legatum per vindicationem transformable into legatum per damnationem, it made legatum per praeceptionem a species of Vindicatio, similarly transformable, and capable, therefore, of conferring res aliena as well as res testatoris not only on heres but also on non-heres. A fortiori it made legatum sinendi modo, a species of legatum per damnationem, capable of bequeathing res aliena.

Subsequently a constitution of Constantine, Constantius, and Constans, a. d. 339, which, as we have already seen, abolished the necessity of formal terms in instituting an heir, dispensed with them also in the remaining testamentary dispositions: Et in postremis ergo judiciis ordinandis amota erit sollennium sermonum necessitas, Cod. 6, 23, 15, 2. In legatis vel fidei commissis verborum necessaria non sit observantia, ita ut nihil prorsus intersit, quis talem voluntatem verborum casus exceperit aut quis loquendi usus effuderit, Cod. 6, 37, 21: apparently a part of the same constitution.

Three years afterwards, a constitution of Constantius and Constans abolished all legal formulas in the following terms: Juris formulae, aucupatione syllabarum insidiantes, cunctorum actibus penitus amputentur, Cod. 2, 57, 1. ‘Legal formulas, with snares in every syllable to make them treacherous, in every occasion are to be utterly abolished.’

Finally, Justinian enacted ut omnibus legatis una sit natura, Inst. 2, 20, 2, that all bequests should be of one nature; and allowed them to be recovered by personal action or by real action also, at the option of the legatee, if ownership or jus in re in a specific thing was directly bequeathed to them; for some subjects are essentially incapable of recovery by real action; e. g. if a determinate quantity of anything estimated by number, measure, or weight, were bequeathed by a testator who had none in his possession at the time of his death, § 196, the heir would be bound to procure and convey it or its value to the legatee, § 202, but there would be no specific thing in existence which the legatee could recover by real action.

Co-legatees per vindicationem would be each entitled to the whole except for the concurrence of the other co-legatees. Accordingly, if one fails the others benefit by Accretio, Dig. 32, 80. Co-legatees per damnationem, if conjunctim, are never entitled to more than a ratable portion, and failure of one benefits the heir: but co-legatees of this kind, if disjunctim, are entitled to as many wholes as there are co-legatees, § 205. Co-legatees, if sinendi modo, were a class of co-legatees per damnationem, but if the bequest was disjunctim, and one or more failed to take, only the first occupant was entitled, § 215.

The loss of the legacies, which they otherwise would have acquired under the lex Papia, was one of the penalties whereby the legislator endeavoured to deter heirs and legatees from undertaking secret trusts (fideicommissum tacitum) contrived for the purpose of evading some disqualification. In fraudem juris fidem accommodat, qui vel id quod relinquitur vel aliud tacite promittit restituturum se personae quae legibus ex testamento capere prohibetur, sive chirographum eo nomine dederit, sive nuda pollicitatione repromiserit, Dig. 34, 9, 10, pr. (from a treatise of Gaius on the lex Julia et Papia). In England secret trusts one of the causes which led to the passing of the statute of Uses and Trusts. At Rome secret trusts, tacita fideicommissa (on which Gaius wrote a treatise, Dig. 34, 9, 23), were discouraged by being made one of the cases of Ereption for unworthiness, § 151, comm. Si quis in fraudem tacitam fidem accommodaverit, ut non capienti fideicommissum restituat, nec quadrantem eum deducere senatus censuit, nec caducum vindicare ex eo testamento si liberos habeat, Ulpian, 25, 17. ‘An heir who lends his assistance to the evasion of the law by the acceptance of a secret trust in favour of a disqualified beneficiary loses by decree of the senate his right under the lex Falcidia to retain one fourth of his inheritance, and to claim the caducous legacies, to which by the lex Papia he would have been entitled as a father of children.’

A passage in the Digest, 33, 2, 14, makes this depend on the intention of the testator. The words—per vindicationem seem to have been introduced into the MS. by mistake for per damnationem, cf. §§ 199, 205.