[Ad Legem Falcidiam.] (2)

By the ancient law a testator might exhaust his whole estate by bequests and enfranchisements, and leave nothing to the heir but an empty title; and this privilege seemed granted by the Twelve Tables, which concede an unlimited power of testamentary disposition, in these terms: ‘As a man’s last bequests respecting his property are, so let it be law:’ hence the persons who were appointed heirs declined to accept the inheritance, and people commonly died intestate.

This led to the enactment of the lex Furia, whereby, excepting certain specified classes, a thousand asses was made the maximum that a legatee or donee in contemplation of death was permitted to take. This law, however, failed to accomplish its purpose, for a testator with an estate of, say, five thousand asses, might leave to five legatees a thousand asses apiece, and strip the heir of the whole.

This occasioned the enactment of the lex Voconia, which provided that no legatee or other person taking by reason of death should take more than the heirs took. By this law, some portion at all events was secured to the heir, but, like the former, it could be defeated, for the multitude of legatees among whom a man could distribute his estate might leave so little to the heir as to make it not worth his while to undertake the burden of the whole inheritance.

At last, the lex Falcidia was enacted, prohibiting the bequest of more than three fourths of an estate, in other words, securing for the heir one fourth of the inheritance, and this is the rule of law now in force.

§ 228. The enfranchisement of slaves was likewise kept within limits by the lex Fufia Caninia, as mentioned in the first volume of these Institutions. 1 §§ 42-46.

A slightly different form of this celebrated ordinance is given by the Auctor ad Herennium: Paterfamilias uti super familia pecuniave sua legaverit ita jus esto, 1, 13, 23; also Cic. de Invent. 2, 50, 148.

The lex Furia testamentaria, which is referred to by Cicero, although it imposed on the legatee who took more than a thousand asses a penalty of four times the amount of the excess, which was recoverable by manus injectio pura, 4 § 23, yet is instanced by Ulpian (1, 2) as a minus quam perfecta lex, because, though it imposed a penalty on the legatee, it did not invalidate the prohibited bequest. In a minus quam perfecta lex the legislator, instead of declaring invalid the disposition that he wished to discourage, or conferring on the person burdened by such disposition a counter right (exceptio) whereby he might defeat the claim of the person who sought to enforce such disposition, merely imposed on the creditor under such a disposition a penalty if he either enforced his claim by suit or if he even accepted voluntary payment from the person who stood in the relation of debtor. Minus quam perfecta lex est quae vetat aliquid fieri et si factum sit non rescindit sed poenam injungit ei qui contra legem fecit: qualis est lex Furia testamentaria quae plus quam mille assium legatum mortisve causa prohibet capere praeter exceptas personas, et adversus eum qui plus ceperit quadrupli poenam constituit, Ulpian, 1, 2. So the lex Furia de sponsu, 3 § 121, which perhaps was another clause of the enactment which contained the lex Furia testamentaria, imposed a penalty on the creditor who exacted more than a ratable portion of a guaranteed debt from a single sponsor, 4 § 22. By the lex Falcidia, 40 b. c., on the contrary, a lex perfecta which superseded the lex Furia testamentaria, a legacy was absolutely null and void (ipso jure) beyond a certain extent and the heres as debtor could not be forced to pay more than the sum prescribed, a rule which may be expressed by the maxim, legata ipso jure minuuntur: and the Epistola Hadriani, 3 § 121, a law passed for the protection of the kind of surety which superseded sponsores and fidepromissores, conferred a counter right called Beneficium divisionis on the fidejussor or surety who was sued for more than a ratable portion of the debt, enabling him to defeat the valid claim of the creditor by the exceptio divisionis. Under the lex Furia testamentaria the heres could neither defend himself by alleging the absolute nullity of the excessive bequest (ipso jure) nor by pleading an opposing right (exceptio) whereby the valid claim of the legatee might be counteracted. 4 § 115, comm.

Assuming that the lex Furia de sponsu and the lex Furia testamentaria were two clauses of the same enactment, the lex Furia may have had the singular destiny of having provoked by antagonism the introduction of two new institutions in Roman jurisprudence. The desire of evading its penalties relating to sponsio may have been a cause of fidejussio; and the desire of evading its penalties relating to legata a stimulus to the invention of fideicommissa.

The exceptae personae of the lex Furia testamentaria were the cognates of that ascendant to the sixth degree with sobrino natus, or second cousin of the seventh, Ulpian, 28, 7; Vat. Fragm. 301.

The lex Voconia, supposed to have been passed by the tribune Quintus Voconius Saxa, 169 b. c., contained a provision to the effect that a woman could not be instituted heiress to a classicus, or person scheduled in the first class of the census, i. e. registered as owner of property to the amount of a hundred thousand sesterces and upward, § 274; and by another provision of this enactment, mentioned in the text, it was provided the utmost amount that any one, male or female, could take as legatee, should be limited to half the value of the inheritance. This disposition of the lex Voconia was probably the origin of the form of legacy called partitio, § 254, whereby a testator bequeathed as legacy an aliquot part of his inheritance. A rich testator with one heres would leave to a woman by way of legacy one half, with two heredes one third, of the inheritance, and so on, if he wished to leave her the utmost the law permitted.

The result of the lex Voconia, coupled with the rules of pretermission and intestacy, is the following: a daughter might take half her father’s estate either as legatee (partiaria, § 254), or, if pretermitted (praeterita), as heiress, § 124. If she was filia unica, she might take the whole estate as heiress, if her father died intestate: but Romans were very averse to dying intestate; and in this event she would not have had a testamentary guardian and so have been much hampered in the free disposition of her property, at least till the agnatic guardianship of women was abolished.

The terms of the principal clause of the lex Falcidia, passed b. c. 40, are given in the Digest 35, 2, 1, pr. ‘Every Roman citizen who, after this law passes, makes a will, is entitled and empowered to give and bequeath whatever money he likes to any Roman citizen in accordance with the laws of Rome, provided that such bequest leave at least one fourth of the inheritance to be taken under that will by the heirs. Such bequests the legatees are permitted to accept without penalty (sine fraude) (an allusion to the penalty of the lex Furia), and the heir therewith charged is bound to pay.’

The words limiting the operation of the lex Falcidia to wills executed after the date of its enactment take this law out of the general rule respecting the temporal limits of the application of laws in the event of legislative innovations. The general rule for determining, on any change of the law, whether a given right is to be governed by the older or the newer law, is the principle that a new law should have no retroactive influence on vested rights (acquired rights), but should govern all that have yet to vest. Now under a will no one has vested rights, whatever his expectations, before the death of the testator. This date fixes the possible opening of the succession (vocatio heredis, delatio hereditatis), the vesting of the rights of the heir and also of the legatee (legatorum dies cedens, § 244), unless this is postponed till a later date, and determines the law by which they are governed. By the general rule, then, the lex Falcidia would have applied to all wills whose testators died after its enactment, at whatever date they were executed. The legislator wished to disarm the opposition of those who had made their wills by excepting them from its operation; though in many cases the lex Falcidia would be less rigorous than the lex Furia and lex Voconia, which it superseded, and testators would be glad to revise their testamentary dispositions. Savigny, System, § 394.

Some illustrations of the joint operation of the lex Falcidia and the Sc. Pegasianum, or rather the Sc. Trebellianum as modified by Justinian, will be presently given. § 259, comm.