[De Poenae Cavsa Relictis Legatis.] (2)

§ 235. Penal bequests are void. A penal bequest is one intended to coerce the heir to some performance or forbearance. For instance, the following: ‘If my heir give his daughter in marriage to Titius, let him pay ten thousand sesterces to Seius:’ and the following: ‘If thou do not give thy daughter in marriage to Titius, do thou pay ten thousand sesterces to Titius:’ and the following: ‘If my heir does not, say, within two years build me a monument, I order him to pay ten thousand sesterces to Titius;’ all these are penal bequests, and many similar instances may be imagined in accordance with the definition.

§ 236. Freedom cannot be left as a penal bequest, although the point has been disputed.

§ 237. The nomination of a guardian cannot give rise to the question, because the nomination of a guardian cannot be a means of compelling an heir to any performance or forbearance, and a penal nomination of a guardian is inconceivable: if, however, a nomination were made with this design, it would be deemed rather conditional than penal.

A bequest to an uncertain person is void. An uncertain person is one of whom the testator has no certain conception, as the legatee in the following bequest: ‘Any one who comes first to my funeral, do thou, my heir, pay him ten thousand sesterces:’ or a whole class thus defined: ‘Every one who comes to my funeral:’ or a person thus defined: ‘Any one who gives his daughter in marriage to my son, do thou, my heir, pay him ten thousand sesterces:’ or persons thus defined: ‘Whoever after my will is made are the first consuls designate:’ all these persons are uncertain, and many others that might be instanced. A bequest, qualified by a definite description, to an uncertain person is valid, as the following: ‘Of all my kindred now alive whoever first comes to my funeral, do thou, my heir, pay him ten thousand sesterces.’

§ 239. Freedom cannot be bequeathed to an uncertain person. because the lex Fufia Caninia requires slaves to be enfranchised by name.

§ 240. An uncertain person cannot be nominated guardian.

§ 241. An afterborn stranger cannot take a bequest: an afterborn stranger is one who on his birth will not be a self-successor to the testator: thus a grandson by an emancipated son is an afterborn stranger to his grandfather, and a child in the womb of one who is not regarded as a wife by civil law is an afterborn stranger to his father.

An afterborn stranger cannot even be appointed heir, because he is an uncertain person.

§ 243. Though what was said above of penal dispositions refers properly to bequests, yet a penal institution of an heir is justly considered by some authorities to be void, for it makes no difference whether a legacy is left away from an heir on his doing or failing to do something, or a co-heir is appointed, as the addition of a co-heir is as effective a means of coercion as the giving a legacy, to force an heir to do or not do something against his inclination.

Whether a legacy can be lawfully left to a person in the power of the heir is a question. Servius holds that the bequest is valid, though it lapses if he continue under power at the date when the legacies vest; and whether the bequest is absolute and the legatee ceases to be subject to the power of the heir in the lifetime of the testator, or whether it is conditional and he is liberated before the condition is accomplished, in either case he holds the legatee entitled to the legacy. Sabinus and Cassius hold that a conditional bequest is valid, an absolute bequest invalid, because though the legatee may cease to be subject to the heir in the lifetime of the testator, yet the bequest must be deemed invalid because it would be absurd to hold that a disposition which would be void if the testator died immediately after making his will, can acquire validity by the mere prolongation of his life. The other school of jurists hold that even a conditional bequest is invalid, because a person under power is as incapable of having conditional as absolute legal claims against his superior.

§ 245. Conversely it is certain that if a person in your power is appointed heir, he can be charged with payment of a legacy to you; though if you inherit by his means the legacy fails, because you cannot be bound to pay yourself; but if your son is emancipated, or your slave manumitted or aliened, and either he himself becomes heir or he makes the person to whom he is alienated heir, you are entitled to the legacy.

The rules requiring that bequests should follow the institution of the heir, and should be limited to take effect in the lifetime of the heir, and prohibiting penal bequests, were abolished by Justinian, as may be seen by comparing the corresponding passages in his Institutes.

Justinian abolished the rule prohibiting bequests to uncertain persons, Cod. 6, 48. Corporations or Universitates are certae personae, not incertae as we might imagine from their mention in this constitution and elsewhere, the conception of a juristic person not being very distinctly formed by the Roman jurists. But though, as juristic persons, they were capable in general of property, yet, perhaps from a feeling of the impolicy of the principle of Mortmain, they were incapable of taking either hereditas or legatum. Cf. Ulpian, 22, 5 ‘Nec municipia nec municipes heredes institui possunt, quoniam incertum corpus est, et neque cernere universi neque pro herede gerere possunt ut heredes fiant: senatusconsulto tamen concessum est, ut a libertis suis heredes institui possint. Sed fideicommissa hereditas municipibus restitui potest: denique hoc senatusconsulto prospectum est.’ Leo, a. d. 469, made municipalities capable of taking an inheritance (hereditas), and by the legislation of Nerva and Hadrian all municipalities (civitates) had become capable of taking bequests (legatum), Ulpian, 24, 18. By Justinian’s time Churches and Foundations as well as Municipalities had become capable of taking an inheritance or a legacy, but not corporations generally, except by special permission, Cod. 6, 24, 8. 1 §§ 197-200, comm.

Although an afterborn stranger could not be appointed heir by the civil law, yet the praetor sustained such an appointment, and gave him the bonorum possessio. Justinian permitted him to take the hereditas, Inst. 3, 9 pr. After Justinian’s legislation, Cod. 6, 48, but little remained of the once important disqualification of incerta persona except the rule, that a succession, testamentary or intestate, could not belong to a postumus alienus, unless he was begotten (conceptus) in the lifetime of the heritage-leaver.

Dies legati cedens, or the time from which a legatee has an interest in the legacy, contingent on the inheritance being entered on, which in the event of his death is transmissible to his heredes, dated, as we have seen, in the time of Gaius from the opening of the testator’s will: dies veniens, the acquisition of a legacy, dates from aditio of the heres. It does not require acceptance or even knowledge of the legacy, § 195. In reference to contracts these terms mean the date when an obligation vests and the date when payment may be exacted. On dies cedens an obligation is acquired: it forms part of the creditor’s patrimony, and is capable of novation, cession, acceptilation: on dies veniens or actio nata, payment may be exacted and is recoverable by suit. The distinction between dies cedens and dies veniens in obligations arises when a dies adjecta or future date of performance is contained in the lex contractus.

A right to a conditional legacy vested when the condition was accomplished. Herein a conditional legacy differs from a conditional contract. A fulfilled condition of a contract or promise is retracted to the date of the promise: i. e. the obligation of the promiser and the right of the promisee date from the conclusion of the contract as if it had been originally unconditional. Though an unconditional legacy was liable to be defeated by the heres declining the inheritance, or the will from any other cause failing of operation, yet, as soon as the validity of the will was ascertained by the aditio of the heres, the vesting of an unconditional legacy dated back from the opening of the will, or the death of the testator.

One of the Catos was the author of a maxim, that to test the validity of a legacy we must examine whether it would be valid if the testator died immediately after executing his will. This was called regula Catoniana, Dig. 34, 7, 1 pr. The retroactive effect of the removal of an original impediment to the validity of a title is called the convalescence of the title. Accordingly, Cato’s rule may be described as a rule denying the convalescence of legacies. Cato’s rule, however, was only a criterion of the validity of unconditional bequests; the validity of conditional bequests can only be tested when the condition is accomplished. Accordingly, of the three opinions mentioned in this paragraph, that of Sabinus is to be regarded as sound, and is so treated by Justinian, Inst. 2, 20, 32.