[. . .]
2. Roman. When a man died, a certain person or certain persons succeeded to all his property, under the name of heres or heredes: this was a universal succession, the whole property being considered a universitas [Universitas.] Such a succession comprehended all the rights and liabilities of the person deceased, and was expressed by the term Hereditas. The word hereditas is accordingly defined to be a succession to all the rights of the deceased (Dig. 50 tit. 16 s24); and sometimes it is used to express the property which is the object of the succession. The term pecunia is sometimes used to express the whole property of a testator or intestate (Cic. De Invent. II.21 ; Gaius, II.104); but it only expresses it as property, and therefore the definition of hereditas by pecunia would be incomplete. Cicero (Top. 6) completes the definition thus:— "Hereditas est pecunia quae morte alicujus ad quempiam pervenit jure, nec ea aut legata testamento aut possessione retenta." The negative part of the definition excludes legacies, and property of the deceased, the ownership of which is acquired by a sufficient possession of it. The word "jure" excludes the bonorum possessio, in opposition to which the hereditas is appropriately called "justa." The heres was the person who acquired all that had belonged to another, morte and jure; the etymological relation of the word to herus seems probable.
A person might become a heres by being named as such (institutus, scriptus, factus) in a will, executed by a competent person, according to the forms required by law [Testamentum]. If a person died intestate (intestatus), or having made a will which was not valid, the inheritance came to those to whom the law gave it in such cases, and was called hereditas legitima or ab intestato. But a man could not die testate as to part of his property and intestate as to another part, except he were a soldier (cujus sola voluntas in testando spectatur). Accordingly, if a man gave a part of the hereditas to one heres or more, and did not dispose of the rest, the heres or heredes took the whole (Inst. II. tit. 14 §5; Cic. de Invent. II.21; Vangerow, Pandekten, &c. vol. II p5).
In order that a testamentary succession should take place, the person dying must have such rights as are capable of being transmitted to another; consequently neither a slave, nor a filius-familias, according to the old Roman law, could make a heres. Also, the person who is made heres must have a legal capacity to be heres.
The institution of a heres was that formality which could not be dispensed with in a will. If the testator named no heres or heredes, and complied with all the other legal forms, still his disposition of his property was not a will. The heres called heres directus, or simply heres, represented the testator, and was thus opposed to the heres fideicommissarius [Fideicommissum]. The testator might either name one person as heres, or he might name several heredes (coheredes), and he might divide the hereditas among them as he pleased. The shares of the heredes were generally expressed by reference to the divisions of the As: thus, "here ex asse" is heres to the whole property; "heres ex dodrante", here to three-fourths; heres "ex semuncia", heir to one twenty-fourth (Cic. ad Att. XII.48, VII.8; Cic. Pro Caecina, 6; Inst. 2 14 §5). If there were several heredes named, without any definite shares being given to them, the property belonged to them in equal shares. A heres might be instituted either unconditionally (pure), or conditionally (sub conditione).
If the testator had a legal capacity to dispose, and if his will was made in due form, the first inquiry as to the heres was, whether he had a legal capacity to take what was given to him. He must have this capacity at the time of the institution, or the institution is null; and in order to take he must have the capacity to take (Inst. 2 19 §4), at the time of the testator's death, and at the time of accepting the inheritance. This capacity might be expressed by the word "testamentifactio," an expression which had reference not only to the legal capacity of the testator, but also to the legal capacity of the person named heres. As a general rule, only Roman citizens could be named as heredes in the will of a Roman citizen; but a slave could also be named heres, though he had no power to make a will, and a filius-familias could also be named heres, though he was under the same incapacity; for the slave, if he belonged to the testator, could, by his master's testament, receive his freedom and become heres; and if he belonged to another, he took the inheritance for the benefit of his master: the filius-familias in like manner acquired it for his father. Persons, not Roman citizens, who had received the commercium, could take hereditates, legata and fideicommissa by testament ( Cic. pro Caecin. 7, 32; Savigny, Zeitschrift, vol. V p229, System, &c. vol. II p27).
Heredes were either Necessarii, Sui et Necessarii, or Extranei. The heres necessarius was a slave of the testator, who was made a heres and liber at the same time; and he was called necessarius, because of the necessity that he was under of accepting the hereditas. A slave was sometimes appointed heres, it the testator thought that he was not solvent, for the purpose of evading the ignominia which was a consequence of part person's property being sold to pay his debts, as explained by Gaius (Gaius, II.154, etc). The heredes sui et necessarii were sons and daughters, and the sons and daughters of a son, who were in the power of a testator; but a grandson or granddaughter could not be a suus heres, unless the testator's son had ceased to be a suus heres in the testator's lifetime, either by death or being released from his power. These heredes sui were called necessarii, because of the necessity that they were under, according to the civil law, of taking the hereditas with its encumbrances. But the praetor permitted such persons to refuse the hereditas (abstinere se ab hereditate), and to allow the property to be sold to pay the testator's debts (an instance is mentioned by Cic. Phil. II.16); and he gave the same privilege to a mancipated son (qui in causa mancipii est). All other heredes are called extranei, and comprehend all persons who are not in the power of a testator, such as emancipated children. As a mother had no potestas over her children, they were extranei p599heredes when named heredes in her will. Extranei heredes had the potestas or jus deliberandi Dig. 28 tit. 8 s1), or privilege of considering whether they would accept the hereditas or not: but if either extranei heredes, or those who had the abstinendi potestas, meddled with the testator's property, they could not afterwards disclaim the inheritance, unless the person who had so meddled was under twenty-five years of age, and so belonged to a class who were relieved by the praetor in all cases where they were overreached [Curator], and also in cases where they had accepted an insolvent hereditas (damnosa hereditas). The emperor Hadrian gave this relief to a person above twenty-five years of age who had accepted an hereditas, and afterwards discovered that it was incumbered with a heavy debt (Gaius, II.163).
A certain time was allowed to extranei for the cretio hereditatis, that is, for them to determine whether they would take the hereditas or not: hence the phrase "cernere hereditatem" (Cic. ad Att. XI.12). Thus, if the testator had written in his will "Heres Titus esto," he ought to add, "Cernitoque in centum diebus proxumis quibus scies poterisque: quod ni ita creveris exheres esto" (Gaius, II.165; Cic. de Orat. 1.22). If the extraneus wished to take the hereditas, he was required to make a formal declaration of his intention within the time named (intra diem cretionis). The formal words of cretion were "eam hereditatem adeo cernoque." Unless he did this, he lost the hereditas, and he could not obtain it merely by acting as heres (pro herede gerendo). If a person was named heres without any time of cretion being fixed, or if he succeeded (legitimo jure) to the property of an intestate, he might become heres without any formal declaration of his intention, and might take possession of the hereditas when he pleased: but the praetor was accustomed, upon the demand of the creditors of the testator or intestate, to name a time within which the heres should take possession, and in default of his doing so, he gave the creditors permission to sell the property. The common form of cretion in the will (vulgaris cretio) has already been mentioned. Sometimes the words "quibus sciet poteritque" were omitted, and it was then specially called "cretio ceterorum dierum," which was the more disadvantageous to the heres, as the days began to be reckoned, or, as we say, the time began to run immediately, and it was not reckoned from the time when the heres knew that he was named heres, and had no impediment to his cretion.
It was not unusual to make several degrees of heredes in a will, which was called substitutio (Inst. 2 15). Thus in the formula beginning "Heres Titus," &c., after the words "exheres esto," the testator might add, "Tum Maevius esto cernitoque in diebus centum," &c.; and he might go on substituting as far as he pleased. The person first named as heres (primo gradu) became heres by the act of cretion; and the substitutus (secundus heres, Cic. Top. 10; Hor. Sat. II.5.48; Tacit. Ann. I.8) was then entirely excluded. If the words "si non creveris" were not followed by words of exhereditation, this gave some advantage to the first heres: for instance, if he neglected the formality of cretion, and only acted as heres, he did not lose all, but shared the hereditas equally with the substituted person. This was the old rule; but a constitution of M. Antoninus made the acting as heres equivalent to cretion, provided such acting took place within the time of cretion (compare Gaius, II.177, &c., with Ulp. Frag. XXII.34).
In the case of liberi impuberes, who were in the power of a testator, there might be not only the kind of substitution just mentioned (vulgaris substitutio), but the testator might declare that if such children should live to become his heredes, and should die impuberes, some other person, whom he named, should be his heres. This was expressed thus, "si prius moriatur quam in suam tutelam venerit" (Cic. de Invent. II.42, Top. 10; Gaius, II.179), for the termination of impuberty and of the tutela were coincident [Curator]. Thus, as Gaius remarks, one testamentary disposition comprised two hereditates. This was called pupillaris substitutio (Inst. 2 16). This kind of substitution was contained in a clause by itself, and in a separate part of the will, which was secured by the testator's own thread and seal, with a provision in the first part of the will that this second part should not be opened so long as the son lived and was impubes. A substitution could also be made in the case of children being exheredated (disinherited) by the parent's will, and the substituted person then took all that the pupillus acquired by hereditas, legatum (legacy) or gift. Gaius observes (Gaius, II.183) that all his remarks with reference to substitution for children impuberes, when made heredes or exheredated, apply to posthumous (postumi) children, of which there is an example cited by Cicero (Top. 10. Si filius natus esset in decem mensibus, &c.).a
If an extraneus was made heres, there could be no substitution to the effect, that if he died within a certain time, another person should be heres: for though a testator could attach a condition to be performed before a person could take the hereditas, a person when he had once become heres continued such. The case of a pupillaris substitutio, which was an exception to this general rule, was probably founded on the patria potestas. The heres might, however, be charged with a fideicommissum, in which case he was heres fiduciarius [ Fideicommissum].
As to conditions which the heres was bound to perform, they might be any that were not contrary to positive law or positive morality; such as the setting up of statues, &c. (Cic. Verr. II.8, 9, 14), or changing the name (ad Att. VII.8). Impossible conditions were treated as if there were no conditions mentioned (pro non scripto, Inst. 2 tit. 14 s10).
If a man's own slave was made heres by his will, it was necessary that he should be made free also by the will: the words were "Stichus servus meus liber heresque esto." If the slave were not made free by the testament, he could not take under it, even if he were manumitted by his master, and of course he could not if he were sold; and the reason is, that the institution was not valid. If he was instituted free as well as heres, he became both a freedman and heres necessarius by the death of his master: if he was manumitted by his master in his lifetime, he might accept the inheritance or refuse it. If he was sold by his master in his lifetime, he could take possession of the inheritance with the permission of his new master, who thus became heres through the medium of his slave. If the slave who was made heres was at p600that time the property of another person, and not of the testator, he could not take the inheritance without the consent of his master, for if he took it his master became heres: if such slave was manumitted before taking possession of the inheritance, he might accept it or refuse it as he pleased.
If an Ingenuus died intestate, either from not having made a will, or having made a will but not in due form, or having made a will in due form which afterwards became invalid (ruptum, irritum), or it there was no heres under the will, the hereditas, according to the law of the Twelve Tables, came to the heredes sui, and was then called legitima hereditas (Gaius, III.2). The heredes sui were "liberi" in the power of the testator at the time of his death; the term liberi comprehended not only children, but the children of the testator's male children, and the children of a son's son. Adopted children were considered the same as other children. But grandchildren could not be heredes sui, unless their father had ceased to be in the power of the intestate, either by death or in any other way, as by emancipation. A wife in manu being considered as a daughter, and a daughter-in‑law (nurus) in manu filii being considered a granddaughter, were sui heredes; but the latter only when her husband was not in the power of the intestate at the time of his death. Posthumous children, who would have been in the power of the intestate if he were living, were also sui heredes. The sui heredes took the hereditas in equal shares. If there was a son or daughter, and children of a son deceased, the children of the deceased son took the portion which their parent would have taken. But the distribution was in stirpes, that is, among the stocks or stems sprung from the ancestor, and not in capita, or among the individuals: thus, if there were a son, and the sons of a deceased son, the son would take half of the hereditas, and the sons of the deceased son would take the other half, in equal shares.
If an intestate had no sui heredes, the Twelve Tables gave the hereditas to the agnati Gaius, III.9). It is stated under Cognati, who are agnati. The hereditas did not belong to all the agnati, but only to those who were nearest at the time when it was ascertained that a person had died intestate. If the nearest agnatus either neglected to take the inheritance or died before he had taken possession of it, in neither case did the next in succession, as agnatus, take the inheritance. He was the nearest agnatus who was nearest at the time when it was ascertained that a person had died intestate, and not he though was nearest at the time of the death; the reason of which appears to be that the hereditas was in a sense the property of the intestate until it was certain that he had left no will; and as Gaius observes, if he had left a will, still it might happen that no person would be heres under that will; and accordingly it seemed better, as he observes, to look for the nearest agnatus at the time when it is ascertained that there is no heres under the will. If there were several agnati in the same degree, and any one refused to take his share or died before he has assented to take it, such share accrued (adcrevit) to those who consented to take the hereditas.
In the case of women, there were some peculiarities which arose from their legal condition Gaius, III.14). The hereditates of women intestate came to their agnati just as the inheritances of males; but women who were beyond the degree of consanguinei (a term which legally means brothers and sisters) could not take hereditates ab intestato. Thus, a sister might take from a brother or sister as legitima heres; but an aunt or a brother's daughter could not be a legitima heres. The principle of Roman law which gave to those who came into the potestas or manus the quality of children of the blood, was followed out in this case also: a mother or a stepmother who had come in manum viri thereby obtained the status of a daughter; and, consequently, as to legitimate succession, there were the same relations between such mother or stepmother and the husband's children, as there were among the husband's children themselves. By the Twelve Tables the hereditas of an intestate mother could not come to her children, because women have no sui heredes; but by a SCtum Orphitianum of M. Antoninus and Commodus, the sons of a wife, not in manu, might take as her legitimi heredes, to the exclusion of consanguinei and other agnati (Ulp. Frag. XXVI § 7; comp. Inst. 3 4).
If a person died leaving no sui heredes, but a brother and another brother's's children, the brother took all as the nearest agnatus. If there was no brother surviving, and only children of brethren, the hereditas was divided among all the children in capita, that is, the whole was equally divided among all the children.
If there were no agnati, the Twelve Tables gave the hereditas to the gentiles [Gens].
Gaius Gaius, III.18, &c.) briefly recapitulates the strict law of the Twelve Tables as to the hereditates of intestates:— emancipated children could claim nothing, as they had ceased to be sui heredes: the same was the case if a man and his children were at the same time made Roman citizens, unless the imperator reduced the children into the power of the father: agnati who had sustained a capitis diminutio were excluded, and consequently a son who had been given in adoption, and a daughter who was married and in manu viri: if the next agnatus did not take possession, he who was next in order could not for that reason make any claim: feminae agnatae who were beyond the degree of consanguinei had no claim: cognati, whose kinship depended on a female, had no mutual rights as to their hereditates, and consequently there were no such mutual rights between a mother and her children, unless the mother had come in manum viri, and so the rights of consanguinity had been established between them.
Gaius proceeds to show Gaius, III.25, &c.) how these inequitable rules of the civil law were modified by the praetor's edict. As to the succession of cognati under the Imperial legislation, see Inst. 3 5, De SCto Tertull.; Cod. 6 58; Nov. 118.
If a man had a son in his power, he was bound either to make him heres, or to exheredate (exheredare) him expressly (nominatim). If he passed him over in silence (silentio praeterierit), the will was altogether void (inutile, non jure factum). Some jurists were of opinion that even if the son, so passed over, died in the father's lifetime, there could be no heres under that will (Gaius, II.123, &c.). Other liberi could be passed over, and the will would still be a valid will; but the liberi so passed over took a certain portion of the hereditas adcrescendo, as it was termed, or jure adcrescendi. p601For instance, if the heredes instituti were sui, the person or persons passed over took an equal share with them. If the heredes instituti were extranei, the person or persons passed over took a half of the whole hereditas; and as the praetor gave the contra tabulas bonorum possessio to the person so passed over, the extranei were deprived of all the hereditas. A rescript of the emperor M. Antoninus limited the amount which women could take by the bonorum possessio to that which they could take jure adcrescendi; and the same was the law in the case of emancipated females.
It was necessary either to institute as heredes, or to exheredate posthumous children nominatim, other the will, which was originally valid, became invalid (ruptum); and the will became invalid by the birth either of a posthumous son or daughter, or, as the phrase was, adgnascendo rumpitur testamentum (Cic. de Or. I.57). Postumi were not only those who were born after the testator's will was made, number came into his power or would have come into his power if he had lived, but also those who might become the sui heredes of the testator by the death of some other person in the testator's lifetime. Thus, if a testator's son, who was in his power, had children, and the son died in the testator's lifetime, the grandchildren became sui heredes, and the testament became ruptum by this quasi agnatio: it was therefore a necessary precaution to institute as heredes or to exheredate such grandchildren. It follows that if the testament could be made invalid by this quasi agnatio, it must have become invalid by a son being born in the lifetime of the testator, unless the will had provided for the case; for it became invalid if the testator adopted a son or daughter (Ulpian) either by adrogation or adoption properly so called, after the date of his will. The case was the same if he took a wife in manum after the date of the will.
The word Postumus has clearly the same signification as Postremus, and literally means a child born last. The passage of Gaius is defective where he treats of Postumi; but the definition of Postumi, as preserved in the Breviarium, appears to be exact: "Postumorum duo genera sunt: quia postumi adpellantur hi, qui post mortem patris de uxore nati fuerint, et illi qui post testamentum factum nascuntur." Sometimes the word postumus is defined only as a child born after a father's death, as we see in some of the Glossae, and in Plutarch (Sulla, 37); but there is no proof that the meaning was limited to such children; and the passages sometimes cited as being to that effect (Dig. 50 tit. 16 s164; 28 tit. 3 s3) have been misunderstood.
Other case in which a valid testamentum became ruptum or irritum, are more properly considered under Testamentum.
The strictness of the old civil law was modified by the praetorian law, which gave the bonorum possessio to those who could not take the hereditas by the rules of the civil law. [Bonorum Possessio].
The heres represented the testator and intestate (Cic. de Leg. II.19), and had not only a claim to all his property and all that was due to him, but was bound to all his obligations. He succeeded to the sacra privata, and was bound to maintain them, but only in respect of the property, for the obligation of the sacra privata was attached to property and to the heres only as the owner of it. Hence the expression "sine sacris hereditas" meant an hereditas unencumbered with sacra (Plaut. Capt. IV.1.8, Trinum. II.4.83; Festus, s.v. Sine sacris heredibus).
The legislation of Justinian released the heres, who accepted an hereditas, from all the debts and obligations of the testator or intestate, beyond what the property would satisfy, provided he made out an inventory (inventarium) of the property in a certain form and within a given time (Cod. 6 tit. 30 s22). It also allowed the institution of a man's own slave as heres without giving him his freedom (Inst. 2 14; comp. Gaius, II.185).
The heres could claim any property which belonged to his testator or intestate by the hereditatis petitio Dig. 5 tit. 3 s20), which was an actio in rem, and properly belonged to an heres only, though it was afterwards given to the bonorum possessor. Each heres claimed only his share (Cic. Pro Rosc. Com. c18).
The coheredes shared among themselves the property, and bore their share of the debts in the same proportions. For the purpose of division and settling the affairs of the testator, a sale was often necessary (Cic. ad Att. XI.15). If the parties could not agree about the division of the property, any of them might have an actio familia erciscundae [Familiae Erc. Ac.].
The hereditas might be alienated by the form of in jure cessio. The heres legitimus might alienate the hereditas before he took possession of it, and the purchaser then became heres, just as if he had been the legitimus heres. The scriptus heres could only alienate it after the aditio: after such alienation by him, or by the heres legitimus after aditio, both of them still remained heredes, and consequently answerable to creditors, but all debts due to them as heredes were extinguished.
Before it was determined who was heres, the hereditas was without an owner, and was said "jacere." When a heres was ascertained, such person was considered to possess all the rights incident to the hereditas from the time of the death of the testament or intestate. But this does not explain how we are to view the hereditas in the interval between the death of the former owner and the time when the heres is ascertained. During such interval, according to one form of expression used by the Roman jurists, the hereditas is a juristical person (vice personae fungitur), and is the domina, that is, the domina of itself; according to another form of expression, it represents the defunct, and not the person of the future heres. These two forms are the same in meaning, and they express a fiction which has relation to the legal capacity of the defunct, and not that of the future heres, and which does not involve the notion of any juristical personality of the hereditas. The relation to the legal capacity of the defunct is this:— Slaves generally belonged to an hereditas. A slave, as is well known, could acquire property for his living master, even without his knowledge; but the validity of the act of acquisition, in some cases, depended on the legal capacity of his master to acquire. Now, while the hereditas was without an ascertained owner, many acts of a slave by p602which the hereditas might receive additions, were strictly void, and such acts could only have their legal effect on the supposition that the slave had an owner of a sufficient legal capacity; and accordingly, the fiction of law gave validity to the act of the slave by relation to the known legal capacity of the late owner, and not by relation to the yet unascertained owner who might not have such legal capacity. The following are examples:— "When a Roman, who had a legal capacity to make a will, died intestate, and another person appointed as his heres a slave, who belonged to this hereditas which was still without an owner, such institution of a heres would be valid by virtue of this fiction, because it had reference to the legal capacity of the defunct. If there had been no such fiction, the validity of the institution would have been doubtful, for the unascertained legitimus heres might be an intestabilis, who (at least according to the old law) could not be instituted heres. — If a soldier died and left a will, which was not yet opened, another testator might institute as heres a slave belonging to the soldier's hereditas, because the institution, according to this fiction, had reference to the deceased; but if there were not this fiction, the institution might be void, inasmuch as the unascertained heres might be a peregrinus who had no testamentifactio with this other testator. — It was to provide for such cases as these only, that this fiction was introduced; and it had no other object than to facilitate certain acquisitions by means of the slaves who belonged to an hereditas."
This masterly exposition is by Savigny (System des heut. R. R. vol. II p363).
(Gaius, II.99‑190, III.1‑24; Ulp. Frag. XXII, Dig. 28, 29; Inst. 2, 3; Rein, Das Römische Privatrecht, p361, &c. Erbrecht, a useful compendium of the Law of Hereditas, as it appears chiefly in the Latin classics; Vangerow, Pandekten, &c. Erbrecht, vol. II. The chapter on Erbrecht in Puchta's Institutionen, &c. III p215, &c. is concise and very clear.)
a Although Cicero not unreasonably feels that ten months is enough time, at least one judge, overly punctilious or maybe suborned, allowed the possibility of a thirteen-month pregnancy and ruled accordingly. The story is sketched in Pliny (VII.40); to be frank, one would like to know the details.
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