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p675 Legatum

Article by George Long, M.A., Fellow of Trinity College
on pp675‑677 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LEGATUM is defined (Dig. 30 s116) to be "delibatio hereditatis qua testator ex eo quod universum heredis foret alicui quid collatum velit." This singular succession presupposes a universal succession, for if there is no here ex testamento or person loco heredis, there can be no legacy. A Legatum then is a part of the hereditas which a testator gives out of it, from the heres (ab herede); that is, it is a gift to a person out of that whole (universum) which is diminished to the heres by such gift. Accordingly the phrase "ab herede legare" thus becomes intelligible (Dig. 30 s116; "ei testamento legat grandem pecuniam a filio," Cic. pro Cluent. 12). A legatee could not be charged with the payment of a legacy out of what was given to him, a rule of law which was thus expressed, "A legatario legari non potest." A legatum was something given according to the Jus Civile, and therefore could only be given in civilia verba, and in Latin. [Testamentum.]

The word "Legatum," from the verb lego, contains the same element as Lex. Lego has the sense of appointing or disposing of a matter, as in the phrase "legatum negotium" (Plaut. Cas. I.1.12); and it is used in the Twelve Tables to express generally a testator's disposition of his property (uti legassit, &c.). Ulpian accordingly explains the word Legatum by referring to its etymology, and likening a Legatum to a Lex properly so called. "A Legatum," he says, "is that which is left by a testament, legis modo, that is, imperative; for those things which are left precativo modo, are called Fideicommissa" (Frag. tit. 24). A legatee was named legatarius; those to whom a thing was given jointly (conjunctim) were collegatarii. A legacy which was legally valid or good, was legatum utile; a void legacy was inutile. A legacy which was given absolutely or unconditionally, was said to be given pure; one which was given conditionally was said to be given sub conditione. The expression purum legatum, an unconditional legacy, also occurs (Dig. 36 tit. 2 s5).

Gaius apologizes for treating of Legata in that part of his Institutional work in which he has placed them. In the first ninety-six chapters of his second book he treats of the acquisition of property in Res singulae, to which class legacies belong. But as the matter of legacies is not intelligible without reference to the matter of hereditas or universal succession, he places the law of legacies (haec juris materia) immediately after that of hereditas.

There were four Civil forms in which a legacy could be left: Per Vindicationem, Per Damnationem, Sinendi modo, Per Praeceptionem.

legatum per vindicationem was given in these words: "Hominem Stichum Do, Lego;" or the words might be with reference to the legatee, "Capito, Sumito, Sibi Habeto." A legatum per vindicationem was so called with reference to the legal means by which the legatee asserted his right to the legacy against the heres or any possessor, which was by a vindicatio or an Actio in rem; for as soon as the Hereditatis aditio had taken place, the legatee had the Quiritarian (ex jure Quiritium) ownership of the legacy. The two schools raised a question as to this, Whether under such circumstances, the legatee obtained the Quiritarian ownership of the thing before he had consented to take it. The opinion of the Proculiani who contended for such consent, was confirmed by a Constitution of Antoninus Pius (Gaius, II.195). It was consistent with the nature of the Per Vindicationem, that those things only could be so given, in which the testator had Quiritarian ownership: and it was also necessary that he should have such ownership both at the time of making his will and at the time of his death; otherwise the legacy was void (inutile). But there was an exception in respect of things "quae pondere, numero, mensura contant," as wine, oil, corn,º and the precious metals in the form of coin (pecunia numerata), in regard to which it was sufficient if the testator had the Quiritarian ownership at the time of his death. By a senatus-consultum of the time of Nero, it was enacted that if a testator left a thing as a legacy, which had never been his, the legacy should be equally good as if it had been left in the form most advantageous to the legatee (optimo jure), which form was the Legatio per damnationem. But if a testator gave a thing of his own by a testament, which he afterwards alienated, it was the best opinion that the legacy was inutile by the Jus Civile, and that the Senatusconsultum did not make it good. If the same thing was given to more than one person either jointly (conjunctim) so as to make them collegatarii, or severally (disjunctim), each took an equal share. A legatum was given conjunctim thus: "Titio et Seio hominem Stichum do, lego; disjunctim, thus: "Titio hominem Stichum do, lego; Seio eundem hominem do, lego." If one collegatarius failed to take, his portion went to the others. In the case of a conditional legacy left per vindicationem, the schools were divided in opinion; the Sabiniani said that it was the property of the heres during the pendency of the condition; the Proculiani said that it was "res nullius."

The form of the Per damnationem was this: Heres meus Stichum servum meum dare damnas esto; but the word Dato was equally effective. A thing which belonged to another (aliena res) could be thus left, and the heres was bound to procure the thing for the legatee or to pay him the value of it. A thing not in existence at the date of the will might be left by this form, as the future produce of a female slave (ancilla). The legatee did not acquire the Quiritarian ownership of the legacy by virtue of the hereditatis aditio: the thing still remained the property of the heres, but the effect of the legatum was to establish an obligatio between the heres and the legatee, who could sue for it by an Actio in personam. If it was a thing Mancipi, the legatee could only acquire the Quiritarian p676ownership of it by Mancipatio or In jure cessio from the heres: if it was merely delivered, the legatarius only acquired the complete ownership (plenum jus) by usucapion. If the same thing was left to two or more conjunctim, each had an equal share; if disjunctim, the heres was bound to give the thing to one and its value to the rest. In the case of a give conjunctim the share of the legatee who failed to take belonged to the hereditas; but the Lex Papia made it caducum, and gave it first to a collegatarius who had children, then to the heredes who had children, and then to the other legatees who had children (legatarii), a privilege which Juvenal alludes to (dulce caducum, IX.88).

The Legatum sinendi modo was thus given: "Heres meus damnas est sinere Lucium Titium hominem Stichum sumere sibique habere;" by which form a testator could give either his own property or that which was the property of his heres at the time of the death. As in the case of a legatum per damnationem the legatee prosecuted his claim by an Actio in personam. It was doubted whether the heres was bound to transfer the property, in the case of a res mancipi, by mancipatio or in jure cessio, or, in the case of a thing nec mancipi, by traditio or delivery, for the words of the gift are "permit him to take." If the same thing was left to several conjunctim, they took it in common, but without any jus accrescendi if one of them failed to take. It was a still more doubtful question (in the time of Gaius), whether, if the same thing was given in this way to two severally (disjunctim), the whole was due to each, or if the heres was released from all further claim, when either of them had obtained possession of the whole with his permission.

The Legatum per praeceptionem was in this manner: "Lucius Titius hominem Stichum Praecipito;" where "praecipito," in the opinion of the Sabiniani, is the same as "praecipuum sumito," or "take first." The Sabiniani accordingly were of opinion that a legacy could only thus be left to one who was also made a heres; but a Senatusconsultum Neronianum made the legacy good, even if it was thus left to an extraneus, that is, to another than the heres, provided the legatee was a person to whom a legacy could be left in any of the three other modes. For the Senatusconsultum made those legacies valid which were not valid by the Jus Civile on account of the words of the gift (verborum vitio), but not those legacies which were invalid on account of the incapacity of the legatee (vitio personae), which was the case with a peregrinus. The Sabiniani also maintained that a man could leave in this manner only what was his own, for the only way in which the legatee could enforce his right was by a judicium familiae erciscundae, in which judicium it was necessary that the judex should adjudicate that which was given per praescriptionem, and he could adjudicate on nothing else than the res hereditaria. But the same senatusconsultum made a legacy valid, which was given in this form, even if the thing did not belong to the testator. The Proculiani contended that a legacy could be given to an extraneus per praeceptionem; and further that if the thing was the testator's ex jure Quiritium, it could be sued for (vindicari) by the legatee, whether he was a heres or not (extraneus); if it was the testator's in bonis, it was a utile legatum to the extraneus by the senatusconsultum; and the heres, if he was the legatee, could obtain it in a judicium familiae erciscundae. If it did not belong to the testator in either way, still the legatum was made utile both to the heres and the extraneus by the senatusconsultum. If the same thing was thus left to more than one either disjunctim or conjunctim, each had only his share. In all the three forms, except the per damnationem, only Things and Jura in re could be the objects of legata: but by the per damnationem any thing could be made the object of a legatum which could be made the object of an obligatio.

By the Law of the Twelve Tables a man could dispose of his property as he pleased, and he might exhaust (erogare) the whole hereditas by legacies and bequests of freedom to slaves, so as to leave the heres nothing. The consequence was that in such cases the scripti heredes refused to take the hereditas, and there was of course an intestacy. The first legislative measure on this subject was the Lex Furia, called Testamentaria, which did not allow a testator to give as a donatio mortis causa or as a legacy more than a thousand asses to one person, certain kinsfolk excepted (Gaius, II.26; Cic. in Verr. I.43). The Lex Falcidia (B.C. 40) at last took away all means of evasion by declaring that a testator should not give more than three-fourths in legacies, and thus a fourth was secured to the heres; and "this law," says Gaius, "is now in force." The Senatusconsultum Pegasianum extended the same rule of law to fideicommissa Fideicommissum]; and the Emperor Antoninus applied it to the case of fideicommissa, when there was an intestacy (Dig. 35 tit. 2 s18). The Lex Falcidia applied to the wills of persons who died in captivity (apud hostes), for a previous Lex Cornelia had given to the wills of such persons the same force as if they had died cives (in civitate, Dig. 35 tit. 2 s1).

Legata were inutilia or void, if they were given before a heres was instituted by the will, for the will derived all its legal efficacy from such institution; there was the same rule as to a gift of freedom. It was an inutile legatum, if in form the gift was given after the death of the heres, but it might be given on the event of his death; it was also inutile it given in form on the day before the death of the testator, for which rule of law, says Gaius, there seems to be good reason (pretioso ratio). A legatum could not be left in the way of a penalty (poenae nomine), that is, for the purpose of compelling the heres to do or restraining him from doing any particular act, but Justinian made all such legata good, except those which were impossible, or forbidden by law or against boni mores (probrosa) (Inst. 2 tit. 2 s36). A legacy could not be left to an uncertain person (incerta p677persona). The notion of an uncertain person was not of a person who could never be ascertained, for in several of the instances mentioned by Gaius, the person or persons would easily be ascertained (for instance "qui post testamentum consules designati erunt"); but the notion of the uncertainty was referred to the mind of the testator at the time of making his testament. Accordingly the persona was not considered incerta, where he was one of a certain class, such as cognati, though the individual of the class might be uncertain till the event happened which was to determine who out of the class was intended by the testator. Such a form of bequest was called a certa demonstratio incertae personae (Gaius, II.238). A legatarius must have the testamenti factio, and be under no legal incapacity. A legacy could not be left to a postumus alienus, nor could such a person be a heres institutus, for he was an incerta persona. It has been explained who is a postumus [Heres, p601A]: a postumus alienus is one who when born cannot be among the sui heredes of the testator.

It was a question whether a legacy could be legally (recte) left to a person, who was in the power of another person who was made heres by the same will. The Proculiani denied that such a legacy could be left either pure or sub conditione (Gaius, II.244). But if a person who was in the power of another was made heres, a legacy might be left (ab eo legari) to the person in whose power he was; for if such latter person became heres thereby (per eum), the legacy was extinguished, because a man cannot owe a thing to himself; but if the son was emancipated, or the slave was manumitted or transferred to another, and so the son became heres, or so the slave made another person heres, the legacy was due to the father or former master.

Not only Res singulae could be given as a legacy, but also a part of a universitas of things (universarum rerum) could be so given; thus the heres might be directed to share a half or any other part of the hereditas with another, which was called partitio (Cic. de Leg. II.20, pro Caecin. 4; Ulp. Frag. tit. 24 s25). By the jus civile there might be a legacy of a ususfructus of those things which were capable of being used and enjoyed without detriment to the things. By a senatusconsultum there might be a legacy of the abusus of those things which were consumed in the use, as money, wine, oil, wheat, but the legatarius had to give security for the restoration of the same quantity or the same value, when his right to the enjoyment ceased. This technical meaning of abusus, that is, the use of things which are consumed in the use, is contrasted with ususfructus by Cicero (Top. 3; Ueber das alter des quasi-ususfructus, von Puchta, Rheinisches Mus. III p82, and Puchta, Instit. II § 255).

A legacy might be transferred to another person, or taken away (adimi) by another will or codicilli confirmed by a will; it might also be taken away by erasure of the gift from the will. Such a revocation of legacies (ademptio legatorum) seems to have been only effected in the way mentioned. The expression ademption of legacies in English law has a different meaning, and in the case of a specific thing corresponds to the Roman extinction of legacies, which took place if the testator disposed of the thing in his lifetime.

If a legatee died after the day on which the legatum had become his (post diem legati cedentem), it passed to his heres; or to use a phrase of English law, the legacy was vested. The phrase "dies legati cedit" accordingly means "the time is come at which the legacy belongs to the legatee," though the time may not have come when he is entitled to receive it; and "dies venit" denotes the arrival of the day on which it can be demanded (Dig. 50 tit. 16 s213). If the legacy was left conditionally there was no vesting till the condition was fulfilled. By the old law, legacies which were left unconditionally or from a time named (in diem certum) were vested from the time of the testator's death; but by the Lex Papia they vested from the time of the opening of the will. The legacy might vest immediately on the death of the testator and yet the testator might defer the time of payment (Dig. 36 tit. 2 s21). A legacy might also be left on a condition of time only, as a legacy to Titius when or if he should attain the age of fourteen years, in which case the words when and if were considered equivalent, a decision which has been adopted in English law, in cases in which there is nothing in the will which gives the words "when" or "if" a different signification (Dig. 36 tit. 2 s5, 22; Hanson v. Graham, 6 Ves. p243).


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