The Ancient Library
 

Scanned text contains errors.

676

LEGATUM.

tarian ownership 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 i est. In the case of a gift 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 csto sinere Lucium Titium hominem Stichum sumcre 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 man-cipatio or in jure cessio, or, in the case of a thing-nee 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 Gains), whether, if the same thing was given in this way to two severally (di.yunctiin), 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 Prae-cipito ;" 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 Senatus-consultum Neronianum made the legacy good, even if it was thus left to an extrancus, 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 (vcrlorum vitio}, but not those legacies which were invalid on account of the incapacity of the legatee (vitio personac), 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 ercis-ctindae, in which judicium it was necessary that the judex should adjudicate that which was given per praeceptionem, and lie 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 (ca-traneus) ; if it was the testator's in bonis, it was a utile legatum to the extraneus by the

LEGATUM.

senatusconsultum ; and the heres, if he was the legatee, could obtain it in a judicium familiae er-ciscundae. 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 bo 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 cxcepted. (Gains, iii. 225 ; Ulp. Frag. i. 2, xxviii. 7.) But this measure was a failure, for it did not prevent a man from giving as many several thousands to as many persons as he pleased, and so exhausting his estate. The Lex Voconia (b.c. 169) after­wards enacted that no person should take by way of legacy or donatio mortis causa more than the heredes (severally, as it seems) ; but this lex was ineffectual, for by the testator distributing his property among numerous legatees, the heres might have so small a portion as not to make it worth his while to assume the burdens attached to the hereditas. (Gains, 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 Gains, " is now in force." The Senatusconsul turn Pegasianum extended the same rule of law to fldeicommissa [fideicom-missum] ; and the Emperor Antoninus applied it to the case of fideicommissa, when there was an intestacy. (Dig. 35. tit. 2. s. 18.) 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 civitatc, Dig. 35. tit. 2. s. 1).

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 tho gift was given after the death of the heres, but it might be given on the event of his death ; it was also inutile if given in form on the day before the death of the testator, for which rule of law, says Gains, there seems to be no good reason (prettosa ratio). A legatum could not be left in the way of a penalt}' ( 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. s 36). A legacy could not be left to an uncertain person (inccrta

Pages
About | First | English Index | Classified Index | Latin Index | Greek Index

675

676

677
letter/word  
page #  
Search this site
Google


ancientlibrary.com
WWW
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of Isidore-of-Seville.com.