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LEGATUM.

persona). 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 de-signati 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 th@ 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 t0 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, p. 601, a] : 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 (recto) 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 Caeein. 4 ; Ulp. Frag. tit. 24. s. 25.) 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 scnatusconsultum there might be a legacy of the alusus 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 usus-fructus by Cicero (Top. 3 ; Ueber das alter des quasi-ususfructus^ von Puchta, Rheinisclies Mus. iii. p. 82, 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 tli3

677

LEGATUS.

Icgatum had become his (post diem legati ccdcntem), it passed to his heres ,• or to use a phrase of Eng-lisli 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. 1G. s. 213.) 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 cerium) were vested from the time of the testator's death ; but by the Lex Papia they vested from the time of opening 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. s. 21.) 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 e^'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. s. 5, 22 ; Hanson v. Graham. 6 Ves. p. 243.)

(Gaius, ii. 191—245 ; Ulp. Frag. tit. xxiv. &c. ; Dig. 30—32, &c. ; Inst. ii. tit. 20—22 ; Paulus, S. R. iii. tit. 6.) [fideicommissum.] [G. L.]

LEGATUS. Legati may be divided into three classes: 1. Legati or ambassadors sent to Rome by foreign nations; 2. Legati or ambassadors sent from Rome to foreign nations and into the pro­vinces ; 3. Legati who accompanied the Roman generals into the field, or the proconsuls and prae­tors into the provinces.

I. Foreign legati at Rome, from whatever coun­try they came, had to go to the temple of Saturn and deposit their name with the quaestors, which Plutarch (Quacst. Rom. p. 275, b.) explains as a remnant of an ancient custom ; for formerly, says he, the quaestors sent presents to all legati, which were called lautia, and if any ambassador was taken ill at Rome, he was in the care of the quaestors, who, if he died, had also to pay the expenses of his burial from the public treasury. When after­wards the number of foreign ambassadors increased in proportion as the republic became extended, the former hospitable custom was reduced to the mere formality of depositing the name with the keepers of the public treasury. Previous to their admis­sion into the city, foreign ambassadors seem to have been obliged to give notice from what nation they came and for what purpose ; for several in­stances are mentioned in which ambassadors were prohibited from entering the city, especially in case of a war between Rome and the state from which they came. (Liv. xxx. 21, xlii. 36, xlv. 22.) In such cases the ambassadors were either not heard at all, and obliged to quit Italy (Liv. xlii. 36), or an audience was given to them by the senate (senatus legatis datur) outside the city, in the temple of Bellona, (Liv. I.e.; xxx. 21.) This was evidently a sign of mistrust, but the ambassadors were never-. theless treated as public guests, and some public villa outside the .city was sometimes assigned for their reception. In other cases, however, as soon as the report of the landing of foreign ambassa­dors on the coast of Italy was brought to Rome, especially if they were persons of great distinction, as the son of Masinissa (Liv. xlv. 13), or if they

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