CHAPTER VII. Legacies. A LEGACY is a bequest, or gift of goods left by CHAP. the testator, to be delivered by the heir. VII. Legatum est donatio quædam a defuncto relicta Definition. ab herede præstanda. Ulpian defines it thus: Legatum est quod legis modo, id est imperative testamento relinquitur. A legacy was expressed verbis directis, or imperativis, as do, lego. A fideicommissum3 was per verba precativa, as rogo, quæso. By the old Civil law there were four kinds of legacies: 1. Per vindicationem. 2. Per damnationem. 3. Per præceptionem. 4. Sinendi modo. It was per Vindicationem. 1. A legacy left per vindicationem was in the Legatum following form: Hominem Stichum do lego; or Hominem Stichum sumito, or capito. necessary that a legacy thus left should be in the quiritarian possession of the testator at the timẹ of making his will as well as that of his death; and it takes its appellation from the circumstance that on the death of the testator the property vested in the legatee; and if it were not duly delivered to him by the heres, or were detained by any one, he could get possession by the actio vindicationis, in which he declared it was his ex jure quiritium1. nationem. 2. The legacy per damnationem was in this Per Damform: Heres meus Stichum servum meum dare damnas esto. By this form the testator could leave res aliena, in which case the heres was bound to obtain the thing, or if unable, to pay the value of it to 1 I. II. 20. I. 3 See post. Chap. 8. 2 Ulp. Frag. XXIV. 1. BOOK the legatee'. By this method also res futuræ, such II. as the crops of a farm, or the young of animals, could be bequeathed. The remedy of the legatee, if the legacy were not paid, was an actio in personam against the heres?. Per Præ 3. Per præceptionem was thus: Lucius Titius ceptionem. hominem Stichum præcipito. Here a specific legacy Sinendi modo. Senatus Neronia was left to one of several heirs. He was directed by the testator præcipere, præcipuum sumere, whatever the thing might be. 4. Sinendi modo was in this form: Heres meus damnas esto sinere Lucium Titium hominem Stichum sumere sibique habere. In this way the testator could not only leave his own property, but that of the heres; and it was sufficient if the property vested in either of them at the testator's death1. The Senatus-Consultum Neronianum passed in Consultum the reign of Nero, A.D. 60, for amending legal flaws in these legacies; and Justinian afterwards abolished all distinctions, and reduced legacies to one kind. num. What can be left as a legacy. In legacies are to be considered: 1. The things capable of being left as legacies. 2. The persons capable of receiving them. 3. The effects and incidents of legacies. 4. The ways by which they might be extinguished. 1. Things corporeal or incorporeal, existing at present or in futurity, belonging to the testator, or to any other person, might be left as legacies. An instance of an incorporeal legacy would be where the testator bequeaths a debt due to himself. In such a case he gives the legatee a right to receive it, or to sue the debtor. We have seen that, according to Gaius, the testator could bequeath the property of another; and that such legacy might be a good one. This appears singular to our ideas VII. of the power of bequest; the law however was this: CHAP. if the testator erroneously believed the property belonged to himself the legacy was bad, because it might be implied that he would not have made such a bequest had he been aware of the true state of the case; but if he did know it, then his intention was that the heir should purchase it, and deliver it to the legatee. If the purchase were not practicable, or if it could only be obtained at an exorbitant price, pretio oneroso, the legatee was entitled to receive the fair value of it from the heir1. ed. Legacies were classed under different heads ac- Legacies, cording to the circumstances or conditions attached how classto them. The principal ones were: 1. Legatum liberationis. 2. Nominis. 3. Generis. 4. Optionis. 5. Pœnæ nomine. nis; (1.) Legatum liberationis is where the testator Legatum leaves a discharge to his debtor, and the heres in liberatiothat case is bound to give him a receipt for that sum which would otherwise be due to the estate, and if he still demanded the debt the legatee could defend himself by the exceptio doli mali. (2.) Legatum nominis. This was where the tes- Nominis; tator left as a legacy a debt due to himself from a third party. As there was no privity of contract between the legatee and the debtor it was the duty of the heres, if necessary, to sue on behalf of the legatee; but it appears that the latter might have an actio utilis, an action on the case, to enforce payment'. (3.) Legatum generis was the bequest of some Generis; particular kind of thing, as a house, or a slave; in which case the heres was bound to give a house or a slave, but he must not select the worst, unless the power of selection be given him by the tes tator3. (4.) Legatum optionis is where the legatee has Optionis. the right of choice, as one of my slaves', in which 1 Colq. 1156. 3 D. XXX. 71. D. XXXIII. 6. 3. 2 C. VI. 37. 18. 4 D. XXX. 20. BOOK Pœnæ no mine. Liability of case the legatee or his heir can choose which he pleases. (5.) Legatum pœnæ nomine is in the case of a condition precedent to be performed by the legatee, premising of course that it be legal and possible, e.g. Si in familiam meam nupsisset1. These are the principal legacies as distinguished by the mode of bequest; but several others are mentioned in the Digest. If a legacy were lost or perished before the the Heres. delivery without the fault of the heres, the loss was to the legatee, otherwise the heres was bound to make it good; and he was liable for culpa levissima. Also if the legacy perished by accident, after the time when the heres ought to have given the legatee possession, he would in such case be liable3. Who can receive legacies. 2. All persons were capable of receiving legacies who had the testamentifactio, by which is to be Testamenti understood not merely the power to make a will, but the capacity to receive by means of a will which many had who could not make one1; e. g. a furiosus, a prodigus, a servus alienus, or hereditarius. factio. A legacy to a posthumous child was good, as Uncertain also to an uncertain person, provided it were to one of a number of persons certain, because id certum est quod certum reddi potest. persons. Corpora tions. An error in the proper name or surname of the legatee did not vitiate the legacy, cum de persona constată; nor would a false description or cause if added to a legacy make it void, as Servus Stichus quem de Titio emi, when he had received Stichus as a gift; or Titio fundum do, quia negotia mea curavit, when Titius had not transacted his business. A legacy to a corporation, collegium licitum, was valid. 3. By the old law no legacies left in a testa 1 D. XXXV. I. 15. 3 D. XXX. 47. 5. and 6. 2 Colq. 1157. 4 Gai. II. 189. 6 D. XXXV. I. 17. and par. 2. . VII. ment of the ment were effectual unless the testator had first ар- CHAP. pointed an heir; a legacy therefore placed before the appointment of the heir was a legatum inutile; Appointthe heredis institutio being the caput et fundamen- heir. tum totius testamenti1: but Justinian decreed that so long as the heir was appointed the mere form of the will was of no importance2. crescendi. The jus accrescendi is the right of a coheir, or Jus Acco-legatee, to possess the share of his companion in the estate, or legacy which he may have become incapable of possessing by death before the death of the testator, or by any legal incapacity, or even by refusal to accept it. To create the jus accre- How crescendi the legacy must be left disjunctim or conjunctim; if separatim, the portion of one co-legatee could not vest in another, but went to the heir3. The form of a legacy left disjunctim was this, Titio ædes meas do lego: Sempronio easdem ædes do lego. The form conjunctim was Titio et Sempronio ades meas do lego: in either case the legal effect was the same; and if, for the reasons above mentioned, the legacy did not vest in Sempronius, or he refused, the whole went to Titius; if it vested in Sempronius but for a moment it passed to his heirs1. ated. A legacy might be left pure (simply), or con- 4 legacy ditionally; to a certain day, or from a certain day. left purè. A legacy was left purè when no condition was annexed. It was a conditional legacy if the vest- Sub condiing of it depended on the fulfilment of the condi- tione. tion imposed; and therefore if the legatee died before the condition was fulfilled it did not pass to his heirs. A legacy was left in diem thus: Titio lego ædes In diem. meas per decennium. The legacy would therefore vest in Titius from the moment of the testator's death, and he would enjoy it for ten years, calculating from that date. 1 Gai. II. 229. 4 D. L. 16. 142. 2 C. VI. 23, 24. 3 D. VII. 2. 1. and II. 5 D. XXXVI. 2. 5. 2. |