and in no case beyond five years from the time of entrance on the inheritance. The effect of the separation was, that the private creditors of the heir could only be satisfied out of the testator's property after the creditors of the estate had been satisfied. If the estate was not sufficient to meet the liabilities upon it, the creditors who had sued for a separation of goods could not have recourse to the heir's private property in order to make up the unsatisfied portion of their claims. (8) Where, in consequence of the laws of succession, emancipated children and their heirs were called to the inheritance of their father's estate, either on an intestacy or in opposition to the terms of a will (contra tabulas), they were required, with a view to an equable redivision of the estate, to account for all the property they had received. from their natural father in his lifetime, other than such as it might have been expected the father would have spent in the due discharge of his parental functions. The property so to be accounted for, or, in the terms of English law, brought into "hotch-pot," was such as dowry and gifts in view of marriage, and advances of money for purchasing posts in the army. (g) DISCHARGE OF THE HEIR'S DUTIES IN MAKING PAYMENTS OF VARIOUS SORTS, INCLUDING LEGACIES AND TRUST GIFTS. It has been already seen what provisions were made in Justinian's time for the protection of the interests of the creditors of an estate, devolving either on an intestacy or through the operation of a Will. But, besides the general duties incumbent on an heir of representing his predecessor in the discharge of his debts and current obligations, the Will, if there were one, usually cast upon him other classes of duties which vie with, or even exceed in importance, all the rest. These duties fall under the heads of legacies and trust gifts,-fideicommissa. It was only through the medium of one or other of these that individual persons, not included in the list of heirs, could obtain any advantage under the Will. In fact, the institutions of legacies and trust gifts marked a serious invasion on the integrity of the principle of the genuine Roman Will; and the development of these institutions, in Justinian's time, by their more complete assimilation, marks the transition to the modern Will, in which a series of gifts of all sorts to individual persons entirely overshadows the functions of any one person who may still be designated the heir. (3) LEGACIES. A legacy was defined to be a gift made by the deceased; it was, in fact, a charge on the heir to make a payment to some person individually mentioned or described. By Justinian's time, all formal distinctions, by which different sorts of legacies were marked off from each other, had vanished; and no matter what words were used in the Will, legatees could avail themselves of personal actions against the heir and of real actions against other persons in following up their claims. Thus, in Justinian's time, the main question in respect of legacies was one of interpreting the language and intention of the testator; and provided the intention of the testator was clear, every effort was made to give effect to it as against the heir. Thus, a testator might impose upon his heir the duty of purchasing an object belonging to another and presenting it to a legatee; but, in this case, the legatee must prove that the testator knew whom the thing belonged to, or at least that it was not the testator's own. If the legatee himself had purchased it, he could recover the price from the heir. If he became owner of it without giving an equivalent (ex causa lucrativa), he could not sue for its value. A legacy might comprise any thing or class of things which could be the subject of property at all, and this would include all the rights of action necessary to acquire its complete ownership. A legacy might be made conditionally, or for a certain purpose, or to last a certain time, or (in Justinian's time) by way of penal condition imposed on the heir. A legacy vested in the legatee from the date of the death of the testator, supposing that no condition deferred the date of vesting. The date of vesting was described by saying "dies cedit." The day from which a legacy could be actually sued for, which could not be earlier than the entrance of the heir on the inheritance, was described by saying “dies venit." The effect of the legacy having vested was, in the event of the legatee's death, that it passed to his heir; the individuality of the persons and the things concerned was determined with reference to that epoch; and the loss or injury of specific objects bequeathed attached to the legatee and no D. (xxxiv. 7). longer to the heir. The "Catonian rule" laid down that if a legacy was not good in law at the time the Will was made, supposing the deceased died immediately, it would not be good at the time that he really died. There was nothing to prevent a testator revoking a legacy by a later Will or a codicil, or introducing a new condition or a modification in the mode of charging the heir (ademptio, translatio). Though the carliest forms of the Roman will left no opening for charges on the heir of the nature of legacies, yet by the time of the XII. Tables the practice of leaving legacies had become so common, that one of the laws contained in those tables expressly sanctioned it. It was found, indeed, by experience that, whether from vanity or other causes, testators acquired the habit of distributing their whole fortune in legacies at the expense of, and even to the ruin of, the heirs. Efforts were made to counteract this successively by the Furian, Voconian, and Falcidian laws. By the Furian law, legatees, with the exception of certain near relations, were forbidden to receive B.C. 183. more than one thousand asses cach. But this law was evaded through the practice which arose of distributing the estate among a number of legatces, no one of whom was to receive more than the amount limited by law. B.C. 169. By the Voconian law, a legatee was forbidden to receive more than the heir or heirs. But here, again, by distributing the estate among a number of legatees the law was effectually evaded, so far as its main policy was concerned. The Falcidian law was more effectual. This law allowed an heir in all cases to retain at least one-fourth share of the portion of the inheritance directly devised to him by the testator, exempt from all charges by way of legacies. Thus, the testator could only dispose of threefourths of his inheritance in legacies. If he endeavoured, through the wording of his Will, to dispose of a larger share than this by gifts to legatees, the share of each legatee had to abate in just proportion. The retention of the so-called "Falcidian portion" was allowed in favour of each heir, independently of the rest; and before deducting the portion in the heir's favour, a special valuation of the assets at the time of the testator's death had to be made for this purpose. The debts of the deceased, funeral expenses, and the value of slaves liberated by the Will, were so many deductions from the amount of the assets. If, between the time of the death and the entrance on the inheritance, the available assets so far decreased in value, or appeared so worthless, as to discourage the heir from entering, in spite of his right to retain a fourth of his presumable claims, he might yet make a special agreement with the legatees for a distribution of a more. beneficial kind than that enforced by law. The deduction in favour of the heir was extended by the Emperors Severus and Antoninus Pius to gifts made in contemplation of immediate death (donatio L. 27, D. mortis causa) and to gifts between husband (xxxix. 6). L. and wife. 32, § 1, D. (xxiv. 1). Justinian, however, by his latest legislation, went a long way towards entirely abrogating the policy of the Falcidian law. He enacted that the testator could exclude his heir from the Falcidian portion by express words to that effect. The law says that the heir is to get his advantage rather by the mere fact of conscientious per formance of his duties than by positive gains, and that if he refuses to enter on the inheritance on these terms, it is to pass to substituted heirs, co-heirs, or even to legatees themselves, or slaves and intestate successors. § 2, Nov. (i. 2). By a previous law, confirmed by the last mentioned L. 22, § 14, C. law, Justinian had excluded from the benefit (vi. 30). of the Falcidian law the heir who had neglected to make an inventory of the inheritance. An heir might exclude himself from the benefit of the Falcidian law either by express agreement with the deceased or by voluntary surrender of his claims, such as occasionally took place on the sale of an inheritance. A father might, furthermore, exclude his heir from receiving the Falcidian portion, either by expressly forbidding the alienation of a particular estate, or by giving in his lifetime to his heir a fourth portion as an express equivalent. By Justinian's latest legislation, legacies for charitable or religious objects (piæ cause) were not chargeable with the Falcidian portion.2 1 D. (xxv. 2). 12). TRUST GIFTS (fideicommissa). The practice had arisen in Rome some time before the reign of the Emperor Augustus of requesting heirs, by way of petition, suggestion, or exhortation, rather than of direct command, to make gifts to persons specified in the Will. It seems that this practice grew up contemporaneously with the use of informal and supplementary Wills, entitled codicils, by which testators, when away from home, were accustomed to impose duties on heirs already instituted by a Will which they had left behind them at a distance. These trust gifts were made in the form of a supplicatory request, as "I beg," or "request you, my heir, after entering on my inheritance, to transfer it, or such and such a part of it, to such and such a person" (rogo te ut restituas). It was said to be the Emperor Augustus who first set the example of regarding a trust of this sort as absolutely binding on the heir, and of himself personally -- |