Английская Википедия:Inheritance law in ancient Rome
Inheritance law in ancient Rome was the Roman law that governed the inheritance of property. This law was governed by the civil law (ius civile) of the Twelve Tables and the laws passed by the Roman assemblies, which tended to be very strict, and law of the praetor (ius honorarium, i.e. case law), which was often more flexible.Шаблон:Sfn The resulting system was extremely complicated and was one of the central concerns of the whole legal system. Discussion of the laws of inheritance take up eleven of the fifty books in the Digest.Шаблон:Sfn 60-70% of all Roman litigation was concerned with inheritance.Шаблон:Sfn
In the case of intestacy, Roman inheritance law had no concept of primogeniture and treated male and female children equally. However, in most cases intestacy was avoided by means of a will. Roman law recognised very broad freedom of testation, but wills had to strictly follow correct formulae and phrases in order to be valid. The will had to name an heir. In addition to this, it could name a legal guardian (tutor) for underage children, manumit slaves, and leave legacies to third parties. Over time a separate system of fideicommissa ("trusts"), which allowed greater flexibility, developed alongside the system of wills.
Intestacy
Intestacy occurred when someone died without any will or when they died with a will that was subsequently found to be invalid.Шаблон:Sfn The civil law on intestacy was laid down in the Twelve Tables.Шаблон:SfnШаблон:Sfn Property went first to sui heredes ("his own heirs"), who were any children of the deceased that had remained under his patria potestas ("paternal power") until his death.Шаблон:Sfn There was no assumption of primogeniture - all children, male and female, received an equal share of the estate.Шаблон:Sfn If there were no children, then agnate relatives in the male line would inherit (i.e. other children of the deceased's father, paternal grandfather, and so on).Шаблон:Sfn If there were none of these, then the Twelve Tables provided for the property to be inherited by the wider gens, but as the social role of the gens declined after the Early Republican period, this ceased to occur.Шаблон:Sfn There was no concept that an intestate property might pass to the state.Шаблон:Sfn Children of the deceased who had been emancipated before the deceased's death or who had passed into the potestas of another (through certain kinds of marriage or through adoption by another) were excluded from the succession, as were relatives in the female line (i.e. relatives of the deceased's mother), and the deceased's spouse.Шаблон:SfnШаблон:Sfn
This system was altered by the law of the praetor, so that all children, including emancipated children, inherited in first instance, then agnate relatives in the male line, then relatives in the male or female line based according to six degrees of proximity, and finally the widow of the deceased (excluded because she was assumed to form part of her father's inheritance, not her husband's).Шаблон:SfnШаблон:Sfn If any of these people had already received a portion of the estate during the lifetime of the deceased (e.g. as a dowry), that amount would be subtracted from their share of the estate.Шаблон:Sfn Mothers of at least three children were given a right to inherit from their children by the senatus consultum Tertullianum. Legitimate and illegitimate children were made the presumed heirs of their mothers by the senatus consultum Orfitianum.Шаблон:Sfn
In Late Antiquity, Justinian abolished this system in two rulings delivered in AD 543 and 548, in favour of a system where property of the deceased went to the descendants in first instance, then to ascendants and siblings, and then to more distant relatives, with no distinction between the male and female line and no right to succession on the part of the widow.Шаблон:Sfn
Testamentary succession
Most Roman inheritances were not intestate. Instead, they were governed by a will (testamentum).Шаблон:Sfn Some Roman writers speak of producing a will as a duty (officium).Шаблон:Sfn Henry Maine in 1861 characterised the Roman approach as a "horror of intestacy."Шаблон:SfnШаблон:Sfn Only a pater familias (male head of household) could make a will that disposed of a whole estate.Шаблон:Sfn But any Roman citizen who had reached the age of majority could make a will for property that they possessed in their own right. Women could make wills through a process of fictional sale (coemptio), until the reign of Hadrian, when they were given the ability to make a will through their tutor (legal guardian).Шаблон:SfnШаблон:Sfn Non-Romans (peregrini) and people with intellectual disabilities could not make wills under Roman law.Шаблон:Sfn Exiles were not allowed to make wills either and this ban was retrospective; being sent into exile voided any will that the exile had already made.Шаблон:Sfn
The will had to name an heir.Шаблон:Sfn In addition to this, it could name a legal guardian (tutor) for underage children, manumit slaves, and leave legacies to third parties.Шаблон:Sfn
Early methods of testament
The earliest forms of Roman will were made at an assembly of the people called the comitia calata ("summoned assembly") which was held twice a year. Soldiers could also make a will before they went into battle, called an in procinctu ("with togas girded up"). Both of these methods had ceased to be used by the Late Republic.Шаблон:SfnШаблон:Sfn
They were replaced by the testamentum per aes et libram ("the will made by bronze and scales"). This form of will rested on the legal fiction that the testator was formally conveying (mancipatio) his property to a trustee (familiae emptor, "buyer of the household") who would then convey it to the chosen heirs on his death. The act of conveyance had to be witnessed by a scale-bearer (libripens) and five other witnesses .Шаблон:Sfn Initially, the will was made orally, but written wills became common early. By the Late Republic, the actual ceremony was no longer carried out, although the term was still being used in the second century AD.Шаблон:Sfn From the second century BC, all that was required was a written will sealed by seven witnesses (signatores).Шаблон:SfnШаблон:Sfn
Documentation
Wills usually took the form of three wooden writing tablets (tabulae). One surface of each was covered with wax and a copy of the will was written on two of the tablets. The tablets were tied together, so that one copy was visible (scriptura exterior) and the other was not (scriptura interior). The seals of the witnesses were placed over the cord, so that it was impossible to open the tablet and view the inner copy without breaking the seals. This design was intended as a guarantee against tampering.Шаблон:Sfn This form was mandated by the senatus consultum Neronianum of AD 61, but it was probably the usual form before that.Шаблон:Sfn
Designating heirs
To be valid, a will had to name an heir or heirs (heres or heredes).Шаблон:Sfn These could be designated using the phrases "Be thou, so-and-so my heir" or "I order that so-and-so be my heir" (Titius heres esto or Titium heredem esse iubeo). Any other phrase, like "I wish that so-and-so be my heir" or "I make so-and-so my heir" (Titium heredem esse volo or Titium heredem facio), would not be valid.Шаблон:Sfn
If there was no valid heir then the whole will would fail, including legacies left to people other than the heir.Шаблон:Sfn Under the principle of universalis successio ("total inheritance"), the heir inherited all rights and obligations of the deceased, including all their debts.Шаблон:SfnШаблон:Sfn Thus, becoming heir to a heavily indebted estate could lead to bankruptcy.Шаблон:SfnШаблон:Sfn Most people were granted a hundred days to consider whether to accept the role of heir. But children who had not been emancipated before death (sui heredes) and slaves who were simultaneously freed and appointed heir in the will could not refuse the role.[1]
Under the civil law, there was an assumption that all children of the deceased were heirs unless the testator specifically disinherited them (by name for male children, by general statement for female children).Шаблон:Sfn Under the praetor's law, this rule was extended to emancipated sons.Шаблон:Sfn Sometimes a testator would disinherit their children in order to avoid them becoming liable for any debts and then require the named heir to pass the property to the children through a fideicommissum.Шаблон:Sfn
The will could also name substitute heirs, who would take over the role of the heir if the initial heir died before the testator or refused to accept the will.Шаблон:Sfn
Justinian introduced a rule called "the privilege of inventory" (beneficium inventarii), according to which, if an heir began making an inventory of the estate within thirty days of learning that they were the named heir, then they would only be liable for debts from items contained in the inventory.Шаблон:Sfn
Under the civil law, the heir claimed the estate through a hereditatis petitio ("claim of heirdom").Шаблон:Sfn The praetor's law provided an alternative, the bonorum possessio ("order for possession of the estate"), where the heir was determined by the ruling of a magistrate.Шаблон:SfnШаблон:Sfn This ruling might be secundum tabulas ("in accordance with the will") or contra tabulas ("contrary to the will").Шаблон:Sfn These two systems were very complicated, leading to efforts to simplify them and, eventually, they were merged.Шаблон:Sfn
Invalid heirs
Heirs had to be specific natural persons. It was impossible under Roman law to make a community, state, trust, or company the heir. The heir could not be any "unknown person" (incerta persona), e.g. a child who had not been born when the will was written.Шаблон:Sfn
Foreigners (peregrini) could not be named as heirs.Шаблон:Sfn
Under the Lex Julia de maritandis ordinibus of 18 BC and the Lex Papia Poppaea of AD 9, unmarried adults could not inherit or receive legacies and married adults without children could only receive half the inheritance.Шаблон:Sfn
Manumissions
Originally, the testator was able to manumit any number of slaves in the will. Under Augustus, the Lex Fufia Caninia of 2 BC placed an absolute maximum limit of one hundred manumissions and lower limits for estates which had smaller numbers of slaves.Шаблон:Sfn The motivation for this may have been a desire to limit the number of freedmenШаблон:Sfn and/or to prevent the testator from bankrupting the estate.Шаблон:Sfn Somewhere between 5% and 8% of all Roman manumissions were testamentary manumissions.Шаблон:Sfn
Legacies
The testator could leave legacies to third parties, which the heir was obliged to pay from the estate. Legacies could provide a method for leaving property to people who could not legally be heir, but foreigners, communities, and uncertain persons could not be legatees either.Шаблон:SfnШаблон:Sfn Unlike the heir, legatees were not liable for the estates debts.Шаблон:Sfn Legacies could be per vindicationem ("by claim"), where the legatee became owner of the property in question, or per damnationem ("by obligation"), where the heir was required to make a regular payment to the legatee from the property.Шаблон:Sfn A legacy was only valid if the phrase "to whom I give and legate" (cui do lego).Шаблон:Sfn
Legacies could include dowries, money given to slaves (peculium), furniture, wine, and so on.Шаблон:Sfn Annuities might be granted to servants of the deceased, to be paid on a certain day each year for the rest of the servant's life.Шаблон:Sfn A lifetime usufruct of a property was often granted to the widow of the deceased.Шаблон:Sfn Legacies were often used to leave money to towns or associations for specific purposes (e.g., holding games in honour of the deceased, constructing public buildings, providing heating for the bathhouse or oil for the gymnasium.Шаблон:Sfn
Under the Lex Falcidia of 40 BC, legacies could not take up more than three-quarters of the total estate (i.e. the heirs had to receive at least a quarter). If the legacies were more than this amount, then they would be reduced in order to ensure that the heirs received a quarter of the total value of the estate.Шаблон:Sfn
Justinian merged legacies into the system of fideicommissa discussed below.Шаблон:Sfn
Challenging the will
Under the Twelve Tables, testators had complete freedom of testation.Шаблон:SfnШаблон:Sfn In the Late Republic, children could file a "complaint of the undutiful will" (querela inofficiosi testamenti) before the centumviral court, if the will gave them less than one quarter of what they would have gotten in the event of intestacy and there was no reason why they had been excluded.Шаблон:SfnШаблон:Sfn The heirs would have to demonstrate that they had always behaved in a dutiful manner towards the deceased.Шаблон:Sfn If they won the case, they got the full share that they would have received in case of intestacy.Шаблон:Sfn This was based on the legal fiction that the testator could not have been of sound mind when that part of the will was written.Шаблон:SfnШаблон:Sfn The claim only voided the specific section of the will dealing with the claimant, not the whole will.Шаблон:Sfn The law mostly did not specify what were valid reasons for disinheriting someone.Шаблон:Sfn Thus, it was generally determined by the social expectations of the jury.Шаблон:Sfn Fourth-century laws mention "immorality" and becoming a gladiator as reasons and Justinian provided a full list in AD 542.Шаблон:Sfn
Even when a disinheritance was totally legal, there was strong social pressure against disinheriting children and direct descendants.
Fideicommissum
Шаблон:Main The fideicommissum ("trust") was an alternative method for leaving legacies instead of the will. It could consist of a specific object or property or of the whole estate.Шаблон:Sfn Originally, it was a gift of some property to an individual who was requested to use it for a specific purpose, but was not legally bound to do so.Шаблон:SfnШаблон:Sfn Under Augustus, some fideicommissa became legally binding, being enforced by the consuls.Шаблон:SfnШаблон:Sfn Claudius created two praetores fideicommissarii who were specifically responsible for enforcing fideicommissa (later they were reduced to one).Шаблон:SfnШаблон:Sfn
Fideicommissa differed from legacies in several ways. Firstly, the trustee could be anyone who received something from the estate, not just the heir.Шаблон:Sfn Secondly, the fideicommissum could benefit someone who was not a valid heir.Шаблон:Sfn This loophole was closed over time. For example, the Senatus consultum Pegasianum of AD 73 prevented fideicommissa for unmarried and childless individuals.Шаблон:Sfn Thirdly, whereas legacies failed if there was no heir or the will was invalid, fideicommissa still functioned, as long as the trustee benefitted from the estate - even in the case of intestacy.Шаблон:Sfn Fourthly, whereas wills had to use specific phrases in order to be valid, fideicommissa did not; they were much more flexible. Thus, when wills proved to be invalid, jurists and judges would often try to fulfill the terms of the invalid will under the legal fiction that the testator had intended to create a fideicommissum.Шаблон:Sfn
The fideicommissum could be given to the trustee to hold for their lifetime and then pass to a third party at death. For example, the property might be entrusted to the widow, who could use it for the rest of her life, and then would be required to pass it to the main heirs of the estate on her death.Шаблон:Sfn
The fideicommissum could also be used by the testator to bind people to use the property in certain ways. For example, Quintus Cervidius Scaevola describes a father who made his son the trustee of his estate, with the ultimate beneficiaries being the son's own heirs, and a stipulation banning the son from selling or mortgaging the land.Шаблон:Sfn This seems to have been rare in practice.Шаблон:Sfn Justinian banned any such arrangement which lasted more than four generations.Шаблон:Sfn
See also
References
Bibliography
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- ↑ Шаблон:Harvnb; Шаблон:Harvnb. Under the law of the praetor, sui heredes could avoid the role of heir if they had not been involved in the estate before the testator's death and slave-heirs could not be forced to pay the estate's debts from their own property, only from the inherited property.
