Report No. 110

II. Wills in Roman Law

2.3. Roman Law.-

Much of the law of testamentary succession has its genesis in Roman law, and it would be of interest to know the position under that law. The position has been thus stated1:

"Law of Succession.-Upon the death of a person an inheritance (heredities) is conceived as the whole of the property, movables and immovables, rights claims and obligations of the deceased.

Through succession on intestacy (ab intestato) the inheritance developed on those members of the family who, at the time of the death of its head, had been under his paternal power and through his death become independent (sui-juris). In the absence of such heirs, relatives tied with the deceased by descent from a common ancestor through males (agnates) received the inheritance.

Praetorium law admitted, to succession on intestacy, sons who had been emancipated, then cognates (relatives by blood through males or females), and the wife. The whole succession on intestacy was liberally reformed by Justinian. Intestate succession occurred only when there was no valid last will or where there was one, but it became void by later events (previous death of the heir instituted or his refusal to accept the inheritance ).

The usual forms of testament were manifold, written and oral, with more or less formalities which under practerial law (seven witnesses for a written will) and later legislation, became simplified. A will had to contain the institution of an heir haeres in the opening phrase without which it was not valid.

It could contain various other dispositions, such as legacies (legata, originally expressed in prescribed words, later formless fideicommissa, manumissions of slaves, appointments of guardians for the testator's children or wife, disinheritances, and many other wishes to be fulfilled by heirs or by legatees. A later will made the previous one null, the testator, however, could make new dispositions or modify former ones in an additional document (codicil)."

1. Encyclopaedia Americana, (1966), Vol. 23, p. 646.

2.4. Development of the will, a feature of Roman Law.-

Testamentary succession was extensively developed in Rome. The will, if not purely Roman, at least owes to Roman law its complete development,1-a development which, in most countries, was greatly aided, at a later period, by ocelosiatics versed in Roman law, and in England, especially, by the Judges of the Court of Chancery. The effect has been that, as Sir Henry Maine expresses it, "The English law of testamentary succession to personal has become a modified form of the disposition under which the inheritances of Roman citizens were administered."

1. Williams on Wills and Intestate Succession, p. 8, cited in N.D. Basu Succession Act, (1957), pp. 11-13.

2.5. Mosaic Law and Roman Law.-

In the Mosaic law, the will, if it existed at all, was of a very rudimentary character, in spite of the assertion of Eusebius that Noah made a will disposing of the whole world. In any case, there was no absolute freedom of testation in the Hebrew legal system. The testator could not disinherit his natural children1. Intestacy was the normal course2. In contrast, the Roman Law developed, refined and made general the use of the will.

1. Kagan Three Great Systems of Jurisprudence, (1955), p. 20.

2. Kagan Three Great Systems of Jurisprudence, (1955), p. 153.

2.6. Will in Roman Law.-

The will in Roman law was conceived as a transfer of the inheritance as a whole. The testator must dispose of the whole or none; he could not (unless a soldier) die partly testate and partly intestate. The earliest form of will which was made publicly in the comita curiata in Roman times1 looked like the irrevocable abrogation of an heir that is to say, the debarring of certain heirs who were not the ordinary heirs.

The alternative will, made before people drawn up for battle, probably had for its object the disposal of the testator's arms, and other objects especially dear to him. But the will of mature Roman law originated in a emancipatio of his estate by the testator-probably on his death-bed-to a person who acted as a kind of trustee and who distributed it according to the instructions of the testator. Such a person was known as the familia empror.

1. Chambers Encyclopaedia, Vol. II, pp. 807, 808.

2.7. Roman law wills mentioned by Gaius and wills in emergencies.-

It is certain that wills existed already at the time of the XII Tables (450-451, B.C.) and it is highly probable1 that the form used was still that mentioned by Gaius as the oldest-the will made publicly in the assembly of the curiae (testamantum in comittis calatis), with the will made before the people drawn up for battle (testamantum in procinctuas) as a variant.

It may be, however, that the mancipatory will (testamentum per aes et libram) had already been invented. This began as an expedient for effecting the purpose of a will in an emergency, when the other forms were impossible, and consisted in the use of emancipation to convey the estate of the dying man to a kind of trustee (familia emptor) who then distributed it in accordance with the testator's instructions.

1. Encyclopaedia Britannica, (1965), Vol. 19, p. 453 (H.F. Jollowicy).

2.8. Developments at the end of the republic.-

By the end of the Republic1, the Roman will had become revocable during the testator's life time, and did not divest him of his estate until death. But the original influence remained strong enough to ensure that the primary and essential element of the will was the institution of an heir or heirs who should carry on the personality of the testator.

Later, there took place certain developments, in the course of which possession of the estate was given to any one "instituted" in a testamentary document, if the document was sealed with "seven seals" and otherwise in order, even though mancipation had not taken place. In Justinian's times, the commonest form of will was a document sealed with seven witnesses and signed by them as the testator. A codicil could be sealed by five witnesses. Perhaps this sealing by witnesses contains the germ of the modern requirement of attestation.

1. Chambers Encyclopaedia, Vol. II, pp. 807, 808.

2.9. Mancipation.-

The "mancipation" had become a mere formality and the instructions of the testator, which were now contained in a written document, constituted a true will, operative only at the death and revocable at any time during the testator's lifetime by the making of a new will. In classical times the praetor had already given effect in most cases to a document sealed by seven witnesses2. In post-classical times, the mancipation had ceased to be necessary and the commonest form of will was the testamentum griperitum, needing for its completion the seals of seven witnesses and the signatures of the witnesses and of the testator.

1. Encyclopaedia Britannica, (1965), Vol. 19, p. 453 (H.F. Jollowicy).

2.10. Requirements of Roman Will.-

The first requirement of any Roman Will of historical times was the appointment of one or more heres. A heres is a universal successor, i.e., he takes over the rights and duties of the deceased (in so far as they are transmissible at all) as a whole. On acceptance, the heir becomes owner where the deceased was owner, creditor where he was creditor and debtor where he was debtor, even though the assets were insufficient to pay the debts. It was thus possible for an' inheritance to be demnose, i.e., to involve the heir in loss.

Until Justinian's day this consequence could only be avoided by not accepting the inheritance, but Justinian made one of his most famous reforms by introducing the beneficium inventaril, i.e., the heir who, within a certain time after the acceptance, made an inventory of the deceased's assets, need not pay out more than he had received. In addition to appointing an heir, the testator might also leave legacies, i.e. particular gifts which are a burden on the heir. Freedom of testation was, however, not complete, a man being obliged to leave a certain proportion of his property to his children and in some cases, to ascendants, and brothers and sisters.

2.11. Octavian as a beneficiary under Caesar's Will.-

Octavian whom we know as Augustus, became the first Roman Emperor. Caesar, in a codicil to his will, named Octavian as his adopted son and heir. The status which this appointment gave to Octavian, as well as the money which came with it, enabled him to become a member of the Triumvirate which came to power after Caesar's death, and later to make himself the sole ruler of the Empire1.

1. Rene A. Wormser Wills That Made History, (1962) 48 ABAJ 1148, 1149.