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Executor

(149 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In the mancipation will of Roman law ( Testament) the testator assigned his property by   mancipatio to a ‘purchaser of the family’ ( familiae emptor). The latter may possibly have acted as an executor in the archaic period but there is no reference to it in any of the sources [1. 108, 679; 3. 1014]. In Classical Roman law of the 1st-3rd cents. AD, execution of wills existed as a separate institution only in embryonic form: by   fideicommissum an heir or legatee might be obligated to release the estate or a portion of it to another party, or by instruction (  mandatum

Immiscere, se

(132 words)

Author(s): Manthe, Ulrich (Passau)
[German version] ( alicui rei, ‘to become involved in something’). A suus heres (immediate heir,  Succession, law of III A) could not effectively disclaim a legal or testamentary legacy according to  ius civile ( semel heres semper heres), but if he declared the disclaimer before the praetor, he was treated by the praetor as if he had not become the heir (  abstentio ). However, if he had once behaved outwardly like an heir ( se immiscere), he lost the  beneficium abstinendi. Se immiscere further designates the start of the discharge of other transactions. Only from the 4th cent. AD has se immi…

Legatum

(797 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law, the legacy (from legare: ‘to pronounce a binding declaration of will’, lex ). The possibility of bequeathing someone property through testamentary disposition ( Will) to the detriment of the heir was acknowledged in the XII Tables (5,3). There were two main types: 1) By legatum per vindicationem (arranged by: Titio hominem Stichum do lego, ‘to Titius I give and bequeathe the slave Stichus’) the legatee acquired the ownership of the bequeathed object directly with the succession and was able to claim this object from the h…

Minimum share

(320 words)

Author(s): Manthe, Ulrich (Passau)
[German version] As wills passing over sons were not admissible in classical Greek law ( diathḗkē B.), the question of minimum share did not arise. Even in Roman law, however, a law of minimum share for close relatives developed only slowly. At the beginning of the development there was the right of mandatory heirs ( Succession, laws of III E) to invalidate the will entirely or receive at least a part of the estate in case they were passed over ( praeteritio ). Against disinheritance ( exheredatio ) the mandatory heirs were powerless. A true right of minimum share did exist for a patronus

Vacantia bona

(169 words)

Author(s): Manthe, Ulrich (Passau)
[German version] An heirless estate ( Bona ). In the Republic, the members of the gens of a deceased person had a right of acquisition (Gai. Inst. 3,17); if they did not exercise it, anybody could take possession of the estate and obtain it by usucapio ('adverse possession') (Gai. Inst. 2,52-58). If in a will ( Testamentum ) an heir was appointed, but had become unavailable, the will and all its dispositions were ineffective. From the lex Iulia et Papia (18/9 BC) onwards the VB fell as a caducum ('forfeited') to the state, which also fulfilled the provisions of t…

Mortis causa capio

(120 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law, any ‘acquisition mortis causa ’not based on succession or legacy (Inheritance law III. H.): (1) gift mortis causa ( donatio ); what someone (2) received in fulfilment of a condition of a will or (3) on the condition that a third party (not the executing party) would die, or in exchange (4) for waiving an acquisition under inheritance law or (5) for an application for provisional safeguarding of an estate in favour of an unborn child ( missio in possessionem ) (Dig. 39,6,38; 31 pr./2; 8 pr.; 12). Manthe, Ulrich (Passau) Bibliography Kaser, RPR 1, 765; 2, 567  P. Voci,…

Fideicommissum

(767 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The fideicommissum (literally: ‘entrusted to faith’), which from the 2nd cent. BC (Ter. Andr. 290-298) appeared alongside the legatum (legacy), was a request of the testator to an heir or legatee to pass on the inheritance in part or total to a third party. Since a fideicommissum was not subject to the same restrictions as the civil law of succession, it was used to make a bequest to a person who would otherwise not be eligible to be an heir or to receive a legacy (non-citizens; women according to the lex Voconia,  Laws of succession III. D.; the unmarried and the chil…

Caducum

(180 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The lex Papia Poppaea (AD 9), by economic pressure, indirectly forced marriage and the having of children by taking away from unmarried persons the entire capability of inheriting ( capacitas) for a bequest that fell to them in the course of an inheritance, and half the ability to work for married couples without children; married partners amongst themselves had capacitas for one tenth only ( Decuma). The bequest fell, as caducum (‘forfeited’ possessions), to those men named in the testament who had children, otherwise (since Caracalla always) to t…

Intestatus

(556 words)

Author(s): Manthe, Ulrich (Passau)
[German version] A person who died without leaving a valid testament. Under Roman ius civile the estate of the deceased firstly devolved upon the   sui heredes , or else upon the agnatic relatives of the next degree ( agnati proximi). According to the Law of the Twelve Tables (5th cent. AD), s ui became heredes in the case of succession, agnati only acquired property ( familia, XII 5.4) and became successors through   usucapio ; in classical Roman law (1st-3rd cent. AD) agnates became successors through   aditio hereditatis . From the 2nd cent. BC on, agnatic relat…

Consanguinei

(66 words)

Author(s): Manthe, Ulrich (Passau)
[German version] Siblings with a common father ( uterini share the mother). According to Roman civil law consanguine sisters had a legal right of inheritance while agnatic relatives of a higher degree of relationship (aunts, nieces etc.) were excluded from intestate inheritance (Gai. Inst. 3,14; Inst. Iust. 3,2,3a).  Agnatio;  Succession, law of Manthe, Ulrich (Passau) Bibliography H. L. W. Nelson, U. Manthe, Gai Institutiones III 1-87, 1992, 65f.

Ademptio legati

(51 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The revocation of a formal legacy, initially only by formal declaration ( non do; heres ne dato) in a will, from the 2nd cent. AD also possible by informal exercise of will (e.g. disposal of the object) (Dig. 34,4).  Legatum Manthe, Ulrich (Passau) Bibliography Kaser, RPR I, 755

Decuma

(121 words)

Author(s): Manthe, Ulrich (Passau)
[German version] (=  decima sc. pars). The law of Papia Poppaea (AD 9) limited to one-tenth of the inheritance (with additional allowances for children) the capacity ( capacitas) of spouses in manus-free marriage to inherit from the testament of another. A wife in manus- marriage was, however, sua heres entitled to inherit the entire estate [2].The limit was abolished in AD 410 (Cod. Iust. 8,57,2). Apart from inheritance law, the tithe occurs as subject of a vow (Varro, Ling. 6,54; Dig. 50,12,2,2) and as the tax on crops from provincial land [1].  Caducum Manthe, Ulrich (Passau) Bibliograp…

Wills and testaments

(3,807 words)

Author(s): Hengstl, Joachim (Marburg/Lahn) | Schiemann, Gottfried (Tübingen) | Manthe, Ulrich (Passau)
[German version] [1] (Religion) see Bible; Christianity; New Testament Apocrypha; Septuagint; Testamentary literature; Vulgate (Religion) see Bible; Christianity; New Testament Apocrypha; Septuagint; Testamentary literature; Vulgate Hengstl, Joachim (Marburg/Lahn) [German version] [2] History of law (History of law) Hengstl, Joachim (Marburg/Lahn) [German version] I. General Testament (from the Latin testamentum in the sense of the final will made before witnesses; see below IV.) denotes a unilateral 'last will and testament' (or, in common E…

Succession, laws of

(1,791 words)

Author(s): Thür, Gerhard (Graz) | Manthe, Ulrich (Passau) | Ego, Beate (Osnabrück)
[German version] I. Ancient Near East see Cuneiform, legal texts in Thür, Gerhard (Graz) [German version] II. Greek Succession laws in Greece primarily followed the concept of family succession. Greek law therefore contained several provisions to secure succession within the family group even where there were no legitimate sons ( gnesioi). For example, eispoíēsis allowed the nomination of a non-testamentary heir, a process akin to adoption. Where such a replacement heir was also absent, the inheritance ( klḗros ) either passed to lateral kin ( anchisteía ) o…

Lex Iulia et Papia

(204 words)

Author(s): Manthe, Ulrich (Passau)
[German version] To improve conjugal morals and to combat childlessness, Augustus, through the lex Iulia de maritandis ordinibus (18 BC), forbade marriages outside one's class and ordered through the lex Papia Poppaea (AD 9) that citizens of a marriageable age had a duty to marry, with unmarried people penalized by the forfeiture ( caducum ) of assets gifted to them in wills, and childless married people with the forfeiture of half of this; on the other hand, anyone who had children was accorded numerous privileges ( ius liberorum, ‘children's privilege’). Which regulations should…

Substitutio

(325 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law the appointment of a substitute heir ( substitutus), so as to avoid the danger that a will might become ineffective through the potential absence of the heir appointed by it (as a consequence of prior death or refusal; Succession, laws of III. D.). Instances of the modern-day persistence of substitutio vulgaris ('common substitution') are ' gemeine Substitutio' (§ 604 Austrian ABGB) and ' Ersatzerbeinsetzung' (§ 2096 German BGB). In the case of dependent minors of either sex, a Roman testator could prepare a second will settling the su…

Lex Voconia

(324 words)

Author(s): Manthe, Ulrich (Passau)
[German version] A law introduced by the people's tribune Q. Voconius Saxa in 169 BC, which barred testators of the 1st census class (minimum assets of 100,000 as, Gai. Inst. 2,274) from naming a female heir in their will; this did not affect the intestate law of succession of women but following the law ( Voconiana ratione) women also had the intestate law of succession withdrawn from them from the 3rd degree of kinship (Paulus, Sent. 4,8,20). At the same time, the lex Voconia (LV) limited the maximum amount of legacies to half the inheritance (Gai. Inst. 2,226). In practice, …

Inheritance, division of

(147 words)

Author(s): Manthe, Ulrich (Passau)
[German version] Greek law   datetai . In early Roman law, co-heirs formed a joint ownership community ercto non cito (‘without division undertaken’ [2]; each co-heir was authorized to dispose alone over estate property. The division occurred by consent or by the  legis actio per arbitri postulationem (Gai. Inst. 4,17a); the   arbiter divided the individual estate assets and where applicable likewise ordered equalization payments. Since the pre-Classical period, the community of co-heirs was regarded as a community of owners ho…

Codicilli

(126 words)

Author(s): Manthe, Ulrich (Passau)
[German version] The last will and testament written down as an informal document. In a codicil, only individual instructions could be laid down, but not the appointment or removal of an heir. Codicils were valid as an amendment to a testament if their establishment was reserved in an earlier testament or confirmed in a later one ( c. testamento confirmati); non-confirmed codicils (intestate codicil) could only contain entails. A so-called codicillary clause of the content indicating that a testament should also be valid in case of formal errors, allowe…

Querela inofficiosi testamenti

(295 words)

Author(s): Manthe, Ulrich (Passau)
[German version] 'Complaint because of a testament contrary to duty'. If, according to Roman law, a next-of-kin of a testator was effectively disinherited (Succession, laws of, III. E) or bequeathed less than one quarter of his legal share of the inheritance ( intestatus), and if he had not received this quarter through a bequest ( legatum, fideicommissum) or donation moved by the consideration of death ( donatio mortis causa), he could go before the centumviri or use the cognitio extra ordinem to demand the annulment of the testament by QIT against the testament's benefici…
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