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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…

Agnatio

(202 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law the relationship between persons who are under the manus or patria potestas of the same pater familias or would be if he were still alive (in other words were descended from him in a purely male line, not interrupted by emancipation, Gai. Inst. 1,156). Those persons subjected to this power, who on the death of their pater familias immediately became free from power ( sui iuris), formed the narrower circle of the   sui heredes ; a particular group of agnati were the   consanguinei . The agnatic system was the basis of the civil right of intestate inheritance. Agnati pr…

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 (Succ…

Bonorum possessio

(105 words)

Author(s): Manthe, Ulrich (Passau)
[German version] In Roman law of succession the right to possession of a bequest, granted by the praetor. The bonorum possessor was not the heir by ius civile ( heres), but in certain cases could defend himself against inheritance actions by the heir (Gai. Inst. 3,35ff.). According to whether the praetor's opinion as to succession was based on statute, on the will itself or on special circumstances, distinctions were made between

Praeteritio

(171 words)

Author(s): Manthe, Ulrich (Passau)

Cognatio

(162 words)

Author(s): Manthe, Ulrich (Passau)
[German version] According to Roman law, the kinship established by a blood relationship, which also applies to non-agnates; the degree was determined by the number of mediated procreations or births. The cognatio gained legal importance with the lex Cincia (204 BC): the cognati up to the 6th degree of relationship ( sobrini, great grandchildren from the same great-grandfather) were exempted from this law's ban on gifts. The lex Furia (beginning of the 2nd cent. BC) exempted these cognati from its restrictions, as well as in the 7th degree the children of sobrini. Later, the praetor g…

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…

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…

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 (

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 …

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…

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

Abstentio

(121 words)

Author(s): Manthe, Ulrich (Passau)
[English version] Nach röm. Recht erwarben sui heredes die ihnen angefallene Erbschaft mit dem Erbfall; solange ein suus noch nicht äußerlich gezeigt hatte, daß er die Erbschaft behalten wollte, gestattete ihm der Prätor, sich ihrer zu enthalten ( se abstinere). In diesem Fall blieb der suus zwar heres, erhielt aber nicht die Erbschaft und haftete ni…

Praeteritio

(149 words)

Author(s): Manthe, Ulrich (Passau)
[English version] (“Übergehung”). Nach röm. ius civile mußten alle sui heredes (Hauserben) im Testament erwähnt werden, indem sie entweder ausdrücklich als Erben eingesetzt oder enterbt ( exheredatio ) wurden. Söhne und postumi (Nachgeborene) beiderlei Geschlechts konnten nur unter Namensnennung (n…
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