Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

I46 UNIVERSAL SUCCESSION

real property. Superficially this looks like manus but only superficially because her position at common law was not that of a child; moreover, the case never seems to have been thought of as succession. But all this is long since obsolete and the only succession we need consider is succession on death.

The Roman law did not distinguish between real and personal property for the purpose of succession. In our law the same is true nowadays, but till very recently the distinction was fundamental. The heir succeeded to the real property, while personal property was distributed by the executor or administrator. Till relatively modern times the common law had nothing to do with the fate of personal property on death.1 In modern practice, however, we speak of succession in connexion with both real property and personal property, though the expression is very modern and can hardly be said to be a term of art.2 This succession indeed is not 'universal succession* in Justinian's sense. Owing to the fact that debts had been primarily payable out of personal property, the personal representative of the deceased, to whom creditors looked for payment and to whom debts had to be paid, was the executor or administrator, who did not, as such, take any beneficial interest. Recent legislation has accentuated this difference between the Roman and English notions of succession, for all the property now vests in the executor or administrator, and the actual beneficiaries, as such, in no way represent the deceased. Under the Succession Duty Act, 1853, though the duty applied mainly to realty and chattels real, it applied whether the acquisition was on intestacy or by disposition, and had no relation to any question of universal succession in the Roman sense.

1It was of course the business of the ecclesiastical Courts.

2See, e.g., Williams, Real Property, 24th ed. p. 250.

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2. HERES, HEIR, EXECUTOR AND

ADMINISTRATOR

The 'heir' of our law, now almost a figure of the past so far as property is concerned, no doubt derives his name from the Roman heres, but the two words have very different meanings. The heres was for Justinian the representative of the deceased, to whom passed all the liabilities which survived the death and all the rights which, surviving the death, were not transferred by direct legacy to other persons. And it was indifferent whether he derived his title from the rules of succession on intestacy or from a will. Our 'heir' throughout the greater part of our legal history has been simply the person who succeeded to the descendible real property of the deceased under the rules of succession on intestacy.1 So, too, a will is not the same thing in the two systems. With us a will is essentially an instrument, to be operative only on the death of the maker and revocable till then, regulating the devolution of property. It usually nominates a personal representative, an executor, but it need not do so: the provisions of the will can be carried out by an administrator appointed for the purpose by the court. But the Roman will, while it might and usually did contain gifts of property and other analogous provisions, need not contain them: its primary purpose, perhaps at one time its only purpose, was the appointment of the 'universal successor', the personal representative, the heres, and a will which did not do this in clear terms was a nullity. And if the persons nominated as heredes refused to accept the nomination or died without accepting it, the will was, in general, void: there was no question of appointing someone else to take their place.2

1 See, however, as to the position of the heres as personal representative in our early law, Holdsworth, ii. pp. 96, 97; iii. pp. 572 sqq.

2 For exceptions, not affecting the principle, see Buckland, Text-book, pp. 321, 326.

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It may be added that while, under Justinian, a will was revocable in much the same way as in our law, this was not so originally; when made before the Public Assembly, it was probably irrevocable, and even the classical mancipatory will could be revoked at civil law only by making another will, though here the Praetor intervened and gave effect to ordinary methods of revocation.1

Our executor and administrator resemble the Roman heres much more than does our heir,z a resemblance once closer than it is now.3 Till 1857 the Church Courts controlled the grant of probate of wills of personal property, though long before that date the Court of Chancery had acquired jurisdiction to administer the provisions of wills. The Church applied the principles of canon law, which in turn was based essentially on the civil law. It is therefore not surprising that many civil law principles appeared in the law, or that some of these survived the secularisation of the judicial control of wills. Owing to the absence of adequate records of the doings of the ecclesiastical courts it is often difficult, if not impossible, to say whether, when our rule and the Roman agree, we have borrowed the principle or developed it independently. In some cases the descent from Roman law notions seems fairly clear. Swinburne,4 writing late in the sixteenth century, lays down propo-

1 It is interesting to note that we find under imperial influence cases of

2As to the origin of the executor, which was not Roman, see Holdsworth,

iii.pp. 563, 564. The administrator was appointed by the ordinary: see ibid. p. 568: 'though the ordinary took the goods, he was in no sense a true representative. He was not liable to be sued [until 1285] nor was he able to sue.' To-day the real and personal estate of an intestate vests, until administration is granted, in the President of the Probate, Divorce and Admiralty Division 'in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary': Administration of Estates Act, 1925, Sect. 9.

3See Littleton, s. 337: 'for that the executors represent the person of their testator', and Holmes, The Common Law, pp. 345, 346.

4Testaments and Last Wills,

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sitions (no longer true) which express what are clearly Roman notions of the will. He says1 that the naming of an executor is essential, 'without which a will is no proper testament, and by the which only the will is made a testament', and again2 he tells us that if an executor is appointed there is a good will even though it contains no dispositions of property. This is the Roman notion of a will and the executor is the heres? All this is gone, but, as we shall see later, some similar things seem still to remain.

The power to refuse the nomination as heres was important, since, up to the time of Justinian, the heres who had once accepted was liable for the debts not merely so far as assets would go, but absolutely. The heres had not always this right. If he was a member of the familia, and in immediate succession, a suus heresy there was no question of acceptance: he was heres whether he liked it or not and whether by will or on intestacy—heres suus et necessarius\ though the Praetor, in view of the hardship resulting where the estate was insolvent, while he could not directly relieve him—since he could not make or unmake a heres— would allow him to abstain, and if he did so, would protect him against actions.4 He was not thereby barred from his civil law right of suing debtors, but to do so would be illadvised, for if he in any way intermeddled with the estate he lost his right to abstain. Abstention left the estate insolvent, to be sold by the creditors with resulting infamia to the memory of the deceased. All this might be avoided by the insolvent if he appointed one of his slaves as heres^ with a gift of liberty. He also would be necessarius, and as the appointment was made in order that the infamia should rest on him rather than on the memory of the deceased, he had no right of abstention, this being the price of his liberty. The Praetor, however, protected him in another

3See also Brooke's Abridgement'. Testaments, par. 20.

4Beneficium abstinendi, Buckland, Text-book, p. 305.

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rule might well have been that he and the heres ab intestato were joint and equal heirs, and there is much dispute as to the origin of the principle, a dispute with which we need not deal.1

When we set out to compare the Roman and the English conceptions of heredttas we are faced with the difficulty that our law has, in fact, no such conception as heredttas. There are rules, formerly very different for real property and for personal property, but now unified, regulating the devolution of property at death, by will or otherwise; we shall, however, look in vain in our modern authorities for any such conception as that of the hereditas as a 'universal succession', an entity created by the death of the de cuius and ultimately merging in the personality of the heres, the actual successor. What traces we do find of this notion in our old authorities are no more than disiecta membra of the Roman law, never more than half assimilated and now quite forgotten. In the new system, under which all the rights and liabilities vest in the executor or administrator, at least in the sense that no title is complete without his intervention, it is possible that some 'concept* may appear of the inheritance as a whole, though our habit of doing without general concepts makes this unlikely. Under Justinian the attitude of the Roman law was very different. The hereditas created by the death of Titius was thought of as an ideal unit, distinct from the elements of which it was composed. It was 'successio in uriiversum ius quod defunctus habuit\z It was a nomen iurisJ* It 'sustinet personam defuncti',4 'personae defuncti vice fungitur'.S It thus connects up the deceased to the heres in whom it ultimately merges and the knot is tied by a remarkable proposition in a novella constitutio of Justinian,6 which says

1 See, for brief discussion and literature, Buckland, Text-book, pp. 2 8 2 sq.

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that by intendment of law the ancestor and the heres have one persona. This last proposition, amplified by the gloss and to be found in treatises on Scots law,1 is certainly not classical: how far the rest is, is much disputed. It is rejected by many on the ground that the jurists, for all their philosophy, never dealt in abstract notions and saw in a hereditas nothing but its elements, though Seneca2 chides the lawyers for supposing that a hereditas is anything more than its content. Others strike out the word universum in Justinian's texts, taking the view that the classics held the hereditas to be the ius of the deceased—his legal position. It seems more likely that the lawyers, passing from the conception of the hereditas as a mere aggregate, which is probably all that Gaius meant by per universitatem 3 (his theoretical views being derived from an earlier writer), would have reached the notion of an ideal unit comprising these rights than that they would have passed without it to the highly abstract notion of a man's legal position as a juristic unit. In any case it is odd to find this sweeping proposition in the Novel when Justinian had recently, by limiting the liability of the heres, deprived the proposition about unity ofpersona of any plausibility it might have had in earlier law.

In fact, all the property did not necessarily vest in the heres except on intestacy. In classical law legacies given in a certain form (per vindicationem) vested directly in the legatees,4 and under Justinian all legacies of property or iura in rem did so; whereas in our law the beneficiary's title in chattels real and personal^ and now in real property6 is not complete till the executor, in whom the property has vested, has assented to the bequest. The Roman rule looks

diately on the death of the testator; but before 1540 they were not direct gifts like the legacy per vindicationem, but channelled through a feoffee to uses.

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as if it might cause inconvenience where the estate was insolvent, but legacies failed in that case and the heresy if in possession, as he would normally be, need not hand them over without security for refund in certain cases of which this was one. Excessive legacies were another such case. In early law there was no restriction and, as Gaius says, the testator might leave everything in legacies, leaving the heres only inane nomen.1 In the Empire, however, they might not exceed three-quarters (with complications we need not consider). Here too they failed pro ratay and the heres could require security for refund if they proved to exceed the lawful proportion.2 Justinian, however, allowed the testator to exclude these restrictions,3 so that in his time again the heres might conceivably get nothing, being purely an executor.

The unlimited liability of the heresy coupled with another point, led to the appearance of an institution in Roman law to which our law hardly affords a parallel. Before accepting, a heres might need time to consider whether he could safely do so. And a heres might be appointed conditionally. In such circumstances, if he was sole heresy there would be a time, possibly long, in which there was for the moment no successor, but only a: hereditas iacens. There were rules limiting the time allowed for deliberation, but no one could tell how long it might be before a condition was satisfied. With us, an executor or administrator, as he runs no risk, can, and usually does, enter on his office at once, and even if, from any cause, there is delay in the grant ofrepresentation, ordinary acts of administration can be carried out before the grant. If a sole executor were appointed under a condition not yet satisfied, it seems probable that the Court would have power to

grant temporary administration, cum testamento annexo, to another person, but this does not seem to occur in practice.

In Roman law nothing of the sort was possible and thus, in

1 G. 2. 224. 2 G. 2. 224/ff. 3 Nov. 1.