Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
.pdfl66 UNIVERSAL SUCCESSION
array of opposing texts but few are in point and the glossators and the commentators had no difficulty in explaining these away. It is clear that testators or their lawyers were alive to the point and habitually used such expressions as 'qui meus erit' to show that the gift was to cover future acquisitions.1 Our modern rule was not quite new in the Wills Act. Swinburne2 indeed lays down the opposite, the Roman rule, but with many exceptions, and it is clear that long before the Wills Act the modern rule was applied to general gifts of personalty or of classes of things, though not to general gifts of real property.3 It is curious that the non-Roman rule should have been first applied to the kind of gift which had been administered by the ecclesiastical courts.
The Roman law as to lapses in joint legacies was extremely complex for reasons into which we need not go.4 But it may be noted that where there was a gift to a class there could be no lapse into the residue, i.e. to the heres. For no gift vested till the testator's death or later, and in principle all gifts failed if the beneficiary died before the testator, the result being that those who survived him constituted the class. This reaches by a different road the result attained by our law, in 'joint' gifts, by the rule of survivorship and in the case of gifts 'in common' by adopting a construction of such words as ' the children of X\ based apparently on the principle that a will speaks from death for this purpose also.5
1 E.g. D. 10. * Op. cit. p. 512.
3Jarman, Wills', 8th ed. pp. 419-423. The reason for the rule governing general gifts of realty was that before 1540 there could, in general, be no wills of realty without a previous feoffment to uses; and a person could enfeoff another of only such realty as he had at the time of feoffment.
4See Buckland, Text-book, pp. 337sqq.
5Jarman, Wills, 8th ed. ch. xlvi.
FREEDOM OF TESTATION |
167 |
6. FREEDOM OF TESTATION
The absolute freedom of testation which was until recently permitted by our law,1 but has been qualified in many common law jurisdictions and now by us,* is not found in the classical Roman law. It is possible that in very early times there was no power of appointing a heres by will if there existed direct successors (sui heredes); but, however this may be, and though Gaius describes these heredes as domestici heredes with a sort of shadowy condominium, so that they are in a sense heredes to themselves,^ it was always possible for the testator to exclude them by his will, by using prescribed forms of exheredatio, and to appoint other persons as heredes. If he failed to insert the form, and simply omitted the descendant, the will might be in some cases set aside, in others modified. Further, though at civil law this applied only to descendants actually within the family group, the Praetor extended similar rights with some modifications to issue who had passed out of the family by emancipation. It will be seen that this restriction could always be met by using the proper forms. The testator's freedom went further; for whether he appointed sui heredes or extranei as heredes it was possible for him to give the whole estate to other persons by way of legacy, leaving to the heres only the inane nomen. This freedom was not effectually checked till just at the end of the Republic, when a lex Falcidia limited legacies to three quarters of the estate, or, since particular legacies could be charged on individual heredes, three-quarters of the share taken by that heres* But in the Empire there was a change. Under the system of the querela inofficiosi testamentis the origin of which is obscure, a will could be set
1 |
The ancient local customs to the contrary mentioned by Blackstone |
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(2. 518) being now extinct. |
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2 |
Inheritance |
(Family Provision) Act, 1938. See also Matrimonial |
Causes (Property and Maintenance) Act, 1958, s. 3. |
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3 |
G. 2. 157. |
4 G. 2. 244 sqq. |
l68 UNIVERSAL SUCCESSION
aside if it did not make a certain minimum provision for those who would have been entitled on intestacy, unless good ground could be shown for the omission. This was at first confined to sui heredes and emancipate etc., grouped with them by the Praetor, but the classes who could claim were gradually extended to include ascendants and brothers and sisters, where they would have been entitled on intestacy.1 But there was another historical factor. Trust bequests,fideicommissa,were free from a number of restrictions which affected legacies, and the lex Falcidia did not apply to them. Thus when they were introduced at the beginning of the Empire, a testator could again give
away all the property by Jideicommissum^ leaving to the heres only the inane nomen. But by senatusconsulta of the second century, especially the Sc. Pegasianum, this too was checked, and such gifts were limited to three-quarters, like legacies. So, with only slight modifications, the system remains in the law of the Corpus Juris. But very soon after the publication of the Digest2 Justinian made an alteration which must, it seems, have practically destroyed it. He allowed the testator to insert a clause excluding the operation of the Falcidian and the Pegasian.
7. REVOCATION
By our modern law a will is ipso facto revoked by the marriage of the testator^ unless it is * expressed to be made in contemplation of a marriage'.4 But it was an obvious result of the conception of marriage in the Roman Empire,
1Buckland, Text-book, pp. 327 sqq. Our law has taken the opposite course, for such restrictions as formerly existed in favour of widow and children have long since disappeared, and even the Inheritance (Family Provision) Act, 1938, gives the dependants a right, not to a fixed share, but only to such provision as the Court, in its discretion, may allot.
2Nov. 1 A.D. 535.
3With an exception unimportant for our purpose, Wills Act, 1837, sect. 18.
4Law of Property Act, 1925, sect. 177.
REVOCATION |
169 |
as not affecting the financial relations or the status of the parties, that a marriage of the testator had no effect whatever on his or her will—in law they still continued for most purposes to be strangers. The birth of children, however, which has no effect on a will under our law, while it did not of itself revoke a previously made will, would under the rules of exheredatio just mentioned be extremely likely to cause it to be set aside; though this could in fact be prevented by previous precautions, by instituting or disinheriting children yet unborn, postumi.1 The formal will of classical law, owing to its basis as a mancipatiofarniliae, itself an irrevocable act, was revocable expressly only by making another will. But the Praetor intervened in this field, in a way totally unknown to our English equity. He gave validity for the purposes of his praetorian remedies (bonorum possessio) to a will executed with the substantial safeguards of the mancipatory will but not complying with the idle formality of mancipatiofamtliae^ and the praetorian will was revocable. How far his protection of the praetorian will and his rules as to revocation, which applied also to the mancipatory will, were less effective than the civil law rules we need not here consider; for the praetorian rules both of testation and of revocation were, with a good deal of statutory modification, the basis of the rules of Justinian's law.
In that law as in ours a will may be revoked by making a later one. But there is a considerable difference. A Roman will was essentially the appointment of a heres and it must be made uno contextu. It follows that any later will containing an appointment of a heres^ which could conceivably take effect, revoked any earlier will whether the later will actually operated or not.2 In our law a later will revokes the earlier only if it does so in express words or it is in the opinion of the Court so inconsistent with the other
1 |
For details see Buckland, Text-book, pp. 323 sqq. |
2 |
D. 28. 2. 9. See Buckland, Text-book, p. 332. |
I7O UNIVERSAL SUCCESSION
that it is intended to revoke it.1 Our law admits of partial revocation, with the result that a number of instruments of the same or different dates may together constitute the testator's 'last will'.* This is impossible in Roman law, but here the difference is not so great as might appear. It was practically true only so far as the institutio heredis was concerned. The whole hereditas must be conferred by the one instrument. But it was possible to make codicilli which did not need to be executed with the forms of a will, and, by these, trust bequests (fideicommissd) could be added, removed or varied. And if the will contained any provision confirming codicilli, not only jtdeicommissay but any provision not amounting to a direct gift of the hereditas, could in the same way be added, removed or varied.
The Wills Act also provides that a will may be revoked by 'some writing declaring an intention to revoke the same', which however must be executed with the forms of a will, though it will not of itself operate as a will unless it in some way purports to be a will.3 Justinian provided that, after ten years, a will could be revoked by declaration in Court or before three witnesses. The ten-year limit is what he leaves of an extraordinary enactment of the fifth century by which all wills were ipso facto revoked by the lapse of ten years. He also preserves a rule of the fifth century that if a document purports to be a will, but the formalities are not complied with, it will still suffice to revoke an earlier will if five witnesses are prepared to swear to its genuineness, provided that the heredes under the second will are entitled on intestacy and those under the first will are not.4
1 Dempsey v. Lawson (1877), 2 P.D. 98; Re Hawkslefs Settlement,
[1934] Ch. 384.
2 Townsendv. Moore, [1905] P. 66 (C.A.); Re Howard, [1944] P. 39.
3Wills Act, 1837, sect. 20; In the goods ofFraser (1869), L.R. 2 P. and D. 40; In the goods of Huhbard (1865), L.R. 1 P. and D. 53.
4 C. 6. 23. 21. 5; h.t. 27. 2.
REVOCATION
The Wills Act also provides that a will is revoked by burning, tearing or otherwise destroying with intention to revoke.1 As we have seen this would not have affected a mancipatory will at civil law, but the Praetor took a different line, and Justinian, in his fusion of praetorian bonorum possessio and civil hereditas, adopted the praetorian rules. If the testator had intentionally torn up or burnt or cancelled the material parts of the will, the Praetor would refuse claims under it and would give his remedies, bonorum possession to those otherwise entitled.2 In one important respect, however, the rules were different from ours. The Wills Act provides that a will once revoked cannot be revived otherwise than by re-execution or by some document executed like a will and showing intention to revive the will,3 so that the effect of a mere revocation is necessarily
to introduce intestacy. The Roman rule was not so rigid. If the revocation was shown to be with intent to revive the earlier will, this was revived. The rule was much the same in our law before the Wills Act.4
There is a further difference. Our law requires a real act of destruction. There must be an actual destruction of what it is intended to revoke, so that mere cancellation of a provision, however important, is not revocation, even partial. But in Roman law cancellation of the name of the heres is given as an illustration of effective revocation, but only praetorian at first.* Rescripts of the second century treat it not exactly as a revocation, but as a forfeiture, though it is not always clear whether it goes to the Fiscus,
as forfeited for indignitas^ or as a caducum under the leges caducariaef* If it was the only heres the will would be destroyed, subject to sporadic imperial reliefs into which
1 Wills Act, 1837, sect. 20.
2G. 2 . 151,151a;D . 3 8 . 6 . 1 . 8; 28 . 1 . 22 . 3; 3 7 . 1 1 . 1 . 1 0 ; C . 6 . 2 3 . 30.
3Wills Act, 1837, sect. 22.
4 |
Jarman, Wills, |
8th ed. p. 207. |
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5 |
G. 2. 151; D . |
3 8 . 6 . |
1. 8. |
6 |
D . 34. 9. 12; 34. 9. |
16. 2; cf. C. 6. 24. 4; 6. 35. 4. |
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172 UNIVERSAL SUCCESSION
we need not go. If there were other heredes, subject to what has been said, the intentionally deleted part would be taken, in later law, as unwritten, and the share would accrue to the others. On the same principle, any other provision intentionally deleted by the testator, or at his orders, was ignored. An unintentional deletion was itself ignored and the provision remained valid if it could be proved, as to which it seems that any evidence could be brought. Here too, except on the question of evidence, our older law may have been the same.1 But section 21 of the Wills Act, 1837, provides that, except so far as the words or effect of the will before the obliteration shall not be apparent, no obliteration after the will was executed shall have any effect, unless itself executed like a will, so that if the words of the will can still be read the provision is valid, whatever the intention of the testator.
One cause of failure of a Roman will is without parallel in our system. As we have seen, a testator was bound either to institute or to disinherit all his children.2 Thus children born after the will was made (postumi) would necessarily upset it in early law. This was gradually remedied, partly by leges, partly by the Praetor, partly by juristic interpretation, the general upshot being that the failure could be avoided by anticipatory institution or disherison ;3 the only thing we need note is that in these rules there is a difference between the treatment of males and of females. But these changes did not affect the case of persons brought artificially into the family, by adoptio, anniculi probatio or the like, and these necessarily destroyed the will, till, late in the classical law, the rule appeared
that |
anticipatory institutio of such |
persons |
would save |
the |
will. Anticipatory exheredatio |
would |
not: for such |
persons it was meaningless. |
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1 |
Jarman, Wills, 8th ed. pp. 173 sqq. |
2 P. 167, ante. |
3 |
For details see Buckland, Text-book, pp. 323 sqq. |
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RESTRICTIONS |
173 |
8. RESTRICTIONS AS TO REMOTENESS, UNBORN
BENEFICIARIES, ETC.
The restriction on testation which we have already mentioned, together with the fact that, throughout most of the history, it was impossible to make a gift by will to anyone who was not at least in utero at the time when the will operated, left the Roman testator little power of * tying up* his property. But the desire to exercise power after his death was as strong with him as it is with us, and what he could do, he did. There was indeed no rule against perpetuities, no express rule against remoteness, though we shall see something like it. The testator could appoint as heredeS) or give legacies to, unborn issue of his own and, by praetorian and later law, unborn issue of other people (postumi extranet)^ in as remote a generation as he liked, but the gift would fail if the beneficiary was not conceived when the will operated. But when, under Augustus, trust bequests (^fideicommissa) were introduced, these were subject to none of the restrictions about incertae personae and postumi and it at once became possible to give successive fideicommissa in such a way as to constitute a perpetuity. We have indeed a will of A.D. 108 which creates such a perpetuity.1 Not long after this, however, Hadrian forbadefideicommissain favour of incertae personae? Another device of testators was to forbid the heredes to alienate, but Severus and Caracalla declared such a prohibition to be void, as a nudum preceptum^ unless it was coupled with a fidekommissum of the property in favour of some person.3 A usual form of suchfideicommissaseems to have been: *ne fundum alienaret et ut in familia relinqueret'.4 Such
a direction was understood in the later classical law to extend to those alive at the death of the testator and their
1 |
Testamentum Dasumii, Bruns, Fontes Iuris, 7th ed. i. p. 307. |
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2 |
G. 2. 287. |
3 D. 30. 114. 14. |
4 |
D. 30. 114. 15. |
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174 UNIVERSAL SUCCESSION
immediate issue, but no further.1 The rule, thus modified, while it ignored to this extent the old principle which required that beneficiaries should be born or in utero at the time when the will operated, rendered it impossible to make a gift to issue of an unborn beneficiary, a rule somewhat like that in Whitby v. Mitchell? It is true that some texts say that there could be afideicommissumon the heres heredis^ but there is nothing in the illustrations given to suggest that this could be in favour of remoter generations.
Under Justinian there were great changes. The text which establishes the limits of the familial says that the testator can extend this, but it is plain that these words are an addition by the compilers. They seem to give effect to an enactment by Justinian which allows gifts to incertae personae^ the primary purpose of the enactment having probably been to facilitate gifts to charities, the more farreaching effects not having been contemplated. Perpetuities at once became possible and were created. A case is recorded in a Novel of Justinian6 which drew his attention to the undesirability of such things, for, besides deciding the actual case, he provides that such things are to be good in future for only four generations, a sufficiently long term. This became the. rule in the fideicommissary substitutions of medieval law, and it was operative over a great part of Europe till modern times.7 It may indeed have had repercussions in our own law. For, in view of the fact that judges were commonly clerics and therefore canonists and civilians in some degree, it is at least a
1 |
D. 31. 32. 6. |
2 (1890), 44 Ch.D. 85. |
3 |
D. 32. 5. 1 and 6. pr. |
4 Cf. note 1, supra. |
5 |
C. 6. 48. 1. |
6 Nov. 159. |
7 |
It is still the law in South Africa, though there an absolute perpetuity |
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can |
be created if the testator |
expressly overrides the rule. See Lee, |
Introduction to Roman-Dutch Law, 5th ed. pp. 384-386. For the French position, see Amos and Walton, Introduction to French Law, 2nd ed. pp. 129—136; for the German, see Schuster, Principles of German Civil Law, pp. 607—608.
RESTRICTIONS |
I75 |
possible source of the rule in frankmarriage that the land is free of services for four generations, and, through this, of the original plan of the statute De Donis which, according to Bereford C.J., as recorded in Belyngs Case, seems to have been to allow the tying up of property for four generations.1
The question, how far the succession could be secured for later generations, is distinct from that of how far such dispositions made the property inalienable. Our own law has dealt with the matter in a series of statutes, dealing with settled property in such a way that there is almost always a power of alienation of the actual property, the proceeds of any sale being preserved to the intended beneficiary. The classical Roman law on this matter is not well known, but the rule seems to have been the very modernlooking one that the alienation was prima facie valid, but the beneficiary under the trust could get it set aside by missio in possessionem, as against a buyer with notice.* And if there was also an express prohibition of alienation, the sale was absolutely void unless it was for payment of the testator's debts.3 Justinian abolished the old rules: under him it is clear that property subject to legacy or fideicornmissum could not be alienated as against the beneficiary. Any such alienation was void, whether the intended assignee had notice or not, if the legacy or fideicommissum was unconditional, and was subject to a resolutive condition if the gift was conditional.4 Thus the law as Justinian left it was without any of the reliefs which our law has found it necessary to introduce.
1Year Book, 5 Ed. II, Easter Term, Selden Society, Tear Books Series,
xi.pp. xxv, 176. But as to other possible sources, which need not however be independent, see ibid. p. xxviii. See also Plucknett, Legislation of Edward I, pp. 125-135. For a somewhat fuller account of the Roman
story, see Buckland, Equity in Roman Law, pp. 83 sqq., from which much of the foregoing is taken.
2P. Sent. 4. 1. 15; cf. D. 43. 4. 3. pr. For a general discussion of this technique, see p. 84, ante.
3C. 4. 51. 7; 7. 26. 2; D. 32. 38. pr., etc.
4C. 6. 43. 3. 2a and 3. Further details, Buckland, Equity, cit.