TITLE XXI.—OF THE REVOCATION (ademptione) AND THE TRANSFER

OF LEGACIES.

LEGACIES were revoked by the mere will of the testator; whereas the appointment of a hæres can only be revoked according to legal forms (p. 151). Revocation is express when the intention to revoke is stated in terms, or implied when proved by circumstances.

The mere sale of anything bequeathed is not such a circumstance as of necessity implies the revocation of a legacy, for a testator may bequeath the property of another (1); therefore, besides the sale, there must be the intention to revoke (2). Thus, a legacy continues valid if the testator has sold, not voluntarily, but from necessity. What is true as to the alienation of a thing bequeathed is also true of a thing pledged: for there is no revocation, unless such be the testator's intention.-But whenever part of a thing bequeathed has been alienated or pledged, the legacy holds good for the residue (B. 2, t. 20, § 12).

An implied revocation was not valid by the Civil Law (ipso jure); but the action by the legatee was repelled by the exceptio doli allowed by the prætor to the hæres.

Pr. An express revocation was made either by the testament which contained the legacy, or by a subsequent codicil. By the old law, the revocation was required (3) to be in terms the direct contradictory of those giving the legacy (do, lego; non do, non lego); and in this respect legacies differed from fideicommissa, which might be revoked by any words. Justinian assimilated legacies to fideicommissa, and so made a legacy revocable by any words.

Again, the revocation might be conditional; in which case the legacy was, in fact, a conditional one-the condition being just the reverse of that on which the revocation depended. But the Catonian rule still applied (p. 163); for a revocation, though it might curtail, could never increase the chances of the legatee.

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§ 1. A testator might transfer a legacy from one person to another, thus I bequeath the slave Stichus, whom I have bequeathed to Titius, to Seius. Legacies were transferred either by the same testament or by a subsequent codicil.

(1) It is clear that, by the old law, a legacy per vindicationem was null, if the thing bequeathed did not form part of the testator's estate at his decease.

(2) Hence a legacy would be revoked if such were the testator's intention, by alienation, although the alienation were void,

and although the article alienated were repurchased.

(3) At least by the Civil Law; for the Prætor allowed the hares the exceptio doli, though the revocation was not strictly formal.

The effect of transferring a legacy was this: The first legacy was annulled, and a second was created-both effects being independent of each other. Thus, although the revocation of the first legacy was void, e.g., by the premature death of the legatee, the second legacy might be valid; so also the invalidity of the second legacy did not prevent the revocation of the first.

TITLE XXII.-OF THE LEX FALCIDIA.

Pr. By the Twelve Tables, the testator might exhaust the whole of his estate (patrimonium) in legacies. In this respect he had absolute power, for the Twelve Tables said, uti legassit suæ rei, ita jus esto.

Pr. This gave rise to inconveniences which required a remedy. The hæredes instituti having no interest in accepting a hæreditas if exhausted by legacies, frequently renounced it, so that the testator died intestate and the legacies were void. A remedy was therefore required, for the sake even of testators themselves. Hence the Lex Furia (1), which forbade almost every one to receive by legacy or donatio mortis causâ more than 1000 asses. But this law failed; for a testator, by multiplying the number of legatees, might still exhaust the whole of his estate. Hence the Lex Voconia, which prohibited the testator bequeathing to any one more than the sum left to the hæredes instituti. But this law also failed; for by distributing his goods amongst a great many legatees, none of whom received more than the institutus, the testator had the means of indefinitely diminishing the benefit attached to a hæres insti tutus. Then came the Lex Falcidia (A.U.C. 714), by which a testator was prohibited from bequeathing in legacies more than three-fourths of the hæreditas, so that the hæredes together, whatever their number (sive unus hæres sit, sive plures), should have one-fourth of the testator's goods. This reserve-sum was called, after the law which created it, quarta Falcidia, or the Falcidian fourth.

§ 1. If there were several hæredes instituti or successors appointed by testament, each was entitled to one-fourth of his portion of the hæreditas, without regard to the legacies charged upon the other instituti. Thus, suppose the testator appointed two hæredes, Titius and Seius, and exhausted or charged to excess the portion of Titius, without charging Seius at all, Titius was entitled to retain, out of the legacies with which he was personally charged, as much as would secure him in

(1) The lex Furia testamentaria (which must not be confounded with the Lex Furia or fusia Caninia, restricting the freedom of testamentary enfranchisement (B. 1, t.

7) was passed A.U.C. 571, and the Lex Voconia A.U.c. 585, on the proposal of the tribune Voconius Saxa.

one-fourth of his portion, which was in this case a moiety of the hæreditas; nor did it matter that Seius had the fourth of the whole hæreditas, for the calculation of the Falcidian law applied to each hæres separately. But when two portions of the hæreditas, the one surcharged with legacies, the other not charged at all, or charged with less than onefourth, were united by the effect of the jus accrescendi, there was a distinction in the manner of applying the Falcidian law. If the portion charged with legacies accrued to the portion not charged or undercharged, the fourth was deducted from each portion; but if the portion not charged at all or undercharged, accrued to the portion surcharged, the fourth was deducted from the whole, for this was a clear benefit to the portion charged. Gaius says (D. 35, t. 2, § 78), that in this last case adjuvari legatarios per deficientem partem quia ea non est legatis onerata.

It is important to understand the reason why the Roman lawyers held that the Falcidian law must be applied to each portion separately. It is to be remembered that when one portion of an hæreditas accrued to another portion it accrued discharged from all legacies or incumbrances. Hence if one of the hæredes instituti did not accept his portion which accrued to the other portion, the legacies charged upon the accruing portion were extinguished. It was important, therefore, for the sake of the legatees themselves, to induce all the hæredes instituti to accept the hæreditas. For this purpose it was necessary to secure to the hæredes some portion of the hæreditas, and the lex Falcidia was applied in singulis hæredibus. This rule survived the inconvenience it was invented to remedy; for a rescript of Severus and Antoninus made substituti subject to the same charges to which the instituti were subject, and accruer was regarded as a sort of substitutio (D. 31, 61.) hic (cui portio jure accrescendi acquisitur) quasi substitutus cum suo onere consequetur accrescentem portionem.

Now, if there were two hæredes instituti, and if the overcharged hæres renounced, the two portions united by accruer still formed two distinct portions for the purpose of applying the lex Falcidia. Before this rescript of Severus and Antoninus several jurists adopted this .view (D. 35, t. 2. 78, 1, § 14.), in order to prevent the legatees losing everything by an accruer which would have had the effect of extinguishing the legacies charged on the accruing shares. After the rescript the share surcharged, as it accrued burdened with legacies, accrued also with all the rights and privileges which went to diminish the burden.

But the same reasoning does not apply to the share of an hæreditas which we have supposed to be intact and unburdened, when such unburdened portion was vacant and then accrued to the portion overcharged, the hæres profited by it as he would have profited by a renounced legacy, or by the portion of an hæreditas to which he was called con

ditionally when the fulfilment of the condition led to its being confounded with the other shares or portions (D. 35, t. 2, 78. Quia et legata quæ apud hæredem remanent (velut inutiliter relicta) efficiunt ut cæteris legatariis aut nihil aut minus detrahatur. D. 35, t. 2, 1, § 13. Id quod ex substitutione cohæredis ad cohæredem pervenit proficit legatariis). The Falcidian fourth is deducted from the whole hæreditas, when the different portions are united in the same person by a substitutio.

§ 2. In order to calculate whether the legacies exceed three-fourths of the sum total of the hæreditas, it must be valued. Now the sum total is made up of everything corporeal and incorporeal included in the hæreditas at the testator's death. Debts due to him are valued as assets according to the solvency of his debtor. Debts due on a condition are valued at the sum for which they may be sold. To these are added all debts from which the hæres, as debtor to the deceased, is discharged by the confusio arising from the hæres being also debtor.

The various items of this sum total are to be reckoned at their fair value, taking as the basis their condition and price at the testator's death.

§ 2. No account was taken of the changes which might have affected the hæreditas, by way either of increasing or diminishing its value since the testator's death. Hence the legacies must be reduced if they were such as to exhaust the hæreditas at the testator's death, though it may be afterwards so much increased by acquisitions made through slaves of the hæreditas, or by the increase of animals, &c., that the hæres may have his fourth, even after deducting the whole of the legacies. On the other hand, the legacies must be paid in full unless they exceed threefourths of the hæreditas at the testator's death, whatever losses such hæreditas may afterwards sustain (1). Observe, however, that the hæres by renouncing annuls the testament and all the legacies incident to it, and thus the legatees are interested in arranging with the hæres institutus when the goods have been deteriorated before the hæreditas has been accepted, so as to prevent the hæres renouncing the hæreditas (2) as unprofitable.

§ 3. Before, however, calculating the Falcidian fourth, certain deductions ought to be made from the sum total of the goods; that is to say, the debts of the deceased (3), the funeral expenses, and the value of the slaves enfranchised, and of those whom the hæres is bound to enfran

(1) But, if a specific Thing bequeathed to a legatee has been lost by accident, the hæres is not bound to pay him its value.

(2) When the hæredes instituti, being also hæredes legitimi, renounced the appointment in order to take the succession

ab intestato, and to relieve themselves from executing the intentions of the deceased, the prætorian law allowed the legatees and fideicommissarii an action against them (B. 3, t. 11; Nov. 1, c. 1).

(3) Bona intelliguntur quæ deducto ære alieno supersunt.

chise. The residue forms the net sum out of which the hæres retains one-fourth. If the legacies exceed this net sum we must first deduct the excess, and then make the Falcidian reduction. Such reduction affects all the legatees indiscriminately, in proportion to the value bequeathed to each of them (1).

The sums received by the hæres institutus from the testator, except those received by him as hæres, are not reckoned part of this Falcidian fourth. It includes neither gifts made to the hares during the testator's life, nor legacies, nor trusts (fideicommissa), made in favour of the hæres, so far at least as regards the sum to be contributed by his cohæredes; for as to the portion of the legacy with which the hæres has to supply himself, such portion becomes part of the share to which he is entitled as hæres, and is received by him as such.

It must be understood that the lex Falcidia did not reduce the legacies directly. It simply entitled the hæres, if in possession of the goods, to set up the exceptio doli against the legatee, to the value of the fourth; and in case the legatee detained the thing bequeathed, because, perhaps, the testator might have placed it in his hands as a deposit or commodatum (loan), the hæres might demand it back, or even bring an action in rem for that portion of it which he was entitled to deduct.

According to the old law, if a hæres discharged the legacies without claiming the benefit of the lex Falcidia, he could not by action claim. back the sum paid in excess of the three-fourths, or anything paid by mistake, even though it had not been due. Fideicommissa, however, discharged by mistake, might be claimed back. After legacies were assimilated to fideicommissa, it is probable that (by the Constitution of Gordian (C. vi. 50, 9), as to fideicommissa) the hæres might claim back anything paid, through a mistake in fact, to the legatee if it was not due, but he could not claim back anything paid knowingly or through an error of law.

The Falcidian law was not applicable to the testaments of soldiers (D. 35, 2, 17).

Before the Novella of Justinian, the testator could not forbid the fourth being retained: even renunciation by the hæres, before the testator's death, of any benefit under the lex Falcidia was void. But by Nov. 1, c. 2, § 2, the Falcidian fourth could not be retained when the testator so expressed his intention; and even when the testator did not directly prohibit its being retained, the hæres could not retain it unless he had made an inventory, because it was presumed that there would have been no necessity for applying the Falcidian law unless something had

(1) But there are exceptions, as when the testator directs an addition to be made to a legacy of that by which it is reduced;

the whole reduction is, in such case, to be made from the other legacies.