Roman law of testate succession: An idiot’s primer
Both Gaius1 and Justinian2 regarded the law of succession as a part of the law of things, in that it was thought to be a manner of acquisition of ownership per universitatem (i.e. in mass), as opposed to the acquisition of singulae res (=a single thing). Therefore, the law of succession was not treated by the Romans as a separate branch of the law. According to our modern way of thinking, the law of succession is about more than merely the acquisition of assets, and also entails the entire procedure according to which the entire estate of the deceased is administrated and wound up. For us it is therefore a more convenient way to deal with succession as a branch of law in itself.
Elsewhere in Roman personhood I have tried to convey the Roman notion that the person was regarded in Roman times as more than just an individual being, but rather as a vehicle of various capacities and competencies, owner of assets and empowered to differing degrees, depending upon his status and class in society. This notion was drawn right through into how Romans dealt with succession. The “cloak” of entire personhood devolved upon the heres (= heir) upon the death of a person. For this reason, it became extremely important for every Roman to execute a will, in order to institute an heir worthy of perpetuating the persona. While Roman law acknowledged that someone could die intestate (= without having executed a valid will), it was regarded as important to ensure that the right person was appointed your heir. Intestate law of succession in Rome is dealt with elsewhere in (at the time of noding this, a forthcoming attraction) Roman law of intestate succession.
Obviously in the case of intestate succession, the deceased had no opportunity of determining what should happen to his assets upon death, or how his estate should be administrated. In the case of intestate succession, the matter was essentially dealt with fairly simply at the most basic level: Everything went to the oldest male child who succeeded as the paterfamilias, and took over the reigns from the deceased. This is not to say that women could never have estates that devolved upon others at death. Women sui iuris (= not under the power of a paterfamilias) were entirely capable of executing wills, and their estates could also devolve ab intestato(= intestate).
As far as we know, the initial will was a verbally executed stated intention before the comitia calata, in terms of which the testator simply formally stated his intention in respect of his estate upon his demise in the comitia curiata (= curiate assembly, the assembly of the people in the form of their 30 curiae, or divisions of the patriciate). In this form the c. curiata was termed the c. calata, probably called this as a result of the sacred function it performed in respect of wills and adoptions (calata from calator, meaning someone in attendance upon a priest). Soldiers on active duty could also make a verbal will called a testamentum in procinctŭ, meaning literally a will made in battle formation ( = in procinctŭ). As writing became the norm for purposes of recording important events and information, both these forms of will disappeared fairly early, although they technically remained possibilities for executing a will until late in the development.
A third form of will also developed fairly early, probably simultaneously with the development of the institution of mancipatio, of which I have also written elsewhere, the testamentum per aes et libram. The estate was symbolically transferred to a trusted person (= familiae emptor (lit. buyer of the family)) by way of the highly formal mancipatio procedure, involving the weighing of bronze (aes, currency) in the scales (libra) in the presence of witnesses. The familiae emptor was formally charged with distributing the assets to the heirs upon the death of the testator. This form of executing a will had fallen into desuetude during the empire.
Written wills (when they came to be) were lodged in the temple of Vesta (the goddess of the home and the hearth) and it was the sacred duty of the priestesses of Vesta, the Vestal Virgins,3 to guard the wills and to bring a will forth upon the death of the testator. The Vestal Virgins tended the sacred fire of Vesta (symbol of the home and more particularly the hearth), and also symbolic of the perpetuation of the persona of the individual.
No will was valid without it instituting the heir (heredis institutio). This was so important because the heir had to see to the perpetuation of the testator’s persona, and the heir so instituted (heres necessarius = necessary heir) had to inherit a minimum portion of the estate, later fixed upon a quarter. It must be emphasized that in most modern jurisdictions only the assets are inherited, and any debts owing at the time of death have to be paid from the estate. Where there is insufficient assets in the estate to cover debts, the estate is simply insolvent. In Roman law, the estate itself was inherited, and any debts not paid from the estate had to be covered by the heres necessarius – not an enviable job where the testator was (for example) a heavy gambler down on his luck shortly before death. For this reason, creditors of the estate could even later demand a guarantee (satisdatio = lit. giving enough) of the heir that he will pay the debts.
Effectively administration of the estate entailed liquidating assets in so far as was necessary to pay any debts, after which any remaining debts were to be paid by the heirs. If sufficient cash was available and all debts paid, the estate first had to pay out specific bequests, after which the heirs got their chance to share in the spoils.
1 Intitutiones II:97.
2 Institutiones 2.9.6.
3 Incidentally the precursor of the later institution in the Roman Church of nuns, who until fairly recently also wore headdresses (wimples) strongly reminiscent of the headdress of the Vestals.