A legacy; a term of Roman law defined in the Digest (31, 1, 36), as donatio testamento relictai. e. a legatum implies a formal testament and universal succession. A legacy could only be given in the Latin language. If given unconditionally, it was said to be given pure; if otherwise, sub condicione.
There were four forms in which a legacy could be left: per vindicationem, per damnationem, sinendi modo, per praeceptionem.
A legatum per vindicationem was given in these words: Hominem Stichum do, lego, or the words might be with reference to the legatee, Capito, sumito, sibi habeto. A legatum per vindicationem was so called with reference to the legal means by which the legatee asserted his right to the legacy against the heir or any possessor, which was by a vindicatio (q. v.) or an actio in rem (see Actio); for as soon as the hereditatis aditio had taken place, the legatee had the quiritary (ex iure Quiritium) ownership of the legacy. If the same thing was given to more than one person, either jointly (coniunctim), so as to make them collegetarii, or severally (disiunctim), each took an equal share. A legatum was given coniunctim, thus: Titio et Seio hominem Stichum do, lego; disiunctim, thus: Titio hominem Stichum do, lego; Seio eundem hominem do, lego. If one collegatarius failed to take, his portion went to the others.
The formula per damnationem was this: Heres meus Stichum servum meum dare damnas esto; but the word dato was equally effective. A thing which belonged to another (aliena res) could be thus left, and the heres was bound to procure the thing for the legatee, or to pay him the value of it. A thing not in existence at the date of the will might be left by this formi. e. the future produce of a female slave (ancilla). The legatee did not acquire the quiritary ownership of the legacy by virtue of the hereditatis aditio; the thing still remained the property of the heir, and the legatee could only sue for it by an actio in personam. If it was a thing mancipi, the legatee could only acquire the quiritary ownership of it by mancipatio or in iure cessio from the heir; if it was merely delivered, the legatarius only acquired the complete ownership (plenum ius) by usucapion (q. v.).
The form of legacy sinendi modo was Haeres meus damnas esto sinere L. Titium hominem Stichum sumen sibique habere, [p. 931] by which formula the testator could bequeath anything that belonged to himself or to his heir, at the time of his decease; and as in the previous case, the legatee had merely an actio in personam against the heir, though it was doubted whether the form of bequest imposed any active duty on the latter, it being argued that his only obligation was to allow the legatee to take the object bequeathed to him.
The legatum per praeceptionem was in this form: Lucius Titius hominem Stichum praecipitoi. e. take first. The Sabiniani were of opinion that a legacy could only thus be left to one who was also made an heir; but a senatus consultum of Nero made the legacy good, even if it was thus left to another than the heir, provided the legatee was a person to whom a legacy could be left in any of the three other modes.
By the Twelve Tables, a man could dispose of his property as he pleased, and he might exhaust (erogare) the whole hereditas by legacies and bequests of freedom to slaves, so as to leave the heir nothing. The consequence was that in such cases the heirs refused to take the hereditas, and there was, of course, an intestacy. The first legislative measure on this subject was the Lex Furia Testamentaria (B.C. 183), which did not allow a testator to give as a donatio mortis causa or as a legacy more than a thousand asses to one person, certain relatives excepted. But this measure did not prevent a man from giving as many several thousands to as many persons as he pleased, and so exhausting his estate. The Lex Voconia (B.C. 169) afterwards enacted that no person should take, by way of legacy or donatio mortis causa, more than the heirs (severally, as it seems); but this was also ineffectual; for, by distributing the hereditas among numerous legatees, the heir might have so small a portion as not to make it worth his while to assume the burdens attached to the inheritance. The Lex Falcidia (B.C. 40) at last took away all means of evasion by declaring that a testator should not give more than three fourths in legacies, and thus a fourth was secured to the heir. The Lex Falcidia applied to the wills of persons who died in captivity (apud hostes), for a previous Lex Cornelia had given to the wills of such persons the same force as if they had died cives.
Legata were inutilia or void if they were given before an heir was instituted by the will, for the will derived all its legal efficacy from such institution; there was the same rule as to a gift of freedom. It was void if in form the gift was given after the death of the heir, but it might be given on the event of his death; it was also void if given in form on the day before the death of the testator. A legatum could not be left in the way of a penalty (poenae nomine)that is, for the purpose of compelling the heir to do, or restraining him from doing, any particular act. A legacy could not be left to an uncertain person (incerta persona). The notion of an uncertain person was not of a person who could never be ascertained, but the notion of the uncertainty was referred to the mind of the testator at the time of making his testament. Accordingly, the person was not considered uncertain where he was one of a certain class, such as cognati, though the individual of the class might be uncertain till the event happened which was to determine who out of the class was intended by the testator. Such a form of bequest was called a certa demonstratio incertae personae. A legacy could not be left to a postumus alienus, nor could such a person be a heres institutus, for he was an incerta persona. It has been explained elsewhere who is a postumus (see Testamentum); a postumus alienus is one who, when born, cannot be among the sui heredes of the testator.