The first requirement of any Roman will of historical times was the appointment of one or more heredes. A heres is a uni versal successor, i.e., he takes over the rights and duties of the deceased (in so far as they are transmissible at all) as a whole. On acceptance, the heir becomes owner where the deceased was owner, creditor where he was creditor and debtor where he was debtor, even though the assets were insufficient to pay the debts. It was thus possible for an inheritance to be damnosa, i.e., to in volve the heir in loss. Until Justinian's day this consequence could only be avoided by not accepting the inheritance, but Justinian made one of his most famous reforms by introducing the beneficium inventarii, i.e., the heir who, within a certain time after the acceptance made an inventory of the deceased's assets, need not pay out more than he had received. In addi tion to appointing an heir, the testator might also leave legacies, i.e., particular gifts which are a burden on the heir. Freedom of testation was, however, not complete, a man being obliged to leave a certain proportion of his property to his children and, in some cases, to ascendants, and brothers and sisters.
II. Intestate Succession.—The history of intestate succession consists broadly in the gradual supersession of a purely agnatic system (i.e., one which takes account of relationship through males exclusively) by a cognatic system (in which relationship is traced indifferently through males or females). The agents in the change were first the praetors and afterwards imperial legis lation.
By the XII. Tables those first entitled were the sui heredes of the deceased, i.e., those who were in his potestas or menus when he died and became free from power at his death. Failing these, the nearest agnatic relation (or relations, if there were several of the same degree) succeeded, and, if there were no agnates, the members of the gees (clan) of the deceased. Praetorian reforms placed emancipated children on an equality with sui and gave to the nearest cognates, or failing such, to the surviving spouse (in marriage without menus) rights of succession. in the absence of agnates; gentile succession became obsolete probably in the first century A.D. Even under this system it will be seen that a woman would not succeed to a child of hers if any agnate (e.g., a paternal uncle) were alive, nor a child to its mother if there were any agnate of hers. Both these cases were dealt with before the end of the classical period, the former by the Sc. Tertullianum (un der Hadrian) which gave certain rights of succession to mothers who had the ius liberorum (i.e., had borne three children) and the latter by the Sc. Orphitianum of A.D. 178, which gave to children the first right to succeed to their mothers. Succeeding emperors made many changes but it was not until Justinian's day that the cognatic system completely triumphed. By Novel 118, completed by Novel 127, a new system was introduced, the, principal features of which were the following : Descendants had the first claim, and failing these, a composite class consisting of ascendants, brothers and sisters of the full blood, and children of deceased brothers and sisters. Next came brothers and sisters
of the half blood and finally the nearest cognate or cognates if there were several in the same degree.
Husband and wife were not mentioned, but their old (prae torian) rights were kept alive in the absence of any of the above categories. Justinian also gave to the poor widow a right to one quarter of her husband's estate unless there were more than three children, in which case she shared equally with them. If, how ever, the heirs were her own children by the deceased, she only received the usufruct (life interest) in what she took.
The earliest form of procedure known to have existed is that of the legis actiones; this was superseded by the formulary sys tem, which in its turn, gave way to cognitio extraordinaria. Char acteristic of both the earlier systems is the division into two stages, a preliminary one before the jurisdictional magistrate (in lure) and the actual trial before the index. The object of the first stage is to arrive at an issue, which under the legis actio system has to be achieved by the speaking of set forms of words by the parties and sometimes, at least, by the magistrate. Thus in a vindicatio (v. supra) each party, when making his assertion of ownership grasps the thing in dispute and lays a wand on it, after which the magistrate intervenes and says "Let go both of you." So formal was the procedure that a plaintiff who made the slightest mistake lost his case. For this state of affairs the formu lary system provided a remedy. It superseded the older system, so Gaius tells us, as a result of the lex Aebutia (date much dis puted, perhaps between 149 and 126 B.c.), and two leges Iuliae (of Augustus). Between the lex Aebutia and the leges Iuliae the two systems were both in use.
Under the new procedure the issue was formulated in written instructions (formula) to the index, couched in the form of an alternative, e.g., "If it appear that the defendant owes the plain tiff ten thousand sesterces the index is to condemn the defendant to pay the Plaintiff ten thousand sesterces ; if it does not so ap pear, he is to absolve him." A draft of the formula was probably prepared by the plaintiff before he came into court, but there could be no trial until it was accepted by the defendant ; for there was always a contractual element about a lawsuit under both older systems. Pressure could, however, be exercised by the magistrate on a defendant who refused to accept a formula of which the magistrate approved, just as a plaintiff could be forced to alter a formula of which the magistrate disapproved, by the magistrate's refusal to give his order to the index to decide the case unless the alteration were made.