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DE FIDEICOMMISSARIIS HEREDITATIBVS. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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DE FIDEICOMMISSARIIS HEREDITATIBVS.
§ 246.Nunc transeamus ad fideicommissa.
Inst. 2, 23 pr.
§ 247. Et prius de hereditatibus uideamus.
Inst. l. c.
§ 248. Inprimis igitur sciendum est opus esse, ut aliquis heres recto iure instituatur eiusque fidei committatur, ut eam hereditatem alii restituat; alioquin inutile est testamentum in quo nemo recto iure heres instituitur.
Inst. 2, 23, 2.
§ 249. Verba autem [utilia] fideicommissorum haec [recte] maxime in usu esse uidentur peto, rogo, volo, fidei committo; quae proinde firma singula sunt, atque si omnia in unum congesta sint.
§ 250. Cum igitur scripserimus 〈l〉 titivs heres esto, possumus adicere rogo te l. titi petoqve a te, vt cvm primvm possis hereditatem meam adire, c. seio reddas restitvas. possumus autem et de parte restituenda rogare; et liberum est uel sub condicione uel pure relinquere fideicommissa, uel ex die certa.
Inst. l. c.
§ 251. Restituta autem hereditate is qui restituit nihilo minus heres permanet; is uero qui recipit hereditatem aliquando heredis loco est, aliquando legatarii.
Inst. 2, 23, 3.
§ 252. Olim autem nec heredis loco erat nec legatarii, sed potius emptoris. tunc enim in usu erat ei cui restituebatur hereditas nummo uno eam hereditatem dicis causa uenire; et quae stipulationes 〈inter uenditorem hereditatis et emptorem interponi solent, eaedem interponebantur〉 inter heredem et eum cui restituebatur hereditas, id est hoc modo: heres quidem stipulabatur ab eo cui restituebatur hereditas, ut quidquid hereditario nomine condemnatus soluisset, siue quid alias bona fide dedisset, eo nomine indemnis esset, et omnino si quis cum eo hereditario nomine ageret, ut recte defenderetur; ille uero qui recipiebat hereditatem inuicem stipulabatur, ut si quid ex hereditate ad heredem peruenisset id sibi restitueretur, ut etiam pateretur eum hereditarias actiones procuratorio aut cognitorio nomine exequi.
§ 253. Sed posterioribus temporibus Trebellio Maximo et Annaeo Seneca consulibus senatusconsultum factum est, quo cautum est, ut si cui hereditas ex fideicommissi causa restituta sit, actiones quae iure ciuili heredi et in heredem conpeterent 〈ei〉 et in eum darentur cui ex fideicommisso restituta esset hereditas per quod senatusconsultum desierunt illae cautiones in usu haberi. praetor enim utiles actiones ei et in eum qui recepit hereditatem quasi heredi et in heredem dare coepit, eaeque in edicto proponuntur.
Inst. 2, 23, 4.
§ 254. Sed rursus quia heredes scripti, cum aut totam hereditatem aut paene totam plerumque restituere rogabantur, adire hereditatem ob nullum aut minimum lucrum recusabant, atque ob id extinguebantur fideicommissa, postea Pegaso et Pusione 〈consulibus〉 senatus censuit, ut ei qui rogatus esset hereditatem restituere proinde liceret quartam partem retinere, atque e lege Falcidia in legatis retinere conceditur. (ex singulis quoque rebus quae per fideicommissum relincuntur eadem retentio permissa est.) per quod senatusconsultum ipse 〈heres〉 onera hereditaria sustinet. ille autem qui ex fideicommisso reliquam partem hereditatis recipit legatarii partiarii loco est, id est eius legatarii cui pars bonorum legatur; quae species legati partitio vocatur, quia cum herede legatarius partitur hereditatem. unde effectum est, ut quae solent stipulationes inter heredem et partiarium legatarium interponi, eaedem interponantur inter eum qui ex fideicommissi causa recipit hereditatem et heredem, id est ut et lucrum et damnum hereditarium pro rata parte inter eos commune sit.
Inst. 2, 23, 5.
§ 255. Ergo siquidem non plus quam dodrantem hereditatis scriptus heres rogatus sit restituere, tum ex Trebelliano senatusconsulto restituitur hereditas, et in utrumque actiones hereditariae pro rata parte dantur, in heredem quidem iure ciuili, in eum uero qui recipit hereditatem ex senatusconsulto Trebelliano. quamquam heres etiam pro ea parte quam restituit heres permanet eique et in eum solidae actiones conpetunt; sed non ulterius oneratur nec ulterius illi dantur actiones, quam apud eum commodum hereditatis remanet.
Inst. 2, 23, 6.
§ 256. At si quis plus quam dodrantem uel etiam totam hereditatem restituere rogatus sit, locus est Pegasiano senatusconsulto.
Inst. l. c.
§ 257. Sed is qui semel adierit hereditatem, si modo sua uoluntate adierit, siue retinuerit quartam partem siue noluerit retinere, ipse uniuersa onera hereditaria sustinet; sed quarta quidem retenta quasi partis et pro parte stipulationes interponi debent tamquam inter partiarium legatarium et heredem; si uero totam hereditatem restituerit, ad exemplum emptae et uenditae hereditatis stipulationes interponendae sunt.
Inst. l. c.
§ 258. Sed si recuset scriptus heres adire hereditatem ob id, quod dicat eam sibi suspectam esse quasi damnosam, cauetur Pegasiano senatusconsulto, ut desiderante eo cui restituere rogatus est, iussu praetoris adeat et restituat, proindeque ei et in eum qui receperit 〈hereditatem〉 actiones dentur, ac iuris est ex senatusconsulto Trebelliano. quo casu nullis stipulationibus opus est, quia simul et huic qui restituit securitas datur, et actiones hereditariae ei et in eum transferuntur qui receperit hereditatem.
Inst. l. c.
§ 259. Nihil autem interest utrum aliquis ex asse heres institutus aut totam hereditatem aut pro parte restituere rogetur, an ex parte heres institutus aut totam eam partem aut partis partem restituere rogetur; nam et hoc casu de quarta parte eius partis ratio ex Pegasiano senatusconsulto haberi solet.
Inst. 2, 23, 8.
DE FIDEICOMMISSARIIS HEREDITATIBVS.
§ 246. We now proceed to trusts.
§ 247. And to begin with trust inheritances.
§ 248. The first requisite is that an heir should be duly instituted and that it be committed to his trust to transfer the inheritance to another, for the will is void unless an heir is duly instituted.
§ 249. The words properly and commonly used to create a trust are: ‘I beg, I request, I wish, I intrust;’ and they are just as binding separately as united.
§ 250. Accordingly, when we have written: ‘Lucius Titius, be thou my heir,’ we may add: ‘I request and beg thee, Lucius Titius, as soon as thou canst accept my inheritance, to convey and transfer it to Gaius Seius;’ or we may request him to transfer a part. So again a trust may be either conditional or absolute, and to be performed either immediately or from a certain day.
§ 251. After the transfer of the inheritance the transferror nevertheless continues heir, while the transferree sometimes is in the position of an heir, sometimes in that of a legatee.
§ 252. But formerly he was neither in the position of heir nor in that of legatee but rather in that of purchaser. Since in those times it was customary for the transferree of an inheritance to pay a sesterce as fictitious purchaser of it, and the stipulations appropriate to a vendor and purchaser of an inheritance were entered into by the heir and transferree, that is to say, the heir stipulated from the transferree that he should be indemnified for any sums he might be condemned to pay or might in good faith pay on account of the inheritance, and be adequately defended in any suit on account of the inheritance; and the transferree on the other hand stipulated that he should receive from the heir anything coming to the heir from the inheritance and be permitted to bring actions belonging to the heir as his cognitor or procurator.
§ 253. But subsequently, in the consulate of Trebellius Maximus and Annaeus Seneca, a senatusconsult was passed providing that, when an inheritance is transferred in pursuance of a trust, the actions which the civil law allows to be brought by the heir or against the heir shall be maintainable by the transferree and against the transferree. Hence the old covenants were discontinued, and the Praetor used to give to and against the transferree as quasi heir the modified forms of action (utiles actiones) which are formulated in the edict.
§ 254. However, as heirs, when requested to transfer the whole or nearly the whole of an inheritance, declined for only a small or no benefit to accept the inheritance, which caused a failure of the trusts, the senate in the consulship of Pegasus and Pusio decreed, that an heir requested to transfer an inheritance should have the same right to retain a fourth of it as the lex Falcidia gives to an heir charged with the payment of legacies; and gave a similar right of retaining the fourth of any separate things left in trust. When this senatusconsult comes into operation, the heir bears the burdens of the inheritance and the transferree of the residue is on the footing of a partiary legatee, that is, of a legatee of a certain part of the estate under the kind of legacy called partition, because the legatee shares the inheritance with the heir. Accordingly the stipulations appropriate between an heir and partiary legatee are entered into by the heir and transferree, in order to secure a ratable division of the gains and losses arising out of the succession.
§ 255. If then the heir is requested to transfer no more than three fourths of the inheritance the Sc. Trebellianum governs the transfer, and both are liable to be sued for the debts of the inheritance in ratable portions, the heir by civil law, the transferree by the Sc. Trebellianum: for though the heir even as to the transferred portion continues heir, and can, according to jus Civile, sue or be sued for the entire debts, his liabilities and rights of action are limited by the Sc. in the proportion of his beneficial interest in the inheritance.
§ 256. If more than three fourths or the whole is devised in trust to be transferred, the Sc. Pegasianum comes into operation.
§ 257. And when once the heir has accepted, that is to say, voluntarily, whether he retains one fourth or declines to retain it, he bears the burdens of inheritance: but, if he retains a fourth, he should covenant with the transferree as quasi partiary legatee; if he transfers the whole, he should covenant with him as quasi vendee of an inheritance.
§ 258. If an heir refuse to accept an inheritance from a suspicion that the liabilities exceed that assets, it is provided by the Sc. Pegasianum, that on the request of the transferree he may be ordered by the Praetor to accept and transfer; whereupon the transferree shall be just as capable of suing and being sued as the transferree under the Sc. Trebellianum. In this case no stipulations are necessary, because the transferror is protected, and the hereditary actions pass to and against the transferree.
§ 259. It makes no difference whether a person appointed as heir to the whole inheritance be requested to restore the whole or part of it, or whether a person appointed as heir to a share be requested to restore his whole share or only a part of it; for in this case also a fourth of the share to which he is appointed is taken into account under the Sc. Pegasianum.
§ 246. The dispositions of a testator which have been hitherto considered were directions addressed to his heir, resembling the orders of a father to his son or of a master to his slave, or the commands of a magistrate or of a legislator to his subjects. Hence the importance of the regular institution of an heir, of finding a person who, being a mere creature of the testator’s, shall be compelled to execute his commands.
Fideicommissa, to which we now proceed, are not commands, but requests. Legatum est quod legis modo, id est, imperative, testamento relinquitur, nam ea quae precativo modo relinquuntur fideicommissa vocantur, Ulpian, 24, 1. ‘A legacy is a legislative or imperative testamentary disposition: a precative disposition (a disposition in the form of entreaty) is a trust.’
The original object of trusts was to extend the testator’s bounty to those who were legally incapacitated to be legatees; for instance, aliens and Latini Juniani; and though Hadrian subsequently incapacitated aliens for taking the benefit of a trust, § 285, yet, as declarations of trust were exempt from many other restrictions which hampered direct legacies, they survived the circumstance which was the principal motive of their introduction, cf. §§ 260-289. For instance, another object of the declaration of trusts was to avoid the restrictions imposed by the lex Falcidia on the amount of legacies bequeathable to legatees who were capable of taking (had capacitas as well as testamenti factio passiva), § 254, and this object would continue to operate as a motive for the employment of trusts even after the invalidation of trusts in favour of peregrini, till it was defeated by the Sc. Pegasianum. Or again, a limitation to take effect after the death of heres, § 277, or a charge by means of codicilli on the intestate heir, which were not recognized by civil law, remained valid as trusts.
That trusts had originally no legal validity, we see from Cicero, Verres, 2, 1, 47, where we learn that it was usual for the testator to make the heir take an oath to perform the testator’s wishes, thus supplying by religious motives the want of a political sanction. But Augustus, as we are informed by Justinian, Inst. 2, 23, 1, in some individual cases of breach of trust directed the consuls to interpose their authority and compel trustees to execute their charge; and trusts soon became an ordinary mode of testamentary disposition, and, in process of time, a permanent fiduciary jurisdiction was established, the court of a special praetor fideicommissarius.
Originally if a testator wished to leave to a certain person the net amount of his fortunes, unsaddled with the burden and risk of administration, he instituted another as heres, whose sole function was the satisfaction of creditors and the discharge of the other duties of administration: and bequeathed the net residue of his patrimony to the real object of his bounty as legatee (legatarius). When this course was restricted by the lex Falcidia, a testator who wished a certain object of his bounty to receive the whole of his patrimony free from burdens would institute another person as heres, subject to a trust to transfer the whole of the inheritance, after payment of debts and perhaps with some remuneration for his trouble, to the real beneficiary (fideicommissarius). At first the testator could only rely on the honour of the heres, for these trusts were not legally binding; and not long after they became legally binding they were subjected by Sc. Pegasianum, under the Emperor Vespasian, to the same restrictions as were imposed on legacies. Sc. Trebellianum, under Nero, had placed the person to whom the inheritance was transferred in exactly the same position as the heir (heredis loco), to whom the Falcidian abatement was of course inapplicable. Sc. Pegasianum, to subject fideicommissarius to this abatement, for the benefit of heres fiduciarius, gave the latter the option of treating him as if he were legatarius. Thus the advantage of having a disinterested Executor, of leaving the testator’s wishes to be carried into effect by a person not, like the heir or one loco heredis, himself interested in the distribution; an advantage which an English testator may, if he chooses, secure, was deliberately sacrificed by the Roman legislator.
Another method of leaving to a person the net value of an inheritance without the troubles of administration, viz. the institution of the slave of the person whose benefit was intended, has already been noticed. § 189, comm.
The conversion of a moral into a legal obligation by the legalization of trusts was similar to what occurred when, under the Twelve Tables, legal force was given to the mancipatio cum fiducia, declaring the conditions and purposes of a remancipation, 2 § 60; and, remembering the celebrated ordinance, Cum nexum faxit mancipiumque, uti lingua nuncupassit, ita jus esto, it may occur to us to wonder why Augustus did not imitate the energetic brevity of the ancient legislator, and simply enact, Cum testamentum faxit codicillosve, uti fideicommiserit, ita jus esto. There would then have been no need of the cumbrous machinery of fictitious sales and stipulations between quasi vendor and quasi vendee; but a little reflection will show that such an enactment would have operated very inconveniently, and have defeated the very purposes for which trusts were instituted. Such an enactment would have made trusts, like nuncupations, a matter of civil law; and the jus strictum of the civil law was far from elastic or rational even in the time of Augustus; so that, if it was intended to enlarge the powers of testators and the discretion of the fiduciary tribunal, it was absolutely necessary to make trusts a province not of legal but of equitable jurisdiction.
§ 251. The transferree, it will be seen, was quasi heir when the Sc. Trebellianum applied: when the Sc. Pegasianum applied he was either quasi legatee or quasi vendee.
§ 252. These stipulations were employed because the fictitious sale (dicis causa, nummo uno) of the inheritance produced no universal succession, and so did not transfer the liability. But after Antoninus Pius these stipulations were not required in case of an actual sale of an inheritance, for though this did not operate as a universal succession, it involved a cession of actions. Dig. 2, 14, 16; cf. Dig. 18, 4, Cod. 4, 39.
§ 253. The terms of the Sc. Trebellianum, passed in the reign of Nero, probably a. d. 57, are given in the Digest 36, 1, 1 and 2. ‘Forasmuch as equity requires that whenever an inheritance is left in trust, any actions arising thereout should be brought against the transferree of the inheritance or by him, rather than that the fiduciary heir should incur any risk in consequence of his trust; it is decreed that the actions of and against an heir, shall not be granted to or against an heir who transfers a succession in pursuance of a trust, but to and against the testamentary transferree, in order that in future the last wishes of testators may have more effect.’ It is strange that the lawgiver should have stooped to the use of fiction (actio utilis), the natural instrument of a magistrate timidly usurping legislative power. Bethmann-Hollweg, § 96, suggests that actio utilis was in this case not actio fictitia but actio in factum concepta. (Cf. Lenel xv. 68.)
§ 254. By the Sc. Trebellianum, if the whole beneficial interest in an inheritance was transferred, the whole right of suing and being sued passed to the transferree: if only a portion of the beneficial interest was transferred, both the transferror and the transferree could sue and be sued in the same proportion. But if the whole or almost the whole inheritance is to be transferred to another the heir has little or no inducement to enter upon it, on which account the trust may fail with the other provisions of the will. Hence the Sc. Pegasianum, passed in the reign of Vespasian, a. d. 70-76, apparently provided that when less than a fourth of the inheritance is left to the benefit of the fiduciary heir, he should still be entitled to retain his fourth, the Sc. Trebellianum being then inoperative, that is to say, that in such a case the actions by or against the inheritance shall not be maintainable by or against both the heir and the transferree in the proportion of their interests, but should be exclusively maintainable by or against the heir. In fact, having subjected the transferree to the liability of abatement which the lex Falcidia imposed on the legatee, it seemed logical to put him in all other respects on the footing of a legatee, or singular successor, including the immunity from being sued and incapacity of suing for the debts of the succession. If then the fiduciary heir, retaining his fourth, became thus sole administrator, the Sc. Pegasianum directed him and the transferree to enter into the covenants usual between an heir and a partiary legatee. The heir promised, in the event of an underestimate, to make an additional payment; and the transferree promised, in the event of an overestimate, to make a proportional repayment. A partiary legatee is a legatee by partition, which Theophilus calls a fifth form of legacy, and of which Ulpian gives the formula, 24, 25. ‘As single things can be bequeathed, so can a universality, for instance thus: Do thou, my heir, partition and divide my inheritance with Titius; in which case a moiety is deemed to be bequeathed, but any other part, a third or fourth, may be bequeathed, and this form of bequest is called partition.’ This form of legacy probably owed its origin to the lex Voconia, § 226, which forbade Classicus to make an heiress.
§§ 257, 258. The subject is not very clearly explained by Gaius, but it would seem that after the Sc. Pegasianum was passed, the principle of the Sc. Trebellianum continued to apply, if as much as a quarter of the estate was reserved to the heir by the testator; thus the inheritance with its rights and duties would be divided pro parte between the heir and the transferree. But if the heir was left less than one fourth, his relation to the transferree, if he accepted the inheritance, was determined by the Sc. Pegasianum. In such circumstances he might enter on the inheritance and deduct a fourth, or if he chose to carry out the trust implicitly enter without making this deduction. But in the latter case, as well as in the former, the law treated him not as an heir but as a legatee, which made the old stipulations still necessary.
However Modestinus recommended, as the safer course if the heir declined to avail himself of his right to the fourth, that he should feign unwillingness to accept a damnosa hereditas, and should make a compulsory acceptance by the order of the praetor, § 258, in which case the actions are transferred in totality to the transferree by the express provision of the Sc. Pegasianum, Dig. 36, 1, 47. The sequence of §§ 257, 258 seems to indicate an intention of Gaius to suggest that this course might be adopted.
The requirement for form’s sake of a compulsory aditio and restitutio, instead of making the hereditas vest immediately under the will in the fideicommissarius (the course pursued by the legislator in the English statute of Uses and Trusts), has already, 1 §§ 189-193, been noticed as characteristic of Roman jurisprudence. It had this inconvenience, that it permitted the trusts to be defeated by the death or absence, malicious (dolo malo) or involuntary, of the heres fiduciarius. No remedy was provided for this contingency till the time of Justinian, who enacted that in such a case the inheritance should vest in the fideicommissarius by mere operation of law (ipso jure). Sancimus itaque ut sive per contumaciam afuerit is cui restitutio imposita est, sive morte praeventus nullo relicto successore fuerit, sive a primo fideicommissario in secundum translatio celebrari jussa est, ipso jure utiles actiones transferantur, Cod. 6, 49, 7, 1 b.
§ 259. The stipulations of the transferree as quasi vendee or quasi partiary legatee required by the Sc. Pegasianum were not only a cumbrous machinery, but after all afforded an insufficient security to the parties. The heir and transferree were always in mutual danger of one another’s insolvency, and an heir after transferring the whole inheritance, though not fairly liable to any molestation or vexation on account of it, might find himself with two lawsuits on his hands: he might first be sued by the creditors of the estate, and then have to recover back what he is condemned to pay them from the transferree by suing him on the covenants of quasi vendor and quasi vendee.
It is not surprising therefore, that Justinian abolished these provisions of the Sc. Pegasianum, and enacted that in every case there shall be a transfer or division of actions as contemplated by the Sc. Trebellianum, i. e. that the actions by or against the inheritance shall either be transferred in totality to the transferree, or be maintainable by or against both the heir and the transferree in the proportion of their interests. See Inst. 2, 23, 7.
The following observations may serve to complete the explanation of the Sc. Trebellianum and the Sc. Pegasianum.
Succession is the transfer of a right from one person (auctor) to another person (successor), such as occurs, for instance, in the conveyance or alienation of property. Here the same right of ownership that was previously vested in the alienor is subsequently vested in the alienee. The right continues the same; the person invested therewith is changed. It was characteristic of obligatio; a relation between two determinate persons (before, at least, the comparatively modern invention of papers payable to the holder and transferable by delivery) that it was not capable of a similar alienation. All that could be done to accomplish a similar result was to employ one of two processes, Novation or Cession of Action, § 38. 3 §§ 155-162, comm. In these procedures there is strictly speaking no Succession, for in Novation the transferree is not invested with the same right that previously vested in the transferror, but a new right is created in the transferree while the old right of the transferror is extinguished: and in Procuration or Cession the right still continues nominally in the transferror, as representative of whom the transferree recovers it or enforces it by action, retaining for himself what is recovered.
This inalienability of obligations, however, was confined to singular successions (in singularum rerum dominium successio): universal succession (per universitatem successio) or the transmission of the ideal whole of a patrimony, of which we have an example in hereditas testamentary or intestate, differed from singular succession by the capacity of passing obligation as well as Dominion. The heres of the testator or intestate sued and was sued in his own name on the obligations, active or passive, that originally vested in the deceased. But universal succession was an institution only recognized by Roman jurisprudence in certain definite cases. It was a formidable operation and rigorously circumscribed. It was not a transaction that the law allowed to be accomplished at the discretion of individual parties in pursuance of private convention. It was only admitted in the cases enumerated by Gaius, § 98, and, without legislative interference, the list could not be augmented.
These difficulties in the transfer of obligation opposed a great obstacle to the transfer (restitutio) of trust successions: and these difficulties were partially removed by the Sc. Trebellianum, and more completely by Justinian, by investing the Restitutio with the character of successio per universitatem, in other words, by the legislative sanction of a new instance of universal succession.
The following observations may illustrate the joint operation of the laws concerning Trusts and the lex Falcidia under the law of Justinian. Although the fideicommissarius or person to whom an inheritance or a portion thereof is directed to be transferred (restitui) is charged like a coheres with the legacies in proportion to the quota which he takes, he has not like the heres a right of deducting from the legacies with which he is charged, and retaining for himself a Falcidian portion or fourth of his quota. His rights against the legatee depend on the question whether the testator in directing the transfer, or in other words creating the trust, used either expressly or by implication the terms deductis legatis, ‘after deduction of legacies,’ a clause favouring the legatees; or whether, in giving the legacies, he used terms charging them on the inheritance (si ad heredis onus esse testator legata dixerit); which would imply that the cestui que trust was to be exactly assimilated to the legatees. The following examples will illustrate the working of the law.
A testator owning 400 (sestertia, or any other units) leaves all to A as his sole heres, but directs him as trustee (fiduciarius) to convey half the inheritance to B (fideicommissarius), and leaves a legacy of 200 to C. The effect is that C receives 100 from A and 100 from B. Dig. 36, 1, 1, 20.
But suppose the testator left a legacy of 400 to C. Then C will receive 200 from B who has no right of retaining anything, and 100 from A, who is entitled to retain for himself one fourth of his inheritance, i. e. the 100 that remain.
Questions, however, requiring special treatment may arise in the following cases:—(1) If an heir is charged to transfer the whole of an inheritance and the legacies are added to his charge (si ad heredis onus esse testator legata dixerit), the interests of both the legatee and transferree undergo, if necessary, a proportional reduction. For instance a testator, proprietor of 400, makes A his sole heres, but requests him to transfer the whole succession to B, and gives a legacy of 300 to C, making use of the above-mentioned terms. The result is that A, the heres, retains 100 as his Falcidian fourth, and the remaining 300 are distributed between B the cestui que trust and C the legatee, in the proportion of 4 to 3; that is to say, the cestui que trust takes 4/7 or 1713/7, and the legatee takes 3/7 or 1284/7. Dig. 36, 1, 3 pr.
(2) If the testator directs the heir to transfer the whole of the inheritance ‘after deduction of the legacies’ (deductis legatis), the transferree bears the whole burden of the legacies, and only keeps what remains after full payment of the legatee, subject to this proviso, that, though a transferree is generally not entitled to a Falcidian fourth, yet if a transferree who has to bear the burden of legacies receives the inheritance reduced by the Falcidian fourth of the heres, he is himself entitled to reduce proportionally the legacies and retain a fourth thereof for himself. Dig. 35. 1, 43, 3; 35, 2, 32, 4. E. g. a testator, proprietor of 400, makes A his sole heres, requesting him to transfer the whole inheritance to B after deduction of legacies, and leaves a legacy of 300 to C. The result is that the heir retains ¼ (100); and the remaining 300 is distributed between the legatee and transferree, the legatee taking 300 reduced by ¼ (225), and the transferree taking that ¼ (75). The same effect would have been produced if the testator, instead of using the clause deductis legatis, had simply charged the legacies on the fideicommissarius. Or the rights of the fideicommissarius may be calculated with the same result by the following method. The heres retains ¼ and transfers ¾ to the cestui que trust, who under Justinian’s legislation is no longer a partiary legatee as he was under the Sc. Pegasianum, but a sharer of the inheritance with the heres in the proportion of ¾ to ¼. The legatee is entitled to 300 from these co-heirs in the proportion of their shares of the inheritance. The heres, however, is protected by the lex Falcidia, and thus ¼ of the legacy is lost to the legatee: he obtains, however, ¾ (225) from the transferree, who retains for himself the remaining ¼ (75).
(3) If the heres makes voluntary aditio, but does not retain the Falcidian fourth to which he is entitled, then, if the legacy was charged on the inheritance, the whole inheritance is divided between the transferree and legatee in the proportion of 4 to 3: that is, the transferree obtains altogether 2284/7 and the legatee 1713/7.
(4) If the legacy was expressly charged on the fideicommissarius, or if there was no express clause defining whether it was charged on him or on the heres, then the legatee will benefit by the heres abstaining from his fourth: and the transferree will only get what remains after full payment of the legacy. Thus, in the circumstances we have assumed, the legatee will get 300 and the transferree 100.
(5) If the heres abstains from his ¼ expressly in favour of the transferree, the latter alone gets the benefit of such abstention.
(6) If the heres only makes compulsory aditio, he takes no share of the Falcidian fourth, which all goes to the account of the transferree who compelled the heres to make aditio. Dig. 36, 1, 2.
(7) If the heres has to transfer the whole but has received his Falcidian fourth in the shape of legacies, the transferree has to satisfy the other legatees: and if he cannot pay the whole of their legacies they may recover from the heres all that he receives beyond his fourth.
(8) If the heres is directed to transfer not the whole but ¾ of the inheritance, the transferree has to satisfy the legatees, but deducts and retains for himself ¼ of their legacies, as he would under the circumstances supposed in (3). Vangerow, § 559.
§ 260. Potest autem quisque etiam res singulas per fideicommissum relinquere, uelut fundum hominem uestem argentum pecuniam, et uel ipsum heredem rogare, ut alicui restituat, uel legatarium, quamuis a legatario legari non possit.
Inst. 2, 24, pr.
§ 261. Item potest non solum propria testatoris res per fideicommissum relinqui, sed etiam heredis aut legatarii aut cuiuslibet alterius. itaque et legatarius non solum de ea re rogari potest, ut eam alicui restituat quae ei legata sit, sed etiam de alia, siue ipsius legatarii siue aliena sit. [sed] hoc solum obseruandum est, ne plus quisquam rogetur aliis restituere, quam ipse ex testamento ceperit; nam quod amplius est, inutiliter relinquitur.
Inst. 2, 24, 1.
§ 262. Cum autem aliena res per fideicommissum relinquitur, necesse est ei qui rogatus est aut ipsam redimere et praestare, aut aestimationem eius soluere, sicut iuris est, si per damnationem aliena res legata sit. sunt tamen qui putant, si rem per fideicommissum relictam dominus non uendat, extingui fideicommissum; sed aliam esse causam per damnationem legati.
Inst. l. c.
§ 263. Libertas quoque seruo per fideicommissum dari potest, ut uel heres rogetur manumittere uel legatarius.
Inst. 2. 24, 2.
§ 264. Nec interest utrum de suo proprio seruo testator roget, an de eo qui ipsius heredis aut legatarii uel etiam extranei sit.
Inst. l. c.
§ 265. Itaque et alienus seruus redimi et manumitti debet. quodsi dominus eum non uendat, sane extinguitur fideicommissaria libertas, quia hoc casu pretii conputatio nulla interuenit.
Inst. l. c.
§ 266. Qui autem ex fideicommisso manumittitur, non testatoris fit libertus, etiamsi testatoris seruus fuerit, sed eius qui manumittit.
Inst. l. c.
§ 267. At qui directo testamento liber esse iubetur, uelut hoc modo stichvs servvs 〈mevs〉 liber esto, uel hoc stichvm servvm mevm libervm esse ivbeo,is ipsius testatoris fit libertus. nec alius ullus directo ex testamento libertatem habere potest, quam qui utroque tempore testatoris ex iure Quiritium fuerit, et quo faceret testamentum et quo moreretur.
Inst. l. c.
§ 268. Multum autem differunt ea quae per fideicommissum relincun|tur ab his quae directo iure legantur.
§ 269. Nam ecce per fideicommissum etiam —|—NA heredis relinqui potest; cum alioquin legatum —|—NA inutile sit.
§ 270. | Item intestatus moriturus potest ab eo ad quem bona eius pertinent fideicommissum alicui relinquere; cum alioquin ab eo legari non possit.
§ 270 a.Item legatum codicillis relictum non aliter ualet, quam si a testatore confirmati fuerint, id est nisi in testamento cauerit testator, ut quidquid in codicillis scripserit id ratum sit; fideicommissum uero etiam non confirmatis codicillis relinqui potest.
§ 271. Item a legatario legari non potest; sed fideicommissum relinqui potest. quin etiam ab eo quoque cui per fideicommissum relinquimus rursus alii per fideicommissum relinquere possumus.
§ 272. Item seruo alieno directo libertas dari non potest; sed per fideicommissum potest.
§ 273. Item codicillis nemo heres institui potest neque exheredari, quamuis testamento confirmati sint. at is qui testamento heres institutus est potest codicillis rogari, ut eam hereditatem alii totam uel ex parte restituat, quamuis testamento codicilli confirmati non sint.
§ 274. Item mulier quae ab eo qui centum milia aeris census est per legem Voconiam heres institui non potest, tamen fideicommisso relictam sibi hereditatem capere potest.
§ 275. Latini quoque qui hereditates legataque directo iure lege Iunia capere prohibentur ex fideicommisso capere possunt.
§ 276. Item cum senatusconsulto prohibitum sit proprium seruum minorem annis xxx liberum et heredem instituere, plerisque placet posse nos iubere liberum esse, cum annorum xxx erit, et rogare, ut tunc illi restituatur hereditas.
§ 277. Item quamuis non 〈possimus〉 post mortem eius qui nobis heres extiterit alium in locum eius heredem instituere, tamen possumus eum rogare, ut cum morietur alii eam hereditatem totam uel ex parte restituat. et quia post mortem quoque heredis fideicommissum dari potest, idem efficere possumus et si ita scripserimus cvm titivs heres mevs mortvvs erit, volo hereditatem meam ad p. mevivm pertinere. utroque autem modo, tam hoc quam illo, Titius heredem suum obligatum relinquit de fideicommisso restituendo.
§ 278. Praeterea legata 〈per〉 formulam petimus; fideicommissa uero Romae quidem apud consulem uel apud eum praetorem qui praecipue de fideicommissis ius dicit persequimur, in prouinciis uero apud praesidem prouinciae.
§ 279. Item de fideicommissis semper in urbe ius dicitur; de legatis uero, cum res aguntur.
§ 280. Item fideicommissorum usurae et fructus debentur, si modo moram solutionis fecerit qui fideicommissum debebit; legatorum uero usurae non debentur; idque rescripto diui Hadriani significatur. scio tamen Iuliano placuisse, in eo legato quod sinendi modo relinquitur idem iuris esse quod in fideicommissis; quam sententiam et his temporibus magis optinere uideo.
§ 281. Item legata Graece scripta non ualent; fideicommissa uero ualent.
§ 282. Item si legatum per damnationem relictum heres infitietur, in duplum cum eo agitur; fideicommissi uero nomine semper in simplum persecutio est.
§ 283. Item 〈quod〉 quisque ex fideicommisso plus debito per errorem soluerit, repetere potest, at id quod ex causa falsa per damnationem legati plus debito solutum sit, repeti non potest. idem scilicet iuris est de eo [legato], quod non debitum uel ex hac uel ex illa causa per errorem solutum fuerit.
§ 284. Erant etiam aliae differentiae, quae nunc non sunt.
§ 285. Vt ecce peregrini poterant fideicommissacapere; et fere haec fuit origo fideicommissorum. sed postea id prohibitum est; et nunc ex oratione diui Hadriani senatusconsultum factum est, ut ea fideicommissa fisco uindicarentur.
§ 286. Caelibes quoque, qui per legem Iuliam hereditates legataque capere prohibentur, olim fideicommissa uidebantur capere posse.
§ 286 a. Item orbi, qui per legem Papiam [ob id quod liberos non habebant] dimidias partes hereditatum legatorumque perdunt, olim solida fideicommissa uidebantur capere posse. sed postea senatusconsulto Pegasiano proinde fideicommissa quoque ac legata hereditatesque capere posse prohibiti sunt; eaque translata sunt ad eos, qui 〈in eo〉 testamento liberos habent, aut si nullus liberos habebit, ad populum, sicut iuris est in legatis et in hereditatibus, quae eadem aut simili ex cau〈sa caduca fiunt.
§ 287.I〉tem olim incertae personae uel postumo alieno per fideicommissum relinqui poterat, quamuis neque heres institui neque legari ei posset; sed senatusconsulto, quod auctore diuo Hadriano factum est, idem in fideicommissis quod in legatis hereditatibusque constitutum est.
§ 288. Item poenae nomine iam non dubitatur nec per fideicommissum quidem relinqui posse.
§ 289. Sed quamuis in multis iuris partibus longe latior causa sit fideicommissorum quam eorum quae directo relincuntur, in quibusdam tantumdem ualeant, tamen tutor non aliter testamento dari potest quam directo, ueluti hoc modo liberis meis titivs tvtor esto, uel ita liberis meis titivm tvtorem do; per fideicommissum uero dari non potest.
§ 260. Not only an inheritance, but also single things, may be bequeathed by way of trust, as land, a slave, a garment, plate, money; and the trust may be imposed either on an heir or on a legatee, although a legatee cannot be charged with a legacy.
§ 261. Again not only the testator’s property, but that of the heir, or of a legatee, or that of any stranger, may be left by way of trust. Thus a legatee may be charged with a trust to transfer either a thing bequeathed to him, or any other thing belonging to himself or to a stranger; provided always that he is not charged with a trust to transfer more than he takes under the will, for in respect of such excess the trust would be void.
§ 262. When a stranger’s property is bequeathed by way of trust, the trustee must either procure and convey the specific thing or pay its value, like an heir charged under a bequest by condemnation; though some hold that the owner’s refusal to sell avoids such a trust, though it does not avoid a bequest by condemnation.
§ 263. Liberty can be left to a slave by a trust charging either an heir or a legatee with his manumission.
§ 264. And it makes no difference whether the slave is the testator’s own property, or that of the heir himself, or of the legatee, or even that of a stranger.
§ 265. A stranger’s slave, therefore, must be purchased and manumitted, but his owner’s refusal to sell extinguishes the gift of liberty, because liberty admits of no valuation in money.
§ 266. A trust of manumission makes the slave the freedman, not of the testator, though he may have been the owner of the slave, but of the manumitter.
§ 267. A direct bequest of liberty, such as: ‘Be my slave Stichus free,’ or, ‘I order that my slave Stichus be free,’ makes the slave the freedman of the testator. A direct bequest of liberty can only be made to a slave who is the testator’s quiritarian property at both periods, both at the time of making his will and at the time of his decease.
§ 268. There are many differences between trust bequests and direct bequests.
§ 269. Thus by way of trust a bequest may be charged on the heir of the heir, whereas such a bequest made in any other form is void.
§ 270. Again, a man going to die intestate can charge his heir with a trust, but cannot charge him with a legacy.
§ 270 a. Again, a legacy left by codicil is not valid, unless the codicil has been confirmed by the testator, that is, unless the testator has provided in his will that anything written in his codicil is ratified: whereas a trust requires no ratification of the codicil.
§ 271. A legatee too cannot be charged with a direct legacy, but can be the subject of a trust, and the beneficiary of a trust may himself be charged with a further trust.
§ 272. So also a slave of a stranger cannot be enfranchised by direct bequest, but may by the interposition of a trust.
§ 273. A codicil is not a valid instrument for the institution of an heir or for his disinheritance, though it is ratified by will: but an heir instituted by will may be requested by a codicil to transfer the inheritance in whole or in part to another person without any ratification by will.
§ 274. A woman who cannot by the lex Voconia be instituted heiress by a testator registered in the census as owning a hundred thousand sesterces, can nevertheless take an inheritance bequeathed to her by way of a trust.
§ 275. And Latini Juniani, who are disabled by the lex Junia from taking an inheritance or legacy by direct bequest, can take it by means of a trust.
§ 276. Again a decree of the senate (rather, the lex Aelia Sentia 1 § 18) incapacitates a testator’s slave under thirty years of age from being enfranchised and instituted heir; but, according to the prevalent opinion, he can be ordered to be free on attaining the age of thirty, and the heir may be bound by way of trust to transfer the inheritance to him on that event.
§ 277. An heir cannot be instituted after the death of a prior heir, but an heir may be bound by way of trust to transfer the inheritance, when he dies, in whole or in part to another person; or, as a trust may be limited to take effect after the death of the heir, the same purpose may be accomplished in these terms. ‘When my heir is dead, I wish my inheritance to go to Publius Mevius;’ and whichever terms are employed, the heir of my heir is bound by a trust to transfer the inheritance to the person designated.
§ 278. Legacies, moreover, are recovered by the formulary procedure; but trusts are enforced by the extraordinary jurisdiction of the consul or praetor fideicommissarius at Rome; in the provinces by the extraordinary jurisdiction of the president.
§ 279. Cases of trust are heard and determined at Rome at all times of the year; cases of legacy can only be litigated during the trial term.
§ 280. Trusts entitle to payment of interest and interim profits on delay of performance (mora) by the trustee; legatees are not entitled to interest, as a rescript of Hadrian declares. Julianus, however, held that a legacy bequeathed in the form of permission is on the same footing as a trust, and this is now the prevalent doctrine.
§ 281. Bequests expressed in Greek are invalid; trusts expressed in Greek are valid.
§ 282. An heir who disputes a legacy in the form of condemnation is sued for double the sum bequeathed; but a trustee is only suable for the simple amount of the trust.
§ 283. On overpayment by mistake in the case of a trust, the excess can be recovered back by the trustee; but on overpayment from some mistaken ground of a bequest by condemnation, the excess cannot be recovered back by the heir; and the law is the same in the case of what is not due at all, but which has been paid by some mistake or other.
§ 284. There formerly were other differences which no longer exist.
§ 285. Thus aliens could take the benefit of a trust, and this was the principal motive in which trusts originated, but afterwards they were incapacitated; and now, by a decree of the senate passed on the proposition of Hadrian, trusts left for the benefit of aliens may be claimed by the fiscus.
§ 286. Unmarried persons, who are disabled by the lex Julia from taking inheritances or legacies, were formerly deemed capable of taking the benefit of a trust.
§ 286 a. And childless persons, who forfeit by the lex Papia, on account of not having children, half their inheritances and legacies, were formerly deemed capable of taking in full as beneficiaries of a trust. But at a later period the Sc. Pegasianum extended to trust dispositions the rules which attach to legacies and inheritances, transferring the trust property to those mentioned in the will who have children, and failing these to the people (aerarium), as happens to legacies or inheritances which on the same or similar grounds become ‘caduca.’
§ 287. So too, at one time, an uncertain person or an afterborn stranger could take the benefit of a trust, though he could neither take as heir nor as legatee, but a decree of the senate, passed on the proposition of the emperor Hadrian, made the law in this respect relating to legacies and inheritances applicable also to trusts.
§ 288. It is now clear that trusts cannot be left with the object of inflicting a penalty.
§ 289. Although in many branches of law trusts have an ampler scope than direct dispositions, while in others they are on a par, yet a testamentary guardian can only be appointed by direct nomination, as thus: ‘Be Titius guardian to my children;’ or thus: ‘I nominate Titius guardian to my children;’ he cannot be appointed by way of trust.
§ 265. Justinian declares that the heir is not forthwith released from his obligation by the owner’s refusal to sell, but will be bound to seize any opportunity that may subsequently offer of purchasing and manumitting the slave in pursuance of the trust, Inst. 2, 24, 2.
§ 270 a. Codicils, as well as fideicommissa, according to Justinian, first acquired legal validity in the time of Augustus, who, being trustee under a codicil, set the example of performing the trust. The jurist Trebatius being consulted by Augustus, whether it was possible to give legal force to codicils without defeating the policy of testamentary law, gave a decided opinion in the affirmative; and all scruples respecting the validity of codicils vanished when it became known that codicils had been left by the eminent jurist Labeo, Inst. 2, 25, pr.
Codicillus is the diminutive of codex, and denotes the less important and solemn documents or instruments of a man of business, a pocket-book, an agenda, a codicil; as codex denotes the more important and formal documents, a journal, a ledger, a will. A codicil enabled a testator who had solemnly executed a will to add to or modify its dispositions without the necessity of re-execution. It was usual in a will to ratify any prior or subsequent codicils; a codicil, however, might exist without any will. An informal will could only take effect as a codicil if such was the expressed intention of the testator. A codicil could not contain an institution or disinheritance or substitution; but it might contain a trust for the transfer of the whole of an inheritance: and though a codicil could not contain a disinheritance, yet we have seen (§§ 147-151, comm.) that a codicillary declaration that the heir was unworthy produced confiscation or ereption of the inheritance for indignitas. A testator could only leave a single will, for a later will revoked a former; but he might leave many codicils. A codicil needed no formalities, though Justinian required the attestation of five witnesses, not, however, as an essential solemnity, but as a means of proof: for, in the absence of five witnesses, the heir might be required to deny the existence of a trust upon his oath, Inst. 2, 23, 12. The admission of codicils was a departure from the rule requiring a unity in the act of testation. The concentration of his last will in a single act disposing simultaneously of all his property was no longer required of the testator. He now might distribute his fortune by way of legacy in a series of fragmentary or piecemeal and unrelated dispositions.
§ 278. Fideicommissa were enforced by persecutio, or the praetor’s extraordinaria cognitio, 4 § 184, comm.
§ 279. The law terms at Rome during the greater part of the formulary period, were of two different kinds: (1) the juridical term or term for jurisdictio, and (2) the judicial term or term for trials.
(1) The term for jurisdiction, that is, for the solemn acts of the praetor sitting on the tribunal in his court in the comitium, was that originally prescribed for the ancient legis actiones. The year was divided into forty dies fasti, unconditionally allotted to juridical proceedings, one hundred and ninety dies comitiales, available for juridical purposes unless required for the legislative assemblies, dies intercisi, of which certain hours were available for jurisdiction, and sixty dies nefasti, which were absolutely unavailable for juridical proceedings.
(2) Judicia, or trials before a judex in the forum, were unaffected by dies fasti and nefasti, but dependent on another division, dies festi and profesti: dies festi (days devoted to feriae, ludi, epulae, sacrificia) being exempted from litigation. Besides these occasional interruptions of litigation, there were longer set vacations, which we find rearranged on several occasions. Thus at one time we find two judicial terms (rerum actus, cum res aguntur) in the year, a winter and a summer term, and two vacations, one in spring and another in autumn. Claudius substituted a single vacation at the close of the year, and made the law term continuous. Rerum actum, divisum antea in hibernos aestivosque menses, conjunxit, Suetonius, Claudius, 23. Galba abolished this vacation, and confined the intervals of litigation to dies feriati. Marcus Aurelius, in the time of Gaius, abolished the distinction between the jurisdiction term (dies fasti) and the trial term (rerum actus). He devoted two hundred and thirty days (adding the number of dies fasti to the number of dies comitiales) to forensic proceedings, under the name of dies juridici or dies judiciarii, and allowed even the rest of the year, dies feriati, to be used for litigation with the consent of the parties. Judiciariae rei singularem diligentiam adhibuit: fastis dies judiciarios addidit, ita ut ducentos triginta dies annuos rebus agendis litibusque disceptandis constitueret, Capitolinus, Marcus, 10. ‘He also very carefully regulated the administration of justice, adding forensic days to the calendar, and allotting two hundred and thirty to litigation and civil suits.’
Subsequently to the time of Gaius, a law of Valentinian, Theodosius, and Arcadius, a. d. 389, while it declared the principle that all days are dies juridici, excepted, besides Sundays and certain other holidays, two months for harvest and vintage, and two weeks at Easter. Justinian further appointed, by way of interpolation in this law, certain vacations at Christmas, Epiphany, and Pentecost, Cod. 3, 12, 6, thus furnishing the model on which the four English law terms were regulated by Edward the Confessor. Subsequently the Statute of Westminster, 13 Edward I, permitted assizes to be held in the vacations, and thus a distinction grew up in England somewhat resembling that of the jurisdictional (dies fasti) and judicial terms (rerum actus); with this difference, however, that the same judges presided both in their own court held at Westminster, and on assize, where they acted under commissions to try cases in the county in which the cause of action arose. Thus in England a judge, after sitting at Westminster during term, was able to go on circuit during part of the vacation; but at Rome the distinction rested on the difference between proceedings in jure and in judicio. See Puchta, Institutionen, § 158.
§ 280. After the time of Gaius the liability of a defendant to interest and profits (fructus) from the date on which he was guilty of mora appears to have been extended to all legacies without exception. Ex mora praestandorum fideicommissorum vel legatorum fructus et usurae peti possunt: mora autem fieri videtur cum postulanti non datur, Paulus 3, 8, 4. ‘Delay of the heir to satisfy trusts and legacies entitles the cestui que trust and legatee to fruits and interest. Delay dates from the ineffectual demand of the creditor.’
A demand, however, is not requisite when a term for payment was fixed in the disposition which gave rise to the debt (dies adjecta): in other words, no interpellation is necessary in an obligation ex die, i. e. an obligatio with a dies adjecta; for then Mora begins at the expiration of the term. This is expressed by modern jurists in the maxim, dies interpellat pro homine, ‘the day demands instead of the creditor.’
A further condition of Mora is the absence of all doubt and dispute, at least of all dispute that is not frivolous and vexatious, as to the existence and amount of the debt. Qui sine dolo malo ad judicem provocat non videtur moram facere, Dig. 50, 17, 63. ‘An honest appeal to a judge is not deemed a mode of Delay.’
The date of Mora must not be identified with that of the Nativity of an action (actio nata), an important date, as we shall see, in the doctrine of Limitation or Prescription of which it is the starting-point, a starting-point that may be antecedent to Mora Mora generally cannot precede an interpellation or demand of payment: but the omission of a demand is precisely a part of that course of remissness and negligence whereby, under the rules of Prescription, a creditor ultimately forfeits his right to sue. Savigny, § 239.
Mora on the part of a person under an obligation to another obliges him to put the latter in as good a position as he would have been in if there had been no Mora. Hence the effect of Mora debitoris may be to make the debitor liable for fructus or interest. So again, if after Mora some accidental circumstance makes delivery of a thing impossible, the party bound to deliver it is not discharged from his liability, since if it had not been for Mora on his part, the plaintiff might have escaped loss by previous alienation of the thing, or in some other way. On the same principle, if a thing which a person is bound to deliver to another falls in value after Mora, he must pay the latter the highest value which could have been obtained for the thing at any time, since his default was established. Windscheid, 1 § 280.
Litis contestatio, joinder of issue between the parties to an action, another landmark of great importance in Roman jurisprudence in ascertaining and measuring the sanctioning rights and obligations of suitors, 3 § 180, comm., may be regarded as a kind of bilateral Disposition to be classed among Quasi-contracts. The consequences, however, of litis contestatio, in spite of difference of character, are to some extent similar to those of Mora. For in the event of condemning the defendant the judex has to regard the relations of the parties, as if restitution had been made at the time of litis contestatio. Hence a bona fide possessor is liable from this date for all fructus, although he was not previously liable for such as he had consumed. 4 § 114, comm.
§ 283. Money paid by mistake was not recoverable when the payer was liable to be sued for double damages, as in the actio legati per damnationem, Inst. 3, 27, 7, because then the payment is not deemed to be a mistake, but a compromise, in order to avoid the chance of condemnation in double damages. The laws protecting certain rights by duplication of damages, 4 § 171, would have been evaded if a debtor was allowed to pay the simple damages and then attempt to recover them back by condictio indebiti soluti.
§ 285. So by English law aliens were not, till recently, allowed to purchase real property or to take it by devise. Such property, purchased by an alien or devised to an alien, was forfeited to the crown. An alien, however, could hold personal property and take bequests of personal property. In France, formerly, an alien was not allowed to make a will, but all his property at his death escheated to the crown by the droit d’aubaîne. [Aubain is from alibanus. Alibi in barbarous Latin produced alibanus, just as longiter produced lontanus and ante antianus. Diez.]
§ 289. Justinian, following the tendency of previous legislation, abolished the distinction between legacies and trusts, enacting that legacies should no longer be governed by the rigours of the civil law, but subject to the same rules and construed with the same liberality as trusts, Inst. 2, 20, 2 and 3 Nostra autem constitutio (Cod. 6, 43, 1), quam cum magna fecimus lucubratione, defunctorum voluntates validiores esse cupientes et non verbis, sed voluntatibus eorum faventes, disposuit, ut omnibus legatis una sit natura et, quibuscunque verbis aliquid derelictum sit, liceat legatariis id persequi non solum per actiones personales, sed etiam per in rem et per hypothecariam . . . Sed non usque ad eam constitutionem standum esse existimavimus, cum enim antiquitatem invenimus legata quidem stricte concludentem, fideicommissis autem, quae ex voluntate magis descendebant defunctorum, pinguiorem naturam indulgentem: necessarium esse duximus omnia legata fideicommissis exaequare, ut nulla sit inter ea differentia.
By English law, a will of realty operates as a mode of conveyance and document of title without probate, but since the Land Transfer Act, 1897, it is usually proved. A will of personalty requires for its authentication to be proved before a court by the oath of the executor and, unless the attestation clause is in a certain form, by the affidavit of one of the subscribing witnesses; or, if the validity of the will is disputed, by examination of the witnesses on oath in the presence of the parties interested. The will itself is deposited in the registry of the Court of Probate; a copy of it in parchment, under the seal of the Court of Probate, delivered to the executor along with a certificate of proof, is the only proper evidence of his right to intermeddle with the personal estate of the testator.
The following were the corresponding formalities of Roman law prescribed by lex Julia vicesimaria: Paulus, Sent Rec. 4, 6:—
‘A will is opened in the following manner: the witnesses, or the majority, who affixed their seals, are summoned and acknowledge their seals, the cord is broken, the tablets are opened, the will is read, a copy is taken, a public seal is affixed to the original, and it is deposited in the archives, so that if the copy is ever lost there may be a means of making another.
‘In municipalities, colonies, towns, prefectures, wicks, castles, market towns, a will must be read in the forum or basilica, in the presence of the attesting witnesses or of respectable persons, between eight o’clock in the morning and four o’clock in the afternoon; and, as soon as a copy has been made, must be sealed up again by the magistrate in whose presence it was opened.
‘A will is intended by the law to be opened immediately after the death of the testator; accordingly, though rescripts have varied, it is now the rule that, if all the parties are present, three or five days is the interval within which the tablets must be opened; if they are absent, the same number of days after they are assembled; in order that heirs, legatees, manumitted slaves, and the military treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent. on the value of Roman citizens’ testamentary successions), may come into their rights without unnecessary delay.’
In cases of urgency, when the will was opened in the absence of the attesting witnesses in the presence of respectable persons, it was afterwards forwarded to the witnesses for the verification of their seals, Dig. 29, 3, 7. Every one who desired it had the power of inspecting a will and taking a copy, Dig. 29, 3, 8.
§ 1.Intestatorum hereditates 〈ex〉 lege xii tabularum primum ad suos heredes pertinent.
Inst. 3, 1, 1. 1; Collat. 16, 2, 1.
§ 2.Sui autem heredes existimantur liberi qui in potestate morientis fuerunt, ueluti filius filiaue, nepos neptisue 〈ex filio〉, pronepos proneptisue ex nepote filio nato prognatus prognataue. nec interest 〈utrum〉 naturales 〈sint〉 liberi an adoptiui. ita demum tamen nepos neptisue et pronepos proneptisue suorum heredum numero sunt, si praecedens persona desierit 〈in potestate parentis esse, siue morte id acciderit,〉 siue alia ratione, ueluti emancipatione. nam si per id tempus quo quisque moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus.
Inst. 3, 1, 1. 2; Collat. 16, 2, 2.
§ 3.Vxor quoque quae in manu uiri est ei sua heres est, quia filiae loco est. item nurus quae in filii manu est, nam et haec neptis loco est. sed ita demum erit sua heres, 〈si〉 filius, cuius in manu fuerit, cum pater moritur, in potestate eius non sit. idemque dicemus et de ea quae in nepotis manu matrimonii causa sit, quia proneptis loco est.
Collat. 16, 2, 3.
§ 4.Postumi quoque, 〈qui〉 si uiuo parente nati essent, in potestate eius futuri forent, sui heredes sunt.
Inst. l. c.; Collat. 16, 2, 4.
§ 5.Idem iuris est de his, quorum nomine ex lege Aelia Sentia uel ex senatusconsulto post mortem patris causa probatur. nam et hi uiuo patre causa probata in potestate eius futuri essent.
Collat. 16, 2, 5; cf. Collat 3, 7.
§ 6. Quod etiam de eo filio, qui ex prima secundaue mancipatione post mortem patris manumittitur, intellegemus.
§ 7. Igitur cum filius filiaue et ex altero filio nepotes neptesue extant, pariter ad hereditatem uocantur; nec qui gradu proximior est, ulteriorem excludit. aequum enim uidebatur nepotes neptesue in patris sui locum portionemque succedere. pari ratione et si nepos neptisue sit ex filio et ex nepote pronepos proneptisue, simul omnes uocantur ad hereditatem.
Inst. 3, 1, 6.
§ 8. Et quia placebat nepotes neptesue, item pronepotes proneptesue in parentis sui locum succedere, conueniens esse uisum est non in capita, sed 〈in〉 stirpes hereditatem diuidi; ita ut filius partem dimidiam hereditatis ferat et ex altero filio duo pluresue nepotes alteram dimidiam; item si ex duobus filiis nepotes extent, ex altero filio unus forte uel duo, ex altero tres aut quattuor, ad unum aut ad duos dimidia pars pertineat et ad tres aut quattuor altera dimidia.
Inst l. c.
§ 1. Intestate inheritances by the law of the Twelve Tables devolve first on self-successors (sui heredes).
§ 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees.
§ 3. A wife in the hand of her husband is a self-successor to him, for she is in the position of a quasi daughter; also a son’s wife in the hand of the son, for she is a granddaughter: subject, however, to the proviso that she is not self-successor if her husband is in the power of his father at the time of his father’s death. A wife in the hand of a grandson is a self-successor, subject to the same proviso, because she is in the position of a great-granddaughter.
§ 4. Afterborn children, who, if born in the lifetime of the parent, would have been subject to his power, are self-successors.
§ 5. Also those in whose behalf the provisions of the lex Aelia Sentia or the senatusconsult have been satisfied by proof of excusable error subsequently to the death of the parent, for if the error had been proved in the lifetime of the parent they would have been subject to his power.
§ 6. Also, a son, who has undergone a first or second mancipation and is manumitted after the death of the father, is a self-successor.
§ 7. Accordingly, a son or daughter and grandchildren by another son are equally called to the inheritance; nor does the nearer grade exclude the more remote, for justice seemed to dictate that grandchildren should succeed to their father’s place and portion. Similarly, a grandchild by a son and a great-grandchild by a grandson by a son are called contemporaneously to the inheritance.
§ 8. And as it was deemed to be just that grandchildren and great-grandchildren should succeed to their father’s place, it seemed consistent that the number of stems (stirpes), and not the number of individuals (capita), should be the divisor of the inheritance; so that a son should take a moiety, and grandchildren by another son the other moiety; or if two sons left children, that a single grandchild or two grandchildren by one son should take one moiety, and three or four grandchildren by the other son the other moiety.
§ 1. The words ‘testate’ and ‘intestate,’ in the language of English lawyers, are only applicable, I believe, to a deceased person. The awkwardness of having no corresponding adjectives to couple with succession or inheritance must be my apology for sometimes speaking of testate or intestate succession or inheritance.
§ 2. For the meaning of suus heres see commentary on 2 §§ 157, 123.
§ 5. Cf. 1 §§ 29, 32; 2 § 142.
§ 6. Cf. 1 § 132; 2 § 141.