II. Fideicommissum. Besides the formal legatum, an informal kind of bequest came into use which was called 'fideicommissum.' A fideicommissum arose, where the deceased, with a view to conferring a benefit on a third party, imposed on another, in precatory terms (verbis precativis), a purely conscientious obligation (hence the name 'fidei commissum') to make over to the third party the benefit thus informally conferred on him. The person on whom the conscientious obligation was imposed was called the 'fiduciarius'; the third party, on whom the benefit was conferred, was called the 'fideicommissarius.' A fideicommissum could be created apart from the testator's will, and in the absence of any will-being imposed on the heir ab intestato―or again it could be charged on a person other than the heir, e. g. on a legatee. A fideicommissum could be imposed on any person including the fideicommissarius himself-who received any benefit from the testator on his (the testator's) death. It might be created by parol or by writing, and either with or without witnesses. As a rule it took the form of a letter (codicilli) addressed to the fiduciarius. In spite of their informality fideicommissa became legally enforceable from the time the Emperor Augustus established an extraordinaria cognitio in favour of fideicommissarii. The magistrate-a special 'praetor fideicommissarius' was subsequently appointed to adjudicate on such matters-was empowered, causa cognita, to compel the fiduciarius, where he saw fit, to perform the trust in favour of the beneficiary (supra, p. 113). The right which the beneficiary acquired by virtue of the fideicommissum was in every case a mere obligatory right against the person charged with the trust, and never a direct right of ownership. Nevertheless it was obvious that the rules concerning the fideicommissum, the bequest of the jus gentium, were gradually revolutionizing all the civil law rules on legacies. Practically speaking, formal and informal bequests had come to produce precisely the same result, viz. an obligation on the part of the heir to make over the thing bequeathed. § II. de fideic. hered. (2, 23): Sciendum itaque est omnia fideicommissa primis temporibus infirma esse, quia nemo $115. $115. invitus cogebatur praestare id de quo rogatus erat. Quibus enim non poterant hereditates vel legata relinquere, si relinquebant, fidei committebant eorum qui capere ex testamento poterant. Et ideo fideicommissa appellata sunt, quia nullo vinculo juris, sed tantum pudore eorum qui rogabantur continebantur. Postea primus divus Augustus, semel iterumque gratia personarum motus, vel quia per ipsius salutem rogatus quis diceretur, aut ob insignem quorundam perfidiam, jussit consulibus auctoritatem suam interponere. Quod quia justum videbatur et populare erat, paulatim conversum est in adsiduam jurisdictionem, tantusque favor eorum factus est ut paulatim etiam praetor proprius crearetur qui de fideicommissis jus diceret, quem fideicommissarium appellabant. ULP. tit. 25 § 1: Fideicommissum est quod non civilibus verbis, sed precative relinquitur, nec ex rigore juris civilis proficiscitur, sed ex voluntate datur relinquentis. § 2: Verba fideicommissorum in usu fere haec sunt: FIDEICOMMITTO, PETO, VOLO DARI, et similia. § 3: Etiam nutu relinquere fideicommissum usu receptum est. Eod. § 4 Fideicommissum relinquere possunt qui testamentum facere possunt, licet non fecerint. Nam intestato quis moriturus fideicommissum relinquere potest. Eod. § 12: Fideicommissa non per formulam petuntur, ut legata, sed cognitio est Romae quidem consulum, aut praetoris qui fideicommissarius vocatur, in provinciis vero praesidum provinciarum. III. The Assimilation of Legata and Fideicommissa. The assimilation of legata and fideicommissa was effected by disencumbering the former of their traditional forms (e. g. the solennia verba), on the one hand, and by imposing certain forms on fideicommissa, on the other hand. Constantine had already enacted that legata should be valid even without solennia verba, testators being therefore left free to use whatever words they chose. Justinian finally proceeded to sweep away the distinction altogether. Under Justinian there was but one kind of bequest, and it was called indifferently legatum or fideicommissum. The rule in Justinian's law was that every legacy, whatever the § 115. form in which it was given, should impose on the person charged with it an obligation to carry it into effect. The legatee's remedy was an actio in personam against the person charged, viz. the actio legati. If the testator directly bequeathed a right of ownership or any other real right in a thing belonging to the inheritance, the legatee acquired the real right thus bequeathed at once, without any traditio on the part of the heir, the right so acquired being additional to the legatee's right in personam 2. As regards form, Justinian's law demanded that every bequest should be given either by a will or by a codicil. The formal requirements of a codicil were the same as those of a will-it could accordingly be executed either orally or in writing-except that, in the case of a codicil, five witnesses were sufficient and the seals of the witnesses might be dispensed with. A codicil might be executed without any will (codicilli ab intestato), or in addition to a will (codicilli testamentarii); and in the latter case it might be either confirmed by the will (codicilli confirmati) or not confirmed by the will (codicilli non confirmati). Justinian, however, provided that, even where a testator gave a bequest by means of a simple declaration to the person upon whom he charged it, without any formality whatever, the beneficiary should be allowed to sue for the bequest, but that if the person charged denied on oath that any such bequest had in fact been imposed on him, the beneficiary should not be entitled to recover it. This was the so-called 'fideicommissum orale,' an institution testifying to the survival of the old principles of fideicommissa even in the law of the Corpus juris. §3 I. de leg. (2, 20): Cum enim antiquitatem invenimus legata quidem stricte concludentem, fideicommissis autem, quae ex voluntate magis descendebant defunctorum, pinguiorem naturam indulgentem, necessarium esse duximus omnia legata According to the German Civil Code the only effect of a legacy is to impose an obligation on the person charged with the legacy. Under the Code therefore every legacy operates in the same way as a legatum per damna tionem. The Code has abolished the n. 4. $115. fideicommissis exaequare, ut nulla sit inter ea differentia, sed, quod deest legatis, hoc repleatur ex natura fideicommissorum, et si quid amplius est in legatis, per hoc crescat fideicommis sorum natura. § 116. § 116. Restrictions on Bequests. The heir's liability for bequests is limited, of course, to the inheritance and never extends to his own property, for a bequest is, by its very nature, a benefit conferred at the expense of an inheritance. A further limitation of the heir's liability in respect of bequests becomes, however, desirable in the interests of the legatees themselves. For if the heir is directed to pay away the entire inheritance in legacies, it is scarcely likely that he will be disposed to accept an inheritance thus encumbered, without any advantage whatever to himself and solely in the interests of others. He will prefer, in such circumstances, to refuse the inheritance, the result being that the legatees receive none of the benefits intended for them. It becomes therefore advisable, in the interests of the parties concerned, to effect a sort of compromise between the heir and the legatees, which shall offer the former some inducement to accept the inheritance and shall, at the same time, secure to the latter a portion, at any rate, of their legacies. Attempts at a compromise of this kind were repeatedly made in Roman legislation. Thus a lex Furia enacted that no legateeunless he were a close relation—should be entitled to demand more than 1000 asses in respect of a legacy. The lex Voconia (169 B.C.) provided that no legacy should be in excess of the amount given to the heir. The object aimed at by the legislature was at last effectually secured by the lex Falcidia (40 B.C.), which provided that a testator should, in all cases, leave his heir one clear fourth of the inheritance (the so-called 'quarta Falcidia') free of legacies. If the aggregate value of the legacies charged on the heir exceeded the fixed limit (viz. three fourths of the share of the inheritance to which 1 As to these popular enactments, see the recent observations of Karlowa in his Röm. RG., vol. ii. p. 939 ff. such heir was entitled), they all suffered a proportionate abatement. § 116. The lex Falcidia only applied, in the first instance, to legacies; the SC. Pegasianum (75 A.D.) subsequently extended it to fideicommissa. In any case, however, the benefits of the law only affected the heir, and not a legatee who, in his turn, was charged with legacies. By the law of Justinian a testator was permitted to exclude his heir from the quarta Falcidia, and if the heir failed to draw up an inventory of his testator's estate (supra, p. 588), he was punished by forfeiting his right to the quarta. The German Civil Codefollowing in this respect the more recent legislation of the separate German States-has entirely abolished the rules as to the quarta Falcidia, and the heir is now in every case liable for the legacies to the extent of the estate. GAJ. Inst. II § 224: Sed olim quidem licebat totum patrimonium legatis atque libertatibus erogare, nec quicquam heredi relinquere, praeterquam inane nomen heredis. Idque lex XII tabularum permittere videbatur, qua cavetur ut quod quisque de re sua testatus esset, id ratum haberetur, his verbis: UTI LEGASSIT SUAE REI ITA JUS ESTO. Quare, qui scripti heredes erant, ab hereditate se abstinebant; et idcirco plerique intestati moriebantur. § 225: Itaque lata est lex Furia, qua, exceptis personis quibusdam, ceteris plus mille assibus legatorum nomine mortisve causa capere permissum non est. Sed et haec lex non perfecit quod voluit. Qui enim verbi gratia quinque milium aeris patrimonium habebat, poterat, quinque hominibus singulis millenos asses legando, totum patrimonium erogare. § 226: Ideo postea lata est lex Voconia, qua cautum est ne cui plus legatorum nomine mortisve causa capere liceret quam heredes caperent. Ex qua lege plane quidem aliquid utique heredes habere videbantur, sed tamen fere vitium simile nascebatur. Nam in multas legatariorum personas distributo patrimonio, poterat testator adeo heredi minimum relinquere ut non expediret heredi hujus lucri gratia totius hereditatis onera sustinere. § 227: Lata est itaque lex Falcidia, qua cautum est ne plus ei legare liceat quam dodrantem. Itaque necesse est ut heres quartam partem hereditatis habeat; et hoc nunc jure utimur. |