been abstracted. Nay, in the absence of an inventory, it would seem that the hæres was bound to pay the legacies in full, although they exceeded the full value of the hæreditas.

TITLE XXIII.-OF FIDEICOMMISSARY HÆREDITATES, AND THE SENATUSCONSULTUM TREBELLIANUM.

It often hap

Pr. The origin of Fideicommissa or Trusts is curious. pened that a Roman citizen desired to benefit, by an act of last will, some person with whom he had no testamenti-factio, or .one who could receive only a part of what was left to him (1). In order to attain this end, a plan was adopted of appointing a hæres, or naming a legatee capable of succeeding, requesting him at the same time (2) to transfer to the party really intended to be benefited, the whole or a portion of the hæreditas, or of the legacy. Such were the first fideicommissa. Neither hæres nor legatee was bound by the Civil Law to carry such requests into effect, which were thus entrusted to their sense of honour and good faith (fideicommissa); but in course of time Augustus desired the Consuls to see to the execution of fideicommissa. The interference of these magistrates, which was both just and popular, gradually became a regular jurisdiction, and it was not long before a special Prætor, called prætor fideicommissarius, was appointed to decide cases of fideicommissa extra ordinem, G. 2, 278 (B. 4, t. 6).

But the power of making dispositions, under the form of fideicommissa, in favour of persons incapable of being appointed hæredes, or of receiving legacies, was from time to time modified. And at length the principle was established, that the same capacity was required in order to receive the benefit of a fideicommissum, as to receive the benefit of a legacy (3). Nevertheless, fideicommissa continued exempt from most of those strict rules of the Civil Law, to which legacies and institutiones hæredum continued subject (4).

The distinction between a legatum or legacy, and fideicommissum,

(1) For instance, a peregrinus, an unmarried person, and, before Hadrian, an incertus (p. 167).

(2) Justinian says that, originally, fideicommissa were not obligatory, because no one was bound to carry the request into effect. It is more accurate to say, that the testator made use of precatory words because he could not command the thing to be done.

(3) Such was the general rule in Ulpian's time, but there were exceptions (1.Ulp.

25, § 6, 7, 10).

(4) Thus, whilst legacies could only be made by a testator, and charged only on the hæres institutus, fideicommissa might be made even ab intestato, and charged on all those who, though not hæredes, had received something from the deceased (other distinctions, pp. 160, 167, 170). The fideicommissum did not immediately transfer the property, nor give an actio in rem: it only imposed an obligation and conferred a right of actio in personam (condictio).

or trust, lies in the terms used by the testator. A legacy must be given (legis modo et civilibus verbis) by the formulæ appropriate to the purpose; a disposition expressed in any other terms was a fideicommissum (1). But when Constantine did away with the necessity of using technical forms, it became difficult to draw the distinction. This difficulty induced Justinian to put legacies on the same footing as fidei-. commissa, and to assimilate their results.

As to the things which might be given by fideicommissum or trust (2), they may be described as particular things (t. 24), or universitates of rights and actions.

§ 2. A trust might therefore include the whole or only a portion of the hæreditas; and such fideicommissum might be given either by testament or ab intestato (by codicil), (vide t. 25, post) (3). If a person meant to dispose of the whole or of any portion of his hæreditas in favour of a fideicommissarius (cestui que trust) (4), his course was to appoint a hæres (5), and to direct him to make a transfer of it (restituere) to the person designated. Thus, after saying, Lucius Titius hæres esto, he would add, Rogo te, Luci Titi, ut cum primum poteris hæreditatem meam adire, eam Caio Seio reddas, restituas. Moreover, the fideicommissum, though it included the whole hæreditas, might be left unconditionally or conditionally, or to take effect after a time certain (p. 144).

This restitutio of the res hæreditaria was completed before delivery; for the hæres, by merely consenting, divested himself of his rights as hæres over the things in question, in favour of the cestui que trust.

§ 3. But the hæres did not cease to be such after the hæreditas had been transferred to the cestui que trust on the contrary he continued hæres; but the cestui que trust, though not a hæres (proper), was assimilated in some cases to the hæres by the Sc. Trebellianum, and in other cases to a legatee partiarius, by the Sc. Pegasianum.

The history of the law in this matter was this. Formerly, the hæres transferred the hæreditas to the cestui que trust by a fictitious sale; and then the cestui que trust was regarded neither as a hæres nor as a legatee partiarius, but as purchaser of the hæreditas (Gaius, 2, 252). Now the

(1) Ulp. (Reg. 25, 1) defines it: quod non civilibus verbis sed præcative relinquitur: nec ex rigore juris civilis proficiscitur, sed ex voluntate datur relinquentis.

(2) I shall use these words as synonym.

ous.

(3) The power to impose a trust on haredes ab intestato seems contrary to the principle that one is bound to give up only what he has received: for the hæredes legitimi may be said to receive nothing from the deceased but from the law. But observe, the deceased has in fact made a gift to the hæredes legitimi by not excluding

them tacitly, but really, he makes them his hæredes. Hence he who could not make a will could impose no trust on his hæredes legitimi, for they succeeded by mere operation of law. Legacies, unlike fideicommissa, required a testament (nisi ex testamento, § 10); and though given by a codicil, such codicil had to be confirmed by a testament (vide tit. 25, post).

(4) 1.e., he for whose benefit the trust is made.

(5) For if there was no hæres institutus to the testament the trusts it contained were null. Compare § 2 with § 10.

vendor of an hæreditas did not divest himself of the character of hæres, which was indelibly stamped upon him; he could do no more than transfer the benefits and burdens incident to him as hæres. Hence he alone continued liable to the actions brought by creditors and legatees, and was alone entitled to bring actions against debtors to the hæreditas; but the hæres and the purchaser entered into mutual guarantees in the form of stipulations empta et vendita hæreditatis, in order to secure to the cestui que trust all moneys received by the hæres, and to secure the hæres repayment of all moneys paid on account. Such were the stipulations between the hæres fiduciarius (trustee) and the fideicommissarius (cestui que trust).

§ 4. Now it often happened that the hæredes, unwilling to continue liable to the creditors and legatees, and at the same time fearing lest the insolvency of the cestui que trust should defeat their right to be reimbursed, refused to accept the hæreditas, which refusal annulled the testament. Hence the Sc. Trebellianum (A.D. 62), which decreed that after the transfer of the hæreditas, in obedience to the trust, all the actions which by strict law (jure civili), lay by or against the hæres, should be brought by (1) or against the transferee or cestui que trust. Hence, after this Senatus-consultum, the cestui que trust or fideicommissarius took, in fact, the place of hares.

§ 5. Still this Sc. failed to produce the intended effect of compelling the hæredes to accept the hæreditas; for whilst it secured the hæredes from all risk, it gave them no benefit beyond that which was reserved to them by the testator. Hence those hæredes instituti who were bound by the testament to transfer the whole, or almost the whole hæreditas, refused to accept it, since the benefit to them was nothing, or next to nothing. In short, the cases of intestacy by reason of hæredes instituti refusing to accept a hæreditas continued to occur. Consequently, and in order to remedy this evil, hæredes instituti (the successors appointed by will), were authorised to retain a fourth out of the fideicommissa either of universitates or of specific articles, just as in case of legacies by the Falcidian law. This was the leading provision of the Sc. Pegasianum (A.D. 73).

§ 5. But when the hæredes were permitted to retain a fourth by the Sc. Pegasianum, the right to bring actions and the liability to answer the same which originally attached to the hæres did not pass to the cestui que trust or fideicommissarius; on the contrary this Sc., as it allowed the hæredes to retain a fourth, left them capable of suing and liable to be sued. Hence the cestui que trust was regarded not as a hæres, but as a legatee partiarius; and the stipulations between the

(1) These actions were called (§ 4) utiles, for the cestui que trust was not the hæres proper; though direct actions might still be brought against the restitutor, who was

the hæres proper, they were barred by the exceptio restitutæ hæreditatis allowed by the Senatus-consultum.

hæres and the legatee partiarius were used as between the hæres and the cestui que trust who received the hæreditas; i.e., the hæres and the cestui que trust contracted mutual engagements, in the form of stipulations partis et pro parte, to share the profit to the hæreditas, of sums received from debtors, and the loss occasioned to the hæreditas by sums paid to the creditors of the deceased (p. 166, 7).

§ 6. Moreover the Sc. Pegasianum contained other provisions as to fideicommissa. By it if the hæres institutus refused (recuset) to accept the hæreditas, alleging doubts as to the amount of the incumbrances on it, the Prætor might, on the demand of the cestui que trust, compel the hæres to accept and to transfer the hæreditas without retaining anything; but the actions were brought by or against the cestui que trust, as if the case had been under the Sc. Trebellianum. In this case the operation of both Sc. concurred.

§ 6. It is to be observed that the Sc. Pegasianum did not repeal the Sc. Trebellianum: each of them applied to different cases. The Sc. Trebellianum applied, and consequently the cestui que trust occupied the place of hæres; 1. When the amount which the hæres institutus was bound to transfer did not exceed three-fourths of the hæreditas (1); 2. When the hæres institutus, not wishing to accept the hæreditas for himself, accepted it by the Prætor's direction, at the risk of the cestui que trust; 3. Lastly, when the hæres, not wishing to retain anything out of a hæreditas which he had voluntarily accepted, expressly declared that he transferred by the Sc. Trebellianum. On the other hand, the Sc. Pegasianum applied when the trust charged upon the hæres included the whole, or more than three-fourths of an hæreditas, which the hæres institutus voluntarily accepted and transferred after retaining his Pegasian fourth, or even without retaining it, unless, indeed, in such last case, he declared that he transferred the hæreditas by the Sc. Trebellianum. If there was restitutio under the Sc. Pegasianum, of three-fourths of the hæreditas, the cestui que trust was considered legatee partiarius, and the stipulatio partis et pro parte was used; but if, instead of three-fourths of the hæreditas, there was restitutio of the whole, the cestui que trust was deemed a purchaser, and the stipulatio emptæ et vendita hæreditatis was used.

§ 7. However, the intricacy of these rules and the inconvenience arising from the stipulations (2) of the Sc. Pegasianum, induced Justi

(1) Here actions were brought both by and against the hæres and cestui que trust in respect of their separate portions, viz. against the hæres by the civil law, and against the cestui que trust by the Sc. Trebellianum.

(2) Justinian says that the inconvenience

of these stipulations was felt by the ancients, and that Papinian declared them captiosas. For in the series of actions and accounts to which they gave rise, each party was exposed to the danger of the other being insolvent.

nian to simplify the restitutio or transfer to fideicommissarii or cestuis que trust from the hæres fiduciarius or trustee. Accordingly he abolished the Sc. Pegasianum, or, rather, he combined the provisions of both laws into one, which continued to be called Sc. Trebellianum. By this new law the hæres, who voluntarily accepted the hæreditas, might retain one-fourth thereof (1) without being made liable to any charges beyond those attaching to such portion of the hæreditas, the right to bring actions, and liability to answer the same, being transferred to the cestui que trust, in proportion to the value of the part of the hæreditas claimed by him. If the hæres refused to accept the hæreditas, he might be forced to do so, and to transfer it entire, at the risk of the cestui que trust.

§ 8. The hares appointed to a portion of an hæreditas, was entitled to deduct a proportional part thereof, as the hæres appointed to the whole was entitled to deduct a fourth of the whole. It mattered not in this respect whether the hæres appointed to the whole hæreditas was requested to transfer the whole or a part thereof, or whether the hæres appointed to a portion of an hæreditas was requested to transfer the whole or a part of such portion. The same rule applied to both cases (p. 183).

§ 9. When a testator, instead of leaving the fourth to the hæres institutus, reserved to him one or more specific articles, e.g., a piece of land, a sum of money equal in value to at least a fourth of the hæreditas, the transfer or restitutio thereof from the hæres fiduciarius to the fideicommissarius was made by the Sc. Trebellianum, just as if the fourth had been reserved. In both cases the cestui que trust was loco hæredis, and he might bring, and was liable to answer, all actions incident to the hæreditas. But there was this difference: where the testator had reserved the fourth of the hæreditas, the hæres fiduciarius and the cestui que trust were entitled to bring and liable to answer actions according to the share which each of them had in the hæreditas, just as if they had been co-hæredes; but where the testator had reserved to the hæres certain specific things, the hæres held them as legacies (quasi ex legato), and not as a portion of the hæreditas, and therefore the right to bring, and the liability to answer, actions, was with the cestui que trust alone. Since, therefore, these specific things might exceed in value the residue of the hæreditas after payment of debts, it was for the cestui que trust, who had alone to answer the charges on the hæreditas, to consider whether he should accept or refuse the proposed transfer (an expediat sibi restitui). This law was retained by Justinian.

(1) Justinian allowed the hæres to recover any sum beyond the three-fourths paid through mistake (of fact) to the cestui

que trust.-P. 184 applies here as to valuation and reduction.