reason that he (the the whole transaction was a mere singular succession. The fidei- § 117. commissarius acquired the rights of the deceased, but the fiduciarius remained liable for his debts, for the simple fiduciarius) remained, in all respects, the heir. was that the fideicommissarius was bound to against any liabilities he incurred'. The only difference It was at this point that the SC. Trebellianum (62 A.D.) took the decisive step, by enacting, in effect, that the declaration by which the heres fiduciarius transferred the inheritance should operate, immediately and of its own force, to transfer not only the assets, but also an aliquot share of the liabilities to the universal fideicommissarius. That is to say, the mere declaration by which the fiduciarius transferred the inheritance had ipso jure the effect of entitling the fideicommissarius-assuming him to have accepted the bequest-to enforce the testator's rights by praetorian actiones utiles, and, on the other hand, the effect of rendering him liable to the creditors of the estate suing-also by praetorian actiones utiles-in respect of the debts left by the deceased. The heres fiduciarius, having parted with the assets, was at the same time discharged from the debts. So far as he had transferred the inheritance, he continued to be heir only in name. The transferee, on the other hand (the universal fideicommissarius), stood loco heredis to the extent of the share transferred to him-i.e. the praetorian law treated him to the extent stated in all respects as if he were actually the heir-and accordingly he had the same legal remedies as the heir, the hereditatis petitio being granted to him in the shape of an hereditatis petitio fideicommissaria. The fact that he took over the debts as well as the rights distinguished him as a universal successor from a person who had really received a mere legacy. The universal 1 The effect produced by a 'partitio legata,' which was feasible according to the civil law, was the same as that described in the text. In the case of a partitio legata the legatee received an aliquot share of the assets subject to an obligation to indemnify the heir to the extent of a corresponding share of the liabilities. As in the case above, so here, both parties covenanted by stipu § 117. fideicommissum constituted practically a new mode of instituting an heir, and a mode which, so far from being hampered with the restrictions incident to a formal institution, was governed, in all its requisites, by the far freer rules concerning fideicommissa. A universal fideicommissum might be created, like any other fideicommissum, in favour of a person who was not in existence, not even as a nasciturus, at the date of the testator's death. A universal fideicommissum might, like any other fideicommissum, be made subject to a dies a quo, the testator providing that the heir should not be required to hand over his share till after the lapse, say, of ten years. And again, a universal fideicommissarius, like any other fideicommissarius, might be charged with a second fideicommissumin this case, again, a universal fideicommissum-which latter fideicommissum might, in its turn, be made subject to a condition or a limitation as to time (dies). Thus, through the medium of a universal fideicommissum, it became in fact possible to institute an heir subject to a dies a quo or a dies ad quem or a resolutive condition, which, as we have seen above (p. 577), was inadmissible in the case of a formal heredis institutio. The result thus arrived at was modified, to some extent, by the SC. Pegasianum (75 A.D.) which extended the quarta Falcidia from legacies to fideicommissa, including universal fideicommissa (supra, p. 601). If the fourth was actually deducted by the heres fiduciarius, the result was, once more, a mere singular succession, and the necessity for stipulationes partis et pro parte arose again. But the universal fideicommissarius was, at the same time, given the right to compel the instituted heres fiduciarius to enter upon, and consequently also to transfer, the inheritance. If he availed himself of this right, the Falcidian fourth was not deducted, and the fideicommissarius-who was now a universal fideicommissarius-stepped, in all respects, into the place of the heir who had thus compulsorily entered upon the inheritance. Justinian brought the development to a close by consolidating the SC. Pegasianum and the SC. Trebellianum. The heres fiduciarius was allowed to retain his fourth-called by modern writers the 'quarta Trebellianica'-but even where the fourth was deducted, the universal fideicommissarius became a universal successor in § 117. respect of the three fourths transferred to him, the transfer thus operating ipso jure to render him answerable for his share of the debts. Moreover, the universal fideicommissarius had the same right of compulsion as against the heir as he possessed under the SC. Pegasianum, and if he exercised this right, the whole share of the heir was transferred to him. A universal fideicommissum had thus been definitively converted into an indirect mode of heredis institutio resulting in all cases in a universal succession. In its practical result a universal fideicommissum became in Roman law the means by which a testator appointed one or more heirs in succession to the heir first appointed. Cp. the sections of the German Civil Code dealing with 'Nacherben' (§ 2100 ff.). § 2 I. de fideic. her. (2, 23): Cum igitur aliquis scripserit: LUCIUS TITIUS HERES ESTO, poterit adjicere: ROGO TE, Luci Titi, UT, CUM PRIMUS POSSIS HEREDITATEM MEAM ADIRE, EAM GAJO SEJO REDDAS, RESTITUAS. Potest autem quisque et de parte restituenda heredem rogare, et liberum est vel pure vel sub condicione relinquere fideicommissum vel ex die certo. Eod. 3: Restituta autem hereditate, is quidem qui restituit nihilominus heres permanet; is vero qui recipit hereditatem aliquando heredis, aliquando legatarii loco habebatur. § 4: Et Neronis quidem temporibus, Trebellio Maximo et Annaeo Seneca consulibus, senatusconsultum factum est, quo cautum est, ut, si hereditas ex fideicommissi causa restituta sit, omnes actiones quae jure civili heredi et in heredem competerent ei et in eum darentur cui ex fideicommisso restituta esset hereditas. Post quod senatusconsultum praetor utiles actiones ei et in eum qui recipit hereditatem quasi heredi et in heredem dare coepit. Eod. § 5: Sed quia heredes scripti, cum aut totam hereditatem, aut paene totam plerumque restituere rogabantur, adire hereditatem ob nullum vel minimum lucrum recusabant, atque ob id extinguebantur fideicommissa: postea, Vespasiani Augusti temporibus, Pegaso et Pusione consulibus, senatus censuit, ut ei qui rogatus esset hereditatem restituere, perinde liceret quartam partem retinere atque lege Falcidia § 117. § 118. ex legatis retinere conceditur. Ex singulis quoque rebus quae per fideicommissum relinquuntur eadem retentio permissa est. Post quod senatusconsultum ipse heres onera hereditaria sustinebat, ille autem qui ex fideicommisso recipit partem hereditatis legatarii partiarii loco erat, id est ejus legatarii cui pars bonorum legabatur; quae species legati partitio vocabatur, quia cum herede legatarius partiebatur hereditatem. Unde quae solebant stipulationes inter heredem et partiarium legatarium interponi, eaedem interponebantur inter eum qui ex fideicommisso recipit hereditatem et heredem, id est, ut et lucrum et damnum hereditarium pro rata parte inter eos commune sit.—§ 6: Sed si recuset scriptus heres adire hereditatem ob id quod dicat eam sibi suspectam esse quasi damnosam, cavetur Pegasiano senatusconsulto, ut, desiderante eo cui restituere rogatus est, jussu praetoris adeat et restituat hereditatem, perindeque ei et in eum qui recipit hereditatem actiones dentur ac si juris est ex Trebelliano senatusconsulto. Quo casu nullis stipulationibus opus est, quia simul et huic qui restituit securitas datur et actiones hereditariae ei et in eum transferuntur qui recipit hereditatem, utroque senatusconsulto in hac specie concurrente. Eod. § 7 Sed . . . placuit, exploso senatusconsulto Pegasiano quod postea supervenit, omnem auctoritatem Trebelliano senatusconsulto praestare, ut ex eo fideicommissariae hereditates restituantur, sive habeat heres ex voluntate testatoris quartam sive plus sive minus sive penitus nihil, ut tunc quando vel nihil vel minus quarta apud eum remaneat, liceat ei vel quartam vel quod deest ex nostra auctoritate retinere, vel repetere solutum, quasi ex Trebelliano senatusconsulto pro rata portione actionibus tam in heredem quam in fideicommissarium competentibus. § 118. Mortis causa capio. Mortis causa capio is a general term for any mode of acquisition that takes effect by virtue of the last wishes of a dead person. It means more particularly a mode of acquisition on death which does not take the form of a succession to an inheritance or of a legacy. Where, for example, a testator institutes Maevius as his heir subject § 118. to the condition: 'si Titio decem dederit,' and Maevius pays Titius the money 'condicionis implendae causa,' the receipt by Titius of the money would be a case of mortis causa capio. A mortis causa donatio (supra, p. 224) is also a form of mortis causa capio. True, a mortis causa donatio is not deemed part of the inheritance, but is held to vest as from the last moment of the life of the deceased, and is consequently independent of the aditio of the inheritance. Nevertheless, a mortis causa donatio is governed, on principle, by the same rules of law as a legacy, because, like a legacy, it reduces the amount of the estate and represents, in that sense, a disposition on the part of the deceased concerning the property to be left by him on his death. A mortis causa donatio can be validly constituted in all cases-even where it exceeds the limits imposed on gifts (supra, p. 223)-by means of a codicil, i. e. without the necessity of a judicial insinuatio. It is subject to the deduction of the Falcidian fourth by the instituted heir, and-like a legacy again-it presupposes the solvency of the estate, so that it can only take effect, if sufficient assets remain after deducting the debts. |