BOOK III. $180. FIDEICOMMISSA. FIDEICOMMISSUM is the informal bequest to a third person (fideicommissarius) imposed by way of request a For the Eng- upon the heir or else an honoratus (fiduciarius).a lish trustee, see Blackst. ii. 3278 (Steph. i. 3578). Cf. Digby, P. 273; H. A. Smith, Principles of Equity,' pp. 18 19. § 187. e Infra. d D. 50, 16, 178, 2. Ulp. xxv. 2: Verba fideicommissorum in usu fere haec sunt: FIDEI COMMITTO, PETO, VOLO DARI et similia. § 9: Item Graece fideicommissum scriptum valet, licet legatum Graece scriptum non valeat.' Paul. iv. 1, § 5: Qui fideicommissum relinquit, etiam cum eo, cui relinquit, loqui potest, velut: PETO, GAI SEI, CONTENTVS SIS ILLA RE, aut VOLO TIBI ILLVD PRAESTARI.2 b These fideicommissa were not binding according to the older civil Law, and their fulfilment depended alone on the piety of the oneratus. It was first under Augustus that regard was in particular cases paid to the will of the testator by means of the extraordinaria cognitio of the consuls, and the fiduciarius was held to the performance of the fideicommissum. From this was gradually developed in constant practice normal legal enforcement of all fideicommissa(praetor fideicommissarius)—and so the recognition of fideicommissa as a regular legal institute of the Civil Law, although they could always alone be made available extra ordinem,d Inst. ii. 23, §§ 1, 12: Sciendum itaque est omnia fideicommissa primis temporibus infirma esse, quia nemo invitus cogebatur praestare id de quo rogatus erat. Quibus enim non poterant 1 The language of bequests in trust which is commonly used is this: I commit to your trust,' 'I ask,' 'I wish to be given ' and the like.-§ Likewise a fideicommissum written in Greek is valid, though a legacy written in Greek is not. 2 He that leaves a fideicommissum can also parley with the legatee thus: 'I beg, G. S., that you will be satisfied with that thing,' or 'I desire that such and such a thing be made over to you.' Part III. hereditates vel legata relinquere, si relinquebant, BOOK III. Ulp. xxv. 12: Fideicommissa non per formu- 1 It must, then, be observed that in the earliest times all bequests in trust were invalid, because no one was compelled against his will to perform that which he was only requested to do. For when people left anything to those to whom they could not leave an inheritance or legacies, they entrusted them to the good faith of such as could take under the testament; and therefore what was left was called gifts in trust, because it rested on no legal obligation, but only on the conscientiousness of those who were asked to carry them out. Afterwards, the Emp. Augustus, being repeatedly moved by personal consideration (or because some one was asked, 'by the Emperor's safety,' or on account of some notable cases of perfidy), ordered the consuls to interpose their authority. As this seemed equitable, and in the general interest, it was gradually turned into a regular jurisdiction; and so great became the popularity of bequests in trust that in time a special Praetor was appointed to adjudicate upon fideicommissa, and he was called the Praetor for bequests in trust.-The first beginning of bequests in trust depended on the good faith of heirs, and so derived their name and essence, and for this reason the Emp. Augustus rendered them binding in law. BOOK III. quidem consulum aut praetoris, qui fideicommissarius vocatur, in provinciis vero praesidis provinciae.1 Like the legatum, the fideicommissum requires testamenti factio of the testator and of the beneficiary. Ulp. xxv. § 4: Fideicommissum relinquere possunt, qui testamentum facere possunt.— §§ 6-7: Fideicommissa dari possunt his, quibus legari potest.-Latini Iuniani fideicommissum capere possunt, licet legatum capere non possint." But it is fettered by none of the prescribed forms that are operative in the case of the legatum, Ib. 8: Fideicommissum et ante heredis institutionem et post mortem heredis et codicillis etiam non confirmatis testamento dari potest, licet ita legari non possit.3 And further, it can be imposed upon not merely the testamentary heir, but a legatee also or fideicommissary, even an heir in intestacy. Gai. ii. § 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.* 1 Fideicommissa are not, like legata, sued for by formula, but at Rome upon investigation by the consuls or the so-called Fideicommissary Praetor, in the provinces upon investigation by the President. 2 Those can leave a fideicommissum who can make a testament.-Fideicommissa can be given to those persons to whom a bequest can be made. Junian Latins can take a fideicommissum, though they cannot take a legatum. A fideicommissum can be given both before the appointment of the heir and (to take effect) after the death of the heir, and even by a codicil unconfirmed in a testament, although legacies cannot be so left. Likewise a legacy cannot be charged upon a legatee, but a fideicommissum can be so left; nay more, we can again charge him to whom we have left a fideicommissum with a fideicommissum in favour of a third party. Ulp. cit. § 4: Etiam intestato quis moriturus fideicommissum relinquere potest.' a a BOOK III. l'art III. Supra, and § 179, ad init. Sec last ex tract above. Cf. § 181, and Codicil. el I (sup.). Also in respect of the disposition itself, the fideicommissum is under no restriction as to form. It can be legally left not only in the testament, but also, at discretion, in any writing by way of last will, codicilli (that is, strictly a letter to the future heir)and it is immaterial whether this is confirmed by a testament or not (codicilli testamento confirmati), indeed whether a testament is made or not (intestate codicil) or by word of mouth without any form: the mere certainty of the testator's will suffices for this. Inst. ii. 25 pr., § 1: Ante Augusti tempora Brown, s. constat ius codicillorum non fuisse, sed primus Lucius Lentulus, ex cuius persona etiam fideicommissa coeperunt codicillos introduxit. Nam cf. ib. ii. 23, cum decederet in Africa scripsit codicillos testamento confirmatos, quibus ab Augusto petiit per fideicommissum, ut faceret aliquid; et cum D. Augustus voluntatem eius implesset, deinceps reliqui auctoritatem eius secuti fideicommissa praestabant et filia Lentuli legata, quae iure non debebat, solvit. Dicitur Augustus convocasse prudentes, inter quos Trebatium quoque, cuius tunc auctoritas maxima erat, et quaes.isse, an possit hoc recipi nec absonans a iuris ratione codicillorum usus esset: et Trebatium suasisse Auguste, quod diceret utilissimum et necessarium hoc civibus esse propter magnas et longas peregrinationes, . . . ubi si quis testamentum facere non posset, tamen codicillos posset. Post quae tempora cum et Labeo codicillos fecisset, iam nemini dubium erat, quin codicilli iure optimo admitterentur.-Sed cum ante testamentum factum codicilli facti erant, Papinianus ait non aliter 1 Even a man about to die intestate can leave a fidei commissum. BOOK III. l'art III. vires habere, quam si speciali postea voluntate confirmentur; sed D. Severus et Antoninus rescripserunt, ex his codicillis qui testamentum praecedunt posse fideicommissum peti, si appareat eum, qui postea testamentum fecerat, a voluntate quam codicillis expresserat non recessisse.' Paul. Conficiuntur codicilli quattuor modis: aut enim in futurum confirmantur, aut in praeteritum, aut per fideicommissum testamento facto, aut sine testamento.-D. 29, 7, 8 pr. It is well known that no law of codicils existed before the time of Augustus, but Luc. Lent. was the first to introduce codicils, through whom also gifts in trust originated. For when he died in Africa, he wrote a codicil confirmed by his testament, in which he begged Augustus by way of fideicommissum to perform something; and when the Emperor Augustus had fulfilled his wish, the rest thereupon, following his example, paid the gifts in trust, and the daughter of Lent. discharged legacies which she was under no legal obligation to do. It is said that Augustus called together those learned in the law, and amongst them Trebatius, whose reputation then was the greatest, and inquired whether this could be allowed, and whether the employment of codicils did not conflict with legal principle; and then Treb. persuaded Augustus by saying that it was most useful and necessary for the citizens, on account of great and distant journeys, when a man, if unable to execute a testament, should still be able to make a codicil.After this time, when Labeo also had made a codicil, no one had a doubt any longer that codicils should be allowed with perfect right. But when a codicil has been made before the execution of the testament, Papin. asserts that it cannot be valid unless afterwards confirmed by express declaration; but the Empp. Severus and Antonine settled by rescript that a gift in trust under a codicil preceding a testament might be enforced if it should appear that he who afterwards made a testament had not departed from the wish which he had expressed in the codicil. Codicils are made in four ways; for they are either confirmed for a future time, or for past time, or by testament made by way of fideicommissum, or without a testament. |