$181. ASSIMILATION OF LEGATA AND FIDEICOMMISSA. BOOK III. Part III. From the time that dispositions could be validly made by legata, not merely in the testament, but also in codicilli testamento confirmati, and later on-when already by the SC. Neronianum" the rules as to form a § 179, ad fiu. had been relaxed-according to a constitution of Constantine, even without any observance of solemn forms, the difference between legata and fideicommissa was confined practically to the fact that the former were the bequests charged upon a testamentary heir, the latter such as were charged upon a legatee or fideicommissary and those left ab intestato. Imp. Const. In legatis vel fideicommissis verborum necessaria non sit observantia, ita ut nihil prorsus intersit, quis talem voluntatem verborum casus exceperit aut quis loquendi usus effuderit.-C. 6, 37, 21.1 Justinian, finally, assimilated legata and fideicommissa in such way, that henceforth the most favourable legal propositions for the one shall also avail for the other. Cum 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, sed quod deest legatis hoc repleatur ex natura fideicommissorum, et si quid amplius est in legatis, per hoc crescat fideicommissorum natura.-§ 3, I. de leg. 2, 20.3 1 In legacies or bequests in trust there can be no necessary rule as to words, so that it is altogether immaterial what form of words a man uses in order to such a declaration of his will, or in what manner of speech he has expressed himself. 2 Having observed that the ancients confined legacies in fact within narrow compass, but accorded a more comprehensive character to gifts in trust, as arising more from the wishes of BOOK III. a Inst. Inst. Ulp.: Per omnia" exaequata sunt legata fideicommissis.-1. 1, D. eod. I (30).' On the other hand, the previous informality of codicilli (not merely of testamento non confirmati) was not kept up; from the time of Theodosius the Great and Justinian they can be made only in the presence of five witnesses, in writing or by word of mouth. Imp. Constantin. In codicillis, quos testamentum non praecedit, . . . septem testium vel quinque interventum non deesse oportet, . . . ut testantium successiones sine aliqua captione serventur.-C. Th. 4, 4, 1.a : Imp. Theod. In omni ultima voluntate, excepto testamento, quinque testes . . . in uno eodemque tempore debent adhiberi, sive in scriptis sive sine scriptis voluntas conficiatur, testibus videlicet, quando scriptura voluntas componitur, subnotationem suam accommodantibus.-C. 6, 36, 8, 3.3 He that makes a testament can direct that it shall be treated as a codicil, in case it should not stand good as a testament :-codicillary clause (clausula codicillaris). In this case institutions of heir, and other provisions by last will met with in the testament, have the deceased, we have deemed it necessary to make all legacies equal to gifts in trust, so that there be no difference between them, but that what is defective in legacies be made up from their character as gifts in trust, and if legacies possess any advantage, gifts in trust will acquire an extended character. 1 Legacies have in all respects been assimilated to bequestsin trust. 2 In codicils not preceded by a testament . . . the interven tion of seven or five witnesses must not fail, . . so that testamentary successions be preserved without prejudice. 3 In every disposition by last will, save a testament, five witnesses ought to be called in at one and the same time, whether the declaration be made in writing or without writing; the witnesses of course adding their subscription when the declaration is made in writing. the signification of fideicommissa-universal or singular -imposed upon the heir in intestacy. Ulp. Plerique solent, cum testamenti faciunt perscripturam, adiicere velle hoc etiam vice codicillorum valere.-D. 29, 1, 3.' Paul. Ex ea scriptura, quae ad testamentum faciendum parabatur, si nullo iure testamentum perfectum esset, nec ca, quae fideicommissorum verba habent, peti posse. § Ex his verbis, quae scriptura paterfamilias addidit: ‘ταύτην τὴν διαθήκην βούλομαι εἶναι κυρίαν ἐπὶ πάσης ἐξουσίας [hoc testamentum volo esse ratum, quacumque ratione poterit],' videri eum voluisse omnimodo valere ea quae reliquit, etiamsi intestatus decessisset.-D. 28, 1, 29.9 = $182. LIMITATION OF BEQUESTS; THE QUARTA FALCIDIA IN PARTICULAR. a BOOK III. 120. Part III. The unrestrained freedom of bequest a originally ap- " Cf. D. 50, 16, pertaining to every testator often resulted in the testament becoming 'destitutum,' and dissipation of the heritage an impropriety which legislation endeavoured to meet by restrictions as to the extent of legacies. Gai. ii. § 224: Sed olim quidem licebat totum patrimonium legatis atque libertatibus erogare, nec quidquam 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 1 Very many in their written testament are wont to add that, it is their will that this shall also pass as a codicil. 2 Upon such a document as was intended to constitute a testament if the testament was altogether imperfect, one cannot either lay claim to fideicommissa which are contained in it. From the following words, which a pat. fam. added in writing, My will is that this testament shall be valid in whatever way it can,' it appears to have been his will that his bequests should stand good in all events, although he should have died intestate. BOOK III. verbis VTI LEGASSIT SVAE REI, ITA IVS ESTO: quare qui scripti heredes erant, ab hereditate se abstinebant et idcirco plerique intestati moriebantur.1 as First of all, the lex Furia (a lex minus quam pera Sce § 4, ad fin. fecta) a fixed as maximum for every legacywell as mortis causa donatio-the sum of 1000 asses, with the exception of legacies left to certain near relations. Cf. Vat. fgm. 216,218; D. 38, 8, 1, 3. Ulp. fgm. 2: Minus quam perfecta lex est, quae vetat aliquid fieri, et si factum sit, non rescindit, sed poenam injungit ei, qui contra legem fecit: qualis est lex Furia testamentaria, quae plus quam mille asses legati nomine mortisve causa prohibet capere praeter exceptas personas, et adversus eum, qui plus ceperit, quadrupli poenam constituit." Vat. fgm. 301 (Paul.): Lex Furia sex gradus et unam personam ex septimo gradu excepit, sobrino natum.3 Gai. ii. 225: Sed haec lex non perfecit quod voluit: qui enim verbi gratia quinque milium aeris patrimonium habebat, poterat quin 1 But of old it was in fact lawful to expend the whole of a patrimony in legacies and gifts of freedom, and to leave nothing to the heir save the empty title of heir; and a law of the Twelve Tables was considered to permit this, in which it is provided that the disposition made by a man of his estate should be valid in these words: As a man shall have bequeathed a legacy of his property, so let it be law.' Wherefore those who were appointed heirs kept aloof from the inheritance, and thus many persons died intestate. 2 A law less than perfect is one that forbids something to be done, and if it have been done, does not rescind it, but imposes a penalty on him who has acted contrary to the law: such is the 1. Furia Testamentaria, which forbids persons, other than those exempted, from taking more than a thousand asses as a legacy or gift in view of death, and appoints a fourfold penalty against a person that has taken more. 3 The 1. Furia excepted six degrees, and one person from the seventh degree, the child of a cousin-german. que hominibus singulis millenos asses legando BOOK III. totum patrimonium erogare.' Part III. As this limitation proved to serve the purpose little, the lex Voconia"-which in general made a great in- " Gai. ii. 274. road upon freedom of testation-provided in respect of the testaments of all citizens enrolled in the first class, that no legacy (or mortis causa donatio) should exceed the amount of the share of the property remaining to the heir (or of the hereditary portions of all the heirs) beyond that. b and that it should be inoperative ' cr. § 185. Ib. § 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, huius lucri gratia totius hereditatis onera sustinere.2 Effectual relief was finally afforded by the lex Falcidia (A.U. 714), according to which there should remain undiminished by legacies to each heir one-fourth of the heritage; in the case of several heirs, to each one-fourth of his hereditary share:- QUARTA FALCIDIA. Gai. ii. § 227: Lata est itaque lex Falcidia, 1 But this lex did not accomplish its object. For he who had, for example, a patrimony of 5000 asses, could expend his whole patrimony by bequeathing 1000 asses to each of five persons. 2 Hence, the 1. Voconia was afterwards passed, by which it was provided that no one should be allowed to take more by way of legacy or gift in contemplation of death than did the heirs. By this lex it seemed clear that the heirs must have something in any case; but a defect almost of the same kind arose; for by a distribution of the patrimony amongst a considerable number of legatees, testators could leave so very little to the heir, that it did not answer his purpose for the sake of this profit to undertake the burdens of the entire inheritance. |