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CHAPTER VIII.

Of Fideicommissa, or Bequests in Trust.

VIII.

Fideicom

missa.

THINGS Which originate as shifts to supply a CHAP. deficiency, or to overcome a difficulty, may sometimes become generally adopted, and even super- Origin of sede that for which they were at first intended as a substitute. Fideicommissa present an example of this. A Roman anxious to leave his property to his son who, by the capitis diminutio, had lost the testamentifactio, resorted to this expedient; he left it to Titius, requesting him at the same time restituere, to give the proceeds to the incapacitated

son.

In a legacy the form of bequest was simply verbis directis, as Titio fundum meum do lego. We have here three persons-the testator, the heres, and the legatee; and on the testator's death the property vests at once in Titius. But in a fidei- Form of commissum the form was this, Titio fundum meum do lego, et quæso Titium ut Sempronio restituat. Here we have the testator, or fidecommittens, Titius, the heres fiduciarius, and Sempronius, the fideicommissarius. The result of such a testamentary disposition was, that the legal estate vested in Titius, and it depended on his honour and honesty whether he would make the restitutio, i. e. allow Restitutio. Sempronius to take the benefit of it. Titius thus being the sole legal possessor, and Sempronius having no legal claim whatever, we may imagine that the fideicommissarius frequently lost what had been intended for him; and accordingly we

II.

BOOK find that Augustus ob insignem quorundam perfidiam', recognised fideicommissa and ordered the consuls to interfere to compel the restitutio by the heres fiduciarius; and a Prætor fideicommissarius was appointed to enforce the claims of the fidei

commissarii.

Definition. A fideicommissum is thus defined: Quod non civilibus verbis, sed precative relinquitur; nec ex rigore juris civilis proficiscitur, sed ex voluntate datur relinquentis'.

Liabilities

Fiduci

arius.

The heres fiduciarius might decline to act like of the heres the common heres, but if he agreed, facere restitutionem, to act as trustee for the fideicommissarius, all actions relating to the estate must be brought by and against him, because he only was the possessor in law; and thus he had all the burdens without any of the advantages. On account of the risks which the heres fiduciarius thus ran, it was usual for him to bind the fideicommissarius by a formal stipulation, empta et vendita hereditatis, that he should indemnify him as to all legal liabilities, and also defend all actions which might be brought by those having claims on the estate. The fideicommissarius also, at the same time, exacted a reciprocal undertaking from the heres, that he would duly make over to him everything belonging to the estate3. This was a private agreement between the parties.

bellianum.

In the year A.D. 62, in the reign of Nero, the Sctum Tre- Sctum Trebellianum was passed, by which it was provided, that when the heres fiduciarius had made the restitutio, or as we should say, had accepted the trust, that all rights of action, claims, and liabilities, should forthwith vest in the fideicommissarius. There still, however, remained another inconvenience. The lex Falcidia did not apply to fideicommissa, i. e. the heres fiduciarius had no certain share of the estate assigned him,

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VIII.

and the consequence was that he often renounced, CHAP. and the fideicommissa fell to the ground; therefore, in the year A. D. 70, the Sctum Pegasianum Sctum Pewas passed, which extended the provisions of gasianum. the lex Falcidia to fideicommissa; and the heres fiduciarius was allowed to deduct the fourth part of the estate as his share, if it were not given him. If the fourth part were given him, he then had to bear his portion of the expenses pro rata according to the Civil law; and the fideicommissarius his, by the provisions of the Sctum Trebellianum; and so there was no need of resort to the Sctum Pegasianum. If nothing were left to the heres fiduciarius he could then avail himself of the Sctum Pegasianum. If he once voluntarily entered upon the duties attached to his appointment, whether he retained his fourth part or not, he was liable to all the incidental expenses, unless he took care to stipulate with the fideicommissarius that he should bear his proportion. If perchance the heres fiduciarius determined to decline any advantage offered by the Sctum Pegasianum, and the fideicommissarius desired to obtain possession of the estate, the Prætor would compel the heres to make the restitutio of the whole, in which case the Setum Trebellianum protected him from all suits and charges'. Justinian afterwards united these two senatusconsulta, and retained the name of Trebellianum only.

No one could have a fideicommissum who could not make a will, but fideicommissa and legata exæquata sunt per omnia, and could be left by codicil as well by testament3.

missa uni

Fideicommissa were, 1. Universal, or 2. Par- Fidei comticular. The former comprised the whole, or part mest or of the hereditas, the latter, only specific bequests, particular. such as legacies. Fideicommissa would be left by a codicil, though not confirmed by a will'.

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BOOK

II.

They were first introduced into the law of England by the monks, in order "by art and engine" to avoid the statutes of mortmain'.

It is curious to observe how the framer of the statute of uses has evidently copied the senatusconsultum Trebellianum.

1

15 Rich. II. 5.

2

27 Hen. VIII. c. 10.

ROMAN CIVIL LAW.

BOOK III.

OF THE RIGHTS OF THINGS.

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