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But if the specific things reserved for the hæres were less in value than the fourth, the position of the hares was such that he might demand a sum to make up his fourth, according to the Falcidian law, which was made applicable to fideicommissa by the Sc. Pegasianum, the rules of which governed the case. But after Justinian's time the actions were divided between the cestui, que trust and the hæres, who took an aliquot part of the hæreditas (§ 7).

§ 10. Though the Sc. Pegasianum did not authorize any deduction to be made out of the fideicommissa, charged upon any hæredes except those instituti or appointed by will, the same benefit was afterwards extended to hæredes legitimi in case of intestacy.

§ 11. A cestui que trust might himself be required to transfer to another cestui que trust, and the hæreditas might thus be transmitted by a series of transfers; but the cestui que trust, charged to transfer the hæreditas to another, could not retain the fourth, even when the hæres had not retained it, as for instance in case he had accepted the hæreditas in compliance with the Prætor's order, and at the risk of the cestui que trust (D. 36, t. 1, 55, § 2). For the only object of allowing the hæres to retain a fourth was to secure a hæres for the deceased; hence this retention was allowed only to persons who were capable of being hæredes, and of continuing so.

Moreover, a cestui que trust was entitled to retain the Falcidian fourth out of the legacies, because he was only liable to pay the legacies as hæres.

TITLE XXIV. OF SPECIFIC THINGS LEFT BY WAY OF TRUST.

Pr. The charge of executing a trust in respect to a specific thing might be imposed upon any one of those who had received anything from the deceased, e.g., a legatee; but hæredes alone could be charged with legacies. This rule, like that which made it impossible that legacies should exist ab intestato, continued after legacies were assimilated to fideicommissa. Hence the disposition which a legatee was charged to execute, was not properly a legacy, but after Justinian's time it was considered as a fideicommissum, and, as such, produced its peculiar results.

§ 1. Whatever might be bequeathed by the legacy per damnationem of the old law, might be disposed of by way of trust or fideicommissum. Thus, a person might dispose by way of trust, not merely of his own property, but of that belonging to the hæres, or to any other person. If a person dispose, by way of trust, of the property of another,

the trustee is bound to purchase and deliver the thing, or to pay the value thereof.

§ 1. Thus a person might be charged as trustee, to transfer something different from what he had received as legatee, or as the first in a series of cestuis que trust: the only rule was this:-The legatee or the first cestui que trust must not be charged to transfer more than he had received, for a trust would be null as to the excess (quod amplius est inutiliter relinquitur). But if the thing to be transferred belonged to the trustee, he could not, after having accepted the disposition made in his favour, get rid of executing the whole trust, whatever its extent, because he must be taken to have deliberately estimated his own goods as of less value than what he had received.

§ 2. Freedom might be given to a slave by means of a trust, by charging the hæres, a legatee, or a cestui que trust, with his enfranchisement. The testator might thus enfranchise a slave belonging to himself, or to the trustee, or to any other, but a testator could not confer liberty directly on any slave, unless the slave belonged to him, both at the time of making his testament and at his death (1).

§ 2. When a trustee was charged to enfranchise the slave of another, the trustee was bound to buy (redimi) the slave, and to enfranchise him. But as the master was not bound to sell (2), his refusal to do so at a fair price did not extinguish the trust, but simply put off the execution thereof until an opportunity occurred of purchasing the slave and enfranchising him.

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§ 3. The most ordinary form of words in which trusts were couched were these:-Peto, rogo, volo, mando, fidei tuæ committo. The terms injungo, impero, were also used.

It must be admitted that these expressions, volo, injungo, impero, are very imperative, and yet the texts assert that trusts were couched in precatory, not in imperative terms, like legacies. But there is a distinction, for it is to be observed that the legacies expressed the imperative will of the testator, and that the verbs used were also in the imperative mood. Thus legacies were in this form:-damnas esto, sumito, capito, &c.; whereas in case of a fideicommissum the indicative was used. The only ground, therefore, upon which the testator could be said to use the precatory form of expression was this,-that he did not use the imperative mood.

(1) When the testator conferred liberty directly on his slave, he was freed by the testament itself; the testator, i.e., the deceased, was his patron: hence the name libertus orcinus. But when the testator charged a trustee to grant freedom, the slave was freed not by virtue of the testa

ment, but by manumission executed by the trustee. Hence this slave's patron was not the deceased, but the trustee who manumitted.

(2) Unless he had received something from the deceased.

These forms of words, although often used to create a trust, were not essential for that purpose: on the contrary, in order to create a valid trust or fideicommissum, the testator had only to express his will by some sign or other. Hence Justinian decreed that trusts might be created verbally or by writing, provided it was done before five witnesses.

T. 23, § 12. This, however, was not the only mode of proving a trust; for Justinian allowed the cestui que trust in every case to tender the oath to the person whom he charged with the trust. If he refused to swear that no trust had been imposed upon him, his refusal was deemed an admission, and involved his condemnation. But the defendant might first of all require the demandant to swear that he was acting bona fide, and not on mere frivolous grounds; and this is what Justinian calls de calumnia jurare.

TITLE XXV.-OF CODICILS.

A codicil is an act by which a man expresses his last will without using, and deliberately intending not to use, the solemnities peculiar to a testament (1).

Pr. Certainly, prior to Augustus, codicils were not in use. Lucius Lentulus first introduced both fideicommissa and codicils. For, dying in Africa, he wrote codicils, which were confirmed by a testament, and in them he requested Augustus to undertake the execution of a trust. The Emperor fulfilled his will; and, other persons following his example, executed trusts with which they were charged by codicils, and the daughter of Lentulus herself paid legacies, though in strictness of law invalid. It is said that Augustus convoked the great jurists, and amongst them Trebatius, at that time in high repute, in order to consult them whether codicils should be admitted, and that Trebatius convinced the Emperor of their advantages, chiefly because it might often happen that a man on a journey would be able to make a codicil when it might be utterly impossible for him to make a testament. And afterwards, when the jurist Labeo made codicils, no one hesitated to admit. their validity.

§ But an hæreditas could not be disposed of in a codicil: and herein codicils differed essentially from testaments. By codicil a person could neither give nor take away the hæreditas, nor could he, by adding a condition or expunging it, change the mode in which the hæreditas was

(1) An intention to dispose by codicil must appear, so that an imperfect testament is not a valid disposition.

disposed by testament. But we must be understood to speak only of the hæreditas proper; for the hæreditas fideicommissaria, which conferred neither the name nor the rights of a hæres proper, might be left by codicil like any other trust.

§ 1. Persons who had made a testament were of course competent to make a codicil: but persons dying intestate might also leave codicils. No one person could legally make a codicil who could not legally make

a testament.

§ 1. Papinian said that codicils executed before the testament were valid only so far as the testator expressly confirmed them. But the Emperors Severus and Antoninus held it sufficient if the testator did not show any intention to revoke the dispositions contained in the codicils (1).

However, codicils confirmed by a testament subsequent or anterior thereto, enjoyed particular advantages: they were deemed part of the testament. Hence a person by such codicils might revoke or transfer a legacy, or enfranchise a slave directly (2); whereas by codicils not confirmed, nothing but trusts could be created.

But when there was a testament, the fate of the codicils depended upon it; the failure or nullity of the testament nullified the codicils ; in this respect codicils, whether confirmed or not confirmed, were on the same footing.

§ 3. Again, one person might leave several codicils. A testament always included the whole hæreditas, and therefore could not co-exist with any preceding one. But if there were several codicils, each might relate to different subject-matters, and the last revoked only such of the dispositions in the preceding codicils as were irreconcileable with those which it contained.

§ 3. Originally in case of codicils, no solemn form was requisite ; but under the Emperors of Constantinople they were made subject to certain forms. For (C. 6, 36, 8) a codicil was required to be made at one time, either verbally or in writing, before five witnesses summoned for the purpose, or brought together by chance. If the codicils were in writing, the witnesses were required to put their marks thereto (subnotationem suam).

(1) Codicils subsequent to the testament never required confirmation. But it often happened that a testator confirmed beforehand any codicils he might afterwards

make this Lentulus did.

;

(2) But by them no dispositions could be made as to the hæreditas.

BOOK III.

TITLE I.-OF HÆREDITATES OR SUCCESSIONS WHICH PASS AB

INTESTATO (1).

Pr. A PERSON dies intestate, and the hæreditas passes ab intestato, 1. When a person has made no testament at all, or one which is irregular or void (non jure factum); 2. When a testament valid in its creation has become invalid (ruptum irritumve), or has been set aside as inofficious; 3. When the testament is abandoned, because the hæres institutus or successor appointed by the will has not appeared.

§ 1. The Twelve Tables called as successors, 1st, the sui hæredes of the deceased; 2nd, his agnati; 3rd, gentiles.

This system continued until that of the Novella; but by that time the Prætorian law, Senatus-consulta, and Constitutions had introduced into the orders of sui hæredes and agnati some who were originally excluded from both. Moreover, the Prætorian law granted the possession of goods to a third class, called cognati (2).

We shall discuss, therefore, 1. Sui hæredes proper; 2. Those ranked with them by the Prætors; 3. Those ranked with them by the Constitutions.

§ 2. First, then, who were sui hæredes proper? Sui hæredes were children (3) under the paternal power of the deceased at his death, and first in degree in the family when the succession arose (4). Thus, grandchildren, if they and their father were under the grandfather's power, were not his sui hæredes, because they would rank after the father in the family, so that he would be the suus hæres.

§ 2. A succession ab intestato arises whenever it is ascertained that there will be no hæres by testament. Now it is certain from the time of death there will be no such hæres if there is no valid testament. But

(1) Hæreditates which pass ab intestato are called legitimæ, because they pass directly (lege) by the law.

(2) Perhaps the Prætor replaced the gentiles by the cognati.

(3) Children both natural and adopted,

and, by the new law, legitimised children (§ 2).

(4) I.e., who would have been under the immediate power of the deceased when the succession arose, if the deceased had then been living.

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