The Institutes of Justinian Part 11

1 A legacy may also be transferred from one person to another, as thus: 'I give and bequeath to Seius the slave Stichus whom I. bequeathed to t.i.tius,' and this may be done either by a later clause of the will or by codicils; the result being that the legacy is taken away from t.i.tius and simultaneously given to Seius.

t.i.tLE XXII. OF THE LEX FALCIDIA

We have finally to consider the lex Falcidia, the most recent enactment limiting the amount which can be given in legacies. The statute of the Twelve Tables had conferred complete liberty of bequest on testators, by which they were enabled to give away their whole patrimony in legacies, that statute having enacted: 'let a man's testamentary disposition of his property be regarded as valid.' This complete liberty of bequest, however, it was thought proper to limit in the interest of testators themselves, for intestacy was becoming common through the refusal of inst.i.tuted heirs to accept inheritances from which they received little or no advantage at all. The lex Furia and the lex Voconia were enactments designed to remedy the evil, but as both were found inadequate to the purpose, the lex Falcidia was finally pa.s.sed, providing that no testator should be allowed to dispose of more than three-quarters of his property in legacies, or in other words, that whether there was a single heir inst.i.tuted, or two or more, he or they should always be ent.i.tled to at least a quarter of the inheritance.

1 If two heirs, say t.i.tius and Seius, are inst.i.tuted, and t.i.tius's share of the inheritance is either wholly exhausted in legacies specifically charged thereon, or burdened beyond the limit fixed by the statute, while no legacies at all are charged on Seius, or at any rate legacies which exhaust it only to the extent of one half or less, the question arose whether, as Seius has at least a quarter of the whole inheritance, t.i.tius was or was not ent.i.tled to retain anything out of the legacies which had been charged upon him: and it was settled that he could keep an entire fourth of his share of the inheritance; for the calculation of the lex Falcidia is to be applied separately to the share of each of several heirs in the inheritance.

2 The amount of the property upon which the calculation is brought to bear is its amount at the moment of the testator's decease. Thus, to ill.u.s.trate by an example, a testator who is worth a hundred aurei at his decease gives the whole hundred away in legacies: here, if before the heir accepts, the inheritance is so much augmented through slaves who belong to it, or by births of children from such of them as are females, or by the young of cattle that, even after paying away a hundred aurei in legacies, the heir will still have a clear fourth of the inheritance, the legatee's position is in no way improved, but a quarter of the sum given in legacies may still be deducted for himself by the heir.

Conversely, if only seventyfive aurei are given in legacies, and before acceptance the inheritance is so much diminished in value, say by fire, s.h.i.+pwreck, or death of slaves, that no more or even less than seventyfive aurei are left, the legatees can claim payment of their legacies in full. In this latter case, however, the heir is not prejudiced, for he is quite free to refused the inheritance: consequently, the legatees must come to terms with him, and content themselves with a portion of their legacies, lest they lose all through no one's taking under the will.

3 When the calculation of the lex Falcidia is made, the testator's debts and funeral expenses are first deducted, and the value of slaves whom he has manumitted in the will or directed to be manumitted is not reckoned as part of the inheritance; the residue is then divided so as to leave the heirs a clear fourth, the other three quarters being distributed among the legatees in proportion to the amount of the legacies given them respectively in the will. Thus, if we suppose four hundred aurei to have been given in legacies, and the value of the inheritance, out of which they are to be paid, to be exactly that sum, each legatee must have his legacy abated by onefourth; if three hundred and fifty have been given in legacies, each legacy will be diminished by one-eighth; if five hundred, first a fifth, then a fourth, must be deducted: for when the amount given in legacies actually exceeds the sum of the inheritance, there must be struck off first the excess, and then the share which the heir is ent.i.tled to retain.

t.i.tLE XXIII. OF TRUST INHERITANCES

We now proceed to fiduciary bequests or trusts; and let us begin with trust inheritances.

1 Legacies or inheritances given by trust had originally no binding legal force, because no one could be compelled against his will to do what he was merely asked to do. As there were certain cla.s.ses of persons to whom testators were unable to leave inheritances or legacies, when they wished to effect these objects they used to trust to the good faith of some one who had this kind of testamentary capacity, and whom they asked to give the inheritance, or the legacy, to the intended beneficiary; hence the name 'trusts,' because they were not enforced by legal obligation, but only by the transferor's sense of honesty.

Subsequently the Emperor Augustus, either out of regard for various favourites of his own, or because the request was said to have been made in the name of the Emperor's safety, or moved thereto by individual and glaring cases of perfidy, commanded the consuls in certain cases to enforce the duty by their authority. And this being deemed equitable, and being approved by the people, there was gradually developed a new and permanent jurisdiction, and trusts became so popular that soon a special praetor was appointed to hear suits relating to them, who was called the trust praetor.

2 The first requisite is an heir directly inst.i.tuted, in trust to transfer the inheritance to another, for the will is void without an inst.i.tuted heir in the first instance. Accordingly, when a testator has written: 'Lucius t.i.tius, be thou my heir,' he may add: 'I request you, Lucius t.i.tius, as soon as you can accept my inheritance, to convey and transfer it to Gaius Seius'; or he can request him to transfer a part.

So a trust may be either absolute or conditional, and to be performed either immediately or on a specified future day.

3 After the transfer of the inheritance the transferor continues heir, the transferee being sometimes regarded as quasi-heir, sometimes as quasi-legatee.

4 But during the reign of Nero, in the consulate of Trebellius Maximus and Annaeus Seneca, a senatusconsult was pa.s.sed providing that, when an inheritance is transferred in pursuance of a trust, all the actions which the civil law allows to be brought by or against the heir shall be maintainable by and against the transferee: and after this enactment the praetor used to give indirect or fict.i.tious actions to and against the transferee as quasiheir.

5 However, as the inst.i.tuted heirs, when (as so often was the case) they were requested to transfer the whole or nearly the whole of an inheritance, declined to accept for what was no benefit, or at most a very slight benefit, to themselves, and this caused a failure of the trusts, afterwards, in the time of the Emperor Vespasian, and during the consulate of Pegasus and Pusio, the senate decreed that an heir who was requested to transfer the inheritance should have the same right to retain a fourth thereof as the lex Falcidia gives to an heir charged with the payment of legacies, and gave a similar right of retaining the fourth of any specific thing left in trust. After the pa.s.sing of this senatusconsult the heir, wherever it came into operation, was sole administrator, and the transferee of the residue was in the position of a partiary legatee, that is, of a legatee of a certain specified portion of the estate under the kind of bequest called partic.i.p.ation, so that the stipulations which had been usual between an heir and a partiary legatee were now entered into by the heir and transferee, in order to secure a rateable division of the gains and losses arising out of the inheritance.

6 Accordingly, after this, if no more than threefourths of the inheritance was in trust to be transferred, then the SC. Trebellianum governed the transfer, and both were liable to be sued for the debts of the inheritance in rateable portions, the heir by civil law, the transferee, as quasiheir, by that enactment. But if more than threefourths, or even the whole was left in trust to be transferred, the SC. Pegasianum came into operation, and when once the heir had accepted, of course voluntarily, he was the sole administrator whether he retained onefourth or declined to retain it: but if he did, he entered into stipulations with the transferee similar to those usual between the heir and a partiary legatee, while if he did not, but transferred the whole inheritance, he covenanted with him as quasi-purchaser. If an inst.i.tuted heir refuse to accept an inheritance from a suspicion that the liabilities exceed the a.s.sets, it is provided by the SC. Pegasianum that, on the pet.i.tion of the person to whom he is requested to transfer, he shall be ordered by the praetor to accept and transfer it, whereupon the transferee shall be as capable of suing and being sued as the transferee under the SC. Trebellianum. In this case no stipulations are necessary, because by a concurrent operation of the two senatusconsults both the transferor is protected, and all actions relating to the inheritance pa.s.s to and against the transferee.

7 As, however, the covenants which had become necessary through the SC.

Pegasianum were disliked even by the older lawyers, and are in certain cases considered injurious by the eminent jurist Papinian, and it being our desire that our statute book should be clear and simple rather than complicated, we have, after placing these two senatusconsults side by side and examining their points of resemblance and difference, resolved to repeal the SC. Pegasianum, as the later enactment, and to give exclusive authority to the SC. Trebellianum, under which in future all trust inheritances are to be transferred, whether the testator has freely given his heir a fourth of the property, or more or less, or even nothing at all: provided always, that when the heir has either nothing or less than a fourth, it shall be lawful for him, under our authority expressed in this statute, to retain a fourth, or to recover it by action if he has already paid it over, the heir and the transferee being capable both of suing and being sued in proportion to their shares in the inheritance, after the a.n.a.logy of the SC. Trebellianum; and provided also, that if the heir voluntarily transfers the whole inheritance, the transferee shall be able to sue and be sued on all actions relating to the inheritance whatsoever. Moreover, we have transferred to the SC.

Trebellianum the leading provision of the SC. Pegasianum, whereby it was enacted that when an inst.i.tuted heir refused to accept an inheritance offered to him, he could be compelled to accept and transfer the whole inheritance if the intended transferee so desired, and that all actions should pa.s.s to and against the latter: so that it is under the SC.

Trebellianum alone that the heir, if unwilling to accept, is now obliged to do so, if the intended transferee desire the inheritance, though to him personally no loss or profit can accrue under the transaction.

8 It makes no difference whether it is a sole or part heir who is under a trust to another, or whether what he is requested to transfer is the whole or only a part of that to which he is heir; for we direct that the same rules shall be applied in the case of a part being transferred as we have said are observed in the transference of a whole inheritance.

9 If the request addressed to the heir is to transfer the inheritance after deducting or reserving some specific thing which is equal in value to a fourth part thereof, such as land or anything else, the conveyance will be made under the SC. Trebellianum, exactly as if he had been asked after retaining a fourth part of the inheritance to transfer the residue. There is, however, some difference between the two cases; for in the first, where the inheritance is transferred after deducting or reserving some specific thing, the senatusconsult has the effect of making the transferee the only person who can sue or be sued in respect of the inheritance, and the part retained by the heir is free from all enc.u.mbrances, exactly as if he had received it under a legacy; whereas in the second, where the heir, after retaining a fourth part of the inheritance, transfers the rest as requested, the actions are divided, the transferee being able to sue and be sued in respect of threefourths of the inheritance, and the heir in respect of the rest. Moreover, if the heir is requested to transfer the inheritance after deducting or reserving only a single specific thing, which, however, in value is equivalent to the greater part of the inheritance, the transferee is still the only person who can sue and be sued, so that he ought well to weigh whether it is worth his while to take it: and the case is precisely the same, whether what the heir is directed to deduct or reserve before transferring is two or more specific things, or a definite sum which in fact is equivalent to a fourth or even the greater part of the inheritance. What we have said of a sole heir is equally true of one who is inst.i.tuted only to a part.

10 Moreover, a man about to die intestate can charge the person to whom he knows his property will go by either the civil or praetorian law to transfer to some one else either his whole inheritance, or a part of it, or some specific thing, such as land, a slave, or money: but legacies have no validity unless given by will.

11 The transferee may himself be charged by the deceased with a trust to transfer to some other person either the whole or a part of what he receives, or even something different.

12 As has been already observed, trusts in their origin depended solely on the good faith of the heir, from which early history they derived both their name and their character: and it was for that reason that the Emperor Augustus made them legally binding obligations. And we, in our desire to surpa.s.s that prince, have recently made a const.i.tution, suggested by a matter brought before us by the eminent Tribonian, quaestor of our sacred palace, by which it is enacted, that if a testator charges his heir with a trust to transfer the whole inheritance or some specific thing, and the trust cannot be proved by writing or by the evidence of five witnesses--five being, as is known, the number required by law for the proof of oral trusts--through there having been fewer witnesses than five, or even none at all, and if the heir, whether it be his own son or some one else whom the testator has chosen to trust, and by whom he desired the transfer to be made, perfidiously refuses to execute the trust, and in fact denies that he was ever charged with it, the alleged beneficiary, having previously sworn to his own good faith, may put the heir upon his oath: whereupon the heir may be compelled to swear that no trust was ever charged upon him, or, in default, to transfer the inheritance or the specific thing, as the case may be, in order that the last wishes of the testator, the fulfilment of which he has left to the honour of his heir, may not be defeated. We have also prescribed the same procedure where the person charged with a trust is a legatee or already himself a transferee under a prior trust.

Finally, if the person charged admits the trust, but tries to shelter himself behind legal technicalities, he may most certainly be compelled to perform his obligation.

t.i.tLE XXIV. OF TRUST BEQUESTS OF SINGLE THINGS

Single things can be left in trust as well as inheritances; land, for instance, slaves, clothing, gold, silver, and coined money; and the trust may be imposed either on an heir or on a legatee, although a legatee cannot be charged with a legacy.

1 Not only the testator's property, but that of an heir, or legatee, or person already benefited by a trust, or any one else may be given by a trust. Thus a legatee, or a person in whose favour the testator has already created a trust, may be asked to transfer either a thing left to him, or any other thing belonging to himself or a stranger, provided always that he is not charged with a trust to transfer more than he takes by the will, for in respect of such excess the trust would be void. When a person is charged by a trust to transfer a thing belonging to some one else, he must either purchase and deliver it, or pay its value.

2 Liberty can be left to a slave by a trust charging an heir, legatee, or other person already benefited by a trust of the testator's, with his manumission, and it makes no difference whether the slave is the property of the testator, of the heir, of the legatee or of a stranger: for a stranger's slave must be purchased and manumitted; and on his master's refusal to sell (which refusal is allowable only if the master has taken nothing under the will) the trust to enfranchise the slave is not extinguished, as though its execution had become impossible, but its execution is merely postponed; because it may become possible to free him at some future time, whenever an opportunity of purchasing him presents itself. A trust of manumission makes the slave the freedman, not of the testator, though he may have been his owner, but of the manumitter, whereas a direct bequest of liberty makes a slave the freedman of the testator, whence too he is called 'orcinus.' But a direct bequest of liberty can be made only to a slave who belongs to the testator both at the time of making his will and at that of his decease; and by a direct bequest of liberty is to be understood the case where the testator desires him to become free in virtue, as it were, of his own testament alone, and so does not ask some one else to manumit him.

3 The words most commonly used to create a trust are I beg, I. request, I wish, I commission, I trust to your good faith; and they are just as binding when used separately as when united.

t.i.tLE XXV. OF CODICILS

It is certain that codicils were not in use before the time of Augustus, for Lucius Lentulus, who was also the originator of trusts, was the first to introduce them, in the following manner. Being on the point of death in Africa, he executed codicils, confirmed by his will, by which he begged Augustus to do something for him as a trust; and on the Emperor's fulfilling his wishes, other persons followed the precedent and discharged trusts created in this manner, and the daughter of Lentulus paid legacies which could not have been legally claimed from her. It is said that Augustus called a council of certain jurists, among them Trebatius, who at that time enjoyed the highest reputation, and asked them whether the new usage could be sanctioned, or did not rather run counter to the received principles of law, and that Trebatius recommended their admission, remarking 'how convenient and even necessary the practice was to citizens,' owing to the length of the journeys which were taken in those early days, and upon which a man might often be able to make codicils when he could not make a will.

And subsequently, after codicils had been made by Labeo, n.o.body doubted their complete validity.

1 Not only can codicils be made after a will, but a man dying intestate can create trusts by codicils, though Papinian says that codicils executed before a will are invalid unless confirmed by a later express declaration that they shall be binding. But a rescript of the Emperors Severus and Antoninus decides that the performance of a trust imposed by codicils written before a will may in any case be demanded, if it appears that the testator had not abandoned the intention expressed in them.

2 An inheritance can neither be given nor taken away by codicils, nor, accordingly, can a child be disinherited in this way: for, if it were otherwise, the law of wills and of codicils would be confounded. By this it is meant that an inheritance cannot directly be given or taken away by codicils; for indirectly, by means of a trust, one can very well be given in this manner. Nor again can a condition be imposed on an inst.i.tuted heir, or a direct subst.i.tution be effected, by codicils.

3 A man can make any number of codicils, and no solemnities are required for their execution.

BOOK III.

t.i.tLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY

A man is said to die intestate who either has made no will at all, or has made one which is invalid, or if one which has been duly executed has been subsequently revoked, or rescinded, or finally, if no one accepts as heir under the testament.

1 The inheritances of intestate persons go first, by the statute of the Twelve Tables, to family heirs;

2 and family heirs, as we said above, are those who were in the power of the deceased at the time of his death, such as a son or daughter, a grandchild by a son, or a greatgrandchild by such grandchild if a male, and this whether the relations.h.i.+p be natural or adoptive. Among them must also be reckoned children who, though not born in lawful wedlock, have been inscribed members of the curia according to the tenor of the imperial const.i.tutions relating to them, and thus acquire the rights of family heirs, or who come within the terms of our const.i.tutions by which we have enacted that, if any one shall cohabit with a woman whom he might have lawfully married, but for whom he did not at first feel marital affection, and shall after begetting children by her begin to feel such affection and formally marry her, and then have by her sons or daughters, not only shall those be lawful children and in their father's power who were born after the settlement of the dowry, but also those born before, to whom in reality the later born ones owed their legitimacy; and we have provided that this rule shall hold even though no children are born after the execution of the dowry deed, or if, having been born, they are dead. It is to be observed, however, that a grandchild or greatgrandchild is not a family heir, unless the person in the preceding degree has ceased to be in the power of the parent, either through having died, or by some other means, such as emanc.i.p.ation; for if at the time of a man's decease a son is in his power, a grandson by that son cannot be a family heir, and the case is exactly the same with more remote descendants. Children too who are born after the ancestor's death, and who would have been in his power had they been born during his lifetime, are family heirs.

3 Family heirs succeed even though ignorant of their t.i.tle, and they can take upon an intestacy even though insane, because whenever the law vests property in a person, even when he is ignorant of his t.i.tle, it equally vests it in him if insane. Thus, immediately on the parent's death, the owners.h.i.+p is as it were continued without any break, so that pupils who are family heirs do not require their guardian's sanction in order to succeed, for inheritances go to such heirs even though ignorant of their t.i.tle; and similarly an insane family heir does not require his curator's consent in order to succeed, but takes by operation of law.

4 Sometimes, however, a family heir succeeds in this way to his parent, even though not in the latter's power at the time of his decease, as where a person returns from captivity after his father's death, this being the effect of the law of postliminium.