Fideicommissorum libri
Ex libro II
Dig. 10,2,40Gaius libro secundo fideicommissorum. Si ex asse heres institutus rogatus sit mihi partem aliquam restituere, veluti dimidiam, utile familiae erciscundae iudicium recte inter nos agetur.
Dig. 32,96Gaius libro secundo fideicommissorum. Si Titius ex parte heres rogatus sit Maevio hereditatem restituere et rursus Titio coheres eius rogatus sit partem suam aut partis partem restituere, an hanc quoque partem, quam a coherede ex fideicommisso recipit, Titius restituere Maevio debeat, divus Antoninus consultus rescribsit non debere restituere, quia hereditatis appellatione neque legata neque fideicommissa continentur.
Gaius, Trusts, Book II. Where Titius was appointed heir to half an estate, and charged to deliver the entire estate to Mævius, and then his co-heir was asked to transfer to him his share, or a portion of the same, will Titius also be obliged to transfer to Mævius the share which he received from his co-heir under the terms of the trust? The Divine Antoninus, having been consulted on this point, stated in a Rescript that he was not obliged to transfer it, because neither legacies nor trusts are included in the term “estate.”
Dig. 36,1,10Gaius libro secundo fideicommissorum. Sed et si ante diem vel ante condicionem restituta sit hereditas, non transferuntur actiones, quia non ita restituitur hereditas, ut testator rogavit. plane posteaquam exstiterit condicio vel dies venerit si ratam habeat restitutionem hereditatis, benignius est intellegi tunc translatas videri actiones.
Ad Dig. 36,1,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 96, Note 5.Gaius, Trusts, Book II. If the estate should be delivered before the prescribed time has elapsed, or the condition has been complied with, the rights of action will not pass with it, because it was not delivered as the testator desired that it should be. It is evident that if the transfer of the estate should be ratified after the condition has been fulfilled, or the prescribed period has passed, it would be more equitable to consider that the rights of action were transferred at the same time.
Dig. 36,1,65Gaius libro secundo fideicommissorum. Facta in fideicommissarium restitutione statim omnes res in bonis fiunt eius, cui restituta est hereditas, etsi nondum earum nactus fuerit possessionem. 1Si is qui hereditatem sibi reddi ab herede stipulatus sit eique ex stipulatu agenti restituta fuerit hereditas, constat nihilo minus transferri actiones. hoc ita est, si is cum quo actum sit restituat hereditatem: si vero ob id quod non restituerit aestimatione hereditatis condemnatus fuerit, remanent actiones hereditariae apud eum qui condemnatus sit, actor autem quantitatem consequitur. 2Si heres scriptus restituerit hereditatem et postea de hereditate controversiam passus victus sit aut lite cesserit, durare actiones constitit in fideicommissarium semel translatas. 3Si quis maiorem partem restituerit quam rogatus est, in eam partem quae excedit non transferuntur actiones. sed cum praecepta aliqua re aut summa rogatus sit heres restituere et omissa retentione totam hereditatem restituerit, recte dicitur transferri actiones. 4Si heres ante restitutam hereditatem servum hereditarium heredem ab aliquo institutum iusserit adire hereditatem, negat Iulianus debere hanc hereditatem restitui, quia de ea rogatus non esset: et hoc est fatendum. requirendum tamen et illud est, num cum incremento restituere heres rogatus sit hereditatem: si enim hoc fuerit subsecutum, etiam eam hereditatem restituere cogitur, nisi evidentissimis probationibus fuerit ab herede adprobatum contemplatione sui servum esse heredem institutum. 5Rescripto divi Antonini significatur, ut, si quis accepta a Titio pecunia, quae quartam hereditatis continet, rogatus sit ei restituere hereditatem, licet tardius detur pecunia, sine usuris eam dari debere, quia quanto tardius quisque pecuniam dat, tanto tardius ad fideicommissum pervenit et medii temporis fructus perdit. quamobrem si ante datam pecuniam tenuerit hereditatem, fructus quos percepit restituere heredi eum oportere. 6Idem iuris est et si quis ita heredis fidei commisserit: ‘rogo, si Titius tibi centum dederit, restituas ei hereditatem meam’. 7Si sub condicione heres institutus sit qui suspectam sibi hereditatem esse dicit, si neque difficultatem neque turpitudinem ullam habet condicio nec impendium aliquid, iubendus est parere condicioni et adire et ita restituere: si vero turpis aut difficilis sit condicio, aperte iniquum est cogi eum explere eam alterius gratia. sed et remitti eam ab initio visum est: plus enim tribui a praetore ei qui fideicommissum petit, quam testator voluit, absurdum est: utique autem testator, nisi expleta sit condicio, neque scriptum heredem ad hereditatem vocavit neque per hunc illi voluit restitui hereditatem. 8Si dandae pecuniae condicio adscripta est heredi, debet ei offerre pecuniam is qui poscit fideicommissum, ut hereditatem impleta condicione possit adire et restituere. 9Quod si condicio adscripta est et ea est, quam praetor remittit, sufficit edictum, ut Iulianus ait: hactenus iubendus est, ut constituat praetoris actionibus uti aut petat bonorum possessionem secundum tabulas, ut ita nanctus actiones tunc restituta hereditate transferat eas ex senatus consulto. 10Si vero nominis ferendi condicio est, quam praetor exigit, recte quidem facturus videtur, si eam expleverit: nihil enim male est honesti hominis nomen adsumere, nec enim in famosis et turpibus nominibus hanc condicionem exigit praetor. sed tamen si recuset nomen ferre, remittenda est ei condicio, ut Iulianus ait, et permittendae utiles actiones, aut bonorum possessio secundum tabulas danda est, uti nanctus actiones transferat eas ex senatus consulto. 11Si cum suspectam videret, hereditatem postulante me iussu praetoris adieris et restitueris mihi, ita utar legis Falcidiae beneficio adversus legatarios, si tu quoque ea lege uti poteras et quatenus uti poteras: nam si quid praeterea a me alicui per fideicommissum relictum sit, id quasi a legatario relictum non venit in computationem eius legis, sed extrinsecus numeratur. 12Si Titius rogatus sit hereditatem Maevio restituere, Maevius Seio certam pecuniam, et Titius quartae retinendae beneficio adversus Maevium usus fuerit: Neratius scribit Maevium quoque Seio eo minus aequum esse praestare, ne ipse de suo damnum sentiat. 13Iulianus ait, si heres institutus Titio rogatus sit restituere, substitutus Maevio et institutus suspectam sibi hereditatem esse dicat, desiderante Titio iubendum eum adire et restituere. 14Si quis bonorum possessoris fidei commiserit de hereditate restituenda et is passus fuerit diem bonorum possessionis adgnoscendae transire aut per hoc tempus, quo is, cui restitui debebit hereditas, aliqua ex causa non potuit adire praetorem et postulare, ut petita bonorum possessione restituatur sibi hereditas, succurri ei debet, id est ut restituatur tempus bonorum possessionis admittendae exhibendi fideicommissi gratia. 15Admonendi autem sumus, si is, qui solvendo non sit, Titio herede instituto servum liberum esse iusserit et rogaverit Titium hereditatem eidem restituere, vix esse, ut Titius recusans adire hereditatem cogatur. nam licet desiderante servo Titius adierit hereditatem, non tamen potest libertas servo competere quasi in fraudem creditorum data, licet Titius locuples sit: qua de causa nec hereditas ei restitui potest. sed ex sententia legis dicendum est perinde habendum, ac si is servus solus liber et heres scriptus esset nec Titius heres esset.
Gaius, Trusts, Book II. As soon as delivery is made to the beneficiary of a trust, everything belonging to the estate becomes the property of the person to whom it is transferred, even though he may not yet have obtained possession of the same. 1When anyone has stipulated that an estate shall be returned to him by the heir, and it has been transferred to him, after an action under the stipulation has been brought, it is established that the rights of action also pass, that is to say, if the person against whom suit was brought transfers the estate. If, however, the heir should lose the case because he did not transfer the estate, and should have judgment rendered against him for the amount of its appraisement in court, he will be entitled to retain the rights of action belonging to the estate, for the plaintiff has recovered the entire amount which he claimed. 2If the appointed heir should transfer the estate, and should afterwards be sued and lose his case, or abandon it, it has been decided that the rights of action will always belong to the beneficiary of the trust, after they have been once transferred to him. 3If anyone who was asked to transfer a portion of an estate should transfer a larger portion than he was charged to do, the rights of action will not be transferred. Where, however, the heir was charged to transfer an estate after having reserved for himself a certain article, or a sum of money, and he transfers the entire estate, without retaining what he was entitled to, it is very properly held that the rights of action are, nevertheless, transferred. 4If an heir, before transferring the estate, should order a slave belonging to the same to accept another estate, to which he had been appointed heir by someone, Julianus denies that the latter estate should be transferred, because the heir was not charged to transfer it; and it must be confessed that this opinion is correct. Nevertheless, it must be ascertained whether the heir was charged to transfer the estate with any increase which might have accrued. For if this was the case, he can also be compelled to transfer the latter estate, unless the heir should prove by the clearest evidence that it was with reference to himself that the slave was appointed an heir. 5It is stated in a Rescript of the Divine Antoninus that where anyone has received from Titius a certain sum of money which amounts to a fourth of the estate, and is charged to deliver the entire estate to him, although the money may not be paid immediately, it must be paid without interest, because the later anyone makes payment the later he will receive the benefit of the trust, and, in the meantime, he will lose the profits. Wherefore, if the beneficiary of the trust has had possession of the estate before having paid the money, he must deliver to the heir any profits of the same which he may have collected. 6The same rule of law applies where anyone charges his heir with a trust, as follows, “I ask you to transfer my estate to Titius, if he pays you a hundred aurei.” 7Ad Dig. 36,1,65,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 664, Note 3.Where an heir is appointed under a condition, and says that he has reason to believe that the estate is insolvent, he can be ordered to comply with the condition, and to enter upon and transfer the estate, if the condition is not difficult, nor involves turpitude, nor presents any serious obstacle. If, however, the condition should be disgraceful or difficult of performance, it is clearly unjust to compel the heir to comply with it for the benefit of another. It has been held that he should be released in the beginning from compliance with such a condition, as it is absurd for more to be granted to the person claiming the benefit of the trust than the testator intended he should receive. Still, the testator did not call the appointed heir to the succession, unless the condition was complied with, nor did he intend that the estate should be transferred by him unless it was fulfilled. 8Where the condition of the payment of a sum of money to the heir is imposed, he who claims the benefit of the trust should tender him the amount, so that the condition having been complied with, the heir can enter upon and transfer the estate. 9If, however, the condition imposed is one of those remitted by the. Prætor, the authority of the Edict will be sufficient, so Julianus says. The heir can be compelled to accept by having recourse to the prætorian action, or he can demand possession of the property in accordance with the terms of the will; so that, having acquired the rights of action, he can then assign them in accordance with the Decree of the Senate, after having transferred the estate. 10If, however, the condition is that of assuming the name of the testator, which is one that the Prætor requires to be fulfilled, the heir will be considered to have acted properly if he complies with it, as there is nothing reprehensible in assuming the name of an honorable man; for the Prætor does not require this condition to be observed in the case of names which are notorious and disgraceful. If, however, the individual in question should refuse to take the name, Julianus says he ought to be excused from complying with the condition and should be granted prætorian actions, or he should be given possession of the property of the estate in accordance with the terms of the will, so that, having acquired the rights of action, he can assign them in accordance with the Decree of the Senate. 11If you should suspect the estate to be insolvent, and, on my application, you are forced to enter upon it by order of the Prætor, and to transfer it to me, I can avail myself of the benefit of the Falcidian Law, as against the legatees, just as you can also obtain the benefit of that law, and to the same extent that you can do so; for if anything is left to me in trust for the benefit of another, as I am only charged with it as legatee, it is not included in making the calculation under the Falcidian Law, but must be computed separately. 12Where Titius is charged to transfer an estate to Mævius, and Mævius is charged to pay a certain sum of money to Seius, and Titius avails himself of the privilege of retaining a fourth of the estate as against Mævius, Mævius, as Neratius says, will be this much less liable to Seius, in order to avoid sustaining any loss of his own property. 13Julianus holds that if an appointed heir is charged to transfer an estate to Titius, who is substituted for Mævius, and the appointed heir alleges that he considers the estate insolvent, on the application of Titius, he can be ordered to enter upon and transfer it. 14If anyone should charge a person entitled to the possession of an estate under the Prætorian Law, to transfer the same, and the latter suffers the time for obtaining possession under that law to elapse, or he to whom the estate is to be transferred, for some reason or other, is not able to appear before the Prætor and assert his claim during the prescribed time; in order that the estate may be delivered to him who is entitled to possession of the same under the Prætorian Law, relief should be granted him, that is to say, he may be given sufficient time to obtain possession of the property for the purpose of executing the trust. 15We should also note that if a person who is not solvent, after having appointed Titius his heir, orders one of his slaves to be free, and charges Titius to transfer the estate to him, if Titius refuses to accept the estate, he can hardly be compelled to do so; for although Titius may enter upon the estate on the application of the slave, still the latter cannot obtain his freedom, if it has been granted for the purpose of defrauding creditors, even though Titius may be wealthy, for which reason the estate cannot be transferred to him. But taking into consideration the spirit of the law, it must be said that the case is the same as if the slave was free and appointed the sole heir, and that Titius was not the heir at all.