Fideicommissorum libri
Ex libro I
Dig. 30,2Idem libro primo fideicommissorum. Sciendum est eos demum fideicommissum posse relinquere, qui testandi ius habent.
Dig. 30,93Ulpianus libro primo fideicommissorum. Quod fideicommissum hactenus, quatenus impubes decedat, valebit: ceterum si pubes factus decesserit, evanescit fideicommissum.
Dig. 30,95Ulpianus libro primo fideicommissorum. Videndum tamen est, numquid, si vice operarum rogaverit eum aliquid, debeat hoc fideicommissum valere: quod nequaquam dicendum est, quia nec operae inponi huiusmodi liberto possunt nec impositae exiguntur, quamvis testator ita caverit.
Ulpianus, Trusts, Book I. Nevertheless, it should be considered where a slave who was manumitted was asked to furnish something in lieu of labor, whether a trust of this kind will be valid. This can by no means be admitted, because services of this description cannot be imposed on a freedman, and if imposed, they cannot be exacted; even though the testator may have provided for it in his will.
Dig. 32,1Ulpianus libro primo fideicommissorum. Si incertus quis sit, captivus sit an a latrunculis obsessus, testamentum facere non potest. sed et si sui iuris sit ignarus putetque se per errorem, quia a latronibus captus est, servum esse velut hostium, vel legatus qui nihil se a captivo differre putat, non posse fideicommittere certum est, quia nec testari potest, qui, an liceat sibi testari, dubitat. 1Sed si filius familias vel servus fideicommissum reliquerit, non valet: si tamen manumissi decessisse proponantur, constanter dicemus fideicommissum relictum videri, quasi nunc datum, cum mors contingit, videlicet si duraverit voluntas post manumissionem. haec utique nemo credet in testamentis nos esse probaturos, quia nihil in testamento valet, quotiens ipsum testamentum non valet, sed si alias fideicommissum quis reliquerit. 2Hi, quibus aqua et igni interdictum est, item deportati fideicommissum relinquere non possunt, quia nec testamenti faciendi ius habent, cum sint ἀπόλιδες. 3Deportatos autem eos accipere debemus, quibus princeps insulas adnotavit vel de quibus deportandis scripsit: ceterum prius quam factum praesidis comprobet, nondum amississe quis civitatem videtur. proinde si ante decessisset, civis decessisse videtur et fideicommissum, quod ante reliquerat, quam sententiam pateretur, valebit: sed et si post sententiam, antequam imperator comprobet, valebit quod factum est, quia certum statum usque adhuc habuit. 4A praefectis vero praetorio vel eo, qui vice praefectis ex mandatis principis cognoscet, item a praefecto urbis deportatos (quia ei quoque epistula divi Severi et imperatoris nostri ius deportandi datum est) statim amittere civitatem et ideo nec testamenti faciendi ius nec fideicommittendi constat habere. 5Si quis plane in insulam deportatus codicillos ibi fecerit et indulgentia imperatoris restitutus isdem codicillis durantibus decesserit, potest defendi fideicommissum valere, si modo in eadem voluntate duravit. 6Sciendum est autem eorum fidei committi quem posse, ad quos aliquid perventurum est morte eius, vel dum eis datur vel dum eis non adimitur. 7Nec tantum proximi bonorum possessoris, verum inferioris quoque fidei committere possumus. 8Sed et eius, qui nondum natus est, fidei committi posse, si modo natus nobis successurus sit. 9Illud certe indubitate dicitur, si quis intestatus decedens ab eo, qui primo gradu ei succedere potuit, fideicommissum reliquerit, si illo repudiante ad sequentem gradum devoluta sit successio, eum fideicommissum non debere: et ita imperator noster rescripsit. 10Sed et si a patrono sit relictum et aliquis ex liberis eius mortuo eo admissus sit ad bonorum possessionem, idem erit dicendum.
Ulpianus, Trusts, Book I. Where anyone is not certain of his condition, for instance, whether he is a captive in the hands of the enemy, or merely detained by robbers, he cannot execute a will. If, however, he should be ignorant of his legal rights, and thinks, through mistake, that because he has been captured by robbers, he is a slave of the enemy; or if, having been sent on an embassy, he believes that he does not differ from a captive, it is certain that he cannot create a trust, for the reason that he is unable to make a will who is in doubt as to whether he can do so or not. 1Ad Dig. 32,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where a son under paternal control, or a slave creates a trust by will, it will not be valid. If, however, the case is proposed that either of them should die after being manumitted, we constantly decide that the trust should be held to have been left, just as if it had been created at the time of the party’s death; that is if his intention had continued to exist after the manumission. Let no one suppose that we adopt this same rule with reference to wills, because whenever a will is not valid, none of its contents are valid either, but it is otherwise where anyone leaves a trust. 2Those who have been interdicted from the use of water and fire, as well as persons who have been deported, cannot create a trust by will, because they have not testamentary capacity when they are exiled. 3We must understand those to be deported to whom the Emperor has assigned some island as a residence; or such as he has banished by a written order. But before the Emperor has confirmed the sentence of the Governor, no one is considered to have lost his civil rights. Hence, if he should die before this is done, he is held to have died a citizen, and any trust which he left before he was sentenced will be valid, or one which he created after sentence was imposed upon him, and before the Emperor confirmed it, will also be valid; because up to this time he was still in the possession of his privileges as a citizen. 4So far as those are concerned who have been deported by the Prætorian Prefect, or his Deputy who has cognizance of cases under the direction of the Emperor, or also the Urban Prefect (because the right of deportation was likewise granted to him by a Rescript of the Divine Severus and our Sovereign) they immediately forfeit their civil rights, and therefore it is evident that they have neither testamentary capacity nor legal power to create a trust. 5Ad Dig. 32,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where anyone who has been deported to an island makes a codicil while there, and having been restored to the enjoyment of his civil rights by the favor of the Emperor, dies, leaving the same codicil unchanged, it can be maintained that the trust will be valid, provided the party always had the same intention. 6Moreover, it should be noted that those can be charged with a trust into whose hands any of a person’s estate is to pass when he dies, whether it is given to them, or whether they are not deprived of it. 7Not only the next of kin who have obtained possession of an estate by the judgment of the Prætor, but also those entitled to it on the ground of intestacy, can be charged with a trust. 8A child who is not yet born can be charged with a trust, if, after it is born, it will become our successor. 9It may undoubtedly be said that if anyone should die intestate, and leave a trust to be executed by the heir entitled to succeed him in the first degree, and the latter should reject the estate, and the succession pass to the next degree, the heir will not be required to execute the trust. This rule Our Emperor stated in a Rescript. 10If a trust should be left by a freedman to be executed by his patron, and he should die, and one of his children should be permitted to take possession of his property, the same rule will apply.
Dig. 32,3Ulpianus libro primo fideicommissorum. Si mulier dotem stipulata fuerit et accepto tulit marito in hoc dotem, ut fideicommissum det, dicendum est fideicommissum deberi: percepisse enim aliquid a muliere videtur. haec ita, si mortis causa donatura mulier marito fecit acceptum. sed et si mortis causa auxerit marito dotem vel in matrimonium eius mortis causa redierit, potest dici fideicommissum ab eo deberi. 1Iulianus scribit, si servus mihi legatus sit eumque manumittere rogatus sim, fideicommissum a me relinqui non posse, scilicet si pure roget: nam si sub condicione vel in diem, propter fructum medii temporis posse me obligari nec Iulianus dubitaret. 2Si rem quis debeat ex stipulatu ei cui rem legaverit, fidei committere eius non poterit, licet ex legato commodum sentire videatur, quod dominium nanciscitur statim nec exspectat ex stipulatu actionem: fortassis quis dicat et sumptusaaDie Großausgabe liest sumptum statt sumptus. litis, quem sustineret, si ex stipulatione litigaret, eum lucrari. sed nequaquam dicendum est huius fidei committi posse. 3Sed si habenti tibi proprietatem usum fructum mortis causa cessero, potest dici fideicommittere me posse. nec quemquam moveat, quod usus fructus solet morte exstingui: nam medii potius temporis, quo vivat qui donavit, commodum cogitemus. 4Si autem pignus debitoris liberavero mortis causa et eius fidei commissero, non potest valere fideicommissum.
Ulpianus, Trusts, Book I. Where a woman made a stipulation with reference to her dowry, and her husband, having taken a receipt from her therefor in order that she might charge him with a trust, it must be said that the trust should be executed, for he is considered to have received something from his wife. This is the case where the woman gives a receipt to her husband, being about to make him a donation mortis causa. But where she increases her dowry in favor of her husband, mortis causa, or marries him again after separation, it may be held that the trust can be executed by him. 1Julianus said that if a slave should be bequeathed to me, and I am asked to manumit him, I cannot be charged with a trust, that is to say, if I am requested to do so absolutely; for if I am asked under a condition, or within a certain period, I will be liable on account of the profit which I will derive from the labors of the slave in the meantime, and upon this point Julianus entertained no doubt. 2Where anyone owes some property to a certain person, as the result of a stipulation, and bequeaths him the property, he cannot charge him with a trust, although the creditor may be held to have benefited by the legacy, because ownership vests at once, and does not wait for an action based on the stipulation. Perhaps someone might say that he would profit by the expenses of the stipulation, which he would have to pay if the matter should come into court; but it can, by no means, be held that he can be charged with a trust. 3If I should transfer to you, mortis causa, the usufruct of certain property of which you have the ownership, it may be held that I can charge you with a trust, nor will the point that the usufruct is ordinarily extinguished by death have any weight, since we must consider the benefits which the owner will obtain during the intermediate time that the party who made the donation survives. 4If, however, I should release the pledge of my debtor, mortis causa, and charge him with a trust, the trust will not be valid.
Dig. 32,5Ulpianus libro primo fideicommissorum. Si fuerit municipio legatum relictum, ab his qui rem publicam gerunt fideicommissum dari potest. 1Si quis non ab herede vel legatario, sed ab heredis vel legatarii herede fideicommissum reliquerit, hoc valere benignum est.
Ulpianus, Trusts, Book I. Where a legacy is left to a municipality, those who are transacting its business can be charged with a trust. 1Where anyone leaves a trust to be executed, not by the heir or legatee himself, but by the heir of said heir or legatee, it is but proper that this should be valid.
Dig. 32,7Ulpianus libro primo fideicommissorum. Si deportati servo fideicommissum fuerit adscriptum, ad fiscum pertinere dicendum est, nisi si eum deportatus vivo testatore alienaverit vel fuerit restitutus: tunc enim ad ipsum debebit pertinere. 1Si miles deportato fideicommissum reliquerit, verius est, quod et Marcellus probat, capere eum posse. 2Si quis creditori suo legaverit id quod debet, fidei committi eius non poterit, nisi commodum aliquod ex legato consequatur, forte exceptionis timore vel si quod in diem debitum fuit vel sub condicione.
Ulpianus, Trusts, Book I. Where the slave of a man who has been deported is charged with a trust, it will belong to the Treasury, unless the party who was deported disposed of the slave, or was restored to the enjoyment of his civil rights during the lifetime of the testator, for then it will belong to him. 1Where a soldier charges a man who has been deported with a trust, the better opinion is (and this is also approved by Marcellus), that he cannot receive the trust. 2If anyone should bequeath to his creditor what he owes him, he cannot charge him with a trust, unless the creditor obtains some benefit from the legacy; for example, where he is apprehensive of the filing of an exception, or where the debt was to be paid within a certain time, or under some condition.
Dig. 34,3,14Ulpianus libro primo fideicommissorum. Idem est et si in diem debitor fuit vel sub condicione.