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FIDEICOMMISStJM.
System des lieut, R, R. vol. ii., and in Puchta’s In- stitutionen^ i. § 80, ii. § 165.) [G. L.]
FIDEICOMMISSUM is a testamentary disposition, by which a person who gives something to another imposes on him the obligation of transferring it to a third person. The obligation was not created by words of legal binding force (civilia verba), but by words of request (precative), such as " fideicommitto," " peto," " volo dari," and the like; which were the operative words (verba utilia). If the object of the fideicommissum was the hereditas, the whole or a part, it was called fideicommissaria hereditas, which is equivalent to a universal fideicommissum ; if it was a single thing or a sum of money, it was called fideicommissum singulae rei or fideicommissum speciale. The obligation to transfer a fideicommissaria hereditas could only be imposed on the heres ; the obligation of transferring a single thing might be imposed on a legatee.
By the legislation of Justinian a fideicommissum of the hereditas was a universal succession; but before his time the person entitled to it was sometimes " heredis loco," and sometimes " lega-tarii loco.11 The heres still remained heres after he had parted with the hereditas. Though the fideicommissum resembled a vulgar substitution, it differed from it in this: — in the case of a vulgar substitution, the substituted person only became heres when the first person, named heres, failed to become such ; in the case of the fideicommissum, the second heres had only a claim on the inheritance when the person, named heres, had actually become such. There could be no fideicommissum unless there was a heres.
The person who created the fideicommissum must be a person who was capable of making a will; but he might create a fideicommissum orally without having made a will. The person who was to receive the benefit of the fideicommissum was the fideicommissarius ; and a person might be a fideicommissarius who could take a legacy (Ulp. Frag. xxv. 6) ; the person on whom the obligation was laid was the fiduciarius. The fideicommissarius himself might be bound to give the fideicommissum to a second fideicommissarius. Originally the fideicommissarius was considered as a purchaser (emptoris loco} ; and when the heres transferred to him the hereditas, mutual covenants (cautiones) were entered into by which the heres was not to be answerable for any thing which he had been bound to do as heres, nor for what he had given bona fide, and if an action was brought against him as heres, he was to be defended. On the other hand the fideicommissarius (qui recipiebat hereditatem} was to have whatever part of the hereditas might still come to the hands of the heres, and was to be allowed to prosecute all rights of action which the heres might have. But it was enacted by the senatus–consultum Tfebellianum, in the time of Nero, that when the heres had given up the hereditas to the fideicommissarius, all right of action by or against the heres should be transferred to the fideicommissarius. The praetor accordingly gave utiles actiones to and against the fideicommissarius. From this time the heres ceased to require from the fideicommissarius the covenants which he had formerly taken as his security against his general liabilities as heres.
As fideicommissa were sometimes lost because the heres would not, accept the inheritance, it was
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enacted by the senatus–consultum Pegasianum, in the time of Vespasian, that the fiduciarius might retain one fourth of the hereditas, and the same power of retainer was allowed him in the case of single things. In this case the heres was liable to all debts and charges (onera heredilaria} • but the same agreement was made between him and the fideicommissarius which was made between the heres and the legatus partiarius, that is, the profit or loss of the inheritance was shared between them according to their shares (pro rata parte). Accordingly, if the heres was required to restore not more than three-fourths of the hereditas, the senatus–consultum Trebellianum took effect, and any loss was borne by him and the fideicommissarius in proportion to their shares. If the heres was required to restore more than three-fourths or the whole, the senatus-consuHum Pegasianum applied. If the heres refused to take possession of (adire) the hereditas, the fideicommissarius could compel him, by application to the praetor, to take possession of it and to restore it to him ; but all the costs and charges accompanying the hereditas were borne by the fideicommissarius.
Whether the heres was sole heir (ex asse), and required to restore the whole or a part of the hereditas, or whether he was not sole heir (ea? parte) and was required to restore the whole of such part, or a part of such part, was immaterial: in all cases the S. C. Pegasianum gave him a fourth.
By the legislation of Justinian the senatus-con-sulta Trebellianum and Pegasianum were consolidated, and the following rules were established: —• The heres who was charged with a universal fideicommissum always retained one-fourth part of the hereditas (which was called simply Quarta, or Falcidia, or commodum Legis Falcidiae), and all claims on behalf of or against the hereditas were shared between the fiduciarius and fideicommissarius who was considered heredis loco. If the fiduciarius suffered himself to be compelled to take the inheritance, he lost his Quarta, and any other advantage that he might have from the hereditas. If the fiduciarius was in possession, the fideicommissarius had a personal actio ex testamento against him for the hereditas. If not in possession, he must at least verbally assent to the claim of the fideicommissarius, who had then the hereditatispetitio fideicommissaria against any person who was in possession of the property.
The Quarta is in fact the Falcidia, applied to the case of universal fideicommissa. Accordingly, the heres only was entitled to it, and not a fideicommissarius, who was himself charged with a fideicommissum. If there were several, heredes charged with fideicommissa, each was entitled to a quarta of his portion of the hereditas. The heres was entitled to retain a fourth out of the hereditas, not including therein what he took as legatee.
The fiduciarius was bound to restore the hereditas at the time named by the testator, or, if no time was named, immediately after taking possession of it. He was entitled to be indemnified for all proper costs and charges which he had sustained with respect to the hereditas ; but he was answerable for any damage or loss which it had sustained, through his culpa.
Res singulae, as already observed, might also
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