CASE 203: Legacy of a Usufruct*

D. 33.2.32.2-4 (Scaevola libro quinto decimo Digestorum)

(2) Uxori usum fructum domuum et omnium rerum, quae in his domibus erant, excepto argento legaverat, item usum fructum fundorum et salinarum: quaesitum est, an lanae cuiusque coloris mercis causa paratae, item purpurae, quae in domibus erat, usus fructus ei deberetur.

(Scaevola in the fifteenth book of his Digests)

(2) A man legated to his wife the usufruct of (certain) houses as well as of every­thing inside the houses except for the silver, and also the usufruct of farms and saltpans. It was asked whether she was owed the usufruct of the wool of various colors that was readied for sale, and also the purple dye, which were in the houses. He (Scaevola) responded that the legatee had the usufruct of everything except the silver and the things readied for sale.

(3)     lang=EN-US style='font-weight:bold'>When no small quantity of salt was discovered in the saltpans, the usufruct of which was legated, the same questioner asked whether its usufruct went to the wife because of the fideicommissum. He responded that the testator had not intended to legate those things that were for sale there.

(4)     The same questioner asked about a clause in the same will that provided: “I ask of you, my wife, that from the usufruct that I wish to be provided to you for fifteen years, you be content with 400 (gold coins) per year, and that the excess be transferred to the accounts of my heir or heirs.” Does he seem to retract the earlier clause, so that the wife takes no more than 400 per year from the usufruct? He responded that the quoted words quite clearly answer the question.

1.      Usufruct.

2.      A Persistent Questioner. In this Case, the testator’s wife received a usufruct over extensive properties both urban and agricultural. Why did the usufruct cause so many problems for the questioner? How can these problems be clas­sified?

•       When he died, the houses contained cloth and dye that the testator had presumably intended to sell. Why does Scaevola hold that the widow can­not sell and profit from these commercial goods? If the houses contain cloth shops along their street frontage, will she be able to receive rents from them? Can she profit from future cloth manufacture within the shops?

•       Saltpans are used to collect salt from evaporated sea water.

•       In the original text of this Case, the will asked the widow to be content with a total annual income from the usufruct of 400,000 sesterces, an enormous income by Roman standards. Why does Scaevola think the interpretation of the will is so obvious? If the usufruct income fell below this figure, would the heir be obliged to make up the difference? (Scaevola’s exaspera­tion with his questioner is fairly typical; he is often impatient, and some­times rather hostile.)

The jurists discuss such questions at great length in D. 7.1; but their rulings are not easy to systematize. Why might this subject have been difficult for them?

3.      Improvements. The general rule was that the usufructuary was responsible for the upkeep of the property and could make some changes to it but could not make changes that would alter the property’s essential character or lower its value; see, for instance, Ulpian, D. 7.1.7 pr.-9.3. Could the usufructuary uproot a vineyard in order to mine for gold? Convert a residential home into a lodging house, or into a business such as a dry-cleaner's shop or a public bath? Turn an existing private bath into a public facility? Erect a new building on an empty lot? Whose interests are being protected, and do these interests conflict?

4.      Legacies and Fideicommissa. In (3) Scaevola describes the legacy as a fide­icommissum. In his day these two forms of bequest were still distinct (Gaius, Inst. 2.268-289), but the divergence was gradually eroding; Scaevola often ignores it. See the following section.