CASE 206: Inheritance by Another Name?*
D. 31.77.12 (Papinianus libro octavo Responsorum)
“Fidei tuae committo, uxor, ut restituas filiae meae, cum morieris, quidquid ad te quoquo nomine de bonis meis pervenerit.” etiam ea, quae postea codicillis uxori dedit, fideicommisso continebuntur, nam ordo scripturae non impedit causam iuris ac voluntatis: sed dos praelegata retinebitur, quoniam reddi potius videtur, quam dari.
(Papinian in the eighth book of his Responses)
(A testator provided in his will:) “I charge it to your trust (fidei tuae committo), my wife, that you restore to my daughter, when you die, whatever of my property comes to you under whatever title.”
Even those things that he afterward gave to his wife in codicils are included in the fideicommissum, since the order of composition does not get in the way of applying the legal rule and the testator’s intent. A dowry given by praelegatum, however, will be held back, because it is deemed to be returned, not given.
1. The Trust. A fideicommissum, or testamentary trust, has the following form: the testator confers a benefit on a trustee but accompanies the benefit with a request that the trustee transfer all or some of this benefit to another person, the true beneficiary of the trust. Trusts have a long and complicated history. During the Roman Republic, because of the rigidity of traditional legacies, Roman testators began asking favors of their heirs and legatees. At first only the recipients trustworthiness (fides) guaranteed performance; but beginning in the early Empire many such fideicommissa became enforceable through imperial courts (Justinian, Inst.
2.23.1), thus greatly easing the formalism of the Roman law of succession. Unlike legacies, trusts could be charged on legatees as well as heirs and could be made for all or part of the estate (though in time they too were made subject to the requirements of the lex Falcidia [see Case 198], as well as to those of the Augustan marriage legislation [see Case 212]). A trust could even function upon intestacy, not only where a will failed but even in the absence of a will (see Discussion 6 below). Thus, it made sense to many testators to insert a trust clause in their wills as a safeguard in case some or all of their dispositions failed. In time the trust came to be viewed as inhering in the property itself rather than in the trustee. Though not subjected to the same formalities, fideicommissa in practice often mimicked the function of wills and legacies.2. Transmitting an Inheritance. In this Case, which illustrates the freedom of the new form of bequest, a husband apparently made his wife a partial heir and then left her further property through legacy in codicils. All of this property effectively reverts to the daughter upon the wife's death, according to the terms of the fideicommissum. By contrast, a testator had only very limited ability to restrict a legatee's power over a legacy. Is it a good idea to allow a testator to control the disposition of property long after his or her death? What limits should there be on this control? What are the potential social and economic advantages or disadvantages?
3. Dowry. Why isn't the wife's dowry included in the fideicommissum? Does the wife not receive this from the estate of her former husband? Suppose a wife names her husband heir, subject to a fideicommissum that when he dies, he should restore all he received from her inheritance to their common son.
Is the property in her dowry that had been returned to her after their divorce included in the fideicommissum? See Scaevola, D. 36.1.80.9 (yes). Why the difference?4. Comparative Law. A fideicommissum resembles a trust in Common Law, but they differ in many details. Above all, a fideicommissum does not involve a divided ownership (legal as opposed to equitable ownership); instead, the recipient is full and sole owner, but the beneficiary is entitled to sue the recipient for enforcement of the fideicommissum. What risks does this involve? What if the recipient sold the property and conveyed title to a third party?
5. Malleable Procedure. Flexibility of form was matched by flexibility of procedure. Lawsuits on fideicommissa were heard at Rome, not by the praetor under the formulary procedure, but by other magistrates under the cognitio extra ordinem, an imperial form of procedure that gave them considerable discretion on how to proceed. While under the praetorian system judgment was routinely given in monetary terms, under cognitio the magistrate could compel performance. This meant that if a testator really wanted a beneficiary to have an item left as a bequest rather than its value in money, he was well advised to employ a trust rather than a legacy as a means of leaving the property.
6. Imposing Trusts on Intestate Heirs. Much the oddest result of the flexible fideicommissum was that it could be imposed on anybody receiving a benefit from the deceased, even an intestate heir. As Paul says (D. 29.7.8.1): “Trusts can be charged on intestate successors, since the paterfamilias is considered to have voluntarily left them an inheritance based on statute.” Is this pure fiction? Does it make any sense to permit a person to die without a will but still with the ability to determine where some or all of the estate will go? What if intestacy results only because a will has been broken, perhaps through a technicality?