CASE 207: Fideicommissum or Not?

D. 31.77.21 (Papinianus libro octavo Responsorum)

Pater pluribus filiis heredibus institutis moriens claves et anulum custodiae causa maiori natu filiae tradidit et libertum eidem filiae, qui praesens erat, res quas sub cura sua habuit adsignare iussit.

(Papinian in the eighth book of his Responses)

As his heirs, a father appointed several of his children. On his deathbed, he handed over his keys and his signet ring to his oldest daughter for safekeeping, and he ordered that a freedman who was present make over to her the things he had in his care. This was interpreted as a measure taken for all of his children in common, and for this reason the daughter’s position with the arbitrator for the division (of the estate) would not be enhanced.

1.      Formlessness. Fideicommissa are in theory form free; they did not have to be written down or even stated orally. See, for instance, Paul, Sent. 4.1.6a (= D. 32.21 pr.): “A fideicommissum is also left by a nod, so long as the person who so leaves it can speak, unless a supervening disease prevents him.” Under what circumstances do you suppose that a person might use a nod of the head in order to leave an inheritance or a bequest? What possibilities for misun­derstanding could arise from such extreme informality? Tit. Ulp. 25.1 states that the validity of a fideicommissum derives “from the will of the person leav­ing it” (ex voluntate relinquentis). Suppose that a dying woman says to an heir at her bedside: “I commend my cousin to your care.” Is that sufficient to cre­ate a fideicommissum? See Ulpian, D.

2.      lang=EN-US style='font-weight:bold'>Keys and a Signet Ring. What is it that the dying father was trying to accom­plish by handing over his keys and signet ring to his oldest daughter? Recon­struct the arguments on both sides of this Case. Is it entirely unreasonable to believe that the father intended to repudiate the other heirs in favor of his old­est daughter? Or that he intended to leave her the property (including the property to which the keys belonged) that was handed over to her or that the freedman was ordered to make over? Is Papinians alternative explanation clearly preferable? Does his view involve a tacit placement of the burden of proof? What precisely would have been required in this Case in order to con­vert the dying persons gesture into a true fideicommissum?

3.      Dividing an Estate. When there are several heirs to fractions of an inheri­tance, they will usually arrange to divide the assets. If the heirs cannot agree on a division or at least on a private arbitrator, one of them can apply to the praetor, who will appoint one for them, through the action for dividing an in­heritance (familiae erciscundae; D. 10.2).