CASE 209: Legacy and Fideicommissum

D. 33.2.32.6 (Scaevola libro quinto decimo Digestorum)

Duas filias et filium mente captum heredes scripsit, filii portionis mente capti [datae] usum fructum legavit in haec verba: “hoc amplius Publia Clementiana prae­cipiet sibi quartae partis hereditatis meae, ex qua Iulium lustum filium meum here­dem institui : petoque a te, Publia Clementiana, uti fratrem tuum Iulium Iustum alas tuearis dependas pro eo: pro quo tibi usum fructum portionis eius reliqui, donec mentis compos fiat et convalescat.” quaesitum est, cum filius in eodem furore in diem mortis suae perseverans decesserit, an usus fructus inter­ciderit.

(Scaevola in the fifteenth book of his Digests)

As heirs, a testator appointed two daughters and a mentally ill son, and legated the usufruct of the mentally ill son’s share in the following words: “In addition to this (her share of the inheritance), Publia Clementiana will take as a preferential legacy the usufruct of the quarter share of my estate that I gave as an inheritance to my son, Julius Justus; and I ask you, Publia Clementiana, to provide mainte­nance for your brother, Julius Justus, to look out for him, and to pay off his cred­itors. In return, I have left you the usufruct of his share of the inheritance until such time as he recovers his senses and becomes well.” The son died after con­tinuing in the same madness until the day of his death. Question was raised whether the usufruct (then) terminated.

He (Scaevola) responded that, on the basis of the words given, the legacy continues, unless it is unambiguously shown that the testator intended some­thing else.

1.      Legacy or Fideicommissum? The bequest to Publia Clementiana is described by the testator as a preferential legacy (per praeceptionem); see Case 204. This means that, as part of her share, Publia Clementiana receives the usufruct from her brothers share.

2.      The Testator’s Intent. What did the testator probably intend with the final sentence of the legacy? Is Scaevola right to interpret the language as indicat­ing that the usufruct continues beyond Julius Justus's death, unless the oppo­site can be proven? Would Scaevola have reached the same result if Julius Jus­tus had recovered his sanity during his lifetime? Who is likely to own this property after the death of Julius Justus?