the signification of fideicommissa-universal or singular -imposed upon the heir in intestacy. Ulp. Plerique solent, cum testamenti faciunt perscripturam, adiicere velle hoc etiam vice codicillorum valere.-D. 29, 1, 3.' Paul. Ex ea scriptura, quae ad testamentum faciendum parabatur, si nullo iure testamentum perfectum esset, nec ca, quae fideicommissorum verba habent, peti posse. § Ex his verbis, quae scriptura paterfamilias addidit: ‘ταύτην τὴν διαθήκην βούλομαι εἶναι κυρίαν ἐπὶ πάσης ἐξουσίας [hoc testamentum volo esse ratum, quacumque ratione poterit],' videri eum voluisse omnimodo valere ea quae reliquit, etiamsi intestatus decessisset.-D. 28, 1, 29.9 = $182. LIMITATION OF BEQUESTS; THE QUARTA FALCIDIA IN PARTICULAR. a BOOK III. 120. Part III. The unrestrained freedom of bequest a originally ap- " Cf. D. 50, 16, pertaining to every testator often resulted in the testament becoming 'destitutum,' and dissipation of the heritage an impropriety which legislation endeavoured to meet by restrictions as to the extent of legacies. Gai. ii. § 224: Sed olim quidem licebat totum patrimonium legatis atque libertatibus erogare, nec quidquam heredi relinquere praeterquam inane nomen heredis; idque lex XII tabularum permittere videbatur, qua cavetur, ut quod quisque de re sua testatus esset id ratum haberetur, his 1 Very many in their written testament are wont to add that, it is their will that this shall also pass as a codicil. 2 Upon such a document as was intended to constitute a testament if the testament was altogether imperfect, one cannot either lay claim to fideicommissa which are contained in it. From the following words, which a pat. fam. added in writing, My will is that this testament shall be valid in whatever way it can,' it appears to have been his will that his bequests should stand good in all events, although he should have died intestate. BOOK III. verbis VTI LEGASSIT SVAE REI, ITA IVS ESTO: quare qui scripti heredes erant, ab hereditate se abstinebant et idcirco plerique intestati moriebantur.1 as First of all, the lex Furia (a lex minus quam pera Sce § 4, ad fin. fecta) a fixed as maximum for every legacywell as mortis causa donatio-the sum of 1000 asses, with the exception of legacies left to certain near relations. Cf. Vat. fgm. 216,218; D. 38, 8, 1, 3. Ulp. fgm. 2: Minus quam perfecta lex est, quae vetat aliquid fieri, et si factum sit, non rescindit, sed poenam injungit ei, qui contra legem fecit: qualis est lex Furia testamentaria, quae plus quam mille asses legati nomine mortisve causa prohibet capere praeter exceptas personas, et adversus eum, qui plus ceperit, quadrupli poenam constituit." Vat. fgm. 301 (Paul.): Lex Furia sex gradus et unam personam ex septimo gradu excepit, sobrino natum.3 Gai. ii. 225: Sed haec lex non perfecit quod voluit: qui enim verbi gratia quinque milium aeris patrimonium habebat, poterat quin 1 But of old it was in fact lawful to expend the whole of a patrimony in legacies and gifts of freedom, and to leave nothing to the heir save the empty title of heir; and a law of the Twelve Tables was considered to permit this, in which it is provided that the disposition made by a man of his estate should be valid in these words: As a man shall have bequeathed a legacy of his property, so let it be law.' Wherefore those who were appointed heirs kept aloof from the inheritance, and thus many persons died intestate. 2 A law less than perfect is one that forbids something to be done, and if it have been done, does not rescind it, but imposes a penalty on him who has acted contrary to the law: such is the 1. Furia Testamentaria, which forbids persons, other than those exempted, from taking more than a thousand asses as a legacy or gift in view of death, and appoints a fourfold penalty against a person that has taken more. 3 The 1. Furia excepted six degrees, and one person from the seventh degree, the child of a cousin-german. que hominibus singulis millenos asses legando BOOK III. Part 111. As this limitation proved to serve the purpose little, the lex Voconia"-which in general made a great in- a Gai. ii. 274. road upon freedom of testation-provided in respect of the testaments of all citizens enrolled in the first class, that no legacy (or mortis causa donatio) should exceed the amount of the share of the property remaining to the heir (or of the hereditary portions of all the heirs) and that it should be inoperative ' cr. § 185. beyond that. Ib. § 226 Ideo postea lata est lex Voconia, qua cautum est, ne cui plus legatorum nomine mortisve causa capere liceret quam heredes caperent; ex qua lege plane quidem aliquid utique heredes habere videbantur; sed tamen fere vitium simile nascebatur: nam in multas legatariorum personas distributo patrimonio poterat testator adeo heredi minimum relinquere, ut non expediret heredi, huius lucri gratia totius hereditatis onera sustinere." Effectual relief was finally afforded by the lex Falcidia (A.U. 714), according to which there should remain undiminished by legacies to each heir one-fourth of the heritage; in the case of several heirs, to each one-fourth of his hereditary share:-QUARTA FALCIDIA. Gai. ii. § 227: Lata est itaque lex Falcidia, 1 But this lex did not accomplish its object. For he who had, for example, a patrimony of 5000 asses, could expend his whole patrimony by bequeathing 1000 asses to each of five persons. 2 Hence, the 1. Voconia was afterwards passed, by which it was provided that no one should be allowed to take more by way of legacy or gift in contemplation of death than did the heirs. By this lex it seemed clear that the heirs must have something in any case; but a defect almost of the same kind arose; for by a distribution of the patrimony amongst a considerable number of legatees, testators could leave so very little to the heir, that it did not answer his purpose for the sake of this profit to undertake the burdens of the entire inheritance. b BOOK III. qua cautum est, ne plus ei legare liceat, quan dodrantem; itaque necesse est, ut heres quartam partem hereditatis habeat: et hoc nunc iure utimur.' Paul. Lex Falcidia lata est, quae primo capite liberam legandi facultatem dedit his verbis: QVI CIVES ROMANI SVNT, QVI EORVM POST HANC LEGEM ROGATAM TESTAMENTVM FACERE VOLET, VT EAM PECVNIAM EASQVE RES QVIBVSQVE DARE LEGARE VOLET, IVS POTESTASQVE ESTO, VT HAC LEGE LICEBIT. Secundo capite modum legatorum constituit his verbis: QVICVMQVE CIVIS ROMANVS POST HANC LEGEM ROGATAM TESTAMENTVM FACIET; IS QVANTAM CVIQVE CIVI ROMANO PECVNIAM IVRE PVBLICO DARE LEGARE VOLET, IVS POTESTASQVE ESTO, DVM ITA DETVR LEGATVM, NE MINVS QVAM PARTEM QVARTAM HEREDITATIS EO TESTAMENTO HEREDES CAPIANT. EIS QVIBVS QVID ITA DATVM LEGATVMVE ERIT, EAM PECVNIAM SINE FRAVDE SVA CAPERE LICETO; ISQVE HERES, QVI EAM PECVNIAM DARE IVSSVS DAMNATVS ERIT, EAM PECVNIAM DEBETO DARE, QVAM DARE DAMNATVS EST.-1. 1 pr., D. ad l. Falc. 35, 2.3 1 Therefore the 1. Falcidia was passed, by which it was provided that it should not be lawful to bequeath more than three fourths; and therefore the heir must needs have a fourth of the inheritance, and this is the law we now observe. • The l. Falcidia was passed, which in its first chapter gave free power of bequest in the following words: Those who are Roman citizens, whichever of such shall after the introduction of this lex desire to make a testament, shall have right and power to give and bequeath money and things to every one as he will, as shall be allowed by this statute.' In the second chapter it prescribes the quantity of bequests in the following words: 'Whatever Roman citizen shall make a testa. ment after the introduction of this statute shall have right and power to give and bequeath according to public law as much as he likes to any Roman citizen, provided that the bequest shall be given in such form that the heirs take by the testament not less than the fourth part of the inheritance. Those to whom anything shall have been given or bequeathed shall be at Gai. In singulis heredibus rationem legis Falcidiae componendam esse non dubitatur: et ideo si Titio et Seio heredibus institutis semis hereditatis Titii exhaustus est, Seio autem quadrans totorum bonorum relictus sit, competit Titio beneficium legis Falcidiae.-1. 77 eod.1 BOOK III. The lex Falcidia, which originally was applicable only to legata, was by the SC. Pegasianum (under Vespasian A.D. 75) extended also to fideicommissa," "Gai. ii 25+ but the heir always retained only claim to the fourth part. Ulp. Numquam legatarius vel fideicommissarius, licet ex Trebelliano senatusconsulto restituitur ei hereditas, utitur legis Falcidiae beneficio. -1. 47, § 1, D. eod. Paul. Dixi legem Falcidiam inductam esse a D. Pio etiam in intestatorum successionibus propter fideicommissa.-1. 18 pr. eod.3 The extent of the heritage at the time of the death of the testator, after abstraction of the debts of the inheritance, is made the basis for calculating the Falcidian fourth; the abatement of the legacies follows pro rata. Gai. In quantitate patrimonii exquirenda visum est mortis tempus spectari. Qua de causa si quis centum in bonis habuerit et tota ca liberty to accept it without prejudice to themselves, and the heir upon whom the payment of such money has been charged shall be obliged to pay such money the payment of which has been imposed upon him.' 1 There is no doubt that the 1. Falcidia is to be applied in respect of the individual heirs; and therefore, if when Tit. and Sei. have been appointed heirs, one half of the inheritance of Tit. has been exhausted, but one fourth of the whole estate has been left to Sei., the benefit of the 1. Falcidia belongs to Tit. 2 The legatee or fideicommissary never has the benefit of the 1. Falcidia, although by the SCtum Trebellianum the inheritance is restored to him. I have said that the 1. Falcidia was by the late Emp. Pius applied also to the inheritance of intestates because of fideicommissa. |