BOOK III. Gai.: —quod beneficium his, quibus singulae res per fideicommissum relictae sint, non magis tributum est quam legatariis.-D. 29, 4, 17.' Finally, both senatus-consulta were blended together in the Law of Justinian in such way that henceforth restitution, even deducta quarta, always has the result appointed in the SC. Trebellianum, but the SC. Pegasianum was in name completely abolished. Inst. ii. 23, § 7: Omnibus modis suggestis tam similitudinibus quam differentiis utriusque senatusconsulti placuit, exploso senatusconsulto Pegasiano, . . . omnem auctoritatem Trebelliano senatusconsulto praestare, ut ex eo fideicommissariae hereditates restituantur, sive habeat heres ex voluntate testatoris quartam sive plus sive minus sive penitus nihil, ut tunc, quando vel nihil vel minus quarta apud eum remaneat, liceat ei vel quartam vel quod deest ex nostra auctoritate retinere, quasi ex Trebelliano senatusconsulto pro rata portione actionibus tam in heredem quam in fideicommissarium competentibus: si vero totam hereditatem sponte restituerit, omnes hereditariae actiones fideicommissario et adversus eum competunt. Sed etiam id quod praecipuum Pegasiani senatusconsulti fuerat, ut quando recusabat heres scriptus sibi datam hereditatem adire, necessitas ei imponeretur totam hereditatem volenti fideicommissario restituere et omnes ad eum et contra eum transirent actiones, et hoc transposuimus ad senatusconsultum Trebellianum, ut ex hoc solo et necessitas heredi imponatur, si ipso nolente adire fideicommissarius desiderat restitui sibi heredita pelled by the Praetor to make entry and to restore the whole, so that actions may be granted for and against the person who receives the inheritance, just as though restitution had been made under the Setum Trebellianum; and provision to that effect has been made by the Setum Pegasianum. 1 This benefit is granted to those to whom single things have been bequeathed by fid. comm. just as little as by legatees. tem, nullo nec damno nec commodo apud here- For the protection of his right, the universal fideicommissary has at his command the fideicommissaria hereditatis petitio. Ulp. Hanc actionem sciendum est adversus eum, qui restituit hereditatem, non competere.D. 5, 6, 3, 1.2 A disposition can be made by universal fideicommissum also as successive, and further, in the form of the so-called fideicommissary, substitution." BOOK III. Part III. • Cf. § 160. Gai. ii. § 277: Quamvis non possimus post mortem eius, qui nobis heres exstiterit, alium in locum eius heredem instituere, tamen possumus eum rogare, ut cum morietur, alii eam hereditatem totam vel ex parte restituat; et quia post 1 Having considered all the points of agreement and difference in both Seta, we have decided to repeal the Sctum Pegasianum and to give all legal force to the Sctum Trebellianum, so that inheritances bequeathed in trust shall be made over by virtue of the latter, whether the heir by desire of the testator have a fourth, or more, or less, or nothing whatever; but so that when either nothing or less than a fourth is left to him, he may by our authority retain a fourth part, or the amount of the deficiency, or demand repayment of it if he has paid it, as though under the Sctum Trebellianum, whilst actions shall lie both against the heir and the beneficiary, according to their respective shares. But should the heir of his own accord make over the entire inheritance, all actions in respect of the inheritance lie for and against the fideicommissary. But that which is peculiar to the Sctum Pegasianum, viz., that when the appointed heir refused to enter upon the inheritance which had been given him, the necessity was imposed upon him of making over the whole inheritance to the beneficiary at his request, and of transferring actions both for and against him,-this provision we have added to the Sctum Trebellianum, so that by the latter alone is the obligation imposed upon the heir, when he declines to make entry, and when the beneficiary desires that the inheritance should be made over to him, the heir experiencing neither gain nor loss. 2 It must be noted that this action does not attach against him who has restored an inheritance. BOOK III. mortem quoque heredis fideicommissum dari potest, idem efficere possumus, et si ita scripserimus; CVM TITIVS HERES MEVS MORTVVS ERIT, VOLO HEREDITATEM MEAM AD PVBLIVM MAEVIVM PERTINERE; utroque autem modo, tam hoc quam illo, Titius heredem suum obligatum relinquit de fideicommisso restituendo.' § 186. MORTIS CAUSA CAPIONES AND DONATIONES. 'Mortis causa capio' in the narrow sense is, according to classical usage, every acquisition that any one makes by occasion of the death of another, whether from the property of the deceased or of a third person, with the exception of succession, of legacies and fideicommissa. Gai. Mortis causa capitur, cum propter mortem alicuius capiendi occasio obvenit, exceptis his capiendi figuris, quae proprio nomine appellantur : certe enim et qui hereditario aut legati aut fideicommissi iure capit, ex morte alterius nanciscitur capiendi occasionem, sed quia proprio nomine hae species capiendi appellantur, ideo ab hac definitione separantur.-(Mortis causa) capitur veluti pecunia, quam statuliber aut legatarius alicui condicionis implendae gratia numerat, sive extraneus sit qui accepit sive heres. Eodem numero est pecunia, quam quis in hoc accipit ut vel adeat hereditatem vel non adeat, quique in hoc accipit pecuniam, ut legatum omittat.1. 31 pr., § 2, D. h. t. (de mort. c. don. 39, 6).* 1 Although we cannot appoint another as heir after the death of him who has become our heir, yet we can ask him at death to make over to another the whole or part of the inheritance, and as a fid. comm. can also be given after the death of the heir, we can also produce the same effect by expressing ourselves thus: 'When Tit., my heir, is dead, I wish my inheritance to belong to Publ. Maev.' Now in both ways, as well the latter as the former, Tit. leaves his heir bound to restore a fid. comm. 2 A gift mortis causa is acquired when opportunity is afforded of acquiring by reason of some one's death, with the exception Part III. To mortis causa capiones belong also in particular— BOOK III. unquestionably again distinguished from them-mortis causa donationes,a i.e., the gifts that any one makes in Inst. ii. 7, 1. contemplation of his death before the donee, and which regularly do not become perfect until such death. Cf. A. A. Smith, 'Equity,' pp. 527-532. Cf. Black Mod. Mortis causa donatio est, cum quis stone, ii. 514 magis habere se vult, quam eum cui donat, magis- (Steph. ii. 46-7). que eum cui donat, quam heredem suum.—1. I pr., D. h. t.' Paul. Mortis causa donatio fit multis modis: alias extra suspicionem ullius periculi a sano et in bona valetudine posito, cui ex humana sorte mortis cogitatio est; alias ex metu mortis, aut ex praesenti periculo aut ex futuro, si quidem terra marique, tam in pace quam in bello, et tam domi quam militiae, multis generibus mortis periculum metui potest. . . . Et sic donari potest, ut non aliter reddatur, quam si prior ille qui accepit decesserit.1. 35, § 4 eod.* of those species of acquisition which are designated by a special name, for it is certain that a person who takes by right of inheritance, or legacy, or bequest in trust, also acquires opportunity of taking by the death of another; but inasmuch as these species of acquisition are designated by a special name, they are accordingly excluded from this definition.-We take (mortis causa) for example, money which a statuliber or a legatee pays to some one for the fulfilment of a condition, whether the recipient be a stranger or the heir. In the same category is money which a man receives for the purpose either of making entry upon an inheritance or of forbearing to do so, and he that receives money in consideration of his not claiming a legacy. 1 There is a gift mortis causa when some cue prefers rather that he should himself have possession of the thing than the person to whom he gives it, and that the latter should have it in preference to his own heir. 2 A gift mortis causa obtains in many ways: at one time, without apprehension of any danger, by a man endowed with sound mind and good health, who contemplates death in the course of nature; at another time, from fear of death, because of either immediate or future danger, since there can be many descriptions of apprehended danger of death, by land and by a BOOK III. Ulp. Non videtur perfecta donatio mortis causa facta, antequam mors insequatur.-1. 3 2 eod.1 Id. Qui mortis causa donavit, ipse ex poenitentia condictionem vel utilem actionem habet.1. 30 eod.2 : Id.: Si mortis causa res donata est et convaluit qui donavit, videndum, an habeat in rem actionem. Et si quidem quis sic donavit, ut, si mors contigisset, tunc haberet cui donatum est, sine dubio donator poterit rem vindicare; mortuo eo tunc is cui donatum est. Si vero sic, ut iam nunc haberet, redderet, si convaluisset vel de proelio vel peregre rediisset, potest defendi in rem competere donatori, si quid horum contigisset, interim autem ei cui donatum est.-1. 29 eod.' Mortis causa donationes were step by step assimilated to bequests, especially as regards capacity and the quarta Falcidia-as to which in detail many controversies existed-from the time of Justinian also in respect of the form of disposition, in case the donation § 129, ad fin. generally required a form." Senatus censuit placere mortis causa donationes factas in eos, quos lex prohibet capere, in eadem water, both in peace and in war, at home and on service. . . And so a gift can be made in such way that it shall not be returned unless the donee be the first to die. 1 A gift made mortis causa is not considered complete before death ensues. 2 He that has made a donation in view of death has, in case of regret, a personal or equitable action. If a thing was given in contemplation of death, and the donor has recovered, we have to consider whether he has the proprietary action. And if in fact a man has made a donation in such way that, if his death should have happened, then the donee shall have the thing, the donor will without doubt be able to recover the ownership; but if he have died, then the donee. But if it have been given in this way, that he shall now already have the thing, but shall restore it if the donor recover, or shall have returned from battle, or from a journey, it may be maintained that the donor has the proprietary action after that one of these conditions has been fulfilled, but, on the other hand, the donee in the meantime. |