When excluded. 270 FRENCH, ENGLISH, AND SCOTTISH LAW. [PART IV. 1st, When those who were entitled to raise it approved directly or indirectly of the testament; 2d, By the heirs of blood surviving the testator, and thereafter dying without instituting a challenge; and, 3d, By prescription, which was at first fixed at two years, and afterwards at five.1 Limits of testament ary power. II.-FRENCH LAW. In modern times the limits of testamentary power vary in different countries. In France, if any one die without issue or ascendants, he may leave his whole property to strangers; but if a man at his death has one lawful child, he can only so dispose of the half of his estate; if he leave two children, the third; and if he leave three or more children, the fourth. If the deceased has no issue, but is survived by ascendants in each of the paternal and maternal lines, he can only dispose of the half of his property; and three-fourths if he leave ascendants only in one line.2 III.-ENGLISH AND SCOTTISH LAW. In England testamen tary power By the modern law of England, whatever limitations may have formerly existed, the testamentary power is wholly ununlimited. fettered. For, apart from special contract, any man can by will bequeath his whole real and personal estate to strangers, even though he should leave a wife and children.3 In Scotland same, wife or issue. if no In Scotland the law stands upon a different footing. If a man die without either wife or issue, his whole property is at his own disposal; if he leave a wife and issue, his goods or personal property are divided into three equal parts, one of Jus relicta which goes to his wife as jus relicta, another to his children and legitim. as legitim, and the third is at his own disposal; if he leave no wife, he may then dispose of one-half, and the other half goes to the children, and so e converso, if he leave no children 1 I. 2. 18. D. 5. 2. C. 3. 28. 3 Williams's Exec., p. 3-5. Paterson's Compendium, p. 223. the wife is entitled to one-half, and he may bequeath the other. The legitim can only be claimed by the father's existing children, and not by the issue of a deceased child. The eldest son has a share of the legitim along with the rest, but is excluded from it if there be a heritable estate falling to him as heir-at-law, which he refuses to share with the other children.1 The wife's jus relicta may be expressly excluded in an antenuptial contract, and also the children's right to legitim, at least when reasonable provisions are made for them on the dissolution of the marriage. 1 Bell's Pr. § 1583. CHAPTER IV. Trusts at first precarious. Fidei-com missum defined. OF FIDEI-COMMISSA OR BEQUESTS IN TRUST. HITHERTO We have treated of testamentary writings, the object of which was to transfer the succession directly to the heir. We now come to the subject of trusts. This form of disposition was introduced in order to evade the strict rules of the civil law, by transmitting property to foreigners, exiles, and other persons who were legally incapacitated from taking anything directly under the will of a Roman citizen. Originally all trusts were precarious, and depended entirely on the honour of the trustee, till Augustus authorised them to be enforced by law, and having afterwards become extremely common and highly favoured, they were placed under the permanent jurisdiction of a special prætor.1 A fidei-commissum in the Roman law is a mortis causa disposition, by which the testator leaves something to another under an obligation to transfer it to a third person. If the object of the trust was the whole succession or a part of it, this was called fidei-commissaria hereditas, or fidei-commissum universale; if it was a single thing or definite sum of money, it was called fidei-commissum singulæ rei, or fidei-commissum speciale. In the first case, the obligation could only be imposed on the heir; in the second, it might be laid on a legatee, or any one who received something under the will. A universal trust, by which the heir is requested to make over the inheritance or a part of it to another, may be regarded as a species of substitution; for the beneficiary takes 1 I. 2. 23. 1. in whole or in part the place of the first heir: but it differs from a vulgar substitution in this respect, that the beneficiary can only take as a substitute after the first heir has entered upon the inheritance. of the trus The person charged with the trust was bound to restore the Obligations subject at the time appointed by the testator, and, if no time tee. was mentioned, immediately after accepting the succession. The testator might appoint the subject to be restored by the first heir to the second, by the second to the third, and so forth. When a universal trust was constituted with substitutions in favour of the family of the founder, it was called fidei-commissum familia.1 The heir charged with the trust became proprietor in a certain sense when he entered upon the inheritance; but, without the permission of the testator or the express consent of all parties interested, he could not alienate the estate, except for payment of debts affecting the succession, or preventing the beneficiary from suffering damage. But, if the heir was required to restore what remained of the succession at the period of his own death-fidei-commissum ejus quod superfuturum est), he could under the new law dispose of three-fourths of the estate, and was only bound to account to the beneficiary for the remaining fourth, for which he might be required to find security.2 As the direct heir was free to accept or refuse the succession, there were reasons to apprehend that he would always repudiate it when he was required to restore the whole estate without deriving any benefit from it. To obviate this diffi- Pegasian culty, the person charged with the trust was allowed by law portion. to retain a fourth part of the inheritance, if he was universal heir, or a fourth part of his hereditary portion if he was only heir for a part; but, on the other hand, he was bound to accept the succession in order to discharge the trust. All the debts affecting the succession were divided between the 1 N. 159. See Domat, part ii. b. 5, t. 3; Mackeldey, § 748. 2 N. 108, ch. 1 and 2. Mackeldey, $ 756. S A trust of a particular thing. trustee who retained the Pegasian portion, and the beneficiary, according to their respective interests.1 Particular things may also be the object of a special trust, as a field, a silver cup, or a sum of money; and the person charged with the trust may be the heir or a legatee. But no man can be requested to give more than he has received by means of the testament. A legacy was left in imperative terms, a fidei-commissum in words of entreaty; but notwithstanding the difference in the form of expression, both were binding in law. Justinian assimilated legacies and special gifts in trust by abolishing all ancient distinctions and extending the same rules of law to both, so far as this might be necessary to make them effectual.2 1 The Commentators often call tus-consultum. Ortolan, Institutes, this portion the Trebellian fourth; § 962. but it originated not under the Trebellian, but under the Pegasian sena 2 I. 2. 20. 3. C. 6. 43. |