8.9 Codicils and trusts

8.9.1 Codicils

Originally, codicils consisted of informal attempts to dispose of property on death. They could exist quite independently of wills. It seems that codicils were first recog­nized as valid under Augustus.

A distinction was drawn between codicils that were confirmed by will and those that were not. At first, codicils were not considered valid unless confirmed, whether prospectively or retrospectively. Prospective confirmation was affected by the tes­tator stating in his will that effect was to be given to codicils made after the will. Retrospective confirmation was the ratification of a codicil made before the will. A codicil that was confirmed by will could do almost anything that a will could do but could not appoint an heir. On the other hand, codicils that were not confirmed by will were regarded as valid only for the purpose of creating a trust; but then that was the primary purpose of codicils in any case. When Justinian fused the law of legacies with that of trusts (see 8.9.2.5), the distinction between confirmed and unconfirmed codicils lost its force.

The importance of codicils as an alternative form of disposing of property on death led to the development of an ingenious practice in the classical period: tes­tators would insert a clause in their wills to the effect that, in the event of failure, the will should be construed as a codicil, imposing trusts on the heirs entitled on intestacy. This practice was intended as a form of extra 'insurance' against the pos­sibility of intestacy.

8.9.2 Trusts (fideicommissa)

Trusts were a comparatively late development in Roman law (see Watson, A., 'The Early History of Fidei-Commissa' (1970) 1 Index, 178-83). But once their validity was recognized, they came to exercise an enormous and dynamic influence on the practical operation of the law of inheritance. See generally Johnston, D., The Roman Law of Trusts (1988). Indeed, it is clear that in the classical period there was not one law of inheritance, but three: the ius civile system, the bonorum possessio of the praetors, and the law of trusts. Trusts were obligations that were imposed on heirs or other beneficiaries under a will, to hold property (and usually to transfer it) for the benefit of the persons designated by the testator. Trusts could be imposed also on heirs to an intestate estate. It can be seen at once that Roman trusts differed in some important respects from the notion of a trust in English law. For example, the English trust can operate inter vivos as well as on death, cf. Frier and McGinn, Casebook, 404-12 as well as Johnston, 'Succession', 206-9.

8.9.2.1 Origins

Roman testators sometimes entrusted the care of a particular item of property to an heir (or legatee) with a request that it should be passed on to some other per­son. In this practice can be detected the origins of fidekommissa, the heirs being entrusted with the carrying out of the testator's request. At first, the obligation had no legal force—the beneficiary under the trust depended on the good faith of the heir. However, given the concern with preserving one's good name and honour, the breaking of a trust would not be something that the Roman heir would contem­plate lightly, particularly if others knew of its provisions.

Trusts acquired legal recognition, as we have seen, when Augustus followed his jurists' advice and carried out the trust requested of him in Lentulus's codicils. But trusts did not become legally enforceable overnight. What Augustus did was to cre­ate a machinery for their recognition on an ad hoc basis. The rule developed that a person could not take an inheritance (or a legacy) without performing any trust that may have been imposed on the gift. The consuls were given jurisdiction over the enforcement of trusts. Despite the uncertainty engendered by the discretionary nature of the jurisdiction, the popularity of trusts grew, necessitating the creation under Claudius of a new magistracy, the praetor fidekommissarius. His particular func­tion was to oversee the operation of trusts as between heirs and beneficiaries. It seems that the consuls retained their jurisdiction, at least in cases involving large sums or distinguished citizens. See Johnston, D., The Roman Law of Trusts (1988), 222.

Although the recognition of trusts under Augustus was, in jurisprudential terms, an imaginative and progressive development, it was also something of a surprise in that it contradicted other aspects of the Emperor's legal policy, e.g. regarding the ban on unmarried persons benefiting under a will—trusts were frequently used to evade such restrictions. There seems little to be gained in enacting such a ban if machinery is installed which makes circumvention possible.

8.9.2.2 Purpose of trusts

Why is it that trusts became popular? What could be done through them that was not possible through the normal channels of the law of inheritance? A great deal. We saw earlier how various categories of people could not take under wills (see 8.4.1.3), Trusts were employed to circumvent the strict ius civile rules on capacity to take, a development paralleled in medieval English law when the concept of the use, the forerunner of the modern trust, was employed to avoid (inter alia) the restrictions on disposing of realty by will.

Besides benefiting persons who normally could not take under a will, trusts had other uses, for example, a testator could attempt to free another's slave by subject­ing his own heir to a trust under which the slave was to be bought and freed. And it was possible to die intestate without undue worry by imposing a trust on the heirs on intestacy in favour of the deceased's preferred beneficiary. Trusts were par­ticularly important in the making of Roman family settlements since they could be created in favour of 'unascertained persons' such as future-born children, see Johnston, D., 'Prohibitions and Perpetuities: Family Settlements in Roman Law' (1985) 102 ZSS (rA), 220-90, for a discussion of this aspect in classical Roman law (latter part of the second and start of the third century AD)). Moreover, a trust could be made subject to another trust—this was known as fideicommissary substitution. The combined effect of these possibilities was that a testator could effectively pre­serve property in the family for generations by creating successive trusts. This was something of a departure in view of 'the great reluctance of Roman law to permit entailing... it is feudalism that fosters the entail, and Rome was fundamentally un-feudal' (Crook, Law and Life of Rome, 122).

The legal recognition of trusts in Augustus's reign inevitably led to their being closely regulated and restricted in scope.

Potentially the most important restriction was the banning, by Hadrian, of trusts in favour of 'unascertained persons'. Testators who wished to preserve property within the family were forced to find a way around this ban. The solution was for the testator to impose a trust on family members not to dispose of specified property outside the family. Such directions came to be regarded as binding. Moreover, the jurists were generally prepared to give a wide interpretation to restrictions placed by testators (by way of a trust) on the disposal of family property. For example, dying intestate could be regarded as a form of disposal of property on the evidence of the following text by Cervidius Scaevola:

Scaevola, Replies, book 3: A testator appointed his mother and wife as heirs and provided as follows: 'I ask you, my dearest wife, that you should not leave anything after your death to your brothers. You have sons of your sisters to whom you may leave property. You know that one of your brothers killed our son while robbing him; and another, too, has done me injury.' Question: Now that the wife has died intestate and her inheritance belongs to the brother as legitimus heres, can the sister's sons claim the fideicommissum from him? I replied that it could be argued that the fideicommissum is due. (D.31.1.88.16.)

Justinian returned at first to the pre-Hadrian position, allowing trusts to be made in favour of 'unascertained persons', but he later limited the efficacy of such trusts to a maximum of four generations.

8.9.2.3 Form

How were trusts created? With a minimum of formality—it seems that any cleat expression of intention sufficed, whether made orally or in writing, or possibly even by gesture in some cases. Johnston regards this as fundamental in the rise of the trust: 'The barest requirements had to be met to validate a trust: only a formless expression of intention was needed; and this was paralleled by remarkable proce­dural flexibility' (The Roman Law of Trusts (1988), 288). And he considers that such factors were more important than the use of the trust for circumventing the law: 'Its significant role was not to provide a surreptitious means of passing benefits to the disqualified,..its importance lay in its freedom, the potential it offered the Jurists to expand and develop an entire system from a few modest principles' (Johnston, The Roman Law of Trusts (1988), 288).

Probably the most common form of trust consisted of a suitable written direction by a testator in his will or codicil, beginning with words of request, whether express or implied:

Neratius, Rules, book 10: A fidelcommissum left in terms such as 'I require' [exigo], 'I desire that you qive'Jdesidero, utl des], is valid, and even if worded '1 wish my inheritance to be Titlus’j' [ra/o hereditatem mean? Titii erse], 'J know that you will remit my inheritance to Titius' [sc/o hereditatem meam restituturum te Titid]. (b.30.118.)

However, if the words left it to the discretion of the heir whether he passed the property to the beneficiary, the trust was not operative; similarly, where there was a commendation as opposed to a request:

Ulpian, FideicommisM, book 2: If anyone has written, ‘1 commend such a one to you,' [ilium tibi commendo] the deified Pius ruled in a rescript that a fidelcommissum is not due; for it is one thing to commend a person and another to intimate to one's heirs the intention of leaving a fidelcommissum. (D.32.11.2.)

Trusts could apply to the whole or part of an inheritance or legacy, or to specific items of the deceased's property; and they could be imposed on anyone who benefited under the deceased's estate—heirs, legatees, and beneficiaries under trusts.

8.9.24 Heir and beneficiary

The legal relationship between the heir and the beneficiary under the trust was of overriding importance in the operation of fideicommissa. A trust depended on there being an operative will, except in those cases where trusts were specifically imposed on the sui heredes on intestacy. If the heir refused the inheritance, any trusts that were imposed on him would fail. An heir would be unlikely to accept an inheritance that was subject to a trust extending over the whole or a large part of the estate, because, if he did so, he would be responsible for administering the will, and paying debts, and legacies, while his own benefit might be consumed by the trust. It became the normal practice, therefore, for the heir and the beneficiary under the trust to come to an arrangement under which the latter 'bought' the inheritance by a mock mancipatio. The parties entered mutual stipulations whereby the heir promised to transfer all assets to the beneficiary and to allow him to bring any appropriate actions, e.g. to recover debts owed to the inheritance; whereas the beneficiary undertook to defend actions against the estate and to indemnify the heir for payments reasonably made on its behalf. Where the trust comprised less than the whole inheritance, the mancipatio and mutual stipulations would still be made, but in proportion to the amount of the Inheritance that was subject to the trust.

Imagine yourself as an heir involved in such arrangements. Would you accept an inheritance if little or no benefit was to come your way? It is true that the mutual stipulations ensured that you would not suffer financially, but you could still be involved in considerable time and effort in carrying out your responsibilities under the agreed arrangements. And you remained the heir—the position could not be

sold through the mock mancipation. All things considered, you would be seriously tempted to wash your hands of the inheritance, assuming that you were an extra- neus. Further inducements were needed. They were provided by two important senatus consulta of the first century:

(a) S. C. Trebellianum AD 56 In effect, this enactment implied the mutual stipu­lations outlined earlier. The need to make specific stipulations was ended, thus considerably reducing the administrative involvement of the heir. Once he con­sented to the vesting of the inheritance in the beneficiary under the trust, the latter was in the position of an heir: any actions (for or against the estate) passed to him. If the creditors sued the true heir, he could defeat them by relying on the appropriate defence under the statute. The 5. C. Trebellianum applied also to trusts imposed on heirs on intestacy. And, as a general rule, it applied pro rata if the trust affected only a part of the inheritance.

Although this statute improved the heir’s position, the reform was procedural rather than substantive. The heir was not given any greater benefit—he might still receive nothing from the estate if the trust extended over the whole inheritance. In such cases the beneficiary would be tempted to offer the heir an inducement to persuade him to accept.

(b) S. C. Pegasianum c. AD 73 This enactment applied the lex Falcidia (see 8.6.3) to trusts by allowing the heir to take at least a quarter of the net estate, provided that he had accepted the inheritance voluntarily. If he had refused, it seems that he could be compelled to accept on an application by the beneficiary, in which case the position was as under the 5. C. Trebellianum—the heir was not entitled to a quarter.

8.9.2.5 Justinian's reforms

Justinian combined the advantages of the Trebellian and Pegasian reforms, con­solidating them under one statute, a redrafted 5. C. Trebellianum. The beneficiary under the trust was regarded as being in the position of an heir, so that the true heir could not be affected by litigation concerning the inheritance. If the trust did not apply to the whole inheritance, the position was regulated pro rata, i.e. actions passed to and against the beneficiary in proportion to his share. The heir could be compelled to accept, as before, and his right to a quarter was preserved, although Justinian decreed that the testator could direct that the quarter should not be taken. This innovation was similar to that applied by Justinian to lega­cies. Indeed, this development was part of his overall assimilation of legacies and trusts:

Ulpian, Edict, book 67: Legacies are held to be equal to fideicommissa in all respects. (D.30.1.)

It is unusual for a title in the Digest to begin with such a broad assertion of principle. The statement is attributed to Ulpian, but it is doubtful whether he made it—no substantial assimilation of legacies and trusts occurred in the classical period. But it certainly took place under Justinian, not least because of the fusion of remedies for the enforcement of legacies and trusts: for the first time a beneficiary under a trust was allowed a vindicatio to secure his interest. Previously, the only remedy had been an action in personam against the heir.

ONLINE RESOURCES

www.oup.com/uk/borkowski6e

Visit the free online resources for revision sheets to aid exam preparation, example essay questions, and to test your knowledge by trying this chapter's multiple­choice questions.

Take your study further with the additional resources including:

• An interactive timeline

• Biographies of key figures

• Glossary of Latin terms

• Annotated web links

• Aids to Locate Original Latin versions of the extracts from the Digest and the Institutes of Justinian

• Examples of textual analysis of Roman law texts

• Guidance to the literature and sources of Roman law

FURTHER READING

On the Roman law of succession, see comprehensively Watson, A. (1971), The Law of Succession in the Later Roman Republic, Oxford: Clarendon Press; Tellegen-Couperus, O. E. (1982) Testamentary Succession in the Constitutions of Diocletian, Zutphen: Terra Publishing Co., an interesting work in which the law on testamentary succession in the constitutions of Diocletian is compared to the position in classical Roman law; Crook, J. A., 'Women in Roman Succession', in. Family in Ancient Rome, New York: Cornell University Press, 58-82, an insightful article exploring the legal rules relating to the succession of women to property in classical Roman law compared with evidence of actual practice. On this point, see also Sailer, R. I¹., ‘Roman Heirship Strategies in Principle and in Practice', in (ed.) Sailer and Kertzer, The Family in Italy, The Encyclopaedia Britannica (1992), 26-47.

For an excellent survey of types of wills and their formalities, see now Nowak, Μ. (2015), Wills in the Roman Empire: a Documentary Approach, Warsaw: The University of Warsaw; as well as Babusiaux, U. Wege air Rechtsgeschichte: romisches Erbrecht, Cologne/Vienna: Bohlau, for a good survey of texts in the form of a casebook.