Fideicommissum (Trust)

558. 3. Legacy is called a disposition of last will by which a determinate thing is left to someone directly, for example, I bequeath to Titius my farm. Directly: for if something is left to be attributed to someone indirectly, that is, through the heir, it is called a fideicommissum.

a. A legacy must be made concerning a determinate thing, such as a house, farm, sum of money. b. The legatee, as soon as the heir has entered upon the inheritance, acquires ownership of the legacy; yet he cannot occupy it by his own authority, but must wait until it is handed over to him by the heir. c. A profane legacy, according to the opinion of some, follows the nature and conditions of the testament; if therefore the testament is void because of defect of some solemnity, the legacy also is void; but according to the opinion of others it is equated with a pious legacy. A pious legacy always obliges in conscience, provided the will of the legator is certainly known (556, 3).

4. Fideicommissum is a last will by which the heir is ordered to leave something to another, whether this is the whole inheritance or part of it or some particular thing, for example, I will that Gaius the heir give this farm of mine to Titius.

From this fideicommissum must be distinguished the fideicommissum of a family, or that disposition by which an inheritance is declared to be an inalienable good of the family, which must be transmitted within the same family, either to the firstborn of the older line, or to the nearer blood-relative, or to the older by birth. This fideicommissum cannot be constituted without the consent of the legislator and receives binding force in conscience through positive law.¹

¹ C.A. establishes laws concerning this fideicommissum in Sections 618-646; C.G., Einfuhrungsgesetz 59.

V. The form of a testament is established by civil law; consult it.

Whether and how far an informal testament has force in conscience is explained where discussion will be had concerning an informal contract, or a contract voided by law for another reason.

VI. Testamentary dispositions prohibited by law, interpretation, execution, and revocation of a testament should be consulted in the law of one's country. As regards prohibited dispositions, two things commonly must be guarded against: 1° lest the testament contain a fideicommissary substitution, as it is called; 2° lest the legitimate portion be injured. Now:

1. Substitution, taken generally, is a clause by which someone is called to an inheritance or legacy after another. It is distinguished as twofold, vulgar and fideicommissary. Vulgar substitution is that by which someone is called to an inheritance or legacy for the case in which another cannot or refuses to accept it;¹ fideicommissary substitution is when the burden is imposed on the heir or legatee of preserving the inheritance or legacy and afterward handing it over, either whole or in part, to another. Now fideicommissary substitution is commonly voided by civil law.

2. The legitimate portion is that part of goods which must be left to necessary heirs, so that it cannot be disposed of either by donation inter vivos or by testament. Who are necessary heirs, and how great the legitimate portion is, see in the law of one's country; as regards its obligation, consult approved interpretation.

¹ For example: I constitute Peter heir; if Peter refuses, let Paul be heir.

What are testament, codicil, legacy, fideicommissum? Testament, which according to the etymology of the name is the same as a testification of the mind, according to the thing signified is: A lawful declaration of the will concerning what someone wishes to be done after death concerning his things, with the direct institution of an heir. So according to Roman Law. - A lawful declaration of the will, i.e., a legitimate disposition of the will, and one congruent with law. Therefore a testament properly is not a contract, but an act approaching donation. Concerning what someone wishes to be done after death; for a testament is not only made on account of death, but also first acquires its force through the death of the testator, according to that saying of the Apostle to the Hebrews 9:16, 17: Where there is a testament, the death of the testator must intervene. For a testament is confirmed among the dead; otherwise it is not yet valid while he who has testified lives. The faculty of making a testament is from the law of nature itself; otherwise there would no longer be any care for preserving and increasing goods acquired by one's own labor or received from another, and for rendering them stably fruitful.

Gal. 4:7; Gen. 25:5; Job 42:15. Cf. n. 1042. - With the institution of an heir; for by this a testament differs from other last wills, namely from a codicil, legacy, and fideicommissum, in which no heir is per se and directly instituted. - Inst. 1. 2. t. 10; L. 919. A codicil, or little codex, is the supreme will of the deceased, less solemn, outside a testament, concerning what someone wishes to be done after his death, without the direct institution or nomination of an heir to whom the inheritance is immediately owed, so that, apart from the institution of an heir, the testator may be able to dispose of his goods in other ways, e.g., by committing legacies to the heir, or fideicommissa, etc. C. A. 553. But a codicillary clause is a clause inserted into a testament, by which it is declared that if the testament is not valid because of some defect, nevertheless it ought to be valid by force of the codicil. For a codicil five witnesses sufficed, even not summoned, and even women. - L. 919 ff.; Inst. 1. 2. t. 25. A legacy is a certain donation left by the deceased in a testament, and to be furnished by the heir. L. Legatum 36 de Legatis etc. Dig. A donation of a certain kind, for properly it is not a donation, since it is not transacted immediately between the giver and the acceptor. To be furnished by the heir; for a legacy is a certain particular law spoken to the heir, and therefore it is called a legacy: which is from lego, whence lex is derived. To be furnished by the heir, namely after the death of the testator. Left by the deceased to the legatee, to whom therefore the ownership of the thing passes immediately from the testator, although its possession is first with the heir, and the thing must be handed over by the testamentary heir. Inst. 1. 2. t. 20; C. A. 535; C. B. 1939. Fideicommissum is so called because the testator commits his supreme will to the faith of the first instituted heir, so that he afterward gives back the inheritance, either whole or in part, to another. Hence a fideicommissum is a mediate substitution of an heir; mediate, namely, of another after the first. At least two grades of succession must be instituted in order to have it, but the institution can also be of a second and further heir. C. I. 899; C. G. 896; C. A. 608, 609; C. B. 2100. But immediate substitution is had when someone names an heir in such a way that, if he cannot or will not enter upon the inheritance, another is heir in place of the first, who is instituted immediately by the testator himself, and not, by mediation of the prior one, from whom he receives the inheritance, as in mediate substitution. Mediate, indirect substitution is called fideicommissary substitution. Immediate and direct substitution is called vulgar substitution. C. I. 895; C. G. 898; C. A. 604; C. B. 2096, 2097; C. L. 1858 ff., 1866 ff. A fideicommissary institution is distinguished from a fiduciary institution insofar as in the former the restitution of the inheritance is committed to the faith of the heir openly, or in the testament itself; in the latter, secretly, or privately. Inst. 1. 2, tt. 15, 16, 23, 24. According to C. I. 759, "a testament is a revocable act, by which someone, according to the rules established by law, disposes, for the time when he will have ceased to live, of all his substances, or part of them, in favor of one or more persons." Almost the same according to C. G. 895; C. H. 667, 668, 764; C. L. 1739, 1794, 1839. - Hence the institution of an heir is not necessary, and the distinction between testament and codicil has been removed. It is otherwise, however, according to C. A. 552, 553; C. B. 1937, 1939. Properly, an heir is one who is instituted in succession to the whole patrimony, or to a quota part of it; not if only some particular object is left to him, C. B. 2087. Likewise mediate, or fideicommissary, substitution has been taken away, C. I. 899, 900; C. G. 896; with a certain determined case excepted according to C. G.

Whether substitutions and fideicommissa oblige in conscience?

Immediate substitutions, also called vulgar substitutions, by which another heir or legatee is substituted for an heir or legatee, if the first does not enter upon the inheritance or legacy, are valid according to C. G. 898; C. H. 774 ff.; C. A. 604; C. B. 2096 ff. The same is held according to C. I. 895, if the first heir or legatee does not wish or cannot accept the inheritance or legacy. According to C. I. 896, one substituted to him who was unwilling to be heir is understood to be substituted to him who could not be, and conversely; unless the contrary will of the testator is established. It is otherwise according to C. A. 605. Hence, as regards substitutions of this kind, there can be no difficulty from positive laws for the forum of conscience. Thus substituted persons are bound to fulfill the burdens which were imposed on those into whose place they are substituted, unless they are presumed to have been imposed only on those first called. C. I. 897. According to C. A. 608 ff., 618 ff., fideicommissa remain entire, and accordingly both vulgar substitution and fideicommissary substitution are admitted.

According to C. H. 781 ff., fideicommissary substitutions, by which the heir is burdened to preserve the whole or part of the inheritance and transmit it to another, will be valid and will obtain effect always, provided they do not progress beyond the second degree, or are at least in favor of a person living at the time of the death of the testator. But they can never burden the legitime; they must be express, and in no way fiduciary. Their nullity, however, does not harm the institution of the first heir. According to C. L. 1866 ff., a fideicommissum is approved only for descendants in the second degree, or for the children of the testator's brothers. Likewise, the nullity of a fideicommissary substitution does not bring about the nullity of the institution or legacy.

According to both C. H. 785 and C. L. 1741, secret testamentary dispositions of giving goods back to another heir will have no effect. According to C. He. 488 ff., the disposer can oblige the instituted heir to transmit the inheritance to another substituted heir. Transmission, unless there is a contrary disposition, is made at the death of the instituted heir, who acquires the inheritance like any other heir, but with the obligation of transmission; however, this obligation cannot be imposed on the substituted heir. And the same holds for legacies. According to art. 531, fideicommissary substitution is null in relation to the legitimate heir if it injures the legitime. According to C. B. 2100, 2108, 2109, 2113 ff., fideicommissary substitution is admitted without limit. Nevertheless, a substitution regularly has no effect if, after thirty years have elapsed from the devolved inheritance, the fact which ought to initiate the substitution does not take place. The heir has only restricted ownership of the inheritance, namely so that he may preserve and give it back to the substitute; he is almost its usufructuary, unless the testator has rather restricted the right of the substitute. According to the same C. B. 2190, 2191, both vulgar and fideicommissary substitution are admitted also as regards legacies. According to C. G. 896, 897, 1048-1050, fideicommissa, or mediate substitutions of an heir, are prohibited, also called fideicommissary substitutions, by which namely the heir or legatee is ordered to preserve and give back to another; they will be null even with respect to the donee, legatee, and heir. Hence not only the burden of giving back, but even the donation itself, the legacy, and the inheritance are subjected to nullity. Exceptions are those dispositions by which parents leave their goods, or a part of them, to one or more of their children, with the burden that they give back those goods to their descendants, nevertheless in the first degree according to art. 1048, and also in the second degree according to the law of May 17, 1826, whether born or to be born. But this law of 1826, which permitted more, was abrogated May 7, 1849. The same faculty is given to a brother of leaving goods, of which he can dispose, to one or more brothers, with the burden of giving the same back to their children born or to be born, likewise only in the first degree. According to C. I. 899, 900, any disposition by which the burden of preserving and restoring to another is imposed on an heir or legatee is a fideicommissary substitution, which is prohibited by law. Its nullity brings no prejudice to the validity of the institution of the heir or of the legacy; but the substitution, even in the first degree, lacks effect: namely legal effect; not every effect, even in the forum of conscience; since it is simply prohibited by law, whence it is indeed null, but not by full right, or by the very fact. But according to C. I. 832, 902, 932, it is permitted to leave an inheritance or annual prestations, on account of a pious cause or a cause of public utility, for feeding the poor, educating boys, dowering girls, etc., any heir being instituted, e.g., his own future firstborn, or another's. Likewise C. H. 788; C. L. 1872 permit imposing on an inheritance even a perpetual burden of paying a pension annually in favor of some pious cause. Likewise according to C. I. 901, ownership can be left to one person and usufruct to others; but by no means successively to several, but only to those first called after the death of the testator. So also C. L. 1570. Moreover it must first be noted that there is no substitution prohibited by law if there is no command and burden of preserving and giving back. A simple request, and without an imposed burden, does not constitute a prohibited substitution. Moreover the burden of preserving is necessary. Hence a burden only of giving back does not again constitute a prohibited substitution. For then the instituted heir is in reality not an heir, but merely an executor of the testament. Nor is there a substitution, nor a fideicommissary or fiduciary substitution, but only a certain simple trust in a person, a simple fideicommissum made to him, if what is left to him must be restored to another, either immediately or after some time. Of preserving, namely absolutely; not if he has prohibited alienation by donation, outside the family, etc. In addition, a burden of giving back to a third person is required, namely of giving back after the death of the instituted heir. Hence neither is a burden of giving back from a day, e.g., to Caius after he has reached puberty, ascended to sacred orders, etc., after ten years, etc., a prohibited substitution, but a certain legacy under a condition, or to a term, which is approved by the law itself. C. G. 1040, 1041, 1186; C. I. 854, 856, 857, 1173, 1174. For it is not what the law intends to prohibit, namely that someone by his testament should wish to determine future successions twice or several times, or even indefinitely. Cf. C. I. 901. And hence it is clear that substitution is not properly a conditioned disposition, but a disposition under a mode. Hence the named heir is instituted truly and absolutely as heir, and ownership is transferred to him, with the obligation of fulfilling the imposed burden; if this is not fulfilled, ownership is not lost, but he can always be compelled to fulfill it. Gousset on a. 896; Rogron on the same article. According to C. I. 829, it is permitted to entrust the name of the true heir or legatee to a fiduciary heir, provided that person is not incapable. But it will be grave for the fiduciary heir to betray the trust. Inst. 1. 2. tt. 23, 24; C. B. 2103 ff. It must also be noted that, generally, it is established that the inheritance or legacy is adjudged to him who is named in the testament. Nor is proof admitted that the person called in the testament is merely apparent, under whose name another person is designated, notwithstanding any expression of the testament. But this is not applied to the case in which the institution or legacy is impugned as made through an interposed person to one incapable. C. I. 829. From what has been said it appears that the preceding law is at least not unjust, and accordingly there is no reason why every obligating force should be taken away from it, per se and commonly speaking; although, as is clear from the very tenor of the law, a testamentary disposition made against such a law cannot be regarded as void by the law itself. Hence, if someone directly instituted as heir by a fideicommissary substitution possesses the inheritance, he will be able to retain it in conscience, and will be able to invoke the rescission of the substitution. Likewise if a substituted heir has already obtained the inheritance by the aforesaid fideicommissary disposition, he will be able to retain it in conscience until he is compelled by the judge to restore it. But if someone is instituted heir by fiduciary substitution, from a prior promise made to the testator, or a pact, of transmitting the inheritance immediately or after a certain time to a third person or to a pious cause, he certainly will not be able to retain it in conscience. For he is altogether bound to execute the trust he gave, if it is legitimate. Otherwise he must renounce the inheritance, so that it may come to the intestate heirs. L. 351, 952; E. M.

We shall speak: 1. on incapacity for giving or receiving; 2. on certain modes of giving prohibited by law; 3. on the limitation of the faculty of giving through legal reservation.

499. Prohibited modes of donating are interposition, substitution, and an illicit condition.

I. Interposition (schijnoverdracht, tusschenerfstelling) is that prohibited interposition by which a donation is made to a capable person, with the obligation of handing over the thing to a person who is legally incapable of receiving, so that the donation is made in fraud of the law.

Interposition must generally be proved by him who impugns the validity of the donation, by showing that at least a tacit pact had been entered into, by which the donee obligated himself to hand over the thing to the incapable person, or that the donor ordered this: for it is not enough that he manifested a mere desire, because a desire does not induce an obligation. Yet the law sometimes presumes interposition in certain persons: thus the father and mother, descendants, and spouse of an incapable person are presumed to be interposed (a. 911); which presumption is of law and from law, so that proof to the contrary is not admitted.

II. Substitution (onderschuiving, ondererfstelling) is a disposition by which the donor designates a double person: one who is to receive the gifts or legacies immediately, another who is to receive them in default of the former or after him. Now substitution is twofold:

1. Improperly so called, direct, or vulgar substitution (gewone, rechtstreeksche, aangeduide) designates the person who will obtain the gift or legacy if the donee or legatee does not wish or is not able to obtain it; for example, I give a house to Peter, but in his default to Paul. This is nothing but a conditioned donation, which is valid (a. 898).

2. Substitution properly so called, indirect, or fideicommissary (vertrouwde), hands over the dominion of a thing (not the usufruct) to another, with the burden of preserving the donated thing for a certain time or until death, and afterward of transmitting it gratuitously to a third party; hence the other is called the burdened party or fiduciary, but the third is called the fideicommissary or the one called. This, in present-day law, out of hostility to mortmain, or also to the stability of goods among nobles, is wont to be prohibited as harmful to the equality of citizens, to the free transfer of goods, and to agriculture, and indeed generally in such a way that not only the substitution, but the donation itself, is annulled; and therefore the fiduciary can neither retain the donated goods for himself nor hand them over to another. This law does not seem certainly unjust. Thus in French and Belgian law (a. 896 and 899), and Dutch law (a. 926). - By Italian (a. 899-900) and Lusitanian law (a. 1869), the principal disposition remains, but the substitution is annulled.

Yet a twofold substitution is permitted by civil law, even French law, lest prodigals dissipate goods bequeathed to them: a) father and mother can give goods of which they have free disposition to one or several of their children with the burden of rendering them to all children born or to be born from them, without any distinction, and in the first degree only; b) those who have no descendants can leave goods of which they can freely dispose to brothers or sisters with the burden of rendering them to all children born or to be born from them, and in the first degree only (a. 1048-1051).

III. An impossible or illicit condition annexed to a donation or testament, although it is illicitly added, nevertheless does not invalidate it unless, by a predominant will, the donor wishes the donation to depend on the condition. Whence it generally does not render the act invalid; but (unlike an onerous contract) the condition is held as not written, so that the donee is not bound to fulfill it (a. 900). Nevertheless the donation would be invalid if the illicit condition were the true and sole cause of the contract, because then consent would be bound to such a condition and would truly depend upon it (a. 1131 and 1172).

Thus French and Belgian law. By Italian law, those conditions in a testament or legacy are held as not written (a. 849), but they invalidate a donation (a. 1065); by Swiss law, illicit conditions invalidate a legacy, the others are held as not written (a. 482); by Austrian law, a legacy under a suspensive impossible or illicit condition is null, but if it is a resolutory condition, it is held as not written (a. 698); by German law, an impossible mode invalidates a legacy only when it is clear that the liberality would not have existed without such a burden (a. 2195).

500. On the force of prohibitions of civil law, the same thing must be said as we said about the force of informal testaments (n. 493). - When there is question of pious causes, Canon Law has force, in which substitution is not prohibited; for example, Peter bequeaths his house to John under the condition that John leave it after death to the parish church.

What therefore if, at the petition of the heir, that donation is annulled by a civil judge and the house is handed over to the heir? R.: The heir will not be bound to leave the house to John, because under this respect there is question of a profane cause; but he must take care that the parish church receive that which was established by the testament of Peter, because under this respect it is a pious cause. Therefore the heir can, while John is living, retain the house, provided that he takes care that after his own death the house be handed over to the pious cause, or, if this is impossible or dangerous, that an equivalent thing be handed over.