1 If two heirs, say Titius and Seius, are instituted, and Titius's share of the inheritance is either wholly exhausted in legacies specifically charged thereon, or burdened beyond the limit fixed by the statute, while no legacies at all are charged on Seius, or at any rate legacies which exhaust it only to the extent of one half or less, the question arose whether, as Seius has at least a quarter of the whole inheritance, Titius was or was not entitled to retain anything out of the legacies which had been charged upon him: and it was settled that he could keep an entire fourth of his share of the inheritance; for the calculation of the lex Falcidia is to be applied separately to the share of each of several heirs in the inheritance.
2 The amount of the property upon which the calculation is brought to bear is its amount at the moment of the testator's decease. Thus, to illustrate by an example, a testator who is worth a hundred aurei at his decease gives the whole hundred away in legacies: here, if before the heir accepts, the inheritance is so much augmented through slaves who belong to it, or by births of children from such of them as are females, or by the young of cattle that, even after paying away a hundred aurei in legacies, the heir will still have a clear fourth of the inheritance, the legatee's position is in no way improved, but a quarter of the sum given in legacies may still be deducted for himself by the heir. Conversely, if only seventyfive aurei are given in legacies, and before acceptance the inheritance is so much diminished in value, say by fire, shipwreck, or death of slaves, that no more or even less than seventyfive aurei are left, the legatees can claim payment of their legacies in full. In this latter case, however, the heir is not prejudiced, for he is quite free to refused the inheritance: consequently, the legatees must come to terms with him, and content themselves with a portion of their legacies, lest they lose all through no one's taking under the will.
3 When the calculation of the lex Falcidia is made, the testator's debts and funeral expenses are first deducted, and the value of slaves whom he has manumitted in the will or directed to be manumitted is not reckoned as part of the inheritance; the residue is then divided so as to leave the heirs a clear fourth, the other three quarters being distributed among the legatees in proportion to the amount of the legacies given them respectively in the will. Thus, if we suppose four hundred aurei to have been given in legacies, and the value of the inheritance, out of which they are to be paid, to be exactly that sum, each legatee must have his legacy abated by onefourth; if three hundred and fifty have been given in legacies, each legacy will be diminished by one-eighth; if five hundred, first a fifth, then a fourth, must be deducted: for when the amount given in legacies actually exceeds the sum of the inheritance, there must be struck off first the excess, and then the share which the heir is entitled to retain.
TITLE XXIII. OF TRUST INHERITANCES
We now proceed to fiduciary bequests or trusts; and let us begin with trust inheritances.
1 Legacies or inheritances given by trust had originally no binding legal force, because no one could be compelled against his will to do what he was merely asked to do. As there were certain classes of persons to whom testators were unable to leave inheritances or legacies, when they wished to effect these objects they used to trust to the good faith of some one who had this kind of testamentary capacity, and whom they asked to give the inheritance, or the legacy, to the intended beneficiary; hence the name 'trusts,' because they were not enforced by legal obligation, but only by the transferor's sense of honesty. Subsequently the Emperor Augustus, either out of regard for various favourites of his own, or because the request was said to have been made in the name of the Emperor's safety, or moved thereto by individual and glaring cases of perfidy, commanded the consuls in certain cases to enforce the duty by their authority. And this being deemed equitable, and being approved by the people, there was gradually developed a new and permanent jurisdiction, and trusts became so popular that soon a special praetor was appointed to hear suits relating to them, who was called the trust praetor.
2 The first requisite is an heir directly instituted, in trust to transfer the inheritance to another, for the will is void without an instituted heir in the first instance. Accordingly, when a testator has written: 'Lucius Titius, be thou my heir,' he may add: 'I request you, Lucius Titius, as soon as you can accept my inheritance, to convey and transfer it to Gaius Seius'; or he can request him to transfer a part. So a trust may be either absolute or conditional, and to be performed either immediately or on a specified future day.
3 After the transfer of the inheritance the transferor continues heir, the transferee being sometimes regarded as quasi-heir, sometimes as quasi-legatee.
4 But during the reign of Nero, in the consulate of Trebellius Maximus and Annaeus Seneca, a senatusconsult was passed providing that, when an inheritance is transferred in pursuance of a trust, all the actions which the civil law allows to be brought by or against the heir shall be maintainable by and against the transferee: and after this enactment the praetor used to give indirect or fictitious actions to and against the transferee as quasiheir.