expressly desired should not be alienated from his family, otherwise it might have now to be sold. In 535 he had directed the Falcidian not to be used, if testator had expressly so willed.
Differences in the form of legacies led to many legal discussions which Justinian settled by treating all the forms as having the same effect, and giving the legatee both a direct claim to the thing bequeathed and also a personal claim on the heir to transfer it. Trusts (Fideicommissa[1]) were another subject of complication. In or before the time of Augustus attempts were made by testators to leave their estates, or a legacy, to persons legally disqualified to take them (e.g. foreigners, Latins, unmarried persons, women in some cases). In a trust the heir was not directed to transfer the estate or legacies but simply requested to do so. There was no legal compulsion, the heir could fulfil the testator's desire or not as he chose; if the property was transferred, it was as the act of the living heir and not therefore hampered by restrictions which affected gifts from the dead. Augustus, after much hesitation, treated such a desire as obligatory on the heir. Gradually such appeals to the honour and good faith of the heir became frequent and obtained full recognition and use. Advantage was eagerly taken of this untechnical language to get round many of the limitations of ordinary testamentary law; and if only an heir was duly appointed and entered on the inheritance, almost any dispositions, direct or contingent, present or future, might be made of the estate or part of it through him as a channel. Thus testator might secure the transfer of his estate or of a legacy in certain events from the person first made heir or legatee to another person. Or he might prevent his estate from being alienated from his family by requesting the successive holders to pass it on at their deaths to other members. And trusts might be imposed not on only named persons, but on the heir or heirs by intestacy, in case the will should not have regular validity. The Courts strove to give effect to the intentions of a testator however mildly or informally expressed, and to protect the trust against the heir. But the old difficulties then recurred: the heir might as easily be overburdened with trusts as with legacies, and if he did not think it worth while to enter on the inheritance, the will failed and the trust with it. It was thus found necessary (c. A.D. 70) to ensure
- ↑ The difference between an English trust and a Roman fideicommissum is rather in the practical object and working than in the conception. In both one person holds property under an obligation to give another the benefit of it, and ceases to hold it on the obligation being completely fulfilled. But a trustee has usually, as Morice points out, a continuous duty lasting some time according to the needs of the cestui que trust. A fiduciary usually has no duty other than the transference of the property to the fidei-commissary on the occurrence of a condition. Both can claim to be put to no expense, but a trustee does not benefit as a rule even (at any rate since the Intestates' Estate Act 1884) if the purpose cannot be executed. A fiduciary retains the property in such a case for his own account. A fiduciary heir could in any case claim under the Falcidian Law.
