before he has performed it, the power of performing it, if it has been created by will, is not transmitted' either to his heir or to the heir of the person in in respect of whom it is to be performed. In such a case, the condition has not been performed, and the bequest which was subject to it has failed. In acts inter vivos a different rule prevailed, and the transmissible to his heir. (a)

spes conditionis is

When the condition on which a fidei-commissum is to take effect consists in something to be given to a third person, it may be tendered by the fidei-commissary to the fiduciary, in order that the latter may give it, and thus perform the condition; or if the fiduciary refuse to receive it, the fidei-commissary may himself tender it to such person, and then the fiduciary will be compelled by the judge to adiate, and make restitution of the inheritance. (b)

When the condition consists in something to be done, and the fiduciary refuses to do it, he may be compelled to do it, if it be not immoral, nor attended with difficulty, and do not subject him to expence.

When the condition admits of the act being done by another, the same rule is observed as in the case of a condition which consists in something to be given. But if it cannot be performed by another, and neither the testator, nor any third person, could have any interest in having it done, as a condition that the fiduciary should bear the name of the testator, the performance may be remitted by the judge. (c)

But if the act to be done cannot be performed by another, and is difficult, and of such a nature that the testator, or a third person, had a direct interest in its performance, and the fiduciary will not perform it,

(a) Perez. ad Cod. lib. 6, tit. 46, n. 15. Voet, lib. 28, tit. 7, n. 24, and lib. 44, tit. 7, n. 15. 1. ab omnibus, 104, § in testam. 1 Dig. de legat. 1. 1. A testatore 109, ff. de condition. et demonst. § sub conditione, 4, Inst. de verb. oblig. lib. 3. tit. 16. (b) Voet, lib. 36, tit. 1, n. 45. (c) Ib.

the judge cannot remit it, but the whole fidei-commissum must fail, in consequence of the non-performance of the condition. (a)

The effect of the preceding conditions is to suspend the interest or estate which is dependent on them until they are performed, or in certain cases to impose on the institute, legatee, or donee, the necessity of giving security for their performance, in order to enable him to derive any benefit from the disposition.

If it be intended that the institute, or donee, should derive an immediate benefit, the disposition is made sub modo, the institute receives it, and afterwards performs the act which is the subject of the modus.

Quòd si cui in hôc legatum sit ut ex eo aliquid faceret; veluti monumentum testatori, vel opus, aut epulum municipibus faceret, vel ex eo ut partem alii restitueret; sub modo legatum videtur." (b)

"Modus in hôc differt à conditione, quòd conditio, donec impleta sit, suspendit ultimam voluntatem cui adjecta est: modus autem non ita. Nam ante impletum modum, legatum non solum debetûr sed et exigi potest, oblatâ cautione de implendo modo." (c)

An institution or donation may be made upon the condition, or sub modo, that the whole or a part of the property shall, at a certain time, or at the death of the donee, revert to the donor, or be delivered to a third person.

The person who, on the non-performance of the condition, becomes entitled to the property, or who has an interest in its performance, has all the rights and remedies of a fidei-commissary. If the property is not given over in the event of the non-performance of the act, or if its failure does not involve the loss or forfeiture of the property, its performance is left to the moral

(a) Voet, lib. 36, tit. 1, n. 45.

(b) Dig. lib. 35, tit. 1, de cond. et demonst. 1. 17, § 4. Pothier, ad Pand. lib. 35, tit. 1, part 3, art. 1, n. CCXVI. (c) Pothier, ib.

feeling of the heir or donee, and he does not incur any legal liability by not performing it. (a)

When it is doubtful, from the expressions of the instrument, whether the institution or donation is sub conditione or sub modo, the presumption of the law is in favour of the latter, because it tends to render more perfect the institution or donation. (b)

It will have been seen that under the civil law and the law of Holland, there are scarcely any dispositions of property which even the caprice of its owner could suggest, which might not be effected by substitutions, fidei-commissa, and conditions. He might dispose of the property to one in perpetuity, but at the same time provide that in a certain event it should shift from that person to another, or revert to himself. He might create any number of limited and partial interests. To the first taker he might give an estate for years, and, on its determination, to another in perpetuity. He might select the line or class of descendants of the first taker, male or female, to whom it should descend after the estate of the latter had ceased. He might give interests to persons unborn, and impose on the donee or devisee various restrictions on the power of alienating the property. It is considered that there is scarcely any modification of the ownership, or any species of strict settlement of property, which its owner was not able to effect under these provisions of the civil law.

(a) Voet, lib. 35, tit. 1, n. 12, 13, 15, and lib. 34, tit. 6, n. 4. lib. 8, tit. 55. Zoes. lib. 35, tit. 1. sub modo. Hugo Grotius, lib. 2, Manud. Conject. ult. Volunt. lib. 10, tit. 5, n. 15, 16. tit. 6, def. 1. Van Leeuwen, lib. 3, c. 5, n. 35. (b) L. si ita scriptum, 67, ff. de hæred. instit. Volunt. lib. 10, tit. 5, n. 12.

Perez. Cod. Brunneman, ad 1. 1, C. de his quæ c. 23, n. 15. Mantica, de Sandes, Decis. Fris. lib. 4,

Mantica, de Conject. ult. Peregrin. de Fidei-commiss. art. 11, n. 114. Menoch. lib. 4, præs. 175, n. 15. Brunneman, ad lib. 1, C. de his quæ sub

modo. Voet, ib. n. 14.

SECTION II.

MODIFICATIONS OF, OR ESTATES AND INTERESTS IN REAL PROPERTY, UNDER THE LAW OF FRANCE.

I.-Fidei commissary substitutions under the coutume of Paris before the changes effected by the Ordinances d'Orleans, de Moulins, and of August 1747.-Principally governed by rules derived from the civil law.—Might be created by acts inter vivos as well as mortis causá.-Essential property of a fidei-commissum that it should import l'ordre successif.-Rules on this subject. By what terms constituted,-Different kinds of fidei-commissary substitutions ;-graduelle, reciproque, de la famille, lineale-masculine.-No limit to the number of generations to which a substitution might extend, until imposed by the Ordinance d'Orleans.-The construction of fidei-commissary substitutions.-The computation of proximity under the Ordinance of 1747.—Its rules relative to moveable property being the subject of fidei-commissary substitution.-When the fidei-commissary substitution fails. The relative rights, liabilities, and interests of the substituée and grevé. The fidei-commis conditionnel and modal.

II.-Alterations effected by the laws of the 25th of October and 14th of November, 1792.-By the Code Civil.-Fidei-commissary substitutions prohibited. Exceptions.-The substitutions permitted.

III.—The creation of majorats.-Rules respecting them. - Abrogation of them.

I. IN France, the modification of estates was effected by means similar to those which have been stated in the preceding section. In those provinces which were governed, not by the civil law (le droit écrit), but by their own coutumes, two species of substitutions only were admitted, la substitution vulgaire and la substitution fidei-commissaire. The person in whose favour the substitution was made, whether it was direct or fidei-commissary, was called substituée, the person who was burthened with the charge of delivering the subject of the fidei-commissum was called le grevé. Under the coutumes of Paris, and other parts of France, the sub

stitution of an heir, not only was unnecessary, but was prohibited. Hence, direct substitutions were only considered as subsidiary institutions, aud received no greater effect than institutions.

The attention of the jurists of France has therefore been principally bestowed on fidei-commissary substitutions, and it has been said that in speaking of substitutions, those only are intended which are fidei-commissary. (a)

Several important changes have been made in the jurisprudence of France relative to this species of substitutions. They were effected by the Ordinances d'Orleans, 1560, de Moulins, 1566, and especially by that of August, 1747; by the laws of the 25th of October and the 14th of November, 1792, by the Code Civil, and by those laws which authorize and regulate the creation of majorats.

The civil law furnished the principles on which the fidei-commissary substitutions of France were founded, and until the passing of the ordinances referred to, they were, with some few exceptions, governed by its rules.

They might comprise property moveable and immoveable. They might be created by donation, or other acts inter vivos, as well as by testamentary disposition. They were subject, in respect of the capacity of the persons by whom they were created, and by whom they could be received, to the same rules which governed the ordinary alienations of property. It was required, that the rules which the law had prescribed for the particular species of disposition by which the fidei-commissum was created, should be observed.

It was essential to the constitution of a fidei-commissum, that the terms by which it was created should import l'ordre successif, or le trait de temps, ordo successionis et non conjunctionis seu simultaneus, that is, the substi

(a) Argou, liv. 2, c. 14, p. 360.