SECTION I.

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

Effected by substitutions direct and fidei-commissary, and by the conditions and limitations annexed to the institution and substitution of heirs. -Admitted in dispositions inter vivos as well as mortis causá. I.-Substitution direct.-Its nature.-How created.-Construction of.When it takes effect. When it can no longer take effect.-Substitutio pupillaris, quasi pupillaris, or exemplaris.-In what respect distinguished from the substitutio vulgaris. II.—Fidei-commissary substitution defined. The power conferred on the person in whose favour a fidei-commissum was made, to compel its performance.-Different kinds of fidei-commissa.—What might be the subject of the fidei-commissum.-How created.—Substitution of classes or families.-Extent to which estates might be rendered unalienable.-When the fidei-commissum fails, or becomes incapable of taking effect.-The persons who may create, who may be charged with a fidei-commissum, and in whose favour it may be created.-The relative rights, liabilities, and interests of the fiduciary, and fidei-commissary.—The deduction of the Trebellian portion.—The delivery of the property to the fidei-commissary.— Fidei-commissa by dispositions inter vivos.

III.-Conditions and limitations which may be annexed to institutions, substitutions, and donations.-Fidei-commissa sub modo and conditione.— Those most frequently adopted. Their construction and effect, performance, destruction, or discharge.

In the earlier period of Roman jurisprudence, any other disposition of the succession to property, than that which the law made, could be effected only by testament. The owner could not institute his heir by act inter vivos. Contracts respecting the future succession of a person who was alive were reprobated as contra bonos mores.

But the heirs whom the law could call to the succession were permitted to contract with each other respecting the partition of the inheritance, provided the an

cestor gave his consent, and did not retract it before his death. Contracts, relative to the future succession of the husband and wife, and of their issue, might also be entered into on their marriage.

The substitution of an heir, either directly or by fideicommissum, was also originally a testamentary act, and could take place only by testament, codicil, or donatio mortis causâ.

But, at a subsequent period, the civil law admitted substitutions, not only in marriage contracts, but in donations, and in that class of innominate contracts by which the owner disposed of his property in favour of another, on condition that the latter paid him a certain annuity, or at the expiration of a certain time delivered the property to another. (a)

By the law of Holland the alienation of property by substitution, or fidei-commissum, might be made by act inter vivos, as well as in contracts on marriage, and dispositions mortis causá. (b)

The Digest treats of the institutions of substitution of heirs, and of fidei-commissum, with reference to, and as taking place by virtue of a testamentary act. But the principle by which it regulates the substitution direct, and by fidei-commissum, when created by testament, codicil, or donatio mortis causâ, are equally applicable, when they originate in an act inter vivos.

(a) Cod. lib. 8, tit. 55. De don. quæ sub modo. Perez, ad hunc tit. F. Marzar. de Fidei Comm. p. 2, § 11. Vinn. Tr. de Pactis, c. 15.

(b) Stockman's Decis. 44, n. 3. Peregr. de Fidei, art. 51, n. 1, 2. Grat. Discept. for. 247, n. 1. Gail. lib. 2, obs. 126, n. 8, 9. Sande, lib. 4, tit. 5, def. 19. A. Matth. Auct. de Divort. n. 51. Placit. Ord. Holl. 30 Julii, 1624, art. 1, vol. 1, Placit. Holl. p. 375. Resp. Jur. Holl. part 2, consil. 73, and part 3, vol. 2, cons. 111, n. 4, 5, and cons. 338, n. 26, et seq. Les Arrêts de Louet, lit. S. art. 6, des Substit. Kinschot, respons. 75. Groeneweg. ad 1. 3, C. de Condict. Ob. Causam Datorum. Van Leeuwen, Cens. For. par. 1, lib. 4, c. 12, n. 18. Zoes. ad t. Pand. de Don. n. 62, 63. Neostadt, Cur. Holl. Decis. 22. Voet, lib. 36, tit. 1, n. 9. Pothier, tit. Substitutions. Merlin, tit. Institution Contractuelle.

1. OF SUBSTITUTIONS DIRECT.

Substitution, in its most extensive sense, is the putting either an heir, or fidei-commissarius, or legatee, in the place of another, to whom the disposition of the property has been first made. "Quælibet subordinatio et suffectio cujuscunque, sive heredis, sive fideicommissarii, sive legatarii, in locum alterius." (a) It is, therefore, direct, or fidei-commissary.

The direct substitution is that which expresses the direct authoritative designation by the testator or donor of the person who is to take. "Quæ fit verbis directis,

et civilibus, ut Titius heres esto, si Titius heres non erit, Caius heres esto.” (b)

The direct substitution was the vulgaris, or the common. It was called primus casus. That which was not vulgaris substitutio was called secundus casus, and was the pupillary (pupillaris), and the quasi pupillaris, or exemplaris.

The direct common substitution is, when any testator provides against the possibility of the heir whom he has instituted, not accepting, or not being capable of accepting the succession, by substituting another person in his place. "Quæ fit à quolibet testatore, cuilibet heredi, in casum primum, quo primus, sive institutus, heres non erit." (c)

This substitution, therefore, is in effect the institution of a second heir, or of any number of heirs to take successively in the place, or in default of the previously instituted or substituted heir.

There may be one person instituted as heir, and the substitution may be of one or several, to take jointly, or

(a) Cod. lib. 6, tit. 37, de Legat. Dig. lib. 31, tit. 2, 1. 64, 1. 77, § pen. Voet, lib. 28, tit. 6, n. 3. C. Van Eck, de Vulg. et Pupill. lib. 28, tit. 6, n. 1. (b) Van Eck, ib. Voet, ib.

(e) Dig. lib. 28, tit. 6, 1. 2, § 4, 5, 6. Van Eck, lib. 28, tit. 6, §9, tom. 1.

as substitutes to each other successively. There may be several instituted as heirs, and each may be substituted to the other, or one person may be substituted to all, or the substitution may be of several, to take jointly, or each as the substitute of any of the instituted heirs. (a)

Each successive substitute is the substitute to him who is first instituted. There must always be a preceding institution of an heir in whose place the substitute is to succeed, except when the father makes a pupillary substitution, for in that case the father's succession not having devolved on his son, such a substitution is the institution of a first, and not of a second heir.

It is an established principle, that when from the language in which the substitution is made, it is doubtful whether a direct or fidei-commissary substitution is intended, the presumption is, that the former, rather than the latter, was intended, because that construction is to be made, which imposes on the heir the least burthen. (b)

The contingency, si hæres non erit, has happened, and the substitution takes effect, and the substituted heir becomes entitled, when the heir instituted has died in the life-time of the testator, or has renounced the inheritance, or is incapable of taking by succession. If, however, the instituted heir had survived the testator, but died before he had adiated the inheritance, and the right of adiation had descended on his heirs, the substitution would not take effect until they also had renounced the inheritance. (c)

The substitution may be made to depend not only on the contingency, si hæres non erit, but on any other condition which the law will permit to be annexed to

(a) Voet, lib. 28, tit. 6, n. 10. Perez, ad Cod. lib. 6, tit. 26.

(b) Mantica de Conject. ult. volunt, lib. 5, tit. 1, n. 3, et seq. Leeuwen, Cens. For. part 1, lib. 3, c. 6, n. 2. Voet, ib. n. 3, 15.

(c) Voet, lib. 28, tit. 6, n. 4. Perez, ad Cod. lib. 6, tit. 26, n. 2.

the institution of an heir, "Si Titius hæres non erit, Mævius heres esto, si navis ex Asiâ venerit." (a)

If several persons are instituted heirs, it becomes a question whether failing one, his share will belong to his co-heirs, jure accrescendi, or whether it will be taken by the substitute. If there are several persons instituted heirs, and they are severally substituted to each of the instituted heirs separately, as, "let A, B, and C, be my heirs, and failing A, let D be heir; and failing B, let E be heir; and failing C, let F be heir." When such is the manner in which the substitution is expressed, there can be no doubt that neither of the co-heirs will be entitled to the share of the other, unless the substituted heir should be unable, or unwilling, to take the inheritance. (b)|

Generally the presumption is, that the testator intends that the substitute, and not the instituted co-heirs, shall take the lapsed share, unless he has expressed a contrary intention. (c)

But when the substitution, from the manner in which it is expressed, is to take effect on the failure not of one, but of all the previously instituted co-heirs, or when such may be inferred to have been the testator's intention, from the relationship in which the co-heir stood to him, they, and not the substitute, will take the lapsed shares. (d)

age

If a father, having two sons who had not attained the of puberty, makes a pupillary substitution of two persons jointly upon the contingency, "Si uterque impubes decesserit," the substitutes have no right to the succession until both the institutes have died impuberes. (e)

(a) Voet, lib. 28, tit. 6, n. 3. Dig. lib. 28, tit. 6, qui liberis, 8, 1. ult. § 1. Dig. lib. 29, tit. 2, 1. 3, 1. 69, de acquir. vel omitt. her. lib. 28, tit. 5, 1. 37, cum in testamento de hered. inst. lib. 28, tit. 3, 1. 4, de injust. rupt. irrit. fact. testam.

(b) Voet, lib. 28, tit. 6, n. 6. Perez, ad Cod. lib. 6, tit. 26, n. 4. (c) Voet, ib.

(d) Voet, ib.

(e) Perez, ad Cod. lib. 6, tit. 26, n. 26. Van Eck, lib. 28, tit. 6, n. 36.