Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
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9. TRUSTS
The trust, which has been described as the most original creation of English law, is an institution by which something is entrusted to one person, the trustee, for the benefit of another, the cestui que trust or beneficiary. Thereupon the legal ownership vests in the trustee, who is however bound by an obligation to use the thing for the benefit of the beneficiary, who has in it an equitable interest, of which he cannot be divested unless the legal ownership comes to vest in a purchaser for value without notice, actual or constructive, of the trust. Any person who acquires the legal ownership in circumstances other than these, becomes a constructive trustee. In the trust for sale, any person who acquires the legal ownership from the trustee in accordance with the terms of the trust acquires it free from the equitable interest, which is transferred to the proceeds of the sale. Most trusts of land are now in effect trusts for sale.
It is evident that what appears to the English lawyer the simple act of constituting a trust at one and the same time vests the legal ownership of a thing or of a fund in the trustee, imposes on him an obligation, not towards the settlor, but to the beneficiary, who is a third party to the agreement and may not yet be in existence, and confers on the last-named person a right to follow the trust property into the hands of anyone other than a bona fide purchaser for value without notice. It also constitutes the trust fund a separate entity, which the law keeps separate in a remarkable degree from the residue of the trustee's property. Where the trust is a trust for sale, it is only against the assets of this fund, whatever form they happen to assume for the time being, that the beneficiary has rights, and not against the specific objects which it contained at the time the trust was created.
From a third point of view, the constitution of a trust
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effects a division of ownership in the thing or fund, between the powers of management, including in certain cases alienation, vested in the trustee, and the rights of enjoyment vested in the beneficiary.
It has long been recognised that the trust is not derived from Roman law, nor has Roman law influenced its development to any extent. Nor does it now look to us at all like a Roman institution. However, the older writers, who took its Roman origin very much for granted, were not perhaps quite so absurd as they have recently appeared to be.
Certainly the notion of making someone the owner of a thing, and binding him by an obligation to use it in a certain way, is not un-Roman. Thefideicommissumwas obviously such an institution, though normally the heir did not hold the inheritance or specific thing subject to afideicommissumfor any length of time as a mere trustee, being bound in one typical case to hand it over as soon as possible, and in the other, thefideicommissarysubstitution, enjoying the beneficial interest until he passed on the inheritance to a successor.
It is however a clear though little known fact that an heir might have had zfiducia imposed on him to preserve an inheritance intact and accumulate the income for the benefit of someone who should later take the beneficial interest.1 This is not quite our trust, for although the heir is a mere manager, his powers of management precede the ultimate vesting of the beneficial interest, and do not coexist with the rights of enjoyment contained in the latter; but it is not very far removed.
Nor is it very hard to find in Roman law something akin to the beneficiary's power of following trust funds. The beneficiary is a creditor of the trustee, and if the latter alienated in fraud of him, the beneficiary could bring the
1Lepaulle, Bulletin de la SocUti de Legislation Comparie, 1929, p. 14;
D. 22. 1. 3. 3; 36. 1. 78. 12.
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actio Pauliana against either him or anyone into whose hands the property had come, unless he was a bona fide purchaser.
The notion of a separate fund, kept apart from the trustee's personal assets, is very far from being un-Roman, for Roman law invented one of the classical examples of the separate fund, the peculium entrusted to the filius or slave. Moreover, the Praetor, in the actions devised by him to protect creditors of the peculium^ applied a complicated system of accounting between the peculium and the other peculia or personal estate belonging to the paterfamilias. Doubtless it was on the analogy of the peculium that he allowed separatio bonorum to the heres necessarius, and to the creditors of a solvent inheritance which had devolved on an insolvent heir.
The distinction between the legal and the equitable estate must be regarded as inconceivable in classical law, though, as has been said elsewhere,1 something very like it developed in later law. But too much can be made of the need for this distinction as an element in the law of trusts. It is not found in the law of Scotland, Quebec or Ceylon, all of which know the trust; and it could easily be dispensed with in English law, were it not for the doctrine of estates, which is not essentially connected with the trust.
Is it possible to point to the combination of conveyance and contract in a single instrument as un-Roman? We should not insist too strongly, even for classical law, on the use of a single institution to produce a single result; for many rights and duties were implied in the consensual contracts which had not been thought of by the parties. It does, however, seem clear that the classical jurists disliked the incorporation of a conveyance in an instrument which was primarily intended to create obligations, though they had to accept the composite nature of the will.
1 Supra, p. 82.
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But the older |
lawyers, who had elaborated the will and |
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determined its |
essential character, seem |
to have had no |
such repugnance, for they made liability to the actio auctoritatis, a matter of pure obligation, arise out of the mere fact of mancipating a thing.
One is almost forced to the conclusion that the main difficulty in the way of a Roman acceptance of the trust would have been that it may vest rights in a third person not a party to an agreement. But even this argument is not free from objection. It applies with full force only to the law of obligations; for thefideicommissumis an obvious exception, and it too was preceded by the civil law institution of the legacy per damnationem. In ancient Rome both were confined to the law of succession, though in Byzantine law, if not earlier, thefideicommissumhad an analogue inter vivos in the donatio sub modo. Here again there is. a certain resemblance to English law, for in so far as we assign topics to different branches of law we tend to think of trusts as belonging to the law of property and succession rather than to the law of contract.
In sum, it seems that there was nothing in the essential nature of Roman law to prevent it from admitting the trust had there been any practical need for the institution: though it must be conceded that it would have squared ill with the pedantry of the classical jurists.
10. SUCCESSION ON INTESTACY
In succession upon intestacy, the Roman law had not that
distinction between real and personal |
property which, |
till the Administration of Estates Act, |
1925, came into |
force, was so important in our law. Thus there was in the law of Rome nothing of the extraordinary complication which characterised our law of inheritance, nothing about seisin, nothing about descent traced from the purchaser, possessio fratriSy and so forth, which made Mr Challis say, at the end of his chapter on * Descent of a fee simple', that
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the labour of constructing it was the most arduous part of the work. There was no trace, at least in historical times, whatever may have been the case at the beginning, of any primogeniture. On the other hand the rules of canon law as to the distribution of personal property were a modified version of the rules of succession as Justinian left them, and they were themselves adopted, in a further modified form, by the Statutes of Distribution.1 They have now been supplemented by the very different provisions of the Administration of Estates Act, 1925, which governs the devolution on intestacy of all property, real and personal. It seems therefore that there cannot be much material for comparison or contrast. But, in fact, Justinian's final rules have nothing Roman about them: they show a complete breakaway from Roman notions. It is not necessary to set out the earlier rules, which have a long history of perpetual change, but some remarks may be made on the more striking contrasts, which are mainly due to the fact that the Roman conception of the family is very different from ours.
Our present law and the older law of personal property have no preference for males, but the law of inheritance of land had, partly for feudal reasons,2 a marked preference for males. The Roman law had such a preference, though not expressed in the same way, and inspired by a different reason. Under the rules attributed to the XII Tables relationship was reckoned entirely through males, and in fact through males who, when the claimant was conceived, had not passed out of the family circle by emancipation or the like. But, with this limitation, where claimants were of the same degree, the male had no preference over the female. Thus a man's son and daughter, or his brother and sister, were equally entitled. A half-brother by the same father had the same claim as if he were a full brother, but one by the same mother had no claim at all. A mother had
1 1670 and 1685. |
2 P. and M. ii. pp. 258 sqq. |
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no claim in a child's estate, nor had her children any claim in her estate. The Praetor in his more or less rationalising changes broke down the rule requiring that claimants should still be within the family group, at least so far as issue were concerned, imposing certain necessary safeguards, but he did very little toward breaking down the rule that claimants must be related to the deceased through males. He did indeed create a class of claimants called cognati which included relatives through males and females, with an arbitrary limit of remoteness, more liberal however than that under the Administration of Estates Act, 1925. In this way mothers could succeed to their children and vice versa, but only in the complete absence of persons entitled under the civil law. In the course of the Empire, this was remedied. Children were given the first right of succession to their mothers, and mothers were given a much improved right, under complex rules which we need not discuss. Later still, similar but not quite identical rights were given to grandchildren of, or through, a woman. Not long before Justinian the notion of agnation, the civil relationship, was relaxed and the breach of it partially ignored. The Corpus Juris carried this piecemeal rationalising legislation still further and paved the way for the completely remodelled and modern-looking system which appears in the Novels.1
The contrast between the position of women, in the law of succession, under our law and under the Roman law, before Justinian's revolutionary changes, may perhaps be summed up as follows. Our law, as to real property but only as to real property, differentiated against women, a rule which took its rise before our law was feudalised but whose continuance was encouraged by it.z The Roman law of succession did not distinguish land from other property, and, so far as issue were concerned, there was no direct
1See Buckland, Text-book, pp. 365 sqq.
2P. and M. ii. pp. 258 sqq.
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preference for males; both sexes, within the family, took equally. If they passed out of the family by emancipation they had no rights at civil law, but the Praetor gave them equal rights. If they passed into another family by adoption or, in the case of women, by marriage with manus^ already rare in early classical law, again the praetorian rights of men and women were the same: they were cognati with only a remote claim. But civil relationship was agnatic, i.e. traced exclusively through males, so that remoter issue, male or female, through daughters or granddaughters, were not in the family, but only cognati. Agnates were those connected by legitimate descent through males, or, to put the matter in another form, those who would be in the same patria potestas if the common ancestor were alive. They were preferred, however remote, to other collaterals. Thus while women could succeed as agnates, they could not be the channels of agnatic succession. A brother or sister of the whole blood, or by the same father, had equal rights as agnates: uterine brothers and sisters were equally excluded. Early in the classical law, however, there appeared, apparently as a result of juristic interpretation one very important differentiation against women. No woman more remotely related than a sister could succeed as an agnate, and this exclusion continued till Justinian.
The system finally established by Justinian1 was based on nearness of kinship, and, like our present system, had no preference for males. But there are substantial differences, and the provisions of the Novels are in some respects obscure and have been understood in different ways by the later legislatures and legal systems building upon them. As with us, issue had the first claim (the position of the surviving spouse will be considered later), the nearer excluding the more remote, and remoter issue claiming per stirpem, but, in Roman law, without any provision making the absolute right of issue dependent on
1 Now. 118, 127.
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marriage or majority. With us, parents are preferred to brothers and sisters: after brothers and sisters (subject to representation by their issue, shortly to be stated) come grandparents and, after them, uncles and aunts. Under the system of the Novels all ascendants formed one class, sharing with brothers and sisters of the whole blood, apparently, though this is not absolutely clear, each of the groups taking half. Among ascendants, the nearer excluded the more remote in the same'or a different line. And where there were several in different lines of the same degree of remoteness, each line took half irrespective of number, while with us they take equally. As with us, brothers and sisters of the whole blood were preferred to those of the half-blood, and, as with us, issue of deceased brothers or sisters of either group represented them taking per stirpes, but, again, in Roman law, without any question of marriage or majority, and with the curious limitation that this representation did not occur unless there survived the intestate some other brother or sister to keep the class alive. Failing any claim under these heads the property went to the nearest relatives, per capita and with no representation, so that there was not, as in our law, any representation of uncles by their issue. In this class the Novel said nothing of any limit of remoteness, but it is probable, though disputed, that the old limit of cognation to the sixth, or in one case, the seventh, degree still held.
11. THE SURVIVING SPOUSE
The most remarkable difference between the two systems is as to the position of the surviving spouse. In England, as Blackstone said {Commentaries^ Book i. ch. 15), 'the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover she performs every thing'. It is not surprising
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to find, amongst other results of this doctrine, that her personal property in possession vested normally in him (there was no such rule the other way), and it is only gradually that our law has reached the present position in which the woman's property is separate and independent. It was thus necessary that the surviving widow should be provided for, and our earlier law, dealing indeed with personal property, gave her very considerable claims both in priority to, and in competition with, her children, and in relation to land gave her a similar right by the law of dower, though this could be defeated by conveyancing devices. The recent legislation does not distinguish in the matter between real and personal property, or between husband and wife, but gives the surviving spouse (i) all 'personal chattels', (ii) the sum of £5000, or £20,000 if no issue, and (iii) a life interest in one-half of the residue, or an absolute interest in one-half if no issue, or the whole residue if no issue, no parent and no brother or sister of the whole blood (nor descendant thereof).1
Where a Roman wife became in manu to her husband the situation was not greatly different from that at common law. The wife was in the familia and succeeded as a daughter, and she could have, as ^filiafamilias^ no property to leave. But in classical law this is practically obsolete and is utterly gone centuries before Justinian. In the civil law, as they are not related and their properties are entirely independent, neither husband nor wife has any claim on intestacy, or to a provision in the will of the other spouse. Though the Praetor modified this, it was only to a very small extent: he gave them a right of succession only if there were no relatives entitled to claim, i.e. only where the goods would otherwise be bona vacantia and would go to the public treasury. In the Novels nothing is said of the wife or husband, but it is clear from other evidence2 that
1 Administration of Estates Act, 1925, ss. 46-9; Intestates Estates Act, 1952, s. 1. 2 Basilica, 45. 5, Heimbach, 4. 543.
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the old rule continued and they took the property in absence of any relatives who could claim. There is indeed one amelioration. By two Novels Justinian provided1 that, where there was no dos, the widow, and where there was no donatio propter nuptias, the widower, should have in any case a quarter of the estate, or, if there were more than three children, a pars virilis, but, as it seems, only for life and only up to a maximum of ioo aurei, so that the provision is not very important. All this reflects the fundamental difference in the relation of the wife to the husband's family which we have already noted.2 She is not essentially
a member of the family and must look to her own family for provision. The contrast is striking between the rules described above and our old law of dower, of the widow's half or third of the personal property (as the case might be) and of the widower's tenancy by the curtesy and his retention of practically all his wife's personal property. The dos was no corrective for the state of things in classical and later law; for though it commonly, but not always, went to the wife on her husband's death, it was not, like our dower, a provision from the husband's property. It came normally from the wife's family and was handed over to the husband. At first there was no right in the widow, but when this appeared it was still no provision by the husband, but from outside, a fact which is brought out by the rule that where a woman claimed in succession to her father she had to bring into hotchpot what she had received by way of dos from him. Similarly the husband had only the remote
claim we have mentioned, and the donatio ante, or propter, nuptias of later law, which normally went to him at the death of the wife, had been provided by him or on his behalf in the beginning. On the other hand, the donatio was a provision for the wife in case she survived her husband.
1 Now. 53. 6; 117. 5. |
2 P. 41, ante. |
BRCL