key to the study guide - Name

98
In respect of the discussion on assets subject to a fideicommissum or usufruct
on page 72 in the textbook, we feel you may find it useful to have a bit of
background on what a fideicommissum and a usufruct are.
Inthecaseofafideicommissum, the testator leaves property to a person (the
fiduciary), subject to the duty of handing it over in full ownership to
another person (the fideicommissary) atacertaintimeoruponthefulfilment
of a certain condition. This can be explained by means of the following
example: X bequeaths a farm to his son, Y, on condition that after Y's
death the farm should go to his grandson, Z. While the fideicommissum
exists, the farm does not form part of any joint estate in which Y or Z may
share. Once it is certain that the farm cannot go to Z (because he has died),
it falls into Y's common estate. Also, if Y dies and the farm goes to Z, it
falls into the joint estate if Z is married in community of property.
A usufruct can be defined as a personal servitude that gives the
usufructuary a limited real right to use the property of another as well
as its fruits, with the duty eventually to return the property to the owner
with the preservation of the substance thereof. This, for example, means
that if X bequeaths a farm to Y, subject to usufruct by Z, that farm does not
become part of Y's joint estate and neither do Z's rights fall into his or her
common estate.
Later, in the modules Law of Succession and Law of Property you will learn
more about the fideicommissum and usufruct.
ACTIVITY
(A) Mr Botha dies after a four-month illness. In his will he bequeathes his
car to his son, S, S being subject to the duty of handing it over in full
ownership to his grandson, G, the moment G attains majority.
(B) Mr Manamela's will reads as follows: ``I leave my house to my
daughter, D, subject to the condition that my wife, W, may stay on in
the house until she dies.''
Read the above-mentioned sets of facts carefully and then answer the
following questions:
(1) Which set of facts creates a fideicommissum?
(2) Who is the fiduciarius in the set of facts which creates a fideicommissum?
(3) Who is the fideicommissarius in the set of facts which creates a
fideicommissum?
(4) Who is the usufructuary in the set of facts which creates a usufruct?
(5) Who is the owner of the car in (A)?
(6) Who is the owner of the house in (B)?