1Ad Dig. 30,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 623, Note 9.Ulpianus, On the Edict, Book LXVII. Legacies are equal in every respect to trusts.

2The Same, Trusts, Book I. It must be remembered that only those can bequeath property in trust who have testamentary capacity.

3The Same, On Sabinus, Book IV. The following words of a testator: “Whoever of the parties above mentioned shall be my heir,” or, “If Seius should be my heir,” or, “If he should enter upon my estate,” any trust subsequently bequeathed will not, for this reason, be conditional.

4The Same, On Sabinus, Book V. Where a testator is mistaken with reference to the name of a tract of land, and mentions the Cornelian, instead of the Sempronian Estate, the Sempronian Estate will be due. If, however, he should be mistaken with reference to the land itself, it will not be due. For if anyone, intending to bequeath a garment, bequeaths household goods, thinking that clothing is included in the term “household goods,” Pomponius states that clothing will not be due; just as if anyone should think that electrun or brass was included in the term gold; or, which is even more absurd, if he thought that silver was included in the word clothing; for the names of things are unchangeable, those of men, however, are subject to alteration. 1Where anyone appoints an heir and makes a bequest as follows: “Whoever shall be the heir to my property in Gaul shall be charged with the payment of So-and-So,” the legacy is considered to be due from all the heirs, as the property involved belongs to all of them.

5Paulus, On Sabinus, Book I. Where a slave is left to be selected by the legatee, we can make a choice but once. 1Labeo says that when a certain article or slave is bequeathed as follows: “Who will be mine when I die shall be given by my heir,” and the article or slave is held in common, the whole of it will be due. Cassius states that Trebatius gave it as his opinion that only the share owned by the testator is due; which is correct. 2Where a tract of land owned in common is devised, without mentioning the share belonging to the testator, but where he merely says “mine”, it is established that only his share will be due.

6Julianus, Digest, Book XXXIII. “Let my heir give Stichus, who will be mine when I die.” It is evident that the testator rather intended to impose a condition, than merely to point out the slave; for the reason that if this clause was inserted merely for the purpose of designating the slave, it would have been framed as follows: “Stichus who is mine,” and not, “Who will be mine”. A condition of this kind should, however, be understood to mean only “if he shall be mine,” in order that, if he should alienate him altogether, the legacy will be extinguished; but if he should alienate him partially, only that share of the slave will be due which belonged to the testator at the time of his death.

7Paulus, On Sabinus, Book II. A master can reject a legacy bequeathed to his slave.

8Pomponius, On Sabinus, Book II. If a testator, after having bequeathed a tract of land, should dispose of a part of the same, it is held that only the remaining portion is due to the party to whom it was left; because even if an addition was made to said land the legatee would profit by the increase. 1Ad Dig. 30,8,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 297, Note 4.If the following provision should be inserted in a will: “Let Lucius Titius, my heir, or Mævius, my heir, pay ten aurei to Seius,” Seius can bring suit against whichever of the heirs he may select, and if he brings an action against one of them, and payment is made by him, the other will be released; just as where two debtors have promised to pay, both will be liable for the entire amount. But what if the legatee should only demand half of the amount from one of the heirs? He would be free to demand the remainder from the other. The same rule will apply where one of the parties has paid his share. 2Where a legacy was bequeathed as follows: “I bequeath eight litter-bearers, or a certain sum of money instead of each one, of them, whichever the legatee may desire,” the legatee cannot claim a part of his legacy in slaves and the other part in money, because the legacy is left as an alternative; just as if fifty pounds weight of oil, or a certain sum instead of each pound, is bequeathed, for otherwise, a division might be allowed where only a single slave was bequeathed. Nor does it make any difference whether the sum is divided, or whether the entire amount is paid at once. And, in fact, where eight slaves have been bequeathed, or a certain sum of money instead of all of them, the heir cannot, against his will, be compelled to be liable for a portion of the bequest in money, and a portion in slaves.

9The Same, On Sabinus, Book III. Octavenus states that property in the hands of the enemy can be bequeathed, and the bequest will stand, under the law of postliminium.

10Paulus, On Sabinus, Book II. Julianus holds that a choice cannot be made by a son under paternal control, without the consent of his father; nor before he has accepted the estate.

11Ad Dig. 30,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 9.Papinianus, Questions, Book IX. Where a legacy has been bequeathed to a son under paternal control, or a slave belonging to another, or an estate is left to him; it must be left in trust to the father or master, and only under these circumstances will the trust have any force or effect, unless it is left to those through whom the benefit of the estate or the bequest will accrue to the said father or master. Again, Julianus, induced by a very good reason, gives it as his opinion that a father, whose son has been appointed an heir, must surrender the estate even to a stranger, after having deducted the portion granted by the Falcidian Law; since he is responsible as the representative of his son, for the reason that the latter cannot be held liable in his own right, and the father cannot be liable as heir, but is considered to have been charged with the trust in the capacity of a parent. Therefore, if the father was charged to deliver to his son, after his death, what came into his hands through a legacy or an estate bequeathed to his son, and the latter should die during the lifetime of his father, the father can retain this beyond all doubt, as the trust acquires its force from the person of the father.

12Pomponius, On Sabinus, Book III. If the same property should be bequeathed to me and to yourself, and on the day when the legacy was due, I should become your heir, Labeo says that I can acquire the property either for the reason that it was left to me, or because I am your heir. Proculus says, that if I should wish to whole of it to belong to me on account of the legacy which was bequeathed to me, I must demand it on the ground of being heir to the legacy. 1Where anyone charges his heir to deliver to me, within three days after his death, certain slaves whom he had at Gades, by a will which he made at Rome just before he died, the legacy will be valid; and the shortness of the time provided will in no way prejudice the legatee. 2A rule of the Civil Law provides that, “We can bequeath a legacy to slaves belonging to those to whom we can also make a bequest.” 3In the matter of legacies, the last instruments drawn up are valid; because, where previously executed, they can be changed either with reference to the day or the condition, or they can be entirely annulled. Where a legacy left under one condition is taken away by another, the last provision, by which it is taken away, must be considered. Sometimes, however, not the last, but the former disposition of the property is valid, for if I should say: “What I have left herein to Titius I neither give nor bequeath to him,” what has been left to him by the will will not be valid; for it is held that the same clause by which legacies granted at a certain time are to be deferred has reference also to the provisions subsequently made. Therefore the desire of the testator establishes the validity of what he inserted in his will.

13The Same, On Sabinus, Book IV. Where a slave, insufficiently described, was left to you, and the heir delivered Stichus to your slave, Neratius was of the opinion that if the delivery was made with the consent of the master, or he ratified the act, the heir will be released, just as if Stichus himself had been bequeathed.

14Ulpianus, On Sabinus, Book XV. Where it was inserted in a will that, “If I should make a bequest twice to a certain individual, my heir shall only pay him one legacy;” or “One legacy only shall be due;” and he bequeaths to the said party two separate sums of money, or two separate tracts of land, will both of them be due? Aristo says that it appears but one legacy will be due, for whatever is taken away is not held to have been given, according to the opinion of Celsus and Marcellus; which is correct. 1Papinianus, however, says, in the Nineteenth Book of Questions, that if a testator, after having left several legacies to the same person, asserts that he expects only one of them to be paid, and does this before completing his will, the other legacies should be considered as annulled by operation of law. Which one, however, should be considered to have been taken away, for this is not apparent? And he says it can be held that the smallest one should be paid.

15Paulus, On Sabinus, Book III. Where a person intended to bequeath the fourth part of his property, he wrote the half. Proculus very properly said that the fourth could have been maintained to have been bequeathed, for the reason that it is contained in the half. The same rule will apply if the testator intended to bequeath fifty aurei, and wrote a hundred, for fifty will be due. Where, however, he intended to bequeath more, and wrote less, the bequest will be valid. 1Where anyone bequeaths a sum of money to his daughters, having in mind a posthumous daughter, and she should not be born, the entire sum will be due to the survivor.

16Pomponius, On Sabinus, Book V. Where the same property is bequeathed to two persons conjointly, and one of them is not in existence, I think that it is true that only a half is due to the survivor. 1Where an heir is charged with the payment of a legacy together with another who is not his co-heir, he who was appointed owes the entire legacy; for if the testator expressly charged two heirs with the payment, and one of them does not enter upon the estate, the other who did would owe the whole amount, if the share of him who refused the estate should come into the hands of the heir who accepted it. 2Where a legacy is left to Titius and the posthumous child of the testator, and no posthumous child is born; Titius can claim the entire amount. If, however, the testator intended to bequeath equal shares to Titius and his own posthumous children, or even if he had expressed himself to this effect, the entire legacy will be due to Titius, if no posthumous child should be born.

17Ulpianus, On Sabinus, Book XV. Where a person made a bequest to his daughters and mentioned a posthumous daughter in some part of his will, he is held to have had the posthumous daughter in his mind at the time he made the bequest. 1Where anyone makes a bequest as follows: “If a daughter should be born to me, let my heir give her a hundred aurei,” and several daughters should be born, it is held that each one of them is entitled to the same bequest, which must be understood in this way, unless it is clear that the intention of the testator was otherwise. 2Where the bequest is made to one of several heirs, it is evident that the judge must award it as due in an action brought for partition; and it is established that even if the party should reject the estate, he will be entitled to recover a legacy of this kind.

18Julianus, Digest, Book XXXVII. He can, indeed, claim the entire legacy, even though he would have been himself improperly charged if he had not refused the estate.

19Ulpianus, On Sabinus, Book XV. Papinianus holds in the Book of Questions that where legacies have been left in such a way as to be of no effect, they can be confirmed by repetition; that is to say, by the following clause subsequently inserted in a codicil: “Let my heir pay him this, in addition;” and where something different is afterwards stated: “Let my heir be charged with the payment of the money which I have bequeathed, on the days which I have fixed, and not at the end of one, two, and three years;” for the testator did not do this for the purpose of confirming the bequests which were void, but merely to prolong the time of payment for those which were valid. 1The same authority states in the same place, with reference to a substitute appointed for a child under the age of puberty, that if the said child should be improperly charged with the payment of a legacy, his substitute must pay it, if anything more has been left in his charge, and the heir should die without becoming the successor of his father. 2Where property is bequeathed to several persons, and the shares are not designated, all will inherit equally.

20Pomponius, On Sabinus, Book V. Where a testator has two slaves, and bequeaths one of them in such a way that it cannot be ascertained which one he bequeathed, the legatee can make his choice.

21Ulpianus, On Sabinus, Book XV. If a flock of sheep was left, any increase which subsequently takes place will belong to the legatee.

22Ad Dig. 30,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Pomponius, On Sabinus, Book V. Where a drove of cattle was bequeathed, and some of them die during the life of the testator, and others are substituted in their stead, the drove is held to be the same. If the drove should be diminished to such an extent that only a single ox survives, it can be claimed, even though the drove, as such, has ceased to exist; just as in the case where a house which has been devised is burned, the land on which it stood can be claimed.

23Paulus, On Sabinus, Book III. Where a person bequeaths a part of his property, as is the custom at present, it can be surrendered without the crops, unless the heir is in default.

24Pomponius, On Sabinus, Book V. It is established that what is not yet in existence can be bequeathed, for example: “Any child that the female slave, So-and-So, may bring forth;” or where a bequest is made as follows: “Let any wine which Way be produced on my land, or any increase of the flocks, be given by my heir.” 1If I have only an usufruct, and bequeath it, the bequest will be Void, unless I should afterwards acquire the ownership of the property. 2Where anyone, after having made a will by which the Titian Estate was bequeathed, adds thereto another tract of land, which he intends to include with the same estate, the addition can be demanded by the legatee. The same rule prevails in the case of alluvium, especially if, when the testator executed his will, he made the addition from another field which belonged to him. 3It should be considered what the rule would be if, after having made a will, he took something from the Titian Estate, and added it to land belonging to another; would the legatee be entitled to claim the part which was deducted, just as if it had ceased to form part of the Titian Estate, since it is by our intention, and not by the nature of the property, that the disposition of a tract of land or a house is determined. The better opinion is that what is joined to another tract of land should be held to have been deducted. 4If I should bequeath a ship, and state expressly that it was mine, and that I have entirely rebuilt it and only the original keel remains, it can, nevertheless, be properly claimed by the legatee.

25Paulus, On Sabinus, Book III. A son who has been appointed an heir can be absolutely charged with a legacy for the benefit of his father, nor does it make any difference whether or not he was under the control of his father at the time that the legacy vested. Therefore, if he accepts the estate by the order of his father, the legacy will be included in the Falcidian share to which he is legally entitled.

26Pomponius, On Sabinus, Book V. No more of a legacy is considered to belong to anyone than what remains after a deduction has been made of property given in order to comply with a condition. 1Where an heir is directed to give a certain article by way of legacy, and does not do so, because he was not obliged to deliver it to the legatee in the place where it was; and it should afterwards be destroyed without the fraud or negligence of the heir, the loss must be borne by the legatee. 2Ad Dig. 30,26,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 666, Note 1.Where, however, a part of his estate is bequeathed, it is doubtful whether a portion of the property itself, or the estimated value of the same should be given. Sabinus and Cassius think that the value should be paid; Proculus and Nerva hold that a part of the property bequeathed should be delivered. It is necessary, however, to come to the relief of the heir, so that he himself may determine whether he prefers to give a portion of the property itself, or to pay its estimated value. But in matters of this kind, the heir will be obliged to give a portion of the property which can be divided without any loss, but if it is naturally incapable of division, or if the division cannot be effected without loss, the estimated value of the property must, by all means, be paid by the heir.

27Ad Dig. 30,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 666, Note 1.Paulus, On Plautius, Book IX. Moreover, the heir can give to the legatee the share which has been left him by delivering to him a certain part of the property, or one article alone, the value of which the legatee shall agree to accept, or the judge shall determine; in order that the legatee may not be forced to demand a share of all the property.

28Ulpianus, On Sabinus, Book XIX. If I bequeath to my creditor what I owe him, I being protected against the debt by an exception, the legacy will be valid; for the reason that a release of the exception is held to have been made. This corresponds to what Aristo says, namely, that if my debtor bequeaths to me what is due from him to me in a prætorian action, the legacy will be valid; for the reason that a civil action is granted me instead of an honorary one. 1Marcellus holds, in the Twenty-eighth Book, that if you should bequeath to me what you owe me under a stipulation, the legacy will be valid, and the bequest will not be diminished on account of the Falcidian Law.

29Ulpianus, On the Lex Julia et Papia, Book VI. If, however, the claim is not rendered more advantageous to the creditor, either by modification, time, condition, or place, the bequest is void.

30Ulpianus, On Sabinus, Book XIX. A provision as follows: “Let my heir pay the money which I have bequeathed, and for the payment of which I have not set a time, at the end of one, two, and three years,” this will not refer to all articles which may be bequeathed, but only to such as can be weighed, counted, or measured. 1And it only applies to those legacies for which time of payment has not been fixed; hence if the legacy was absolutely bequeathed, its time of payment will be prolonged by this addition. 2What if a hundred aurei in cash should be bequeathed to me, shall payment be made on stated days, or all at once? Servius and Labeo say that the legacy is due at once, in cash. Therefore, although this addition may be superfluous, so far as the force and effect of the legacy is concerned, still, it will apply in such a way as to make the legacy due immediately. 3But if the legacy should be left payable by the year or by the month, this provision will not apply, because this legacy has a beginning and an end. 4Where, however, a legacy is bequeathed under a condition, it can be said that the payment of the same at intervals will not be applicable, because the condition is considered uncertain. 5In accordance with this, Trebatius thinks that if a bequest is made to a person to be paid when he is twenty years of age, the provision above-mentioned, as commonly interpreted, does not apply. 6Again, this provision is not applicable where money is left which is in the testator’s chest, or wine which is in his warehouse; because we have stated that it is not operative where any certain kind of property is bequeathed. 7Gallus Aquilius, Ofilius, and Trebatius have given it as their opinion that this rule not only applies to legacies previously made, but also to all those mentioned in the will, which is true.

31Paulus, On Sabinus, Book III. This provision has reference also to all legacies which are afterwards confirmed by codicils.

32Ulpianus, On Sabinus, Book XX. Where anyone bequeaths money to be paid by his minor son, who is appointed his heir, “When he arrives at puberty,” and he also charges the heir whom he substitutes with the payment of the same, and the son dies before reaching puberty, the substituted heir will not owe the legacy. Sextus and Pomponius, however, do not think that this is correct, where the repetition of the legacy has been stated as follows, for instance: “Let my heir pay upon the same day the legacy with which I have charged my son, and which I have ordered him to pay if he shall become my heir.” If, however, the repetition was made as follows, “Let my heir pay the legacies, with the payment of which I have charged my son;” the legacies appear to have been repeated unconditionally, and the designation of them has only been made by the testator. Therefore, this very legacy with reference to which inquiry is made will be due me. 1Where anyone has several slaves named Stichus, and bequeaths Stichus, and it is not evident which Stichus he meant, the heir must deliver the slave chosen by the legatee. 2If anything should be left to a portion of the people of a town, which is for the ornament or benefit of the entire community, it undoubtedly will be due.

33Paulus, Rules, Book III. Where the same property is left to several persons, or it is left to all conjointly; and one brings suit to recover it, and another brings an action for the same purpose under the will, he who founds his action on the will cannot recover any more than his share of the legacy. If it should be left to each person separately, and it is perfectly evident that the testator intended, by depriving the first legatee of the bequest, to confer it upon the second; it is established that the last legatee will be entitled to all of it. If, however, this does not plainly appear, all the legatees will be entitled to equal shares of the bequest; unless, indeed, the testator himself manifestly indicated by his language that he intended one of them to receive the entire property, for then the value of the article should be given to one of them, and the article itself to the other. And he who first joined issue with reference to the legacy, or the trust, shall have the right to choose which he will prefer, the property itself, or the value of the same; still, after having chosen one he will not be permitted to abandon it, and select the other.

34Ulpianus, On Sabinus, Book XXI. It is evident that where the testator intended to transfer the legacy to another party, it will not be due to the first one named, even if the last mentioned is not capable of receiving it. If, however, the legatees were joint, or, being originally several, have afterwards been united, all of them together are classed as one and the same person. 1Where the same property is bequeathed several times by the game will, it cannot be claimed more than once; and it is sufficient if the property itself, or the value of the same, is acquired. 2Where the same property is bequeathed to me by the wills of two persons, I can demand it twice, and obtain the property by virtue of one of the wills, and the estimated value of the same by virtue of the other. 3Where no certain article is bequeathed, but a specified sum is mentioned several times in the same will, the Divine Pius stated in a Rescript that the heir must pay the said sum several times, if it is established by perfectly conclusive evidence that the testator intended to multiply the legacy. The same rule has also been laid down by him with reference to a trust. The reason of this is evident, for as the identical thing cannot be delivered more than once, the same sum can be multiplied, if this should be the intention of the testator. 4This, however, ought only to be understood to be applicable where a certain amount of money should be left several times by the testator; as, for instance, a hundred aurei, which he has in his chest; for then I believe that it should be compared to the bequest of a tract of land. 5Where, however, a certain weight of gold or of silver has been left, Papinianus is of the opinion that it should rather be compared to the bequest of a sum of money, as no certain kind of property appears to have been bequeathed. 6Hence, if anything else which can be weighed, counted or measured has been left several times, it must be said that the same rule will apply; that is to say, it will be due several times, if such was the intention of the testator. 7If, however, I should purchase the property bequeathed to me, an action under the will will lie in my favor for the amount of the price which I have paid. 8And, with much more reason can this be said, where the same property is bequeathed to me by the wills of two different persons, but where one asked me to surrender the property itself to another, or something else in its stead; or where it was bequeathed under the condition of giving something in place of it; for I am considered to have been deprived of the property to the amount which I am compelled to Pay in order to obtain it. 9Where the property is bequeathed to several persons conjointly, it is settled that it is divided into shares from the beginning. The legatees have not only the right to a division in proportion to the number of persons to whom the legacy was left, but also those who are not entitled to it; as, for instance, where a bequest was made to Titius and to his slave, without granting the latter his freedom. 10Where a testator, by a will made while his son is under the age of puberty, bequeaths the same property to another which he had already left to me by will, Julianus says that the parties do not take the property concurrently. Therefore, in the meantime, he to whom the property has been bequeathed by the will of the father will be entitled to his share. 11Ad Dig. 30,34,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Where the same property is bequeathed to two persons, one of whom is appointed heir, if the latter is charged with the payment of part of the legacy to himself, it will be held to be, to this extent, invalid; and therefore, the share with which he was charged in his own favor will belong to his co-legatees. 12Ad Dig. 30,34,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Hence, it must be said that where there are two heirs, one of whom is appointed for one-twelfth, and the other for eleven-twelfths of the estate, and a tract of land is bequeathed to them; one of the heirs will be entitled to eleven-twelfths of the land, and his co-heir to one-twelfth of the same. 13It is clear that if one of the legatees becomes the heir of the party charged with the payment of the legacy, this will render his coheir none the less entitled to half of it, for he will retain his share of the legacy in the same proportion. 14If a bequest is made to Titius in the following terms: “Let him have the Seian Estate, or the usufruct of the same for himself,” there are two legacies, and it is at the option of the legatee whether or not he will only claim the usufruct. 15Where anyone makes a bequest as follows: “I do give and bequeath to Titius a certain tract of land, which he can have for his share,” it seems to me that it can be said that he will be entitled to half of it; for it is held that by the mention of the land he did not refer to the entire tract, but to a part of the same, for a part is also properly designated a tract.

35Paulus, On Sabinus, Book III. Where an heir is charged with the delivery of a slave belonging to another, and the slave is manumitted by his master, nothing is due on account of the legacy.

36Pomponius, On Sabinus, Book VI. “I bequeath to Titia all my slaves who are weavers, except those whom I have bequeathed to another by this will. I bequeath to Plotia all my slaves, born in my house, except those whom I have bequeathed to another.” As certain slaves born in his house were also weavers, Labeo says that since it cannot be ascertained which slaves who were weavers the testator did not bequeath to Titia unless it is known which ones he bequeathed to Plotia, and as this can not be ascertained, those must not be excepted from either legacy who belong to both classes, and therefore they are common to both legatees; for this is the rule of law where nothing is expressly excepted from either of two legacies. 1Where, however, a legacy was bequeathed in the following terms: “All my slaves, who are weavers, except those born under my roof,” and again, “All the slaves born under my roof except the weavers,” those who were both born under his roof and were weavers, will not be included in either legacy. 2It makes no difference whether a legacy is bequeathed “To Titius and Mævius,” or “To Titius together with Mævius;” for in both these instances the legacy is held to have been bequeathed conjointly. 3If an heir should deliver Stichus to one of two parties to whom he was charged to deliver him, and, before proceedings were instituted against him by the other legatee, Stichus should die, the heir will not be liable, because it is understood that no blame attached to him.

37Ulpianus, On Sabinus, Book XXI. Where property has been bequeathed in general terms, as, for example, a slave, Gaius Cassius says that care should be taken that neither the best nor the worst slave should be received by the legatee. This opinion is confirmed by a Rescript of our Emperor and the Divine Severus, who decreed that where a slave was bequeathed, the one who transacted the business of his master could not be selected. 1Where a testator had in mind a certain tract of land, and it is not apparent what his intention was with reference to it, the heir shall have the choice to give the tract which he prefers; or if the intention of the testator is clear, the tract itself can be claimed by the legatee. Again, if he bequeathed a piece of silver plate, and it is not clear which one he meant, the heir will also have the choice to give the one that he wishes.

38Pomponius, On Sabinus, Book VI. A legatee cannot accept a part of his legacy and reject the remainder; his heirs, however, can do so, so that one of them can accept his share, and another reject his own. 1If we should conclude not to accept a legacy which was left to Us, the state of affairs will be the same as if the legacy had not been bequeathed; and therefore we say that if a tract of land is left to me, which is charged with servitudes in favor of my property, the servitudes will not be confused. Moreover, if a slave is bequeathed to a person on account of whom the legatee can institute proceedings for theft, the right of action will remain unimpaired.

39Ulpianus, On Sabinus, Book XXI. Where a slave who has been bequeathed is in flight, or is absent in a distant country, the heir must exert himself to recover the property and deliver it. This also was stated by Julianus, for Africanus states in the Twentieth of his Letters on Julianus that, if the heir is compelled to incur any expense in this matter, he thinks that he should do so; and I hold that his opinion should be adopted. 1The profits of the property should also be deducted in making the claim for the legacy, not only those, however, which the heir may have collected, but also such as the legatee could have collected; and this rule also applies not only to the labor of slaves, but also to the work of animals, as well as transportation by vessels. What has been stated with reference to profits must also be understood to apply to the rents of houses in cities. With respect to the rate of interest on money, the custom of the country must be followed, and therefore the court must make an estimate and fix the rate of interest. Moreover, if the heir is in default, he will also be liable for the destruction of the property, and its value must be paid; just as this is done in a stipulation where the property is lost after the party is in default. This rule also applies to the offspring of female slaves. Where a slave is bequeathed, the heir will be bound to surrender everything which he has acquired by means of said slave, whether it be an estate, a legacy, or anything else. 2If Titius should purchase property from me, and bequeath it to me before I deliver it to him, and then I deliver it and receive the price for the same; he is considered at first sight to have bequeathed it to me, and hence the legacy is void. But, as I am released from liability to an action on purchase, I can bring an action to recover the property which I delivered on the ground of its being a legacy. Still, if the price has not yet been paid to me, Julianus says that I am entitled to an action on sale to recover the price, and that, in addition, a suit under the will to recover the property which I sold and delivered will lie. He also adds that if the price had been paid to me, but I had not yet delivered the property, I would be free from liability on account of the right of action to which I would be entitled by virtue of the will. 3Julianus likewise stated that if the testator should devise to me a tract of land which he had purchased from someone else, the heir would be compelled to transfer to me the right of action to which he was entitled on account of the purchase; provided the property had not yet been delivered either to the deceased, or to his heir. 4Where anyone makes a bequest to another of the right to quarry stone on his premises, the question arises whether this legacy also passes to his heir. Marcellus denies that it does pass to his heir, unless the name of the latter was mentioned in the bequest. 5Ad Dig. 30,39,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 220, Note 6.The heir is compelled to pay any taxes or tributes assessed on the land which was bequeathed, for sun-dials or for sewers, or for the right to conduct water. 6I know that the following case has been discussed. A certain person, who had two tracts of land bearing the same name, bequeathed the Cornelian Estate, and of the two thus designated one was of greater value than the other. The heir claimed that the least valuable one was bequeathed, and the legatee asserted that it was the one of greater value which was intended. It is generally understood that the one of lesser value was bequeathed, if the legatee should not be able to prove that the more valuable one was meant by the testator. 7It is established that even property belonging to another can be bequeathed, provided it can be obtained, even if its acquirement should be difficult. 8If, however, anyone should bequeath the gardens of Sallust which belonged to Augustus, or the Alban Estate which is set apart for the use of the Imperial household, he would be considered insane for having made such a bequest in his will. 9It is also established that the Campus Martius, or the Roman Forum, or any sacred building cannot be devised. 10If, however, lands belonging to the Emperor, and forming part of the Imperial domain or under the superintendence of the Imperial Steward, are devised, their appraised value will not have to be paid by the heir, as any commercial disposal of them cannot take place, except by order of the Emperor, as they are not to be sold.

40Ad Dig. 30,40Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 634, Note 7.The Same, Trusts, Book II. If, however, property belonging to another which the legatee has not control of in the way of trade, and which he has no right to possess, is left subject to a trust, I think that its estimated value will be due.

41The Same, On Sabinus, Book XXI. Now let us examine some other things in addition to what has been mentioned, and in fact all corporeal property, as well as rights and servitudes can be bequeathed. 1Property, however, which is joined to buildings cannot be disposed of by will, because the Senate, during the Consulship of Aviola and Pansa, decreed that this could not be done. 2Still, the question may be raised where pieces of marble or columns have been separated from buildings, whether the legacy does not become valid. And, indeed, if it was not valid from the beginning, it cannot become so subsequently, just as where property of mine was bequeathed to me and alienated after the will had been made, because the legacy had no force or effect in the beginning; but if it was bequeathed under a condition, the legacy can become valid, if, at the time when the condition was fulfilled, the property does not belong to me, or is no longer joined to the building; in accordance with the opinion of those who hold that I can purchase my own property under A condition, and that I can also promise it and bequeath it conditionally. Hence, the rule of Cato stands in the way of an absolute legacy left under such circumstances, but is not opposed to a conditional one; because it does not have reference to conditional bequests of this kind. 3It may also be asked whether the legacy will be valid where a party has two houses and devises one of them, and also leaves him to whom he devised the house something which was joined to the other. This question arises from the fact that we are permitted by the Decree Of the Senate and the Imperial Constitutions to transfer to one house property from another of which we are to remain in possession, that is to say, which is not to be sold. This Our Emperor and the Divine Severus stated in a Rescript. Therefore cannot I devise property attached to one house to the person to whom I have devised the other? This will be denied, for the reason that the party to whom the property is bequeathed will not be the future possessor of the same. 4Where a testator leaves the Sempronian House to two persons, and bequeaths to one of them the marble which is in it, for the erection of the Seian House, which he devised to him, it may not unreasonably be asked whether such a bequest will be valid, for the reason that the legatee is the owner of both houses. What would be the case if a person should devise a house, after excepting the marble which he wished the heir to have for the purpose of building another house which still remained a part of the estate. The better opinion may be said to be that the exception will be void in either instance, but the legacy will be valid, and the appraised value of the property must be paid. 5If, however, anyone bequeaths a legacy of this kind for the purpose of constructing some public work, I think that it will be valid; and Papinianus, in the Eleventh Book of Opinions, relates that our Emperor and the Divine Severus decided that those who promised to erect some public work can remove materials from their city and country houses, and use them with that design, because they do not remove them for commercial purposes. Let us, however, consider whether property can only be left to a city situated in the same territory, or whether it can be transferred elsewhere, to be used in some other city. I think that this should not be allowed, although it has been settled that materials can be taken from a house which a man owns and transported to another belonging to him in a different town. 6This Decree of the Senate has reference not only to Rome, but also to other cities. 7There is also a Rescript of the Divine Brothers extant which was issued in answer to a petition of Proclianus and Epitynchanus, which requested permission for the removal of property from their houses that they desired to sell for the purpose of discharging a public debt, and in which the right to sell said property was denied them. 8This Decree of the Senate applies to dwellings, as well as to baths and every other kind of buildings, such as porticoes, drinking houses, and restaurants. 9It is also forbidden by this decree to bequeath property which the legatee cannot deliver without detaching it from a building; that is to say, blocks of marble, or columns. The Senate decided that this also applied to tiles, to beams, and to doors, as well as to libraries attached to walls. 10If, however, the articles consist of lattices, or awnings, it can be bequeathed, but water mains and reservoirs are not included. 11Hydraulic machines, however, and pipes through which the water issues can be bequeathed, and especially if they are merely placed upon the real property. 12What then must be said with reference to statues? Where they are fastened to the walls it will not be lawful to remove them, but if they are separate, some doubt exists. The spirit of the Decree of the Senate must, however, be taken into consideration, and if the statues were placed in the house to remain there always, and as a portion of the same, they cannot be removed. 13Hence, it must be said that where pictures are attached to the walls, or small ornaments inserted into the latter, they cannot be bequeathed. 14Where, however, the testator had prepared certain ornaments for the purpose of removing them to another house, and bequeathed them, a doubt may arise as to whether the bequest is valid; and I think that it is. 15But when the testator fastens to his house the objects which he bequeathed, the legacy will be extinguished,

42The Same, Trusts, Book II. Whether the legatee was aware of this fact or not.

43The Same, On Sabinus, Book XXI. The Senate, therefore, does not permit anything which is attached to a house to be separately bequeathed. But if any of these objects did not form part of the house at the time of the death of the testator, the heir must pay their appraised value. If he should detach them for the purpose of paying a legacy, he will be liable to the penalties prescribed, even though he removed them, not for the purpose of selling them, but in order to discharge his obligation. 1Marcellus also says that if a husband builds a summer-house in the garden of his wife, which he received by way of dowry, he can remove the same if he can make use of it himself, without, however, causing his wife any loss; and that the Decree of the Senate will offer no obstacle to his doing so. Therefore, if no injury is suffered by his wife, through the removal of the house, it must be held that he can dispose of it by will, since he can remove it. 2Ad Dig. 30,43,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 5; Bd. III, § 633, Note 17.The bequest of a legacy can be made dependent upon the will of a third party, but not upon that of an heir. 3Where one person has ransomed another from the enemy, he can bequeath him to himself; and a legacy of this kind will cause his release from the obligation of the pledge which the party who ransomed him possessed.

44The Same, On Sabine, Book XXII. A father can bequeath a slave belonging to his son, and who forms part of the castrense peculium of the latter, and if the son should die during the lifetime of his father, and his peculium remain in the hands of his father, the legacy will stand; for as the son did not avail himself of his right, the father is held by retroaction to have the ownership of the slave who formed part of the peculium. 1Ad Dig. 30,44,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 643, Note 2.If anyone should bequeath property belonging to another which had already been bequeathed to him without his knowledge, and afterwards should learn of the legacy and wish to acquire it, the bequest will be valid; for the reason that where the legatee does not reject a bequest, it is held to have vested in him from the time when the estate of the testator was entered upon. If, however, he should reject it, the property is held to belong to the heir from the date of the rejection. 2Ad Dig. 30,44,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 2.Where anyone bequeaths drinking cups, and they have been melted down, or vice versa; and also where wool is bequeathed and clothing has been made out of it; Julianus says, in the Thirty-second Book of the Digest, that the legacy of all the above-mentioned articles is valid, and that whatever remains of them is due. I think that this opinion is correct, provided the testator did not change his mind. 3If, however, he should bequeath a silver dish, and it is melted down, and made into a cup, the cup will be due; provided the intention of the testator remains the same. 4If a house is built upon land which was devised, it will be due to the devisee, unless the testator changes his will. 5A party who bequeaths a note bequeaths the claim and not merely the material on which the writing appears. This is proved by a sale, for when a note is sold, the debt by which it is evidenced is also considered to be sold. 6However, even though a claim is bequeathed, what is due must be understood in the most favorable sense, so that the rights of action against the debtor may be assigned. 7Hence, where a slave is both bequeathed and directed to be free, in the meantime the legacy alone can take effect; for instance, suppose the grant of freedom was made for the purpose of defrauding a creditor, or if the slave is one who had already been sold into perpetual servitude, the rule will apply just as where a slave is given in pledge. 8Where a testator bequeaths a slave who is to have his freedom under certain conditions, it will be better for the heir to furnish the slave himself, rather than to pay his appraised value, for he must pay his true value. If, however, he should deliver the slave himself, and the condition should be fulfilled, he will sustain no injury, for his appraised value cannot be claimed where a free man is concerned. 9Where a testator who owns two tracts of land devises one of them to me, and the other to Titius, the devisee will not owe me his right to enter upon the estate, but the heir will be compelled to purchase this right and assign it to me.

45Ad Dig. 30,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 639, Note 4.Pomponius, On Sabinus, Book VI. If I should bequeath to you certain female slaves to be delivered by the substitute of a minor heir, and you purchase said slaves from the said heir, and alienate them before you know that they have been bequeathed to you, Neratius, Aristo, and Ofilius hold that the legacy will be valid. 1Ad Dig. 30,45,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 20.Where an heir is charged in general terms with the delivery of a slave, he is not obliged to warrant that he is sound, but he should warrant him not to be liable for theft or damages; because he should provide a slave such as the legatee may be permitted to retain. The health of a slave, however, has nothing to do with the title to him, but the rule is applicable where a slave has committed a theft or some damage for which he is responsible, in order to prevent his master from retaining him; just as a tract of land may happen to be liable for debts so that its owner cannot hold it. 2Where, however, a certain slave is bequeathed, he should be delivered such as he is.

46Ad Dig. 30,46Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 20.The Same, Epistles, Book IX. What has been stated with reference to a legacy also applies to a person who has promised to furnish either Stichus, or some other slave.

47Ulpianus, On Sabinus, Book XXII. Where property is bequeathed which belonged to the testator, and the heir has possession of it, he ought not to delay, but should deliver it at once. If, however, the property is elsewhere than where it is demanded, in the first place it must be held that it shall be delivered where it was bequeathed, unless the testator wished otherwise; for if this was the case, it should be delivered in the place where the testator intended this should be done, or in that which it is probable he had in mind. Julianus gave this opinion not only with reference to property owned by the testator, but where bequests are made of articles belonging to others. If, however, the property has been left in one place and fraudulently transferred by the heir to another, unless it is delivered where the demand is made, the heir will be condemned on account of his bad faith; but where there was no bad faith, the property shall be delivered in the place to which it was transferred. 1Where a legacy of articles which can be weighed, counted, or measured is demanded, and a specified quantity is bequeathed (as, for example, grain from a certain granary, or wine from a designated warehouse), the article must be delivered where it was left, unless the intention of the testator was otherwise. But, if the bequest was not of a certain kind of property, it must be delivered where the demand is made. 2Therefore, if Stichus should be bequeathed, and through the default of the heir should not appear, the latter must pay his appraised value; but where he was not at all to blame, the heir should provide for his restitution, and will not be compelled to pay his value. But if the slave of another who had been bequeathed takes to flight without the fault of the heir, the same rule will apply; for the heir can become liable for negligence with reference to the slave of another. The heir must, however, furnish security that if the slave should be caught, he himself, or his value will be delivered. This also applies to a slave captured by the enemy. 3But if Stichus or Pamphilus should be bequeathed, and one of them takes to flight, or is captured by the enemy, it will be held that if present, the slave must be delivered, or if absent, his appraised value must be paid. The choice of these two things is granted to the heir only when he is not guilty of delay in delivering him to the legatee. For this reason it is established that if one of the two slaves should die, the other must, by all means, be delivered, and perhaps also the price of the dead slave may be payable. Where, however, both slaves have taken to flight, security is not required of the heir, unless both of them come into his power; but where only one of them does, he must deliver either the slave himself whom he has recovered, or pay the appraised value of the one who is absent. 4The same rule applies where property belonging to another or to the estate is destroyed, without the fault of the heir, or it is not produced; for he will be obliged to do nothing more than give security. If, however, the property was destroyed through the fault of the heir, judgment must be rendered against him without delay. 5But let us consider in what way the neglect of the heir may be established; must that which resembles fraud be merely taken into account, or that also which is but slight negligence, or must exact diligence be required from the heir? The latter I think to be the most correct opinion. 6Moreover, the same rule applies where land has been swallowed up by an earthquake, and Labeo says that its appraised value will not be due. This opinion is correct, if the catastrophe did not happen after the default of the heir; for if the legatee had received it, he might have sold the land.

48Pomponius, On Sabinus, Book VI. Where the slave of the heir has misappropriated the property bequeathed, and sold it without the knowledge of his master, Atilicinus thinks that an action in factum should be granted the legatee, so that the master may be compelled to surrender his slave in satisfaction for the damage, or pay out of the peculium of the latter what he received by the sale of the property. 1Where one of the heirs killed a slave, it does not seem to me that his co-heir should be held liable in any respect, as it was not his fault that the act was committed, and the property is no longer in existence.

49Ulpianus, On Sabinus, Book XXIII. Where property is bequeathed to anyone when he attains the age of fourteen years, according to the rule in common use, the legatee must have fully completed his fourteenth year; and this Marcellus states was decreed by the Emperor. 1Therefore, where property is left to a legatee when he arrives at his fourteenth year, payable in three different instalments in one, two, and three years, and he has reached his seventeenth year at the time of the testator’s death, the legacy should all be paid at once. Hence, if the legatee has attained his fifteenth year, we hold that the legacy will be due after the lapse of two years; if he has reached his sixteenth year, it will be due a year afterwards; if some months are lacking before he reaches his seventeenth year, the legacy will be due after those months have elapsed. This, however, will be the case if the testator thought that the minor was fourteen years of age when he made the bequest, when in fact he was more than that, and if he was aware of it, we must calculate that the payment of the legacy must be made three years after the date of the will. 2Again, this legacy is both conditional and dependent upon a certain time. It is conditional until the legatee has passed his fourteenth year, and afterwards it is dependent upon time. 3Therefore, if the legatee should die before attaining his fourteenth year, nothing passes to his heir. It is certain that if he dies subsequently, the property will pass to his heir. But if at the time that the will was made the son should be under fourteen years of age, I think that the periods of one, two, and three years, fixed for the payment, are to be computed from the time when the legatee reached the age of fourteen years, unless it is clearly proved that the intention of the testator was otherwise. 4If I should bequeath to Titius the sum of ten aurei, which I owe to someone else, and request him to pay it to my creditor, the trust is not valid so far as the creditor is personally concerned, because it is of no benefit to him; still, my heir can bring an action against the legatee, on the ground that it is to his interest for my creditor to be paid to prevent him from bringing suit. Therefore the legacy will be valid. 5Where a testator owes me ten aurei for which he gave a surety, a demand for the discharge of the trust cannot only be made by the heir, but also by the surety; for it is to the interest of the latter that I should be paid, rather than he should be sued, and then bring an action on mandate. It makes no difference whether he is solvent or not. 6Julianus asks, in the Thirty-ninth Book of the Digest, if a surety bequeaths to the creditor what he owes him, whether the legacy will be valid. He says that this in no way benefits the creditor, but that the debtor will be entitled to an action arising from the will, for it is to his interest to be discharged from liability, although he cannot be sued by the heir of the surety. 7But if the same surety makes a bequest to Titius, and charges him to pay his creditor, both the debtor and the heir of the surety fan bring an action against Titius, by virtue of the trust, because it is to the interest of both of them that the trust should be discharged. 8It should also be remembered that a party who is charged merely with the sale of a tract of land to someone cannot be required to give it to him, but only to sell it for a reasonable price. 9Where, however, the heir was charged to sell the property for a certain price, he is required to sell it for that price.

50The Same, On Sabinus, Book XXIV. Where a slave belongs to several masters, and a legacy is left to him, he will acquire for each master a share of the legacy in proportion to his ownership of him. 1If a judge having jurisdiction of the settlement of an estate should decide that the heir did not conduct the case properly, or did not conduct it seriously, this will not prejudice the legatees to any extent. But what if the judge should render an unjust decision, and the heir should not appear? Any injury done to him will not prejudice the legatees, as Sabinus holds. Let us, however, consider if the judge should decide in favor of the substitute, whether he will be liable to the legatees, and, as this decision is just with reference to the substitute himself, can it not be said that he is liable to the legatees, for he cannot be so dishonorable as to allege that the judge decided in his favor through partiality. Hence the answer would be that he will be liable to both the legatees and the creditors. 2Where an heir enters upon an estate before slaves of their murdered master have been put to the question, or if he should not avenge the death of the testator, the claims of the legatees can be presented to the Treasury. But what if the Treasury should not accept the property? The burden of paying the legatees will then necessarily fall back upon the heir. If, however, the heir fraudulently presented an accuser of himself, in order that the estate might be adjudged to him, and be free from all claims, or if he did not defend himself as he should have done, he will not be released from liability, any more than a party who litigates collusively with reference to an estate. 3Where a certain number of coins is bequeathed, and it is not apparent what their denomination is, before anything else is done, the custom of the testator himself, and afterwards that of the neighborhood must be ascertained, in order to learn what he intended. And not only the intention of the testator, but also the rank of the legatee, or the affection with which he was regarded, and his wants must be considered; and the disposition of other sums by the same will, which either precede or follow the above-mentioned bequest, should also be taken into account.

51Papinianus, Questions, Book IV. If, however, the testator should bequeath certain specified coins, as, for instance, such as he has in his chest, or a certain piece of plate, it is not so much that a sum of money, as that the very coins themselves, or the articles are bequeathed, for these cannot be changed, and they should be appraised, just as if any other kind of property was involved.

52Paulus, On Sabinus, Book IV. Where all the slaves of the testator, together with their peculium are bequeathed to anyone, those slaves also are due who have no peculium. 1Where a son under the age of puberty is charged with a legacy dependent upon some condition, and he becomes his father’s heir, and afterwards dies, it can be said that the intention of the father who left the legacy to be discharged by his son under a condition, and charged a substitute absolutely with its payment, was that the legacy should be paid by the substitute without delay, if his son should die before the condition was fulfilled.

53Ulpianus, On Sabinus, Book XXV. But what if he left a larger amount to be paid by the substitute? The amount in excess would be what had been left to be paid by the substitute. This, in fact, would be included with the sum mentioned in the former will, and therefore would be due. 1If, however, the testator should repeat the legacy when he appointed the substitute; for example, if he had charged the minor to deliver a tract of land to me, and repeated this legacy charging the heir of the minor to deliver it to me and Seius; the effect of this repetition will be that only a portion of the land would be due to me. 2If anyone should appoint two heirs, and charge each one of them to deliver an undivided piece of property to the legatee, this is the same as if the legacy had been bequeathed by two different wills; for if a bequest is made to me and to my son or to my slave, by the same will, both legacies will undoubtedly be valid, as Marcellus has stated in his work on Julianus. 3Where the heir kills the slave that was bequeathed on account of some crime which the latter has perpetrated, that is to say, because he deserved death, it will, without doubt, be held that he is not liable under the will. 4If, however, he surrendered him in satisfaction for damage committed, will he be liable because he could make reparation? I think that he will be liable. 5But if he should kill an animal that had been bequeathed, I think he would be liable, not only for the body of the dead animal, or any of its remains, but to also pay the value which it would have had if living. 6Likewise, where the heir suffered a house which had been bequeathed to be taken possession of, to avoid threatened injury; I think that he will be held, for he ought to give security. 7Ad Dig. 30,53,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.Where the heir has interred a dead body in ground which was bequeathed, and by so doing rendered it religious, if he buried his father there when he could not bury him elsewhere, or could not do so as conveniently, he will not be liable under the will. Will he, however, be liable for the price of the land? If the testator desired to be buried in that place, the heir will not be liable under the will. But of the heir buried him there on his own responsibility, he will be obliged to pay the value of the land, if the assets of the estate are sufficient to enable this to be done; for where a testator devises land, he either intends to be buried elsewhere, or that the price of the land should be paid to the legatee. 8If the heir himself did not kill the slave, but forced him to commit some unlawful act, in order that he might be killed, or subjected to punishment by someone else; it will be perfectly just for him to pay the price. The value of the land, however, will not be due, if the slave committed the crime through his own evil disposition. 9If the slave that was bequeathed should be captured by the enemy, without fraud on the part of the heir; his delivery will not be required, but if this was done fraudulently it will be required.

54Pomponius, On Sabinus, Book VIII. Where legacies which imply disgrace, and an intention to insult the legatee rather than to benefit him, are inserted into a will; they are considered as not having been written, on account of the odium attaching to the testator. 1Ad Dig. 30,54,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.If a legacy is bequeathed to Titia, under the condition that she shall marry with the approval of Seius, and Seius should die during the lifetime of the testator, and she should marry, she will be entitled to the legacy. 2Ad Dig. 30,54,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.If a legacy has been bequeathed to you on condition that you manumit a slave, and the death of the slave prevents his manumission, you will, nevertheless, be entitled to the legacy, because it was not your fault that he did not obtain his freedom. 3Ad Dig. 30,54,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 11.Where, in the bequest of a legacy, only a part of the heirs are mentioned, the heirs will be charged with it equally, and if all of them are charged, each will be liable in proportion to his share of the estate.

55The Same, On Sabinus, Book IX. No one can provide in his will that laws affecting it shall not apply to the same; for the reason that the obligation of the heir with reference to the payment of legacies cannot be affected by time, place, or condition.

56The Same, On Sabinus, Book XIV. Where a legatee makes a stipulation on account of a slave that has been bequeathed to him, the heir will not be obliged to produce the slave if he should run away. The heir will not be bound by such a stipulation, for the reason that the slave must be delivered just as he was when mentioned in the will, nor is any injury understood to have been inflicted upon the legatee by doing so.

57Ulpianus, On Sabinus, Book XXXIII. Where property which was encumbered was bequeathed by a trust, if the testator knew that it was encumbered, it must be released by the heir, unless the testator intended otherwise. If he did not know this, the debt must be assumed by the beneficiary, unless he can prove that if the testator knew that the property was encumbered he would have left something else, or if it is probable that something will remain after payment of the debt. If, however, while it was not the intention of the testator that the burden of releasing the lien on the land should be borne by his heirs, he evidently did not think of relieving them of their responsibility; the beneficiary of the trust can, by means of an exception on the ground of bad faith, compel the creditors, if they bring an Hypothecary Action against him, to assign their rights to him; and even though he may not have done this during the time prescribed by law, still, this privilege will be accorded him by means of the jurisdiction of the Governor of the province.

58Ad Dig. 30,58Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 649, Note 1.Papinianus, Opinions, Book IX. I gave it as my opinion that where a house belonging to an estate was burned, and was rebuilt with the money of the heir, on account of a trust by which the said house was to be delivered to someone after the death of the heir, the amount of the expense should be deducted in accordance with the estimate of a reliable citizen, the age of the house having been taken into consideration:

59Ulpianus, On the Edict, Book XXXIII. Provided the fire did not take place through the negligence of the heir.

60Julianus, Digest, Book XXXIX. If the heir should have delivered the house without retaining anything, an action for the recovery of an indeterminate amount should lie in his favor, just as if he had paid more than he owed.

61Ad Dig. 30,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 649, Note 1.Papinianus, Opinions, Book IX. It was my opinion that the necessary expenses incurred by the legatee for the repair of a house, where he claims the legacy and the condition upon which it is dependent was afterwards fulfilled, should not be included in the calculation.

62Paulus, On the Edict, Book XLI. Where a female slave is bequeathed, together with her children, the slave alone will be due if there are no children; and the children alone, if the slave is dead.

63Celsus, Digest, Book XVII. If a testator should bequeath all his female slaves and the children born of them, and one of said slaves should die, Servius denies that her child is due, for the reason that it was bequeathed by way of accessory. I think that this opinion is incorrect, and that it is in accordance with neither the language nor the intention of the deceased.

64Gaius, On the Provincial Edict, Book XV. Documents procured by the schemes of interested parties, in like manner, are invalid, where they have reference to estates or legacies.

65The Same, On the Edict of the Prætor, Concerning Legacies, Book I. Where a bequest is made as follows: “I give to Seius ten slaves, to addition to the ten which I have directly bequeathed to Titius.” Then if only ten are ascertained to belong to the estate, the legacy is void; but if more than that number remain after Titius has selected his ten, the legacy will be valid with respect to the others; but for no greater number than the ten which were bequeathed. If less than ten should remain, the bequest will be valid with reference to as many as are found. 1The bequest is conditional when expressed as follows, “I give Stichus to So-and-So, if he is willing to accept him,” and it does not pass to the heir, unless the legatee is willing to take it; although, otherwise, where a legacy is bequeathed without the addition, “If he wishes to accept,” it will be transferred to the heir of the legatee; for it is one thing in law where something is tacitly included, and another where it is expressed in words. 2If a house should be bequeathed, even though it has been gradually rebuilt, so that none of the original materials remain, we nevertheless say that the legacy will be valid; but if, after the house has been torn down, the testator should build another in its place, we must hold that the legacy is annulled, unless it should be proved that the intention of the testator was otherwise.

66The Same, On the Provincial Edict, Book XVIII. If the testator directed his heir to purchase or sell a piece of property for a reasonable price, the legacy is valid. But what if the legatee, from whom the heir was directed to purchase the tract of land, should be compelled to sell it through necessity, and was unable to find a purchaser; or, on the other hand, if it would be greatly to the advantage of the legatee for him to purchase the property, and the heir would not sell it to him, unless the testator had ordered him to do so?

67The Same, On the Edict of the Prætor, Concerning Legacies, Book I. Where a slave is bequeathed to one of several heirs, and is said to have maliciously committed some act against the estate, as, for instance, to have removed the accounts; he shall not be adjudged to the heir before being put to the torture, if the other heirs desire it. The same rule applies if he is bequeathed to a stranger. 1Ad Dig. 30,67,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Where the same property is bequeathed to two heirs out of several who have been appointed for different shares, each of the heirs will be entitled to half of the legacy, and not in proportion to their shares of the estate.

68The Same, On the Provincial Edict, Book XVIII. Where a bequest is made to a son after the death of his father, there is no doubt that when his father dies the legacy will belong to the son; and it makes no difference whether the legatee becomes the heir of his father or not. 1Where a legacy is bequeathed to a slave after the death of his master, if he remains in the condition of servitude, the legacy will belong to the heir of his master; and the same rule will apply if the slave should be ordered to become free by the will of his master, for the time of the bequest dates from the moment of the appearance of the heir; the result of which is that the legacy will be acquired by the estate, and afterwards will vest in him who is the heir; and, moreover, where someone is created either the proper or the necessary heir of the master by his will, then, because the time of the appearance of the heir and that appointed for the vesting of the legacy coincide, it is held to be more probable that the legacy should belong to the party to whom it was left than to the heir of him from whom the slave obtains his freedom. 2If the slave should be bequeathed absolutely, and ordered to be free under some condition, and the condition should not be fulfilled, the legacy will be valid; and therefore if the condition should be fulfilled the legacy will be annulled, but if it should fail the slave will belong to the legatee. Therefore, if, while the condition upon which the freedom of the slave depends is in suspense, the legatee should die, and the condition upon which the freedom of the slave was dependent should fail, the legacy will not belong to the heir of the legatee. 3If, indeed, the slave should be bequeathed conditionally, and ordered to be free after the expiration of a certain time, the legacy is absolutely void, because the day appointed will certainly arrive. Julianus also was of this opinion. For this reason he says that if a slave was bequeathed to Titius, and was ordered to be free after the death of Titius, the legacy is void, because it is certain that Titius will die.

69The Same, On the Edict of the Prætor Concerning Legacies. Ad Dig. 30,69 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 17.It is accepted that a legacy can be bequeathed to a slave who has himself been disposed of by will; because at the moment the estate is entered upon the slave is acquired by the legatee, and then the legacy follows him. 1Where an heir alienates a slave under a certain condition, and the condition is afterwards fulfilled, he can, nevertheless, be demanded by the legatee, and the legacy is not extinguished. 2If a testator should direct some of his heirs to pay a debt, his creditors will not be entitled to an action against them, but they can proceed against the remaining co-heirs, as it is to their interest that this should be done. In this instance, not only another party than the one to whom the testator ordered property to be given will be entitled to an action, but others besides; as, for example, if he should direct a dowry to be given to his son-in-law, or to the man betrothed to his daughter, in her name. For neither the son-in-law nor the betrothed will be entitled to an action, but the girl will be, as she has the greatest interest in the matter. 3Where a tract of land which was devised is charged with a servitude, it must be delivered in the condition in which it is. But if it is devised as follows, “In the best possible condition,” it must be delivered free from all servitudes. 4Where a slave who was engaged in transacting the business of the testator is bequeathed, he should not be delivered before he renders his accounts; and if judicial proceedings are instituted to compel his delivery, the court shall also take his accounts into consideration. 5Where there is some doubt whether the property left is in existence, for example, if it should be uncertain whether a slave who has been bequeathed is living, it has been decided that a testamentary action can be brought, and it is the duty of the judge to compel the heir to furnish a bond by which he agrees to search for the property, and if he finds it, deliver it to the legatee.

70The Same, On the Provincial Edict, Book XVIII. If a slave belonging to Titius should steal something from me, and afterwards Titius, having appointed me his heir, should bequeath the said slave to you, it is not unjust that I should deliver to you the slave just as he was when in the hands of Titius; that is to say, that you should indemnify me for the theft which the slave committed while belonging to Titius. 1For, if a tract of land which was subject to a servitude for the benefit of certain land of mine should be left to you, it should not be delivered to you by me in any other way than subject to the former servitude. 2This case is not unlike the one where anyone purchases a slave from someone by the mandate of another, or gives back to the former owner a slave which he had purchased with the right to return him; for persons are not compelled to restore a slave under such circumstances, unless indemnity was promised for a theft committed by said slave either before the transaction was entered into or subsequently. 3Therefore, if a slave who was bequeathed steals something from the heir, after his acceptance of the estate, the latter will be obliged to deliver the slave in such a way that the legatee will receive from the heir the amount which he could have recovered from him by an action growing out of the crime committed by the slave.

71Ulpianus, On the Edict, Book LI. Where a house has simply been left to someone, and it is not stated what house, the heirs will be compelled to give to the legatee any house belonging to the testator which the legatee may select. If, however, the testator did not leave any house, the legacy is ridiculous rather than valid. 1Ad Dig. 30,71,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 654, Note 8.Let us consider whether, where anyone delivers a slave by virtue of a legacy, he should furnish security against eviction, and, generally speaking, it must be held that whenever property given by a legacy has been delivered, and the possessor is evicted, the legatee can bring suit for it under the terms of the will. If, however, a demand is made for the property in court, it is the duty of the judge to require a bond, so that an action may be brought under the stipulation. 2Where money has been bequeathed, and the heir acknowledges that it is due, a reasonable time must be granted him in which to pay it; and he should not be compelled to bring the matter into court. The Prætor must fix a time for payment, in accordance with what is equitable and just. 3Where a man acknowledges that he is indebted, but gives a good reason why he cannot deliver what is due, he should be heard; for instance, where property belonging to another has been bequeathed, and he alleges that the owner of the same refuses to sell it; or where he says that an exorbitant price is demanded for the property; or where he declines to give up a slave belonging to the estate, because the said slave is either his father, his mother, or one of his brothers; for it is perfectly just that under these circumstances he should be permitted by the court to pay the appraised value of the property. 4Where a cup has been bequeathed to anyone, and the heir desires to pay the appraised value of the same, because he says it would be a hardship for him to be deprived of it, he cannot obtain this favor from the Prætor, because the condition of a slave is one thing, and that of other property is another, and the more indulgent course is adopted with reference to slaves, as we have previously stated. 5Where property belonging to a municipality, together with its municipal taxes, is bequeathed, let us consider whether the legacy is valid, and can legally be claimed. Julianus says in the Thirty-eighth Book of the Digest that, although land of this kind may belong to a municipality, still, because the party who bequeathed it had some right therein, the legacy will be valid. 6But if the testator had devised this land to others than to the municipality from which he had leased it, he is not considered to have left the ownership of the same, but only the right which he had in the rent of the land.

72Paulus, On the Edict, Book XLVIII. If anyone should bequeath the Cornelian Estate, with the exception of the vineyards which were there at the time of his death, and there are no vineyards there, nothing will be deducted from the legacy.

73Gaius, On the Edict of the Prætor, Concerning Legacies. Where an heir is directed to act in such a way that Lucius may obtain a hundred aurei, the heir will be compelled to pay that sum; because no one can act in such a way that I may obtain a hundred aurei unless he gives them to me. 1It is stated in a Rescript of Our Emperor that legacies bequeathed to villages, as well as those bequeathed to cities, are lawful.

74Ulpianus, Disputations, Book IV. Although Our Emperor and his father stated in a Rescript that, where property was ordered to be delivered by the appointed heir, this, according to the intention of the testator, also applied to the substitute; still, it must be understood in this way, only where it is clear that the intention of the testator was not otherwise. It can be ascertained in several ways whether; where his heir was charged with the payment of a legacy or trust, he was unwilling for the substitute to be charged with it. But what if he had charged the substitute with the delivery of other property to the beneficiary of the trust, or to the legatee, with which he had not charged the appointed heir? Or what course should be pursued if a good reason existed why the appointed heir should be charged with the legacy, and the substitute should not? Or what should be done if he had substituted the beneficiary, to whom he had left property in trust, to be delivered by his appointed heirs? It must therefore be said that the above-mentioned Rescript does not apply, except where the intention of the testator is obscure.

75The Same, Disputations, Book V. Where a legacy or a trust is left as follows: “If my heir should deem it proper, if he should approve of it, if he should consider it just;” the legacy or the trust will be due; since it was entrusted to him as to a man of character, and the validity of the bequest was not dependent upon the mere consent of the heir. 1Ad Dig. 30,75,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 657, Note 4.Where, “what Titius owes,” is left to me, and Titius does not owe anything, it should be noted that the bequest is void. And, also, if the amount is not stated, nothing will be due, for the good and sufficient reason that it is not apparent how much was bequeathed. For if I bequeath to Titius what I owe him, and do not mention the amount, it is settled that the bequest is void; but if I should bequeath to Titius ten aurei that I owe him, although I may not owe him anything, the false representation does not annul the legacy; as Julianus decided in the case of the bequest of a dowry. 2Ad Dig. 30,75,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 657, Note 4.If the testator had said, “I bequeath the ten aurei which Titius owes me,” the legacy will undoubtedly be void, for a great deal of difference exists between a false representation and a false condition, or cause. Hence, if I should bequeath to Titius ten aurei which Seius owes me, the legacy will be void if he owes me nothing, because he should be my debtor. If, however, he did owe me, and I should collect the debt during my lifetime, the legacy will be extinguished; and if he should remain my debtor, my heir will only be compelled to assign to him his right of action. 3If anyone should stipulate “To give Stichus, or ten aurei, whichever I may choose,” and bequeaths what was due to the legatee, his heir will be required to assign his right of action to the legatee, and the latter will have the right to choose Stichus or the ten aurei, whichever he may prefer. 4Ad Dig. 30,75,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 255, Note 5.Hence, if he should bequeath Stichus, while he owed him either Stichus or the ten aurei, an action for an indeterminate amount will lie in favor of the legatee against the heir, as Julianus stated in the Thirty-third Book of the Digest; and by means of this action he can compel the heir to institute proceedings; and if, after having brought suit, he should recover Stichus, the heir must deliver him to the legatee, but if he should pay the ten aurei, he will recover nothing. Therefore, it is in the power of the debtor to determine whether he to whom Stichus was bequeathed shall be a legatee or not.

76Ad Dig. 30,76Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 255, Note 5.Julianus, Digest, Book XXXIV. If anyone should stipulate to deliver Stichus or Pamphilus, and then should bequeath Stichus to Sempronius, and Pamphilus to Mævius; the heir is understood to be required to pay the value of Stichus or Pamphilus to one of the legatees, and to assign his right of action to the other.

77Ulpianus, Disputations, Book V. Where money is deposited with anyone, and afterwards he is charged, as trustee, to pay the said money to the beneficiary, the trust must be executed, according to a Rescript of the Divine Pius; as it is held that the heir was requested to pay the money to the debtor. For if the debtor should be sued by the heir, he can avail himself of an action on the ground of bad faith, which renders the trust valid; and since this is the case, every debtor can be charged with a trust.

78The Same, Disputations, Book VIII. Where a legatee is charged with a trust, he is only bound to carry it out if the property bequeathed comes into his hands.

79Julianus, Digest, Book V. Where anyone, by his will, orders ten aurei to be paid to Titius and Seius, these words are in no way ambiguous; as the testator, when he mentioned ten, is understood to have said that ten aurei should be given to each of the legatees.

80Marcellus, Notes On the Digest of Julianus, Book XXXII. A man who left an estate of only thirty aurei bequeathed thirty to Titius, twenty to Seius, and ten to Mævius. Massurius Sabinus holds that Titius is entitled to fifteen, Seius to ten, and Mævius to five aurei; provided, however, that each legatee contributes his share of the Falcidian fourth in proportion to what was bequeathed to him.

81Julianus, Digest, Book XXXII. Where an heir has been charged to deliver a tract of land under a condition, and while the condition is pending leaves it to a third party under another condition, and then the condition prescribed by the former will is fulfilled, and afterwards the condition under which the heir bequeathed said property is complied with; the ownership of the same is not lost by the first legatee. 1Where property is bequeathed to a slave owned in common by two masters, one of them can accept the legacy, and the other can reject it; for, in this instance, a slave owned in common occupies the place of two separate and distinct slaves. 2“I give and bequeath Stichus to Sempronius; if Sempronius does not manumit Stichus within a year, I give and bequeath the said Stichus to Titius.” The question arose, what effect did this have in law? I answered that, in the meantime, Sempronius would be entitled to the entire slave, and if he should manumit him within a year, the slave will become free, but if he does not do this, the entire slave will belong to Titius. 3Where a testator devises a tract of land, with the exception of the building, by the term “building” is understood either the edifice or the soil upon which it was erected in addition. If he excepts only the building itself, the entire tract of land can, nevertheless, be claimed by the terms of the legacy; but if the heir files an exception on the ground of bad faith, he can obtain permission to live in the house as well as acquire a right of way through the land to obtain access to it. Where, however, the ground was excepted, the land with the exception of the house can be claimed, and a servitude will, by operation of law, attach to it for the benefit of the house; just as where an owner bequeaths one of two tracts of land and subjects the other to a servitude in its favor. The probability is, however, that in a case of this kind, the testator had also in view the ground on which the house was built, and without which it could not stand. 4If a freedman should appoint his patron heir to seven-twelfths of his estate, and other persons heirs to the remainder, and make his bequest as follows: “I charge whoever of the above-mentioned persons will be my heirs, along with my patron, to deliver such-and-such slaves to Titius, which slaves I think to be worth twenty aurei apiece;” it must be understood that the co-heir of the patron is the only one charged with the legacy, and therefore that Titius can only claim five-twelfths of the slaves. But the following addition: “Whom I think to be worth twenty aurei apiece,” does not change the condition of the bequest, if allowance be made for the proportion due under the Falcidian Law, for in order that this may be done, the true value of the slaves must, nevertheless, be deducted, when they are appraised. 5“I give and bequeath a tract of land to Titius, if he pays ten aurei to my heir.” If my heir owes Titius ten aurei, and Titius gives him a receipt for the amount, he can claim the land. 6If Titius, to whom Stichus was bequeathed, should die before he learned that the legacy belonged to him, and should bequeath the same slave to Seius, and the heir of Titius does not reject the legacy, Seius can claim Stichus as his property. If the head of a household should charge his minor son with the delivery of a tract of land, which he left to Titius, and should charge a substitute in the same manner for the same person, and the minor should become the heir of his father, whether Titius claims the legacy or rejects it, he cannot demand anything from the substitute, even though the son should die before reaching puberty; for when a legacy is bequeathed a second time, and the substitute is charged therewith, it should be considered that the legacy is only repeated. 7Wherefore, if the son was absolutely, and the substitute conditionally, charged with the legacy, the case will be the same as if the son alone was charged with it. And, on the other hand, if the son was charged with it conditionally, and the substitute absolutely, and the minor should die before the condition was fulfilled, the legacy will be valid solely by virtue of the substitution. 8A bequest made as follows: “I give and bequeath a tract of land to Lucius and Titius, or to one of them,” is valid, and if both of them live, it will be due to both, but if only one lives, he will be entitled to it. 9Where a slave who is to be free under a condition is bequeathed under another condition, and while the condition of the bequest is pending, the other condition upon which his liberty is dependent fails to be carried out, the legacy is valid; for, as a conditional grant of freedom annuls the legacy if the condition is fulfilled; so also the legacy cannot be annulled before the time when it is to take effect shall have arrived. 10Where a minor son is charged with the legacy of a slave, and his substitute is directed to set him free, and the minor arrives at puberty, the slave can be claimed by the party to whom he was bequeathed. If, however, the minor should die, the slave will obtain his freedom. There would be much more reason for this to be observed, if the slave had been bequeathed conditionally in charge of the minor, and, while the condition was pending the son should die before reaching the age of puberty.

82Julianus, Digest, Book XXXIII. The obligation attaching to a legacy is not always extinguished where the property vests to the legatee on the day prescribed, but it must vest in him in such a way that he cannot be deprived of it. Let us suppose that certain property that has been left to me absolutely, has been delivered to me by the heir upon the day appointed, and that the heir was also charged to deliver the said property to another subject to a certain condition; I can undoubtedly bring an action under the terms of the will, because the circumstances are such that I shall lose the ownership of the property if the condition is fulfilled. For, if Stichus is due to me under a stipulation, and he is bequeathed to someone else under a condition, he will become mine, because of the consideration; still, if the condition is fulfilled, I will be entitled to bring an action based on the stipulation. 1If I have acquired, by prescription, some property belonging to a person who is absent on public business, and it is bequeathed to me before I have been deprived of it by a better title, and then, afterwards, I should be deprived of it in this way, I can legally bring an action under the will and compel the said property to be delivered to me. 2Where a tract of land has been bequeathed to me, and I have acquired the mere ownership of the same without the usufruct, and the vendor afterwards forfeits his civil rights, the usufruct will belong to me. If I bring an action under the will, the court will render a judgment of the amount that I have lost through litigation. 3Marcellus: The same rule will apply if I purchase a part of said land, and the said part is either bequeathed or given to me; for I have a right to bring suit for a part. 4Julianus: If the children born of Pamphila are bequeathed to me, and I have bought Pamphila, and she has a child while under my control; it cannot be held that I am entitled to said child, for a valid consideration, simply because I purchased its mother. The proof of this is, that if I should be evicted I will be entitled to an action against the vendor on the ground of purchase. 5Where a testator, having Gaius and Lucius his debtors for the same sum of money, made a bequest as follows: “Let my heir give to Sempronius what Gaius owes me, and to Mævius what Lucius owes me,” he imposes upon his heir the necessity of assigning his rights of action to one of his legatees, and the amount of the claim due from them to the other. If, however, the testator, during his lifetime, had given a receipt to Gaius, the legacy bequeathed to Sempronius and Mævius will necessarily be void. 6Where Stichus and Pamphilus were bequeathed to me by two different wills, and I have received Stichus under the terms of another will, I can bring an action under the first to recover Pamphilus; for if Stichus and Pamphilus had been bequeathed to me by one will, and I had obtained Stichus for a good consideration, I could, nevertheless, claim Pamphilus.

83Marcellus, Digest, Book XIII. Titius bequeathed to you a share in Stichus, and Seius bequeathed to you the remaining share in Stichus, you can then claim him by virtue of both wills.

84Julianus, Digest, Book XIII. A bequest of this kind, “Let my heir pay a hundred aurei to Titius, if Titius will furnish my heir with security that he will pay a hundred aurei to Mævius,” will be valid; just as where a legacy is bequeathed to anyone and he delivered it to another in compliance with the terms of a trust. 1The following legacy is valid for the same reason: “Let my heir pay a hundred aurei to Titius, if Titius gives him security to construct a public work of this value in the City.” 2If Sempronius should appoint Titius his heir, and direct him to transfer a tract of land belonging to his estate to Mævius, after the lapse of two years; and Titius should then charge his heir to deliver the same land at once to Mævius, and Mævius receives the price of the land from the heir of Titius, and he afterwards wishes to claim the land under the will of Sempronius; he will be barred by an exception, if he is not satisfied with the price paid for said land. 3Where a slave was bequeathed by someone in general terms, and it was the legatee’s fault that he did not receive Stichus when the heir wished to deliver him, and Stichus should die, the heir can avail himself of an exception on the ground of bad faith. 4Where a house, in whose favor another house belonging to the heir was charged with a servitude was delivered to the legatee without the servitude, I held that the latter can bring an action under the will, because he did not receive the entire legacy. And, indeed, if the legatee should receive from the heir a slave, who had become disabled, he can very properly bring an action under the will. 5Where a man, not being aware that a slave had been bequeathed to him by a will, purchases the said slave from the heir, and then, after having ascertained this, he brings an action under the will and recovers the slave, he should be released from liability to suit on account of the sale; because this proceeding is one of good faith, and hence includes an exception on the ground of fraud. If, however, the price having been paid, he should bring suit under the will, he ought to recover the slave, and he can recover the price by an action on purchase, if he is deprived of him by a better title. But if he should proceed by an action on purchase, and should then ascertain that the slave had been bequeathed to him, and bring suit under the will; the heir cannot be released unless he refunds the price, and surrenders the slave to the purchaser. 6Where a father promised a hundred aurei as dowry for his daughter, and afterwards bequeathed the same amount to her, the heir will be protected by an action on the ground of bad faith, if the son-in-law institutes proceedings on account of the promise of the deceased, and the daughter brings suit under the will; for they should agree with one another to be content with one of these actions. 7Where a bequest is made as follows: “Let my heir pay ten aurei to So-and-So, if he returns my promissory note to my heir,” a condition of this kind has the effect of releasing my heir from the debt. Wherefore, if the note is in existence, the creditor will not be understood to have complied with the condition, unless he gives the heir a receipt. If, however, the note is not in existence, he is held to have complied with the condition, if he releases the heir. It makes no difference whether the note was destroyed at the time that the will was made, or subsequently, or after the death of the testator. 8If Stichus, who belongs to Titius, is bequeathed to Titius and Mævius, Mævius will be entitled to a half interest in Stichus, for Titius is entitled to half of said slave even though he may not be allowed to receive a legacy. 9“Let my heir give to Titius, Stichus, or Pamphilus, whichever one he chooses.” If the heir should say that he wishes to give Stichus, and Stichus should die, he will be released; but if he should mention at any time which one he wishes to give, he cannot change his mind. 10A legacy was bequeathed as follows: “Let my heir transfer to Titius the Cornelian Estate and the slaves who are on said estate, and who will be mine at the time of my death.” A female slave who ordinarily remained on said estate, at the time of the testator’s death had fled, and brought forth a child. I asked whether she herself and her child are included in the legacy. I answered that the slave seems to have been bequeathed, even though she has taken to flight, and even if she was a fugitive, she is considered to have been on said estate at the time of the testator’s death. Consequently, as the child follows the condition of the mother, it is included in the legacy, just as if it had been born on the estate. 11If either Stichus or Pamphilus, whichever one of them the legatee prefers, was bequeathed to Titius, and the testator gave Pamphilus to Titius, Stichus is still subject to the obligation. 12Where a legacy was bequeathed as follows: “I do give and bequeath to Titius and Mævius each a slave,” it is established that they do not have joint rights in the same slave, just as they would not have if the bequest was in the following terms: “I give and bequeath a slave to Titius, and another slave to Mævius.” 13Where a person to whom a legacy was bequeathed, before he decides what action he will make use of to recover his legacy, dies, leaving two heirs, and both of them appear to accept the legacy at the same time, they cannot receive it unless they agree as to the course to be pursued; as for instance, where one of them wishes to bring a real, and the other a personal action. If, however, they should agree, they will be entitled to the property in common, and they should agree either voluntarily, or by the direction of the court.

85Paulus, On Plautius, Book XI. A tract of land was devised to two persons conjointly; one of them, by a personal action, obtained the appraised value of half the property, the other, if he desired to bring suit for all the land, can be barred by an exception on the ground of bad faith with reference to half of it; because the deceased wished the legacy to come into their hands only once.

86Julianus, Digest, Book XXXIV. If a slave whom you had given in pledge is bequeathed to you by some other party, you will be entitled to an action under the will against the heir if the pledge is released. 1If one of the heirs of a testator is charged to deliver Stichus to Mævius by way of legacy, and then all his heirs are charged by a codicil to deliver the same Stichus to him, and, before the codicil is opened, Mævius should receive the appraised value of the slave, he cannot legally obtain the slave under the codicil, because the testator intended he should receive the legacy but once. 2Ad Dig. 30,86,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 643, Note 2.Where a slave is bequeathed, and the condition of said slave and of everything relating to him personally are in suspense, and the legatee should refuse the legacy, the slave is considered never to have belonged to him; and if he should not reject him, he is understood to be his from the day of the acceptance of the estate. In accordance with this rule, and the rights of those interested in property which the slave either received by delivery or stipulated for, as well as with reference to whatever was bequeathed or given to him, his condition will be determined; and also whether the business he transacted was for the benefit of the heir, or the legatee. 3Where all the heirs of a testator are charged with the delivery of a tract of land, which belonged to one of them, he to whom it belonged is not required to furnish more than his share, and the others will be liable for the remaining shares. 4If a house is left to him on whose ground the building stands, the legacy will be valid, even though he is the owner of the land; for by this means he obtains a release from the servitude and profits by the gift of the house.

87Papinianus, Questions, Book XVIII. A father having appointed his son, over whom he retained control, heir to a portion of his estate, also left him a legacy. It would be a very great hardship, as some authorities hold, that his right to the legacy should be denied if he rejected his father’s estate, for the will should not be considered as attacked by one who, for good reasons, refuses to be involved in the affairs of an estate which may be insolvent.

88Marcianus, Institutes, Book VI. If, however, the father intended that the son should not have the legacy unless he accepted the estate, then an action should not be granted him against his co-heir for the recovery of the legacy, as is held by Aristo; since the estate did not appear to be solvent to the son himself. This is the case, even if the testator did not make the acceptance of the estate conditional, as it is clearly established what his intention was.

89Julianus, Digest, Book XXXIII. For an emancipated son, if he rejects the estate, cannot be prevented from claiming the legacy from the heir. The Prætor, by permitting those children who are under the control of their father to reject his estate, makes it plain that he intends to grant them the same right so far as they are personally concerned, to which they would have been entitled if they had had free power to enter upon the estate.

90Papinianus, Questions, Book XVIII. But what if the legacy was bequeathed as follows: “I bequeath this to my son in addition”? There is no doubt that inquiry must be made as to the intention of the testator. This instance is not unlike the former one relating to previous knowledge of the son, unless it is clearly proved that the intention of the father was otherwise. 1It is evident that if several sons have been appointed heirs, an action to recover the legacy will be refused to him who declined to accept the estate.

91Julianus, Digest, Book XXXVI. The question arose whether a son under paternal control, who himself had a son, should be appointed heir; as both of them are under the control of another, for can a son be charged with a legacy for the benefit of his own son? I answered that as a son can be charged with a legacy in favor of his father, it follows that he can be charged with one for the benefit of his brother, or his son, or even for the benefit of his father’s slave. 1Where freedom is granted to a slave at once, a legacy can be bequeathed to him either absolutely or conditionally. But where freedom has been bestowed upon him under some condition, it can at certain times be valid, and at others, even if bequeathed absolutely, it may be void; for if the condition of freedom was such that it could be fulfilled immediately on the death of the testator, before the estate was entered upon (for instance, “Let Stichus be free if he pays ten aurei to Titius, or ascends to the Capitol”), the legacy will be valid. Moreover, conditions like the following: “If he pays the heir ten aurei if he should ascend to the Capitol after my estate has been accepted,” the legacy will be void. Where, however, a necessary heir has been appointed for the entire estate, those conditions which could be complied with before the estate was entered upon render the legacy invalid. 2Where a testator appointed two heirs, and bequeathed Stichus to one, and ten aurei to Stichus, if Stichus becomes free during the lifetime of the testator, he will be entitled to the entire legacy; and a proof that it vests in the said slave personally is established by the fact that if the heir to whom the slave had been bequeathed should not enter upon the estate, he can recover the entire legacy from the other heir. 3Where a legacy is bequeathed to a slave, who himself is bequeathed, and he is sold by the testator, the legacy will belong to the purchaser. 4Where a slave is left to Titius, and the legacy is bequeathed to the same slave, the legatee can be charged with the trust, “Either to deliver the slave to someone, or to transfer to him the property which is bequeathed to the slave.” And, even more than this, Titius can be charged with the trust with reference to the slave himself, even after he shall become free. 5If anyone should bequeath Stichus, and then sell or manumit him, and subsequently should leave him a legacy by a codicil, either the manumitted slave or the purchaser will be entitled to the legacy. 6If you should be appointed an heir by a party who has charged you to deliver a slave, and some individual should bequeath a legacy to the said slave; and, during the lifetime of the person who bequeathed me the slave, the day for the transfer of the legacy to the slave arrives; that legacy is at once acquired by the estate. Hence, even though the person who bequeathed me the slave should die, the legacy left to the slave will not belong to me. 7Where a slave is claimed by virtue of a will, he should be delivered to the plaintiff in the same condition in which he was at the time issue was joined in the case. And, as the offspring of a female slave, as well as the crops of the land which have been obtained, in the meantime, are included in this action; therefore any property which meanwhile has been acquired by the slave either by bequest or inheritance must be delivered to the plaintiff.

92Julianus, Digest, Book XXXIX. Where one of several heirs purchases a tract of land which has been left in trust, the price having been determined by the income from said land on account of the debts due from the estate; the party entitled to the land under the terms of the trust, being present, and consenting, it is settled that not the land itself, but the value of the same should be delivered. Marcellus states in a note, “If the heir should prefer to deliver the land, I think that he should be heard.” 1Julianus: Where money is bequeathed to Titius, and he is charged by a trust to manumit a slave belonging to another, and the master of said slave is unwilling to sell him; he will, nevertheless, be entitled to his legacy, because it was not his fault that the property bequeathed by the trust was not delivered. For if the slave should die, he will not be deprived of his legacy. 2Just as it is conceded that a trust can be imposed upon anyone who is entitled to an estate as the lawful heir, or to prætorian possession of it, so he who, by law, has a right to the estate of a boy under the age of puberty, or to prætorian possession of the same, can be legally charged with a trust.

93Ulpianus, Trusts, Book I. A trust of this kind will only be valid where the minor dies under the age of puberty; if, however, he should die after having reached puberty, the trust will vanish.

94Julianus, Digest, Book XXXIX. It is clear that if a father should disinherit his son while under the age of puberty, the heir-at-law cannot be compelled to discharge the trust, unless he was also the heir of the father. 1Where a master was asked to deliver to another person an estate to which his own slave had been appointed heir, and he sold the slave; the question arose whether he into whose hands the estate came through the purchase of the slave, that was appointed heir, can be compelled to surrender it. I said that a person who sold his own slave that had been appointed heir could be compelled to discharge the trust, as he had received the price of the estate which he was asked to surrender. He, however, into whose hands the estate came through the purchase of the slave that had been appointed heir, can, after investigation, be forced to discharge the trust; that is to say, in case the original master of the slave was not solvent. 2Where Stichus, or Damas, was bequeathed to someone, and the legatee was given his choice, and he was charged to deliver Stichus to someone else; and although he may have preferred to demand Damas he will, nevertheless, be required to deliver Stichus, in accordance with the terms of the trust. Even if Damas is of greater value, he will be compelled to furnish Stichus; or if he is of less value, he will also legally be required to deliver him; since it was his fault that he did not, in accordance with the terms of the will, obtain the slave who was the object of the trust. 3Where a slave is manumitted by will, and does not receive either a legacy or the estate, he cannot be compelled to discharge a trust. Neither can he do so who is requested to manumit a slave that was bequeathed to him; for a person can only be compelled to pay money by virtue of a trust who receives something of the same kind, or similar to it, by the will.

95Ulpianus, Trusts, Book I. Nevertheless, it should be considered where a slave who was manumitted was asked to furnish something in lieu of labor, whether a trust of this kind will be valid. This can by no means be admitted, because services of this description cannot be imposed on a freedman, and if imposed, they cannot be exacted; even though the testator may have provided for it in his will.

96Julianus, Digest, Book XXXIX. A certain individual made the following bequest in his will, or codicil: “I desire forty aurei to be paid to Pamphila, as is hereinafter stated; so many of which are due to me from Julius; and so many which I have invested in camp equipage; and so many which I have in cash.” The testator died several years afterwards being still of the same mind, but all the sums which he mentioned had been employed for other purposes. I ask whether the trust must be discharged. I answered that it was very probable that the testator had intended rather to point out to his heirs where they could readily obtain forty aurei, without interfering with the remainder of his estate, than to have inserted a condition in a trust which in the beginning had been absolute; and therefore that Pamphila was entitled to the forty aurei. 1Whenever property without an owner reverts to the Treasury under the Julian Law, the legacies and trusts which the heir, to whom they were left, was compelled to pay and discharge, must be paid and discharged by the Treasury. 2If a slave is bequeathed to you, and you are requested “To deliver to Titius property equal to the value of the slave,” and then the slave should die, you will not be compelled to deliver anything by reason of the trust. 3Where an heir appointed for a certain share of an estate is charged, as follows: “Take a certain sum as a preferred legacy, and distribute it among those who have received legacies by the will,” he must take in this manner what was conditionally bequeathed, after the condition has been complied with, and, in the meantime, he will be required to give security either to the heir, or to the parties to whom the conditional legacies have been left. 4Where a slave, who is to be free under a certain condition, is ordered to pay money to someone, he who is entitled to it can be requested to deliver the said money to another party. For, as the testator can grant freedom to his slave absolutely, by means of a codicil, and in this way dispose of the condition, why should he not have the power to take away the same money by means of a trust?

97The Same, Digest, Book XLII. If Stichus should be bequeathed to me, and I should be charged, “To deliver either Stichus, or Pamphilus, my slave,” and I lose anything on account of the legacy through the operation of the Falcidian Law, I shall be obliged to give my slave Pamphilus entirely to Titius, or that share in Stichus which I have received by way of legacy.

98The Same, Digest, Book LII. A slave who has been taken by the enemy can legally be bequeathed, for this is derived from the right of postliminium; since, just as we can appoint a slave who is in the hands of the enemy our heir, so also, we can bequeath him as a legacy.

99The Same, Digest, Book LXX. Where Stichus was bequeathed to a master, and a bequest was also made by the testator to one of the slaves of the former, giving him the choice between Stichus and another slave, I hold that only half of Stichus would belong to the aforesaid master, because the said slave, if manumitted, could select Stichus.

100The Same, Digest, Book LXXVII. If Sempronius should charge his heir Titius with a legacy in my favor, and Titius should bequeath the same property to me subject to the same condition, and the condition should be complied with, I can still claim the legacy under the will of Sempronius.

101The Same, Digest, Book LXXVIII. If Stichus is bequeathed by will to one of my slaves, and I reject the legacy; and afterwards, a codicil having been produced, it becomes apparent that Stichus was bequeathed to me also, I can, nevertheless, claim him. 1Where a legacy is left to a person who is in the hands of the enemy, and he dies while there; the legacy will be of no force or effect, although it can be confirmed by the right of postliminium.

102Ad Dig. 30,102Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 14.The Same, Digest, Book LXXXI. Where a minor of twenty years manumits his slave without the required legal investigation, and afterwards bequeaths a legacy to said slave, and the latter, having been sold, obtains his liberty; he cannot receive the legacy, for it is of no force or effect as it was bequeathed without the grant of freedom.

103The Same, Digest, Book LXXXIII. Fraud is held to have been committed in the case of an implied trust, whenever the trustee is not requested to perform any act either by a will, or by a codicil, but merely binds himself by a private agreement, or by a memorandum, that he will discharge the trust in favor of a party who is not entitled to profit by it.

104The Same, On Urseius Ferox, Book I. Where all the heirs of a testator were charged with a legacy as follows: “Let whoever becomes my heir be charged with the payment of a hundred aurei to Titius.” It was afterwards inserted in the will that only one of his heirs should pay Titius the money. The question arose, must the remaining heirs pay the entire hundred aurei, or what is left after deducting the share of the estate belonging to the one above mentioned? The answer was that it was more advisable for the remaining heirs to pay the hundred aurei, since the meaning of the words is not opposed to this opinion, and the intention of the testator agrees with it. 1Where the following was inserted in a will: “Let my heir pay a hundred aurei to Lucius Titius, if he surrenders to him a note by which I have promised to pay him a certain sum of money.” Titius died before delivering the note to the heir; and the question arose whether his heir would be entitled to the legacy? Cassius gave it as his opinion that if there was, in reality, a note, the heir of the legatee would not be entitled to the legacy, because, as the note was not returned, the time for the legacy to vest had not arrived. Julianus remarks that, if there was no note in existence at the time when the will was executed, there was one reason why the legacy would be due to Titius, and that is because an impossible condition is not considered to have been imposed. 2Sabinus says that property which belongs to the enemy can be bequeathed, if, under any circumstances, it can be purchased. 3Where property was bequeathed to Attius, as follows, “Let whoever becomes my heir be charged to pay ten aurei to my heir, Attius,” Attius can claim the ten aurei, after the deduction of his share from the amount. 4Likewise, where an heir has been ordered to pay ten aurei and retain a tract of land for himself, he must pay that sum after having deducted his share. 5Ad Dig. 30,104,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Finally, it is established that where a legacy has been bequeathed as follows, “Let whoever becomes my heir be charged to pay my heir ten aurei,” the shares of all the heirs will be equal, for the reason that each of them is held to be charged for his own benefit, as well as for that of his co-heirs. 6Ad Dig. 30,104,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Where anyone appoints an heir as follows, “Whenever his mother shall die,” and then a second heir is appointed as his substitute, and the latter is charged with a legacy in favor of the one who was conditionally appointed, and the first one dies during the lifetime of his mother, and afterwards, the day on which the legacy is to vest arrives, the question arises whether his heir will be entitled to the legacy. The better opinion is that he will be entitled to it, whether the substitute was charged to pay it to the first heir absolutely, or under the condition that he should not become his heir; for the condition was fulfilled at the time of the death of the appointed heir. 7Where a father-in-law was appointed heir to his son-in-law, and part of the estate was bequeathed to another, Sabinus gave it as his opinion that after the dowry had been deducted, he would be liable for the share of the estate included in the legacy; just as if a sum of money had been due to the father-in-law from the son-in-law, and after this was deducted, he had surrendered the estate.

105The Same, On Minicius, Book I. Where a legacy was bequeathed as follows: “Let my heir be charged with the payment to Cornelius of what Lucius Titius owes me,” the heir is not required to transfer anything under this legacy, but his right of action against the debtor.

106Alfenus Verrus, Epitomes of the Digest by Paulus, Book II. Where the following was inserted in a will: “Let my heir be charged with a hundred aurei,” but did not add “the payment of,” it is settled that the legacy will be due.

107Africanus, Questions, Book II. Where several heirs are charged with the payment of a bequest, which one of them is directed to pay as a preferred legacy? It is said that it is in the power of those to whom the legacy was bequeathed to choose whether they will bring suit against the heirs singly, or only against the one who was directed to pay the preferred legacy; hence the latter must give security to his co-heirs for the purpose of indemnifying them. 1Where anyone bequeaths a slave to whom he has left a legacy, without granting him his freedom, “If he should be his slave when he dies,” there is no doubt whatever that the legacy will be valid at some future time, because, on the death of the slave, the legacy which is left to him will belong to the person to whom the slave himself was bequeathed.

108The Same, Questions, Book V. Where a slave, who is bequeathed, is said to have taken to flight during the lifetime of the testator, the heir must restore him, but the expense, and the risk attending the pursuit must be borne by the party to whom the slave was bequeathed; as the heir is not compelled to deliver the property bequeathed except in the place where it was left by the testator. 1If the property left me by will, which you are obliged to deliver, should be given by anyone else to my slave, I will still be entitled to an action based on the will; and, above all, if I should not be aware that the property had become mine. Otherwise, the result would be that, even if you should give the said property to my slave, you would release yourself without my consent, which under no circumstances is to be admitted; since you cannot release yourself from liability without my consent, even by making payment in this manner. 2Where a slave was bequeathed to Titius, the question arose whether the right to make the choice of the slave to be given would belong to the heir, or to the legatee. I answered that it would be more equitable to hold that he should be entitled to the choice who has the power to make use of whichever action he chooses, that is to say the legatee. 3The gift of a legacy expressed in the following terms: “I bequeath to So-and-So, or So-and-So, whichever of them first ascends to the Capitol,” Africanus says will be valid; for the manifest reason that where an usufruct is bequeathed to freedmen, and the ownership of the property to whichever of them survives, the legacy will be valid. He thinks that the same opinion should be given with reference to the appointment of an heir. 4Titius charged you with a bequest of Stichus to me, concerning whom I have already entered into stipulation with you. If the stipulation was not founded on a valuable consideration, it was held that the legacy would be valid. If, however, the delivery of the slave was founded on two valuable considerations, then it is preferable to hold that the legacy is void, for the reason that no one loses anything, and the same property cannot be delivered twice. 5Where, however, you already owe me Stichus under the terms of the will of Titius, and Sempronius has charged you, his heir, with the delivery of the same slave to me as a legacy, and has requested me to deliver the said slave to a third party, the legacy will be valid, because I am not to retain the slave. The same rule will apply where he bequeathed me a sum of money; and it will be still more applicable if a trust was established by a former will. Likewise, if there was ground for the application of the Falcidian Law under the terms of the first will, what has been deducted on account of it I can acquire by virtue of the second. 6Again, if I should become the heir of the owner of a certain tract of land, and he should not prove to be solvent, and you are directed to deliver said land to me; your obligation will continue to exist, just as it would do if I had purchased the land. 7Where it is provided by a will, “Let my heir pay to Seius ten aurei more than I have bequeathed to Titius,” there can be no doubt that Titius will be entitled to his legacy, and that there will be no more than ten aurei due to Seius. For it is customary to make a bequest in the following terms: “I bequeath so much to Lucius Titius, and as much more to his wife and children.” 8Where property is bequeathed to a person to whom nothing was previously left, with the addition, “This much more,” there is no doubt whatever that what has been bequeathed in this manner is due. There should be even less doubt if I should stipulate with a person who owes me nothing as follows: “You promise to pay me ten aurei more than you owe me,” that ten will be due. 9Where a slave belonging to another is bequeathed to someone, and ordered to be free, it is held that he can be claimed by the legatee, for his grant of freedom is of no effect. It is absurd that the legacy should be rendered void, which would be valid if only the slave had been bequeathed. 10Where an individual had five aurei in his chest, and bequeathed them, or promised in a stipulation, “The ten aurei which I have in my chest,” the legacy or the stipulation will be valid; but only five aurei will be due under either. Moreover, it seems hardly reasonable that the five aurei which are lacking should be claimed under the will; for in this instance certain property which is not in existence is considered to have been bequeathed. If, however, at the time of the testator’s death, the entire amount should be in his chest, and it should subsequently be somewhat diminished, the heir alone must undoubtedly bear the loss. 11Where a slave is bequeathed, and the heir is in default, his life and any diminution in value which he may sustain will be at the risk of the heir; so that if he is disabled when delivered, the heir will, nevertheless, be liable. 12Where anything has been left to you, and you are charged, as trustee, to deliver it to me, if you do not receive anything else under the will, it is held that you will only be liable where you have been guilty of bad faith in not claiming the legacy, otherwise, I will be to blame; just as is the case in contracts of good faith, if the contract is for the benefit of both parties, he who should deliver the property is responsible for negligence, but where it is for the benefit of only one, the trustee is only responsible for fraud. 13A man gave certain jewels to Titius by way of pledge, and appointed his son his heir, and then disinherited him; and finally provided in his will: “I ask you, Titius, and I charge you to sell the jewels which I gave to you in pledge, and after having deducted all that is due to you, to pay the balance to my daughter.” Under this provision, the daughter can claim the trust from her brother, so as to compel him to assign to her his rights of action against the debtor. In this instance, he is understood to be the debtor, who in the first place was the creditor, that is to say, for the balance of the price of the pledge remaining after payment of the debt. 14It should not be considered surprising if, in a case like that above mentioned, one party should be charged with a trust, and another bound by it; for when the following is inserted into a will, namely, “I ask you, Titius, to receive a hundred aurei, and manumit such-and-such a slave, or to pay a certain sum to Sempronius,” this does not seem to have been properly expressed; still, it should be understood to mean that the heir must discharge the trust, as well as pay the money to Titius, and therefore that Titius himself will be entitled to an action against the heir, and will be compelled to grant the slave freedom, or pay the sum to Sempronius which he was asked to do. 15Auphidius appointed his son trustee, “In order that he might lend a certain sum of money to four of his freedmen, and ask a moderate rate of interest.” It was decided that this trust was perfectly valid.

109The Same, Questions, Book VI. Where a husband, during his lifetime, gave certain property to his wife, and then bequeathed it to her in the ordinary way, it is held that the testator only had in his mind such donations as would not be valid by law, otherwise he would have bequeathed the legacy in vain, just as if he had expressed himself as follows: “I bequeath what I have legally presented to my wife,” or, “What I have given to my wife for the purpose of manumitting her slave, I do now bequeath to her,” as in both these instances the legacy would be void. 1An heir who was charged with a trust to deliver to me a certain tract of land, or pay me a hundred aurei, sold the land to Titius. As the choice was left to the heir of giving whichever he pleased, provided he gives me the entire property, I think that it is the duty of the Prætor, if Titius tenders the money, to forbid an action for the recovery of the land, since the case stands upon the same footing as it would if the land had not been sold; for, where an action is brought against the heir, the Prætor or the arbitrator ought to appraise the land at not more or less than a hundred aurei, if it should not be delivered.

110The Same, Questions, Book VIII. Where an heir is directed, in general terms, to deliver any slave whom he wishes, and he knowingly delivers a thief who steals from the legatee, it is held that an action on the ground of fraud can be brought against him. However, as it is true that the heir is only liable for the delivery of a slave who is not of exceedingly bad character, he will be compelled to deliver another, and leave the former one by way of reparation for the damage.

111Marcianus, Institutes, Book II. Even if a guardian should excuse himself after having disposed of a portion of the estate, for instance what was situated in Italy, or in the provinces, he shall be deprived of all that was given him by the will, as was stated by the Divine Severus and Antoninus in a Rescript.

112The Same, Institutes, Book VI. Where anyone bequeaths serfs, without the land to which they are attached, the legacy will be void. But the Divine Marcus and Commodus stated in a Rescript that it must be determined by the will of the deceased whether an appraisement of the serfs should be made. 1Where an heir is charged to deliver his own slave to someone, and manumits him, he will be liable for the appraised value of the slave; and it makes no difference whether he knew of the legacy, or was not aware of it. If, however, the heir should give away the said slave, and the person to whom he was given should manumit him, the heir will be responsible for his value, even though he was not aware that the slave had been bequeathed to him. 2Where a legacy was bequeathed as follows, “I give and bequeath to Titius, together with Seius,” the legacy is left to both of the parties, just as there are two legacies where a tract of land is devised with the Formian House. 3Where anyone by his will directs something to be done which is contrary to law or good morals, the provision will not be valid; for example, if he should direct something to be done which was in violation of a certain law, or against the Prætorian Edict, or should order some dishonorable act to be performed. 4The Divine Severus and Antoninus stated in a Rescript that an oath inserted in a will which was opposed to the general tenor of the laws, or the authority of some special enactment, is of no force or effect.

113The Same, Institutes, Book VII. A bequest can be made to the slave of another as follows, “As long as he remains a slave,” or, “If he should become the slave of Titius,” which was also held by Marcellus. 1If anyone should grant freedom to his slave after the lapse of a certain period, and, in the meantime, should charge his heir to furnish him with subsistence until he obtained his freedom; the Divine Severus and Antoninus stated in a Rescript that the wish of the testator must be complied with. 2If anyone should charge his heir with the payment of a legacy of a hundred aurei to someone, and charge a substitute with two hundred aurei to be paid to the same person, and afterwards should again mention the bequests in general terms, he is held to have referred to the said three hundred aurei. 3If, however, a father should make a pupillary substitution for his son under the age of puberty, and should refer to the legacy to be discharged by the substitute, and the minor becomes his heir, and dies before reaching puberty, the repetition of the legacy will not be valid, because it was the intention of the deceased that it should be due but once. 4Where a child under the age of puberty is charged with a legacy under the condition, “If he should arrive at puberty,” and the legacy is repeated in a substitution, it will also be due from the substitute; for the condition is not considered to be repeated which would render the legacy void. 5Foolish wishes of deceased persons relative to their interment (for instance, where they desire unnecesary expenses to be incurred for clothing, or other things to be used at their funerals), are not valid; as Papinianus states in the Third Book of Opinions.

114The Same, Institutes, Book VIII. A son under paternal control, who is a soldier or who has been discharged from the service, even though he may die intestate, can charge his father with a trust, for the reason that he can make a will. 1If a freedman should die intestate, he can charge his patron with a trust to the extent of the share of his estate to which his patron is entitled; because if he should execute a will, he can only leave his patron the amount allowed by law. 2Where a man dies intestate, and knows that his property will revert to the Treasury, he can charge the Treasury with a trust. 3The following case is discussed by Marcellus in the Twelfth Book of the Digest. A certain individual charged a person with a trust to whom he had bequeathed a tract of land, directing him to transfer the said land to Sempronius after his death; and he also charged the same legatee to pay Titius a hundred aurei. The question arises, what is the law in this instance? Marcellus says that if the testator left Titius a hundred aurei to be paid out of the profits which the legatee if living could have collected, and the latter died after a time sufficient for the sum of a hundred aurei to be obtained from the profits, Titius will be entitled to that amount. But if the legatee should die immediately after having received the legacy, the trust created for the benefit of Titius will be extinguished because it is settled that one cannot be compelled to deliver more than was bequeathed to him. 4If, however, the trust for the benefit of Titius was to be discharged before the death of the legatee, Marcellus says that the sum provided by the trust must immediately be paid to Titius, but that he will be required to give security to refund any surplus which there might be, and this security will be operative if the legatee should die before a hundred aurei are obtained from the profits. It can, however, hardly be maintained that the testator intended that the bequest should be paid out of the profits before the legatee had been able to collect them. The legatee should certainly be heard if he desires to deliver the entire tract of land, provided the beneficiary furnishes security for its return, for it would be absurd to compel the legatee to pay a hundred aurei, especially if the land is only worth that much, or very little more. This is the practice at the present time. 5Where anything is bequeathed to someone in accordance with law, or some interest or right is left which cannot be enjoyed or held on account of some defect or qualification attaching to the thing bequeathed, or for any other good reason, and another party can hold said property, the legatee will be entitled to receive from the heir the appraised value of what it would ordinarily sell for. 6A person cannot be charged by will to appoint someone else as his heir. The Senate plainly decided that such a provision was to be considered just as if a testator had charged his heir to surrender the estate. 7But what if an heir should be charged to deliver a fourth part of the estate, after the death of the testator? I think the better opinion is the one which Scævola mentions in his notes, and which was adopted by Papirius Fronto, namely, that such a trust is valid, and has the same effect as if he had been charged to deliver the entire inheritance; and it should be delivered to the extent that the estate of the testator will permit, in accordance with the ordinary rule of law. 8Where an heir is charged with the emancipation of his children, he is not compelled to do this, for the paternal authority is not to be estimated in money. 9Houses which are to be demolished cannot be devised directly, or left under the terms of a trust, and this was decreed by the Senate. 10Where a trust is left to a slave belonging to another, without the grant of his freedom, and he becomes free, it must be said that he can be permitted to receive the trust. 11The Divine Severus and Antoninus stated in a Rescript that where a brother was charged to deliver the estate to the nephews of the deceased conditionally he cannot, before the time for the discharge of the trust has arrived, deliver it to them, even with their own consent, while they are still under the control of their father, as he can do when the time fixed for the discharge of the trust has expired, and the heirs have become their own masters; or where, if one of the children should die before this, delivery cannot be made to all of them. 12The same Emperors stated in a Rescript that it is not necessary for the estate of a mother to be delivered to her children before the time prescribed for the discharge of the trust arrives. But the heir can furnish them with the ordinary bond, or if he cannot do so, the children can be placed in possession of the estate for the purpose of preserving the trust, so that they hold possession of it by way of pledge, and not as owners, without the right to dispose of it, but retaining it merely in the capacity of pledgees, just as a father acquires the profits of property through his son, and a master through his slave. 13Where an heir is charged to deliver an estate under the terms of a trust, and dies without issue, the condition is considered to have failed to take place, if his children survive him, and no inquiry is made as to whether they claimed their rights as heirs. 14Ad Dig. 30,114,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 5.The Divine Severus and Antoninus stated in a Rescript that where a testator forbids by will any of his estate to be sold, but gives no reason for making this provision, and no one is found with reference to whom this disposition was inserted in the will, the provision is held to be of no force or effect; just as if the testator had left a mere direction, because such a precept cannot be inserted in a will. But where testators make a similar provision with a view to the benefit of their children, their descendants, their freedmen, their heirs, or any other persons whomsoever, it must be carried out; still this cannot be done in such a way as to defraud creditors or the Public Treasury. For if the property of the heir should be sold in order to pay the creditors of the testator, the trust beneficiaries must also be subject to the same rule. 15Where a father, after having appointed his son by whom he had three grandsons his heir, charged him by a trust not to sell a certain tract of land, in order that it might remain in the family; and the son, having died, appointed two of his children heirs and disinherited a third, and bequeathed the said tract of land to a stranger, the Divine Severus and Antoninus stated in a Rescript that it was evident that the said son had not complied with the wishes of the deceased. 16But if, as Marcellus holds, he had disinherited two of his children, and appointed only one of them his heir, and had devised the said land to a stranger, the disinherited child could claim the trust. This would also happen if, while living, he had emancipated his children, and afterwards sold the land. 17Where all the children are appointed heirs to unequal shares of an estate, those who are appointed for the smaller shares cannot claim the benefit of the trust, so as to receive equal portions of the estate, and not the shares to which they are entitled; for although the testator left the land to but one of his children, it is a fact that he left it to be kept in the family. 18In like manner, if he only appointed one heir, and did not bequeath any legacy, the children who were disinherited cannot claim anything, so long as the property remains in the family. 19Sometimes, a slave is bequeathed and dies without any loss to the heir, or he is left in trust, as, for instance, if the slave of another, or even the slave of the testator should be bequeathed to several legatees as well as separately, so that each one will have an interest in the entire legacy; but this only occurs when the slave dies without the heir being to blame.

115Ulpianus, Institutes, Book II. Moreover, where a bequest is made as follows: “I wish you to give; I require you to give; I think that you should give,” a trust is created.

116Florentinus, Institutes, Book XI. A legacy is a deduction from an estate whereby a testator desires that something should be given to a person which otherwise would have entirely belonged to the heir. 1Ad Dig. 30,116,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.An heir cannot be charged with a legacy for his own benefit, but you, as his co-heir, can be charged with one for his benefit. Therefore, if a tract of land is devised to a person who is appointed heir to half of the estate, and there are also two heirs who are strangers, the sixth part of the said tract of land will belong to the heir to whom the land was left, because he cannot claim half of it from himself; and with respect to the other half held by his co-heir he cannot claim more than the third part conjointly with the two strangers. The strangers, however, will have a right to claim half of the land from the heir to whom it has been devised, and each of them a third from the other heir. 2Where a slave belonging to another is appointed an heir, he cannot be charged with a legacy of himself, either entirely or partially. 3A legacy can lawfully be bequeathed to a slave who forms part of an estate, even though it has not been entered upon, because the estate represents the person of the deceased who left it. 4Where real property is devised, it should be delivered in the same condition in which it was left. Therefore, whether it owes a servitude to land belonging to the heir, or the latter owes it a servitude, and even though these servitudes may have been extinguished through confusion of ownership, the former right must be restored, and if the legatee does not permit the servitude to be imposed, and claims the legacy, he can be opposed by an exception on the ground of bad faith. Where, however, the servitude is not restored to the land entitled to it, an action under the will will remain in favor of the legatee.

117Marcianus, Institutes, Book XIII. Where any property is left to a city the bequest will all be valid, whether it is left for distribution, or to be expended in labor, in provisions, in the instruction of children, or for any other purpose.

118Neratius, Rules, Book X. Where a trust is expressed in the following terms: “I require; I desire; that you give,” it is valid, or where it is expressed as follows, “I wish my estate to belong to Titius; I know that you will deliver my estate to Titius.”

119Marcianus, Rules, Book I. Where a slave is forbidden by the testator to render an account, it does not follow that, by not being obliged to do so, he can obtain for his own benefit what may be in his hands; but, in order to avoid a too rigid examination being made, that is to say, that the slave may not be held accountable for negligence, but only for fraud. Therefore, his peculium is not considered to have been bequeathed to a manumitted slave merely for the reason that he is prohibited from rendering an account.

120Ulpianus, Opinions, Book II. Nothing is stated by which an heir is prevented from selling houses belonging to an estate, although annuities may have been left to be derived from their rent, provided the right to the legacy remains Unimpaired. 1Where all the parties to whom a trust has been bequeathed consent to the sale of the property, no further demand can be made under the terms of the trust. 2Where a tract of land has been unconditionally devised, and its profits have been acquired by the legatee after acceptance of the estate, they will belong to him, and the tenant interested in said profits will be entitled to an action against the heir under his lease.

121Marcianus, Rules, Book I. If anyone should bequeath a legacy to Titius and Mævius, one of them will be permitted to accept the legacy without the other. For when the Prætor says, “I order that the unborn child, together with the other children, shall be placed in possession of the estate,” even though there are no other children, the unborn child will be placed in possession.

122Paulus, Rules, Book III. A bequest can be made to a town for the purpose of honoring or ornamenting it. In order to ornament it, for instance, where a legacy has been left for the purpose of building a forum, a theatre, or a racecourse; to honor it, for example, where the bequest was made to provide for the compensation of gladiators, comic actors, and participants in the games of the circus, or where it was made to be divided among the citizens, or to meet the expense of banquets. And further, whatever is left for the support of persons who are infirm through age, such as old men, or boys and girls, it is held to have been done for the honor of the town. 1“Let Lucius Titius and Gaius Seius be charged with the payment of ten aurei to Publius Mævius.” Gaius Seius did not present himself as heir. Sabinus says that Titius alone will owe the entire legacy, for Seius is considered not to have been included in the bequest. This opinion is correct, that is to say, Titius will be liable for the entire ten aurei. 2Where a tract of land has been devised to someone under the following condition, “If he should pay a hundred aurei to my heir,” and if the land should only be worth as much as the legatee is ordered to pay to the heir, he cannot be compelled to execute the trust with which he was charged, since he is not considered to have acquired anything by the will where he must pay out as much as he received.

123Marcellus, Opinions. Lucius Titius, who left his two children his heirs, inserted the following provision into his will: “Whichever my children shall be my heir, I charge him, if he should die without issue, to transfer to his brother two-thirds of my estate when he dies.” The brother, at the time of his death, appointed his brother heir to three-quarters; and I ask whether he complied with the terms of the trust. Marcellus answered that what the testator owed his brother under the will of Lucius Titius can be demanded by him in proportion to his interest in the estate; unless it can be proved that the intention of the testator was otherwise; for there is little difference between this case and one where a creditor becomes the heir of his debtor. It is clear, however, that the co-heir should be heard, if he can prove that the testator, when he appointed his brother heir, intended that he should be content with the appointment, and relinquish the benefit to be derived from the trust. 1The following provision was inserted into a will: “Let my heir deliver such-and-such property to Gaius Seius, and I charge Seius, and I trust to his good faith for the delivery of all the property abovementioned, without delay.” I ask whether this creates an implied trust, as the testator did not indicate in his will the person to whom he wished the property to be delivered. Marcellus answered that if Seius had tacitly given his promise for the purpose of defrauding the law, he could in no way derive any benefit from the words written by the testator. For the law must not be thought to have been any the less evaded, because it is uncertain whose advantage the testator had in view.

124Ad Dig. 30,124Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 11.Neratius, Parchments, Book V. If heirs who are expressly mentioned are charged with the delivery of property, it is more reasonable to suppose that they are charged with equal portions, because the enumeration of the persons has the effect to make them all equally liable for the payment of the legacy, for, if they had not been expressly mentioned, they would be liable only for their respective shares in the estate.

125Rutilius Maximus, On the Lex Falcidia. Where an heir is ordered to deliver an estate, and reserve a hundred aurei for himself, and his patron demands possession of the estate contrary to the provisions of the will, the legacies, as well as the amount reserved, will be diminished in proportion to what was obtained by the patron.

126Paulus, On Pupillary Substitutions. The substitute of a disinherited son cannot legally be charged with a legacy. Therefore, the heir-at-law of a disinherited son cannot be charged with a trust, because heirs-at-law are only compelled to discharge the duties of a trust where they have also been appointed heirs. If, however, one of the children should take advantage of the Edict of the Prætor, by which possession is promised in opposition to the provisions of the will, and the appointed heir should also demand possession contrary to its provisions, the substitute of the first of the children must pay the legacies, just as if a patrimonial estate had come Into the hands of the son for whom he was substituted, and as if the son had received from his father that to which he was entitled and had acquired through possession of the estate under the Prætorian Law. 1Where a posthumous child is charged with a legacy as follows, “If he becomes my heir,” and no posthumous child should be born, the substitutes can enter upon the estate; and it must be held that they owe the legacies for which the posthumous child would have been responsible, if it had been born.

127The Same, On the Law of Codicils. The posthumous child of a brother can be charged with a trust. For, with reference to trusts, the intention of the deceased is also considered; and the opinion of Callus, who holds that the posthumous children of others can become our heirs at law, prevails.

128Marcianus, Institutes, Book II. If a guardian marries his female ward in violation of the Decree of the Senate, she can take under his will, but he cannot take anything under hers; and this is reasonable, for parties who contract forbidden marriages are guilty of an offence, and deserve to be punished. The woman, however, should not be considered to be to blame who has been deceived by her guardian.