1Ulpianus, On Sabinus, Book IX. Ad Dig. 31,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 633, Note 17.A legacy dependent upon the will of a third party can be granted in the form of a condition; for what difference does it make where a bequest is made to me, “If Titius should ascend to the Capitol,” or “If he should be willing”? 1Where, however, a legacy is bequeathed to a male or female ward, dependent upon the judgment of his or her guardian, and no condition or time is provided with reference to the legacy, as it is established that where a legacy is bequeathed by will dependent upon the judgment of a third party, it is understood to have been left to the discretion of a good citizen, and when this is done what was inserted in the legacy fixes, as it were, an amount proportionate to the value of the estate.

2Paulus, On the Edict, Book LXXV. Whenever several articles are specifically mentioned in a legacy, there are several legacies. Where, however, only one kind of property, as furniture, silver plate peculium, or certain utensils are bequeathed, there is but one legacy.

3Ad Dig. 31,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 5.The Same, On Plautius, Book IV. Where a bequest is made as follows: “Let my heir be charged to deliver such-and-such property, if he does not ascend to the Capitol,” the legacy is valid, although it is in his power either to ascend, or not to ascend to the Capitol.

4The Same, On Plautius, Book VIII. The better opinion is that no one can accept a portion of a legacy, and reject the remainder of the same.

5The Same, Questions, Book VII. Where two legacies are bequeathed, it is established that one can be rejected, and the other accepted. 1If, however, one of such legacies is subject to some liability, and should be rejected, the same cannot be said. Suppose, for instance, that Stichus and ten aurei were bequeathed to someone, and he was charged to manumit the slave. If there was ground for the application of the Falcidian Law, a fourth would be deducted from each legacy, and therefore, if the slave should be rejected, the burden of the deduction would not be avoided, but the legatee would be compelled to relinquish half of the sum of money.

6The Same, On the Lex Falcidia. Where a flock is bequeathed, a portion of the same cannot be rejected, and a portion accepted; because there are not several legacies, but only one. Where a peculium, or clothing, or silver plate, or other articles of this kind are bequeathed, we hold that the same rule will apply.

7The Same, On Plautius, Book VIII. If ten aurei are bequeathed to Titius and another party who cannot legally receive them, as the heir is obliged to pay both the legatees, where one cannot receive the legacy, only five aurei shall be paid to Titius.

8The Same, On Plautius, Book IX. Where anyone bequeaths a slave belonging to his heir or to someone else, and the slave takes to flight, the heir must furnish security that he will be restored; but if he should take to flight during the lifetime of the testator, he must be brought back at the expense of the legatee; and if he should escape after the death of the testator, he must be brought back at the expense of the heir. 1Where a legacy is bequeathed as follows: “I leave ten aurei to Sempronius, or, if he is unwilling to accept them, I leave to him my slave, Stichus,” in this case there are two legacies, but the legatee must be content with one. 2Where anyone makes a bequest as follows: “I bequeath ten measures of wine from such-and-such a cask,” even though less than ten may be found therein, the legacy is not extinguished, but the legatee will only receive what is contained in the cask. 3When a doubt arises as to which one of two persons a legacy should be given, as for instance, if it should be left to Titius, and two friends of the testator of that name appear and claim the legacy, and the heir is ready to pay it, and both of them are prepared to defend the heir, the latter must elect to whom he will pay the legacy, and by whom he will be defended against the other. 4If a legatee and certain parties claiming to be substitutes for the latter demand the payment of a certain sum of money, which has been bequeathed, and the heir is ready to pay it if both of them are prepared to defend him, he should select the one to whom to make payment, in order that he may be defended by him, and it neither appears to be guilty of fraud, the legacy should in preference be paid to the one to whom it was first bequeathed. 5If I bequeath to anyone a certain part of an estate, the Divine Hadrian stated in a Rescript that neither the value of any manumitted slave, nor the funeral expenses of the deceased, could be deducted from the legacy.

9Modestinus, Rules, Book IX. Where only a portion of the property of the deceased is bequeathed, as, “Such-and-such articles of my estate which will belong to me when I die”, the dowry and the value of the manumitted slaves must be deducted from the assets of the estate.

10Javolenus, On Plautius, Book I. Where a tract of land is specifically devised, any addition made to it after the will has been drawn up will also form part of the legacy, even if the words, “Which will be mine,” are not added; provided that the testator did not hold this property separate from the estate, but had united it to the first tract of land devised in its entirety.

11Pomponius, On Plautius, Book VII. Labeo says that a slave who is to be liberated by the heir under a certain condition cannot receive a legacy without the grant of his freedom while this is in abeyance under the terms of the will, for the reason that he is the slave of the heir. If, however, the heir inserted in his own will the same condition under which the slave was to obtain his freedom by that of the testator, the legacy will be valid. But if the slave should be ordered to be free while the heir is in default, it has very properly been decided that a legacy can be bequeathed to the slave without the grant of his freedom; because it would be superfluous to give him his freedom which he could not obtain under the will of the heir, but could obtain under that of the testator. 1“Let Stichus, or Pamphilus, whichever one my heir may choose, be given to Titius, provided he makes his choice upon the day on which my will shall be published.” If the heir does not say whether he prefers to give Pamphilus or Stichus, I think that he will be bound to give Stichus or Pamphilus, whichever one the legatee may select. If he says that he prefers to give Stichus, and Stichus should die, he will be released. If one of the two slaves should die before the time when the legacy vests, the survivor will remain subject to the obligation. Moreover, when the heir has once stated which one he prefers to give, he cannot change his mind, and this opinion was also held by Julianus.

12Paulus, On Vitellius, Book II. Where money left by a legacy is not found among the property of the testator, but his estate is solvent, the heir will be compelled to pay the amount bequeathed out of his own pocket, or by selling some of the assets of the estate, or by obtaining it from any other source that he pleases. 1Where a legacy is bequeathed as follows, “Let my heir, when he dies, pay ten aurei to Lucius Titius,” as the bequest is to take effect at an uncertain time, it does not pass to the heirs of the legatee if he should die during the lifetime of the heir of the testator.

13Pomponius, On Plautius, Book VII. Where a man has two debtors who jointly owe him the same sum of money, that is to say, Titius and Mævius, and he makes a bequest as follows, “Let my heir pay to Mævius what Titius owes me, and let him pay to Seius what Mævius owes me,” he binds his heir by these words; for when the latter assigns to Mævius his right of action against Titius, Mævius is held to have been released by his act, and therefore the heir will be liable to Seius. 1Where a testator who has one debtor bequeaths the amount which he owes to him to two legatees separately, the heir is bound to satisfy both of the latter, one of them by assigning his right of action to him, and the other by paying him the money.

14Paulus, On Vitellius, Book IV. Where the same slave is bequeathed and ordered to be free, the favor shown to freedom takes precedence of the legacy. If, however, the slave is bequeathed in another part of the will, and it is clearly shown that it was intended to deprive him of his liberty, the legacy will take precedence on account of the intention of the deceased. 1Where a slave belonging to another is appointed an heir, it is established that his freedom can be conferred upon him after the death of his master for whom he acquired the estate.

15Celsus, Digest, Book VI. Where anyone charges his two appointed heirs as follows: “Let my heirs either deliver Stichus or ten aurei,” one of the heirs cannot tender five aurei to the legatee, and the other tender him half of Stichus, for it is necessary for Stichus to be entirely given, or the ten aurei to be paid.

16Ad Dig. 31,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 156, Note 1; Bd. III, § 625, Note 11.Paulus, Digest, Book VI. If a legacy is bequeathed to either Titius or Seius, “Whichever one my heir may prefer,” the heir, by giving the legacy to one of them, is released from liability to both. If he gives the legacy to neither, both can demand it of him, just as if the property had been bequeathed to one alone; for as two creditors can be created by a stipulation, so two legatees can be created by a will.

17Marcellus, Digest, Book X. Where anyone bequeaths ten aurei to Titius, and charges him to pay the same to Mævius, and Mævius should die, the legacy will benefit Titius, and not the heir, unless the testator merely selected Titius as his agent. The same rule applies if you suppose a case of the bequest of an usufruct. 1Where an heir is charged to pay ten aurei to one of the freedmen of the deceased, and he did not indicate to which one it should be paid, the heir will be obliged to pay it to all the freedmen.

18Celsus, Digest, Book XVII. I can bind my heir to pay you a legacy in such a way that if, when I die, Stichus should not be your slave, he will be compelled to deliver him to you.

19Ad Dig. 31,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 329, Note 17; Bd. III, § 661, Note 7.The Same, Digest, Book XVIII. If he to whom Stichus or Pamphilus is bequeathed, thinking that Stichus has been bequeathed to him, should demand this slave, he will not have the right to exchange him for another, just as where an heir, having been charged with the delivery of one or the other of these slaves, gives Stichus, not being aware that he was allowed to give Pamphilus, he cannot recover anything from the legatee.

20Ad Dig. 31,20Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169a, Note 5.The Same, Digest, Book XIX. I learned from my father, and Proculus also held the same opinion, that where a legacy is bequeathed to a slave owned in common, and one of his masters refuses it, his share will not accrue to the other, for the bequest was not made conjointly, but a portion was left to each of the parties; and if both should demand it, each of them will be only entitled to a share of the same in proportion to his interest in the slave.

21The Same, Digest, Book XX. Where a certain individual has returned her dowry to his wife, and wished to bequeath to her forty aurei, and although he knew that her dowry had been returned, still, he made use of the pretext that he was bequeathing to her the said sum on the ground of returning her the dowry, I think that the forty aurei will be due, for the term “return,” although it may have the signification to give back, also includes the meaning of the word to present.

22The Same, Digest, Book XXI. Lucius Titius bequeathed to Publius Mævius, by his will, an office which he held in the army, or the money which could be derived from the sale of the same, together with all the privileges attaching thereto. Lucius Titius, however, having survived his will, sold the office and collected the price, and gave it to him to whom he had intended to leave by his will the said office, or the price received for the same. After the death of Lucius Titius, Publius Mævius brought suit against the heirs of Lucius Titius to recover either the office or the money. Celsus: I think that the price received for the office should not be paid unless the legatee can show that the testator, after having paid it once, intended that he should receive it a second time. But if the testator, while living, gave to the legatee, not the entire price of the office but only that of a portion of the same, the remainder can be collected, unless the heir can show that the testator intended, by doing this, to annul the legacy; for the burden of proving that the deceased changed his mind rests upon him who refuses to discharge the trust.

23Marcellus, Digest, Book XIII. “I bequeath to Lucius Titius the Seian Estate, or the usufruct of the same.” The legatee can claim either the land or the usufruct, which he to whom only the land is devised cannot do.

24Ulpianus, Trusts, Book II. Where a certain man left a trust in the following terms, “I charge you to deliver such-and-such property to those of my freedmen whom you may select,” Marcellus thinks that even an heir who is unworthy can be selected. If, however, he had said, “Those whom you may consider worthy;” he holds such as have not committed any offence will be eligible. He also holds that if the heir does not select anyone, all the freedmen will be permitted to claim the legacy, just as if it had been given upon that very day when it was left “To those whom you may select,” and the heir does not tender it to any of them. It is clear that if the other freedmen are dead, it must be delivered to the survivor, or to his heir, if he should die before presenting his claim. Scævola, however, says in a note that if all could demand a legacy when it is not tendered to any of them, why will not those who have died transmit their rights to their heirs, especially where there is only one claiming it, and the heir cannot select the one to whom he may give the legacy? For it appears that Marcellus held that where a trust was bequeathed as follows, “To such of my freedmen as you may select,” unless he tenders the legacy to the party whom he wishes to have it, and does so without any delay, all the heirs will be entitled to claim it. Therefore, since all of them can do this, he very properly thinks that it should be given to the survivor alone, unless the other heirs have died before sufficient time had elapsed during which the heir could select one to whom he could give the legacy.

25Marcellus, Digest, Book XXV. If, however, some of the freedmen should be absent, and those who are present demand the execution of the trust, which was directed by the testator to be carried out immediately, after investigation has been made, it should be determined whether the others also are not entitled to claim the legacy.

26The Same, Digest, Book XVI. A certain man in whom the ownership of a slave was vested, having appointed as his heir one who had the usufruct of said slave, bequeathed the slave to a third party. The heir cannot avail himself of an exception on the ground of fraud, if the legatee desires to claim the slave without leaving the usufruct for the benefit of the heir.

27Celsus, Digest, Book XXXIV. Where such-and-such property, or such-and-such other property is bequeathed, there is only one legacy. If one article is bequeathed under certain conditions, and another under others, we hold that there is but one legacy, nor does it make any difference whether the heirs, and those to whom the legacies were left, are different persons or not; for instance, if the legacy was expressed in the following terms: “If Nerva should be made Consul, let my heir Titius be charged with the delivery of such-and-such a tract of land to Attius; and if Nerva should not be made Consul, let my heir Seius pay a hundred aurei to Mævius.”

28Marcellus, Digest, Book XXIX. Where a patron is appointed by his freedman heir to the share to which he is entitled by law, he is not compelled to execute a trust left by him. If the patron should reject the appointment, can those who have a right to claim his share hold it in the same manner, or will they be obliged to discharge the trust? The better opinion is that they will be compelled to discharge it, since the especial privilege enjoyed personally by the patron should, by no means, be enjoyed by another.

29Celsus, Digest, Book XXXVI. My father stated that when he was in the Council of the Consul, Ducenus Verus, his opinion was taken in the following case. Otacilius Catulus, having appointed his daughter sole heir to his estate, left his freedman the sum of two hundred aurei, and charged him to pay it to his concubine. The freedman died during the lifetime of the testator, and what had been left to the freedman remained in the hands of his daughter, and my father decided that the daughter should be compelled to pay to the concubine the sum left to her under the trust. 1Where an heir is specifically charged with a trust, it can be held that it was only intended that he should discharge it, if he became the heir. 2If the share of a son appointed as heir is increased by the accrual of a sum specially bequeathed to another charged with its payment as a legacy, he will not be compelled to pay the legacy, to which he is entitled by ancient law.

30The Same, Digest, Book XXXVII. A certain person inserted the following provision in a will: “I bequeath to the Republic of the Graviscani, for the purpose of repairing a road which extends from their colony to the Aurelian Way.” The question arose whether this legacy was valid. Juventius Celsus answered: “This document is to a certain extent defective, so far as it relates to the maintenance of the Aurelian Way, for the reason that the amount is not stated. Still, it can sometimes be held that a sum sufficient for the purpose was bequeathed, provided that it does not appear that the intention of the deceased was otherwise; either because of the large amount required, or on account of the moderate circumstances of the testatrix. It will, then, be the duty of the judge to fix the amount of the legacy, in accordance with the appraised value of the estate.”

31Modestinus, Rules, Book I. Where anyone makes a bequest for the manumission of slaves, who himself has not the power to manumit them, neither the legacy nor the grant of freedom will be valid.

32The Same, Rules, Book IX. Everything which is left by will without fixing a time or prescribing a condition must be delivered upon the day when the estate is entered upon. 1When a legatee obtains possession of land, before the condition under which it was to have been delivered by the heir has taken place, the heir can recover it, together with the crops. 2Where a legacy is bequeathed as follows, “I devise to So-and-So such-and-such a tract of land, with everything that is thereon,” the slaves found there will also be included. 3Where a bequest is made as follows, “I bequeath whatever is in my granary,” and the party to whom it is left has placed in the granary certain articles for the purpose of increasing his legacy, without the knowledge of the testator, what he placed there will be held not to have been bequeathed. 4Where a legatee has been charged “To deliver his legacy to another,” and the legatee should die, the heir will be obliged to deliver the property bequeathed. 5Where certain articles which are specifically mentioned are bequeathed, but are not found, and this is not due to the bad faith of the heir, they cannot be claimed under the will. 6Ad Dig. 31,32,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 637, Note 5.Where property is left in trust to the family of the testator, those can be admitted to claim it who have been expressly mentioned, or if all of them are dead, those who, at the time of the death of the testator, bore his name, and their descendants in the first degree; unless the deceased especially included others in his will.

33The Same, Opinions, Book IX. Legatees have a right to claim their legacies from each one of the heirs in proportion to his share of the estate, but some co-heirs cannot be charged with legacies for others who are insolvent. 1A testator appointed several heirs, and charged some of them with legacies, and afterwards he made a codicil including all his heirs. I ask which of the heirs will be charged with the legacies? Modestinus answered, that as the testator had plainly indicated in his will by which of his heirs he desired the legacies to be paid, and even though he addressed his codicil to all of them, still, it is evident that what he bequeathed by the codicil must be paid by those whom he showed by his will he intended should discharge that duty.

34The Same, Opinions, Book X. Titia, after making a will and appointing her children Mævia and Sempronius heirs to equal shares of her estate, died, and charged Mævia to manumit her slave Stichus, in the following terms: “I ask you, my dear daughter Mævia, to manumit your slave Stichus, since I have bequeathed to you by my codicil so many slaves for your service,” but she did not actually make such a bequest. I ask, what seems to have been left by these words? For, as has been above stated the deceased testatrix, having appointed two heirs, the hereditary slaves of the estate belonged to two distinct persons, and since nothing was provided by the codicil with reference to the delivery of the slaves, the trust could not be held to be legal, where it was not really created; as where the testatrix said she made a bequest, but did not add what it consisted of, nor did she charge the heir with the delivery of the slave. Modestinus answered, as a result of the consultation, that Mævia had no right to claim either the legacy or the trust, and could not be compelled to grant freedom to her slave. 1Lucius Titius inserted the following provision into his will: “To Octaviana Stratonice, my dearest daughter, Greeting. I wish her to receive for herself the estate called Gaza, with all its appurtenances. To Octavianus Alexander, my dearest son, Greeting. I wish him to receive from himself all my unproductive lands, with their appurtenances.” I ask whether, by an instrument of this description, the testator should be considered to have given to each of his heirs an entire tract of land, or whether he merely included in the devise the shares of his estate to which they were legally entitled, as he could not properly charge each one of them with a legacy a portion of which he or she already had. Modestinus answered that the document in question should not be interpreted in such a way as to render the trust of no effect. I also ask, in case it should be decided that the land entirely belonged to one of the heirs, whether the value of the share of the brother and co-heir should be paid, because as the testator wished him to have the entire property in the land, he seemed to have prescribed the condition that the co-heir should be paid the value of his share. He answered that the beneficiary of the trust could, by no means, be compelled to pay the co-heir the value of his or her share. 2Lucia Titia, having died intestate, charged her children, by a trust, to deliver a certain house to a slave belonging to another. After her death, her children, who were also her heirs, when dividing their mother’s estate, also divided the above-mentioned house, at which division the master of the slave who was the beneficiary of the trust was present as a witness. I ask, if, for the reason that he was present at the division of the property, he should be considered to have lost the right to demand the execution of the trust, acquired by him through his slave. Modestinus answered that the trust was not annulled by operation of law, and it could not even be repudiated, nor would the master be barred by an exception on the ground of bad faith, unless it was perfectly evident that he had been present at the division of the property for the purpose of renouncing his rights under the trust. 3Gaius Seius, who had a house of his own, went to live in a villa belonging to his wife, and removed certain property to it from his own residence, and having died there a long time afterwards, left his wife and several other persons his heirs by his will, into which he inserted the following clause: “In the first place, let my heirs know that I have no money nor any other property in the hands of my wife, and therefore I do not wish her to be annoyed on this account.” I ask whether the property which, during the lifetime of the testator, was transferred to the residence of his wife, can be claimed by his estate; or, in accordance with the terms of the will, the co-heir can be prevented from sharing it with the widow of the deceased. Modestinus answered that if the testator intended the property which he had conveyed into the house of his wife to go to her, as a preferred legacy, there was nothing in the case stated to prevent his intention from being carried out; therefore, it was necessary for the woman to prove that such was the intention of the testator. If she did not do this, the property must remain a part of the estate of the husband. 4Where a trust was left to a freedman under the condition “That he should not desert my children,” and he was prevented from complying with the condition by their guardians, it is unjust that he should be deprived of the benefit of the trust since he is free from blame. 5Where a man, against the wishes of his daughter, brought suit for the recovery of her dowry, and died, and after disinheriting his daughter, appointed his son his heir, and charged him with a trust for the payment to his daughter of a sum of money instead of her dowry, I ask how much the woman is entitled to recover from her brother. Modestinus answered that, in the first place, the right of action for the recovery of the dowry is not lost by the woman, since she did not consent that her father should claim it, and was aware that he did so. Hence, the matter should be explained as follows. If a larger amount had been included in the former dowry, the woman should be content merely with her right of action; because if the sum bequeathed to her instead of the dowry was larger than the dowry itself, a deduction should be made until the sums were equal, and she could obtain under the will only the excess over and above the legacy. For it is not probable that the father would have intended to charge his son and heir with the payment of a double dowry, especially as he thought that he could properly bring an action against his son-in-law for the recovery of the dowry, even though his daughter did not give her consent. 6Lucius Titius, having left two children of different sexes, whom he appointed his heirs, added the following general provision to his will, namely, “That the legacies and grants of freedom which he left should be executed by these his heirs.” Nevertheless, in another part of his will he directed his son to sustain the entire burden of the legacies as follows, “I order that whatever I have left in my legacies or directed to be paid shall be given and delivered by Attianus, my son and heir.” He then added a preferred legacy to his daughter in the following terms: “I direct that my dear daughter, Paulina, shall have what I gave or purchased for her during my lifetime, and I forbid that any question shall be made with reference to said property; and I request you, my dear daughter, not to be offended because I have left the greater portion of my estate to your brother, as he has six great obligations to meet, and will be compelled to pay the above-mentioned legacies, which I have bequeathed.” I ask whether, by these last words which the father addressed to his daughter in his will, the result would seem to be that he charged his son with actions which could be brought against the estate, that is to say, with all of them; or whether it should be held that he only had reference to suits which could be brought by the legatee, so that actions against the estate might be granted to creditors against both the heirs. Modestinus answered that, in the case stated, it did not appear that the testator had directed that his son alone should be liable for the claims of the creditors. 7Titia, at the time that she married Gaius Seius, gave him by way of dowry certain lands and other property, and died after making the following provision by a codicil: “My daughter, I commit you to the care of my husband, Gaius Seius, whom I wish to receive the usufruct of, and a life interest in the Castle of Naclea, which I brought him as dowry, together with other property included in the dowry; and I desire that he should in no way be annoyed with reference to the dowry, for, after his death, all of this property will belong to you and your children.” In addition to this, the woman left a great deal of property to her husband to belong to him as long as he lived. I ask whether, after the death of Gaius Seius, an action based on the trust will lie in favor of the daughter and heir of Titia on account of the property which, in addition to the dowry, was left by the codicil, as well as on account of what Gaius Seius received by way of dowry. Modestinus answered that, although these words do not show that a trust was not created by which Gaius Seius was charged for the benefit of the daughter of the testatrix, after she had given him what had been bequeathed by the will; still, there is nothing to prevent an action to compel the execution of the trust, in accordance with the will of the testatrix, after the death of Gaius Seius.

35The Same, Opinions, Book XVI. Where a legacy of property which she was accustomed to use is left by a husband to his wife, the bequest will not include slaves that were not especially devoted to her service, but such as were used by both of them.

36The Same, Pandects, Book III. A legacy is a donation left by a will.

37Javolenus, On Cassius, Book I. Where a slave has been illegally manumitted by a will, he can be bequeathed by the same will, because freedom only takes precedence over a legacy where it was granted in accordance with law.

38The Same, On Cassius, Book II. Whatever a slave, who was bequeathed, acquired before the estate was entered upon, he acquires for the estate.

39The Same, On Cassius, Book III. When land which is not built upon is devised, and, after the will was executed, a building is erected thereon, both the ground and the building must be delivered by the heir.

40The Same, Epistles, Book I. Where the same property is bequeathed to two of my slaves, and I am unwilling to accept the legacy left to one of them, the whole of it will belong to me, for the reason that I acquire through one of these slaves the share of the other, just as if the legacy had been bequeathed to my slave and one belonging to another person.

41The Same, Epistles, Book VII. “I devise to Mævius half of such-and-such a tract of land, I devise to Seius the other half, and I devise the same land to Titius.” If Seius should die, his share will accrue to the other legatees, because the land, having been left separately and by shares, as well as altogether, it is necessary that the part which is without an owner should accrue proportionally to each of the legatees to whom the bequest was separately made. 1An heir having been appointed by me, I charged him with a legacy for the benefit of his wife, as follows, “Let Seius, my heir, pay Titia a sum equal to whatever comes into the hands of Seius, by way of dowry, through Titia.” I ask whether the expenses incurred through legal proceedings instituted with reference to the dowry can be deducted. The answer was there is no doubt, where a bequest was made to a wife as follows: “I charge you, my heir, to give to her an amount equal to what comes into your hands,” that the entire dowry will be due to the woman, without any deduction of expenses. But the same rule that applies to the will of a husband who returns her dowry to his wife should not be observed with reference to the will of a stranger; for the words, “What comes into your hands,” are to be interpreted as a limiting clause; but where a man leaves property in this way to his wife, he is considered to bequeath what his wife could recover by an action on dowry.

42The Same, Epistles, Book XI. Where a legacy is bequeathed to a person who can only receive a portion of the same, with the understanding that it is to be delivered to a third party, it has been decided that he can take the whole legacy.

43Pomponius, On Quintus Mucius, Book III. Where a legacy was bequeathed as follows, “I wish that as much be given to Tithasus as my heir will have,” it is the same as if it had been said: “As much as all my heirs will have.” 1If, however, the bequest was made in the following terms, “I wish my heirs to give as much to Tithasus as one of them will have,” the smallest amount included in the legacy is understood to be intended. 2Pegasus was accustomed to make a distinction where a trust was bequeathed for a certain time, for instance, after ten years; and he held that it made a difference for whose benefit this time had been fixed, whether in favor of the heir, in which case he was entitled to retain the profits of the property, or in favor of the legatee, for example, where the trust was left to take effect at the time of puberty, when the beneficiary was under that age; for in this case the profits of the preceding period must be delivered. These principles are understood to apply where it was specifically added by the testator that the heir must deliver the property subject to the trust, together with all its increase. 3Where the following provision was inserted in a will, “Let my heir pay ten or fifteen aurei,” it is the same as if only ten aurei had been bequeathed. But if he had left the legacy as follows, “Let my heir pay such-and-such a sum of money one year, or two years, after I die,” the legacy is considered to be due after the lapse of two years, because it is in the power of the heir to select the time for payment.

44The Same, On Quintus Mucius, Book IV. Where several heirs were appointed, and the legacy was bequeathed as follows, “Let my heir be charged with the payment of five aurei,” not any one heir, but all of them together, are considered to be charged with the payment of five aurei. 1Where a legacy was bequeathed in the following terms, “Let Lucius Titius, my heir, be charged with the payment of five aurei to Tithasus,” and then, in another place in the will, it was provided, “Let Publius Mævius, my heir, be charged with the payment of five aurei to Tithasus,” unless Titius can prove that Publius has been charged with the payment of the legacy for the purpose of releasing him, the legatee will be entitled to receive five aurei from each of the heirs.

45The Same, On Quintus Mucius, Book VIII. Where the following was inserted into a will, “I give a hundred aurei to my daughters,” will the legacy be considered to have been equally bequeathed to the male and female children? For if it had been left as follows, “I appoint So-and-So guardians of my sons,” it has been held that guardians were also appointed for the daughters. On the other hand, it should be understood that males are not included under the term “daughters,” for it would establish a very bad precedent for males to be included in a word which designates females. 1Ad Dig. 31,45,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 643, Note 4.Where a legacy is bequeathed to us under a condition, or at a certain time, we cannot reject it before the condition is fulfilled, or the time arrives; for before this the bequest will not belong to the legatee. 2If a father by will directs his heir to pay a certain sum of money to his daughter when she marries, or if she should be already married when the will is made but her father was absent at the time and not aware of the fact, the legacy, nevertheless, will be due. For if her father was aware of it, he is held to have intended to have left the legacy with a view to some other marriage.

46Proculus, Epistles, Book V. If the party who bequeaths a legacy does so as follows, “I bequeath to Sempronius whatever Lucius Titius can be made to pay me,” and does not add that the sum is payable “at the present time,” I have no doubt that, so far as the interpretation and meaning of these words are concerned, that money is not included in the legacy which was not collectible at the time when the party who executed the will died; but, by adding the following words, “At the present time,” he would have plainly indicated that he intended also to include money which was not yet due.

47The Same, Epistles, Book VI. Sempronius Proculus to his grandson, Greeting. Two wills written at the same time by the same testator, one of which was a copy, as is usually the case, were produced. In one of said wills a hundred, and in the other fifty aurei were left to Titius. You ask whether he will be entitled to a hundred aurei, or only to fifty. Proculus answered, that in this instance, favor should be extended to the heir, and therefore as both legacies can, under no circumstances, be due, only fifty aurei are payable.

48The Same, Epistles, Book VIII. Licinius Lucusta, to his friend Proculus, Greeting. I ask where a husband bequeaths a dowry to his wife, and gives her the choice of receiving slaves which she had given to him by way of dowry rather than money, if she should prefer to have them, and the wife selects the slaves, can she also claim any offspring of said slaves which may have subsequently been born to them? Proculus to his friend Locusta, Greeting. If the wife should prefer to receive the slaves rather than the money, the slaves themselves that, after having them appraised, she gave as dowry, and not their offspring, will be due to her. 1Where the possession of an estate is granted by the Prætor to the curator of an insane person, an action for the recovery of legacies can be brought against the curator, whose duty it is to defend the said insane person; but those who bring such an action must give security that, “If the estate should be evicted they will return what has been paid to them as legacies.”

49Paulus, On the Lex Julia et Papia, Book V. Where an ox which has been bequeathed dies, neither his hide nor his flesh will be due from the heir. 1Where a ticket calling for grain is bequeathed to Titius, and he dies, certain authorities hold that the legacy is extinguished. This, however, is not correct, for anyone to whom a ticket of this kind, or an office in the army is bequeathed, is held to be entitled to the appraised value of the same. 2Labeo states that it was the opinion of Trebatius that a tract of land which is not in commerce, so far as you are concerned, can be legally bequeathed to you; but this Priscus Fulcinius says is not true. 3Proculus, however, says that, if anyone should charge a tract of land belonging to him which is not in commerce, so far as the heir is concerned, to be delivered to someone, he thinks that the heir will be bound to either give him the property itself, if it forms part of the estate of the testator, or if it does not, to pay him the value of the same; which opinion is correct. 4Ad Dig. 31,49,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 299, Note 7.Where a testator directs something to be paid, or some work to be done, or some service to be performed, it is held that those to whom a part of the estate has accrued must make payment, or perform the act, in proportion to their shares, and that they are also equally liable for the payment of other legacies.

50Marcellus, Digest, Book XXVIII. Substitutions may be made for heirs just as for legatees. Let us see whether the same thing can be done where a donation mortis causa is made in such a way that the donor promises property to another if he should not be able to receive it himself. The latter is the better opinion, because in this case the donation is considered to have also been made to the person who was substituted. 1Ad Dig. 31,50,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 255, Note 5.If Titius owes me Stichus, or ten aurei, and I bequeath to you Stichus, whom he owes me, it is held that the legacy will be extinguished on payment of the ten aurei. If, on the other hand, Stichus should be bequeathed to one person, and the ten aurei to another, the legacy will be valid, according to the character of the payment. 2Where a legacy is bequeathed as follows, “Let my heir pay the same amount to Mævius that he will collect from Titius,” if this bequest is considered to be made under a condition, the legatee cannot bring his action before the money has been collected from Titius. If, however, the legacy is considered as payable immediately (as Publicius very properly holds), the legatee can bring suit at once to compel the assignment of the right of action.

51Ulpianus, On the Lex Julia et Papia, Book VIII. Where a testator made the following provision in his will, “I desire that there be given to So-and-So all that he is permitted to receive by law,” then this bequest is considered to refer to the time when the legatee could receive the property under the will. If, however, the testator had said, “Let my heir be charged to give the largest share of my estate that I can dispose of,” it must be said that the same rule will apply. 1A person to whom the third part of an estate is left to vest at a time when he will have children cannot obtain the third part of said estate by the adoption of children.

52Terentius Clemens, On the Lex Julia et Papia, Book III. It is not necessary to examine the legal capacity of anyone before an estate or a legacy belongs to him.

53The Same, On the Lex Julia et Papia, Book IV. Where an heir is charged with a legacy to be paid to the wife of the testator instead of her dowry, with the intention of compensating her therefor, and she prefers to have her dowry rather than the legacy, the question arises whether an action to recover the dowry should be granted her against all the heirs, or only against the one charged with the payment of the legacy. Julianus thinks that the action should first be granted against the one who was charged with the payment of the legacy; for as she ought either to be content with her rights, or with the bequest of her husband, it is only just that he whom her husband charged with the payment of the legacy, instead of her dowry, should sustain the burden of the debt to the amount of the legacy, and that the remaining part of the dowry should be paid by the heirs. 1The same principle will apply if the woman, having been appointed heir in lieu of receiving her dowry, should reject the estate, in order that an action might be granted her against the substitute. This is correct. 2It may, however, seriously be doubted, where the legacy and the Falcidian Law are involved, whether he against whom alone an action to recover the dowry is granted will personally be obliged to pay the entire legacy, just as if all the heirs had paid the dowry, or whether the entire dowry should be included in the debts of the estate, because the action for its recovery is granted against him alone. This, indeed, seems to be the most reasonable conclusion.

54The Same, On the Lex Julia et Papia, Book XIII. Where a tract of land worth a hundred aurei is devised as follows, “If he should pay a hundred aurei to my heir or to anyone else,” the legacy is held to be very valuable, for it may be more to the benefit of the legatee to have the land than a hundred aurei, since it is often to our interest to acquire land adjoining our own, for a sum even above its just appraisement.

55Gaius, On the Lex Julia et Papia, Book XII. Where the same property was bequeathed to Titius and myself, and the testator died on the very day that the legacy began to vest, and he appointed his heir, and I reject the legacy, either on my own account, or as the heir to the estate, I see that the opinion generally prevails that the legacy is partially extinguished. 1Ad Dig. 31,55,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 531, Note 11.Where a person has been appointed heir who cannot receive any of the estate, or only a portion of the same, and he leaves it to a slave belonging to the estate, in the discussion of his capacity to do this it must be determined whether the person of the heir or that of the deceased should be taken into consideration, or whether neither should be. It was settled after many conflicting decisions that, for the reason that there is no master with reference to whose person the question of capacity could arise, the legacy will be acquired by the estate without any impediment whatever; and, on this account, it will certainly belong to him who afterwards becomes the heir, in proportion to the share of the estate which he is entitled to receive, and the remaining portion shall go to those who are called by law to the succession.

56The Same, On the Lex Julia et Papia, Book XIV. Where a legacy is bequeathed to the Emperor, and he dies before the day when it becomes due, it will belong to his successor, according to a Constitution of the Divine Antoninus.

57Junius Mauricianus, On the Lex Julia et Papia, Book II. If you should bequeath a legacy to the Empress, and she should die, the legacy will be void, as the Divine Hadrian decided in the case of Plotina, and the Emperor Antoninus recently in the case of the Empress Faustina, as both of them died before the testator.

58Gaius, On the Lex Julia et Papia, Book XIV. When a party to whom a legacy was bequeathed wishes only to obtain a portion of it, he will acquire it all.

59Terentius Clemens, On the Lex Julia et Papia, Book V. Where property has been bequeathed to me absolutely, and has also been left to my slave either absolutely or conditionally, and I reject the legacy, and then, the condition having been fulfilled, I wish to obtain what was bequeathed to my slave, it has been established that the bequest of half the legacy is void, unless someone should claim that the condition was that the slave should be living, for then the legacy which I once desired to obtain will be entirely mine; which seems to be the more equitable opinion. This rule also applies where the same property is bequeathed to two of my slaves.

60Ulpianus, On the Lex Julia et Papia, Book XVI. Julianus says that if a son, who was an heir, should be charged with the payment of a legacy to Seius, and Seius is charged with a trust, under a condition, to pay it to Titius, and Titius dies before the condition has been fulfilled, the trust remains with Seius, and will not belong to the son who is the heir, because the Senate intended that, in the case of a trust, the condition of him who had been selected as trustee should be the better.

61Ulpianus, On the Lex Julia et Papia, Book XVIII. If Titius and Mævius should be appointed heirs by a testator who left four hundred aurei, and he charged Titius with a legacy of two hundred, and whomever might become his heir with a hundred, and Mævius, his heir, should not enter upon the estate; Titius will be responsible for the payment of three hundred aurei. 1Julianus, indeed, says that if one of two heirs at law who was charged with a trust rejects the estate, his co-heir cannot be compelled to execute the trust, for his share will belong to the co-heir without an obligation of any kind. However, after the Rescript of Severus, by which it is provided that where an appointed heir is charged with a trust, and rejects it, it must be executed by the substitute, in this case the heir at law will obtain the share by accrual, just as the substitute will acquire it with its burden.

62Licinius Rufinus, Rules, Book IV. Where a slave belonging to another is appointed an heir, his master can be charged with the execution of a trust. The latter, however, will not be obliged to execute it, unless he becomes the heir to the estate through his slave. If, however, the slave should be manumitted before he enters upon the estate by the order of his master, he can accept the estate if he chooses to do so, and the master will not be obliged to execute the trust, because he did not become the heir, and the slave will not be compelled to do so, for the reason that he was not charged with it. Therefore, an equitable action will lie in this case, in order that he who will benefit by the estate may be forced to execute the trust.

63Ad Dig. 31,63Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.Callistratus, On the Monitory Edict, Book IV. Where an heir who is not aware that certain property has been bequeathed uses it to pay the funeral expenses, he will not be liable to an action for the production of said property, because he is not in possession of it, and did not act fraudulently to avoid having possession. The legatee, however, will be granted an action in factum, in order that he may be indemnified by the heir.

64Papinianus, Questions, Book XV. Where a case is stated with reference to a trust which was left to several persons conditionally, and the testator, through mistake, omitted to substitute them for one another, but mentioned this reciprocal substitution in a second will, by which he made the substitution, the Divine Emperors Marcus and Commodus stated in a Rescript, that it was evidently the intention of the testator to create a reciprocal substitution of the beneficiaries of the trust; for, in the case of a trust, a mere conjecture can be admitted in order to establish the uncertain intention of the testator.

65The Same, Questions, Book XVI. Where peculium is bequeathed, it can be increased and diminished; if the property composing it is augmented by new acquisitions, or the original amount is decreased. The same rule will apply to the slaves of a testator, whether he bequeaths the entire body of them, or only a certain portion; for instance, those belonging to his city-house or his country-house, and he should subsequently change the duties or the employments of said slaves. This rule is also applicable to slaves who are litter-bearers, or footmen. 1Ad Dig. 31,65,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Certain authorities hold that the bequest of a team of horses will be annulled, if one of the horses that belonged to the team should die, but if, in the meantime, the loss was made up, the team would belong to the legatee. 2Stichus was bequeathed to Titius and was to receive his freedom together with a legacy after the death of Titius. As soon as the estate is entered upon after the death of Titius, he will be entitled to his freedom. The same rule will apply if he was directed to be free at the death of Titius. 3If, however, the slave was bequeathed to Titius, who had also been appointed heir to a part of the testator’s estate, and the latter ordered the said slave to be free after the death of Titius, the slave will be entitled to his freedom after the death of Titius, whether Titius accepted the estate or not.

66The Same, Questions, Book XVII. Mævius left a tract of land to Titius and myself under a condition, and his heir left the same land to me under the same condition. Julianus says that it would be held that, when the condition is fulfilled, the same share will belong to me under both wills. The question of intention is, however, involved, for it seems to be incredible that the heir should have intended that the same share of the estate should be twice due to the same person. Still, it is very probable that he had in mind the other half of the estate. For the Constitution of the Emperor, by which it was provided that where the same property is bequeathed several times to the same person, does not impose an additional burden upon the heir, as it applies to only one will. A debtor, however, cannot always legally bequeath what he owes, as, for him to do so, the property contained in the legacy must be of greater value than the debt. For if the same property is left under the same conditions under which it is due, what advantage will attach to a legacy? 1Ad Dig. 31,66,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 639, Note 4.Part of a tract of land which belonged to Mævius was left to Titius by the wills of two persons. It was not unreasonably decided, where the share which belonged to Mævius was delivered by one heir, that a release was obtained for the same share under the other will, and that, where the share had been alienated, the heir could not afterwards recover it by a right of action which had once been extinguished. 2Where merely the devise of a portion of the land, but not that which belonged to Mævius, was involved, a former payment did not extinguish the second action, and the other heir could deliver the same share of the property in any manner he chose, after it had once become his own; for it is understood that several persons can have a legal right to one tract of land, even where it is not divided up into sections. 3The same opinion is not held where a slave is bequeathed in general terms by two wills, for where a slave is delivered under one of them, and once becomes the property of the legatee, even though he may afterwards be alienated, he cannot be delivered by the other heir. The same rule applies to a stipulation. For where a slave is bequeathed in general terms, a separate slave should be understood, so that, as a legacy is not valid from the beginning if it includes property which belongs to the legatee, so also the delivery of property whose ownership was subsequently acquired by the legatee is without effect, even though he has ceased to be the owner of the same. 4Where the heir has buried a dead body in land which was devised, an appraisement must be made of the value of the entire tract, before the burial took place. Therefore, if the land has been transferred, it is but reasonable that the legatee should retain his right of action under the will, to indemnify him for the alienation of the property. 5Where a legatee, to whom one of the heirs was charged to transfer certain property, paid the estimated value of what was bequeathed, and afterwards a codicil was produced by which all the heirs were charged to deliver the same property, I held that the ownership of the same could not again be demanded. For indeed where a party makes use of several ways to establish the testamentary disposition of his estate, he is not understood to have left the same property several times to the same person, but merely to have mentioned it several times. 6Ad Dig. 31,66,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 654, Note 23.Where a tract of land is devised, and the usufruct belongs to someone else, it can, nevertheless, be demanded from the heir, for the usufruct, although it may not legally be a part of the land, still includes its profit. And, indeed, where a tract of land is left, an action can be brought to compel the heir to deliver everything which should be transferred, and follow the legacy; for example, where a tract of land is hypothecated, or is in the possession of someone else. The same rule, however, does not apply to other servitudes. If my own property is bequeathed to me, the legacy will not be valid, for the reasons above stated. 7Where a municipality is appointed an heir, with the reservation of the usufruct, the mere ownership can be bequeathed by the municipality, for the reason that it can lose the usufruct by non-user.

67The Same, Questions, Book XIX. Where an heir is obliged to select one person out of the family of the testator to whom to deliver property under a trust, which was to be executed at the time of his death, he cannot, after he has made his selection, legally bequeath the same property by will to anyone else, because he can claim the property under another will. Therefore, will it not be the case that the bequest is invalid, as where a legacy is left to a creditor; for so long as he can change his mind should he not properly be compared to a creditor? Still, while his choice stands, he will appear to resemble a creditor, but when he changes his mind, he will have no right to claim the property under either will. 1Where the benefit of the Falcidian Law is claimed, everything must be carried out just as if the trust had been expressly left by the first will to him who afterwards was chosen, for the necessity of making a choice does not give rise to an obligation founded on his own liberality. For, can he, who would absolutely be obliged to surrender what he left, be considered to have bequeathed some of his own property? 2Hence, where there are three persons in the family, of the same or different degrees, to whom a trust was left, it will be sufficient to leave it to one of them, for after the will of the testator has been complied with, the others will be excluded by the condition. 3If, however, one of the family of the testator should be appointed heir, and the tract of land be left by him to a stranger, the execution of the trust can be made the subject of an action at law under the will, if no member of the family was appointed by the heir. However, where a testamentary heir was appointed by him, it is understood that an action based on bad faith can be filed against the others who claim the trust, for the same reason which enables them to benefit by the trust, will also furnish a ground for implied compensation. 4If the heir should appoint two members of the testator’s family heirs to unequal portions of his estate, and should leave to a stranger a certain share of the land (for instance a fourth), the execution of the trust cannot be demanded, so far as those shares which the heirs retained by right of inheritance are concerned, any more than if the land had been devised to one of them as a preferred legacy; but all the members of the family can claim equal portions of the share which was left to the stranger, and contribution must be made, in order that these heirs may receive equal portions with the others. 5If, however, the heir should leave the land to one member of the family and charge him to deliver it to a stranger, the question arises whether the execution of this trust can be demanded. I said that this could only be done where an amount was also left to the heir which was equal to the value of the land. If, however, the first testator had left the trust as follows, “I charge you leave this tract of land to whom you may wish, or to those members of my family to whom you may desire to leave it,” the matter will be free from difficulty. But if the trust was established in the following words, “I do not wish the land to go out of my family,” the successors of the heir are understood to be bound on account of the trust, which was created for the benefit of the stranger; and the members of the family of the first testator will afterwards have a right to demand the execution of the trust, of course after the death of him who was selected in the first place. 6Therefore, if, after the selection of one of the relatives of the testator has been made, a trust should not be created in favor of a stranger, the party who was chosen cannot obtain the benefit of the trust, unless he furnishes security for the return of the land at the time of his death, if it should actually not be in the family at that time. 7“I ask that when you die you will transfer such-and-such a tract of land to any one of my freedmen whom you may select.” These words seem to mean that the choice will belong to the heir himself, and that none of the freedmen can claim the property so long as another can be preferred to him; but if the heir should die before making a selection, all the freedmen can claim the land. Hence, the result is that where the property is given to one, one of them cannot claim it while several are living, but all can claim it although it is not left to all; and one can only claim it if he should be the sole survivor at the time of the death of the heir. 8If, after having appointed you my heir, I bequeath your property, which I suppose to be my own, to Titius, there is no ground in this case for the application of the opinion of Neratius Priscus, by which it is provided that an heir cannot be compelled to pay the legacy, as relief should be granted heirs to prevent them from being compelled to purchase property which the testator bequeathed under the impression that it was his own. For men are much more inclined to bequeath their own property than to purchase that of others, and thereby impose a burden upon their heirs, which, in this instance, does not happen, as the ownership of the property is vested in the heir. 9If words creating a trust are omitted by the testator, and other property which is bequeathed seems to agree with what should have been written, the trust will be legally created, and it is presumed that less was written than was intended; just as is understood in the case of the appointment of heirs and legatees. This opinion was also adopted by our Illustrious Emperor Severus. 10Moreover, the Emperor Marcus stated in a Rescript that where a testator provided as follows, “I do not doubt that my wife will return to her children everything that she has received from me,” it should be considered to be a trust. This Rescript is of the greatest importance, for it presumes the existence of an honorable and well-conducted matrimonial life, and that the father was not deceived with reference to a trust created for the benefit of the children of both the parties. Therefore, when this most wise Prince, who scrupulously observed the laws, perceived that the ordinary terms employed in creating a trust had been omitted, he decided that the language used should be understood as having established one.

68Paulus, Questions, Book XI. The question now arises whether property which was given by a husband to his wife during his lifetime should be held to constitute a trust. I answered that what she received should be considered separate and apart from the estate of her husband, and therefore was not included in a trust, because the woman would be entitled to it, even though there should be another heir. It is clear, however, that a husband cannot charge his wife with property of this kind for the purpose of delivering it to someone else.

69Papinianus, Questions, Book XIX. “I ask Lucius Titius to be content with a hundred aurei.” It is settled that where a clause of this kind is inserted into a will it creates a valid trust. But what if, after the testator had appointed an heir to a portion of his estate, he should speak as follows: “I ask that Lucius Titius be content with his share of a hundred aurei”? The co-heirs will have a right to demand his share of the estate, whether he either retains or holds as a preferred legacy, the sum which the deceased desired he should be content with. It is no doubt better to adopt this opinion than the one that the trust can be claimed to those whom the testator did not mention. We hold that the same rule will apply where the testator appointed an heir to his entire estate for the purpose of favoring him who would be his heir-at-law, and used the following language: “I ask that you be content with a hundred aurei which I have left to you instead of my estate, which will pass to my brother by operation of law.” 1Where a tract of land is left with the understanding that it will remain in the family, and it is disposed of without the consent of the heir, by means of a forced sale, the purchaser can retain it as long as the debtor could have held it, if his property had not been sold, but he cannot retain it after his death, as the foreign heir will be compelled to surrender it. 2A mother having appointed her son, who was under the age of puberty, her heir, also appointed a guardian for him, and charged the latter: “To deliver the estate to Sempronius, if her son should die without reaching the age of fourteen years.” Although the mother could not legally appoint a guardian, the trust should still be understood to have been properly created. For if a father should appoint a guardian, and charge him with the trust by a will which was not drawn up in compliance with the legal requirements, the trust must, nevertheless, be executed, just as if the will had been made in accordance with law. In order that a minor under the age of puberty may be charged with a trust it will be sufficient for the testator to charge his guardian, whom he appointed, with it, or one whom he supposed to be his guardian. The same rule should be adopted in the case of the appointment of a curator for a child under the age of puberty, or a minor. Nor does it make any difference whether a guardian, who was properly appointed, dies during the lifetime of the father, or whether he has been excused from serving on account of some privilege which he enjoyed, or whether he could not act for the ward for whom he was appointed on account of his age; since in these instances it is certain that the trust is not annulled, because it is considered that the ward is charged with its execution. Hence, in accordance with this principle, it was decided that a guardian who did not receive anything under the will can not be charged with a trust for the benefit of his ward, as whenever he is charged with a trust for the benefit of a stranger, it must be executed in the name of his ward, and not in that of himself. 3Where a testator appointed his brother his heir and charged him not to sell his house, but to retain it in the family, and the heir did not comply with the request, but sold the house, or died after appointing a stranger his heir; all those who belong to the family can demand the execution of the trust. But what if they were not all of the same degree? This question should be disposed of by considering the party who is next of kin to be first heir called to the succession; still, the rights of the heirs further removed should not be prejudiced on account of those who precede them, and the next of kin should be admitted only where he is ready to give security to restore the house to the family. If, however, security should not be required of the heir who was first admitted, no right of action for the recovery of the property will arise on this ground; but if the house should ever pass into the hands of a stranger, an action to compel the execution of the trust will lie in favor of the members of the family. I think that security can properly be required of the next of kin, by filing an exception on the ground of bad faith, even though there may be no surviving member of the family in a more distant degree. 4Where certain members of the family are subsequently emancipated, the question may arise whether they also can legally demand the execution of the trust. I think that they can do so, according to law, since the persons mentioned by the testator in this way are understood to be included in the term “members of the family.”

70The Same, Questions, Book XX. The Emperor Antoninus stated in a Rescript that where a legatee had received nothing by way of legacy, he could not be compelled to pay the beneficiary of the trust with which he had been charged, but he could assign to him his rights of action against the heir. But what if he was charged to deliver, not the entire amount of the legacy bequeathed, but only a portion of the same, and he should refuse? Would he be compelled to assign all of his rights of action, or only an amount corresponding to what was included in the trust? This last opinion is the more reasonable one, but if he had come into possession of the legacy, he would not be obliged on account of the trust to pay any more than he had received. 1If a legatee, to whom a hundred aurei had been bequeathed, is asked to pay double the amount, the trust will be reduced to the amount of the legacy; and if the trust is to become operative after a certain time, only the interest on what was bequeathed can be collected. Nor can this rule be changed for the reason that the legatee, after receiving the bequest, may have profited greatly by some other transaction, or has escaped liability for a penalty growing out of some stipulation with the enforcement of which he was threatened. This principle, however, will only apply where the sum bequeathed is equal to the amount of the trust. For where money has been received, and the party is asked to deliver to another something of his own, although it may be of greater value, the legatee should not be heard, if, having received the legacy, he demands contribution; for equity does not permit a legatee to tender to the beneficiary of the trust what he has received as a bequest. 2Where a certain man having appointed his son heir to a portion of his estate appoints his uncle his co-heir, and requests the latter to make his son his co-heir on equal terms with his children, and the amount bequeathed to the son is less than that of the uncle, nothing more can be demanded; because if anything more should be demanded, it has been decided that an account must be taken of the profits which the uncle has collected, or could have collected, but did not take through bad faith; just as should be done when a hundred thousand aurei have been left as a legacy, and the legatee is charged to pay a larger sum after a certain time. 3Where a trustee is charged to deliver whatever portion of the estate may remain at the time of his death, sells the property, and purchases some other with the proceeds of the same, he is not held to have diminished the estate by disposing of the property in this way.

71The Same, Opinions, Book VIII. But whatever is purchased under such circumstances must be delivered, just as if there had been an exchange of ownership.

72The Same, Questions, Book XX. The same rule must be observed where the heir paid his own creditors with the money of the estate, for he is not considered to have squandered what remains as part of the estate.

73The Same, Questions, Book XXIII. Where a slave to be born of Pamphila is bequeathed to me, and I purchase Pamphila, and she brings forth a child in my house, there is good reason for saying that the said child should not be understood to have been acquired by me for a valuable consideration, and therefore a demand can be made under the will for the child, just as if I had actually purchased it; so that, if a contribution of the price is made, I can obtain as much as the child would have cost me after having deducted the appraised value of the mother, and the judge appointed to hear the case must make an estimate of the amount of the same.

74The Same, Questions, Book XXVII. “Let my heir pay a hundred aurei to Titius without delay.” The testator then extended the time for the payment of the legacy. It is not true, as Alfenus says, that a hundred aurei should be paid immediately, for the reason that a time has been fixed for payment.

75The Same, Opinions, Book VI. A soldier sent a letter to his sister which he directed her to open after his death, and stated therein, “I wish you to know that I give to you eight hundred aurei,” it was established that a trust was created in favor of the sister, and that better evidence of his last will could not be left by anyone. For it was held that the trust would stand, just as if the deceased had spoken to the party himself, on whom he conferred the benefit indirectly. 1Ad Dig. 31,75,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.A man who was appointed heir to a portion of an estate, and was also left certain preferred legacies, died before entering upon the estate. It was held that his share belonged to his co-heirs who had been appointed substitutes, but that what was included in the preferred legacies with which his co-heirs had been charged would descend to his own heirs.

76The Same, Opinions, Book VII. Where a son brought suit on the ground of an inofficious testament of his mother, before different tribunals, and various decisions of the judges were rendered, the heir who defeated the son will not be entitled to the preferred legacies, at least for the shares which the son would have obtained from the other co-heirs, any more than the other legatees would be entitled to any actions against the son; but it was decided that the grants of freedom conferred by the will should be carried out, since the son had partially broken the will of his mother. This rule should not be applied to servitudes, which cannot be partially diminished. It is evident that a servitude must be entirely demanded from the party who defeated the son, but only the appraised value of a portion of it need be paid; or, where the son is ready to transfer the servitude, if the price is paid, the legatee will be barred by an exception on the ground of fraud, if he does not tender the appraised value of a portion of the same, just as in the case of the Falcidian Law. 1“I bequeath to Lucius Sempronius the entire estate of Publius Mævius.” In this instance, Sempronius will only be liable for the burdens imposed upon the estate of Mævius, and which continued to exist until the death of him who became the heir of Mævius; just as rights of action are assigned instead of loans which could be paid. 2Ad Dig. 31,76,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 200, Note 3.The owner of land, the usufruct of which had been left to an heir, bequeathed it under a certain condition. The terms of the will did not permit the heir to retain the profits, on account of the usufruct. A different opinion is held with reference to certain servitudes attaching to land to which servitudes the heir was entitled, since he obtains the profits as a portion of the land. 3“Let my heir give to Titius what is due to me under the will of Sempronius.” As the legatee, who was also a testator, had previously taken advantage of the law of novation, the legacy was not payable under the will; and it was held that the false representation did not injure the legatee, and that what, in the first place, was true, could not be considered as entirely false. 4Where a slave is manumitted unconditionally, but cannot obtain his freedom as soon as the estate is entered upon on account of some legal impediment, and because his condition is not established, or for some additional reason, for example, an accusation of adultery, he cannot expect to receive either legacies or the benefits of a trust absolutely granted by the same will, because the time has passed when he could take advantage of them. 5A father, having appointed his daughter heir to half of his estate, made the following provision in his will: “I ask that when you die, even though you should have other children, you will leave a larger share of your estate to Sempronius, my grandson, in honor of my name which he bears.” The daughter seems to be necessarily compelled to give, in the first place, equal portions to all the grandchildren, but she has the choice of fixing the larger amount which her father desired to be bestowed upon one of his grandsons. 6A mother, without having observed the proper formalities, appointed a guardian for her son, and bequeathed him a legacy, on condition that the guardian should consent to be confirmed by the decree of the Prætor. If the Prætor does not consider him a suitable person, he will, nevertheless, not be denied an action for the recovery of the legacy. 7Where anyone has furnished the Mucian bond to provide against his doing anything forbidden by the testator, and afterwards commits such an act, he must also surrender the profits of the legacy which, in the beginning, he promised to return. 8A legatee cannot make use of several actions at the same time, because a legacy cannot be divided into several parts. For as a legacy is not bequeathed with the intention that the legatees may avail themselves of several actions, but, in order that it may be easier for them to bring suit, they can do so by selecting whichever action they please. 9The power is granted to recover a legacy from the legatee after it has been paid in compliance with the terms of the will, where the latter is decided to be void, when it is known that the memory of the deceased has become infamous; especially if the testator was convicted of treason after the legacy has been paid.

77The Same, Opinions, Book VIII. Where a father appointed his children and their mother his heirs as follows: “I ask you, my daughter, that, having accepted as your share of my estate a hundred aurei together with the Tusculan estate, you transfer to your mother your share of my estate,” I held that, when the estate was divided, the daughter would be entitled to the land mentioned as part of it, and that she could retain the money in addition to her share. 1Those persons to whom a donation mortis causa has been given can be charged with a trust for any length of time; and this trust the heirs must execute after deducting the Falcidian portion which, in donations of this kind, follows the example of legacies. Where only a part of the donation is included in the trust, the latter will also be subject to the privileges of the Falcidian Law. Where, however, the testator desired support to be furnished, it should be held that, according to his will, the whole burden of the Falcidian Law must be sustained by the remainder of the donation, as there is no doubt that the deceased intended that the entire maintenance should be furnished when his bequest of a larger sum is taken into consideration. 2A mother, desiring to make a donation mortis causa to her children born out of wedlock, permitted a stipulation to be made for her dowry. Afterwards, having appointed other heirs, she requested her children to return the dowry to her husband. It was held that the entire trust relating to the dowry was due to her husband, in case the Falcidian Law did not interfere; and therefore that her husband was entitled to retain the dowry, even though otherwise an action in factum would be granted to the heirs for the recovery of the Falcidian portion out of the dowry, if the children should institute proceedings based on the stipulation entered into with the husband. 3Anyone who is deaf and dumb, and receives a legacy, can be legally directed to surrender it at his death; for persons who are not aware of the fact can be charged with a trust, where they obtain some benefit from a will without knowing it. 4A son was requested when he died to deliver an estate to his own sons, or to one of them whom he might select. This son, having in the meantime been banished to an island, it was decided that he was not deprived of the power of choosing his heir by the infliction of the penalty, and also that the condition upon which the trust depended was still in existence, until his death, but that the children who were living at the time would be entitled to equal shares under the trust, as the father was not then capable of making a choice. 5Where a husband who, in violation of the Lex Julia, sold land which formed part of his wife’s dowry, bequeathed a legacy to her, and charged the purchaser of the land to pay her a larger sum than the price received, it was held that the purchaser was not liable under the terms of the trust. If, however, the woman, after having accepted the legacy, should wish to have the sale declared void, she can be barred by an exception on the ground of bad faith, after the price has been tendered her by the purchaser. 6A creditor directed his debtor Mævius to pay the amount he owed him to Titius, to whom he intended to make a donation mortis causa. If Mævius, knowing that his creditor had died, should pay the money, it is established that his release from liability will not follow; and even if Mævius should not be solvent, an action will not be granted against Titius for the collection of the entire amount, nor will one lie under the Falcidian Law, for the reason that Titius is not held to have received anything mortis causa. The case would be different if Mævius, not being aware that his creditor was dead, should pay the money by mistake, for any amount due by the Falcidian Law could be recovered. 7A father owed certain lands to his daughter under a trust created by her mother’s will, and appointed the said daughter heir to a share of his estate, in order to compensate her for the amount of the estate of her mother to which she would be entitled under the trust, and he afterwards desired that the said lands should be given to his son whom he had disinherited. It was decided that, even if the daughter should be unwilling to accept her father’s estate, the property left by the trust must be delivered to the son by the heirs to whom the share of the estate which the daughter had accepted would pass. Even though he had substituted another heir for his daughter, it would be necessary for him to execute the trust in favor of his son. 8Where a father, who believed himself to be the owner of certain lands, left them to his son by the terms of a trust, and the said lands were evicted, no action will lie in favor of the son against his brothers and co-heirs. If, however, the testator divided his property among his sons, his intention will not be considered to have been to restore the preferred legacies to the co-heirs, unless they themselves were prepared to see that the will of their father was executed in favor of their brother. 9Where a father left a certain sum of money by a trust to his daughter whom he had disinherited, and desired that the said sum should be given to her by way of dowry at the time of her marriage, and that his son should stipulate for said dowry, if the latter should pay a smaller sum than the dowry, it is evident that he must pay the remainder to the daughter. If a divorce should take place, the daughter could legally demand the execution of the trust, so that the right of action under the stipulation would be assigned to her, since it was not probable that the father intended the stipulation to be interposed in order that his daughter should remain without a dowry after the first marriage. If, however, she should marry subsequently, the security furnished by her brother will not extend to the second marriage. 10A father requested his daughter to surrender, at the time of her death, certain real property to any one of her children whom she might select, and she, during her lifetime, gave the said land to one of her children. This was not considered a choice, in accordance with the terms of the trust, because while the date of the latter was uncertain, the date of the donation was certain, for the disposal of the property without regard to the choice of the mother could be made in favor of one of the children, who, together with the others, would be entitled to the benefit of the trust. 11“I charge my heirs not to alienate the Tusculan Estate, nor permit it to pass out of my family.” Those also must be understood to be called to the execution of this trust, under the terms of the will, to whom foreign heirs should have granted freedom under the said trust. 12“I charge you, my wife, to give and restore to my daughter at the time of your death, any of my property which may have come into your hands in any way whatsoever.” Whatever the testator afterwards gave to his wife by a codicil will be included in the trust, for the order in which the two instruments were executed does not interfere with the law, and his intention; but if the wife’s dowry had been previously left to her, she will have the right to retain it, since this disposition of the property is understood to be restored rather than donated. 13“I desire such-and-such land to be given to my freedmen, and if any of them should die without issue, I desire that their shares shall belong to the survivors.” A testator having enfranchised a father and a son, it was held that the substitution was excluded under the will. 14Where a curator was charged by a minor to render an account of his administration to his brother, who would be his heir, this was held to be of no effect. Therefore, although it was provided by the will that payment should only be made to the said brother when he became of age, it was, nevertheless, held that the latter could bring an action against his brother with the consent of his curator, as it was presumed that his interest had rather been considered by the testator, than that the payment of the money, which could be legally collected, should be postponed. 15Where a testator, having appointed a stranger his heir by the terms of the trust, charged him to transfer certain lands to his freedman when he died, and requested that the said lands should not be disposed of out of the family, I answered that the substitute was required to deliver said lands in compliance with the will of the deceased. Whether, however, the lands should be delivered immediately, or when the condition was fulfilled, is a question which depends upon the intention of the testator; but, so far as this can be ascertained, the trust could not be executed before the death of the appointed heir. 16Where the business of a bank has been made the subject of a trust, and the indemnity of the heirs of the estate against the creditors has been secured by a bond, the transaction is similar to a sale, and therefore it will not be necessary to inquire whether the liabilities are greater than the assets. 17A father, by the terms of a trust, provided that certain slaves of his daughter, whom he had given to her at the time of her marriage, should belong to her. I gave it as my opinion that the offspring of said slaves, even though their mother had died before the will was executed, should be delivered under the trust, and that the same thing should be done where any donations had previously been made to his daughter after her marriage. 18Where heirs are charged to surrender the estate at the time of their death, they are not liable to the risk of loss of any claims which they have obtained by division, and which have been assigned to the different co-heirs, any more than to the diminution in value of lands belonging to the estate, for where a distribution is made, the change of property disturbs the community of interest. 19“I desire that my daughter may have for herself, as a preferred legacy, the property of her mother.” Any profits which the father may have received, in the meantime, and did not keep separate, but either consumed or made a portion of his own estate, are not held to have been left to the daughter. 20“I desire that any property belonging to me and situated in Pamphilia, Lycia, or anywhere else, which belonged to my mother’s estate, shall be given to my dear brothers, who are your maternal uncles, in order that you may have no controversy with them.” All the property forming part of his mother’s estate, which remained in the same condition of ownership, belonged to the trust. Therefore, any money derived from said property, included in the estate of the testator, and made his own property, will also not be due under the terms of the trust; as the testator intended to prevent that disagreement of his relatives which community of property is accustomed to provoke. 21A father, having appointed several of his children his heirs at the time of his death, gave to his oldest daughter his keys and ring for safe-keeping, and ordered a freedman who was present to deliver to his said daughter all the property which was in his charge. It was understood that the “business of the estate was to be transacted by all his children in common, and that his daughter could not, on this account, demand in court any preference in the division of the property. 22When a will is found to be imperfect, any words bequeathing a legacy or a trust, and which precede or follow the defect, can only be considered as remedying it, where what is written agrees with the intention of the testator. 23A son appointed his mother his heir, and requested her, under the obligation of an oath, to execute certain trusts created by the will. The will having been declared void, I answered that the mother was, nevertheless, compelled to execute the trust, as the lawful heir, for the requests contained in the will are held to extend to every kind of succession. 24“Being solicitous for the welfare of my daughter, I direct her not to make a will until she has children, so that she will be able to live without any apprehension.” It would appear that the estate was not left in trust for the sister and co-heir of the said daughter, for the reason that the testator did not intend that his daughter should not dispose of her estate by will, but as he had, by thus forbidding her to make a will, merely offered his advice, she should not make use of her legal right. 25“I ask you, my daughter, to distribute all your property of every kind among your children, according as each one may be deserving of your bounty.” In this case, it seems that a trust has been created for the benefit of all the children, even though they may not have been equally deserving, and if the mother should not make any choice among them, it will be sufficient for the execution of the trust if they have not been guilty of any offense towards her. I, however, was of the opinion that those should be preferred whom the mother might select, if they were more deserving. But if she should not select any, those alone who have offended her should not be admitted to share in the estate. 26A mother made a deposit, in a sacred place, of a letter donating certain lands to her son, he not being aware of the fact. She did not confirm her acts by words creating a trust, but only sent to the guardian of the temple a letter containing the following: “I wish the document containing my will to be delivered to my son, after my death.” The mother died intestate, leaving several heirs, and I gave it as my opinion that she should be understood to have left the trust for the benefit of her son; for it is not necessary to inquire to whom anyone may speak with reference to their last will, but toward whom the intention of the will is directed. 27A testator left a tract of land to his freedmen, and requested them not to alienate it, so that it might be retained in the family of the said freedmen. If all of them, with the exception of one, should sell their shares, the one who did not do so can claim the shares of all the others who by the terms of the trust were not granted the power of alienating the same; for the testator will be held to have only invited those who complied with his will to share in the benefits of the trust. Otherwise, it would be the height of absurdity if each could make a claim against the others, in such a way that anyone could demand the share which he alienated from another who, by alienating his own, had lost it. This proceeding, however, can be instituted if all of them alienated their shares in the same manner. Moreover, it is understood that it is not the act of the first freedman who alienated his share, but that of the one immediately preceding him who did not dispose of his, which causes the accrual of the shares of the others to the advantage of the former. But if no one should sell his share, and the last one should die without issue, the right to demand the execution of the trust will not survive. 28Where land is left to freedmen under such circumstances, and there is a freedwoman among them, and the patron requests that the property shall not go out of the family, it was held that the heir of the freedwoman is entitled to retain the share of the land which his mother received. 29A person who thought that his entire estate would belong to his female cousin made a will by which he charged her with several trusts. The possession of the estate having devolved upon two heirs of the same degree, by the right of succession, in accordance with the principles of equity, and agreeably to the terms of the Perpetual Edict, I gave it as my opinion that the woman should be relieved from the execution of half the trust, but that it would be a hardship that the grants of freedom which she was required to bestow, should not be made on account of the loss she had sustained. 30A father who had appointed his son heir to half of his estate, and the sisters of the latter, who had not yet reached the age of puberty, each heir to a quarter of the same, appointed their brother their guardian, and expressed himself as follows: “My son, you must be content with two hundred aurei, instead of your share of half of the estate, and you, my daughter, must be content with a hundred aurei instead of your shares of a quarter each.” It was not held that the father intended to charge his children with a trust in favor of one another, but that he had merely made an estimate of his estate, as is ordinarily done by prudent parents; and, on that account, the brother could not, in a bona fide action on guardianship, avoid giving an account of his administration of the estate, on the ground that the amount which his sisters were to receive had been indicated. 31Mævius, having been appointed heir of Seius, and asked by him at his death to transfer the estate to his brother Titius, died, leaving the said Titius his heir, and charged him, at the time of his decease, to leave not only his own estate but that of Seius, also, to Sempronius. Titius having, in the meantime, obtained the profits of the property, I rendered the opinion that it could not be held that a trust had not been created if Titius should claim that he did not hold the estate as a donation but rather in payment of a debt, since by reason of the compensation for the profits which he had received he had done all that was required of him. It is clear that if Mævius had appointed Titius his heir, under the condition that he would not retain the trust under the will of Seius, the Falcidian portion would be sufficient by way of compensation; but some injustice would be done. He, however, would act more prudently if he rejected the estate left to him by his brother, and then obtained possession of the same on the ground of intestacy, for it would not be held that he had acted in bad faith, as he would thus avoid being defrauded. 32“I ask you, my husband, to leave such-and-such land to your children, if you should have any; and if you should not have any, to either your, or my relatives, or even to our freedmen.” In this instance, I gave it as my opinion that no right of choice was granted, but only a certain order was arranged, by the terms of the will, for the substitution of heirs. 33It has been established that where certain tracts of land, which have their own boundaries, are left to a city, they will, none the less, be due under the terms of the trust, because the testator, having been prevented by death, did not by means of another instrument, as he promised he would do, establish the boundaries of said property, as well as those of a race-course where he wished races to be held every year.

78The Same, Opinions, Book IX. The beneficiary of a trust will in vain demand its entire execution, where the heir opposes it on the ground that the Falcidian Law applies. If the said beneficiary, in the meantime, demands that his share be paid to him, and he does not receive it, the heir is understood to be in default. 1Our Illustrious Emperor, Severus Augustus, decreed that the sale of land belonging to the State should be rescinded after the death of the purchaser, and the price repaid to his heirs out of money belonging to the legatee to whom the purchaser had bequeathed some land which formed part of that above mentioned. I gave it as my opinion that the presumption was that the intention of the testator required that a part of the purchase-money should be paid to the legatee in proportion to the amount of the appraisement of said land. 2Moreover, a state is required to pay interest where it is in default in the execution of a trust, but if any damage has resulted on this account, it must be made good by those officials who have neglected to perform this duty after judgment has been rendered. Nor will anything be allowed for the expenses of litigation, if there was no reason for it, as those who allege ignorance should not be heard. 3A father, by the terms of a trust, forbade a certain tract of land to be alienated by his family of children. The last of the said children who could demand the execution of the trust is none the less understood to have left this right of action as a part of his estate, even if, dying without children, he left a stranger his heir. 4Where a creditor by the right of pledge sells a house received from his debtor who made a will creating a trust, judgment cannot be rendered against the purchaser on account of the trust, even though he was aware of the intention of the deceased.

79The Same, Opinions, Book XI. A woman charged with a trust in favor of the freedmen of her husband, at the time of her death left the enjoyment of the said land, not only to the freedmen of her husband, but also to her own. The latter, through ignorance of the law, having failed to claim the land to which they were entitled by the will of the husband, obtained the profits of the same with the others for a long time, in accordance with the terms of the trust. It was established that they should not, on this account, be held to have been deprived of the benefit of the first trust.

80Ad Dig. 31,80Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 17.The Same, Definitions, Book I. A legacy transfers the ownership of the property bequeathed, just as inheritance vests in the heir the ownership of each individual article included in it, the result of which is, that if the property is bequeathed absolutely, and the legatee does not reject the will of the deceased, the ownership of the property belonging to the estate passes directly to the legatee, without having become the property of the heir.

81Paulus, Questions, Book IX. Where anyone, having made a will by which he appointed his children his heirs, charged them with a trust, not as his lawful heirs, but as those whom he had appointed, and the will, for some reason, becomes void, his children cannot be compelled to execute the trusts under the same, if they should obtain the estate as heirs at law.

82The Same, Questions, Book X. A debtor bequeathed ten aurei to his creditor, which he owed him after the expiration of a year, and which were secured by pledge. The amount is not due (as some authorities hold) under the will, when payment is made before maturity merely as a convenience, but suit can be brought for the entire ten aurei; nor will the right of action be barred if, in the meantime, the year has elapsed, for it will be sufficient for the day when the legacy is due to arrive. Where, however, the year has passed during the lifetime of the testator, it must be said that the legacy will become void, although it was valid in the beginning. Hence, in the case where a dowry is left as a preferred legacy, it was decided that the entire dowry could be recovered under the will; otherwise, in accordance with the above opinion, if only an intermediate benefit attaches to the bequest, what shall we say where a certain tract of land, due at a certain time, was bequeathed? In this instance the money cannot be claimed, nor can a part of the land be easily found which can be claimed as a benefit. 1Where a first, second, and third heir are appointed, and legacies are bequeathed as follows: “If my first heir should not obtain my estate, let my second heir pay ten aurei to Titius; if my second heir should not obtain it, let my first heir deliver the Tusculan Estate to Seius,” and both the first and second heirs should decline to accept the estate, the question arises to whom the substitutes appointed for them by the testator should be required to pay the legacies. The legacies will be due from both substitutes. 2Valens says that the property of a master can be legally bequeathed to a slave of another, just as a debt can be which he owed unconditionally to his master. For when we give anything by will to a slave belonging to another, the person of his master is only considered with reference to his testamentary capacity, but the legacy is valid so far as the person of the slave is concerned. Therefore, Julianus most properly lays down the rule that a legacy can only be bequeathed to the slave of another which he himself could hold if he became free. The observation that a bequest could be left to the slave as long as he remained in servitude would be improperly made, as a legacy of this kind derives its force and effect from the person of the slave; otherwise, we all might remark that there are certain slaves who, although they cannot obtain their freedom, can, nevertheless, acquire legacies and estates from their masters. In accordance with the principle, which we have mentioned, namely, that in the case of wills the person of the slave must be considered, it has been decided that a legacy can be bequeathed to a slave forming part of the estate. It is not extraordinary that the property of a master, and what is owing to him, can be absolutely bequeathed to a slave, although such property cannot be legally bequeathed to his master.

83The Same, Questions, Book XI. Latinus Largus: The following case recently occurred. A freedman appointed his patron heir to half of his estate, and his daughter to the other half. He charged his daughter to transfer her share to certain female slaves belonging to his patron, as soon as they should be manumitted; and if the said daughter should not become his heir, he substituted for her the same female slaves. As the daughter declined to become her father’s heir, the said female slaves, by order of their master, that is to say of the patron, entered upon the estate of the deceased. The slaves, having been manumitted by their master after a certain time, inquired whether they could demand the execution of the trust by their patron. Hence, I ask you to write to me what your opinion is on this point. I answered that, in this case, the trust did not seem to be repeated, but that one thing or the other, that is to say, either the trust or the estate itself had been granted by the testator. It is, however, under these circumstances better to hold that, the slaves being substituted, and entitled to the trust, were therefore called to the substitution. For when a trust is created to be executed by one of the heirs of a testator, in favor of the slave of another, subject to the condition of his obtaining his freedom, and the same slave is substituted for the said heir; although the substitution may be absolute, this is still considered to have been done subject to the same condition under which he was entitled to the trust.

84The Same, Questions, Book XXI. Where anyone leaves freedom to his slave by the terms of a trust, and bequeaths him something else, as well, certain authorities say that, because it has been decided that the slave should be manumitted by the heir, the result will be that he cannot be permitted to profit by the trust. This, however, is unjust, for, with reference to a person of this kind, the delivery of both the grant of freedom and the money can be demanded at the same time, and therefore, I think that if the heir should be in default in granting freedom to the slave, he should also be considered in default, so far as the execution of the trust is concerned, and hence he will be subjected to the payment of interest; for it has been most justly held that everything which a slave may have acquired for his master, while the latter was in default in granting him freedom, should be restored to him.

85The Same, Opinions, Book IV. A creditor, to whom property given in pledge by a debtor is bequeathed, is not prevented from demanding the money loaned, if the intention of the testator is clearly shown not to have been to compensate him for the debt by means of the legacy.

86The Same, Opinions, Book XIII. “Let my great-grandson, Gaius Seius, be heir to half of my property, with the exception of my house, and that of my father, in which I live, with everything contained therein. Let it be known that all these things do not constitute part of the estate which I give to him.” I ask, if there should be in said houses any silver plate, notes of debtors, furniture, or slaves, whether all this property found there shall belong to the other heirs who have been appointed. Paulus answered that the notes of debtors are not included, and that they will belong to all the heirs in common; but, so far as the other property is concerned, the grandson will have no claim to the same. 1Titius, at the time that he left certain lands and other property in a city to his nephew, devised among others the Seian Estate, which he, as head of the household, reserved entirely for himself, as long as he might live; but, in order the more easily to find a tenant, he divided said Estate into two parts, and designated one the Upper Seian Estate, and the other the Lower Seian Estate, which names were derived from the respective situations of the same. I ask whether this entire Estate will belong to his nephew. Paulus answered that if the testator possessed the whole Estate under one name, then, even though he rented it after having divided it, all must be delivered under the terms of the trust; unless the heir can clearly prove that the testator had in mind only a portion of said Estate.

87The Same, Opinions, Book XIV. Titia desired that a ticket calling for grain should be bought of Seius within thirty days after her death. I ask if Seius should obtain possession of the said ticket for a valuable consideration, during the lifetime of the testatrix, as he could not demand what he already had, whether he would still retain his right of action. Paulus answered that the price of the ticket should be paid to the party concerning whom the inquiry is made, since a trust of this kind has reference to a certain quantity, rather than to the article itself. 1Ad Dig. 31,87,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 278, Note 11.I gave it as my opinion that the interest due under a trust should be paid to the girl who was the beneficiary of the same, after she has attained her twenty-fifth year, where the heir is in default in executing said trust. For, although it has been decided that interest in every instance must be paid to minors under the age of twenty-five years, still, this does not apply to cases where the debtor is in default, for it is sufficient for him to have been in default only once, in order to render the interest payable for the entire time. 2Seia devised a tract of land to her freedmen, and charged them as follows: “I direct Verus and Sapidus not to sell this land, and whichever of them may die last, at the time of his death, to deliver it to Symphorus, my freedman, and successor, and to Beryllus and Sapidus, whom I have manumitted by this my will, or to whichever of them may be living at the time.” I ask, as she did not substitute the two freedmen in the first part of the will by which she left the property, and as, in the second part of the will she added the clause, “Whichever of them may die last,” whether the share of one of the parties who may die will belong to the other. Paulus answered that the testatrix seems to have created two degrees of substitution under the trust in question; first where the party who dies first must deliver his share to the other; and second, where the survivor must deliver it to those whom the testatrix expressly mentioned afterwards. 3Ad Dig. 31,87,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 586, Note 13.The Emperor Alexander Augustus to Claudius Julianus, Prefect of the City. “If it should be evident to you, my dear friend Julianus, that the grandmother referred to intended, by making donations to her grandson out of her estate, to prevent her will from being broken on the ground of inofficiousness, reason demands that half of said donations should be annulled.” 4Lucius Titius, who had five children, emancipated all of them, and gave his only son Gaius Seius a large amount of property in donations, reserving very little for himself, and appointed all his children, together with his wife, his heirs. By the same will he left to the said Gaius Seius, as a preferred legacy, two pieces of property which he had reserved, and charged him to give to his daughter Mævia a certain number of aurei, and also a certain amount to a brother of hers, to be taken out of the income of the land which he had transferred to her during his lifetime. Gaius Seius, having been sued by his sister Mævia, invoked the aid of the Falcidian Law. I ask, since the Most Holy Emperor (as above stated) decided that where property had been donated against the will of the donor the gift should be annulled, whether Gaius Seius can, in compliance with the will of his father, be compelled to pay to his sister, his heir, the amount of the trust out of the donations which had been made to him? Paulus answered that, according to the Rescript of the Emperor, there can be no doubt that, in a case of the kind concerning which inquiry is made, relief should be granted to the children whose shares have been diminished on account of the donations made to the son; especially since the Emperor came to their assistance against the will of their father. In the case stated, however, the will of the father intervenes in favor of those who claim the benefit of the trust. But where the Falcidian Law applies, the trust must be executed to its full extent, on account of the excessive amount of the donation.

88Scævola, Opinions, Book III. Lucius Titius provided by his will as follows: “Where I have given anything to any one of my children, whether I made him a present of it, or merely permitted him to use it, or where he has acquired any property for himself, whether it has been given to him or bequeathed to him, I desire that he may take and hold the same as a preferred legacy.” The father had kept, in the name of one of his sons, an account book of debts, and it was afterwards decided and held that what remained in said book in the name of his son was due to the latter; but not what had been already collected and placed by his father among the assets of his estate. I ask whether the claims of the son which his father had collected before his will was made, and which, after it had been made, he still loaned in the name of his son, would belong to the latter, according to this decision. I answered that any sum which the father had collected in the name of his son, and had afterwards invested in the same way, would belong to him. 1“I request you, Titius, and I charge you to attend to my funeral, and to this end I take so many aurei from the funds of my estate.” I ask, if Lucius Titius should use less than ten aurei for the purpose aforesaid, whether the balance of the sum will belong to the heirs. I answered that, according to the case stated, the heirs would profit by the remainder. 2Where a woman became the heir of her husband, and made the following provision in her will: “My dearest children, Mævius and Sempronius, take as a preferred legacy everything which came into my hands from the estate and property of my lord, your father, Titius, at the time of his death; provided, however, that you assume all the burdens of said estate, for the past as for the future, as well as those for which it may have become liable after the death of my lord, Titius.” I ask if she paid anything after the death of her husband, and made a donation to anyone while she was enjoying the profits of the estate, whether the children will be liable for such obligations. I answered that, in accordance with the case stated, only those obligations which remained unsatisfied could be imposed upon the legatees. 3“I direct whomever shall be my heir, or heirs, to see that Lucius Eutycus receives, in addition to the share which I have given him as heir out of the assets of my estate, in common with Pamphilus, whom I order to be free, all the implements for the manufacture of iron, in order that they may carry on the business.” Lucius Eutycus died during the lifetime of the testatrix, and his share of the estate passed to his co-heir. I ask whether Pamphilus, who was manumitted by the same will, can be permitted to demand half of the said implements for the manufacture of iron, although it cannot be carried on according to the will of the testatrix. I answered that he should be allowed to do so. 4Sempronia was substituted for an appointed heir, and, in case she should not be the heir, was to receive a legacy. She instituted proceedings against the heir, alleging that through his fraudulent conduct, the testatrix who, in the first place, had intended to make her her heir, had been prevented from changing her will, and lost her case. I ask whether she could still bring an action to recover her legacy. The answer was that, in accordance with the facts stated, she had a right to do so. 5A testator forbade the legacies which he bequeathed to be either claimed or paid before the expiration of five years; the heir, however, voluntarily paid a certain part of a legacy before the five years had elapsed. The question arose whether the heir, having paid the remainder of the legacy, could claim the benefit resulting from the payment of a portion of said legacy before the time prescribed. I answered that, because a portion of the legacy was paid before the designated time, a smaller sum could not be held to have been bequeathed. 6Lucius Titius made the following provision in his will: “I desire my small tract of land to be given to my male and female enfranchised slaves, both to those whom I have manumitted by this will, and to Seia, my foster-daughter, in order that it may not pass out of the hands of my family, until the ownership of the same shall vest in one person.” I ask whether Seia will be entitled to a share in common with the freedmen, or whether she will have a right to claim for herself alone half of said tract of land. I answered that it was evidently the intention of the testator that all the persons mentioned should be entitled to equal shares of the estate. 7A testator appointed as his heir his son, who had not yet attained the age of puberty, and he bequeathed his wife her dowry as a privileged legacy, together with a number of jewels and slaves, and ten aurei; and, in case the minor child should die without reaching the age of puberty, he appointed certain substitutes for him, to whom he made the following bequest: “I desire that all of what I have disposed of by my first will, and as much more, shall be given to the heirs of my heir.” The question arose whether the amount of the dowry would be payable a second time, under such a substitution, if the child should die before attaining puberty. I answered that it does not appear that the testator intended to double the legacy of the dowry. I also ask, in case the property composing the legacy should already have come into the hands of the woman for a valuable consideration, whether she could demand it from the substitutes. I answered that she could not do so. 8“I do give and bequeath to my fellow-citizens the note executed in my favor by Gaius Seius.” The testator subsequently made a codicil in which he forbade the note to be collected from Seius, and charged his heir to pay the same sum to the City out of the debt due from another party, whom he mentioned in the codicil. The question arose, if the latter should not prove to be solvent, whether the heirs would be required to pay the entire amount themselves. I answered that the heirs would only be compelled to transfer to the City their rights of action against the debtor who, in accordance with the facts stated, had been mentioned in the codicil. 9A testator appointed an heir to his entire estate, substituted his grandson for him, and then provided as follows: “If, as I hope may not happen, neither my daughter, nor my grandson should become my heirs, I then desire that my share, that is half of such-and-such a tract of land, shall belong to my freedmen.” The question arises, if the daughter and the grandson should die before the testator, and his estate should pass to his great grandson on the ground of intestacy, whether the freedmen would be entitled to the benefit of the trust. I answered that, in accordance with the facts stated, if no other heir than the daughter and grandson should be appointed, or substituted, it appeared that the heirs-at-law would be required to execute the trust. 10“Let my heir, whoever he may be, know that three denarii are due from me to my paternal uncle Denetrius, and that three denarii have been deposited with me by Seleucus, another uncle, which I direct shall be immediately delivered and paid to them.” The question arose whether the uncles would be entitled to an action, if the money should not be due. I answered that it should not be due, that no action would lie on account of the debt, but that one could be brought on account of the trust. 11Lucius Titius, two years before his death, sent away from his house his freedmen, Damas and Pamphilus, and ceased to furnish them with food as he had formerly done, and, afterwards, having made his will, he inserted into it the following legacy: “Let my heir, whoever he may be, give to my freedman whom I have manumitted by this will, as well as to those whom I formerly had, and to such as I have bestowed freedom upon under a trust, a certain sum of money for their support every month.” The question arose whether Damas and Pamphilus were entitled to the benefit of the trust. I answered that, in accordance with the facts stated, they were entitled to it, if those who made the claim should clearly prove that it was the intention of the patron, at the time when he made his will, that the legacy should also be given to them; otherwise, nothing would be due to them. 12A testatrix gave to Damas and Pamphilus, whom she manumitted by her will, a certain tract of land, and charged them to transfer the same to their children, when they died. She charged her heirs by the same will to manumit Pamphila who was the natural daughter of Pamphilus. This same Pamphilus, after the time that the legacy vested in him, appointed Mævius his heir by will, and charged him to give his property to Pamphila, his daughter, as soon as she became free, that is to say, half of the land above mentioned, acquired by the will of her patroness, and which constituted his entire estate. I ask whether Pamphila, having been manumitted, could claim this share of the estate by virtue of the will of the patroness of her father, or, indeed, by that of her natural father, and whether on account of the trust, the provision of the Falcidian Law will apply. I answered that, in accordance with the facts stated, it should be held that Pamphila could only claim the execution of the trust by virtue of the first will. Claudius: For the reason that it is believed that under the appellation of “children,” natural children are also included, that is to say, such as are born in slavery. 13Scævola: A certain person bequeathed a hundred aurei to Gaius Seius by a codicil, and charged him to give that sum to a certain female slave belonging to him, the testator. I ask whether the trust, by which the legatee is ordered to make payment to a female slave of the testator, is valid. I answered that it was not. Again, if it is not valid, will the legatee be obliged to pay the heir to whom the said female slave belongs? I answered that he would not be obliged to do so, as he himself would have no right to bring suit to collect the legacy bequeathed to him. 14A certain man left a house to his freedmen of both sexes, in such a way that the males receive two-thirds and the females one-third of the rent of the same; and he forbade them to alienate the property. The house, however, was sold by the heir with the consent of all the parties interested. I ask whether the males will be entitled to two-thirds of the purchase-money of the said house, and the females to one-third, or not. I answered that no demand, under the trust, could be made for any part of the price of the house, unless the parties had consented at the time of the sale that the male freedmen should have two-thirds of the purchase-money, and the females one-third of the same. 15Having appointed his son his heir, along with his grandson, who had been born to said son, a testator made the following provisions in his will: “I do not wish my house to be sold by my heirs, nor any money to be borrowed on it, but that it shall remain permanently and absolutely, for all time, in the possession of my sons and grandsons. If, however, any one of them should desire to alienate his share, or to borrow money on it, he shall have the power to sell to his co-heir, and to borrow the money from him. But if any one of them should do otherwise, any obligation which he may incur shall be null and void.” A son of the deceased afterwards borrowed money from Flavia Dionysia, and having rented the house to her, assigned to his creditor the rent due to him; and the question arose whether the condition of the will was held to have been fulfilled, so that the son would be liable to his brothers under the terms of the trust. I answered that, in accordance with the facts stated, the condition was not fulfilled. 16A testator, having appointed his mother and his wife his heirs, inserted the following provision into his will: “I request you, my dear wife, not to bequeath anything at your death to your brothers; you have your sister’s children to whom you can leave your property, for you know that one of your brothers killed our son, while he was robbing him, and your other brother caused me great injury.” I ask, as the wife died intestate, and her estate passed to her brother as her heir-at-law, whether the sister’s sons could demand the execution of the trust. I answered that they could do so, and that the trust was due. 17“I, Lucius Titius, have drawn up this, my last will and testament, without the aid of anyone learned in the law, rather having chosen to follow the inclinations of my mind, than to conform to an over-particular and excessive exactitude. Therefore, if I have included herein anything which does not conform to the prescribed legal requirements, or is indicative of a want of knowledge, the will of a man of sound mind should still be considered valid in law.” He then appointed his heirs. The question arose when possession of his estate was claimed on the ground of intestacy, whether the dispositions made under the trust could be enforced. I answered that, in accordance with the facts stated, they could be.

89The Same, Opinions, Book IV. A certain man appointed his son and his wife his heirs by his will, and afterwards is said to have written a letter, by which he gave to his son all the property the latter had in his peculium; and added that he desired that the latter should have this property as a preferred legacy, to be disposed of at his pleasure, at his death. The testator set forth in his will that any paper found sealed after his death would be valid as a codicil; the above-mentioned letter, however, was not sealed, and I ask whether its contents would benefit the son. I answered that if the genuineness of the letter was clearly established, any property which the testator stated therein he intended should be given to his son, the latter would be entitled to. 1A testator who owned property jointly with his brother appointed his daughters his heirs, and made the following provision in his will: “With reference to all my property which is owned in common with you, my brother, and your uncle, and of which the value may altogether amount to two thousand aurei, I ask that you receive therefrom the sum of a thousand aurei from your uncle Lucretius Pacatus, in lieu of your share.” The testator survived this will five years, and left a greatly increased estate. The question arose whether the heirs of Lucretius Pacatus could, in compliance with the terms above quoted, by tendering the sum of a thousand aurei, obtain the execution of the trust. I answered that, according to the facts stated, it was not the intention of the testator that his entire estate should be given up on the payment of a thousand aurei, but that the tender should be made in accordance with its appraised value at the time of the testator’s death. 2A testator made a bequest to Seius, whom he had substituted for his heir, as follows: “I wish fifteen pounds of silver to be given to Seius, and his wife Marcella, if he should not be my heir.” I ask whether if Seius should be his heir, Marcella would be entitled to half of this bequest. I answered that, according to the facts stated, she would be entitled to it. 3Lucius Titius, having died intestate, left a wife and a daughter by her, who had been emancipated, and inserted the following provision into his codicil: “This codicil had reference to my wife and daughter. In the first place, I request them to live together, as they did during my lifetime. I also request them to hold in common any property which I may leave to them, or whatever they may have otherwise obtained.” The daughter acquired possession of the estate of her father, on the ground of intestacy; and the question arises whether any portion of the estate of Lucius Titius is due to her mother from the daughter by the terms of the trust, and if so, how much. I answered that, in accordance with the facts stated, half of the estate is due to her, provided the mother was ready to place all her own property in the common fund. 4A testator appointed his four children his heirs to equal shares of his estate, and left a tract of land to each of them as a preferred legacy. The entire estate of the father being encumbered, the children borrowed money with which to pay the first creditor, and encumbered the same property to the second one; then the latter, as the debt was not paid, sold all the land to one of the heirs under his right of hypothecation. The question arises, as the son had possession of this property by the title of purchase, whether his brothers and co-heirs were entitled to demand the execution of the trust; or whether the trust was annulled, as the entire property held in common had been hypothecated by them to the second creditor. I answered that the personal action to which the heirs were entitled could still be brought by all of them, but that the trust could not be restored unless the heir who purchased the property should first be paid the debt by his co-heirs. 5A father charged his daughter with a trust as follows: “I ask you, my daughter, after my death to change the dotal security, and renew it in such a way that your brothers may agree that your dowry may be returned to you on condition that, if you should die without having one or more children during your marriage, your dowry shall go to them.” The husband died after the death of the father, and before the dotal bond had been renewed, and the girl, having married a second time, died, leaving no children, and was survived by Titius, one of her brothers. The question arose whether Titius had a right to claim the property which was included in the dowry. I answered that the execution of the trust could be demanded by the heirs of the sister, if it was her fault that her brother did not make the agreement with reference to the dowry. 6A testatrix who had appointed her son and daughter her heirs, bequeathed legacies to her freedmen, and charged them with a trust as follows: “As I have bequeathed you certain property I ask you to be content with it, during your lives, and when you die, to deliver it to my children.” Mævia, the daughter of the testatrix, having died, a freedman also died, after having appointed a son of his patroness his heir to that portion of his estate to which he was entitled by law, and the remaining portion he left to a stranger. The question arose whether, after the estate had been entered upon, the son of the patroness could demand from his co-heir the share of the property which, according to the will of the mother, had come into the hands of the said freedman. I answered that he could demand from his co-heir the same share to which he would have been entitled if the estate had not been entered upon. 7A husband appointed his wife heir to his entire estate, and directed that a codicil, which he had executed, should not be opened until after her death. She, considering a certain tract of land which formed part of the estate unproductive, sold it. The purchaser asks whether, after the death of the woman, the legality of the sale can be called in question by parties to whom it was ascertained that the estate of the testator had been left in trust by the terms of the codicil; or whether the beneficiaries of the trust would only be entitled to the amount of the price received for the land. I answered that on account of the justifiable ignorance of the woman, as well as of that displayed by the purchaser, the land should remain in possession of the latter, and the heir of the woman should be required to pay the price obtained for it to the beneficiary of the trust.