De usu et usu fructu et reditu et habitatione et operis per legatum vel fideicommissum datis
(Concerning Use, Usufruct, Income, Lodging, and Services Left by Legacies or Trusts.)
1 Paulus libro tertio ad Sabinum. Nec usus nec usus fructus itineris actus viae [ed. maior aquaeductus] <ed. minor aequaeductus> legari potest, quia servitus servitutis esse non potest: nec erit utile ex senatus consulto, quo cavetur, ut omnium quae in bonis sint usus fructus legari possit, quia id neque ex bonis neque extra bona sit. sed incerti actio erit cum herede, ut legatario, quamdiu vixerit, eundi agendi ducendi facultatem praestet aut ea servitus constituatur sub hac cautione, ut, si decesserit legatarius vel capite deminutus ex magna causa fuerit, restituatur.
1 Paulus, On Sabinus, Book III. Neither the use nor the usufruct of the right to traverse a path, a drive-way or a road, or to convey water by means of an aqueduct, can be left by will, because the servitude of a servitude cannot exist. Nor can such a bequest be rendered legal under the Decree of the Senate by which it is provided that the usufruct of everything included in property may be bequeathed, for the reason that this is neither included in property or excluded from it, but an action for an indeterminate amount will lie against the heir, and in favor of the legatee, as long as he lives, in order to compel the former to permit him to walk, ride, or drive through the property or the servitude may be granted, if security is furnished to return it in case the legatee should die, or forfeit his civil rights for some serious offence.
2 Papinianus libro septimo decimo quaestionum. Hominis operae legatae capitis deminutione vel non utendo non amittuntur. et quoniam ex operis mercedem percipere legatarius potest, etiam operas eius ipse locare poterit, quas si prohibeat heres capi, tenebitur. idem est et si servus se locaverit. et quia legatarius fructuarius non est, ad heredem suum operarum legatum transmittit: sed servo usu capto legatum perit.
2 Papinianus, Questions, Book XVII. Where the services of a slave are bequeathed, they are not lost by forfeiture of civil rights, or by non-user; and, as the legatee can profit by the labors of the slave, he can also lease them. If the heir should prevent him from making use of his services, he will be liable. The same rule applies where the slave leases himself. And, for the reason that the legatee is not considered an usufructuary, he will transmit the legacy of the slave’s services to his heir, but where the title to the slave is obtained by usucaption the legacy will be extinguished.
3 Paulus libro tertio ad Sabinum. Hominis quoque liberi operae legari possunt, sicut locari et in stipulationem deduci.
3 Paulus, On Sabinus, Book III. The services of a freeman can also be bequeathed, just as he can be hired under a contract, or be made the subject of a stipulation.
4 Ulpianus libro octavo decimo ad Sabinum. Si pure proprietas legata erit, ea ad legatarium perveniet, quamvis fructuarius heres sit institutus.
4 Ulpianus, On Sabinus, Book XVIII. Where the ownership of land is left absolutely, it will pass to the legatee, even though the usufructuary may be appointed heir.
5 Paulus libro tertio ad Sabinum. Usum fructum ‘cum moriar’ inutiliter stipulor: idem est in legato, quia et constitutus usus fructus morte intercidere solet.
5 Paulus, On Sabinus, Book XVIII. If I promise the enjoyment of an usufruct “at the time of my death,” the disposition will be void; and the same rule applies to a legacy, for when an usufruct is created, it is usual for it to be extinguished by death.
6 Pomponius libro quinto decimo ad Sabinum. Si usus fructus mihi in biennium continuum a morte testatoris legatus sit et per heredem steterit, quo minus eum mihi daret, praeterito biennio nihilo minus tenetur (quemadmodum teneretur, si res legata in rerum natura esse desisset, quam quis deberet, moratusque esset in ea danda), ut peti quidem iam usus fructus qui legatus sit non possit, quia alius futurus sit quam qui legatus fuerit, sed aestimatio eius bima dumtaxat facienda sit.
6 Pomponius, On Sabinus, Book XV. If an usufruct should be bequeathed to me to be enjoyed for two years after the death of the testator, and, I am prevented from enjoying it through the fault of the heir, he will still be liable after the two years have elapsed; just as anyone will be liable where property due under a legacy is destroyed, and he was in default in delivering the same. Hence this usufruct cannot be claimed, because it is different from the one which was bequeathed, but its value for two years should be computed, and paid to the usufructuary.
7 Ulpianus libro vicesimo sexto ad edictum. Operae testamento relictae quando cedere debeant, utrum ex quo petit eas legatarius an ex quo adita hereditas est? et cui pereant dies, quibus aeger servus fuit? et puto ex die petitionis eas cedere: quare si post petitas aeger esse servus coeperit, legatario peribunt.
7 Ulpianus, On the Edict, Book XXVI. Where services were left by will, when should they begin to be available, from the day when the legatee demands them, or from the time when the estate is entered upon? And who must bear the loss while the slave is ill? I think that the services are due from the time when they are demanded, and therefore if the slave should begin to be sick after that date, the loss must be borne by the legatee.
8 Gaius libro tertio de legatis ad edictum praetoris. Si usus fructus municipibus legatus erit, quaeritur, quousque in eo usu fructu tuendi sint: nam si quis eos perpetuo tuetur, nulla utilitas erit nudae proprietatis semper abscedente usu fructu. unde centum annos observandos esse constat, qui finis vitae longissimus esset.
8 Gaius, On the Edict of the Prætor Concerning Legacies, Book III. Where an usufruct is bequeathed to a municipality, the question arises how long it shall be entitled to the same, for if anyone should say that it was entitled to it in perpetuity, the mere ownership, if the usufruct should be perpetually separated from it, would be worthless; hence it is established that the municipality can hold it for a hundred years, which is the longest term of life.
9 Ulpianus libro octavo disputationum. Si ab eo, cui legatus esset usus fructus, fideicommissum fuerit relictum, licet usus fructus ad legatarium non pervenerit, heres tamen, penes quem usus fructus remanet, fideicommissum praestat. quod et in militis testamento erit dicendum, si legatarius, a quo fideicommissum relictum est, repudiaverit legatum vel vivo testatore decesserit.
9 Ulpianus, Disputations, Book VIII. If anyone to whom an usufruct has been bequeathed is charged with a trust, and the usufruct should not come into the hands of the legatee, the heir in whom the said usufruct remains, must execute the trust. This rule also applies to a military will, if the legatee charged with the trust should reject the legacy, or should die during the lifetime of the testator.
10 Iulianus libro septuagesimo octavo digestorum. Si Titio fundus et eiusdem fundi usus fructus legatus fuerit, erit in potestate eius, fundum an usum fructum vindicare malit. et si fundum elegerit, necessario plenam proprietatem habebit, licet usum fructum a se reppulerit: si vero usum fructum habere maluerit et proprietatem fundi reppulerit, solum usum fructum habebit.
10 Julianus, Digest, Book LXX. If a tract of land and the usufruct of the same should be left to Titius, he will have the right to claim either the land or the usufruct; and if he selects the land, he will necessarily be entitled to the full ownership of the same, even though he has rejected the usufruct. Where, however, he prefers to have the usufruct, and rejects the ownership of the land, he will only be entitled to the usufruct.
11 Idem libro primo ex Minicio. Habitationis legatum in singulos annos ab initio anni deberi constat.
11 The Same, On Minicius, Book I. It is established that the legacy of an annual lodging is due from the beginning of each year.
12 Alfenus Varus libro secundo digestorum a Paulo epitomatorum. Heres in fundo, cuius usus fructus legatus est, villam posuit: eam invito fructuario demolire non potest, nihilo magis quam si, quam arborem posuisset, ex fundo is evellere vellet: sed si antequam usufructuarius prohibuerit, demolierit, impune facturum.
12 Alfenus Verus, Epitomes of the Digest by Paulus, Book II. An heir built a country-house on land, the usufruct of which had been bequeathed. He cannot demolish the building without the consent of the usufructuary, any more than he can remove a tree from the land which he had planted there; but if he should demolish the house before the usufructuary forbids him, he can do so with impunity.
13 Paulus libro tertio decimo ad Plautium. Cum usus fructus alternis annis legatur, non unum, sed plura legata sunt. aliud est in servitute aquae et viae: viae enim servitus una est, quia natura sui habet intermissionem.
13 Paulus, On Plautius, Book XIII. Where an usufruct is left to be enjoyed for alternate years, not only one, but several legacies are bequeathed. The case is different, however, where a servitude to conduct water and use a right of way is left; for the servitude of a right of way is distinct, since by its nature it is subject to interruption.
14 Celsus libro octavo decimo digestorum. Duos separatim uti frui sinere damnatus heres communiter uti frui passus est: quaerebatur, an utrique ex testamento teneretur. dixi teneri, si testator utrumque solidum habere voluit: nam ipsius onus est, ut solidum singulis legatum praestaret: qua parte igitur alterum uti frui sineret heres, ea parte eum non sinere alterum uti frui, ideoque per aestimationem unicuique quod deest replere debet.
14 Celsus, Digest, Book XVIII. Where an heir was charged to permit two persons to separately enjoy the usufruct of a tract of land, and he suffered them to enjoy it in common, the question arose whether, under the terms of the will, he would be liable to both. I held that he would be liable, if the testator had intended that each should enjoy the entire usufruct individually; for, in this instance, he would be required to deliver the entire legacy to each one of them. Therefore, if the heir should permit one of the legatees to use part of the usufruct, he could not permit the other to use the same part. Hence, he would be compelled to give to each of them the appraised value of that of which he was deprived.
15 Marcellus libro tertio decimo digestorum. ‘Damnas esto heres Titium sinere in illa domo habitare, quoad vivet’: unum videtur esse legatum. 1Qui duos fundos habebat, unum legavit et alterius fundi usum fructum alii legavit: quaero, si fructuarius ad fundum aliunde viam non habeat quam per illum fundum qui legatus est, an fructuario servitus debeatur. respondit, quemadmodum, si in hereditate esset fundus, per quem fructuario potest praestari via, secundum voluntatem defuncti videtur id exigere ab herede, ita et in hac specie non aliter concedendum esse legatario fundum vindicare, nisi prius ius transeundi usufructuario praestet, ut haec forma in agris servetur, quae vivo testatore optinuerit, sive donec usus fructus permanet sive dum ad suam proprietatem redierit.
15 Marcellus, Digest, Book XIII. “Let my heir be charged to permit Titius to reside in such-and-such a house, as long as he lives.” This is held to be a single legacy. 1Where a testator had two tracts of land, and devised one of them, and then conveyed it to one person and the usufruct of it to another, I ask, if the usufructuary did not have access to the said land by any other way than through the tract which had been devised, whether the servitude would be due to him. The answer that the rule was the same as if the land had belonged to an estate through which a right of way could be granted to the usufructuary, and, according to the will of the deceased, it appeared that this was required from the heir; for in this instance, the legatee would not be permitted to claim the land, unless he had first granted the right of way through it to the usufructuary, in order that the same condition which was obtained during the lifetime of the testator might be preserved either as long as the usufruct continued to exist, or until it was reunited with the land.
16 Modestinus libro nono responsorum. Legatum civitati relictum est, ut ex reditibus quotannis in ea civitate memoriae conservandae defuncti gratia spectaculum celebretur, quod illic celebrari non licet: quaero, quid de legato existimes. respondit, cum testator spectaculum edi voluerit in civitate, sed tale, quod ibi celebrari non licet, iniquum esse hanc quantitatem, quam in spectaculum defunctus destinaverit, lucro heredum cedere: igitur adhibitis heredibus et primoribus civitatis dispiciendum est, in quam rem converti debeat fideicommissum, ut memoria testatoris alio et licito genere celebretur.
16 Modestinus, Opinions, Book IX. A legacy was bequeathed to a town, so that from its income an exhibition might be given there every year for the purpose of preserving the memory of the deceased. It was not lawful for the exhibition to take place there, and I ask what opinion should be given with reference to the legacy. Modestinus answered that, as the testator intended the spectacle to be exhibited in the town, but it was of such a character that this could not be done, it would be unjust for the heir to profit by such a large sum of money as the deceased had destined for this purpose. Therefore, the heirs as well as the first citizens of the place should be called together in order to determine how the trust could be changed so that the memory of the testator might be celebrated in another and a lawful manner.
17 Scaevola libro tertio responsorum. Quidam praedia rei publicae legavit, de quorum reditu quotannis ludos edi voluit, et adiecit: ‘quae legata peto, decuriones, et rogo, ne in aliam speciem aut alios usus convertere velitis’. res publica per quadriennium continuum ludos non edidit: quaero, an reditus, quos quadriennio res publica percepit, heredibus restituere debeat vel compensare in aliam speciem legati ex eodem testamento. respondit et invitis heredibus possessione adprehensa perceptos fructus restituendos esse et non erogatum secundum defuncti voluntatem in alia quae deberentur compensari.
17 Scævola, Opinions, Book III. A man left certain lands to a town, and desired the income of the same to be devoted to the celebration of public games every year, and added the following: “I request the Decurions, and I desire that they shall not change the character of the legacy, or employ it for any other use.” The town did not celebrate the games for the period of four continuous years. I ask whether the income which it obtained during the said four years should be refunded to the heir, or whether it should be set off against a legacy of another kind bequeathed by the same will. The answer was that if possession of the land had been taken contrary to the will of the heirs, any profits which had been acquired must be given up, and compensation should be made for what was not expended in accordance with the will of the deceased by the surrender of any other property which was due.
18 Modestinus libro nono responsorum. Qui plures habebat libertos, testamento suo dixit se habitationem relinquere iis quos codicillis designasset: cum nullos postea designaverit, quaero, an omnes admitti debeant. respondit, si patronus, qui se designaturum personas libertorum pollicitus est, nullum postea designavit, legatum habitationis perfectum esse non videtur, non existente cui datum intellegi possit.
18 Modestinus, Opinions, Book IX. A testator, who had several freedmen, said in his will that he left lodging to those whom he designated in a codicil. As he did not afterwards designate anyone, I ask whether all of them would be admitted to share in the legacy. The answer was that, since the patron promised to designate certain of his freedmen, and did not afterwards designate any, the legacy with reference to the lodging was held to be imperfect, as there was no one in existence to whom it could be understood that it was given.
19 Idem libro singulari de heurematicis. Si alii fundum, alii usum fructum eiusdem fundi testator legaverit: si eo proposito fecit, ut alter nudam proprietatem haberet, errore labitur. nam detracto usu fructu proprietatem eum legare oportet eo modo: ‘Titio fundum detracto usu fructu lego: vel Seio eiusdem fundi usum fructum heres dato’. quod nisi fecerit, usus fructus inter eos communicabitur, quod interdum plus valet scriptura quam peractum sit.
19 The Same, Concerning Inventions. If a testator should leave a tract of land to one person, and the usufruct of the same to another; and he did this on purpose in order that the former should only have the mere ownership, he committed an error, for he ought to have left the ownership of the property, with the reservation of the usufruct, as follows, “I devise such-and-such a tract of land to Titius, with the reservation of the usufruct;” or “Let my heir give the usufruct of said land to Seius;” as unless he expressed himself in this way the usufruct will be shared between them, for the reason that sometimes what is written is of more effect than what is intended.
20 Pomponius libro octavo ad Quintum Mucium. Si servum sub condicione liberum esse iubeam et usum fructum eius tibi legavero, valet legatum.
20 Pomponius, On Quintus Mucius, Book VIII. If I order a slave to be free under a certain condition, and bequeath to you the usufruct in said slave, the legacy will be valid.
21 Paulus libro septimo ad legem Iuliam et Papiam. Titio usus fructus Stichi aut, si navis ex Asia venerit, decem legata sunt. non petet usum fructum, antequam condicio decem existat vel deficiat, ne potestas heredi utrum velit dandi auferatur.
21 Paulus, On the Lex Julia et Papia, Book VII. “I bequeath to Titius the usufruct of Stichus,” or, “if a ship should come from Asia, I bequeath the sum of ten aurei.” The legatee cannot demand the usufruct before the condition relating to the ten aurei is fulfilled, or has failed, in order that the heir may not be deprived of the power of giving whichever he chooses.
22 Ulpianus libro quinto decimo ad legem Iuliam et Papiam. ‘Patrimonii mei reditum omnibus annis uxori meae dari volo’. Aristo respondit ad heredem uxoris non transire, quia aut usui fructui simile esset aut huic legato ‘in annos singulos’.
22 Ulpianus, On the Lex Julia et Papia, Book XV. “I desire the income of my estate to be paid every year to my wife.” Aristo gives as his opinion that this legacy will not pass to the heir of the wife, because it resembles either an usufruct, or a legacy to be paid annually.
23 Iunius Mauricianus libro secundo ad legem Iuliam et Papiam. Licet testatori repetere legatum usus fructus, ut etiam post capitis deminutionem deberetur et hoc nuper imperator Antoninus ad libellum rescripsit. tunc tantum esse huic constitutioni locum, cum in annos singulos relegaretur.
23 Julius Mauricianus, On the Lex Julia et Papia, Book II. A testator is allowed to repeat the legacy of an usufruct, so that it may be payable after the forfeiture of civil rights. This the Emperor Antoninus recently stated in a Rescript, for under such circumstances there is only ground for the application of this decision where a legacy is left to be paid annually.
24 Papinianus libro septimo responsorum. Uxori fructu bonorum legato faenus quoque sortium, quas defunctus collocavit, post impletam ex senatus consulto cautionem praestabitur. igitur usuras nominum in hereditate relictorum ante cautionem interpositam debitas velut sortes in cautionem deduci necesse est. non idem servabitur nominibus ab herede factis: tunc enim sortes dumtaxat legatario dabuntur aut, quod propter moram usuras quoque reddi placuit, super his non cavebitur. 1‘Scorpum servum meum Semproniae concubinae meae servire volo’. non videtur proprietas servi relicta, sed usus fructus.
24 Papinianus, Opinions, Book VII. Where a legacy of the usufruct of property is bequeathed to a wife, the principal, as well as the interest which the deceased loaned, must be paid after security has been furnished in accordance with the terms of the Decree of the Senate. Therefore, it will be necessary for the interest of the notes which formed part of the assets of the estate, and were due before security was given, to be deducted from the bond. The same rule, however, will not be observed where the money was loaned on the notes by the heir himself; for in this case, only the principal must be paid to the legatee, or whatever interest is found to be due on account of default of payment, and with reference to which no security will be required. 1“I wish my slave, Scorpus, to serve my concubine Sempronia.” In this instance, not the ownership, but the usufruct of the slave is held to have been bequeathed.
25 Idem libro octavo responsorum. Qui fructus praediorum uxori reliquit, post mortem eius praedia cum reditibus ad heredes suos redire voluit, imperitia lapsus. nullum fideicommissum dominus neque proprietatis neque fructus ad eos reverti dedit: etenim reditus futuri, non praeteriti temporis demonstrati videbantur.
25 The Same, Opinions, Book VIII. A testator left his wife the usufruct of certain lands, and desired that after his death the said lands with their revenues should revert to his heirs; and by doing so he committed an error. The owner did not create a trust in favor of the heirs, either with reference to the ownership or the usufruct of the property, for the future revenues, and not those of time which had passed, seemed to have been referred to.
26 Paulus libro decimo quaestionum. Sempronius Attalus ab herede suo fundum in Italiam Gaio post decennium deducto usu fructu dari iussit: quaero, cum medio hoc decennii spatio heres vita functus sit, an post tempus decennii plenus fundus ad legatarium pertineat. movet enim me, quod dies legati huius sive fideicommissi cesserit ac per hoc et ad heredem legatarii pertinere potuerit, et ideo quasi circa debitum iam legatum mortuo herede usus fructus exstinctus sit nec ad heredem heredis pertinere possit. respondi: dies quidem fideicommissi vel legati cedit statim, cum post tempus certum heres dare rogatur sive iubetur: sed usus fructus nondum est heredis, nisi cum dominium deducto usu fructu praestitit, et ideo capitis deminutione vel morte perire non potest quod nondum habuit. idem evenit, si proprietas deducto usu fructu sub condicione legata sit et pendente condicione heres decesserit: tunc enim ab heredis herede incipit usus fructus, qui ex persona eius finietur. sed his casibus de sententia testatoris quaerendum est, qui utique de eo usu fructu detrahendo sensit, qui coniunctus esset heredis personae: quo extincto solidam proprietatem ad legatarium voluit pertinere nec plus transmitti ad successorem suum, qui nondum habere coepit usum fructum, quam si iam habere coepisset. 1Si fundus duobus, alii usus fructus legatus sit, non trientes in usu fructu, sed semisses constituuntur: idemque est ex contrario, si duo sint fructuarii et alii proprietas legata est. et inter eos tantum adcrescendi ius est.
26 Paulus, Questions, Book X. Sempronius Attilus charged his heir after the expiration of ten years to give to Gaius his tract of land in Italy, with the reservation of the usufruct. I ask, if the heir should die before the ten years have elapsed whether, after that time, the entire tract of land will belong to the legatee. I am convinced that the time of this legacy, or that of the execution of the trust has arrived, and for this reason that it should belong to the heir of the legatee. Therefore, since the legacy was already due at the time of the death of the heir, the usufruct is extinguished and cannot belong to the successor of the latter. I gave it as my opinion that if the heir should be requested or ordered to deliver certain property, the time for the execution of the trust or for the delivery of the legacy will be when the testator dies, but the usufruct will not belong to the heir until he delivers the ownership after reserving the usufruct. Hence the usufruct cannot be lost by the forfeiture of civil rights, or the death of the heir, for the reason that he does not yet possess it. The same thing takes place where the ownership of property is bequeathed under a certain condition, after the reservation of the usufruct, and the heir dies before the condition has been fulfilled; for then the usufruct, which terminates with his life, begins to vest in the heir of the heir. In these instances, however, the intention of the testator must be ascertained, that is if he, at the time of reserving the usufruct, had someone in his mind who was to be joined with his heir, so that, at the death of the former, he intended the entire ownership to belong to the legatee; because no more could be transmitted to his successor, who had not yet acquired the usufruct, than if he had already begun to enjoy it. 1Where a tract of land is devised to two persons, and the usufruct is left to another, they all three of them do not enjoy the usufruct in common, if it is divided into two parts. On the other hand, the same rule will apply where there are two usufructuaries, and the ownership of the property is left to a third party. The right of accrual only exists between them.
27 Scaevola libro primo responsorum. Uxori maritus per fideicommissum usum fructum et alia et dotem praelegavit: heredes usum fructum ei concesserunt: post biennium illicitum matrimonium fuisse pronuntiatum est: quaesitum est, an id, quod praeterito tempore possedit, ab ea repeti possit. respondit id, quod fructus nomine percepisset, repeti posse.
27 Scævola, Opinions, Book I. A husband left to his wife the usufruct of certain lands and other property and her dowry under a trust. The heirs delivered to her the usufruct in the land. Two years afterwards the marriage was declared to be null and void. The question arose whether what she had collected during that time could be recovered from her. I answered that what she had collected by way of profit could be recovered.
28 Paulus libro tertio decimo responsorum. Quaero, si usus fructus fundi legatus est et eidem fundo indictiones temporariae indictae sint, quid iuris sit. Paulus respondit idem iuris esse et in his speciebus quae postea indicuntur, quod in vectigalibus dependendis responsum est: ideoque hoc onus ad fructuarium pertinet.
28 Paulus, Opinions, Book XIII. I ask, where the usufruct of land is left and the said land becomes subject to temporary taxes, what will be the law in this case? Paulus answered that it would be the same in this instance as where ordinary taxes are imposed; and therefore that this burden must be sustained by the usufructuary.
29 Gaius libro primo fideicommissorum. Si quis usum fructum legatum sibi alii restituere rogatus sit eumque in fundum induxerit fruendi causa: licet iure civili morte et capitis deminutione ex persona legatarii pereat usus fructus, quod huic ipso iure adquisitus est, tamen praetor iurisdictione sua id agere debet, ut idem servetur, quod futurum esset, si ei, cui ex fideicommisso restitutus esset, legati iure adquisitus fuisset.
29 Gaius, Trusts, Book I. When anyone is requested to transfer to another an usufruct which was left to himself, and he has united it to the land for the purpose of enjoying the same; although the usufruct may be extinguished by operation of law, at the death, or by the forfeiture of civil rights by the legatee who acquired it under this title, the Prætor, nevertheless, should exert his authority in order that the right may be preserved if it was left to him under a trust, just as if it had been bequeathed as a legacy.
30 Iavolenus libro secundo ex posterioribus Labeonis. Cui usus fructus legatus esset, donec ei totius dotis satisfieret, cum ei heres pro sua parte satis dedisset, quamvis reliqui satis non darent, tamen pro ea parte usum fructum desinere habere mulierem ait Labeo: idem fieri et si per mulierem mora fieret, quo minus satis acciperet. 1Colono suo dominus usum fructum fundi, quem is colebat, legaverat: agat colonus cum herede ita, ut iudex cogat heredem ex locationis actione eum liberare.
30 Javolenus, On the Last Works of Labeo, Book II. Where an usufruct is bequeathed to a woman until her dowry has been entirely paid, and one of the heirs gives her security for his share of the estate but the others do not; Labeo says that the woman will cease to enjoy the usufruct to the extent of said share. The same will take place where the woman is in default in accepting the security. 1An owner left to his tenant the usufruct of certain land which he cultivated. The tenant will have a right of action against the heir, in order that the judge may compel the latter to release him from liability under his contract.
31 Labeo libro secundo posteriorum a Iavoleno epitomatorum. Is qui fundum tecum communem habebat usum fructum fundi uxori legaverat: post mortem eius tecum heres arbitrum communi dividundo petierat. Blaesus ait Trebatium respondisse, si arbiter certis regionibus fundum divisisset, eius partis, quae tibi optigerit, usum fructum mulieri nulla ex parte deberi, sed eius, quod heredi optigisset, totius usum fructum eam habituram. ego hoc falsum puto: nam cum ante arbitrum communi dividundo coniunctus pro indiviso ex parte dimidia totius fundi usus fructus mulieris fuisset, non potuisse arbitrum inter alios iudicando alterius ius mutare: quod et receptum est.
31 Labeo, On the Last Epitomes of Javolenas, Book II. Where anyone has a tract of land in common with you, and leaves the usufruct of said land to his wife, and, after his death, his heir applies to the court for partition of the land; Blæsus says that it was held by Trebatius that, if the judge should divide the land into different portions, the usufruct of the part allotted to you would not, under any circumstances, be due to the woman, but she would be entitled to the usufruct of the entire share assigned to the heir. I think this opinion is incorrect, for if, before the judgment was rendered, the woman was entitled to the usufruct of the undivided half of the entire tract of land, the judge could not, in deciding between the parties, prejudice the rights of the third. This last decision is the one adopted.
32 Scaevola libro quinto decimo digestorum. Generali capite praeposito quidam in testamento suo ita adiecit: ‘Felici, quem liberum esse iussi, usum fructum fundi Vestigiani lego: cuius proprietatem puto te consecuturum, si non contenderis cum herede meo, sed potius concordaveris: sed et tu, heres, omnia fac, ut amici sitis: hoc enim vobis expedit’: quaesitum est, an vivente herede exigere possit felix fundi proprietatem. respondit nihil proponi, cur Felici proprietas fundi legata videretur. 1Filios ex Seio et filiam ex alio marito heredes instituit aequis portionibus et matri ita legaverat: ‘Aeliae Dorcadi matri meae dari volo, quoad vivat, usum fructum bonorum meorum, ita ut post obitum eius ad liberos meos aut ad eum, qui ex his vivet, pertineat’. filii post aditam hereditatem decesserant: quaesitum est mortua matre superstite filia testatricis usus fructus utrum ad solam filiam an vero pro portione hereditatis pertineret. respondit ad eos redire, apud quos proprietas esset. Claudius: non credidit ipsum usum fructum in vicem portionum hereditariarum post mortem aviae inter ipsos datum, eo magis, quod aequis partibus heredes erant scripti. 2Uxori usum fructum domuum et omnium rerum, quae in his domibus erant, excepto argento legaverat, item usum fructum fundorum et salinarum: quaesitum est, an lanae cuiusque coloris mercis causa paratae, item purpurae, quae in domibus erat, usus fructus ei deberetur. respondit excepto argento et his, quae mercis causa comparata sunt, ceterorum omnium usum fructum legatariam habere. 3Idem quaesiit, cum in salinis, quarum usus fructus legatus esset, salis inventus sit non minimus modus, an ad uxorem ex causa fideicommissi usus fructus pertineat. respondit de his legandis, quae venalia ibi essent, non sensisse testatorem. 4Idem quaesiit, cum eodem testamento ita caverit: ‘a te peto, uxor, uti ex usu fructu, quem tibi praestari volo in annum quintum decimum, contenta sis annuis quadringentis, quod amplius fuerit, rationibus heredis heredumve meorum inferatur’, an recessum videatur a superiore capite ideoque uxor non amplius habeat ex usu fructu, quam annuos quadringentos. respondit satis id, quod quaereretur, aperte verba quae proponerentur declarare. 5Lucius Titius testamento suo Publio Maevio fundum Tusculanum reliquit eiusque fidei commisit, uti eiusdem fundi partem dimidiam usus fructus Titiae praestaret: Publius Maevius villam vetustate corruptam cogendis et conservandis fructibus necessariam aedificavit: quaero, an sumptus partem pro portione usus fructus Titia adgnoscere debeat. respondit, si prius, quam usum fructum praestaret, necessario aedificavit, non alias cogendum restituere, quam eius sumptus ratio habeatur. 6Duas filias et filium mente captum heredes scripsit, filii portionis mente capti datae usum fructum legavit in haec verba: ‘hoc amplius Publia Clementiana praecipiet sibi quartae partis hereditatis meae, ex qua Iulium Iustum filium meum heredem institui: petoque a te, Publia Clementiana, uti fratrem tuum Iulium Iustum alas tuearis dependas pro eo: pro quo tibi usum fructum portionis eius reliqui, donec mentis compos fiat et convalescat’. quaesitum est, cum filius in eodem furore in diem mortis suae perseverans decesserit, an usus fructus interciderit. respondit verbis quae proponerentur perseverare legatum, nisi manifestissime probetur aliud testatorem sensisse. 7Heredis instituti fidei commisit filio suo annua decem praestare aut ea praedia emere et adsignare, ut usum fructum haberet, reditum efficientia annua decem: filius fundos sibi ab herede secundum matris voluntatem traditos locavit: et quaesitum est, defuncto eo reliqua colonorum utrumne ad heredem filii fructuarii an vero ad heredem Seiae testatricis pertineant. respondit nihil proponi, cur ad heredem Seiae pertineant. 8Usum fructum tertiae partis bonorum suorum uni ex heredibus legaverat: quaesitum est, an pecuniae, quae ex rebus divisis secundum aestimationem effecta est, tertia praestanda sit. respondit heredis esse electionem, utrum rerum an aestimationis usum fructum praestare vellet. 9Item quaesitum est, tributa praeterea, quae vel pro praediis aut moventibus deberi et reddi necesse est, an eximenda sint ex quantitate, ut reliquae dumtaxat pecuniae, si hoc heres elegerit, reddi debeat. respondit reliquae pecuniae tertiam praestandam.
32 Scævola, Digest, Book XV. A certain man having stated his intentions in general terms, added the following in his will: “I bequeath to Felix, whom I have directed to be free, the usufruct of the Vestigian Estate, as I think that he will be entitled to the property if he does not enter into a contest with my heir, but remains on good terms with him. I ask my heir to act in such a way that he and Felix may continue to be friends, for this will be of advantage to both of them.” The question arose whether Felix could during the lifetime of the heir exact the ownership of the land. The answer was that there was nothing in the facts stated which showed that the ownership of the land was left to Felix. 1A testatrix appointed her children by Seius, and her daughter by another husband, her heirs to equal shares of her estate, and made the following bequest to her mother: “I desire that the usufruct of my property be given to ælia Dorcas, my mother, as long as she lives, and that, at her death, it shall go to my children, or to the survivor of them.” The children of Seius died after entering upon the estate, and after the death of the mother, who was survived by the daughter of the testatrix, the question arose whether the usufruct would belong entirely to the daughter, or only in proportion to her share of the estate. The answer was that it would revert to those in whom the ownership of the land was vested. Claudius: Scævola believed that after the death of their grandmother, the usufruct itself would revert to the children in proportion to their shares of the estate, especially because they were appointed heirs to equal portions of the same. 2Where a husband left to his wife the usufruct of his houses and everything contained therein, except the silver plate, and, in addition, that of his lands and salt-pits; the question arose whether the usufruct of wools of different colors which were intended for commerce, as well as of the purple which was in the houses, were also due to the wife. The answer was that, with the exception of the silver plate and the articles which would be classed as merchandise, the legatee would be entitled to the usufruct of all the other property. 3It was also asked, as a considerable amount of salt had been found in the salt-pits, the usufruct of which was bequeathed, whether it also would belong to the wife, under the terms of the trust. The answer was that the testator had not intended to bequeath any property which was for the purpose of sale. 4The question was also asked, if the testator should have made the following provision in the same will, namely, “I ask you, my wife, to be content with the sum of four hundred aurei a year, which I desire you to receive for the term of fifteen years, out of the usufruct, and that you pay to my heirs anything in excess of said sum which may be derived from the said usufruct,” whether it should not be held that the testator had changed his mind with reference to the former bequest, and therefore that the wife would not be entitled to more than four hundred aurei a year out of the usufruct. The answer was that the inquiry was clearly explained by the words which were quoted. 5Lucius Titius, by his will, left the Tusculan Estate to Publius Mævius, and charged him to give half of the usufruct of the same to Titia. Publius Mævius rebuilt an old country-house which had fallen into decay through age, and which was required for the collection and preservation of the crops. I ask whether Titia should contribute to the payment of the expense of this, in proportion to her share of the usufruct. The answer was that if the legatee had rebuilt the house before he delivered the legacy of the usufruct to Titia, he could not be compelled to deliver it until she had paid her share of the expense. 6A man appointed his two daughters and his son, who was not of sound mind, his heirs, and bequeathed the usufruct of the share of his imbecile son to one of his daughters, in the following terms: “In addition to this, let Publia Clementiana take, by way of preferred legacy, the usufruct of the fourth part of my estate, to which I have appointed my son, Julius Justus, my heir; and I ask you, Publia Clementiana, in consideration of the usufruct of his share which I have bequeathed to you, to support and take care of him until he becomes of sound mind and recovers.” As the son continued in the same condition until the time of his death, the question arose whether the usufruct would be extinguished. The answer was that, according to the case stated, the legacy would continue to exist, unless it was clearly proved that the testator intended otherwise. 7A testatrix charged her appointed heir to pay ten aurei to her son every year, or to purchase land which would return a revenue of ten aurei annually, and assign the usufruct of the same to him; and the son, having received the land from the heir, rented it in compliance with the will of his mother. After his death the question arose, whether the amount remaining due from the tenants would belong to the heir of the son, who was the usufructuary, or to the heir of Seia, the testatrix? The answer was that there was nothing in the case stated which would prevent the balance of the rent from belonging to the heir of Seia. 8A certain man left the usufruct of a third part of his estate to one of his heirs, and the question arose whether the third of the money to which the property, after having been divided, amounted to according to the appraisement, should be paid to the usufructuary. The answer was that the heir had the choice of delivering either the usufruct of the property itself, or that of the appraised valuation of the same. 9It was also asked whether the taxes, in addition to what was due and required to be paid on the land or personal property might be deducted from the amount, so that payment would only be made of the remainder, if the heir should prefer to do this? The answer was that the third of the remaining sum could be paid.
33 Idem libro septimo decimo digestorum. ‘Sempronio ea, quae vivus praestabam, dari volo’: is etiam habitabat in testatoris domo, quae uni ex heredibus praelegata erat: quaesitum est, an habitatio quoque debeatur. respondit nihil proponi, cur non debeatur. 1Ex his verbis testamenti: ‘libertis meis, quibus nominatim nihil reliqui, quae vivus praestabam dari volo’ quaesitum est, an libertis, qui cum patrono suo in diem mortis habitabant, etiam habitatio relicta videatur. respondit videri. 2Codicillis ita scripsit: ‘Negidium Titium Dionem libertos meos senes et infirmos peto in locis, in quibus nunc agunt, senescere patiamini’: quaero, an ex hoc capite liberti supra scripti ex fideicommisso fructus locorum, quibus morantur, recipere debeant, cum alia, quae eis specialiter legata sunt, sine controversia consecuti sunt. respondit verbis quae proponerentur id petitum, ut ad eum modum paterentur heredes ibi eos esse, ad quem modum ipsa patiebatur.
33 The Same, Digest, Book XVII. “I desire that there should be given to Sempronius what I was accustomed to give him during my lifetime.” Sempronius lived in the testator’s house, which was bequeathed to one of the heirs as a preferred legacy. The question arose whether he was also entitled to his lodging therein. The answer was that there was nothing in the case stated to prevent him from being entitled to it. 1The question arose with reference to the following words of a will: “I desire to be given to those of my freedmen, to whom I have left nothing, what I was accustomed to give them during my lifetime.” The question arose whether lodging was intended to be left to those freedmen who lived with their patron until the time of his death? The answer was that it appeared to have been left to them. 2A testatrix inserted in a codicil: “I ask you to permit Nigidius, Titius, and Dion, my old and infirm freedmen, to pass their lives where they now are.” I ask whether the above-mentioned freedmen will, under the terms of the trust, be entitled to receive the profits of the land on which they reside; inasmuch as they have obtained, without controversy, other legacies which were bequeathed to them. The answer was that, according to the case stated, the charge was that the heirs should permit them to remain where they were, in the same way as she herself had allowed them to do.
34 Idem libro octavo decimo digestorum. Codicillis fideicommissa in haec verba dedit: ‘libertis libertabusque meis et quos in codicillis manumisi fundum, ubi me humari volui, dari volo, ut qui ab his decesserit, portio eius reliquis adcrescat, ita ut ad novissimum pertineat: post cuius novissimi decessum ad rem publicam Arelatensium pertinere volo. hoc amplius libertis libertabusque meis habitationes in domo, quamdiu vivent: Pactiae et Trophimae diaetas omnes, quibus uti consuevit: habitet quam domum post mortem eorum ad rem publicam pertinere volo’. quaesitum est, rei publicae fideicommissum utrum ab herede an a libertis datum sit. respondit secundum ea quae proponerentur posse ita verba accipi, ut eius legatarii, qui novissimus decederet, fidei commissum videatur. idem quaesiit defunctis quibusdam ex libertis, quibus habitatio relicta erat, an portiones domus, in quibus hi habitaverant, iam ad rem publicam pertineant. respondit, quoad aliquis eorum vivat, fideicommissum rei publicae non deberi. 1Qui Semproniam ex parte decima et Maeviam ex parte decima, alumnum ex reliquis partibus instituerat heredes, curatorem alumno dedit, cum iure facere putaret: et curatoris fidei commisit, ne pateretur fundum venire, sed cum Sempronia et Maevia nutricibus suis frueretur reditu eius: et ima parte testamenti ita adiecit: ‘omnem voluntatem meam fidei heredum meorum committo’. quaesitum est, an tertias partes usus fructus fundi nutrices ex fideicommisso petere possint, quamvis curator ei receptus sit, quem iure dare non poterit alumno. respondit secundum ea quae proponerentur utiliter fideicommisso voluntatem suam confirmasse: id igitur cuique dedisse, ut et nutrices una cum alumno reditu fundi uterentur.
34 The Same, Digest, Book XVIII. A man inserted a trust in his codicil in the following terms: “I desire that there shall be given to the men and women whom I have enfranchised by my codicil the tract of land where I have expressed my wish to be buried; and that, when one of them dies, his share may accrue to the remainder; so that, at last, it will all belong to the survivor, and I desire that, after the death of the survivor, the property shall go to the City of Aries. Moreover, I leave lodgings in my house to my freedmen and freedwomen as long as they may live. Pactia and Trophina shall occupy all the rooms which I was accustomed to use, and when they die I wish the house to belong to the said city.” The question arose whether the heirs of the freedmen were charged with the trust for the benefit of the city? The answer was that, according to the facts stated, the words might be held to mean that the last survivor of the legatees appeared to be charged with the trust. It was also asked, after certain of the freedmen to whom a lodging was left had died whether those parts of the house in which they dwelt would immediately belong to the city. The answer was that, as long as any of the freedmen lived, the trust would not be due to the city. 1A certain party who had appointed Sempronia heir to a tenth of his estate, Mævia to another tenth, and a foster-child to the remainder of the same, appointed a curator for the latter, thinking that he had a right to do so by law, and charged the curator not to suffer the land to be sold, and to permit his foster-child to enjoy the income of the property with Sempronia and Mævia, his nurses; and, at the end of his will, he added, “I charge all my heirs with the execution of this, my testament.” The question arose whether the nurses could claim the third part of the usufruct of the land under the terms of the trust, even though the curator, whom the testator could not legally appoint for his foster-child, had been charged with the execution of the same. The answer was that, in accordance with the facts stated, the testator had properly legally intimated his wishes by the creation of the trust, and therefore the nurses could enjoy the income of the land, along with his foster-child, in accordance to what he had given to each one of them.
35 Idem libro vicesimo secundo digestorum. Uxori usum fructum villae legavit in quinquennium a die mortis suae, deinde haec verba adiecit: ‘et peracto quinquennio, cum eius usus fructus esse desierit, tunc eum fundum illi et illi libertis dari volo’. quaesitum est, cum uxor intra quinquennium decesserit, an libertis proprietatis petitio iam an vero impleto quinquennio competat, quia ‘peracto quinquennio’ testator proprietatem legaverat. respondit post completum quinquennium fundum ad libertos pertinere.
35 The Same, Digest, Book XXII. A man left to his wife the usufruct of his country-house for the term of five years after his death, then he added the following words, “After the said term of five years has elapsed, and the usufruct is extinguished, I wish the said land to belong to So-and-So and So-and-So, my freedmen.” The wife having died within the five years, the question arose whether the said freedmen were entitled to claim the ownership of the property immediately, or after the expiration of the five years, because the testator had left it at the expiration of that time. The answer was that the land would belong to the freedmen after the expiration of the five years.
36 Idem libro quinto vicesimo digestorum. Sticho testamento manumisso fundi usus fructus erat legatus et, cum is uti fruique desisset, fidei heredum testator commisit, uti eum fundum darent Lucio Titio: sed Stichus testamento suo eiusdem fundi proprietatem nepotibus suis legavit et heredes Stichi ex testamento eius legatariis nepotibus eum fundum tradiderunt. quaesitum est, cum nepotes legatarii ignoraverint condicionem fundi supra scripti priore testamento datam et plus quam tempore statuto possederint, an eum fundum sibi adquisierint. respondit secundum ea quae proponerentur legatarios sibi adquisisse. 1Idem quaesiit, si aliquo casu legatariis auferri possit, an repetitionem ab heredibus Stichi eius nepotes habere possint. respondit supra quidem de adquisitione responsum: verum si ex alia causa adquisitio cessasset, videri Stichum, si post mortem eorum, quibus proprietas legata esset, testamentum fecisset, potius quod habere se crederet, quam quod onerare heredes vellet, legasse.
36 The Same, Digest, Book XXV. The usufruct of a tract of land was left to Stichus, who was manumitted by the will, and after he had ceased to enjoy it, the testator left it to his heirs in trust, to be delivered to Lucius Titius. Stichus, however, by his will, left the ownership of said land to his grandchildren, and the heirs of Stichus, in accordance with the terms of his will, transferred the said land to his grandchildren, who were his legatees. The said grandchildren, not being aware of the condition under which the land was devised by the former will, and having possessed it for a longer time than that provided by law to give title by prescription, the question arose whether they acquired the ownership of the land for themselves. The answer was that, in accordance with the facts stated, the legatees had acquired it. 1It was also asked, if, in any event, the legatees should be deprived of the land, whether an action in favor of the grandsons would lie for the recovery of the same against the heirs of Stichus. The answer was that, according to the opinion previously rendered where the property for some reason had not been acquired, if Stichus had made a will after the death of those to whom it was left, he would have been held to have intended to bequeath something which he thought belonged to him, rather than to have burdened his heirs.
37 Idem libro trigesimo tertio digestorum. ‘Uxori meae usum fructum lego bonorum meorum, usque dum filia mea annos impleat octodecim’: quaesitum est, an praediorum tam rusticorum quam urbanorum et mancipiorum et supellectilis itemque calendarii usus fructus ad uxorem pertineat. respondit secundum ea quae proponerentur omnium pertinere.
37 The Same, Digest, Book XXXIII. “I give to my wife the usufruct of my estate until my daughter arrives at the age of eighteen years.” The question arose whether the wife should be entitled to the usufruct of both the land in the country and in the city, as well as to that of the slaves, the furniture, and the funds belonging to the estate. The answer was that, in accordance with the facts stated, she would be entitled to the usufruct of everything.
38 Idem libro tertio responsorum. ‘Fundi Aebutiani reditus uxori meae quoad vivat dari volo’: quaero, an possit tutor heredis fundum vendere et legatario offerre quantitatem annuam, quam vivo patre familias ex locatione fundi redigere consueverat. respondit posse. item quaero, an habitare impune prohiberi possit. respondit non esse obstrictum heredem ad habitationem praestandam. item quaero, an compellendus sit heres reficere praedium. respondit, si heredis facto minores reditus facti essent, legatarium recte desiderare, quod ob eam rem deminutum sit. item quaero, quo distat hoc legatum ab usu fructu. respondit ex his, quae supra responsa essent, intellegi differentiam.
38 The Same, Opinions, Book III. “I wish the income of the æbutian Estate to be paid to my wife as long as she lives.” I ask whether the guardian of the heir can sell the land and tender to the legatee, annually a sum equal to that which the testator was, during his lifetime, accustomed to obtain from the lease of the property in question? The answer was that he can do so. I also ask whether the legatee can with impunity be prevented from living on the said land. The answer was that the heir is not required to furnish him lodging. I also ask whether the heir can be compelled to make repairs on the land. The answer was that if, through the acts of the heir, the income has been reduced, the legatee can lawfully claim the amount of the diminution. I also ask in what way a legacy of this kind differs from an usufruct. The answer was that the difference can be ascertained from the opinions previously given.
39 Idem libro sexto responsorum. Filios heredes instituit, uxori vestem mundum muliebrem lanam linum et alias res legavit et adiecit: ‘proprietatem autem eorum, quae supra scripta sunt, reverti volo ad filias meas quaeve ex his tunc vivent’: quaesitum est, utrum usus fructus an proprietas earum rerum data sit. respondit proprietatem legatam videri.
39 The Same, Opinions, Book IX. A certain man appointed his sons his heirs, and bequeathed to his wife her clothing, her jewels, wool, flax and other articles, and added: “I wish the ownership of the articles above mentioned to pass to my daughters, or to any of them who may survive.” The question arose whether the usufruct, or the ownership of said property was bequeathed. The answer was that the ownership seemed to have been bequeathed.
40 Alfenus Varus libro octavo digestorum a Paulo epitomatorum. ‘Illi cum illo habitationem lego’: perinde est, ac si ita ‘illi et illi’ legasset.
40 Alfenus Verus, Epitomes of the Digest of Paulus, Book VIII. “I bequeath lodging for So-and-So along with So-and-So.” This is just the same as if the testator had left it “To So-and-So and So-and-So.”
41 Iavolenus libro secundo ex posterioribus Labeonis. Cum ita legatum esset: ‘fructus annuos fundi Corneliani Publio Maevio do lego’, perinde putat accipiendum esse Labeo, ac si usus fructus fundi similiter esset legatus, quia haec mens fuisse testatoris videatur.
41 Javolenus, On the Last Works of Labeo, Book II. When a bequest is made as follows, “I give and bequeath to Publius Mævius all the annual crops of the Cornelian Estate,” Labeo thinks this should be understood to be the same as if the usufruct of the land had been left, because this seems to have been the intention of the testator.
42 Idem libro quinto ex posterioribus Labeonis. In fructu id esse intellegitur, quod ad usum hominis inductum est: neque enim maturitas naturalis hic spectanda est, sed id tempus, quo magis colono dominove eum fructum tollere expedit. itaque cum olea immatura plus habeat reditus, quam si matura legatur, non potest videri, si immatura lecta est, in fructu non esse.
42 The Same, On the Last Works of Labeo, Book V. Among the crops of land is understood to be included everything which can be used by a man. For it is not necessary in this place to consider the time when they naturally mature, but the time when it is most advantageous for the tenant or the owner to gather them. Therefore, as olives which are not ripe are more valuable than they are after maturity, it cannot be held that they did not form part of the crops, where they are gathered before they are ripe.
43 Venuleius libro decimo actionum. Nihil interest, utrum bonorum quis an rerum tertiae partis usum fructum legaverit: nam si bonorum usus fructus legabitur, etiam aes alienum ex bonis deducetur, et quod in actionibus erit, computabitur. at si certarum rerum usus fructus legatus erit, non idem observabitur.
43 Venuleius, Actions, Book X. It makes no difference whether the testator bequeaths the usufruct of the third part of property, or the usufruct of the third part of certain property, for where the usufruct of property in general is left, the debts are deducted from it, and any accounts which may be due are credited. Where the usufruct of certain property is bequeathed, the same rule is not observed.