De tritico vino vel oleo legato
(Concerning bequests of wheat, wine, and oil.)
1 Ulpianus libro vicesimo ad Sabinum. Vino legato acetum quoque continetur, quod pater familias vini numero habuit.
1 Ulpianus, On Sabinus, Book XX. Where wine is bequeathed, any vinegar which the head of the household kept with his wine is also included.
2 Pomponius libro sexto ad Sabinum. Cum alii penum, alii vinum legatum esset, excepto vino omne penum ad alium legatarium pertinebit. 1Si centum amphorae quas velles tibi legatae sint, ex testamento agendo consequi potes, ut degustare tibi liceat: aut, quanti interfuerit licere tibi degustare, ad exhibendum agere potes.
2 Pomponius, On Sabinus, Book VI. Where provisions are left to one person, and wine to another, all the provisions will belong to the first legatee, with the exception of the wine. 1Where a hundred jars of wine are left to you to be selected as you may desire, you can institute proceedings under the will in order to obtain the opportunity to taste the wine; or you can bring suit to compel the wine to be produced, or to recover any damages you may have sustained because you were not permitted to taste it.
3 Ulpianus libro vicesimo tertio ad Sabinum. Si cui vinum sit legatum centum amphorarum, cum nullum vinum reliquisset, vinum heredem empturum et praestaturum, non acetum, quod vini numero fuit. 1Si vinum legatum sit, videamus, an cum vasis debeatur. et Celsus inquit vino legato, etiamsi non sit legatum cum vasis, vasa quoque legata videri, non quia pars sunt vini vasa, quemadmodum emblemata argenti (scyphorum forte vel speculi), sed quia credibile est mentem testantis eam esse, ut voluerit accessioni esse vino amphoras: et sic, inquit, loquimur habere non amphoras mille, ad mensuram vini referentes. in doliis non puto verum, ut vino legato et dolia debeantur, maxime si depressa in cella vinaria fuerint aut ea sunt, quae per magnitudinem difficile moventur. in cuppis autem sive cuppulis puto admittendum et ea deberi, nisi pari modo immobiles in agro velut instrumentum agri erant. vino legato utres non debebuntur: nec culleos quidem deberi dico.
3 Ulpianus, On Sabinus, Book XXIII. If a hundred measures of wine should be bequeathed to anyone, leaving none for the estate, the heir can purchase and deliver wine, but he cannot deliver vinegar which was found among the wine of the testator. 1Where wine is bequeathed, let us see whether the legatee is also entitled to the vessels in which it is contained. Celsus says that where wine is bequeathed, even though the vessels may not be included in the legacy, they are held to be bequeathed; not because they are a part of the wine, to the same extent as the chasing constitutes a part of a cup or a mirror, but because it is probable that the intention of the testator was that he wished the vessels to be accessory to the wine; and hence he says it is usual for us to say that we have a thousand jars, referring to the quantity of the wine. I do not think that this opinion is correct with reference to casks, so that where wine is bequeathed, the casks will also be due; especially if they are fastened in the wine cellar, or it is difficult to move them on account of their size. With reference to vats, however, or small receptacles, I think that they are included, and will be due, unless they are likewise fixed immovably in the ground, and are there as utensils belonging to the same. Where wine is bequeathed, I hold that neither leathern bags nor bottles are included.
4 Paulus libro quarto ad Sabinum. Cum certum pondus olei non adiecta qualitate legatur, non solet quaeri, cuius generis oleo uti solitus fuerit testator aut cuius generis oleum istius regionis homines in usu habeant: et ideo liberum est heredi, cuius vellet generis oleum legatario solvere.
4 Paulus, On Sabinus, Book IV. Where a certain quantity of oil, without mentioning the quality, is bequeathed, it is not the practice to ask what kind of oil the testator was accustomed to make use of, or what kind of oil men ordinarily use in that neighborhood. Therefore the heir is at liberty to give to the legatee oil of any kind that he may wish.
5 Iulianus libro quinto decimo digestorum. Cum certus numerus amphorarum vini legatus esset ex eo, quod in fundo Semproniano natum esset, et minus natum esset, non amplius deberi placuit et quasi taxationis vicem optinere haec verba ‘quod natum erit’.
5 Julianus, Digest, Book XV. Where a certain number of measures of wine out of that obtained from the Sempronian Estate were bequeathed, and a smaller quantity was obtained, it was decided that more was not due, and that the following words, “That obtained,” operated as a kind of limitation of the legacy.
6 Proculus libro quinto epistularum. Cui vinum heres dare damnatus est, quod in amphoris et cadis diffusum est dari debet, etiamsi vasorum mentio facta non est. item quamvis cum vasis cadis legatum est, tamen id quoque, quod in doliis, legatum esse videtur, sicuti, si servos omnes cum peculio cuiusque eorum legasset, etiam eos, quibus peculii nihil esset, legasse videretur.
6 Proculus, Epistles, Book V. Where an heir is charged with the delivery of wine, he will be obliged to deliver whatever is contained in vases or jars, even though no mention was made of vessels. Moreover, although the wine may have been left with the vases and jars, still, that which is contained in casks is held to have also been left; just as where a testator bequeaths all his slaves with their peculium of each of them, those who have no peculium are considered to have likewise been bequeathed.
7 Iavolenus libro secundo ex posterioribus Labeonis. Quidam heredem damnaverat dare uxori suae vinum oleum frumentum acetum mella salsamenta. Trebatius aiebat ex singulis rebus non amplius deberi, quam quantum heres mulieri dare voluisset, quoniam non adiectum esset, quantum ex quaque re daretur. Ofilius Cascellius Tubero omne, quantum pater familias reliquisset, legatum putant: Labeo id probat idque verum est. 1‘Lucio Titio tritici modios centum, qui singuli pondo centum pendeant, heres dato’. Ofilius nihil legatum esse, quod et Labeo probat, quoniam eiusmodi triticum in rerum natura non esset: quod verum puto.
7 Javolenus, On the Last Works of Labeo, Book II. A certain individual charged his heir to give to his wife wine, oil, grain, vinegar, honey, and salt-fish. Trebatius said that the heir was not obliged to deliver any more of each article to the woman than he desired, since it was not stated how much of each article was to be given. Ofilius, Cascellius, and Tubero think that the entire amount of the said articles which the testator left was included in the legacy. Labeo approves of this, and it is correct. 1“Let my heir deliver to Lucius Titius a hundred measures of wheat, each of which shall weigh a hundred pounds.” Ofilius holds that nothing is bequeathed, and Labeo agrees with him, as wheat of this kind does not exist; which opinion I think to be true.
8 Pomponius libro sexto epistularum. Si heres damnatus sit dare vinum, quod in doliis esset, et per legatarium stetit, quo minus accipiat, periculose heredem facturum, si id vinum effundet: sed legatarium petentem vinum ab herede doli mali exceptione placuit summoveri, si non praestet id, quod propter moram eius damnum passus sit heres.
8 Pomponius, Epistles, Book VI. When an heir is charged with the delivery of wine which is contained in casks, and it is the fault of the legatee that he did not receive it, the heir will assume the responsibility if he pours out the wine; and if the legatee should bring suit to recover the wine from the heir, it was held that he would be barred by an exception on the ground of bad faith, if he does not pay the amount of damage sustained by the heir on account of his delay.
9 Ulpianus libro vicesimo tertio ad Sabinum. Si quis vinum legaverit, omne continetur, quod ex vinea natum vinum permansit. sed si mulsum sit factum, vini appellatione non continebitur proprie, nisi forte pater familias etiam de hoc sensit. certe zythum, quod in quibusdam provinciis ex tritico vel ex hordeo vel ex pane conficitur, non continebitur: simili modo nec camum nec cervesia continebitur nec hydromeli. quid conditum? nec hoc puto, nisi alia mens testantis fuit. oenomeli plane id est dulcissimum vinum continebitur: et passum, nisi contraria sit mens, continebitur: defrutum non continebitur, quod potius conditurae loco fuit. acinaticium plane vino continebitur. cydoneum et si qua alia sunt, quae non ex vinea fiunt, vini appellatione non continebuntur. item acetum vini appellatione non continebitur. haec omnia ita demum vini nomine non continentur, si modo vini numero a testatore non sunt habita: alioquin Sabinus scribit omnia vini appellatione contineri, quae vini numero pater familias habuit: igitur et acetum, quod vini numero pater familias habuit, et zythum et camum et cetera, quae pro hominum affectione atque usu vini numero habebuntur. quod si totum vinum, quod pater familias habuit, coacuit, non exstinguitur legatum. 1Si acetum quis legaverit, non continebitur legato acetum quod vini numero testator habuit: embamma autem continebitur, quia aceti numero fuit. 2Item si quis vinum quod habuit legavit, deinde hoc coacuit, licet postea in aceti locum translatum sit a patre familias, vino legato continebitur, quia id, quod testamenti facti tempore vinum fuit, demonstratum est: et est hoc verum, nisi voluntas adversetur. 3Vino autem paterno legato id demum legatum videtur, quod testator vini numero habuit, non quod pater. item si peculiare vinum legatum sit, id continebitur, quod servi habuerunt. cur tam diverse? quod paternum vinum iam coepit usus ipsius testatoris esse, at peculiare in usu servorum remansit. 4Item si vinum vetus sit legatum,
9 Ulpianus, On Sabinus, Book XXIII. Where anyone bequeaths wine, everything is included which, having originated from the vine, retains the nature of wine. If, however, mead is made, it will not properly be included in the term wine, unless the head of the household had this intention. And, in fact, as the beverage called zythum, which is made in some provinces from wheat, barley, or bread, will not be included, so neither beer nor hydromeli is included. But what would be the case with wine mixed with other substances? I do not think that it will be included, unless the intention of the testator was that it should be. It is clear that wine mingled with honey, that is to say, very sweet wine, will be included; and the drink made of raisins will also be, unless the intention was otherwise. New wine, boiled down and spiced, is not included, because it rather resembles a compound. Wine made of water and grapes is evidently included. The beverage of quinces, and any other drinks not derived from the vine, are not embraced in the term wine, likewise vinegar does not come under that category. None of these things will be included in the term wine, if they were not classed as such by the testator. Sabinus, however, stated that everything will be included under the appellation of wine which the testator considered to be such. Therefore, vinegar which the testator considered as wine, as well as zythum, beer, and all other beverages which, according to the taste and use of man, are classed as wine, will be included. If all the wine which the testator possessed had become sour, the legacy will not be extinguished. 1If anyone should bequeath vinegar, that vinegar which the testator kept as wine will not be included. Fruits preserved in vinegar will be included, because they come under the head of vinegar. 2Likewise, where anyone bequeaths wine which he had in his possession, and it should afterwards become sour, even though it may have subsequently been placed with the vinegar by the testator, it will be included with the wine which was bequeathed, because that was designated which was wine at the time when the will was executed. This also is true unless opposed to the intention of the testator. 3Where wine which came from the estate of the testator’s father is bequeathed, that only is held to have been left which the former kept as wine, and not what his father considered to be such. Moreover, where wine belonging to a peculium is bequeathed, that only is included which the slaves regarded as wine. What is the reason for this distinction? It is because the wine of the testator’s father has already begun to belong to him, but that forming part of the peculium remained for the use of the slaves. 4The same rule applies where old wine is bequeathed.
10 Hermogenianus libro secundo iuris epitomarum. ex usu testatoris legatum aestimabitur, id est quot annorum vino pro vetere utebatur. quod si non appareat,
10 Hermogenianus, Epitomes of Law, Book II. The age of wine when bequeathed is established according to the custom of the testator, that is to say, how many years he considered necessary to render wine old, that is, if this was not known.
11 Ulpianus libro vicesimo tertio ad Sabinum. vetus accipietur, quod non est novum: id est et anni prioris vinum appellatione veteris continebitur:
11 Ulpianus, On Sabinus, Book XXIII. “Old wine” is understood to be such as is not new, that is to say, wine of the preceding year will be included under the term “old.”
12 Paulus libro quarto ad Sabinum. nam aliter observantibus quis finis aut quod initium veteris vini sumeretur?
12 Paulus, On Sabinus, Book IV. For where persons do not concur in this opinion, any end, or any beginning, can be taken to designate the age of wine.
13 Ulpianus libro vicesimo tertio ad Sabinum. ‘Ex eo vino quod in illo fundo nascetur, heres meus amphoras decem quotannis in annos singulos dato’. quo anno natum non fuisset, ex superiore anno eius fundi eum numerum amphorarum heredem daturum Sabinus existimat. quae sententia, si voluntas non adversetur, mihi quoque placet.
13 Ulpianus, On Sabinus, Book XXIII. “Let my heir give to So-and-So, every year, ten measures of wine out of that obtained from such-and-such an estate.” Sabinus thinks that where no wine was made during one year, the heir must furnish the amount to the legatee from the yield of the preceding year. This opinion I also adopt, if it is not contrary to the intention of the testator.
14 Pomponius libro sexto ad Sabinum. Vino legato ea demum vasa sequuntur, quae ita diffusa sunt, ut non ad perpetuum usum vasa reservarentur, veluti amphorae et cadi.
14 Pomponius, On Sabinus, Book VI. Where wine is bequeathed, it also includes the vessels, where they are not such as are reserved for constant use, for instance, jars and measures.
15 Proculus libro secundo epistularum. Vinum cum vasis legavit. negat Trebatius quod in doliis sit deberi et sensum testatoris alium putat esse, verborum alium: ceterum dolia in vasis vinariis non essent. ego et si dolia in vasis vinariis non sunt, tamen non concederem Trebatio vinum quod in doliis esset, id est quod in vasis non esset, non esse legatum. illud verum esse puto, cui vinum cum vasis legatum erit, ei amphoras cados, in quibus vina diffusa servamus, legatos esse: vinum enim in amphoras et cados hac mente diffundimus, ut in his sit, donec usus causa probetur, et scilicet id vendimus cum his amphoris et cadis: in dolia autem alia mente coicimus, scilicet ut ex his postea vel in amphoras et cados diffundamus vel sine ipsis doliis veneat.
15 Proculus, Epistles, Book II. A man bequeathed his wine and the vessels containing it. Trebatius denies that any wine, which is in casks, is included; and he holds that the intention of the testator was different from what is expressed in his words, and, moreover, casks are not classed as wine vessels. Although casks are not included in the term “wine vessels,” still, I do not agree with Trebatius in his opinion that the wine included in the casks, that is to say, which is not in vessels, is not bequeathed. I think, however, that it is true where wine is bequeathed to anyone with the vessels, that the measures and jars into which it is drawn are also bequeathed to the legatee; for we pour out wine into jars and measures, in order that it may remain in them, until we require it for use; and, again, we sell it together with said jars and measures. We place it in casks, however, with a different intention, that is to say, in order to draw it out of them into jars and measures, or to sell it without the casks.
16 Idem libro tertio ex posterioribus Labeonis. Qui vinum Surrentinum in urnalibus habebat diffusum, is tibi vinum legaverat in amphoris omne. illud quoque vinum, quod in urnalibus fuisset, legatum esse Labeo et Trebatius responderunt. 1Cui dulcia legata essent, si nihil aliud testamento significetur, omnia haec esse legata: mulsum passum defrutum et similes potiones, item uvas ficos palmas caricas. 2Quod si ita esset legatum: ‘vinum amphorarium aminaeum Graecum et dulcia omnia’, nihil inter dulcia, nisi quod potionis fuisset, legatum putat Labeo ex collatione vini amphorarii: quod non improbo.
16 The Same, On the Last Works of Labeo, Book III. A certain testator kept wine of Surrentum in earthen urns, and he bequeathed it to you in jars. Labeo and Trebatius gave it as their opinion that all the wine contained in the urns was bequeathed. 1Where sweetened wines are bequeathed, and no other designation is contained in the will, all the following are included in the legacy, namely: wine mixed with honey, wine made of raisins, new wine boiled and spiced, and similar beverages, including all those made of grapes, figs, dates, and dried fruits. 2Where a legacy is bequeathed as follows, “I give and bequeath the wine in my jars, my Aminisean and Greek wine, and all my sweet beverages,” Labeo thinks that nothing will be included under the latter term, except the beverages which have been made by mixing other substances with the wine contained in the jars of the testator. This opinion I do not reject.