De peculio legato
(Concerning legacies of peculium.)
1 Paulus libro quarto ad Sabinum. Servo legato cum peculio et alienato vel manumisso vel mortuo legatum etiam peculii exstinguitur.
1 Paulus, On Sabinus, Book IV. Where a slave is bequeathed with his peculium, and he is either alienated or manumitted, or dies, the legacy of the peculium is also extinguished.
2 Gaius libro octavo decimo ad edictum provinciale. Nam quae accessionum locum optinent, exstinguuntur, cum principales res peremptae fuerint.
2 Gaius, On the Provincial Edict, Book XVIII. For those things which occupy the place of accessories are extinguished when the principal property is destroyed.
3 Paulus libro quarto ad Sabinum. At si ancilla cum suis natis legata sit, etiam mortua ea vel alienata vel manumissa nati ad legatarium pertinebunt, quia duo legata sunt separata.
3 Paulus, On Sabinus, Book IV. Where, however, a female slave is bequeathed with her children, and either dies, or is alienated or manumitted, her children will belong to the legatee, because there are two distinct legacies.
4 Gaius libro octavo decimo ad edictum provinciale. Sed et si cum vicariis suis legatus sit servus, durat vicariorum legatum et mortuo eo aut alienato aut manumisso.
4 Gaius, On the Provincial Edict, Book XVIII. When, however, a slave is bequeathed with his sub-slaves, the legacy of the sub-slaves will continue to exist, if the slave dies, or is alienated or manumitted.
5 Paulus libro quarto ad Sabinum. Peculio legato constat heredem nomina peculiaria persequi posse, et insuper ipsum si quid debeat servo, reddere legatario debere.
5 Paulus, On Sabinus, Book IV. When peculium is bequeathed, it is well established that the heir can collect any debts due to the peculium, and be required to pay them to the legatee, over and above anything which he himself may owe to the slave.
6 Ulpianus libro vicesimo quinto ad Sabinum. Si peculium legetur et sit in corporibus, puta fundi vel aedes, si quidem nihil sit, quod servus domino vel conservis liberisve domini debeat, integra corpora vindicabuntur: sin vero sit, quod domino vel supra scriptis personis debeatur, deminui singula corpora pro rata debebunt. et ita et Iulianus et Celsus putant. 1Et si fuerit legatum peculium non deducto aere alieno, verendum, ne inutile legatum sit, quia quod adicitur contra naturam legati sit. sed puto verum hanc adiectionem non vitiare legatum, sed nihil ei adicere: nec enim potest crescere vindicatio peculii per hanc adiectionem. plane si proponas legatarium nactum possessionem rerum, exceptione doli adversus heredem vindicantem uti potest: habet enim in solidis rebus voluntatem aeris alieni non deducendi. sed et si dominus remittere se servo quod debet vel nihil sibi servum debere significaverit, valet haec adiectio, quia nuda voluntate potest dominus servo remittere quod ei debet. 2Vicario autem meo mihi legato an et vicarii mei peculium ad me pertineat, quaeritur. et putamus contineri legato vicarii eius peculium, nisi adversa sit voluntas testatoris. 3Si servus et vicarius eius liberi esse iussi sint eisque peculia sua legata sint, verba secundum voluntatem testatoris exaudienda, tamquam de duobus separatisque peculiis testatore locuto: et secundum haec vicarius vicarii non communicabitur, nisi haec mens fuit testantis. 4Sicut autem aes alienum, hoc est quod debetur domino, minuit legatum peculium, ita per contrarium id quod dominus debet servo augere debet. sed huic sententiae adversatur rescriptum imperatoris nostri et patris eius, quod ita est: ‘cum peculium servo legatur, non etiam id conceditur, ut petitionem habeat pecuniae, quam se in rationem domini impendisse dicit’. quid tamen si haec voluntas fuit testatoris? cur non possit consequi? certe compensari debet hoc quod impendit cum eo quod domino debetur. an et quod dominus scripsisset se servo debere, peculio legato cederet? Pegasus negat: idem Nerva: et cum Gnaeus Domitius filiae suae peculium quod eius esset legasset, et annuum, quod ei solitus erat dare, biennio non dedisset, sed in rationibus suis rettulisset filiae se debere quinquaginta, Atilicinus existimavit legato non cedere, quod verum est, quia consonat rescripto. 5Non solum autem quod domino debetur peculio legato deducitur, sed et si quid heredi debitum fuit.
6 Ulpianus, On Sabinus, Book XXV. Where a peculium is bequeathed which consists of tangible property (as, for instance, lands or houses), it can be claimed in its entirety, if the slave is not indebted to his master, to his fellow-slaves, or to the children of his master. If, however, he owes anything to the latter, or to the other persons above mentioned, the property should be diminished pro rata. Julianus and Celsus are of the same opinion. 1If a peculium should be bequeathed without the deduction of the indebtedness of the slave, it is to be apprehended that the legacy will be void, because what is added is contrary to the nature of the legacy. I think, however, that it is true that the validity of the legacy is not impaired by this addition, but the testator has also added nothing of the amount of it, as the claim to the peculium cannot be increased in this manner. It is clear that if you suppose that the legatee has obtained possession of the property, he can avail himself of an exception on the ground of bad faith against the heir, if he brings an action against him; for he is protected by the will of the testator, who directed that the debt should not be deducted. If, however, the master had stated that what the slave owed should be given to him, or indicated that the latter did not owe him anything, the addition above mentioned will be valid; because a master can, by the mere expression of his wishes, give to the slave what the latter owes him. 2However, where my sub-slave has been bequeathed to me, the question arises whether the peculium of said sub-slave will be mine. We think that his peculium is included in the legacy of the sub-slave, unless this is contrary to the intention of the testator. 3Where a slave and his sub-slave are directed to be free by a will, and their peculia are bequeathed to them, the words of the bequest ought to be interpreted in accordance with the intention of the testator, as if the latter referred to separate and distinct peculia. In accordance with this, a sub-slave will not be held in common where there are two freedmen, unless such was the intention of the testator. 4As on the one hand, the debt of the slave, that is to say what is due to his master, diminishes the legacy of the peculium; so, on the other, what the master owes to the slave should increase it. A Rescript of Our Emperor and his father, which is as follows, is however, opposed to this opinion: “Where a peculium is bequeathed to a slave, the right is not granted to the latter to recover from the heir any money which he may say he has expended on his master’s account.” But what if this was the intention of the testator, could he not then recover it? What he has expended for this purpose should certainly be subject to set-off against that which was due to his master. Will what his master stated in writing was due from him to the slave be included in the legacy of the peculium? Both Pegasus and Nerva say that it will not. When Gneus Domitius bequeathed his daughter her peculium, but he had not paid her, for two years, the allowance which he was accustomed to give her, but retained it for his own purposes and stated that he owed his daughter fifty aurei, Atilicinus held that this was not included in the legacy. This opinion is correct, for the reason that it agrees with the Rescript. 5Not only what is due to the master is deducted from the peculium bequeathed, but also anything that may be due to the heir.
7 Pomponius libro septimo ad Sabinum. Si quis creditori suo adrogandum se dederit et agetur de peculio cum adrogatore, idem puto dicendum, quod de herede dicitur.
7 Pomponius, On Sabinus, Book VII. If anyone should give himself to his creditor to be arrogated, and proceedings based on the peculium are instituted against the arrogator, I think that the same rule will apply with reference to the heir.
8 Ulpianus libro vicesimo quinto ad Sabinum. Denique Pegasus respondit, si statulibero, cui peculium legatum sit, heres interim crediderit, id ipso iure detrahi et corpora singula etiam per hoc aes alienum deminui. 1Proinde si pure libertatem accipiet et heres vel vivo domino vel ante aditam hereditatem servo crediderit, legatum peculii minuetur secundum Iuliani sententiam, licet dominus servi numquam fuerit. 2Qui Stichum et Pamphilum servos habebat, testamento eos manumisit et unicuique peculium suum legavit. placet, quod alter alteri debet, de peculio eius decedere et alterius accedere legato. 3Item quaeritur, si servo libertas data sit, si decem dedisset heredi, peculiumque ei legatum sit, an decem, quae dedisset heredi, debeant de peculio decedere. et est verum quod Sabino placuit, hoc minus esse in peculio legato. 4Plus ait Sabinus, si statuliber servum heredi vendiderit, perinde desinere eum in peculio esse, atque si extraneo vendidisset. 5His consequenter quaeritur, si servus cum domino de libertate pactus fuerit et partem pecuniae dederit et ante quam residuum dederit dominus decesserit liberumque esse testamento iusserit cum peculio legato, an quod domino dederit in peculio sit imputandum. et ait Labeo de peculio decedere. plane si nondum dederat, sed, donec totum traderet, pro deposito apud eum fuerit, id in peculio esse placuit. 6Item si servo peculium sit legatum et a debitore eius peculiari heres vetitus sit petere, verum est hoc minus esse in legato peculio, hoc est detrahendum id quod debitori legatum est. 7Interdum etsi non sit legatum peculium, velut legatum sic accipitur, id est in huiusmodi specie: quidam servo libertatem, si rationes reddidisset, dederat, et si heredibus centum intulisset. imperator igitur noster cum patre rescripsit, peculium quidem non nisi legatum deberi: ‘verum’, inquit, ‘si condicionibus praescriptis paruit servus, testatorem voluisse eum retinere peculium interpretamur’: videlicet ex eo, quod ex peculio eum iusserat centum inferre. 8Utrum autem id demum peculium accipimus, quod mortis tempore fuit, an vero et quod postea accessit applicamus vel quod decessit detrahimus? et Iulianus alias accipiendum legatum peculii ait, si ipsi servo legetur, alias, si alii: nam si ipsi, id tempus in legato spectandum, quo dies legati cedit: si vero extraneo, mortis tempus, sic tamen, ut incrementa ex rebus peculiaribus ad eum perveniant, ut puta partus ancillarum vel fetus pecorum: quod autem ex operis suis vel ex alia re accedit, id, si alii quam ipsi legetur peculium, non debebitur. hoc utrumque Iulianus secundum voluntatem testatoris scribit: cum enim ipsi suum peculium legatur, verisimile est eum omne augmentum ad ipsum pertinere voluisse, cui patrimonium manumisso futurum est, cum alii, non: sic tamen, ut, si in alterius persona hoc eum sensisse appareat, idem dicas.
8 Ulpianus, On Sabinus, Book XXV. Finally, Pegasus gives it as his opinion that if an heir should lend money to a slave, who is to be free under a certain condition, before the condition is fulfilled, the amount will be deducted by operation of law, and each individual part of the peculium will be diminished by this debt. 1Hence, if a slave should receive his freedom unconditionally, and the heir should lend him money, either during the lifetime of the master, or before the estate was entered upon, a legacy of the peculium will be diminished, according to the opinion of Julianus, although the heir may never have become the master of the slave. 2Where a testator owned the slaves, Stichus and Pamphilus, and, having manumitted them by his will, bequeathed to each of them his peculium, it was decided that what one of the slaves owed to his fellow-bondman should be taken from his peculium, and be added to the legacy of the other. 3Where freedom was granted to a slave if he should pay the heir ten aurei, and his peculium was bequeathed to him, it was also asked whether the ten aurei which he had paid to the heir should be deducted from the peculium. Sabinus holds, and this is correct, that the legacy of the peculium is diminished to this extent. 4Sabinus goes still farther, and says that if a slave to be free upon a condition should sell to the heir one of his own slaves, the latter must be deducted from the peculium just as if he had been sold to a stranger. 5Consequently, the question is asked if, where a slave has made an agreement with his master with reference to the price of his freedom, and he pays a portion of the money, and before he pays the remainder his master should die, and the latter, by his will, directs that the said slave shall be free and receive the legacy of his peculium, must what he paid to his master be included in his peculium? Labeo says it should be deducted from it. It is evident, if he has not yet paid it but has kept it in his hands as a deposit until he could pay the entire amount, that it should be included in his peculium. 6Likewise, where his peculium is bequeathed to a slave, and the heir has been forbidden to collect from a debtor to said peculium a claim which was due; it is a fact that this should be deducted from the peculium bequeathed, that is to say, that what was left to the said debtor should be taken from the peculium. 7Sometimes, where the peculium is not bequeathed, this is understood to have been done, as appears from the following example. A certain man granted a slave freedom if he should render his accounts, and pay a hundred aurei to his heirs. With reference to this Our Emperor, together with his lather, stated in a Rescript that while the peculium was not due unless it was bequeathed, still, he said, if the slave complied with the conditions prescribed, he concluded that it was the intention of the testator that he should keep his peculium, especially as he had directed him to pay a hundred aurei out of his peculium to his heirs. 8Moreover, shall we understand the peculium to be the amount of the latter at the time of death, or shall we add to it any subsequent accessions, or subtract from it any subsequent diminutions? Julianus says that where the peculium is bequeathed, a difference should be understood to exist when it was left to the slave himself, and when it was left to others. If it was left to himself, the time of the vesting of the legacy must be considered, but if it was left to a stranger, the time of death should be taken into account; but in such a way that the increase of the property composing the peculium may come into the hands of the legatee; as, for instance, the offspring of female slaves, or the increase of cattle. Any accession, however, derived from the labor of the slaves or from any other source, will be due to no one else than the slave to whom the peculium was bequeathed. Julianus says that both of these cases should be decided in accordance with the intention of the testator; for, when his own peculium is bequeathed to the slave, it is probable that the testator intended the entire increase of the same to belong to him, in whom, after his manumission, his patrimony would vest. This is not the case where the peculium is bequeathed to another; still, you may say that the rule will apply if it is evident that the testator had the same intention with reference to the other party.
9 Paulus libro quarto ad Sabinum. Id quod servo, qui in ipsius peculio est, debetur, non deducitur ex legato peculio, quamvis conservus eius sit. 1Si conservum suum vulneraverit servus et viliorem fecerit, Marcellus non esse dubitandum deduci ex peculio, quod domino interesset (nam quid interest, conservum vulneret an scindat aliquid vel frangat an subripiat? quo casu sine dubio minuitur peculium), sed non ultra simplum. 2Sed si se vulneravit vel etiam occidit, nihil est deducendum hoc nomine: alioquin dicemus et si fugerit, deducendum id, quanto vilior sit factus propter fugam.
9 Paulus, On Sabinus, Book IV. Anything which is due from one slave to another to whom the former is bequeathed with his own peculium, of which the legatee forms a part, is not deducted from the legacy, even though the legatee may be his fellow-slave. 1If one slave should wound one of his fellow-slaves, and, by doing so, depreciate his value, Marcellus says that there is no doubt that the amount due to the master as damages should be deducted from the peculium of the slave. For what difference is there if one slave should wound his fellow-slave, or should cut to pieces, break, or steal any other property? In this instance, his peculium will undoubtedly be diminished, but not to a greater extent than the actual amount of the injury. 2If, however, the slave should wound himself, or even commit suicide, nothing ought to be deducted from the peculium on this account. We would be of a different opinion if he should take to flight, for the amount of depreciation of his value, in consequence, should be deducted from his peculium.
10 Pomponius libro septimo ad Sabinum. Si peculium servo vel filio praelegare velis, ne deducatur id quod tibi debebitur, specialiter ea quae in peculio erunt leganda sunt.
10 Pomponius, On Sabinus, Book VII. If you wish to bequeath his peculium to your slave, or to your son as a preferred legacy, the property included in the peculium must be specially bequeathed, to prevent what he owes you from being deducted from the same.
11 Ulpianus libro vicesimo nono ad edictum. Ei quoque, qui nihil in peculio habet, potest peculium legari: non enim tantum praesens, sed etiam futurum peculium legari potest.
11 Ulpianus, On the Edict, Book XXIX. A peculium can also be bequeathed to someone who has none, for such a bequest can be made not only of peculium owned at the present time, but also of any which may subsequently be acquired.
12 Iulianus libro trigesimo septimo digestorum. Tunc inutile legatum peculii fit, cum servus vivo testatore decedit: ceterum si mortis tempore servus vixerit, peculium legato cedet:
12 Julianus, Digest, Book XXXVII. A bequest of peculium is void where the slave dies during the lifetime of the testator, but if he should be living at the time of his death, the peculium will be included in the legacy.
13 Celsus libro nono decimo digestorum. aliter atque si servus vestitus legatus foret.
13 Celsus, Digest, Book XIX. The rule is different where the slave is bequeathed with his clothing.
14 Alfenus Varus libro quinto digestorum. Quidam in testamento ita scripserat: ‘Pamphilus servus meus peculium suum cum moriar sibi habeto liberque esto’. consulebatur, rectene Pamphilo peculium legatum videretur, quod prius quam liber esset peculium sibi habere iussus esset. respondit in coniunctionibus ordinem nullum esse neque quicquam interesse, utrum eorum primum diceretur aut scriberetur: quare recte peculium legatum videri, ac si prius liber esse, deinde peculium sibi habere iussus est.
14 Alfenus Verus, Digest, Book V. A certain individual inserted the following provision into his will: “When I die, let my slave Pamphilus have for himself his own peculium and let him be free.” It was asked whether or not the peculium should be held to have been legally bequeathed to Pamphilus, for the reason that he was directed to take the peculium before he became free. The answer was that there was no order to be observed in the two provisions, which in this instance were joined, and that it did not make any difference which of the two was mentioned or written first; and therefore that the peculium was held to have been legally bequeathed, just as if the slave had been directed to be free first, and to receive the peculium afterwards.
15 Idem libro secundo digestorum a Paulo epitomatorum. Servo manumisso peculium legatum erat: alio capite omnes ancillas suas uxori legaverat: in peculio servi ancilla fuit. servi eam esse respondit neque referre, utri prius legatum esset.
15 The Same, Epitomes of the Digest by Paulus, Book II. His own peculium was bequeathed to a manumitted slave. By another clause of the will the testator left all his female slaves to his wife. One of these formed part of the peculium of the slave who had been manumitted, and it was decided that she belonged to the said slave, and that it did not make any difference which bequest had been made first.
16 Africanus libro quinto quaestionum. Stichus habet in peculio Pamphilum: hunc dominus noxali iudicio defendit et damnatus litis aestimationem solvit: deinde Stichum testamento manumisit eique peculium legavit: quaesitum est, an quod Pamphili nomine praestitum sit, ex peculio vel ipsius Pamphili vel Stichi deducendum sit. respondit Pamphili quidem de peculio utique deducendum, quantacumque ea summa esset, id est etiam si eum noxae dedere expedisset: quidquid enim pro capite servi praestitum sit, in eo debitorem eum domini constitui. quod si Pamphili peculium non sufficiat, tunc ex peculio Stichi non ultra pretium Pamphili deduci debere. 1Quaesitum est, si ex alia qua causa Pamphilus pecuniam domino debuisset nec ea ex peculio eius servari posset, an usque ad pretium eius ex peculio Stichi possit deducere. negavit: neque enim simile id superiori esse. ibi enim propterea pretium vicarii deducendum, quod eo nomine ipse Stichus ob defensionem vicarii sui domino debitor constituatur, at in proposito quia Stichus nihil debeat, ex eius peculio nihil esse deducendum, sed ex Pamphili dumtaxat, qui certe ipse in suo peculio esse intellegi non potest.
16 Africanus, Questions, Book V. Stichus had Pamphilus in his peculium, and the master defended him in a noxal action, and, having lost the case, paid the amount of the damages assessed. Then he manumitted Stichus by will, and bequeathed to him his peculium. The question arose whether what had been paid on account of Pamphilus, as damages, should be deducted from the peculium of Pamphilus himself, or from that of Stichus. The answer was that the deduction must be made from the peculium of Pamphilus, no matter what the sum might be; that is to say, even if it should be expedient to surrender him in satisfaction of the damage committed, for everything that is paid out by the master on account of a slave makes him a debtor to his master. If the peculium of Pamphilus was not sufficient, an amount not more than the value of Pamphilus should be deducted from the peculium of Stichus. 1The question arose if Pamphilus, for some other reason, owed a sum of money to his master, and this could not be obtained from his peculium, whether an amount to the extent of his value could be deducted from the peculium of Stichus. This was denied, for the case is not similar to the former one. The reason why the price of the sub-slave should be deducted is because Stichus himself became the debtor to his master on account of the defence of the sub-slave by the latter. But, in the instance proposed, nothing can be deducted from his peculium, because Stichus owes nothing, but the deduction must only be made for the peculium of Pamphilus, who certainly cannot himself be understood to form part of his own peculium.
17 Iavolenus libro secundo ex Cassio. Qui peculium servi legaverat, iudicium eo nomine acceperat, deinde decesserat. placuit non aliter peculium ex causa legati praestari, quam si de accepto iudicio heredi caveretur.
17 Javolenus, On Cassius, Book II. A certain individual who had bequeathed the peculium of his slave undertook to defend him in court, and afterwards died. It was decided that the heir was not compelled to deliver the peculium on account of the legacy, unless security to indemnify him for any loss arising from the defence of the slave was furnished.
18 Marcianus libro sexto institutionum. Si servo manumisso peculium legatum fuerit, in eum sine dubio creditoribus peculiariis actiones non competunt: sed non alias heres peculium praestare debet, nisi ei caveatur defensu iri adversus creditores peculiarios.
18 Marcianus, Institutes, Book VI. If his own peculium should be bequeathed to a manumitted slave, there is no doubt that no action will lie against him in favor of the creditors of his peculium, but the heir will not be obliged to deliver it, unless security is furnished to defend him against the said creditors.
19 Papinianus libro septimo responsorum. Cum dominus servum vellet manumittere, professionem edi sibi peculii iussit atque ita servus libertatem accepit. res peculii professioni subtractas non videri manumisso tacite concessas apparuit. 1Testamento data libertate peculium legaverat eundemque postea manumiserat: libertus, ut et nominum peculii actiones ei praestarentur, ex testamento consequetur. 2Filius familias, cui pater peculium legavit, servum peculii vivo patre manumisit: servus communis omnium heredum est exemptus peculio propter filii destinationem, quia id peculium ad legatarium pertinet, quod in ea causa moriente patre inveniatur:
19 Papinianus, Opinions, Book VII. Where a master wishes to manumit his slave, and directs him to furnish him with a list of the property of which his peculium is composed, and, after doing so, the slave receives his freedom, it is evident that any property belonging to the peculium which the slave had withheld from his statement will not have been tacitly given to him when he was manumitted. 1Where freedom is granted by a will, and the testator also bequeaths the peculium, and afterwards manumits the slave, the freedman can, under the terms of the will, demand that the rights of action for claims belonging to the peculium shall be assigned to him. 2A son under paternal control, to whom his father bequeathed his peculium, manumitted a slave who formed part of the same, during the lifetime of his father. This slave became the common property of all the heirs, and was removed from the peculium on account of the intention of the son, because that part of the peculium only belongs to the legatee which is found to be included in it at the time of the father’s death.
20 Marcianus libro septimo institutionum. nihilque interest, ante legatus, deinde inutiliter manumissus sit an contra.
20 Marcianus, Institutes, Book VII. In a case of this kind, it makes no difference whether the bequest of the peculium was made first, and the illegal manumission was granted afterwards; or vice versa.
21 Scaevola libro octavo quaestionum. Si Sticho manumisso peculium legatum sit et Titio servus peculiaris, quantum peculio detractum erit ob id quod domino debetur, tantum ei accedere, cui vicarius legatus est, Iulianus ait.
21 Scævola, Questions, Book VIII. If, after Stichus has been manumitted, his peculium should be left to him, and a slave belonging to said peculium is bequeathed to Titius, Julianus says that the amount deducted from the peculium on account of the debt due to the master will be added to that received by him to whom the sub-slave was bequeathed.
22 Labeo libro secundo posteriorum a Iavoleno epitomatorum. Dominus servum testamento manumiserat et ei peculium legaverat: is servus mille nummos domino debuerat et eos heredi solvit. respondi omnes eas res deberi orcino, si pecuniam orcinus quam debuerat solvisset. 1Dominus servum, qui cum eo vicarium communem habebat, testamento manumiserat et peculium ei legaverat, deinde ipsum vicarium, qui communis erat, nominatim et ipsi et libertae suae legaverat. respondi partem quartam libertae, reliquam partem quartam liberti futuram: quod et Trebatius.
22 Labeo, Last Epitomes by Javolenus, Book II. A master manumitted his slave by his will, and left him his peculium. The slave owed his master a thousand sesterces, and paid them to the heir. I rendered the opinion that all the property composing the peculium was due to the enfranchised slave, if he had paid the money which he owed. 1A master manumitted his slave, who held a sub-slave in common with him, left the former his peculium, and then bequeathed specifically the sub-slave himself, who was held in common by them, to him and to his freedwoman. I held that a fourth part of the slave would belong to the freedwoman, and that the remaining three-fourths would belong to the freedman; which is also the opinion of Trebatius.
23 Scaevola libro quinto decimo digestorum. Dominus Sticho servo suo, qui bona liberti eius gessit, cui pro parte dimidia testamento heres exstiterat, in quibus negotiis gestis et kalendaria fuerunt, testamento suo libertatem dederat, si rationem reddidisset, eique peculium suum per fideicommissum dedit: Stichus summas, quibus reliquatus erat tam ex kalendario quam ex variis causis, reddidit manentibus debitoribus, pro quibus ipse pecuniam heredibus patroni refuderat, libertatemque adeptus decessit. quaesitum est, an heredibus Stichi adversus nomina debitorum, pro quibus Stichus pecuniam heredibus patroni intulit, heredes patroni ex causa fideicommissi compellendi sint actiones praestare, cum nihil aliud a Sticho patrono debitum fuerit. respondit praestandum. 1Testamento codicillisve servos manumisit et peculia legavit et de Sticho ita cavit: ‘Stichum servum meum liberum esse volo eique volo dari decem aureos et quidquid ex ratione loculorum meorum habet: rationes autem heredibus meis dari volo. his omnibus, quos hoc testamento manumisi, peculia sua concedi volo’. quaesitum est, an, quod amplius rationi loculorum in diem mortis erogavit Stichus ex peculio suo, ab heredibus recipere debeat, cum ex consuetudine domus esset, ut quidquid amplius ex suo in ratione loculorum erogasset, dominica ratio ei deberet atque exsolveret. respondit secundum ea, quae propter consuetudinem proponerentur, id quoque peculio legato contineri, quod et dominica ratio deberet et solita erat reddere. 2Servis libertates legataque dederat et condicionem ita scripserat: ‘ὅσους κατέλιπον ἐλευθέρους καὶ τὰ ληγάτα αὐτοῖς, τούτους βούλομαι εἶναι ἀνεξετάστουσ’. quaesitum est, an peculia quoque legata his videbuntur. respondit secundum ea quae proponerentur non videri legata. 3Item quaesitum est, an ex isdem verbis reliqua rationum quasi legata retinere possint, aut si res dominicas apud se habuerint, aut, si qui eorum coloni praediorum fuerunt, pensiones. respondit supra responsum.
23 Scævola, Digest, Book XV. A master, by his will, bequeathed freedom to his slave Stichus, who transacted the business of one of his freedmen, to half of whose estate the master was the testamentary heir; a list of claims being included among the assets. The bequest of freedom was dependent upon the condition that he should render an account; and he left him his peculium under a trust. Stichus rendered an account of the sums of money which he had collected from the claims, as well as those which he had obtained from other sources, the debtors in whose behalf he himself had paid the heirs of his patron still remaining liable for their obligations; and having obtained his freedom, he died. The question arose whether, by virtue of the trust, the heirs of the patron could be compelled to assign to the heirs of Stichus their rights of action against the debtors for whom Stichus had made payment, when there was nothing else due from Stichus to the patron. The answer was that they could be compelled to do so. 1A certain testator manumitted his slaves by his will and a codicil, bequeathed them their peculium, and made the following provision with reference to Stichus: “I wish my slave Stichus to be free, and that ten aurei be given to him, together with whatever money he may have in my purse, and I desire that he render an account to my heirs. I also wish the peculium of all the slaves whom I have manumitted to be given to them.” The question arose whether Stichus should receive from the heirs any excess over and above the contents of his master’s purse, which he had expended for his benefit at the time of his death, as it was the custom of the household that, where he expended anything more than the contents of the purse, for him to be reimbursed for the same by his master. The answer was that, according to the facts stated with reference to the custom of the household, that also was included in the peculium bequeathed which was due to him from his master, and which the latter was accustomed to return to him. 2A testator granted freedom to his slaves, left them certain legacies, and then prescribed the following condition: “I desire that no accounts be required from the slaves whom I have manumitted, and to whom I have bequeathed legacies.” The question arose whether their peculium should be considered to have been bequeathed to them by this clause. The answer was that, according to the facts stated, the peculium was not considered to have been bequeathed. 3It was also asked whether, under this provision, the slaves could retain as part of their legacies anything that remained due to them from their master, either if they had any of his property in their hands, or if, where they were his tenants, they owed him rent. The reply was that the answer has already been given.
24 Ulpianus libro quadragesimo tertio ad Sabinum. Si legatus fuerit servus, peculium excipere non est necesse, quia non sequitur, nisi legetur.
24 Ulpianus, On Sabinus, Book XLIII. Where a slave is bequeathed, it is unnecessary to except his peculium, because, unless expressly specified, it is not included in the legacy.
25 Celsus libro nono decimo digestorum. Si servus liber esse iussus sit eique peculium legatum sit, vicariorum eius vicarii legato continentur.
25 Celsus, Digest, Book XIX. When a slave is ordered to be free by a testator, and his peculium is left to him, the sub-slaves of his sub-slaves are embraced in three legacies.
26 Scaevola libro tertio responsorum. ‘Titi fili, e medio praecipito sumito tibique habeto domum illam, item aureos centum’: alio deinde capite peculia filiis praelegavit. quaesitum est, an peculio praelegato et centum aurei et usurae eorum debentur, cum rationibus breviariis in aere alieno et sortem et usuras inter ceteros creditores complexus sit. respondit, si id faenus nomine filii exercuisset et usuras ita, ut proponeretur, filio adscripsisset, id quoque peculio legato deberi.
26 Scævola, Opinions, Book III. “Let my son Titius take from the assets of my estate, as a preferred legacy, such-and-such a house, and a hundred aurei.” Then, under another article, the testator left to his children their peculia as preferred legacies. The question arose, whether the hundred aurei and the interest on the same would be included in the preferred legacy of the peculium, together with the account-books containing the amounts due, both principal and interest, to the other creditors. The answer was if the father had lent money in the name of his son, and had credited the latter with interest on the same, as might be suggested, this also would be included in the legacy of the peculium.