De penu legata
(Concerning legacies of provisions.)
1 Ulpianus libro vicesimo quarto ad Sabinum. Uxori suae in annos singulos penoris aliquid heres dare iussus est, si non dedisset, nummos dare damnatus est: quaeritur, an penus legata peti possit an vero solummodo sit in praestatione et, si non praestetur, tunc quantitas petatur. et si quidem semel penus sit legata, non per singulos annos, certo iure utimur, ut et Marcellus libro trigesimo nono digestorum apud Iulianum notat, in praestatione esse dumtaxat penum, quantitatem vero et peti posse. habebit igitur heres oblationem tamdiu, quamdiu lis cum eo de pecunia contestetur, nisi forte aliud tempus vel mente vel verbis testator praestituit. quod si in annos singulos penus legata sit, per singulos annos penus adhuc poterit praestari, si minus, summae per singulos annos petentur. quid ergo, si una summa legata sit et primo penus non sit praestita? utrum tota summa debeatur, quasi toto penoris legato transfuso, an vero quantitas primi anni aestimationis sola sit translata, dubitari potest. puto tamen sic voluntatem sequendam testatoris, ut tota summa ilico, postquam cessaverit heres dare penum uxori, praestetur, heredis indevotione coercenda.
1 Ulpianus, On Sabinus, Book XXIV. An heir was ordered by the testator to furnish the wife of the latter with a certain quantity of provisions every year, and in case he should not do so, he charged him to pay her a sum of money. The question arose whether she could bring an action to recover the provisions bequeathed, or whether the delivery was merely voluntary, and if the provisions were not furnished, whether they could be demanded. And, indeed, if such a legacy was only bequeathed once, and not payable annually, there is no doubt (as Marcellus observes in the Thirty-ninth Book of the Digest on Julianus) that the delivery of the articles themselves is not required, but that suit can be brought to recover the amount in money. Therefore, the heir will have the right to tender the provisions, or the cash, until issue is joined in an action to recover their value in money; unless the testator, either by implication, or expressly, indicated some other time for payment. Where, however, the legacy of provisions was to be paid annually, it must still be furnished in kind every year, or, if it is not, suit for the amount due can be brought annually. But what if a single sum of money was bequeathed, and the provisions were not furnished at the end of the first year? Can it be doubted that the whole sum would be payable, just as if the entire amount of the legacy of the provisions was due; or should the estimated value of the provisions to be furnished during the first year merely be taken into consideration? I think that the intention of the testator should be followed, and the entire sum ought to be paid at once, after the heir has failed to furnish the provisions to the wife, and that he should be punished for his want of filial piety.
2 Marcianus libro tertio regularum. Penu certa cum vasis certis legata et consumpta ne vasa quidem cedunt legato exemplo peculii.
2 Marcianus, Rules, Book III. Where a certain kind of provisions is bequeathed, together with the vessels in which they are contained, and they have been consumed, the vessels are not included in the legacy, as in the case of the peculium.
3 Ulpianus libro vicesimo secundo ad Sabinum. Qui penum legat quid legato complectatur, videamus. et Quintus Mucius scribit libro secundo iuris civilis penu legata contineri, quae esui potuique sunt. idem Sabinus libris ad Vitellium scribit: quae harum, inquit, patris familiae uxoris liberorumve eius vel familiae, quae circa eos esse solet, item iumentorum, quae dominici usus causa parata sunt. 1Sed Aristo notat etiam quae esui potuique non sunt contineri legato, ut puta ea, in quibus esse solemus, oleum forte, garum muriam mel ceteraque his similia. 2Plane, inquit, si penus esculenta legetur, Labeo libro nono posteriorum scribit nihil eorum cedere, quia non haec esse, sed per ea solemus. Trebatius in melle contra scribit, merito, quia mel esse solemus. sed Proculus omnia haec contineri recte scribit, nisi contraria mens testatoris appareat. 3Esculenta, utrum ea quae esse, an et ea per quae esse solemus, legaverit? et ea quoque legato contineri credendum, nisi contraria mens patris familias doceatur. mella certe semper esculentae penui cedere, lacertas quoque cum muria sua contineri nec Labeo negavit. 4Poculenta penu ea, quae vini loco pater familias habuit, continebuntur, supra scripta vero non continebuntur. 5Penori acetum quoque cedere nemo dubitat, nisi exstinguendi ignis causa fuit paratum: tunc enim esui potuique non fuit: et ita Ofilius libro sexto decimo actionum scribit. 6Sed quod diximus ‘usus sui gratia paratum’ accipiendum erit et amicorum eius et clientium et universorum, quos circa se habet, non etiam eius familiae, quam neque circa se neque circa suos habet: puta si qui sunt in villis deputati. quos Quintus Mucius sic definiebat, ut eorum cibaria contineri putet, qui opus non facerent: sed materiam praebuit Servio notandi, ut textorum et textricum cibaria diceret contineri: sed Mucius eos voluit significare, qui circa patrem familias sunt. 7Simili modo et iumentorum cibaria penui continentur, sed eorum iumentorum, quae usibus ipsius et amicorum deserviunt: ceterum si qua iumenta agris deserviebant vel locabantur, legato non cedere cibaria eorum. 8Sive autem frumentum sive quid leguminis in cella penuaria habuit, penori legato continebitur, sed et hordeum sive familiae sive iumentorum gratia: et Ofilius scribit libro sexto decimo actionum. 9Ligna et carbones ceteraque, per quae penus conficeretur, an penori legato contineantur, quaeritur. et Quintus Mucius et Ofilius negaverunt: non magis quam molae, inquiunt, continentur. idem et tus et ceras contineri negaverunt. sed Rutilius et ligna et carbones, quae non vendendi causa parata sunt, contineri ait. Sextus autem Caecilius etiam tus et cereos in domesticum usum paratos contineri legato scribit. 10Servius apud Melam et unguentum et chartas epistulares penoris esse scribit et est verius haec omnia, odores quoque contineri: sed et chartas ad ratiunculam vel ad logarium paratas contineri. 11Vasa quoque penuaria quin contineantur, nulla dubitatio est. Aristo autem scribit dolia non contineri, et est verum secundum illam distinctionem, quam supra in vino fecimus. nec frumenti nec leguminum thecae (arculae forte vel sportae) vel si qua alia sunt, quae horrei penuarii vel cellae penuariae instruendae gratia habentur, non continebuntur, sed ea sola continentur, sine quibus penus haberi non recte potest.
3 Ulpianus, On Sabinus, Book XXII. Where anyone bequeaths provisions, let us see what is embraced in the legacy. Quintus Mucius says, in the Second Book of the Civil Law, that whatever can be eaten or drunk is considered as forming part of a legacy of provisions. Sabinus also says, in his Books on Vitellius, that everything is included in such a legacy that is ordinarily consumed by the head of the household, his wife, his children, or his slaves, and that this also applies to such beasts of burden as are destined for the use of the testator. 1Aristo, however, remarks, that some things which are not eaten or drunk are included in the legacy; for instance, those that we are accustomed to use with them, as oil, sauce made from fish, brine, honey, and other articles of this kind. 2If articles used with food are bequeathed, it is clear (as Labeo says in the Ninth Book of his Last Works) that none of them should be embraced in the legacy, because we do not eat these things, but, by means of them, we are accustomed to eat others. Trebatius is of a different opinion so far as honey is concerned, and with good reason, because we are in the habit of eating honey. Proculus, however, very properly holds that all articles of this kind are included in the legacy, unless it is evident that this was not the intention of the testator. 3Where a bequest is made of provisions, does this include articles which we are accustomed to eat, or those by means of which we eat others? It should be held that the latter are also included in the legacy, unless the intention of the testator is shown to be otherwise. It is certain that honey is always classed among provisions. Labeo himself does not deny that fish, together with the brine in which they are pickled, are also included. 4All drinkables which the head of the household considered as wine are classed as provisions, but none of those above mentioned are included. 5No one doubts that vinegar is also included in the term “provisions,” unless it was kept for the purpose of extinguishing fire, for then it cannot be eaten or drunk. This Ofilius stated in the Sixteenth Book of Actions. 6What we have said with reference to the clause, “Destined for the use of the testator,” should be understood to apply to his friends, his clients, and all the persons whom he has about him, but not to his slaves, or to those who are not attendant upon him or his people; for example, the slaves who are employed upon his estates; and Quintus Mucius thinks that those only are included in bequests of provisions who do not perform any labor. This gives occasion to Servius to remark that food for the maintenance of male and female weavers is embraced in such a legacy. Mucius, however, only intended to designate those who are in attendance upon the testator. 7Likewise, food intended for the subsistence of beasts of burden is included in the legacy; but this does not apply to such beasts of burden as are used by the testator himself and his friends. Food for such animals as are employed in farm labor, or are hired out, are not included in this legacy. 8Any grain or vegetables which the testator kept in a storehouse are included in a legacy of provisions, as well as any barley for the subsistence of his slaves, or his beasts of burden; as Ofilius stated in the Sixteenth Book on Actions. 9The question arises whether firewood, charcoal, and other combustibles by which food is prepared, are embraced in a legacy of provisions. Quintus Mucius and Ofilius deny that this is the case, and they say that these are not included, any more than millstones are. They also deny that either incense or wax is included. Tutilius, however, holds that both firewood and charcoal, if they are not kept for the purpose of sale, come under this head. Sextus and Cæcilius also state that incense and wax tapers, kept for domestic use, are included. 10Servius, On Mela, says that perfumes and papyrus for letters also should be classed as provisions. The better opinion is that all these articles, including perfumes, should be included, and that sheets of papyrus intended for the daily accounts of the testator belong to the same category. 11There is no doubt that vessels for table-service are also included. Aristo, however, says that casks are not, and this is correct, in accordance with the distinction which we previously made with reference to wine. Nor are receptacles for grain or vegetables, or boxes, or baskets, or anything else of this kind, which is kept to be used in warehouses or cellars, where provisions are stored, included, but only those articles without which provisions cannot properly be made use of.
4 Paulus libro quarto ad Sabinum. Nam quod liquidae materiae sit quia per se esse non potest, rapit secum in accessionis locum id sine quo esse non potest: vasa autem accessio legatae penus, non legata sunt: denique penu consumpta vasa non debentur. sed et si penum cum vasis specialiter sit legatum, vasa non debebuntur vel consumpta penu vel adempta. 1Si cui quae in promptuario sint legata fuerint, non omnis penus legata est. 2Item si quis solitus fructus suos vendere penum legaverit, non omnia, quae et promercii causa habuit, legasse videtur, sed ea sola, quae in penum sibi separabat. quod si promiscue uti solebat, tunc quantum ad annuum usum ei sufficeret familiaeque eius ceterorumque, qui circa eum sunt, legato cedet: quod fere, inquit Sabinus, evenit in personis mercatorum aut quotiens cella est olei et vini, quae venire solebant, in hereditate relicta. 3Nomen autem penus mihi traditum est omnibus generibus dictum. 4Si ita legetur ‘penum, quae Romae sit’, utrum quae est intra continentia, legata videtur an vero ea sola, quae est intra murum? et quidem urbes fere omnes muro tenus finiri, Romam continentibus, et urbem Romam aeque continentibus. 5Quod si urbana penus sit legata, omnem, quae ubique est, legatam videri Labeo ait, etiam si in villis agrisve sit, si illa sit urbico usui destinata, sicuti urbica ministeria dicimus et quae extra urbem nobis ministrare consueverunt. si autem extra urbem, Romae tamen sit, sed et si in hortis sit urbi iunctis, idem erit dicendum. 6Si cui penus legata sit praeter vinum, omnis penus legata videtur excepto vino: sed si ita scriptum sit ‘omnem penum praeter vinum quod Romae erit’, sola penus quae Romae est legata videtur: et ita et Pomponius libro sexto ad Sabinum scribit.
4 Paulus, On Sabinus, Book IV. As liquids cannot be kept without receptacles, they take with them as accessories any articles without which they cannot be preserved. Vessels, however, which are accessories of the legacy of provisions, are not bequeathed. Finally, after the provisions have been consumed, the vessels which contained them will no longer be due. But even if the provisions were expressly bequeathed with the vessels, the latter will not be due after the provisions have been consumed, or the legatee has been deprived of them. 1Where provisions contained in a storehouse are left to anyone, all the provisions of the testator are not the subject of the legacy. 2Likewise, if anyone who is accustomed to sell his crops should bequeath provisions, he is not held to have left everything which he had in his hands as merchandise, but only what he had set apart as supplies for himself. But if he was accustomed to make use of what he had indiscriminately, only the quantity which would be sufficient for the annual consumption of himself, his slaves, and the other persons whom he had about him, will be embraced in the legacy. Sabinus says that this usually occurs in the case of merchants, or when a warehouse containing oil or wine which was accustomed to be sold, forms part of an estate. 3I have been informed that the term “provisions” is applicable to every kind of food. 4Where a bequest is made of provisions which are at Rome, are those bequeathed which are situated in the suburbs, or only such as are within the walls? While, indeed, almost all towns are enclosed by walls, Rome is enclosed by its suburbs, and the City of Rome is bounded by its suburbs. 5Where a legacy of provisions in a city is left, Labeo says that everything of the kind to be found anywhere should be considered as bequeathed, even articles which are at a country-seat, but are destined for urban consumption; just as we call those slaves “urban” whose services we are accustomed to make use of outside of the city. If, however, the provisions are situated outside of the City, they will, nevertheless, be considered to be at Rome, and if they are in the gardens adjoining the City, the same rule will apply. 6Where provisions, with the exception of wine, are bequeathed to anyone, all the provisions except the wine will be considered as included in the legacy. Where, however, it was set forth explicitly in a will that all provisions, except the wine which was at Rome, were bequeathed, only the provisions which were at Rome were held to be embraced in the legacy. This was stated by Pomponius in the Sixth Book on Sabinus.
5 Paulus libro quarto ad Sabinum. Non omne quod bibetur in penu habetur: alioqui necesse est, ut omnia medicamenta quae biberentur contineantur. itaque ea demum penoris esse, quae alendi causa biberentur, quo in numero antidotum non est. et sane vere Cassius sensit. 1Sed quod quidam negaverunt piper et ligusticum et careum et laser et cetera huiusmodi in penu non esse, improbatum est.
5 The Same, On Sabinus, Book IV. Everything which can be drunk is not included in the term “provisions,” otherwise, it would be necessary for all medicines which are fluids to be included in the legacy. Hence, only such are included as are drunk for the purpose of nourishment, and antidotes do not belong to this category; as Cassius very properly remarks. 1Certain authorities deny that pepper, lovage, caraway seed, assafœdita, and other articles of this kind, are included in provisions, but this opinion is not accepted.
6 Idem libro decimo ad Sabinum. Instrumentum pistrini, item universa vasa cocitatoria penu non continentur.
6 The Same, On Sabinus, Book X. The utensils of a bakery, and all the vessels used for cooking, are not included in a bequest of provisions.
7 Scaevola libro tertio responsorum. ‘Penum meam omnem ad matrem liberosque meos, qui cum matre sunt, pertinere volo’. quaero, si tutores pupilli eam solummodo penum deberi, quae in caenaculo esset, dicant, sint autem et in horreis [ed. maior anphorae] <ed. minor amphorae>, an hae quoque deberentur. respondit, quidquid penoris usus causa ubicumque habuisset, deberi.
7 Scævola, Opinions, Book III. “I wish all my provisions to go to my mother, or to my children who are with her.” I ask, if the guardians of a ward should say that only the provisions contained in his residence were bequeathed, and certain jars of wine were found in his storehouses, whether these are included in the legacy. The answer was that any provisions which he had anywhere for his own use were included.