Corpus iurisprudentiae Romanae

1 Ulpianus, On All Tribunals, Book V. Where maintenance is bequeathed, it can be said that water is also included in the legacy, if the bequest is made in the region where water is ordinarily sold.

2 Marcianus, Institutes, Book VIII. Where anyone bequeaths maintenance to slaves whom he has enfranchised, even though the slaves themselves were bequeathed, and the legatees were requested to manumit them, they will be admitted to the benefit of the trust; as the Divine Severus and Antoninus stated in a Rescript. 1And even if the property from which the maintenance is derived should be forfeited to the Treasury, the maintenance must still be furnished, just as if it had passed to any successor whomsoever.

3 Ulpianus, On the Duties of Consul, Book II. When bequests for maintenance are made to freedmen judges are accustomed to divide with the latter in proportion to the number of heirs, in order that they may not be compelled to obtain their means of support in small quantities from each of them; and this division should be sustained, just as if the head of the household himself had divided the freedmen. They have adopted the practice of selecting one heir, by whom the means of support shall be provided, either in compliance with the wishes of the deceased, or according to their own judgment, as the following Rescripts show: “I send you a copy of the petition presented to me by the freedmen of Favilla, for the reason that many persons, in their wills, order necessaries to be furnished to their freedmen, which, as they are of small amounts, are reduced to almost nothing where there are several heirs to an estate. Hence, I think that you will act properly, if, after having called together the heirs of Favilla, or their representatives, you decide to which one of them a sum of money shall be given, out of the interest of which the maintenance of the said freedman may be paid for. He who receives this money must furnish security to those who contribute it, that, in case any one of said freedmen should die, or should, in any other way, cease to be a citizen, he will refund as much of the principal as the computation pro rata may amount to.” The Divine Pius stated, as follows in a Rescript addressed to a certain Rubrius Telesphorus: “The Consuls, after having called together all those who have been charged with furnishing you with maintenance under the terms of the trust, shall determine whether all of the legatees shall receive what is due them from one of the heirs, or whether the distribution shall be made pro rata, and who shall be notified, and by whom this shall be done. If anything should be due from the testator to you on this ground, the Treasury also shall pursue the same course; and know now that the shares of those who are insolvent will not cause the burden of the remaining heirs to be increased.”

4 Modestinus, Opinions, Book X. “I desire the lands which I have in the island of Chios to be given to my freedmen and freedwomen whom, during my lifetime, I have manumitted by my will or my codicil, or whom I may manumit hereafter, in order that they may obtain from them their food and clothing, as they did while I was living.” I ask what signification these words have; do they mean that the freedmen shall themselves obtain their support from the said lands, or that they shall receive from the heir their food and clothing, in addition to what is obtained from the lands? And was the ownership or the usufruct of the lands left? If the ownership was left, and a sum greater than what is needed for the supply of food and clothing should be obtained from the income of the lands, will the excess belong to the heir of the patron? And if some of said freedmen should die, will their shares pass to the surviving beneficiaries of the trust; and if they should die after the time appointed for the trust to take effect, will their shares belong to their heirs, or will they revert to the heirs of the testator? Modestinus answered: “It seems to me that these lands, and not merely the usufruct in the same, were left to the freedmen, in order that they might have full control over them; and, therefore, if anything more than is necessary for their support is obtained from the income of said lands, this will belong to the freedman. Even if one of the beneficiaries of the trust should die before it takes effect, his share will belong to the other beneficiaries, and those who die after the trust becomes operative will transmit their shares to their heirs.” 1Lucius Titius, by his will and without imposing any condition, ordered food and clothing to be furnished to his freedmen and freedwomen by his children who were his heirs. I ask if said freedman should institute proceedings without communicating with the children of their patron, whether they can obtain their food and clothing. Modestinus answered that there was nothing in the case stated to prevent suit being brought by them, where the legacy was unconditionally bequeathed by will.

5 The Same, Opinions, Book XI. The following words were inserted in a will: “You will furnish food to all our freedmen according to your judgment, as you are aware with what affection I regard them.” Also, in another place, the testator said, “I commit Prothymus, Polychronius, and Hypatius, to your care, in order that they may live with you, and I ask you to provide them with food.” I ask whether food should be given to all of them, or only to those whom he recommended to his heirs, and ordered to reside with them. Modestinus answered that, according to the case stated, subsistence was left to all of the freedmen, the amount of which was to be determined by the judgment of a good citizen.

6 Javolenus, On Cassius, Book II. Where maintenance is bequeathed, food, clothing, and lodging are included, because without these the body cannot be sustained; but things which have reference to instruction are not embraced in the legacy,

7 Paulus, Opinions, Book XIV. Unless it is proved that the testator intended otherwise.

8 Papinianus, Opinions, Book VII. It has been decided that where the principal of a sum of money, intended for the support of freedmen, has been left as a preferred legacy to one of several heirs, in accordance with the will of the deceased, he cannot be compelled to give security to deliver to his co-heirs the shares of any of the freedmen who may die. Therefore, in this instance, no action on the ground of money not due will lie, nor will a prætorian action be granted, even after the death of all the freedmen. The case is different, however, where the heir has been directed to make a distribution of the legacy; for this matter only requires momentary attention, but the necessity of furnishing support extends over months and years, and is also a source of trouble to the party responsible for it.

9 The Same, Opinions, Book VIII. A testator, having appointed two heirs, inserted the following provision into his will: “I request you, Gaius Seius, out of whatever you may obtain from my estate, to give to such-and-such of my foster-children ten aurei apiece, and I desire you to retain an equal sum in your hands, in order to support them with the interest thereof; and to pay the remainder to Numerius, our common freedman.” The opinion rendered was that, although Gaius Seius could not sell the property of the estate, because another heir had been appointed, still, he had a right to claim the money which has been left to the foster-children in order that he might keep it and pay it to them, subject to the provisions of the Falcidian Law; but this will not apply to any excess of the sum bequeathed. 1I have thought that where a patroness left to a certain freedman twenty aurei, payable annually, and a certain quantity of wheat and wine to be delivered every month, the benefit of a trust under which she bequeathed the same amount of food and clothing to others that she had been in the habit of furnishing them during her lifetime, could be legally claimed.

10 The Same, Opinions, Book IX. Where one of several heirs was directed to take a certain sum of money as a preferred legacy, to be used for the purpose of supporting the freedmen of the testator, it was decided that the heir of the heir should also be permitted to receive the said preferred legacy. If, however, the said heir should himself have several heirs, the wishes of the deceased will, at first sight, appear to have been disregarded, but no other course should be adopted. For what if the testator did not desire to charge the other heirs, and having in his mind the welfare of his freedmen, and desiring to have the distribution made quietly and honorably by a party who was solvent, preferred to have this done by a single member of the household? Therefore, the maintenance should be furnished by all the heirs of the heir aforesaid. 1Where a slave is manumitted unconditionally by the terms of a trust, support must be furnished for the past time, even though he may have obtained his freedom after the others, and the heir was not in default in granting it; for the cause of the delay must be ascertained where a question arises with reference to interest due under a trust, but not where the trust itself is concerned. 2Where maintenance was left to a daughter, the amount of which is to be determined in accordance with the judgment of a reliable citizen, I gave it as my opinion that the bequest with which the son, who was the heir, was charged should correspond with the dowry payable at the time of her marriage, which the father had left to his said daughter whom he had disinherited, according to her increase in age, and not in proportion to the value of his estate.

11 Paulus, Questions, Book X. A certain individual to whom support had been bequeathed, payable annually, having been condemned to the mines, was afterwards restored to his rights by the favor of the Emperor. I held that he had lawfully received the support for the preceding years, and that he was entitled to it for those which followed.

12 The Same, Opinions, Book XIV. Lucius Titius left food and clothing for the support of his freedmen, devoting a certain sum of money annually to that purpose, and made the following provision in the last part of his will: “I leave such-and-such and such-and-such tracts of land in trust for the benefit of my said freedmen, in order that they may receive the maintenance above mentioned from the income of the same.” The question arose, if at any time the income from said lands should be less than what was required to provide food and clothing for the freedmen, whether the heirs should not be burdened with making up the deficiency; or if, in any year, there should be an excess, would they be entitled to this to supply what they had lost during the former year? Paulus answered that the food and clothing must be furnished entirely to the freedmen of the deceased, and that the testator did not intend to have the legacy which he bequeathed to them either increased or diminished because he afterwards desired the said lands to be held by way of pledge, so that the freedmen might receive their support from the income of the same.

13 Scævola, Opinions, Book IV. A man bequeathed three hundred aurei to Gaius Seius, in order that out of the interest of the said sum he might provide his freedmen with food and clothing, as he had specified; but afterwards, by a codicil, he forbade the said sum to be given to Gaius Seius, but desired it to be paid to Publius Mævius. I ask whether Mævius was required to execute the trust for the benefit of the freedmen. I answered that Mævius, according to the intention of the testator, appeared to be charged with the duties for which the said sum of money was left, which were transferred to him by the codicil; unless he could prove that some other obligations had been imposed upon him by the testator which are not at present under discussion. 1The Emperor Antoninus Pius to the freedman of Sextia Basilia, Greeting: “Although the terms of the will indicate that you shall be furnished with food and clothing as long as you reside with Claudius Justus, still, I think that the intention of the deceased was that this should be given to you after the death of Justus.” The opinion was rendered that this clause must be understood to mean that the requirement to provide support shall be perpetual. 2I, myself, was consulted with reference to the following clause in a will: “And I wish that they shall always remain with you.” I ask, where freedmen have been manumitted by the heir, and remained with him for a long time, but finally departed because the services he required of them were too severe; whether they would be entitled to the support with which he refused to furnish them, unless he had the benefit of their services. The answer is that, according to the facts stated, he would be obliged to furnish them support.

14 Ulpianus, Trusts, Book II. Mela says that where maintenance is bequeathed to a boy or a girl, it must be furnished till he or she reaches the age of puberty. This, however, is not correct, for they should only be provided with it as long as the testator wished, and if his intention was not evident, they must be supported for life. 1But if maintenance is bequeathed until the age of puberty, and anyone desires to follow the former custom with reference to boys and girls, he is hereby informed that Hadrian decided that boys shall be supported until their eighteenth year, and girls until their fourteenth. Our Emperor stated in a Rescript that this rule promulgated by Hadrian must be observed. But although the age of puberty is not ordinarily fixed in this way, still, it is not illegal for it to be so established in the individual instance of the matter of support, where natural affection is involved. 2Where a testator bequeaths maintenance to the same extent that he furnished it during his lifetime, only such provision must be made as he was accustomed to make at the time of his death. Therefore, if different amounts were furnished at different times, that amount must be considered which was furnished just prior to the death of the testator. But what would be the case if the testator provided less at the time that he made his will, and more at the time of his death, or vice versa? In this case it must be held that the amount must be governed by what he provided last. 3A certain man bequeathed to his freedmen food and water by a trust. Advice was taken with reference to the trust, as the question was raised in that part of Africa or Egypt where water was sold. Therefore, I stated that the benefit to be derived from the trust depended upon whether the party who left it had cisterns or not, and whether it was included in the trust in order to provide for any amount which the beneficiary might have to pay for water for himself, and whether the trust did not appear to be void, as it was not the bequest of a servitude upon a tract of land for the benefit of a person who was not the possessor of one that adjoined it; for while the drawing of water, and the right of driving cattle to water, is a personal servitude, still, it is void if left to one who is not the owner of neighboring property. Under the same head are classed the right of conveying burdens, or of pressing grapes, or of threshing wheat and other grain on the premises of someone else; but in this instance, the right to obtain water is bequeathed for the benefit of the person himself.

15 Scævola, Digest, Book XVII. A testator, having appointed his son his heir, by a codicil charged him with the payment of ten aurei to Seia, and provided for a foster-child as follows: “I desire forty aurei to be given to my foster-child, Mævius, which sum I ask Seia to take charge of, and to pay to Mævius the interest on the same at the rate of five per cent per annum, until he reaches the age of twenty years; and I also ask her to take charge of him, and rear him.” The question arose, if Seia, after having received her legacy, should refuse or neglect to take charge of the money left for the benefit of the foster-child, whether she would be compelled to assume the obligation of furnishing support for him from the time of the death of the testator. The answer was that, according to the facts stated, she would be compelled to provide support, as she had been charged with the execution of the trust. It was also asked whether the heir of Seia would be required to furnish Mævius support until he reached his twentieth year? The answer was that he would be required to do so. 1A testator bequeathed to his concubine eight slaves belonging to his country seat, and directed her to provide them with food as follows: “I wish the said slaves whom I have bequeathed, as above stated, to be furnished with food by my heirs, just as they were during my lifetime.” As the slaves during the life of the testator were always employed in farm labor during harvest, and when the grain was threshed, and, with the exception of the steward in charge of the land at that time, never received any food provided by their master; the question arose whether the heir would be obliged to furnish the concubine, at that time also, that is to say during the season of harvest and threshing, with provisions for the said slaves belonging to the farm. The answer was that this must be left to the court having jurisdiction of the case. Claudius: This is reasonable, for if the slaves were to be employed in the same way by a concubine, as they had been by the testator, it would not be necessary for food to be furnished them during the time in question. If, however, they had been bequeathed for service in the city, food must be furnished them. 2Titia, at the time of her death, provided as follows in her will: “I wish the food and clothing which I have been accustomed to furnish them during my lifetime to be given to all my freedmen and freed-women.” As during her lifetime she only furnished food and clothing to three of them, which was shown by her accounts, the question arose whether her heir could be sued by the remaining freedmen, or whether he would only be liable to the three who were found by the accounts of the testatrix to have previously received food and clothing. The answer was that he would be liable to all.

16 The Same, Digest, Book XVIII. A certain testator bequeathed food and clothing to his freedmen. The question arose, as the testator had ordered the trust to be discharged by Moderatus, one of his heirs, whom he mentioned by name, whether Moderatus alone would be responsible so that his heirs would not be liable after his death. The answer was that his heirs would be liable. 1A testatrix left to her freedmen and freedwomen, whom she also manumitted by her will and codicil, suitable maintenance such as she had furnished during her lifetime, and she also directed certain lands to be given to all of them. The question arose whether the freedman of a freedman of the father of the testatrix, whom she was accustomed to address as follows: “To our freedman, the son of Rufinus,” should be admitted to share in the legacy. A letter was also sent by her to the magistrates of her native city, in which she requested that a salary be paid to him out of the public funds, for the reason that he was a physician, and stated that he was her freedman. The answer was that this point should be decided by the court having jurisdiction of the matter; and that the freedman could be admitted to share in the benefit of the trust, if the testatrix, during her lifetime, had provided him with support; otherwise he could not. 2A testator bequeathed ten aurei to his freedwoman, Basilica, which he wished to remain in the hands of his freedmen Epictetus and Callistus, to be paid to Basilica with interest at the rate of five per cent, until she reached the age of twenty-five years, so that she might be supported by the interest of the money according to her age. The question arose whether Basilica was entitled to support under another clause of the same will, by which the testator, in general terms, left food, clothing, and lodging to his freedmen and freedwomen. The answer was that, according to the facts stated, she would not be entitled to it, unless it could be proved that it was given to her along with the others. Claudius: Because the testator intended the interest of a sum of money, which he has especially bequeathed to her, as a preferred legacy, to be employed for her support. 3A certain individual, who had held all his property in partnership with his wife for more than forty years, left her and a grandson by a son of his, heirs to equal shares of his estate, and provided as follows: “I also bequeath to my freedmen, whom I have manumitted during my lifetime, what I have been accustomed to furnish them.” The question arose whether those slaves who had been manumitted by both of the parties while the partnership existed, and had become the freedmen of their joint-owners, could, under the terms of the trust, claim the entire amount which they had been accustomed to receive during the lifetime of the husband. The answer was that they were not entitled to any more than what the husband was accustomed to furnish as his share.

17 The Same, Digest, Book XIX. A testator left certain slaves for the guardianship of a temple, and charged his heir with a legacy for their benefit as follows: “I ask, and I charge you in memory of me, to give and furnish to my footmen whom I have left to take care of the temple, such-and-such a quantity of food, every month, and such-and-such an amount of clothing every year.” As the temple had not yet been erected, the question arose whether the slaves were entitled to receive their legacy from the day of the death of the testator, or from the time when the temple was completed. The answer was that it would be the duty of the judge to compel the heir to furnish the slaves with what was left to them until the temple should be built.

18 The Same, Digest, Book XX. A man bequeathed to his freedmen, whom he had manumitted by his will, ten aurei, payable monthly, for their support; and afterwards, in general terms, bequeathed by a codicil seven aurei to all his freedmen, payable monthly for food, and ten aurei, payable annually, for the purpose of providing them with clothing. The question arose whether the heirs were charged with one trust under the terms of the will, and with another under the codicil, for the benefit of the freedmen. The answer was that, in the case stated, there was reason why the heir should not furnish what was left by the codicil, for by the bequests contained in the latter, the testator seems to have revoked those relating to food which he had bequeathed by his will. 1A testator having manumitted his slaves by his will, left them, in trust, food for their annual maintenance, if they should reside with his mother. The mother survived her son three years, but did not furnish the freedmen either food or clothing, because they did not demand the execution of the trust; and the daughter, who subsequently became her mother’s heir, during the fourteen years which she lived, was not applied to for payment of the legacy by the slaves. The question arose whether, after the death of the daughter, the freedmen could demand from the last heir, for the past, as well as for the future time, the legacies which had been left to provide them with food and clothing. The answer was that, if the condition had been complied with, there was nothing in the case stated to prevent them from presenting the claim. 2A testator wished Stichus to be manumitted by his heirs, and directed food and clothing to be furnished him by Seius, if he should reside with him, and then he added the following words: “I also ask you, Seius, when you reach the age of twenty-five years, to purchase a commission in the army for him, if he should not leave you before that time.” As Stichus obtained his freedom immediately, and Seius died before he reached the age of twenty-five years, the question arose whether the commission in the army should be purchased for Stichus by those who acquired the estate of Seius; and if it was decided that this should be done, whether it should be purchased without delay, or at the time when Seius would have completed his twenty-fifth year, if he had survived. The answer was that, as was decided that the commission should be purchased, it was not necessary for this to be done before the time fixed by the testator had expired. 3Where his posthumous children, together with the father and mother of a testator, were appointed his heirs, and then he, having made a substitution, manumitted the slaves who were his stewards, and bequeathed them their peculium, as well as an annual sum for their subsistence, and also left legacies to certain of his freedmen, and to strangers; and finally, a daughter having been born to him, after his will had been executed, he inserted the following provision in a codicil: “I wish that any property which, previous to this time, I have bequeathed to anyone to be given to them; and I ask them to deliver the third part of the same to my daughter Petina.” A pupillary substitution having been made, he desired the freedmen who had not reached puberty and whom the testator had charged his parents to liberate, to receive, in addition to the bequest of food and clothing, as much again as he had left them in money. As his daughter survived the opening of the will and the codicil, but afterwards died, and transmitted to her heirs the trust by which she was charged to deliver the third part of the legacy, the question arose whether the third part of the food and clothing could also be claimed under the terms of the trust. The answer was that it could not. 4It was likewise asked whether the third part of the property bequeathed in trust by the codicil would belong to the daughter. The answer was that it would not. Inquiry was also made whether the provision included in the substitution by which the freedmen who had not yet reached puberty would be entitled to as much again as they had been left in money, and the third part of the legacies bequeathed by will having been deducted, the calculation should be made so that two-thirds of the amount, in addition to what was left by the codicil, would be payable; the third part of which legacies the testator desired should belong to his daughter. The answer was that the entire amount mentioned in the substitution should be paid. 5A certain testator left food and clothing in trust to his freedmen, and added: “I desire that they, my freedmen, shall reside where my body is buried, so that every year they may celebrate the anniversary of my death, at my tomb, in the absence of my daughters.” The question arose whether support should be furnished to one of the freedmen who, after the death of the testator, did not present himself to the heirs, and refused to reside near the tomb. The answer was that it should not be furnished him.

19 The Same, Digest, Book XXII. The following provision was inserted into a will, “I desire that food, and whatever else I was accustomed to give my freedmen, shall be furnished them by my heirs.” One of the said freedmen, with the consent of his patron, was absent for four years before the death of the testator, for the purpose of transacting his private business, and on this account he did not, at the time of the testator’s death, receive the food which he formerly had received. Nevertheless, the patron left him a legacy of five aurei by the same will, just as he did to the others, whom he had manumitted during his lifetime. The question arose whether this freedman was also entitled to the food and other articles which were bequeathed to the remaining freedmen. The answer was, why not?

20 The Same, Opinions, Book III. “Let Stichus, the grandson of my nurse, be free, and I also wish ten aurei to be paid to him every year.” Then the testator, having set aside certain credits for his benefit, bequeathed to the said Stichus his wife and children, and to the latter what he had furnished them during his lifetime; and afterwards, under another head, he directed to be given to all of his freedmen what he, while living, had been accustomed to furnish them. I ask whether Stichus will, in addition to his legacy, be entitled to maintenance. The answer was that, according to the facts stated, he will not. 1The same testator having charged the municipality of a city to provide support for his freedmen of both sexes, to be paid out of certain lands which he devised to it; I ask whether the daily allowance and the clothing which the testator had, while living, given to Stichus and his wife and children, should be given to them by the appointed heir, or by the municipality. The answer is that, in accordance with the most liberal interpretation of the will, it must be said that they should be furnished by the city. 2Titia bequeathed the usufruct of a tract of land to Mævius, and charged him to pay Pamphila and Stichus a hundred sesterces annually, out of the income of said land, as long as they lived; I ask whether, after the death of Mævius, the heir of Titia will be required to provide support. The answer is that there was nothing in the case stated which would require it to be furnished by the heir of Titia, or by the heir of the legatee either; unless it was clearly proved that the testator intended it to be furnished after the extinction of the usufruct, provided that the amount obtained from the usufruct should be sufficient. 3A mother, having appointed her son her heir, granted freedom to her slave Pamphilus, under a trust, and bequeathed him five aurei for the purpose of providing him with food, and fifty aurei, payable annually, for his clothing, on condition that he lived with her son. I ask whether the support must be furnished after the death of the son. The answer is that if the condition was complied with, it must be furnished after his death.

21 Ulpianus, Trusts, Book II. Where a daily allowance or food is bequeathed, it is clear that neither lodging, clothing, nor shoes, are to be furnished, as the testator only had the provision of food in his mind.

22 Valens, Trusts, Book I. Where maintenance is left by the terms of a trust, and the amount is not stated, what the deceased was accustomed to furnish the legatee must be learned before anything else is done, and then what he left to others of the same rank must be ascertained. If neither of these things can be found out, the amount must then be determined according to the means of the deceased, and the affection which he entertained toward the party for whose benefit the trust was created. 1A testator, who was already under obligations to provide support for the freedmen of his brother, bequeathed to them certain vineyards by his will, with the following addition: “That they may have them in order to provide themselves with food.” If he left them these vineyards instead of the support which he was obliged to provide, they should not be transferred under the terms of the trust, unless the heirs are freed from the obligations imposed by the will; for if this should fail to be done, and he should afterwards bring suit under the will, the heir could protect himself by an exception on the ground of fraud; that is to say, if the vineyards were not worth less than the amount furnished for support. The addition, “That they may have them in order to provide themselves with food,” rather shows the reason for making the bequest, than an intention to establish an usufruct.

23 Paulus, On Neratius, Book IV. If you are asked to educate someone, you can be compelled to furnish him with the necessaries of life. Paulus: Why is the scope of a legacy providing for support more extensive where it is stated that clothing and lodging are included? This is not the case, for both are equal.