De auro argento mundo ornamentis unguentis veste vel vestimentis et statuis legatis
(Concerning Legacies of Gold, Silver, Ornaments, Jewels, Perfumes, Clothing, Tapestry and Statues.)
1 Pomponius libro sexto ad Sabinum. Si alii vestimenta, alii vestis muliebris separatim legata sit, detractis muliebribus et ei adsignatis, cui specialiter legata sunt, reliquum alteri debetur. idem est, cum alteri mundus muliebris, alteri argentum omne legatum esset, de argento quod in mundo esset. item si duae statuae marmoreae tibi et deinde omne marmor legatum esset, praeter duas nulla statua marmorea legata est tibi. idem urbanis servis tibi legatis, si mihi dispensator legatus sit. 1Cui certum pondus argenti dare heres iussus sit, ei pecuniam numeratam dando iure ipso liberatur, si in ea pecunia eadem aestimatio fuerit: quod ita verum est, si non certum genus argenti legatum sit.
1 Pomponius, On Sabinus, Book VI. Where clothing in general is left to one person, and women’s garments separately to another, the women’s garments will be removed and given to the party to whom they were specially bequeathed, and the remainder will belong to the other. The same rule applies with reference to silver articles included in ornaments, where ornaments suitable for women are bequeathed to one person, and all silver articles are bequeathed to another. Likewise, where two marble statues are left to you, and afterwards all the marble belonging to the testator is left to another legatee, no marble statue, excepting those two, is left to you. The same rule applies where the urban slaves of a testator are bequeathed to you, and the steward of the testator is bequeathed to me. 1Where an heir is directed to deliver a certain weight of silver to someone, he is discharged from liability by operation of law if he pays him money, provided that the money is of the same value as the silver; which opinion is correct, if a certain kind of silver was not bequeathed.
2 Africanus libro secundo quaestionum. Qui tibi mandaverat, ut ornamenta in usum uxoris suae emeres, eidem uxori uti adsolet legavit quae eius causa parata erunt: tu deinde post mortem mandatoris ignorans eum decessisse emisti. non debebuntur mulieri, quoniam ea verba ad mortis tempus referuntur. at si vivente testatore, muliere autem mortua emeris, non ineleganter dicetur inefficax hoc legatum esse, quando non possit vere dici eius causa paratum videri, quae prius decessit. eadem dicenda erunt et si vivat quidem mulier, sed diverterit et quaeratur, an post empta ei debeantur, quasi non videantur uxoris causa parata.
2 Africanus, Questions, Book II. Where anyone directed you to purchase certain ornaments for the use of his wife, and he then, as is customary, left his wife everything which he had provided for her use; and you, after the death of the testator and while you were not aware that he was dead, make the purchase, the woman will not be entitled to the ornaments, since the words employed have reference to the time of the testator’s death. If, however, you should make the purchase during the lifetime of the testator, but after the death of his wife, it may not improperly be held that the legacy will be void, since it cannot truly be maintained that the ornaments were provided for the use of one who is already dead. The same must be said in the case of a woman who is still living, but has been divorced, when the question is asked whether she is entitled to what has been purchased after her divorce, as it does not appear to have been provided for her use as a wife.
3 Celsus libro nono decimo digestorum. Uxori legavit quae eius causa parata sunt et ante mortem divortit. non deberi, quia adempta videantur, Proculus ait. nimirum facti quaestio est: nam potest nec repudiatae adimere voluisse.
3 Celsus, Digest, Book XIX. A certain man left his wife everything which he had provided for her use, and obtained a divorce from her before his death. Proculus says that she will not be entitled to the property, because it appears that it was taken from her. This, however, is a question of fact, for even though he may have repudiated her, he could not have intended to deprive her of the legacy.
4 Paulus libro quinquagesimo quarto ad edictum. Cum quidam libertum suum in Asiam misisset ad purpuras emendas et testamento uxori suae lanam purpuream legasset, pertinere ad eam, si quam purpuram vivo eo libertus emisset, Servius respondit.
4 Paulus, On the Edict, Book LIV. A certain individual sent his freedmen into Asia for the purpose of buying purple, and by his will bequeathed his purple wool to his wife. Servius gave it as his opinion that the goods which the freedman had purchased during the lifetime of the testator belonged to her.
5 Africanus libro secundo quaestionum. Apud Fufidium quaestionum libro secundo ita scriptum est: si mulier mandaverit tibi, ut sibi uniones usus sui causa emeres, si tu post mortem eius, cum putares eam vivere, emeris, Atilicinus negat esse legatos ei, cui mulier ita legaverit: ‘ornamenta, quae mea causa parata sunt eruntve’: non enim eius causa videri parata esse, quae iam mortua ea empta fuerint.
5 Africanus, Questions, Book II. The following is contained in the Second Book of Questions by Phuphidius: “If a woman should direct you to purchase pearls for her use, and you should do so after her death, but while you thought that she was still living,” Atilicinus denies that the pearls were left to a person to whom the woman made the following bequest: “I bequeath all the jewels which have been or shall be obtained for my use,” for they cannot be considered to have been obtained for her use as she was already dead at the time when the purchase was made.
6 Marcellus libro singulari responsorum. Seia ab herede Publio Maevio ita legavit: ‘Antoniae Tertullae lego auri pondo tot et unionem cum hyacinthis’: postea unionem solvit neque ullum mortis tempore inter ornamenta sua unionem reliquit. quaero, an heres ex causa fideicommissi aestimationem rei, quae in hereditate non est, praestare debeat. Marcellus respondit non debere. 1Item quaero, si probari possit Seiam uniones et hyacinthos quosdam in aliam speciem ornamenti, quod postea pretiosius fecit additis aliis gemmis et margaritis, convertisse, an hos uniones vel hyacinthos petere possit et heres compellatur ornamento posteriori eximere et praestare. Marcellus respondit petere non posse: nam quid fieri potest, ut legatum vel fideicommissum durare existimetur, cum id, quod testamento dabatur, in sua specie non permanserit, nam quodammodo extinctum sit? ut interim omittam, quod etiam dissolutione ac permutatione tali voluntas quoque videatur mutata. 2Lucius Titius testamento scripsit: ‘heredem meum volo fideique eius committo, ut in patriam meam faciat porticum publicam, in qua poni volo imagines argenteas, item marmoreas’: quaero, an legatum valeat. Marcellus respondit valere et operis ceterorumque, quae ibi testator poni voluerit, legatum ad patriam pertinere intellegi: enim potuit aliquod civitati accedere ornamentum.
6 Marcellus, Opinions. Seia charged her heir, Publius Mævius, with a bequest as follows: “I give and bequeath to Antonia Tertylla such-and-such a weight of gold, and my large pearls set with hyacinths.” She afterwards disposed of the pearls, and at the time of her death did not leave any among her jewels. I ask whether the heir will, under the terms of the trust, be compelled to furnish the value of property which does not form part of the estate. Marcellus answers that he will not be required to do so. 1I also ask, if it can be proved that Seia converted her necklace of pearls and hyacinths into some other kind of ornament, which afterwards became more valuable through the addition of other jewels and small pearls, whether the legatee can demand the said pearls and hyacinths; and whether the heir will be compelled to remove them from the other jewelry and deliver them. Marcellus answers that the demand cannot be made. For how can a legacy or a trust be held to exist when what is given by a will does not retain its original character? For the bequest is, as it were, extinguished, so that in the meantime it is lost sight of, and hence by this dismemberment and change the intention of the testatrix also appears to have been altered. 2Lucius Titius made the following provision in his will, “I charge my heir to erect a public portico in my native town, in which I desire my silver and marble statues to be placed.” I ask whether the legacy is valid. Marcellus answers that it is, and that the bequest of the labor, and of the other things which the testator desired to be placed there, will belong to the municipality, for he understood that the city would receive some adornment therefrom.
7 Paulus libro octavo ad Plautium. Si ita esset legatum: ‘vestem meam, argentum meum damnas esto dare’, id legatum videtur, quod testamenti tempore fuisset, quia praesens tempus semper intellegeretur, si aliud comprehensum non esset: nam cum dicit ‘vestem meam’, ‘argentum meum’, hac demonstratione ‘meum’ praesens, non futurum tempus ostendit. idem est et si quis ita legaverit ‘servos meos’.
7 Paulus, On Plautius, Book VIII. When a bequest is made as follows, “Let my heir be charged to give my clothing and silver plate,” whatever belonged to the testator when he executed his will will be considered to have been bequeathed; for the reason that the present time is always understood to have been meant, where something else is not included; for when he says, “My clothing and silver plate,” by the pronoun “my” he indicates the present and not the future. The same rule will apply where anyone makes a bequest of “My slaves.”
8 Idem libro nono ad Plautium. Plautius: Mulier ita legavit: ‘quisquis mihi heres erit, Titiae vestem meam mundum ornamentaque muliebria damnas esto dare’. Cassius ait, si non appareret quid sensisset, omnem vestem secundum verba testamenti legatam videri. Paulus. idem Iavolenus scribit, quia verisimile est, inquit, testatricem tantum ornamentorum universitati derogasse, quibus significationem muliebrium accommodasset: accedere eo, quod illa demonstratio ‘muliebria’ neque vesti neque mundo applicari salva ratione recti sermonis potest.
8 The Same, On Plautius, Book IX. Plautius: A woman made a bequest as follows: “I charge my heir, whoever he may be, to give my clothes, my toilet articles, and my feminine ornaments to Titia.” Cassius says, if it cannot be ascertained what the intention of the testatrix was, that all her clothing will be considered to have been bequeathed, according to the terms of the will. Paulus: Javolenus says the same thing, because, as he remarks, it is probable that the testratrix intended to limit her bequest to jewels, to which she gave the designation “feminine ornaments.” It may be said, in addition, that the term “feminine” is not, in accordance with the proper manner of speaking, applicable to either clothing or toilet articles.
9 Modestinus libro nono regularum. Cum certum auri vel argenti pondus legatum est, si non species designata sit, non materia, sed pretium praesentis temporis praestari debet.
9 Modestinus, Rules, Book IX. Where a certain weight of gold or silver is bequeathed, and the kind is not indicated, not the material itself, but its value at the present time must be delivered.
10 Pomponius libro quinto ad Quintum Mucium. Quintus Mucius ait: si pater familias uxori vas aut vestimentum aut quippiam aliud ita legavit ‘quod eius causa emptum paratumve esset’, id videtur legasse, quod magis illius quam communis usus causa paratum esset. Pomponius: sed hoc verum est non solum, si ipsius viri et uxoris communis usus, sed etiam si liberorum eius aut alterius alicuius communis usus fuerit: id enim videtur demonstrasse, quod proprio usui uxoris comparatum sit. sed quod Quintus Mucius demonstrat ‘vas aut vestimentum aut quid aliud’, efficit, ut falsa sint quae subiecimus: multum enim interest, generaliter an specialiter legentur haec. nam si generaliter, veluti ita ‘quae uxoris causa comparata sunt’, vera est illius definitio: si vero ita scriptum fuerit ‘vestem illam purpuram’, ut certa demonstraret, licet adiectum sit ‘quae eius causa empta paratave essent’, licet neque empta neque parata neque in usum ei data sint, legatum omnimodo valet, quia certo corpore legato demonstratio falsa posita non peremit legatum. veluti si ita sit scriptum: ‘Stichum, quem ex venditione Titii emi’: nam si neque emit aut ex alia venditione emit, legatum nihilo minus valet. plane si ita legatum fuerit ‘vas aut vestimenta, aut quae uxoris causa parata sunt’, tunc aeque erit vera Quinti Muci sententia: quo casu sciendum est, etiam si alienae res hae fuerint, quas putavit testator suas esse, heredem teneri, ut eas det.
10 Pomponius, On Quintus Mucius, Book V. Quintus Mucius says that where the head of a household bequeaths to his wife vases, clothing, or anything else whatsoever, as follows, “Which has been purchased and provided for her use,” he is held to have bequeathed what was obtained for her individually rather than for their common use. Pomponius: This is true, not only where the articles were procured for the use of both husband and wife, but also when this was done for that of their children, or anyone else; as such a provision would seem to indicate that the property was acquired for the private use of the wife herself. But when Quintus Mucius stated that vases, clothing, or anything else is included, the falsity of what we have stated appears to be established; since, as a rule, there is a great deal of difference where articles of this kind are generally or specially bequeathed, for if they are bequeathed in general terms (as, for instance, “Which have been procured for the use of my wife”), his explanation is correct. If, however, the subject of the bequest should be described as follows, “Such-and-such a purple garment,” by which a certain garment was indicated, even though the words, “Which I have purchased or intended for her use,” were added; for the reason that it was neither purchased nor intended for, nor given to her for her use, the legacy will undoubtedly be valid, because when a certain article is left, a false description of the same does not annul the legacy; just as if the following had been written, “Stichus, whom I purchased at the sale of Titius;” for if the testator did not purchase him at all, or bought him at some other sale, the legacy will, nevertheless, be valid. It is clear that if the legacy was bequeathed as follows, “The vases, or clothing, or articles, intended for the use of my wife,” then the opinion of Quintus Mucius will also be correct in this instance. It must be observed that even if the articles mentioned belonged to another, but the testator was under the impression that they were his, the heir will be obliged to furnish them.
11 Proculus libro quinto epistularum. Si quis legaverit aurum gemmas margaritas quae in eo auro essent, etiam id aurum, cui neque gemmae neque margaritae inessent, legasse videtur.
11 Proculus, Epistles, Book V. Where anyone bequeaths gold, silver, and pearls which are set in the gold, gold in which neither jewels nor pearls are set will be held to have been bequeathed.
12 Papinianus libro septimo decimo quaestionum. Si imaginem legatam heres derasit et tabulam solvit, potest dici actionem ex testamento durare, quia legatum imaginis, non tabulae fuit.
12 Papinianus, Questions, Book XVII. If the heir should deface a painting which was bequeathed, and deliver the board on which it was painted, it may be said that an action will still lie under the will, because the legacy consisted of a painting and not of a board.
13 Scaevola libro quinto decimo digestorum. Uxori quis legavit his verbis: ‘mundum muliebrem omnem, ornamenta et quidquid vivus dedi donavi eius causa comparavi confeci, id omne dari volo’: quaesitum est, an carrucha dormitoria cum mulis, cum semper uxor usa sit, ei debeatur. respondit, si eius usus causa habita esset, deberi. idem quaesiit, an ex eadem clausula vestis, quam ancillis vel lecticariis eiusdem uxoris suae comparaverat vel fecerat, praestanda esset. respondit praestandam.
13 Scævola, Digest, Book XV. A certain man made a bequest to his wife as follows: “I wish all the toilet-articles and jewels, and whatever else I have given or donated to my wife, or acquired, or made for her use during my lifetime, to be given to her.” The question arose whether a four-wheeled carriage for sleeping purposes, together with its mules, which the wife had always made use of, was included in the legacy. The answer was that if it had been acquired for her use, she was entitled to it. It was also asked whether, under the same clause, the garments which the testator had purchased for the female slaves or the litter-bearers of his wife should also be given to her. The answer was that they should be given.
14 Pomponius libro quinto ad Sabinum. Si statuam legavero et postea ex alia statua bracchium ei adiecero, omnimodo statua a legatario vindicari potest.
14 Pomponius, On Sabinus, Book V. If I bequeath a statue, and afterwards add an arm to it taken from another, the entire statue can be claimed by the legatee.
15 Scaevola libro quinto decimo digestorum. Species auri et argenti Seiae legavit et ab ea petit in haec verba: ‘a te, Seia, peto, ut quidquid tibi specialiter in auro argento legavi, id cum morieris reddas restituas illi et illi vernis meis: quarum rerum usus fructus dum vives tibi sufficiet’: quaesitum est, an usus fructus auri et argenti solus legatariae debeatur. respondit verbis quae proponerentur proprietatem legatam addito onere fideicommissi.
15 Scævola, Digest, Book XV. A testator bequeathed a certain kind of gold and silver to Seia, and made the following request of her: “I ask you, Seia, at the time of my death, to deliver any gold or silver which I have specifically bequeathed to you, to So-and-So, my slaves, and the usufruct of said property will be sufficient for you while you live.” The question arose whether the usufruct alone of the gold and silver should be given to the legatee. The answer was that, in accordance with the facts stated, the ownership of the articles was also bequeathed under the terms of the trust.
16 Idem libro octavo decimo digestorum. Filiam in potestate patris manentem mater scripsit heredem eique patrem Maevium substituit et ita scripsit: ‘quisquis mihi heres erit, fidei eius committo, uti ornamenta mea omnia aurum argentum vestimenta, quibus ego usa sum, ne veneant et filiae meae reserventur’: quaesitum est, cum filia recusante pater ex substitutione heres exstitisset et intestato decessisset, filia autem bonis eius abstinuerat, an fideicommissum petere possit. respondit secundum ea quae proponerentur videri patris utiliter fidei commissum. Claudius: quoniam verbo servandi, quod scriptum est, videri in id tempus dilatum fideicommissum, quo sui iuris futurus esset is cui dabatur.
16 The Same, Digest, Book XVIII. A mother appointed her daughter her heir while she was still under paternal control, substituted her father Mævius for her, and made the following provision in her will: “Whoever my heir may be, I charge him not to sell any of my jewelry, or my gold or silver-ware, or the clothing, which I make use of; but let them be kept for my daughter.” The daughter having refused to accept the legacy, and the father, who was the heir under the substitution, having died intestate, the question arose whether she could still demand the execution of the trust. The answer was that, according to the facts stated, it appeared that the execution of the trust legally devolved upon the father’s successor. Claudius: Because, by the term “to keep,” which was used by the testatrix, the trust seems to have been deferred until the party for whose benefit it was created should be released from paternal control.
17 Ulpianus libro vicesimo primo ad Sabinum. Si gemma ex anulo legetur vel aliae materiae iunctae vel emblemata, recte legantur et separantur et praestanda sunt.
17 Ulpianus, On Sabinus, Book XXI Where a jewel set in a ring, or any other ornaments or articles which are joined together are bequeathed, this is in accordance with law, and they should be separated and delivered to the legatee.
18 Scaevola libro vicesimo secundo digestorum. Qui uxori suae legaverat bonorum suorum decimam et mancipia et species argenti quas expresserat, eidem anulos et vestem reddi ab heredibus petit, quasi propria uxoris fuissent: quaesitum est, si uxoris non fuerint, an praestari ex causa legati deberent. respondit legandi animo dedisse ea videri, nisi contrarium ab herede approbetur. 1Idem testator fidei commissit uxoris, ut quidquid ad eam ex testamento eius pervenisset, alumno communi restitueret: quaesitum est, an etiam eas res, quas proprias uxoris suae fuisse testator sciat eique reddi praecepit, alumno praestare debeat. respondit, si propriae fuissent, non debere, si legato adquirerentur, debere. 2Mulier testamento et postea codicillis multas species vestis argenti, quas vel ipsa se confecisse vel habere significavit, specialiter per fideicommissum reliquit: quaesitum est, an non aliae legatariis cederent, quam quae in hereditate inventae essent. respondit eas cedere, quae inventae essent.
18 Scævola, Digest, Book XXII. A testator left the tenth part of his estate, his slaves, and certain silver articles which he specified, to his wife, and he charged his heirs to give her his rings and his clothing, just as if they were her own private property. If these things did not actually belong to her, the question arose whether she would be entitled to them by virtue of the legacy. The answer was that it appeared that the testator intended to bequeath them to her, unless the contrary could be proved by the heir. 1The same testator, under the terms of a trust, charged his wife to transfer to their common foster-child whatever came into her hands by his will. The question arose whether the heir would be compelled to deliver to the said foster-child any property which the testator knew belonged to his wife, and which he directed to be given to her. The answer was that, if the articles were her own property, the heir would not be required to deliver them, but if they were acquired by virtue of the legacy he would be compelled to give them up. 2A certain woman under a trust inserted in her will and afterwards by a codicil, left specially several kinds of clothing and silverware which she stated that she had made herself, or had in her possession. The question arose whether any other articles not found among the assets of the estate would belong to the legatees. The answer was that only those which were found there would belong to them.
19 Ulpianus libro vicesimo ad Sabinum. Cum aurum vel argentum legatum est, quidquid auri argentique relictum sit, legato continetur sive factum sive infectum: pecuniam autem signatam placet eo legato non contineri. 1Proinde si certum pondus auri sit legatum vel argenti, magis quantitas legata videtur, nec ex vasis tanget. 2Sed si argenti facti pondo centum sint legata, ex facto argento debebitur legatum. unde est quaesitum apud Celsum, an et vascula possit separare: et scripsit vascula non separaturum, licet ei optio fuerit relicta. 3Idem Celsus libro nono decimo quaestionum quaerit, si centum pondo argenti fuerint relicta, an replumbari debeant, ut sic appendantur. et Proculus et Celsus aiunt exempto plumbo appendi debere: nam et emptoribus replumbatae adsignantur et in rationes argenti pondus sic defertur: quae sententia habet rationem. 4Plane si cui vascula argentea, ut puta lances quadratae sint legatae, etiam plumbum, quo continentur, eum sequetur. 5Simili modo quaeritur, si cui argentum legetur, an emblemata aurea quae in eo sunt eum sequantur. et Pomponius libro quinto ex Sabino distinguit multum interesse, certum pondus ei argenti facti legetur an vero argentum factum: si pondus, non contineri, si argentum factum, contineri, quoniam argento cedit, quod ad speciem argenti iunctum est, quemadmodum clavi aurei et purpurae pars sunt vestimentorum. idem Pomponius libris epistularum, etsi non sunt clavi vestimentis consuti, tamen veste legata contineri. 6Idem Celsus libro nono decimo digestorum, commentariorum septimo scribit auro legato ea, quae inaurata sunt, non deberi, nec aurea emblemata, quae in absidibus argenteis sint. 7An autem auri appellatione anuli aurei contineantur, quaeritur: et Quintus Saturninus libro decimo ad edictum scribit contineri. 8Lectum plane argenteum vel si qua alia supellex argentea fuit, argenti appellatione non continetur, si numero argenti habita non est, ut in iunctura argentea scio me dixisse, quod non in argentario pater familias reponebat. sed nec candelabra nec lucernae argenteae vel sigilla, quae in domo reposita sunt, vel imagines argenteae argenti appellatione continebuntur, nec speculum vel parieti adfixum vel etiam quod mulier mundi causa habuit, si modo non in argenti numero habita sunt. 9Argento facto legato Quintus Mucius ait vasa argentea contineri, veluti parapsidas acetabula trullas pelves et his similia, non tamen quae supellectilis sunt. 10Sed cui vasa sint legata, non solum ea continentur, quae aliquid in se recipiant edendi bibendique causa paratum, sed et quae aliquid sustineant: et ideo scutellas vel promulsidaria contineri. repositoria quoque continebuntur: nam vasorum appellatio generalis est, dicimus vasa vinaria et navalia. 11Infecti autem argenti appellatio rudem materiam continet, id est non factam. quid ergo si coeptum sit argentum fabricari? nondum perfectum utrum facti an infecti appellatione contineatur, dubitari potest: sed puto magis facti. certe si iam erat factum, sed caelabatur, facti appellatione continebitur. an et caelati continebitur, quod caelari coepit? et puto contineri, si cui forte caelatum sit argentum legatum. 12Si cui escarium argentum legatum sit, id solum debebitur, quod ad epulandum in ministerio habuit, id est ad esum et potum. unde de aquiminario dubitatum est: et puto contineri, nam et hoc propter escam paratur. certe si caccabos argenteos habebat vel miliarium argenteum vel sartaginem vel aliud vas ad coquendum, dubitari poterit, an escario contineatur. et haec magis cocinatorii instrumenti sunt. 13Perveniamus et ad gemmas inclusas argento auroque. et ait Sabinus auro argentove cedere: ei enim cedit, cuius maior est species. quod recte expressit: semper enim cum quaerimus, quid cui cedat, illud spectamus, quid cuius rei ornandae causa adhibetur, ut accessio cedat principali. cedent igitur gemmae, fialis vel lancibus inclusae, auro argentove. 14Sed et in coronis mensarum gemmae coronis cedent et hae mensis. 15In margaritis quoque et auro idem est: nam si margaritae auri ornandi gratia adhibitae sunt, auro cedunt, si contra, aurum margaritis cedet. 16Idem et in gemmis anulis inclusis. 17Gemmae autem sunt perlucidae materiae, quas, ut refert Sabinus libris ad Vitellium, Servius a lapillis eo distinguebat, quod gemmae essent perlucidae materiae, velut smaragdi chrysolithi amethysti, lapilli autem contrariae superioribus naturae, ut obsidiani, veientani. 18Margaritas autem nec gemmis nec lapillis contineri satis constitisse ibidem Sabinus ait, quia concha apud rubrum mare et crescit et coalescit. 19Murrina autem vasa in gemmis non esse Cassius scribit. 20Auro legato vasa aurea continentur et gemmis gemmea vasa. secundum haec sive gemmae sint in aureis vasis sive in argenteis, auro argentove cedent, quoniam hoc spectamus, quae res cuius rei ornandae causa fuerit adhibita, non quae sit pretiosior.
19 Ulpianus, On Sabinus, Book XX. When gold or silver is bequeathed, any gold or silver which was left is included in the legacy, whether manufactured or not. It is, however, well established that money, which is coined, is not included in the legacy. 1Hence, if a certain weight of gold or silver is bequeathed, the amount of the same is considered to have been left in bulk, and the legacy to have no reference to vases. 2If, however, a hundred weight of manufactured silver is bequeathed, the legacy is due in manufactured silver. Wherefore it was asked by Celsus whether small vessels should be excluded. He was of the opinion that they could not be excluded, even if the choice of them had been left to the heir. 3Celsus, in the Nineteenth Book of Questions, also asks where a hundred weight of silver is bequeathed, whether the leaden joints must be unsoldered, so that the silver can be weighed. Both Proculus and Celsus say that it must be weighed after the removal of the lead, for silver is delivered to purchasers unsoldered, and the weight of the same is taken into account; which opinion is reasonable. 4It is clear that where small silver vessels, for instance, square plates, are bequeathed, the lead with which they are soldered goes with them. 5Likewise, where silver-ware is bequeathed, the question arises whether any gold ornamentation united with it is included. Pomponius, in the Fifth Book on Sabinus, says that it makes a great deal of difference whether a certain weight of manufactured silver is bequeathed to him, or merely manufactured silver. If a certain weight of silver is bequeathed, it will not be included; if manufactured silver is bequeathed, it will be included, as anything united with any kind of silver-ware is, as it were, an accessory to the same; just as gold braid and purple form part of clothing. Pomponius, in the Books of the Epistles, says that braid is included in a legacy of clothing, even if it is not sewed to it. 6Celsus also states, in the Nineteenth Book of the Digest and the Seventh of the Commentaries, that where gold is bequeathed, neither articles which are gilded, nor gold ornamentation on silver plate will be due. 7Are gold rings included under the term “gold?” is asked. Quintus Saturninus says, in the Tenth Book on the Edict, that they are included. 8It is evident that a silver bed is not included under the term silver-ware, nor any other silver furniture, if the testator did not consider it as such. I know that I decided that this was the case with reference to a silver clasp, because the head of the household did not regard it as part of his silver-ware. And, neither can candelabra, nor silver lamps, nor small images kept in the house, nor silver statues, be included under the term “silver-ware.” Nor are mirrors attached to walls and which women use for their toilet included, provided they do not consider them as part of their silver-ware. 9Where a bequest of silver-ware is made, Quintus Mucius says that silver vessels are included; as, for example, chafing dishes, oil-pots, bowls, basins, and other utensils of this kind which, however, are not classed as furniture. 10Where vases are bequeathed to anyone, not only those are included which are intended for eating and drinking, but also such as are used to support something, as, for instance, saucers and trays. The sideboards in which they are kept are also included, for the term “vases” is a general one, by which we designate vessels to hold wine as well as those employed for refrigerating purposes. 11The expression “unmanufactured silver,” includes raw material, that is to say, such as has not been worked up. But what if some labor has been expended on the silver, but it has not yet been completed? There might be some doubt in this case whether or not it would come under the term “unmanufactured,” but I think that the term “manufactured silver” will be more applicable. It would certainly be manufactured, and be included under that designation, if it was in the hands of the goldsmith to be adorned with gold. Where the gold ornamentation has been begun, should it be included under the term adorned with gold? I think it should be, if the silver ware was bequeathed, and the gold ornamentation had not been finished. 12Where a bequest is made of silver-ware for the table, that only will be due to the legatee which the testator included in his own table service, that is to say such as he used for eating and drinking. Hence, there is some doubt concerning the basin for washing the hands; still, I think it would be included, because it has reference to the service of the table. It is certain that, if the testator had silver pots or caldrons, or kitchen utensils, or any other articles used for cooking purposes, it may be doubted whether these will be included in the legacy. It is my opinion that such things rather belong to the equipment of the kitchen. 13Let us now discuss jewels set in gold and silver. Sabinus says that they are accessory to the gold and silver, as smaller things are accessory to those that are greater. This is correctly stated, for as we are sometimes at a loss to determine which of two articles is accessory, we must consider which one of them is used for the purpose of ornamenting the other, as the accessory follows the principal. Therefore, jewels inserted in drinking cups, or in gold or silver plates, are accessories to the same. 14So far as the crowns of tables are concerned, their jewels are accessory to the crowns, and the latter are accessory to the tables. 15The same rule applies to pearls set in gold, for if the pearls are inserted into the gold for the purpose of ornamenting it, they will be accessory to it; if the contrary is the case, the gold will be accessory to the pearls. 16The same rule applies to jewels set in rings. 17Jewels are of transparent material. Servius distinguished them from precious stones, as Sabinus states in his Books on Vitellius, for the reason that jewels are transparent; as, for instance, emeralds, chrysolites, and amethysts, while precious stones are of a different nature, as, for example, obsidian, and those that are found near Veii. 18Sabinus also says that pearls should neither be classed as jewels nor as precious stones, which has frequently been established, because the shell on which they are found is formed and grows near the Red Sea. 19Moreover, Cassius says that vessels of iridescent glass are not classed as jewels. 20Where gold is bequeathed, vases of that metal are included, and where jewels are bequeathed, vases set with gems constitute part of the legacy. In accordance with this, where gold or silver vases are inlaid with jewels, they are accessory to the gold or silver; as we must consider which of the articles was intended for the ornamentation of the other, and not which of them is the more valuable.
20 Paulus libro tertio ad Sabinum. Si ut habiliter gemmae geri possint, inclusae auro fuerint, tum aurum gemmis dicimus cedere.
20 Paulus, On Sabinus, Book III. Where jewels are set in gold, in order to be more easily preserved, we then say that the gold is accessory to the jewels.
21 Pomponius libro sexto ad Sabinum. In argento potorio utrum id dumtaxat sit, in quo bibi possit, an etiam id, quod ad praeparationem bibendi comparatum est, veluti colum nivarium et urceoli, dubitari potest. sed propius est, ut haec quoque insint. 1Unguentis legatis non tantum ea legata videntur, quibus unguimur voluptatis causa, sed et valetudinis, qualia sunt commagena glaucina crina rosa muracolum nardum purum: hoc quidem etiam quo elegantiores sint et mundiores, unguuntur feminae. 2Sed de aquiminario Cassius ait consultum se respondisse, cum alteri argentum potorium, alteri escarium legatum esset, escario cedere.
21 Pomponius, On Sabinus, Book VII. With reference to silver vessels used for drinking purposes, a doubt may arise whether those only used for actual drinking, or such as are employed for the preparation of beverages, as, for instance, strainers, and small pitchers are included. The better opinion is that they also should be included. 1Where perfumes are bequeathed, not only those which are used for pleasure, but also such as we employ in illness as comagena, essences distilled from lilies, roses, and myrrh, as well as pure nard, which women use for the purpose of appearing more elegant and clean. 2Cassius says with reference to basins used for washing the hands that, when his advice was asked, he gave it as his opinion where there were two legatees, to one of whom vessels for eating, and to the other those for drinking purposes were bequeathed, these should be considered as accessory to the table service of food.
22 Ulpianus libro vicesimo secundo ad Sabinum. Vestimentum id est quod detextum est, etsi desectum non sit, id est si sit consummatum. quod in tela est nondum pertextum vel detextum, contextum appellatur. quisquis igitur vestem legaverit, neque stamen neque subtemen legato continebitur.
22 Ulpianus, On Sabinus, Book XXII. Under the term clothing is included any fabric which has been woven, even if it has not been cut off, that is to say made up. Material is classed as cloth, which is not yet completely woven, or finished. Therefore, where anyone bequeaths a garment, neither the warp nor the woof of a web will be included.
23 Idem libro quadragesimo quarto ad Sabinum. Vestis an vestimenta legentur, nihil refert. 1Vestimentorum sunt omnia lanea lineaque vel serica vel bombycina, quae induendi praecingendi amiciendi insternendi iniciendi incubandive causa parata sunt et quae his accessionis vice cedunt, quae sunt insitae picturae clavique qui vestibus insuuntur. 2Vestimenta omnia aut virilia sunt aut puerilia aut muliebria aut communia aut familiarica. virilia sunt, quae ipsius patris familiae causa parata sunt, veluti togae tunicae palliola vestimenta stragula amfitapa et saga reliquaque similia. puerilia sunt, quae ad nullum alium usum pertinent nisi puerilem, veluti togae praetextae aliculae chlamydes pallia quae filiis nostris comparamus. muliebria sunt, quae matris familiae causa sunt comparata, quibus vir non facile uti potest sine vituperatione, veluti stolae pallia tunicae capitia zonae mitrae, quae magis capitis tegendi quam ornandi causa sunt comparata, plagulae penulae. communia sunt, quibus promiscui utitur mulier cum viro, veluti si eiusmodi penula palliumve est et reliqua huiusmodi, quibus sine reprehensione vel vir vel uxor utatur. familiarica sunt, quae ad familiam vestiendam parata sunt, sicuti saga tunicae penulae lintea vestimenta stragula et consimilia. 3Vestis etiam ex pellibus constabit,
23 The Same, On Sabinus, Book XLIV. It makes no difference whether garments or clothing is bequeathed. 1Under the term “clothing” are included all goods made of wool, flax, silk, or cotton, which are intended to be worn or used as garments, girdles, cloaks, wraps, carpets, or coverlets, and any designs, stripes, or embroidery sewed to such articles, are classed as accessories of the same. 2Clothing is either intended for the use of men, women, or children, or is common to both sexes, or is used by slaves. That peculiar to men is such as is designed for the use of the head of the household, for instance, togas, tunics, small capes, mantles, military cloaks, and other things of this description. Garments peculiar to children, are such as are used for no other purpose, as for example, the toga prætexta, short tunics, Greek cloaks, and capes such as we purchase for our offspring. Women’s clothing is that intended for the use of the mother of the family, and which a man cannot readily wear without censure; as for instance, gowns, mantles, tunics, capes, belts, and hoods, which are designed rather to protect the head than for the purpose of ornament, veils, and travelling cloaks. Those are common to both sexes which both women and men use indiscriminately, such as cloaks, capes, and other garments of this kind, which either a man or his wife can wear without rendering themselves liable to unfavorable comment. The garments of slaves are such as are intended to clothe them, for example, capes, tunics, linen gowns, cloaks, wraps, smock frocks, and other articles of this description. 3Where clothing is bequeathed, it may also consist of furs;
24 Paulus libro undecimo ad Sabinum. cum et tunicas et stragula pellicia nonnulli habeant.
24 Paulus, On Sabinus, Book XI. As some persons have tunics and robes made of furs.
25 Ulpianus libro quadragesimo quarto ad Sabinum. Argumento sunt etiam nationes quaedam, veluti Sarmatarum, quae pellibus teguntur. 1Aristo etiam coactilia vesti cedere ait et tegimenta supselliorum huic legato cedere. 2Vittae margaritarum, item fibulae ornamentorum magis quam vestis sunt. 3Tapeta vesti cedunt, quae aut sterni aut inici solent: sed stragulas et babylonica, quae equis insterni solent, non puto vestis esse. 4Fasciae crurales pedulesque et inpilia vestis loco sunt, quia partem corporis vestiunt. alia causa est udonum, quia usum calciamentorum praestant. 5Cervicalia quoque vestis nomine continentur. 6Si quis addiderit ‘vestem suam’, apparet de ea eum sensisse, quam ipse in usus suos habuit. 7Culcitae etiam vestis erunt. 8Item pelles caprinae et agninae vestis erunt. 9Muliebri veste legata et infantilem contineri et puellarum et virginum Pomponius libro vicesimo secundo ad Sabinum recte scribit: mulieres enim omnes dici, quaecumque sexus feminini sunt. 10Ornamenta muliebria sunt, quibus mulier ornatur, veluti inaures armillae viriolae anuli praeter signatorios et omnia, quae ad aliam rem nullam parantur, nisi corporis ornandi causa: quo ex numero etiam haec sunt: aurum gemmae lapilli, quia aliam nullam in se utilitatem habent. mundus mulieris est, quo mulier mundior fit: continentur eo specula matulae unguenta vasa unguentaria et si qua similia dici possunt, veluti lavatio riscus. ornamentorum haec: vittae mitrae semimitrae calautica acus cum margarita, quam mulieres habere solent, reticula crocyfantia. sicut et mulier potest esse munda, non tamen ornata, ut solet contingere in his, quae se emundaverint lotae in balneo neque se ornaverint: et contra est aliqua ex somno statim ornata, non tamen conmundata. 11Margarita si non soluta sunt vel qui alii lapides (si quidem exemptiles sint), dicendum est ornamentorum loco haberi: sed et si in hoc sint resoluti ut componantur, ornamentorum loco sunt. quod si adhuc sint rudes lapilli vel margaritae vel gemmae, ornamentorum loco non erunt, nisi alia mens fuit testantis, qui haec quoque, quae ad ornamenta paraverat, ornamentorum loco et appellatione comprehendi voluit. 12Unguenta, quibus valetudinis causa unguimur, mundo non continentur.
25 Ulpianus, On Sabinus, Book XLIV. This is proved by the fact that certain nations, for instance the Sarmatians, clothe themselves in skins. 1Aristo says that receptacles for clothing, and the coverings of seats, are also included in a legacy of this kind. 2Fillets set with pearls, as well as buckles, should rather be classed as ornaments than clothing. 3Tapestry which is either used to recline upon, or as a covering, is also embraced in a bequest of clothing. I do not think that the cloths and housings used for horses should be considered as clothing. 4Cloths with which to wrap the thighs or legs and felt caps are included under the term clothing, because by means of them a portion of the body is clad. Felt socks are also included, because they are used to protect the feet. 5Pillows are also included in the term clothing. 6Where anyone makes use of the expression “His clothing” it is evident that he means that which he himself has for his own use. 7Mattresses are also clothing. 8The skins of goats and lambs are clothing. 9Pomponius, in the Twenty-second Book on Sabinus, very properly says that where the wardrobe of a woman is bequeathed the garments of female infants and young girls are also included, for the term “woman” means all persons of the feminine sex. 10Ornaments peculiar to woman are those with which she decorates herself, as, for instance, earrings, bracelets, necklaces, rings (with the exception of those used for seals), and all articles which are designed for no other purpose but the adornment of the body, to which class also belong trinkets of gold, jewels, and precious stones, for the reason that they themselves have no other use. Toilet-articles consist of those things by the use of which a woman becomes more neat and clean. Among them are included mirrors, urinals, ointments, vessels to contain the latter, and other articles of the same kind, bathing utensils, and chests. The following are classed as ornaments, namely, fillets, coifs, small hoods, head dresses, pins set with pearls which women are accustomed to have, and small nets for the hair. A woman can be clean and still not be adorned, as is the case with those who have washed themselves clean in the bath, and have not yet put on their ornaments; and, on the other hand, a woman may arise from her sleep decorated with her ornaments, but still she will not be clean. 11Pearls, where they are not unstrung, or any other precious stones where they can be readily detached from their settings, may be said to be included among ornaments. Where, however, precious stones, pearls, or jewels are still rough, they will not be considered as ornaments, unless the intention of the testator was otherwise, when he desired articles of this kind intended for adornment to be included in the class and under the name of ornaments. 12Ointments, such as are used in illness, do not come under the head of toilet-articles.
26 Paulus libro undecimo ad Sabinum. Quamvis quaedam ex veste magis ornatus gratia, quam quo corpus tegant, comparentur, tamen quod eo nomine sint reperta, potius habenda esse vestis numero quam ornamentorum. similiter ornamentorum esse constat, quibus uti mulieres venustatis et ornatus causa coeperunt, neque referre, si quaedam eorum alium quoque usum praebeant, sicuti mitrae et anademata: quamvis enim corpus tegant, tamen ornamentorum, non vestis esse.
26 Paulus, On Sabinus, Book XI. Although there are certain articles of dress which are intended for embellishment rather than to cover the body, still, because they are designated by the name of clothing, they should be considered to belong to the category of garments, and not to that of ornaments. In like manner, it is well established that those articles should be classed as ornaments which women make use of to increase their beauty, and adorn themselves; and it makes no difference if some of these things are used for other purposes (as hoods and other headdresses), for although they protect the body, they are still considered to be ornaments rather than clothing.
27 Ulpianus libro quadragesimo quarto ad Sabinum. Quintus Mucius libro secundo iuris civilis ita definit argentum factum vas argenteum videri esse. 1An cui argentum omne legatum est, ei nummi quoque legati esse videantur, quaeritur. et ego puto non contineri: non facile enim quisquam argenti numero nummos computat. item argento facto legato puto, nisi evidenter contra sensisse testatorem appareat, nummos non contineri. 2Argento omni legato, quod suum esset, sine dubio non debetur id, quod in credito esset: hoc ideo, quia non videtur suum esse, quod vindicari non possit. 3Cui aurum vel argentum factum legatum est, si fractum aut collisum sit, non continetur: Servius enim existimat aurum vel argentum factum id videri, quo commode uti possumus, argentum autem fractum et collisum non incidere in eam definitionem, sed infecto contineri. 4Cui legatum est aurum omne, quod suum esset cum moreretur, eius omne aurum fiet, quod tunc pater familias, cum moreretur, vindicare potuit suum esse. sed si qua distributio eius rei facta est, tunc interest, quomodo sit legatum. si factum aurum legatum est, omne ad eum pertinet cui legatum est ex quo auro aliquid est effectum, sive id suae sive alterius usionis causa paratum esset, veluti vasa aurea emblemata signa aurum muliebre et cetera, quae his rebus sunt similia. sed si infectum legatum est, quod eius ita factum est, ut eo, quod ad rem comparatum est, non possis uti sine refectione, quodque ab eo patre familias infecti numero fuerat, id videtur legatum esse. si autem aurum vel argentum signatum legatum est, id pater familias videtur testamento legasse, quod eius aliqua forma est expressum, veluti quae filippi sunt itemque nomismata et similia. 5Argento legato non puto ventris causa habita scafia contineri, quia argenti numero non habentur. 6Argentum factum recte quis ita definierit quod neque in massa neque in lamna neque in signato neque in supellectili neque in mundo neque in ornamentis insit.
27 Ulpianus, On Sabinus, Book XLIV. Quintus Mucius, in the Second Book on the Civil Law, says that silver plate should be classed as manufactured silver. 1The question arises where a bequest of all the silver of a testator is made whether his silver coin should also be held to be included in the legacy. I think that this should not be done, for no one ordinarily classes his money as silver-ware. Likewise, where manufactured silver is bequeathed, I do not think that coins are included, unless it plainly appears that the intention of the testator was otherwise. 2Where all the silver of the testator was bequeathed, there is no doubt that any which may have been placed with him for safe-keeping will not be due to the legatee, for the reason that what he cannot claim as his own is not considered to belong to him. 3Where a legacy of manufactured gold or silver is bequeathed to anyone, and it has been broken or damaged, it will not be included in the legacy; for Servius is of the opinion that manufactured gold or silver should be held to be such as we can conveniently use, but that silver vessels which are broken or damaged, do not come under this head, and should be classed as manufactured silver. 4Where a bequest is made to anyone of all the gold which may belong to the testator at his death, he can claim all the gold which the latter had at that time. Where, however, a distribution of his articles of gold was made by the testator, it then becomes a matter of importance to ascertain in what terms the legacy was expressed. If manufactured gold is bequeathed, where anything has been made out of the gold it will all belong to him to whom the legacy was left, whether it was intended for the use of the testator, or for that of someone else; as, for instance, gold vases, ornaments, seals, jewels for women, and all other articles of this description. When, however, unmanufactured gold is bequeathed, which is of such a character that it cannot be made use of without being worked up, and which the testator regarded as unmanufactured gold, it will be considered to have been bequeathed. But if engraved gold or silver is bequeathed, the testator will be held to have left by his will that on which any design is traced, as, for instance, articles made at Philippi, and also medals, and other things of this kind. 5Where silver is bequeathed, I do not think that vessels used as receptacles for discharges from the bowels are included, because they are not classed as silver ware. 6Anyone may properly define manufactured silver to be such as is not in bulk or in sheets, or which does not consist of inlaid pieces, or of furniture, toilet articles, or personal ornaments.
28 Alfenus Varus libro septimo digestorum. Cum in testamento alicui argentum, quod usus sui causa paratum esset, legaretur, itemque vestis aut supellex, quaesitum est, quid cuiusque usus causa videretur paratum esse, utrumne id argentum, quod victus sui causa paratum pater familias ad cotidianum usum parasset an et si eas mensas argenteas et eius generis argentum haberet, quo ipse non temere uteretur, sed commodare ad ludos et ad ceteras apparationes soleret. et magis placet, quod victus sui causa paratum est, tantum contineri.
28 Alfenus Verus, Digest, Book VII. Where silver destined for the use of the testator is left by will to anyone, together with his wardrobe and his furniture, the question arises for what use these articles would seem to be intended; whether the silver designed for daily table service of the head of the household was meant, or whether the silver tables and other things of the same kind which the testator did not use continually, but was accustomed to lend for games, and on other important occasions were referred to. The better opinion is that the silver only is included in such a bequest which was designed for the ordinary table service of the testator.
29 Florentinus libro undecimo institutionum. Si quando alterius generis materia auro argentove iniecta sit, si factum aurum vel argentum legetur, et id quod iniectum est debetur. 1Utra autem utrius materiae sit accessio, visu atque usu rei, consuetudinis patris familias aestimandum est.
29 Florentinus, Institutes, Book XI. Where material of another description is inserted in gold or silver, and the legacy consists of manufactured gold or silver, whatever is inserted in them will be due to the legatee. 1In order to determine which of the two materials is accessory, the intention and custom of the testator, as well as the use which he made of the article in question, must be ascertained.
30 Paulus libro singulari de adsignatione libertorum. Si quis ita legaverit: ‘uxori meae mundum ornamenta seu quae eius causa paravi, do lego’, placet omnia deberi, sicuti cum ita legatur: ‘Titio vina, quae in urbe habeo seu in portu, do lego’, omnia deberi: hoc enim verbum ‘seu’ ampliandi legati gratia positum est.
30 Paulus, On the Allotment of Freedmen. Where anyone bequeaths a legacy as follows, “I give and bequeath to my wife her toilet articles, her ornaments, or everything which I have acquired for her use,” it is well established that everything is due. Likewise, when a bequest is made as follows, “I give and bequeath to Titius the wine which I have in the city, or in the harbor,” he will be entitled to all of them; for the word “or” is introduced for the purpose of extending the scope of the legacy.
31 Labeo libro secundo posteriorum a Iavoleno epitomatorum. Qui lancem maximam minorem minimam relinquebat, ita legaverat: ‘lancem minorem illi lego’. mediae magnitudinis videri legatam lancem responsum est, si non appareret, quam lancem ex his pater familias demonstrare voluisset.
31 Labeo, Epitomes of the Last Works of Javolenus, Book II. A certain man left a large dish, one of medium size, and one still smaller, as follows: “I bequeath to So-and-So my smaller dish.” It was held that the dish of medium size was bequeathed, if it did not appear which dish the testator intended to designate.
32 Paulus libro secundo ad Vitellium. Pediculis argenteis adiuncta sigilla aenea ceteraque omnia, quae ad eandem similitudinem redigi possunt, argento facto cedunt. 1Auro facto adnumerantur gemmae anulis inclusae, quippe anulorum sunt, cymbia argentea crustis aureis illigata. margaritae, quae ita ornamentis muliebribus contextae sunt, ut in his aspectus auri potentior sit, auro facto adnumerantur. aurea emblemata, quae in lapidibus apsidibus argenteis essent et replumbari possent, deberi Gallus ait: sed Labeo improbat. Tubero autem, quod testator auri numero habuisset, legatum deberi ait: alioquin aurata et inclusa vasa alterius materiae auri numero non habenda. 2Argento potorio vel escario legato in his, quae dubium est cuius generis sint, consuetudinem patris familias spectandam, non etiam in his, quae certum est eius generis non esse. 3Quidam primipilaris uxori suae argentum escarium legaverat: quaesitum est, cum pater familias in argento suo vasa habuerat, quibus et potabat et edebat, an legato haec quoque vasa continerentur. Scaevola respondit contineri. 4Idem, cum quaereretur de tali legato: ‘hoc amplius filia mea dulcissima e medio sumito tibique habeto ornamentum omne meum muliebre cum auro et si qua alia muliebria apparuerint’, cum testatrix negotiatrix fuerit, an non solum argentum, quod in domo vel intra horreum usibus eius fuit, legato cedit, sed etiam quod in basilica fuit muliebre: respondit, si testatrix habuit proprium argentum ad usum suum paratum, non videri id legatum, quod negotiandi causa venale proponi soleret, nisi de eo quoque sensisse is qui petat probet. 5Neratius Proculum refert ita respondisse vasis electrinis legatis nihil interesse, quantum ea vasa, de quibus quaeritur, argenti aut electri habebant, sed utrum argentum electro an electrum argento cedat? id ex aspectu vasorum facilius intellegi posse: quod si in obscuro sit, inspiciendum est, in utro numero ea vasa is, qui testamentum fecit, habuerit. 6Labeo testamento suo Neratiae uxori suae nominatim legavit ‘vestem mundum muliebrem omnem ornamentaque muliebria omnia lanam linum purpuram versicoloria facta infectaque omnia’ et cetera. sed non mutat substantiam rerum non necessaria verborum multiplicatio, quia Labeo testamento lanam ac deinde versicoloria scripsit, quasi desit lana tincta lana esse, detractoque verbo ‘versicolorio’ nihilo minus etiam versicoloria debebuntur, si non appareat aliam defuncti voluntatem fuisse. 7Titia mundum muliebrem Septiciae legavit: ea putabat sibi legata et ornamenta et monilia, in quibus gemmae et margaritae insunt, et anulos et vestem tam coloriam: quaesitum est, an haec omnia mundo continentur. Scaevola respondit ex his quae proponerentur dumtaxat argentum balneare mundo muliebri contineri. 8Item cum inaures, in quibus duae margaritae elenchi et smaragdi duo, legasset et postea elenchos eisdem detraxisset et quaereretur, an nihilo minus detractis elenchis inaures deberentur: respondit deberi, si maneant inaures, quamvis margarita eis detracta sint. 9De alio idem respondit, cum quaedam ornamentum mamillatum ex cylindris triginta quattuor et tympanis margaritis triginta quattuor legasset et postea quattuor ex cylindris, etiam sex de margaritis detraxisset.
32 Paulus, On Vitellius, Book II. Where manufactured silver is bequeathed, the legacy will include the brazen ornaments added to the feet of silver vessels, and all other articles which can be brought under the same category. 1Under the term “manufactured gold” are included jewels set in rings, even though they belong to the rings. Small cups encrusted with gold, and pearls which are set in the jewelry of women in order that the brilliancy of the gold may be enhanced, are also included under the head of manufactured gold. Golden ornaments which are inserted in precious stones and silver plates, and which can be unsoldered, Gaius says are included in the legacy; but Labeo does not adopt his opinion. Tubero, however, says that the legacy includes everything that the testator classed as gold, otherwise articles of silver gilt and vases of any other material enclosed in gold should not be classed as gold. 2Where silver vessels used for eating or drinking are bequeathed, and any doubt arises as to which of these classes they belong, the custom of the testator must be taken into consideration; but this is not the case where it is certain that an article does not belong to either class. 3A certain officer of the triarii left his wife some silver articles to be used while eating, and, as the testator included among his silverware vessels used both for eating and drinking the question arose whether these also were embraced in the legacy. Scævola gave it as his opinion that they were. 4Likewise, where a question was raised with reference to the following legacy, “Let my dear daughter, in addition, take from the bulk of my estate, and let her have for her use my entire wardrobe, together with the gold, and everything else destined for the use of women,” as the testatrix was engaged in business, it was asked whether not only the silver which was in her house or her wareroom for her own use was left, and also whether that which she had in her place of business could be considered silver for the use of women, and would be included in the legacy. The answer was if the testatrix had silver plate destined for her own use, that which she kept for the purpose of sale would not be held to have been bequeathed, unless the party who claimed it could prove that she also had this in her mind when she made the bequest. 5Neratius relates that Proculus was of the opinion that where vases of electrum were bequeathed, it made no difference how much silver or electrum the vases in question contained. But how could it be decided whether the silver was accessory to the silver, or the silver to the electrum? This could be readily determined from the appearance of the vases. If the question should still remain in doubt, it should be ascertained in what class the party who made the will was accustomed to include the said vases. 6Labeo, by his will, made a special bequest of her wardrobe to his wife Neratia, as follows: “All her toilet articles, and all her ornaments intended for the use of women, all wool, linen, and purple cloth dyed of various colors, both finished and unfinished, etc.” This unnecessary multiplication of terms does not change the nature of the property, because Labeo mentioned the wool, and afterwards many different colored woolen articles, just as if wool ceased to be such after it was dyed, for even if the expression “of various colors” had been omitted, the wool of different colors would still be due, if it was not clear that the intention of the deceased was otherwise. 7Titia bequeathed her toilet articles intended for the use of women to Septicia. The latter understood that the jewelry and necklaces set with gems and pearls, and the rings, together with the garments of one color as well as those of different colors, were left to her. The question arose whether all these things were included under the head of toilet articles. Scævola answered that, in accordance with the facts stated, only such silver vessels as were employed in the bath would be included in toilet articles for the use of women. 8Again, where a testator bequeathed earrings set with two large pearls and two emeralds, and afterwards removed the pearls, the question arose whether the earrings would be due after the pearls had been removed. The answer was that they would still be due if the earrings remained, even though the pearls had been removed from them. 9He also rendered a similar opinion in another case, where a man made a bequest of a necklace composed of thirty-four cylindrical stones, and an equal number of circular pearls, and afterwards removed four of the cylinders, and six of the pearls.
33 Pomponius libro quarto ad Quintum Mucium. Inter vestem virilem et vestimenta virilia nihil interest: sed difficultatem facit mens legantis, si et ipse solitus fuerit uti quadam veste, quae etiam mulieribus conveniens est. itaque ante omnia dicendum est eam legatam esse, de qua senserit testator, non quae re vera aut muliebris aut virilis sit. nam et Quintus Titius ait scire se quendam senatorem muliebribus cenatoriis uti solitum, qui si legaret muliebrem vestem, non videretur de ea sensisse, qua ipse quasi virili utebatur.
33 Pomponius, On Quintus Mucius, Book IV. There is no difference between the expressions garments for men, and clothing for men, but the intention of the testator sometimes creates difficulty, if he himself was accustomed to make use of some garment which was also suitable for women. Therefore it should, by all means, be ascertained whether the garment bequeathed was the one which the testator had in his mind, and not that which was actually destined for the use of women, or for men. For Quintus Mucius says that he knew a certain Senator who was in the habit of wearing women’s clothing at the table, and who, if he should bequeath a garment used by women, would not be considered to have had in his mind one which he himself was accustomed to make use of, as if it was one suitable for his sex.
34 Idem libro nono ad Quintum Mucium. Scribit Quintus Mucius: si aurum suum omne pater familias uxori suae legasset, id aurum, quod aurifici faciundum dedisset aut quod ei deberetur, si ab aurifice ei responsum non esset, mulieri non debetur. Pomponius. hoc ex parte verum est, ex parte falsum. nam de eo, quod debetur, sine dubio: ut puta si auri libras stipulatus fuerit, hoc aurum quod ei deberetur ex stipulatu, non pertinet ad uxorem, cum illius factum adhuc non sit: id enim, quod suum esset, non quod in actione haberet, legavit. in aurifice falsum est, si aurum dederit ita, ut ex eo auro aliquid sibi faceret: nam tunc, licet apud aurificem sit aurum, dominium tamen non mutavit manet tamen eius qui dedit et tantum videtur mercedem praestaturus pro opera aurifici: per quod eo perducimur, ut nihilo minus uxori debeatur. quod si aurum dedit aurifici, ut non tamen ex eo auro fieret sibi aliquod corpusculum, sed ex alio, tunc, quatenus dominium transit eius auri ad aurificem (quippe quasi permutationem fecisse videatur), et hoc aurum non transibit ad uxorem. 1Item scribit Quintus Mucius, si maritus uxori, cum haberet quinque pondo auri, legasset ita: ‘aurum quodcumque uxoris causa paratum esset, uti heres uxori daret’, etiamsi libra auri inde venisset et mortis tempore amplius quam quattuor librae non deprehendentur, in totis quinque libris heredem esse obligatum, quoniam articulus est praesentis temporis demonstrationem in se continens. quod ipsum quantum ad ipsam iuris obligationem pertineat, recte dicetur, id est ut ipso iure heres sit obligatus. verum sciendum, si in hoc alienaverit testator inde libram, quod deminuere vellet ex legato uxoris suae, tunc mutata voluntas defuncti locum faciet doli mali exceptioni, ut, si perseveraverit mulier in petendis quinque libris, exceptione doli mali submoveatur. sed si ex necessitate aliqua compulsus testator, non quod vellet deminuere ex legato, tunc mulieri ipso iure quinque librae auri debebuntur nec doli mali exceptio nocebit adversus petentem. 2Quod si ita legasset uxori ‘aurum quod eius causa paratum erit’, tunc rectissime scribit Quintus Mucius, ut haec scriptura habeat in se et demonstrationem legati et argumentum: ideoque ipso iure alienata libra auri amplius quattuor pondo non remanebunt in obligatione, nec erit utendum distinctione, qua ex causa alienaverit testator.
34 The Same, On Quintus Mucius, Book IX. Quintus Mucius said that if the head of a household should bequeath all his gold to his wife, she would not be entitled to that which he had given to a goldsmith for the purpose of being manufactured, or any which was due to him and had not been returned by the goldsmith. Pomponius: This opinion is partly true and partly false. For with reference to the gold which was due to him, there can be no question; for instance, if he had contracted for a certain number of pounds of gold, the gold to which he was entitled under the contract would not belong to his wife, since it had not yet become the property of her husband; for he bequeathed to her what belonged to him, and not that which he had a right to collect by an action at law. So far as the goldsmith is concerned, the opinion is incorrect, if the party gave the metal to him in order that he might make something for him out of it; since, although the gold was in the hands of the goldsmith, this does not change its ownership, as it still remains the property of him who gave it, and he is only obliged to compensate the goldsmith for his labor, on which account we come to the conclusion that the wife will still be entitled to it. If, however, he gave the metal to the goldsmith, not in order that some article might be manufactured out of it, but out of other gold, then, as the ownership of the metal is transferred to the goldsmith, because an exchange is considered to have taken place, this gold will not pass to the wife. 1Quintus Mucius also says that if a husband, having five pounds weight of gold, should make a bequest as follows, “Let my heir deliver to my wife any gold which I may have acquired for her use,” even if the husband has sold a pound of gold, and, at the time of his death, not more than four pounds should be found, the heir will be obliged to furnish the entire five pounds, as the terms made use of are indicative of the present time. This opinion, so far as it is applicable to the legal obligation, is correct; that is to say, the heir is liable by operation of law. It should, however, be remembered that if the testator alienated the above-mentioned pound of gold, because he desired to diminish the legacy to his wife, then the changed intention of the deceased will permit an exception based on bad faith to be pleaded, so that if the woman should insist in bringing suit to recover the five pounds of gold, she can be barred by an exception on that ground. But where the testator disposed of the gold, having been compelled to do so through necessity, and not because he desired to diminish the legacy, then the five pounds of gold will be due to the woman by operation of law, and an exception on the ground of bad faith will avail the heir nothing against the claimant. 2Where a testator makes a bequest to his wife as follows, “I bequeath to my wife any gold which may have been acquired for her use,” Quintus Mucius very properly says that this clause contains in itself the designation and the proof of the legacy. Therefore, if the testator has alienated a pound of gold, no more than four pounds weight will remain due by operation of law, and it will not be necessary to consider for what reason the testator disposed of it.
35 Paulus libro quarto decimo responsorum. ‘Titiae amicae meae, cum qua sine mendacio vixi, auri pondo quinque dari volo’: quaero, an heredes ad praestationem integrae materiae auri an ad pretium et quantum praestandum compellendi sint. Paulus respondit aut aurum ei, de qua quaeritur, praestari oportere, aut pretium auri, quanti comparari potest. 1Item quaero, si lite contestata praetor ita pronuntiavit, ut materia praestetur, an tutores audiendi sint ab hac sententia pupillum, adversus quem pronuntiatum est, apud successorem eius in integrum restituere volentes. Paulus respondit praetorem, qui auro legato certi ponderis materiam praestari iussit, recte pronuntiasse videri.
35 Paulus, Opinions, Book XIV. “I desire five pounds weight of gold to be given to Titia, with whom I have always lived without any disagreement.” I ask whether the heirs shall be compelled to furnish the gold entirely in kind, or to pay the value of the same; and what amount they must pay. Paulus answers that either the gold in question must be furnished, or the price of the same, whatever it can be purchased for. 1I also ask if, issue having been joined in the above-mentioned case, and the Prætor having decided that the gold itself must be furnished, whether the guardians of a minor, who is the heir against whom the decree was rendered, and who applied to the successor of the Prætor for a decree for the complete restitution of their ward, shall be heard with reference to the said decree. Paulus answered that the Prætor had rendered a proper decision who, where gold had been bequeathed, ordered the amount of the same to be delivered.
36 Scaevola libro tertio responsorum. ‘Seiae dulcissimae poculum aureum quod elegerit fidei heredum committo ut darent’. quaero, cum in hereditate non sint nisi truellae scyphi modioli phialae, an Seia de his speciebus eligere possit. respondit, cum omnia potui parata pocula dicuntur, posse eam ex his eligere.
36 Scævola, Opinions, Book III. “I charge my heirs to deliver to my dearest Seia any golden cup which she may select.” As the assets of the estate do not include anything but bowls, goblets, small measures, or drinking vessels, I ask whether Seia can make her collection from these articles. The answer was since the word “cup” is applicable to everything intended for drinking purposes, she can make her selection from them.
37 Paulus libro vicesimo primo responsorum. Ornamentorum appellatione vestem muliebrem non contineri nec errorem heredis ius mutasse respondi.
37 Paulus, Opinions, Book XXI I gave it as my opinion that woman’s clothing is not included in the term “ornaments,” and that a mistake of the heir does not change the law.
38 Scaevola libro tertio responsorum. Titia testamento, item codicillis multas species tam argenti quam vestis specialiter per fideicommissum reliquit: quaero an non aliae species legato cedant, quam quae in hereditate inventae essent. respondit eas cedere, quae inventae essent: de ceteris cavendum, ut, si inventae essent, praestentur. 1‘Semproniae Piae hoc amplius coopertoria Taviana et tunicas tres cum palliolis quae elegerit dari volo’: quaero an ex universa veste, id est an ex synthesi tunicas singulas et palliola Sempronia eligere possit. respondit, si essent tunicae singulares cum palliolis relictae, ex his dumtaxat eligi posse: quod si non est, heredem vel tunicas et palliola set ex synthesi praestaturum vel veram aestimationem earum. 2Seia testamento ita cavit: ‘si mihi per condicionem humanam contigerit, ipsa faciam: sin autem, ab heredibus meis fieri volo: iubeoque signum dei ex libris centum in illa sacra aede et in patria statui subscriptione nominis mei’. quaesitum est: cum in eo templo non nisi aut aerea aut argentea tantum sint dona, heredes Seiae utrum ex argento an ex auro signum ponere compellendi sunt an aereum? respondit secundum ea quae proponerentur argenteum ponendum.
38 Scævola, Opinions, Book V. Titia, by her will and a codicil, specially bequeathed under a trust several articles of silver and of clothing. I ask whether any other property than that which may be found among the assets of the estate will be included in the legacy. The answer is that what is found will be included, and that security must be furnished to deliver the balance, in case it should be found. 1“I wish my Tabian mantles, and three tunics with their capes, also to be given to Sempronia-Pia, to be selected by herself.” I ask whether Sempronia will have the right to make her selection of the different tunics and capes from all the clothing of the deceased, that is to say, from her entire wardrobe. The answer is that if the tunics with the capes were left separately, she could only make her choice from those of the same kind; but if this was not the case, the heir would have a right to furnish them from the entire wardrobe, or to pay her their appraised value. 2Seia made the following provision in her will: “If I, myself, should be prevented from doing so by the uncertainty of human affairs, I desire, and I direct that the bust of such-and-such a god, of a hundred pounds weight, be placed by my heirs in such-and-such a holy temple, with an inscription including my name, and stating that I have caused it to be set up in my native city.” As there were no other gifts in this temple except some of bronze or silver, the question arose whether the heirs of Seia would be compelled to provide a silver, a gold, or a bronze bust. The answer was that, in accordance with the facts stated, one of silver should be placed there.
39 Iavolenus libro secundo ex posterioribus Labeonis. Si uxori mundus muliebris legatus esset, ea tantummodo deberi Ofilius Labeo responderunt, quae ex his tradita utendi causa uxori viro fuissent: aliter enim interpretantibus summam fore captionem, si vascularius aut faber argentarius uxori ita legasset. 1Cum ita legatum esset: ‘argentum, quod domo mea erit cum moriar’, Ofilius nec quod depositum a se nec quod commodatum reliquisset argentum legatum videri respondit. idem Cascellius de commodato. Labeo, quod depositum esset, ita deberi, si praesentis custodiae causa, non perpetuae veluti thensauro depositum esset, quia illa verba ‘quod domo mea erit’ sic accipi debere ‘esse solebat’: et hoc probo. 2Ateius Servium respondisse scribit, cui argentum, quod in Tusculano fundo cum moreretur habuisset, legatum esset, et quod antequam moreretur ex urbe in Tusculanum iussu testatoris translatum esset, deberi: contra fore, si iniussu translatum esset.
39 Javolenus, On the Last Works of Labeo, Book II. Where toilet articles intended for women are bequeathed to a wife, Ofilius and Labeo gave it as their opinion that she will only be entitled to such as have been given to her by her husband for her own use. If this should be interpreted otherwise, great harm would result when a goldsmith or a silversmith makes such a bequest to his wife. 1Where a legacy was bequeathed as follows, “I leave to So-and-So the silver which may be found in my house at the time of my death,” Ofilius holds that silver deposited with the testator or loaned to him, ought not to be included. Cascellius is of the same opinion with reference to silver that was loaned. Labeo thinks that what was deposited with him will be due to the legatee, if it was left with him forever as treasure, and not merely for temporary safe-keeping; because the words, “Which may be found in my house at the time of my death,” should be understood to mean that which was ordinarily there. I approve of this opinion. 2Attius says Servius held that where a testator left a certain person the silver “which he might have on his Tuscan estate when he died;” that also was included in the legacy, which, before the testator’s death, had, by his direction, been taken from the city to the Tuscan estate. The case, however, would be different if it had been removed without his order.
40 Scaevola libro septimo decimo digestorum. Medico suo contubernali et communium expeditionum comiti inter cetera ita legaverat: ‘argentum viatorium meum dari volo’. quaesitum est, cum pater familias in diversis temporibus rei publicae causa afuerat, quod viatorium argentum hoc legato comprehensum esse videtur. respondit, quod habuisset argentum viatorium eo tempore cum testamentum faciebat, deberi. 1Uxori suae testamento ita legatum est: ‘Semproniae dominae meae hoc amplius argentum balneare’: quaesitum est, an etiam id argentum, quo diebus festis in balineo uti consuevit, legato cedat. respondit omne legatum videri. 2Mulier decedens ornamenta legaverat ita: ‘Seiae amicae meae ornamenta universa dari volo’. eodem testamento ita scripserat: ‘funerari me arbitrio viri mei volo et inferri mihi quaecumque sepulturae meae causa feram ex ornamentis lineas duas ex margaritis et viriolas ex smaragdis’: sed neque heredes neque maritus, cum humi corpus daret, ea ornamenta, quae corpori iussus erat adici, dederunt: quaesitum est, utrum ad eam, cui ornamenta universa reliquerat, pertineant an ad heredes. respondit non ad heredes, sed ad legatariam pertinere.
40 Scævola, Digest, Book XVII. A testator bequeathed to his physician, who resided with him and accompanied him on all his journeys, among other things, the following, “I wish the silver, which is used on my journeys, to be given to him.” As the testator was absent at different times on public business the question arose what silver should be considered as included in this legacy. The answer was that that would be included which the testator had in his possession at the time when he made his will. 1A bequest was made by a husband to his wife as follows, “I bequeath to my wife, Sempronia, in addition, the silver-ware used in the bath.” The question arose whether the silver which the testator was accustomed to use in the bath on feast-days was embraced in the legacy. The answer was that all of it was considered to have been bequeathed. 2A woman, at the time of her death, made the following bequest of her ornaments: “I wish all my jewelry to be given to my friend Seia.” She also added in the same will: “I desire my funeral to be conducted in compliance with the wishes of my husband, and whatever my burial ceremonies may be, I desire to have buried with me, of my jewelry, two strings of pearls, and my emerald bracelets.” When the body of the deceased was committed to the earth, neither her heirs nor her husband buried her with the jewelry, which she directed to be placed upon her body. The question arose whether the aforesaid articles would belong to the woman to whom she left all her jewelry, or to her heirs. The answer was that they would not belong to the heirs, but to the legatee.