De liberatione legata
(Concerning the bequest of a release from liability.)
1 Ulpianus libro vicesimo primo ad Sabinum. Omnibus debitoribus ea quae debent recte legantur, licet domini eorum sint. 1Iulianus scripsit, si res pignori data legetur debitori a creditore, valere legatum habereque eum actionem, ut pignus recipiat, priusquam pecuniam solvat. sic autem loquitur Iulianus, quasi debitum non debeat lucrari: sed si alia testantis voluntas fuit, et ad hoc pervenietur exemplo luitionis.
1 Ulpianus, On Sabinus, Book I. Obligations due from all kinds of debtors can be lawfully bequeathed to them, even though they may be the owners of said obligations. 1Julianus stated that if property which is pledged is bequeathed by a creditor to his debtor, the legacy will be valid, and the debtor will be entitled to an action to recover the pledge before he pays the money due. In this instance, Julianus seems to have had in his mind a case where the debtor would not profit by the transaction. Where, however, the intention of the testator was otherwise, he can be released from the obligation just as if he had paid the debt.
2 Pomponius libro sexto ad Sabinum. Heredem, damnatum a fideiussore non petere, a reo petere posse, sed a reo petere vetitum, si a fideiussore petat, reo ex testamento teneri Celsus putat. 1Idem Celsus ait nullam dubitationem habere, quin herede petere a debitore vetito nec heres heredis petere possit.
2 Pomponius, On Sabinus, Book VI. When an heir was charged not to demand anything of the security, he can collect the debt from the principal debtor; but when he was forbidden to collect it from the latter, and demands it of the security, Celsus thinks that he will be liable to the principal debtor under the terms of the will. 1Celsus also says that he has no doubt that where an heir has been forbidden to collect a debt from a debtor, his own heir cannot collect it.
3 Ulpianus libro vicesimo tertio ad Sabinum. Liberationem debitori posse legari iam certum est. 1Sed et si chirographum quis decedens debitori suo dederit, exceptionem ei competere puto, quasi pro fideicommisso huiusmodi datione valitura. 2Iulianus etiam libro quadragesimo digestorum scripsit: si quis decedens chirographum Seii Titio dederit, ut post mortem suam Seio det aut, si convaluisset, sibi redderet, deinde Titius defuncto donatore Seio dederit et heres eius petat debitum, Seius doli exceptionem habet. 3Nunc de effectu legati videamus. et si quidem mihi liberatio sit relicta, cum solus sim debitor, sive a me petatur, exceptione uti possum, sive non petatur, possum agere, ut liberer per acceptilationem. sed et si cum alio sim debitor, puta duo rei fuimus promittendi, et mihi soli testator consultum voluit, agendo consequar, non ut accepto liberer, ne etiam conreus meus liberetur contra testatoris voluntatem, sed pacto liberabor. sed quid si socii fuimus? videamus, ne per acceptilationem debeam liberari: alioquin, dum a conreo meo petitur, ego inquietor. et ita Iulianus libro trigesimo secundo digestorum scripsit, si quidem socii non simus, pacto me debere liberari, si socii, per acceptilationem. 4Consequenter quaeritur, an et ille socius pro legatario habeatur, cuius nomen in testamento scriptum non est, licet commodum ex testamento ad utrumque pertineat, si socii sunt. et est verum non solum eum, cuius nomen in testamento scriptum est, legatarium habendum, verum eum quoque, qui non est scriptus, si et eius contemplatione liberatio relicta esset. 5Utrique autem legatarii habentur et in hoc casu. nam et si quod ego debeo Titio sit ei legatum mei gratia, ut ego liberer, nemo me negabit legatarium, ut et Iulianus eodem libro scribit. et Marcellus notat utriusque legatum esse tam meum quam creditoris mei, etsi solvendo fuero: interesse enim creditoris duos reos habere.
3 Ulpianus, On Sabinus, Book XXIII. It is certain that, at present, a release can be bequeathed to a debtor. 1But, even if the testator, at the time of his death, should give a debtor his note, I think that the latter will be entitled to an exception, as the surrender of the note will be valid as a trust. 2Julianus, in the Fortieth Book of the Digest, says that if anyone, when about to die, should give a note of Seius to Titius, and direct him to deliver it to Seius after his death; or, if he should recover, return it to him; and then Titius should give the note to Seius after the death of the creditor, and the heir of the latter should attempt to collect the debt, Seius will be entitled to an exception on the ground of fraud. 3Let us now see what will be the effect of this legacy. And, indeed if the release of a debt is left to me the only debtor, and an attempt is made to collect it from me, I can avail myself of an exception; or, if such an attempt is not made, I can bring an action to obtain a discharge from liability by means of a receipt. Still, even though I may be a joint-debtor with another party, for instance, where both of us are principal debtors, and the testator desired to favor me alone, I can bring suit, not to be discharged from liability by a receipt, nor that my fellow-debtor may be released against the intention of the testator, but that I may be released by an agreement. But what if we were partners? Let us see whether I should be released by means of a receipt; otherwise, would I not be subjected to annoyance, if suit were brought against my fellow-debtor? Julianus, in the Thirty-second Book of the Digest, states that if we are not partners, I ought to be released by an agreement, but if we are partners, this should be effected by means of a receipt. 4Hence the question arises, whether a partner should be considered a legatee whose name is not mentioned in a will, although it is an advantage to both parties if they are partners. It is true that not only he whose name is mentioned in a will should be considered a legatee, but also he who is not mentioned therein, if the testator had him in his mind at the time when the release was bequeathed. 5Both parties, however, are considered to be legatees in this instance. For if I owe anything to Titius, and, in order to favor me, the bequest is made to him on condition that I shall be released, no one will deny that I am a legatee, as Julianus states in the same Book; and Marcellus says in a note that the legacy is bequeathed to both parties, as much as to my creditor, even though I may be solvent, for it is always to the interest of the creditor to have two debtors liable for the same obligation.
4 Pomponius libro septimo ex Plautio. Quid ergo est, cum agere poterit creditor ex testamento? non aliter heres condemnari debebit, quam si caveatur ei adversus debitorem defensu iri. item agente debitore nihil amplius heres praestare debet, quam ut eum adversus creditorem defendat.
4 Pomponius, On Plautius, Book VII. What then must be done, as the creditor can bring an action under the will? The heir should not have judgment rendered against him, unless security is furnished him for defence against the debtor. Likewise, if the debtor should institute proceedings, the heir is required to do nothing more than to protect him against the creditor.
5 Ulpianus libro vicesimo tertio ad Sabinum. Si quis reum habeat et fideiussorem et reo liberationem leget, Iulianus ibidem scripsit reum per acceptilationem liberandum: alioquin si fideiussorem coeperit convenire, alia ratione reus convenitur. quid tamen, si donationis causa fideiussor intervenit nec habet adversus reum regressum? vel quid si ad fideiussorem pecunia pervenerit et ipse reum dederit vice sua ipseque fideiusserit? pacto est reus liberandus. atquin solemus dicere pacti exceptionem fideiussori dandam, quae reo competit: sed cum alia sit mens legantis, alia paciscentis, nequaquam hoc dicimus. 1Quod si fideiussori sit liberatio legata, sine dubio, ut et Iulianus scripsit, pacto erit fideiussor liberandus. sed et hic puto interdum acceptilatione liberandum, si vel reus ipse vere fuit aut in eam rem socius reus. 2Idem Iulianus eodem libro scripsit, si filius familias debitor fuerit et patri eius fuerit liberatio relicta, patrem pacto liberandum esse, ne etiam filius liberetur. et parvi, inquit, refert, si sit aliquid in peculio die legati cedente necne: securitatem enim pater per hoc legatum consequitur: maxime, inquit, cum rei iudicandae tempus circa peculium spectetur. huic patri similem facit Iulianus maritum, cui uxor post divortium liberationem dotis legavit: nam et hunc, licet die legati cedente solvendo non sit, legatarium esse: et utrumque ait solutum repetere non posse. sed est verius quod Marcellus notat patrem petere posse (nondum enim erat debitor, cum solveret), maritum non posse, quod debitum solvit. patrem enim etsi quis debitorem existimaverit, attamen loco esse condicionalis debitoris, quem solutum repetere posse non ambigitur. 3Sed si damnatus sit heres filium liberare, non adicit Iulianus, utrum acceptilatione filius an pacto sit liberandus: sed videtur hoc sentire, quasi acceptilatione debeat liberari, quae res patri quoque proderit. quod optinendum est, nisi evidenter approbetur contrarium sensisse testatorem, id est ne filius inquietetur, non ne pater: tunc enim acceptilatione eum non liberandum, sed pacto. 4Idem Iulianus scripsit, si pro filio pater fideiusserit eique liberatio sit legata, eum pacto liberandum quasi fideiussorem, non quasi patrem, et ideo de peculio posse conveniri. hoc ita demum putat, si dumtaxat quasi fideiussorem eum voluit testator liberari: ceterum si et quasi patrem, et de peculio erit liberandus.
5 Ulpianus, On Sabinus, Book XXIII. Where a testator has a principal and a surety indebted to him, and bequeaths a release to the principal, Julianus states in the same place that the principal ought to be released by means of a receipt; otherwise, if the heir should sue the surety, the principal debtor will be brought into the case in another way. But what if the surety intervenes for the purpose of making a donation, and has no recourse against the principal debtor? Or, what course must be pursued if the money had come into the hands of the surety, and he had given a principal in his stead, to whom he himself furnished a surety? In this instance, the principal debtor should be released by agreement. We are, however, accustomed to hold that the same exception on the ground of contract to which the principal debtor is entitled should be granted the surety. We say that this does not, in any way, apply to this case; as, when a testator leaves a legacy, his intention is one thing, and that of the heir when he makes an agreement is another. 1If, however, a release should be bequeathed to a surety, there is no doubt, as Julianus says that the surety should be released by the agreement of the heir. Still, I think that in a case of this kind he should sometimes be released by a receipt, if the party himself was the actual debtor, or if he was a partner with the principal in the transaction. 2Julianus, in the same Book, also states that if a son under paternal control should become a debtor, and his release is bequeathed to his father, the latter ought to be discharged from liability by an agreement, to avoid the son from being released. And he adds that it makes little difference whether there is any property in the peculium of the son on the day when the legacy vests, or not, for the father will always be secured by means of the legacy; and he holds that this is especially the case when the amount of the peculium is considered with reference to the time when the judgment was rendered. Julianus compares a husband to a father where his wife, after divorce, bequeathed him a release from liability for her dowry; for he, also, although he may not have been solvent at the time when the legacy vested, will be a legatee, and he says that both the parties cannot recover what has already been paid. The better opinion, however, as Marcellus observes, is that the father can bring an action, for he was not yet a debtor when he made payment, as the husband cannot do this, if he has paid the debt. For even if anyone should think that the father was a debtor, still, he only occupies the place of a conditional debtor, and there is no doubt that he can recover what he paid. 3Where, however, an heir is charged to release the son, Julianus does not add that the former should be released, either by a receipt or by an agreement, but he seems to think that the son should be discharged from liability, as it were, by a receipt; which transaction would also be a benefit to the father. This rule should prevail, unless it can be clearly proved that the testator intended otherwise, that is to say, that neither the son nor the father should be annoyed; for in this instance he ought to be released, not by means of a receipt, but by an agreement. 4Julianus also says that where a father becomes surety for his son, and his release is bequeathed to him, he should be discharged from liability by an agreement, as a surety, and not as a father; and therefore suit can be brought against him with reference to the peculium. Finally, he thinks that this rule only applies where the testator intended that he should be released as a surety, but if he intended that he should also be released as a father, he should also be discharged from liability for the peculium.
6 Iavolenus libro sexto epistularum. Post emancipationem vero filii eatenus pater actionem habebit, quatenus aliquid ex peculio aut in rem verso praestaturus est: id enim legatorum nomine ad patrem pertinebit, quod eius intererit. 1Illud quaeri potest, an eo quoque nomine pater ex testamento agere possit, ut etiam filius actione liberetur. quibusdam eo usque extendi actionem placebat, quia patris interesse videatur, si peculium filio post emancipationem concessisset, integrum ius eius permanere. ego contra sentio: nihil quicquam amplius patri praestandum ex eiusmodi scriptura testamenti puto, quam ut nihil ex eo, quod praestaturus heredi fuerit, praestet.
6 Javolenus, Epistles, Book VI. But, after the emancipation of the son, the father will only be entitled to an action to the extent of whatever forms part of the peculium of his son, or when the latter may have paid out anything for the benefit of his father; since the property which it is to the interest of the father to have, will belong to him by virtue of the legacy. 1The inquiry may be made, whether the father can bring suit under the will for this purpose, with the result that the son will also be released from liability to an action. It has been held by certain authorities that the proceeding has this effect, because it is considered that it is to the interest of the father that his rights should remain unimpaired, where he gives his son his peculium after his emancipation. I, however, hold the contrary opinion, and I think that nothing more should be granted to the father under the terms of the will, than that he should be required to pay only what could be collected by the heir.
7 Ulpianus libro vicesimo tertio ad Sabinum. Non solum autem quod debetur remitti potest, verum etiam pars eius vel pars obligationis, ut est apud Iulianum tractatum libro trigesimo tertio digestorum. 1Si is qui stipulatus Stichum aut decem damnaverit heredem Stichum non petere, legatum valere constat: sed quid contineat, videamus. et Iulianus scribit actionem ex testamento in hoc esse videri, ut debitor accepto liberetur: quae res utique debitorem et in decem liberabit, quia acceptilatio solutioni comparatur, et quemadmodum, si Stichum solvisset, debitor liberaretur, ita et acceptilatione Stichi liberari. 2Sed si debitorem decem damnatus sit heres viginti liberare, idem Iulianus scripsit libro trigesimo tertio nihilo minus esse liberandum decem: nam et si ei viginti accepto ferantur, in decem liberabitur. 3Sed si duobus heredibus institutis alterum ex his damnaverit creditori solvere, valet legatum propter coheredem eumque ex testamento acturum, ut creditori solvatur. 4Liberatio autem debitori legata ita demum effectum habet, si non fuerit exactum id a debitore, dum vivat testator: ceterum si exactum est, evanescit legatum. 5Unde quaerit Iulianus, si ab impuberis substituto sit liberatio relicta, deinde impubes exegerit quod debetur, an evanescat legatum. et cum constet pupillum in his, quae a substituto relinquuntur, personam sustinere eius a quo sub condicione legatur, consequens est substitutum actione ex testamento teneri, si pupillus a debitore exegerit. 6Idemque est et si pupillus non exegerit, sed solummodo litem sit contestatus, teneri eum, ut remittat actionem. 7Nam et si debitori liberatio sub condicione legata fuisset et vel lis fuisset contestata vel etiam exactum pendente condicione, ex testamento actio maneret liberatione relicta.
7 Ulpianus, On Sabinus, Book XXIII. Moreover, not only what is due can be remitted, but also a portion of the same, that is to say, a part of the obligation, as is stated by Julianus in the Thirty-third Book of the Digest. 1Where he who has stipulated for the delivery of Stichus, or ten aurei, charges his heir not to demand Stichus, it is established that the legacy is valid; but let us consider what it includes. Julianus says that it appears that an action can be brought under the will to compel the discharge of the debtor by a receipt, which will also release him so far as the ten aurei are concerned, because a receipt is equivalent to payment; and just as the debtor should be released if he had delivered Stichus, so he will be discharged from liability by the receipt for Stichus. 2If, however, the heir should be charged to release the debtor from the payment of twenty aurei, Julianus also states, in the Thirty-third Book, that the debtor should, nevertheless, be released from liability for ten, as if he obtains a receipt for twenty, he will be discharged from liability for the former amount. 3Where two heirs have been appointed by a debtor, and he charges one of them to pay his creditor, the legacy will be valid so far as his co-heir is concerned, and the latter will have a right to bring suit to compel payment to the creditor. 4A release bequeathed to a debtor only becomes effective where payment has not been required from him, during the lifetime of the testator; if, however, it has been required, the legacy is extinguished. 5Therefore Julianus asks, if a release is bequeathed, and the substitute of a minor child is charged with the same, and the minor afterwards exacts payment of what is due, whether the legacy will be extinguished. And, as it is established that a minor, so far as a legacy with which his substitute is charged is concerned, occupies the same position as an heir charged with a conditional bequest, the result is that the substitute will be liable to an action under the will, if the minor should demand payment of the claim by the debtor. 6The same rule applies where the minor does not exact payment, but only institutes proceedings in court, for the substitute will be compelled to have the action dismissed. 7For if the release had been bequeathed to the debtor conditionally, and either issue had been joined, or payment had been exacted before the condition was fulfilled, the debtor will still be entitled to his action under the will to obtain the release which was bequeathed to him.
8 Pomponius libro sexto ad Sabinum. Non solum nostrum debitorem, sed et heredis et cuiuslibet alterius ut liberetur, legare possumus. 1Potest heres damnari, ut ad certum tempus non petat a debitore: sed sine dubio nec liberare eum intra id tempus debebit, et, si debitor decesserit, ab herede eius intra id tempus peti non poterit. 2Illud videndum est, an eius temporis, intra quod petere heres vetitus sit, vel usuras vel poenas petere possit. et Priscus Neratius existimabat committere eum adversus testamentum, si petisset: quod verum est. 3Tale legatum: ‘heres meus a solo Lucio Titio ne petito’ ad heredem Lucii Titii non transit, si nihil vivo Lucio Titio adversus testamentum ab herede, eo quod ab eo exigere debitum temptavit, sit commissum: quotiens enim cohaeret personae id quod legatur, veluti personalis servitus, ad heredem eius non transit, si non cohaeret, transit. 4Si verba liberationis in rem sint collata, pro eo est, quasi heres ab eo debitore heredeque eius petere vetitus sit, ut adiectio heredis perinde nihil valeat, atque non esset valitura ipsius debitoris persona non comprehensa. 5Is, qui reddere rationes iussus sit, non videtur satisfacere, si reliquum reddat non editis rationibus. 6Si heres vetitus sit agere cum eo, qui negotia defuncti gesserit, non videtur obligatio ei praelegata, quae dolo vel ex fraude eius qui negotia gesserit commissa sit, et testator id videtur sensisse. ideo si heres negotiorum gestorum egisset, agens procurator ex testamento incerti doli mali exceptione excludi potest. 7Et ei liberatio recte legatur, apud quem deposuero vel cui commodavero pignorive dedero vel ei quem ex furtiva causa mihi dare oportet.
8 Pomponius, On Sabinus, Book VI. We can not only make a bequest releasing our debtor, but also one releasing our heir and anyone else whomsoever. 1An heir can be charged not to demand payment of a debtor within a certain time, but there is no doubt that he should not release him during the intermediate time; and if the debtor should die, the debt cannot be collected from his heir within the said period. 2It should be considered whether the heir can collect interest on penalties for the time during which he is forbidden to demand the debt. Priscus Neratius held that to make such a demand would be contrary to the will, which is correct. 3A bequest like the following, “My heir must not collect the debt from Lucius Titius alone,” does not pass to the heir of Lucius Titius, if, during the lifetime of the latter, nothing was done in opposition to the will by the heir attempting to collect the debt from him; for whenever property which is bequeathed attaches to the person of the legatee, it is in the nature of a personal servitude, and does not pass to his heir; but if it does not attach to his person, it will be transmitted to his heir. 4If the words granting the release refer to matters in rem, the effect is the same as if the heir had been specifically forbidden to collect the claim from either the debtor, or his heir, as the addition of the heir is of no force or effect; just as would be the case if the person of the debtor himself had not been included. 5He who is directed to render accounts is not considered to have complied with the wishes of the testator, if he does not produce his accounts, but merely pays the balance remaining in his hands. 6Where an heir is forbidden to bring suit against the agent who attended to the affairs of the deceased, it is not considered to be for the benefit of the legatee, if the obligation was contracted by the bad faith or the fraud of him who transacted the business, and the testator will be held to have entertained this opinion. Therefore, if the heir should institute proceedings against the agent on the ground of business transacted, and the latter brings suit under the will for an indeterminate amount, he can be barred by an exception on the ground of fraud. 7A release may also legally be bequeathed to anyone with whom I leave a deposit, or to whom I make a loan for use, or give property in pledge, or to one who is obliged to make good to me the proceeds of a theft.
9 Ulpianus libro vicesimo quarto ad Sabinum. Si quis rationes exigere vetetur, ut est saepissime rescriptum, non impeditur reliquas exigere, quas quis se reliquavit, et si quid dolo fecit qui rationes gessit. quod si quis et haec velit remittere, ita debet legare: ‘damnas esto heres meus, quidquid ab eo exegerit illa vel illa actione, id ei restituere’ vel ‘actionem ei remittere’.
9 Ulpianus, On Sabinus, Book XXIV. When an heir is forbidden to require the rendition of accounts, it has been very frequently stated in rescripts that he will not be prevented from demanding balances which are due, where the parties have them in their possession, or where the agent who transacted the business has been guilty of any fraudulent act. If anyone should desire to release another from liability on this account also, he should make his bequest as follows: “Let my heir be charged to return to So-and-So anything which he has collected from him by such-and-such and such-and-such a suit, or release him from liability under said actions.”
10 Iulianus libro trigesimo tertio digestorum. Si damnatus heres fuerit a fideiussore quidem non petere, quod autem reus debet, Titio dare, pacisci debet, ne a fideiussore petat, et adversus reum actiones suas praestare legatario: quemadmodum damnatus heres, ne a reo petat, et damnatus dare quod fideiussor debet, et reo acceptum facere et legatario litis aestimationem sufferre cogatur.
10 Julianus, Digest, Book XXXIII. Where an heir is charged not to collect anything from a surety, and to pay to Titius what the principal owes; he ought to agree not to make a demand of the surety, and to assign to the legatee his rights of action against the principal debtor; just as when an heir is charged not to collect anything from the principal debtor, and to pay to a third party the amount that the surety owes, he must give a receipt to the principal, and will be compelled to pay to the legatee the amount fixed by the court as due from the surety.
11 Idem libro trigesimo sexto digestorum. Si debitor fideiussorem suum ab herede suo liberari iusserit, an fideiussor liberari debeat? respondit debere. item quaesitum est, an, quia mandati actione heredes tenerentur, inutile legatum esset, quemadmodum inutile legatum est quod debitor creditori suo legat. [ed. maior respondit] <ed. minor respondi>, quotiens debitor creditori suo legaret, ita inutile esse legatum, si nihil interesset creditoris ex testamento potius agere quam ex pristina obligatione. nam et si Titius mandaverit Maevio, ut pecuniam promitteret, deinde liberari eum iusserit a stipulatore, manifestum est, quantum intersit promissoris liberari potius quam praestare ex stipulatu, deinde mandati agere.
11 The Same, Digest, Book XXXVI. If a debtor should order his surety to be released by his heir, ought he to be released? The answer is that he should be. As the heirs are liable to an action on mandate, the inquiry was also made whether the legacy was not void, as the debtor made a bequest to his creditor. The answer was that, whenever a debtor makes a bequest to his creditor, the legacy will be void if it should not rather be to the interest of the creditor to bring an action under the will, than one founded on the original obligation; for if Titius should have directed Mævius to promise the payment of a certain sum of money, and afterwards should direct him to be released by the stipulation, it is clear that it is more to the interest of the party making the promise to be released than to pay the amount in accordance with the stipulation, and then to bring an action on mandate.
12 Idem libro trigesimo nono digestorum. Lucius Titius cum Erotem actorem haberet, codicillis ita cavit: ‘Erotem liberum esse volo: quem rationes reddere volo eius temporis, quod erit post novissimam meam subscriptionem’. postea vivus Erotem manumisit in eodem actu habuit rationesque subscripsit usque in eum diem, qui fuit ante paucissimos dies quam moreretur. heredes Lucii Titii dicunt quasdam summas et servum adhuc Erotem et postea liberum accepisse neque in eas rationes, quae a Lucio Titio subscriptae sunt, intulisse: quaero, an heredes ab Erote nihil exigere debent eius temporis, quo Lucius Titius subscripsit. respondi Erotem ex ea causa quae proponeretur liberationem petere non posse, nisi et hoc specialiter ei remissum est.
12 The Same, Digest, Book XXXIX. Lucius Titius, who employed Eros as his agent, made the following provision in his codicil, “I desire Eros to be free, and I wish him to render an account of all that he has done, during the time subsequent to my last signature.” He, afterwards, while still living, manumitted Eros, and, at the same time, the slave rendered his accounts, and the testator signed them up to that date, which was only a few days before he died. The heirs of Lucius Titius alleged that Eros had received certain sums of money, both while he was still a slave and after he became free, and did not include these in the accounts which were signed by Lucius Titius. I ask whether the heirs can collect anything from Eros for the time preceding the last signature of Lucius Titius. I answered that, according to the facts stated, Eros cannot demand his freedom, unless the sums referred to had been specifically remitted to him.
13 Idem libro octagesimo primo digestorum. Si creditor debitori, qui se exceptione perpetua tueri poterat, legaverit quod sibi deberet, nullius momenti legatum erit. at si idem debitor creditori legaverit, intellegendum erit exceptionem eum remitti creditori voluisse.
13 The Same, Digest, Book LXXXI. If a creditor should make a bequest to a debtor of what he owes him, and the former can protect himself by a perpetual exception, the legacy will be of no force or effect. If, however, the same debtor should make a bequest to his creditor of what he owes him, he will be understood to have intended that his creditor shall be released from the operation of the aforesaid exception.
14 Ulpianus libro primo fideicommissorum. Idem est et si in diem debitor fuit vel sub condicione.
14 Ulpianus, Trusts, Book I. The same rule will apply where the debtor was required to make payment within a certain time, or under some condition.
15 Idem libro sexagesimo quarto ad edictum. Si quis in testamento damnatus est, ne a Titio debitore exigat, neque ipsum neque heredem eius potest convenire: nam neque heredis heres agere neque ab heredis herede potest peti. heredis autem heres potest damnari, ne exigat debitorem.
15 The Same, On the Edict, Book LXIV. Where anyone is charged in a will not to collect a debt from Titius, he cannot sue either him or his heir; nor can the heir of the heir bring an action; nor can the payment of the obligation be demanded of the heir of the debtor’s heir. The heir of the heir of the testator can also be charged not to collect the claim from the debtor.
16 Paulus libro nono ad Plautium. Ei cui fundum in quinquennium locaveram legavi quidquid eum mihi dare facere oportet oportebitve ut sineret heres sibi habere. Nerva Atilicinus, si heres prohiberet eum frui, ex conducto, si iure locationis quid retineret, ex testamento fore obligatum aiunt, quia nihil interesset, peteretur an retineret: totam enim locationem legatam videri,
16 Paulus, On Plautius, Book IX. If I should rent a tract of land to anyone for five years, and then bequeath whatever the tenant was obliged to do for me or pay to me, or would be obliged to pay or give to me in the future, and the heir is charged to allow the tenant to have this himself; both Nerva and Atilicinus say that if the heir should prevent him from enjoying the legacy, he would be liable to an action on the lease, and if he should retain anything arising out of the contract of hiring, he would be liable to an action under the will; for the reason that it makes no difference whether he demands something from the tenant, or retains possession of it, as the entire lease is held to have been bequeathed.
17 Iavolenus libro secundo Labeonis posteriorum. reliqua quoque: in iudicio locationis venire.
17 Javolenus, On the Last Works of Labeo, Book II. Any balance due on the lease is also included in the legacy.
18 Paulus libro nono ad Plautium. Cassius. etiam si habitatio eo modo legata esset, gratuitam habitationem heres praestare deberet. et praeterea placuit agere posse colonum cum herede ex testamento, ut liberetur conductione: quod rectissime dicitur.
18 Paulus, On Plautius, Book IX. Cassius: Even if a lodging has been bequeathed in this way, the heir will be obliged to furnish it gratuitously; and moreover, it has been decided that the tenant can bring an action based on the will against the heir, in order to be relieved of liability under his lease; which opinion is perfectly correct.
19 Modestinus libro nono regularum. Cum ita testemur: ‘heres meus damnas esto liberare illum, quod is negotia mea gessit, et si quid eum mihi dare facere oportet, ab eo non exigere’, damnatur heres nec creditas ab eo quoque pecunias exiget. in simili autem legato vix est, ut de eo quoque legando pater familias senserit, quod servis eius peculii nomine debetur.
19 Modestinus, Rules, Book IX. If we make a bequest as follows, “Let my heir be charged to release from liability So-and-So, who has transacted my business, and not to exact anything from him which he may be obliged to pay to, or do for me,” the heir will be charged not to collect any money from the legatee which has been lent to him. It is, however, hardly credible that, by a legacy of this kind, the testator intended there should also be bequeathed to the legatee whatever was due from him to his slaves as their peculium.
20 Idem libro decimo responsorum. ‘Aurelio Sempronio fratri meo. neminem molestari volo nomine debiti neque exigere aliquid ab eo, quamdiu viveret, neque de sorte aut usurae nomine debiti: et absolvo ei et libero ex pignoribus eius domum et possessionem Caperlatam’. Modestinus respondit ipsum debitorem, si conveniatur, exceptione tutum esse: diversum in persona heredis eius. 1Gaius Seius cum adolevisset, accepit curatores Publium Maevium et Lucium Sempronium. sed enim idem Gaius Seius intra legitimam aetatem constitutus cum in fatum concederet, testamento suo de curatoribus suis ita cavit: ‘quaestionem curatoribus meis nemo faciat: rem enim ipse tractavi’. quaero, an rationem curae heredes adulti a curatoribus petere possint, cum defunctus, ut ex verbis testamenti apparet, confessus sit se omnem rem suam administrasse. Modestinus respondit, si quid dolo curatores fecerunt aut si quae res testatoris penes eos sunt, eo nomine conveniri eos posse.
20 The Same, Opinions, Book X. “To my brother Aurelius Sempronius. I do not desire that any of my debtors shall be annoyed on account of their obligations, nor that anything, either principal or interest, shall be collected from them as long as they live; and I return, free from liability and released from pledge, the house and the Carpathian land to the party interested in the same.” Modestinus gives it as his opinion that if the debtor himself should be sued, he will be protected by an exception, but that this will not be the case so far as his heir is concerned. 1When Gaius Seius was growing up, he received Publius Mævius and Lucius Sempronius as his guardians. While still under lawful age, the said Gaius Seius, being about to die, made the following provision in his will with reference to his curators: “Let no one raise any question concerning my curators, for I myself have transacted my business.” I ask whether the heirs of the minor can demand an accounting for the curatorship from the curators, since the deceased, as is apparent from the terms of his will, acknowledged that he had attended to all of his business himself. Modestinus was of the opinion that if the curators had committed any fraudulent act, or if any of the property of the testator was in their hands, suit could be brought against them on this ground.
21 Terentius Clemens libro duodecimo ad legem Iuliam et Papiam. Si id quod mihi deberes vel tibi vel alii legavero idque mihi solveris vel qualibet alia ratione liberatus a me fueris, exstinguitur legatum. 1Unde Iuliano placuit et si debitori heres exstiterit creditor posteaque ipse creditor decesserit, legatum extingui: et hoc verum est, quia confusione perinde exstinguitur obligatio ac solutione. 2Sed si sub condicione dato legato heres praeoccupaverit et exegerit debitum, aliud dici oportet, quia in arbitrio heredis esse non debet, ut quandoque condicione existente neque ipsi legatario debeatur legatum, si tum vivat et capere possit, neque ei, ad quem hoc commodum pervenit, si legatarius capere non possit.
21 Terentius Clemens, On the Lex Julia et Papia, Book XI. If I should bequeath anything which you owe me, either to yourself or to a third party, and you should pay it to me, or be released by me for any other reason, the legacy will be extinguished. 1Hence, it was held by Julianus that, even if a creditor should become the heir of his debtor and should afterwards die, the legacy will be extinguished; and this is correct, because an obligation is, as it were, extinguished by confusion, just as it is by payment. 2Where, however, a legacy is bequeathed under some condition, and the heir comes in beforehand and collects the debt, another opinion must be rendered; because, while the condition is still pending, the prevention of the payment of the legacy to the legatee, if he is still living and entitled to receive it, does not depend upon the inclination of the heir, nor, if the legatee should not be legally capable of taking it, can the heir prevent the party entitled to the benefit of the legacy from obtaining the same.
22 Papinianus libro nono decimo quaestionum. ‘Quod mihi Sempronius debet, peti nolo’: non tantum exceptionem habere debitorem, sed et fideicommissum ut liberetur petere posse responsum est.
22 Papinianus, Questions, Book XIX. “I do not wish anything that Sempronius owes me to be collected.” It was decided that the debtor, in order to compel his release, was not only entitled to an exception, but also to an action under the will.
23 Idem libro septimo responsorum. Procurator, a quo rationem heres exigere prohibitus eoque nomine procuratorem liberare damnatus est, pecuniam ab argentario debitam ex contractu, quem ut procurator fecit, iure mandati cogetur restituere vel actiones praestare.
23 The Same, Opinions, Book VII. An agent from whom the heir was forbidden to require an accounting, and whom he was also charged to release from all liability for any act performed in that capacity, can still be required, by an action on mandate, to pay to the heirs all the money that may be due to him from a banker under a contract which he entered into as an agent, or to assign his rights of action against the said banker.
24 Idem libro octavo responsorum. Cum heres rogatur debitorem suum liberare, de eo tantum cogitatum videtur, quod in obligatione manserit: itaque si quid ante tabulas apertas fuerit solutum, ad causam fideicommissi non pertinebit. quod autem post tabulas apertas ante aditam hereditatem ab eo, qui voluntatem defuncti non ignoravit, fuerit exactum, dolo proximum erit ideoque repeti potest.
24 The Same, Opinions, Book VIII. Where an heir is requested to release his debtor, it is held that this only applies to what remains due on the obligation. Therefore, where any of the debt was paid before the will was opened, it will not be included in the trust. But if, after the will has been opened, and before the estate has been entered upon by the heir, who was aware of the intention of the deceased, payment of what is owing should be required, this will closely resemble fraud, and hence the amount can be recovered by the legatee.
25 Paulus libro decimo quaestionum. Legavi Titio quod mihi debetur vel adiecta certa quantitate sive specie vel non adiecta, aut ex contrario aeque cum distinctione, veluti ‘Titio quod ei debeo’ vel ita ‘Titio centum quae ei debeo’: quaero, an per omnia requirendum putes, an debitum sit. et plenius rogo quae ad haec spectant attingas: cottidiana enim sunt. respondi: si is, cui Titius debebat, debitum ei remittere voluit, nihil interest, heredem suum iussit ut eum liberaret an prohibeat eum exigere: utroque enim modo liberandus est debitor et utroque casu competit ultro ad liberandum debitori actio. quod si etiam centum aureorum vel fundi debiti mentionem fecit, si quidem debitor fuisse probetur, liberandus est: quod si nihil debeat, poterit dici quasi falsa demonstratione adiecta etiam peti quod comprehensum est posse. sed poterit hoc dici si ita legavit: ‘centum aureos, quos mihi debet’ vel ‘Stichum, quem debet, heres meus damnas esto non petere’. quod si sic dixit: ‘heres meus centum aureos, quos mihi Titius debet, damnas esto ei dare’, etiam illud temptari poterit, ut petere possit quasi falsa demonstratione adiecta: quod mihi nequaquam placet, cum dandi verbum ad debitum referre se testator existimaverit. contra autem si debitor creditori leget, nullam utilitatem video, si sine quantitate leget. sed et si id demonstret, quod debere se confitetur, nulla utilitas est nisi in his speciebus, in quibus emolumentum debiti ampliatur. quod si centum aureos, quos se debere dixit, legavit, si quidem debet, inutile est legatum, quod si non fuit debitor, placuit utile esse legatum: certa enim nummorum quantitas similis est Sticho legato cum demonstratione falsa: idque et divus Pius rescripsit certa pecunia dotis acceptae nomine legata.
25 Paulus, Questions, Book X. Where I bequeathed to Titius what he owed me, either stating or not stating the amount, or, on the other hand, where I make a bequest with a difference, as for instance: “I leave to Titius what I owe him,” or “I leave to Titius a hundred aurei, which I owe him;” I ask if you think that it should, by all means, be ascertained whether anything is really due; and I furthermore request you to inform me in what way you interpret these matters, which are of every day occurrence. I answered that if the party to whom Titius is indebted wishes to release the debt, it makes no difference whether he directs his heir to discharge him from liability, or forbids him to collect the debt; for, in either instance, the debtor should be released, and in both cases an action will lie in favor of the debtor against the heir, for the purpose of procuring his release. If the testator mentioned the sum of a hundred aurei, or a certain tract of land as being due, and it can be proved that the legatee was the debtor, he should be released. If, however, he does not owe anything, as a false statement has been made, it may be said that he can also bring an action to recover what is embraced in the legacy. This principle also applies where the bequest was as follows: “Let my heir be charged not to collect the hundred aurei which he owes me,” or “Stichus whom he owes me.” If, however, he had said, “Let my heir be charged to give to Titius the hundred aurei which he owes me,” it may be maintained that he can claim them, although the statement is untrue. However, I by no means agree to this, as the testator must have thought that the word “give” had reference to the debt. On the other hand, if the debtor makes a bequest to his creditor, I do not see that the legacy has any validity, if the amount is not stated. But if he should mention the sum which he acknowledges that he owes, the legacy will not be valid except in those instances where its payment will be more advantageous than that of the debt. For if the debtor should bequeath a hundred aurei, which he says that he owes, and he does owe them, the legacy is void. If, however, he should not owe them, it has been held that the legacy is valid; for, where a certain sum of money is mentioned, the case is similar to that where Stichus was bequeathed under a false statement. This rule the Divine Pius stated in a Rescript, where a certain sum of money was bequeathed as having been received by way of dowry.
26 Scaevola libro quarto responsorum. Tutor decedens aliis heredibus scriptis pupillo suo, cuius tutelam gessit, tertiam partem bonorum dari voluit, si heredibus suis tutelae causa controversiam non fecerit, sed eo nomine omnes liberaverit: pupillus legatum praetulit et postea nihilo minus petit quidquid ex distractione aliave causa ad tutorem suum ex tutela pervenerit: quaero, an verbis testamenti ab his exactionibus excludatur. respondit, si prius, quam condicioni pareret, fideicommissum percepisset et pergeret petere id, in quo contra condicionem faceret, doli mali exceptionem obstaturam: nisi paratus esset, quod ex causa fideicommissi percepisset, reddere: quod ei aetatis beneficio indulgendum est.
26 Scævola, Opinions, Book IV. A guardian having appointed certain heirs at the time of his death, desired to give to his ward, whose guardianship he had administered, the third part of his estate, provided he did not raise any controversy with his heirs on account of the guardianship, but released them all from liability with reference to the same. The ward obtained the legacy, and, nevertheless, afterwards demanded of the heirs everything which had come into the hands of his guardian from the sale of property, or from any other source connected with the guardianship. I ask whether, by the terms of the will, he should be excluded from bringing actions of this kind. The answer was that, if he received the benefit of the trust before complying with the condition imposed, and then proceeded to make the claim contrary to the terms of the legacy, an exception on the ground of bad faith could be interposed against him by the heirs, unless he was ready to return what he had received from the trust, which had been granted him as a favor on account of his age.
27 Tryphoninus libro octavo disputationum. Videamus, si ei, cum quo de peculio actio erit, liberatio testamento legata sit, an, si die, quo legata cedere solent, nihil in peculio sit, legatarii loco habetur? atquin nondum debitor fuit, nec procedit, ut emolumentum aliquid ex legato ad eum perveniat nisi propter spem futuri peculii. numquid ergo in pendenti sit, an legatarius fuerit, perinde atque si qua alia causa spem legati dubiam faceret?
27 Tryphoninus, Disputations, Book VIII. Let us see whether a person to whom a release has been granted by a will, and against whom an action on the peculium is pending, shall be considered to occupy the position of a legatee, if, at the time when a legacy usually vests, nothing should be found in the peculium. Even if he is not yet a debtor, it does not follow that he would derive any advantage from the legacy, unless through the hope of some future addition to his peculium. Therefore, will his condition as legatee be in suspense, just as ii would be if, for any reason, he should render the expectation of the legacy doubtful? This is the better opinion.
28 Scaevola libro sexto decimo digestorum. Aurelius Symphorus fideiusserat pro tutore quodam et decedens eisdem pupillis legavit in haec verba: ‘Arellio Latino et Arellio Felici singulis quina, cum quis eorum quattuordecim annorum fuerit: ad quod tempus praestari eis volo singulis alimentorum nomine menstruos denarios senos et vestiarii nomine annuos denarios viginti quinque. quo legato contenti esse debetis, quando tutela vestra non minimo damno rationem meam adflixerit. a vobis autem, heredes mei, peto, ne quid ex ratione tutelae ab his exigere vel ab hoc legato eorum retinere velitis’. quaesitum est, si heres eius ex causa fideiussionis aliquid praestiterit, an herede filiorum eius, pro quo fideiusserat, repetere possit. respondit verbis quae proponerentur id solum videri heredum fidei commissum, ne exigerent, quod ex ratione tutelae, quam ipse Symphorus administraverat, ab Arelliis sibi deberetur. 1Testamento facto debitoribus liberationem reliquerat, post inciso lino et recognito testamento aliud testamentum fecit, in quo repetit legatum his verbis: ‘quibusque legata in eo testamento quod incideram dedi, omnia rata esse et quaequae scripta sunt volo’. quaesitum est, adita ex sequenti testamento hereditate an debitores, quibus priori testamento liberatio relicta erat, consequi possint, ut etiam eius quantitatis nomine, quam post prius testamentum debere coeperant, liberarentur, et si ab his heredes petere coeperint, an doli mali exceptione summoverentur. respondit non liberari. 2Titius Seio debitori suo ita legavit: ‘do lego Seio denarios decem: item dono illi, quidquid sortis et usurarum nomine mihi debebat’. praeterea generaliter damnavit heredes fideique eorum commisit, uti darent restituerent unicuique, quidquid ei legasset. postea Seius aliam praeterea pecuniam a Titio mutuatus est. quaero, an haec quoque pecunia, quae post testamentum factum data esset Seio, legata intellegitur. respondit, cum in praeteritum tempus verba collata proponerentur, non esse posterius credendum legatum. 3Titius testamento facto et filiis heredibus institutis de patre tutore suo quondam facto ita locutus est: ‘Seium patrem meum liberatum esse volo ab actione tutelae’. quaero, haec verba quatenus accipi debent, id est an pecunias, quas vel ex venditionibus rerum factis aut ex nominibus exactis in suos usus convertit vel nomine suo faeneravit, filiis et heredibus testatoris nepotibus suis debeat reddere. respondit eum, cuius notio est, aestimaturum. praesumptio enim propter naturalem affectum facit omnia patri videri concessa, nisi aliud sensisse testatorem ab heredibus eius approbetur. 4Maevia testamento suo alterum ex heredibus suis actione tutelae voluit liberari his verbis: ‘rationem tutelae, quam egit Iulius Paulus cum Antistio Cicerone, posci ab eo nolo eoque nomine causa omni liberatum esse volo’: quaero, an, si qua pecunia ex tutela apud eum remansit, peti ab eo possit. respondit nihil proponi, cur pecunia, quae pupillae est et apud tutorem posita maneret, legata videretur. 5Testamento ita scripserat: ‘Titio adfini meo, quidquid mihi quacumque ex causa debebat, remitti volo eoque amplius decem do’: codicillis ita scripsit: ‘Titio hoc amplius adfini et debitori meo usuram pecuniae, quam mihi debet, ab herede meo donec advivet: quod si exigere ultra voluntatem meam putaverit, eius sortis usuram eidem Titio ab heredibus meis donec vivit praestari volo’. quaesitum est, cum augendi potius quam minuendi testator voluntatem habuerit, an heredes ex causa fideicommissi Titio teneantur, ut eum omni debito liberent. respondit secundum ea quae proponerentur videri minutum legatum, quod primo dederat. 6Legatum est testamento hoc modo: ‘Seio concedi volo, quidquid mihi ab eo debitum est vel fidem meam pro eo obligavi’: quaero, utrum id solum, quod testamenti facti tempore debebatur, legatum sit, an etiam, si quid ex ea summa usurarum nomine postea accessit, legato cedat. respondit videri omnem obligationem eius debiti per fideicommissum solvi voluisse. 7Sticho testamento manumisso fundum instructum et alia legavit et haec verba adiecit: ‘quem rationem reddere veto, quia instrumenta penes se habet’: quaesitum est, an Stichus reliqua, quae ex administratione actus debuerat, reddere debuerit. respondi Stichum eo nomine non teneri. Claudius: nemo enim ex servitutis actu post libertatem tenetur et consultatio ad ius debiti relata fuerat: retineri ergo reliqua possunt cum peculio aut ex eo deduci, si legatum est. 8‘Centum, quae apud Apronianum deposita habeo, apud ipsum esse volo, donec filius meus ad annos viginti pervenerit, eiusque pecuniae usuram exigi veto’. quaesitum est, an ex causa fideicommissi Apronianus consequi possit, ne ante tempus a testatore praescriptum ea summa ab eo exigatur. respondit secundum ea quae proponerentur consequi posse. 9Filias heredes scripserat, quarum fidei commisit in haec verba: ‘ne a Gaio Seio rationes actus rei meae, quae per mensam eius sive extra mensam in diem mortis meae gesta est, exigatis eoque nomine eum liberetis’. quaesitum est, cum universas rationes in diem mortis iste administraverit et per mensam suam et quae extra administrabantur, an ad rationes reddendas heredibus teneatur. respondit liberationem quidem secundum ea quae proponerentur legatam esse, sed quatenus praestanda sit, ex qualitate disceptationis iudicem aestimaturum. 10Eum, qui tutelam ipsius administraverat, et fratrem suum et alios quosdam scripsit heredes et tutori legavit, quae impenderat in se et fratrem ipsius, decem: quaesitum est, an utile esset in persona eius fideicommissum. respondit, si id dederit per fideicommissum quod debebatur, peti non posse. 11Idem quaesiit, si in tutoris persona inutile esset, an in persona fratris utile videretur, quoniam illi proficeret, cuius et ipsius tutelam administrasset. respondit fratri utiliter esse legatum, cum suo debito liberetur. 12Idem quaesiit, si tutor amplecteretur fideicommissum ita, ut quibusdam stari vellet verbis testamenti, in quibusdam autem recedat, quod minorem quantitatem sumptuum dicat fideicommisso contineri quam ipse erogaverat, an audiri deberet. respondit non impediri eum scriptura testamenti, quo minus omne, quod sibi deberi probasset, petere posset. 13Quidam ita legavit: ‘Semproniae uxori meae reddi iubeo ab heredibus meis quinquaginta ea, quae mutua acceperam chirographo particulatim in negotia mea’: quaesitum est, an, si vere uxoris debitor fuerit, fideicommissum constiterit. respondit, si debita fuissent, nullum esse fideicommissum. 14Idem quaesiit, an, si hanc pecuniam ut debitam apud iudicem petierit et victa fuerit, an fideicommissum peti possit. respondit secundum ea quae proponuntur posse ex causa fideicommissi peti, quod apparuisset non fuisse ex alia causa debitum.
28 Scævola, Digest, Book XVI. Aurelius Symphorus became surety for a certain guardian, and at his death made a bequest to the wards of the latter as follows: “I bequeath five aurei to Arellius Latinus and Arellius Felix, individually, when they shall have attained the age of fourteen years, at which time I desire to be paid to each one of them six denarii every month for their support, and twenty-five denarii every year for their clothing, with which legacy they must be content, since their guardianship has caused me no small amount of annoyance. I also charge my heirs to collect nothing from them on account of the guardianship, nor to retain anything by reason of this legacy.” The question arose, if the said heirs had paid out anything on account of the suretyship, whether they could recover it from the heir of the children, or the party for whom the testator had become surety. The answer was that, in accordance with the facts stated, the heirs of the latter appeared to have been solely charged not to claim anything on account of the guardianship which Symphorus had administered, and which might be due from the wards named Arellius. 1A man, having made a will, bequeathed a release to his debtors, and then having unsealed the will and reread it, he executed another in which he repeated the legacy as follows: “I confirm every bequest made in a will which I unsealed, and everything that is written therein.” After the estate had been entered upon under the second will, the question arose whether the debtors who had been released by the first will could demand to be discharged from liability for the sums of money for which they had become indebted after the making of the first will; and if the heirs brought an action against them, whether they could be barred by an exception on the ground of bad faith. The answer was that they would not be released. 2Titius made the following bequest to his debtor Seius: “I give and bequeath ten denarii to Seius. I also give five to him, in addition to this, all that he owes me both principal and interest.” He also, in a general clause, charged his heirs to give and deliver to each one of the legatees what he had left him. Seius afterwards borrowed more money from Titius. I ask whether this money, which was borrowed after the will was made, should also be understood to have been bequeathed to Seius. The answer was that, as the words used by the testator had reference to past time, it should not be held that the last sum borrowed was bequeathed. 3Titius, having made a will and appointed his sons his heirs, expressed himself as follows with reference to his father, who also had formerly been his guardian: “I desire my father Seius to be released from liability to any action on guardianship.” I ask in what way these words should be understood, that is to say, whether they mean that the money which had been obtained from the sale of property or the collection of claims, and which the father had converted to his own use, or lent at interest in his own name, should be paid to the children and heirs of the testator, or to his grandchildren. The answer was that this must be determined by the court having jurisdiction of the case, for the presumption of law is that on account of the natural affection entertained by a son, the father should be released from all liability, unless it can be proved by the heirs of the testator that his intention was otherwise. 4Mævius, in her will, desired one of her heirs to be released from liability to an action on guardianship, in the following words: “I do not wish an account of the guardianship which Julianus Paulus administered with Antistius Cicero, be required of him, and I wish him to be released from all liability on account of the same.” I ask, if any money derived from the guardianship should remain in his hands, whether it can be collected from him. The answer was that there was nothing in the case stated why money which belonged to the ward and remained in the hands of the guardian should be considered to have been bequeathed. 5A testator made the following provision in his will, “I wish my relative Titius to be released from every debt whatsoever that he owes me, and in addition I give him ten aurei;” and he inserted the following in a codicil: “I desire, in addition, my heir to release my relative and debtor, Titius, from the payment of interest on any money which he owed me during his lifetime. If my heir should attempt to collect the said interest from him contrary to my wishes, then I desire the said interest be paid to Titius by my heirs as long as he lives.” As the testator evidently had the intention rather to increase than to diminish the legacy, the question arose whether his heirs would, under the terms of the trust, be liable to Titius to compel them to release him from all indebtedness. The answer was that, in accordance with the facts stated, the legacy which the testator had bequeathed in the first place appeared to have been diminished. 6Where a testamentary bequest was made as follows, “I wish everything that Seius owes me, or for which I have pledged my faith for him, to be given to him,” I ask whether only that which was due at the time when the will was executed was bequeathed, or whether the amount which accrued afterwards by way of interest, was included in the legacy. The answer was that the testator intended that every obligation of the debtor should be cancelled by the trust. 7Stichus, having been manumitted by will, the testator left him a tract of land with all its equipment, together with other property, and added the following: “I forbid any account to be rendered by him, because he has the records in his possession.” The question arose whether Stichus would be obliged to pay over any sum of money remaining in his hands from the administration of his stewardship. I answered that Stichus was not liable on that ground. Claudius: No one, after his manumission, is liable for any act committed by him during servitude, and advice has been taken with reference to ascertaining the law as to what is due. Hence the heirs can retain the balance remaining in their hands, along with the peculium, or it can be deducted from the peculium if the latter is bequeathed. 8“I desire the hundred aurei which I deposited with Apronianus to remain in his hands until my son reaches the age of twenty years, and I forbid any interest on said money to be collected from him.” The question arose whether Apronianus could, under the terms of the trust, maintain that the aforesaid sum was not collected from him before the time prescribed by the testator. The answer was that, according to the facts stated, he could assert such a claim. 9A testator appointed his daughters his heirs, and charged them with a trust as follows: “My daughters, do not require Gaius Seius to render any account for the administration of my property, which he has managed in his bank, or out of it, up to the time of my death, and release him from all liability with reference thereto.” As the said Gaius Seius had charge of all the property of the testator at the time of his death, and had invested the same in his bank, and out of it, the question arose whether he would be compelled to render an account thereof to the heirs of the testator. The answer was that, in accordance with the facts stated, a release had been bequeathed, but the court must decide what was to be done under the circumstances. 10A testator appointed, as his heir, his former guardian, together with his own brother and certain other persons, and bequeathed to his said guardian ten aurei, which the latter had expended on his account and on that of his brother. The question arose whether the trust was valid, so far as the guardian was concerned. The answer was that, if the testator had left the amount which was due under a trust, the execution of the trust could not be demanded. 11The inquiry was also made if the bequest should prove to be void, so far as the guardian was concerned, whether it would be valid with reference to the brother of the testator; since it was for his benefit, as well as for that of the party who had administered his guardianship, also. The answer was that the legacy was valid so far as the brother was concerned, as he was released from his debt. 12The question also was asked whether the guardian should be heard if he agreed to accept the trust, provided that certain clauses of the will were allowed to stand, and others were rejected, alleging, as a reason, that the amount specified in the trust was less than he had advanced for expenses. The answer was that he was not prevented by the terms of the will from claiming everything which he could prove was due to him. 13A testator made the following bequest: “I direct the sum of fifty aurei, which I have borrowed from my wife on a note to be used in my business, to be paid to her by my heirs.” The question arose whether the trust would stand if the husband should prove to be actually the debtor of his wife. The answer was that if the indebtedness existed the trust would be void. 14The question also was asked whether the execution of the trust could be demanded, if the wife, having brought suit to collect the money due, should lose the case. The answer was that, according to the facts stated, she could demand the execution of the trust, because it was apparent that the debt was not due on any other ground.
29 Paulus libro sexto ad legem Iuliam et Papiam. Si is, qui duos reos promittendi habet, damnaverit heredem, ut utrosque liberet, si alter ex his capere non possit nec socii sint, delegari debebit is qui nihil capit ei cui hoc commodum lege competit: cuius petitione utrumque accidit, ut et hoc commodum ad eum perveniat et is qui capit liberetur. quod si socii sint, propter eum qui capax est et ille capit per consequentias liberato illo per acceptilationem: id enim eveniret, etiamsi solum capacem liberare iussus esset.
29 Paulus, On the Lex Julia et Papia, Book VI. Where a testator has two principal debtors, and charges his heir to release both of them, and one of them is not capable of receiving a legacy, and they are not partners; the heir should transfer his right of action from the debtor who cannot take the legacy to the one upon whom the law does confer this benefit, and by this proceeding two things will happen, that is, the one who cannot receive the legacy will participate in the benefit, and the one who can receive it, will be released. If, however, the debtors are partners, the one who is incapacitated will necessarily profit through the other who can receive the legacy, and he will be released by means of a receipt; for the same thing will happen even if the testator had directed that the only one entitled to take under the will should be released.
30 Idem libro decimo quaestionum. Petitor vel possessor damnavit heredem suum, ne centumvirale iudicium exerceat: de effectu legati quaeritur. et dictum ita demum utile videri legatum esse, si malam causam adversarius testatoris habuit, ut litigante herede vinci debuerit: tunc enim non tantum litis emolumentum, sed etiam sumptus heres legatario praestare cogitur. nam in bona causa nihil videtur esse in legato nec propter sumptus, quod quidam existimaverunt.
30 The Same, Questions, Book X. The plaintiff or the defendant, having charged his heir not to take judgment in the Court of the Centumvirs, the question arose as to the effect of this on the legacy. It was decided that the latter was only valid where the adversary of the testator had a bad case, so that he would be beaten in a contest with the heir; for then the heir would not only be obliged to surrender the property which was the subject of the suit, but also to pay all the expenses of litigation to the legatee. But if he had a good case, there does not seem to be anything in the legacy, not even the expenses, as some authorities have held.
31 Scaevola libro tertio responsorum. Creditor debitori legavit ita: ‘Gaio Seio, quidquid mihi sub pignore hortorum suorum debuit, ab heredibus meis dari volo’: quaero, cum testator vivus a Seio aliquid recepit, an id ex causa legati peti possit. respondit secundum ea quae proponerentur non posse. idem repetiit et ait item testatorem ante factos codicillos, quibus legavit, paene omnem pecuniam sortis et usurarum recepisse, ita ut modicum sortis et usurarum debeatur, et quaesiit, an ei repetitio competeret propter verba ad praeteritum relata ‘quidquid mihi debuit’. respondit: prius quidem secundum ea quae proponerentur recte responsum est, verum posterius propter ea, quae in tempore adderentur, ita ab iudice aestimandum, ut inspiceret, oblivione pecuniae solutae, aut quod eo inscio numerata esset, id fecisset, an consulto, quod quantitatem quondam debitam, non ius liberationis dare voluisset. 1Inter cetera liberto ita legavit: ‘et si quid me vivo gessit, rationes ab eo exigi veto’. quaeritur, an chartas, in quibus rationes conscriptae sunt, item reliquas secundum accepta et expensa heredibus reddere debeat. respondit ea de quibus quaereretur posse heredem vindicare, id autem, quod conservis, qui remanent in hereditate, crediderit et in rem domini versum esset, desisse in reliquis esse. 2Titia, quae duos tutores habuerat, ita cavit: ‘rationem tutelae meae, quam egit Publius Maevius cum Lucio Titio, reposci ab eo nolo’: quaeritur, an, si qua pecunia apud eum ex tutela remansit, peti ab eo possit. respondit nihil proponi, cur pecunia, quae pupillae esset et apud tutorem remaneret, legata videretur. 3Item quaeritur, an contutor liberatus videtur. respondit contutorem non liberari. 4‘Gaio Seio optime merito hoc amplius lego concedique volo neque ab eo peti neque ab heredibus eius, quidquid mihi aut chirographis aut rationibus debitor est vel quidquid a me mutuum accepit vel fidem meam pro eo obligavi’. quaero, utrum id solum, quod eo tempore, quo testamentum fiebat, debebatur, legatum sit an et si quid ex ea summa usurarum nomine postea accessit legato cedat. respondit secundum ea quae proponerentur videri omnem obligationem Seio eius debiti per fideicommissum solvi voluisse. 5Item quaeritur, si postea novatione facta et ampliata summa coeperit debere, an id, quod ex vetere contractu debebatur, nihilo minus in causa legati duret et an vero novatione facta quasi novus debitor ampliatae summae possit conveniri. respondit id dumtaxat legatum videri quod tunc debuisset, si tamen mansit in ea voluntate testator, quae tunc fuisset.
31 Scævola, Opinions, Book III. A creditor made the following bequest to his debtor: “I desire everything due to me from Gaius Seius, and which he has secured by pledging his gardens, to be given to him by my heirs.” If the testator, during his lifetime, had received any payment from Seius, I ask whether this could be claimed as due under the legacy. The answer was that, in accordance with the facts stated, it could not be claimed. The same party again applied for advice, alleging that the testator, before making the codicil by which he left the bequest, had received almost all the principal and interest of the debt, so that but a very small portion of the debt remained, and asked whether he would have a right of action for recovery on account of the clause, “everything due to me which is related to the past.” The answer was that, with reference to the facts stated in the first place, my opinion was correct; but so far as those stated subsequently were concerned, something had been added, and the point must be decided by the court, who should ascertain whether the testator, having forgotten that the money had been paid, had made this provision; or because payment was without his knowledge; or whether he had acted designedly, as he wished that the amount due, rather than the right to demand a release, should be bequeathed. 1A testator, among others, made the following bequest to his freedman: “If he has transacted any business for me during my lifetime, I forbid any accounting to be required of him therefor.” The question arose whether he would be compelled to surrender to the heirs the books in which the accounts were kept, as well as any sums remaining in his hands as shown by the entries of receipts and expenditures. The answer, with reference to the matter in question, was that the heir was also entitled to claim what the steward had lent to his fellow slaves who formed part of the estate, which sums, expended for the benefit of his master, should be deducted from the balance in his hands. 2Titia, who had had two guardians, made the following provision in her will: “I do not wish an account of my guardianship which Publius Mævius and Lucius Titius administered, to be required of the former.” The question arose whether any money remaining in his hands from the administration of the guardianship could be collected from him. The answer was that there was nothing in the case stated to lead to the belief that the money which belonged to the ward, and remained in the hands of the guardian, was bequeathed. 3The question was also asked whether the fellow guardian should also be considered to have been released. The answer was that the fellow guardian was not released. 4“With reference to Gaius Seius, who has been especially deserving, I do not wish that anything he owes me in notes, or on account, or whatever he has borrowed from me, or any obligations I may have contracted for his benefit be required either of him or of his heirs.” I ask whether only the amount of money due at the time when the will was made was bequeathed, or whether any of the interest which had accrued on the said sum afterwards, was included in the legacy. The answer was that, in accordance with the facts stated, it appeared that the testator intended all the obligations of Seius due to himself to be discharged by virtue of the trust. 5It was also asked, after an obligation had been renewed and the amount of the debt increased, whether what was due under the old contract would still be included in the legacy; or where a renewal had been made, and the party having become, as it were, a new debtor, he could be sued for the increased amount. The answer was that only that was considered to have been bequeathed which the party owed at the time, but if the testator still adhered to his original intention, the legacy would include all the indebtedness existing at the time of his death.