De adimendis vel transferendis legatis vel fideicommissis
(Concerning the cancellation or transfer of legacies and trusts.)
1 Paulus libro tertio ad Sabinum. Qui actu legato iter adimat, nihil adimit, quia numquam actus sine itinere esse potest.
1 Paulus, On Sabinus, Book III. Where a testator, having bequeathed the right to drive cattle through his land, does not grant the right of way, he omits nothing from the legacy, for the reason that the right to drive cattle cannot exist without the right of way.
2 Pomponius libro quinto ad Sabinum. Fundo legato adimi ita potest: ‘fundum illi praeter usum fructum neque do neque lego’, ut usus fructus in legato relinquatur. 1Sed et fructus adimi potest, ut proprietas relinquatur. 2Item pars fundi legati adimi potest.
2 Pomponius, On Sabinus, Book V. Where a tract of land is devised, a reservation may be made as follows, “I do not give or bequeath to So-and-So any other right attaching to the said land except the usufruct of the same,” in order that the usufruct may constitute the legacy. 1The usufruct, however, can be reserved, so that only the mere ownership will be left. 2In like manner, a part of the land bequeathed may be reserved.
3 Ulpianus libro vicesimo quarto ad Sabinum. Si quis ita legaverit: ‘Titio fundum do lego: si Titius decesserit, Seio heres meus dare damnas esto’, recte translatum legatum videtur. sed et si iam mortuo eo, cui legatum erat, easdem res transtulerit, Sempronio debetur. 1Si quis Titio legaverit sic: ‘Titio dato aut, si Titius ante decesserit quam accipiat, Sempronio dato’, secundum meram suptilitatem utrique obligatum videri heredem, id est et Sempronio et heredi Titii. sed si quidem mora Titio ab herede facta est, ad heredes eius legati exactio transmittitur Sempronio repellendo: sin autem nulla mora intercesserit, tunc Sempronius legatum accipit, et non Titii heredes. sed si ante diem legati cedentem decesserit Titius, soli Sempronio debetur legatum. 2Idem dicendum est et fideicommissa hereditate puero data aut, si ante restitutam decessisset, matri eius relicta: ut, si puer ante diem legati cedentem decessisset, matri debeatur, si postea, ad pupilli heredes fideicommissum transmittatur utpote re ipsa mora subsecuta. 3Sed et cum quis ita legasset: ‘heres meus Titio dato: si non dederit, Sempronio dato’, ita demum Sempronio debetur, si dies eius in persona Titii non cessisset. 4Si quis ita legaverit: ‘heres meus Titio fundum dato et si Titius eum fundum alienaverit, heres meus eundem fundum Seio dato’, oneratus est heres: non enim a Titio fideicommissum relictum est, si alienasset fundum, sed ab herede ei legatum est. heres igitur debebit doli exceptione posita prospicere sibi cautione a Titio de fundo non alienando. 5Si quis plus quam dedit ademerit, ademptio valet, veluti si quis viginti legaverit et quadraginta ademerit. 6Si loci usum fructum leget testator et iter adimat, non valet ademptio nec vitiatur legatum: sicuti qui proprietatem fundi legat, iter adimendo legatum non minuit. 7Si duobus Titiis separatim legaverit et uni ademerit nec appareat, cui ademptum sit, utrique legatum debetur, quemadmodum et in dando, si non appareat cui datum sit, dicemus neutri legatum. 8Si Titio fundus pure eidemque sub condicione legatus sit, deinde postea ademptum sit sic: ‘Titio fundum, quem sub condicione legavi, heres meus ne dato’, ex nulla datione debetur, nisi specialiter dixerit pure eum legatum velle accipere. 9Condicio legati an adimi possit vel hereditatis vel statuliberi, videndum. et Iulianus scribit in statulibero detractam condicionem non repraesentare libertatem. Papinianus quoque libro septimo decimo quaestionum scribit generaliter condicionem adimi non posse: nec enim datur, inquit, condicio, sed adscribitur: quod autem adscribitur, non potest adimi, sed quod datur. sed melius est sensum magis quam verba amplecti et condiciones sicut adscribi, ita et adimi posse. 10Cum Titio centum testamento legasset et eidem codicillis ita legasset: ‘Titio quinquaginta dumtaxat nec amplius heres meus dato’, non amplius quinquaginta legatarium petiturum. 11Non solum autem legata, sed et fideicommissa adimi possunt et quidem nuda voluntate. unde quaeritur, an etiam inimicitiis interpositis fideicommissum non debeatur: et si quidem capitales vel gravissimae inimicitiae intercesserint, ademptum videri quod relictum est: sin autem levis offensa, manet fideicommissum. secundum haec et in legato tractamus doli exceptione opposita.
3 Ulpianus, On Sabinus, Book XXIV. If anyone should make a testamentary disposition as follows, “I give and devise such-and-such a tract of land to Titius, and if Titius should die, let my heir be charged to give it to Seius,” the devise is held to be legally transferred. Even if the party to whom it was left in the first place should be dead at the time of the transfer of the property, Seius will be entitled to it. 1If anyone should make a bequest to Titius as follows, “Let my heir give such-and-such an article to Titius, or if Titius should die before receiving it, let him give it to Sempronius,” according to the strict construction of the law, the heir will appear to be bound to both parties, that is to say to Sempronius and to the heir of Titius. If, however, the testator’s heir should be in default in delivering the property to Titius, the right to demand the legacy will be transmitted to his heirs, and Sempronius will have no claim to it; but if there should have been no default, Sempronius, and not the heirs of Titius, will then be entitled to receive the legacy. But if Titius should die before the time when the legacy vests, Sempronius alone will be entitled to it. 2The same thing must be said where an estate is left in trust for the benefit of a boy, and his mother becomes the legatee if he should die before obtaining the estate, so that if he dies before the time when the legacy vests the mother will be entitled to it; but if he dies afterwards, the benefit of the trust will pass to the heirs of the child, just as if there had been default in the execution of the trust itself. 3Where, however, anyone makes a bequest as follows, “Let my heir deliver such-and-such property to Titius, and if he does not do so, let him deliver it to Sempronius,” Sempronius will only be entitled to the legacy, if at the time it vests, Titius should be incapable of acquiring it. 4If anyone should make a bequest as follows, “Let my heir give such-and-such a tract of land to Titius, and if Titius should alienate the same, let my heir give it to Seius,” the heir will be charged with both trusts; for Titius is not charged with the trust if he should alienate the land, but the heir is charged with the devise to him. Therefore the heir, by filing an exception on the ground of bad faith, should provide for himself and exact security from Titius not to alienate the land. 5If anyone reserves more than he leaves, his reservation will be valid; as, for instance, if he should bequeath twenty aurei, and reserve forty. 6If a testator should bequeath the usufruct of certain land, and reserve the right of way, his reservation is void, but the legacy will not be invalidated, just as where a person leaves the ownership of land, reserving the right of way, the legacy will not be diminished. 7If a testator should bequeath a legacy separately to two persons of the name of Titius, and afterwards deprives one of them of the bequest, but it is not clear which one is meant, both of them will be entitled to the legacy; just as where, in making a bequest, it is not apparent to which of two parties it is given, we say that it is bequeathed to neither of them. 8Where a tract of land was devised to Titius absolutely, and then was left to him under a condition, and finally he was deprived of it, as follows, “My heir shall not give to Titius the tract of land which I left to him conditionally,” he will not be entitled to it under either provision, unless the testator expressly stated that he desired him to receive the legacy absolutely. 9Let us see whether the condition on which a legacy, an estate, or the freedom of a slave is dependent, can be revoked. Julianus says that, in the case of the freedom of a slave, the removal of the condition does not immediately confer freedom upon him. Papinianus, also, in the Seventeenth Book of Questions, says that, generally speaking, the condition cannot be revoked, for he holds that a condition is not given but is imposed, and what is imposed cannot be taken away, as this applies only to what is given. It is, however, better that the signification of the words, rather than the words themselves, should be considered; and, as conditions can be imposed, so also they can be rescinded. 10Where a testator, by his will, left a hundred aurei to Titius and made the following bequest to him in a codicil, “Let my heir give to Titius fifty aurei, and no more,” the legatee cannot claim more than fifty aurei. 11Not only legacies, but also trusts can be revoked, even by a mere wish. Hence, it is asked whether a trust will be due in case enmity has arisen between the parties. If, indeed, the enmity relates to a capital offence or is of an extremely serious character, what has been bequeathed will be held to have been revoked; if, however, the offence is a light one, the trust will continue to exist. In accordance with this we can include legacies, and an exception on the ground of bad faith may be filed.
4 Idem libro trigesimo tertio ad Sabinum. Quod si iterum in amicitiam redierunt et paenituit testatorem prioris offensae, legatum vel fideicommissum relictum redintegratur: ambulatoria enim est voluntas defuncti usque ad vitae supremum exitum.
4 The Same, On Sabinus, Book XXXIII. If the parties should renew their friendship, and the testator should repent of his former resolution, the legacy or trust which was left will be restored in its entirety, for the will of the deceased was alterable until the last moment of his life.
5 Gaius libro secundo ad edictum urbicum. Sicut adimi legatum potest, ita et ad alium transferri, veluti hoc modo: ‘quod Titio legavi, id Seio do lego’: quae res in personam Titii tacitam ademptionem continet.
5 Gaius, On the Urban Edict, Book II. Just as a legacy can be taken away from one person, so also it can be transferred to another, for instance, as follows: “I give and bequeath to Seius what I have bequeathed to Titius.” This clause contains a tacit deprivation of the legacy, so far as Titius personally is concerned.
6 Paulus libro quinto ad legem Iuliam et Papiam. Translatio legati fit quattuor modis: aut enim a persona in personam transfertur: aut ab eo qui dare iussus est transfertur, ut alius det: aut cum res pro re datur, ut pro fundo decem aurei: aut quod pure datum est, transfertur sub condicione. 1Sed si id, quod a Titio dedi, a Maevio dem, quamvis soleant esse duo eiusdem rei debitores, tamen verius est hoc casu ademptum esse legatum: nam cum dico: ‘quod Titium dare damnavi, Seius damnas esto dare’, videor dicere, ne Titius det. 2Item si pro fundo decem legentur, quidam putant non esse ademptum prius legatum: sed verius est ademptum esse: novissima enim voluntas servatur.
6 Paulus, On the Lex Julia et Papia, Book V. The transfer of a legacy is made in four ways. It can either be transferred by substituting one person for another; or this may be done by the party who directed it to be bestowed, so that another may give it; or where one kind of property is left instead of another, as ten aurei instead of a tract of land; or where the legacy was absolute, and it is transferred under a condition. 1If, however, I should give to Mævius what I have already given to Titius, although it is customary to hold that they are both charged with the delivery of the same property, still, the better opinion is that, in this case, the first legatee is deprived of the bequest, for where I say, “Let Seius be charged with giving what I have charged Titius to give,” I shall be considered to have said that Titius shall not deliver the property. 2Likewise, where ten aurei are bequeathed instead of a tract of land, certain authorities think that the first bequest is not revoked; but, as a matter of fact it is, for the last will is the one to be carried into effect.
7 Ulpianus libro vicesimo quarto ad Sabinum. Quod si alii legetur sub condicione, quod alii pure datum est, non plene recessum videtur a primo, sed ita demum, si condicio sequentis exstiterit: ceterum si hoc animo fuerit testator, ut omnimodo recessum a primo putaverit, dicendum erit a primo ademptum legatum.
7 Ulpianus, On Sabinus, Book XXIV. Where the bequest of an article is made to anyone under a condition, and the same article has already been absolutely left to another, the first bequest is not held to have been absolutely revoked, but only in case the condition of the second one should be complied with. If, however, it was the intention of the testator that the first legacy should, under all circumstances, be cancelled, this must be held to have been done.
8 Iulianus libro trigesimo secundo digestorum. Et ideo si vivo testatore mortuus fuerit is, in quem translatum legatum fuerit, nihilo magis ad eum, a quo translatum fuerit, pertinebit.
8 Julianus, Digest, Book XXXII. Therefore, if he to whom the legacy was transferred should die during the lifetime of the testator, it will, nevertheless, not belong to the person who was previously deprived of it.
9 Ulpianus libro quinto disputationum. Cum centum, quae quis pure reliquit, condicione adiecta iterum eidem legavit, si quidem quasi aliam hanc summam esse voluit, et quod pure relictum est statim debebitur et quod sub condicione adscriptum est, si condicio exstiterit. quod si eandem summam mutata voluntate sub condicione reliquit, pura datio condicionalis effecta videbitur. quare si in eodem testamento, in quo centum adscripserat, postea quinquaginta reliquerit, si quidem alia voluit esse haec quinquaginta, centum quinquaginta debebuntur, sin vero quinquaginta tantum deberi voluit, quinquaginta tantum debebuntur. idem est et si in codicillis id fuerit factum.
9 Julianus, Disputations, Book V. If anyone, after having left a hundred aurei to a person absolutely, then bequeathed the same sum to him conditionally, and intended to leave him this second sum in addition, what he left him absolutely will be due at once, and what was bequeathed to him under the condition will be payable if the condition should be fulfilled. Where, however, through having changed his mind, he left him the same sum under a condition, the absolute bequest may be considered to have become conditional. Hence, if in the same will by which he bequeathed a hundred aurei he afterwards left fifty, and he intended these fifty to constitute a new bequest, a hundred and fifty aurei will be due. But if he intended the bequest to consist of but fifty aurei, only fifty will be payable. The same rule will apply where this was done by means of a codicil.
10 Iulianus libro trigesimo septimo digestorum. Si legatum pure datum Titio adimatur sub condicione et pendente condicione Titius decesserit, quamvis condicio defecerit, ad heredem Titii legatum non pertinebit: nam legatum cum sub condicione adimitur, perinde est, ac si sub contraria condicione datum fuisset. 1Quod ita legatum est: ‘Titio decem heres meus dato: si Titio non dederit, eadem decem Sempronio dato’, si moriatur Titius ante diem legati, Sempronius legatum utiliter petet: translatum enim legatum intellegi debebit.
10 Julianus, Digest, Book XXXVII. Where a legacy is absolutely bequeathed to Titius, and he is deprived of it under a certain condition, and dies while the condition is pending, even though the condition should fail, the legacy will not belong to the heir of Titius; for where a legacy once given is taken away under a condition, the effect is the same as if in the first place it had been left under the opposite condition. 1Where a bequest is made as follows, “Let my heir pay ten aurei to Titius, and if he should not pay them to Titius, let him pay the said ten aurei to Sempronius,” if Titius should die before the day when the legacy vests, Sempronius can legally claim the legacy, for it should be understood to have been transferred to him.
11 Idem libro quinquagesimo quarto digestorum. Qui hominem legat et Stichum adimit, non peremit legatum, sed extenuat,
11 The Same, Digest, Book LIV. Where a testator bequeaths a slave, in general terms, and reserves Stichus, he does not annul the legacy, but he weakens it;
12 Ulpianus libro quinquagesimo ad Sabinum. ut Stichum legatarius eligere non possit.
12 Ulpianus, On Sabinus, Book L. As the legatee cannot select Stichus.
13 Marcianus libro sexto institutionum. Divi Severus et Antoninus rescripserunt, cum testator postrema scriptura quaqua ratione motus pessimum libertum esse adiecisset, ea quae priore scriptura ei relicta fuerant adempta videri.
13 Marcianus, Institutes, Book VI. The Divine Severus and Antoninus stated in a Rescript that where a testator, induced by some motive or other, in his last will mentioned one of his freedmen as being of extremely bad character, he was considered to have deprived him of all that had been left to him previously.
14 Florentinus libro [ed. maior primo] <ed. minor undecimo> institutionum. Legata inutiliter data ademptione non confirmantur, veluti si domino herede instituto, servo pure legatum sub condicione adimatur: nam pure legatum si sub condicione adimatur, sub contraria condicione datum intellegitur et ideo confirmatur. ademptio autem, quo minus, non quo magis legatum debeatur, intervenit. 1Quibus ex causis datio legati inutilis est, ex isdem causis etiam ademptio inefficax habetur, veluti si viam pro parte adimas aut pro parte liberum esse vetes.
14 Florentinus, Institutes, Book XI. Legacies which are void when granted, are not rendered valid by being suppressed; as, for instance, after having appointed the master of a slave his heir, the testator conditionally deprives the said slave of an absolute bequest which he had made to him of the same. For where an absolute bequest is taken away by imposing a condition, it is held to have been bequeathed under the contrary condition, and therefore is confirmed. This, however, does not apply where the legacy which was suppressed was not valid in the first place. 1The same reasons for which a legacy becomes void when bequeathed, cause its suppression also to become of no force or effect; as, for example, if you deprive a legatee of a part of his right of way, or direct a slave to be only partly free.
15 Paulus libro singulari de adsignatione libertorum. Cum servus legatus a testatore et alienatus rursus redemptus sit a testatore, non debetur legatario opposita exceptione doli mali. sane si probet legatarius novam voluntatem testatoris, non submovebitur.
15 Paulus, On the Allotment of Freedmen. Where a slave bequeathed by a testator is alienated, and then repurchased by him, he will not be due to the legatee, against whom an exception on the ground of bad faith may be interposed. It is evident, however, that he will not be barred by it if the legatee can prove that the testator had renewed his intention to give him the slave.
16 Idem ex libro singulari de iure codicillorum. Nihil interest, inducatur quod scriptum est an adimatur.
16 The Same, On the Law of Codicils. It makes no difference whether the legacy contained in the will is erased, or taken away.
17 Celsus libro vicesimo secundo digestorum. Nihil prohibet priorem scripturam posteriore corrigere commutare rescindere.
17 Celsus, Digest, Book XXII. There is nothing to prevent a testator from correcting, changing, or revoking a former will by a succeeding one.
18 Modestinus libro octavo differentiarum. Rem legatam si testator vivus alii donaverit, omnimodo exstinguitur legatum. nec distinguimus, utrum propter necessitatem rei familiaris an mera voluntate donaverit, ut, si necessitate donaverit, legatum debeatur, si nuda voluntate, non debeatur: haec enim distinctio in donantis munificentiam non cadit, cum nemo in necessitatibus liberalis exsistat.
18 Modestinus, Differences, Book VIII. If a testator, during his lifetime, should give away to another the property which he had bequeathed, the legacy will be absolutely extinguished, nor do we make any distinction as to whether he disposed of his property through necessity, or merely through inclination; so that if he gave it away through necessity, the legacy will still be payable, but if he disposed of it merely through inclination, it will not be payable. This distinction, however, will not apply to a party who makes a donation through liberality, for no one is liberal when impelled by necessity.
19 Idem libro undecimo responsorum. Modestinus respondit, si adimendo legatum, quod Maevio relictum sit, fideicommissum ab eo datum defunctus revocare noluit, heredes ex causa fideicommissi conveniri posse recte probari.
19 The Same, Opinions, Book XI. Modestinus gave it as his opinion that if the deceased, by depriving Mævius of a legacy which was bequeathed to him, did not intend to revoke the trust with which he was charged, the heirs can be sued by virtue of the trust; and this opinion shall be approved.
20 Pomponius libro primo ad Quintum Mucium. Licet transferam legatum in eum, cum quo nobis testamenti factio non est, sive in servum proprium, cui sine libertate legavero, licet eis non debeatur, nec illi tamen debebitur, cui fuerit ademptum.
20 Pomponius, On Quintus Mucius, Book I. Although I may transfer a legacy to a person who has not the right to receive it under my will, or bequeath the legacy without the grant of freedom to my own slave, even if they are not entitled to receive it, it will still not be payable to the person who was deprived of the same.
21 Licinnius Rufinus libro quarto regularum. Legatum nulli alii adimi potest quam cui datum est: quapropter si filio aut servo alieno legatum fuerit, domino aut patri legatum adimi non potest.
21 Licinius Rufinus, Rules, Book IV. Only he can be deprived of a legacy to whom it was bequeathed, and therefore if a bequest should be made to the son or the slave of another, the father or the master cannot be deprived of it.
22 Papinianus libro sexto responsorum. Ex parte heres institutus etiam legatum acceperat: eum testator inimicitiis gravissimis persecutus, cum testamentum aliud facere instituisset neque perficere potuisset, praeteriit. hereditariae quidem actiones ei non denegabuntur, sed legatum si petat, exceptione doli mali submovebitur.
22 Papinianus, Opinions, Book VI. An heir appointed to a share of an estate also received a legacy by the will. The testator afterwards regarded him with intense hatred, and intended to make another will which he began, but could not finish, and passed the party over without mentioning him. His rights of action as heir could, indeed, not be denied him, but if he should claim the legacy, he could be barred by an exception on the ground of bad faith.
23 Idem libro septimo responsorum. Pater inter filios facultatibus divisis filiam ex ratione primipili commodorum trecentos aureos accipere voluit ac postea de pecunia commodorum possessionem paravit. nihilo minus fratres et coheredes sorori fideicommissum praestabunt: non enim absumptum videtur, quod in corpus patrimonii versum est. cum autem inter filios diviso patrimonio res indivisas ad omnes coheredes pertinere voluisset, ita possessionem ex commodis comparatam dividi placuit, ut in eam superflui pretii filia portionem hereditariam accipiat: hoc enim eveniret in bonis pecunia relicta.
23 The Same, Opinions, Book VII. A father, having divided his property among his children, desired that his daughter should receive the sum of three hundred aurei, derived from the profit which he obtained from the advantages he enjoyed as the chief Centurion of the Triarii; and he afterwards used this money in acquiring a tract of land. Notwithstanding this fact, the brothers and co-heirs of the sister will be still obliged to execute the trust, for what was used for the benefit of the testator could not be held to have been consumed. But, as he had apportioned his property among his children, he intended that anything which had not been divided should belong to them in common; and hence it was decided that the land which had been acquired by means of funds derived from the office in the army should also be divided, so that the daughter might receive her share of the estate out of the amount paid for said land. This also would be the case, if money had been included in the assets of the estate.
24 Idem libro octavo responsorum. Legatum sub condicione datum cum transfertur, sub eadem condicione transferri videtur, si non condicio priori personae cohaereat: nam si quis uxori sublatis liberis legaverit, repetita condicio non videbitur, quae fuit in persona mulieris necessaria. 1Pater hortos instructos filiae legavit: postea quaedam ex mancipiis hortorum uxori donavit. sive donationes confirmavit sive non confirmavit, posterior voluntas filiae legato potior erit: sed etsi non valeat donatio, tamen minuisse filiae legatum pater intellegitur.
24 The Same, Opinions, Book VIII. Where a legacy bequeathed under a condition is transferred to another party, it is held to have been transferred subject to the same condition, unless it was one not attaching to the person of the first legatee. For if anyone should bequeath property to his wife, provided she should have children, and the legacy should be transferred, the condition which was necessarily attached to the person of the first woman will not be considered to have been repeated. 1A father devised his gardens with all their appurtenances to his daughter, and afterwards presented some of the slaves belonging to the said gardens to his wife. Whether he confirmed the donation or not, his last wishes will take precedence of the bequest to his daughter. But even if the donation should not be valid, still the father will be understood to have diminished the legacy of his daughter.
25 Idem libro nono responsorum. Alteri ex heredibus praeceptionem praedii dedit: mox alteri praestari adversus debitorem actiones ad eum finem mandavit, quo praedium fuerat comparatum. cum postea praedio distracto citra ullam offensam eius, qui praeceptionem acceperat, pretium in corpus patrimonii redisset, non esse praestandas actiones coheredi respondi.
25 The Same, Opinions, Book IX. A testator left to one of his heirs a tract of land as a preferred legacy, and afterwards directed that certain rights of action, to the amount of the purchase of said tract of land, should be assigned to another. Afterwards, having sold the land without causing any injury to the party entitled to it as a preferred legacy, he placed the price received for the same among the property of his estate. I gave it as my opinion that the rights of action should not be assigned to his co-heir.
26 Paulus libro nono quaestionum. Si, servo cum libertate dato legato, et alienato adimatur libertas, quamvis alieno inutiliter adimatur, tamen legatum ad emptorem non perventurum: et merito: constitit enim ademptio, quia possit redimi, sicut datio, cum in eum confertur, qui testamenti faciendi tempore fuit testatoris, deinde alienato codicillis libertas datur. 1Quid ergo, si eum, quem liberum esse quis iusserat, manumiserat vivus, deinde codicillis libertatem ei ademerit? videamus, an perdiderit legatum vana ademptio libertatis. quod quidam putant: sed supervacua scriptura non nocet legato.
26 Paulus, Questions, Book IX. Where a legacy was bequeathed to a slave with his freedom, and he was afterwards sold, and the bequest of his freedom was revoked, although such a revocation is void with reference to a slave belonging to another, still, the purchaser will not be entitled to the legacy. There is reason in this, for the revocation will stand, as the slave can be repurchased, just as the bequest of the legacy is valid when it is made to one who, at the time the will was made, belonged to the testator, but who, after having been sold, obtained his freedom by means of a codicil. 1What would be the case if the testator, during his lifetime, should manumit a slave whom he had directed to be free by his will, and should then revoke his grant of freedom by a codicil? Let us see whether the mere revocation of his freedom would annul the legacy. Some authorities think that it would, but a superfluous provision does not affect a legacy.
27 Idem libro vicesimo primo quaestionum. Servus legatus est et ei aliquid. si alienato eo adimatur quod ei legatum est, valet ademptio, quia et legatum potest procedere, si redimatur. 1Servo legato et inter vivos manumisso si legatum adimatur, nullius momenti ademptio est: igitur legatum, quod ipsi datum est, capiet. nam etsi rursus in servitutem ceciderit, non tamen legatum eius resuscitabitur: novus enim videtur homo esse.
27 The Same, Questions, Book XXV. When a slave is bequeathed, and something is left to him, and he afterwards should be sold, and deprived of what was bequeathed to him, the revocation will be valid, because the legacy will take effect if the slave should be repurchased. 1Where a slave is bequeathed, and is manumitted during the lifetime of the parties, and he is deprived of his legacy, the deprivation will be of no force or effect; therefore he can take the legacy bequeathed to him, for, even if he should again be reduced to slavery, his legacy will still not be revived, for he is considered to be a new man.
28 Valens libro quinto fideicommissorum. Si tibi certam rem legavero et rogavero te, ut eam Titio restitueres, deinde eandem rem tibi fideicommisero nec rogavero te, ut alii eam praestares, quaeritur, an in tua potestate sit ex causa fideicommissi eligere, ut fideicommissum non praestes. et magis posteriorem scripturam testamenti placuit spectari.
28 Valens, Trusts, Book V. If I should bequeath certain property to you, and ask you to deliver it to Titius, and then should leave you the same property under a trust, but should not request you to deliver it to anyone, the question arises whether it is in your power to select the property under the terms of the second trust in order to avoid the execution of the first one. It has been established that it is better to take into consideration the last provision of the will.
29 Paulus libro tertio sententiarum. Libertus, qui in priore parte testamenti legatum acceperat et ingratus postea eadem scriptura a testatore appellatus est, commutata voluntate actionem ex testamento habere non potest.
29 Paulus, Sentences, Book III. A freedman who received a legacy by the first part of the will afterwards was stigmatized by the testator as ungrateful in the same instrument, and the testator having changed his mind, the freedman will not be entitled to an action based on the will.
30 Scaevola libro vicesimo digestorum. Alumnae suae plura legaverat: quaedam ex his abstulit, quaedam ut praestarentur, ab herede suo petit, in quibus et viginti dari voluit his verbis: ‘hoc amplius do lego darique volo viginti auri libras’ et adiecit: ‘fideique tuae, Atti, committo, ut in primis Semproniam sororem tuam pro tua pietate et regere et tueri velis, et, si putaveris eam ad bonam vitae consuetudinem reversam, ita viginti auri libras ei reddere, cum morieris. interim tamen reditus eius, id est usuras semisses ei praestes’. postea codicillis ad Maevium legatarium easdem viginti libras auri transtulit et fidei eius commisit in haec verba: ‘viginti libras auri, quas testamento Semproniae alumnae meae reliqui, eas dari volo Maevio cautionibus interpositis, ut ex ea summa eidem Semproniae, quamdiu advixerit, praestet menstruos denarios quinque et vestiarii nomine denarios centenos vicenos quinos, idque fidei vestrae committo: certa sum autem te, Maevi, pro tua pietate petiturum ab herede tuo, ut voluntas mea in persona alumnae meae duret’. quaesitum est, an Maevius legatarius cogendus sit post mortem suam viginti libras auri Semproniae restituere, sicut rogatus fuerat Attius heres. respondit secundum ea quae proponerentur viginti quidem auri libras non cogendum praestare, sed alia, quae ab eo alumnae relicta sunt, deberi et a Maevio et ab herede eius, donec vivit alumna. 1Titia testamento Seiam libertam eandemque collactaneam ex parte duodecima heredem instituerat, Pamphilo liberto suo praedia per fideicommissum dedit, in quibus et σύγκτησιν praediorum quae appellabatur circa Colonen: eidem liberto postea per epistulam alias etiam res donavit, in quibus de Seia et Pamphilo ita est locuta: ‘Τιτία τοῖς κληρονόμοις μου χαίρειν. βούλομαι βέβαια εἶναι τὰ ὑποτεταγμένα, ὅσα ἔφθασα εἰς τὸ ὄνομα τὸ Παμφίλου πεποιηκέναι. ἐάν Σεΐα ἡ σύντροφός μου κληρονόμος μὴ γένηται, ἐξ οὗ γέγραφα αὐτὴν μέρους, βούλομαι αὐτῇ δοθῆναι τὴν σύγκτησιν τὴν περὶ Κολώνην’. quaesitum est, cum Seia liberta omissa parte hereditatis ei testamento adscripta ex codicillis fideicommissum, id est σύγκτησιν circa Colonen, eligat, an, si Pamphilus ex causa fideicommissi eadem praedia vindicet, doli mali exceptione summoveri debeat. respondit translatum videri fideicommissum praediorum, id est σύγκτησιν quae est circa Colonen, in Seiam libertam. 2Ab heredibus petierat, ut, si in provincia decessisset, sexaginta Lucio Titio darentur, ut is corpus eius curaret in patriam reportari, et adiecerat haec verba: ‘cui concedi volo, si quid ex ea pecunia supererit’. eadem die codicillos ad heredes suos ita scripserat: ‘peto a vobis, ut, sive in provincia sive in via aliquid mihi humanitus acciderit, corpus meum curetis et in Campania et in monumentum filiorum meorum reportare’. quaesitum est, an id, quod superfuerit ex sexaginta, a Lucio Titio tacite ademerit. respondit ademptum videri. 3Qui filias ex disparibus portionibus testamento heredes instituerat, paene omnium bonorum suorum eodem testamento divisionem fecit, deinde haec verba adiecit: ‘τὰ δὲ λοιπὰ πάντα τῶν ὑπαρχόντων μου, ὁμοίωσ καὶ τὰ τῆς κληρονομίας βάρη ἔσται μόνων τῶν δύο μου θυγατέρων Πρίμης καὶ Σεκούνδης ἢ τῆς ἐξ αὐτῶν περιούσησ’. postea codicillis longe aliam divisionem fecit bonorum inter easdem, inter quas et testamento diviserat, quaedam tamen nulli nominatim dedit. quaesitum est, an Prima et Secunda filiae ex verbis testamenti consequi possint, ut solae habeant ea, quae nominatim nulli relicta sunt in divisione, quae novissima a patre facta est. respondit non a tota voluntate recessisse videri, sed his tantum rebus quas reformasset. 4Cum post apertas tabulas testamenti Priscillianus vixerit, de cuius legato portioneque hereditatis mater epistula ita caverat: ‘quoniam cognovi Priscillianum filium meum in extremis esse, iustissimum et piissimum duxi portionem eius hereditatis, quam ei testamento dederam, legare Mariano fratri meo et Ianuario marito meo aequis portionibus: et si quid ei amplius legaveram, ut si quid ei humanitus contigerit, do lego darique eis volo’: postea ex eadem infirmitate Priscillianus decessit. quaesitum est, an legatum quoque eius ad Ianuarium et Marianum ex causa fideicommissi pertineat. respondit posse videri, si decessisset ex ea infirmitate, omnimodo et legatum ad eos de quibus quaereretur transtulisse.
30 Scævola, Digest, Book XXX. A testatrix left several articles to her foster-child, and afterwards revoked the bequest of some of them, and charged her heir to substitute others in their stead, among which she desired twenty pounds of gold to be bestowed, as follows: “In addition to this, I give and bequeath, and I wish twenty pounds of gold to be given to her.” She also added: “And I charge you, Attius, above all, to care for and protect your sister Sempronia, with due affection, and if you think that she has returned to a good mode of life, leave her when you die the abovementioned twenty pounds of gold; and, in the meantime, pay her the income of said sum, that is to say, interest on the same at the rate of six per cent.” She afterwards transferred the same twenty pounds of gold to her legatee, Mævius, by a codicil, and charged him with a trust as follows: “I desire the twenty pounds of gold which I have left to my foster-child, Sempronia, by my will, to be given to Mævius, after taking security from him to pay five denarii every month out of said sum to the said Sempronia, as long as she may live, in addition to a hundred and twenty-five denarii for her clothing; and this I beg you to do. I am certain that you, Mævius, on account of your affection, will charge your heir at your death to carry out my wishes with reference to my foster-child.” The question arose whether Mævius, as legatee, would, at the time of his death, be compelled to pay the twenty pounds of gold to Sempronia, as the heir Attius had been charged to do. The answer was that, according to the facts stated, he could not be compelled to pay her the twenty pounds of gold; but that the other things with which he had been charged for the benefit of the foster-child must be furnished by Mævius and his heir, as long as the said foster-child lived. 1Titia, by her will, appointed her freedwoman Seia, who was also her foster-sister, heir to a twelfth part of her estate. She left certain lands to her freedman Pamphilus under a trust, among which were certain fields of large extent, designated as being near Colon; and she afterwards, by a letter, also gave other property to the same freedman, in which letter she referred to Seia and Pamphilus as follows: “To my heirs, Greeting. I wish that everything stated below be carried out, as well as any provisions which I have already made with reference to Pamphilus. If my foster-sister, Seia, should not become my heir to the share of my estate to which I have appointed her, I wish all the lands near Colon to be given to her.” As the freedwoman Seia rejected the share of the estate left her by will, and selected what had been given to her by the codicil the question arose, if Pamphilus should claim the same land under the terms of the trust, whether he could be barred by an exception on the ground of bad faith. The answer was that the trusts having reference to the lands, that is to say to those which were situated near Colon, were considered to have been transferred to the freedwoman Seia. 2A testator requested his heirs that, if he should die in a province, sixty aurei should be given to Lucius Titius, in order that he might take charge of his body, and bring it back to his country. He also added the following: “If anything remains of said sum of money, I wish it to be given to him.” On the same day he addressed a codicil to his heirs, in the following terms: “If I should happen to die either in the province or on my journey, I ask you to have my body taken to Campania, and placed in the tomb of my children.” The question arose whether the testator, by this provision, tacitly deprived Lucius Titius of anything remaining out of the above mentioned sum of sixty aurei. The answer was that he should be considered to have been deprived of it. 3A father appointed his daughters by his will heirs to unequal portions of his estate, and by the same will made a division of almost all his property, and then he added the following: “All my remaining property, as well as any liabilities attaching to my estate, shall belong only to my two daughters namely, Prima and Secunda, or whichever of them survives.” He afterwards, by a codicil, made a very different division of his property among them than he had done by his will, and some of it he did not leave specifically to anyone. The question arose whether the daughters, Prima and Secunda, could, under the terms of the will, claim that they alone were entitled to the property which was not specifically bequeathed to anyone by the last disposition which their father made of his estate. The answer was that he did not appear to have revoked his entire will, but had only made changes with reference to certain property which he had disposed of in a different manner. 4A mother made the following provision in a letter concerning a legacy and a share of her estate bequeathed to her son: “As I know that my son Priscillianus is at the point of death, I consider it only just and proper to bequeath to my brother Marianus, and my husband Januarius, equal shares of that portion of my estate which I have given to my son; and, in case he should die I do give and bequeath, and I desire to be delivered to them anything else, in addition, which I may leave to him.” Priscillianus lived until after the will was opened, and then died of the same disease. The question arose whether the legacy left to him would, under the terms of the trust, belong to Januarius and Marianus. The answer was that it could be held that, if the son should die of the same disease from which he was suffering at the time that the legacy would be absolutely transferred to those with respect to whom the inquiry was made.
31 Scaevola libro quarto decimo digestorum. Filio ex parte heredi instituto duos fundos cum mancipiis et instrumento omni legavit: idem uxori plura legata et servos Stichum et Damam legavit: sed cum in altero ex fundis filio praelegatis cognovisset vilicum non esse, Stichum misit et tam rei rusticae quam rationibus fundi praefecit: quaesitum est, Stichus utrum ad uxorem an ad filium pertineret. respondit, cum memor erat eorum, quae testamento cavisset, Stichum his praediis, in quae translatus est, actorem cedere nec uxorem posse Stichum ex fideicommissi causa petere. 1Matri suae heredi ex parte institutae quattuor praedia legavit et fidei eius commisit, ut ex his duo socero restitueret: deinde codicillis socero ademit fideicommissum: quaesitum est, an nihilo minus ex praelegatione ad matrem pertineret. respondi nihil proponi, cur ad matrem pertinerent. 2Seia testamento suo legavit auri pondo quinque: Titius accusavit eam, quod patrem suum mandasset interficiendum: Seia post institutam accusationem codicillos confecit nec ademit Titio privigno legatum et ante finem accusationis decessit: acta causa pronuntiatum est patrem Titii scelere Seiae non interceptum. quaero, cum codicillis legatum, quod testamento Titio dederat, non ademerit, an ab heredibus Seiae Titio debeatur. respondit secundum ea quae proponerentur non deberi. 3Filiae, quam in potestate habebat, inter cetera legavit peculium: idem post factum testamentum pecuniam a debitore filiae exegit et in suam rationem convertit: quaero, an filia eo nomine cum heredibus patris agere possit. respondit, si probaret non adimendi animo factum, agere posse.
31 The Same, Digest, Book XIV. A testator who had appointed his son heir to a part of his estate left him also two tracts of land with the slaves and all the implements belonging to the same. He also left several things to his wife, as well as the slaves Stichus and Damas. But, having ascertained that there was no steward in charge of one of the estates devised to his son, he sent Stichus, and appointed him superintendent of the cultivation of the said land, and gave him charge of the accounts relating to the same. The question arose whether Stichus would belong to his wife or his son. The answer was that, as the testator was mindful of the matters for which he was provided in his will, Stichus, as steward, would belong to the land to which he was transferred, and that the wife could not claim him under the terms of the trust. 1A certain individual bequeathed four fields to his mother, whom he had appointed heir to a portion of his estate, and charged her to deliver two of said fields to his father-in-law; and afterwards, by a codicil, he suppressed the trust which he had created for the benefit of his father-in-law. The question arose whether the said two fields would belong to the mother as a preferred legacy. I answered that there was nothing in the case stated why they should not belong to her. 2Seia, by her will, made a bequest of five pounds of gold. Titius accused her of having ordered the death of her father. After the accusation was made, Seia executed a codicil, but did not deprive her stepson Titius of the legacy previously mentioned, and she died before the accusation was heard. The case having proceeded to trial, it was decided that the father of Titius did not lose his life on account of any criminal act of Seia. As she did not by the codicil deprive Titius of the legacy which she had given him by will, I ask whether it should be paid to Titius by the heirs of Seia. The answer was that, according to the facts stated, it was not due to them. 3A certain individual, among other things, bequeathed his peculium to his daughter, who was under his control. After he had made his will, he collected money belonging to his daughter from a debtor of the latter, and used it on his own account. I ask whether the daughter can, on this ground, bring an action against her father’s heirs. The answer was that if she can prove that he did this without the intention of depriving her of the legacy, she can bring the action.
32 Venuleius libro decimo actionum. Detrahere legatis vel adicere, si nihil praeter pecuniam numeratam legatum sit, promptum est: cum vero res corporales intervenient, et scriptura difficilior fit et obscura portio. 1Cum libertas adimitur, legata servis relicta nihil attinet adimi.
32 Venuleius, Actions, Book X. It is easy to take anything from, or add anything to a legacy, where only a sum of money was bequeathed, but where certain corporeal property is concerned, it is more difficult to express this in writing, and the division is likely to be unintelligible. 1Where the freedom bequeathed to slaves is taken away from them, nothing is gained by specifically depriving them of their legacies.