De rebus dubiis
(Concerning doubtful matters.)
1 Papinianus libro septimo responsorum. Fundum Maevianum aut Seianum Titio legaverat, cum universa possessio plurium praediorum sub appellatione fundi Maeviani rationibus demonstraretur. respondi non videri cetera praedia legato voluisse defunctum cedere, si fundi Seiani pretium a fundi Maeviani pretio non magna pecunia distingueretur.
1 Papinianus, Opinions, Book VII. A testator left the Mævian, or the Seian Estate to Titius. As several tracts of land were mentioned in the records under the name of the Mævian Estate, I answered that it did not appear that the deceased intended all of said tracts to be included in the devise, provided the value of the Seian Estate did not greatly differ from that of the Mævian Estate.
2 Idem libro nono responsorum. Civibus civitatis legatum vel fideicommissum datum civitati relictum videtur.
2 The Same, Opinions, Book IX. Where a legacy is bequeathed to or a trust is created for the benefit of the citizens of a town, it is considered to have been left to the town.
3 Paulus libro quarto decimo quaestionum. In ambiguo sermone non utrumque dicimus, sed id dumtaxat quod volumus: itaque qui aliud dicit quam vult, neque id dicit quod vox significat, quia non vult, neque id quod vult, quia id non loquitur.
3 Paulus, Questions, Book XIV. Where a sentence is ambiguous, we cannot interpret it both ways, but only according to the intention of the testator. Therefore, where anyone said something that he did not intend to say, he did not say what the words mean, because this was not his intention; nor did he say what he intended, because he did not make use of language suitable for that purpose.
4 Idem libro nono decimo responsorum. Paulus respondit: cum nomen fideicommissarii testamento adscriptum non sit, nulli personae neque certae neque incertae datum fideicommissum videri indubitatum est.
4 The Same, Opinions, Book XIX. Paulus also gave it as his opinion that, where the name of the beneficiary of a trust is not inserted in the will, there is no doubt whatever that no person, either certain or uncertain, is entitled to the benefit of the trust.
5 Gaius libro primo fideicommissorum. Quidam relegatus facto testamento post heredis institutionem et post legata quibusdam data ita subiecit: ‘si quis ex heredibus ceterisve amicis, quorum hoc testamento mentionem habui, sive quis alius restitutionem mihi impetraverit ab imperatore et ante decessero, quam ei gratias agerem: volo dari ei qui id egerit a ceteris heredibus aureos tot’. unus ex his, quos heredes scripserat, impetravit ei restitutionem et antequam id sciret, decessit. cum de fideicommisso quaereretur, an deberetur, consultus Iulianus respondit deberi: sed etiam si non heres vel legatarius, sed alius ex amicis curavit eum restitui, et ei fideicommissum praestari. 1Si tibi et postumo suo vel alieno hereditatem restituere quis rogaverit.
5 Gaius, Trusts, Book I. A certain individual, having been sent into exile, made a will, and after appointing an heir and making bequests to several persons added the following: “If any one of my heirs or other friends whom I have mentioned in this my will, or anyone else, should obtain my recall from the Emperor, and I should die before I can manifest my gratitude to him, I wish such-and-such a sum of money to be given by my other heirs to him who does this.” One of the heirs whom he had appointed obtained his recall, but before the testator knew it he died. The question arose as to the execution of the trust. Julianus, having been consulted, gave it as his opinion that the trust should be executed; and even if the party who obtained the recall of the testator was neither his heir nor legatee, but one of his friends, that the latter was entitled to the benefit of the trust. 1If anyone should charge you to deliver his estate to his posthumous heir, or a stranger;
6 Maecianus libro tertio fideicommissorum. Vel ex parte te et ex parte postumum heredem instituisset legatumve similiter vel fideicommissum dedisset,
6 Marcianus, Trusts, Book III. Or if he should appoint you his heir along with his posthumous child, or should bequeath legacies to both of you, or make you the beneficiaries of a trust;
7 Gaius libro primo fideicommissorum. utrum ita postumus partem faciat, si natus sit, an et si natus non sit, quaeritur. ego commodius dici puto, si quidem natus non est, minime eum partem facere, sed totum ad te pertinere, quasi ab initio tibi solido relicto: sin autem natus fuerit, utrosque accipere quantum cuique relictum est, ut uno nato pars tibi dimidia debeatur, duobus natis tertia tibi debeatur, tribus natis, quia trigemini quoque nascuntur, quarta debeatur. et nostra quidem aetate Serapias Alexandrina mulier ad divum Hadrianum perducta est cum quinque liberis, quos uno fetu enixa est. sed tamen quod ultra tres nascitur, fere portentosum videtur. 1Cum quidam pluribus heredibus institutis unius fidei commississet, ut, cum moreretur, uni ex coheredibus, cui ipse vellet, restitueret eam partem hereditatis, quae ad eum pervenisset: verissimum est utile esse fideicommissum: nec enim in arbitrio eius qui rogatus est positum est, an omnino velit restituere, sed cui potius restituat: plurimum enim interest, utrum in potestate eius, quem testator obligari cogitat, faciat, si velit dare, an post necessitatem dandi solius distribuendi liberum arbitrium concedat. 2Quaesitum est, si coheredes ex disparibus partibus scripti sunt, utrum partem suam in viriles partes restituere singulis debeat an pro portionibus hereditariis, ex quibus heredes scripti sint. et placuit, si testator ita restitui iussisset partem, si aliquam pecuniam dedissent, si quidem aequas partes iussi fuerint dare, conveniens videri esse etiam ex fideicommisso aequas partes eis restitui oportere: si vero dispares in ea pecunia distribuenda significavit testator, ut videantur hereditariis portionibus congruere, consentaneum esse etiam fideicommissum pro hereditariis partibus eis restitui debere.
7 Gaius, Trusts, Book I. It is asked if the posthumous child, whether he was born or not, could prevent you from profiting by your share of the estate. I think it is more proper to hold that if the posthumous child should not be born, he will not enable you to share in the estate, but the whole of it will belong to you, just as if it had been entirely left to you in the first place; but if he should be born, both of you will be entitled to what was left to each, and if one child is born, you will be entitled to half the estate; if two are born, you will be entitled to a third; and if three children are brought forth at once (for triplets are also born), you will be entitled to a fourth of the estate. And, even in our time, Serapias, an Alexandrian woman, was presented to the Divine Hadrian with her five children, whom she had had at a single birth. Where, however, more than three children come into the world at the same time, the event is considered a prodigy. 1Where a certain man, after having appointed several heirs, charged one of them under a trust to deliver the share of the estate which might come into his hands to any one of his co-heirs whom he might select at the time of his death, it is absolutely certain that this trust is a valid one; as it is not left to the discretion of the heir of whom the request was made, whether he should deliver the property at all, but to whom he prefers to deliver it. For it makes a great deal of difference whether the testator places it in the power of the trustee whom he desires to deliver, or not to deliver certain property, or whether, after having imposed upon him the necessity of delivering it, he grants him alone the unrestricted choice of distribution. 2Where co-heirs are appointed to unequal shares of an estate, the question arose whether the heir should be required to give each one equal shares, or only shares in proportion to those to which they are appointed heirs. It was decided that if the testator directed one of his heirs to give up his share to his co-heirs, if they paid him a certain sum of money, to which they were directed to contribute equally; it would seem to be just that equal portions of the property should be given to them by virtue of the trust. If, however, in the distribution of said money, the testator intended that they should contribute unequal shares, in order that they might correspond with the shares of the estate to which they were entitled, it would appear to be reasonable that, under the terms of the trust, the property should be delivered to them in proportion to their respective shares of the estate.
8 Paulus libro secundo sententiarum. Si inter virum et uxorem donatio facta fuerit, priore defuncto cui donatum est ad eum res redit qui donaverat: quod si simul tam is cui donatum est quam is qui donaverit, quaestionis decidendae gratia magis placuit valere donationem, eo maxime, quod donator non supervivat, qui rem condicere possit.
8 Paulus, Sentences, Book II. Where a donation is made between husband and wife, and the one to whom it was made dies before the other, the property reverts to the one who gave it. If both parties should die at the same time, in order to decide the question, it was held that the donation was valid, and that this was especially the case, because the donor who could claim the property did not survive.
9 Tryphoninus libro vicesimo primo disputationum. Qui duos impuberes filios habebat, ei qui supremus moritur Titium substituit: duo impuberes simul in nave perierunt: quaesitum est, an substituto et cuius hereditas deferatur. dixi, si ordine vita decessissent, priori mortuo frater ab intestato heres erit, posteriori substitutus: in ea tamen hereditate etiam ante defuncti filii habebit hereditatem. in proposita autem quaestione ubi simul perierunt, quia, cum neutri frater superstes fuit, quasi utrique ultimi decessisse sibi videantur? an vero neutri, quia comparatio posterioris decedentis ex facto prioris mortui sumitur? sed superior sententia magis admittenda est, ut utrique heres sit: nam et qui unicum filium habet, si supremum morienti substituit, non videtur inutiliter substituisse: et proximus adgnatus intellegitur etiam qui solus est quique neminem antecedit: et hic utrique, quia neutri eorum alter superstes fuit, ultimi primique obierunt. 1Cum bello pater cum filio perisset materque filii quasi postea mortui bona vindicaret, adgnati vero patris, quasi filius ante perisset, divus Hadrianus credidit patrem prius mortuum. 2Si cum filio suo libertus simul perierit intestati, patrono legitima defertur hereditas, si non probatur supervixisse patri filius: hoc enim reverentia patronatus suggerente dicimus. 3Si maritus et uxor simul perierint, stipulatio de dote ex capitulo ‘si in matrimonio mulier decessisset’ habebit locum, si non probatur illa superstes viro fuisse. 4Si Lucius Titius cum filio pubere, quem solum testamento scriptum heredem habebat, perierit, intellegitur supervixisse filius patri et ex testamento heres fuisse, et filii hereditas successoribus eius defertur, nisi contrarium approbetur. quod si impubes cum patre filius perierit, creditur pater supervixisse, nisi et hic contrarium approbetur.
9 Tryphoninus, Disputations, Book XXI. A testator, who had two minor children, substituted Titius for the one who might die first. Both of them perished at the same time in a shipwreck. The question arose whether the estate would pass to the substitute, and to which one of the two minors he was to be considered the heir. I said that if the brothers had died in the ordinary course of nature, the brother of the one that died first would become his heir ab intestato, and the substitute would succeed to the second one; nevertheless, he would be entitled to the estate of the one that died first, as it was included in that of the other. In the question proposed, however, where both of them perished at once, and as neither brother survived the other, should it be held that both of them died last, or that neither of them died last, because the decision as to which died last was dependent upon the fact that one of them died first? The former opinion, however, namely, that the substitute is the heir of both the minors, should prevail. For where a testator, who has only one son, appoints a substitute for the one that dies last, he is not considered to have made an invalid substitution; just as the next of kin is understood where there is but one who does not precede anyone else, and in this instance, as neither one of the brothers survived the other, both of them are considered to have died first and last. 1Where a son and his father lost their lives in war, and the mother claimed the estate of her son on the ground of his having died last, and the relatives of her father declared that the son died first, the Divine Hadrian decided that the father died first. 2If a freedman should die at the same time as his son, the estate passes by operation of law to the patron of the intestate freedman, unless it is proved that the son survived his father. We hold that this is the case on account of the respect attaching to the right of patronage. 3Where a husband and a wife die at the same time, and a stipulation with reference to the dowry was entered into providing that it should belong to the husband, if the woman died during marriage, this will take effect, if it is not proved that she survived her husband. 4If Lucius Titius should lose his life at the same time as his son who had reached the age of puberty, and whom he had appointed his sole heir by his will, the son is understood to have survived the father, and will be his heir under the will, and the estate of the son will pass to the successors of the latter, unless the contrary can be proved by the heirs of the father. If, however, the son, who perished with the father, had not reached the age of puberty, it is held that his father survived him, unless the contrary can be proved.
10 Ulpianus libro sexto disputationum. Si fuerit legatum relictum ex cognatis meis qui primus Capitolium ascenderit, si simul duo venisse dicantur nec apparet, quis prior venerit, an impedietur legatum? vel ei qui monumentum fecerit, et plures fecerint? vel ei qui maximus natu est, et duo pares aetate sint? sed et si legatum Sempronio amico fuerit relictum, et duo sint aequa caritate coniuncti? sed et si duobus hominibus eiusdem nominis fuerit legatum, puta Semproniis, mox Sempronio ademptum sit nec appareat, cui ademptum sit: utrum datio in utriusque persona infringitur an ademptio nulla est, quaeri potest. item si ex pluribus servis eiusdem nominis uni vel quibusdam libertas relicta est. et verius est in his omnibus etiam legata et libertates impediri, ademptionem autem in utrumque valere. 1Plane si ita libertatem acceperit ancilla: ‘si primum marem pepererit, libera esto’ et haec uno utero marem et feminam peperisset: si quidem certum est, quid prius edidisset, non [ed. maior debet] <ed. minor decet> de ipsius statu ambigi, utrum libera esset nec ne, sed nec filiae: nam si postea edita est, erit ingenua. sin autem hoc incertum est nec potest nec per suptilitatem iudicialem manifestari, in ambiguis rebus humaniorem sententiam sequi oportet, ut tam ipsa libertatem consequatur quam filia eius ingenuitatem, quasi per praesumptionem priore masculo edito.
10 Ulpianus, Disputations, Book VI. Where a legacy was left to the one of my relatives who may first ascend to the Capitol, and two of them are said to have done so at the same time, and it is not apparent which one arrived first, will the legacy be prevented from taking effect? Or, it may be asked, what is the rule if the testator made a bequest “to the one who should erect a monument to him,” and several of them erect one; or if a bequest is made to one who is the older of two persons, and both of them are of the same age; or where a legacy is bequeathed by the testator to his friend Sempronius, and there are two persons of the same name held in equal esteem? But if a legacy is bequeathed to two men of the same name, for instance, to two called Sempronius, and one of them is afterwards deprived of the legacy, and it does not appear which one was meant; will the legacy be extinguished, so far as both parties are concerned, or will its revocation be void? This question may also arise where freedom is left to several slaves of the same name, or to certain ones among them. The better opinion is that, in all these cases, the legacies and the grants of freedom should take effect, but where a revocation takes place it affects all the parties. 1It is clear that if a female slave should receive her freedom under the following provision, “Let her be free, if the first child she bears is a male,” and she brings forth a male and a female child at a single birth, and it is certain which one was born first, there should be no doubt with reference to her condition; that is to say, whether she will be free or not; nor should there be any doubt so far as that of the girl is concerned, for if she was born after the boy, she will be freeborn. If, however, there is any uncertainty in this respect, and it cannot be removed by judicial investigation, where matters are doubtful it is better to adopt the more equitable opinion, and to presume that the male child was born first, so that the slave may obtain her freedom and her daughter be freeborn.
11 Iulianus libro trigesimo sexto digestorum. Quotiens libertis usus fructus legatur et ei, qui novissimus supervixerit, proprietas, utile est legatum: existimo enim omnibus libertis proprietatem sub hac condicione ‘si novissimus supervixerit’ dari.
11 Julianus, Digest, Book XXXVI. Whenever an usufruct is bequeathed to freedmen, and the ownership of the property to the last survivor, the bequest is valid, for I think that, in this instance, the property is left under the following condition: “If he should be the last survivor.”
12 Idem libro quinquagesimo digestorum. Quotiens in actionibus aut in exceptionibus ambigua oratio est, commodissimum est id accipi, quo res de qua agitur magis valeat quam pereat.
12 The Same, Digest, Book V. Whenever there is any ambiguous clause in the phraseology of an action or an exception, it is most convenient to understand it in such a way that the property to which it relates shall rather be preserved than be lost.
13 Idem libro singulari de ambiguitatibus. Si is qui ducenta deposuit ita leget: ‘Seio cum ducentis quae apud eum deposui trecenta lego’, singulae summae separate quidem certam habent demonstrationem, coniunctione vero tali incidunt in ambiguitatem. sed dicendum est non trecenta, sed quingenta deberi, quia duae summae iunguntur. 1Si quis leget: ‘fundum Seianum heres meus Attio cum Dione Maevii servo dato’, dubitatur quidem, Dioni quoque fundus legatus sit an Dio cum fundo legatus sit. sed magis dicendum est non solum fundum, sed etiam servum Dionem esse legatum, maxime si nullas iustas causas habuit Dioni legandi. 2Cum ita stipulationem concipimus: ‘si hominem aut fundum non dederis, centum dari spondes?’ utrumque est faciendum, ne stipulatio committatur, id est sive alterum sive neutrum factum sit, tenebit stipulatio. idemque est evidenter, cum propositis specialiter pluribus rebus, quas fieri volumus, ita stipulamur: ‘si quid eorum factum non erit’: veluti ‘Stichum et Damam et Erotem sisti? si quis eorum non steterit, decem dari?’ necesse est enim omnes esse sistendos, ut stipulationi satisfiat. vel ut propius accedamus, fingamus ita stipulationem factam: ‘si Stichum et Damam et Erotem non sisteris, decem dari?’ neque enim dubitabimus, quin aeque omnes sisti oporteat. 3Utrum ita concipias stipulationem ‘si illud aut illud factum non erit’ an hoc modo ‘si quid eorum factum non erit, quae ut fierent, comprehensa sunt’, hoc interest, quod, quamvis altero facto verum sit hoc aut illud vere factum esse, non ideo tamen verum erit hoc aut illud factum non esse. nam simul ea possunt esse vera, quamvis inter se contraria sunt, quia cum significatio non ex universo, sed ex aliquo sumitur, si veri aliquid inde sit, veram efficit totam orationem: sicut e contrario duae orationes pugnantia continentes simul falsae sunt, veluti si qui liberorum partim puberes, partim impuberes decesserint, nam et hoc falsum erit omnes impuberes decessisse et illud omnes puberes decessisse. id accidit, quia significatio sumitur ex universo, in quo si aliquid falsum est, totam orationem falsam efficit. animadvertendum igitur est, quid sit, de quo quaeritur. nam cum ita concipio ‘si illud aut illud non fuerit’, quaeri debet, an aliquid factum non sit: illius effectus hic est, ut neutrum fiat, huius autem, ut utrumque fiat: nec in illo prodest aliquid non fecisse, si aliquid factum sit, neque in hoc aliquid fecisse, si aliquid factum non sit. 4Proinde si quis ita interroget: ‘eorum quid, quae obiciuntur tibi, fecisti?’ ille neget, hoc exprimat: ‘eorum quid, quae obiciuntur, non feci’, id est ‘nihil horum feci’. 5Si quis autem plura in stipulatum deducat, quorum unum fieri velit, ita comprehendere debet: ‘illud aut illud fieri spondes? si nihil eorum factum erit, tantum dabis?’ 6Item si pater familias in testamento ita scripserit: ‘si quis mihi filius aut filia genitur, heres mihi esto: si mihi filius aut filia heres non erit, Seius heres esto’, non satis voluntatem suam declaravit, si non aliter extraneum heredem esse volet, quam si neque filius neque filia heres sit: hoc enim modo concipi oportet: ‘si mihi neque filius neque filia heres erit’. potest autem interdum superior scriptura esse necessaria, si quis, cum filium et filiam habeat, utrumque heredem instituere velit, sed sive alter heres futurus sit, extraneum miscere, sive neuter, extraneum substituere. sed proclivior est sententia testatoris sic esse interpretanda, ut, sive filius sive filia nati ei fuerint, extraneus non admittatur, nisi specialiter hoc testator expresserit.
13 The Same, On Ambiguities. Where a man who had deposited two hundred aurei made the following bequest, “I leave to Seius three hundred aurei, in addition to the two hundred which I have deposited with him,” these two sums, taken separately, have a certain designation, but where they are taken together, they give rise to ambiguity. It must, however, be held that not three hundred, but five hundred aurei are due, because the two sums are united. 1Where anyone makes a bequest as follows, “Let my heir give to Attius, together with Dion, the slave of Mævius, the Seian estate,” there is some doubt as to whether the land was also left to Dion, or whether Dion was bequeathed along with the land. It is better to hold that not only the land, but also the slave Dion was left, and especially if the testator had no good reason to bequeath a legacy to Dion. 2Where we frame a stipulation as follows: “If you do not furnish such-and-such a slave, or such-and-such a tract of land, do you promise to pay a hundred aurei?” The penalty will be due, whether the stipulation is carried out or not; that is to say, the stipulation will be binding, whether neither one nor the other act is performed. It is evident that the same rule will apply where several things which we desire to be done are specifically mentioned, and we stipulate as follows, “If either of these things is not done,” or, for example, “Do you agree to appear for Stichus, Damus, and Eros in court? If one of them is not represented, do you promise to pay ten aurei?“ It is necessary for the party to appear for all of them, in order that the terms of the stipulation may be complied with. Or that the case may be more clearly stated, let us suppose the stipulation to be worded as follows: “Do you promise to pay ten aurei if you do not appear for Stichus, Damus, and Eros?” For we can have no doubt in this instance that all of them must be represented. 3There is a difference between the two following stipulations: “You will pay So-and-So so much if such-and-such a thing, or such-and-such a thing is not done,” or, “If either of the things which it has been agreed should be done, is not done, you will pay such-and-such a sum,” for while it is true that one or the other other is to be done, it is not, for this reason, true that one or the other of the two things is not to be done, for both of these propositions may be true, although they are opposed to one another; because when the meaning is not general, but has reference to some specific matter, if any of it is true it renders the whole clause true. Just as, on the other hand, two clauses containing statements which are opposite are both false at the same time; for instance, where some children of a testator die after reaching puberty, and others die before reaching that age, since on the one hand it is incorrect to say that all of them died under the age of puberty, and, on the other, it is also incorrect to say that they all died after that age. This results because the meaning is taken in a general sense, and in this case, if anything is false, it renders the entire clause untrue. Therefore it should be ascertained what the subject of the inquiry is, for if I should say such-and-such a thing, or such-and-such a thing should not be done, it ought to be asked if anything has not been done? The effect of the former proposition is that neither of the things should be done; that of the latter that they both should be done. In the former instance, it will be of no advantage to the person not to have done one of the two things, if he did the other; and in the latter, it will not benefit him if he proves that he has done one of the two things, if he did not do the other. 4Hence, if anyone should put the following interrogatory: “Did you do any of those things with which you are charged?” and the party says he did not, he means to say, “I did not do any of those things with which I am charged,” that is, “I did none of them.” 5Where anyone inserts several things in a stipulation, one of which he desires to be done, he should frame the stipulation as follows: “Do you promise that such-and-such a thing, or such-and-such a thing shall be done, and if neither of them is done, will you pay such-and-such a sum?” 6Moreover, if the head of a household should insert the following in his will, “If a son or a daughter is born to me, let him or her be my heir; but if neither a son nor a daughter should become my heir, let Seius be my heir,” he does not declare his purpose clearly enough if he intended to appoint a foreign heir, only in case neither his son nor his daughter should become his heir; for this should be expressed as follows: “If neither my son nor my daughter should become my heir.” Sometimes, however, the former clause becomes necessary; as, for example, where anyone who has a son and a daughter desires to make both of them his heirs, and if only one of them should become his heir, to appoint a stranger with him or her, or if neither should become his heir, to substitute a stranger. That opinion, however, should be adopted which seems rather to correspond with the intention of the testator, so that if either a son or a daughter should be born to him, a stranger shall not be admitted to the succession, unless the testator expressly stated that this must be done.
14 Marcianus libro sexto institutionum. Si quis ita scripserit: ‘illis, qui testamentum meum signaverint, heres meus decem dato’, Trebatius utile legatum esse putat: quod Pomponius verius esse existimat, quia ipsum testamentum confirmatur testibus adhibitis, quod verum esse existimo.
14 Marcianus, Institutes, Book VI. If anyone should make the following provision in his will, “Let my heir pays ten solidi to the witnesses who sealed my will,” Trebatius holds that the legacy is valid. Pomponius also considers this to be true, because the will itself is confirmed by the production of the witnesses. This opinion I think to be correct.
15 Idem libro secundo regularum. Quaedam sunt, in quibus res dubia est, sed ex post facto retro ducitur et apparet, quid actum est. ut ecce si res legata fuerit et deliberante legatario eam rem heres alii tradiderit: nam si quidem voluerit legatarius habere legatum, traditio nulla est, si vero repudiaverit, valet. tantundem est et si pecuniam hereditariam legatam crediderit heres: nam si quidem non repudiaverit legatarius, alienam pecuniam credidit, si vero repudiaverit, suam pecuniam credidisse videtur. quid ergo, si consumpta fuerit pecunia? utique idem erit ex eventu dicendum.
15 The Same, Rules, Book II. There are certain matters in which at first it is difficult to arrive at a conclusion, but in the end what has been done appears to be clear; as, for instance, where a bequest has been made, and, while the legatee is deliberating as to whether he will accept it or not, the heir transfers the property in question to a third party. In this instance the transfer will be void if the legatee should decide to accept the legacy; but if he should reject it, the transfer will be valid. The case would be the same if the heir should loan money belonging to the estate which was bequeathed; for if the legatee did not reject it, it would be held that the heir had loaned money belonging to someone else, but if the legatee rejected the estate he would be held to have lent his own money. But what if the money was expended? The same rule would apply, in accordance with the circumstances of the case.
16 Idem libro tertio regularum. Quod de pariter mortuis tractamus, et in aliis agitatum est. ut ecce si mater stipulata est dotem a marito mortua filia in matrimonio sibi reddi et simul cum filia perit, an ad heredem matris actio ex stipulatu competere? et divus Pius rescripsit non esse commissam stipulationem, quia mater filiae non supervixit. 1Item quaeritur, si extraneus, qui dotem stipulatus est, simul cum marito decesserit vel cum ea, propter quam stipulatus esset, an ad heredem suum actionem transmittat.
16 The Same, Rules, Book III. When we consider the case of persons dying at the same time, as well as the discussion of other matters; for example, where a mother stipulated that the dowry of her daughter should be returned to her by the husband, if her daughter should die during marriage, and the mother died at the same time as her daughter, the question arises whether an action based on the stipulation would lie in favor of the heir of the mother. The Divine Pius stated in a Rescript that the stipulation would not allow such an action to be brought, because the mother did not survive the daughter. 1The question was also asked if a stranger who stipulated for the return of a dowry should die at the same time as the husband, or at the same time as the wife on whose account he entered into the stipulation, could he transfer the right of action to his heir?
17 Paulus libro duodecimo ad Plautium. Idem est, si dos uxori praelegata sit et simul cum marito perierit.
17 Paulus, On Plautius, Book XII. The same rule applies where a dowry is left as a preferred legacy to a wife, and she dies at the same time as her husband.
18 Marcianus libro tertio regularum. Sed et in illo quaeritur, si pariter pupillus et qui ei substitutus erat frater necessarius decesserit, an frater fratri exsistat heres an contra: vel si duo invicem necessarii substituti sunt et una perierint, an heredes exstitisse videantur: vel alter alteri (hoc est si invicem) hereditatem rogati fuerint restituere. in quibus casibus si pariter decesserint nec appareat, quis ante spiritum emisit, non videtur alter alteri supervixisse. 1Sed et circa legem Falcidiam, si dominus cum servis simul vita functus sit, servi, quasi in bonis eius mortis tempore fuerint, non computantur.
18 Marcianus, Rules, Book III. In the following instance, where a minor and his brother, who was his necessary heir, and was substituted for him, died at the same time, the question arises whether the brother would be the heir to his brother or not. Moreover, where two necessary heirs have been substituted for one another, and they perished together, will both be considered as the heirs of the testator, or will one of them be the heir of the other, that is to say, if they had been asked to deliver the estate to one another at the time of their death? In cases of this kind, if they should die at the same time, and it does not appear which of them was the first to lose his life, one of them will not be considered to have survived the other. 1However, with reference to the Falcidian Law, if a master dies at the same time as his slaves, the latter will not be reckoned as forming part of his estate at the time of his death.
19 Ulpianus libro vicesimo quinto ad Sabinum. Si cognatis legatum sit et hi cognati quidem esse desierunt, in civitate autem maneant, dicendum deberi legatum: cognati enim testamenti facti tempore fuerunt. certe si quis testamenti facti tempore cognatus non fuit, mortis tempore factus est per adrogationem, facilius legatum consequitur. 1Si quis cognationi leget, idem est atque si cognatis legasset.
19 Ulpianus, On Sabinus, Book XXV. Where a legacy is bequeathed to relatives, and the said relatives have forfeited their rights as such, but still remain citizens, it must be said that they are entitled to the legacy, for they were members of the family at the time when the will was executed. It is certain that if anyone was not a member of the family when the will was made, but became one through arrogation, at the time of the death of the testator, he will, still more, be entitled to the legacy. 1If anyone should make a bequest to his kindred, it is the same as if he had made it to his relatives.
20 Paulus libro duodecimo ad Plautium. Cum senatus temporibus divi Marci permiserit collegiis legare, nulla dubitatio est, quod, si corpori cui licet coire legatum sit, debeatur: cui autem non licet si legetur, non valebit, nisi singulis legetur: hi enim non quasi collegium, sed quasi certi homines admittentur ad legatum.
20 Paulus, On Plautius, Book XII. As the Senate, in the time of the Divine Marcus, permitted bequests to be made to corporations, there is no doubt that if a bequest is made to a body which has a legal right to assemble, the latter will be entitled to it. However, a legacy left to one which has no right to assemble will not be valid, unless it is specially left to the members composing the same, for the latter will then be permittted to receive the legacy, not as an association, but as separate individuals.
21 Idem libro quarto decimo ad Plautium. Ubi est verborum ambiguitas, valet quod acti est, veluti cum Stichum stipuler et sint plures Stichi, vel hominem, vel Carthagini, cum sint duae Carthagines. 1Semper in dubiis id agendum est, ut quam tutissimo loco res sit bona fide contracta, nisi cum aperte contra leges scriptum est.
21 The Same, On Plautius, Book XIV. Where any ambiguity of language exists, the validity of a transaction will depend upon the intention of the parties; for instance, if I should stipulate for Stichus, and there are several slaves of that name; or for a slave in general; or for something to be delivered at Carthage, and there are two cities so called; 1and in every instance where doubt arises, it must be considered that the contract was made in good faith to be carried out in the place where it was most convenient, unless it is clear that it has been drawn up contrary to law.
22 Iavolenus libro quinto ex Cassio. Cum pubere filio mater naufragio periit: cum explorari non possit, uter prior exstinctus sit, humanius est credere filium diutius vixisse.
22 Javolenus, On Cassius, Book V. A mother lost her life in a shipwreck at the same time as her son who had reached the age of puberty. If it cannot be ascertained which of them died first, it is more natural to suppose that the son lived the longer.
23 Gaius libro quinto ad legem Iuliam et Papiam. Si mulier cum filio impubere naufragio periit, priorem filium necatum esse intellegitur.
23 Gaius, On the Lex Julia et Papia, Book V. Where a woman perishes in a shipwreck, at the same time with her son who is under the age of puberty, the son is understood to have lost his life first.
24 Marcellus libro undecimo digestorum. Cum in testamento ambigue aut etiam perperam scriptum est, benigne interpretari et secundum id, quod credibile est cogitatum, credendum est.
24 Marcellus, Digest, Book XI. It has been decided that where any statement, which is ambiguous, or even incorrect, is made in a will, it should be interpreted favorably, and in accordance with what is supposed to have been the intention of the testator.
25 Celsus libro vicesimo secundo digestorum. ‘Quem heredi meo dixero velle me liberum esse, liber esto. cui ut dare damnas sit heres meus, dixero, ei heres meus dare damnas esto’. testatoris voluntas, si quibusdam argumentis apparebit, de quo dixit, adimplenda est.
25 Celsus, Digest, Book XXII. “Let him be liberated whom I may tell my heir I desire shall be given his freedom, and let my heir be charged to give such-and-such a sum to him whom I shall designate.” The wishes of the testator should be carried out, if the identity of the slave whom he had in his mind can be established in any way.
26 Idem libro vicesimo sexto digestorum. Cum quaeritur in stipulatione, quid acti sit, ambiguitas contra stipulatorem est.
26 The Same, Digest, Book XXVI. Where any question arises as to the intention of the parties in a stipulation, the ambiguity should be interpreted against the stipulator.
27 Modestinus libro primo regularum. Si quis de pluribus unum manumitti voluerit nec appareat, de quo manumittendo testator sensit, nulli eorum fideicommissa competit libertas.
27 Modestinus, Rules, Book I. Where a man desired one of his slaves to be manumitted, and it does not appear which one the testator intended to be liberated, none of them will be entitled to freedom under the terms of the trust.
28 Iavolenus libro tertio ex posterioribus Labeonis. Qui habebat Flaccum fullonem et Philonicum pistorem, uxori Flaccum pistorem legaverat: qui eorum et num uterque deberetur? placuit primo eum legatum esse, quem testator legare sensisset. quod si non appareret, primum inspiciendum esse, an nomina servorum dominus nota habuisset: quod si habuisset, eum deberi, qui nominatus esset, tametsi in artificio erratum esset. sin autem ignota nomina servorum essent, pistorem legatum videri perinde ac si nomen ei adiectum non esset.
28 Javolenus, On the Last Works of Labeo, Book III. A certain individual that owned the slave Flaccus, who was a fuller, and Philonicus, who was a baker, left to his wife the baker Flaccus; and the question arose which of the slaves was due, and whether both of them were not included in the legacy. It was held, in the first place, that that slave was bequeathed whom the testator intended should form part of the legacy. If this could not be ascertained, an investigation should then be made to learn whether the master knew the names of his slaves. If this was the case, the slave would then be due whom he mentioned by name, even if he had made a mistake with reference to his trade. Where, however, the names of the slaves were unknown to him, the baker should be considered to be the subject of the legacy, just as if his name had not been mentioned.
29 Scaevola libro octavo decimo digestorum. Plures testamento manumiserat, in quibus Sabinam et Cyprogeniam, cum quisque eorum ad trigesimum annum aetatis pervenisset et cum liber quisque eorum esset, certam summam dari voluerat. et coniuncta scriptura ita caverat: ‘Sabinae et Cyprogeniae dari volo, cum ad statutam aetatem pervenerint, singulis decem et hoc amplius alimentorum nomine in annos singulos quoad vivent singulis decem’. quaesitum est, utrum omnibus manumissis alimenta debeantur an vero Sabinae et Cyprogeniae solis. respondit secundum ea quae proponerentur videri omnibus alimenta legata.
29 Scævola, Digest, Book XVIII. A testator manumitted several slaves by his will, and among them Sabina and Cyprogenia, when each of them had reached the age of thirty years, and as soon as they became free, he desired a certain sum of money to be given to them; and he made the following provision, in which both slaves were included: “I wish ten aurei to be given to Sabina and Cyprogenia, each, when they arrive at the age above mentioned, and, in addition to this, I desire ten aurei to be paid to each of them every year, for their support, as long as they live.” The question arose whether support should be furnished to all the slaves manumitted, or only to Sabina and Cyprogenia. The answer was that, according to the facts stated, support seemed to have been bequeathed to all of them.