1Ulpianus, Trusts, Book III. Ad Dig. 36,1,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 14.After having discussed matters relating to trusts of different kinds of property, let us now pass to the interpretation of the Trebellian Decree of the Senate. 1This Decree of the Senate was enacted in the time of Nero, on the eighth of the Kalends of September, during the Consulate of Anneus Seneca and Trebellius Maximus. 2The words of the Decree are as follows: “As it is perfectly just that, with reference to all trusts involving estates where anything is to be paid out of property, recourse should be had to those to whom the rights and profits of the estate are transferred, rather than that the heirs should incur any risk on account of the faith reposed in them, it is hereby decreed that actions which are usually granted for and against the heirs shall not be allowed where the latter have transferred the property under the terms of a trust, as they were charged to do; but that in these instances actions shall be granted for and against those to whom the property has been transferred under the trust created by the will, in order that the last wishes of deceased persons may be more thoroughly executed, so far as the remainder of the estate is concerned.” 3By this Decree of the Senate, the doubts of those who have determined to refuse to accept the estate, either through apprehension of litigation or on account of fear are removed. 4But, although the Senate intended to come to the relief of heirs, it also comes to the relief of the beneficiary of the trust. For it is granted to the heirs, since they can avail themselves of an exception if suit is brought against them; and if the heirs bring suit they can be barred by an exception which the beneficiaries of the trust have a right to avail themselves of, hence there is no doubt that their interests have likewise been consulted. 5This Decree of the Senate applies whether anyone who is either a testamentary heir, or the heir-at-law, was charged to transfer the estate. 6It also applies to the case of the will of a soldier who is under paternal control, and who has the right to dispose of his castrense peculium or his quasi castrense peculium. 7The possessors of property under the Prætorian Law, or any other successors, can transfer an estate by virtue of the Trebellian Decree of the Senate. 8The question arises whether he to whom an estate has been transferred by the terms of a trust under the Trebellian Decree of the Senate can himself assign his rights of action by the same Decree of the Senate, where he has been charged to transfer the estate. Julianus says that he also can assign his rights of action. This opinion Marcianus also approves, and we ourselves adopt it. 9Where, however, anyone has been charged to transfer an estate to two persons, to one of them absolutely or within a certain time, and to the other under a condition, and he alleges that the estate is probably insolvent, the Senate decreed that the entire estate should be transferred to the party to whom the heir was asked to transfer it absolutely, or within a certain time. If, however, the condition should be fulfilled, and the other beneficiary should desire to accept his share, the rights of action will pass to him by operation of law. 10Where a son or a slave is appointed an heir, and is charged to transfer the estate, and the master or father should transfer it, the rights of action will pass to the beneficiary of the trust, by virtue of the Trebellian Decree of the Senate. This will be the case even if the parties are charged to transfer the property in their own names. 11The same rule applies where a father is charged to transfer the estate by the son himself. 12Where the guardian or curator of a minor or an insane person is charged to transfer an estate, the Trebellian Decree of the Senate will undoubtedly apply. 13Where a minor was charged to transfer the estate to the guardian himself, the question arose whether he could do so by the authority of his guardian. It was decided by the Divine Severus that he could not transfer the estate to his guardian by the authority of the latter, because no one can act as judge in his own case. 14Still, the estate of a minor can be transferred by him to his curator, as the authority of the latter is not necessary to render the transfer legal. 15Ad Dig. 36,1,1,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 58, Note 4.Moreover, where an association or a corporate body is charged to transfer an estate, the transfer will be valid where it is made to each of the different members individually, by the vote of those who belong to said association or corporate body; for, in this instance, each one of them is considered to have made the transfer to himself. 16Where the heir is asked to transfer the estate, after having reserved a tract of land for himself, he can do so under the Trebellian Decree of the Senate; nor does it make much difference if the land given to him has been pledged, as a personal action for the recovery of the money loaned will not follow the land; but he will be liable to whom the estate has been transferred under the Trebellian Decree of the Senate. Security must be furnished by the beneficiary of the trust to the heir so that the heir will be indemnified if the land should happen to be evicted by the creditor. Julianus, however, does not think that security should be given, but that an estimate ought to be made of the value of the land without the security, that is to say, how much it will sell for if security were not furnished; and il, where no bond had been given, it will sell for as much as the fourth part of the property would amount to, the rights of action will pass by the terms of the Trebellian Decree of the Senate; but if it would bring less, then, the deficiency having been reserved, a transfer of the remainder should likewise be made, in accordance with the Trebellian Decree of the Senate. This opinion disposes of many questions. 17Where a man who had an estate of four hundred aurei bequeathed three hundred, and, having deducted two hundred, charged his heir to transfer the estate to Seius, will the beneficiary of the trust be liable for the three hundred aurei, or will he only be liable in proportion to the amount of the estate which came into his hands? Julianus says that a demand for three hundred aurei can be made upon him, but that an action will not be granted against the beneficiary of the trust for more than two hundred, and for a hundred against the heir. This opinion of Julianus seems to me to be correct, in order that the beneficiary may not be liable for any more than the amount which he received from the estate. For no one is obliged to pay more of a legacy than the amount which came into his hands from the estate, even though the Falcidian Law may not apply, as is stated in a Rescript of the Divine Pius. 18Finally, no more shall be paid as legacies under the will of a soldier than his estate amounts to, after deducting the indebtedness; and still the beneficiary of the trust will not be permitted to reserve the fourth. 19Hence Neratius says that if the heir is charged to transfer the entire estate without deducting the Falcidian portion, and he who is entitled to receive it is charged to transfer it to a third party, the heir cannot deduct the fourth from what the second beneficiary receives, as the testator only intended that the first beneficiary of the trust should enjoy his liberality. 20Where a testator, having property worth four hundred aurei, left two hundred to Titius, and charged his heir to transfer half the estate to Sempronius, Julianus says that the transfer should be made according to the terms of the Trebellian Decree of the Senate, and that the action of the legatee should be divided so that he can bring one suit against the heir for a hundred aurei, and one against the beneficiary of the trust for the other hundred. Therefore, Julianus holds that in this way the heir will obtain his fourth unimpaired, that is, the hundred aurei without deduction. 21Julianus also says that if anyone who has an estate of four hundred aurei should bequeath three hundred, and, having deducted a hundred, should charge his heir to transfer the estate to Sempronius, it must be said that if the estate is transferred after the deduction of the hundred aurei, an action to recover the legacy will be granted against the beneficiary of the trust.

2Celsus, Digest, Book XXI. Where a man who left four hundred aurei bequeathed three hundred to Titius, and charged his heir to transfer the estate to you, and the heir, who suspected the estate of being insolvent, entered upon it by order of the Prætor and transferred it, the question arose, what do you owe to the legatee? It must be held that, as the presumption is that the testator intended the trust to be transferred burdened with the legacies, you ought to pay the entire three hundred aurei to Titius; for the heir should be understood to have been requested to appoint you in his stead and to pay you the balance, and, after having performed all his duties with reference to the estate, that is to say, after he had paid the legacies, he would have been entitled to what was left if he had not been charged to transfer the estate to you. How much then would he have left? A hundred aurei, certainly. These are what he was charged to pay you, and therefore, in order to calculate the portion due under the Falcidian Law, as the heir was charged to pay three hundred aurei to Titius, and a hundred to you, the result will be that if he should enter upon the estate voluntarily, he must pay two hundred and twenty-five to Titius and seventy-five to you. Hence Titius will not be entitled to any more than if the heir had entered upon the estate without having been compelled to do so by the Prætor.

3Ulpianus, Trusts, Book III. Ad Dig. 36,1,3 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 667, Note 10.Moreover, Marcellus, on Julianus, states with reference to this case that, if the testator had said that the heir should be charged with the legacies, and the latter voluntarily entered upon the estate, the calculation of the Falcidian portion must be made just as if four hundred aurei had been bequeathed under the trust, and three hundred had been left as a legacy; so that the three hundred ought to be divided into seven parts, to four of which the beneficiary of the trust would be entitled, and the other three would go to the legatee. If, however, the estate should be alleged to be insolvent, and the heir did not voluntarily accept and transfer it, a hundred aurei out of the four hundred to which the latter would have been entitled can be retained by the beneficiary of the trust, and the same distribution should be made of the remaining three hundred, so that the beneficiary may receive four-sevenths and the legatee the remaining three; for it would be extremely unjust for the legatee, merely because the estate was suspected of being insolvent, to have more than he would have obtained if the heir had voluntarily entered upon it. 1Again, what has been said with reference to an estate suspected of being insolvent is also applicable to wills to which the Falcidian Law does not apply. I refer to military wills and others of the same description. 2Pomponius also says that where anyone is charged to transfer an estate after the legacies have been deducted, the question arises whether the legacies should be paid in full, and whether the heir can deduct his fourth from what is left under the trust alone, or can deduct it from the legacies as well as the trust. He asserts that Aristo was of the opinion that it should be deducted from everything bequeathed by the testator, that is to say, from both the legacies and the trust. 3Any property forming part of an estate which has been alienated by the heir shall be included in his fourth. 4A certain man, having appointed his children his heirs to unequal portions of his estate, and having left them preferred legacies in such a way as to divide the larger part of his property among them, charged any one of them who might die without issue to leave his share to his brothers. Our Emperor stated in a Rescript that the preferred legacies were included in the trust, because the testator did not mention his share of the estate, but merely his share, and the preferred legacies were held to have been included in his share. 5If anyone should be asked to deliver an estate before he has put the slaves to the torture, or opened the will, or entered on the estate, or done any of those things which are forbidden by the Decree of the Senate, and for this reason the estate should be confiscated, the Treasury will acquire it with all its burdens. Therefore, the benefit of the fourth to which the appointed heir was entitled will be transferred to the Treasury, and all rights of action belonging to the estate will pass to it under the Trebellian Decree of the Senate. If, however, the heir should have prevented anyone from drawing up the will, or should not have permitted the witnesses to assemble, or should have neglected to avenge the death of the testator, or if the estate had been claimed by the Treasury for any other reason, the benefit of the fourth will also belong to the Treasury, and the remaining three-fourths of the estate will be transferred to the beneficiary of the trust.

4The Same, Trusts, Book IV. For the reason that the appointed heir may refuse to enter upon the estate, apprehending that he might be prejudiced by so doing, provision must be made for the beneficiary of the trust; so that if he should say that he wishes the heir to enter upon the estate at his risk, and transfer it to him, the appointed heir can be compelled to appear before the Prætor and deliver the estate. If this should be done, the rights of action will pass by the Trebellian Decree of the Senate, and the heir cannot avail himself of the benefit of the fourth, when he transfers the property; for as he enters upon the estate at the risk of another, it is but reasonable that he should be deprived of any advantage to which he would have been entitled. Nor does it make any difference whether the estate is solvent or not, for it is sufficient for it to have been rejected by the appointed heir. No investigation shall be made as to whether the estate is solvent or not, but only the opinion, or the fear, or the pretext of the party who refused to accept it ought to be considered, and not the assets of the estate itself. This is not unreasonable, for the appointed heir should not be required to state why he fears to enter upon the estate, or why he is unwilling to do so. For men are actuated by different motives: some of them fear to attend to business, others dread the annoyance of it; and still others are apprehensive that the indebtedness may amount to a larger sum, even though the estate may appear to be solvent; and again, some fear the anger or envy of others; and some desire to favor those to whom the estate was bequeathed without, however, wishing to sustain any of the burdens of the same.

5Marcianus, Trusts, Book VI. Where a man of exalted rank or authority is charged to transfer an estate by a gladiator, or by a woman who lives by prostitution, he will be compelled to do so.

6Ulpianus, Trusts, Book IV. Anyone can refuse to accept an estate not only when he is present, but also where he is absent, and he can do this even by means of a letter. For a decree can be asked with reference to parties who are absent, whether it is certain that they do not wish to enter upon the estate and transfer it, or whether this is not known; to such an extent is their presence not necessary. 1It must be remembered that the Senate speaks with reference to an appointed heir. And, therefore, Julianus discusses the question as to whether this decree applies in cases of intestacy. The better opinion, however, is the one which we adopt, namely, that this decree also applies to heirs by intestate succession, whether they are heirs-at-law or prætorian successors. 2This Decree of the Senate also applies to a son under paternal control, and to all other necessary heirs, so that they may be compelled by the Prætor to take charge of the estate and afterwards transfer it. If they should do so, the rights of action are considered to have been transferred. 3Where an estate without an owner is forfeited to the Treasury, and the latter is unwilling to accept it and transfer it to the beneficiary of the trust, it will be perfectly proper for the Treasury to return the property, just as if the beneficiary of the trust had recovered it. 4Likewise, if the citizens of a town, after having been appointed heirs, should say that the estate is probably insolvent, and decline to accept it, it must be held that they can be compelled to do so, and to transfer the estate. The same rule applies with reference to an association. 5Titius, having been appointed heir, and Sempronius substituted for him, he was charged to transfer the estate to Sempronius himself; but, after his appointment, Titius said that the estate was probably insolvent, and refused to accept it. The question arose whether he could be compelled to enter upon the estate, and transfer it, a point which is susceptible of argument. The better opinion, however, is that he can be compelled to do so, because it is more advantageous for Sempronius to obtain the estate by the appointment than by the substitution; for example, if the substitution is charged with legacies to be paid, or with freedom to be granted. The same rule will apply if the estate should be left in trust to the heir-at-law. 6Where anyone is directed to transfer an estate in some other place than where he lives, and alleges that he suspects it of being insolvent, Julianus says that he can be compelled to accept it, just as a person who is asked to deliver an estate within a certain time.

7Mareianus, Trusts, Book IV. It should be noted that, in a case of this kind, an account of the necessary travelling expenses must be required. For if the heir was appointed under the condition of paying ten aurei to Titius, he cannot be compelled to accept the estate unless the money is tendered to the person entitled to it. Moreover, the condition of health and the rank of the heir must be taken into consideration. But what if, while he was suffering from illness, he would be ordered to go to Alexandria, or take the name of the testator, a man of inferior rank?

8Paulus, Trusts, Book II. The age and the rights of the party (that is to say, whether it would be lawful for him to go to the place designated, or not), must also be considered.

9Ulpianus, Trusts, Book IV. When, however, the heir is directed to go to some other place, and he is absent on business for the State, Julianus says he can likewise be compelled to accept the estate, and to transfer it, wherever he may be. 1It is clear that if anyone requests time for deliberation, and obtains it, and after the time has elapsed enters upon the estate, and transfers it, he will not be considered to have been compelled to do so. For he is not obliged to enter upon the estate, even if he suspects it of being insolvent, but he does so voluntarily after deliberation. 2If the heir should allege that he considers the estate to be insolvent, he should declare that it is not expedient for him to accept it. It is not necessary for him to say that it is insolvent, but he must state that he does not think it is expedient for him to enter upon the estate. 3If anyone should be appointed heir under a condition, no act that he performs while the condition is pending will be lawful, even though he is ready to transfer the estate.

10Ad Dig. 36,1,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 96, Note 5.Gaius, Trusts, Book II. If the estate should be delivered before the prescribed time has elapsed, or the condition has been complied with, the rights of action will not pass with it, because it was not delivered as the testator desired that it should be. It is evident that if the transfer of the estate should be ratified after the condition has been fulfilled, or the prescribed period has passed, it would be more equitable to consider that the rights of action were transferred at the same time.

11Ulpianus, Trusts, Book IV. It is stated by Julianus that where a legacy is left to an appointed heir, “in case he should not be the heir of the testator,” and on this account the heir says that he suspects the estate of being insolvent, in order not to lose the legacy, the amount of the same must be tendered him by the beneficiary of the trust, and he can then be compelled to accept. Julianus does not admit that, in this instance, the heir can demand the legacy from the beneficiary of the trust as from his coheir, just as if he had not accepted the estate, for in fact he did accept it. It is, however, considered preferable for the legacy to be tendered him by the beneficiary of the trust. But when the heir, for some other reason, says that it is not his interest to accept the estate, he cannot be compelled to do so, unless the loss which he may sustain, or the profit which he may acquire, is made up to him by the beneficiary of the trust, or the charge, on account of which he refused the estate, is remitted by the Prætor. 1Ad Dig. 36,1,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 24.Julianus also says that where two heirs are appointed by a father, along with his minor son, and they are also substituted for the son, it will be sufficient for him who accepted the trust under the pupillary substitution to compel one of the appointed heirs to enter upon the estate of the father. For, by doing this, the will of the father will be confirmed, and both of them can, by virtue of the substitution, be compelled to enter upon the estate. 2After application has been made to the Prætor, let us see whether the heir can transfer the estate to a present or an absent person through the intervention of an agent. I think that an appointed heir can be compelled to accept and transfer an estate to an absent beneficiary of the trust, and that the heir should not apprehend that he will be prejudiced by doing so. For relief can be granted him by the Prætor, whether he has been given security or not, even if the beneficiary of the trust should die before the estate had been delivered to him. A case of this kind appears in a Rescript of the Divine Pius, where a certain Antistia, at the time of her death, appointed Titius her heir, granted freedom directly to her slave Albina, and left her her own daughter in trust, charging her to manumit the latter. She also asked Titius to transfer the estate to the daughter of Albina, after she had been manumitted. Therefore, when Titius said that he considered the estate to be insolvent, it was set forth in a Rescript of the Divine Pius that he should be compelled to accept it, and, having done so, that Albina must receive her freedom, that her daughter should be delivered to her, and manumitted by her, and that, after her manumission, a guardian should also be appointed for the daughter by whose agency the estate must be immediately transferred to her, although Titius had been charged to deliver it as soon as she reached the marriageable age. The Emperor says that as it was possible that she to whom freedom and the estate were left in trust might die before the prescribed time, it would not be necessary to subject him to loss who, having been appointed, accepted the estate; and he afforded a remedy, so that if any of these things should take place, the property of Antistia would be sold, just as if she had had no heir. Hence, as the Divine Pius decided that relief might be granted an appointed heir who accepted the estate under compulsion, it could also be held that this precedent ought to be followed in other cases where an estate left in trust was transferred to the beneficiary who compelled the heir to enter upon it and deliver it to him.

12Papinianus, Questions, Book XX. Where an heir appointed to a portion of an estate is conditionally charged with a trust having reference to the same, the Emperor Titius Antoninus stated in a Rescript that his Constitution did not apply, and that the minor was not entitled to extraordinary relief, especially if the relief requested would cause injury to another.

13Ulpianus, Trusts, Book IV. An heir who has been charged with a trust, under a condition, cannot defend himself in court by alleging that if the condition should fail to be fulfilled he will be liable to actions at law; for, according to what we have just stated, he cannot sustain any damage. 1Therefore, the presence of the heir is no longer required. 2Where the heir has any complaint to make on account of the will, he should not be heard if he alleges that he suspects the estate of being insolvent. For even if he should absolutely declare it to be insolvent, he should not be heard, if he says that the testator had no right to make a will, or if he impugns the validity of the instrument, or calls his own condition in question. 3But what if the heir disputes the validity of the trust? This allegation must not be passed by. What if the beneficiary of the trust asserts his claim; can the heir enter upon the estate, and then raise this point? I think that the beneficiary of the trust should in the meantime be heard, if the inquiry is liable to be prolonged; for suppose that the terms of the trust cannot be explained without a protraded investigation, and that a reasonable doubt may arise with reference to the amount left under the trust. In this instance it must be said that the heir ought to be compelled to enter upon the estate, lest, if he should die before the controversy is terminated, the beneficiary of the trust may be defrauded. 4It is proper to examine by whom a person can be compelled to enter upon and transfer an estate, so that, if a Prætor or a Consul should be appointed heir, and allege that he suspects the estate of being insolvent, it may be determined whether he can be compelled to accept and transfer it. It must be held that one Prætor has no jurisdiction over another, or one Consul over another, but if they are willing to subject themselves to his authority the Prætor can ordinarily decide the case. If, however, the Prætor himself, having been appointed heir, says that he suspects the estate of being insolvent, he cannot compel himself to accept it, because he cannot perform the duties of three persons; that is, of the one who declares the estate to be insolvent, the one who is compelled to accept it, and the one who forces him to do so. In all these cases, and in others like them, recourse should be had to the aid of the Emperor. 5Where a son under paternal control becomes a magistrate, he can compel his father, to whose authority he is subject, to accept and transfer an estate, even if he may say that he suspects it of being insolvent.

14Hermogenianus, Trusts, Book XIV. For the right of paternal control does not apply to the duties of public office.

15Ulpian, Trusts, Book IV. 1Where anyone has rejected an estate, he can be compelled to enter upon and transfer it, if good reasons are shown why he should do so. 2It is clear that if the property should have been sold, restitution ought not to be granted the beneficiary of the trust, even though he be a minor, unless good reason is shown, as the Divine Pius stated in a Rescript. 3Where anyone, through compulsion, enters upon an estate under the terms of the will, and a pupillary substitution has been made, the question arises whether the pupillary substitution is confirmed by the acceptance of the estate, as it would be considered extinguished if the estate of the father had not been entered upon. Julianus, in the Fifteenth Book, says that in a case of this kind the pupillary substitution is confirmed. This opinion is perfectly correct, for no one doubts that where legacies are paid and freedom granted, they, as well as anything else mentioned in the will, are just as valid as if the heir had voluntarily accepted the estate. 4Where anyone accepts an estate under compulsion, he is, in this instance, deprived of all the advantages which he would otherwise have enjoyed, to such an extent that he cannot retain his fourth, even if he should change his mind. I find that there is a Rescript to this effect which was issued by Our Emperor and his Divine Father. 5Everyone cannot compel an estate suspected of being insolvent, and therefore rejected, to be entered upon and transferred to himself, but he only can do so to whom the rights of action belonging to the estate may pass, for it is not just to force an heir to accept an estate in such a way that he must relinquish every benefit attaching to it, and himself be left to sustain its burdens. 6Hence, where a sum of money is left to anyone in trust, the right of compulsion does not apply, even though a bond of indemnity may be offered. 7Therefore, where anyone is charged to surrender an estate, he alone can be compelled to transfer it, 8But if anyone is asked to transfer all the property of the testator, his slaves, his money, or all his personal effects;

16Paulus, Trusts, Book II. Or everything belonging to him:

17Ulpianus, Trusts, Book IV. He can be compelled to accept the estate. This same rule will apply if he should be charged to transfer his “patrimony,” his “property,” his “fortune,” his “substance,” or his “peculium,” for the reason that many authorities hold that his peculium means his patrimony. In the above-mentioned instances the testator seems to have referred to his estate. I am not ignorant that Marcianus entertains doubt with reference to some of these cases, and says that there is a question as to the intention of the testator, and whether he had in his mind only a certain sum of money, or his entire estate. Still, where there is an ambiguity, I hold that the testator had the whole of his estate in his mind in order that the trust might not be extinguished. 1But if anyone should make the following request, “I ask you to transfer to So-and-So everything which conies into your hands from my estate, or my property,” the heir can be compelled to enter upon and transfer the estate, under the terms of the Trebellian Decree of the Senate; although the expression, “comes into your hands,” may properly be said to mean what anyone receives after all claims have been deducted. 2Moreover, it may generally be said that an heir cannot be compelled to accept and transfer an estate where he is only requested to do so with reference to a certain piece of property, or a certain sum of money. If, however, it appears that the testator had reference to his entire estate, there is no doubt that he can be compelled to enter upon it, whether he rejects it because he suspects it of being insolvent, or accepts it voluntarily, as the rights of action will pass under the Trebellian Decree of the Senate. 3Ad Dig. 36,1,17,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 52, Note 17.Hence, the question arises, where anyone is asked to transfer an estate after having deducted the debts or the legacies, and the heir alleges that he suspects the estate to be insolvent, can he be compelled to accept and transfer the estate, because he is charged to transfer rather what remains of the estate than the estate itself? Some authorities, and among them Msecianus, think that this deduction is void, for a sum of money cannot be deducted from a right, any more than if the heir were requested to transfer a tract of land after deducting the debts or the legacies, as land is not susceptible of diminution on account of debts or legacies. He states, however, that Julianus holds that the Trebellian Decree of the Senate will apply in this instance, in order that the beneficiary of the trust may not be liable to a double burden; that is to say, when the heir deducts the indebtedness or the legacies, and when suit is brought by the creditors and the legatees. For where the estate is delivered to him under the Trebellian Decree of the Senate, the beneficiary of the trust either ought not to suffer the loss of the deduction made by the heir, or the heir should furnish security to defend him against the legatees and other creditors. 4Where anyone, who is appointed heir, is asked not to transfer the entire estate but only a portion of the same, or where he is asked to transfer it to two persons, and one of them wishes to accept it, and the other does not, the Senate decreed that the one who said that he suspected the estate of being insolvent should be released from liability, and that the entire estate should pass to him who compelled the heir to enter upon it. 5Ad Dig. 36,1,17,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 663, Note 4.If, however, a testator charges his heir to transfer, not his portion of the estate, but as much of it as came to him through Seia, and the appointed heir says that he believes the estate to be wholly or partly insolvent, the opinion of Papinianus, namely, that the rights of action pass under the Trebellian Decree of the Senate, will prevail; and it may be held that if the estate is alleged to be insolvent, the appointed heir can be compelled to enter upon and transfer it, and the entire estate will belong to him to whom it is transferred. 6Ad Dig. 36,1,17,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 663, Note 4.But where a soldier asks anyone to deliver his property which was situated in Italy, or some property situated in a province, it must be held that if the heir should say that he suspects the estate of being insolvent, he will be compelled to enter upon and transfer it. For, as Marcianus very properly says in the Sixth Book on Trusts, it is for this reason that a soldier can appoint an heir with reference to certain property, and the rights of action will be granted to him; likewise, for the same reason, rights of action will pass under the Trebellian Decree of the Senate. And, although it is well established that actions do not pass under the Trebellian Decree where the testator asks that property which came to him from anyone, or which he has in some country, shall be transferred, still, he says that the contrary opinion prevails with reference to military wills. For he remarks, as soldiers, when they appoint heirs, are permitted to separate their different kinds of property, so also the Trebellian Decree of the Senate allows this to be done where heirs are charged with the execution of a trust. 7If a certain man should appoint two heirs, and substitute them for one another, and charge them that if either became his heir, half of his estate should be transferred to a certain person after the lapse of five years, and the appointed heirs should say that they suspect the estate of being insolvent, and the beneficiary of the trust should wish them to accept it at his risk, the Senate decreed that both heirs, or one of them, could be compelled to enter upon the estate and transfer it to the beneficiary of the trust; so that the rights of action for and against the said beneficiary might pass just as where an estate is transferred under the Trebellian Decree of the Senate. 8Marcianus says that when some of the beneficiaries of a trust are absent, and one who is present wishes the heir to enter upon the estate at his risk, and consequently the rights of action pass entirely to him who compelled the heir to accept, if the beneficiaries who are absent desire to share in the trust, they can make the demand upon him who was present. Marcianus states that the result will be that a beneficiary of the trust who was present cannot retain the fourth against his fellow beneficiaries, because the heir himself could not do so. 9Marcianus also asks, where anyone is asked to transfer an estate to two or more beneficiaries, whether he can be compelled by one of them to enter upon it, and can avail himself of the benefit of the Falcidian portion, to which those who did not wish this to be done would have been entitled, whether they themselves wish the transfer to be made to them, or whether some other person, who has succeeded them, makes the demand. The rule which we make use of at present is that the entire estate shall pass to him who compelled its acceptance by the heir; and, in consequence, it must be said that the heir who was forced to accept it will lose the right to retain the fourth, because the rights of action pass unimpaired to him who compelled the acceptance of the estate. It is clear that if you suggest that the first beneficiary should not compel the entire estate to be transferred to him, when the others demand that it shall be transferred to them, it must be said that the heir will be entitled to the benefit of the Falcidian Law. Therefore, Marcianus very properly holds that it makes a great deal of difference whether the beneficiary asks that the entire estate shall be transferred to him, or whether he asks only for his share of the same. For if only his share is transferred, the Falcidian Law will apply to the remainder; but if the entire estate is transferred, the heir will not enjoy the benefit of the law. 10Where anyone is asked to transfer an estate to a slave belonging to two masters, and one of them wishes to compel the heir, who alleges that the estate is probably insolvent, to transfer it, and the other master refuses to accept it, it must be held that the case is the same as that where the heir is charged to transfer the estate to two persons, one of whom desires to accept it, while the other does not. 11Where a father is charged to transfer an estate to his son, who is under his control, can the son compel his father to make the transfer, if the latter says that he thinks the estate is insolvent? There is no doubt that the father can be compelled to do so by the intervention of the Prætor. 12Even when such a trust has reference to the castrense peculium of the son, who is in the military service, or holds some other office, it may more positively be said that the latter can demand that his father be compelled to enter upon the estate and transfer it to him, although in desiring this to be done he may appear to violate the filial respect due to his father. 13If, however, anyone should be asked to transfer an estate to his slave with the grant of his freedom, whether freedom is directly granted to the slave, or this is done under the terms of a trust, it may be said that he cannot be compelled, by his own slave, to accept the estate; although if he should do so voluntarily, he will be forced to grant him his freedom, and transfer the estate to him under the terms of the trust. This Marcellus says in the Seventh Book on Trusts. 14He also asks, when anyone is ready to give security to indemnify the master, whether the latter can be compelled to enter upon the estate, and especially if he should be tendered the price of the slave. He very properly holds that under the uncertain offer of the bond he is not required to venture to enter upon the estate. 15Where heirs are appointed to an entire estate who are incapable of taking it under the will, and are asked to transfer the whole of it, they can be compelled to accept or transfer it, as they will be subject to no liability on this account. 16If I should be appointed an heir and asked to manumit Stichus, or any other legatee should be asked to do so, and I should be charged to transfer the estate to Titius, and Titius should afterwards be charged to transfer the entire estate to Stichus, Stichus can compel me to enter upon and transfer the estate. 17The following matter was settled by a decision of the Divine Pius. A slave having been bequeathed to one of the heirs of a testator, the said heir was charged to grant the slave his freedom, and another was charged to transfer the estate to the same slave. The Divine Pius addressed a Rescript to Cassius Dexter in the following words: “If the slave Hermias was bequeathed by the testator Pamphilus, to Moscus Theodotus, whom he appointed heir to a portion of his estate, and Theodotus should afterwards enter upon the same before it was accepted by his co-heir appointed by the said Pamphilus, and he should have granted the slave his freedom, on account of this, he who bequeathed the legacy could not be considered as intestate; and Hermias, having petitioned me, the co-heir, Evarestatus must, under such circumstances, be compelled to accept the estate at the risk of Hermias, and to transfer it to him under the terms of the trust.”

18The Same, Trusts, Book II. In a matter which was under discussion, the question arose whether anyone could, under the terms of a trust, be charged to appoint another his heir. The Senate decreed that anyone could not be charged to appoint another his heir, but if he did so it was held that it would be the same as if he had been asked to transfer his estate to him; that is to say, to transfer to him anything which he may have received from his estate. 1Julianus also, in the Fortieth Book of the Digest, says that a trust in the following terms will be valid, “I charge you to transfer the estate of Titius,” when he who was asked to do this was appointed an heir by Titius. 2If I should appoint someone my heir, I can not only ask him to appoint another person his heir, but also if I should bequeath to him a legacy, or anything else, I can do so; for persons of this kind are liable to the amount of any property which may come into their hands. 3If anyone should insert the following into his will, “I ask you to give such-and-such an article to So-and-So,” or “leave him something under a trust,” or “bequeath him his freedom,” such legacies are valid; for, as the Senate decreed that a trust is valid with reference to the appointment of heirs, so the same rule must be understood to apply to other testamentary dispositions. 4If anyone should be asked to transfer an estate provided he died without issue, Papinianus, in the Eighth Book of Opinions, says that the condition will fail to be fulfilled if the person should leave even a natural child; and he asserts that the same rule will apply to a freedman, where a child of this kind is manumitted with him. For my part, however, I think that this question, so far as natural children are concerned, seems to depend upon the intention of the testator, and what kind of children he had in his mind; for when he charged anyone with a trust of this description, his rank, wishes, and condition must all be taken into account. 5I remember that the following point was discussed. A certain woman requested her son to transfer the estate to his brother, if he should die without issue, and the son, after having been banished, had children in the island to which he was sent. Hence, the question arose whether the condition upon which the trust was dependent had failed to be complied with. We are of the opinion that where children are conceived before the banishment, even though they may be born afterwards, this causes the condition to fail; but where they are both conceived and born after the banishment, the case is different, because they are, as it were, born to a stranger, and especially should this be considered where all the property of the person is subject to confiscation by the Treasury. 6Where a man is asked to transfer an estate to his children, or to anyone of them whom he may select, Papinianus, in the Eighth Book of Opinions, concedes the right of selection even to a person who has been banished; if, having become free, he desires the restoration of the trust. Where, however, he was condemned to penal servitude, without any child having previously been conceived, he will be unable to comply with the condition, for he is considered to have died without issue. But he cannot be granted the privilege of selection which Papinianus accords to a person who is under sentence of banishment at the time of his death. 7If, however, he should have a child, but should lose it during his lifetime, he will be considered to have died without issue. But let us see if the child should die at the same time as its father, through a shipwreck, or the fall of a house, or an attack, or any other occurrence, whether the condition would fail to be fulfilled. I think that the condition would not fail, because, in this instance, it is not certain that the child survived its father, therefore it either survived its father and this extinguished the condition of the trust, or it did not survive him, and the condition was fulfilled. Moreover, as it is not apparent which one died before, and which one after the other, the better opinion is to hold that the condition of the trust was fulfilled. 8If anyone should leave a trust as follows, “My son, if you should die after having appointed a foreign heir, I charge you to transfer my estate to Seius,” the Divine Pius stated in a Rescript that the testator seems to have had reference to the heir’s children; therefore, where anyone dies without issue, leaving a maternal uncle entitled to prætorian possession, on the ground of intestacy, the Emperor declared in a Rescript that the condition of the trust had been fulfilled.

19The Same, On Sabinus, Book XV. In the transfer of an estate under the terms of a trust, it is settled that the profits are not included unless the heir is in default, or was especially charged to transfer them. 1Ad Dig. 36,1,19,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 20.It is clear that the profits should be included in the fourth, as was stated in the Rescript. 2Whenever anyone is asked to transfer an estate, he is considered to have been asked to transfer everything belonging to it; the profits, however, are not considered to have been derived from the estate itself, but from the property belonging to the same. 3Where a legacy is left to an heir, and he is asked to transfer his share of the estate, he must not only transfer any legacy which he has received from his co-heir, but whatever he himself is charged with is included in the trust. This was established by a Decree of the Divine Marcus.

20Paulus, On Sabinus, Book III. Where a trust is bequeathed absolutely, and the following words are added, “I charge you to deliver my estate to your son, and cause it to come into his hands,” it is stated in a Rescript that the bequest is made to take effect at the time when the son can receive it, that is to say, when he becomes his own master. 1“I ask you, Lucius Titius, to divide my estate with Attius.” Aristo says that, under the Trebellian Decree of the Senate, the rights of action affecting the estate pass to him to whom the estate is transferred; because the words are understood to mean, “I ask you to transfer that estate.” The terms of the Decree of the Senate are not to be considered, but the intention of the testator must be, no matter how it was expressed, provided he intended that his estate should be transferred. 2Where any expense has been incurred by the sale, or through measures taken for the preservation of property forming part of an estate, it should be charged to the heir.

21Paulus, On Sabinus, Book XIX. Where, however, a legacy is left to someone to vest at the time when he shall have children, and he dies leaving his wife pregnant, he will transmit the legacy to his heir.

22Pomponius, On Sabinus, Book XXII. Where an heir, who had a right to retain a fourth, transferred the entire estate, and did not provide for himself by a stipulation, Aristo says his case is similar to that of those who fail to reserve property to which they have no other right; but that he can recover or obtain possession of the assets of the estate, and can make use of an exception on the ground of bad faith against the party claiming the property, and can notify the debtors of the estate that payment should not be made.

23Ad Dig. 36,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 557, Note 5.Ulpianus, Disputations, Book V. A woman who left two children under the control of their father married another man after a divorce, appointed her second husband her heir, and charged him to transfer her estate to her children, or to the survivor of them, after the death of their father. The said children having been emancipated by their father, the stepfather was said to have transferred the estate to them, and afterwards one of the children died during the lifetime of his father. The question arose whether the surviving child could demand that the share of his brother should be given to him, because it was prematurely transferred. Scævola relates that the Divine Marcus decided a case of this kind in his audience room. A certain Erasidas, a Lacedemonian, and a man of prætorian rank, emancipated his children who had remained with him after his wife had been divorced, and to whom an estate had been left in trust in case they should become their own masters by the death of their father. After their emancipation they demanded the execution of the trust. Scævola says that the Divine Marcus decided that they were entitled to the trust in accordance with the intention of their mother, who deferred its execution until the death of her husband, because she did not think that their father would emancipate them, and she would not have deferred it until his death if she had expected him to emancipate them. In accordance with this, I held that the Decree of the Divine Marcus applied to the present case, and that the trust had been legally executed with reference to the two children. 1There is no doubt that an appointed heir can be compelled to enter upon an estate and transfer it to slaves, where their freedom has been bequeathed to them either directly or under the terms of a trust, as the heir should not treat with contempt whoever compels him to accept the estate. For, although a slave cannot demand that the heir shall enter upon the estate, or claim his freedom directly under the trust, he has a right to appear before the Prætor in person, on account of the expectation which he has of obtaining his freedom and the estate. 2Where an heir transfers an estate after a long period of time, when he was required to do so at once under a trust, he can still transfer the estate after having deducted his fourth; and any profits which he may have collected on account of the neglect of the claimant are considered not to have been obtained under the will of the deceased. The case, however, is different if he was asked to transfer the estate under a condition, or within a certain time; for then anything which he has collected will take the place of the Falcidian portion, if it amounts to as much as his fourth and the profits of the same. Any profits which have been obtained in the meantime are considered to have been collected in accordance with the will of the testator. 3Ad Dig. 36,1,23,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 665, Note 7.If a person is asked to transfer an estate, and before he does so any of the slaves belonging to it should die, or any of the property be lost, it is decided that he cannot be compelled to transfer anything which he does not have; but it is evident that he must account for his negligence, but only in case it resembles fraud. This was stated by Neratius in the First Book of Opinions. If he did not sell the property at a time when he should have done so, he is guilty of gross, and not of slight negligence, such as he would have avoided in the transaction of his own business, and he must, under such circumstances, be held responsible. Moreover, if a house should be burned through his negligence, he must account for it. Again, he will be accountable for the children of slaves, and even the children of those children if they should die, because these are not included in the profits of the estate. He himself can deduct any expense which he has incurred on account of property belonging to the estate. But if, through no act of his, a house is acquired by use through lapse “of time, it is perfectly just that he should not be considered liable, as he is free from blame. 4The following was proposed: “A certain man appointed his daughter his heir, and charged her, if she died without issue, to transfer her estate to Titius. She had given a dowry of a certain sum of money to her husband, and afterwards, having died without issue, she appointed her husband her heir.” The question arose whether the dowry could be deducted. I said that it could not be held that the daughter intended to annul the trust, which was in accordance with both the duty of the woman and the wishes of her father; hence it must be said that the dowry has disappeared, just as if she had asked what remained of it to be transferred. If the woman collected enough income from the estate to be able to pay the amount of her dowry, it should be said that this expense ought to be charged to the profits rather than to the trust. 5In order that the Trebellian Decree of the Senate may apply, it is not sufficient for a bequest to be made merely with reference to the estate, but the heir must be charged to execute the trust in his capacity as heir. Hence, if a portion of an estate is bequeathed to anyone (for we are of the opinion that a portion of an estate can be bequeathed), and the legatee is asked to transfer this portion to another, there is no doubt that a transfer cannot be made under the Decree of the Senate, and therefore the fourth should not be reserved.

24Julianus, Digest, Book XXXIX. Whenever a testator orders one or two heirs to transfer his estate to their co-heirs, he is understood to have made the same division with reference to the trust which he made in the distribution of the estate. If, however, those who are charged with the execution of the trust are directed to pay a certain sum of money to the person from whom they are to receive the benefit of the trust, the intention of the testator must be ascertained from the amount of money which the parties are ordered to pay. For where heirs are appointed to unequal shares of an estate, and are directed to pay equal sums, the better opinion is, that they should receive equal amounts under the trust. But if the sum of money to be paid corresponds with the shares to which they are entitled, they shall receive proportional amounts under the trust.

25Papinianus, Questions, Book XV. Sometimes, however, this point has been stated differently in rescripts and the decisions of courts; for instance, where a trust is left not under the general term of heirs, but under the individual names of the parties interested.

26Julianus, Digest, Book IX. A certain person made the following provision in his will: “My heir, I ask and charge you to transfer to my son whatever comes into your hands out of my estate, upon the first day; or if anything should happen to him before that time, I request you to deliver it to his mother.” The question arises if the boy should die before the estate is entered upon, whether his mother would be entitled to the benefit of the trust. I answered that if the boy should die before the time arrived for the execution of the trust, it would be transferred to his mother; but if he should die after the day for its execution arrived, the heir of the boy would be entitled to the benefit of the trust. But, in order to ascertain the intention of the testator, namely, whether if the boy should die before the delivery of the property under the trust, it would be transferred to the mother rather than to the heirs, the Prætor must take into consideration the person of the mother as well as that of the heir of the boy. Marcellus: It is, however, more in conformity with the will of the testator to hold that whenever the boy dies, whether he dies before the day for the execution of the trust, or afterwards, the trust will be transferred to his mother, if he should not already have received it. This is the rule which we now make use of. 1Where a slave is appointed heir, and his master is charged to deliver the estate to the slave when he shall become free, the trust is valid. 2When anyone appoints his son heir to his entire estate, and, by a codicil which he directed to be opened after the death of his son, he charges him to transfer his estate to his sister if he should die without issue, and the son, being aware of the contents of the codicil, directed by his will that the slave Stichus, who belonged to the estate of his father, should be free, the heirs of the son must pay the value of the slave to the sister of the deceased, for his freedom cannot be lost by means of a favor. Moreover, even if the son should not be aware that his father had made a codicil, his heirs will, nevertheless, be obliged to pay the value of the slave, in order that the act of one may not injure another. 3Ad Dig. 36,1,26,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.If, however, this slave was appointed an heir by Sempronius, and after he had obtained his freedom, entered upon the same estate by the will of the brother, the heirs of the latter must also pay his sister the appraised value of the estate; because if the slave had not been manumitted, he could enter upon the estate by order of the woman. But if Sempronius should die during the lifetime of the son, deduction of the estate on account of the trust shall be made, since the slave, having been ordered to accept the estate by the son himself, will acquire it.

27Paulus, On Decrees of the Senate. The Apronian Decree of the Senate directs that every estate left under a trust can and should be transferred to all cities subject to the authority of the Roman people. It was also decided that rights of action against such estates should be transferred under the Trebellian Decree of the Senate. The residents of the cities, however, are permitted to bring actions against the estates.

28Julianus, Digest, Book XL. The cities, in order that the estates may be transferred to them, should select an agent who can sue and be sued. 1Where an heir who was compelled to accept an estate orders a slave forming part of the same to enter upon another left to the said slave by a stranger, and then transfers the former estate which he says he suspects of being insolvent, the question arises whether he ought also to transfer the one which had been acquired by the slave. I held that this estate should not be included in the transfer, any more than if the slave belonging to the first estate had, after having accepted it, entered into a stipulation and received it by delivery, or had collected the income from the property of the estate without being in default in the execution of the trust. If, however, the slave, before accepting the estate, entered into any stipulation, or accepted it by delivery, he must restore the subject of the stipulation, as the income collected before the estate was accepted will be included in the transfer. 2Ad Dig. 36,1,28,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 24.When an heir says that he suspects the estate of being insolvent, he will obtain no benefit under the will which he would not have obtained if he had not been appointed heir, or had not entered upon the estate. Therefore, if he was substituted for a minor as follows, “Let whoever shall be my heir also be my son’s heir,” he should be compelled to transfer the estate which came into his hands by virtue of the stipulation. If, however, the clause, “Whoever shall be my heir,” is omitted, and he should be substituted as follows, namely, “Let Titius be my son’s heir,” then, if the heir alone should survive the father he can, nevertheless, be compelled to transfer the estate of the minor. But if he should have a co-heir, he can retain the estate of the minor, because if his co-heir enters upon the estate, he can also enter by virtue of the substitution, even though he may have rejected the estate of the father. 3Where a father appoints his son, whom he has under his control, his heir, and charges him to transfer his estate to Sempronius, and says that he suspects the estate of being insolvent, the son can be compelled to transfer it under the Trebellian Decree of the Senate. Wherefore, even if he should not have concerned himself with the affairs of the estate, still, any rights of action for or against him will pass to Sempronius. 4When an heir, appointed by a father and substituted for his disinherited son, is charged to transfer to Titius the estate which may come to him by virtue of the substitution, he cannot be compelled to accept the estate of his father during the lifetime of the minor; in the first place, because the trust was established under a condition, and second, for the reason that an action with reference to the estate cannot legally be brought during the lifetime of the boy. When the minor dies, however, he should be compelled to enter upon the father’s estate. 5Where two heirs have been appointed by a father, and both of them have been charged to transfer his estate to a disinherited son, it will be sufficient for only one of them to be compelled to enter upon the same; for by this act he who did not enter upon the estate of the father can be compelled to enter upon and transfer the estate of the son. 6Whenever an emancipated son acquires possession of the estate contrary to the provisions of the will, there is no reason to compel the heir to transfer the estate; and, as he is not compelled to pay either legacies or trusts, so he can not be forced to transfer any portion of the estate. Marcellus: It is clear that he should not be compelled to enter upon the estate, where the son has already obtained possession of the same to prevent the trust from being extinguished, if the appointed heir should die, and prætorian possession of the property should be refused by the son. 7A person who has transferred an estate under the Trebellian Decree of the Senate can either be relieved or barred by an exception on the ground that the estate has been transferred, whether he is sued by the creditors of the estate, or sues the debtors. Moreover, the same actions can be brought by the beneficiary which the heir could have brought at the time when he transferred the property left under the trust. Marcellus: It is also established that those actions which were subject to a condition, the time for the fulfillment of which had not yet arrived, will lie in favor of the beneficiary of the trust. The heir, however, cannot have recourse to any exception before the estate has been transferred, as otherwise he would transfer so much less under the trust. 8The Trebellian Decree of the Senate is applicable whenever anyone charges his heir with the distribution of either the whole or a part of the estate, at a time. 9Hence, if Mævius should appoint you his heir, and ask you to deliver the estate of Titius, and you should enter upon the estate of Mævius just as if you had been charged with the trust, and had been asked to transfer land which had been devised to you by Titius, and you should say that you had reason to think that the estate of Mævius was insolvent, you cannot be compelled to enter upon the same. 10If Mævius should ask you to transfer to someone both his estate and that of Titius, and you voluntarily accept the estate, you can avail yourself of the benefit of the Falcidian Law, and retain the fourth part of the estate of Mævius, and transfer the other three-fourths in compliance with the terms of the trust. Nor will it make any difference whether you are asked to transfer both estates to the same individual, or the Msevian estate to one person, and the Titian estate to another. If you should say that the estate of Mævius is probably insolvent, you can be compelled to accept it and transfer it to the person to whom you are asked to deliver it; but he to whom you are charged to transfer the estate of Titius cannot compel you to enter upon it. 11If the heir should transfer the estate under the Trebellian Decree of the Senate, and should retain the income of the land, or the land itself, or should even be the debtor of the person who made the will, it will be necessary for an action to be granted to the beneficiary against him. Marcellus: It will also be necessary for this to be done where, only a portion of the estate having been transferred, an action in partition is brought between the person who delivered the estate and the one who received it. 12Where anyone is asked to transfer an estate after a son has been emancipated, he should be compelled to accept and transfer it, even though the son can obtain prætorian possession of the same in opposition to the provisions of the will. 13When a patron is appointed heir to that portion of the estate of his freedman to which he is entitled by law, and, having been asked to transfer the estate, says that he has reason to think that it is insolvent, I hold that the Prætor will act more justly if he compels him to enter upon and transfer the estate; although, notwithstanding this change of mind, he can retain that part of the same to which he is legally entitled. 14Where, after the reservation of certain property as a preferred legacy, the heir is requested to transfer an estate, and is compelled to accept it, ought he to retain the preferred legacy? I answered that anyone who enters upon an estate by order of the Prætor should be prevented from enjoying any advantage. 15But if a bequest is left to the same person under the condition that he does not become the heir, and he alleges that he has reason to think the estate to be insolvent, he cannot be compelled to accept it unless he surrenders the legacies which were bequeathed dependent upon the condition of his not becoming the heir; and this should not be done by the co-heirs to avoid liability, but by him to whom the estate was transferred. For, as the heir is obliged to accept the estate in order that the wishes of the testator may be complied with, so he should not be subjected to loss on this account. 16My cousin was appointed sole heir to an estate, and charged to transfer half of it immediately to Publius Mævius, and the other half after her death to the said Publius Mævius. Other legacies were also bequeathed to other persons. Mævius at once received his half of the estate, and gave security to return anything which he might have obtained over and above what was permitted by the Falcidian Law, and the others were paid their legacies in full, and likewise gave security to return any excess which they might have received. My cousin having died, Publius Mævius demanded that the other half of the estate, along with its income, should be delivered to him. Therefore, I ask how much I ought to transfer to him, and whether it should be what remained in the hands of my cousin in excess of the fourth part of the property, and nothing more; or whether I could recover something from the others to whom legacies had been paid, and if so, how much? I also ask if what I may receive from them under the stipulations, and what remained in the hands of my cousin in excess of the fourth of the estate should not amount to half of the same, whether I shall be compelled to make up the deficiency from the increase and the income of the property which remained in the hands of my cousin over and above the fourth, in order that the amount which should be transferred may not exceed the fourth part of the estate. Or, as Publius Mævius demands, after the fourth of the estate had been excepted, must whatever has been obtained from the profits of the said fourth be delivered to him? I answered that, if, with the addition of the income, whatever above the fourth remained in the hands of your cousin does not amount to less than half of the estate as it was at the time of her death, it must all be transferred to Publius Mævius; and nothing can be recovered under the stipulation from those to whom legacies have been paid. If, however, the income exceeds the value of half the estate, it must be added to your fourth and the income of the same. But if the income of your share which remained in the hands of your cousin in excess of the fourth does not amount to half of the estate, an action can be brought under the stipulation. In short, the calculation should be made in such a way that the income will actually be in excess of a fourth, and if it increased to such an extent as to amount to more than half of the estate, you can retain whatever is in excess. 17When anyone is asked to manumit his slaves, and transfer the estate to them, he should do so after having deducted the price of the slaves.

29Africanus, Questions, Book VI. A person appointed sole heir to an estate, having been charged to transfer half of it to me absolutely, and half to you conditionally, alleged that he had reason to believe it to be insolvent, and upon my application entered upon the estate, and transferred the whole of it to me under the Decree of the Senate. When the condition was fulfilled, a doubt (which was not without foundation) arose, as to whether I should transfer to you the income of your share. It is held by several authorities that this should not be transferred, because it would not be paid by the heir if he had voluntarily accepted the estate, and it is sufficient for your right to be preserved unimpaired without your condition being improved. 1Still, the same authorities hold that where a person is appointed sole heir to an estate, and is asked to transfer a fourth of the same to me absolutely, and a fourth to you under a condition, and alleges that he has reason to think the estate to be insolvent, and is compelled by me to enter upon it, half of the estate must be delivered to you when the condition has been fulfilled. 2I do not think that in the proposed case I can avail myself of the Falcidian Law, although the appointed heir can do so, if he should have entered upon the estate voluntarily.

30Ad Dig. 36,1,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 552, Note 6.Marcianus, Institutes, Book IV. If anyone, after having made a will, should afterwards make a second one, the first is annulled, even though by the last will he appointed heirs to certain property, as the Divine Severus and Antoninus stated in a Rescript, the words of which Constitution I quote, along with other matters included therein. “The Emperors Severus and Antoninus to Cocceius Campanus, Greeting. There is no doubt that a second will, although the heir may only have been appointed by it to receive certain property, is valid, just as if no mention of the property had been made; but the said appointed heir will be obliged to be content with whatever is left to him, or with enough to make up his fourth under the Falcidian Law; and he must transfer the estate to those mentioned in the former will, on account of the words creating the trust which were inserted, by which the testator stated that he intended the first will to be valid. This, however, must be understood to apply only where nothing especially contradictory was included in the second will.”

31The Same, Institutes, Book VIII. Where an envoy says that he has reason to think that an estate is insolvent, he should be compelled to accept it during the time of his employment with the embassy, because he is not constantly occupied with the duties of his office. And he can be compelled to enter upon the estate, even though he may say that he will take the matter under consideration; but he shall not be compelled to make the transfer at once, but must do so as soon as he returns home and he can avail himself of the benefit of the Falcidian Law, or of his right under the will, if he thinks it is expedient; or, if he does not think so, he can transfer the entire estate to avoid being subjected to any burdens on account of the same. 1If anyone charges his heir to transfer “his property,” or “all his property,” this is understood to indicate a transfer by virtue of a trust; for under the terms “mine” and “yours,” rights of action are also considered to be included. 2Where an estate is transferred to a son under paternal control, or to a slave, and the father or the master subsequently ratifies the act, the rights of action will also be transferred under the Trebellian Decree of the Senate. 3It makes a great deal of difference whether the fourth part is retained by hereditary right, or where the party can only reserve a specified article, or a certain sum of money. For, in the first instance, the rights of action are divided between the heir and the beneficiary of the trust, but in the last, the rights of action pass entirely to the beneficiary. 4If an appointed heir, having been charged to transfer an estate after retaining for himself a certain sum of money or some article, although what is to be reserved is less than his fourth, he cannot claim more than that, even if he should be the Emperor. 5But if he should be asked to transfer an estate without reserving anything for himself, he is authorized by the Emperors to retain a fourth. This the Divine Hadrian, Trajan, and Antoninus stated in Rescripts.

32The Same, Institutes, Book IX. Where freedom is absolutely granted to a slave, and an estate is left to him conditionally under a trust, the heir will be compelled to accept the estate and transfer it, even if he alleges that he has reason to believe that it is insolvent; and the slave cannot be deprived of his freedom even if the condition should not be complied with. 1If an estate should be left under a trust to a slave who is to receive his freedom within a certain period, the Divine Pius stated in a Rescript addressed to Cassius Hadrian that the heir cannot, in the meantime, be compelled to enter upon the estate if he should consider it to be insolvent, as freedom cannot yet be granted to the slave; nor, on the other hand, can freedom be bestowed upon him in opposition to the will of the deceased. 2Where an heir is appointed under a condition, and is asked to transfer the estate, but is unwilling to comply with the condition and enter upon the estate, if the condition consists of an act he must perform it, and transfer the estate; or, if it consists of giving something, and the beneficiary of the trust should tender it, but the heir should refuse to discharge his obligation, permission will be given to the beneficiary to act instead of the heir, and then the necessity to enter upon the estate will be imposed upon him. Other conditions, which are not in the power of the heir, do not come within the jurisdiction of the Prætor.

33Celsus, Digest, Book XX. Ballista appointed a son under paternal control his heir, as follows, “Let Trebellianus be my heir, if he gives security to the colony of the Philippians that, if he should die without issue, all the money which may come into his hands from my estate will be given to the said colony of the Philippians.” I gave it as my opinion that although the testator made use of the word “money,” the heir must also surrender any other property which he may have received from the estate, just as if the testator has expressly designated it.

34Marcianus, Institutes, Book VIII. Celsus, in the Twentieth Book of the Digest, says that if anyone, having an estate of four hundred aurei, charges his heir, if he should die without issue, to transfer to Mævius all the money which may come into his hands from his estate, and if, in the meantime, he should obtain four hundred aurei out of the income of said estate, and should die without leaving any children, his heir will owe four hundred aurei to Mævius. He treats this question at great length, both as to whether the heir shall profit by the increase and take the risk of any loss, or vice versa; and says in conclusion that it would be unjust for the beneficiary of the trust to sustain the losses when he is not entitled to the profits. And, where some deficiency of the four hundred aurei must be made good, he asks whether any increase will also belong to the beneficiary, that is to say, whether an account of the losses and profits must be taken, up to the sum of four hundred aurei? I think this opinion to be correct.

35The Same, Rules, Book II. Where a father desired that, in case his only surviving son should die, his share of the estate should be delivered to a relative, and the brothers died upon the same day, the said relative will not be entitled to a share in the estate if he cannot prove which one of the brothers died last; but it has been decided that their mother will be entitled to the estates of both of them under the Tertullian Decree of the Senate.

36Ulpianus, On the Duties of Proconsul, Book VI. The Divine Pius decreed that, where an insane woman was appointed heir and charged to transfer an estate, her curator could assign all rights of action after having obtained possession of the estate in accordance with the provisions of the will.

37Paulus, On the Edict, Book XIII. Where an estate is transferred on account of a trust before an agreement for arbitration has been made with the heir, I think that the beneficiary of the trust should give the heir security, just as where the latter had charge of the property of the estate before transferring it, since the common saying that he can retain certain property does not universally apply; for what if there should be nothing in the estate which he is able to retain; as, for instance, where it all consists of notes, or articles of which he has not possession? It is clear that he to whom the estate is transferred will obtain everything, and the heir will be bound by the judgments in cases where he has been sued, or by the stipulations which he was required to enter into and could not avoid. Therefore he cannot be compelled to transfer the estate unless security is given him.

38Ulpianus, On the Edict, Book VI. An estate is considered to have been transferred where either the iproperty itself is delivered, or the heir is permitted to acquire possession of the property belonging to the estate, either wholly or in part, in such away that one of the parties is willing to transfer it and the other to receive it, but not if the heir should think that you have obtained possession for any other reason. The same rule must be held to apply where the possession is afterwards ratified. If, however, the heir should state that he transferred the property himself, or did so by a letter, or a messenger, he shall be heard. If he should deliver it to someone else, with your consent, the rights of action against you will also be transferred. Likewise, if another than the heir should transfer the estate by my order, or the heir should ratify the transfer, the rights of action will be considered to have passed. 1Moreover, a ward should himself make a transfer of an estate with the authority of his guardian, but the guardian cannot do so without the consent of his ward, unless the latter is an infant; because a guardian cannot assign the rights of action belonging to his ward. The Divine Severus, in the case of a ward named Arrius Honoratus, decreed that a ward could not transfer an estate merely by the authority of his guardian, where the said Arrius Honoratus made a transfer of this kind to his uncle and guardian Arrius Antoninus. 2When an estate is to be transferred to a ward, it is established that this cannot be done by the latter without the authority of his guardian.

39Paulus, On the Edict, Book XX. For the transfer of an estate is not merely a payment but a succession, as the beneficiary is liable.

40Ulpianus, On the Edict, Book XVI. Moreover, an estate cannot be indiscriminately transferred to the guardian himself.

41Paulus, On the Edict, Book XX. Although the Senate referred to the transfer of these rights of action which, by the Civil Law, lie in favor as well as against the heir, still, prætorian rights of action are also assignable, for there is no difference between the two. Again cases involving natural obligations are likewise susceptible of transfer. 1An appointed heir is specifically referred to in the Trebellian Decree of the Senate; still, we have adopted the rule that the successor of an heir can lawfully make the transfer under the Trebellian Decree of the Senate, just as an heir, the prætorian possessor of the property of an estate, a father, or a master by whom the estate is acquired, can do. For all should assign any rights which they may have under the Trebellian Decree of the Senate, and it makes no difference whether the appointed heir, the father, or the master, is asked to transfer the estate. 2It is also immaterial to whom the transfer is made in our name, whether it be the head of a household, or someone who is under the control of another;

42Gaius, Trusts, Book II. A male or a female. Therefore, an estate can be transferred to a slave with our consent, or without it if we should afterwards ratify the act.

43Paulus, On the Edict, Book XX. Because it is just the same as if the estate had been transferred to me. 1Where an estate is transferred, the rights of sepulture remain with the heir.

44Ulpianus, On the Edict, Book XXII. Papinianus discusses the following point. A person having been appointed heir to half of an estate was asked to deliver it to another, and, alleging that he considered it insolvent, was compelled to accept it. The beneficiary of the trust was not aware that a part of the estate had accrued to the appointed heir after it had been transferred, and the question arose whether another action would be required. Papinianus says that the beneficiary would be secure. He also says that, in a case of this kind, it should be determined whether a new transfer will be necessary after the increase of the above-mentioned share.

No translation given.

46Marcellus, Digest, Book XV. An heir, at the request of Stichus, who had received his freedom and the estate in trust under the same will, entered upon the said estate, which he suspected of being insolvent, and Stichus afterwards died before he was in default in accepting the estate, and left Titius his heir. I ask whether, under the Decree of the Senate, actions will lie against Titius if he refuses to accept the estate left in trust. I answered that, while ordinarily, he who is compelled to accept an estate can immediately transfer it to the beneficiary of the trust, the Decree of the Senate, in this instance, only appears to have reference to the manumitted slave, and no mention is made of the heir. Still, it may happen that the heir will postpone the transfer; for example, where the deceased owed him money, and he preferred to retain it rather than to bring an action for its recovery. I think, however, that the same rule should apply to his heir which applies to him; for why should the former have the right to reject an estate which he from whom he inherits could not have rejected? If the freedman should die without leaving an heir, before the estate was transferred, the creditors of his estate would be permitted to sell his property, just as if he had died after the estate had been delivered. 1I ask you to give me your opinion as to whether I am right in my decision of the following question. A daughter who had been appointed heir to the entire estate of her father was charged to transfer half of the same after having deducted all the legacies and the debts, none of which were very large, in order to avoid the application of the Falcidian Law. The heir was not in default in executing the trust. I ask her to transfer the estate to me verbally, just as if I had brought suit under the Trebellian Decree of the Senate, and I hold that, on this account, interest due from the day of the death of the testator to the time when the estate was transferred can be recovered by means of the proper actions. I also make a claim with reference to the rents of the estate, because the obligation growing out of the leases forms a part of it, but I do not demand any profits from the heir; still, she desires that I refund to her the amount of the rents, or assign to her my rights of action to collect the interest and the rents, and I cannot persuade her that, under the term “estate” which she was asked to transfer to me, I am also entitled to this stipulation for interest. I gave it as my opinion that all these things are included in the term “estate,” and that in the case you refer to there is no difference between these obligations and others which are contracted under a condition, or are payable annually, or monthly. It is clear that these things are considered as the income of property included in the estate, and that, if there has been no default, the income does not belong to the beneficiary of the trust. But as the beneficiary does not, as it were, demand that the heir shall add anything to the trust, but only asks that the estate shall be transferred to him in its present condition, the heir should not, by any means, refuse to do this; for the Senate intended that the beneficiary should receive half of the estate, and be considered as occupying the place of the heir with reference to that portion of it which might be transferred to him. But if the heir should lend money of the estate at interest, or collect the income of the land, she will not be required to pay anything on this account to the person to whom the estate was left in trust, if she was not in default; for the reason that she lent the money at her own risk, and by cultivating the soil, or by gathering the crops she incurred expense, and it is not just that she should, so to speak, act as the agent of another. But when the heir receives an income from the estate in the manner which is the subject of the inquiry, no expense incurred or labor performed by the heir is involved.

47Modestinus, On Inventions. Where an heir was asked to transfer an entire estate, and declines to retain the fourth because he desires to carry out the wishes of the deceased with greater exactitude, he should voluntarily enter upon the estate as intending to transfer it under the Trebellian Decree of the Senate. I would also advise him, if he regards the estate as insolvent to reject it, in order that he may be compelled by the Prætor to transfer it; for in this instance he is considered to transfer it under the Trebellian Decree of the Senate; and where the heir has manifested fear of being liable to the indebtedness of the estate, all the rights of action will pass to the person who receives it.

48Javolenus, Epistles, Book XI. Seius Saturninus, Admiral of the Britannic Fleet, by his will appointed Valerius Maximus, captain of a trireme, his fiduciary heir, and charged him to transfer his estate to his son Seius Oceanus, when the latter arrived at the age of sixteen years. Seius Oceanus died before reaching that age. Then Malleus Seneca, who alleged that he was the uncle of Seius Oceanus, claimed his property on the ground of his being the-next of kin. Maximus, the captain of the trireme, also claimed the estate, because the person to whom he had been ordered to transfer it was dead. I ask to which of these persons the estate belongs, to Valerius Maximus, the captain of the trireme, the fiduciary heir, or to Mallius Seneca, who asserts that he is the uncle of the deceased boy? I answered that, if Seius Oceanus, to whom the estate was bequeathed in trust by the will of Seius Saterninus, when he attained the age of sixteen years, was to be transferred by Valerius Maximus, the fiduciary heir, should have died before reaching the prescribed age, the estate left in trust would pass to him who was entitled to the other property of Oceanus, because the time for the execution of the trust arrived during the lifetime of Oceanus; that is to say, provided that, by prolonging the time of delivery, the testator was considered to have intended to commit the guardianship of his son to the fiduciary heir, rather than to have appointed an uncertain time for the execution of the trust.

49Pomponius, Various Passages, Book I. If anyone, bound to a person only by a natural obligation, should discharge a debt to his heir, the money must be paid over to him to whom the estate was left in trust.

50Ad Dig. 36,1,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 517, Note 20a.Paulus, Opinions, Book XIV. Paulus gave it as his opinion that, in a case where a certain portion of an estate was left to someone, and the latter had stolen property belonging to the estate, it may very properly be held that he can be refused an action having reference to what he had appropriated.

51Papinianus, Questions, Book III. Where an estate is to be transferred under the Trebellian Decree of the Senate, and the matter is urgent, and it is feared that the time for bringing an action may expire on account of the absence of the beneficiary of the trust, the heir can be compelled to defend the action brought against the estate. 1In like manner, where a son is deliberating as to whether he will demand possession of the estate in opposition to the terms of the will, the appointed heir can be sued by the creditors of the estate.

52The Same, Questions, Book XI. When Vivius Cerealis had been appointed heir, and directed to transfer the estate to his son Vivius Simonides, when he should be free from his control, and it was proved that many fraudulent acts had been committed for the purpose of avoiding the trust, the Emperor Hadrian ordered the estate to be delivered to the son, so that the father would have no right to the money as long as his son should live. For, as security cannot be given as long as paternal control exists, the Emperor inflicted this loss upon the father because of the fraud perpetrated by him. After a decree of this kind has been authorized, the son should, under such circumstances, be compared to the son of a soldier, where property is to be recovered from possessors, or where it is necessary to bring suit against the debtors of the estate. It is, however, in conformity for the reverence due to a father, in case the latter should be reduced to want, for the judge, in his discretion, to order some of the income of the estate to be given to him.

53The Same, Questions, Book XVII. Where an heir is charged to deliver an estate left in trust, after having deducted the legacies, it is not held that those should be deducted which cannot be recovered by an action. Where a dowry is bequeathed as a preferred legacy to a wife, who is appointed heir to a part of the estate of a testator, and she is charged to transfer the estate after having deducted the legacies, she can still deduct her share of the estate in proportion to the dowry, even if the fourth which she is entitled to retain by the Falcidian Law amounts to as much as her dowry. For, as she is entitled to both of these, there is no difference between this woman and any other creditor who may be appointed heir, and charged to transfer the estate. The same principle also applies where she is charged with a trust without the deduction of the legacies.

54The Same, Questions, Book XIX. Where property belonging to a third party is bequeathed to Titius, and the latter charges his master, whom he has appointed his heir, to transfer the estate to Mævius, Mævius cannot legally claim the legacy, for he cannot acquire what has never come into the hands of the appointed heir, that is to say, the ownership of the property. 1A slave obtained his freedom from one of two heirs who had been appointed, and from the other received an estate left in trust. If neither of the said heirs was willing to accept the estate, the Prætor would have no jurisdiction, because he cannot compel an heir to enter upon an estate for the sole purpose of securing the freedom of the slave, nor can he compel him by whom freedom has not been granted to accept the estate on behalf of a slave who has not yet been liberated, as the Decree of the Senate applies only where all the heirs are charged directly with a grant of freedom, or one is charged with it as well as with the delivery of the estate under the terms of a trust. If the heir who is charged with the grant of freedom should reject his share of the estate, or should be excluded because of the non-fulfillment of the condition upon which his appointment depends, as his share will pass to the other heir, it can be maintained that he should be forced to accept the estate. For what difference does it make under what rule the same person should owe the slave both freedom and the estate?

55The Same, Questions, Book XX. An heir should not be compelled to accept an estate, which he considers to be insolvent, by a slave on whom the said heir is charged to bestow freedom and the estate, as the condition of the slave depends upon the legacy, and no one can compel another to become liable to actions brought against an estate merely in order to secure the payment of a legacy. For what if the slave should die during the delay caused by the legatee in not manumitting him? If, however the legatee should die during the lifetime of the testator, the more equitable opinion would be that he should be compelled to accept the estate, as he has the power to transfer it to the slave after his manumission.

56The Same, Questions, Book XIX. Titius was charged to transfer to Mævius the residue of an estate. The beneficiary can not recover anything which the heir may have in the meantime alienated or wasted, if it should be proved that he has not done this fraudulently and for the purpose of interfering with the trust; for it is established that good faith is an essential characteristic of a fiduciary bequest. The Divine Marcus, however, when he was deciding a matter involving an estate left in trust, which was contained in the following words, “I charge you to transfer anything which remains of my estate,” held that this should be left to the judgment of a good citizen, and decided that any expenses which were said to have been incurred with reference to the estate should not only cause a diminution of the property included in the trust, but should also be distributed pro rata with reference to the patrimonial estate, to which the heir was entitled as his own. This seems to me to not only be based on equity, but also to be confirmed by example; for if a question should arise concerning the contribution of property by an emancipated son in favor of his brothers, it has been definitely settled that whatever was acquired by the son in the army he is entitled to retain; and the Emperor, having been consulted, decided that the expenses incurred by the soldier should not only be apportioned among the funds due from the estate, but ought also to be deducted pro rata from the money forming part of the peculium. According to what has just been stated, Mævius should require a bond to be given for the execution of the trust, not in order that he may, under the stipulation, make a claim for what he could not recover under the trust, but that he may have sureties for the amount which he could have recovered under the terms of the trust.

57The Same, Questions, Book XX. If the son of a patron should transfer an estate to a stranger under the Trebellian Decree of the Senate, an action to recover the value of services which cannot be transferred will lie in favor of the heir, and he will not be prejudiced by an exception, as this cannot be of any advantage to the person entitled to the benefit of the trust. Generally speaking, it must be said that the heir can neither be barred from proceeding, nor released by obligations which have no reference to the delivery of the estate. 1The Emperor Titus Antoninus stated in a Rescript, that where freedom has been bequeathed directly, to take effect within a certain time, transfer of the estate need not be made when there is no person to whom it can be delivered. 2Where anyone has received an entire estate under the Trebellian Decree of the Senate, after alleging that he has reason to think that it is insolvent, if he was charged to transfer it to another, he will be obliged to deliver all of it, and, in this instance, there will also be ground for the application of the Trebellian Decree of the Senate, for the beneficiary of the trust cannot retain the fourth under the Falcidian Law. Nor does it make any difference, if the first beneficiary should not have demanded that the estate be entered upon, whether the trust created in the second place would not have taken effect, for when an estate has once been accepted, all the wishes of the deceased are considered to have been complied with. Nor is this opinion refuted because the beneficiary of the trust is not obliged to pay other legacies which amount to more than three-fourths of the estate. For it is one thing for suit to be brought against him in the name of the heir, and another for him to be sued in his own name through being bound by the wishes of the deceased. According to what has already been stated, the appointed heir should not be compelled to accept the estate merely on the demand of the first beneficiary of the trust, where the latter is not entitled to any portion of the same, just as if he was charged to transfer the estate, together with its income, immediately, or after a certain time. If, however, he should be charged to transfer it without its income, it may be inferred that the amount will not be sufficient to compel him to accept the estate, nor is it material if the first beneficiary should have also received his freedom, for neither the acceptance of the money, nor of the grant of freedom will be sufficient to compel the appointed heir to enter upon the estate. But when the first beneficiary of the trust refuses to compel the heir to accept the estate, it has been decided that the second can legally demand that this shall be done, in order that the heir may enter upon it and transfer it to him. 3But what if the first beneficiary should be charged not to deliver the estate to a third party, but to transfer it to the heir himself? For the reason that he ought not to transfer to him the fourth which he has lost, he should be heard with reference to the retention of this part of the estate. Yet the fact that the appointed heir who was compelled to accept the estate is refused the right to claim anything under the trust should not be dismissed without consideration. For why should he not be thought unworthy to obtain anything under the will of the deceased, who refused to comply with his wishes? This will be more thoroughly established, if the heir was forced to enter upon the estate after a condition had been fulfilled, for if he was compelled to do so while the condition was pending, it will be hard to prove this, as he, by merely changing his mind, will be able to claim the Falcidian fourth. And I am well aware that it may be said that, under no circumstances, the benefit of a trust should be denied to those who are asserting their claim to the right of sepulture. To such an extent was the Senate convinced that the heir should not obtain anything out of the share of the estate which he had rejected, that he could not even avail himself of the Falcidian Law, or reserve any preferred legacy, or acquire any advantage under a second will, where the substitution is made as follows, “Let whoever becomes my heir, be the heir of my son.” 4The person to whom the estate of Titius was transferred under the Trebellian Decree of the Senate can transfer to Sempronius the estate of Mævius which the deceased Titius was charged to transfer to him, just as any other successor whosoever could do. 5The actions which pass under the Trebellian Decree of the Senate are only temporary ones, where the estate is evicted from the party who lost the case after he had transferred the estate under the trust, if, of course, issue was joined with him before the delivery; for the force of the eviction renders the transfer null, because that the trust which was established was not due. It is clear that where the same person who gained the case was also charged with the trust, for the reason that the possessor, in transferring the estate, accounted to the heir for the same share which should have been delivered to the beneficiary; it can be maintained that the actions which pass under the Trebellian Decree of the Senate will not be barred by lapse of time.

58Ad Dig. 36,1,58Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 14.The Same, Opinions, Book VII. A father wished that his daughter, after having reserved certain articles, should deliver his estate to her brothers. It was decided that the daughter ought to be placed in possession of the estate, before she made the transfer to her brothers. If, in the meantime, the brothers should have sold or encumbered all the property of the estate, and it was afterwards transferred to them, it is established that, on account of their act only, the sales or pledges of that portion of the estate which was not reserved, should be confirmed.

59The Same, Opinions, Book VIII. Ad Dig. 36,1,59 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 112, Note 5.“Let my heirs, at their death, transfer to the City of Beneventum, my birthplace, all of my estate or property which may come into their hands.” It was decided that none of the income collected by the heirs while a condition was pending was included in the trust. 1The following provision was inserted into a will, “I charge the first one of my sons who may die without issue to leave his share of my estate to his surviving brother. If both of them should die without issue, I wish my entire estate to go to my granddaughter Claudia.” If one of the heirs should die leaving a son, and the last one should die without issue, it would seem, at the first glance, that the granddaughter could not be admitted to the succession under the terms of the condition; but as, in the interpretation of trusts, it is proper to consider the intention of the testator, it would be absurd to hold that, because the first substitution did not take effect, the claim of the granddaughter to half of the estate should be refused, as the grandfather had intended that she should have all of it, if the last of the sons who died should receive the share of his brother. 2“When I die, I charge you, my dear wife, to transfer my estate to my children, or to one of them, or to my grandchildren, or to any one of them whom you may select, or to my relatives, or to any one of all of my relatives whom you may select.” I gave it as my opinion that a substitution of the trust was made with reference to the children, and, with reference to the grandchildren and the other relatives, the wife was given the right of selection, but that she could not legally make a choice of the other relatives if any of the grandchildren should be living, on account of the different degrees established by the terms of the trust; but where the degree of grandchildren had ceased to exist, the woman could select any one of the relatives whom she pleased.

60The Same, Opinions, Book IX. Ad Dig. 36,1,60 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 665, Note 4a.An heir who was charged to transfer an estate after deducting the fourth of the same became the heir of a debtor of the estate before he transferred it. As, on this account, the right of action was merged and could not be restored under the Trebellian Decree of the Senate, three-fourths of the indebtedness might be claimed by virtue of the trust; but the interest for the past time which was due on the obligation, or on a judgment which had been obtained, must be calculated up to the time when the right of action was extinguished, and interest cannot be calculated for the ensuing time, unless the heir was in default in executing the trust. 1Where an estate should be transferred within a certain time under the terms of a trust, no liability will attach to the heir on account of claims due to the estate, merely because he may have collected money from some of the debtors. 2Where anyone is charged to transfer an estate after a certain time, he is not compelled to pay over any interest received from debtors of the estate, which was due after the death of the creditor, and if this is not collected, a right of action to recover all the interest (for the stipulation is a part of the estate) will pass under the Trebellian Decree of the Senate, and therefore will not be a claim for money which is not due. And, in like manner, if the interest which has accrued during the intermediate time is not paid to a creditor of the estate, the beneficiary of the trust will also be liable for this under the Trebellian Decree of the Senate, and therefore there will be no ground for complaint that the heir did not pay the interest out of the income which he had a right to collect. Still, if the heir should pay the interest for the intermediate time, he will not be entitled to retain anything on this account, because he was transacting his own business, for as he was obliged to pay the principal to the creditor, he cannot be charged by the beneficiary of the trust with any interest paid during the intermediate time. 3Where an heir is charged to transfer an estate worth a hundred aurei, after having reserved an equal amount, he is considered to have received the entire sum of money under the Falcidian Law, and the Rescript of the Divine Hadrian should be interpreted as if he had a right to reserve a certain sum out of the estate. This opinion should also be given where an heir is charged to transfer a part of the estate to his co-heir. The case is different where a portion of the land belonging to an estate is to be retained, as money can always be retained, but a portion of the land cannot be, unless with the consent of his co-heir who has the ownership of the same. Moreover, if the land is of greater value than his share of the estate, it is held that the Falcidian Law will apply to the excess, where the beneficiary of the trust petitions this to be done; for it has been established that the money which is paid must be set off against the land. 4Where an heir was charged to transfer an estate at the time of his death after reserving the income of the same, he cannot retain the offspring of female slaves, nor the increase of flocks which have replaced those that died. 5The profits and the interest which debtors to an estate have paid before the day when the trust was to be executed, as well as those which have been paid afterwards, and also the rents of the fields collected by the heir, shall be included in the fourth to which he is entitled. 6Moreover, where an heir is asked to transfer an estate at his death, he cannot be compelled to sell the property of the estate, and the interest on the principal obtained from the price of the said property cannot legally be claimed, and is not considered to have been received instead of the use of the said property during the intermediate time. Again, though the heir is not compelled to assume the risk of the death of slaves, or of the destruction of houses in the city, still, the use of the said property and any losses incurred on account of it will, to that extent, diminish his fourth under the Falcidian Law. 7Where an heir is charged to deliver anything remaining from the estate at the time of his death, he is not considered to have been charged with the transfer of any profits which he may have collected, as these words of the testator refer to a diminution of the estate, and do not mean that the beneficiary of the trust shall profit by the addition of the income. 8Where anyone is asked to transfer anything remaining from his estate at the time of his death, his heir will not be compelled to release any of the property which the deceased had pledged, provided this has not been done fraudulently.

61Ad Dig. 36,1,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.Paulus, Questions, Book IV. Ad Dig. 36,1,61 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 249, Note 4.A debtor appointed his creditor, to whom he had given property in pledge, and his heir charged him to transfer his estate to his daughter, that is the daughter of the testator. The creditor, having refused to accept the estate because he suspected it of being insolvent, was compelled to do so by order of the Prætor, and transferred it. As he could not find a purchaser for the pledge, he asked that permission be granted him to retain it by the right of ownership. I gave it as my opinion that the obligation was extinguished by his acceptance of the estate. However, let us see whether the pledge was not released as the natural obligation was disposed of. And let us also consider what the result will be, and whether the creditor who brings an action possesses the property, or whether the heir is, or is not, in possession of the same. If the creditor is in possession of it, suit cannot be brought against him by the beneficiary of the trust, nor can he be sued in an action on pledge, as the right to proceed belongs to the estate; nor can an action under the trust be properly brought on the ground that the heir has transferred less property than he should have done, which would be the case even if there had been no pledge: for the creditor, in this capacity, has possession of the property. And even though the beneficiary of the trust may hold the property, he will be liable to the Servian Action, for it is certain that the money has not been paid; just as we hold when an action is lost on account of an exception. Therefore, not only the property can be retained but suit can be brought on the ground of the pledge, and what has already been paid cannot be recovered. Hence the natural obligation based on the pledge continues to exist. If matters remain in their original condition, I do not think that the creditor could be compelled to accept the estate, unless security was first given to indemnify him, or his claim was satisfied. For where an appointed heir proceeds against the beneficiary of the trust for his own advantage, for example, where he has received a legacy in case he should not become the heir, it has been decided that he ought not to be compelled to enter upon the estate, unless the legacy is paid; for indeed it may be said that the heir cannot be compelled to accept the estate contrary to the will of the deceased, who, by making a bequest to him provided he did not enter upon it, left the acceptance of the estate to his own choice. Where, however, the testator bequeathed his heir one of two things, we give him one or the other of them. 1A woman, who gave a dowry, agreed with her husband that, if she died during the marriage, half of her dowry should be returned to her mother, but no stipulation to that effect was entered into by her mother. The woman afterwards, at the time of her death, appointed her mother and her husband her heirs, and charged her mother to transfer her estate to Titius. The court, in rendering a decision with reference to the division of the estate, adjudged half of the dowry to the mother in compliance with the terms of the agreement. The question arose whether this portion of the dowry should be paid in accordance with the provisions of the trust. I think that it should not be paid, because the mother did not receive it as an heir, but as the mother under a contract, and she was entitled to it, not on account of the estate, but through an error in the construction of the agreement.

62The Same, Questions, Book XI. A patron who had been appointed heir to that portion of an estate to which he was legally entitled, having been charged to transfer the sixth part of the same, did so. In this instance the rights of action do not pass under the Trebellian Decree of the Senate, as the property which was transferred was not due, and therefore if this was done through mistake, it can be recovered.

63The Same, Opinions, Book XIV. Paulus formulated an opinion in the following words, “Sempronius, I have not appointed you my heir, because I made my will hurriedly on account of my illness, and therefore I wish you to receive an amount equal to a twelfth of my estate.” By this it appears that the testator left to Sempronius a certain sum of money rather than a share of his estate, but this must be understood to mean that the testator intended to leave him in trust an amount equal to a twelfth of his property.

64Scævola, Opinions, Book IV. A father charged his daughter, if she left any children at her death, to transfer to her brother half of what she obtained from the paternal estate, but if she should die without issue, he directed that she should transfer the whole of it to him. As the daughter died during the marriage, leaving a daughter, the question arose whether her heir should transfer to the brother half of the estate together with half of the dowry which had been given to her husband. The answer was that what had been given by way of dowry was not included in that part of the estate which should be transferred; and that even if something was due by virtue of a promise made with reference to the dowry, it should be classed among the debts of the estate. 1A testator left a certain sum of money to a boy whom he had brought up, and directed it to be paid to Sempronius, and that a certain amount of interest on said sum should be paid to the boy until he reached his twentieth year; and it was then provided that, if he should die without issue, he should pay half of the said sum to Sempronius, and half to Septitia. The boy, having died before reaching his twentieth year, the question arose whether those who had been substituted for him could claim the benefit of the trust at the time of his death, or whether the trust would continue to exist for that period of time which would have been required for the boy to reach his twentieth year, if he had lived. I answered that, according to the facts stated, the execution of the trust could be demanded at the time of the boy’s death.

65Gaius, Trusts, Book II. As soon as delivery is made to the beneficiary of a trust, everything belonging to the estate becomes the property of the person to whom it is transferred, even though he may not yet have obtained possession of the same. 1When anyone has stipulated that an estate shall be returned to him by the heir, and it has been transferred to him, after an action under the stipulation has been brought, it is established that the rights of action also pass, that is to say, if the person against whom suit was brought transfers the estate. If, however, the heir should lose the case because he did not transfer the estate, and should have judgment rendered against him for the amount of its appraisement in court, he will be entitled to retain the rights of action belonging to the estate, for the plaintiff has recovered the entire amount which he claimed. 2If the appointed heir should transfer the estate, and should afterwards be sued and lose his case, or abandon it, it has been decided that the rights of action will always belong to the beneficiary of the trust, after they have been once transferred to him. 3If anyone who was asked to transfer a portion of an estate should transfer a larger portion than he was charged to do, the rights of action will not be transferred. Where, however, the heir was charged to transfer an estate after having reserved for himself a certain article, or a sum of money, and he transfers the entire estate, without retaining what he was entitled to, it is very properly held that the rights of action are, nevertheless, transferred. 4If an heir, before transferring the estate, should order a slave belonging to the same to accept another estate, to which he had been appointed heir by someone, Julianus denies that the latter estate should be transferred, because the heir was not charged to transfer it; and it must be confessed that this opinion is correct. Nevertheless, it must be ascertained whether the heir was charged to transfer the estate with any increase which might have accrued. For if this was the case, he can also be compelled to transfer the latter estate, unless the heir should prove by the clearest evidence that it was with reference to himself that the slave was appointed an heir. 5It is stated in a Rescript of the Divine Antoninus that where anyone has received from Titius a certain sum of money which amounts to a fourth of the estate, and is charged to deliver the entire estate to him, although the money may not be paid immediately, it must be paid without interest, because the later anyone makes payment the later he will receive the benefit of the trust, and, in the meantime, he will lose the profits. Wherefore, if the beneficiary of the trust has had possession of the estate before having paid the money, he must deliver to the heir any profits of the same which he may have collected. 6The same rule of law applies where anyone charges his heir with a trust, as follows, “I ask you to transfer my estate to Titius, if he pays you a hundred aurei.” 7Ad Dig. 36,1,65,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 664, Note 3.Where an heir is appointed under a condition, and says that he has reason to believe that the estate is insolvent, he can be ordered to comply with the condition, and to enter upon and transfer the estate, if the condition is not difficult, nor involves turpitude, nor presents any serious obstacle. If, however, the condition should be disgraceful or difficult of performance, it is clearly unjust to compel the heir to comply with it for the benefit of another. It has been held that he should be released in the beginning from compliance with such a condition, as it is absurd for more to be granted to the person claiming the benefit of the trust than the testator intended he should receive. Still, the testator did not call the appointed heir to the succession, unless the condition was complied with, nor did he intend that the estate should be transferred by him unless it was fulfilled. 8Where the condition of the payment of a sum of money to the heir is imposed, he who claims the benefit of the trust should tender him the amount, so that the condition having been complied with, the heir can enter upon and transfer the estate. 9If, however, the condition imposed is one of those remitted by the. Prætor, the authority of the Edict will be sufficient, so Julianus says. The heir can be compelled to accept by having recourse to the prætorian action, or he can demand possession of the property in accordance with the terms of the will; so that, having acquired the rights of action, he can then assign them in accordance with the Decree of the Senate, after having transferred the estate. 10If, however, the condition is that of assuming the name of the testator, which is one that the Prætor requires to be fulfilled, the heir will be considered to have acted properly if he complies with it, as there is nothing reprehensible in assuming the name of an honorable man; for the Prætor does not require this condition to be observed in the case of names which are notorious and disgraceful. If, however, the individual in question should refuse to take the name, Julianus says he ought to be excused from complying with the condition and should be granted prætorian actions, or he should be given possession of the property of the estate in accordance with the terms of the will, so that, having acquired the rights of action, he can assign them in accordance with the Decree of the Senate. 11If you should suspect the estate to be insolvent, and, on my application, you are forced to enter upon it by order of the Prætor, and to transfer it to me, I can avail myself of the benefit of the Falcidian Law, as against the legatees, just as you can also obtain the benefit of that law, and to the same extent that you can do so; for if anything is left to me in trust for the benefit of another, as I am only charged with it as legatee, it is not included in making the calculation under the Falcidian Law, but must be computed separately. 12Where Titius is charged to transfer an estate to Mævius, and Mævius is charged to pay a certain sum of money to Seius, and Titius avails himself of the privilege of retaining a fourth of the estate as against Mævius, Mævius, as Neratius says, will be this much less liable to Seius, in order to avoid sustaining any loss of his own property. 13Julianus holds that if an appointed heir is charged to transfer an estate to Titius, who is substituted for Mævius, and the appointed heir alleges that he considers the estate insolvent, on the application of Titius, he can be ordered to enter upon and transfer it. 14If anyone should charge a person entitled to the possession of an estate under the Prætorian Law, to transfer the same, and the latter suffers the time for obtaining possession under that law to elapse, or he to whom the estate is to be transferred, for some reason or other, is not able to appear before the Prætor and assert his claim during the prescribed time; in order that the estate may be delivered to him who is entitled to possession of the same under the Prætorian Law, relief should be granted him, that is to say, he may be given sufficient time to obtain possession of the property for the purpose of executing the trust. 15We should also note that if a person who is not solvent, after having appointed Titius his heir, orders one of his slaves to be free, and charges Titius to transfer the estate to him, if Titius refuses to accept the estate, he can hardly be compelled to do so; for although Titius may enter upon the estate on the application of the slave, still the latter cannot obtain his freedom, if it has been granted for the purpose of defrauding creditors, even though Titius may be wealthy, for which reason the estate cannot be transferred to him. But taking into consideration the spirit of the law, it must be said that the case is the same as if the slave was free and appointed the sole heir, and that Titius was not the heir at all.

66Marcianus, Trusts, Book IV. Ad Dig. 36,1,66 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 15.If the estate of a ward, to whom money was lent without the authority of his guardian, is transferred to me under the Decree of the Senate, and I pay the creditor, I cannot recover the money. But if the heir should pay the debt after the property has been transferred, he can recover the amount, for no other reason than that the natural obligation was understood to have been transferred from him to me. On the other hand, if the estate of the person who made the loan to the ward without the authority of his guardian should be transferred to me and the ward should pay me, he cannot recover the money. If, however, he should pay the heir of the creditor, he can recover it, but he cannot do so if he paid him before the transfer of the estate had been made. 1If necessary heirs are appointed under some condition which it is easy to comply with, and which is usually observed, it must be said that they can be compelled to transfer the estate upon the application of those to whom they are charged to transfer it; because even necessary heirs are compelled to comply with the condition for the purpose of executing a trust. 2Where anyone is charged to transfer an estate, and dies before doing so, his heir can transfer it, and the rights of action pass to the beneficiary of the trust under the Trebellian Decree of the Senate. If, however, there are two heirs, and each of them is chargd to transfer the estate, the rights of action will pass to the beneficiary in proportion to the share of each of the said heirs; for if each one should transfer his share, it is certain that the rights of action will pass in proportion to the said share. If the person who is asked to transfer the estate should leave several heirs, and some of them should transfer their shares before the others, or where he to whom the estate is to be transferred leaves several heirs, and a transfer is made to one of them, he will be entitled to the rights of action in proportion to his share, under this Decree of the Senate. 3Where a patron is appointed heir to that portion of an estate to which he is legally entitled, and is asked to transfer it to the disinherited children of his deceased freedman, and he voluntarily accepts the estate, the Falcidian Law will apply; if he is compelled to accept it, the rights of action will pass entirely to the said children under this Decree of the Senate.

67The Same, Trusts, Book V. Ad Dig. 36,1,67 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 11.An estate cannot legally be transferred to a slave, if his master is unwilling or not informed of the fact, but if he afterwards ratifies the transfer, it will be confirmed, and the rights of action will be acquired by the master himself, not for the reason that this transfer resembles the acquisition of the estate, and that the order of the master must precede it, but, as has already been stated, the subsequent ratification can be made just as in the case of the possession of property under the Prætorian Law. Nor does it make any difference, in the present instance, whether the master himself or his slave is charged to transfer his estate, nor is the consent nor the agency of the slave required but his consent is necessary where prætorian possession of the property is demanded, or an estate is to be accepted. Therefore, where heirs allege that they think an estate is insolvent, on the application of the master they can be compelled to enter upon and transfer it. 1Where a testator charges his heir to transfer his estate to a woman, if she does not marry, it must be held that if the heir alleges that he suspects the estate of being insolvent, he can be compelled to accept and transfer it to the woman, even if she should marry. Our Julianus adopts this view with reference to other conditions which, in like manner, cannot be fulfilled except at the termination of life. In accordance with this opinion, a bond should be furnished by those to whom the heir has been charged to transfer the estate under similar conditions, to deliver it to the persons to whom it will belong if the condition should not be complied with. 2If the Prætor, after proper investigation, should, either through mistake or partiality, order an estate to be transferred as due under a trust, it is to the interest of the community that it should be transferred, on account of the authority which invests judicial decisions. 3Where anyone is charged to transfer an estate to a ward who is not old enough to talk, and he voluntarily enters upon said estate, it can be transferred either to the slave of the ward, or to the ward himself, with the authority of his guardian; and the incapacity of the child to speak is no more an impediment to the transaction than exists in the case where a mute, who has reached the age of puberty, desires an estate to be delivered to him. If, however, the heir refuses to enter upon the estate, it is difficult to decide how the matter can be settled, because there will be no ground for the application of the Trebellian Decree of the Senate if the guardian should ask that the estate be accepted at the risk of his ward; nor can the ward ask that this be done, as he does not possess the faculty of speech. This question may be more easily solved in the case of persons who are dumb, for if they are interrogated and can hear, they can indicate by a nod that they are willing to accept the estate at their own risk, just as persons who are absent can give their consent by a messenger. However, I have no doubt that relief ought to be granted the child, and that this rule should be established on account of the resemblance between the Civil and the Prætorian Law. But if the said ward should be appointed heir, there is no doubt that he can act as such under the authority of his guardian; or, where a question arises with reference to obtaining possession of an estate under the Prætorian Law, he can claim it by his guardian; hence if appointed heir, he can be compelled by his guardian to enter upon and transfer the estate. In the same manner, a person who is dumb and destitute of understanding can be assisted by his curator. 4Where property is delivered by the heir, on my order, to the person to whom I have sold it, there is no doubt that the transfer should be considered to have been made to me as the beneficiary of the trust. The same rule will apply if, by my order, the property is delivered to anyone to whom I would be obliged to deliver it under the terms of a trust, or for any other reason; or to one to whom I intended to lend it, or give it.

68Paulus, Trusts, Book II. Where anyone is appointed an heir under the condition that his coheir will enter upon the estate, he can avail himself of the benefit of the Falcidian Law, even if his co-heir should enter upon the estate under compulsion; provided that he himself is not compelled to do so. 1Julianus says that under this Decree of the Senate an estate can be transferred to the agent of an absent beneficiary of the trust, if he should desire this to be done; provided, however, that he gives security to ratify the act, if the wishes of the absent party were not known. But it must be said that, if the heir alleges that he suspects the estate of being insolvent, he should not be compelled to accept it, if it is uncertain whether the beneficiary directed this to be done; even though a bond should be furnished, on account of the weakness of the security. If, however, he should enter upon the estate voluntarily, no great injury can result, but, if the beneficiary did not authorize it, the rights of action will not pass to him until he has ratified the transfer of the estate. 2If some wrong has been committed against a slave belonging to the estate, although an action will lie in favor of the heir on account of the said slave, still, the right of action under the Aquilian Law will not pass to the beneficiary of the trust, for only those rights pass which were included in the property of the deceased. 3If a Deputy is compelled to enter upon and transfer an estate at Rome, the beneficiary of the trust will be compelled to defend actions at Rome, although the heir is not compelled to do so. 4It is well to consider whether the beneficiary of the trust should be sued in the same place where the deceased ought to have been sued, and if the heir entered upon the estate voluntarily and transferred it, whether the beneficiary of the trust can make his defence in any one of three different places, namely, where the deceased was domiciled, or where the heir, or he himself, resides. Therefore, it must be held that the beneficiary of the trust should be sued either where he has his domicile, or where the greater part of the estate which was transferred is situated.

69Valens, Trusts, Book III. If, upon my application, and, under the decree of the Prætor, you accept an estate suspected of being insolvent, and I should afterwards be unwilling to have it transferred to me, or to concern myself with it, the following course (which is not improperly approved by Octavenus) should be pursued, namely, the Prætor should grant actions against me just as if I had received the estate; which opinion is perfectly correct. 1At the same time when you have formed a design to defraud your creditors, you can enter upon an estate suspected of being insolvent, and transfer it to me, without running the risk of an interdict on the ground of fraud; because, even though you were not charged with the trust in my favor, you are at liberty to refuse to accept the estate, and by doing so can defraud your creditors; and I will not act dishonorably in accepting the said estate which your creditors could not have compelled you to enter upon if I had not required you to do so. 2Where a son, who is his own master, becomes the heir of his father, and is charged by him to transfer his estate to me; and, having formed the design of defrauding his creditors, transfers the estate to me under the decree of the Prætor, after having pretended that he believes it to be insolvent, there will hardly be ground for the application of an interdict based on fraud; because if the property of his father had been sold, his creditors could not have obtained anything belonging to him out of the estate; unless the creditors of the son himself should be heard, if they ask to be permitted to sell the property of the son without including that of the father. 3If the heir, for the purpose of making a donation, should say that he suspects the estate of being insolvent, and should transfer it to someone who has no right to take it, the beneficiary of the trust shall be deprived of that to which he is not legally entitled. The same rule will apply where the fiduciary heir does this without the intention of making a donation.

70The Same, Trusts, Book IV. Where an heir, who was asked to transfer an estate by a person who was bankrupt at the time of his death, alleges that he thinks that it is insolvent, there is no doubt that, under the present interpretation of the Trebellian Decree of the Senate, he can be compelled to transfer the estate, and, even though he should accept it voluntarily, it must be: transferred under the said Decree, although, if a certain sum of money, or a specified article of property should be given in trust by one who is insolvent, it is considered not to be due, just as if it had been directly bequeathed; for, in this instance, the person to whom the property is left in trust takes the place of a legatee, while, in the former one, he takes the place of the heir. 1If, having been charged to transfer an estate, you accept it voluntarily, and deliver it without deducting the fourth, it will be difficult to believe that you have done this rather through ignorance, than for the purpose of more completely executing the trust. If, however, you can prove that you did not reserve the fourth through mistake, you can recover it.

71Marcianus, Trusts, Book VIII. When the heir transfers an estate, he is not obliged to furnish security against the eviction of the land, slaves, or any other property belonging to the same; but, on the other hand, the beneficiary of the trust must give security to indemnify the heir, if he should be evicted of any of the property which was sold by the latter.

72Pomponius, Trusts, Book II. If an appointed heir is asked to transfer the estate to Titius, and Titius is asked to return it to the heir after a certain time, direct actions will be sufficient to establish the rights of the heir. 1If the heir, before he transfers the estate left in trust, alienates any portion of the same, or manumits a slave belonging to the estate, or destroys, breaks, or burns any of the property, no civil action can be brought against him, if he transfers the estate afterwards under the Trebellian Decree of the Senate, but suit can be brought against him under the trust, on account of the property which has been destroyed. If, however, the heir has committed any of these offences after the estate has been delivered, it must be held that he can be sued under the Aquilian Law; for instance, if he has either wounded or killed a slave belonging to the estate. 2If a temporary right of action is bequeathed to the estate, the time in which the heir could have brought it before transferring the estate will be charged against the person to whom the estate was transferred.

73Marcianus, Trusts, Book X. All the heirs who deliberate with reference to an estate can be compelled to accept it, but not to transfer it immediately, on the application of anyone who desires it to be accepted at his risk; but in such a way that if, after the time of deliberation has passed, they should deem it expedient for them to accept it, they can enjoy the benefit of the will, just as if they had voluntarily entered upon the estate. But, on the other hand, if they should consider its acceptance unprofitable, they shall be released from liability by delivering it.

74Pomponius, Trusts, Book IV. When an heir was charged to transfer an estate, after reserving a certain tract of land which belonged to someone else, Aristo says that it should be ascertained whether the testator intended that the said land should belong absolutely to the heir, or only in case it was ascertained to belong to himself. He holds that the former opinion should be adopted, and therefore that the estimated value of the land should be reserved from the estate.

75Marcianus, Trusts, Book XXXII. If an heir lends property belonging to an estate, and takes pledges to secure the loan, the rights of action will not pass to the person to whom the estate is transferred, as against the property which has been pledged. There is some doubt, however, in a case where the heir, before he transferred the estate, had received a pledge under a contract made by the deceased. Still, the beneficiary of the trust will not be permitted to bring suit to recover the pledge, but he can proceed against the heir, to compel him to assign to him his right of action for its recovery. 1Where an estate is transferred under the Trebellian Decree of the Senate, the servitudes with which the lands of both the heir and the testator are mutually charged will still remain valid.

76Paulus, Decrees, Book II. Ad Dig. 36,1,76 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 568, Note 7.A man who had a son and a daughter made a will, and provided as follows for his daughter, “I charge you not to make a will until you have children,” the Emperor decided that a trust was created by this clause, and in this way the testator, by forbidding his daughter to make a will, manifested his desire that she should render her brother her heir, and that the said clause should be understood just as if the testator had charged her to transfer the estate to her brother. 1Fabius Antoninus left a son Antoninus, who had not reached puberty, and a daughter Onorata, and, after having disinherited them, appointed their mother Junia Valeriana, his heir, charging her with a legacy of three hundred aurei and other property for the benefit of his daughter, and then desired all the remainder of his estate to be delivered to his son Antoninus, when he attained the twentieth year of his age. He also directed that the said estate should be transferred to Onorata, if his son should die before reaching his twentieth year. The mother died intestate, leaving her two children her heirs-at-law. Afterwards, the son, having passed his nineteenth year and entered his twentieth, which he had not yet completed, died, leaving his daughter Favia Valeriana his heir. Her paternal aunt brought suit under the trust, as well as for a share of the estate under the will of the father, and gained her case before the Governor of the province. The guardians of Valeriana, the daughter of Antoninus, alleging her poverty, cited a Constitution of the Divine Hadrian by which he had ordered that where a certain age was required for the discharge of municipal duties, the year in which the person had entered should be considered to have expired. Our Emperor also, being influenced by the justice of the case, as well as by the words of the will, “When he reaches the twentieth year of his age,” although he said that he knew that a man who had entered his seventieth year was not excused from guardianship by the Divine Marcus, and although we cited the arguments of the law of Ælia Sentia, decided against the aunt who made the claim.

77Scævola, Digest, Book XVIII. Titius wrote a letter to his heir as follows: “Titius to Cornelius, his heir, Greeting. As the share left to my mother has come to you, as well as that of Sempronius, my former curator, who has met with a misfortune, on account of which it may be expected that you will obtain my entire estate, I charge you, Cornelius, to give and transfer one-third of the same to Gaius Seius.” As Sempronius had been granted complete restitution by the Emperor who banished him, and had accepted the estate, the question arose whether he also was charged to transfer his share of it. The answer was that Sempronius was not charged in any way, but that the heir, Cornelius, must deliver to Seius, pro rata, that portion of the estate of the mother of the testator which had come into his hands. 1A woman asked her appointed heir, after he had reserved a fourth of the estate, to transfer the remainder to her daughter-in-law, the widow of her deceased son whom she also charged with a trust, as follows, “I ask you to deliver to your son all of my estate which may come into your hands.” The question arose when the daughter-in-law should execute this trust, whether at her death, or immediately. The answer was that it should be executed at the time of the daughter-in-law’s death.

78Ad Dig. 36,1,78Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 561, Note 3.The Same, Digest, Book XIX. Scævola gave it as his opinion that, if a father should appoint his son heir to his entire estate, and substitute another for him by a codicil, and the son should die before reaching puberty, although the substitution would be void because an estate cannot either be bequeathed or taken away by a codicil, still, by an equitable interpretation, it should be held that the mother who succeeded the intestate minor will be liable to the substitute under the terms of the trust. Where several persons are substituted for one another the substitution will be valid under the trust, and if one of them should die, the survivors will be entitled to the entire estate.

79The Same, Book XX. A testator charged each one of his children of both sexes, whom he had appointed his heirs, if any of them should die without issue, to leave his or her share of the estate to his or her brother or sister, and if there should be no brother or sister, to leave it to his or her mother, and added the following words, “I charge you, my dear children, with this trust until you have brought up two children.” If anyone of the said heirs should have two children, although they might not survive, the question arose whether his or her heirs would be compelled to execute the trust. The answer was that, according to the facts stated, they would be considered to have been released from the obligation of the trust. 1Titius appointed his grandsons by his daughter, and his daughter, who was insane, his heirs, and charged the said daughter with the trust that if she should die without issue, the share of his estate which had been given to her should pass to her co-heirs. Titius gave his insane daughter in marriage, and she brought forth a daughter after the death of her father. The said insane daughter, having died leaving a daughter as the issue of this union, the question arose whether the co-heirs were entitled to the benefit of the trust. The answer was that as, according to the facts stated, the heir had left a daughter, the trust was not due. Claudius: For though the marriage with the insane woman was not legally valid, still it was sufficient to enable the condition to be complied with.

80The Same, Digest, Book XXI. Lucius Titius, expecting to die intestate, and having a wife and a daughter by her whom he had emancipated, inserted the following provision into a codicil, “This codicil has reference to my wife and my daughter. Therefore I ask that anything that I may leave you, or that you yourself have, will belong to you in common; and whatever I do not ask you to do, I am sure that you will do, through your affection for me.” The daughter acquired possession of the estate of her intestate father under the Prætorian Law. The question arose whether any part of the estate of Lucius Titius was due from the daughter to her mother, on account of the trust. The answer was that, in accordance with the facts stated, a part of it was due, if the wife was ready to place her own property in a common fund with that of her daughter. 1Mævia left two daughters her heirs, and in the same will she inserted the following provision: “I charge my heirs to leave all my property on deposit, without interest, with Gaius Seius and Lucius Titius, whom, if it should be lawful, I have appointed the curators of my estate, excluding all others, in order that they may transfer it to my grandchildren pro rata, when each one of them arrives at the age of twenty-five years; or if only one of them should reach that age, to transfer all my estate to him.” The question arose whether the trust should be executed by the appointed heirs for the benefit of Lucius Titius and Seius. The answer was that, in accordance with the facts stated, Lucius Titius and Gaius Seius could not claim the trust. 2A woman appointed three heirs, her brother Mævius to three-fourths of her estate, Seius to a sixth, and Stichus, the slave of the said Seius and the natural son of Mævius, to a twelfth; and she charged Seius to manumit Stichus, as follows, “I charge you, Seius, to manumit Stichus, and I have given you the means to do so.” She also made the following provision in a codicil: “If Seius should originate any controversy with reference to the twelfth of my estate, to which I have appointed Stichus the heir, I desire it to revert to my brother Mævius; and my brother, as I rely upon your good faith and recollection, I ask to deliver everything which may come into your hands from my estate to your son Stichus, and I charge you to do this under a trust.” As Seius entered upon the estate and on this account was compelled to manumit Stichus, the question arose whether he was obliged to transfer to Stichus, after his manumission, the twelfth of the estate to which the latter had been appointed heir. The answer was, that there was nothing stated to show that Seius was charged to transfer to him the twelfth part of the estate. 3Inquiry was also made, if Seius wished to raise any question with reference to the twelfth to which Stichus had been appointed heir, and Mævius should obtain the said twelfth from Seius under the terms of the trust, whether he must also transfer to Stichus the three-fourths of the estate to which Mævius himself had been appointed heir. The answer was that it was the intention of the testatrix that all of the estate which had come into the hands of Mævius in any way whatsoever should be transferred to Stichus. 4A father appointed his son and daughter his heirs, and substituted them for one another, and then substituted several heirs for them, in case neither of them should become an heir, and substituted the substitutes themselves for one another, by the following words, “I substitute the substituted heirs for one another.” He also charged any one of his children who might survive the others and die without issue before reaching the age of thirty years to transfer his estate to those whom he had substituted as the heirs of the said child. His son survived his sister, and died without issue before reaching his thirtieth year. One of the substitutes having died before the son, as his share would belong to the other substitutes who survived, the question arose whether ft would pass to them equally, or in proportion to the shares of the estate for which they had been substituted. The answer was that the substitutes were entitled to the benefit of the trust in proportion to their respective shares. 5Mævius appointed her son heir to five-twelfths of her estate, her daughter, Titia, to a fourth, and her other son, Septitius, to a third; and she charged the latter with a trust in the following words, “My son, Septitius, I ask you to transfer to your brothers all of my estate which may come into your hands, if, before reaching your twentieth year, you should die without leaving any children.” Septitius, having died without issue before reaching his twentieth year, the question arose whether the estate would belong to the brother and sister in proportion to their respective shares of the same, or whether it would belong to them equally. The answer was that it would belong to them in proportion to their respective shares. 6Titia, having been appointed sole heir to an entire estate and charged to transfer half of the same to Mævia, did so; she, however, refused to pay the amount for which a tract of land had been encumbered by the testator, but as the creditor sold the property she directed Seia to redeem it. The question arose whether Titia would be liable to Mævia under the terms of the trust. The answer was that, as the heir was charged to transfer the estate, there was nothing in what was stated to show that she should not be liable. Claudius: For she is obliged to pay Mævia half the value of the land, and as much more as had been necessary to satisfy the creditor. 7A certain man, having appointed Gaius Seius heir to half of his estate, Titia heir to a quarter of the same, and other persons heirs to the remainder, inserted the following provision into his will, “I charge you, Gaius Seius, at your death to give and deliver to Titius and Sempronius half of my estate, that is to say, the portion which I have given to you.” Both of the above-mentioned persons having accepted the estate, and Gaius Seius having subsequently died after appointing Lucia Titia his heir, the question arose whether the said Lucia Titia was obliged to transfer immediately half of the estate which Gaius Seius had been charged to deliver, or whether she should, at the time of her death, transfer the entire trust, not only that with which she was charged, but also that of Gaius Seius. The answer was that Lucia Titia was bound to immediately transfer half of the estate which Seius had received. 8A testator appointed his daughter his heir, together with his grandson, who was her son, and after making a pupillary substitution to the latter, inserted the following provision into his will: “I bequeath to Lucius Titius, my nephew, and my son-in-law, two hundred aurei, and I know that he will be content with this legacy, as I have left all my estate to my daughter and my grandson, whom I have appointed my heirs, so that the entire estate will belong to them in common, and I commend them to one another.” The daughter, having entered upon her father’s estate, separated from her husband. The question arose whether Titius, her former husband, could, under the terms of the trust, in his own name or in that of his son, acquire the property held in common, either while his said former wife was living or after her death. The answer was that, according to the facts stated, there was nothing given to the son-in-law under the trust except two hundred aurei. 9The same wife appointed her husband her heir, and charged him at the time of his death to transfer to their common son everything which he had received from her estate; it was also asked whether the property and effects which he had given by way of dowry, and which had been returned to the woman after the divorce, should be included in the trust. The answer was that all the property which the woman left was included therein. Claudius: Advice having been taken at another time with reference to the same question, the conclusion was that either the property should be transferred in accordance with the opinion above given, and should be computed as part of the estate of the woman; or, if this was not done because of a stipulation entered into with reference to the restoration of the dowry, the estate should be considered to have increased on this account. 10A woman who had a son and by him a grandson, both of whom were under the control of her husband, appointed the latter her sole heir, and charged him with a trust as follows, “If my husband, Titius, should be my heir, I ask and charge him, at the time of his death, to give and transfer everything which may come into his hands from my estate, in such a way that our son Gaius may have ten-twelfths of the same, and our grandson Seius two-twelfths; and I charge my heir Titius to see that this is done.” The father emancipated his son, lost his grandson, and then died, being survived by his son. The question arose whether the son, under the terms of the trust, by the first part of the will, was entitled to the entire estate of his father, and whether the following words, “In such a way that my son may have ten-twelfths of the same, and my grandson two-twelfths,” should, in compliance with the intention of the deceased, only be applicable where both the son and grandson were living at the time the trust became due; or, as the grandson was not living at that time, whether the following clause of the will would be of no force or effect. The answer was that, in accordance with the facts stated, it was evident that only ten-twelfths of the estate should be given to the son. 11An appointed heir, having been asked to transfer three entire estates to the wife of the testator, did so, after having deducted a fourth of the same. The question arose, if the wife had been asked by the testator to transfer the fourth part to his estate immediately, and the remainder after a certain time had elapsed, whether that portion which the heir had deducted from it as a fourth should be accounted for when the property was transferred under the trust? The answer was that the woman was only liable for the amount which she had received under the trust. 12A testator charged his heirs to transfer all of the third part of his estate, which might come into their hands, to Gaius Mævius, whom he had brought up, when the latter should reach the age of fifteen years, and added the following words: “In the meantime, you will employ the income of the amount which may come into your hands to keep him from poverty which amount should be lent at interest. In addition to this, I give to my said foster-child a certain slave, his foster-brother, born in my house, and another slave, a shoemaker, who can assist in supporting him with the proceeds of their labor.” As the heirs had provided the child with maintenance at a cost much below the amount of the interest of the sum which had been bequeathed for that purpose, the question arose whether they could be compelled to pay the balance for the entire time during which support was due, or only after he had attained his fifteenth year. And, as the slaves who had been specially bequeathed to him in order to contribute to his support with the proceeds of their labor had been immediately sold by their heirs, it was also asked whether their wages, with interest, could be claimed by the child. The answer was that, according to the facts stated, the intention of the testator seemed to have been that the entire income of the estate, as well as the wages of the slaves, should be delivered. 13A certain man having appointed several persons, including three freedmen, heirs to three-fourths of his estate, left them also some lands as a preferred legacy, and charged them “Not to alienate the said lands, so that whichever of them survived might acquire all for himself.” He afterwards charged one of the said freedmen to transfer to Titius everything that came into his hands from his estate, or his property, after having deducted the debts and legacies, and reserved twenty aurei for himself. The question arose whether he should also have deducted the third of the lands which had been devised to him and his fellow freedmen as a preferred legacy. The answer was that, according to the facts stated, the lands should not be transferred, as the testator himself had desired the legacies to be excepted. 14A husband, having appointed his wife heir to a third part of his estate, and charged her with several trusts, also bequeathed to her her dowry as a preferred legacy, in the following terms, “I wish the amount of her dowry which she brought me to be paid by my son to my wife, Seia,” and he charged his wife, at the time of her death, to leave to their common son, Titius, her share of the estate, and anything else which he had bequeathed to her. The question arose whether she would also be obliged to transfer to her son the amount of her dowry, together with the other legacies which she had received by virtue of the trust. The answer was that the testator did not intend that her dowry should also be transferred, unless it was otherwise established; and even if it was proved that he had intended this to be done, it could not be demanded, unless the amount which could be retained under the Falcidian Law was less than that of the dowry. 15An heir who was charged to transfer an estate to Septitius, when he reached the age of twenty years, in the meantime sold certain lands which the deceased had received by way of pledge; and having been sued by the debtor on account of the pledge, died, leaving Sempronius his heir, who transferred the estate to Titius before the case was decided. The question arose whether Sempronius himself should, nevertheless, have judgment rendered against him; for he could have retained the property in his hands, or could have exacted security for what he might be compelled to pay if he was defeated in court. The answer was that the judgment against the heir could still be executed after the delivery of the estate. 16The heir of a testator, who was charged to transfer the entire estate after his death, transferred only a small sum of money, which he alleged was all the property that belonged to the estate, to the beneficiaries of the trust who were entitled to it; and documents having subsequently been found, it appeared that there was four times as much in the estate as had been paid. The question arose whether suit could be brought against the heir for the remainder under the terms of the trust. The answer was that, in accordance with the facts stated, an action could be brought if no compromise had been made with him.

81The Same, Questions Discussed in Public. If a minor child becomes the heir of his father, and transfers part of the estate which was left in trust, and afterwards rejects the estate, the beneficiary of the trust has the right to decide whether he will keep the part delivered to him by the minor, as well as the share of the latter; or reject all; or permit the entire property of the estate to be sold, in order that any amount over and above the indebtedness may be preserved for the minor. If the property cannot be disposed of as a whole, all actions at law should be refused the beneficiary of the trust; for it was in his power to take the entire estate, and to keep for the minor anything remaining after payment of the indebtedness.

82The Same, Digest, Book V. Lucius Titius appointed his mother and his uncle, who were at the same time his creditors, his heirs, and charged them to transfer to Septitius any of his estate which might remain at the time of their death. The said heirs consumed a considerable part of the estate of the testator, and left several representatives who knew that Septitius had possession of many effects left from the estate of Lucius Titius. The question arose whether the heirs of the mother and the uncle could recover from Septitius anything which Lucius Titius owed them. The answer was that they could not do so. Claudius: The reason for this is that the obligations of the estate, having been merged, were extinguished; but that there could be a recovery on the ground of a trust, for those persons were destitute of justice who were alleged to have consumed much of the property belonging to the estate.

83Paulus, The Six Books of Imperial Opinions rendered in Judicial Proceedings, Book I, Otherwise, Decrees, Book XI. Julius Phoebus, having made a will, appointed his three children heirs (that is to say, Phoebus and Heraclia by his first wife, and Polycrates by his second) to equal shares of his estate, and asked Polycrates, the younger brother, to give up the estate to his brothers, in consideration of receiving a certain tract of land; and he substituted the two other brothers, born of the same mother, for one another, if one of them should not become his heir. By a second will he made a pupillary substitution for Polycrates, if the latter should die before reaching puberty, and provided that this will should be opened by the mother, if the boy should die under that age. He then charged the two older brothers, if either of them should die without issue, to transfer his share to the survivor, or survivors, after deducting the property derived from the estates of their mother, and grandfather. The sister Heraclia died without leaving any children, and appointed her brother Phoebus, her heir. Polycrates brought an action to compel the execution of the trust, and gained his case before Aurelius Proculus, Proconsul of Achaia. An appeal having been taken by Phoebus alone, the other party to the suit being absent, he was defeated, because the words “The survivor or the survivors” included both brothers. Although reciprocal substitution was made only of the two oldest children, the intention of the father was held to be that he had excepted the property of the mother of the said children, because Polycrates had a different mother who was still living, and who had been charged to transfer to her son Polycrates the same legacies which had passed to her husband through his first wife having died intestate.

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