Corpus iurisprudentiae Romanae

1 Ulpianus, On Sabinus, Book IV. Where freedom is granted to a slave several times in a will, that disposition will prevail by which he can best obtain his freedom.

2 The Same, On Sabinus, Book V. If anyone should appoint an heir as follows, “Let Titius be my heir, and if Titius should not be my heir, let Stichus be my heir; let Stichus be free,” Aristo says that Stichus will not be free, if Titius becomes the heir. It seems to me that he can be held to be free, as he does not receive his liberty in two different degrees, but it is granted to him twice; which is our practice.

3 Pomponius, On Sabinus, Book I. A minor of twenty years of age, who is in the army, is not permitted to manumit his slave by will.

4 The Same, On Sabinus, Book II. If anyone should make the following provision in his will, namely, “Let Stichus be free, and let my heir pay him ten aurei,” there is no doubt that the money will be due him, even if the head of the household should manumit him during his lifetime. 1The same rule will apply if the testator should say: “Let Stichus be free, either immediately or after a certain time; and when he becomes free, let my heir pay him ten aurei.“ 2It has been decided that if a legacy of freedom is bequeathed as follows, “Let my heir pay ten aurei to such-and-such a slave, if I grant him his freedom in the presence of the magistrate,” although, strictly speaking, this is different from a testamentary manumission, still, according to the dictates of humanity, the legacy will be valid if the master, during his lifetime, should emancipate the slave.

5 The Same, On Sabinus, Book III. Those provisions which are the least burdensome should be considered where freedom is granted by a will, and where there are several provisions of this kind, that which is the least burdensome is understood to be the one the most advantageous to the person manumitted. Where, however, freedom is granted by a trust, the last clause written must be taken into account.

6 Ulpianus, On Sabinus, Book XVIII. If the master of a slave appoints as his heir the usufructuary of said slave, and freedom is granted to the latter conditionally, as the slave in the meantime belongs to the heir, the usufruct will become extinguished on account of the merger which results, and if the condition should be fulfilled, the slave will obtain his freedom absolutely.

7 The Same, On Sabinus, Book XIX. Neratius says, that when freedom is granted to a slave as follows, “If I should have no child at the time of my death, let Stichus be free,” he will be prevented from obtaining his freedom in case a posthumous child is born. But, while the birth is in anticipation, shall we say that the slave remains in servitude; or shall we hold that he will become a freedman by retroactive effect, if no child should be born? I think that the latter opinion should be adopted.

8 Pomponius, On Sabinus, Book V. Where the following provision was inserted into a will, “Let Stichus be free if he has transacted my business properly,” the degree of diligence displayed by Stichus must be considered with reference to its benefit to the master, and not to the slave; and he must also manifest his good faith by paying over any balance which may remain in his hands.

9 Ulpianus, On Sabinus, Book XXIV. Where a slave was bequeathed in order to be manumitted and, if he should not be manumitted, he was directed to be free, and a legacy was bequeathed to him, it has been frequently decided that he is entitled to his freedom, and that the legacy is due to him. 1Where it is stated in a constitution that a slave cannot be manumitted who is forbidden by will to be set free, I think that this only refers to slaves belonging to the testator or to his heirs, for it cannot apply to a slave belonging to another.

10 Paulus, On Sabinus, Book IV. Where the peculium of a slave is bequeathed as a preferred legacy, and a sub-slave, who forms part of the peculium, is directed to be free, it is established that he will become free, for there is a great deal of difference between genus and species. For it is settled that the species can be removed from the genus, as it consists of the peculium which was bequeathed, and the sub-slave who was manumitted. 1If a slave who is bequeathed is ordered to be liberated from servitude he will become free; but where, in the first place, he is considered to be free, and he is afterwards bequeathed, if it is evident that the intention of the testator was that he should be deprived of his liberty, and as it is at present held that he will be deprived of it, I think that he will form part of the legacy. If, however, the matter is in doubt, then the more favorable opinion should prevail, and he will become free.

11 Pomponius, On Sabinus, Book VII. If, after a slave has been bequeathed, his freedom has been left him under a trust, the heir or the legatee will be compelled to manumit him. 1“If Stichus and Pamphilus, pay ten aurei, let them be free;” one of them can become free by paying five aurei, even though the other may not pay anything. 2Where a slave is ordered to be free by a will, he immediately becomes free just as soon as one of several appointed heirs enters upon the estate.

12 Ulpianus, On the Edict, Book L. Where anyone leaves a slave his freedom under the condition of his taking an oath, there will be no ground for the application of the Prætorian Edict for the purpose of remitting the oath; and this is reasonable, for if anyone should remit the condition upon which the freedom of the slave depends, he will prevent the freedom itself from taking effect, as the slave cannot obtain it except by complying with the condition. 1Hence, if anyone should bequeath a slave a legacy with his freedom, the latter will not be entitled to the legacy, unless he complies with the condition of taking the oath. 2If, however, he should receive his freedom absolutely, and the legacy was granted under the condition of his taking the oath, Julianus, in the Thirty-first Book of the Digest, thinks that the condition of taking the oath should be remitted. 3Moreover, I hold that the same rule will apply where the condition was imposed upon the grant of freedom, and the testator, during his lifetime, manumitted the slave; for, in this instance, the condition on which the legacy depended is remitted.

13 The Same, Disputations, Book V. Where freedom was granted to two slaves under the condition that they should build a house, or erect a statue, the condition cannot be divided between them. Doubt can only arise where one of them, having complied with the condition, appears to have carried out the wishes of the testator, and therefore will be entitled to his freedom, which is the better opinion; unless the testator had expressed himself otherwise. One of the slaves, by doing what he was directed to do, complied with the condition so far as he himself was concerned, and while he did not do so with respect to the other, still the condition will no longer bind the latter, for he cannot comply with it any further after it has once been fulfilled. 1The same question can also arise where a legacy is bequeathed to two artisans or painters, under the condition that they shall paint a picture, or build a ship; for the intention of the testator must be considered, and if he imposed the condition of the performance of one upon the other, the result will be that when one of them does not do anything, the condition will not be fulfilled, although the other may be ready to do his share. If, however, it can be shown that the testator would have been content, if whatever he had written or stated was only done by one of them, the matter will be readily disposed of; for one of them will, by his act, benefit either himself and his associate, or himself alone, according as it appears to have been the intention of the testator. 2This question can also be discussed in the case where a testator grants freedom to two slaves, if they render their accounts. For Julianus asks, if one of them is ready to render his account, and the other is not, whether the former will be prevented from doing so by the latter. And he very properly says that if their accounts were kept separately, it will be sufficient for the one who renders his to obtain his freedom; but if both of them kept their accounts together, one of them shall not be considered to have complied with the condition, unless he pays the balance remaining in the hands of the other. We must understand this to mean that the books containing the accounts shall also be given up. 3If, however, a female slave, together with her children, is directed to be liberated, even if she has no children, she will, nevertheless, become free; or if she should have any, and they are not capable of obtaining their freedom, the result will be the same. This rule will also apply even though the slave herself cannot become free, as her children will still obtain their liberty; for the clause, “together with her children,” does not impose a condition, unless you suggest that the intention of the testator was otherwise; since, under such circumstances, these words must be understood to establish a condition. But that they do not impose a condition is proved by the Edict of the Prætor by which it is provided as follows: “I will order the mother of the unborn child and her children to be placed in possession of the estate.” For it is settled that even if there are no children, the mother of the unborn child should still be placed in possession of the estate.

14 The Same, Disputations, Book VIII. When a slave is granted his freedom absolutely, and is appointed an heir under a condition, it has been decided that even if the condition is not complied with, he will be entitled to his freedom.

15 Julianus, Digest, Book XXXIII. “I give and bequeath Stichus to Sempronius; if Sempronius should not manumit Stichus within a year, let the said Stichus be free.” The question arose, what is the rule in this case? The answer was that where freedom is granted as follows, namely, “If Sempronius should not manumit Stichus, let Stichus be free,” and Sempronius does not manumit him, he will have no right to Stichus, but he will be free.

16 The Same, Digest, Book XXXVI. Where the following provision is inserted into a will, “When Titius reaches the age of thirty years, let Stichus become free, and let my heir give him such-and-such a tract of land,” and Titius dies before reaching his thirtieth year, Stichus will obtain his freedom, but he will not be entitled to the legacy. For it is only in favor of freedom that it is admitted, after the death of Titius, that a time is held to exist during which freedom may be granted; but the condition on which the legacy depended is considered to have failed.

17 The Same, Digest, Book XLII. Freedom which is granted to take effect at the last moment of life, as for example, “Let Stichus be free when he dies,” is held to be of no force or effect. The following testamentary disposition, “Let Stichus be free, if he does not ascend to the Capitol,” must be understood to mean if he does not ascend to the Capitol as soon as he possibly can. Hence, Stichus would obtain his freedom in this way, if having the power to ascend to the Capitol he abstained from doing so. 1The question arose whether freedom should be considered to have been conditionally granted by the following provision in a will: “Let Pamphilus be free, in order that he may render an account to my children.” The answer was that freedom should be granted absolutely, and that the addition, “In order that he may render an account,” does not impose any condition upon the grant of freedom; still, because the manifest wish of the testator was expressed, the slave should be compelled to render his account. 2Where a slave is indefinitely ordered to be free after several years, he will become free after the expiration of two years. The favor-conceded to liberty requires this, and the words themselves are susceptible of such a construction; unless the person who is charged with the grant of freedom can prove by the clearest evidence that the intention of the testator was otherwise.

18 The Same, On Urseius Ferox, Book II. Where a testator appointed two heirs, and directed that his slave should be free after the death of one of them, and the heir upon whose death the freedom of the slave depended died during the lifetime of the testator, Sabinus gave it as his opinion that the slave would become free. 1The following condition, “Let him be free when I die,” includes the entire duration of life, and therefore is held to be void. It is better, however, that the words should be interpreted in a more favorable manner, and in such a way that the testator may be considered to have granted freedom to his slave after his death. 2The following gives rise to greater doubt, “Let him be free in a year,” as this can be understood to mean, “Let him be free after the year of my death,” and it can also be understood as follows, “Let him be free after the year when I made this will,” and if the testator should happen to die within a year, the grant of freedom will be of no force or effect.

19 The Same, On Urseius Ferox, Book III. A certain man charged his heir to manumit his slave, and if his heir did not do so he directed that he should be free, and he left him a legacy. The heir manumitted the slave. Several authorities hold that he obtained his freedom by the will, ana”, as this was the case, that he was also entitled to the legacy.

20 Africanus, Questions, Book I. A testator bequeathed his slaves, and made the following provision in his will: “I ask that you regard my slaves as worthy of their freedom, if they have acted meritoriously towards you.” It is the duty of the Prætor to compel freedom to be given the slaves, unless they have done something which renders them unworthy of obtaining their freedom, without such services being required of them as may be considered necessary for them to deserve it. The person who was asked to liberate them will still have the right to fix the time when he will do so; as, if he does not manumit them during his lifetime, his heir can be compelled to grant them their freedom immediately after his death.

21 The Same, Questions, Book IV. “Let Stichus, or rather Pamphilus, be free.” It was decided that Pamphilus should be free, for the testator appeared to have, as it were, corrected a mistake. The same rule will apply where it was stated in a will, “Let Stichus be free, or rather let Pamphilus be free.”

22 The Same, Questions, Book IX. A testator appointed his son, who had not reached the age of puberty, his heir, and ordered that Stichus should be emancipated after he had rendered an account of the silver plate, which was in his care. This slave had stolen a portion of the silver plate, which he had divided with the guardian, and he gave the other part of it to the guardian who took an account of it. Advice having been asked as to whether Stichus was free, the reply was given that he was not. But, on the other hand, as it has been decided if a slave who is to be free under a certain condition is directed to pay a certain sum of money, and pays it to the guardian, or it is the guardian’s fault that the condition was not complied with, he will obtain his freedom; this must be understood to mean that all is done in good faith, and without any fraud on the part of the slave or the guardian, just as is observed in the alienation of the property of a ward. Therefore, if the slave should tender the money and the guardian should not be willing to accept it because his ward will be defrauded, the slave cannot obtain his freedom, unless he was not guilty of fraud. The same rule applies with reference to a curator. The question also arose, where the slave was ordered to render an account of the silver plate, in what way he should be understood to have complied with the condition; that is to say, if any vessels had been lost without his fault, and he delivered the remaining ones to the heir, in good faith, whether he would be entitled to his freedom. The answer was that he would be entitled to it, for it is sufficient if he rendered an honest and just account. In short, he is considered to have complied with the condition by rendering to the heir such an account as the careful head of a household would accept.

23 Marcianus, Institutes, Book I. A slave, who has been manumitted by a will, only becomes free when the will is valid, and the estate is entered upon on account of it; or where anyone obtains possession of the estate on the ground of intestacy because of the rejection of the will. 1Where freedom is granted by a will, it is obtained as soon as the estate is accepted by one of the heirs. If it is granted after a certain period, or under a condition, it will be obtained when the time arrives, or the condition is fulfilled.

24 Gaius, Diurnal or Golden Matters, Book I. Slaves ordered to be free are considered to be expressly mentioned where they are clearly designated, either by their trades or offices, or in any other manner whatsoever, as, for instance, “My steward; my butler; my cook; the son of my slave Pamphilus.”

25 Ulpianus, Rules, Book IV. Where a slave is ordered to be free by the terms of a will, he will obtain his freedom as soon as any portion of the estate whatsoever is accepted; provided it is accepted by one belonging to the degree in which the slave is ordered to be free, and that he has been unconditionally manumitted.

26 Marcianus, Rules, Book IV. The Divine Pius and the Divine Brothers stated beneficently in a Rescript that where a slave, who was appointed a substitute, had been bequeathed a legacy, together with his freedom, in case he should not be an heir, but the bequest of his freedom was not repeated, the result would be the same as if this had been done.

27 Paulus, On the Lex Ælia Sentia, Book I. Those who can grant freedom by applying to a tribunal can also appoint slaves their necessary heirs; and this necessity itself renders the manumission proper.

28 The Same, On the Law of Codicils. “Let Stichus be free, if I do not by a codicil forbid him to be manumitted,” is the same as if a testator said, “Let Stichus be free, if I do not ascend to the Capitol,” for an heir can be appointed in this way.

29 Scævola, Digest, Book XXIII. A man repudiated his wife, who was pregnant, and married another. The first one, having had a son, exposed it, and it was taken away and brought up by another, and bore the name of its father; but both the father and mother during their lives remained ignorant that it was living. The father died, and his will having been read, it was held that the son was neither disinherited nor appointed an heir by the will, and he, having been recognized by his mother and his paternal grandmother, obtained the estate of his father on the ground of intestacy, as the heir at law. The question arose whether the slaves who obtained their freedom under the will were free, or not. The answer was that the son should not suffer any wrong, if his father did not know that he was living, and therefore, as he was under the control of his father, who was not aware of the fact, the will was not valid. But if manumitted slaves remain for five years in a state of freedom, the favor with which liberty is regarded does not permit that when it has once been granted them it shall be revoked.

30 Ulpianus, On the Edict, Book XIX. Where slaves who are in the hands of the enemy are ordered to be free, they will obtain their freedom, even though at the time that the will was executed, or when the testator died, they did not belong to the latter, but were in captivity.

31 Paulus, On the Edict, Book XXVI. Where one of several slaves who have the same name is ordered to be free, and it is not apparent which one was meant, none of them will obtain freedom.

32 Ulpianus, On the Edict, Book LXV. It must be remembered that grants of freedom made by a will take effect whenever there is a necessary heir, even though he should reject the estate; provided they were not made contrary to the Lex Ælia Sentia.

33 Paulus, Questions, Book XII. Freedom cannot be granted for a certain time.

34 The Same, On the Edict, Book LXXIV. Therefore, where the following is inserted into a will, “Let Stichus be free for ten years,” the addition of the term is superfluous.

35 The Same, On the Edict, Book L. Servius was of the opinion that freedom could be granted directly to slaves who had belonged to the testator, both at the time when the will was made, and when he died. This opinion is correct.

36 The Same, On Plautius, Book VII. I manumitted a slave by will as follows, “Let him be free if he will swear to pay to my son, Cornelius, ten aurei in lieu of his services.” The question arises, what is the law in this case? It must be acknowledged that the slave will comply with the condition by taking the oath, but he will not be bound to pay the money in lieu of his services, because he will not be bound unless he takes the oath after his manumission.

37 The Same, On Plautius, Book IX. A slave is considered to have been manumitted specifically by a codicil, when his name is mentioned in the will.

38 The Same, On Plautius, Book XII. Freedom can be granted to a slave by will as follows, “Let him be free when he has a right to be so by law.”

39 The Same, On Plautius, Book XVI. “Let my slave, Stichus, be free, if my heir should alienate him.” This grant of freedom is void, because it has reference to the time when the slave will belong to another. Nor can the objection that a slave, who is to be free under a certain condition, will obtain his freedom by virtue of the will, even if he should be sold, be raised; for where freedom is legally granted, it cannot be annulled by the act of the heir. But what if a legacy is bequeathed in this manner? There is no reason to hold a different opinion under such circumstances, for no difference exists between a grant of freedom and a legacy, so far as this question is concerned. Therefore, freedom is not directly granted by the following clause, “Let my slave be free, if he ceases to belong to my heir,” because there is no instance where a concession of this kind will be available.

40 Pomponius, On Plautius, Book V. Julianus says that where the same slave is granted a sum under the terms of a trust, and is also ordered to be free, the heir must grant him his freedom; for he says that he is not, by virtue of the trust, compelled to pay the value of the slave, as he gives him his freedom to which he is entitled. 1But where freedom is granted to a slave conditionally, under the terms of a trust, and the slave himself is given at the time, the heir will not be obliged to deliver him, unless security is furnished by the beneficiary of the trust that, if the condition is fulfilled, he will liberate the slave; for in almost all cases freedom granted by virtue of a trust is considered as having been directly granted. Ofilius, however, says that if a testator bestowed freedom by means of a trust, with the intention of depriving the slave of a legacy, this opinion is correct. But if the legatee can prove that the heir was charged by the testator, he will still be obliged to pay the value of the slave to the legatee.

41 The Same, On Plautius, Book VII. Where freedom is granted as follows, “Let Stichus be free the twelfth year after my death,” it is probable that he will become free at the beginning of the twelfth year, for this was the intention of the deceased. There is, however, a great deal of difference between the two expressions, “the twelfth year,” and “after twelve years,” and we are accustomed to say “the twelfth year” when ever so little of the twelfth year has arrived, or elapsed. He who is ordered to be free the twelfth year is ordered to be free for every day during that year. 1Where the following provision is inserted in a will, “Let my slave, Stichus, be free, if he pays my heir a thousand sesterces at the end of one, two, and three years, after my death, or if he gives security to do so,” the slave cannot become free before the expiration of the third year, unless he pays the entire sum immediately, or gives security; as the advantage which the heir derives from immediate payment should be compensated by the rapidity with which the grant of freedom is made. 2Labeo says that where a testamentary grant of freedom is made as follows, “Let Stichus be free within a year after my death,” he will become free immediately. And if his freedom had been bequeathed as follows, “Let him be free, if he pays such-and-such a sum to my heir within ten years,” and he pays it at once, he will become free without delay.

42 Marcellus, Digest, Book XVI. If anyone should insert the following clause into his will, “I desire my slave to be the freedman of such-and-such a person,” the slave can demand his liberty, and the other party can claim him as his freedman.

43 Modestinus, On Manumissions. Direct grants of freedom can be legally made by will, and by a codicil confirmed by a will. Grants of freedom under a trust can be made ab intestato, and by codicils not confirmed by a will.

44 The Same, Opinions, Book X. Mævia, at the time of her death, bequeathed freedom to her slaves named Saccus, Eutychia, and Hirena, conditionally, in the following terms: “Let my male slave, Saccus, and my female slaves, Eutychia and Hirena, be free, under the following condition, namely, that they burn a lamp on my tomb every other month, and celebrate funeral rites there.” As the said slaves did not regularly visit the tomb of Mævia, I ask whether they would be free. Modestinus answered that neither the wording of the entire clause nor the intention of the testatrix indicated that the freedom of the slaves should be suspended under a condition, as she desired them to visit her tomb as persons who were free; but that it was, nevertheless, the duty of the judge to compel them to obey the order of the testatrix.

45 The Same, Pandects, Book II. It is commonly stated that where freedom is granted under several conditions, the one which is the least onerous should be observed; and this is true where the conditions are imposed separately. Where, however, they are imposed together, the slave will not be free unless he complies with all of them.

46 Pomponius, Various Passages, Book VII. Aristo replied to Neratius Appianus as follows: If a slave is directed to be free by will when he reaches the age of thirty years, and, before doing so, he is sentenced to the mines, and afterwards is released, there is no doubt that he will be entitled to the legacy left with his freedom, nor will his right be affected by his sentence to the mines. The rule is the same when the slave is appointed an heir under a condition, for he will become the necessary heir.

47 Papinians, Questions, Book VI. Where freedom is granted through mistake, under a forged codicil, although it is not due, still it must be granted by the heir, and the Emperor has decided that twenty solidi must be paid to the heir by each slave who is liberated. 1When an appointed heir manumits a slave for the purpose of complying with a condition, and the son, by subsequently bringing an action to declare the will inofficious gains his point, or the will is pronounced forged, the result will be that in this case the same course must be pursued as is prescribed in the one involving a forged codicil.

48 The Same, Questions, Book X. Where a partner granted freedom to a slave by will, as follows, “Let Pamphilus be free, if my partner should manumit him,” Servius gave it as his opinion that if the partner should manumit the slave, he will become the common freedman of the heirs of the deceased and of the partner who manumitted him; for it is neither new nor unreasonable for a slave held in common to obtain his freedom by the exercise of different rights.

49 The Same, Opinions, Book VI. Where a female slave was manumitted by the will of a soldier, as follows, “I direct that Samia shall obtain her freedom,” it was held that she obtained her freedom directly in accordance with military law.

50 The Same, Opinions, Book IX. It was decided by the Divine Marcus, with a view to the preservation of freedom, that his decree on that subject should apply to cases where a will was held to be void, and that the property of the estate should be sold; and, on the other hand, it was especially provided where the estate is claimed by the Treasury as being without an owner, that this decree shall not be applicable. 1In order that slaves manumitted by a will might obtain the property of the deceased, it was decided that they must give a suitable bond in court, just as the other freedmen of the deceased, or foreign heirs. Minors, who are appointed heirs, and, as is customary, claim assistance with reference to the estate of the deceased, are not deprived of this advantage.

51 The Same, Opinions, Book XIV. A centurion, by his will, forbade his slaves to be sold, and asked that they be manumitted, so far as they were deserving of it. The answer was that freedom was lawfully granted, since, if none of the servants had given cause for offence, all of them would be entitled to be free; but if some of them were excluded on account of having committed a crime, still the others ought to obtain their freedom. 1Where the following provision was inserted into a will, “Let those slaves who have not given cause for offence be free,” it was held that the grant of freedom was conditional, and that it should be interpreted in such a way that the testator, when liberating his slaves, did not intend to include those whom he had subjected to punishment, or had excluded from the honor of serving him or from transacting his business.

52 Paulus, Questions, Book XII. The Emperors to Missenius Fronto. Freedom having been granted by the will of a soldier in the following terms, “I wish or I order my slave Stephen to be free,” the slave can obtain his freedom whenever the estate is entered upon. Therefore, when the following words were added, “Provided, nevertheless, that he remains with my heir as long as he is a young man, but if he refuses to do so, or treats my proposal with contempt, let him continue to be held as a slave,” they do not have the effect of revoking the freedom to which the slave was entitled. The same rule is observed with reference to the wills of civilians.

53 The Same, Opinions, Book XV. Lucius Titius granted freedom to his slave under the condition that he should render a faithful account of his administration to his son, Gaius Seius. When Gaius Seius had reached the age of puberty, the slave, having been sued by the curators of the former, paid in court everything that was due. A bond having been required of the curators, the slave was declared to be free. Now Gaius Seius, the son of the testator, denies that the money was legally paid to his curators, and I ask whether this was the case. Paulus answered that the balance of the account of the slave did not seem to have been paid to the curators of the youth in such a way as to comply with the condition prescribed by the will in accordance with law; but if the money had been paid in the presence of the minor, or had been entered in his accounts, the condition should be considered to have been fulfilled, just as if it had been paid to him himself.

54 Scævola, Opinions, Book IV. A man who had a slave named Cratistus made the following provision in his will, “Let my slave, Cratinus, be free.” I ask whether the slave Cratistus can obtain his freedom, as the testator had no slave called Cratinus, but only the said slave, Cratistus. The answer was that no impediment existed because a mistake had been made in a syllable. 1Certain testamentary heirs, before entering upon the estate, agreed with the creditors that the latter should be content with half of their claims; and a decree having been issued by the Prætor to this effect, they accepted the estate. I ask whether the grants of freedom made by the will would take effect. The answer was that they would take effect, if the testator had no intention of committing fraud.

55 Mæcianus, Trusts, Book II. A grant of freedom having been made under a condition, the decision was rendered that if neither the slave nor the heir was responsible for the condition not having been complied with, the slave would be entitled to his freedom. I think that the same opinion should be given where freedom is granted under the terms of a trust to slaves belonging to an estate. 1It is not absurd to hold that this rule also applies to the slaves of the heir. 2We cannot reasonably doubt that this is also applicable to slaves whom the heir was charged to purchase; for in this instance, it would be unjust for him to be compelled to purchase them as if the condition had been fulfilled, because it might happen that the owner would refuse to comply with the condition, in order to obtain the price of a slave, and not demand him as the condition.

56 Paulus, Trusts, Book I. If anyone grants freedom to a slave by will, both directly and under a trust, it is in the power of the slave to choose whether he will obtain his freedom directly, or by virtue of the trust. This the Emperor Marcus also stated in a Rescript.

57 Gaius, On Manumissions, Book III. When a wealthy man becomes the heir of a person who is poor, let us see whether this will be of any advantage to the slaves who are granted their freedom by will, without the creditors of the estate being defrauded. And, indeed, there are certain authorities who hold that when a rich man appears as the heir, it is the same as if the testator had died after having increased his estate. But I have been informed (and this is our practice), that it makes no difference whether the heir is rich or poor, but the amount of the estate of which the testator died possessed must alone be taken into consideration. Julianus adopts this opinion to the extent that he holds that grants of freedom will not take effect where the testator was insolvent, and ordered the slave to be free, as follows, “Let Stichus be free when my debts are paid.” This opinion, however, does not coincide with that of Sabinus and Cassius, which Julianus himself appears to accept, as he thinks that the intention of the testator who manumitted the slave should be considered. For a person who orders his slave to be free under such a condition does so without any intention of committing a fraud, since he is held clearly to desire that his creditors shall not be cheated.

58 Marcianus, Trusts, Book III. It is true that, where a slave is directed to be free under the terms of a will, and is afterwards alienated by the testator, and again becomes a part of the estate before it is entered upon, he will obtain his liberty as soon as the estate is accepted.

59 Scævola, Digest, Book XXIII. Titia bequeathed freedom directly to certain of her male and female slaves, and then inserted the following provision in her will, “And I wish all the slaves attached to my personal service, whose names are inscribed in my registers, to be free.” The question arose whether Eutychia who, along with the other personal slaves, was emancipated at the time when the will was executed, and who, when the testatrix died, was married to a steward who was a slave, would obtain her freedom under the general head of “Slaves attached to my personal service.” The answer was that there was nothing to prevent her obtaining her freedom, even though at the time of the death of the testatrix she had ceased to be one of her attendants. 1Stichus received his freedom directly by the will of his master, and was accused of having fraudulently secreted much of the property of the estate. The question arose if, before he could demand his freedom, he should not restore to the heirs the property which he was proved to have taken. The answer was that, according to the facts stated, the slave in question should be free. Claudius: The point raised seems to have been finally disposed of, for the interest of the heirs will be sufficiently consulted by having recourse to the Edict concerning thefts. 2Lucius Titius provided by his will, “Onesiphorus shall not be free unless he renders an exact account of his administration.” I ask whether Onesiphorus can demand his freedom by virtue of these words? The answer was that, in accordance with what is stated, he is rather deprived of freedom than granted it.

60 The Same, Digest, Book XXIV. The following provision was inserted in a will, “I wish that a thousand solidi be given to Eudo, for the reason that he is the first child born after his mother obtained her freedom.” If Eudo cannot prove that he was born after the manumission of his mother, I ask whether he can obtain his freedom by virtue of these words of the will. The answer was that this inquiry should not prejudice him.

61 Pomponius, Epistles, Book XI. I know that many persons, desiring that their slaves may never become free, are accustomed to insert the following clause in their wills, “Let Stichus be free when he dies.” Julianus, however, says that where freedom is granted at the last moment of life, it has no effect; as the testator is understood to have made a disposition of this kind for the purpose of preventing rather than of bestowing freedom. Hence, if the following should be inserted in a will, namely, “Let Stichus be free, if he should not ascend to the Capitol,” it will be of no force or effect, if it is evident that the testator intended to grant the slave his freedom at the last moment of his life, nor will there be ground for a Mucian Bond. 1If the following provision should be inserted in a will, “Let Stichus be free if he should go to Capua,” the slave will not be free unless he goes to Capua. 2Octavenus goes still further, for he holds that if a testator, having granted freedom to his slave under any condition whatsoever, should add, “I am unwilling that he be manumitted by my heir before the condition is fulfilled,” this, addition will be void.