Africanus, Questions, Book V. A testator bequeathed the usufruct of a plot of land and erected a house upon it, and during his lifetime it was demolished or burned down; it was held that the usufruct could be demanded. On the other hand, the same rule would not apply if the usufruct of the house had been bequeathed, and the land afterwards was built upon. The case would be the same if the usufruct in certain cups was bequeathed, and they were afterwards melted into a mass, and were a second time fashioned into cups; for although their former condition as cups was restored, they were not the same as those in which the usufruct was bequeathed. 1I stipulated with Titius with reference to the Cornelian Estate, the usufruct therein being reserved; Titius then died, and it was asked what his heir was required to deliver to me? The answer was that the principal point had reference to the intention with which the usufruct was reserved, for if it was agreed in fact that the usufruct should be established merely in the person of someone, the heir must transfer the bare ownership; but if it was intended that the usufruct should be withheld for the promisor alone, his heir must transfer the ownership without any restriction. That this is true is more clearly apparent in the case of a legacy, for if an heir who was charged with the bequest of mere ownership, after reservation of the usufruct, should die before proceedings have been instituted with reference to the will, there is still less reason for doubt that the heir will be obliged to transfer complete ownership. The same rule applies where the legacy is bequeathed under a condition and the heir dies pending its fulfillment. 2The usufruct of a slave was bequeathed to Titius, and before it had been transferred by the heir, who was intentionally in default, the slave died. No other conclusion could be arrived at than that the liability of the heir is in proportion to the amount of the interest of the legatee that there should have been no delay, so that the value of the usufruct should be appraised from the date of the default to the time when the slave died. The result of this also would be that if Titius himself should die, there would also have to be paid to his heir a sum equal to the value of the usufruct from the time when the default began to the day of his death.

Africanus, Questions, Book V. Wherefore any part of the usufruct which has been lost reverts to the legatee who is the owner of the mere property.

Africanus, Questions, Book V. Where the mere property of an estate is bequeathed to two parties and the usufruct to one, all of them are not entitled to third parts of the usufruct, but two of them take half and the usufructuary the other half. On the other hand the same rule applies where there are two usufructuaries and one legatee of the estate.

Africanus, Questions, Book V. Where the use of a house is bequeathed to the son of a family, or to a slave, I think that this legacy is valid and the same method can be employed to recover it which could have been employed if the profits of the same had also been bequeathed. Therefore, the father or the owner can live in the house just as well when the son or the slave is absent as when he is present.

The Same, Questions, Book V. Where prætorian possession of an estate is applied for by a minor in opposition to the will of his father, an action to compel the payment of legacies should still be granted against the substitute; and, for the reason that the son does not owe any legacies bequeathed to strangers, those granted under the substitution shall be increased; just as where legacies are bequeathed under the substitution, if more comes into the hands of the son through prætorian possession of the estate than he would otherwise receive, so, also will he owe more to persons who are privileged. I think that the result of this will be that where a son who has not arrived at puberty is appointed heir to the entire estate, and he is deprived of half of it through prætorian possession, the substitute will be free from liability to pay half of the legacies, just as the portion which is added through obtaining possession of an estate increases the legacies, so also, in this instance, the amount which is lost diminishes them.

The Same, Questions, Book V. Where a slave, who is bequeathed, is said to have taken to flight during the lifetime of the testator, the heir must restore him, but the expense, and the risk attending the pursuit must be borne by the party to whom the slave was bequeathed; as the heir is not compelled to deliver the property bequeathed except in the place where it was left by the testator. 1If the property left me by will, which you are obliged to deliver, should be given by anyone else to my slave, I will still be entitled to an action based on the will; and, above all, if I should not be aware that the property had become mine. Otherwise, the result would be that, even if you should give the said property to my slave, you would release yourself without my consent, which under no circumstances is to be admitted; since you cannot release yourself from liability without my consent, even by making payment in this manner. 2Where a slave was bequeathed to Titius, the question arose whether the right to make the choice of the slave to be given would belong to the heir, or to the legatee. I answered that it would be more equitable to hold that he should be entitled to the choice who has the power to make use of whichever action he chooses, that is to say the legatee. 3The gift of a legacy expressed in the following terms: “I bequeath to So-and-So, or So-and-So, whichever of them first ascends to the Capitol,” Africanus says will be valid; for the manifest reason that where an usufruct is bequeathed to freedmen, and the ownership of the property to whichever of them survives, the legacy will be valid. He thinks that the same opinion should be given with reference to the appointment of an heir. 4Titius charged you with a bequest of Stichus to me, concerning whom I have already entered into stipulation with you. If the stipulation was not founded on a valuable consideration, it was held that the legacy would be valid. If, however, the delivery of the slave was founded on two valuable considerations, then it is preferable to hold that the legacy is void, for the reason that no one loses anything, and the same property cannot be delivered twice. 5Where, however, you already owe me Stichus under the terms of the will of Titius, and Sempronius has charged you, his heir, with the delivery of the same slave to me as a legacy, and has requested me to deliver the said slave to a third party, the legacy will be valid, because I am not to retain the slave. The same rule will apply where he bequeathed me a sum of money; and it will be still more applicable if a trust was established by a former will. Likewise, if there was ground for the application of the Falcidian Law under the terms of the first will, what has been deducted on account of it I can acquire by virtue of the second. 6Again, if I should become the heir of the owner of a certain tract of land, and he should not prove to be solvent, and you are directed to deliver said land to me; your obligation will continue to exist, just as it would do if I had purchased the land. 7Where it is provided by a will, “Let my heir pay to Seius ten aurei more than I have bequeathed to Titius,” there can be no doubt that Titius will be entitled to his legacy, and that there will be no more than ten aurei due to Seius. For it is customary to make a bequest in the following terms: “I bequeath so much to Lucius Titius, and as much more to his wife and children.” 8Where property is bequeathed to a person to whom nothing was previously left, with the addition, “This much more,” there is no doubt whatever that what has been bequeathed in this manner is due. There should be even less doubt if I should stipulate with a person who owes me nothing as follows: “You promise to pay me ten aurei more than you owe me,” that ten will be due. 9Where a slave belonging to another is bequeathed to someone, and ordered to be free, it is held that he can be claimed by the legatee, for his grant of freedom is of no effect. It is absurd that the legacy should be rendered void, which would be valid if only the slave had been bequeathed. 10Where an individual had five aurei in his chest, and bequeathed them, or promised in a stipulation, “The ten aurei which I have in my chest,” the legacy or the stipulation will be valid; but only five aurei will be due under either. Moreover, it seems hardly reasonable that the five aurei which are lacking should be claimed under the will; for in this instance certain property which is not in existence is considered to have been bequeathed. If, however, at the time of the testator’s death, the entire amount should be in his chest, and it should subsequently be somewhat diminished, the heir alone must undoubtedly bear the loss. 11Where a slave is bequeathed, and the heir is in default, his life and any diminution in value which he may sustain will be at the risk of the heir; so that if he is disabled when delivered, the heir will, nevertheless, be liable. 12Where anything has been left to you, and you are charged, as trustee, to deliver it to me, if you do not receive anything else under the will, it is held that you will only be liable where you have been guilty of bad faith in not claiming the legacy, otherwise, I will be to blame; just as is the case in contracts of good faith, if the contract is for the benefit of both parties, he who should deliver the property is responsible for negligence, but where it is for the benefit of only one, the trustee is only responsible for fraud. 13A man gave certain jewels to Titius by way of pledge, and appointed his son his heir, and then disinherited him; and finally provided in his will: “I ask you, Titius, and I charge you to sell the jewels which I gave to you in pledge, and after having deducted all that is due to you, to pay the balance to my daughter.” Under this provision, the daughter can claim the trust from her brother, so as to compel him to assign to her his rights of action against the debtor. In this instance, he is understood to be the debtor, who in the first place was the creditor, that is to say, for the balance of the price of the pledge remaining after payment of the debt. 14It should not be considered surprising if, in a case like that above mentioned, one party should be charged with a trust, and another bound by it; for when the following is inserted into a will, namely, “I ask you, Titius, to receive a hundred aurei, and manumit such-and-such a slave, or to pay a certain sum to Sempronius,” this does not seem to have been properly expressed; still, it should be understood to mean that the heir must discharge the trust, as well as pay the money to Titius, and therefore that Titius himself will be entitled to an action against the heir, and will be compelled to grant the slave freedom, or pay the sum to Sempronius which he was asked to do. 15Auphidius appointed his son trustee, “In order that he might lend a certain sum of money to four of his freedmen, and ask a moderate rate of interest.” It was decided that this trust was perfectly valid.

Africanus, Questions, Book V. Where certain dates are fixed for the payment of legacies, as is customary, Africanus says that this does not refer to the legacy of a dowry, because it has its own time of payment.

Africanus, Questions, Book V. The above-mentioned rule applies not only when this takes place through the fraud of the heir, but also when it happens for any other reason whatsoever.

Africanus, Questions, Book V. Stichus had Pamphilus in his peculium, and the master defended him in a noxal action, and, having lost the case, paid the amount of the damages assessed. Then he manumitted Stichus by will, and bequeathed to him his peculium. The question arose whether what had been paid on account of Pamphilus, as damages, should be deducted from the peculium of Pamphilus himself, or from that of Stichus. The answer was that the deduction must be made from the peculium of Pamphilus, no matter what the sum might be; that is to say, even if it should be expedient to surrender him in satisfaction of the damage committed, for everything that is paid out by the master on account of a slave makes him a debtor to his master. If the peculium of Pamphilus was not sufficient, an amount not more than the value of Pamphilus should be deducted from the peculium of Stichus. 1The question arose if Pamphilus, for some other reason, owed a sum of money to his master, and this could not be obtained from his peculium, whether an amount to the extent of his value could be deducted from the peculium of Stichus. This was denied, for the case is not similar to the former one. The reason why the price of the sub-slave should be deducted is because Stichus himself became the debtor to his master on account of the defence of the sub-slave by the latter. But, in the instance proposed, nothing can be deducted from his peculium, because Stichus owes nothing, but the deduction must only be made for the peculium of Pamphilus, who certainly cannot himself be understood to form part of his own peculium.

Africanus, Questions, Book V. Where a man, who had an estate of four hundred aurei, bequeathed three hundred of them, and then devised to you a tract of land worth a hundred aurei under the condition that the Falcidian Law should not apply to his will, the question arises, what is the rule? I replied that this is one of those perplexing questions which are discussed by dialecticians, and are designated by them sophistical, or illusory; for, in a case of this kind, whatever we may decide to be true will be found to be false. For if we should say that the devise left to you is valid, there will be ground for the application of the Falcidian Law, and therefore the legacy will not be payable, as the condition has not been fulfilled. Again, if the legacy should not be considered valid, because the condition has not been complied with, there will be no ground for the application of the Falcidian Law. If, however, the law is not applicable, and the condition should be complied with, you will be entitled to the devise. But as the intention of the testator appears to have been that the other legacies should not be diminished on account of yours, the better opinion is to decide that the condition upon which your legacy is dependent has not been fulfilled. 1Therefore, what shall we say if the testator bequeathed two hundred aurei in other legacies, and left you two hundred under the same condition, for the condition upon which your legacy is dependent either was, or was not fulfilled; hence you will be entitled to all of it, or to none, and this will be considered unjust, and contrary to the intention of the testator. Again, it is not reasonable to hold that you are entitled to a part of the legacy, when it is necessary for the condition on which the entire legacy depends either must have been fulfilled, or must have failed. Therefore the whole matter should be disposed of by having recourse to an exception based on fraud. 2For which reason, when a testator desires to obtain compliance with his wishes, he should provide as follows: “If I have bequeathed, or should bequeath anything more than is legal under the Falcidian Law, let my heir be charged to deduct as much as is necessary to make up his fourth out of the legacy which I have left to Titius.” 3Ad Dig. 35,2,88,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 274, Note 4.Where a testator left an estate of two hundred aurei, and bequeathed to me a hundred payable immediately, and also a hundred to you payable conditionally, and the condition was complied with after some time, in such a way, however, that out of the income which was left to you the heir did not receive more than twenty-five aurei, he will be entitled to the benefit of the Falcidian Law, and we must pay him twenty-five, and, in addition to this, the interest on fifty during the meantime, which (for example) amounts to five aurei. Therefore, as thirty aurei must be paid, certain authorities hold that fifteen shall be due from each of us, which opinion is entirely incorrect; for although we have each received the same amount, it is still evident that my legacy is somewhat more valuable than yours. Hence, it should be decided that your legacy is diminished by the amount that the heir has received from the profits; and according to this, the following computation should be made, namely, what is due to the heir must be divided into seven parts of which I will be required to pay four, and you three, since my legacy is a fourth larger than yours.

Africanus, Questions, Book XV. The possession of property by the Edict of the Prætor is refused to those who have been condemned for a capital crime, unless complete restitution has been granted them. A person is understood to have been condemned for a capital crime upon whom the penalty of death, or the interdiction of water and fire has been imposed. Anyone, however, who has been exiled, can be admitted to the prætorian possession of property.

The Same, Questions, Book V. For the reason that if all the heirs should demand prætorian possession of the estate, half of it would be divided between the grandson and his father.

Africanus, Questions, Book V. Where suit was brought to compel the execution of a trust, the heir having admitted that he owed it, an arbiter was appointed to see that the property was delivered, who ascertained that nothing was due. The question arose whether the heir could be released from liability. I answered that it was important to learn why nothing was due, for if the reason was that the trust was void, the heir would not be released. But if it was because the testator was not solvent, or the heir had alleged before the Prætor that everything was paid, and as a controversy had arisen, and a computation was difficult, a condition of affairs had caused the appointment of an arbiter, he could release the heir without exceeding his authority. For it is duty to discharge the heir, if, after the computation has been made, nothing is found with which to execute the trust; but, in the first instance, he should send the heir before the Prætor in order that he may be discharged.

Africanus, Questions, Book V. It is necessary for the possession of property, if acknowledged by anyone but the heir, to be ratified within the specified time, in order that it may be demanded. Therefore, it cannot be ratified after the one hundredth day has passed. 1If, however, he who made the demand should die, or become insane, let us see whether it can be ratified or not, for, generally speaking, it should be ratified; just as where, in this instance, ratification takes place at a time when the person claiming possession cannot be benefited by it. The result of this is that, even if the agent should repent of having made the demand, ratification could not occur; which is absurd. Therefore, it is better to say that neither of these causes interferes with ratification.