Gaius, Trusts, Book I. A trust cannot be left to be executed by a son who has been passed over in a will, even though he should be the heir-at-law.

Gaius, Trusts, Book I. There is no question, where a legacy is bequeathed to a wife under the condition that she will not marry again, and she is requested to return the legacy if she does; that she can be compelled to do so, if she should marry a second time. 1An heir who has been released from the requirement of taking an oath, will still be obliged to pay legacies and execute trusts under a will. 2Where, however, a legacy has been left to someone for the purpose of purchasing property belonging to another, in order to deliver the same to a third party; and he is unable to purchase said property for the reason that the owner will not sell it, or wishes to sell it at an exorbitant price, he must pay the just value of the same to the beneficiary of the trust.

Gaius, Trusts, Book I. When anyone is requested to transfer to another an usufruct which was left to himself, and he has united it to the land for the purpose of enjoying the same; although the usufruct may be extinguished by operation of law, at the death, or by the forfeiture of civil rights by the legatee who acquired it under this title, the Prætor, nevertheless, should exert his authority in order that the right may be preserved if it was left to him under a trust, just as if it had been bequeathed as a legacy.

Gaius, Trusts, Book I. A certain individual, having been sent into exile, made a will, and after appointing an heir and making bequests to several persons added the following: “If any one of my heirs or other friends whom I have mentioned in this my will, or anyone else, should obtain my recall from the Emperor, and I should die before I can manifest my gratitude to him, I wish such-and-such a sum of money to be given by my other heirs to him who does this.” One of the heirs whom he had appointed obtained his recall, but before the testator knew it he died. The question arose as to the execution of the trust. Julianus, having been consulted, gave it as his opinion that the trust should be executed; and even if the party who obtained the recall of the testator was neither his heir nor legatee, but one of his friends, that the latter was entitled to the benefit of the trust. 1If anyone should charge you to deliver his estate to his posthumous heir, or a stranger;

Gaius, Trusts, Book I. It is asked if the posthumous child, whether he was born or not, could prevent you from profiting by your share of the estate. I think it is more proper to hold that if the posthumous child should not be born, he will not enable you to share in the estate, but the whole of it will belong to you, just as if it had been entirely left to you in the first place; but if he should be born, both of you will be entitled to what was left to each, and if one child is born, you will be entitled to half the estate; if two are born, you will be entitled to a third; and if three children are brought forth at once (for triplets are also born), you will be entitled to a fourth of the estate. And, even in our time, Serapias, an Alexandrian woman, was presented to the Divine Hadrian with her five children, whom she had had at a single birth. Where, however, more than three children come into the world at the same time, the event is considered a prodigy. 1Where a certain man, after having appointed several heirs, charged one of them under a trust to deliver the share of the estate which might come into his hands to any one of his co-heirs whom he might select at the time of his death, it is absolutely certain that this trust is a valid one; as it is not left to the discretion of the heir of whom the request was made, whether he should deliver the property at all, but to whom he prefers to deliver it. For it makes a great deal of difference whether the testator places it in the power of the trustee whom he desires to deliver, or not to deliver certain property, or whether, after having imposed upon him the necessity of delivering it, he grants him alone the unrestricted choice of distribution. 2Where co-heirs are appointed to unequal shares of an estate, the question arose whether the heir should be required to give each one equal shares, or only shares in proportion to those to which they are appointed heirs. It was decided that if the testator directed one of his heirs to give up his share to his co-heirs, if they paid him a certain sum of money, to which they were directed to contribute equally; it would seem to be just that equal portions of the property should be given to them by virtue of the trust. If, however, in the distribution of said money, the testator intended that they should contribute unequal shares, in order that they might correspond with the shares of the estate to which they were entitled, it would appear to be reasonable that, under the terms of the trust, the property should be delivered to them in proportion to their respective shares of the estate.

Gaius, Trusts, Book I. (That is to say, the one which will be the most convenient for the slave himself to carry out.)

Gaius, Trusts, Book I. Where freedom is bequeathed to a slave several times by a trust, not the condition most easy of fulfillment but the last one should be considered, in order that the final desire of the deceased may have the preference. A Rescript of the Divine Antoninus confirms this opinion.

Gaius, Trusts, Book II. Where anyone who is appointed heir to an entire estate is asked to deliver a certain portion of it to me, for instance, half; an equitable action for partition can properly be brought between us.

Gaius, Trusts, Book II. Where Titius was appointed heir to half an estate, and charged to deliver the entire estate to Mævius, and then his co-heir was asked to transfer to him his share, or a portion of the same, will Titius also be obliged to transfer to Mævius the share which he received from his co-heir under the terms of the trust? The Divine Antoninus, having been consulted on this point, stated in a Rescript that he was not obliged to transfer it, because neither legacies nor trusts are included in the term “estate.”

Ad 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.

Gaius, 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.