The Same, On Ambiguities. A substitution was made as follows: “Let the same person be my heir who will be my heir, as above stated.” The question arises what heir is to be understood by this, whether it would be anyone whosoever, or only the party who would be the heir at the time when the son died? It was decided by men learned in the law that he would be the heir who might succeed the testator at any time whatsoever; for even though the appointed heir had died during the lifetime of the minor, and the will had been attacked as being inofficious with reference to a certain part, it should be held that the other is still the heir under the substitution. 1The rule cannot be said to be the same in the following case: for instance, where a testator has two sons, Gaius, who has arrived at puberty, and Lucius, who has not, and he makes the substitution as follows: “If my son Lucius should die without reaching the age of puberty, and Gaius should not be my heir, then let Seius be my heir”; for legal authorities have interpreted this to mean that the condition of the substitution should be referred to the death of the son who has not arrived at puberty.

Julianus, On Ambiguities. A certain man who had two mules bequeathed them as follows, “Let my heir give to Seius my two male mules, when I die.” The testator had no male mules, but left two female mules. Servius rendered the opinion that the legacy should be paid, because female mules are included in the term “mules,” just as female slaves are generally included in the term “slaves.” Hence it comes that the male sex always includes the female.

The Same, On Ambiguities. Where a man who had deposited two hundred aurei made the following bequest, “I leave to Seius three hundred aurei, in addition to the two hundred which I have deposited with him,” these two sums, taken separately, have a certain designation, but where they are taken together, they give rise to ambiguity. It must, however, be held that not three hundred, but five hundred aurei are due, because the two sums are united. 1Where anyone makes a bequest as follows, “Let my heir give to Attius, together with Dion, the slave of Mævius, the Seian estate,” there is some doubt as to whether the land was also left to Dion, or whether Dion was bequeathed along with the land. It is better to hold that not only the land, but also the slave Dion was left, and especially if the testator had no good reason to bequeath a legacy to Dion. 2Where we frame a stipulation as follows: “If you do not furnish such-and-such a slave, or such-and-such a tract of land, do you promise to pay a hundred aurei?” The penalty will be due, whether the stipulation is carried out or not; that is to say, the stipulation will be binding, whether neither one nor the other act is performed. It is evident that the same rule will apply where several things which we desire to be done are specifically mentioned, and we stipulate as follows, “If either of these things is not done,” or, for example, “Do you agree to appear for Stichus, Damus, and Eros in court? If one of them is not represented, do you promise to pay ten aurei?” It is necessary for the party to appear for all of them, in order that the terms of the stipulation may be complied with. Or that the case may be more clearly stated, let us suppose the stipulation to be worded as follows: “Do you promise to pay ten aurei if you do not appear for Stichus, Damus, and Eros?” For we can have no doubt in this instance that all of them must be represented. 3There is a difference between the two following stipulations: “You will pay So-and-So so much if such-and-such a thing, or such-and-such a thing is not done,” or, “If either of the things which it has been agreed should be done, is not done, you will pay such-and-such a sum,” for while it is true that one or the other other is to be done, it is not, for this reason, true that one or the other of the two things is not to be done, for both of these propositions may be true, although they are opposed to one another; because when the meaning is not general, but has reference to some specific matter, if any of it is true it renders the whole clause true. Just as, on the other hand, two clauses containing statements which are opposite are both false at the same time; for instance, where some children of a testator die after reaching puberty, and others die before reaching that age, since on the one hand it is incorrect to say that all of them died under the age of puberty, and, on the other, it is also incorrect to say that they all died after that age. This results because the meaning is taken in a general sense, and in this case, if anything is false, it renders the entire clause untrue. Therefore it should be ascertained what the subject of the inquiry is, for if I should say such-and-such a thing, or such-and-such a thing should not be done, it ought to be asked if anything has not been done? The effect of the former proposition is that neither of the things should be done; that of the latter that they both should be done. In the former instance, it will be of no advantage to the person not to have done one of the two things, if he did the other; and in the latter, it will not benefit him if he proves that he has done one of the two things, if he did not do the other. 4Hence, if anyone should put the following interrogatory: “Did you do any of those things with which you are charged?” and the party says he did not, he means to say, “I did not do any of those things with which I am charged,” that is, “I did none of them.” 5Where anyone inserts several things in a stipulation, one of which he desires to be done, he should frame the stipulation as follows: “Do you promise that such-and-such a thing, or such-and-such a thing shall be done, and if neither of them is done, will you pay such-and-such a sum?” 6Moreover, if the head of a household should insert the following in his will, “If a son or a daughter is born to me, let him or her be my heir; but if neither a son nor a daughter should become my heir, let Seius be my heir,” he does not declare his purpose clearly enough if he intended to appoint a foreign heir, only in case neither his son nor his daughter should become his heir; for this should be expressed as follows: “If neither my son nor my daughter should become my heir.” Sometimes, however, the former clause becomes necessary; as, for example, where anyone who has a son and a daughter desires to make both of them his heirs, and if only one of them should become his heir, to appoint a stranger with him or her, or if neither should become his heir, to substitute a stranger. That opinion, however, should be adopted which seems rather to correspond with the intention of the testator, so that if either a son or a daughter should be born to him, a stranger shall not be admitted to the succession, unless the testator expressly stated that this must be done.