The Same, Digest, Book XXXVI. Where the Prætor has ordered a party against whom an action is brought for a debt, to appear; and the number of citations is exhausted; and he decides that the absent party owes the debt, and suit is brought to enforce the judgment; the judge who hears the case cannot examine the decree of the Prætor, otherwise citations of this kind and the decrees of the Prætors would be illusory. Marcellus says in a note: “Where the plaintiff knowingly and falsely states anything with malicious intent, and it is clearly established that in this way he obtained a judgment in his favor from the Prætor; I think that the judge should admit the complaint of the defendant.” Paulus says in a note, that if the defendant was unable to be present because he was prevented by illness, or was employed in some business for the State, it is his opinion that in this case an action to enforce the judgment against him should be refused, or the Prætor ought not to permit execution to be issued.

Julianus, Digest, Book XXXIII. For an emancipated son, if he rejects the estate, cannot be prevented from claiming the legacy from the heir. The Prætor, by permitting those children who are under the control of their father to reject his estate, makes it plain that he intends to grant them the same right so far as they are personally concerned, to which they would have been entitled if they had had free power to enter upon the estate.

Julianus, Digest, Book XXXVI. The question arose whether a son under paternal control, who himself had a son, should be appointed heir; as both of them are under the control of another, for can a son be charged with a legacy for the benefit of his own son? I answered that as a son can be charged with a legacy in favor of his father, it follows that he can be charged with one for the benefit of his brother, or his son, or even for the benefit of his father’s slave. 1Where freedom is granted to a slave at once, a legacy can be bequeathed to him either absolutely or conditionally. But where freedom has been bestowed upon him under some condition, it can at certain times be valid, and at others, even if bequeathed absolutely, it may be void; for if the condition of freedom was such that it could be fulfilled immediately on the death of the testator, before the estate was entered upon (for instance, “Let Stichus be free if he pays ten aurei to Titius, or ascends to the Capitol”), the legacy will be valid. Moreover, conditions like the following: “If he pays the heir ten aurei if he should ascend to the Capitol after my estate has been accepted,” the legacy will be void. Where, however, a necessary heir has been appointed for the entire estate, those conditions which could be complied with before the estate was entered upon render the legacy invalid. 2Where a testator appointed two heirs, and bequeathed Stichus to one, and ten aurei to Stichus, if Stichus becomes free during the lifetime of the testator, he will be entitled to the entire legacy; and a proof that it vests in the said slave personally is established by the fact that if the heir to whom the slave had been bequeathed should not enter upon the estate, he can recover the entire legacy from the other heir. 3Where a legacy is bequeathed to a slave, who himself is bequeathed, and he is sold by the testator, the legacy will belong to the purchaser. 4Where a slave is left to Titius, and the legacy is bequeathed to the same slave, the legatee can be charged with the trust, “Either to deliver the slave to someone, or to transfer to him the property which is bequeathed to the slave.” And, even more than this, Titius can be charged with the trust with reference to the slave himself, even after he shall become free. 5If anyone should bequeath Stichus, and then sell or manumit him, and subsequently should leave him a legacy by a codicil, either the manumitted slave or the purchaser will be entitled to the legacy. 6If you should be appointed an heir by a party who has charged you to deliver a slave, and some individual should bequeath a legacy to the said slave; and, during the lifetime of the person who bequeathed me the slave, the day for the transfer of the legacy to the slave arrives; that legacy is at once acquired by the estate. Hence, even though the person who bequeathed me the slave should die, the legacy left to the slave will not belong to me. 7Where a slave is claimed by virtue of a will, he should be delivered to the plaintiff in the same condition in which he was at the time issue was joined in the case. And, as the offspring of a female slave, as well as the crops of the land which have been obtained, in the meantime, are included in this action; therefore any property which meanwhile has been acquired by the slave either by bequest or inheritance must be delivered to the plaintiff.

The Same, Digest, Book XXXVI. If Eros is bequeathed to Seius, and a tract of land to Eros, and then the option of a slave is left to Mævius, and he chooses Eros, the land alone will belong to Seius, since at the time when the estate was entered upon he was the only one to whom the legacy could belong. For, where one of two joint-owners of a slave leaves him a bequest, the entire legacy will belong to the other joint-owner, as he is the only one who can acquire the legacy through the slave at the time when it becomes due.

The Same, Digest, Book XXXVI. If a debtor should order his surety to be released by his heir, ought he to be released? The answer is that he should be. As the heirs are liable to an action on mandate, the inquiry was also made whether the legacy was not void, as the debtor made a bequest to his creditor. The answer was that, whenever a debtor makes a bequest to his creditor, the legacy will be void if it should not rather be to the interest of the creditor to bring an action under the will, than one founded on the original obligation; for if Titius should have directed Mævius to promise the payment of a certain sum of money, and afterwards should direct him to be released by the stipulation, it is clear that it is more to the interest of the party making the promise to be released than to pay the amount in accordance with the stipulation, and then to bring an action on mandate.

Julianus, Digest, Book XXXVI. Whenever an usufruct is bequeathed to freedmen, and the ownership of the property to the last survivor, the bequest is valid, for I think that, in this instance, the property is left under the following condition: “If he should be the last survivor.”

The Same, Digest, Book XXXVI. Where a legacy is left to a slave who is himself bequeathed, the legacy does not take effect at the time of the death of the testator, but at the time when the estate is entered upon; and hence the rule of law under which a legacy is not permitted to be given to a slave, even if he is manumitted, cannot be cited in opposition; for even if the testator should die immediately, the benefit of the legacy and the obligation of the law to pay the same are not concurrent in the person of the same individual. Therefore, the question under discussion is exactly the same as if a bequest had been made to a father, after his son had been appointed the heir of the testator; because it is understood that even if the father should die immediately, his son, having been emancipated, could enter upon the estate just as if he owed the legacy to his father.

Ulpianus, Digest, Book XXXVI. Where an emancipated son was passed over in a will, and his father appointed a foreign heir, and charged him with the delivery of property which was lost through the fraud of the said heir, after the estate has been accepted, a prætorian action should be granted against the emancipated son, that is to say, in favor of the person to whom the son was obliged to pay the legacy; because the intention of the Prætor is that possession of an estate in opposition to the terms of the will should be granted without prejudicing the rights of other persons.

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.

The Same, Digest, Book XXXVI. When anyone stipulates that payment should be made to himself for Titius, payment can be properly made to Titius, but not to his heirs.