The Same, Digest, Book XXXIX. If I build on your unoccupied land, and you obtain possession of it afterwards, there will be no ground for an action for recovery, because no business contract was made between us; for he who pays money which is not due, by this act transacts business to a certain extent, but when the owner of land takes possession of a building erected thereon by another, no business transaction takes place; for, in fact, even if a person who built upon the land of another should himself deliver possession, he would not have a right of action for recovery, because he would not, in any respect, have transferred the property to him who received it, as the owner would merely have obtained possession of what was already his. Therefore it is established that if the party who thought himself to be an heir should prop up a house which was part of the estate, he could be reimbursed for his expenses in no other way than by retaining the property.

The Same, Digest, Book XXXIX. Where anyone who has not made a will establishes a trust, by means of a codicil, as follows: “Whoever shall be my heir, or the prætorian possessor of my estate, I leave to him as trustee,” the sums left under the trust must be paid, because the head of the household who had the power to make a will, and made a codicil, is in the same position as if all those were his heirs into whose hands the estate will come either through descent or through possession under Prætorian Law. 1Where a child is born after the execution of a codicil, and it is the next of kin, or the direct heir, it will not be obliged to pay any sums left in trust, for it is also understood to be the appointed heir, and therefore it should not be considered as having broken the codicil. 2Where a will has been made, even if a codicil should not be confirmed by it, the codicil will, nevertheless, obtain all its force and effect from the will. Again, if the estate is not entered upon by virtue of the will, a trust created by a codicil of this kind will be of no validity whatever.

Julianus, Digest, Book XXXIX. If the heir should have delivered the house without retaining anything, an action for the recovery of an indeterminate amount should lie in his favor, just as if he had paid more than he owed.

Julianus, Digest, Book XXXIX. Where one of several heirs purchases a tract of land which has been left in trust, the price having been determined by the income from said land on account of the debts due from the estate; the party entitled to the land under the terms of the trust, being present, and consenting, it is settled that not the land itself, but the value of the same should be delivered. Marcellus states in a note, “If the heir should prefer to deliver the land, I think that he should be heard.” 1Julianus: Where money is bequeathed to Titius, and he is charged by a trust to manumit a slave belonging to another, and the master of said slave is unwilling to sell him; he will, nevertheless, be entitled to his legacy, because it was not his fault that the property bequeathed by the trust was not delivered. For if the slave should die, he will not be deprived of his legacy. 2Just as it is conceded that a trust can be imposed upon anyone who is entitled to an estate as the lawful heir, or to prætorian possession of it, so he who, by law, has a right to the estate of a boy under the age of puberty, or to prætorian possession of the same, can be legally charged with a trust.

Julianus, Digest, Book XXXIX. It is clear that if a father should disinherit his son while under the age of puberty, the heir-at-law cannot be compelled to discharge the trust, unless he was also the heir of the father. 1Where a master was asked to deliver to another person an estate to which his own slave had been appointed heir, and he sold the slave; the question arose whether he into whose hands the estate came through the purchase of the slave, that was appointed heir, can be compelled to surrender it. I said that a person who sold his own slave that had been appointed heir could be compelled to discharge the trust, as he had received the price of the estate which he was asked to surrender. He, however, into whose hands the estate came through the purchase of the slave that had been appointed heir, can, after investigation, be forced to discharge the trust; that is to say, in case the original master of the slave was not solvent. 2Where Stichus, or Damas, was bequeathed to someone, and the legatee was given his choice, and he was charged to deliver Stichus to someone else; and although he may have preferred to demand Damas he will, nevertheless, be required to deliver Stichus, in accordance with the terms of the trust. Even if Damas is of greater value, he will be compelled to furnish Stichus; or if he is of less value, he will also legally be required to deliver him; since it was his fault that he did not, in accordance with the terms of the will, obtain the slave who was the object of the trust. 3Where a slave is manumitted by will, and does not receive either a legacy or the estate, he cannot be compelled to discharge a trust. Neither can he do so who is requested to manumit a slave that was bequeathed to him; for a person can only be compelled to pay money by virtue of a trust who receives something of the same kind, or similar to it, by the will.

Julianus, Digest, Book XXXIX. A certain individual made the following bequest in his will, or codicil: “I desire forty aurei to be paid to Pamphila, as is hereinafter stated; so many of which are due to me from Julius; and so many which I have invested in camp equipage; and so many which I have in cash.” The testator died several years afterwards being still of the same mind, but all the sums which he mentioned had been employed for other purposes. I ask whether the trust must be discharged. I answered that it was very probable that the testator had intended rather to point out to his heirs where they could readily obtain forty aurei, without interfering with the remainder of his estate, than to have inserted a condition in a trust which in the beginning had been absolute; and therefore that Pamphila was entitled to the forty aurei. 1Whenever property without an owner reverts to the Treasury under the Julian Law, the legacies and trusts which the heir, to whom they were left, was compelled to pay and discharge, must be paid and discharged by the Treasury. 2If a slave is bequeathed to you, and you are requested “To deliver to Titius property equal to the value of the slave,” and then the slave should die, you will not be compelled to deliver anything by reason of the trust. 3Where an heir appointed for a certain share of an estate is charged, as follows: “Take a certain sum as a preferred legacy, and distribute it among those who have received legacies by the will,” he must take in this manner what was conditionally bequeathed, after the condition has been complied with, and, in the meantime, he will be required to give security either to the heir, or to the parties to whom the conditional legacies have been left. 4Where a slave, who is to be free under a certain condition, is ordered to pay money to someone, he who is entitled to it can be requested to deliver the said money to another party. For, as the testator can grant freedom to his slave absolutely, by means of a codicil, and in this way dispose of the condition, why should he not have the power to take away the same money by means of a trust?

The Same, Digest, Book XXXIX. Lucius Titius, who employed Eros as his agent, made the following provision in his codicil, “I desire Eros to be free, and I wish him to render an account of all that he has done, during the time subsequent to my last signature.” He, afterwards, while still living, manumitted Eros, and, at the same time, the slave rendered his accounts, and the testator signed them up to that date, which was only a few days before he died. The heirs of Lucius Titius alleged that Eros had received certain sums of money, both while he was still a slave and after he became free, and did not include these in the accounts which were signed by Lucius Titius. I ask whether the heirs can collect anything from Eros for the time preceding the last signature of Lucius Titius. I answered that, according to the facts stated, Eros cannot demand his freedom, unless the sums referred to had been specifically remitted to him.

Julianus, Digest, Book XXXIX. Whenever a testator orders one or two heirs to transfer his estate to their co-heirs, he is understood to have made the same division with reference to the trust which he made in the distribution of the estate. If, however, those who are charged with the execution of the trust are directed to pay a certain sum of money to the person from whom they are to receive the benefit of the trust, the intention of the testator must be ascertained from the amount of money which the parties are ordered to pay. For where heirs are appointed to unequal shares of an estate, and are directed to pay equal sums, the better opinion is, that they should receive equal amounts under the trust. But if the sum of money to be paid corresponds with the shares to which they are entitled, they shall receive proportional amounts under the trust.

Julianus, Digest, Book IX. A certain person made the following provision in his will: “My heir, I ask and charge you to transfer to my son whatever comes into your hands out of my estate, upon the first day; or if anything should happen to him before that time, I request you to deliver it to his mother.” The question arises if the boy should die before the estate is entered upon, whether his mother would be entitled to the benefit of the trust. I answered that if the boy should die before the time arrived for the execution of the trust, it would be transferred to his mother; but if he should die after the day for its execution arrived, the heir of the boy would be entitled to the benefit of the trust. But, in order to ascertain the intention of the testator, namely, whether if the boy should die before the delivery of the property under the trust, it would be transferred to the mother rather than to the heirs, the Prætor must take into consideration the person of the mother as well as that of the heir of the boy. Marcellus: It is, however, more in conformity with the will of the testator to hold that whenever the boy dies, whether he dies before the day for the execution of the trust, or afterwards, the trust will be transferred to his mother, if he should not already have received it. This is the rule which we now make use of. 1Where a slave is appointed heir, and his master is charged to deliver the estate to the slave when he shall become free, the trust is valid. 2When anyone appoints his son heir to his entire estate, and, by a codicil which he directed to be opened after the death of his son, he charges him to transfer his estate to his sister if he should die without issue, and the son, being aware of the contents of the codicil, directed by his will that the slave Stichus, who belonged to the estate of his father, should be free, the heirs of the son must pay the value of the slave to the sister of the deceased, for his freedom cannot be lost by means of a favor. Moreover, even if the son should not be aware that his father had made a codicil, his heirs will, nevertheless, be obliged to pay the value of the slave, in order that the act of one may not injure another. 3Ad Dig. 36,1,26,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.If, however, this slave was appointed an heir by Sempronius, and after he had obtained his freedom, entered upon the same estate by the will of the brother, the heirs of the latter must also pay his sister the appraised value of the estate; because if the slave had not been manumitted, he could enter upon the estate by order of the woman. But if Sempronius should die during the lifetime of the son, deduction of the estate on account of the trust shall be made, since the slave, having been ordered to accept the estate by the son himself, will acquire it.