The Same, On Urseius Ferox, Book I. Where an usufruct has been bequeathed, and the person appointed heir purposely delays entering upon the estate in order that the acquisition of the legacy may be deferred; this will have to be accounted for; as was held by Sabinus. 1The usufruct of a slave was bequeathed to me, and when I ceased to use and enjoy it, it was directed that he should be free; and I subsequently obtained from the heir an estimated equivalent of the legacy in money. Sabinus was of the opinion that the slave will not for that reason become free; for it may be held that I am enjoying the usufruct in him, since I have obtained other property in his stead, and the condition of his freedom remains the same, so that he will become free at my death, or if my civil condition is changed.

The Same, On Urseius Ferox, Book I. Where a testator appointed several heirs, among whom was Attius, to unequal shares of his estate, and if Attius should not accept, he substituted the others as heirs in proportion to their interest, and then added that Titius should be the co-heir of those who were substituted. The question arose to what share Titius would be entitled, and what the others would have. I answered that Titius would be entitled to one share and the others to shares in proportion to their rights in the estate; for instance, if there were three of them, Titius would have the fourth part of the share of Attius, and the other heirs would have the three-fourths remaining, in proportion to the shares to which they were entitled by appointment. If, however, the testator should add not only Titius, but other heirs, the latter would be entitled to a portion equal to that of the share of the substitute; for example, suppose that three co-heirs were substituted and two foreign heirs added, the latter would be entitled to five parts of the share of Attius, and the remaining co-heirs would receive the balance in proportion to their respective shares.

The Same, On Urseius Ferox, Book I. The acceptance of an estate is not included in the service of a slave. 1Therefore, if a dotal slave should enter upon an estate, the wife can recover it in an action on dowry, even though the property acquired by the labor of dotal slaves belongs to her husband. 2Where a partnership for profit and gain is entered into, each partner must pay into the common fund whatever he earns by his labor, but each one can acquire an estate for himself. 3Moreover, a slave in whom someone has an usufruct cannot enter upon an estate by order of him who enjoys said usufruct. 4The opinion has been stated by certain authorities that if a freeman who is serving me as a slave in good faith should be appointed an heir on my account, he can enter upon the estate by my order. This is true where it is understood that he does not acquire the estate as the result of his own labor, but on account of his having charge of my property; just as in making a stipulation and by accepting delivery he acquires property for me by virtue of his transacting my business.

The Same, On Urseius Ferox, Book I. Where all the heirs of a testator were charged with a legacy as follows: “Let whoever becomes my heir be charged with the payment of a hundred aurei to Titius.” It was afterwards inserted in the will that only one of his heirs should pay Titius the money. The question arose, must the remaining heirs pay the entire hundred aurei, or what is left after deducting the share of the estate belonging to the one above mentioned? The answer was that it was more advisable for the remaining heirs to pay the hundred aurei, since the meaning of the words is not opposed to this opinion, and the intention of the testator agrees with it. 1Where the following was inserted in a will: “Let my heir pay a hundred aurei to Lucius Titius, if he surrenders to him a note by which I have promised to pay him a certain sum of money.” Titius died before delivering the note to the heir; and the question arose whether his heir would be entitled to the legacy? Cassius gave it as his opinion that if there was, in reality, a note, the heir of the legatee would not be entitled to the legacy, because, as the note was not returned, the time for the legacy to vest had not arrived. Julianus remarks that, if there was no note in existence at the time when the will was executed, there was one reason why the legacy would be due to Titius, and that is because an impossible condition is not considered to have been imposed. 2Sabinus says that property which belongs to the enemy can be bequeathed, if, under any circumstances, it can be purchased. 3Where property was bequeathed to Attius, as follows, “Let whoever becomes my heir be charged to pay ten aurei to my heir, Attius,” Attius can claim the ten aurei, after the deduction of his share from the amount. 4Likewise, where an heir has been ordered to pay ten aurei and retain a tract of land for himself, he must pay that sum after having deducted his share. 5Ad Dig. 30,104,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Finally, it is established that where a legacy has been bequeathed as follows, “Let whoever becomes my heir be charged to pay my heir ten aurei,” the shares of all the heirs will be equal, for the reason that each of them is held to be charged for his own benefit, as well as for that of his co-heirs. 6Ad Dig. 30,104,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Where anyone appoints an heir as follows, “Whenever his mother shall die,” and then a second heir is appointed as his substitute, and the latter is charged with a legacy in favor of the one who was conditionally appointed, and the first one dies during the lifetime of his mother, and afterwards, the day on which the legacy is to vest arrives, the question arises whether his heir will be entitled to the legacy. The better opinion is that he will be entitled to it, whether the substitute was charged to pay it to the first heir absolutely, or under the condition that he should not become his heir; for the condition was fulfilled at the time of the death of the appointed heir. 7Where a father-in-law was appointed heir to his son-in-law, and part of the estate was bequeathed to another, Sabinus gave it as his opinion that after the dowry had been deducted, he would be liable for the share of the estate included in the legacy; just as if a sum of money had been due to the father-in-law from the son-in-law, and after this was deducted, he had surrendered the estate.

The Same, On Urseius Ferox, Book I. In repeating legacies which have already been granted, the following words are usually added, “Moreover, let my heir be charged to give,” and Sabinus says they are equivalent to the repetition of the conditions upon which the legacies are dependent, and the dates on which they are to be paid.

Julianus, On Urseius Ferox, Book I. The following condition, “If he should ascend to the Capitol,” should be understood to mean if he should ascend to the Capitol as soon as he could.

The Same, On Urseius Ferox, Book I. Whenever prætorian possession of the share of the estate due to him can be granted to a patron, an exception may be granted to the debtors against the heir who demands payment, if the patron should not, in opposition to the terms of the will, demand prætorian possession of the share to which he is legally entitled.

The Same, On Urseius Ferox, Book I. A tract of land is devised to a person who cannot legally acquire but a portion of it, under the condition that he will pay ten aurei to the heir. He is not required to pay the entire sum in order to obtain his share of the land, but only an amount in proportion to the legacy which he is entitled to receive.

Ad Dig. 46,3,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.Julianus, On Urseius Ferox, Book I. If my father should die, leaving his wife pregnant, and I, as heir, should demand payment of all the debts due to him; some authorities hold that I will still retain my rights of action, and if no child is afterwards born, that I can legally bring suit, because it is true that I am the only heir in existence. Julianus says that the better opinion is that the entire estate to which I was heir was claimed by me before it was certain that a child would not be born; or the fourth part because three children could be born; or the sixth, because five could be born. For Aristotle has stated that five children can be born, because the womb of a woman has that many receptacles, and that there was a woman at Rome who came from Alexandria in Egypt, who had five children at one birth, all of whom survived. I have obtained confirmation of this in Egypt.