Labeo, Epitomes of the Last Works of Javolenus, Book II. Ad Dig. 28,7,20 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.A woman who was indebted to her husband for money promised to him by way of dowry, appointed him her heir, “Under the condition that he would not claim or exact the money which she had promised as dowry”. I think that if the husband should notify the other heirs that he is not unwilling to give a release for what was due to him by way of dowry, he will immediately become the heir. If, however, he should be appointed heir under such a condition, I hold that he will, nevertheless, forthwith become the heir, because performance of the condition is impossible, and any such condition must be considered as not having been imposed. 1If anyone should be ordered to manumit a slave belonging to an estate, and to become the heir, even though he should manumit him, and perform an act which is void, he will, nevertheless, become the heir; for while it is true that he manumitted the slave, the freedom granted to the latter after the estate was entered upon will become valid in accordance with the wish of the testator. 2If anyone should appoint you an heir under the condition that you appoint him one, or bequeath something to him, it makes no difference in what degree he has been appointed an heir by you, or what has been left to him, provided you can prove that you have done this in any degree whatsoever.

Labeo, On the Last Epitomes of Javolenus. Where a man had a concubine, and gave her the privilege of using the clothes of a former concubine, and then made a bequest as follows, “I leave her such-and-such clothing which I have purchased, and intended for her,” Cascellius and Trebatius deny that she is entitled to the clothing which was obtained for the first concubine, because a different rule prevails in the case of a wife. Labeo does not adopt this opinion, because, while it is true that in the case of a legacy of this kind the law governing a wife does not apply, the interpretation of the words used by the testator must be considered. The same rule applies to the case of a daughter, or to any other person whatsoever. The opinion of Labeo is correct. 1Where a legacy was bequeathed as follows, “I desire my wife, Titia, to have a share of my estate equal to the smallest one which any one of my heirs may have,” and the shares of the heirs were unequal, Quintus Mucius and Gallus held that the largest share was bequeathed, for the reason that the smaller share is included in the larger. Servius and Ofilius contended that the smallest share was meant, because when the heir was charged with the payment of the legacy, he had the power to give whatever share he chose. Labeo approves this opinion, and it is correct. 2Where a legacy was bequeathed as follows, “Let my heir pay to Seia a sum of money equal to that which I obtained from the estate of Titius,” Labeo thinks that the legacy includes what the testator had entered in his accounts as having been derived from the said estate; but he denies that security should be furnished to the heir by the legatee to protect him, in case the heir should afterwards be required to pay anything on account of the said estate. I, however, hold the contrary opinion, because it cannot be maintained that what the heir will have to pay on account of said estate has actually come into his hands. Alfenus Varus states that this was the opinion of Servius, and it is correct. 3Where a slave has been left to you in general terms, and the heir delivers Stichus to you, and he is evicted, Labeo says that you can proceed against him under the will, because the heir is not considered to have given you any slave, since you were unable to retain the one he gave you. I think that this is correct. But he also says that you should notify the heir of the eviction before instituting proceedings, for, if you did otherwise, an exception on the ground of bad faith could be filed against you in case you brought an action under the will. 4“If my slaves Stichus and Damus are in my possession at the time of my death, let them be free, and let them have for themselves such-and-such a tract of land.” Labeo thinks that if either of said slaves should be alienated or manumitted by their owner, after the will was executed, neither of them would become free. Tubero, however, thinks that the one who remained in the hands of the testator would be free, and be entitled to the legacy. I think that the opinion of Tubero is the one more in conformity with the intention of the deceased.

The Same, On the Last Epitomes of Javolenus, Book II. A testator who had four oil jars made the following bequest: “I bequeath two oil jars which are similar.” I gave it as my opinion that only a pair of jars was bequeathed, as the expression, “Two pairs of jars,” is not the same as “Two similar jars.” Trebatius is of the same opinion. 1Where a testator rented certain public gardens from the State, and bequeathed to Aufidius the produce of said gardens until the expiration of the lease under which they were rented, and charged his heir to pay the rent of said gardens and permit him to enjoy the same, I held that the heir was obliged to permit him to enjoy them, and moreover, that he would also be obliged to pay the rent of said gardens to the State. 2Where it was inserted into a will, “Let my heir pay five aurei to Stichus, my slave, and if Stichus should serve my heir as a slave for the term of two years, let him be free,” I think that the legacy will be due after the lapse of two years, for both it and the grant of freedom should be referred to that time. This was also the opinion of Trebatius. 3If you are charged to sell me a tract of land for a specified price, you will not be at liberty under the terms of said sale to reserve any of the crops of said land, because the price refers to the entire premises. 4Where I directed a party to purchase a tract of land for himself and me, to be held in partnership, and he then divided said land into two portions by boundaries, and, before delivering it to me, he devised it as follows, “I give to So-and-So my tract of land,” I denied that more than half the land was due, because it would not be probable that the testator, when he made the devise, intended that his heir should be charged with the mandate. 5“Let my heir pay two hundred aurei to my wife, while she remains with my son at Capua.” The son left his mother. I was of the opinion that as long as both parties resided at Capua, the legacy would be due to the mother, even though they did not live together. If, however, they should move to some other town, Trebatius says that the legacy would only be due for one year according to the time during which they lived together. Let us see whether a condition was not implied by the words, “While she remains with my son at Capua,” but that they shall be considered as superfluous. I do not adopt this opinion. Still, the legacy should be paid to her, provided it is not her fault if she did not reside with her son. 6If you are charged to deliver a house belonging to another, and you cannot purchase said house on any terms whatsoever, Attius says that the court must make an appraisement of its value, so that the heir may be discharged after the amount has been paid. The same rule applies if you could have bought the house and did not do so.

Labeo, On the Last Epitomes of Javolenus, Book II. A legacy was bequeathed as follows, “Let my heir give to Attia fifty aurei until she marries.” It was not stated that the money was to be paid annually. Labeo and Trebatius think that the entire sum is immediately due. It is, however, more equitable to hold that the legacy is payable annually. 1“Let my heir give to Attius, every year, two measures of Falernian wine which are to be taken from my estate.” It was held that the two measures of wine should be furnished even for a year when no wine was made, provided they could be obtained from the vintage of former years.

Labeo, On the Last Epitomes of Javolenas, Book II. Where anyone has a tract of land in common with you, and leaves the usufruct of said land to his wife, and, after his death, his heir applies to the court for partition of the land; Blæsus says that it was held by Trebatius that, if the judge should divide the land into different portions, the usufruct of the part allotted to you would not, under any circumstances, be due to the woman, but she would be entitled to the usufruct of the entire share assigned to the heir. I think this opinion is incorrect, for if, before the judgment was rendered, the woman was entitled to the usufruct of the undivided half of the entire tract of land, the judge could not, in deciding between the parties, prejudice the rights of the third. This last decision is the one adopted.

Labeo, On the Last Epitomes by Javolenus, Book II. Where the following was inserted into a will, “Let my heir give to my wife the sum of fifty aurei, which came into my hands through her and as much more in lieu of her dowry,” Alfenus Verus says that Servius was of the opinion that, although the dowry was only composed of forty aurei, fifty were, nevertheless, due, because an additional sum of fifty was added. 1Likewise, where a husband made a bequest to his wife, who had not brought him any dowry, in the following terms, “Let my heir give the sum of fifty aurei, instead of the money which I received from my wife by way of dowry,” Ofilius, Cascellius, and the pupils of Servius assert that the legacy is due to her; and hence it must be considered similar to the case where a slave, who is dead, has been bequeathed to someone, or a hundred aurei has been left in his stead. This is correct, because by these words not the dowry itself, but money in lieu of it is held to have been bequeathed.

Labeo, Epitomes of the Last Works of Javolenus, Book II. It is stated in the First Book of Aufidius, that when a bequest was made as follows, “Let him take and have for himself any coverings for table-couches which he may wish,” if he mentioned those he wanted, and then, before he took them, should say that he wanted others, he cannot change his mind and take the others; because he had disposed of his entire right of selection under the legacy by his first statement, in which he indicated those which he would take, as the articles become his immediately, just as if he had said that he would take them.

Labeo, Last Epitomes by Javolenus, Book II. A master manumitted his slave by his will, and left him his peculium. The slave owed his master a thousand sesterces, and paid them to the heir. I rendered the opinion that all the property composing the peculium was due to the enfranchised slave, if he had paid the money which he owed. 1A master manumitted his slave, who held a sub-slave in common with him, left the former his peculium, and then bequeathed specifically the sub-slave himself, who was held in common by them, to him and to his freedwoman. I held that a fourth part of the slave would belong to the freedwoman, and that the remaining three-fourths would belong to the freedman; which is also the opinion of Trebatius.

Labeo, Epitomes of the Last Works of Javolenus, Book II. A certain man left a large dish, one of medium size, and one still smaller, as follows: “I bequeath to So-and-So my smaller dish.” It was held that the dish of medium size was bequeathed, if it did not appear which dish the testator intended to designate.

Labeo, Epitomes of the Last Works of Javolenus, Book II. Where the daughter, granddaughter, great-granddaughter, or wife of the deceased, is not married, and has no property of her own, and has been placed in possession of the estate to insure the payment of legacies, she can use the property of said estate for her support.