Marcianus, Trusts, Book VIII. Funeral expenses are always charged to the estate, and it is customary for them to take precedence of all other debts, when the estate is insolvent.

Marcianus, Trusts, Book VIII. In the application of the Falcidian Law, losses caused by the death of slaves and other animals, or by theft, robbery, fires, the ruin of houses, shipwreck, and violence of enemies, depredators and thieves, or by debtors, in fine, any loss whatsoever, must be borne by the heirs, provided that the legatees are not to blame. In like manner, the profits obtained by the heir from crops, the offspring of female slaves, and any acquisitions made by slaves (as, for instance, through stipulations, the delivery of property, legacies, or estates left to them, and other donations of every description) as well as servitudes—where lands become more valuable through being released from them—or where any rights of action, for example, those for theft, damage, injury, and others of this kind, are none of them liable to the operation of the Falcidian Law. 1Where the heir is directed either to sell or purchase a tract of land or any other kind of property for a certain price before estimating the Falcidian portion, in order to ascertain the amount of the legacy, only that sum is considered as bequeathed which either amounts to more or less than the price which the testator ordered to be paid or received for the said property. Then, from the portion which remains after the legacies have been deducted, a still further deduction will be made, since the said price is not acquired mortis causa, but after the deduction has been made, the remainder is understood to have been bequeathed. 2It should also be carefully noted that the ordinary rule, “All losses which occur after the death of the testator concern the heir alone,” is of universal application, and must be accepted without any distinction. For as even where the Falcidian Law does not apply at all, the heir will legally be compelled to bear the entire loss, so he must bear his share of it in cases where the Falcidian Law is operative. For, generally speaking, this is the rule, since losses sustained after the death of the testator cannot be deducted, in order to prevent the portion which is lost from being taken from the legacies or trusts. 3It is, however, true that no deduction can be made except with reference to such articles alone as can be weighed, counted, or measured; and where any loss happens after the death of the testator the deduction must be made from the share belonging to the legatee, dependent upon the appraised value of the estate of the deceased at the time of his death. 4With regard to property which can be positively designated, and other articles left as follows, “The money which I have in such-and-such a chest,” “The wine which I have in such-and-such casks,” “The weight of silver which I have in such-and-such a building,” and the property is lost, or becomes deteriorated without the fault of the heir, there is no doubt that either none of the legacy will be due under such circumstances, or, after the deduction of the Falcidian portion, the legatees will be entitled to a share of whatever remains, based upon an estimate of the value of the property belonging to the testator at the time of his death. 5Where property is left which is of an uncertain character, a distinction must be made; for if a testator should bequeath some articles without specifically designating them, as, for instance, where he leaves to anyone the silver plate which he may select, and all the silver plate should be lost without the heir being to blame, nothing will be due to the legatee. If, however, a certain amount of silver was absolutely bequeathed, even though all the silver of the testator should be lost, the Falcidian Law will apply, and that portion of the amount can be taken which was with the property of the estate at the time that the testator died, and any losses which may subsequently have occurred will not cause any diminution of the legacy. 6The heir will not be liable for any portion of the property bequeathed which is lost, and not even for the appraised value of the same, any more than if all the articles bequeathed had been specifically enumerated. 7In estimating the amount due to the heir under the Falcidian Law, anything which is paid to him in compliance with the conditions of the will shall not be charged against his fourth; still, it is held by Celsus and our Julianus that a charge should be made when he was directed to receive a sum of money from the beneficiary of the trust, to whom he has been ordered to deliver the estate, where the testator did not direct the beneficiary to pay the said sum under some condition; as, for instance, where the heir was directed to sell the property for a specified amount, for then he will pay the money to the heir, not for the purpose of complying with a condition, but as a price. In a similar case, it has also been asked whether the beneficiary of the trust can be compelled to pay the said sum, and take the estate, even if he is unwilling to do so, just as if he himself had been charged with a trust for the benefit of the heir. This is not probable, however, as a provision of this kind appears to have been made in favor of the beneficiary of the trust rather than against him. 8When the Falcidian Law applies, that property is not subject to contribution where the heir himself is charged with a trust for the benefit of himself, or his slave. The case, however, is different where the legacies to the slave are payable at a certain time; for when the day of his freedom arrives he will be entitled to them, and they become subject to contribution. Where, however, anyone makes a bequest to a slave without the grant of his freedom, and which, for this reason, is void, or leaves it subject to a trust, it will not be considered as liable to contribution under this law. 9Property, which it is certain cannot legally be left in trust, is not included in that liable to contribution under the Falcidian Law.

Marcianus, Trusts, Book VIII. When the heir transfers an estate, he is not obliged to furnish security against the eviction of the land, slaves, or any other property belonging to the same; but, on the other hand, the beneficiary of the trust must give security to indemnify the heir, if he should be evicted of any of the property which was sold by the latter.

The Same, Trusts, Book VIII. Payments and releases made by the heir before the estate is transferred should be ratified.