Marcellus, Digest, Book XXIX. A case was recently brought to the attention of the Emperor, where a certain testator erased the names of the heirs, and the estate was claimed as forfeited to the Treasury. There was doubt for a long time as to what disposition should be made of the legacies, and especially of such as had been bequeathed to those whose appointment as heirs had been erased. Several authorities decided that the legatees should be excluded, and I thought that this course should be adopted if the testator had cancelled his entire will; others were of the opinion that what had been erased was abrogated by operation of law, but that all the remainder was valid. What course should then be pursued? Could it not sometimes be held that a testator who had erased the names of his heirs was aware that he would be in the same position as if he had died intestate? Where a point is in doubt, it is not less just than safe to follow the more indulgent interpretation. The following is the decision by the Emperor Antoninus Augustus, during the Consulship of Pudens and Pollio: “Since Valerius Nepos, having changed his mind, has mutilated his will, and erased the names of his heirs, his estate, in accordance with the Constitution of my Divine Father, does not seem to belong to the heirs mentioned therein”. He also stated to the advocates of the Treasury: “You have your own judges”. Vivius Zeno said, “I ask, O Lord Emperor, that you hear me patiently, what do you decide with reference to the legacies?” The Emperor Antoninus replied: “Does it seem to you that a testator who erased the names of his heirs intended that his will should stand?” Cornelius Priscianus, the advocate of Leo, said: “The testator only erased the names of his heirs”. Calpernius Longinus, the Advocate of the Treasury, answered, “No will can be valid in which an heir is not appointed”. Priscianus added, “He manumitted certain slaves, and bequeathed legacies.” The Emperor Antoninus, having caused all the parties to retire while he considered the matter, and having ordered them to be again admitted, said: “The present case seems to admit of an indulgent interpretation, so that we think that the testator Nepos only intended that portion of his will which he erased to be annulled”. He had actually erased the name of a slave whom he had ordered to be free. Antoninus stated in a Rescript that the slave would, nevertheless, be liberated. He decided the question in this way on account of the favor conceded to freedom.

Marcellus, Digest, Book XXIX. Where a patron is appointed by his freedman heir to the share to which he is entitled by law, he is not compelled to execute a trust left by him. If the patron should reject the appointment, can those who have a right to claim his share hold it in the same manner, or will they be obliged to discharge the trust? The better opinion is that they will be compelled to discharge it, since the especial privilege enjoyed personally by the patron should, by no means, be enjoyed by another.

The Same, Digest, Book XXIX. If anyone should devise a tract of land to Mævius, and a right of way to give access to the same through other land, and then should leave the same tract of land to Titius without the right of way, and both of them should claim the land; the latter should be delivered without the right of way, because a servitude cannot be partially acquired. If, however, Mævius should be the first to claim the land, while the other is deliberating as to whether or not he will accept it, if Titius should afterwards reject the estate, it may be doubted whether the right of way which was bequeathed will continue to exist. This has been held to be the better opinion. But if anyone should devise a tract of land under some condition, and the right of way absolutely; or a part of the land absolutely, and a part of the same under a condition, and the right of way absolutely; and the devise should become due before the condition was fulfilled, the bequest of the right of way will be annulled. The rule is the same where two neighbors of the testator owned a tract of land in common, and he left a right of way to one of them conditionally, and to the other absolutely, and before the condition was fulfilled he died; and this is the case because one of the legatees prevents the other from claiming the entire premises together with a right of way.

Ad Dig. 50,17,192BOHGE, Bd. 1 (1871), S. 22: Auslegung zum Nachtheile des Contrahenten, welcher aus dem Vertrage ein Recht auf eine ihm vortheilhaftere Auslegung herleitet.ROHGE, Bd. 7 (1873), S. 1: Auslegung zum Nachtheile des Contrahenten, welcher aus dem Vertrage ein Recht auf eine ihm vortheilhaftere Auslegung herleitet.Marcellus, Digest, Book XXIX. Property which cannot be divided will be due in its entirety from the heirs, as individuals. 1In matters which are ambiguous, it is not less just than safe to adopt the more benevolent interpretation.