Marcellus, Opinions. Titius sent a letter to Seius in the following words: “There remain in my hands fifty aurei of your loan on account of a contract of my wards, which I shall be obliged to pay you in current money on the Ides of May, and if I do not pay the said sum on the above mentioned day I shall then owe you so much as interest.” I ask whether Lucius Titius has, by this bond, taken the place of his wards as debtor? Marcellus answered that, if a stipulation had been entered into, he would have taken it. I also desire to know if he did not do this, whether he is liable on his promise to pay? Marcellus answers that he is liable for the principal; as this is the more liberal and advantageous interpretation.

Marcellus, Opinions. Where Titius lent money to Sempronius, and received a pledge for the same, and the creditor was about to sell the pledge because the money was not paid; the debtor requested him to purchase the land at a certain price, and, when he did so, he wrote a letter in which he intimated that he had sold the said land to the creditor. I wish to know whether the debtor can revoke this sale by tendering the principal and interest which are due? Marcellus answered that, according to the facts stated, he cannot revoke it.

Marcellus, Opinions. Lucius Titius permitted Publius Mævius, his son, to mortgage a house held in common to his son’s creditor, but not with the intention of making him a present of the same; and afterwards Mævius, having died leaving a minor daughter, the guardians of the latter joined issue against Titius, as Titius did in proceedings instituted to collect a loan. I ask whether the part of the house which Titius permitted his son to encumber should be released by a decision of court? Marcellus was of the opinion that the judge should determine whether it should be released, by taking into consideration the character of the debtor and the intention of the contracting parties, as well as the time when the property in dispute was hypothecated, for, the disposal of a legal question of this kind depends upon a judicial decision. 1Ad Dig. 17,1,38,1ROHGE, Bd. 13 (1874), Nr. 95, S. 281: Anspruch des Mandatars (Intercedenten) auf Deckung im Falle einer justa metuendi causa.There is a point which is not dissimilar, and which very frequently arises, that is, whether a surety can institute proceedings to obtain his release before he has made payment. One should not always wait until he makes payment, or until judgment is rendered against him after issue has been joined; as, if the principal debtor has delayed payment for a long time, or wasted his property, and especially if the surety has not the money in his hands ready to be paid to the creditor, he may then proceed against the debtor by an action of mandate.

Marcellus, Opinions. Lucius Titius, while under paternal control, married Mævia with the consent of his father, and the latter received the dowry. Mævia then served notice of repudiation on Titius, and his father afterwards, in the absence of his son who had been repudiated, entered into an engagement of betrothal with her in the name of his said son. Mævia then served notice of the repudiation of the betrothal, and married another man. I ask if Mævia should bring an action for the recovery of her dowry against Lucius Titius, her former husband, to whom the dowry was left as heir to his father, and it should be proved that the marriage was dissolved through the fault of the woman, whether the dowry could be retained by the husband on the ground that she was to blame? Marcellus answered that even if Lucius Titius should be sued as the heir appointed by his father, still, if he had not consented to the betrothal, the fault of the woman should be punished by a fine.

Marcellus, Opinions. Lucius Titius appointed Gaius Seius, who was under paternal control, the guardian of his son by will. Gaius Seius administered the guardianship with the knowledge and consent of the father. I ask whether, after the death of Gaius Seius, an action on guardianship will lie against his father, and if this be true, for what amount. Marcellus answered that, according to the facts stated, the father will be liable to an action de peculio, as well as to one for property employed for his benefit; and that, in this instance, it does not appear that the knowledge and consent of the father will have the effect of rendering him liable for the entire amount, unless a fellow-guardian or some other party desiring to render him suspected, should appear and assume the risk.

Marcellus, Opinions. Lucius Titius, after having appointed Seius and Sempronius equal heirs to his estate, and his other sons having been disinherited, substituted each of the said heirs for the other, and then bequeathed certain legacies, and manumitted certain slaves, and afterwards added the following: “Let Cornelius, Sallustius, and Varo be heirs to equal portions of my estate, and I substituted them for one another.” I ask, what portion of the estate the first heirs, who are appointed for the whole of it, and what portion the last heirs should have? Marcellus answered that it was doubtful whether the testator intended to appoint Cornelius, Sallustius, and Varo his heirs in the first, second, and third degrees; but according to the terms of the will as set forth, it would appear that the estate was given to all of the heirs after the shares had been doubled.

Marcellus, Opinions. Titius, before he became a legionary tribune, made a will, and after obtaining the office died, without having altered it. I ask whether such a will should be considered a military one. Marcellus answers, The will which he made before becoming tribune would be subject to the rules of the Common Law, unless after it had been executed, it is proved that the testator declared that he wished it to be valid. For, by the Imperial Constitutions, not the wills of soldiers, but wills made by soldiers while in the army, are confirmed. It is evident, however, that a soldier should be understood to have made a will, who declares in any way whatsoever that he desires that a previous will which he had executed should be valid.

Marcellus, Opinions. Lucius Titius, who left his two children his heirs, inserted the following provision into his will: “Whichever my children shall be my heir, I charge him, if he should die without issue, to transfer to his brother two-thirds of my estate when he dies.” The brother, at the time of his death, appointed his brother heir to three-quarters; and I ask whether he complied with the terms of the trust. Marcellus answered that what the testator owed his brother under the will of Lucius Titius can be demanded by him in proportion to his interest in the estate; unless it can be proved that the intention of the testator was otherwise; for there is little difference between this case and one where a creditor becomes the heir of his debtor. It is clear, however, that the co-heir should be heard, if he can prove that the testator, when he appointed his brother heir, intended that he should be content with the appointment, and relinquish the benefit to be derived from the trust. 1The following provision was inserted into a will: “Let my heir deliver such-and-such property to Gaius Seius, and I charge Seius, and I trust to his good faith for the delivery of all the property abovementioned, without delay.” I ask whether this creates an implied trust, as the testator did not indicate in his will the person to whom he wished the property to be delivered. Marcellus answered that if Seius had tacitly given his promise for the purpose of defrauding the law, he could in no way derive any benefit from the words written by the testator. For the law must not be thought to have been any the less evaded, because it is uncertain whose advantage the testator had in view.

Marcellus, Opinions. The ordinary signification of words in a will must never be departed from, unless it is evident that the intention of the testator was otherwise. 1Titius provided as follows by a codicil: “I wish all the young slaves whom I have in my service to be given to Publius Mævius.” I ask at what age slaves should be understood to be young? Marcellus was of the opinion that this must be referred to the judge who had jurisdiction of the matter, in order to determine what the testator meant by the words which he made use of. For, in the case of wills, attention should not always be paid to the exact definition of terms, as very frequently persons speak incorrectly, and do not always employ appropriate names and appellations. However, a slave may be considered young who has passed the age of youth, until he begins to be included among old men.

Marcellus, Opinions. Seia charged her heir, Publius Mævius, with a bequest as follows: “I give and bequeath to Antonia Tertylla such-and-such a weight of gold, and my large pearls set with hyacinths.” She afterwards disposed of the pearls, and at the time of her death did not leave any among her jewels. I ask whether the heir will, under the terms of the trust, be compelled to furnish the value of property which does not form part of the estate. Marcellus answers that he will not be required to do so. 1I also ask, if it can be proved that Seia converted her necklace of pearls and hyacinths into some other kind of ornament, which afterwards became more valuable through the addition of other jewels and small pearls, whether the legatee can demand the said pearls and hyacinths; and whether the heir will be compelled to remove them from the other jewelry and deliver them. Marcellus answers that the demand cannot be made. For how can a legacy or a trust be held to exist when what is given by a will does not retain its original character? For the bequest is, as it were, extinguished, so that in the meantime it is lost sight of, and hence by this dismemberment and change the intention of the testatrix also appears to have been altered. 2Lucius Titius made the following provision in his will, “I charge my heir to erect a public portico in my native town, in which I desire my silver and marble statues to be placed.” I ask whether the legacy is valid. Marcellus answers that it is, and that the bequest of the labor, and of the other things which the testator desired to be placed there, will belong to the municipality, for he understood that the city would receive some adornment therefrom.

Marcellus, Opinions. Publius Mævius provided by his will as follows: “I give and bequeath, and charge whoever shall be my heirs to pay to my sister’s son Gaius Seius, forty aurei for his expenses during his Consulate.” Seius was appointed Consul during the lifetime of Mævius, and gave the ordinary present, and afterwards, upon the Kalends of January, assumed the duties of the Consulate, and then Mævius died. I ask whether Seius would be entitled to the forty aurei. Marcellus answered that he would. 1Titia made the following provision with reference to certain lands which she had left to Septitia by her will, “I charge you, Septitia, to give to my son the same lands when he shall have reached the age of sixteen years. If, however, my said son should not reach the age of sixteen years, I charge you to deliver the said lands to Publius Mævius and Gaius Cornelius.” As Septitia died, and the son also died during his fifteenth year, I ask whether the trust should be executed, and the heirs of Septitia be compelled to deliver the land to Publius Mævius and Gaius Cornelius, the son not having completed his fifteenth year. Marcellus answered that Septitia had transmitted to her heirs the same right which she herself had in the land; for it would be contrary to the intention of the testatrix for the execution of the trust to be demanded immediately, as in that case more benefit would be derived by the substitutes than by the boy, either through Septitia or her heirs. The words used by the testatrix would, indeed, seem to indicate that the trust should be executed as soon as her son died, but it is not probable that she intended the benefit to be enjoyed by the substitutes sooner than it could have been by her son. The aspect of the case is not at all changed because Septitia died first, for even if the boy had lived, the heirs of Septitia could not have been sued by him any sooner than Septitia herself could.

Marcellus, Opinions. Titius purchased a boy slave, and after the lapse of several years ordered him to be sold, but subsequently having been begged to manumit him, did so, having received from him a sum of money as his value. I ask whether the son and heir of the master who manumitted him can accuse the freedman of being ungrateful. The answer was that he could, if there was no other obstacle; for it makes a great deal of difference where anyone has given freedom to his slave in consideration of money obtained from him, or from a friend of his, and where a slave, who had belonged to another, becomes his property and pays him a sum of money for his freedom. For the former confers a benefit upon him, although it is not gratuitous; the latter, however, can be considered to have done nothing more than to have lent him his aid.

Marcellus, Opinions. A nephew, desiring to make a donation mortis causa to his uncle of the amount which he owed him, made the following statement in writing, “I wish any registers or notes of mine, wherever they may be found, to be void, and that my uncle shall not be obliged to pay them.” I ask, if the heirs bring suit to recover the money from the uncle of the deceased, whether they can be barred by an exception on the ground of fraud. Marcellus answered that they can be, for the heirs most assuredly are making a demand upon the uncle contrary to the wishes of the deceased.

Marcellus, Opinions. Lucius Titius provided by his will as follows, “I desire that any codicils which I may hereafter execute shall be valid. If a child should be born to me by my wife, Paula, within ten months after my death, let it be the heir to half of my estate. Let Gaius Seius be the heir to half of my estate. I request my heirs, and I charge them to manumit my slaves Stichus, Pamphilus, Eros, and Diphilus, when my children arrive at the age of puberty.” Then he inserted the following provision in the last part of his will: “If no children should be born to me, or if they should die before reaching the age of puberty, then let Mucius and Mævius be heirs to equal shares of my estate. I desire that the legacies bequeathed by my former will, under which I appointed my sons and Seius my heirs, to be paid by the heirs who may succeed them.” He afterwards executed a codicil as follows: “Lucius Titius to his heirs in the first degree and to their substitutes; Greeting. I ask you to pay those legacies which I have bequeathed by my will, as well as those which I shall bequeath by my codicil.” As no children were born to Lucius Titius, I ask whether the freedom granted by the trust should be immediately given to the slaves Stichus, Pamphilus, Eros and Diphilus. Marcellus answered that there was a condition attached to the bestowal of freedom upon the slaves in question, which was that the children of the testator should become his heirs; but the condition did not appear to be repeated, and therefore that freedom should be immediately granted to the slaves by the heirs in the first degree and the substitutes. For, as was stated above, the testator requested that everything which he mentioned in his will shall be carried out. Moreover, he provided for the freedom of the said slaves, but he did so under a condition, and if the condition had been of any other kind it would have been necessary to await its fulfillment. It is not, however, probable that he had this condition in his mind when he charged the substitutes, since if it should be fulfilled, the substitutes could not be admitted to the succession.

Marcellus, Opinions. Lucius Titius, desiring to become surety to Septicius for his brother, Seius, wrote to him as follows: “If my brother asks you, I request you to pay him the money, on my responsibility, and at my risk.” After having written this letter, Septicius paid the money to Seius; and Titius, having afterwards died, left certain heirs, and among them his brother, Seius, a third part of his estate. If, because the action to which Septicius was entitled against his brother Seius was extinguished by merger, on account of the third part of the estate to which Seius had become the heir to his brother Titius, I asked whether Septicius could bring an action for the entire amount against the other heirs. Marcellus answered that an action on mandate could not be brought against the co-heirs of Seius for the larger part of the estate, but only for their hereditary shares.

Marcellus, Opinions. Titia, in order to secure her dowry, obtained possession of the property of her husband, and acted in every respect as if she owned it, for she collected the income, and sold the chattels. I ask whether what she collected out of the property of her husband should be credited on her dowry? Marcellus answers that, in the case stated, it did not seem unjust for such a credit to be made, for what the woman collected under such circumstances should rather be considered a payment. But if the arbiter appointed to decide as to the recovery of the dowry should also require an account of the interest to be rendered, this must be computed in such a way that whatever came into the hands of the woman will not be deducted from the entire amount, but will first be credited on the interest to which she was entitled. This is not inequitable.