Marcianus, Institutes, Book VI. I think that the better opinion is that he who brings the action, that is to say the legatee, must prove that the testator knew that the property bequeathed belonged, or was encumbered to another, and that the heir is not required to prove that it belonged to someone else, or was encumbered, because the necessity of proving his allegations always rests upon the plaintiff.

Marcianus, Institutes, Book VI. If, however, the father intended that the son should not have the legacy unless he accepted the estate, then an action should not be granted him against his co-heir for the recovery of the legacy, as is held by Aristo; since the estate did not appear to be solvent to the son himself. This is the case, even if the testator did not make the acceptance of the estate conditional, as it is clearly established what his intention was.

The Same, Institutes, Book VI. Where anyone bequeaths serfs, without the land to which they are attached, the legacy will be void. But the Divine Marcus and Commodus stated in a Rescript that it must be determined by the will of the deceased whether an appraisement of the serfs should be made. 1Where an heir is charged to deliver his own slave to someone, and manumits him, he will be liable for the appraised value of the slave; and it makes no difference whether he knew of the legacy, or was not aware of it. If, however, the heir should give away the said slave, and the person to whom he was given should manumit him, the heir will be responsible for his value, even though he was not aware that the slave had been bequeathed to him. 2Where a legacy was bequeathed as follows, “I give and bequeath to Titius, together with Seius,” the legacy is left to both of the parties, just as there are two legacies where a tract of land is devised with the Formian House. 3Where anyone by his will directs something to be done which is contrary to law or good morals, the provision will not be valid; for example, if he should direct something to be done which was in violation of a certain law, or against the Prætorian Edict, or should order some dishonorable act to be performed. 4The Divine Severus and Antoninus stated in a Rescript that an oath inserted in a will which was opposed to the general tenor of the laws, or the authority of some special enactment, is of no force or effect.

Marciamis, Institutes, Book VI. When a certain man desired a distribution of his estate to be made to the Decurions on his birthday, the Divine Severus and Antoninus stated in a Rescript, that it was not probable that the testator had in his mind payment during only one year, but intended to leave a legacy in perpetuity.

Marcianus, Institutes, Book VI. If his own peculium should be bequeathed to a manumitted slave, there is no doubt that no action will lie against him in favor of the creditors of his peculium, but the heir will not be obliged to deliver it, unless security is furnished to defend him against the said creditors.

Marcianus, Institutes, Book VI. The Divine Severus and Antoninus stated in a Rescript that where a testator, induced by some motive or other, in his last will mentioned one of his freedmen as being of extremely bad character, he was considered to have deprived him of all that had been left to him previously.

Marcianus, Institutes, Book VI. If anyone should make the following provision in his will, “Let my heir pays ten solidi to the witnesses who sealed my will,” Trebatius holds that the legacy is valid. Pomponius also considers this to be true, because the will itself is confirmed by the production of the witnesses. This opinion I think to be correct.

Marcianus, Institutes, Book VI. The will of the testator distinguishes a penalty from a condition, and whether it is a penalty, a condition, or a transfer that is referred to in the legacy, must be ascertained from the intention of the deceased. This the Divine Severus and Antoninus stated in a Rescript.

Marcianus, Institutes, Book VI. The Divine Severus and Antoninus stated in a Rescript that a freedman to whom property had been bequeathed by the will of his patron should be deprived of his legacy or trust as being unworthy of it, if, after the death of his patron, he accused him of having been engaged in some illegal transaction, even though he may have deserved a reward for doing so.

Marcianus, Institutes, Book VI. A false designation does not benefit the legatee, the beneficiary of the trust, or an heir who has been appointed; for instance, where” the testator incorrectly refers to his brother, his sister, his grandson, or anything else. This was provided for by the Civil Law, as well as by the Constitutions of the Divine Severus and Antoninus. 1Where, however, a controversy arises with reference to several persons having the same name, that one will be admitted to the succession who can prove that the deceased had reference to him. 2Where a bequest is made to anyone as to a freedman, that is to say, by mentioning him among other freedmen, he should not lose the legacy for the reason that afterwards he may have received a gold ring from the Emperor, for his dignity is increased, and his condition is not altered, as was stated by the Divine Severus and Antoninus in a Rescript. 3If anyone should bequeath property as follows, “If it should belong to me at the time of my death,” and it is not found at that time, the appraised value of said property will not be considered to have been bequeathed. 4But what if anyone should provide by his will as follows, “I give and bequeath Stichus and Pamphilus to Titius, if they should belong to me at the time of my death,” and he should alienate one of them, could the other be claimed by the legatee? It was decided that he could be claimed, for this clause, although it is in the plural number, must be understood just as if the testator had said separately, “I give and bequeath Stichus if he should be mine at the time of my death.”

Marcianus, Institutes, Book VI. Where a legacy is bequeathed for a prescribed number of years, for instance, the sum of ten aurei is left to Titius payable annually for ten years, Julianus, in the Thirteenth Book of the Digest, says that a distinction must be made; for if the legacy is bequeathed for the purpose of support, there are several distinct legacies, and if the legatee should die he will not transmit to his heir those which are payable in years to come. If, however, the testator did not bequeath the legacy in order to provide support, but divided it into several payments for the convenience of the heir, in this instance, he says that the sums payable in future years will constitute but a single bequest, and if the legatee should die within ten years, he will transmit to his heir the amounts due for the ensuing time. This opinion is correct.