Marcianus, Institutes, Book VIII. Even though the estate should have descended to a man who has his domicile in a province. The Divine Severus and Antoninus, however, stated in a Rescript that if the party should consent to discharge the trust elsewhere, he is bound to do so in the place agreed upon.

Marcianus, Institutes, Book VIII. Where anyone, when he can have security furnished him by the beneficiary of a trust, does not do so; the Divine Severus and Antoninus stated in a Rescript that he can bring an action to recover whatever he has paid over and above the amount.

The Same, Institutes, Book VIII. Where it was set forth in a will: “Let Titius be my heir, and if Titius should be my heir let Mævius be my heir”, if Titius should accept the estate, which was suspected of being insolvent, Mævius can voluntarily accept it, and retain a fourth of the same.

The Same, Institutes, Book VIII. A son under paternal control, who is a soldier or who has been discharged from the service, even though he may die intestate, can charge his father with a trust, for the reason that he can make a will. 1If a freedman should die intestate, he can charge his patron with a trust to the extent of the share of his estate to which his patron is entitled; because if he should execute a will, he can only leave his patron the amount allowed by law. 2Where a man dies intestate, and knows that his property will revert to the Treasury, he can charge the Treasury with a trust. 3The following case is discussed by Marcellus in the Twelfth Book of the Digest. A certain individual charged a person with a trust to whom he had bequeathed a tract of land, directing him to transfer the said land to Sempronius after his death; and he also charged the same legatee to pay Titius a hundred aurei. The question arises, what is the law in this instance? Marcellus says that if the testator left Titius a hundred aurei to be paid out of the profits which the legatee if living could have collected, and the latter died after a time sufficient for the sum of a hundred aurei to be obtained from the profits, Titius will be entitled to that amount. But if the legatee should die immediately after having received the legacy, the trust created for the benefit of Titius will be extinguished because it is settled that one cannot be compelled to deliver more than was bequeathed to him. 4If, however, the trust for the benefit of Titius was to be discharged before the death of the legatee, Marcellus says that the sum provided by the trust must immediately be paid to Titius, but that he will be required to give security to refund any surplus which there might be, and this security will be operative if the legatee should die before a hundred aurei are obtained from the profits. It can, however, hardly be maintained that the testator intended that the bequest should be paid out of the profits before the legatee had been able to collect them. The legatee should certainly be heard if he desires to deliver the entire tract of land, provided the beneficiary furnishes security for its return, for it would be absurd to compel the legatee to pay a hundred aurei, especially if the land is only worth that much, or very little more. This is the practice at the present time. 5Where anything is bequeathed to someone in accordance with law, or some interest or right is left which cannot be enjoyed or held on account of some defect or qualification attaching to the thing bequeathed, or for any other good reason, and another party can hold said property, the legatee will be entitled to receive from the heir the appraised value of what it would ordinarily sell for. 6A person cannot be charged by will to appoint someone else as his heir. The Senate plainly decided that such a provision was to be considered just as if a testator had charged his heir to surrender the estate. 7But what if an heir should be charged to deliver a fourth part of the estate, after the death of the testator? I think the better opinion is the one which Scævola mentions in his notes, and which was adopted by Papirius Fronto, namely, that such a trust is valid, and has the same effect as if he had been charged to deliver the entire inheritance; and it should be delivered to the extent that the estate of the testator will permit, in accordance with the ordinary rule of law. 8Where an heir is charged with the emancipation of his children, he is not compelled to do this, for the paternal authority is not to be estimated in money. 9Houses which are to be demolished cannot be devised directly, or left under the terms of a trust, and this was decreed by the Senate. 10Where a trust is left to a slave belonging to another, without the grant of his freedom, and he becomes free, it must be said that he can be permitted to receive the trust. 11The Divine Severus and Antoninus stated in a Rescript that where a brother was charged to deliver the estate to the nephews of the deceased conditionally he cannot, before the time for the discharge of the trust has arrived, deliver it to them, even with their own consent, while they are still under the control of their father, as he can do when the time fixed for the discharge of the trust has expired, and the heirs have become their own masters; or where, if one of the children should die before this, delivery cannot be made to all of them. 12The same Emperors stated in a Rescript that it is not necessary for the estate of a mother to be delivered to her children before the time prescribed for the discharge of the trust arrives. But the heir can furnish them with the ordinary bond, or if he cannot do so, the children can be placed in possession of the estate for the purpose of preserving the trust, so that they hold possession of it by way of pledge, and not as owners, without the right to dispose of it, but retaining it merely in the capacity of pledgees, just as a father acquires the profits of property through his son, and a master through his slave. 13Where an heir is charged to deliver an estate under the terms of a trust, and dies without issue, the condition is considered to have failed to take place, if his children survive him, and no inquiry is made as to whether they claimed their rights as heirs. 14Ad Dig. 30,114,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 5.The Divine Severus and Antoninus stated in a Rescript that where a testator forbids by will any of his estate to be sold, but gives no reason for making this provision, and no one is found with reference to whom this disposition was inserted in the will, the provision is held to be of no force or effect; just as if the testator had left a mere direction, because such a precept cannot be inserted in a will. But where testators make a similar provision with a view to the benefit of their children, their descendants, their freedmen, their heirs, or any other persons whomsoever, it must be carried out; still this cannot be done in such a way as to defraud creditors or the Public Treasury. For if the property of the heir should be sold in order to pay the creditors of the testator, the trust beneficiaries must also be subject to the same rule. 15Where a father, after having appointed his son by whom he had three grandsons his heir, charged him by a trust not to sell a certain tract of land, in order that it might remain in the family; and the son, having died, appointed two of his children heirs and disinherited a third, and bequeathed the said tract of land to a stranger, the Divine Severus and Antoninus stated in a Rescript that it was evident that the said son had not complied with the wishes of the deceased. 16But if, as Marcellus holds, he had disinherited two of his children, and appointed only one of them his heir, and had devised the said land to a stranger, the disinherited child could claim the trust. This would also happen if, while living, he had emancipated his children, and afterwards sold the land. 17Where all the children are appointed heirs to unequal shares of an estate, those who are appointed for the smaller shares cannot claim the benefit of the trust, so as to receive equal portions of the estate, and not the shares to which they are entitled; for although the testator left the land to but one of his children, it is a fact that he left it to be kept in the family. 18In like manner, if he only appointed one heir, and did not bequeath any legacy, the children who were disinherited cannot claim anything, so long as the property remains in the family. 19Sometimes, a slave is bequeathed and dies without any loss to the heir, or he is left in trust, as, for instance, if the slave of another, or even the slave of the testator should be bequeathed to several legatees as well as separately, so that each one will have an interest in the entire legacy; but this only occurs when the slave dies without the heir being to blame.

The Same, Institutes, Book VIII. Where a certain sum of money, for instance, a hundred aurei, was left to the city of Sardis for the purpose of celebrating games in honor of Apollo in four years, the Divine Severus and Antoninus stated in a Rescript that the testator appeared to have left a perpetual income, due every four years, and not merely a gross sum for payment at the end of the first term of four years.

Marcianus, Institutes, Book VIII. Where anyone bequeaths maintenance to slaves whom he has enfranchised, even though the slaves themselves were bequeathed, and the legatees were requested to manumit them, they will be admitted to the benefit of the trust; as the Divine Severus and Antoninus stated in a Rescript. 1And even if the property from which the maintenance is derived should be forfeited to the Treasury, the maintenance must still be furnished, just as if it had passed to any successor whomsoever.

The Same, Institutes, Book VIII. Where an envoy says that he has reason to think that an estate is insolvent, he should be compelled to accept it during the time of his employment with the embassy, because he is not constantly occupied with the duties of his office. And he can be compelled to enter upon the estate, even though he may say that he will take the matter under consideration; but he shall not be compelled to make the transfer at once, but must do so as soon as he returns home and he can avail himself of the benefit of the Falcidian Law, or of his right under the will, if he thinks it is expedient; or, if he does not think so, he can transfer the entire estate to avoid being subjected to any burdens on account of the same. 1If anyone charges his heir to transfer “his property,” or “all his property,” this is understood to indicate a transfer by virtue of a trust; for under the terms “mine” and “yours,” rights of action are also considered to be included. 2Where an estate is transferred to a son under paternal control, or to a slave, and the father or the master subsequently ratifies the act, the rights of action will also be transferred under the Trebellian Decree of the Senate. 3It makes a great deal of difference whether the fourth part is retained by hereditary right, or where the party can only reserve a specified article, or a certain sum of money. For, in the first instance, the rights of action are divided between the heir and the beneficiary of the trust, but in the last, the rights of action pass entirely to the beneficiary. 4If an appointed heir, having been charged to transfer an estate after retaining for himself a certain sum of money or some article, although what is to be reserved is less than his fourth, he cannot claim more than that, even if he should be the Emperor. 5But if he should be asked to transfer an estate without reserving anything for himself, he is authorized by the Emperors to retain a fourth. This the Divine Hadrian, Trajan, and Antoninus stated in Rescripts.

Marcianus, Institutes, Book VIII. Celsus, in the Twentieth Book of the Digest, says that if anyone, having an estate of four hundred aurei, charges his heir, if he should die without issue, to transfer to Mævius all the money which may come into his hands from his estate, and if, in the meantime, he should obtain four hundred aurei out of the income of said estate, and should die without leaving any children, his heir will owe four hundred aurei to Mævius. He treats this question at great length, both as to whether the heir shall profit by the increase and take the risk of any loss, or vice versa; and says in conclusion that it would be unjust for the beneficiary of the trust to sustain the losses when he is not entitled to the profits. And, where some deficiency of the four hundred aurei must be made good, he asks whether any increase will also belong to the beneficiary, that is to say, whether an account of the losses and profits must be taken, up to the sum of four hundred aurei? I think this opinion to be correct.