Modestinus, Differences, Book I. By the arrogation of the father of a family the children who are under his control become the grandchildren of the arrogator, and at the same time with their father are placed under his authority, which does not also take place in case of adoption; for then the grandchildren remain under the control of their natural grandfather. 1He who adopts, and also he who arrogates, must not only be older than the person whom he makes his son either through arrogation or adoption, but he must be so by the term of complete puberty, that is to say, he must be further advanced in age by eighteen years. 2A person who is impotent can obtain a proper heir for himself by arrogation, nor is his corporeal weakness an obstacle to his doing so.

Modestinus, Differences, Book I. The authority of a guardian is necessary to a ward who receives property in pledge, on account of the danger of an action on pledge.

Modestinus, Differences, Book I. Where a father made a substitution for his son who had not yet arrived at puberty, as follows: “Whoever becomes my heir, let him also be the heir of my son who has not yet arrived at the age of puberty”; it was decided that only such heirs as had been mentioned with reference to this substitution in the will should be admitted to share in the estate. Hence a master who, by means of his slave, had acquired a portion of the estate, could not become the heir by virtue of his substitution for a child who had not attained the age of puberty, if the slave was no longer under his control.

Modestinus, Differences, Book I. A ward cannot grant freedom to a slave by virtue of a trust without the authority of his guardian.

Modestinus, Differences, Book I. Where persons are sentenced to the mines, and, through illness or the infirmities of age, they become incapable of performing labor, according to a Rescript of the Divine Pius, they can be discharged by the Governor, who shall decide whether they shall be released; provided they have relatives or connections, and have served not less than ten years of their sentence.

Modestinus, Differences, Book II. Where anyone is sued in an action on deposit, he can properly institute proceedings before the same judge on account of food which has been furnished a slave.

Modestinus, Differences, Book II. A husband can have judgment rendered against him in the case of a dowry, to the amount that he is able to pay; but, when he is sued by his wife on account of some other contract, by a Constitution of the Divine Pius he can also have judgment rendered against him to the extent of his means. Equity also suggests that this same rule should apply where a wife is sued by her husband.

Modestinus, Differences, Book III. Where an usufruct is bequeathed to a city, and the site of it is afterwards turned into a plowed field, it ceases to be a city, as was the fate of Carthage; therefore it ceases to have the usufruct, just as in case of death.

Modestinus, Differences, Book IV. In contracting a betrothal, there is no limit to the age of the parties, as is the case in marriage. Wherefore, a betrothal can be made at a very early age, provided what is being done is understood by both persons, that is to say, where they are not under seven years of age.

Modestinus, Differences, Book IV. Where a man dies leaving children who have attained their majority, they become the fiduciary guardians of their brothers or sisters.

Modestinus, Differences, Book IV. A woman who has been betrothed does not change her domicile before her marriage has been contracted.

Ad Dig. 50,12,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 304, Note 8.Modestinus, Differences, Book IV. When anyone has made a promise to a city, in consideration of some honor to be conferred upon him, he will be liable under all circumstances for the entire amount, and his heir as well, on account of the promise which was made. This, indeed, applies to a work begun on account of a promise, and where the property of the party in question was not sufficient to comply with it, the Divine Severus and Antoninus stated in a Rescript that, in this instance, a foreign heir would be liable to a fifth part of the estate of the deceased, or his children to one-tenth. The Divine Pius, however, decided that where the donor was impoverished by the promise which he had made, and the work had been begun, a fifth part of his property would be liable.

Modestinus, Differences, Book V. Where a slave is ordered to be free under different conditions separately imposed, he can select the condition which seems to him to be the easiest complied with. Where, however, a legacy is bequeathed in this manner, the legatee must comply with the last condition imposed. 1A slave was directed to pay ten aurei to the heir and become free, and, by paying the amount to the heir of the heir, he can obtain his freedom. Publicius says that, under similar circumstances, this rule must not be observed with reference to a legatee.

Modestinus, Differences, Book V. An additional employment cannot be imposed upon a magistrate; but the office of magistrate can be conferred upon one who already has another public employment.

Modestinus, Differences, Book VI. An agent appointed for the purpose of transacting the affairs of his principal, in general cannot alienate either the real or the personal property of his principal, nor his slave, without an express mandate to that effect; with the exception of fruits, or other things which may be easily spoiled.

Modestinus, Differences, Book VI. He should be understood to be, to all intents and purposes, a plunderer, who tacitly agrees to deliver the estate to someone who has no right to it.

Modestinus, Differences, Book VI. It is commonly held that a servitude cannot be acquired of a part of the ownership; and therefore, where anyone who has a tract of land stipulates for a right of way and afterwards alienates a portion of said land, he, in this instance, vitiates the stipulation by introducing matters for which, in the beginning, a stipulation could not have been made. A right of way with reference to a part cannot be either bequeathed or revoked, and if this is done, neither the bequest, nor the revocation will be valid.

Modestinus, Differences, Book VI. Where anyone alleges that the will of Titius is forged, and does not prove his allegation, he will not be prevented from becoming the heir of the heir of Titius, because he does not succeed directly to the estate of Titius.

The Same, Differences, Book VI. If the disinherited grandson should become the heir of him whom the grandfather appointed his heir, and then his emancipated father, who had been passed over in the will, should obtain prætorian possession of the estate of his father contrary to the provisions of the will, the grandson could not be joined with his father, but would be excluded as a stranger, because he is not the heir of his grandfather in his own right.

Modestinus, Differences, Book VI. If the property of an intestate son passes to his father, who manumitted him, as the heir-at-law, or, if not having manumitted him, he should be entitled to prætorian possession of the same, the mother of the deceased will be excluded.

Ad Dig. 41,7,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169a, Note 5.Modestinus, Differences, Book VII. An inquiry is sometimes made whether a portion of anything can be considered to have been abandoned. And, indeed, if a joint-owner gives up his share of the common property, it ceases to belong to him, so that the same rule is applicable to a portion that is to all. The sole owner of property, however, cannot retain a part of the same and abandon the remainder.

Modestinus, Differences, Book VI. It is clear that prescription based upon long possession applies to land as well as to slaves.

Modestinus, Differences, Book VI. When a master defends his slave for a capital offence, he is ordered to give security for his appearance in court.

Modestinus, Differences, Book VI. The constitutions which discuss the question whether appeals should be received or not, so that nothing new may be introduced against them, do not apply to those whom it is for the interest of the public to be punished without delay; as, for instance, notorious robbers, or persons who instigate sedition, or the leaders of factions.

Modestinus, Differences, Book VI. Those who become heirs through a distant degree of relationship to the deceased are considered to be none the less heirs than if they had been of the first degree.

Ad Dig. 20,1,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. I, § 230, Note 9.Modestinus, Differences, Book VII. Where anyone, without my knowledge, pledges my property to Titius, his creditor, and I become the heir of Titius, the pledge, which indeed was not valid at first, does not immediately become so, but an equitable action on pledge will be granted to the creditor.

Modestinus, Differences, Book VII. A father can appoint a guardian for his son whether he has appointed him his heir, or disinherited him. A mother, however, cannot do this, unless she has constituted her son her heir, as a guardian is held to have been appointed rather with reference to property than to the person. It is necessary for the party appointed by the will of the mother to be confirmed only after examination, since, where he is appointed by the father—even though this has been done with the omission of some legal formalities—he will still be confirmed without any examination, unless the reason for his appointment appears to have been changed; for instance, where from a friend he has become an enemy, or where having previously been rich, he has become poor.

Modestinus, Differences, Book VII. A guardian cannot be appointed for an unborn child by the magistrates of the Roman people, but a curator can be; for this is provided by the Edict relating to the appointment of a curator. 1The rule of law does not prevent another curator from being appointed for a person who already has one.

Modestinus, Differences, Book VII. The petition of a mother for the appointment of a guardian for her children, but not for the appointment of a curator for them, shall be considered; unless where the appointment of a curator is requested for a child under the age of puberty.

Ad Dig. 35,1,52Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.The Same, Differences, Book VII. It sometimes happens that certain provisions in a will, when explicitly stated, are disadvantageous, although if they could be tacitly understood this would not be the case. This occurs where a legacy is bequeathed to someone as follows, “I give and bequeath ten aurei to Titius, if Mævius should ascend to the Capitol.” For although the choice is left to Mævius as to whether he will ascend to the Capitol or not, and therefore cause the legacy to be payable to Titius, still, a legacy cannot be legally bequeathed in these terms, namely, “I give ten aurei to Titius if Mævius should consent,” as a legacy cannot be made dependent upon the will of another; hence it has been said that testamentary provisions specifically stated cause injury, but those expressed in general terms do not.

Modestinus, Differences, Book VII. Although the children of a patron are, in many instances, considered to enjoy the same rights as the person who manumitted the slave, still, they cannot assign a freedman of their father to their own children, even if he has been assigned to them by their parents. This opinion is adopted by both Julianus and Marcellus.

The Same, Differences, Book VII. Things clearly stated are prejudicial; others are not.

Modestinus, Differences, Book VIII. Where a legacy is left to be paid every year, or every month, or a legacy of habitation is bequeathed, it is extinguished by the death of the legatee; but where there is a change of condition it continues without interruption, for the reason that a legacy of this kind is rather dependent upon fact than upon law.

Modestinus, Differences, Book VIII. If, however, he taught the slave some trade, then, after the latter has reached the age of twenty-five years, the expenses incurred in doing so may be set off.

Modestinus, Differences, Book VIII. It must be held that the Edict of the Curule Ædiles has no reference to property which is donated. For why should the donor bind himself to take back anything when no price is involved in the transaction? But what if the property has been improved by the party to whom it was given? Can the donor be sued for the value of the improvements? It must be said that this is by no means the case, for the donor should not suffer a penalty on account of his liberality. Therefore, where anything is given away, it will not be necessary for those guarantees to be given which the Ædiles require where property is sold. It is clear that the donor ought to bind himself (and he usually does so) with reference to fraud, in order that he may not, with fraudulent intent, revoke what he bestowed by way of kindness.

Modestinus, Differences, Book VIII. If a testator, during his lifetime, should give away to another the property which he had bequeathed, the legacy will be absolutely extinguished, nor do we make any distinction as to whether he disposed of his property through necessity, or merely through inclination; so that if he gave it away through necessity, the legacy will still be payable, but if he disposed of it merely through inclination, it will not be payable. This distinction, however, will not apply to a party who makes a donation through liberality, for no one is liberal when impelled by necessity.

Modestinus, Differences, Book VIII. It is perfectly equitable that he who has promised a sum of money, or anything else, for the purpose of making a donation, shall not be liable for interest on account of delay in paying the money; and this is especially the case where the donation is not included in the class of bona fide contracts.

Modestinus, Differences, Book IX. It is understood that the bequest of an usufruct to Titius “when he dies”, is void; as it has reference to the time when it must cease to belong to the party in question.

Modestinus, Differences, Book IX. There is a difference between the right to drive cattle, and the right of passage; where anyone can travel either on foot, or on horseback, the latter right exists; but where he can drive a herd of cattle, or take a vehicle, the former right is implied.

Modestinus, Differences, Book IX. Where mares have been left in trust, their foals are also due after the heir is in default. Where a number of horses have been left, even though there be no default, their offspring belongs to the increase of the drove.

Modestinus, Differences, Book IX. Certain authorities very properly hold that where slaves are bequeathed, female slaves are included, as the common name of “slaves” includes both sexes. No one, however, has any doubt that where female slaves are bequeathed, male slaves are not included. Where children, who are slaves, are bequeathed, girl slaves are included. It must be said that it is not the case, where girl slaves are bequeathed, for boy slaves to be included. 1Where female slaves are bequeathed, virgins are also included, just as where male slaves are bequeathed boys are also included. 2When droves of cattle are bequeathed, oxen and other beasts of burden are included. 3When a herd is bequeathed, it is held that oxen are included, but not flocks of sheep and goats. 4When sheep are bequeathed, certain authorities very properly hold that neither lambs nor rams are included. 5There is no doubt, however, that rams and lambs are included in the bequest of a flock of sheep.

Modestinus, Differences, Book IX. The Laws of the Twelve Tables are held to permit slaves, who are to be free conditionally, to be sold. In making the sale, rigorous conditions should, however, hot be imposed; for example, that the slave should not serve in a certain country, or should never be manumitted.

Modestinus, Differences, Book VI. Some authorities think that a distinction exists between fornication and adultery, because adultery is committed with a married woman, and fornication with a widow. The Julian Law on Adultery, however, uses this term indiscriminately. 1A divorce is said to take place between husband and wife, but repudiation is considered to apply only to the wife, because it not improperly has reference to her personally. 2It is true that a disease means a temporary weakness of the body, but a defect is a perpetual corporeal hindrance; as, for instance, where one is purblind, and therefore a one-eyed man is defective. 3Some legal authorities hold that when slaves are bequeathed, female slaves are also included, as the term is common to both sexes.