The Same, Opinions, Book X. Titia, after making a will and appointing her children Mævia and Sempronius heirs to equal shares of her estate, died, and charged Mævia to manumit her slave Stichus, in the following terms: “I ask you, my dear daughter Mævia, to manumit your slave Stichus, since I have bequeathed to you by my codicil so many slaves for your service,” but she did not actually make such a bequest. I ask, what seems to have been left by these words? For, as has been above stated the deceased testatrix, having appointed two heirs, the hereditary slaves of the estate belonged to two distinct persons, and since nothing was provided by the codicil with reference to the delivery of the slaves, the trust could not be held to be legal, where it was not really created; as where the testatrix said she made a bequest, but did not add what it consisted of, nor did she charge the heir with the delivery of the slave. Modestinus answered, as a result of the consultation, that Mævia had no right to claim either the legacy or the trust, and could not be compelled to grant freedom to her slave. 1Lucius Titius inserted the following provision into his will: “To Octaviana Stratonice, my dearest daughter, Greeting. I wish her to receive for herself the estate called Gaza, with all its appurtenances. To Octavianus Alexander, my dearest son, Greeting. I wish him to receive from himself all my unproductive lands, with their appurtenances.” I ask whether, by an instrument of this description, the testator should be considered to have given to each of his heirs an entire tract of land, or whether he merely included in the devise the shares of his estate to which they were legally entitled, as he could not properly charge each one of them with a legacy a portion of which he or she already had. Modestinus answered that the document in question should not be interpreted in such a way as to render the trust of no effect. I also ask, in case it should be decided that the land entirely belonged to one of the heirs, whether the value of the share of the brother and co-heir should be paid, because as the testator wished him to have the entire property in the land, he seemed to have prescribed the condition that the co-heir should be paid the value of his share. He answered that the beneficiary of the trust could, by no means, be compelled to pay the co-heir the value of his or her share. 2Lucia Titia, having died intestate, charged her children, by a trust, to deliver a certain house to a slave belonging to another. After her death, her children, who were also her heirs, when dividing their mother’s estate, also divided the above-mentioned house, at which division the master of the slave who was the beneficiary of the trust was present as a witness. I ask, if, for the reason that he was present at the division of the property, he should be considered to have lost the right to demand the execution of the trust, acquired by him through his slave. Modestinus answered that the trust was not annulled by operation of law, and it could not even be repudiated, nor would the master be barred by an exception on the ground of bad faith, unless it was perfectly evident that he had been present at the division of the property for the purpose of renouncing his rights under the trust. 3Gaius Seius, who had a house of his own, went to live in a villa belonging to his wife, and removed certain property to it from his own residence, and having died there a long time afterwards, left his wife and several other persons his heirs by his will, into which he inserted the following clause: “In the first place, let my heirs know that I have no money nor any other property in the hands of my wife, and therefore I do not wish her to be annoyed on this account.” I ask whether the property which, during the lifetime of the testator, was transferred to the residence of his wife, can be claimed by his estate; or, in accordance with the terms of the will, the co-heir can be prevented from sharing it with the widow of the deceased. Modestinus answered that if the testator intended the property which he had conveyed into the house of his wife to go to her, as a preferred legacy, there was nothing in the case stated to prevent his intention from being carried out; therefore, it was necessary for the woman to prove that such was the intention of the testator. If she did not do this, the property must remain a part of the estate of the husband. 4Where a trust was left to a freedman under the condition “That he should not desert my children,” and he was prevented from complying with the condition by their guardians, it is unjust that he should be deprived of the benefit of the trust since he is free from blame. 5Where a man, against the wishes of his daughter, brought suit for the recovery of her dowry, and died, and after disinheriting his daughter, appointed his son his heir, and charged him with a trust for the payment to his daughter of a sum of money instead of her dowry, I ask how much the woman is entitled to recover from her brother. Modestinus answered that, in the first place, the right of action for the recovery of the dowry is not lost by the woman, since she did not consent that her father should claim it, and was aware that he did so. Hence, the matter should be explained as follows. If a larger amount had been included in the former dowry, the woman should be content merely with her right of action; because if the sum bequeathed to her instead of the dowry was larger than the dowry itself, a deduction should be made until the sums were equal, and she could obtain under the will only the excess over and above the legacy. For it is not probable that the father would have intended to charge his son and heir with the payment of a double dowry, especially as he thought that he could properly bring an action against his son-in-law for the recovery of the dowry, even though his daughter did not give her consent. 6Lucius Titius, having left two children of different sexes, whom he appointed his heirs, added the following general provision to his will, namely, “That the legacies and grants of freedom which he left should be executed by these his heirs.” Nevertheless, in another part of his will he directed his son to sustain the entire burden of the legacies as follows, “I order that whatever I have left in my legacies or directed to be paid shall be given and delivered by Attianus, my son and heir.” He then added a preferred legacy to his daughter in the following terms: “I direct that my dear daughter, Paulina, shall have what I gave or purchased for her during my lifetime, and I forbid that any question shall be made with reference to said property; and I request you, my dear daughter, not to be offended because I have left the greater portion of my estate to your brother, as he has six great obligations to meet, and will be compelled to pay the above-mentioned legacies, which I have bequeathed.” I ask whether, by these last words which the father addressed to his daughter in his will, the result would seem to be that he charged his son with actions which could be brought against the estate, that is to say, with all of them; or whether it should be held that he only had reference to suits which could be brought by the legatee, so that actions against the estate might be granted to creditors against both the heirs. Modestinus answered that, in the case stated, it did not appear that the testator had directed that his son alone should be liable for the claims of the creditors. 7Titia, at the time that she married Gaius Seius, gave him by way of dowry certain lands and other property, and died after making the following provision by a codicil: “My daughter, I commit you to the care of my husband, Gaius Seius, whom I wish to receive the usufruct of, and a life interest in the Castle of Naclea, which I brought him as dowry, together with other property included in the dowry; and I desire that he should in no way be annoyed with reference to the dowry, for, after his death, all of this property will belong to you and your children.” In addition to this, the woman left a great deal of property to her husband to belong to him as long as he lived. I ask whether, after the death of Gaius Seius, an action based on the trust will lie in favor of the daughter and heir of Titia on account of the property which, in addition to the dowry, was left by the codicil, as well as on account of what Gaius Seius received by way of dowry. Modestinus answered that, although these words do not show that a trust was not created by which Gaius Seius was charged for the benefit of the daughter of the testatrix, after she had given him what had been bequeathed by the will; still, there is nothing to prevent an action to compel the execution of the trust, in accordance with the will of the testatrix, after the death of Gaius Seius.

The Same, Opinions, Book VI. Where a legacy was left as follows, “I ask you to give to So-and-So, at the time of your death, everything belonging to my estate and my property which may come into your hands,” the crops which the heir, during the lifetime, as well as whatever took the place of the crops, were not considered to have formed a part of the legacy, for it could not be proved that the testatrix intended that her heir should be charged with the delivery of the crops. 1Where a testator left a trust for the benefit of his children, and, after substituting them for one another, desired that, after the death of the last survivor, the trust would pass to their descendants, I ask, if no one remained after the death of the last child, except his freedman, whether he ought to be admitted to the benefit of the trust. The answer was that it was perfectly evident that by the appellation his “descendants,” only his children, and not their freedmen, were included in the number of those to whom the trust was bequeathed.

Modestinus, Opinions, Book X. “I also charge my other heirs to pay to my wife ten aurei every year, as long as she lives.” The wife survived her husband five years and four months. I ask whether her heirs will be entitled to the entire legacy for the sixth year. Modestinus answers that they will be entitled to it.

Modestinus, Opinions, Book X. “I desire the lands which I have in the island of Chios to be given to my freedmen and freedwomen whom, during my lifetime, I have manumitted by my will or my codicil, or whom I may manumit hereafter, in order that they may obtain from them their food and clothing, as they did while I was living.” I ask what signification these words have; do they mean that the freedmen shall themselves obtain their support from the said lands, or that they shall receive from the heir their food and clothing, in addition to what is obtained from the lands? And was the ownership or the usufruct of the lands left? If the ownership was left, and a sum greater than what is needed for the supply of food and clothing should be obtained from the income of the lands, will the excess belong to the heir of the patron? And if some of said freedmen should die, will their shares pass to the surviving beneficiaries of the trust; and if they should die after the time appointed for the trust to take effect, will their shares belong to their heirs, or will they revert to the heirs of the testator? Modestinus answered: “It seems to me that these lands, and not merely the usufruct in the same, were left to the freedmen, in order that they might have full control over them; and, therefore, if anything more than is necessary for their support is obtained from the income of said lands, this will belong to the freedman. Even if one of the beneficiaries of the trust should die before it takes effect, his share will belong to the other beneficiaries, and those who die after the trust becomes operative will transmit their shares to their heirs.” 1Lucius Titius, by his will and without imposing any condition, ordered food and clothing to be furnished to his freedmen and freedwomen by his children who were his heirs. I ask if said freedman should institute proceedings without communicating with the children of their patron, whether they can obtain their food and clothing. Modestinus answered that there was nothing in the case stated to prevent suit being brought by them, where the legacy was unconditionally bequeathed by will.

The Same, Opinions, Book X. “To my brother Aurelius Sempronius. I do not desire that any of my debtors shall be annoyed on account of their obligations, nor that anything, either principal or interest, shall be collected from them as long as they live; and I return, free from liability and released from pledge, the house and the Carpathian land to the party interested in the same.” Modestinus gives it as his opinion that if the debtor himself should be sued, he will be protected by an exception, but that this will not be the case so far as his heir is concerned. 1When Gaius Seius was growing up, he received Publius Mævius and Lucius Sempronius as his guardians. While still under lawful age, the said Gaius Seius, being about to die, made the following provision in his will with reference to his curators: “Let no one raise any question concerning my curators, for I myself have transacted my business.” I ask whether the heirs of the minor can demand an accounting for the curatorship from the curators, since the deceased, as is apparent from the terms of his will, acknowledged that he had attended to all of his business himself. Modestinus was of the opinion that if the curators had committed any fraudulent act, or if any of the property of the testator was in their hands, suit could be brought against them on this ground.

Modestinus, Opinions, Book X. An heir manumitted a slave whom he was ordered to set free on the fulfillment of a condition, and who was also made the beneficiary of a trust. I ask whether the heir was obliged to pay him what was left him under the trust. Herennius Modestinus answered that, although the heir had manumitted the slave absolutely, he must, nevertheless, pay him what he was entitled to by virtue of the trust which had been left to him under the same conditions, provided that the slave could show that the conditions had been complied with, or that it was the fault of the heir that this had not been done.

The Same, Opinions, Book X. Mævia, at the time of her death, bequeathed freedom to her slaves named Saccus, Eutychia, and Hirena, conditionally, in the following terms: “Let my male slave, Saccus, and my female slaves, Eutychia and Hirena, be free, under the following condition, namely, that they burn a lamp on my tomb every other month, and celebrate funeral rites there.” As the said slaves did not regularly visit the tomb of Mævia, I ask whether they would be free. Modestinus answered that neither the wording of the entire clause nor the intention of the testatrix indicated that the freedom of the slaves should be suspended under a condition, as she desired them to visit her tomb as persons who were free; but that it was, nevertheless, the duty of the judge to compel them to obey the order of the testatrix.

The Same, Opinions, Book X. Lucius Titius, having made a will, appointed Seia, his wife, and Titia, their common daughter, heirs to equal shares of his estate. In another place he said, “I desire my slave, Eros, who is also called Psyllus, to be free, if my wife consents.” Therefore, as Seia, the wife of Lucius Titius, refused to accept her share of the estate, which went to her daughter Titia, under the substitution, I ask whether Eros, who was also called Psyllus, will be entitled to his freedom by virtue of the above-mentioned clause. Modestinus answered that the rights of Eros were not prejudiced, because the wife of the testator declined to accept the estate. I also ask whether his wife, Seia, who did not enter upon the estate, could legally oppose Eros when he demanded his freedom? Modestinus answered that Seia’s refusal of consent would be of no force or effect.