Papinianus, Questions, Book XVI. Where a son under paternal control is appointed an heir, under a condition which is one that the Senate or the Emperor does not tolerate, it invalidates the will of the father, just as if the condition could not be complied with by the son; for where any acts injuriously affect our piety, reputation, or self-respect, and, generally speaking, are contrary to good morals, it is held that we are unable to perform them.

Ad Dig. 29,2,84Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 597, Note 5.Papinianus, Questions, Book XVI. Where an unborn child is passed over, and an emancipated son or a stranger is appointed heir, as long as the will can be broken by the birth of the child, the estate cannot be transferred in accordance with the terms of the will. If, however, the woman should not prove to be pregnant, and, while this is uncertain, the son remaining in the family should die, he is understood to have been the heir; and whether he be either an emancipated son or a stranger, he cannot acquire the inheritance unless he knows that the woman was not pregnant. Therefore, if the woman should actually be pregnant, would it not be unjust if, in the meantime, the son who died could leave nothing to his heir? Hence relief should be granted to the son, under the decree, because, whether a brother should be born to him or not, he will still be the heir of his father. The same course of reasoning makes it plain that relief should also be granted to an emancipated son who, in either instance, will certainly be entitled to possession of the estate.

Papinianus, Questions, Book XVI. Julianus says that where a father ordered his daughter, who had been appointed a substitute for himself, to accept an estate; he will, by the terms of the Edict, be compelled to pay the legacies with which he was charged, since his daughter was substituted instead of her father, and the latter was not given the right of choice. Where, however, the different legacies amount to more than three-quarters of the estate, an account must be taken, in the first place, of those with which the daughter was charged, for fraud will be imputed to the father, if, having rejected the honor conferred upon him, he prefers the appointment of another as heir, on account of the benefit which may accrue to him therefrom. 1Julianus thinks that if a father who is substituted for his daughter enters upon an estate, he will not be guilty of bad faith, for no one is considered to have substituted a father for his daughter against the will of the parent, but in order that he might have the power of making his choice.

The Same, Questions, Book XVI. Where peculium is bequeathed, it can be increased and diminished; if the property composing it is augmented by new acquisitions, or the original amount is decreased. The same rule will apply to the slaves of a testator, whether he bequeaths the entire body of them, or only a certain portion; for instance, those belonging to his city-house or his country-house, and he should subsequently change the duties or the employments of said slaves. This rule is also applicable to slaves who are litter-bearers, or footmen. 1Ad Dig. 31,65,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Certain authorities hold that the bequest of a team of horses will be annulled, if one of the horses that belonged to the team should die, but if, in the meantime, the loss was made up, the team would belong to the legatee. 2Stichus was bequeathed to Titius and was to receive his freedom together with a legacy after the death of Titius. As soon as the estate is entered upon after the death of Titius, he will be entitled to his freedom. The same rule will apply if he was directed to be free at the death of Titius. 3If, however, the slave was bequeathed to Titius, who had also been appointed heir to a part of the testator’s estate, and the latter ordered the said slave to be free after the death of Titius, the slave will be entitled to his freedom after the death of Titius, whether Titius accepted the estate or not.

Papinianus, Questions, Book XVI. Although the execution of a will for the benefit of the slaves of others especially depends for its validity upon the testamentary capacity of their masters, still, any bequests made to slaves are just as valid as when left to persons who are free. Hence a right of way to obtain access to the land of his master, cannot legally be bequeathed to a slave.

The Same, Questions, Book XVI. Where a certain man appointed heirs whom he had no right to select, although designation of this kind is not valid, and the first will is not broken in consequence, still, the Senate long since decreed that the heirs who were entitled to the estate under the last will of the deceased should be deprived of the same as unworthy. This the Divine Marcus decided with reference to a person whose name the testator had erased from his will, after it had been executed, for he sent the case to the Prefects of the Public Treasury. The legacies left by the will, however, remained unimpaired. With reference to the preferred legacies bequeathed to the heir, a question as to the intention of the testator may arise, and these legacies will not be refused to him, unless it clearly appears that the intention of the testator was otherwise.

Papinianus, Questions, Book XVI. A mother appointed her two children heirs to certain shares of her estate under the condition that they should be emancipated, and left them absolutely bequests of certain articles as preferred legacies. They entered upon the estate. Their father should be excluded from the benefit of the legacies, because by emancipating his children in compliance with her wishes, he desired that the last will of his wife should be observed.

Papinianus, Questions, Book XVI. A tract of land having been devised to me under a condition, the heir of the testator appointed me his heir while the condition of the legacy was pending, and the condition was subsequently fulfilled. In considering the application of the Falcidian Law in this case, the land will be understood to be mine, not by hereditary right, but by virtue of the legacy.

The Same, Questions, Book XVI. The Divine Hadrian stated in a Rescript that where a wife appointed a son under paternal control her heir, he would become her heir; and that any slaves belonging to the estate who were manumitted by him would become his own freedmen.