Papinianus, Questions, Book XVIII. A father having appointed his son, over whom he retained control, heir to a portion of his estate, also left him a legacy. It would be a very great hardship, as some authorities hold, that his right to the legacy should be denied if he rejected his father’s estate, for the will should not be considered as attacked by one who, for good reasons, refuses to be involved in the affairs of an estate which may be insolvent.

Papinianus, Questions, Book XVIII. But what if the legacy was bequeathed as follows: “I bequeath this to my son in addition”? There is no doubt that inquiry must be made as to the intention of the testator. This instance is not unlike the former one relating to previous knowledge of the son, unless it is clearly proved that the intention of the father was otherwise. 1It is evident that if several sons have been appointed heirs, an action to recover the legacy will be refused to him who declined to accept the estate.

Papinianus, Questions, Book XVIII. A father bequeathed to his disinherited son the dowry which he had received from his daughter-in-law. If the heir of the father should file an exception on the ground of bad faith, he will not be compelled to pay the legacy, unless security is given him that he will be indemnified in case the marriage is dissolved. 1But if, before the legacy has been paid to the son, the woman should recover her dowry, the son will in vain bring an action to recover the legacy. 2If, however, the Falcidian Law is applicable to the legacy of the dowry against the disinherited son, and the woman should have ratified the payment, she will be granted a dotal equitable action, based on the amount of the legacy which the heir retained. But if she should not ratify it, the heir must be defended against her by the husband, who promised that he would do so, but if the latter should alone be compelled to undertake the defence, an action on the judgment for the amount claimed under the Falcidian Law will be granted against the heir, if security is not furnished. 3But if the wife should obtain a divorce from the son before the legacy is paid, although she cannot yet secure her dowry, the action of the son will, nevertheless, not be deferred for that reason; because when it was decided that the dowry should be paid to him at that time, it was also held that this should not be done unless he became the heir to a portion of his father’s estate, and that, after the marriage was dissolved, and he had accepted the estate, would have been admitted to receive the dowry before distribution. 4If security for the defence of the heir should have been neglected through mistake, and the son should receive the dowry under a trust, the trust cannot be claimed again as not having been due; for the necessity of furnishing security causes delay, and does not render that not due, which actually was due. Hence it will not be inequitable to grant relief to the heir. 5But what if the heir of the father was not solvent? Could not a prætorian dotal action legally be granted to the woman against her husband; for her dowry should not be lost merely because the heir failed to give security through mistake?

Papinianus, Questions, Book XVIII. Where a son denies that his father’s will is valid, as the controversy relates to the legality of the instrument, and he does not attack the testamentary provisions made by his father, or accuse him of any offence, he will retain what was left him by the deceased.

The Same, Questions, Book XVIII. Where a legacy is left as follows, “I bequeath to Titia, if she does not abandon her children,” authorities deny that she can be legally required to give security, because the condition can be fulfilled even if the children should die. This opinion was not adopted, however, for an ominous interpretation of this kind should not be opposed to the desire of the mother, and compel her to give security. 1Where a patron bequeathed a certain sum of money to his freedman on condition that he would not abandon his children, the Emperor permitted a kind of Mucian bond to be given, because it would be both dangerous and distressing for a freedman who was intimately associated with the children of his patron to anticipate their death. 2Titius charged the heir whom he had appointed to deliver to another his estate at the time of his death, if security was not demanded by the beneficiary of the trust. The beneficiary cannot require a Mucian bond to be filed before releasing the heir from giving security, since the condition can be complied with during the lifetime of the party to whom the legacy was bequeathed. 3What should be done if the following clause was inserted in the will, “I wish you, after my death, to deliver my estate to So-and-So, in such a way that no bond for the execution of the trust, nor any account will be required of you?” From these words it will undoubtedly appear that the condition of giving bond will not be required, and a certain degree of indulgence may be exercised in demanding an account, that is, so far as negligence is concerned; but the heir will not be excused from presenting one where fraud has been committed. A rescript on this point was issued with reference to a certain person who had transacted the business of the testator, and by the will of the latter had not been required to render an account. 4Ad Dig. 35,1,72,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.“If Seia should marry with the approval of Titius, let my heir give her such-and-such a tract of land.” If Seia should marry during the lifetime of Titius, and he granted his consent, it should be held that she could receive the legacy; for it is the spirit of the law that nothing shall be done in any way to interfere with marriage. If, however, Titius should die during the lifetime of the testator, relief must be granted to the woman, even though the condition has failed, because, being in suspense, it would be of no force or effect. 5“I bequeath to Mævia, at her death, such-and-such a tract of land, if she should not marry.” It can be said that even if she should marry, she will immediately be entitled to the legacy. This, however, would not apply, if a certain date, or any other indefinite time, should be fixed for the payment of the legacy. 6It is more equitable to hold that a false motive should not interfere with the payment of a legacy, for the reason that the cause of bequeathing it is not included in the legacy. Generally, however, an exception on the ground of bad faith will be available, if it should be proved that the testator would not otherwise have made the bequest. 7Cassius and Cælius Sabinus say that a false condition can be classed as impossible; as, for instance, “Let Pamphilus be free if he pays Titius what I owe him,” provided nothing was due to Titius. If, however, after the execution of the will, the testator should pay him what he owed him, the condition will be understood to have failed. 8Sabinus gives it as his opinion that the false designation of a legacy does not constitute one, for example, where a testator who had left nothing to Titius inserted the following provision in his will: “Let my heir pay Seius fifty aurei out of the hundred which I have bequeathed to Titius.” Sabinus came to this conclusion after consideration of the will of the deceased who made this provision, not with the intention of making a bequest, but for the purpose of diminishing one which he thought he had already made. Seius, however, cannot obtain any greater legacy on account of the false designation than if it had actually been true.

Papinianus, Questions, Book XVIII. Conditions which are not specifically stated in a will, that is to say, such as seem to have been tacitly included therein, do not render legacies conditional.

Papinianus, Questions, Book XVIII. Where such-and-such an article, or such-and-such a piece of property is bequeathed, the enumeration of the different articles included in a disjunctive clause does not constitute several legacies. Nor can a different opinion be held if the testator should devise one tract of land absolutely, and another conditionally; for while the condition is pending, no choice can be made, and if the devisee should die, the devise will not be considered to have passed to his heir. 1“Let my heir pay Titius what Seius owes me.” If the ward, Seius, had borrowed a sum of money without the authority of his guardian, and did not become more wealthy on this account, and the testator had reference to this debt, as the ward did not owe him anything, the legacy will have no force or effect. If, however, the testator by the term “debt” had reference to the natural obligation incurred and to future payment, Titius can claim nothing; as the condition was tacitly imposed, and it is just the same as if the testator had said, “Let my heir pay Titius whatever the ward may pay,” or, if he should bequeath any children who may be born to the slave Arathusa, or any crops which may be obtained from the said tract of land. If, in the meantime, the legatee should die, and the female slave should afterwards have a child, or crops should be gathered, or the ward should pay the money which was due, the heir of the legatee will be entitled to assert his claim; and this is not contrary to what has been already stated, for a legacy vests where a condition is not imposed, even though this is due to some external cause.