The Same, Questions, Book XX. When an action in rem is brought, it is certain that the profits must be delivered even with reference to those things which are merely kept for use and not for enjoyment.

The Same, Questions, Book XX. Where a debtor who brought suit for his property lost his case because he did not prove that the property belonged to him; the Servian Action will also be granted to the creditor where he proves that the This applied to all loans of personal property where the return was made in specie, otherwise it was a sale. Property was in the hands of the debtor at the time that the contract for the pledge was made. Where, however, the debtor who claimed an estate is defeated, the judge who presides in the Servian Action without paying attention to the decision rendered with reference to the estate, must examine the grounds on which the property was pledged. It is held to be different in cases which have reference to legacies and freedmen, where a decision is rendered in favor of him who claimed a lawful inheritance. Still, a creditor cannot properly be compared in every respect with a legatee, since legacies, in fact, are not valid unless the will is also decided to be so; for it may happen that a pledge may be properly taken, and the suit with reference to the same be improperly brought. 1A man who brought suit for the recovery of his property was defeated by an unjust decision, and afterwards pledged the property. The creditor cannot have any more right in this property than the party who gave it in pledge; therefore he will be barred by an exception on the ground that the case has already been disposed of, although the party who gained the case can by no means institute proceedings to recover what is not his own, for in this instance it must be taken into consideration not what he did not have, but what right the debtor would have in the property pledged.

Ad Dig. 22,1,3ROHGE, Bd. 10 (1874), S. 263: Voraussetzung der mora, wenn zur Erfüllung der Verbindlichkeit die Mitwirkung des Gläubigers erforderlich ist. Durch Mittheilung der Klage wird der Schuldner noch nicht unbedingt in Verzug gesetzt.The Same, Questions, Book XX. In the case of a demand made upon a surety where an heir was in default after a judicial decision had been rendered, the Emperor Marcus Antoninus ordered that where the time established by law in favor of parties who had lost their cases had elapsed, the surety could recover everything which had been acquired by his principal up to the time of the judgment. This decree must be understood to apply where the party had not been in default before the decision of the judge, although it cannot readily happen that recourse may be had to the court where default has not previously taken place; for instance, where the principle of the Lex Falcidia becomes applicable. If, however, the heir is in default before application is made to the judge, he being liable for the delivery of the profits from that time; for which reason, as he has already lost the case, will he be released from liability for the profits after the lapse of the time fixed by law, since that period is granted him for the purpose of satisfying the judgment, and not for obtaining any advantage for himself? 1In proceedings of this kind which are not subject to arbitration, and are not bona fide actions, after issue has been joined, everything connected with the property for which suit is brought must be delivered to the plaintiff, up to the time of the judgment. It is certain that the party will be free from liability for the profits after a decision has been rendered. 2It sometimes happens that although the profits of an estate or the interest on money is not expressly bequeathed, it is, nevertheless due; as, for example, where anyone requests that any of his property should be left after his death, it shall be delivered to Titius; for as diminutions made in good faith are not included in this trust, if proportionate diminutions of other property should have taken place, any remaining profits must be given up in accordance with the will of the testator. 3Pollidius, having been appointed heir to one of his female relatives, was asked by her to deliver to the daughter of the woman, when she had reached a certain age, any property belonging to her estate which might come into his hands; and the mother stated in her will that she had decided upon this step to prevent the property from being placed under the control of guardians, and that she preferred that a near relative should have charge of it. She directed the said Pollidius to retain a certain tract of land for himself, and I stated to the Prætorian Prefect that all the profits which had been acquired in good faith from the property of the deceased by Pollidius should be delivered, not only because the mother had left to him the tract of land, but also for the reason that she had preferred this method of creating a trust to the less reliable one of guardianship. 4Where manufactured gold or silver is left in trust, and default takes place, a discussion usually arises as to whether an estimate of interest should be made. It is evident that if the testator left the metal of which the articles were composed with the intention that it should be sold, and the trust discharged by means of the money obtained, or that maintenance should be furnished; it must be held that any fraudulent conduct of the heir should not go unpunished. If, however, the testator left the vases to be used by his heir, it would be improper for interest to be demanded, and therefore it can not be exacted.

Papinianus, Questions, Book XX. Procula, to whom a large sum of money was due from her brother under the terms of a trust, wished to set off this sum proportionately against his heirs after his death; and in opposition to this it was alleged that she had never demanded the money of her brother during his lifetime, but that she herself had paid him certain sums of money for various reasons growing out of accounts which they had with one another. The Divine Commodus, in deciding the case, did not admit the set-off, but held that she had tacitly released her brother from the execution of the trust.

Papinianus, Questions, Book XX. The fraudulent acts of guardians can neither injure nor profit their wards. When it is commonly said that the fraud of a guardian cannot injure a ward, this means in case the latter is not pecuniarily benefited by the deceitful conduct of the guardian. Wherefore, Sabinus very reasonably holds that the ward can be sued in a tributorian action on account of fraud committed by his guardian; for instance, if he should favor the interest of his ward by means of an unjust distribution of property. The same rule applies in an action on deposit, and also in one claiming an estate, provided that it is proved that what the plaintiff lost through the fraud of the guardian was credited to the account of the ward.

The Same, Questions, Book XX. The Emperor Antoninus stated in a Rescript that where a legatee had received nothing by way of legacy, he could not be compelled to pay the beneficiary of the trust with which he had been charged, but he could assign to him his rights of action against the heir. But what if he was charged to deliver, not the entire amount of the legacy bequeathed, but only a portion of the same, and he should refuse? Would he be compelled to assign all of his rights of action, or only an amount corresponding to what was included in the trust? This last opinion is the more reasonable one, but if he had come into possession of the legacy, he would not be obliged on account of the trust to pay any more than he had received. 1If a legatee, to whom a hundred aurei had been bequeathed, is asked to pay double the amount, the trust will be reduced to the amount of the legacy; and if the trust is to become operative after a certain time, only the interest on what was bequeathed can be collected. Nor can this rule be changed for the reason that the legatee, after receiving the bequest, may have profited greatly by some other transaction, or has escaped liability for a penalty growing out of some stipulation with the enforcement of which he was threatened. This principle, however, will only apply where the sum bequeathed is equal to the amount of the trust. For where money has been received, and the party is asked to deliver to another something of his own, although it may be of greater value, the legatee should not be heard, if, having received the legacy, he demands contribution; for equity does not permit a legatee to tender to the beneficiary of the trust what he has received as a bequest. 2Where a certain man having appointed his son heir to a portion of his estate appoints his uncle his co-heir, and requests the latter to make his son his co-heir on equal terms with his children, and the amount bequeathed to the son is less than that of the uncle, nothing more can be demanded; because if anything more should be demanded, it has been decided that an account must be taken of the profits which the uncle has collected, or could have collected, but did not take through bad faith; just as should be done when a hundred thousand aurei have been left as a legacy, and the legatee is charged to pay a larger sum after a certain time. 3Where a trustee is charged to deliver whatever portion of the estate may remain at the time of his death, sells the property, and purchases some other with the proceeds of the same, he is not held to have diminished the estate by disposing of the property in this way.

The Same, Questions, Book XX. The same rule must be observed where the heir paid his own creditors with the money of the estate, for he is not considered to have squandered what remains as part of the estate.

The Same, Questions, Book XX. Anything over and above the fourth established by the Falcidian Law which goes into the hands of the heir, does not bind him beyond the other three-fourths, so far as the amount of the legacies is concerned; as, for instance, in the case of the estate of a minor, where he who becomes the heir of the father of the said minor is substituted for the disinherited son.

Papiniamis, Questions, Book XX. An heir was charged to transfer an estate to Mævius on condition of his receiving a hundred aurei from him, and at his death, to leave the money to Titius. Although the said hundred aurei were sufficient to compose a fourth of the estate, still, because of the subsequent trust, there will be ground for the retention of a fourth of the first bequest; for, according to a Constitution of the Divine Hadrian, the amount only comes within the terms of the Falcidian Law where it remains in the hands of the heir; but he alone is subject to the operation of the Falcidian Law to whom the estate was bequeathed, hence it does not apply to the hundred aurei which were donated mortis causa. It is clear that, if anyone should make the following testamentary provision, “I ask you to transfer my estate on the receipt of a hundred aurei,” and the testator should not designate any person to pay the money, it can be retained and deducted by the heir under the terms of the Trebellian Decree of the Senate, if it is sufficient to make up his fourth.

Papinianus, Questions, Book XX. Where an heir appointed to a portion of an estate is conditionally charged with a trust having reference to the same, the Emperor Titius Antoninus stated in a Rescript that his Constitution did not apply, and that the minor was not entitled to extraordinary relief, especially if the relief requested would cause injury to another.

The Same, Questions, Book XX. An heir should not be compelled to accept an estate, which he considers to be insolvent, by a slave on whom the said heir is charged to bestow freedom and the estate, as the condition of the slave depends upon the legacy, and no one can compel another to become liable to actions brought against an estate merely in order to secure the payment of a legacy. For what if the slave should die during the delay caused by the legatee in not manumitting him? If, however the legatee should die during the lifetime of the testator, the more equitable opinion would be that he should be compelled to accept the estate, as he has the power to transfer it to the slave after his manumission.

The Same, Questions, Book XX. If the son of a patron should transfer an estate to a stranger under the Trebellian Decree of the Senate, an action to recover the value of services which cannot be transferred will lie in favor of the heir, and he will not be prejudiced by an exception, as this cannot be of any advantage to the person entitled to the benefit of the trust. Generally speaking, it must be said that the heir can neither be barred from proceeding, nor released by obligations which have no reference to the delivery of the estate. 1The Emperor Titus Antoninus stated in a Rescript, that where freedom has been bequeathed directly, to take effect within a certain time, transfer of the estate need not be made when there is no person to whom it can be delivered. 2Where anyone has received an entire estate under the Trebellian Decree of the Senate, after alleging that he has reason to think that it is insolvent, if he was charged to transfer it to another, he will be obliged to deliver all of it, and, in this instance, there will also be ground for the application of the Trebellian Decree of the Senate, for the beneficiary of the trust cannot retain the fourth under the Falcidian Law. Nor does it make any difference, if the first beneficiary should not have demanded that the estate be entered upon, whether the trust created in the second place would not have taken effect, for when an estate has once been accepted, all the wishes of the deceased are considered to have been complied with. Nor is this opinion refuted because the beneficiary of the trust is not obliged to pay other legacies which amount to more than three-fourths of the estate. For it is one thing for suit to be brought against him in the name of the heir, and another for him to be sued in his own name through being bound by the wishes of the deceased. According to what has already been stated, the appointed heir should not be compelled to accept the estate merely on the demand of the first beneficiary of the trust, where the latter is not entitled to any portion of the same, just as if he was charged to transfer the estate, together with its income, immediately, or after a certain time. If, however, he should be charged to transfer it without its income, it may be inferred that the amount will not be sufficient to compel him to accept the estate, nor is it material if the first beneficiary should have also received his freedom, for neither the acceptance of the money, nor of the grant of freedom will be sufficient to compel the appointed heir to enter upon the estate. But when the first beneficiary of the trust refuses to compel the heir to accept the estate, it has been decided that the second can legally demand that this shall be done, in order that the heir may enter upon it and transfer it to him. 3But what if the first beneficiary should be charged not to deliver the estate to a third party, but to transfer it to the heir himself? For the reason that he ought not to transfer to him the fourth which he has lost, he should be heard with reference to the retention of this part of the estate. Yet the fact that the appointed heir who was compelled to accept the estate is refused the right to claim anything under the trust should not be dismissed without consideration. For why should he not be thought unworthy to obtain anything under the will of the deceased, who refused to comply with his wishes? This will be more thoroughly established, if the heir was forced to enter upon the estate after a condition had been fulfilled, for if he was compelled to do so while the condition was pending, it will be hard to prove this, as he, by merely changing his mind, will be able to claim the Falcidian fourth. And I am well aware that it may be said that, under no circumstances, the benefit of a trust should be denied to those who are asserting their claim to the right of sepulture. To such an extent was the Senate convinced that the heir should not obtain anything out of the share of the estate which he had rejected, that he could not even avail himself of the Falcidian Law, or reserve any preferred legacy, or acquire any advantage under a second will, where the substitution is made as follows, “Let whoever becomes my heir, be the heir of my son.” 4The person to whom the estate of Titius was transferred under the Trebellian Decree of the Senate can transfer to Sempronius the estate of Mævius which the deceased Titius was charged to transfer to him, just as any other successor whosoever could do. 5The actions which pass under the Trebellian Decree of the Senate are only temporary ones, where the estate is evicted from the party who lost the case after he had transferred the estate under the trust, if, of course, issue was joined with him before the delivery; for the force of the eviction renders the transfer null, because that the trust which was established was not due. It is clear that where the same person who gained the case was also charged with the trust, for the reason that the possessor, in transferring the estate, accounted to the heir for the same share which should have been delivered to the beneficiary; it can be maintained that the actions which pass under the Trebellian Decree of the Senate will not be barred by lapse of time.

Papinianus, Questions, Book XX. If the property of a patron is sold, an action will still be granted him to obtain any services of his freedman which have begun to be due after the sale. If he is able to support himself, an action will not be granted him to compel performance of the services which should have been rendered before the sale, since this relates to what took place before the property was disposed of.