The Same, Opinions, Book VIII. Where a valuation is placed upon slaves by co-heirs at the time of division, it has been held that prices are placed upon them not for the purpose of purchase, but for that of division; hence, if any of them dies while the condition is pending, the loss must be borne by both the heir and the beneficiary.

The Same, Opinions, Book VIII. A husband stipulated for the interest on a promised dowry, but did not claim it. As he had maintained his wife and her slaves for the entire time of the marriage, at his own expense, and left her the dowry as a preferred legacy, as well as confirmed by the ordinary legal formalities of a trust the donations which he had given her, it was held that the interest of the dowry was not included in the legacy, but had been remitted by the terms of the donation.

The Same, Opinions, Book VIII. But whatever is purchased under such circumstances must be delivered, just as if there had been an exchange of ownership.

The Same, Opinions, Book VIII. Where a father appointed his children and their mother his heirs as follows: “I ask you, my daughter, that, having accepted as your share of my estate a hundred aurei together with the Tusculan estate, you transfer to your mother your share of my estate,” I held that, when the estate was divided, the daughter would be entitled to the land mentioned as part of it, and that she could retain the money in addition to her share. 1Those persons to whom a donation mortis causa has been given can be charged with a trust for any length of time; and this trust the heirs must execute after deducting the Falcidian portion which, in donations of this kind, follows the example of legacies. Where only a part of the donation is included in the trust, the latter will also be subject to the privileges of the Falcidian Law. Where, however, the testator desired support to be furnished, it should be held that, according to his will, the whole burden of the Falcidian Law must be sustained by the remainder of the donation, as there is no doubt that the deceased intended that the entire maintenance should be furnished when his bequest of a larger sum is taken into consideration. 2A mother, desiring to make a donation mortis causa to her children born out of wedlock, permitted a stipulation to be made for her dowry. Afterwards, having appointed other heirs, she requested her children to return the dowry to her husband. It was held that the entire trust relating to the dowry was due to her husband, in case the Falcidian Law did not interfere; and therefore that her husband was entitled to retain the dowry, even though otherwise an action in factum would be granted to the heirs for the recovery of the Falcidian portion out of the dowry, if the children should institute proceedings based on the stipulation entered into with the husband. 3Anyone who is deaf and dumb, and receives a legacy, can be legally directed to surrender it at his death; for persons who are not aware of the fact can be charged with a trust, where they obtain some benefit from a will without knowing it. 4A son was requested when he died to deliver an estate to his own sons, or to one of them whom he might select. This son, having in the meantime been banished to an island, it was decided that he was not deprived of the power of choosing his heir by the infliction of the penalty, and also that the condition upon which the trust depended was still in existence, until his death, but that the children who were living at the time would be entitled to equal shares under the trust, as the father was not then capable of making a choice. 5Where a husband who, in violation of the Lex Julia, sold land which formed part of his wife’s dowry, bequeathed a legacy to her, and charged the purchaser of the land to pay her a larger sum than the price received, it was held that the purchaser was not liable under the terms of the trust. If, however, the woman, after having accepted the legacy, should wish to have the sale declared void, she can be barred by an exception on the ground of bad faith, after the price has been tendered her by the purchaser. 6A creditor directed his debtor Mævius to pay the amount he owed him to Titius, to whom he intended to make a donation mortis causa. If Mævius, knowing that his creditor had died, should pay the money, it is established that his release from liability will not follow; and even if Mævius should not be solvent, an action will not be granted against Titius for the collection of the entire amount, nor will one lie under the Falcidian Law, for the reason that Titius is not held to have received anything mortis causa. The case would be different if Mævius, not being aware that his creditor was dead, should pay the money by mistake, for any amount due by the Falcidian Law could be recovered. 7A father owed certain lands to his daughter under a trust created by her mother’s will, and appointed the said daughter heir to a share of his estate, in order to compensate her for the amount of the estate of her mother to which she would be entitled under the trust, and he afterwards desired that the said lands should be given to his son whom he had disinherited. It was decided that, even if the daughter should be unwilling to accept her father’s estate, the property left by the trust must be delivered to the son by the heirs to whom the share of the estate which the daughter had accepted would pass. Even though he had substituted another heir for his daughter, it would be necessary for him to execute the trust in favor of his son. 8Where a father, who believed himself to be the owner of certain lands, left them to his son by the terms of a trust, and the said lands were evicted, no action will lie in favor of the son against his brothers and co-heirs. If, however, the testator divided his property among his sons, his intention will not be considered to have been to restore the preferred legacies to the co-heirs, unless they themselves were prepared to see that the will of their father was executed in favor of their brother. 9Where a father left a certain sum of money by a trust to his daughter whom he had disinherited, and desired that the said sum should be given to her by way of dowry at the time of her marriage, and that his son should stipulate for said dowry, if the latter should pay a smaller sum than the dowry, it is evident that he must pay the remainder to the daughter. If a divorce should take place, the daughter could legally demand the execution of the trust, so that the right of action under the stipulation would be assigned to her, since it was not probable that the father intended the stipulation to be interposed in order that his daughter should remain without a dowry after the first marriage. If, however, she should marry subsequently, the security furnished by her brother will not extend to the second marriage. 10A father requested his daughter to surrender, at the time of her death, certain real property to any one of her children whom she might select, and she, during her lifetime, gave the said land to one of her children. This was not considered a choice, in accordance with the terms of the trust, because while the date of the latter was uncertain, the date of the donation was certain, for the disposal of the property without regard to the choice of the mother could be made in favor of one of the children, who, together with the others, would be entitled to the benefit of the trust. 11“I charge my heirs not to alienate the Tusculan Estate, nor permit it to pass out of my family.” Those also must be understood to be called to the execution of this trust, under the terms of the will, to whom foreign heirs should have granted freedom under the said trust. 12“I charge you, my wife, to give and restore to my daughter at the time of your death, any of my property which may have come into your hands in any way whatsoever.” Whatever the testator afterwards gave to his wife by a codicil will be included in the trust, for the order in which the two instruments were executed does not interfere with the law, and his intention; but if the wife’s dowry had been previously left to her, she will have the right to retain it, since this disposition of the property is understood to be restored rather than donated. 13“I desire such-and-such land to be given to my freedmen, and if any of them should die without issue, I desire that their shares shall belong to the survivors.” A testator having enfranchised a father and a son, it was held that the substitution was excluded under the will. 14Where a curator was charged by a minor to render an account of his administration to his brother, who would be his heir, this was held to be of no effect. Therefore, although it was provided by the will that payment should only be made to the said brother when he became of age, it was, nevertheless, held that the latter could bring an action against his brother with the consent of his curator, as it was presumed that his interest had rather been considered by the testator, than that the payment of the money, which could be legally collected, should be postponed. 15Where a testator, having appointed a stranger his heir by the terms of the trust, charged him to transfer certain lands to his freedman when he died, and requested that the said lands should not be disposed of out of the family, I answered that the substitute was required to deliver said lands in compliance with the will of the deceased. Whether, however, the lands should be delivered immediately, or when the condition was fulfilled, is a question which depends upon the intention of the testator; but, so far as this can be ascertained, the trust could not be executed before the death of the appointed heir. 16Where the business of a bank has been made the subject of a trust, and the indemnity of the heirs of the estate against the creditors has been secured by a bond, the transaction is similar to a sale, and therefore it will not be necessary to inquire whether the liabilities are greater than the assets. 17A father, by the terms of a trust, provided that certain slaves of his daughter, whom he had given to her at the time of her marriage, should belong to her. I gave it as my opinion that the offspring of said slaves, even though their mother had died before the will was executed, should be delivered under the trust, and that the same thing should be done where any donations had previously been made to his daughter after her marriage. 18Where heirs are charged to surrender the estate at the time of their death, they are not liable to the risk of loss of any claims which they have obtained by division, and which have been assigned to the different co-heirs, any more than to the diminution in value of lands belonging to the estate, for where a distribution is made, the change of property disturbs the community of interest. 19“I desire that my daughter may have for herself, as a preferred legacy, the property of her mother.” Any profits which the father may have received, in the meantime, and did not keep separate, but either consumed or made a portion of his own estate, are not held to have been left to the daughter. 20“I desire that any property belonging to me and situated in Pamphilia, Lycia, or anywhere else, which belonged to my mother’s estate, shall be given to my dear brothers, who are your maternal uncles, in order that you may have no controversy with them.” All the property forming part of his mother’s estate, which remained in the same condition of ownership, belonged to the trust. Therefore, any money derived from said property, included in the estate of the testator, and made his own property, will also not be due under the terms of the trust; as the testator intended to prevent that disagreement of his relatives which community of property is accustomed to provoke. 21A father, having appointed several of his children his heirs at the time of his death, gave to his oldest daughter his keys and ring for safe-keeping, and ordered a freedman who was present to deliver to his said daughter all the property which was in his charge. It was understood that the “business of the estate was to be transacted by all his children in common, and that his daughter could not, on this account, demand in court any preference in the division of the property. 22When a will is found to be imperfect, any words bequeathing a legacy or a trust, and which precede or follow the defect, can only be considered as remedying it, where what is written agrees with the intention of the testator. 23A son appointed his mother his heir, and requested her, under the obligation of an oath, to execute certain trusts created by the will. The will having been declared void, I answered that the mother was, nevertheless, compelled to execute the trust, as the lawful heir, for the requests contained in the will are held to extend to every kind of succession. 24“Being solicitous for the welfare of my daughter, I direct her not to make a will until she has children, so that she will be able to live without any apprehension.” It would appear that the estate was not left in trust for the sister and co-heir of the said daughter, for the reason that the testator did not intend that his daughter should not dispose of her estate by will, but as he had, by thus forbidding her to make a will, merely offered his advice, she should not make use of her legal right. 25“I ask you, my daughter, to distribute all your property of every kind among your children, according as each one may be deserving of your bounty.” In this case, it seems that a trust has been created for the benefit of all the children, even though they may not have been equally deserving, and if the mother should not make any choice among them, it will be sufficient for the execution of the trust if they have not been guilty of any offense towards her. I, however, was of the opinion that those should be preferred whom the mother might select, if they were more deserving. But if she should not select any, those alone who have offended her should not be admitted to share in the estate. 26A mother made a deposit, in a sacred place, of a letter donating certain lands to her son, he not being aware of the fact. She did not confirm her acts by words creating a trust, but only sent to the guardian of the temple a letter containing the following: “I wish the document containing my will to be delivered to my son, after my death.” The mother died intestate, leaving several heirs, and I gave it as my opinion that she should be understood to have left the trust for the benefit of her son; for it is not necessary to inquire to whom anyone may speak with reference to their last will, but toward whom the intention of the will is directed. 27A testator left a tract of land to his freedmen, and requested them not to alienate it, so that it might be retained in the family of the said freedmen. If all of them, with the exception of one, should sell their shares, the one who did not do so can claim the shares of all the others who by the terms of the trust were not granted the power of alienating the same; for the testator will be held to have only invited those who complied with his will to share in the benefits of the trust. Otherwise, it would be the height of absurdity if each could make a claim against the others, in such a way that anyone could demand the share which he alienated from another who, by alienating his own, had lost it. This proceeding, however, can be instituted if all of them alienated their shares in the same manner. Moreover, it is understood that it is not the act of the first freedman who alienated his share, but that of the one immediately preceding him who did not dispose of his, which causes the accrual of the shares of the others to the advantage of the former. But if no one should sell his share, and the last one should die without issue, the right to demand the execution of the trust will not survive. 28Where land is left to freedmen under such circumstances, and there is a freedwoman among them, and the patron requests that the property shall not go out of the family, it was held that the heir of the freedwoman is entitled to retain the share of the land which his mother received. 29A person who thought that his entire estate would belong to his female cousin made a will by which he charged her with several trusts. The possession of the estate having devolved upon two heirs of the same degree, by the right of succession, in accordance with the principles of equity, and agreeably to the terms of the Perpetual Edict, I gave it as my opinion that the woman should be relieved from the execution of half the trust, but that it would be a hardship that the grants of freedom which she was required to bestow, should not be made on account of the loss she had sustained. 30A father who had appointed his son heir to half of his estate, and the sisters of the latter, who had not yet reached the age of puberty, each heir to a quarter of the same, appointed their brother their guardian, and expressed himself as follows: “My son, you must be content with two hundred aurei, instead of your share of half of the estate, and you, my daughter, must be content with a hundred aurei instead of your shares of a quarter each.” It was not held that the father intended to charge his children with a trust in favor of one another, but that he had merely made an estimate of his estate, as is ordinarily done by prudent parents; and, on that account, the brother could not, in a bona fide action on guardianship, avoid giving an account of his administration of the estate, on the ground that the amount which his sisters were to receive had been indicated. 31Mævius, having been appointed heir of Seius, and asked by him at his death to transfer the estate to his brother Titius, died, leaving the said Titius his heir, and charged him, at the time of his decease, to leave not only his own estate but that of Seius, also, to Sempronius. Titius having, in the meantime, obtained the profits of the property, I rendered the opinion that it could not be held that a trust had not been created if Titius should claim that he did not hold the estate as a donation but rather in payment of a debt, since by reason of the compensation for the profits which he had received he had done all that was required of him. It is clear that if Mævius had appointed Titius his heir, under the condition that he would not retain the trust under the will of Seius, the Falcidian portion would be sufficient by way of compensation; but some injustice would be done. He, however, would act more prudently if he rejected the estate left to him by his brother, and then obtained possession of the same on the ground of intestacy, for it would not be held that he had acted in bad faith, as he would thus avoid being defrauded. 32“I ask you, my husband, to leave such-and-such land to your children, if you should have any; and if you should not have any, to either your, or my relatives, or even to our freedmen.” In this instance, I gave it as my opinion that no right of choice was granted, but only a certain order was arranged, by the terms of the will, for the substitution of heirs. 33It has been established that where certain tracts of land, which have their own boundaries, are left to a city, they will, none the less, be due under the terms of the trust, because the testator, having been prevented by death, did not by means of another instrument, as he promised he would do, establish the boundaries of said property, as well as those of a race-course where he wished races to be held every year.

The Same, Opinions, Book VIII. “I wish my faithful friend, Seius, to receive six aurei every year, and the house in which he lives, if he should be willing to take charge of the business affairs of my children, just as he has taken charge of mine.” It was held that the surviving daughter of the testator was, none the less, obliged to pay the annual legacy to Seius, in proportion to her share of the estate, because two of the three children of the testator had died, and other heirs had been appointed, as the labor as well as the money was susceptible of division. 1“I wish my physician, Sempronius, to receive the same that I have paid him during my lifetime.” The sums held to have “been left by this bequest were certain annual payments made by the testatrix, so that, as far as her liberality was concerned, no doubt of her intention could arise. 2“I desire a hundred aurei to be paid to my wife in addition to what she received from me as an annual allowance during my lifetime.” It is understood that the amount should be payable annually, and that the testator also left her a hundred aurei. 3“I wish to be given to my freedmen whatever I furnished them during my lifetime.” Their lodging must be provided, but the heir will not be required to allow the steward the expense of beasts of burden, which his mistress was accustomed to grant him for his own convenience. Again, where the freedman is a physician, he cannot legally demand money which he was accustomed to receive from his mistress for the purchase of medicines to be administered to his patroness and her family.

The Same, Opinions, Book VIII. A testator left his wife the usufruct of certain lands, and desired that after his death the said lands with their revenues should revert to his heirs; and by doing so he committed an error. The owner did not create a trust in favor of the heirs, either with reference to the ownership or the usufruct of the property, for the future revenues, and not those of time which had passed, seemed to have been referred to.

The Same, Opinions, Book VIII. “I desire that the Cornelian Estate, and whatever property my wife brought me at the time of her marriage, and which was appraised, be returned to her in kind.” I held that the said tract of land which had formed part of the dowry, but had not been appraised, did not appear to have been excepted, but that the entire dowry had been bequeathed, and that not the value of the appraised property, but the property itself had been left in the condition in which it might be found.

The Same, Opinions, Book VIII. A patron left a tract of land, with its equipment, to his freedmen by his will, and he afterwards requested in a codicil that the legatees, at their death, should give their shares of the land to the survivors; but he did not make any mention of the equipment. It was held that the land which was devised should be considered just as if it had been left under a trust; but that the increase of animals and slaves which took place in the meantime, as well as the losses caused by death, should be included in the trust. 1A minor of twenty years of age desired a tract of land with all its equipment to be given to his female cousin, and, during his lifetime, manumitted certain slaves who were attached to said land. The manumitted slaves should not be delivered to the legatee, although they cannot obtain their freedom under such circumstances. The same rule of law applies where freedom is not obtained for any other reason whatsoever.

The Same, Opinions, Book VIII. A testator, having appointed two heirs, inserted the following provision into his will: “I request you, Gaius Seius, out of whatever you may obtain from my estate, to give to such-and-such of my foster-children ten aurei apiece, and I desire you to retain an equal sum in your hands, in order to support them with the interest thereof; and to pay the remainder to Numerius, our common freedman.” The opinion rendered was that, although Gaius Seius could not sell the property of the estate, because another heir had been appointed, still, he had a right to claim the money which has been left to the foster-children in order that he might keep it and pay it to them, subject to the provisions of the Falcidian Law; but this will not apply to any excess of the sum bequeathed. 1I have thought that where a patroness left to a certain freedman twenty aurei, payable annually, and a certain quantity of wheat and wine to be delivered every month, the benefit of a trust under which she bequeathed the same amount of food and clothing to others that she had been in the habit of furnishing them during her lifetime, could be legally claimed.

The Same, Opinions, Book VIII. Where an heir is requested to release his debtor, it is held that this only applies to what remains due on the obligation. Therefore, where any of the debt was paid before the will was opened, it will not be included in the trust. But if, after the will has been opened, and before the estate has been entered upon by the heir, who was aware of the intention of the deceased, payment of what is owing should be required, this will closely resemble fraud, and hence the amount can be recovered by the legatee.

The Same, Opinions, Book VIII. Where a legacy bequeathed under a condition is transferred to another party, it is held to have been transferred subject to the same condition, unless it was one not attaching to the person of the first legatee. For if anyone should bequeath property to his wife, provided she should have children, and the legacy should be transferred, the condition which was necessarily attached to the person of the first woman will not be considered to have been repeated. 1A father devised his gardens with all their appurtenances to his daughter, and afterwards presented some of the slaves belonging to the said gardens to his wife. Whether he confirmed the donation or not, his last wishes will take precedence of the bequest to his daughter. But even if the donation should not be valid, still the father will be understood to have diminished the legacy of his daughter.

The Same, Opinions, Book VIII. Where, by a second will, a father made a pupillary substitution of his nephews for his son, who was under the age of puberty, and who had already been appointed the co-heirs of the latter, and the said nephews, substituted after the death of the minor, accused his mother of having produced a spurious child, in order to obtain the estate on the ground of intestacy, I answered that if they lost their case they should be deprived of the share of the estate to which they were entitled by the substitution, because a decree with reference to the will had not been rendered in their favor. 1As it is not considered a disgrace for a woman to become the concubine of a man who is not her patron, an action to recover what was left him by her will will not be denied to him who kept a woman as a concubine. Our most illustrious Emperors took this view in the case of Cocceius Cassianus, a man of the highest rank, who had greatly favored Rufina, a freeborn woman, to whom he was much attached, and whose daughter he had referred to in his will as his foster-child, and had appointed co-heir with his granddaughter, although it was afterwards ascertained that she was illegitimate. 2It was decided by the Divine Marcus that where a testator, having unsealed his will, erased the name of an heir through having changed his mind, and, in consequence of this, his share was adjudged to be forfeited to the Treasury, this fact would not prejudice the legatees with reference to whom the intention of the testator remained unaltered, and therefore that the share of the aforesaid heir would go to the Treasury with all its burdens.

Papinianus, Opinions, Book VIII. A mother having appointed her son her heir, and designated the daughters of the latter as his co-heirs, charged him to emancipate the latter, so that they might receive a curator from the Prætor. It was held that the son was charged with a trust to permit his daughter to become independent of his authority, so that they could obtain the estate of their grandmother, and that it did not make any difference if he should acquire the shares of his daughters by the right of substitution.

The Same, Opinions, Book VIII. A father, by his will, designated Severiana Procula, his daughter, as the wife of ælius Philippus, one of her relatives. He left a certain estate to his said daughter in trust if she should marry ælius Philippus, and if she should not marry him, he wished the same estate to be given to Philippus. The girl died before arriving at a marriageable age. I gave it as my opinion that in conditions mentioned in wills the intention, rather than the words of the testator, should be considered; and hence that ælius Philippus seemed to have been made the beneficiary of a trust if Procula, the daughter of the deceased, should refuse to marry him. 1Where a trust is created as follows, “I wish you to surrender my estate, if you should die without children,” according to the intention of the testator the condition will fail if only one child should survive the beneficiary of the trust. 2The terms of a condition prescribed by a will are considered only for the purpose of ascertaining the intention of the testator, and therefore where testamentary guardians are appointed to administer the affairs of the minor until he grows up, and the condition of a trust is, “If they should administer the guardianship until he reaches his eighteenth year,” it will not be considered to have failed to be fulfilled if the guardians should cause themselves to be appointed his curators. 3A mother-in-law left a trust for the benefit of her daughter-in-law, under the condition, “That she should remain married to my son.” A divorce having been obtained without the fault of the husband after the death of the mother-in-law, I gave it as my opinion that the condition had failed, that the day for the execution of the trust did not begin before the death of either the wife or the husband, and hence that there would be no ground for the Mucian bond because the condition could be fulfilled during the life of the husband. 4Where a monthly and annual allowance was left to a freedman by a trust, under the condition, “As long as he may transact the business of the daughter of the patron,” the money must be paid, even if the daughter should forbid the freedman to transact her business; still, if she should change her mind, the trusts will be restored to their former condition, for the reason that there are several of them.

The Same, Opinions, Book VIII. A bequest left to a city by the terms of a legacy or a trust is not valid where it consists of what must be paid on account of a promise already made. Therefore, if the testator, by the disposition of his will, exceeded the amount of what was due, only the excess will be diminished by the Falcidian Law, hence the creditor cannot be charged with a trust as a legatee. If, Tiowever, the legacy is dependent upon the arrival of a certain date, or compliance with some condition, the estimate of the advantage should not be made, but the entire amount bequeathed can be demanded; and even if the time for payment should arrive, or the condition should be fulfilled during the lifetime of the testator, what in the first place was valid will not become void.

The Same, Opinions, Book VIII. Ad Dig. 36,1,59 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 112, Note 5.“Let my heirs, at their death, transfer to the City of Beneventum, my birthplace, all of my estate or property which may come into their hands.” It was decided that none of the income collected by the heirs while a condition was pending was included in the trust. 1The following provision was inserted into a will, “I charge the first one of my sons who may die without issue to leave his share of my estate to his surviving brother. If both of them should die without issue, I wish my entire estate to go to my granddaughter Claudia.” If one of the heirs should die leaving a son, and the last one should die without issue, it would seem, at the first glance, that the granddaughter could not be admitted to the succession under the terms of the condition; but as, in the interpretation of trusts, it is proper to consider the intention of the testator, it would be absurd to hold that, because the first substitution did not take effect, the claim of the granddaughter to half of the estate should be refused, as the grandfather had intended that she should have all of it, if the last of the sons who died should receive the share of his brother. 2“When I die, I charge you, my dear wife, to transfer my estate to my children, or to one of them, or to my grandchildren, or to any one of them whom you may select, or to my relatives, or to any one of all of my relatives whom you may select.” I gave it as my opinion that a substitution of the trust was made with reference to the children, and, with reference to the grandchildren and the other relatives, the wife was given the right of selection, but that she could not legally make a choice of the other relatives if any of the grandchildren should be living, on account of the different degrees established by the terms of the trust; but where the degree of grandchildren had ceased to exist, the woman could select any one of the relatives whom she pleased.