The Same, Opinions, Book IX. Where a woman, after becoming an heir, obtained complete restitution for the purpose of enabling her to reject the estate; I gave it as my opinion that the slaves belonging to the estate who had been manumitted by her in proper form, under a trust, were entitled to retain their freedom, and that they would not be compelled to pay twenty aurei in order to retain it, as they appeared to have obtained it in the most approved manner. For if any of the creditors had recovered their money from her before she had obtained restitution, the claims of others against those who had been paid, with a view to having the money divided among them, would not be allowed.

The Same, Answers, Book IX. A testator left a trust to a manumitted slave in such a way that he obtained his freedom by the will; and after he had received the money without applying to the court, he was pronounced to be freeborn. As the money left under the trust was not due, an action will lie for the recovery.

Papinianus, Opinions, Book IX. Where an implied trust is charged upon a party who is appointed heir for an equal or a larger share of the estate, by both a first and a second will, the proof of changed intention on the part of the testator devolves upon him against whom suit is brought; for often a motive of secrecy induces owners of property to appoint persons heirs in whose good faith they have confidence.

Ad Dig. 30,58Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 649, Note 1.Papinianus, Opinions, Book IX. I gave it as my opinion that where a house belonging to an estate was burned, and was rebuilt with the money of the heir, on account of a trust by which the said house was to be delivered to someone after the death of the heir, the amount of the expense should be deducted in accordance with the estimate of a reliable citizen, the age of the house having been taken into consideration:

Ad Dig. 30,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 649, Note 1.Papinianus, Opinions, Book IX. It was my opinion that the necessary expenses incurred by the legatee for the repair of a house, where he claims the legacy and the condition upon which it is dependent was afterwards fulfilled, should not be included in the calculation.

The Same, Opinions, Book IX. The beneficiary of a trust will in vain demand its entire execution, where the heir opposes it on the ground that the Falcidian Law applies. If the said beneficiary, in the meantime, demands that his share be paid to him, and he does not receive it, the heir is understood to be in default. 1Our Illustrious Emperor, Severus Augustus, decreed that the sale of land belonging to the State should be rescinded after the death of the purchaser, and the price repaid to his heirs out of money belonging to the legatee to whom the purchaser had bequeathed some land which formed part of that above mentioned. I gave it as my opinion that the presumption was that the intention of the testator required that a part of the purchase-money should be paid to the legatee in proportion to the amount of the appraisement of said land. 2Moreover, a state is required to pay interest where it is in default in the execution of a trust, but if any damage has resulted on this account, it must be made good by those officials who have neglected to perform this duty after judgment has been rendered. Nor will anything be allowed for the expenses of litigation, if there was no reason for it, as those who allege ignorance should not be heard. 3A father, by the terms of a trust, forbade a certain tract of land to be alienated by his family of children. The last of the said children who could demand the execution of the trust is none the less understood to have left this right of action as a part of his estate, even if, dying without children, he left a stranger his heir. 4Where a creditor by the right of pledge sells a house received from his debtor who made a will creating a trust, judgment cannot be rendered against the purchaser on account of the trust, even though he was aware of the intention of the deceased.

The Same, Opinions, Book IX. Where one of several heirs was directed to take a certain sum of money as a preferred legacy, to be used for the purpose of supporting the freedmen of the testator, it was decided that the heir of the heir should also be permitted to receive the said preferred legacy. If, however, the said heir should himself have several heirs, the wishes of the deceased will, at first sight, appear to have been disregarded, but no other course should be adopted. For what if the testator did not desire to charge the other heirs, and having in his mind the welfare of his freedmen, and desiring to have the distribution made quietly and honorably by a party who was solvent, preferred to have this done by a single member of the household? Therefore, the maintenance should be furnished by all the heirs of the heir aforesaid. 1Where a slave is manumitted unconditionally by the terms of a trust, support must be furnished for the past time, even though he may have obtained his freedom after the others, and the heir was not in default in granting it; for the cause of the delay must be ascertained where a question arises with reference to interest due under a trust, but not where the trust itself is concerned. 2Where maintenance was left to a daughter, the amount of which is to be determined in accordance with the judgment of a reliable citizen, I gave it as my opinion that the bequest with which the son, who was the heir, was charged should correspond with the dowry payable at the time of her marriage, which the father had left to his said daughter whom he had disinherited, according to her increase in age, and not in proportion to the value of his estate.

The Same, Opinions, Book IX. A testator left to one of his heirs a tract of land as a preferred legacy, and afterwards directed that certain rights of action, to the amount of the purchase of said tract of land, should be assigned to another. Afterwards, having sold the land without causing any injury to the party entitled to it as a preferred legacy, he placed the price received for the same among the property of his estate. I gave it as my opinion that the rights of action should not be assigned to his co-heir.

The Same, Opinions, Book IX. Where a legacy is bequeathed to or a trust is created for the benefit of the citizens of a town, it is considered to have been left to the town.

The Same, Opinions, Book IX. Where a ward or a guardian prevents compliance with a condition which has reference to the person of the former, whether a legacy or a grant of freedom is concerned, the condition is considered by the Common Law to have been fulfilled. 1Where two conditions have been prescribed in different ways, it will not affect the legacy if one of them should fail, and the other should afterwards be fulfilled. For it makes no difference whether the conditions imposed could be performed by the party entitled to the legacy, or were dependent upon some event taking place.

The Same, Opinions, Book IX. A grandfather appointed his son and a grandson by another son his heirs, and requested his grandson if he should die before reaching his thirtieth year, to deliver his share of the estate to his uncle. The grandson died within the period above mentioned, leaving children. I gave it as my opinion that, on account of paternal affection, the condition of the trust failed of fulfillment, because it should be considered that less had been prescribed than had been intended.

The Same, Opinions, Book IX. A father appointed his daughter, who was separated from her husband, heir to a portion of his estate, and charged her to deliver to her brother and co-heir the share of it which she had received, after having deducted the sixth part of the same. In determining the amount to be reserved under the Falcidian Law, would the dowry be liable to contribution? If the father, with the consent of his daughter, did not claim her dowry, I gave it as my opinion that she would be entitled to the Falcidian portion by hereditary right, but she would be entitled to the dowry in her own right, because it should not be included in her father’s estate. 1A grandmother, having appointed her grandchildren her heirs, charged some of them, without having deducted the amount to which they were entitled to by the Falcidian Law under another will, to pay the entire legacy to their brothers and co-heirs. I gave it as my opinion that the trust was legally created, but that the amount with which it was charged would also be liable to contribution. 2It is not proper, where a substitute was appointed for two minors under the age of puberty, and became the heir to both, that the Falcidian Law should apply to the estate of only one of them; if, out of the property of the other minor, he should retain the fourth part of the estate of the father which passed to his children. 3If, however, one brother, who is legitimate, should become the heir to the other, and be substituted for the survivor, the share of the father’s estate which the surviving son receives on the ground of intestacy will not be subject to contribution to the Falcidian portion, but the substitute can only retain the fourth part of what the minor who had a substitute acquired.

The Same, Opinions, Book IX. Ad Dig. 36,1,60 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 665, Note 4a.An heir who was charged to transfer an estate after deducting the fourth of the same became the heir of a debtor of the estate before he transferred it. As, on this account, the right of action was merged and could not be restored under the Trebellian Decree of the Senate, three-fourths of the indebtedness might be claimed by virtue of the trust; but the interest for the past time which was due on the obligation, or on a judgment which had been obtained, must be calculated up to the time when the right of action was extinguished, and interest cannot be calculated for the ensuing time, unless the heir was in default in executing the trust. 1Where an estate should be transferred within a certain time under the terms of a trust, no liability will attach to the heir on account of claims due to the estate, merely because he may have collected money from some of the debtors. 2Where anyone is charged to transfer an estate after a certain time, he is not compelled to pay over any interest received from debtors of the estate, which was due after the death of the creditor, and if this is not collected, a right of action to recover all the interest (for the stipulation is a part of the estate) will pass under the Trebellian Decree of the Senate, and therefore will not be a claim for money which is not due. And, in like manner, if the interest which has accrued during the intermediate time is not paid to a creditor of the estate, the beneficiary of the trust will also be liable for this under the Trebellian Decree of the Senate, and therefore there will be no ground for complaint that the heir did not pay the interest out of the income which he had a right to collect. Still, if the heir should pay the interest for the intermediate time, he will not be entitled to retain anything on this account, because he was transacting his own business, for as he was obliged to pay the principal to the creditor, he cannot be charged by the beneficiary of the trust with any interest paid during the intermediate time. 3Where an heir is charged to transfer an estate worth a hundred aurei, after having reserved an equal amount, he is considered to have received the entire sum of money under the Falcidian Law, and the Rescript of the Divine Hadrian should be interpreted as if he had a right to reserve a certain sum out of the estate. This opinion should also be given where an heir is charged to transfer a part of the estate to his co-heir. The case is different where a portion of the land belonging to an estate is to be retained, as money can always be retained, but a portion of the land cannot be, unless with the consent of his co-heir who has the ownership of the same. Moreover, if the land is of greater value than his share of the estate, it is held that the Falcidian Law will apply to the excess, where the beneficiary of the trust petitions this to be done; for it has been established that the money which is paid must be set off against the land. 4Where an heir was charged to transfer an estate at the time of his death after reserving the income of the same, he cannot retain the offspring of female slaves, nor the increase of flocks which have replaced those that died. 5The profits and the interest which debtors to an estate have paid before the day when the trust was to be executed, as well as those which have been paid afterwards, and also the rents of the fields collected by the heir, shall be included in the fourth to which he is entitled. 6Moreover, where an heir is asked to transfer an estate at his death, he cannot be compelled to sell the property of the estate, and the interest on the principal obtained from the price of the said property cannot legally be claimed, and is not considered to have been received instead of the use of the said property during the intermediate time. Again, though the heir is not compelled to assume the risk of the death of slaves, or of the destruction of houses in the city, still, the use of the said property and any losses incurred on account of it will, to that extent, diminish his fourth under the Falcidian Law. 7Where an heir is charged to deliver anything remaining from the estate at the time of his death, he is not considered to have been charged with the transfer of any profits which he may have collected, as these words of the testator refer to a diminution of the estate, and do not mean that the beneficiary of the trust shall profit by the addition of the income. 8Where anyone is asked to transfer anything remaining from his estate at the time of his death, his heir will not be compelled to release any of the property which the deceased had pledged, provided this has not been done fraudulently.

The Same, Opinions, Book IX. “I desire fifty aurei out of the income of my lands collected during the year after my death to be paid to my brother, Firmius Heliodbrus.” It was my opinion that the legacy was subject to no condition, but that the time of the payment of the money seemed to have been prolonged; and if the income of the land for the present year should be insufficient to make up the sum bequeathed, recourse must be had to the income of the following year. 1A testator desired a hundred aurei to be paid by his heirs to his foster-child, and that the said sum of money should be paid to a third party, so that the foster-child might receive the interest on the same at the rate of four per cent per annum, until he reached his twenty-fifth year; and then that he should be paid the principal. The said child having died before reaching his twenty-fifth year, I gave it as my opinion that the benefit of the trust was transmitted to his heir. For no condition seemed to be attached to the payment of the principal, except that it should be made when the beneficiary reached a certain age; and as the heir could not demand the execution of the trust from the third party aforesaid, with whom the testator desired the money to be deposited, because, on account of the following provision, “You will, without fail, pay the said sum of money to my foster-child, after he reaches the age above mentioned,” the execution of the trust must be demanded of the heirs of the testator, who ought to stipulate for the payment of the money; as a person in whom the deceased reposed confidence cannot be required to furnish sureties by the heir of the beneficiary. 2A father charged his wife, to whom he had bequeathed certain property, to pay to his son until he reached the age of twenty-five years a certain sum of money annually out of the income of said property, which was to form part of the estate of his son, in addition to the support of the latter which has been provided for. It appeared that there were not several trusts in this case, but one trust divided into several payments, and therefore the son, having died before reaching the aforesaid age, transmitted the trust for the remaining time to his heir; but the latter could not demand the payment of the money at the beginning of every year, because the father intended it should be paid to the son out of the income of the property given to the wife. Moreover, if the father intended the money, which was payable annually, to be used for the support of the son, there is no doubt that, after the death of the latter, the reason for paying it no longer existed.

The Same, Opinions, Book IX. “I wish my slave, So-and-So, who is a mechanic of a low order, to be manumitted, in order that he may perform services for my heir.” The manumitted slave was not compelled to promise, but, if he should do so, an action will not be granted against him, for he who gave him his freedom under a trust cannot alter a public law.

The Same, Opinions, Book IX. It was decided by the Divine Marcus, with a view to the preservation of freedom, that his decree on that subject should apply to cases where a will was held to be void, and that the property of the estate should be sold; and, on the other hand, it was especially provided where the estate is claimed by the Treasury as being without an owner, that this decree shall not be applicable. 1In order that slaves manumitted by a will might obtain the property of the deceased, it was decided that they must give a suitable bond in court, just as the other freedmen of the deceased, or foreign heirs. Minors, who are appointed heirs, and, as is customary, claim assistance with reference to the estate of the deceased, are not deprived of this advantage.

The Same, Opinions, Book IX. Freedom granted under the terms of a trust cannot be deferred under the pretext that the slave has stolen something belonging to the estate, or has administered its affairs improperly. 1The heir of an heir, who has transferred the estate under the Trebellian Decree of the Senate, can be compelled to grant freedom to a slave, where the trust has not been executed by the former heir, if the slave who is to be manumitted selects him as his patron. 2I gave it as my opinion that a son, who is a soldier, or who has served in the army, and who has accepted a trust created by his father requiring him to liberate a slave forming a part of his peculium castrense (the charge being that this should be done by his legitimate sons); if he should become the heir of his father he can be forced to emancipate the slave, because the deceased thought that he was manumitting his own slave after having given him to his son. The latter cannot be compelled by his brother, who is the co-heir of the owner of the slave, to pay him a portion of the price of the slave, as this would be contrary to the will of the father; nor, on account of this mistake, should the other property which his father gave to his son when he was about to depart for the army be brought into contribution for the benefit of the brother, who remained under paternal control; as the said son, who is included among the other lawful heirs, can retain his peculium castrense as a preferred legacy. 3Where freedom is granted under the terms of a trust, and a son is charged with the execution of the same, after he arrives at a certain age, and he dies before reaching that age, freedom must be granted to the slave by his heir at the prescribed time; but it has been settled that this decision, which only applies to a particular case, does not extend to other kinds of trusts. 4A testator wished a slave to be manumitted by his son after the expiration of five years, if, during that time, the slave paid him a certain sum every day. The slave ran away after two years had elapsed, and did not pay the money. It was held that the condition had not been complied with. If, however, the son, who was the heir, or his guardians, had chosen to accept the services of the slave during the two years, in lieu of payment, it was held that this would be no impediment to the freedom of the slave, as it was the fault of the heir that the remainder of the condition had not been fulfilled.

The Same, Opinions, Book IX. The slave will be considered responsible for failure to comply with the condition upon which his liberty is dependent if he cannot pay the money out of the peculium which he had when under the control of the vendor; because the will of the deceased does not extend to his peculium under another owner. The same rule will apply where the slave was sold with his peculium, and the vendor retains it in violation of his contract; for although an action on purchase will lie, still, the slave did not have the peculium when he was under the control of the purchaser.

Papinianus, Opinions, Book IX. A mother gave certain slaves to her daughter, under the condition that she would see that they became free after her death. As the condition of the donation was not complied with, I gave it as my opinion that, according to the spirit of the Constitution of the Divine Marcus, the slaves obtained their liberty with the consent of the mother, and that if she should die before her daughter, they would be entitled to their freedom unconditionally.

Papinianus, Opinions, Book IX. It has been settled that the slaves destined for the care of a temple which Titia intended to build, and who had not been manumitted, belonged to her heir.

The Same, Opinions, Book IX. Anything is considered to be donated which is given without the compulsion of law.