Paulus, On Plautius, Book IX. Where a stranger is appointed heir by will, and an emancipated son is passed over, and the ownership of the estate is bequeathed to the mother of the deceased, the usufruct being withheld; then, if suit is brought for the possession of the estate in opposition to the will, the entire ownership, on the ground of filial duty toward the mother, must be delivered to her. 1Where a testator directs that his heir shall repair a house the usufruct of which he has bequeathed, the usufructuary can bring suit under the will to compel the heir to repair it.

Paulus, On Plautius, Book IX. Ad Dig. 7,1,48 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.If, while the usufructuary is absent, the heir makes the repairs as a person having charge of his business, he will be entitled to an action against the usufructuary on the ground of business transacted, even though the heir was looking to his own future benefit. Where, however, the usufructuary is ready to relinquish the usufruct, he is not required to make repairs, and is released from the suit based on business transacted. 1Where a thicket is cut down, even though this is done at an unsuitable season of the year, it is considered as part of the yield of the land; just as olives which are gathered before they are ripe, and grass cut before the proper time are also considered to be a part of the crops.

Paulus, On Plautius, Book IX. If the use of a house is bequeathed without the rent, it is the duty of the heir as well as of the party entitled to the use of the same to keep it in repair, so that it will be closed and protected against the weather. Let us see, however, whether, if the heir receives the rent he himself is not obliged to make the repairs; but where the property the use of which is left is of such a description that the heir cannot collect the income thereof, the legatee will be compelled to repair it; which distinction is reasonable.

Ad Dig. 30,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 666, Note 1.Paulus, On Plautius, Book IX. Moreover, the heir can give to the legatee the share which has been left him by delivering to him a certain part of the property, or one article alone, the value of which the legatee shall agree to accept, or the judge shall determine; in order that the legatee may not be forced to demand a share of all the property.

The Same, On Plautius, Book IX. Where anyone bequeaths a slave belonging to his heir or to someone else, and the slave takes to flight, the heir must furnish security that he will be restored; but if he should take to flight during the lifetime of the testator, he must be brought back at the expense of the legatee; and if he should escape after the death of the testator, he must be brought back at the expense of the heir. 1Where a legacy is bequeathed as follows: “I leave ten aurei to Sempronius, or, if he is unwilling to accept them, I leave to him my slave, Stichus,” in this case there are two legacies, but the legatee must be content with one. 2Where anyone makes a bequest as follows: “I bequeath ten measures of wine from such-and-such a cask,” even though less than ten may be found therein, the legacy is not extinguished, but the legatee will only receive what is contained in the cask. 3When a doubt arises as to which one of two persons a legacy should be given, as for instance, if it should be left to Titius, and two friends of the testator of that name appear and claim the legacy, and the heir is ready to pay it, and both of them are prepared to defend the heir, the latter must elect to whom he will pay the legacy, and by whom he will be defended against the other. 4If a legatee and certain parties claiming to be substitutes for the latter demand the payment of a certain sum of money, which has been bequeathed, and the heir is ready to pay it if both of them are prepared to defend him, he should select the one to whom to make payment, in order that he may be defended by him, and it neither appears to be guilty of fraud, the legacy should in preference be paid to the one to whom it was first bequeathed. 5If I bequeath to anyone a certain part of an estate, the Divine Hadrian stated in a Rescript that neither the value of any manumitted slave, nor the funeral expenses of the deceased, could be deducted from the legacy.

The Same, On Plautius, Book IX. Plautius: A woman made a bequest as follows: “I charge my heir, whoever he may be, to give my clothes, my toilet articles, and my feminine ornaments to Titia.” Cassius says, if it cannot be ascertained what the intention of the testatrix was, that all her clothing will be considered to have been bequeathed, according to the terms of the will. Paulus: Javolenus says the same thing, because, as he remarks, it is probable that the testratrix intended to limit her bequest to jewels, to which she gave the designation “feminine ornaments.” It may be said, in addition, that the term “feminine” is not, in accordance with the proper manner of speaking, applicable to either clothing or toilet articles.

Paulus, On Plautius, Book IX. If I should rent a tract of land to anyone for five years, and then bequeath whatever the tenant was obliged to do for me or pay to me, or would be obliged to pay or give to me in the future, and the heir is charged to allow the tenant to have this himself; both Nerva and Atilicinus say that if the heir should prevent him from enjoying the legacy, he would be liable to an action on the lease, and if he should retain anything arising out of the contract of hiring, he would be liable to an action under the will; for the reason that it makes no difference whether he demands something from the tenant, or retains possession of it, as the entire lease is held to have been bequeathed.

Paulus, On Plautius, Book IX. Cassius: Even if a lodging has been bequeathed in this way, the heir will be obliged to furnish it gratuitously; and moreover, it has been decided that the tenant can bring an action based on the will against the heir, in order to be relieved of liability under his lease; which opinion is perfectly correct.

The Same, On Plautius, Book IX. Where anyone is directed to pay a certain sum to an heir, and the latter is a slave belonging to another, he should not pay the sum to the master, for even if some other heir had been appointed, and directed to pay the sum to the heirs of Titius, it should be paid to the slave himself, because things which have already been done do not pass to the master; just as where I stipulate for myself or for the slave of Titius, payment should be made, not to Titius, but to his slave. These opinions are correct. 1Where, however, a party is ordered to pay the heir, let us see whether the payment should be made to his master. It follows in this instance that payment should be made to the slave. 2It is certain that a slave who is to be free under some condition must pay the master. 3On the other hand, a legatee who is charged with payment to the master does not comply with the condition by giving the amount to the slave, unless the master consents. For no one can comply with the condition in a case of this kind, if I am either ignorant or unwilling. 4Where an estate is returned in compliance with the Trebellian Decree of the Senate, it should be given to the heir in order that the condition may be complied with, and it should not be returned by the latter under the trust. 5When an heir enters upon an estate which he suspects of being insolvent, and gives it back to the trustee, a doubt may arise whether he shall be deprived of it, and the more equitable opinion is that, in this instance, he will not be deprived of anything. 6Where, however, I am appointed heir, and a controversy arises as to my right to the estate, if the legatee should furnish security to return the legacy in case the estate should be evicted, security should also be given to him to return what he paid. 7But if you should be ordered to pay me the sum of ten aurei, and receive the estate, under the Decree of the Senate, I shall not be compelled to return you the said ten aurei, by virtue of the trust. 8Where a legacy is bequeathed to a slave belonging to two masters, under the condition of his paying something to the heir, certain authorities hold that the condition cannot be partially complied with, but that the money should be paid at once. I, however, hold the contrary opinion. 9Where a part of the property bequeathed has been acquired by a third party through usucaption, I doubt whether the condition should be complied with in full. I think it can be said that it may be partially complied with, in accordance with the intention of the testator. 10Plautius: I bequeath a tract of land to one of several heirs under the condition that he will pay a hundred aurei to my heirs. He must deduct his share of the estate, and give the remainder to the heirs in proportion to their respective shares. Where, however, he had been appointed heir to a share of the estate, “if he should pay ten aurei to the heirs,” he could only become the heir by paying the entire ten aurei to his co-heirs; because he could not be admitted to the succession before he paid the entire sum. For, in the case where a slave is granted his freedom by will, and made an heir to a share of the estate on condition that he pays ten aurei to the heirs, it was decided that he would not be free and become an heir until he had paid the entire sum of ten aurei to his co-heirs. Paulus: This is our practice at present.

The Same, On Plautius, Book IX. A slave is considered to have been manumitted specifically by a codicil, when his name is mentioned in the will.

The Same, On Plautius, Book IX. Whatever the usufructuary of a slave gives him out of his own property will continue to be his. If, however, he did this with the intention that the property should belong to the owner, it must be said that it will be acquired by him. But where a stranger gives it to him, it will unquestionably be acquired for the owner alone. We make the same statement with regard to a freeman who is serving in good faith as a slave, so that, if I should give him anything, it will continue to remain mine. Therefore, Pomponius says, that even if I should give the slave his labor, whatever he acquires by means of it he will, nevertheless, acquire for me.

Paulus, On Plautius, Book IX. Julianus says that he who confesses that he owes a legacy should by all means be compelled to pay it, even if the property had never been in existence, or had ceased to exist. He, however, can be adjudged to pay the appraised value of the property for the reason that he who confesses is considered as having had judgment rendered against him.

The Same, On Plautius, Book IX. If I rent land to a tenant for five years, and, after three years have elapsed I stipulate as follows, “Do you promise all that you are obliged to pay, or do?” nothing more is embraced in this stipulation than what should be done at that time; for in making a stipulation nothing is included but what is already due. If, however, it should be added, “What you will be obliged to pay, or do,” the obligation will have reference to the future.

Paulus, On Plautius, Book IX. The same rule applies to a case where the use of property has been bequeathed to someone.

The Same, On Plautius, Book IX. If two persons have an usufruct of a slave, and the said slave stipulates expressly for one of them, with reference to property belonging to both, Sabinus says that although he is only liable to one, it should be considered how the other usufructuary can obtain the share to which he is entitled, as no community of right exists between them. The better opinion is, to hold that a prætorian action in partition can be brought.

The Same, On Plautius, Book IX. Where a debtor is the usufructuary of a slave, the slave can be liberated by means of a release, for he will be held to have acquired from the property of the usufructuary. We say the same thing in the case of an agreement.

The Same, On Plautius, Book IX. Generally speaking, according to the spirit of the Law of the Twelve Tables, in the repetition of legacies by a testator in a substitution, the grants of freedom are also included.