The Same, Questions, Book X. Marcianus states that the principal will can neither be wholly or partly confirmed by pupillary substitution.

The Same, Questions, Book X. A debtor bequeathed ten aurei to his creditor, which he owed him after the expiration of a year, and which were secured by pledge. The amount is not due (as some authorities hold) under the will, when payment is made before maturity merely as a convenience, but suit can be brought for the entire ten aurei; nor will the right of action be barred if, in the meantime, the year has elapsed, for it will be sufficient for the day when the legacy is due to arrive. Where, however, the year has passed during the lifetime of the testator, it must be said that the legacy will become void, although it was valid in the beginning. Hence, in the case where a dowry is left as a preferred legacy, it was decided that the entire dowry could be recovered under the will; otherwise, in accordance with the above opinion, if only an intermediate benefit attaches to the bequest, what shall we say where a certain tract of land, due at a certain time, was bequeathed? In this instance the money cannot be claimed, nor can a part of the land be easily found which can be claimed as a benefit. 1Where a first, second, and third heir are appointed, and legacies are bequeathed as follows: “If my first heir should not obtain my estate, let my second heir pay ten aurei to Titius; if my second heir should not obtain it, let my first heir deliver the Tusculan Estate to Seius,” and both the first and second heirs should decline to accept the estate, the question arises to whom the substitutes appointed for them by the testator should be required to pay the legacies. The legacies will be due from both substitutes. 2Valens says that the property of a master can be legally bequeathed to a slave of another, just as a debt can be which he owed unconditionally to his master. For when we give anything by will to a slave belonging to another, the person of his master is only considered with reference to his testamentary capacity, but the legacy is valid so far as the person of the slave is concerned. Therefore, Julianus most properly lays down the rule that a legacy can only be bequeathed to the slave of another which he himself could hold if he became free. The observation that a bequest could be left to the slave as long as he remained in servitude would be improperly made, as a legacy of this kind derives its force and effect from the person of the slave; otherwise, we all might remark that there are certain slaves who, although they cannot obtain their freedom, can, nevertheless, acquire legacies and estates from their masters. In accordance with the principle, which we have mentioned, namely, that in the case of wills the person of the slave must be considered, it has been decided that a legacy can be bequeathed to a slave forming part of the estate. It is not extraordinary that the property of a master, and what is owing to him, can be absolutely bequeathed to a slave, although such property cannot be legally bequeathed to his master.

Paulus, Questions, Book X. Sempronius Attilus charged his heir after the expiration of ten years to give to Gaius his tract of land in Italy, with the reservation of the usufruct. I ask, if the heir should die before the ten years have elapsed whether, after that time, the entire tract of land will belong to the legatee. I am convinced that the time of this legacy, or that of the execution of the trust has arrived, and for this reason that it should belong to the heir of the legatee. Therefore, since the legacy was already due at the time of the death of the heir, the usufruct is extinguished and cannot belong to the successor of the latter. I gave it as my opinion that if the heir should be requested or ordered to deliver certain property, the time for the execution of the trust or for the delivery of the legacy will be when the testator dies, but the usufruct will not belong to the heir until he delivers the ownership after reserving the usufruct. Hence the usufruct cannot be lost by the forfeiture of civil rights, or the death of the heir, for the reason that he does not yet possess it. The same thing takes place where the ownership of property is bequeathed under a certain condition, after the reservation of the usufruct, and the heir dies before the condition has been fulfilled; for then the usufruct, which terminates with his life, begins to vest in the heir of the heir. In these instances, however, the intention of the testator must be ascertained, that is if he, at the time of reserving the usufruct, had someone in his mind who was to be joined with his heir, so that, at the death of the former, he intended the entire ownership to belong to the legatee; because no more could be transmitted to his successor, who had not yet acquired the usufruct, than if he had already begun to enjoy it. 1Where a tract of land is devised to two persons, and the usufruct is left to another, they all three of them do not enjoy the usufruct in common, if it is divided into two parts. On the other hand, the same rule will apply where there are two usufructuaries, and the ownership of the property is left to a third party. The right of accrual only exists between them.

Paulus, Questions, Book X. Moreover, if the heir has sold some of the slaves and kept others, the legatee should not be heard if he wishes to make his selection out of those retained by the heir, as the latter has already disposed of the slaves belonging to the estate.

Paulus, Questions, Book X. A certain individual to whom support had been bequeathed, payable annually, having been condemned to the mines, was afterwards restored to his rights by the favor of the Emperor. I held that he had lawfully received the support for the preceding years, and that he was entitled to it for those which followed.

Ad Dig. 34,3,25Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 657, Note 11.Paulus, Questions, Book X. Where I bequeathed to Titius what he owed me, either stating or not stating the amount, or, on the other hand, where I make a bequest with a difference, as for instance: “I leave to Titius what I owe him,” or “I leave to Titius a hundred aurei, which I owe him;” I ask if you think that it should, by all means, be ascertained whether anything is really due; and I furthermore request you to inform me in what way you interpret these matters, which are of every day occurrence. I answered that if the party to whom Titius is indebted wishes to release the debt, it makes no difference whether he directs his heir to discharge him from liability, or forbids him to collect the debt; for, in either instance, the debtor should be released, and in both cases an action will lie in favor of the debtor against the heir, for the purpose of procuring his release. If the testator mentioned the sum of a hundred aurei, or a certain tract of land as being due, and it can be proved that the legatee was the debtor, he should be released. If, however, he does not owe anything, as a false statement has been made, it may be said that he can also bring an action to recover what is embraced in the legacy. This principle also applies where the bequest was as follows: “Let my heir be charged not to collect the hundred aurei which he owes me,” or “Stichus whom he owes me.” If, however, he had said, “Let my heir be charged to give to Titius the hundred aurei which he owes me,” it may be maintained that he can claim them, although the statement is untrue. However, I by no means agree to this, as the testator must have thought that the word “give” had reference to the debt. On the other hand, if the debtor makes a bequest to his creditor, I do not see that the legacy has any validity, if the amount is not stated. But if he should mention the sum which he acknowledges that he owes, the legacy will not be valid except in those instances where its payment will be more advantageous than that of the debt. For if the debtor should bequeath a hundred aurei, which he says that he owes, and he does owe them, the legacy is void. If, however, he should not owe them, it has been held that the legacy is valid; for, where a certain sum of money is mentioned, the case is similar to that where Stichus was bequeathed under a false statement. This rule the Divine Pius stated in a Rescript, where a certain sum of money was bequeathed as having been received by way of dowry.

The Same, Questions, Book X. The plaintiff or the defendant, having charged his heir not to take judgment in the Court of the Centumvirs, the question arose as to the effect of this on the legacy. It was decided that the latter was only valid where the adversary of the testator had a bad case, so that he would be beaten in a contest with the heir; for then the heir would not only be obliged to surrender the property which was the subject of the suit, but also to pay all the expenses of litigation to the legatee. But if he had a good case, there does not seem to be anything in the legacy, not even the expenses, as some authorities have held.

Paulus, Questions, Book X. When there are two contracting parties, and one of them stipulates for something that is valid, and the other for something that is void, payment cannot properly be made to him to whom the promisor is not liable; because payment is not made to him in the name of another, but on account of an obligation of his own which is of no force or effect. For the same reason, where anyone stipulates for Stichus or Pamphilus, and the obligation is only valid with reference to one of them, because the other belongs to the stipulator, and even if he should cease to belong to him, delivery cannot legally be made, because both the objects of the stipulation have reference to the obligation and not to payment.

Paulus, Questions, Book X. For when both the parties are capable of assuming the obligation, we cannot find out which one was added, because there is no one who can bring suit.

Paulus, Questions, Book X. As long as a will is valid, the heir at law is not admitted to the succession.