Paulus, Opinions, Book XIV. Paulus gave it as his opinion that where a party is in default in discharging a trust, the offspring of female slaves must be given up. 1An heir was requested to surrender the estate to someone without the income from the same after his death. The question arose whether the offspring of female slaves, even if born during the lifetime of the heir, should be given up, on account of the words of the will by which the testator intended to indicate that the income alone of the estate should be reserved. Paulus answered that any children born to female slaves before the trust became operative, were not included therein. Neratius also says in the First Book that where an heir was requested to deliver a female slave he is not required to deliver her offspring, unless the child was born while he was in default in discharging the trust. Nor do I think that it makes any difference whether the female slave was the special object of the trust, or whether she was merely a part of the estate left in trust.

Paulus, Opinions, Book XIV. Nothing can be claimed under a written instrument which was drawn up as a will, where it was not legally completed, not even where something has been left by way of trust. 1By the following words which the head of a household added to a written document, namely: “I desire this will to be valid as far as possible”; he seems to have intended that every bequest that he left by said document should be valid, even though he might die intestate.

The Same, Opinions, Book XIV. Titia desired that a ticket calling for grain should be bought of Seius within thirty days after her death. I ask if Seius should obtain possession of the said ticket for a valuable consideration, during the lifetime of the testatrix, as he could not demand what he already had, whether he would still retain his right of action. Paulus answered that the price of the ticket should be paid to the party concerning whom the inquiry is made, since a trust of this kind has reference to a certain quantity, rather than to the article itself. 1Ad Dig. 31,87,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 278, Note 11.I gave it as my opinion that the interest due under a trust should be paid to the girl who was the beneficiary of the same, after she has attained her twenty-fifth year, where the heir is in default in executing said trust. For, although it has been decided that interest in every instance must be paid to minors under the age of twenty-five years, still, this does not apply to cases where the debtor is in default, for it is sufficient for him to have been in default only once, in order to render the interest payable for the entire time. 2Seia devised a tract of land to her freedmen, and charged them as follows: “I direct Verus and Sapidus not to sell this land, and whichever of them may die last, at the time of his death, to deliver it to Symphorus, my freedman, and successor, and to Beryllus and Sapidus, whom I have manumitted by this my will, or to whichever of them may be living at the time.” I ask, as she did not substitute the two freedmen in the first part of the will by which she left the property, and as, in the second part of the will she added the clause, “Whichever of them may die last,” whether the share of one of the parties who may die will belong to the other. Paulus answered that the testatrix seems to have created two degrees of substitution under the trust in question; first where the party who dies first must deliver his share to the other; and second, where the survivor must deliver it to those whom the testatrix expressly mentioned afterwards. 3Ad Dig. 31,87,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 586, Note 13.The Emperor Alexander Augustus to Claudius Julianus, Prefect of the City. “If it should be evident to you, my dear friend Julianus, that the grandmother referred to intended, by making donations to her grandson out of her estate, to prevent her will from being broken on the ground of inofficiousness, reason demands that half of said donations should be annulled.” 4Lucius Titius, who had five children, emancipated all of them, and gave his only son Gaius Seius a large amount of property in donations, reserving very little for himself, and appointed all his children, together with his wife, his heirs. By the same will he left to the said Gaius Seius, as a preferred legacy, two pieces of property which he had reserved, and charged him to give to his daughter Mævia a certain number of aurei, and also a certain amount to a brother of hers, to be taken out of the income of the land which he had transferred to her during his lifetime. Gaius Seius, having been sued by his sister Mævia, invoked the aid of the Falcidian Law. I ask, since the Most Holy Emperor (as above stated) decided that where property had been donated against the will of the donor the gift should be annulled, whether Gaius Seius can, in compliance with the will of his father, be compelled to pay to his sister, his heir, the amount of the trust out of the donations which had been made to him? Paulus answered that, according to the Rescript of the Emperor, there can be no doubt that, in a case of the kind concerning which inquiry is made, relief should be granted to the children whose shares have been diminished on account of the donations made to the son; especially since the Emperor came to their assistance against the will of their father. In the case stated, however, the will of the father intervenes in favor of those who claim the benefit of the trust. But where the Falcidian Law applies, the trust must be executed to its full extent, on account of the excessive amount of the donation.

Paulus, Opinions, Book XIV. Unless it is proved that the testator intended otherwise.

Ad Dig. 34,1,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 656, Note 1.The Same, Opinions, Book XIV. Lucius Titius left food and clothing for the support of his freedmen, devoting a certain sum of money annually to that purpose, and made the following provision in the last part of his will: “I leave such-and-such and such-and-such tracts of land in trust for the benefit of my said freedmen, in order that they may receive the maintenance above mentioned from the income of the same.” The question arose, if at any time the income from said lands should be less than what was required to provide food and clothing for the freedmen, whether the heirs should not be burdened with making up the deficiency; or if, in any year, there should be an excess, would they be entitled to this to supply what they had lost during the former year? Paulus answered that the food and clothing must be furnished entirely to the freedmen of the deceased, and that the testator did not intend to have the legacy which he bequeathed to them either increased or diminished because he afterwards desired the said lands to be held by way of pledge, so that the freedmen might receive their support from the income of the same.

Paulus, Opinions, Book XIV. “I desire five pounds weight of gold to be given to Titia, with whom I have always lived without any disagreement.” I ask whether the heirs shall be compelled to furnish the gold entirely in kind, or to pay the value of the same; and what amount they must pay. Paulus answers that either the gold in question must be furnished, or the price of the same, whatever it can be purchased for. 1I also ask if, issue having been joined in the above-mentioned case, and the Prætor having decided that the gold itself must be furnished, whether the guardians of a minor, who is the heir against whom the decree was rendered, and who applied to the successor of the Prætor for a decree for the complete restitution of their ward, shall be heard with reference to the said decree. Paulus answered that the Prætor had rendered a proper decision who, where gold had been bequeathed, ordered the amount of the same to be delivered.

Ad Dig. 35,1,84Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.The Same, Opinions, Book XIV. “I wish ten denarii and their clothing to be given to such-and-such freedmen every month, for their support, if they reside with my son.” The said freedmen remained in attendance on the son until the latter, having grown up, was appointed to a command in the army, the result of which was he set out on his journey, having left some of his freedmen at Rome, and died in camp. The question arose whether support should be furnished by the heirs of the son. Paulus was of the opinion that the condition should not be considered to have failed, so far as the freedmen who continued to reside with the son of the deceased were concerned, as the son having died, it was not their fault that they did not continue to reside with him; but if the testator had desired support to be furnished to those freedmen who resided with his son for the convenience of the latter, and the freedmen demanded it contrary to the wishes of the deceased, they should not be heard.

The Same, Opinions, Book XIV. The beneficiary of a trust who was banished after the will was opened and was afterwards restored to the rights can demand the execution of the trust, where the condition upon which the same was dependent was fulfilled after he had recovered his position as a Roman citizen.

Paulus, Opinions, Book XIV. Paulus says that where property belonging to an estate has been abstracted by the heir, and the amount due under the Falcidian Law must be ascertained, the estimate shall be made just as if what has been taken had been included in the estate. 1The same authority gives it as his opinion that the offspring of female slaves born before the day when the trust took effect will belong to the heirs of him who was charged with the execution of the trust; and where a question with reference to the Falcidian Law arises, a fourth of the value of the children and a fourth of the interest on the same must be computed. 2The same authority gives it as his opinion that where a legacy of property belonging to the heir is bequeathed, any profits of said property, which have been collected by him after the day when the trust became operative, cannot be charged against the fourth of the heir, even though he is not required to deliver them to the beneficiary of the trust.

Ad Dig. 36,1,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 517, Note 20a.Paulus, Opinions, Book XIV. Paulus gave it as his opinion that, in a case where a certain portion of an estate was left to someone, and the latter had stolen property belonging to the estate, it may very properly be held that he can be refused an action having reference to what he had appropriated.

The Same, Opinions, Book XIV. Paulus formulated an opinion in the following words, “Sempronius, I have not appointed you my heir, because I made my will hurriedly on account of my illness, and therefore I wish you to receive an amount equal to a twelfth of my estate.” By this it appears that the testator left to Sempronius a certain sum of money rather than a share of his estate, but this must be understood to mean that the testator intended to leave him in trust an amount equal to a twelfth of his property.