The Same, On Quintus Mucius, Book VIII. If the usufruct of land, the ownership of which does not belong to my wife, is given to me by way of dowry by the owner of the same, it would be difficult, after a divorce, to determine how the right of usufruct could be returned to the woman; as we have stated that it cannot be transferred by the usufructuary to anyone but the owner of the property, and if it is transferred to a stranger, that is to say, to one who does not own the property, nothing passes to him, and the usufruct reverts to the owner of the land. Therefore, certain authorities very properly hold that, by way of remedy, the husband should be permitted to rent the usufruct to his wife, or to sell it to her for a nominal consideration, so that the right itself will remain with the husband, but the power to gather the crops will belong to the wife.

Pomponius, On Quintus Mucius, Book VIII. A doubt may arise whether, after I have been appointed heir by the will of a person whose estate, even if he should die intestate, would belong to me as heir-at-law, I can reject both titles to the estate at the same time, for the reason that the estate did not belong to me by law, before I rejected it as bequeathed by will. It is true that I am understood to have rejected at the same time the estate bequeathed by the will and the one conferred by law, just as if I wished the latter to belong to me, when I knew that it also had been left to me by will; hence I shall be held to have first rejected the testamentary estate, and in this way to have acquired the one conferred by law.

The Same, On Quintus Mucius, Book VIII. Where the following was inserted into a will, “I give a hundred aurei to my daughters,” will the legacy be considered to have been equally bequeathed to the male and female children? For if it had been left as follows, “I appoint So-and-So guardians of my sons,” it has been held that guardians were also appointed for the daughters. On the other hand, it should be understood that males are not included under the term “daughters,” for it would establish a very bad precedent for males to be included in a word which designates females. 1Ad Dig. 31,45,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 643, Note 4.Where a legacy is bequeathed to us under a condition, or at a certain time, we cannot reject it before the condition is fulfilled, or the time arrives; for before this the bequest will not belong to the legatee. 2If a father by will directs his heir to pay a certain sum of money to his daughter when she marries, or if she should be already married when the will is made but her father was absent at the time and not aware of the fact, the legacy, nevertheless, will be due. For if her father was aware of it, he is held to have intended to have left the legacy with a view to some other marriage.

Pomponius, On Quintus Mucius, Book VIII. Quintus Mucius says that if anyone makes the following provision in his will, “Let my sons and daughters live wherever their mother may desire, and let my heir pay, every year, to each boy and girl among them ten aurei, for his or her support.” If the guardians who had charge of the children were unwilling to pay the said sum of money, no action can be brought by anyone under the terms of the will; for the provision of the testator was only intended to inform the guardians what he desired, so that they could pay the money without any risk. Pomponius says that where anything is included in the will which merely has reference to the wishes of the testator, it does not create any obligation. The following is an instance of this. If I should appoint you my sole heir, and direct you to erect a monument to me with a certain sum of money, this statement does not place you under any obligation, but you can erect a monument in order to comply with my wishes, if you desire to do so. It would, however, be otherwise, when I made the same provision after I had given you a co-heir, for if I charged you alone to erect the monument, your co-heir could bring an action in partition against you to compel you to do so, as it is to his interest. If, however, both of you should be ordered to do this, you will be entitled to actions against one another. The following also has reference to the wishes of the testator, for instance, where anyone directs statues to be placed in a town, for if he did not do this for the purpose of honoring the town, but to perpetuate his own memory, no one will be entitled to bring an action on this ground. Therefore the testamentary disposition mentioned by Quintus Mucius, “Let my children reside where their mother may desire,” creates no obligation, but merely has reference to compliance with the wishes of the deceased; so that the children may live where their mother may direct. Nor must the will or the order of the testator always be observed; for example, if the Prætor should decide that it was not expedient for a minor to reside where his father ordered him to, on account of the bad character of persons with whom he directed them to associate, of which fact the father was ignorant. Where, however, ten aurei, payable annually, are left for their support, the legacy will be valid, whether this clause had reference to the parties with whom a mother might wish the children to reside, or whether we should understand by it that the children themselves were entitled to the legacy. The better opinion is, that the testator should be considered to have made this bequest in order to provide for his children. And, in all cases where only the wishes of the testator are concerned, they must neither be always rejected nor always observed, but such matters must be determined by the judge, and carried into effect if they do not relate to anything dishonorable.

Pomponius, On Quintus Mucius, Book VIII. If I order a slave to be free under a certain condition, and bequeath to you the usufruct in said slave, the legacy will be valid.

The Same, On Quintus Mucius, Book VIII. Servius says that if it was written in a will, “I appoint So-and-So guardians for my son, and for my sons,” guardians are only appointed for the male children, as by alluding to his son in the singular number, and then using the plural, the testator is considered to have had reference to persons of the same sex which he had previously mentioned. This, however, is a question of fact, and not of law; for it might happen that he only thought of his own at first, and afterwards, when appointing a guardian, had in mind all his children. This seems to be the more reasonable opinion.

Pomponius, On Quintus Mucius, Book VIII. He who sustains any damage through his own fault is not considered to have been injured.