Pomponius, On Sabinus, Book V. A grandson conceived and born under the control of his adoptive grandfather also loses all his rights by emancipation.

Pomponius, On Sabinus, Book V. The usufructuary can take stakes for props from a thicket, and limbs from trees, and from a wood which is not a thicket he can take what he requires for his vineyard; provided he does not make the land any the less valuable.

Pomponius, On Sabinus, Book V. Proculus thinks that the usufruct of a house can be bequeathed in such a way that a servitude may be imposed upon it in favor of some other house belonging to the estate, as follows: “If So-and-So promises my heir that he will not do anything by which certain buildings may be raised in height, then I give and bequeath to him the usufruct of said buildings”; or as follows: “I give and bequeath to So-and-So the usufruct of such-and-such a house, so long as it shall not be built higher than it now is”. 1Where trees are thrown down by the wind and the owner does not remove them, and the usufruct is rendered more inconvenient, thereby, or a roadway is obstructed; suit can be brought by the usufructuary against him in a proper action.

Pomponius, On Sabinus, Book V. An usufruct in old gold and silver coins which are usually ordinarily used for ornaments can be bequeathed.

Ad Dig. 7,1,69Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Pomponius, On Sabinus, Book V. Or to supply others instead of such as are worthless; and the latter, after the substitution, become the property of the usufructuary, to avoid the owner from profiting by the entire number. And as those which are replaced at once belong to the owner, so also the former ones cease to belong to him, according to the natural law of production; for otherwise the increase belongs to the usufructuary, and when he replaces it, it ceases to do so.

Pomponius, On Sabinus, Book V. Where the usufruct of unoccupied ground is bequeathed to me, I can build a hut there for the protection of personal property on the said ground.

Pomponius, On Sabinus, Book V. And the usufructuary will be entitled also to the interdict Quod vi aut clam;

Pomponius, On Sabinus, Book V. With the exception of the loss of civil rights and death, other causes of the extinction of usufruct allow partial loss of the same.

Pomponius, On Sabinus, Book V. Where suit is brought for an usufruct of land under a will, against an heir who has cut down trees, demolished the house, or, in any way, diminished the value of the usufruct, either by imposing servitudes upon the land, or by releasing servitudes from neighboring property, it is the duty of the judge to ascertain what the condition of the land was before issue was joined, in order that the usufructuary may be protected by him in the enjoyment of what he is entitled to.

Pomponius, On Sabinus, Book V. A woman, however, cannot receive anyone as a guest, unless he can live respectably with her who has the use of the house.

Pomponius, On Sabinus, Book V. Where the use of a tract of land is bequeathed in such a way that the latter must be provided with those things which are necessary for its cultivation, the use of them will belong to the legatee, just as if they had been expressly bequeathed to him. 1The owner of the property can have a watch kept over the land or the house by a forester or a steward, even if the usufructuary or the party entitled to use should be unwilling; for it is to his interest to protect the boundaries of his estate. All these things are applicable, no matter in what way the usufruct or the use has been created. 2If we are only entitled to the use of a slave, and not to the fruit of his industry, as well, something can be given to him by us, or he can even transact business with our money, so that whatever he acquires thereby shall belong to his peculium through us.

Pomponius, On Sabinus, Book V. A patron who makes application for the possession of the property of an estate in opposition to the provisions of the will, must pay the expenses of the funeral.

Pomponius, On Sabinus, Book V. So that, if either one of them brings suit, the right of action of the other against the thief will be extinguished.

Pomponius, On Sabinus, Book V. We retain both the possession and the ownership of property lent for use.

Pomponius, On Sabinus, Book V. The action arising out of the peculium and the other prætorian actions are only granted against the person entitled to the usufruct or use, where the slave subject to usufruct or use would generally acquire, and in other cases against the owner of the property.

Pomponius, On Sabinus, Book V. A freedman cannot marry either his mother or his sister, who has been liberated from slavery, because the rule forbidding this is founded upon good morals and not upon law.

Pomponius, On Sabinus, Book V. Where an action on guardianship, based on voluntary agency, is brought, and the amount due to the guardian or curator from his adversary is uncertain, security should be given by order of the judge to make good his loss on this account.

Pomponius, On Sabinus, Book V. By the term “either” all the heirs are meant, and therefore Labeo says that if the following was inserted in the will, namely: “Let Titius and Seius be my heirs to the amount that either of them has appointed me his heir”. If both of them did not appoint the testator their heir, neither of them will be his heir, since the phrase has reference to the act of all; but in this instance, I think that the intention of the testator should be considered. It is more equitable, therefore, that he whom the testator would have designated to inherit his estate should be his heir to that amount, and that he whom he would not have appointed, should not be admitted to share in his estate.

Pomponius, On Sabinus, Book V. If anyone should appoint heirs under the condition: “If they give security to one another to pay the legacies left by the will”, it is established that they are released from complying with the condition, because it was made in violation of the laws which forbid certain persons to receive legacies; although, even if security should be furnished, the heirs would be protected by an exception in an action at law.

The Same, On Sabinus, Book V. An heir succeeds to every right of the deceased, and not merely to the ownership of certain property, for any liabilities which were contracted also pass to him.

Pomponius, On Sabinus, Book V. Where the same property is bequeathed to two persons conjointly, and one of them is not in existence, I think that it is true that only a half is due to the survivor. 1Where an heir is charged with the payment of a legacy together with another who is not his co-heir, he who was appointed owes the entire legacy; for if the testator expressly charged two heirs with the payment, and one of them does not enter upon the estate, the other who did would owe the whole amount, if the share of him who refused the estate should come into the hands of the heir who accepted it. 2Where a legacy is left to Titius and the posthumous child of the testator, and no posthumous child is born; Titius can claim the entire amount. If, however, the testator intended to bequeath equal shares to Titius and his own posthumous children, or even if he had expressed himself to this effect, the entire legacy will be due to Titius, if no posthumous child should be born.

Pomponius, On Sabinus, Book V. Where a testator has two slaves, and bequeaths one of them in such a way that it cannot be ascertained which one he bequeathed, the legatee can make his choice.

Ad Dig. 30,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Pomponius, On Sabinus, Book V. Where a drove of cattle was bequeathed, and some of them die during the life of the testator, and others are substituted in their stead, the drove is held to be the same. If the drove should be diminished to such an extent that only a single ox survives, it can be claimed, even though the drove, as such, has ceased to exist; just as in the case where a house which has been devised is burned, the land on which it stood can be claimed.

Pomponius, On Sabinus, Book V. It is established that what is not yet in existence can be bequeathed, for example: “Any child that the female slave, So-and-So, may bring forth;” or where a bequest is made as follows: “Let any wine which Way be produced on my land, or any increase of the flocks, be given by my heir.” 1If I have only an usufruct, and bequeath it, the bequest will be Void, unless I should afterwards acquire the ownership of the property. 2Where anyone, after having made a will by which the Titian Estate was bequeathed, adds thereto another tract of land, which he intends to include with the same estate, the addition can be demanded by the legatee. The same rule prevails in the case of alluvium, especially if, when the testator executed his will, he made the addition from another field which belonged to him. 3It should be considered what the rule would be if, after having made a will, he took something from the Titian Estate, and added it to land belonging to another; would the legatee be entitled to claim the part which was deducted, just as if it had ceased to form part of the Titian Estate, since it is by our intention, and not by the nature of the property, that the disposition of a tract of land or a house is determined. The better opinion is that what is joined to another tract of land should be held to have been deducted. 4If I should bequeath a ship, and state expressly that it was mine, and that I have entirely rebuilt it and only the original keel remains, it can, nevertheless, be properly claimed by the legatee.

Pomponius, On Sabinus, Book V. No more of a legacy is considered to belong to anyone than what remains after a deduction has been made of property given in order to comply with a condition. 1Where an heir is directed to give a certain article by way of legacy, and does not do so, because he was not obliged to deliver it to the legatee in the place where it was; and it should afterwards be destroyed without the fraud or negligence of the heir, the loss must be borne by the legatee. 2Ad Dig. 30,26,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 666, Note 1.Where, however, a part of his estate is bequeathed, it is doubtful whether a portion of the property itself, or the estimated value of the same should be given. Sabinus and Cassius think that the value should be paid; Proculus and Nerva hold that a part of the property bequeathed should be delivered. It is necessary, however, to come to the relief of the heir, so that he himself may determine whether he prefers to give a portion of the property itself, or to pay its estimated value. But in matters of this kind, the heir will be obliged to give a portion of the property which can be divided without any loss, but if it is naturally incapable of division, or if the division cannot be effected without loss, the estimated value of the property must, by all means, be paid by the heir.

Pomponius, On Sabinus, Book V. When something payable every year is bequeathed without adding the place where this is to be done the heir should pay it wherever it may be demanded, just as a demand can be made in the case of a stipulation, or a note.

Pomponius, On Sabinus, Book V. If I bequeath a statue, and afterwards add an arm to it taken from another, the entire statue can be claimed by the legatee.

Pomponius, On Sabinus, Book V. Where a tract of land is devised, a reservation may be made as follows, “I do not give or bequeath to So-and-So any other right attaching to the said land except the usufruct of the same,” in order that the usufruct may constitute the legacy. 1The usufruct, however, can be reserved, so that only the mere ownership will be left. 2In like manner, a part of the land bequeathed may be reserved.

Pomponius, On Sabinus, Book V. Where anyone makes a bequest as follows, “Let my heir pay such-and-such a sum to my wife, as long as she remains with my son,” and the wife, desiring to avoid her patron, leaves the neighborhood, but still retains the intention of keeping her children with her, Trebatius and Labeo say that she will be entitled to the legacy, because she should not be required to be every moment with her children; but the only question is whether she has the intention and design of not sending her son away, and whether it is not her duty to keep her son with her while he is being reared.

Pomponius, On Sabinus, Book V. Where the usufruct of property is bequeathed, the debts must be deducted from all the assets of the estate; as, according to the Decree of the Senate, there is no property which is not included in the legacy of an usufruct.

Pomponius, On Sabinus, Book V. Where the following provision was inserted into a will, “Let Stichus be free if he has transacted my business properly,” the degree of diligence displayed by Stichus must be considered with reference to its benefit to the master, and not to the slave; and he must also manifest his good faith by paying over any balance which may remain in his hands.

Pomponius, On Sabinus, Book V. If I stipulate as follows, “Do you promise to pay ten, or five aurei?” five will be due. And also, “Do you promise to pay on the Kalends of January, or February?” this is the same as if I had stipulated for payment on the Kalends of February.

Pomponius, On Sabinus, Book V. If I stipulate with you that a house shall be built, or if I have charged my heir to build a house, it is held by Celsus that an action cannot be brought in this case until the time has expired in which the house could have been built, nor will the sureties be liable before that time.

Pomponius, On Sabinus, Book V. Nothing is understood to “come into the hands of the heir” unless all the debts of the estate have been paid.

Pomponius, On Sabinus, Book V. That which is ours cannot be transferred to another without our consent.

Pomponius, On Sabinus, Book V. In all obligations in which the time of payment is not inserted, the debt is due immediately.