Scævola, Digest, Book XIV. A testator appointed Sextia heir to a fourth of his estate, and Seius and Marcius, his sister’s sons, heirs to the remaining three-fourths. He then substituted Sextia for Marcius, and Marcius for Sextia, and left Marcius certain property as a preferred legacy. Marcius rejected the share of the estate to which he was appointed heir, and, having died intestate, his property passed to his legitimate brother Seius. The question arose whether Sextia could, under the substitution, also claim for herself from the heir-at-law what had been left to Marcius as a preferred legacy, on the ground of the substitution. The answer was that, according to the facts stated, Sextia was not substituted, so far as the legacies which had been bequeathed to Marcius were concerned.

Scævola, Digest, Book XIV. A testator, having confirmed his codicil by his will, devised a tract of land to his freedmen, and forbade it to be alienated, but desired it to belong to the children and grandchildren of his freedmen. He afterwards added the following words: “I wish to be paid by them to my heir, out of the profits of said land, ten aurei every year, for the term of thirty-five years after my death.” As the heir appointed by Titius died before the expiration of the term of thirty-five years, the question arose whether the heir of the heir would, by the words above quoted, be entitled to the benefit of the trust for the remainder of the time. I answered that he would, unless it could be proved by the freedmen that the testator had in view the thirty-fifth year of the heir as the time for the extinction of the legacy. 1A testator left to Stichus, whom he had brought up, a hundred aurei, and ten aurei payable every month in addition, and then, after appointing Sempronia heir to a third of his estate, charged her as follows: “I request you, Sempronia, my sister, to take from the bulk of my estate the legacies which I have left to my foster-children, and keep them until they are entitled to the same.” The question was asked if Sempronia, who was charged with the trust, should refuse to accept the estate before having taken possession of the money left to the foster-children, in accordance with the will of the deceased, whether she would be liable to an action on account of the legacy brought by Stichus before he reached the age of twenty-five years? The answer was that such an action would lie.

The Same, Digest, Book XIV. A testator who had appointed his son heir to a part of his estate left him also two tracts of land with the slaves and all the implements belonging to the same. He also left several things to his wife, as well as the slaves Stichus and Damas. But, having ascertained that there was no steward in charge of one of the estates devised to his son, he sent Stichus, and appointed him superintendent of the cultivation of the said land, and gave him charge of the accounts relating to the same. The question arose whether Stichus would belong to his wife or his son. The answer was that, as the testator was mindful of the matters for which he was provided in his will, Stichus, as steward, would belong to the land to which he was transferred, and that the wife could not claim him under the terms of the trust. 1A certain individual bequeathed four fields to his mother, whom he had appointed heir to a portion of his estate, and charged her to deliver two of said fields to his father-in-law; and afterwards, by a codicil, he suppressed the trust which he had created for the benefit of his father-in-law. The question arose whether the said two fields would belong to the mother as a preferred legacy. I answered that there was nothing in the case stated why they should not belong to her. 2Seia, by her will, made a bequest of five pounds of gold. Titius accused her of having ordered the death of her father. After the accusation was made, Seia executed a codicil, but did not deprive her stepson Titius of the legacy previously mentioned, and she died before the accusation was heard. The case having proceeded to trial, it was decided that the father of Titius did not lose his life on account of any criminal act of Seia. As she did not by the codicil deprive Titius of the legacy which she had given him by will, I ask whether it should be paid to Titius by the heirs of Seia. The answer was that, according to the facts stated, it was not due to them. 3A certain individual, among other things, bequeathed his peculium to his daughter, who was under his control. After he had made his will, he collected money belonging to his daughter from a debtor of the latter, and used it on his own account. I ask whether the daughter can, on this ground, bring an action against her father’s heirs. The answer was that if she can prove that he did this without the intention of depriving her of the legacy, she can bring the action.

Ad Dig. 36,2,31Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Scævola, Digest, Book XIV. A certain man having appointed his wife heir to a sixth part of his estate appointed a substitute for her, and charged his heirs by a trust, if his wife should not be his heir, to give her her dowry and certain other property; and the husband having died, the wife died also before the condition was complied with, and before she had entered upon the estate. The question arose whether the trust took effect at the time of her death, and whether her heirs were entitled to the benefit of it. I answered that if the wife died before entering upon the estate, they were entitled to the benefit of the trust from the time of her death.