The Same, Digest, Book XIX. Ad Dig. 32,38 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 5.A father forbade his son, who was also his heir, to alienate the lands belonging to the estate, or to subject them to pledge; but charged him to hold them for the benefit of such children as he might have by legal marriage, and of his other relatives. The son, having paid one creditor of the estate, released certain tracts of land which his father had encumbered, and, in order to obtain the money to pay him, transferred the said lands to a second creditor, by way of pledge or hypothecation. The question arose whether the pledge was legally contracted. The answer was that, according to the facts stated, it was legally contracted. The question was also raised, if the son should sell land forming part of the estate in order to satisfy its creditors, whether the purchasers, who were ignorant of the existence of a trust, could legally buy the land. I answered that, according to the facts stated, the sale would be valid if there was no other property belonging to the estate out of which the debt could be paid. 1A certain man having appointed his two freedmen, Stichus and Eros, his heirs, provided as follows in his will, “I do not consent that the Cornelian Estate shall leave the hands of freedmen.” Stichus directed his female slave Arescusa to be free by his will, and bequeathed to her his share of said estate. I ask whether Eros, and the other fellow-freedmen of Stichus, can demand from the heir of the latter his share of the said estate, under the terms of the trust. The answer was that Arescusa was not included in the trust. 2A man appointed his daughter his heir, and inserted into his will, “I do not desire my house to pass out of the hands of my freedmen, but I wish it to belong to the slaves born in my family, whom I have mentioned in this will.” The question arose, after the death of the heir and the slaves born in the household of the testator, whether a single freedman who remained was entitled to the entire benefit of the trust. The answer was that, in accordance with the facts stated, only the proportionate share of the surviving freedman would belong to him. 3A testator, having left a tract of land to his son, forbade him to sell, give, or pledge the same, as long as he lived, and added the following clause: “If he should do this contrary to my will, I desire that the Titian Estate shall belong to the Treasury, and this is provided in order that the said Titian Estate may always be held in his name.” As the son retained the property in compliance with the will of his father during his entire lifetime, the question arose whether, after his death, the land would belong to the members of the family, and not to the heirs appointed by the son. The answer was that it may be inferred from the will of the deceased that the son, as long as he lived, could neither alienate nor pledge the land, but that he would have a right to make a will, and leave it even to foreign heirs. 4Julianus Agrippa, a member of the First Company of the Triarii, inserted the following into his will: “I do not wish my heir to pledge or alienate, in any way whatsoever, the remainder of such-and-such lands, or my suburban estate, or my house in the city.” His daughter, whom he had appointed his heir, left a daughter the grandchild of the testator, who, having held the property for a long time, died after appointing foreign heirs. The question arose whether the foreign heirs would be entitled to the said land, or whether it would belong to Julia, who was a grand-niece of Julius Agrippa. I answered that, as the above provision was only a mere precept, nothing had been done against the will of the deceased, which would prevent the title to the land from vesting in the heirs. 5A certain testatrix left a small tract of land, together with a shop, to fifteen of her freedmen, whom she mentioned by name, and added the following: “I wish my freedmen to hold this land under the condition that none of them will sell or give away his share, or do anything else which will cause it to become the property of a stranger. If anything is done, contrary to this provision, I desire their shares, together with the land with the shop, to belong to the people of Tusculum.” Some of her freedmen sold their shares to two of their fellow-freedmen, who were included in their number, and the purchasers having died, appointed as their heir Gaius Seius, a stranger. The question arose whether the shares which were sold would belong to Gaius Seius, or to their surviving fellow-freedmen who had not disposed of theirs. The answer was that, according to the facts stated, they belonged to Gaius Seius. It was also asked whether the shares which were sold would belong to the people of Tusculum. I answered that they would not. Claudius: Because the person of the actual possessor, who is a stranger, is not to be considered but those of the purchasers, who, in accordance with the will of the deceased, were of the number of those to whom she had permitted the property to be sold, the condition under which the land was granted to the people of Tusculum by the terms of the trust has not been fulfilled. 6A testator charged a legatee to whom he had bequeathed two thousand solidi under a trust, as follows: “I ask you, Petronius, to pay the said sum of two thousand solidi to the society of a certain temple.” The society having been subsequently dissolved, the question arose whether the legacy should belong to Petronius, or should remain in possession of the heir. The answer was that Petronius could legally demand it, especially if it did not devolve upon him to execute the will of the deceased. 7A mother appointed her sons her heirs, and added: “They must, under no circumstances whatever, dispose of the lands which will come into their possession as part of my estate, but they must reserve them for their successors, and furnish security to one another with reference to this.” The question arose whether the lands should be considered to have been left in trust by these words. The answer was that, in accordance with what was stated, they did not create a trust. 8A man having appointed an heir to half his estate, left him a certain tract of land as a preferred legacy, and added the following: “I ask you to consent to receive Clodius Verus, my grandson, and your relative as your co-heir to the Julian Estate which I have ordered to be given to you as a preferred legacy.” The question arose whether the grandson was entitled to half of the land under the terms of the trust. I answered that he was.

The Same, Digest, Book XIX. A testator left certain slaves for the guardianship of a temple, and charged his heir with a legacy for their benefit as follows: “I ask, and I charge you in memory of me, to give and furnish to my footmen whom I have left to take care of the temple, such-and-such a quantity of food, every month, and such-and-such an amount of clothing every year.” As the temple had not yet been erected, the question arose whether the slaves were entitled to receive their legacy from the day of the death of the testator, or from the time when the temple was completed. The answer was that it would be the duty of the judge to compel the heir to furnish the slaves with what was left to them until the temple should be built.

Scævola, Digest, Book XIX. A certain man left a house to all his freedmen, and added the following words, “In order that my freedmen may always reside in the said house, and that it may never pass away from persons bearing my name, and may belong to the last survivor; and, in addition to this I wish the Sosian Estate be given to my said freedmen.” The question arose whether the condition, “That it may never pass away from persons bearing my name,” was also applicable to the second bequest. The answer was that it did apply to it.

Ad Dig. 36,1,78Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 561, Note 3.The Same, Digest, Book XIX. Scævola gave it as his opinion that, if a father should appoint his son heir to his entire estate, and substitute another for him by a codicil, and the son should die before reaching puberty, although the substitution would be void because an estate cannot either be bequeathed or taken away by a codicil, still, by an equitable interpretation, it should be held that the mother who succeeded the intestate minor will be liable to the substitute under the terms of the trust. Where several persons are substituted for one another the substitution will be valid under the trust, and if one of them should die, the survivors will be entitled to the entire estate.