Scævola, Digest, Book XX. A certain man by whom it was provided that, if he died without issue, whatever came into his hands should be left in charge of his sister as trustee, died after having appointed a posthumous heir, to whom he substituted others. The question arose whether the sister or her agent should be permitted to examine the woman, and watch over her delivery, in accordance with the terms of the Edict, since the wife of the deceased declared herself to be pregnant. I answered that in a case of the kind with reference to which the inquiry was made, it could be held that the solicitude manifested by the person charged with the trust ought to be respected, and that the request should be granted, if proper cause was shown.

Scævola, Digest, Book XX. A grandmother appointed a curator for her grandchildren, after having bequeathed them certain property in trust. The question arose whether the curator could be compelled to act? The answer was, that he was not a lawful curator, but, as something was given him by will, he would be liable under the trust, even if he should not undertake the curatorship, unless he refused to accept what had been given him, or was ready to surrender it. 1The question also arose whether such a curator was obliged to give security to the grandchildren. I answered that he was not; but, as the surrender of the trust could be demanded of him, he should furnish security for its faithful administration.

The Same, Digest, Book XX. “I wish a hundred aurei to be given to my freedman, Pamphilus, in addition to what I have left him by my codicil. Pamphilus, I know that all that I leave you will eventually come into the hands of my children, for I bear in mind the affection which you entertain towards them.” I ask whether the testator, by the use of the above-mentioned words, charged Pamphilus with the trust to pay to the children of the deceased a hundred aurei after his death? The answer was that, according to the facts stated, it could not be held, so far as the language of the testator was concerned, that Pamphilus was charged with a trust to pay the hundred aurei; but as it would be extremely dishonorable for the good opinion of the deceased to be contradicted by his freedman, the hundred aurei which had been bequeathed to him must be paid to the children of the testator. The Divine Marcus, Our Emperor, rendered the same decision in a similar case. 1The following question was proposed for determination. A certain individual who had no children or relatives, and was reduced to extremity by disease, having called his friends together, told them in the presence of Gaius Seius, who occupied the same house with him, that he desired to leave him certain lands which he mentioned; and Gaius Seius drew up this statement, which was witnessed, and the testator himself, having been interrogated, as to whether he had made it, answered “most assuredly,” which was inserted into the instrument. The question arose whether the lands which were designated would belong to Gaius Seius under the terms of the trust. The answer was that there could be no doubt whatever on this point, as the trust was valid. 2A father appointed his two daughters heirs to equal shares of his estate, and left a tract of land to one of them as a preferred legacy, and requested the other to pay her sister twenty aurei, and he also requested this same daughter to transfer to her said sister her half of the land. The question arose whether she was obliged to pay the twenty aurei, or not. I answered that she was not obliged to do so.

The Same, Digest, Book XX. A man bequeathed to his freedmen, whom he had manumitted by his will, ten aurei, payable monthly, for their support; and afterwards, in general terms, bequeathed by a codicil seven aurei to all his freedmen, payable monthly for food, and ten aurei, payable annually, for the purpose of providing them with clothing. The question arose whether the heirs were charged with one trust under the terms of the will, and with another under the codicil, for the benefit of the freedmen. The answer was that, in the case stated, there was reason why the heir should not furnish what was left by the codicil, for by the bequests contained in the latter, the testator seems to have revoked those relating to food which he had bequeathed by his will. 1Ad Dig. 34,1,18,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.A testator having manumitted his slaves by his will, left them, in trust, food for their annual maintenance, if they should reside with his mother. The mother survived her son three years, but did not furnish the freedmen either food or clothing, because they did not demand the execution of the trust; and the daughter, who subsequently became her mother’s heir, during the fourteen years which she lived, was not applied to for payment of the legacy by the slaves. The question arose whether, after the death of the daughter, the freedmen could demand from the last heir, for the past, as well as for the future time, the legacies which had been left to provide them with food and clothing. The answer was that, if the condition had been complied with, there was nothing in the case stated to prevent them from presenting the claim. 2Ad Dig. 34,1,18,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.A testator wished Stichus to be manumitted by his heirs, and directed food and clothing to be furnished him by Seius, if he should reside with him, and then he added the following words: “I also ask you, Seius, when you reach the age of twenty-five years, to purchase a commission in the army for him, if he should not leave you before that time.” As Stichus obtained his freedom immediately, and Seius died before he reached the age of twenty-five years, the question arose whether the commission in the army should be purchased for Stichus by those who acquired the estate of Seius; and if it was decided that this should be done, whether it should be purchased without delay, or at the time when Seius would have completed his twenty-fifth year, if he had survived. The answer was that, as was decided that the commission should be purchased, it was not necessary for this to be done before the time fixed by the testator had expired. 3Where his posthumous children, together with the father and mother of a testator, were appointed his heirs, and then he, having made a substitution, manumitted the slaves who were his stewards, and bequeathed them their peculium, as well as an annual sum for their subsistence, and also left legacies to certain of his freedmen, and to strangers; and finally, a daughter having been born to him, after his will had been executed, he inserted the following provision in a codicil: “I wish that any property which, previous to this time, I have bequeathed to anyone to be given to them; and I ask them to deliver the third part of the same to my daughter Petina.” A pupillary substitution having been made, he desired the freedmen who had not reached puberty and whom the testator had charged his parents to liberate, to receive, in addition to the bequest of food and clothing, as much again as he had left them in money. As his daughter survived the opening of the will and the codicil, but afterwards died, and transmitted to her heirs the trust by which she was charged to deliver the third part of the legacy, the question arose whether the third part of the food and clothing could also be claimed under the terms of the trust. The answer was that it could not. 4It was likewise asked whether the third part of the property bequeathed in trust by the codicil would belong to the daughter. The answer was that it would not. Inquiry was also made whether the provision included in the substitution by which the freedmen who had not yet reached puberty would be entitled to as much again as they had been left in money, and the third part of the legacies bequeathed by will having been deducted, the calculation should be made so that two-thirds of the amount, in addition to what was left by the codicil, would be payable; the third part of which legacies the testator desired should belong to his daughter. The answer was that the entire amount mentioned in the substitution should be paid. 5A certain testator left food and clothing in trust to his freedmen, and added: “I desire that they, my freedmen, shall reside where my body is buried, so that every year they may celebrate the anniversary of my death, at my tomb, in the absence of my daughters.” The question arose whether support should be furnished to one of the freedmen who, after the death of the testator, did not present himself to the heirs, and refused to reside near the tomb. The answer was that it should not be furnished him.

Scævola, Digest, Book XXX. A testatrix left several articles to her foster-child, and afterwards revoked the bequest of some of them, and charged her heir to substitute others in their stead, among which she desired twenty pounds of gold to be bestowed, as follows: “In addition to this, I give and bequeath, and I wish twenty pounds of gold to be given to her.” She also added: “And I charge you, Attius, above all, to care for and protect your sister Sempronia, with due affection, and if you think that she has returned to a good mode of life, leave her when you die the abovementioned twenty pounds of gold; and, in the meantime, pay her the income of said sum, that is to say, interest on the same at the rate of six per cent.” She afterwards transferred the same twenty pounds of gold to her legatee, Mævius, by a codicil, and charged him with a trust as follows: “I desire the twenty pounds of gold which I have left to my foster-child, Sempronia, by my will, to be given to Mævius, after taking security from him to pay five denarii every month out of said sum to the said Sempronia, as long as she may live, in addition to a hundred and twenty-five denarii for her clothing; and this I beg you to do. I am certain that you, Mævius, on account of your affection, will charge your heir at your death to carry out my wishes with reference to my foster-child.” The question arose whether Mævius, as legatee, would, at the time of his death, be compelled to pay the twenty pounds of gold to Sempronia, as the heir Attius had been charged to do. The answer was that, according to the facts stated, he could not be compelled to pay her the twenty pounds of gold; but that the other things with which he had been charged for the benefit of the foster-child must be furnished by Mævius and his heir, as long as the said foster-child lived. 1Titia, by her will, appointed her freedwoman Seia, who was also her foster-sister, heir to a twelfth part of her estate. She left certain lands to her freedman Pamphilus under a trust, among which were certain fields of large extent, designated as being near Colon; and she afterwards, by a letter, also gave other property to the same freedman, in which letter she referred to Seia and Pamphilus as follows: “To my heirs, Greeting. I wish that everything stated below be carried out, as well as any provisions which I have already made with reference to Pamphilus. If my foster-sister, Seia, should not become my heir to the share of my estate to which I have appointed her, I wish all the lands near Colon to be given to her.” As the freedwoman Seia rejected the share of the estate left her by will, and selected what had been given to her by the codicil the question arose, if Pamphilus should claim the same land under the terms of the trust, whether he could be barred by an exception on the ground of bad faith. The answer was that the trusts having reference to the lands, that is to say to those which were situated near Colon, were considered to have been transferred to the freedwoman Seia. 2A testator requested his heirs that, if he should die in a province, sixty aurei should be given to Lucius Titius, in order that he might take charge of his body, and bring it back to his country. He also added the following: “If anything remains of said sum of money, I wish it to be given to him.” On the same day he addressed a codicil to his heirs, in the following terms: “If I should happen to die either in the province or on my journey, I ask you to have my body taken to Campania, and placed in the tomb of my children.” The question arose whether the testator, by this provision, tacitly deprived Lucius Titius of anything remaining out of the above mentioned sum of sixty aurei. The answer was that he should be considered to have been deprived of it. 3A father appointed his daughters by his will heirs to unequal portions of his estate, and by the same will made a division of almost all his property, and then he added the following: “All my remaining property, as well as any liabilities attaching to my estate, shall belong only to my two daughters namely, Prima and Secunda, or whichever of them survives.” He afterwards, by a codicil, made a very different division of his property among them than he had done by his will, and some of it he did not leave specifically to anyone. The question arose whether the daughters, Prima and Secunda, could, under the terms of the will, claim that they alone were entitled to the property which was not specifically bequeathed to anyone by the last disposition which their father made of his estate. The answer was that he did not appear to have revoked his entire will, but had only made changes with reference to certain property which he had disposed of in a different manner. 4A mother made the following provision in a letter concerning a legacy and a share of her estate bequeathed to her son: “As I know that my son Priscillianus is at the point of death, I consider it only just and proper to bequeath to my brother Marianus, and my husband Januarius, equal shares of that portion of my estate which I have given to my son; and, in case he should die I do give and bequeath, and I desire to be delivered to them anything else, in addition, which I may leave to him.” Priscillianus lived until after the will was opened, and then died of the same disease. The question arose whether the legacy left to him would, under the terms of the trust, belong to Januarius and Marianus. The answer was that it could be held that, if the son should die of the same disease from which he was suffering at the time that the legacy would be absolutely transferred to those with respect to whom the inquiry was made.

The Same, Digest, Book XX. An heir, having been charged by the testator to accept a hundred sesterces, and surrender his share of the estate to Titia, his co-heir, died after entering upon the estate; and Titia also died before paying the hundred sesterces. The question arose whether the heir of Titia, by tendering a hundred sesterces, could, under the terms of the trust, obtain her share of the estate. The answer was that the heir could not comply with the condition. Claudius: The opinion of Scævola is stated with a great deal of ability, where the law is clear; but, still, some doubt may arise whether in the present instance a condition was not imposed.

The Same, Book XX. A testator charged each one of his children of both sexes, whom he had appointed his heirs, if any of them should die without issue, to leave his or her share of the estate to his or her brother or sister, and if there should be no brother or sister, to leave it to his or her mother, and added the following words, “I charge you, my dear children, with this trust until you have brought up two children.” If anyone of the said heirs should have two children, although they might not survive, the question arose whether his or her heirs would be compelled to execute the trust. The answer was that, according to the facts stated, they would be considered to have been released from the obligation of the trust. 1Titius appointed his grandsons by his daughter, and his daughter, who was insane, his heirs, and charged the said daughter with the trust that if she should die without issue, the share of his estate which had been given to her should pass to her co-heirs. Titius gave his insane daughter in marriage, and she brought forth a daughter after the death of her father. The said insane daughter, having died leaving a daughter as the issue of this union, the question arose whether the co-heirs were entitled to the benefit of the trust. The answer was that as, according to the facts stated, the heir had left a daughter, the trust was not due. Claudius: For though the marriage with the insane woman was not legally valid, still it was sufficient to enable the condition to be complied with.

Scævola, Digest, Book XX. While a party to a suit was making a defence before Sempronius, the judge, it was provided by a stipulation that the amount decided to be due by Sempronius, the judge, should be paid. The plaintiff appealed from his decision, and the case having been taken before a competent court on appeal, and a decision rendered against the defendant, the question arose whether the stipulation would become operative. The answer was that, according to the facts stated, it would not become operative by law. Claudius: For this reason the following is added in a stipulation, “Or whoever may be substituted in his place.”