The Same, Digest, Book XXII. A husband bequeathed to his wife the usufruct of the third part of his property, and the ownership of the said third part if she should have children. The heirs accused the wife of forging the will and of other crimes, by which they were prevented from claiming the legacies. In the meantime, a son was born to the woman, and the condition of the legacy was thereby fulfilled. The question arose, if it was established that the will was not forged, should the crops be delivered to the owner? The answer was that they should be.

The Same, Digest, Book XXII. A husband appointed his wife and a son whom he had by her, his heirs, and charged his wife with a trust as follows: “I ask you, my wife, not to claim any share in the Titian Estate, as you know that I myself bought all of said property, but on account of the affection and respect which I owe you, I have let it be understood that we had equal shares in this purchase which I made with my own money.” The question arose whether he intended the said land to belong entirely to his son. The answer, with reference to the clause in question, was that the testator intended the said land to be included in his estate, as constituting a portion of all of it, so that his wife and son should each be entitled to half of the land as constituting part of the same. 1Where the following provision was inserted in a will, “I wish my house, with the garden adjoining it, to be given to my freedmen,” and under another head was written, “I wish my heir to transfer to my freedman Fortunius, in the house which I have given to my freedmen, the room in which I was accustomed to live, and the storeroom connected with the same,” the question arose whether the heir of the testator was obliged to pay the legacy to Fortunius, although the entire house had been previously devised to all the freedmen. The answer was that he was not required to do so. 2A testator made the following provision in a codicil, which he confirmed by his will: “I bequeath to all my freedmen, including those whom I have manumitted during my lifetime, who are manumitted by this codicil, or whom I may hereafter manumit, and their wives, sons and daughters, except such as I have specifically bequeathed, to my wife by the terms of my will.” He afterwards charged his heirs as follows: “I desire my heirs to give to my wife, their co-heir, my lands in Umbria, Etruria, and Picenum, together with all their appurtenances, including the country or city slaves, and those who transact my business, with the exception of such as have been manumitted.” The question arose whether Eros and Stichus, his slaves who had transacted the business of the testator in Umbria and Picenum until the death of the latter, and who were the natural sons of Damas whom the testator had manumitted during his lifetime, should be delivered by the heirs to Damas, in compliance with the terms of the codicil, or whether they belonged to Seia, his wife, according to the terms of his letter. The answer was that, under the codicil, they belonged to their natural father, in conformity with the dictates of natural affection. 3A testatrix left to Felicissimus and Felicissima, to whom she had granted freedom, the Gargilian Estate, including the house, and, in another part of her will, she bequeathed to her son Titius, whom she appointed heir to a fourth of her estate, a legacy, as follows: “My son, Titius, in addition to your share of my estate, take the legacies which your father, Præsens, and Cælius Justus, your father’s brother, left me.” The question arose, as the Gargilian Estate had been devised to the testatrix by her husband, that is to say, by the father of her son Titius to whom the land was due under the terms of the trust, whether the said land should belong only to Titius, the son, or to Felicissima, or to all three of them. The answer was that it was not probable that the testatrix, who left nothing to Felicissimus and Felicissima except what was contained in a special bequest, intended that the legacy should, by a general statement, be transferred to her son to whom she had also left a portion of her estate. 4A man left certain slaves, who were children, by will as follows: “I wish five of my young slaves to be given by my heirs to my little lord Publius Mævius, the said slaves to be under the age of seven years.” The testator died many years after he executed the will. The question arose of what age the slaves that were due to Mævius should be, whether they were those who, at the time when the will was made, were under seven, or whether those should be given who were ascertained to be under that age at the time of the death of the testator. The answer was that those seemed to be designated who were of that age when they were bequeathed by the testator. 5A testator made a bequest to his concubine of the following legacy, among other things: “I wish the tract of land which I have on the Appian Way to be given to her, with the steward in charge of the same, and his wife and his children.” The question arose whether the testator intended that the grandchildren of the steward and his wife should belong to the concubine. The answer was that there was nothing in the case stated which would prevent them being given to her. 6A certain man left a legacy in trust to Mævius as follows: “I bequeath whatever I possess in the city of Gades.” The question arose whether, if he had any property in the suburb adjoining the city, this also would be due to Mævius under the terms of the trust. The answer was that the meaning of the words will also permit this extension. It was also asked, in the same case, certain notes having been found in the account-book of the testator, he being in the habit of loaning money in his native city of Gades, or in the environs thereof, and having left the property which he had in said city, whether Mævius would be entitled to the said notes on account of a trust having been created by the words above mentioned. I answered that he would not be entitled to them. The question also arose whether money found in a chest in his house at Gades, or which had been obtained by the collection of different notes and deposited there, would be due under the terms of the trust. The reply was that this question had already been answered. 7A testator, by his will, in which he appointed his wife and his son his heirs, left a hundred aurei to his daughter in trust, to be paid when she married in the family, and he added the following provision: “I charge you, my daughter, when you marry in the family, and as often as you may marry, to permit your brother, and your mother Seia, each to stipulate for the return of half of the dowry which will be bestowed, if you should die during your marriage without leaving either a son or a daughter, or a divorce should take place before your dowry is returned, or satisfaction is otherwise given you with reference to it.” The father gave his daughter, who was a virgin, in marriage, and presented her with a dowry. A divorce having taken place, he received the dowry, and gave her with it in marriage to another man, stipulating that the said dowry should be returned either to himself or to his daughter. The testator died during her second marriage, leaving the same will, and his son and wife became his heirs. The husband of the girl having subsequently died, she obtained her dowry, and married a third time in the presence, and with the consent of her brother and mother, who even increased her dowry, and neither of them made any stipulation with reference to it. The son and the daughter afterwards became the heirs of their mother, and then the daughter died, leaving her husband her heir. The question arose, as the girl had not received the money composing her dowry as a legacy from the heirs of her father, but, being the mother of a family, had recovered it after the death of her second husband, whether her heir could be held liable to the brother of the deceased, under the terms of the trust, for the money which he could have received if he had made a stipulation with reference to the dowry. The answer was that, according to the case stated, he would not be liable. 8Where the heir or legatee of a testator is requested to adopt someone, and the following words are added, “If he should do otherwise, let him be disinherited,” or, “Let him lose his legacy,” the question arose, if he should not adopt the person mentioned, whether an action would lie by virtue of the trust in favor of the person who was not adopted. The answer was that a trust by which a party is requested to adopt anyone is not valid. 9“I wish the tract of land which is situated in such-and-such a district to be transferred to Mævius, Publius, and Gaius for a price fixed by an arbiter, and, the purchase-money having been added to my estate, that my remaining heirs shall promise, under the penalty of a hundred aurei, to be liable for double the amount in case of eviction, in order that the said land may not either wholly, or in part, ever pass into the hands of Seia, or her descendants, in any way whatsoever.” The question arose whether the legacy was valid, because Publius wished to purchase it, and Gaius refused to consent. The answer was that he who wished to profit by the trust could claim half of the land which was devised, even though the other declined to avail himself of his right. Inquiry was also made as to what security ought to be furnished, in accordance with the will of the testator, for the amount to be paid to each of the heirs. The answer was that security should be given in proportion to the share to which they were entitled under the terms of the trust. 10A testator bequeathed to his sister certain slaves whom he designated in his will, and charged her to deliver the same slaves to his children when she died. The question arose whether the children born of said slaves should be delivered to the children who were the heirs of the deceased, after the death of the legatee, or whether they would belong to her heirs. The answer was that those which were born afterwards were not included in the terms of the trust. 11A father owed his daughter a certain sum of money under a trust created by the will of her husband, and, when the girl married again, her father gave a dowry to her husband without having been directed to do so by her, and stipulated for the return of the dowry to himself, if his daughter should die without issue. The woman had a daughter, and the question arose whether the father could be required to execute the trust. The answer was that if the daughter had not ratified the dowry which was given her, the right to demand the execution of the trust would survive. Inquiry was also made, if the father should be willing to release the obligation arising out of the stipulation, whether the right to demand the execution of the trust would be denied to the woman. I replied that this had already been answered, and if the father had given the dowry in order that the woman might sanction it, and she did not do so, he could bring suit to recover the dowry in question. 12A woman appointed her husband Seius, her heir, and substituted her foster-child, Apia, for him; and charged her heir to transfer her estate to her said foster-child after his death, and if anything should happen to her foster-child before that time, she directed him to deliver her said estate to Valerian, her nephew. The question arose, if Seius, during his lifetime, should deliver to the foster-child whatever he had obtained from the estate, whether he would be held to have done this in accordance with the will of the deceased; especially when the said foster-child had been substituted for him. The answer was that, if Apia should die during the lifetime of Seius, the latter would not be released from the execution of the trust which had been left for the benefit of Valerian. 13Scævola held that when an appointed heir is asked to deliver an estate to another person, when he wishes to do so, he will not be compelled, in the meantime, to execute the trust. Claudius: For a trust of this kind is considered to have been created after his death. 14A testator requested his appointed heir to deliver his entire estate to his wife, Seia, and charged her as follows: “I ask you, Seia, to deliver to Mævia, our dear child, everything which may come into your hands from my estate, except what I have bequeathed to you as above mentioned; and I forbid any security to be taken from Seia, as I know that she will rather increase, than diminish my estate.” The question arose whether Mævia could immediately demand the execution of the trust by Seia. The answer was that there was nothing in the case stated which would prevent her from doing so.

The Same, Digest, Book XXII. A certain person left the following bequest to his freedman: “I desire the fiftieth of my entire income derived from the tenants of my lands and the purchasers of the crops, according to the custom of my household, to be paid to Philo, as long as he lives.” The heirs sold the land from which the said fiftieth of the income was derived. The question arose whether the fiftieth of the interest on the price, which, according to the custom of the province, was ordinarily collected, was due? The answer was that, although the land had been sold, only the fiftieth of the income thereof was bequeathed. 1A testator charged his freedman, to whom he had left a tract of land that returned an income of sixty aurei a year, with the payment of ten denarii to Pamphila annually, under the terms of a trust. The question arose, if the Falcidian Law should diminish the legacy of the freedman, whether the annual allowance bequeathed to Pamphila under the trust would also be considered to be diminished; as the bequest to Pamphila was derived from income which would have to be paid, even if the Falcidian Law reduced the tract of land by half. The answer was that, in accordance with the facts stated, the bequest to Pamphila would not be diminished, unless the intention of the testator was proved to be otherwise. 2A certain testator having appointed his son heir to three-fourths of his estate, and his wife to one-fourth, charged his son to deliver his estate to his stepmother, and requested her “to take good care of his young son, and pay him ten aurei until he reached his twenty-fifth year, and, after he had attained that age, to transfer to him half of the estate.” The son having deducted the fourth part of the estate to which he had been appointed heir, delivered her share to his stepmother, and afterwards reached the age of twenty-five years. As the stepmother was entitled to the three-fourths, and one twenty-fourth, and one forty-eighth of the entire estate, the question arose whether she should surrender half of this share to her stepson? I answered that, according to the facts stated, she would have to deliver to him enough to make up half the estate; in addition to what the son had deducted by reason of the Falcidian Law. Since the father seemed to have had in view the tender age of his son, inquiry was also made whether the stepmother would be required to deliver to him the profits for the intermediate time. The answer was that, in accordance with the facts stated, she would be required to do so. 3Lucius Titius, by his will, bequeathed a hundred aurei to the city of Sebasta, his birthplace, in order that athletic contests might be celebrated there every other year in his name, with the interest of said sum, and added the following words: “If the city of Sebasta is unwilling to accept the money which I have bequeathed under the above-mentioned condition, I desire that my heirs shall, under no circumstances, be liable for the same, but that they keep it for themselves.” The Governor of the province afterwards selected certain good notes from the assets of the estate, and delivered them to the city as its legacy, and, after his decision, the city collected the money due on most of the claims. The question arose, if the city should not subsequently comply with the conditions of the will, whether the legacy would belong to the sons who were the heirs of the deceased. I answered that the city could be compelled to obey the wishes of the testator, and if it did not do so, the heirs could demand the amounts which had been settled by the debtors either in cash or by renewal, and so far as those claims which were not paid to the city, and of which the former obligation was not released by renewal were concerned, the heirs were not prevented from demanding from the debtors what they owed. 4Largius Euripianus rendered an opinion, after his advice had been requested in a case where a patron had left a certain sum of money to his foster-child, and afterwards made the following provision with reference to it in his will: “I wish the money which I have bequeathed to my freedman and foster-child, Titius, to remain in the hands of Publius Mævius, until he reaches the age of twenty-five years, and that, for the use of the same, interest shall be collected at the rate of three per cent. As for the amount of the expenses to be paid to him, Publius Mævius will estimate them, for he should entertain for him the affection of a father.” The question arose whether the heirs, when they paid Publius Mævius the money, should require him to give security. The answer was since no mention of security being required was made in the will, the heirs would be sufficiently safe if they paid the money to Publius Mævius, in accordance with the wishes of the deceased. Therefore neither Titius, the foster-child, nor his heirs should be heard, if they brought an action against the heirs of the patron on the ground that they did not exact security for, by the payment of the money; and the above-mentioned heirs will be released from liability to Titius, as well as to his heirs, unless Publius Mævius should cease to be solvent during the lifetime of the testator, for, in this case, security must be required of him. 5A father appointed his two sons his heirs to equal portions of his estate, an older one, and a younger who was still under the age of puberty, and he left to the latter certain lands as his share, and also bequeathed him a certain sum of money payable when he reached the age of fourteen years, which he placed in the hands of his brother, as trustee, in the following words: “I charge you, Seius, to give to your mother a certain sum of money annually, to enable your brother to pursue his studies from his twelfth to his fourteenth year, and, in addition to this, to pay the taxes assessed against him until you deliver him the property; and I desire that the income of said lands shall belong to you, until your brother reaches the age of fourteen years.” The elder brother having died and left a foreign heir, the question arises whether the condition of receiving the income every year, as well as the charge of paying the annual allowance which, if Seius had lived, he would have been compelled to pay, will be transmitted to his heir; or whether the entire amount of the legacy must be immediately delivered to the minor and his guardians. The answer was that, according to the facts stated, the testator is understood to have, as it were, addressed the guardian, so that, at the expiration of the guardianship, the allowance which he had ordered to be paid, and the income which was to be collected, should terminate; but as the elder brother was overtaken by death, everything that had been left by the testator would, at the time when his brother died, immediately pass to the minor and his guardians.

The Same, Digest, Book XXII. A man left to his wife the usufruct of his country-house for the term of five years after his death, then he added the following words, “After the said term of five years has elapsed, and the usufruct is extinguished, I wish the said land to belong to So-and-So and So-and-So, my freedmen.” The wife having died within the five years, the question arose whether the said freedmen were entitled to claim the ownership of the property immediately, or after the expiration of the five years, because the testator had left it at the expiration of that time. The answer was that the land would belong to the freedmen after the expiration of the five years.

Scævola, Digest, Book XXII. A testator appointed his son and his wife his heirs, and disinherited his daughter, but left her a legacy of a hundred aurei, payable when she married in his family, and made the following provision in his will: “In addition to this, I bequeath to her ten slaves, to be selected by her mother, Sempronia, whom I wish to be selected by the said Sempronia, my wife, immediately after my estate is entered upon. I desire the said slaves to be given to my daughter when she marries in the family, and if any of the slaves should die before she marries, then I wish others, also to be selected by her mother, Sempronia, to be given in their stead, until the full number of said slaves come into her hands, but if her mother, Sempronia, should not select them, then she herself can choose those whom she may desire.” The mother having made the selection, the question arose whether the offspring of the slaves born before her marriage would belong to the girl, in addition to the original ten. The answer was that, as the testator had deferred the legacy of the slaves until the time of the marriage, any of the offspring of the female slaves born in the meantime would not belong to the daughter. It was also asked whether her mother, Sempronia, would be entitled to the use and enjoyment of the said slaves before the marriage of the daughter. The answer was that there was nothing in the case stated why they should not entirely belong to the mother.

The Same, Digest, Book XXII. A certain person left to Pardula, whom he had manumitted by his will, a shop and an apartment, together with the merchandise utensils and furniture contained therein, and also a warehouse for wine, along with the wine, vessels, utensils, and slaves in charge of the same, which he had been accustomed to have with him. The question arose whether Pardula could claim the entire legacy, as the house which contained the apartment that had been devised was burned during the lifetime of the testator, and had been rebuilt in the same place, after the lapse of two years, and the warehouse which had been left to the same party had been disposed of by the testator, but the sale of the wine had been deferred in order to obtain a higher price. The answer was that that portion of it with reference to which the testator had changed his mind was not due.

The Same, Digest, Book XXII. The following provision was inserted into a will, “I desire that food, and whatever else I was accustomed to give my freedmen, shall be furnished them by my heirs.” One of the said freedmen, with the consent of his patron, was absent for four years before the death of the testator, for the purpose of transacting his private business, and on this account he did not, at the time of the testator’s death, receive the food which he formerly had received. Nevertheless, the patron left him a legacy of five aurei by the same will, just as he did to the others, whom he had manumitted during his lifetime. The question arose whether this freedman was also entitled to the food and other articles which were bequeathed to the remaining freedmen. The answer was, why not?

Scævola, Digest, Book XXII. A testator left the tenth part of his estate, his slaves, and certain silver articles which he specified, to his wife, and he charged his heirs to give her his rings and his clothing, just as if they were her own private property. If these things did not actually belong to her, the question arose whether she would be entitled to them by virtue of the legacy. The answer was that it appeared that the testator intended to bequeath them to her, unless the contrary could be proved by the heir. 1The same testator, under the terms of a trust, charged his wife to transfer to their common foster-child whatever came into her hands by his will. The question arose whether the heir would be compelled to deliver to the said foster-child any property which the testator knew belonged to his wife, and which he directed to be given to her. The answer was that, if the articles were her own property, the heir would not be required to deliver them, but if they were acquired by virtue of the legacy he would be compelled to give them up. 2A certain woman under a trust inserted in her will and afterwards by a codicil, left specially several kinds of clothing and silverware which she stated that she had made herself, or had in her possession. The question arose whether any other articles not found among the assets of the estate would belong to the legatees. The answer was that only those which were found there would belong to them.

Scævola, Digest, Book XXII. Aithales, a slave, to whom freedom and a portion of his estate was left by the will of Vetitus Callinicus, his master, under the terms of a trust, with which the heirs appointed to eleven-twelfths of the estate were charged; stated to Maximilia, the daughter of the testator, who was appointed heir to a twelfth of the estate, that he could produce evidence to show that the will of Vetitus Callinicus was forged; and, having been interrogated by Maximilia before a magistrate, he declared that he would prove in what way the will had been forged. Maximilia signed an accusation of forgery against the writer of the will and Proculus, her co-heir, and the case having been heard, the Prefect of the City decided that the will was not forged, and ordered that the twelfth of the estate belonging to Maximilia should be forfeited to the Treasury. The question arose whether Aithales was entitled to his freedom, and if the trust should be executed after this decision. The answer was that, in accordance with the facts stated, this was the case.