Scævola, Questions, Book VIII. Certain authorities hold (as I recollect) that in Vivianus a controversy is explained which arose between Sabinus, Cassius, and Proculus with reference to the question whether legacies given, or taken away by a codicil from persons who died after they were appointed heirs, were due to the substitutes; that is to say, whether the giving or the taking away of the legacies was as valid where they were provided for by a codicil, as they were when provided for by a will. It is said that Sabinus and Cassius answered that this was the case, and that Proculus dissented. The conclusion of Sabinus and Cassius, (as they themselves assert) is that the codicil is considered as part of the will, and that it sustains the observance of the law with reference to the delivery of the property. Still, I venture to say that the opinion of Proculus is the more correct; for a legacy is of no force or effect which is bequeathed to one who, at the time the codicil was made, was not in existence, even though he was living at the time when the will was drawn up; as it should belong to him to whom it is given. Then the question should be asked whether the legacy was properly bequeathed, so that the rule of law shall not be inquired into before the existence of the person is ascertained. In the case stated, therefore, the bequest is of no force or effect, if it was made or taken away by a codicil, after the death of the heir; for the reason that the heir referred to was not in existence, and the deprivation or the grant of the legacy becomes void in consequence. This would not apply where a substitute is given for an heir appointed to the entire estate, as the codicil would be confirmed by the appointment. 1Where two heirs have been appointed, and substitutes assigned, and one of them should die, the legacies will still be considered valid; but some discussion arose with reference to the co-heir, and whether he owed the entire legacy, where the bequest was as follows: “Whoever shall be my heir.” Or must it be held that all is not due, for the reason that the heir who was substituted should pay a portion of the same, even though he himself does not owe it? The same discussion may arise with reference to specified obligations; but I think that there is much more ground for the co-heir being liable for the entire legacy, because the party who was joined with him is no longer in existence.

Scævola, Questions, Book VIII. If a tract of land of the value of a hundred aurei should be left to Seia, in lieu of her dowry, and the same should be devised to Mævius, the woman can recover, in addition, the amount which the Falcidian Law will take from Mævius, because they are not, so to speak, joint legatees of the same, as there is more included in the dowry of the woman than in the remainder of the land.

Scævola, Questions, Book VIII. If, after Stichus has been manumitted, his peculium should be left to him, and a slave belonging to said peculium is bequeathed to Titius, Julianus says that the amount deducted from the peculium on account of the debt due to the master will be added to that received by him to whom the sub-slave was bequeathed.

Scævola, Questions, Book VIII. Reasons which immediately exclude the party from taking action must not be considered conditional with reference to trusts, but we can only consider those as such which cause delay with expense, where the legatee can receive his bequest after having furnished a bond. For we cannot say that the following cases are similar, namely, where property is bequeathed, “If the legatee will erect a monument,” and where it is bequeathed, “to enable him to erect a monument.”

Scævola, Questions, Book VIII. Where an heir is charged to sell a tract of land for five aurei, which is worth ten, there is no doubt that the five aurei will be subject to the operation of the Falcidian Law.