Terentius Clemens, On the Lex Julia et Papia, Book II. It seems to be most unjust that knowledge should injure another rather than its possessor, or that the ignorance of one person should profit another.

Terentius Clemens, On the Lex Julia et Papia, Book III. It is established that the grandfather and the grandmother of either a wife or a husband are included under the terms “father-in-law” and “mother-in-law.”

Terentius Clemens, On the Lex Julia et Papia, Book III. The statement of a mother as to the birth of her children, as well as that of a grandfather, must be accepted.

Terentius Clemens, On the Lex Julia et Papia, Book III. A son under paternal control cannot be forced to marry.

Terentius Clemens, On the Lex Julia et Papia, Book III. A curator may be appointed for the general management of property, or for the purpose of giving a dowry, and where a larger dowry is promised than is justified by the estate of the woman, the promise will be void by operation of law, because an authorization fraudulently granted is not held to be confirmed by the law. Still, the question should be asked whether the entire obligation is annulled, or only what was promised in excess of what should have been. It is more equitable to hold that that only is annulled which is superfluous. 1The said curator should deliver the property bestowed as dowry, but he cannot sell it to anyone, and give the price of the same, by way of dowry. But it may be doubted whether this is correct, for what if the ward cannot marry honorably unless she gives money as dowry, and this will be more advantageous to her? However, property which is given by way of dowry can very frequently be alienated, and the money become the dowry. In order that this question may be determined, if the husband prefers to receive the property as dowry, it is not necessary to inquire any farther; but if he is not willing to contract marriage unless money is given, as dowry, it then becomes the duty of the curator to appear before the judge who appointed him, so that, if proper cause is shown, even though the man is absent, he may permit the dowry to be constituted by the proceeds of the sale of the property.

Terentius Clemens, On the Lex Julia et Papia, Book III. It is not necessary to examine the legal capacity of anyone before an estate or a legacy belongs to him.

The Same, On the Lex Julia et Papia, Book III. Persons who are born in the suburbs of the City are understood to be born at Rome.

Terentius Clemens, On the Lex Julia et Papia, Book IV. Where anyone who has been designated an heir to the entire estate is for some legal reason incapable of acquiring it, and was appointed by a party who died insolvent, Julianus is of the opinion that he can inherit the whole estate, for the law is not applicable to the estate of one who was insolvent.

Terentius Clemens, On the Lex Julia et Papia, Book IV. Where anyone who is not capable of acquiring the entire estate of the testator is substituted for the son of the latter who has not yet reached the age of puberty, he can acquire the entire estate for the reason that he obtains it through the minor. Our Julianus holds that this opinion should be interpreted in such a way that the party in question will not be entitled to all the property of the testator. If, however, anything should subsequently be acquired by the minor from another source, or if he should be disinherited, the substitute will not be prevented from acquiring the estate, since he obtains it from the minor.

The Same, On the Lex Julia et Papia, Book IV. Where an heir is charged with a legacy to be paid to the wife of the testator instead of her dowry, with the intention of compensating her therefor, and she prefers to have her dowry rather than the legacy, the question arises whether an action to recover the dowry should be granted her against all the heirs, or only against the one charged with the payment of the legacy. Julianus thinks that the action should first be granted against the one who was charged with the payment of the legacy; for as she ought either to be content with her rights, or with the bequest of her husband, it is only just that he whom her husband charged with the payment of the legacy, instead of her dowry, should sustain the burden of the debt to the amount of the legacy, and that the remaining part of the dowry should be paid by the heirs. 1The same principle will apply if the woman, having been appointed heir in lieu of receiving her dowry, should reject the estate, in order that an action might be granted her against the substitute. This is correct. 2It may, however, seriously be doubted, where the legacy and the Falcidian Law are involved, whether he against whom alone an action to recover the dowry is granted will personally be obliged to pay the entire legacy, just as if all the heirs had paid the dowry, or whether the entire dowry should be included in the debts of the estate, because the action for its recovery is granted against him alone. This, indeed, seems to be the most reasonable conclusion.

Terentius Clemens, On the Lex Julia et Papia, Book IV. Children born to a woman by another person after the decease of her husband will still be allowed to receive a legacy, if the testator expressly stated that this should be the case. 1Where a bequest was made of more than the law allowed to a certain person who could not receive the entire amount, “if he should pay something to the heir,” the question arose whether what he gave for the purpose of complying with the condition could be acquired by virtue of the legacy, for the reason that he did not receive what he paid to the heir; or whether what he paid should be considered in excess of the legacy, and therefore that he will not be entitled to any more of the estate of the testator than he would have been if the legacy had been bequeathed unconditionally. Julianus very properly thinks that he will be entitled to as much more of the legacy as he may have paid for the purpose of complying with the condition, nor does it make any difference whether he was directed to make payment to the heir, or to a stranger; because after the calculation, which he is always obliged to make, is completed, no more will remain for him than the share authorized by the law. 2Where a man bequeaths an annual legacy to his wife under the condition that she shall not marry as long as she has children; what is the rule of law? Julianus answers that the woman can marry and take the legacy. If, however, the testator provided that she should not marry as long as her children were under the age of puberty, the rule would not apply; because the duty of caring for the children, rather than remaining in the state of widowhood, was enjoined by the testator.

Terentius Clemens, On the Lex Julia et Papia, Book IV. Whenever more is bequeathed to any person than he is legally entitled to receive, and the Falcidian Law is applicable, the amount due under it must first be estimated, so that, after what is excepted by the Falcidian Law has been deducted, the balance will be payable, if it does not exceed the amount specified by law.

Terentius Clemens, On the Lex Julia et Papia, Book V. Where, however, during the existence of the marriage, property belonging to someone else is given by a husband to his wife, it must be said that the wife is immediately permitted to begin to hold it by usucaption, because, although it was not given to her mortis causa, its usucaption will not be prevented. For the law, as established, has reference to those donations by which the wife is enriched, and the husband becomes poorer; and therefore a donation mortis causa may take place—just as is understood to be made between persons who are not married—with reference to property which can be acquired by usucaption, because it belongs to another.

Terentius Clemens, On the Lex Julia et Papia, Book V. Where a legacy is bequeathed under the following condition, “If she should not marry Lucius Titius,” Julianus says that the law will not apply. 1If, however, the testator had said, “If he should not marry Aricia,” it should be ascertained whether a fraud on the law has not been perpetrated; for if the said Aricia was a woman who could not easily find another man to marry, it should be held that what the testator had said for the purpose of evasion became void by operation of law, for a law which is beneficial to the State and which has been enacted for the purpose of increasing the population should be aided by a favorable interpretation.

Terentius Clemens, On the Lex Julia et Papia, Book V. The question arose, what would be the rule if a patron compelled his freedwoman to swear that she would not marry as long as her children are under the age of puberty? Julianus says that he would not be held to have acted against the Lex Ælia Sentia, as he did not enjoin her to remain in perpetual widowhood.

Ad Dig. 50,16,151Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 594, Note 1.Terentius Clemens, On the Lex Julia et Papia, Book V. An estate is understood to have been granted to anyone when he can acquire it by entering upon the same.

Terentius Clemens, On the Lex Julia et Papia, Book VIII. The same legal rights are accorded to the son of a patron, in the marriage of a freedwoman belonging to his father, as are granted to the patron himself. This rule applies where the son of one patron, during the lifetime of another, marries the freedwoman of both. 1It is settled that where a patron marries his freedwoman who has disgraced herself, he will not be entitled to the advantages conferred by this law, because he married her in violation of its provisions. 2Where one son marries a freedwoman who has been allotted by will to another, the former will not be entitled to the same rights as a patron. And, in fact, he will have no control over her, because the Senate transferred all the rights belonging to a patron to him for whom his father intended her.

Terentius Clemens, On the Lex Julia et Papia, Book VIII. It is evident, when the freedwoman ceases to be married, that her services can be demanded, as almost all authorities hold.

The Same, On the Law of Julia et Papia, Book I. If he who is under the control of a patron should compel the woman to swear, or to enter into a stipulation not to marry against the consent of the patron, unless the latter releases the woman from her oath, or her promise, he will come within the provisions of the law, for he himself will be held to have acted in bad faith. 1Patrons are not prohibited by the Lex Ælia Sentia from receiving the wages of their freedmen, but they are forbidden to compel them to surrender them. Therefore, if a freedman voluntarily pays his wages to his patron, he will have no recourse against him under this law. 2This law does not apply to a freedman who has promised certain days of labor, or a sum of money, as by performing labor he can become free. Octavenus approves this opinion, and adds that a patron is understood to have compelled his freedman to pay him the wages of his labor, where his acts show that his intention was only to obtain the said wages, even if he stipulated for days of labor.

Terentius Clemens, On the Lex Julia et Papia, Book IX. It has been decided that a patron who has accused his freedman of a capital crime is excluded from prætorian possession of his estate contrary to the provisions of the will. Labeo thinks that the accusation of a capital crime should include both those which involve the penalty of death, and those punished by exile. An accuser is understood to be one who gave the name of the alleged guilty person, unless he asks that he receive immunity. Servilius says that this was also the opinion of Proculus.

Terentius Clemens, On the Lex Julia et Papia, Book IX. When a son has been disinherited by his father, the question arises whether the grandsons by said son are excluded from prætorian possession of the estate of a freedman of their grandfather. This point must be disposed of by deciding that as long as the son is living, and his children remain under his control, they cannot be admitted to prætorian possession of the freedman’s estate to prevent those who are excluded from obtaining possession in their own names, or from acquiring it through the intervention of others. If, however, they have been emancipated by their father, or have become their own masters in any other way, they can obtain prætorian possession of the estate of the freedman without encountering any obstacle. 1If the son of the freedman rejects the estate of his father, it will be to the advantage of the patron.

Terentius Clemens, On the Lex Julia et Papia, Book IX. If anyone who has creditors should manumit several slaves, the grants of freedom to all of them will not be void, but only the first ones emancipated will become free; provided enough remains to satisfy the claims of the creditors. This rule was frequently stated by Julianus. For instance, where two slaves are manumitted, and the creditors will be defrauded by granting freedom to both, but not by granting it to either, one of them will not obtain his freedom; and this is generally he who is manumitted second, unless the first one designated is of greater value; and it will not be necessary to reduce the second to slavery if the value of the first will discharge the indebtedness, for, in this instance, the one which is mentioned in the second place will alone be entitled to his liberty.

The Same, On the Lex Julia et Papia, Book X. If the daughter of the patron belongs to an adoptive family, she can obtain prætorian possession of the estate of a freedman of her father.

Terentius Clemens, On the Lex Julia et Papia, Book XI. When a child is in its mother’s womb at the time of its father’s death, it is understood to be legally in existence.

Terentius Clemens, On the Lex Julia et Papia, Book XI. If I should bequeath anything which you owe me, either to yourself or to a third party, and you should pay it to me, or be released by me for any other reason, the legacy will be extinguished. 1Hence, it was held by Julianus that, even if a creditor should become the heir of his debtor and should afterwards die, the legacy will be extinguished; and this is correct, because an obligation is, as it were, extinguished by confusion, just as it is by payment. 2Where, however, a legacy is bequeathed under some condition, and the heir comes in beforehand and collects the debt, another opinion must be rendered; because, while the condition is still pending, the prevention of the payment of the legacy to the legatee, if he is still living and entitled to receive it, does not depend upon the inclination of the heir, nor, if the legatee should not be legally capable of taking it, can the heir prevent the party entitled to the benefit of the legacy from obtaining the same.

The Same, On the Lex Julia et Papia, Book XII. If a father makes such a provision for his disinherited son that his right over his freedman remains unimpaired, the disinheritance will not prejudice his rights in this respect.

Terentius Clemens, On the Lex Julia et Papia, Book XII. Where a freedman is assigned under a condition, or after a certain period, everything will remain unchanged while the condition is pending, or the day has not arrived, just as if the freedman had not been assigned. Therefore, if, in the meantime, he should die, his estate, both under the Civil Law and the Prætorian Edict, will belong to all the children. 1Where a freedman has been assigned to one child absolutely, and to another conditionally, the one to whom he was assigned absolutely must be said to alone have the right of a patron over him, while the condition is pending.

The Same, On the Lex Julia et Papia, Book XIII. Where a tract of land worth a hundred aurei is devised as follows, “If he should pay a hundred aurei to my heir or to anyone else,” the legacy is held to be very valuable, for it may be more to the benefit of the legatee to have the land than a hundred aurei, since it is often to our interest to acquire land adjoining our own, for a sum even above its just appraisement.

Terentius Clemens, On the Lex Julia et Papia, Book V. Where property has been bequeathed to me absolutely, and has also been left to my slave either absolutely or conditionally, and I reject the legacy, and then, the condition having been fulfilled, I wish to obtain what was bequeathed to my slave, it has been established that the bequest of half the legacy is void, unless someone should claim that the condition was that the slave should be living, for then the legacy which I once desired to obtain will be entirely mine; which seems to be the more equitable opinion. This rule also applies where the same property is bequeathed to two of my slaves.

Terentius Clemens, On the Lex Julia et Papia, Book XV. It is established that where the choice of certain articles is bequeathed, it cannot be made before the estate is entered upon, and if it should be made, it will be void.

Terentius Clemens, On the Lex Julia et Papia, Book XVI. If the slave of a person who is incapable of taking under a will should be appointed an heir, and is manumitted or alienated before entering upon the estate by order of his master, and commits no act for the purpose of evading the law, he himself will be admitted to the succession. If, however, his master can take but a certain share of the estate, the same rule will apply to that portion which he cannot take under the will. For, generally speaking, it makes no difference where the question is raised whether someone cannot take anything under a will, or can only take a part of the estate.

Terentius Clemens, On the Lex Julia et Papia, Book XVII. When a posthumous child is appointed an heir under some condition, and the condition is fulfilled before he is born, the will will not be broken by the birth of the said posthumous child.

The Same, On the Lex Julia et Papia, Book XVII. Where the choice of two slaves is bequeathed to Titius, and the remaining ones are left to Mævius; if the first legatee should fail to make his selection, all of the slaves will belong to Mævius, under the term “the remaining one.”

Terentius Clemens, On the Lex Julia et Papia, Book XVIII. Where the services of a slave are bequeathed, I have always been taught, and Julianus holds, that the use is understood to be given.

Terentius Clemens, On the Lex Julia et Papia, Book XVIII. When freedom is taken away by law, it should either be considered as not having been granted, or as having afterwards been taken away by the testator himself.