Ad legem Iuliam et Papiam libri
Ex libro IV
Dig. 28,5,73Terentius Clemens libro quarto ad legem Iuliam et Papiam. Si quis solidum a lege capere non possit et ex asse sit institutus ab eo qui solvendo non est, Iulianus ex asse eum heredem esse respondit: legi enim locum non esse in ea hereditate quae solvendo non est.
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.
Dig. 28,6,6Terentius Clemens libro quarto ad legem Iuliam et Papiam. Si is, qui ex bonis testatoris solidum capere non possit, substitutus sit ab eo impuberi filio eius, solidum ex ea causa capiet, quasi a pupillo capiat. sed hoc ita interpretari Iulianus noster videtur, ut ex bonis, quae testatoris fuerant, amplius capere non possit: quod si pupillo aliquid praeterea adquisitum esset aut si exheredato esset substitutus, non impediri eum capere, quasi a pupillo capiat.
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.
Dig. 31,53Idem libro quarto ad legem Iuliam et Papiam. Cum ab uno herede mulieri pro dote compensandi animo legatum esset eaque dotem suam ferre quam legatum maluit, utrum in omnes heredes, an in eum solum, a quo legatum est, actio ei de dote dari debeat, quaeritur. Iulianus in eum primum, a quo legatum sit, actionem dandam putat: nam cum aut suo iure aut iudicio mariti contenta esse debeat, aequum esse eum, a quo ei maritus aliquid pro dote legaverat, usque ad quantitatem legati onus huius aeris alieni sustinere reliqua parte dotis ab heredibus ei praestanda. 1Eadem erunt dicenda, si heres instituta pro dote omiserit hereditatem, ut in substitutum actio detur: et hoc verum est. 2Sed de legatis et legis Falcidiae ratione belle dubitatur, utrum is, in quem solum dotis actio detur, legata integra ex persona sua debeat, perinde ac si omnes heredes dotem praestarent, an dotem totam in aere alieno computare, quia in eum solum actio eius detur: quod sane magis rationem habere videtur.
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.
Dig. 35,1,62Terentius Clemens libro quarto ad legem Iuliam et Papiam. Sed si hoc specialiter expressit testator, etiamsi ex alio post mortem suam liberos procreaverit, nihilo minus eam ad legatum admitti. 1Cuidam non solidum capienti amplius lege concessae portionis relicta est, si heredi aliquid dedisset: quaeritur, an id, quod condicionis implendae causa dederat, consequi ex causa legati possit (quasi non capiat id quod eroget) an vero id extra sit nec ideo magis ex bonis testatoris amplius capiat, quam capturus esset, si sine condicione legatum esset. et Iulianus rectissime scribit tanto amplius eum capturum, quantum condicionis implendae causa dare eum oportet, nec interesse, heredi an extraneo dare iussus sit, quia computatione facta, quae semper in persona eius introduceretur, non amplius lege concessae portionis ad eum subsideret. 2Cum vir uxori ‘si a liberis ne nubserit’ in annos singulos aliquid legavit, quid iuris sit? Iulianus respondit posse mulierem nubere et legatum capere. quod si ita scriptum esset ‘si a liberis impuberibus ne nubserit’, legem locum non habere, quia magis cura liberorum quam viduitas iniungeretur.
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.
Dig. 35,2,67Terentius Clemens libro quarto ad legem Iuliam et Papiam. Quotiens cuidam amplius legatum sit, quam ei capere liceret, et lex Falcidia locum haberet, prius Falcidiae ratio habenda est, scilicet ut subducto eo, quod lex Falcidia exceperit, reliquum, si non excedat statutam lege portionem, debeatur.
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.