The Same, Digest, Book V. Lucius Titius appointed his mother and his uncle, who were at the same time his creditors, his heirs, and charged them to transfer to Septitius any of his estate which might remain at the time of their death. The said heirs consumed a considerable part of the estate of the testator, and left several representatives who knew that Septitius had possession of many effects left from the estate of Lucius Titius. The question arose whether the heirs of the mother and the uncle could recover from Septitius anything which Lucius Titius owed them. The answer was that they could not do so. Claudius: The reason for this is that the obligations of the estate, having been merged, were extinguished; but that there could be a recovery on the ground of a trust, for those persons were destitute of justice who were alleged to have consumed much of the property belonging to the estate.

Scævola, Digest, Book V. A father died intestate and left his daughter his heir. Her mother transacted her business, and caused her property to be sold by bankers, and all this was entered upon their accounts. The bankers paid over all the proceeds of the sale, and, after this, for about nine years, her mother attended to whatever was to be done in the name of her minor daughter, and finally, gave her in marriage, and delivered her property to her. The question arose whether the girl was entitled to any action against the bankers, when not she, but her mother, stipulated for the price of the property given to them to be sold. The answer was that if any doubt existed whether the bankers were released by law, after having paid over the money, it should be held that they were freed from liability. Claudius: For the following question with reference to authority to act remains, that is, whether the price of the property which the bankers knew to belong to the minor appeared to have been paid in good faith to the mother, who did not have the right of administration. Hence, if they were aware of this, they would not be released from liability, that is to say, provided the mother should prove to be insolvent.

Scævola, Digest, Book VII. A certain man sold Pamphilus and Stichus, and inserted in the contract of sale that, as he had sold the said slaves at a low price, they should be subject to no servitude but that of Seius, and that, after his death, they should remain in freedom. The question arose whether the slaves, concerning whom this agreement had been made between the purchaser and the vendor, would become free by mere operation of law, after the death of the purchaser? The answer was that, in accordance with the Constitution of the Divine Hadrian, promulgated with reference to this point, if Pamphilus and Stichus, the slaves in question, were not manumitted, they would not become free. Claudius says that the Divine Marcus decided that where a condition of freedom was inserted in the contract of sale, the slaves would become free in six months, even if they were not manumitted, although the vendor had deferred their freedom until the death of the purchaser.

The Same, Digest, Book XI. A certain man transacted his business through the agency of Pamphilus and Diphilus, his former slaves, and afterwards his freedmen, and by his will appointed them guardians of his son, providing that the business should be carried on in the same way that it had been done during his lifetime; and the said guardians administered the trust, not only during the minority of the son of their patron, but also after he had arrived at puberty. Diphilus rendered his account together with a statement of the profits of the business; Pamphilus, however, thought that it was not necessary to present an account of the profits, but merely to calculate the amount of interest ordinarily recovered in an action on guardianship. The question arose whether Pamphilus should have rendered his account in the same way as Diphilus, in order to comply with the intention of the testator. The answer was that he should have done so. Claudius Tryphoninus says that he should have done this in order not to obtain any pecuniary advantage from the guardianship. 1One of two guardians having died before his ward had arrived at puberty, the other, having brought an action against his heir in the name of the ward, recovered with interest all that had come into the hands of the deceased guardian from the guardianship. The question arose whether, in an action on guardianship which was brought by the ward after arriving at puberty, interest should be paid merely upon that portion of the money which had come into the hands of the deceased guardian by means of the guardianship, from the beginning; or whether interest on the principal as well as on the interest which had accumulated in the hands of the survivor, after the death of the former, should also be paid, and transferred with the principal. The answer was that if the guardian had used the money for his own benefit, interest on the entire amount should be paid; but if the money remained in the accounts to the credit of the ward, that only should be paid which he collected, or could have collected in good faith, and having been able to lend it at interest, neglected to do so; because if the guardian had received the principal and interest from any other debtor, all would, or should, constitute principal in his hands. 2In a case where the will appeared to have been broken, the testamentary guardians ceased to act in the administration of the trust, and a guardian for the ward was appointed by the Governor. The guardians appointed by will were, however, ordered to administer the guardianship conjointly with the one who was selected by the Governor to act in this capacity. The question arose whether the same testamentary guardians would be liable during the time which preceded the appointment of the other guardian, from the day when the will was opened, or from the date when they were ordered to take part in the administration. The answer was that they were in no way liable for acts performed during the time preceding the said appointment. 3A father having appointed his son, who was a minor, his heir, bequeathed two thousand aurei to his disinherited daughter, and appointed the same guardians for both of them. The question arose whether the guardians of the female ward would be liable in an action on guardianship for interest on the amount from the day on which the said two thousand aurei could have been separated from the other assets of the estate if they neglected to invest it. The answer was that they would be liable. 4The question arose whether the interest on money belonging to a ward which is due from guardians should be reckoned as principal when transferred to a curator, and whether the curator would be liable for interest on the entire amount. The answer was that all the money which comes into the hands of curators is subject to the same rule because all of it becomes principal.

Scævola, Digest, Book XV. A certain man having stated his intentions in general terms, added the following in his will: “I bequeath to Felix, whom I have directed to be free, the usufruct of the Vestigian Estate, as I think that he will be entitled to the property if he does not enter into a contest with my heir, but remains on good terms with him. I ask my heir to act in such a way that he and Felix may continue to be friends, for this will be of advantage to both of them.” The question arose whether Felix could during the lifetime of the heir exact the ownership of the land. The answer was that there was nothing in the facts stated which showed that the ownership of the land was left to Felix. 1A testatrix appointed her children by Seius, and her daughter by another husband, her heirs to equal shares of her estate, and made the following bequest to her mother: “I desire that the usufruct of my property be given to ælia Dorcas, my mother, as long as she lives, and that, at her death, it shall go to my children, or to the survivor of them.” The children of Seius died after entering upon the estate, and after the death of the mother, who was survived by the daughter of the testatrix, the question arose whether the usufruct would belong entirely to the daughter, or only in proportion to her share of the estate. The answer was that it would revert to those in whom the ownership of the land was vested. Claudius: Scævola believed that after the death of their grandmother, the usufruct itself would revert to the children in proportion to their shares of the estate, especially because they were appointed heirs to equal portions of the same. 2Where a husband left to his wife the usufruct of his houses and everything contained therein, except the silver plate, and, in addition, that of his lands and salt-pits; the question arose whether the usufruct of wools of different colors which were intended for commerce, as well as of the purple which was in the houses, were also due to the wife. The answer was that, with the exception of the silver plate and the articles which would be classed as merchandise, the legatee would be entitled to the usufruct of all the other property. 3It was also asked, as a considerable amount of salt had been found in the salt-pits, the usufruct of which was bequeathed, whether it also would belong to the wife, under the terms of the trust. The answer was that the testator had not intended to bequeath any property which was for the purpose of sale. 4The question was also asked, if the testator should have made the following provision in the same will, namely, “I ask you, my wife, to be content with the sum of four hundred aurei a year, which I desire you to receive for the term of fifteen years, out of the usufruct, and that you pay to my heirs anything in excess of said sum which may be derived from the said usufruct,” whether it should not be held that the testator had changed his mind with reference to the former bequest, and therefore that the wife would not be entitled to more than four hundred aurei a year out of the usufruct. The answer was that the inquiry was clearly explained by the words which were quoted. 5Lucius Titius, by his will, left the Tusculan Estate to Publius Mævius, and charged him to give half of the usufruct of the same to Titia. Publius Mævius rebuilt an old country-house which had fallen into decay through age, and which was required for the collection and preservation of the crops. I ask whether Titia should contribute to the payment of the expense of this, in proportion to her share of the usufruct. The answer was that if the legatee had rebuilt the house before he delivered the legacy of the usufruct to Titia, he could not be compelled to deliver it until she had paid her share of the expense. 6A man appointed his two daughters and his son, who was not of sound mind, his heirs, and bequeathed the usufruct of the share of his imbecile son to one of his daughters, in the following terms: “In addition to this, let Publia Clementiana take, by way of preferred legacy, the usufruct of the fourth part of my estate, to which I have appointed my son, Julius Justus, my heir; and I ask you, Publia Clementiana, in consideration of the usufruct of his share which I have bequeathed to you, to support and take care of him until he becomes of sound mind and recovers.” As the son continued in the same condition until the time of his death, the question arose whether the usufruct would be extinguished. The answer was that, according to the case stated, the legacy would continue to exist, unless it was clearly proved that the testator intended otherwise. 7A testatrix charged her appointed heir to pay ten aurei to her son every year, or to purchase land which would return a revenue of ten aurei annually, and assign the usufruct of the same to him; and the son, having received the land from the heir, rented it in compliance with the will of his mother. After his death the question arose, whether the amount remaining due from the tenants would belong to the heir of the son, who was the usufructuary, or to the heir of Seia, the testatrix? The answer was that there was nothing in the case stated which would prevent the balance of the rent from belonging to the heir of Seia. 8A certain man left the usufruct of a third part of his estate to one of his heirs, and the question arose whether the third of the money to which the property, after having been divided, amounted to according to the appraisement, should be paid to the usufructuary. The answer was that the heir had the choice of delivering either the usufruct of the property itself, or that of the appraised valuation of the same. 9It was also asked whether the taxes, in addition to what was due and required to be paid on the land or personal property might be deducted from the amount, so that payment would only be made of the remainder, if the heir should prefer to do this? The answer was that the third of the remaining sum could be paid.

Scævola, Digest, Book XVI. Aurelius Symphorus became surety for a certain guardian, and at his death made a bequest to the wards of the latter as follows: “I bequeath five aurei to Arellius Latinus and Arellius Felix, individually, when they shall have attained the age of fourteen years, at which time I desire to be paid to each one of them six denarii every month for their support, and twenty-five denarii every year for their clothing, with which legacy they must be content, since their guardianship has caused me no small amount of annoyance. I also charge my heirs to collect nothing from them on account of the guardianship, nor to retain anything by reason of this legacy.” The question arose, if the said heirs had paid out anything on account of the suretyship, whether they could recover it from the heir of the children, or the party for whom the testator had become surety. The answer was that, in accordance with the facts stated, the heirs of the latter appeared to have been solely charged not to claim anything on account of the guardianship which Symphorus had administered, and which might be due from the wards named Arellius. 1A man, having made a will, bequeathed a release to his debtors, and then having unsealed the will and reread it, he executed another in which he repeated the legacy as follows: “I confirm every bequest made in a will which I unsealed, and everything that is written therein.” After the estate had been entered upon under the second will, the question arose whether the debtors who had been released by the first will could demand to be discharged from liability for the sums of money for which they had become indebted after the making of the first will; and if the heirs brought an action against them, whether they could be barred by an exception on the ground of bad faith. The answer was that they would not be released. 2Titius made the following bequest to his debtor Seius: “I give and bequeath ten denarii to Seius. I also give five to him, in addition to this, all that he owes me both principal and interest.” He also, in a general clause, charged his heirs to give and deliver to each one of the legatees what he had left him. Seius afterwards borrowed more money from Titius. I ask whether this money, which was borrowed after the will was made, should also be understood to have been bequeathed to Seius. The answer was that, as the words used by the testator had reference to past time, it should not be held that the last sum borrowed was bequeathed. 3Titius, having made a will and appointed his sons his heirs, expressed himself as follows with reference to his father, who also had formerly been his guardian: “I desire my father Seius to be released from liability to any action on guardianship.” I ask in what way these words should be understood, that is to say, whether they mean that the money which had been obtained from the sale of property or the collection of claims, and which the father had converted to his own use, or lent at interest in his own name, should be paid to the children and heirs of the testator, or to his grandchildren. The answer was that this must be determined by the court having jurisdiction of the case, for the presumption of law is that on account of the natural affection entertained by a son, the father should be released from all liability, unless it can be proved by the heirs of the testator that his intention was otherwise. 4Mævius, in her will, desired one of her heirs to be released from liability to an action on guardianship, in the following words: “I do not wish an account of the guardianship which Julianus Paulus administered with Antistius Cicero, be required of him, and I wish him to be released from all liability on account of the same.” I ask, if any money derived from the guardianship should remain in his hands, whether it can be collected from him. The answer was that there was nothing in the case stated why money which belonged to the ward and remained in the hands of the guardian should be considered to have been bequeathed. 5A testator made the following provision in his will, “I wish my relative Titius to be released from every debt whatsoever that he owes me, and in addition I give him ten aurei;” and he inserted the following in a codicil: “I desire, in addition, my heir to release my relative and debtor, Titius, from the payment of interest on any money which he owed me during his lifetime. If my heir should attempt to collect the said interest from him contrary to my wishes, then I desire the said interest be paid to Titius by my heirs as long as he lives.” As the testator evidently had the intention rather to increase than to diminish the legacy, the question arose whether his heirs would, under the terms of the trust, be liable to Titius to compel them to release him from all indebtedness. The answer was that, in accordance with the facts stated, the legacy which the testator had bequeathed in the first place appeared to have been diminished. 6Where a testamentary bequest was made as follows, “I wish everything that Seius owes me, or for which I have pledged my faith for him, to be given to him,” I ask whether only that which was due at the time when the will was executed was bequeathed, or whether the amount which accrued afterwards by way of interest, was included in the legacy. The answer was that the testator intended that every obligation of the debtor should be cancelled by the trust. 7Stichus, having been manumitted by will, the testator left him a tract of land with all its equipment, together with other property, and added the following: “I forbid any account to be rendered by him, because he has the records in his possession.” The question arose whether Stichus would be obliged to pay over any sum of money remaining in his hands from the administration of his stewardship. I answered that Stichus was not liable on that ground. Claudius: No one, after his manumission, is liable for any act committed by him during servitude, and advice has been taken with reference to ascertaining the law as to what is due. Hence the heirs can retain the balance remaining in their hands, along with the peculium, or it can be deducted from the peculium if the latter is bequeathed. 8“I desire the hundred aurei which I deposited with Apronianus to remain in his hands until my son reaches the age of twenty years, and I forbid any interest on said money to be collected from him.” The question arose whether Apronianus could, under the terms of the trust, maintain that the aforesaid sum was not collected from him before the time prescribed by the testator. The answer was that, according to the facts stated, he could assert such a claim. 9A testator appointed his daughters his heirs, and charged them with a trust as follows: “My daughters, do not require Gaius Seius to render any account for the administration of my property, which he has managed in his bank, or out of it, up to the time of my death, and release him from all liability with reference thereto.” As the said Gaius Seius had charge of all the property of the testator at the time of his death, and had invested the same in his bank, and out of it, the question arose whether he would be compelled to render an account thereof to the heirs of the testator. The answer was that, in accordance with the facts stated, a release had been bequeathed, but the court must decide what was to be done under the circumstances. 10A testator appointed, as his heir, his former guardian, together with his own brother and certain other persons, and bequeathed to his said guardian ten aurei, which the latter had expended on his account and on that of his brother. The question arose whether the trust was valid, so far as the guardian was concerned. The answer was that, if the testator had left the amount which was due under a trust, the execution of the trust could not be demanded. 11The inquiry was also made if the bequest should prove to be void, so far as the guardian was concerned, whether it would be valid with reference to the brother of the testator; since it was for his benefit, as well as for that of the party who had administered his guardianship, also. The answer was that the legacy was valid so far as the brother was concerned, as he was released from his debt. 12The question also was asked whether the guardian should be heard if he agreed to accept the trust, provided that certain clauses of the will were allowed to stand, and others were rejected, alleging, as a reason, that the amount specified in the trust was less than he had advanced for expenses. The answer was that he was not prevented by the terms of the will from claiming everything which he could prove was due to him. 13A testator made the following bequest: “I direct the sum of fifty aurei, which I have borrowed from my wife on a note to be used in my business, to be paid to her by my heirs.” The question arose whether the trust would stand if the husband should prove to be actually the debtor of his wife. The answer was that if the indebtedness existed the trust would be void. 14The question also was asked whether the execution of the trust could be demanded, if the wife, having brought suit to collect the money due, should lose the case. The answer was that, according to the facts stated, she could demand the execution of the trust, because it was apparent that the debt was not due on any other ground.

Scævola, Digest, Book XVII. A testator, having appointed his son his heir, by a codicil charged him with the payment of ten aurei to Seia, and provided for a foster-child as follows: “I desire forty aurei to be given to my foster-child, Mævius, which sum I ask Seia to take charge of, and to pay to Mævius the interest on the same at the rate of five per cent per annum, until he reaches the age of twenty years; and I also ask her to take charge of him, and rear him.” The question arose, if Seia, after having received her legacy, should refuse or neglect to take charge of the money left for the benefit of the foster-child, whether she would be compelled to assume the obligation of furnishing support for him from the time of the death of the testator. The answer was that, according to the facts stated, she would be compelled to provide support, as she had been charged with the execution of the trust. It was also asked whether the heir of Seia would be required to furnish Mævius support until he reached his twentieth year? The answer was that he would be required to do so. 1A testator bequeathed to his concubine eight slaves belonging to his country seat, and directed her to provide them with food as follows: “I wish the said slaves whom I have bequeathed, as above stated, to be furnished with food by my heirs, just as they were during my lifetime.” As the slaves during the life of the testator were always employed in farm labor during harvest, and when the grain was threshed, and, with the exception of the steward in charge of the land at that time, never received any food provided by their master; the question arose whether the heir would be obliged to furnish the concubine, at that time also, that is to say during the season of harvest and threshing, with provisions for the said slaves belonging to the farm. The answer was that this must be left to the court having jurisdiction of the case. Claudius: This is reasonable, for if the slaves were to be employed in the same way by a concubine, as they had been by the testator, it would not be necessary for food to be furnished them during the time in question. If, however, they had been bequeathed for service in the city, food must be furnished them. 2Titia, at the time of her death, provided as follows in her will: “I wish the food and clothing which I have been accustomed to furnish them during my lifetime to be given to all my freedmen and freed-women.” As during her lifetime she only furnished food and clothing to three of them, which was shown by her accounts, the question arose whether her heir could be sued by the remaining freedmen, or whether he would only be liable to the three who were found by the accounts of the testatrix to have previously received food and clothing. The answer was that he would be liable to all.

Ad Dig. 32,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 9.Notes of Claudius on Scævola, Digest, Book XVIII. Where a will has been decided to be inofficious, the trusts therein contained are not due ab intestato because, as an insane person cannot make a will, it is held that nothing included in his last will is valid.

Scævola, Digest, Book XVIII. A certain person, at the time of his death, devised to his mother, Seia, a certain tract of land which already belonged to her, and requested her when she died to transfer the same to his wife Flavia Albina. After the death of the testator, the mother stated in the presence of a magistrate that she did not wish to do anything against the wish of her son, and that she was willing to transfer the land to Flavia Albina, if she would pay her two aurei a year, as income. She, however, neither delivered possession of the property, nor received the sum of two aurei a year. The question arose whether she could legally sell the land to a third party. The answer was that, if the inquiry was made with reference to the legacy and the trust, in accordance with the facts stated, what the testator left to his mother was not valid, and there was no obligation to comply with the trust, provided the mother had not received anything else by the will. 1A certain person appointed an heir, and left two hundred aurei to Mævius, charging him to pay a hundred to Glaucetyches and fifty to Elpidus. Afterwards Mævius, with the consent of the testator, sent letters to the two legatees, and paid them their legacies in accordance with the will of the testator. The testator afterwards made a codicil, and provided that if any instrument was produced which was contrary to the said codicil, it should not be valid. The question arose whether Mævius, who had received two hundred aurei, could be sued by the legatees under the trust, because the testator had changed his mind with reference to the letters above mentioned. The answer was that, according to the facts stated, an action could not be brought against Mævius, whether he had received the two hundred aurei, or the land instead of them. 2A testator appointed Seia and Mævius, his freedmen, heirs to equal portions of his estate, and substituted his ward Sempronius for Mævius. He then confirmed a codicil by which he provided as follows: “Lucius Titius to Seia, his heir, whom he appointed to inherit half of his estate, Greeting. I forbid Mævius, my freedman, whom I have appointed by my will heir to half of my estate, to receive the same; and, in his place, I desire Publius Sempronius, my ward, to be my heir to his share of my estate.” He also left to Mævius, whom he did not wish to obtain a share of his estate, a trust with the following censure: “I wish a hundred and fifty bottles of old wine to be given to Mævius, my freedman, who deserves nothing from me.” As it was the intention of the testator, in the first place, that half of his estate should, under all circumstances, belong to Sempronius, the question arose whether the trust expressed in the above-mentioned words should be considered valid, and of whom Sempronius could make the demand, as the codicil was addressed to a certain person. The answer was that the execution of the trust could be demanded of Mævius. 3A father gave to his emancipated son all his property with the exception of two slaves, but did not make a donation mortis causa, and stipulated with his son as follows: “Do you promise that the slaves which I have given you and the lands which I have transferred to you as a gift, together with such offspring as may be born to said slaves, and also the implements used for cultivating the soil, or whatever of said property may remain or be under your control, and which has not been fraudulently disposed of by you, shall at your death be returned to me, if I should be living, or delivered to anyone whom I may designate? I, Lucius Titius, the father, have stipulated this and, I, Lucius Titius, the son, have promised it.” The father, when dying, wrote to his son creating a trust as follows: “Lucius Titius, to his son Lucius Titius, Greeting. Confident of your filial affection, I charge you to pay to So-and-So and So-and-So, a certain sum of money, and I desire my slave Lucrio to be free.” The question arose whether the son, who could neither obtain prætorian possession of his father’s estate nor was appointed his heir, was bound to execute the trust, and grant freedom to the slave by the terms of the letter. The answer was that while the son could not enter upon the estate of his father, nor demand prætorian possession of the same, and although he did not hold anything belonging to his estate, an action could, nevertheless, be brought against him as a debtor by the heirs of his father, on the ground of the stipulation; and also one on account of the trust by those who were interested in its execution; especially after the Constitution of the Divine Pius, which provided for a case of this kind. 4A widow, about to be married, directed her two children, whom she had by her first husband, to stipulate for twenty aurei, the value of the dowry which he was about to give, if for any reason her marriage could be dissolved, so that her entire dowry could be paid to one or the other of them. One of the children having died during the marriage, the wife, by a letter, directed the survivor to be content with half of the dowry, without demanding any more of it, and to let the remaining half remain in possession of her husband. The woman having afterwards died, the question arose whether her husband could be sued for the entire dowry by her son, and whether the former could be protected by an exception on the ground of bad faith; and moreover whether an action would lie in his favor, under the terms of the trust, in order that the son might be compelled to release him from his share of the obligation. The answer was that the exception could legally be interposed, and that he could also bring suit under the terms of the trust. It was also asked whether a prætorian action, having reference to the remaining half of the property, would lie in favor of the heirs of the woman against her son. The answer was that, according to the facts stated, and especially after the letter written to the son, the action could not be brought. Claudius: Since she stated in her letter that her son should be content with half the dowry, it was held that by these words a trust for the benefit of the son was created. 5A testator made the following provision in a codicil: “I wish everything included herein to be carried out. I give to my lord, Maximus, five thousand denarii which I received by way of deposit from his uncle Julius Maximus, to be paid to him with interest when he becomes a man, which will amount to thirty thousand denarii, for I have promised his uncle under oath to do this.” The question arose whether the terms of the codicil were sufficient to authorize a suit to recover the money deposited, as their truth could not be established by any other evidence. I answered that, in accordance with the facts stated, what the testator wrote should be believed, as he alleged that he had bound himself by an oath to do this. 6Titia, a woman of high rank, who had always employed Callimacus to transact her business (the latter being incapable of taking under a will), having drawn up a will in her own hand, provided as follows: “I, Titia, have made this my will, and I desire that the sum of ten thousand denarii be given to Callimacus, by way of reward.” I ask whether this money can be claimed by the heirs of Titia, on the ground of its being a recompense. I answered that what is bequeathed in violation of law can not be collected. 7With reference to the following words of a will: “I wish payment to be made to all male and female slaves whom I have manumitted, or may manumit, either by this will, or by any other, together with their sons and daughters,” the question arose whether the heir was liable to those whom the testator had manumitted during his lifetime. The answer was that the provisions of the trust must also be executed so far that those who had been manumitted before the will was made, and their children of both sexes, were concerned.

The Same, Digest, Book XVIII. A certain testator bequeathed food and clothing to his freedmen. The question arose, as the testator had ordered the trust to be discharged by Moderatus, one of his heirs, whom he mentioned by name, whether Moderatus alone would be responsible so that his heirs would not be liable after his death. The answer was that his heirs would be liable. 1A testatrix left to her freedmen and freedwomen, whom she also manumitted by her will and codicil, suitable maintenance such as she had furnished during her lifetime, and she also directed certain lands to be given to all of them. The question arose whether the freedman of a freedman of the father of the testatrix, whom she was accustomed to address as follows: “To our freedman, the son of Rufinus,” should be admitted to share in the legacy. A letter was also sent by her to the magistrates of her native city, in which she requested that a salary be paid to him out of the public funds, for the reason that he was a physician, and stated that he was her freedman. The answer was that this point should be decided by the court having jurisdiction of the matter; and that the freedman could be admitted to share in the benefit of the trust, if the testatrix, during her lifetime, had provided him with support; otherwise he could not. 2A testator bequeathed ten aurei to his freedwoman, Basilica, which he wished to remain in the hands of his freedmen Epictetus and Callistus, to be paid to Basilica with interest at the rate of five per cent, until she reached the age of twenty-five years, so that she might be supported by the interest of the money according to her age. The question arose whether Basilica was entitled to support under another clause of the same will, by which the testator, in general terms, left food, clothing, and lodging to his freedmen and freedwomen. The answer was that, according to the facts stated, she would not be entitled to it, unless it could be proved that it was given to her along with the others. Claudius: Because the testator intended the interest of a sum of money, which he has especially bequeathed to her, as a preferred legacy, to be employed for her support. 3A certain individual, who had held all his property in partnership with his wife for more than forty years, left her and a grandson by a son of his, heirs to equal shares of his estate, and provided as follows: “I also bequeath to my freedmen, whom I have manumitted during my lifetime, what I have been accustomed to furnish them.” The question arose whether those slaves who had been manumitted by both of the parties while the partnership existed, and had become the freedmen of their joint-owners, could, under the terms of the trust, claim the entire amount which they had been accustomed to receive during the lifetime of the husband. The answer was that they were not entitled to any more than what the husband was accustomed to furnish as his share.

The Same, Digest, Book XVIII. A mother appointed her daughter her heir while she was still under paternal control, substituted her father Mævius for her, and made the following provision in her will: “Whoever my heir may be, I charge him not to sell any of my jewelry, or my gold or silver-ware, or the clothing, which I make use of; but let them be kept for my daughter.” The daughter having refused to accept the legacy, and the father, who was the heir under the substitution, having died intestate, the question arose whether she could still demand the execution of the trust. The answer was that, according to the facts stated, it appeared that the execution of the trust legally devolved upon the father’s successor. Claudius: Because, by the term “to keep,” which was used by the testatrix, the trust seems to have been deferred until the party for whose benefit it was created should be released from paternal control.

The Same, Digest, Book XIX. Ad Dig. 32,38 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 5.A father forbade his son, who was also his heir, to alienate the lands belonging to the estate, or to subject them to pledge; but charged him to hold them for the benefit of such children as he might have by legal marriage, and of his other relatives. The son, having paid one creditor of the estate, released certain tracts of land which his father had encumbered, and, in order to obtain the money to pay him, transferred the said lands to a second creditor, by way of pledge or hypothecation. The question arose whether the pledge was legally contracted. The answer was that, according to the facts stated, it was legally contracted. The question was also raised, if the son should sell land forming part of the estate in order to satisfy its creditors, whether the purchasers, who were ignorant of the existence of a trust, could legally buy the land. I answered that, according to the facts stated, the sale would be valid if there was no other property belonging to the estate out of which the debt could be paid. 1A certain man having appointed his two freedmen, Stichus and Eros, his heirs, provided as follows in his will, “I do not consent that the Cornelian Estate shall leave the hands of freedmen.” Stichus directed his female slave Arescusa to be free by his will, and bequeathed to her his share of said estate. I ask whether Eros, and the other fellow-freedmen of Stichus, can demand from the heir of the latter his share of the said estate, under the terms of the trust. The answer was that Arescusa was not included in the trust. 2A man appointed his daughter his heir, and inserted into his will, “I do not desire my house to pass out of the hands of my freedmen, but I wish it to belong to the slaves born in my family, whom I have mentioned in this will.” The question arose, after the death of the heir and the slaves born in the household of the testator, whether a single freedman who remained was entitled to the entire benefit of the trust. The answer was that, in accordance with the facts stated, only the proportionate share of the surviving freedman would belong to him. 3A testator, having left a tract of land to his son, forbade him to sell, give, or pledge the same, as long as he lived, and added the following clause: “If he should do this contrary to my will, I desire that the Titian Estate shall belong to the Treasury, and this is provided in order that the said Titian Estate may always be held in his name.” As the son retained the property in compliance with the will of his father during his entire lifetime, the question arose whether, after his death, the land would belong to the members of the family, and not to the heirs appointed by the son. The answer was that it may be inferred from the will of the deceased that the son, as long as he lived, could neither alienate nor pledge the land, but that he would have a right to make a will, and leave it even to foreign heirs. 4Julianus Agrippa, a member of the First Company of the Triarii, inserted the following into his will: “I do not wish my heir to pledge or alienate, in any way whatsoever, the remainder of such-and-such lands, or my suburban estate, or my house in the city.” His daughter, whom he had appointed his heir, left a daughter the grandchild of the testator, who, having held the property for a long time, died after appointing foreign heirs. The question arose whether the foreign heirs would be entitled to the said land, or whether it would belong to Julia, who was a grand-niece of Julius Agrippa. I answered that, as the above provision was only a mere precept, nothing had been done against the will of the deceased, which would prevent the title to the land from vesting in the heirs. 5A certain testatrix left a small tract of land, together with a shop, to fifteen of her freedmen, whom she mentioned by name, and added the following: “I wish my freedmen to hold this land under the condition that none of them will sell or give away his share, or do anything else which will cause it to become the property of a stranger. If anything is done, contrary to this provision, I desire their shares, together with the land with the shop, to belong to the people of Tusculum.” Some of her freedmen sold their shares to two of their fellow-freedmen, who were included in their number, and the purchasers having died, appointed as their heir Gaius Seius, a stranger. The question arose whether the shares which were sold would belong to Gaius Seius, or to their surviving fellow-freedmen who had not disposed of theirs. The answer was that, according to the facts stated, they belonged to Gaius Seius. It was also asked whether the shares which were sold would belong to the people of Tusculum. I answered that they would not. Claudius: Because the person of the actual possessor, who is a stranger, is not to be considered but those of the purchasers, who, in accordance with the will of the deceased, were of the number of those to whom she had permitted the property to be sold, the condition under which the land was granted to the people of Tusculum by the terms of the trust has not been fulfilled. 6A testator charged a legatee to whom he had bequeathed two thousand solidi under a trust, as follows: “I ask you, Petronius, to pay the said sum of two thousand solidi to the society of a certain temple.” The society having been subsequently dissolved, the question arose whether the legacy should belong to Petronius, or should remain in possession of the heir. The answer was that Petronius could legally demand it, especially if it did not devolve upon him to execute the will of the deceased. 7A mother appointed her sons her heirs, and added: “They must, under no circumstances whatever, dispose of the lands which will come into their possession as part of my estate, but they must reserve them for their successors, and furnish security to one another with reference to this.” The question arose whether the lands should be considered to have been left in trust by these words. The answer was that, in accordance with what was stated, they did not create a trust. 8A man having appointed an heir to half his estate, left him a certain tract of land as a preferred legacy, and added the following: “I ask you to consent to receive Clodius Verus, my grandson, and your relative as your co-heir to the Julian Estate which I have ordered to be given to you as a preferred legacy.” The question arose whether the grandson was entitled to half of the land under the terms of the trust. I answered that he was.

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.”

Claudius, On the Digest of Scævola, Book XXI. Freedom is legally granted by a trust as follows, “When you think proper to manumit him.”

The Same, Digest, Book XXI. Lucius Titius, expecting to die intestate, and having a wife and a daughter by her whom he had emancipated, inserted the following provision into a codicil, “This codicil has reference to my wife and my daughter. Therefore I ask that anything that I may leave you, or that you yourself have, will belong to you in common; and whatever I do not ask you to do, I am sure that you will do, through your affection for me.” The daughter acquired possession of the estate of her intestate father under the Prætorian Law. The question arose whether any part of the estate of Lucius Titius was due from the daughter to her mother, on account of the trust. The answer was that, in accordance with the facts stated, a part of it was due, if the wife was ready to place her own property in a common fund with that of her daughter. 1Mævia left two daughters her heirs, and in the same will she inserted the following provision: “I charge my heirs to leave all my property on deposit, without interest, with Gaius Seius and Lucius Titius, whom, if it should be lawful, I have appointed the curators of my estate, excluding all others, in order that they may transfer it to my grandchildren pro rata, when each one of them arrives at the age of twenty-five years; or if only one of them should reach that age, to transfer all my estate to him.” The question arose whether the trust should be executed by the appointed heirs for the benefit of Lucius Titius and Seius. The answer was that, in accordance with the facts stated, Lucius Titius and Gaius Seius could not claim the trust. 2A woman appointed three heirs, her brother Mævius to three-fourths of her estate, Seius to a sixth, and Stichus, the slave of the said Seius and the natural son of Mævius, to a twelfth; and she charged Seius to manumit Stichus, as follows, “I charge you, Seius, to manumit Stichus, and I have given you the means to do so.” She also made the following provision in a codicil: “If Seius should originate any controversy with reference to the twelfth of my estate, to which I have appointed Stichus the heir, I desire it to revert to my brother Mævius; and my brother, as I rely upon your good faith and recollection, I ask to deliver everything which may come into your hands from my estate to your son Stichus, and I charge you to do this under a trust.” As Seius entered upon the estate and on this account was compelled to manumit Stichus, the question arose whether he was obliged to transfer to Stichus, after his manumission, the twelfth of the estate to which the latter had been appointed heir. The answer was, that there was nothing stated to show that Seius was charged to transfer to him the twelfth part of the estate. 3Inquiry was also made, if Seius wished to raise any question with reference to the twelfth to which Stichus had been appointed heir, and Mævius should obtain the said twelfth from Seius under the terms of the trust, whether he must also transfer to Stichus the three-fourths of the estate to which Mævius himself had been appointed heir. The answer was that it was the intention of the testatrix that all of the estate which had come into the hands of Mævius in any way whatsoever should be transferred to Stichus. 4A father appointed his son and daughter his heirs, and substituted them for one another, and then substituted several heirs for them, in case neither of them should become an heir, and substituted the substitutes themselves for one another, by the following words, “I substitute the substituted heirs for one another.” He also charged any one of his children who might survive the others and die without issue before reaching the age of thirty years to transfer his estate to those whom he had substituted as the heirs of the said child. His son survived his sister, and died without issue before reaching his thirtieth year. One of the substitutes having died before the son, as his share would belong to the other substitutes who survived, the question arose whether ft would pass to them equally, or in proportion to the shares of the estate for which they had been substituted. The answer was that the substitutes were entitled to the benefit of the trust in proportion to their respective shares. 5Mævius appointed her son heir to five-twelfths of her estate, her daughter, Titia, to a fourth, and her other son, Septitius, to a third; and she charged the latter with a trust in the following words, “My son, Septitius, I ask you to transfer to your brothers all of my estate which may come into your hands, if, before reaching your twentieth year, you should die without leaving any children.” Septitius, having died without issue before reaching his twentieth year, the question arose whether the estate would belong to the brother and sister in proportion to their respective shares of the same, or whether it would belong to them equally. The answer was that it would belong to them in proportion to their respective shares. 6Titia, having been appointed sole heir to an entire estate and charged to transfer half of the same to Mævia, did so; she, however, refused to pay the amount for which a tract of land had been encumbered by the testator, but as the creditor sold the property she directed Seia to redeem it. The question arose whether Titia would be liable to Mævia under the terms of the trust. The answer was that, as the heir was charged to transfer the estate, there was nothing in what was stated to show that she should not be liable. Claudius: For she is obliged to pay Mævia half the value of the land, and as much more as had been necessary to satisfy the creditor. 7A certain man, having appointed Gaius Seius heir to half of his estate, Titia heir to a quarter of the same, and other persons heirs to the remainder, inserted the following provision into his will, “I charge you, Gaius Seius, at your death to give and deliver to Titius and Sempronius half of my estate, that is to say, the portion which I have given to you.” Both of the above-mentioned persons having accepted the estate, and Gaius Seius having subsequently died after appointing Lucia Titia his heir, the question arose whether the said Lucia Titia was obliged to transfer immediately half of the estate which Gaius Seius had been charged to deliver, or whether she should, at the time of her death, transfer the entire trust, not only that with which she was charged, but also that of Gaius Seius. The answer was that Lucia Titia was bound to immediately transfer half of the estate which Seius had received. 8A testator appointed his daughter his heir, together with his grandson, who was her son, and after making a pupillary substitution to the latter, inserted the following provision into his will: “I bequeath to Lucius Titius, my nephew, and my son-in-law, two hundred aurei, and I know that he will be content with this legacy, as I have left all my estate to my daughter and my grandson, whom I have appointed my heirs, so that the entire estate will belong to them in common, and I commend them to one another.” The daughter, having entered upon her father’s estate, separated from her husband. The question arose whether Titius, her former husband, could, under the terms of the trust, in his own name or in that of his son, acquire the property held in common, either while his said former wife was living or after her death. The answer was that, according to the facts stated, there was nothing given to the son-in-law under the trust except two hundred aurei. 9The same wife appointed her husband her heir, and charged him at the time of his death to transfer to their common son everything which he had received from her estate; it was also asked whether the property and effects which he had given by way of dowry, and which had been returned to the woman after the divorce, should be included in the trust. The answer was that all the property which the woman left was included therein. Claudius: Advice having been taken at another time with reference to the same question, the conclusion was that either the property should be transferred in accordance with the opinion above given, and should be computed as part of the estate of the woman; or, if this was not done because of a stipulation entered into with reference to the restoration of the dowry, the estate should be considered to have increased on this account. 10A woman who had a son and by him a grandson, both of whom were under the control of her husband, appointed the latter her sole heir, and charged him with a trust as follows, “If my husband, Titius, should be my heir, I ask and charge him, at the time of his death, to give and transfer everything which may come into his hands from my estate, in such a way that our son Gaius may have ten-twelfths of the same, and our grandson Seius two-twelfths; and I charge my heir Titius to see that this is done.” The father emancipated his son, lost his grandson, and then died, being survived by his son. The question arose whether the son, under the terms of the trust, by the first part of the will, was entitled to the entire estate of his father, and whether the following words, “In such a way that my son may have ten-twelfths of the same, and my grandson two-twelfths,” should, in compliance with the intention of the deceased, only be applicable where both the son and grandson were living at the time the trust became due; or, as the grandson was not living at that time, whether the following clause of the will would be of no force or effect. The answer was that, in accordance with the facts stated, it was evident that only ten-twelfths of the estate should be given to the son. 11An appointed heir, having been asked to transfer three entire estates to the wife of the testator, did so, after having deducted a fourth of the same. The question arose, if the wife had been asked by the testator to transfer the fourth part to his estate immediately, and the remainder after a certain time had elapsed, whether that portion which the heir had deducted from it as a fourth should be accounted for when the property was transferred under the trust? The answer was that the woman was only liable for the amount which she had received under the trust. 12A testator charged his heirs to transfer all of the third part of his estate, which might come into their hands, to Gaius Mævius, whom he had brought up, when the latter should reach the age of fifteen years, and added the following words: “In the meantime, you will employ the income of the amount which may come into your hands to keep him from poverty which amount should be lent at interest. In addition to this, I give to my said foster-child a certain slave, his foster-brother, born in my house, and another slave, a shoemaker, who can assist in supporting him with the proceeds of their labor.” As the heirs had provided the child with maintenance at a cost much below the amount of the interest of the sum which had been bequeathed for that purpose, the question arose whether they could be compelled to pay the balance for the entire time during which support was due, or only after he had attained his fifteenth year. And, as the slaves who had been specially bequeathed to him in order to contribute to his support with the proceeds of their labor had been immediately sold by their heirs, it was also asked whether their wages, with interest, could be claimed by the child. The answer was that, according to the facts stated, the intention of the testator seemed to have been that the entire income of the estate, as well as the wages of the slaves, should be delivered. 13A certain man having appointed several persons, including three freedmen, heirs to three-fourths of his estate, left them also some lands as a preferred legacy, and charged them “Not to alienate the said lands, so that whichever of them survived might acquire all for himself.” He afterwards charged one of the said freedmen to transfer to Titius everything that came into his hands from his estate, or his property, after having deducted the debts and legacies, and reserved twenty aurei for himself. The question arose whether he should also have deducted the third of the lands which had been devised to him and his fellow freedmen as a preferred legacy. The answer was that, according to the facts stated, the lands should not be transferred, as the testator himself had desired the legacies to be excepted. 14A husband, having appointed his wife heir to a third part of his estate, and charged her with several trusts, also bequeathed to her her dowry as a preferred legacy, in the following terms, “I wish the amount of her dowry which she brought me to be paid by my son to my wife, Seia,” and he charged his wife, at the time of her death, to leave to their common son, Titius, her share of the estate, and anything else which he had bequeathed to her. The question arose whether she would also be obliged to transfer to her son the amount of her dowry, together with the other legacies which she had received by virtue of the trust. The answer was that the testator did not intend that her dowry should also be transferred, unless it was otherwise established; and even if it was proved that he had intended this to be done, it could not be demanded, unless the amount which could be retained under the Falcidian Law was less than that of the dowry. 15An heir who was charged to transfer an estate to Septitius, when he reached the age of twenty years, in the meantime sold certain lands which the deceased had received by way of pledge; and having been sued by the debtor on account of the pledge, died, leaving Sempronius his heir, who transferred the estate to Titius before the case was decided. The question arose whether Sempronius himself should, nevertheless, have judgment rendered against him; for he could have retained the property in his hands, or could have exacted security for what he might be compelled to pay if he was defeated in court. The answer was that the judgment against the heir could still be executed after the delivery of the estate. 16The heir of a testator, who was charged to transfer the entire estate after his death, transferred only a small sum of money, which he alleged was all the property that belonged to the estate, to the beneficiaries of the trust who were entitled to it; and documents having subsequently been found, it appeared that there was four times as much in the estate as had been paid. The question arose whether suit could be brought against the heir for the remainder under the terms of the trust. The answer was that, in accordance with the facts stated, an action could be brought if no compromise had been made with him.

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.

Scævola, Digest, Book XXIII. Titia bequeathed freedom directly to certain of her male and female slaves, and then inserted the following provision in her will, “And I wish all the slaves attached to my personal service, whose names are inscribed in my registers, to be free.” The question arose whether Eutychia who, along with the other personal slaves, was emancipated at the time when the will was executed, and who, when the testatrix died, was married to a steward who was a slave, would obtain her freedom under the general head of “Slaves attached to my personal service.” The answer was that there was nothing to prevent her obtaining her freedom, even though at the time of the death of the testatrix she had ceased to be one of her attendants. 1Stichus received his freedom directly by the will of his master, and was accused of having fraudulently secreted much of the property of the estate. The question arose if, before he could demand his freedom, he should not restore to the heirs the property which he was proved to have taken. The answer was that, according to the facts stated, the slave in question should be free. Claudius: The point raised seems to have been finally disposed of, for the interest of the heirs will be sufficiently consulted by having recourse to the Edict concerning thefts. 2Lucius Titius provided by his will, “Onesiphorus shall not be free unless he renders an exact account of his administration.” I ask whether Onesiphorus can demand his freedom by virtue of these words? The answer was that, in accordance with what is stated, he is rather deprived of freedom than granted it.

Claudius, in the Thirtieth Book of the Digest on Scævola, remarks that if the party to whom an unlawful bequest was made should die during the lifetime of the testator, the bequest will not be forfeited to the Treasury, but will remain in the hands of him who was charged with the execution of the trust.