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.