Scævola, Opinions, Book III. Lucius Titius provided by his will as follows: “Where I have given anything to any one of my children, whether I made him a present of it, or merely permitted him to use it, or where he has acquired any property for himself, whether it has been given to him or bequeathed to him, I desire that he may take and hold the same as a preferred legacy.” The father had kept, in the name of one of his sons, an account book of debts, and it was afterwards decided and held that what remained in said book in the name of his son was due to the latter; but not what had been already collected and placed by his father among the assets of his estate. I ask whether the claims of the son which his father had collected before his will was made, and which, after it had been made, he still loaned in the name of his son, would belong to the latter, according to this decision. I answered that any sum which the father had collected in the name of his son, and had afterwards invested in the same way, would belong to him. 1“I request you, Titius, and I charge you to attend to my funeral, and to this end I take so many aurei from the funds of my estate.” I ask, if Lucius Titius should use less than ten aurei for the purpose aforesaid, whether the balance of the sum will belong to the heirs. I answered that, according to the case stated, the heirs would profit by the remainder. 2Where a woman became the heir of her husband, and made the following provision in her will: “My dearest children, Mævius and Sempronius, take as a preferred legacy everything which came into my hands from the estate and property of my lord, your father, Titius, at the time of his death; provided, however, that you assume all the burdens of said estate, for the past as for the future, as well as those for which it may have become liable after the death of my lord, Titius.” I ask if she paid anything after the death of her husband, and made a donation to anyone while she was enjoying the profits of the estate, whether the children will be liable for such obligations. I answered that, in accordance with the case stated, only those obligations which remained unsatisfied could be imposed upon the legatees. 3“I direct whomever shall be my heir, or heirs, to see that Lucius Eutycus receives, in addition to the share which I have given him as heir out of the assets of my estate, in common with Pamphilus, whom I order to be free, all the implements for the manufacture of iron, in order that they may carry on the business.” Lucius Eutycus died during the lifetime of the testatrix, and his share of the estate passed to his co-heir. I ask whether Pamphilus, who was manumitted by the same will, can be permitted to demand half of the said implements for the manufacture of iron, although it cannot be carried on according to the will of the testatrix. I answered that he should be allowed to do so. 4Sempronia was substituted for an appointed heir, and, in case she should not be the heir, was to receive a legacy. She instituted proceedings against the heir, alleging that through his fraudulent conduct, the testatrix who, in the first place, had intended to make her her heir, had been prevented from changing her will, and lost her case. I ask whether she could still bring an action to recover her legacy. The answer was that, in accordance with the facts stated, she had a right to do so. 5A testator forbade the legacies which he bequeathed to be either claimed or paid before the expiration of five years; the heir, however, voluntarily paid a certain part of a legacy before the five years had elapsed. The question arose whether the heir, having paid the remainder of the legacy, could claim the benefit resulting from the payment of a portion of said legacy before the time prescribed. I answered that, because a portion of the legacy was paid before the designated time, a smaller sum could not be held to have been bequeathed. 6Lucius Titius made the following provision in his will: “I desire my small tract of land to be given to my male and female enfranchised slaves, both to those whom I have manumitted by this will, and to Seia, my foster-daughter, in order that it may not pass out of the hands of my family, until the ownership of the same shall vest in one person.” I ask whether Seia will be entitled to a share in common with the freedmen, or whether she will have a right to claim for herself alone half of said tract of land. I answered that it was evidently the intention of the testator that all the persons mentioned should be entitled to equal shares of the estate. 7A testator appointed as his heir his son, who had not yet attained the age of puberty, and he bequeathed his wife her dowry as a privileged legacy, together with a number of jewels and slaves, and ten aurei; and, in case the minor child should die without reaching the age of puberty, he appointed certain substitutes for him, to whom he made the following bequest: “I desire that all of what I have disposed of by my first will, and as much more, shall be given to the heirs of my heir.” The question arose whether the amount of the dowry would be payable a second time, under such a substitution, if the child should die before attaining puberty. I answered that it does not appear that the testator intended to double the legacy of the dowry. I also ask, in case the property composing the legacy should already have come into the hands of the woman for a valuable consideration, whether she could demand it from the substitutes. I answered that she could not do so. 8“I do give and bequeath to my fellow-citizens the note executed in my favor by Gaius Seius.” The testator subsequently made a codicil in which he forbade the note to be collected from Seius, and charged his heir to pay the same sum to the City out of the debt due from another party, whom he mentioned in the codicil. The question arose, if the latter should not prove to be solvent, whether the heirs would be required to pay the entire amount themselves. I answered that the heirs would only be compelled to transfer to the City their rights of action against the debtor who, in accordance with the facts stated, had been mentioned in the codicil. 9A testator appointed an heir to his entire estate, substituted his grandson for him, and then provided as follows: “If, as I hope may not happen, neither my daughter, nor my grandson should become my heirs, I then desire that my share, that is half of such-and-such a tract of land, shall belong to my freedmen.” The question arises, if the daughter and the grandson should die before the testator, and his estate should pass to his great grandson on the ground of intestacy, whether the freedmen would be entitled to the benefit of the trust. I answered that, in accordance with the facts stated, if no other heir than the daughter and grandson should be appointed, or substituted, it appeared that the heirs-at-law would be required to execute the trust. 10“Let my heir, whoever he may be, know that three denarii are due from me to my paternal uncle Denetrius, and that three denarii have been deposited with me by Seleucus, another uncle, which I direct shall be immediately delivered and paid to them.” The question arose whether the uncles would be entitled to an action, if the money should not be due. I answered that it should not be due, that no action would lie on account of the debt, but that one could be brought on account of the trust. 11Lucius Titius, two years before his death, sent away from his house his freedmen, Damas and Pamphilus, and ceased to furnish them with food as he had formerly done, and, afterwards, having made his will, he inserted into it the following legacy: “Let my heir, whoever he may be, give to my freedman whom I have manumitted by this will, as well as to those whom I formerly had, and to such as I have bestowed freedom upon under a trust, a certain sum of money for their support every month.” The question arose whether Damas and Pamphilus were entitled to the benefit of the trust. I answered that, in accordance with the facts stated, they were entitled to it, if those who made the claim should clearly prove that it was the intention of the patron, at the time when he made his will, that the legacy should also be given to them; otherwise, nothing would be due to them. 12A testatrix gave to Damas and Pamphilus, whom she manumitted by her will, a certain tract of land, and charged them to transfer the same to their children, when they died. She charged her heirs by the same will to manumit Pamphila who was the natural daughter of Pamphilus. This same Pamphilus, after the time that the legacy vested in him, appointed Mævius his heir by will, and charged him to give his property to Pamphila, his daughter, as soon as she became free, that is to say, half of the land above mentioned, acquired by the will of her patroness, and which constituted his entire estate. I ask whether Pamphila, having been manumitted, could claim this share of the estate by virtue of the will of the patroness of her father, or, indeed, by that of her natural father, and whether on account of the trust, the provision of the Falcidian Law will apply. I answered that, in accordance with the facts stated, it should be held that Pamphila could only claim the execution of the trust by virtue of the first will. Claudius: For the reason that it is believed that under the appellation of “children,” natural children are also included, that is to say, such as are born in slavery. 13Scævola: A certain person bequeathed a hundred aurei to Gaius Seius by a codicil, and charged him to give that sum to a certain female slave belonging to him, the testator. I ask whether the trust, by which the legatee is ordered to make payment to a female slave of the testator, is valid. I answered that it was not. Again, if it is not valid, will the legatee be obliged to pay the heir to whom the said female slave belongs? I answered that he would not be obliged to do so, as he himself would have no right to bring suit to collect the legacy bequeathed to him. 14A certain man left a house to his freedmen of both sexes, in such a way that the males receive two-thirds and the females one-third of the rent of the same; and he forbade them to alienate the property. The house, however, was sold by the heir with the consent of all the parties interested. I ask whether the males will be entitled to two-thirds of the purchase-money of the said house, and the females to one-third, or not. I answered that no demand, under the trust, could be made for any part of the price of the house, unless the parties had consented at the time of the sale that the male freedmen should have two-thirds of the purchase-money, and the females one-third of the same. 15Having appointed his son his heir, along with his grandson, who had been born to said son, a testator made the following provisions in his will: “I do not wish my house to be sold by my heirs, nor any money to be borrowed on it, but that it shall remain permanently and absolutely, for all time, in the possession of my sons and grandsons. If, however, any one of them should desire to alienate his share, or to borrow money on it, he shall have the power to sell to his co-heir, and to borrow the money from him. But if any one of them should do otherwise, any obligation which he may incur shall be null and void.” A son of the deceased afterwards borrowed money from Flavia Dionysia, and having rented the house to her, assigned to his creditor the rent due to him; and the question arose whether the condition of the will was held to have been fulfilled, so that the son would be liable to his brothers under the terms of the trust. I answered that, in accordance with the facts stated, the condition was not fulfilled. 16A testator, having appointed his mother and his wife his heirs, inserted the following provision into his will: “I request you, my dear wife, not to bequeath anything at your death to your brothers; you have your sister’s children to whom you can leave your property, for you know that one of your brothers killed our son, while he was robbing him, and your other brother caused me great injury.” I ask, as the wife died intestate, and her estate passed to her brother as her heir-at-law, whether the sister’s sons could demand the execution of the trust. I answered that they could do so, and that the trust was due. 17“I, Lucius Titius, have drawn up this, my last will and testament, without the aid of anyone learned in the law, rather having chosen to follow the inclinations of my mind, than to conform to an over-particular and excessive exactitude. Therefore, if I have included herein anything which does not conform to the prescribed legal requirements, or is indicative of a want of knowledge, the will of a man of sound mind should still be considered valid in law.” He then appointed his heirs. The question arose when possession of his estate was claimed on the ground of intestacy, whether the dispositions made under the trust could be enforced. I answered that, in accordance with the facts stated, they could be.