Ad Dig. 6,1,68Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 193, Note 2.Ulpianus, On the Edict, Book LI. Where a person is ordered to surrender property and does not obey the order of court, stating that he is unable to do so; if, indeed, he has the property, possession shall be forcibly transferred from him on application to the judge, and the only decision to be rendered in the matter is with reference to the profits. If, however, he is unable to deliver the property, and has acted fraudulently to avoid doing so, he must be ordered to pay as much as his adversary swears to, without any limitation; but where he is unable to deliver the property, and did not act fraudulently to avoid doing so, he can be ordered to pay no more than what it is worth; that is to say, the amount of the interest of his adversary. This is the general principle, and applies to all matters where property is to be delivered by order of court, whether interdicts or actions in rem or in personam are involved.

Ad Dig. 7,1,64Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.Ulpianus, On the Edict, Book LI. Where an usufructuary is ready to relinquish his usufruct, he cannot be compelled to repair the house, even in instances where this would ordinarily be required of the usufructuary. However, after issue has been joined, and the usufructuary is ready to relinquish the usufruct, it must be held that he should be released from liability by the Court.

Ulpianus, On the Edict, Book LI. Where an usufruct is bequeathed to me, and I am asked to deliver it to Titius, it should be considered who is obliged to give security, whether Titius should do so, or I, the legatee? Or shall we say that the heir can bring an action against me, and that I must sue the beneficiary of the trust? It is better to hold that if I have any expectation arising out of the usufruct, so that it may revert to me, that is to the legatee, if you lose it; the question can be settled by your giving security to me, and by my giving security to the mere owner of the property. If, however, the usufruct was left to me in trust for the beneficiary, and there is no hope of its reverting to me, then the beneficiary should give security directly to the mere owner of the property. 1It must be borne in mind that whether a party has an usufruct by direct operation of law, or even through the assistance of the Prætor, he should, nevertheless, be compelled to give security or to defend any actions which may be brought. 2Pomponius says it is evident that if the ownership is bequeathed to anyone from a certain time, and the usufruct absolutely; it must be held that the usufructuary is released from liability on his bond, because it is certain that the property will come into his hands or into those of his heir. 3When the usufruct of clothing is bequeathed, Pomponius holds that although the heir may have stipulated that the clothing should be returned when the usufruct comes to an end; nevertheless, the promisor is not liable if he delivers the clothing which was worn out without malicious intent. 4Where several parties are the mere owners of property, any one of them can enter into a stipulation with reference to his own share of the same.

Ulpianus, On the Edict, Book LI. Where a house has simply been left to someone, and it is not stated what house, the heirs will be compelled to give to the legatee any house belonging to the testator which the legatee may select. If, however, the testator did not leave any house, the legacy is ridiculous rather than valid. 1Ad Dig. 30,71,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 654, Note 8.Let us consider whether, where anyone delivers a slave by virtue of a legacy, he should furnish security against eviction, and, generally speaking, it must be held that whenever property given by a legacy has been delivered, and the possessor is evicted, the legatee can bring suit for it under the terms of the will. If, however, a demand is made for the property in court, it is the duty of the judge to require a bond, so that an action may be brought under the stipulation. 2Where money has been bequeathed, and the heir acknowledges that it is due, a reasonable time must be granted him in which to pay it; and he should not be compelled to bring the matter into court. The Prætor must fix a time for payment, in accordance with what is equitable and just. 3Where a man acknowledges that he is indebted, but gives a good reason why he cannot deliver what is due, he should be heard; for instance, where property belonging to another has been bequeathed, and he alleges that the owner of the same refuses to sell it; or where he says that an exorbitant price is demanded for the property; or where he declines to give up a slave belonging to the estate, because the said slave is either his father, his mother, or one of his brothers; for it is perfectly just that under these circumstances he should be permitted by the court to pay the appraised value of the property. 4Where a cup has been bequeathed to anyone, and the heir desires to pay the appraised value of the same, because he says it would be a hardship for him to be deprived of it, he cannot obtain this favor from the Prætor, because the condition of a slave is one thing, and that of other property is another, and the more indulgent course is adopted with reference to slaves, as we have previously stated. 5Where property belonging to a municipality, together with its municipal taxes, is bequeathed, let us consider whether the legacy is valid, and can legally be claimed. Julianus says in the Thirty-eighth Book of the Digest that, although land of this kind may belong to a municipality, still, because the party who bequeathed it had some right therein, the legacy will be valid. 6But if the testator had devised this land to others than to the municipality from which he had leased it, he is not considered to have left the ownership of the same, but only the right which he had in the rent of the land.

The Same, On the Edict, Book LI. A man who has promised a slave belonging to another will not be liable to an action under the stipulation, if the slave obtains his freedom; for it is sufficient for him not to be guilty of fraud or negligence.

The Same, On the Edict, Book LI. If a debtor tenders money which he owes, and his creditor declines to accept it, the Prætor will refuse him an action.