The Same, Trusts, Book I. It must be remembered that only those can bequeath property in trust who have testamentary capacity.

Ulpianus, Trusts, Book I. A trust of this kind will only be valid where the minor dies under the age of puberty; if, however, he should die after having reached puberty, the trust will vanish.

Ulpianus, Trusts, Book I. Nevertheless, it should be considered where a slave who was manumitted was asked to furnish something in lieu of labor, whether a trust of this kind will be valid. This can by no means be admitted, because services of this description cannot be imposed on a freedman, and if imposed, they cannot be exacted; even though the testator may have provided for it in his will.

Ulpianus, Trusts, Book I. Where anyone is not certain of his condition, for instance, whether he is a captive in the hands of the enemy, or merely detained by robbers, he cannot execute a will. If, however, he should be ignorant of his legal rights, and thinks, through mistake, that because he has been captured by robbers, he is a slave of the enemy; or if, having been sent on an embassy, he believes that he does not differ from a captive, it is certain that he cannot create a trust, for the reason that he is unable to make a will who is in doubt as to whether he can do so or not. 1Ad Dig. 32,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where a son under paternal control, or a slave creates a trust by will, it will not be valid. If, however, the case is proposed that either of them should die after being manumitted, we constantly decide that the trust should be held to have been left, just as if it had been created at the time of the party’s death; that is if his intention had continued to exist after the manumission. Let no one suppose that we adopt this same rule with reference to wills, because whenever a will is not valid, none of its contents are valid either, but it is otherwise where anyone leaves a trust. 2Those who have been interdicted from the use of water and fire, as well as persons who have been deported, cannot create a trust by will, because they have not testamentary capacity when they are exiled. 3We must understand those to be deported to whom the Emperor has assigned some island as a residence; or such as he has banished by a written order. But before the Emperor has confirmed the sentence of the Governor, no one is considered to have lost his civil rights. Hence, if he should die before this is done, he is held to have died a citizen, and any trust which he left before he was sentenced will be valid, or one which he created after sentence was imposed upon him, and before the Emperor confirmed it, will also be valid; because up to this time he was still in the possession of his privileges as a citizen. 4So far as those are concerned who have been deported by the Prætorian Prefect, or his Deputy who has cognizance of cases under the direction of the Emperor, or also the Urban Prefect (because the right of deportation was likewise granted to him by a Rescript of the Divine Severus and our Sovereign) they immediately forfeit their civil rights, and therefore it is evident that they have neither testamentary capacity nor legal power to create a trust. 5Ad Dig. 32,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where anyone who has been deported to an island makes a codicil while there, and having been restored to the enjoyment of his civil rights by the favor of the Emperor, dies, leaving the same codicil unchanged, it can be maintained that the trust will be valid, provided the party always had the same intention. 6Moreover, it should be noted that those can be charged with a trust into whose hands any of a person’s estate is to pass when he dies, whether it is given to them, or whether they are not deprived of it. 7Not only the next of kin who have obtained possession of an estate by the judgment of the Prætor, but also those entitled to it on the ground of intestacy, can be charged with a trust. 8A child who is not yet born can be charged with a trust, if, after it is born, it will become our successor. 9It may undoubtedly be said that if anyone should die intestate, and leave a trust to be executed by the heir entitled to succeed him in the first degree, and the latter should reject the estate, and the succession pass to the next degree, the heir will not be required to execute the trust. This rule Our Emperor stated in a Rescript. 10If a trust should be left by a freedman to be executed by his patron, and he should die, and one of his children should be permitted to take possession of his property, the same rule will apply.

Ulpianus, Trusts, Book I. Where a woman made a stipulation with reference to her dowry, and her husband, having taken a receipt from her therefor in order that she might charge him with a trust, it must be said that the trust should be executed, for he is considered to have received something from his wife. This is the case where the woman gives a receipt to her husband, being about to make him a donation mortis causa. But where she increases her dowry in favor of her husband, mortis causa, or marries him again after separation, it may be held that the trust can be executed by him. 1Julianus said that if a slave should be bequeathed to me, and I am asked to manumit him, I cannot be charged with a trust, that is to say, if I am requested to do so absolutely; for if I am asked under a condition, or within a certain period, I will be liable on account of the profit which I will derive from the labors of the slave in the meantime, and upon this point Julianus entertained no doubt. 2Where anyone owes some property to a certain person, as the result of a stipulation, and bequeaths him the property, he cannot charge him with a trust, although the creditor may be held to have benefited by the legacy, because ownership vests at once, and does not wait for an action based on the stipulation. Perhaps someone might say that he would profit by the expenses of the stipulation, which he would have to pay if the matter should come into court; but it can, by no means, be held that he can be charged with a trust. 3If I should transfer to you, mortis causa, the usufruct of certain property of which you have the ownership, it may be held that I can charge you with a trust, nor will the point that the usufruct is ordinarily extinguished by death have any weight, since we must consider the benefits which the owner will obtain during the intermediate time that the party who made the donation survives. 4If, however, I should release the pledge of my debtor, mortis causa, and charge him with a trust, the trust will not be valid.

Ulpianus, Trusts, Book I. Where a legacy is left to a municipality, those who are transacting its business can be charged with a trust. 1Where anyone leaves a trust to be executed, not by the heir or legatee himself, but by the heir of said heir or legatee, it is but proper that this should be valid.

Ulpianus, Trusts, Book I. Where the slave of a man who has been deported is charged with a trust, it will belong to the Treasury, unless the party who was deported disposed of the slave, or was restored to the enjoyment of his civil rights during the lifetime of the testator, for then it will belong to him. 1Where a soldier charges a man who has been deported with a trust, the better opinion is (and this is also approved by Marcellus), that he cannot receive the trust. 2If anyone should bequeath to his creditor what he owes him, he cannot charge him with a trust, unless the creditor obtains some benefit from the legacy; for example, where he is apprehensive of the filing of an exception, or where the debt was to be paid within a certain time, or under some condition.

Ulpianus, Trusts, Book I. The same rule will apply where the debtor was required to make payment within a certain time, or under some condition.

Ad Dig. 30,40Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 634, Note 7.The Same, Trusts, Book II. If, however, property belonging to another which the legatee has not control of in the way of trade, and which he has no right to possess, is left subject to a trust, I think that its estimated value will be due.

The Same, Trusts, Book II. Whether the legatee was aware of this fact or not.

Ulpianus, Trusts, Book II. Where a certain man left a trust in the following terms, “I charge you to deliver such-and-such property to those of my freedmen whom you may select,” Marcellus thinks that even an heir who is unworthy can be selected. If, however, he had said, “Those whom you may consider worthy;” he holds such as have not committed any offence will be eligible. He also holds that if the heir does not select anyone, all the freedmen will be permitted to claim the legacy, just as if it had been given upon that very day when it was left “To those whom you may select,” and the heir does not tender it to any of them. It is clear that if the other freedmen are dead, it must be delivered to the survivor, or to his heir, if he should die before presenting his claim. Scævola, however, says in a note that if all could demand a legacy when it is not tendered to any of them, why will not those who have died transmit their rights to their heirs, especially where there is only one claiming it, and the heir cannot select the one to whom he may give the legacy? For it appears that Marcellus held that where a trust was bequeathed as follows, “To such of my freedmen as you may select,” unless he tenders the legacy to the party whom he wishes to have it, and does so without any delay, all the heirs will be entitled to claim it. Therefore, since all of them can do this, he very properly thinks that it should be given to the survivor alone, unless the other heirs have died before sufficient time had elapsed during which the heir could select one to whom he could give the legacy.

Ulpianus, Trusts, Book II. Trusts can also be left in any language, not only in Latin or Greek, but also in Carthaginian, Gallic, or the idiom of any nation whatsoever. 1Whenever anyone makes a rough draft of his will, and dies before he completes it, what is contained in the draft is not valid as a codicil, although the document may contain words creating a trust. Mæcianus states that this was decreed by the Divine Pius. 2Where anyone writes, “I recommend So-and-So to you,” the Divine Pius stated in a Rescript that a trust was not created; for it is one thing to recommend a person to his heirs, and another to intimate that it is his intention that they should be charged with a trust for his benefit. 3Where a man was asked to relinquish his share of an estate upon receiving a certain sum of money, it was held that he himself could demand the execution of the trust by the heir. If, however, he desires to do so, can he retain in his hands the sum bequeathed to him, and relinquish his share of the estate; or, indeed, can he, having been tendered the sum bequeathed, be compelled against his will to relinquish his share? He has a right to decide this matter himself. And, indeed, where anyone is asked to relinquish his share of an estate upon receiving a certain sum of money, a double trust is created; first, where the party is ready to give up his share, he can demand a sum of money; and second, even though he does not demand it, still, he can be forced to surrender his share if the trustee is ready to pay him the said sum. 4Where anyone inserts the following in his will, “Such-and-such vineyards, or lands are sufficient for you,” a trust is created, since we consider as a trust the clause, “Let him be content with such-and-such property.” 5Ad Dig. 32,11,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.Where a trust is left as follows, “I wish my heir to pay ten aurei to So-and-So, unless my heir should be unwilling to do so,” the trust is, to some extent, conditional, and first requires the consent of the heir; hence, after he has consented, he cannot change his mind and allege that he is unwilling to pay. 6When a bequest is made as follows, “If he should be willing,” it involves the question as to how long the party who is charged with the trust may live. If, however, the beneficiary should die before the trustee pays the legacy, the heir of the latter must pay it. But if the trustee should die before he is appointed heir, the trust will not be transmitted to his heir, for no one can doubt that the legacy is conditional, and the trustee is held to have died before the condition was fulfilled. 7Although a trust which is left in the following manner is not valid, namely, “If he should be willing,” it is, nevertheless, valid if expressed as follows: “If you should judge it advisable; if you think it ought to be done, if you should deem it expedient; if it seems, or should seem to you to be advantageous;” for the will does not confer full discretion upon the heir, but the trust is left, as it were, to the judgment of a good citizen. 8Hence, where a trust is left as follows, “If he should render some service to him,” it will undoubtedly be valid, if the beneficiary has been able to render the heir any service of which a good citizen would approve. It will likewise be valid if left as follows, “Provided that he does not offend you,” and the heir cannot allege that the beneficiary does not deserve it, if some other good citizen who is not prejudiced, will admit that the party is deserving of the benefit. 9These words, “I ask you, my son, to take the greatest care of the real property which is to come into your hands, in order that it may pass to your children,” although they do not exactly express the creation of a trust, as they rather imply advice than the obligation of leaving the property to the children; still, the devise of said land is considered to have the effect of a trust for the benefit of the grandchildren, after the death of their father. 10Where a trust is left to a son who has been appointed the heir of his father, while it was not expressly stated that it would take effect at the death of the latter, this may be inferred; for instance, because the following words are used, “In order that he may leave the property to his son,” or, “I wish him to have the property,” or, “I wish it to belong to him,” it can be maintained that the execution of the trust is to be postponed until the son becomes his own master. 11Where a trust has been left to anyone in the following terms: “If he should become his own master at the death of his father,” and he becomes independent by emancipation, the condition will not be held to have failed, but he will obtain the benefit of the trust at the time of his father’s death, just as if the condition had been fulfilled. 12Where a testator bequeathed certain property belonging to him, and afterwards alienated it through urgent necessity, the execution of the trust can be demanded, unless it can be proved that the testator intended to deprive him of the benefit of it, the fact, of his having changed his mind must, however, be proved by the heirs. 13Therefore, if anyone should collect the note of a debtor which he had in trust but did not, by enforcing payment, intend to annul the trust, it can be said that it must be executed. There is, however, a certain difference between these two cases; for, in one, the substance of the debt itself is extinguished, but in the other, the property still remains, although it may have been alienated. But I held that the claim for the execution of the trust still existed, even though a certain party had exacted the payment of a note of the debtor and retained possession of the money as a deposit, especially because the creditor did not himself demand the money, but the debtor tendered it of his own accord, and he, having done so, the former could not refuse to accept it. Therefore, by degrees we admit that, even if the testator had purchased property with this money which he did not collect with the intention of depriving the beneficiary of the bequest to which he was entitled, the demand for the execution of the trust can still be made. 14Where anyone builds a house in an unlawful manner (that is to say one which the Imperial Constitutions say should be demolished), let us see whether a person can leave anything of which it is composed, by way of trust. I think that he can do so; for although it is necessary for the house to be torn down, still, there is no doubt that the terms of the Decree of the Senate offer no obstacle to such a disposition of the property. 15Where an heir is requested to lend a sum of money at a specified rate of interest, the trust is valid. Mæcianus, however, thinks that he cannot be compelled to lend it, unless he is furnished with proper security. I am more inclined to the opinion that security should not be required. 16Where a commission in the army is left in trust to the slave of another, the question arises whether the legacy is acquired by his master. I hold that the estimated value of the legacy must be paid if the testator knew that the party was a slave; but if he was ignorant of the fact, the master should not be permitted to demand the execution of the trust, because if the testator had known that the legatee was a slave, he would not have left him the bequest. 17It is evident from these cases, that when anything is left by way of trust, the article itself must be delivered, and when this cannot be done, the appraised value of the same must be paid. 18If anyone should leave ten aurei to someone by a trust, and agree to leave the same amount to him a second time, if he should lose what was left to him by the will, the question arose whether the second trust would be valid, or whether the heir should require security to protect himself, lest he might be compelled to pay the ten aurei again; and also if the sum should be lost several times, whether the trustee ought to be called upon to make it good. The Divine Pius stated in a Rescript that no security should be required, and that where the property had been lost, it should not be replaced more than once by the trustee, for the heir ought not to be indefinitely burdened, and compelled to repay the said sum of money every time it was lost, but, as the legacy seems to be doubled by the second trust, no further liability attaches to the heir, if the beneficiary should afterwards waste what he has received under it. 19Likewise, if anyone should bequeath a certain sum of money to anyone, and add that the said sum can easily be set off, as the beneficiary is himself a debtor to the estate of the testator, Gaius Seius, and he refuses to accept the estate of the said Gaius Seius, but demands the execution of the trust, Our Emperor stated in a Rescript that such a demand was contrary to the intention of the testator, as with reference to trusts the intention of the testator must by all means be considered and observed. 20It frequently happens that what was left is intended for the benefit of several persons; but the testator desired to honor only one of them by mentioning him. This opinion of Marcellus is perfectly correct. 21Hence, it happens that, sometimes, where a testator wished to do honor to several persons, and had them all in his mind, although there was but one legacy, still, several are permitted to claim it, as for instance, where ten persons stipulated for the same property, and the heir or trustee was requested to pay them, for in this case, if it was to the interest of all of them, and the testator had them in his mind, they all could demand the execution of the trust. But let us see whether each can bring an action for his share, or for the entire amount. I think that they can bring suit according to the interest of each one, and therefore the one who first proceeds will obtain the entire amount, provided he gives security that he will defend the party who paid him against all the other beneficiaries of the trust, whether they are partners or not. 22Sometimes, however, the right to make a demand for the execution of a trust, or for a legacy, will belong to another party than the one whose name is mentioned in the will; as, for example, where the heir is charged to pay a public tax for Titius, the farmer of the revenue must make the demand for the execution of the trust, or for the payment of the legacy; although he may be the person mentioned, and Titius himself can demand the legacy which was left to him. I think that it makes a great deal of difference whom the testator had in his mind, and whom he intended to benefit. Generally, however, it should be understood that he acted for the advantage of a private individual, although the profit may have actually enured to the farmer of the revenue. 23Where something is left for the erection of a public work in a city, the Divine Marcus and Lucius Verus stated in a Rescript directed to Procula that each heir was liable for the entire amount. They, however, in this instance, granted time to a co-heir during which he might send persons to do the work, and after this time they decided that Procula alone would be liable, and that she could collect from her co-heir his share of the expense which she had incurred. 24The Divine Marcus also stated in a Rescript that the same rule was applicable to a statue, a servitude, and other things which are incapable of division. 25Where anyone is ordered to construct a public work, and offers to furnish the money to the city in order that it may construct it, when the testator intended that the trustee himself should do so, he shall not be heard; and this the Divine Marcus stated in a Rescript.

Ulpianus, Trusts, Book II. Mela says that if a legacy payable annually would be left to anyone without mentioning the amount, the bequest is void. The opinion of Nerva, however, is better, namely, that the testator is considered to have bequeathed what he was accustomed to give during his lifetime; but that, in every instance, the rank of the parties must be taken into consideration.

Ulpianus, Trusts, Book II. Mela says that where maintenance is bequeathed to a boy or a girl, it must be furnished till he or she reaches the age of puberty. This, however, is not correct, for they should only be provided with it as long as the testator wished, and if his intention was not evident, they must be supported for life. 1But if maintenance is bequeathed until the age of puberty, and anyone desires to follow the former custom with reference to boys and girls, he is hereby informed that Hadrian decided that boys shall be supported until their eighteenth year, and girls until their fourteenth. Our Emperor stated in a Rescript that this rule promulgated by Hadrian must be observed. But although the age of puberty is not ordinarily fixed in this way, still, it is not illegal for it to be so established in the individual instance of the matter of support, where natural affection is involved. 2Where a testator bequeaths maintenance to the same extent that he furnished it during his lifetime, only such provision must be made as he was accustomed to make at the time of his death. Therefore, if different amounts were furnished at different times, that amount must be considered which was furnished just prior to the death of the testator. But what would be the case if the testator provided less at the time that he made his will, and more at the time of his death, or vice versa? In this case it must be held that the amount must be governed by what he provided last. 3Ad Dig. 34,1,14,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 2.A certain man bequeathed to his freedmen food and water by a trust. Advice was taken with reference to the trust, as the question was raised in that part of Africa or Egypt where water was sold. Therefore, I stated that the benefit to be derived from the trust depended upon whether the party who left it had cisterns or not, and whether it was included in the trust in order to provide for any amount which the beneficiary might have to pay for water for himself, and whether the trust did not appear to be void, as it was not the bequest of a servitude upon a tract of land for the benefit of a person who was not the possessor of one that adjoined it; for while the drawing of water, and the right of driving cattle to water, is a personal servitude, still, it is void if left to one who is not the owner of neighboring property. Under the same head are classed the right of conveying burdens, or of pressing grapes, or of threshing wheat and other grain on the premises of someone else; but in this instance, the right to obtain water is bequeathed for the benefit of the person himself.

Ulpianus, Trusts, Book II. Where a daily allowance or food is bequeathed, it is clear that neither lodging, clothing, nor shoes, are to be furnished, as the testator only had the provision of food in his mind.

The Same, Trusts, Book II. In a matter which was under discussion, the question arose whether anyone could, under the terms of a trust, be charged to appoint another his heir. The Senate decreed that anyone could not be charged to appoint another his heir, but if he did so it was held that it would be the same as if he had been asked to transfer his estate to him; that is to say, to transfer to him anything which he may have received from his estate. 1Julianus also, in the Fortieth Book of the Digest, says that a trust in the following terms will be valid, “I charge you to transfer the estate of Titius,” when he who was asked to do this was appointed an heir by Titius. 2If I should appoint someone my heir, I can not only ask him to appoint another person his heir, but also if I should bequeath to him a legacy, or anything else, I can do so; for persons of this kind are liable to the amount of any property which may come into their hands. 3If anyone should insert the following into his will, “I ask you to give such-and-such an article to So-and-So,” or “leave him something under a trust,” or “bequeath him his freedom,” such legacies are valid; for, as the Senate decreed that a trust is valid with reference to the appointment of heirs, so the same rule must be understood to apply to other testamentary dispositions. 4If anyone should be asked to transfer an estate provided he died without issue, Papinianus, in the Eighth Book of Opinions, says that the condition will fail to be fulfilled if the person should leave even a natural child; and he asserts that the same rule will apply to a freedman, where a child of this kind is manumitted with him. For my part, however, I think that this question, so far as natural children are concerned, seems to depend upon the intention of the testator, and what kind of children he had in his mind; for when he charged anyone with a trust of this description, his rank, wishes, and condition must all be taken into account. 5I remember that the following point was discussed. A certain woman requested her son to transfer the estate to his brother, if he should die without issue, and the son, after having been banished, had children in the island to which he was sent. Hence, the question arose whether the condition upon which the trust was dependent had failed to be complied with. We are of the opinion that where children are conceived before the banishment, even though they may be born afterwards, this causes the condition to fail; but where they are both conceived and born after the banishment, the case is different, because they are, as it were, born to a stranger, and especially should this be considered where all the property of the person is subject to confiscation by the Treasury. 6Where a man is asked to transfer an estate to his children, or to anyone of them whom he may select, Papinianus, in the Eighth Book of Opinions, concedes the right of selection even to a person who has been banished; if, having become free, he desires the restoration of the trust. Where, however, he was condemned to penal servitude, without any child having previously been conceived, he will be unable to comply with the condition, for he is considered to have died without issue. But he cannot be granted the privilege of selection which Papinianus accords to a person who is under sentence of banishment at the time of his death. 7If, however, he should have a child, but should lose it during his lifetime, he will be considered to have died without issue. But let us see if the child should die at the same time as its father, through a shipwreck, or the fall of a house, or an attack, or any other occurrence, whether the condition would fail to be fulfilled. I think that the condition would not fail, because, in this instance, it is not certain that the child survived its father, therefore it either survived its father and this extinguished the condition of the trust, or it did not survive him, and the condition was fulfilled. Moreover, as it is not apparent which one died before, and which one after the other, the better opinion is to hold that the condition of the trust was fulfilled. 8If anyone should leave a trust as follows, “My son, if you should die after having appointed a foreign heir, I charge you to transfer my estate to Seius,” the Divine Pius stated in a Rescript that the testator seems to have had reference to the heir’s children; therefore, where anyone dies without issue, leaving a maternal uncle entitled to prætorian possession, on the ground of intestacy, the Emperor declared in a Rescript that the condition of the trust had been fulfilled.

Ulpianus, Trusts, Book II. It is not usual for superfluous matter to vitiate a document.

Ulpianus, Trusts, Book III. Ad Dig. 36,1,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 14.After having discussed matters relating to trusts of different kinds of property, let us now pass to the interpretation of the Trebellian Decree of the Senate. 1This Decree of the Senate was enacted in the time of Nero, on the eighth of the Kalends of September, during the Consulate of Anneus Seneca and Trebellius Maximus. 2The words of the Decree are as follows: “As it is perfectly just that, with reference to all trusts involving estates where anything is to be paid out of property, recourse should be had to those to whom the rights and profits of the estate are transferred, rather than that the heirs should incur any risk on account of the faith reposed in them, it is hereby decreed that actions which are usually granted for and against the heirs shall not be allowed where the latter have transferred the property under the terms of a trust, as they were charged to do; but that in these instances actions shall be granted for and against those to whom the property has been transferred under the trust created by the will, in order that the last wishes of deceased persons may be more thoroughly executed, so far as the remainder of the estate is concerned.” 3By this Decree of the Senate, the doubts of those who have determined to refuse to accept the estate, either through apprehension of litigation or on account of fear are removed. 4But, although the Senate intended to come to the relief of heirs, it also comes to the relief of the beneficiary of the trust. For it is granted to the heirs, since they can avail themselves of an exception if suit is brought against them; and if the heirs bring suit they can be barred by an exception which the beneficiaries of the trust have a right to avail themselves of, hence there is no doubt that their interests have likewise been consulted. 5This Decree of the Senate applies whether anyone who is either a testamentary heir, or the heir-at-law, was charged to transfer the estate. 6It also applies to the case of the will of a soldier who is under paternal control, and who has the right to dispose of his castrense peculium or his quasi castrense peculium. 7The possessors of property under the Prætorian Law, or any other successors, can transfer an estate by virtue of the Trebellian Decree of the Senate. 8The question arises whether he to whom an estate has been transferred by the terms of a trust under the Trebellian Decree of the Senate can himself assign his rights of action by the same Decree of the Senate, where he has been charged to transfer the estate. Julianus says that he also can assign his rights of action. This opinion Marcianus also approves, and we ourselves adopt it. 9Where, however, anyone has been charged to transfer an estate to two persons, to one of them absolutely or within a certain time, and to the other under a condition, and he alleges that the estate is probably insolvent, the Senate decreed that the entire estate should be transferred to the party to whom the heir was asked to transfer it absolutely, or within a certain time. If, however, the condition should be fulfilled, and the other beneficiary should desire to accept his share, the rights of action will pass to him by operation of law. 10Where a son or a slave is appointed an heir, and is charged to transfer the estate, and the master or father should transfer it, the rights of action will pass to the beneficiary of the trust, by virtue of the Trebellian Decree of the Senate. This will be the case even if the parties are charged to transfer the property in their own names. 11The same rule applies where a father is charged to transfer the estate by the son himself. 12Where the guardian or curator of a minor or an insane person is charged to transfer an estate, the Trebellian Decree of the Senate will undoubtedly apply. 13Where a minor was charged to transfer the estate to the guardian himself, the question arose whether he could do so by the authority of his guardian. It was decided by the Divine Severus that he could not transfer the estate to his guardian by the authority of the latter, because no one can act as judge in his own case. 14Still, the estate of a minor can be transferred by him to his curator, as the authority of the latter is not necessary to render the transfer legal. 15Ad Dig. 36,1,1,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 58, Note 4.Moreover, where an association or a corporate body is charged to transfer an estate, the transfer will be valid where it is made to each of the different members individually, by the vote of those who belong to said association or corporate body; for, in this instance, each one of them is considered to have made the transfer to himself. 16Where the heir is asked to transfer the estate, after having reserved a tract of land for himself, he can do so under the Trebellian Decree of the Senate; nor does it make much difference if the land given to him has been pledged, as a personal action for the recovery of the money loaned will not follow the land; but he will be liable to whom the estate has been transferred under the Trebellian Decree of the Senate. Security must be furnished by the beneficiary of the trust to the heir so that the heir will be indemnified if the land should happen to be evicted by the creditor. Julianus, however, does not think that security should be given, but that an estimate ought to be made of the value of the land without the security, that is to say, how much it will sell for if security were not furnished; and il, where no bond had been given, it will sell for as much as the fourth part of the property would amount to, the rights of action will pass by the terms of the Trebellian Decree of the Senate; but if it would bring less, then, the deficiency having been reserved, a transfer of the remainder should likewise be made, in accordance with the Trebellian Decree of the Senate. This opinion disposes of many questions. 17Where a man who had an estate of four hundred aurei bequeathed three hundred, and, having deducted two hundred, charged his heir to transfer the estate to Seius, will the beneficiary of the trust be liable for the three hundred aurei, or will he only be liable in proportion to the amount of the estate which came into his hands? Julianus says that a demand for three hundred aurei can be made upon him, but that an action will not be granted against the beneficiary of the trust for more than two hundred, and for a hundred against the heir. This opinion of Julianus seems to me to be correct, in order that the beneficiary may not be liable for any more than the amount which he received from the estate. For no one is obliged to pay more of a legacy than the amount which came into his hands from the estate, even though the Falcidian Law may not apply, as is stated in a Rescript of the Divine Pius. 18Finally, no more shall be paid as legacies under the will of a soldier than his estate amounts to, after deducting the indebtedness; and still the beneficiary of the trust will not be permitted to reserve the fourth. 19Hence Neratius says that if the heir is charged to transfer the entire estate without deducting the Falcidian portion, and he who is entitled to receive it is charged to transfer it to a third party, the heir cannot deduct the fourth from what the second beneficiary receives, as the testator only intended that the first beneficiary of the trust should enjoy his liberality. 20Where a testator, having property worth four hundred aurei, left two hundred to Titius, and charged his heir to transfer half the estate to Sempronius, Julianus says that the transfer should be made according to the terms of the Trebellian Decree of the Senate, and that the action of the legatee should be divided so that he can bring one suit against the heir for a hundred aurei, and one against the beneficiary of the trust for the other hundred. Therefore, Julianus holds that in this way the heir will obtain his fourth unimpaired, that is, the hundred aurei without deduction. 21Julianus also says that if anyone who has an estate of four hundred aurei should bequeath three hundred, and, having deducted a hundred, should charge his heir to transfer the estate to Sempronius, it must be said that if the estate is transferred after the deduction of the hundred aurei, an action to recover the legacy will be granted against the beneficiary of the trust.

Ulpianus, Trusts, Book III. Ad Dig. 36,1,3 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 667, Note 10.Moreover, Marcellus, on Julianus, states with reference to this case that, if the testator had said that the heir should be charged with the legacies, and the latter voluntarily entered upon the estate, the calculation of the Falcidian portion must be made just as if four hundred aurei had been bequeathed under the trust, and three hundred had been left as a legacy; so that the three hundred ought to be divided into seven parts, to four of which the beneficiary of the trust would be entitled, and the other three would go to the legatee. If, however, the estate should be alleged to be insolvent, and the heir did not voluntarily accept and transfer it, a hundred aurei out of the four hundred to which the latter would have been entitled can be retained by the beneficiary of the trust, and the same distribution should be made of the remaining three hundred, so that the beneficiary may receive four-sevenths and the legatee the remaining three; for it would be extremely unjust for the legatee, merely because the estate was suspected of being insolvent, to have more than he would have obtained if the heir had voluntarily entered upon it. 1Again, what has been said with reference to an estate suspected of being insolvent is also applicable to wills to which the Falcidian Law does not apply. I refer to military wills and others of the same description. 2Pomponius also says that where anyone is charged to transfer an estate after the legacies have been deducted, the question arises whether the legacies should be paid in full, and whether the heir can deduct his fourth from what is left under the trust alone, or can deduct it from the legacies as well as the trust. He asserts that Aristo was of the opinion that it should be deducted from everything bequeathed by the testator, that is to say, from both the legacies and the trust. 3Any property forming part of an estate which has been alienated by the heir shall be included in his fourth. 4A certain man, having appointed his children his heirs to unequal portions of his estate, and having left them preferred legacies in such a way as to divide the larger part of his property among them, charged any one of them who might die without issue to leave his share to his brothers. Our Emperor stated in a Rescript that the preferred legacies were included in the trust, because the testator did not mention his share of the estate, but merely his share, and the preferred legacies were held to have been included in his share. 5If anyone should be asked to deliver an estate before he has put the slaves to the torture, or opened the will, or entered on the estate, or done any of those things which are forbidden by the Decree of the Senate, and for this reason the estate should be confiscated, the Treasury will acquire it with all its burdens. Therefore, the benefit of the fourth to which the appointed heir was entitled will be transferred to the Treasury, and all rights of action belonging to the estate will pass to it under the Trebellian Decree of the Senate. If, however, the heir should have prevented anyone from drawing up the will, or should not have permitted the witnesses to assemble, or should have neglected to avenge the death of the testator, or if the estate had been claimed by the Treasury for any other reason, the benefit of the fourth will also belong to the Treasury, and the remaining three-fourths of the estate will be transferred to the beneficiary of the trust.

Ulpianus, Trusts, Book IV. In the enactment of new laws evidence of benefit should manifestly appear to justify departure from a law which has been considered just for a long period of time.

The Same, Trusts, Book IV. For the reason that the appointed heir may refuse to enter upon the estate, apprehending that he might be prejudiced by so doing, provision must be made for the beneficiary of the trust; so that if he should say that he wishes the heir to enter upon the estate at his risk, and transfer it to him, the appointed heir can be compelled to appear before the Prætor and deliver the estate. If this should be done, the rights of action will pass by the Trebellian Decree of the Senate, and the heir cannot avail himself of the benefit of the fourth, when he transfers the property; for as he enters upon the estate at the risk of another, it is but reasonable that he should be deprived of any advantage to which he would have been entitled. Nor does it make any difference whether the estate is solvent or not, for it is sufficient for it to have been rejected by the appointed heir. No investigation shall be made as to whether the estate is solvent or not, but only the opinion, or the fear, or the pretext of the party who refused to accept it ought to be considered, and not the assets of the estate itself. This is not unreasonable, for the appointed heir should not be required to state why he fears to enter upon the estate, or why he is unwilling to do so. For men are actuated by different motives: some of them fear to attend to business, others dread the annoyance of it; and still others are apprehensive that the indebtedness may amount to a larger sum, even though the estate may appear to be solvent; and again, some fear the anger or envy of others; and some desire to favor those to whom the estate was bequeathed without, however, wishing to sustain any of the burdens of the same.

Ulpianus, Trusts, Book IV. Anyone can refuse to accept an estate not only when he is present, but also where he is absent, and he can do this even by means of a letter. For a decree can be asked with reference to parties who are absent, whether it is certain that they do not wish to enter upon the estate and transfer it, or whether this is not known; to such an extent is their presence not necessary. 1It must be remembered that the Senate speaks with reference to an appointed heir. And, therefore, Julianus discusses the question as to whether this decree applies in cases of intestacy. The better opinion, however, is the one which we adopt, namely, that this decree also applies to heirs by intestate succession, whether they are heirs-at-law or prætorian successors. 2This Decree of the Senate also applies to a son under paternal control, and to all other necessary heirs, so that they may be compelled by the Prætor to take charge of the estate and afterwards transfer it. If they should do so, the rights of action are considered to have been transferred. 3Where an estate without an owner is forfeited to the Treasury, and the latter is unwilling to accept it and transfer it to the beneficiary of the trust, it will be perfectly proper for the Treasury to return the property, just as if the beneficiary of the trust had recovered it. 4Likewise, if the citizens of a town, after having been appointed heirs, should say that the estate is probably insolvent, and decline to accept it, it must be held that they can be compelled to do so, and to transfer the estate. The same rule applies with reference to an association. 5Titius, having been appointed heir, and Sempronius substituted for him, he was charged to transfer the estate to Sempronius himself; but, after his appointment, Titius said that the estate was probably insolvent, and refused to accept it. The question arose whether he could be compelled to enter upon the estate, and transfer it, a point which is susceptible of argument. The better opinion, however, is that he can be compelled to do so, because it is more advantageous for Sempronius to obtain the estate by the appointment than by the substitution; for example, if the substitution is charged with legacies to be paid, or with freedom to be granted. The same rule will apply if the estate should be left in trust to the heir-at-law. 6Where anyone is directed to transfer an estate in some other place than where he lives, and alleges that he suspects it of being insolvent, Julianus says that he can be compelled to accept it, just as a person who is asked to deliver an estate within a certain time.

Ulpianus, Trusts, Book IV. When, however, the heir is directed to go to some other place, and he is absent on business for the State, Julianus says he can likewise be compelled to accept the estate, and to transfer it, wherever he may be. 1It is clear that if anyone requests time for deliberation, and obtains it, and after the time has elapsed enters upon the estate, and transfers it, he will not be considered to have been compelled to do so. For he is not obliged to enter upon the estate, even if he suspects it of being insolvent, but he does so voluntarily after deliberation. 2If the heir should allege that he considers the estate to be insolvent, he should declare that it is not expedient for him to accept it. It is not necessary for him to say that it is insolvent, but he must state that he does not think it is expedient for him to enter upon the estate. 3If anyone should be appointed heir under a condition, no act that he performs while the condition is pending will be lawful, even though he is ready to transfer the estate.

Ulpianus, Trusts, Book IV. It is stated by Julianus that where a legacy is left to an appointed heir, “in case he should not be the heir of the testator,” and on this account the heir says that he suspects the estate of being insolvent, in order not to lose the legacy, the amount of the same must be tendered him by the beneficiary of the trust, and he can then be compelled to accept. Julianus does not admit that, in this instance, the heir can demand the legacy from the beneficiary of the trust as from his coheir, just as if he had not accepted the estate, for in fact he did accept it. It is, however, considered preferable for the legacy to be tendered him by the beneficiary of the trust. But when the heir, for some other reason, says that it is not his interest to accept the estate, he cannot be compelled to do so, unless the loss which he may sustain, or the profit which he may acquire, is made up to him by the beneficiary of the trust, or the charge, on account of which he refused the estate, is remitted by the Prætor. 1Ad Dig. 36,1,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 24.Julianus also says that where two heirs are appointed by a father, along with his minor son, and they are also substituted for the son, it will be sufficient for him who accepted the trust under the pupillary substitution to compel one of the appointed heirs to enter upon the estate of the father. For, by doing this, the will of the father will be confirmed, and both of them can, by virtue of the substitution, be compelled to enter upon the estate. 2After application has been made to the Prætor, let us see whether the heir can transfer the estate to a present or an absent person through the intervention of an agent. I think that an appointed heir can be compelled to accept and transfer an estate to an absent beneficiary of the trust, and that the heir should not apprehend that he will be prejudiced by doing so. For relief can be granted him by the Prætor, whether he has been given security or not, even if the beneficiary of the trust should die before the estate had been delivered to him. A case of this kind appears in a Rescript of the Divine Pius, where a certain Antistia, at the time of her death, appointed Titius her heir, granted freedom directly to her slave Albina, and left her her own daughter in trust, charging her to manumit the latter. She also asked Titius to transfer the estate to the daughter of Albina, after she had been manumitted. Therefore, when Titius said that he considered the estate to be insolvent, it was set forth in a Rescript of the Divine Pius that he should be compelled to accept it, and, having done so, that Albina must receive her freedom, that her daughter should be delivered to her, and manumitted by her, and that, after her manumission, a guardian should also be appointed for the daughter by whose agency the estate must be immediately transferred to her, although Titius had been charged to deliver it as soon as she reached the marriageable age. The Emperor says that as it was possible that she to whom freedom and the estate were left in trust might die before the prescribed time, it would not be necessary to subject him to loss who, having been appointed, accepted the estate; and he afforded a remedy, so that if any of these things should take place, the property of Antistia would be sold, just as if she had had no heir. Hence, as the Divine Pius decided that relief might be granted an appointed heir who accepted the estate under compulsion, it could also be held that this precedent ought to be followed in other cases where an estate left in trust was transferred to the beneficiary who compelled the heir to enter upon it and deliver it to him.

Ulpianus, Trusts, Book IV. An heir who has been charged with a trust, under a condition, cannot defend himself in court by alleging that if the condition should fail to be fulfilled he will be liable to actions at law; for, according to what we have just stated, he cannot sustain any damage. 1Therefore, the presence of the heir is no longer required. 2Where the heir has any complaint to make on account of the will, he should not be heard if he alleges that he suspects the estate of being insolvent. For even if he should absolutely declare it to be insolvent, he should not be heard, if he says that the testator had no right to make a will, or if he impugns the validity of the instrument, or calls his own condition in question. 3But what if the heir disputes the validity of the trust? This allegation must not be passed by. What if the beneficiary of the trust asserts his claim; can the heir enter upon the estate, and then raise this point? I think that the beneficiary of the trust should in the meantime be heard, if the inquiry is liable to be prolonged; for suppose that the terms of the trust cannot be explained without a protraded investigation, and that a reasonable doubt may arise with reference to the amount left under the trust. In this instance it must be said that the heir ought to be compelled to enter upon the estate, lest, if he should die before the controversy is terminated, the beneficiary of the trust may be defrauded. 4It is proper to examine by whom a person can be compelled to enter upon and transfer an estate, so that, if a Prætor or a Consul should be appointed heir, and allege that he suspects the estate of being insolvent, it may be determined whether he can be compelled to accept and transfer it. It must be held that one Prætor has no jurisdiction over another, or one Consul over another, but if they are willing to subject themselves to his authority the Prætor can ordinarily decide the case. If, however, the Prætor himself, having been appointed heir, says that he suspects the estate of being insolvent, he cannot compel himself to accept it, because he cannot perform the duties of three persons; that is, of the one who declares the estate to be insolvent, the one who is compelled to accept it, and the one who forces him to do so. In all these cases, and in others like them, recourse should be had to the aid of the Emperor. 5Where a son under paternal control becomes a magistrate, he can compel his father, to whose authority he is subject, to accept and transfer an estate, even if he may say that he suspects it of being insolvent.

Ulpian, Trusts, Book IV. 1Where anyone has rejected an estate, he can be compelled to enter upon and transfer it, if good reasons are shown why he should do so. 2It is clear that if the property should have been sold, restitution ought not to be granted the beneficiary of the trust, even though he be a minor, unless good reason is shown, as the Divine Pius stated in a Rescript. 3Where anyone, through compulsion, enters upon an estate under the terms of the will, and a pupillary substitution has been made, the question arises whether the pupillary substitution is confirmed by the acceptance of the estate, as it would be considered extinguished if the estate of the father had not been entered upon. Julianus, in the Fifteenth Book, says that in a case of this kind the pupillary substitution is confirmed. This opinion is perfectly correct, for no one doubts that where legacies are paid and freedom granted, they, as well as anything else mentioned in the will, are just as valid as if the heir had voluntarily accepted the estate. 4Where anyone accepts an estate under compulsion, he is, in this instance, deprived of all the advantages which he would otherwise have enjoyed, to such an extent that he cannot retain his fourth, even if he should change his mind. I find that there is a Rescript to this effect which was issued by Our Emperor and his Divine Father. 5Everyone cannot compel an estate suspected of being insolvent, and therefore rejected, to be entered upon and transferred to himself, but he only can do so to whom the rights of action belonging to the estate may pass, for it is not just to force an heir to accept an estate in such a way that he must relinquish every benefit attaching to it, and himself be left to sustain its burdens. 6Hence, where a sum of money is left to anyone in trust, the right of compulsion does not apply, even though a bond of indemnity may be offered. 7Therefore, where anyone is charged to surrender an estate, he alone can be compelled to transfer it, 8But if anyone is asked to transfer all the property of the testator, his slaves, his money, or all his personal effects;

Ulpianus, Trusts, Book IV. He can be compelled to accept the estate. This same rule will apply if he should be charged to transfer his “patrimony,” his “property,” his “fortune,” his “substance,” or his “peculium,” for the reason that many authorities hold that his peculium means his patrimony. In the above-mentioned instances the testator seems to have referred to his estate. I am not ignorant that Marcianus entertains doubt with reference to some of these cases, and says that there is a question as to the intention of the testator, and whether he had in his mind only a certain sum of money, or his entire estate. Still, where there is an ambiguity, I hold that the testator had the whole of his estate in his mind in order that the trust might not be extinguished. 1But if anyone should make the following request, “I ask you to transfer to So-and-So everything which conies into your hands from my estate, or my property,” the heir can be compelled to enter upon and transfer the estate, under the terms of the Trebellian Decree of the Senate; although the expression, “comes into your hands,” may properly be said to mean what anyone receives after all claims have been deducted. 2Moreover, it may generally be said that an heir cannot be compelled to accept and transfer an estate where he is only requested to do so with reference to a certain piece of property, or a certain sum of money. If, however, it appears that the testator had reference to his entire estate, there is no doubt that he can be compelled to enter upon it, whether he rejects it because he suspects it of being insolvent, or accepts it voluntarily, as the rights of action will pass under the Trebellian Decree of the Senate. 3Ad Dig. 36,1,17,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 52, Note 17.Hence, the question arises, where anyone is asked to transfer an estate after having deducted the debts or the legacies, and the heir alleges that he suspects the estate to be insolvent, can he be compelled to accept and transfer the estate, because he is charged to transfer rather what remains of the estate than the estate itself? Some authorities, and among them Msecianus, think that this deduction is void, for a sum of money cannot be deducted from a right, any more than if the heir were requested to transfer a tract of land after deducting the debts or the legacies, as land is not susceptible of diminution on account of debts or legacies. He states, however, that Julianus holds that the Trebellian Decree of the Senate will apply in this instance, in order that the beneficiary of the trust may not be liable to a double burden; that is to say, when the heir deducts the indebtedness or the legacies, and when suit is brought by the creditors and the legatees. For where the estate is delivered to him under the Trebellian Decree of the Senate, the beneficiary of the trust either ought not to suffer the loss of the deduction made by the heir, or the heir should furnish security to defend him against the legatees and other creditors. 4Where anyone, who is appointed heir, is asked not to transfer the entire estate but only a portion of the same, or where he is asked to transfer it to two persons, and one of them wishes to accept it, and the other does not, the Senate decreed that the one who said that he suspected the estate of being insolvent should be released from liability, and that the entire estate should pass to him who compelled the heir to enter upon it. 5Ad Dig. 36,1,17,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 663, Note 4.If, however, a testator charges his heir to transfer, not his portion of the estate, but as much of it as came to him through Seia, and the appointed heir says that he believes the estate to be wholly or partly insolvent, the opinion of Papinianus, namely, that the rights of action pass under the Trebellian Decree of the Senate, will prevail; and it may be held that if the estate is alleged to be insolvent, the appointed heir can be compelled to enter upon and transfer it, and the entire estate will belong to him to whom it is transferred. 6Ad Dig. 36,1,17,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 663, Note 4.But where a soldier asks anyone to deliver his property which was situated in Italy, or some property situated in a province, it must be held that if the heir should say that he suspects the estate of being insolvent, he will be compelled to enter upon and transfer it. For, as Marcianus very properly says in the Sixth Book on Trusts, it is for this reason that a soldier can appoint an heir with reference to certain property, and the rights of action will be granted to him; likewise, for the same reason, rights of action will pass under the Trebellian Decree of the Senate. And, although it is well established that actions do not pass under the Trebellian Decree where the testator asks that property which came to him from anyone, or which he has in some country, shall be transferred, still, he says that the contrary opinion prevails with reference to military wills. For he remarks, as soldiers, when they appoint heirs, are permitted to separate their different kinds of property, so also the Trebellian Decree of the Senate allows this to be done where heirs are charged with the execution of a trust. 7If a certain man should appoint two heirs, and substitute them for one another, and charge them that if either became his heir, half of his estate should be transferred to a certain person after the lapse of five years, and the appointed heirs should say that they suspect the estate of being insolvent, and the beneficiary of the trust should wish them to accept it at his risk, the Senate decreed that both heirs, or one of them, could be compelled to enter upon the estate and transfer it to the beneficiary of the trust; so that the rights of action for and against the said beneficiary might pass just as where an estate is transferred under the Trebellian Decree of the Senate. 8Marcianus says that when some of the beneficiaries of a trust are absent, and one who is present wishes the heir to enter upon the estate at his risk, and consequently the rights of action pass entirely to him who compelled the heir to accept, if the beneficiaries who are absent desire to share in the trust, they can make the demand upon him who was present. Marcianus states that the result will be that a beneficiary of the trust who was present cannot retain the fourth against his fellow beneficiaries, because the heir himself could not do so. 9Marcianus also asks, where anyone is asked to transfer an estate to two or more beneficiaries, whether he can be compelled by one of them to enter upon it, and can avail himself of the benefit of the Falcidian portion, to which those who did not wish this to be done would have been entitled, whether they themselves wish the transfer to be made to them, or whether some other person, who has succeeded them, makes the demand. The rule which we make use of at present is that the entire estate shall pass to him who compelled its acceptance by the heir; and, in consequence, it must be said that the heir who was forced to accept it will lose the right to retain the fourth, because the rights of action pass unimpaired to him who compelled the acceptance of the estate. It is clear that if you suggest that the first beneficiary should not compel the entire estate to be transferred to him, when the others demand that it shall be transferred to them, it must be said that the heir will be entitled to the benefit of the Falcidian Law. Therefore, Marcianus very properly holds that it makes a great deal of difference whether the beneficiary asks that the entire estate shall be transferred to him, or whether he asks only for his share of the same. For if only his share is transferred, the Falcidian Law will apply to the remainder; but if the entire estate is transferred, the heir will not enjoy the benefit of the law. 10Where anyone is asked to transfer an estate to a slave belonging to two masters, and one of them wishes to compel the heir, who alleges that the estate is probably insolvent, to transfer it, and the other master refuses to accept it, it must be held that the case is the same as that where the heir is charged to transfer the estate to two persons, one of whom desires to accept it, while the other does not. 11Where a father is charged to transfer an estate to his son, who is under his control, can the son compel his father to make the transfer, if the latter says that he thinks the estate is insolvent? There is no doubt that the father can be compelled to do so by the intervention of the Prætor. 12Even when such a trust has reference to the castrense peculium of the son, who is in the military service, or holds some other office, it may more positively be said that the latter can demand that his father be compelled to enter upon the estate and transfer it to him, although in desiring this to be done he may appear to violate the filial respect due to his father. 13If, however, anyone should be asked to transfer an estate to his slave with the grant of his freedom, whether freedom is directly granted to the slave, or this is done under the terms of a trust, it may be said that he cannot be compelled, by his own slave, to accept the estate; although if he should do so voluntarily, he will be forced to grant him his freedom, and transfer the estate to him under the terms of the trust. This Marcellus says in the Seventh Book on Trusts. 14He also asks, when anyone is ready to give security to indemnify the master, whether the latter can be compelled to enter upon the estate, and especially if he should be tendered the price of the slave. He very properly holds that under the uncertain offer of the bond he is not required to venture to enter upon the estate. 15Where heirs are appointed to an entire estate who are incapable of taking it under the will, and are asked to transfer the whole of it, they can be compelled to accept or transfer it, as they will be subject to no liability on this account. 16If I should be appointed an heir and asked to manumit Stichus, or any other legatee should be asked to do so, and I should be charged to transfer the estate to Titius, and Titius should afterwards be charged to transfer the entire estate to Stichus, Stichus can compel me to enter upon and transfer the estate. 17The following matter was settled by a decision of the Divine Pius. A slave having been bequeathed to one of the heirs of a testator, the said heir was charged to grant the slave his freedom, and another was charged to transfer the estate to the same slave. The Divine Pius addressed a Rescript to Cassius Dexter in the following words: “If the slave Hermias was bequeathed by the testator Pamphilus, to Moscus Theodotus, whom he appointed heir to a portion of his estate, and Theodotus should afterwards enter upon the same before it was accepted by his co-heir appointed by the said Pamphilus, and he should have granted the slave his freedom, on account of this, he who bequeathed the legacy could not be considered as intestate; and Hermias, having petitioned me, the co-heir, Evarestatus must, under such circumstances, be compelled to accept the estate at the risk of Hermias, and to transfer it to him under the terms of the trust.”

Ulpianus, Trusts, Book V. Where anyone, having relinquished his rights under the will, obtains possession of an estate on the ground of intestacy, he must bestow freedom on the slaves, nor can this act of him who declines to take under the will injure them, as they become his freedmen.

Ulpianus, Trusts, Book V. Where a person to whom a legacy was bequeathed is asked to emancipate his children, should he be compelled to emancipate them? I remember that I said on this point that the children were excluded from demanding the execution of the trust; for the Prætor, acting as trustee, does not protect children who desire emancipation as he does slaves. I am aware that Papinianus also in the Ninth Book of Opinions stated that a father should not be compelled to emancipate his children. I think, however, that an extraordinary rule should be established in such cases, and that a father should be forced to emancipate his children when he has received property which was left to him with the understanding that he would emancipate them, for the intentions of testators should not be evaded. Hence this should be understood in the same way as where a legacy was bequeathed to him on condition of his emancipating his children, to enable him to emancipate them. The rule stated by the Divine Severus in a Rescript, agrees with this; for when a certain woman appointed her grandchildren her heirs, and appointed her son, their father, their co-heir, and substituted them for one another, requesting her son that he should emancipate her children, but did not ask him to transfer the estate to them, he was compelled by the authority of the Divine Severus to emancipate them, and to deliver the estate to them, and it was added that if he should delay to do this, he would be liable for interest on the amount unpaid while he was in default; for it was held that he who was in default in granting their emancipation was guilty of the same default with reference to the delivery of the property under the terms of the trust.

Ulpianus, Trusts, Book V. Generally speaking, we say that persons who can leave money under a trust can also bequeath a grant of freedom in the same manner. 1A grant of freedom under a trust, which is bequeathed to a slave of the Emperor, or of a municipality, or of anyone else, is valid. 2Where freedom is bequeathed by the terms of a trust to a slave of the enemy, can it be maintained that it is not without force or effect? Perhaps someone may say that a slave of the enemy is unworthy to become a Roman citizen. If, however, it is bequeathed to him in case he becomes one of our allies, what is there to prevent anyone from holding that the grant of freedom is valid? 3Where freedom is bequeathed under the terms of a trust to a man who is already free, and he is subsequently reduced to slavery, he can demand his freedom, provided he was a slave at the time of the death of the testator, or when a condition was fulfilled. 4Freedom can legally be left under a trust to a slave who is yet unborn. 5A slave cannot expect his freedom if he has been sentenced to the mines. But what if freedom was left to him under the terms of a trust, and he was released from the penalty of the mines by the indulgence of the Emperor? It was stated in a Rescript by our Emperor that he will not be restored to the ownership of his former master; but in this case, it is not stated to whom he will belong. It is certain that when he becomes the property of the Treasury that he can expect to obtain his freedom by virtue of the trust. 6Freedom under the terms of a trust can be granted to a slave conceived and born of a woman who was condemned to the mines. What is there surprising in this, as the Divine Pius stated in a Rescript that he could be sold as a slave? 7Where it is requested by the testator that Stichus should not afterwards serve as a slave, it was held that freedom should be considered to have been granted to him under a trust; for he who asks that he shall not afterwards serve as a slave is considered to ask that he be granted his freedom. 8Where, however, the testator states, “You shall not alienate or sell him,” the same rule will apply, provided that this was done by the testator with the intention that he should obtain his freedom. But if he inserted the clause with a different intention (for example, because he advised the heir to retain the slave; or because he desired to punish and torture the latter in order to prevent him from obtaining a better master, or did so with some other motive than that of liberating him), it must be said that he should not be granted his freedom. This was mentioned by Celsus in the Twenty-third Book of the Digest. It is not so much the terms of the trust as the intention of the testator, which usually confers freedom in such cases. As, however, freedom is always considered to be granted, it devolves upon the heir to prove the contrary intention of the testator. 9When anyone appoints a slave a guardian, because he thinks that he is free, it is absolutely certain that he cannot demand his freedom, nor can the right to the guardianship be maintained by him on account of the grant of freedom. This is held by Marcellus in the Fifteenth Book of the Digest, and Our Emperor, with his Father, also stated it in a Rescript. 10Where anyone grants liberty directly to a slave who has been pledged, although, by the strict construction of the law, the grant is held to be void; still, if freedom had been left to him by the terms of a trust, the slave can demand his liberation by virtue of it. For the favor conceded to freedom requires that we should interpret the bequest in this manner, and that the words of the will mean that freedom should be demanded, just as if the slave had been directed to be free under the terms of a trust. For it is well known that many things contrary to the strict construction of the law have been decided in favor of liberty. 11It is established that grants of freedom which are either direct, or dependent upon the terms of a trust, cannot be carried out under a will which has been broken by the birth of a posthumous child, where the testator has not charged his lawful heirs with their execution. 12Where anyone is requested to manumit his own slave, or the slave of another, and he receives less by the will of the testator than the value of the slave, whether he can be compelled either to purchase the slave belonging to another, or to manumit his own, is a question for consideration. Marcellus says that, as soon as he accepts the legacy, he will, by all means, be compelled to manumit his slave. And, indeed, this is our practice, as it makes a great deal of difference whether anyone is requested to manumit his own slave, or a slave belonging to someone else. If it is his own slave, he will be compelled to manumit him, even if the amount he receives is very small; but if it is the slave of another, he should not be forced to manumit him unless he can purchase the said slave for a sum equal to what he receives by the will of the testator. 13Hence Marcellus says that he also, who is appointed the heir, can be compelled to manumit his own slave, if he obtains anything from the estate after payment of its indebtedness, but if he obtains nothing, he cannot be forced to do so. 14It is clear that, if less has been bequeathed to anyone than the slave is worth, but the legacy has been increased for some reason or other, it will be perfectly just for him to be compelled to purchase the slave with the amount which he obtains from the estate; but it should not be said that he has been left less than the slave was worth, as his legacy has been increased by reason of the will. For if, through delay, the crops or the interest should be added to the amount bequeathed under the trust, it must be held that freedom ought to be granted. 15On the same principle, if the price of the slave has been reduced, it must be held that he should be forced to purchase him. 16Where, however, the legacy has been diminished, it must be considered whether he who expected to obtain a larger legacy can be compelled to manumit the slave. I think that if he is ready to refund the legacy, he cannot be forced to do so, for the reason that he accepted the legacy with a different prospect, and it has been unexpectedly diminished. Therefore, if he is ready to surrender the legacy, he shall be permitted to do so, unless what remains of it is sufficient to pay the price of the slave. 17But what if a person is charged to manumit several slaves, and the sum bequeathed is equal to the value of some of them, but not to that of all; can he be compelled to manumit some of them? I think that he can be compelled to manumit as many as the legacy will permit him to do. But who shall decide which ones shall be manumitted; must the legatee select them, or must the heir do so? Perhaps someone may very properly say that the order given in the will should be followed. If the order is not indicated therein, the slaves ought to be selected by lot, to prevent the Prætor from being suspected of favoring any through interest, or kindness; for he must render his decision by taking into account the alleged merits of each slave. 18In like manner, it must be held that, where a legatee is ordered to purchase certain slaves, and give them their freedom, and the money which was bequeathed for this purpose is not sufficient for the purchase of all of said slaves, the rule in this case will be the same as we have adopted in the preceding one. 19Where a legacy is bequeathed to anyone, and he is requested to manumit his own slave, and transfer the legacy to him, must freedom be granted under the terms of the trust? Some authorities are in doubt on this point, because if the legatee is compelled to give the slave his liberty, he will necessarily be obliged to execute the trust and transfer the legacy; and there are some authorities who hold that he should not be forced to do so. For if a legacy should be left to me, and I should be charged to immediately transfer it to Titius, and also to grant freedom under the trust to my slave, we should undoubtedly hold that I cannot be compelled to grant him his freedom, because I am not considered to have received anything to take the place of his value. It is clear that if I should be charged to pay the legacy after a certain time has elapsed, it may be held that I can be compelled to manumit the slave if, in the meantime, I have obtained any benefit from the legacy. 20Where anyone is asked to give to one person a tract of land, and to another a hundred aurei, at the time of his death, he will be compelled to pay whatever he has collected out of the profits of the land, if the amount is equal to that provided by the trust; so that, in this instance, it is not certain whether the money left under the trust, or the grant of freedom, will be due. 21Whenever freedom is legally bequeathed by the terms of a trust, the condition is such that the right can neither be extinguished by a donation, nor by usucaption; for no matter into whose hands the slave whose freedom has been left under the trust may come, his owner will be compelled to manumit him. This has been frequently set forth in the Imperial Constitutions. Therefore, he into whose hands the slave may come will be compelled to grant him his freedom by virtue of the trust, if he who was requested to do so prefers it; for it has been settled by a broader interpretation that, even if freedom were left to a slave conditionally, and he should be alienated while the condition is pending, he is, nevertheless, alienated with the understanding that he is to be free if the condition is complied with. If, however, the slave is unwilling to be manumitted by him, but prefers to obtain his freedom from the person who was charged to emancipate him, the Divine Hadrian and the Divine Pius stated in a Rescript that he must be heard. The Divine Pius also stated in a Rescript that even if he had been already manumitted and preferred to become the freedman of the person who had liberated him, he should be heard. But if the freedman can show that his rights may be, or have been prejudiced by his manumission, on account of some act of the person who manumitted him or for some other reason, relief must be granted him by one of these constitutions, in order that his condition may not become less endurable, which would be contrary to the wishes of the deceased. It is. clear that if the intention of the deceased was that the slave should be manumitted by anyone whomsoever, it must be said that the constitutions above referred to will not apply.

Ulpianus, Trusts, Book V. Where anyone who was requested to manumit the slave of another transfers the slave to a third party on account of his death or the confiscation of his property, I think that it should be held that there is ground for the application of the constitutions, in order that the condition of the freedom bequeathed by the trust may not be rendered worse. For when anyone is charged to manumit a slave at the time of his death, and he dies before giving the slave his freedom, it has been decided that it is the same as if the slave had been bequeathed his freedom by him; for he could have granted him his freedom directly by his will. The result of this is, that whenever anyone who obtains his freedom by virtue of a trust is manumitted by someone, other than the person charged with manumitting him, he will be entitled to the benefit of the constitutions, and will be regarded just as if he had been manumitted by him who was asked to do so; for the reason that favor is always shown to grants of freedom under a trust, and when they are bequeathed they should not be interfered with, as he to whom they are granted is in the meantime held to be in the enjoyment of his liberty. 1Therefore, it is apparent that relief should be granted where freedom is left under a trust, and that any delay which results should be considered as proceeding from the matter itself, and in reckoning the day from which freedom can be demanded, children should be given to their mother to be manumitted, where she is a liberated slave, and the children are born free from the day when freedom was demanded. For, generally, freedom which is left under a trust is demanded too late, or is not demanded at all, on account of the neglect or timidity of those who are entitled to it; or because of their ignorance of their rights; or on account of the authority and rank of those who are charged with the execution of the trust; which things should not stand in the way of the acquisition of freedom. Hence we maintain, and it should so be decided, that children are born free from the very time when any delay is made in liberating their mother from servitude; and, moreover, the child of a female slave should be considered as manumitted from the very time when the mother had the right to demand her freedom, even though she may not have done so. It is clear that relief should be granted to minors of twenty-five years of age in a case of this kind, and that any delay should be held to have proceeded from the matter itself; for, as it has been decreed and set forth in the Constitution of the Divine Severus that wherever delay takes place in the payment of money left to minors under a trust, it should be considered as having proceeded from the matter itself, there is still greater reason that this rule should be adopted where grants of freedom are involved. 2A certain Cæcilius, who had given a female slave in pledge, provided by his will that, after the claim of his creditor had been satisfied, the slave should be manumitted by virtue of a trust. The heirs not having paid the creditor, the children afterwards born to the said slave were sold by him. Our Emperor and his Father stated in a Rescript that, in accordance with what had been decided by the Divine Pius, the children should not be defrauded of the freedom to which they are entitled, and that the price having been refunded to the purchaser, they should become free; just as if their mother had been manumitted at the time when they were born. 3Our Emperor and his Father also stated in a Rescript that if a will or a codicil had not been opened within five years after the death of the testator, and the female slave had had a child in the meantime, it should be delivered to its mother, in order that it might be granted its freedom; and that it should not remain in slavery on account of accidental delay. 4It is, therefore, apparent from this Rescript, as well as from the one which we have mentioned as promulgated by the Divine Pius, that these Emperors were unwilling that any accidental delay in granting freedom should prejudice the rights of a child born of a slave to whom freedom was granted under the terms of a trust. 5This, however, will not be the case where freedom is to be granted under a trust to a female slave by the substitute of a son under the age of puberty, if she had the child during the lifetime of the minor; or if she was to receive her freedom after the lapse of a certain time, or conditionally, and she brought forth the child before the time had arrived, or before the condition had been complied with; for the said child will not be entitled to freedom because the condition in this case is different, as the delay was not accidental, but was caused by the will of the testator. 6If a slave should be bequeathed to anyone in such a way that the legacy is held to be void, and freedom is bequeathed to the same slave under the terms of a trust, the question arises whether the grant of freedom must also be held to be void. And if the slave demands his freedom under the terms of the trust of the person under whose control he remains, where the legacy left to him who was charged to manumit him has been declared to be void, or if the slave himself was bequeathed as was stated above, whether the bequest of his freedom should not be considered to be without force or effect. I think it should be said that the grant of freedom under the trust remains unimpaired, even though nothing may come into the hands of him who was asked to manumit the slave. Hence, he who obtains the legacy must liberate the slave, for the reason that freedom granted under the terms of a trust permits no obstacle to be interposed. 7In the case of bequests of freedom, relief is granted by a decree of the Senate enacted in the time of the Divine Trajan, during the Consulate of Rubrius Gallus and Cælius Hispo, as follows: “If those charged with a grant of freedom, having been summoned by the Prætor, refuse to appear, and, after investigation, the Prætor finds that the slaves are entitled to be free, they will be in the same position under the law as if they had been directly manumitted.” 8This Decree of the Senate has reference to those who are entitled to freedom by virtue of a trust. Hence, if they are not entitled to it, and it has been fraudulently obtained by a decision of the Prætor, freedom will not be granted under this Decree of the Senate. This Our Emperor and his Father stated in a Rescript. 9Those must be summoned before the Prætor who are obliged to grant freedom under a trust, but the Rubrian Decree of the Senate will not apply unless they are summoned. Hence, they should be summoned by notices, by edicts, or by letters. 10This Decree of the Senate applies to all those who conceal themselves, and who are required to grant freedom under the terms of a trust. Hence, no matter who is charged, whether it is the heir or anyone else, there will be ground for the application of the Decree of the Senate; for all of those who are obliged to grant freedom by virtue of a trust are in such a position that the Decree of the Senate will be applicable to them. 11Wherefore, if the heir should conceal himself, and the legatee or the trustee who was asked to grant freedom to a slave is present, the Decree of the Senate will not take effect, and the grant of freedom will be prevented; for, in this instance, we suppose that the legatee has not yet obtained ownership of the slave.

Ulpianus, Trusts, Book V. Will there be ground for the application of the Rubrian Decree of the Senate, if a slave, to whom freedom was bequeathed by a trust, should be sold by the person charged with his liberation, and the purchaser should conceal himself, but the trustee should appear? Marcellus says that the Decree will apply, because the party who was charged to manumit the slave is not present. 1The following words, “Refuse to appear,” do not absolutely require that he whose duty it is to grant freedom should conceal himself, for if he does not do so, but merely fails to appear, the Decree of the Senate will be applicable. 2The same rule should also be observed where several heirs are charged with the granting of freedom under the trust, and a decision rendered that no good cause exists for their absence. 3The slave will become the freedman of those who are absent for a good reason, as well as of those who, being present, do not cause delay in the execution of the trust, just as if they alone had granted him his freedom. 4Where anyone, having been charged to manumit a slave that does not belong to the estate, conceals himself, a Decree of the Senate to provide for such an emergency was enacted during the Consulate of Æmilius Junius and Julius Severus as follows: “It is decided that where any one of those who are charged to grant freedom to a slave under a trust, for any reason whatsoever, and the slave did not belong to the person who made the request at the time of his death, and the trustee refuses to appear, the Prætor shall take cognizance of the case, and if it is established that the slave has a right to be manumitted, and the person charged with his manumission is present, he must decide accordingly. And, after he has rendered his decision, the condition of the slave will be the same in law as it would have been if he had been manumitted by the person who was charged to do so under the trust.” 5It must be held that persons are not present for a good reason, when no improper cause exists for their absence; as it is sufficient if they have not absented themselves for the purpose of defrauding the slave of his freedom, in order that they may appear to be absent for a good reason. It is, however, not necessary that anyone should be absent on public business. Hence, if he has his domicile in one place, and he applies for freedom under the trust in another, it must be said that it is not essential for him who is alleged to be the one from whom the grant of freedom is due to be summoned, because if while he is absent, it should be established that freedom ought to be granted, a decree can be rendered that he is absent for a good reason, and he will not lose his rights over his freedman; for no one can entertain any doubt that he is absent for a just cause who is at his own residence.

Ulpianus, Trusts, Book V. When a decree is rendered by the Prætor that he who is absent has good reason for it, and he is already dead, Our Emperor stated in a Rescript that the decree must be transferred to his heir, and that the law would apply to him just as if the Prætor had decided that he himself was absent for a good reason. 1Where an infant was among the slaves entitled to manumission, the Senate decided that the age of one of them would prevent the others who were entitled to be free under the terms of the trust from obtaining their liberty. 2This rule will also apply where only one heir is appointed, and he is unable to speak for himself. 3When, however, the minor has a guardian, and he is unwilling to authorize the grant of freedom, the Divine Brothers stated in a Rescript that the slave should become free under the terms of the trust, just as if he had been manumitted by the minor himself, by the authority of his guardian; and that it should not be productive of any disadvantage to the minor, nor would it, in any way, prejudice the grant of freedom, if he did not have the slave as his freedman. 4Therefore, when any case occurs in which a child is not able to speak for himself, and yet is charged with a grant of freedom under a trust, we must take into consideration the spirit of the Decree of the Senate, which even extends to the infant heir of the person charged with the execution of the trust. 5Recourse should also be had to the Prætor under these circumstances, especially as it is provided by a Rescript of the Divine Pius that where some of those charged with the execution of the trust are present, and others have concealed themselves, and others again are absent for some good reason, and there is also an infant, the slave will not become the freedman of all of them, but only of the infant and of those who are absent for a good reason, or of those who are present. 6Where several heirs are appointed, and among them there is one who cannot speak for himself, but who has not been charged to manumit the slave, the grant of freedom will not lose its effect because the infant cannot sell his share of the slave to his co-heirs. The Vitrasian Decree of the Senate is applicable in this instance. The Divine Pius, however, stated in a Rescript addressed to Cassius Dexter, that the matter could be disposed of as follows, namely, by appraising the shares of the slaves to whom freedom was granted under the terms of the trust, at their true value, and then directing the slaves to be manumitted by the persons charged with that duty. Those who manumitted them will, however, be liable to their brothers and coheirs, just as if judgment had been rendered against them on this account in court. 7The Divine Pius stated in a Rescript, with reference to an insane person, that freedom granted under a trust was not prevented on account of the condition of the appointed heir, where it was alleged that he was not of sound mind; and, therefore, if it should be established that freedom had been legally provided for by the trust, a decree must be rendered in which this is stated. 8Relief should be granted to a deaf and dumb person just as in the case of an infant. 9Where anyone dies without leaving an heir or other successor who can execute the trust conferring freedom, the Senate decreed that relief should be granted upon application being made to the Prætor. 10If, however, a proper heir should reject the estate, relief should be granted by the Decree of the Senate to the person entitled to freedom under the trust; even though he cannot be said to die without an heir, who leaves a proper heir, even if he rejects the estate. 11The same rule will also apply where a minor of twenty-five years of age enters upon the estate of the person charged with granting him freedom, and obtains complete restitution because of his rejection of the estate. 12It may also be asked whose freedman the slave becomes; for, in accordance with the constitution, he obtains his freedom just as if he had acquired it by virtue of the will. He will, therefore, become the freedman of the deceased, and not of him who was charged with the execution of the trust. 13A Rescript of the Divine Marcus and Verus is extant which says that where one of those charged with the execution of the trust dies without leaving a successor, and the other is absent for some good reason, the slave shall be entitled to his freedom, just as if it had been granted to him regularly by the person who died without a successor, or by him who was absent for a good reason. 14A very nice point may arise; that is, where an heir dies without a successor, whether the slave can obtain his freedom before it is certain that an heir or a possessor of the estate under the Prætorian Edict will not appear, or while it is still doubtful (for instance, while the appointed heir is deliberating), whether he will accept the estate. The better opinion is that it is necessary to wait until it is certain that no successor will appear. 15Our Emperor, Antoninus, stated in a Rescript that a slave who is entitled to freedom by virtue of a trust cannot receive anything under the will of the heir without his freedom being mentioned. 16The Divine Marcus also stated in a Rescript that grants of freedom under a trust could not be annulled or unfavorably affected by the age, the condition, the default, or the tardy action of those who were required to see that they were executed. 17Although a bequest of freedom made by a codicil which is void is not due, still, if the heir considered the codicil to be valid, and paid out anything under it, and desired that the slaves should remain free for the sake of carrying out the provisions of the trust, it has been declared by a Rescript of Our Emperor and his Divine Father that they will justly be entitled to their freedom.

The Same, Trusts, Book VI. Women who are married to persons of illustrious rank are included in the appellation of illustrious persons. The daughters of Senators are not known by the name of illustrious women, unless they have obtained husbands of eminent dignity, for their husbands confer illustrious rank upon them; but parents, indeed, do so, so long as they are not connected with plebeian families. Therefore, a woman is of illustrious rank while she is married to a Senator or a distinguished man; or, having been separated from him, she has not married a person of inferior station.

Ulpianus, Trusts, Book VI. In a case where an unmarried woman had undertaken a defence before a competent judge and was defeated, and afterwards married a man who was subject to a different jurisdiction, the question arose whether the judgment of the former court could be executed? I have said that it could, because judgment had been rendered before her marriage; but if this had occurred after the judge had taken cognizance of the case, and before judgment, I hold the same opinion, namely that the decision of the first judge was properly rendered. This rule should be observed generally in all cases of this description. 1When the amount is made the subject of inquiry with reference to jurisdiction, the sum claimed must always be considered, and not that which is due.

Ulpianus, Trusts, Book VI. Where an action for the execution of a trust is brought by anyone, and the defendant alleges that the greater portion of the estate is situated elsewhere, he cannot be forced to execute the trust; and it is provided by many constitutions that where an action is brought to enforce compliance with a trust, this must be done where the greater portion of the estate is situated; unless it is proved that the testator wished the trust to be executed where suit was brought. 1The question has been raised with respect to borrowed money; whether when the greater part of the indebtedness was in the province where suit is brought to enforce a trust, could the action be transferred to some other place, because the bulk of the estate was elsewhere? It was, however, established in this instance that the fact of the indebtedness is of no importance, as it is not dependent on the place, but on the entire assets of the estate; for a debt is a diminution of the entire estate, and not of the assets in any particular locality. But what if this part of the estate were charged with some burden, as, for instance, to furnish support which the testator ordered to be done at Rome, or with taxes; or with any other unavoidable burdens; in these instances would the party be entitled to have the case transferred? I think that it may be said with great justice that he would. 2It has, however, been stated in a rescript that suit should be brought to enforce a trust in the place where the heir resides. 3But whenever anyone begins to make payment in compliance with the terms of the trust, he cannot subsequently avail himself of this resource:

Ulpianus, Trusts, Book VI. But if the heir appears in an action on the trust and makes use of other defences, but neglects this one, he cannot afterwards have recourse to it, even before a decision is rendered. 1Where a testator directs in his will that tickets for grain should be purchased for his freedmen; then, although the greater portion of the estate is in a province, still, the trust must be carried out at Rome; which is the proper opinion, since it is evident that it was the intention of the testator that this should be done, on account of the nature of the purchase. 2Moreover, if you should suggest the following case, namely: that a certain amount of silver or gold was bequeathed to such-and-such illustrious persons, and there is enough of the estate at Rome to execute the trust, even though the greater portion of the estate is situated in a province; it should be held that the trust must be discharged at Rome; for it is not very probable that a testator who intended to show honor to those to whom he bequeathed such moderate legacies under the trust, should have desired them to be paid in the province. 3Ad Dig. 5,1,52,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 282, Note 7.Where the property left under a trust is at hand, it must be held that anyone who brings suit for it cannot be barred by an exception on the ground that the greater portion of the estate is elsewhere. 4Where, however, the property which is the subject of the trust is not to be sued for where it is situated, but security for the execution of the trust is to be given; it must be considered whether an exception can be pleaded (and I do not think that it can) and, indeed, even if there is no property there, still the party must be required to furnish security. For what is there to fear, since, if he does not give security, his adversary will be placed in possession in order to protect the trust?

Ulpianus, Trusts, Book VI. If property should be left to me in trust, and the same property should be bequeathed to you either as a legacy, or in trust, not with the intention of dividing it, but entirely to each one of us, there is no doubt that if it should be given to one alone, the other will have no right whatever in the property, but he will be entitled to an action to recover the entire price of the same.

Ulpianus, Trusts, Book VI. Where an indefinite amount is mentioned in a trust, sureties shall be demanded, after the amount has been established by the decision of the magistrate who has jurisdiction of the case. 1We must also remember that in matters relating to property in which the public is interested, it is not customary for security to be required for the execution of trusts, even if sometimes a necessity should arise for giving it. It is clear, however, that a promise can be exacted that the will of the deceased shall be executed.

Ulpianus, Trusts, Book VI. When an absolute grant of freedom is made under the terms of a trust to a slave who is said to have administered the affairs of his master, the Divine Marcus stated in a Rescript that it should not be delayed; but that an arbiter must immediately be appointed for the purpose of compelling the slave to render an account. The words of the Rescript are as follows: “It seems to be the more equitable course to grant freedom to Trophinus at once under the trust, because it is established that it was bestowed without the condition of his rendering an account. Nor would it be humane for the enjoyment of his liberty to be delayed on account of any pecuniary question which may arise. However, as soon as he obtains his freedom, an arbiter should be appointed by the Prætor before whom he who transacted the business must appear and render an account.” Therefore, he is only obliged to render an account, but nothing is said as to his paying over any balance which may remain in his hands. I do not think that he can be forced to do so, for he cannot be sued after having obtained his freedom on account of any business which he transacted while in servitude. It is clear that he can be forced by the Prætor to surrender any property mentioned in his accounts, and all the articles or money of which he has possession, as well as to give information with reference to special matters.

Ad Dig. 42,4,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 6b.Ulpianus, Trusts, Book VI. He who has received property in exchange resembles a purchaser, and he also who receives property in payment, and one who accepts the amount of its appraisement in court, as well as he who acquires anything by virtue of a stipulation, and not through liberality, occupy the same legal position.

The Same, Trusts, Book VI. If, when a slave purchased property, he knew that it was in litigation, but his master was not aware of this, or vice versa, let us see whose knowledge of the fact should be taken into account. The better opinion is that the knowledge of him who purchased the property, and not that of him by whom it was acquired, should be considered. Hence, the penalty attaching to the purchase of the above-mentioned property, which is in litigation, can be collected, provided the slave did not buy it under the direction of his master, for if he did so, even if he knew that the title was in dispute, and his master was ignorant of the fact, the knowledge of the slave will not prejudice him. This was also stated by Julianus with reference to property in litigation.

Ulpianus, Trusts, Book VI. Our Emperor stated in a Rescript that the Treasury would be entitled to a real action where the existence of a secret trust is established.

The Same, Trusts, Book VI. No one doubts that he should be considered solvent who is defended.