Ulpianus, On Sabinus, Book XXIII. Where property is bequeathed to anyone when he attains the age of fourteen years, according to the rule in common use, the legatee must have fully completed his fourteenth year; and this Marcellus states was decreed by the Emperor. 1Therefore, where property is left to a legatee when he arrives at his fourteenth year, payable in three different instalments in one, two, and three years, and he has reached his seventeenth year at the time of the testator’s death, the legacy should all be paid at once. Hence, if the legatee has attained his fifteenth year, we hold that the legacy will be due after the lapse of two years; if he has reached his sixteenth year, it will be due a year afterwards; if some months are lacking before he reaches his seventeenth year, the legacy will be due after those months have elapsed. This, however, will be the case if the testator thought that the minor was fourteen years of age when he made the bequest, when in fact he was more than that, and if he was aware of it, we must calculate that the payment of the legacy must be made three years after the date of the will. 2Again, this legacy is both conditional and dependent upon a certain time. It is conditional until the legatee has passed his fourteenth year, and afterwards it is dependent upon time. 3Therefore, if the legatee should die before attaining his fourteenth year, nothing passes to his heir. It is certain that if he dies subsequently, the property will pass to his heir. But if at the time that the will was made the son should be under fourteen years of age, I think that the periods of one, two, and three years, fixed for the payment, are to be computed from the time when the legatee reached the age of fourteen years, unless it is clearly proved that the intention of the testator was otherwise. 4If I should bequeath to Titius the sum of ten aurei, which I owe to someone else, and request him to pay it to my creditor, the trust is not valid so far as the creditor is personally concerned, because it is of no benefit to him; still, my heir can bring an action against the legatee, on the ground that it is to his interest for my creditor to be paid to prevent him from bringing suit. Therefore the legacy will be valid. 5Where a testator owes me ten aurei for which he gave a surety, a demand for the discharge of the trust cannot only be made by the heir, but also by the surety; for it is to the interest of the latter that I should be paid, rather than he should be sued, and then bring an action on mandate. It makes no difference whether he is solvent or not. 6Julianus asks, in the Thirty-ninth Book of the Digest, if a surety bequeaths to the creditor what he owes him, whether the legacy will be valid. He says that this in no way benefits the creditor, but that the debtor will be entitled to an action arising from the will, for it is to his interest to be discharged from liability, although he cannot be sued by the heir of the surety. 7But if the same surety makes a bequest to Titius, and charges him to pay his creditor, both the debtor and the heir of the surety fan bring an action against Titius, by virtue of the trust, because it is to the interest of both of them that the trust should be discharged. 8It should also be remembered that a party who is charged merely with the sale of a tract of land to someone cannot be required to give it to him, but only to sell it for a reasonable price. 9Where, however, the heir was charged to sell the property for a certain price, he is required to sell it for that price.

The Same, On Sabinus, Book XXIII. Where a son under paternal control bequeaths a legacy, “When he will be his own guardian,” the age of puberty is meant. And, in fact, if a legacy is bequeathed to a son under paternal control who has not reached the age of puberty, the opinion of Sabinus and the one generally adopted is that this means not when he becomes the head of a household, but when he arrives at the age of puberty. However, if a mother, who is suspicious of the life which her husband is leading, and from whom she has been divorced, should bequeath a legacy to her son, even though he may not have reached the age of puberty; she is understood to have had in view not the time when he shall have reached that age, but the time when he shall both have reached that age, and have become the head of a household. For if he should arrive at puberty afterwards, we can say much more decisively that she had in mind the time when he should become the head of a household, than if she had said: “When he will be his own guardian, and has control over himself.” 1If anyone should bequeath a legacy to the head of a household, who has not yet reached the age of puberty, “When he shall be his own guardian,” he is considered to have had in mind the age of puberty. Sometimes this has reference to the age of twenty-five years, where the intention of the testator is apparent. If, however, he should make a bequest to a person who is over the age of puberty, but under twenty-five, there is no doubt that he had in mind the age of twenty-five. 2Likewise, if a bequest is made to a lunatic, a spendthrift, or a person for whom the Prætor has appointed a guardian, for some reason or other, I think that the testator should be considered to have had in view the time when the party in question would be released from curatorship or guardianship. 3From these instances and others of the same kind, it becomes evident that Sabinus was of the opinion that the intention of the testator was the principal point involved. And, in order that there may be no doubt where a legacy has been left to a child under the age of puberty, and especially where one has been left to a person over twenty-five years of age, the testator must be understood to have meant when the legatee should have control of himself. 4Moreover, this clause is susceptible of various interpretations, and depends upon the intention of the testator, just as the following one, where he says, “When he becomes his own master.” For sometimes it is understood in one way and sometimes another, as frequently it means the freedom of the legatee from control, and then again it has reference to the age of puberty, or his twenty-fifth year. 5For my part, however, I think that, if anyone should make a bequest to an individual who has attained the age of puberty but is still under the age of twenty-five years, as follows, “When he shall reach the age of puberty,” the testator had in his mind the age when he would not be entitled to complete restitution. 6Likewise, where anyone makes a bequest to a person, “When he shall become of age,” or, “Of lawful age,” the intention of the testator must be ascertained as to whether he meant the age of puberty or that of twenty-five years; just as if he had written, “When he arrives at lawful age,” or “At mature age” or “When he grows up.”

The Same, On Sabinus, Book XXIII. This, of course, will be the case, if he should select the vinegar before the wine was shown to him, and before it was tasted.

Ulpianus, On Sabinus, Book XXIII. If a hundred measures of wine should be bequeathed to anyone, leaving none for the estate, the heir can purchase and deliver wine, but he cannot deliver vinegar which was found among the wine of the testator. 1Where wine is bequeathed, let us see whether the legatee is also entitled to the vessels in which it is contained. Celsus says that where wine is bequeathed, even though the vessels may not be included in the legacy, they are held to be bequeathed; not because they are a part of the wine, to the same extent as the chasing constitutes a part of a cup or a mirror, but because it is probable that the intention of the testator was that he wished the vessels to be accessory to the wine; and hence he says it is usual for us to say that we have a thousand jars, referring to the quantity of the wine. I do not think that this opinion is correct with reference to casks, so that where wine is bequeathed, the casks will also be due; especially if they are fastened in the wine cellar, or it is difficult to move them on account of their size. With reference to vats, however, or small receptacles, I think that they are included, and will be due, unless they are likewise fixed immovably in the ground, and are there as utensils belonging to the same. Where wine is bequeathed, I hold that neither leathern bags nor bottles are included.

Ulpianus, On Sabinus, Book XXIII. Where anyone bequeaths wine, everything is included which, having originated from the vine, retains the nature of wine. If, however, mead is made, it will not properly be included in the term wine, unless the head of the household had this intention. And, in fact, as the beverage called zythum, which is made in some provinces from wheat, barley, or bread, will not be included, so neither beer nor hydromeli is included. But what would be the case with wine mixed with other substances? I do not think that it will be included, unless the intention of the testator was that it should be. It is clear that wine mingled with honey, that is to say, very sweet wine, will be included; and the drink made of raisins will also be, unless the intention was otherwise. New wine, boiled down and spiced, is not included, because it rather resembles a compound. Wine made of water and grapes is evidently included. The beverage of quinces, and any other drinks not derived from the vine, are not embraced in the term wine, likewise vinegar does not come under that category. None of these things will be included in the term wine, if they were not classed as such by the testator. Sabinus, however, stated that everything will be included under the appellation of wine which the testator considered to be such. Therefore, vinegar which the testator considered as wine, as well as zythum, beer, and all other beverages which, according to the taste and use of man, are classed as wine, will be included. If all the wine which the testator possessed had become sour, the legacy will not be extinguished. 1If anyone should bequeath vinegar, that vinegar which the testator kept as wine will not be included. Fruits preserved in vinegar will be included, because they come under the head of vinegar. 2Likewise, where anyone bequeaths wine which he had in his possession, and it should afterwards become sour, even though it may have subsequently been placed with the vinegar by the testator, it will be included with the wine which was bequeathed, because that was designated which was wine at the time when the will was executed. This also is true unless opposed to the intention of the testator. 3Where wine which came from the estate of the testator’s father is bequeathed, that only is held to have been left which the former kept as wine, and not what his father considered to be such. Moreover, where wine belonging to a peculium is bequeathed, that only is included which the slaves regarded as wine. What is the reason for this distinction? It is because the wine of the testator’s father has already begun to belong to him, but that forming part of the peculium remained for the use of the slaves. 4The same rule applies where old wine is bequeathed.

Ulpianus, On Sabinus, Book XXIII. “Old wine” is understood to be such as is not new, that is to say, wine of the preceding year will be included under the term “old.”

Ulpianus, On Sabinus, Book XXIII. “Let my heir give to So-and-So, every year, ten measures of wine out of that obtained from such-and-such an estate.” Sabinus thinks that where no wine was made during one year, the heir must furnish the amount to the legatee from the yield of the preceding year. This opinion I also adopt, if it is not contrary to the intention of the testator.

Ulpianus, On Sabinus, Book XXIII. It is certain that, at present, a release can be bequeathed to a debtor. 1But, even if the testator, at the time of his death, should give a debtor his note, I think that the latter will be entitled to an exception, as the surrender of the note will be valid as a trust. 2Julianus, in the Fortieth Book of the Digest, says that if anyone, when about to die, should give a note of Seius to Titius, and direct him to deliver it to Seius after his death; or, if he should recover, return it to him; and then Titius should give the note to Seius after the death of the creditor, and the heir of the latter should attempt to collect the debt, Seius will be entitled to an exception on the ground of fraud. 3Let us now see what will be the effect of this legacy. And, indeed if the release of a debt is left to me the only debtor, and an attempt is made to collect it from me, I can avail myself of an exception; or, if such an attempt is not made, I can bring an action to obtain a discharge from liability by means of a receipt. Still, even though I may be a joint-debtor with another party, for instance, where both of us are principal debtors, and the testator desired to favor me alone, I can bring suit, not to be discharged from liability by a receipt, nor that my fellow-debtor may be released against the intention of the testator, but that I may be released by an agreement. But what if we were partners? Let us see whether I should be released by means of a receipt; otherwise, would I not be subjected to annoyance, if suit were brought against my fellow-debtor? Julianus, in the Thirty-second Book of the Digest, states that if we are not partners, I ought to be released by an agreement, but if we are partners, this should be effected by means of a receipt. 4Hence the question arises, whether a partner should be considered a legatee whose name is not mentioned in a will, although it is an advantage to both parties if they are partners. It is true that not only he whose name is mentioned in a will should be considered a legatee, but also he who is not mentioned therein, if the testator had him in his mind at the time when the release was bequeathed. 5Both parties, however, are considered to be legatees in this instance. For if I owe anything to Titius, and, in order to favor me, the bequest is made to him on condition that I shall be released, no one will deny that I am a legatee, as Julianus states in the same Book; and Marcellus says in a note that the legacy is bequeathed to both parties, as much as to my creditor, even though I may be solvent, for it is always to the interest of the creditor to have two debtors liable for the same obligation.

Ulpianus, On Sabinus, Book XXIII. Where a testator has a principal and a surety indebted to him, and bequeaths a release to the principal, Julianus states in the same place that the principal ought to be released by means of a receipt; otherwise, if the heir should sue the surety, the principal debtor will be brought into the case in another way. But what if the surety intervenes for the purpose of making a donation, and has no recourse against the principal debtor? Or, what course must be pursued if the money had come into the hands of the surety, and he had given a principal in his stead, to whom he himself furnished a surety? In this instance, the principal debtor should be released by agreement. We are, however, accustomed to hold that the same exception on the ground of contract to which the principal debtor is entitled should be granted the surety. We say that this does not, in any way, apply to this case; as, when a testator leaves a legacy, his intention is one thing, and that of the heir when he makes an agreement is another. 1If, however, a release should be bequeathed to a surety, there is no doubt, as Julianus says that the surety should be released by the agreement of the heir. Still, I think that in a case of this kind he should sometimes be released by a receipt, if the party himself was the actual debtor, or if he was a partner with the principal in the transaction. 2Julianus, in the same Book, also states that if a son under paternal control should become a debtor, and his release is bequeathed to his father, the latter ought to be discharged from liability by an agreement, to avoid the son from being released. And he adds that it makes little difference whether there is any property in the peculium of the son on the day when the legacy vests, or not, for the father will always be secured by means of the legacy; and he holds that this is especially the case when the amount of the peculium is considered with reference to the time when the judgment was rendered. Julianus compares a husband to a father where his wife, after divorce, bequeathed him a release from liability for her dowry; for he, also, although he may not have been solvent at the time when the legacy vested, will be a legatee, and he says that both the parties cannot recover what has already been paid. The better opinion, however, as Marcellus observes, is that the father can bring an action, for he was not yet a debtor when he made payment, as the husband cannot do this, if he has paid the debt. For even if anyone should think that the father was a debtor, still, he only occupies the place of a conditional debtor, and there is no doubt that he can recover what he paid. 3Where, however, an heir is charged to release the son, Julianus does not add that the former should be released, either by a receipt or by an agreement, but he seems to think that the son should be discharged from liability, as it were, by a receipt; which transaction would also be a benefit to the father. This rule should prevail, unless it can be clearly proved that the testator intended otherwise, that is to say, that neither the son nor the father should be annoyed; for in this instance he ought to be released, not by means of a receipt, but by an agreement. 4Julianus also says that where a father becomes surety for his son, and his release is bequeathed to him, he should be discharged from liability by an agreement, as a surety, and not as a father; and therefore suit can be brought against him with reference to the peculium. Finally, he thinks that this rule only applies where the testator intended that he should be released as a surety, but if he intended that he should also be released as a father, he should also be discharged from liability for the peculium.

Ulpianus, On Sabinus, Book XXIII. Moreover, not only what is due can be remitted, but also a portion of the same, that is to say, a part of the obligation, as is stated by Julianus in the Thirty-third Book of the Digest. 1Where he who has stipulated for the delivery of Stichus, or ten aurei, charges his heir not to demand Stichus, it is established that the legacy is valid; but let us consider what it includes. Julianus says that it appears that an action can be brought under the will to compel the discharge of the debtor by a receipt, which will also release him so far as the ten aurei are concerned, because a receipt is equivalent to payment; and just as the debtor should be released if he had delivered Stichus, so he will be discharged from liability by the receipt for Stichus. 2If, however, the heir should be charged to release the debtor from the payment of twenty aurei, Julianus also states, in the Thirty-third Book, that the debtor should, nevertheless, be released from liability for ten, as if he obtains a receipt for twenty, he will be discharged from liability for the former amount. 3Where two heirs have been appointed by a debtor, and he charges one of them to pay his creditor, the legacy will be valid so far as his co-heir is concerned, and the latter will have a right to bring suit to compel payment to the creditor. 4A release bequeathed to a debtor only becomes effective where payment has not been required from him, during the lifetime of the testator; if, however, it has been required, the legacy is extinguished. 5Therefore Julianus asks, if a release is bequeathed, and the substitute of a minor child is charged with the same, and the minor afterwards exacts payment of what is due, whether the legacy will be extinguished. And, as it is established that a minor, so far as a legacy with which his substitute is charged is concerned, occupies the same position as an heir charged with a conditional bequest, the result is that the substitute will be liable to an action under the will, if the minor should demand payment of the claim by the debtor. 6The same rule applies where the minor does not exact payment, but only institutes proceedings in court, for the substitute will be compelled to have the action dismissed. 7For if the release had been bequeathed to the debtor conditionally, and either issue had been joined, or payment had been exacted before the condition was fulfilled, the debtor will still be entitled to his action under the will to obtain the release which was bequeathed to him.

The Same, On Sabinus, Book XXIII. The following condition, “I bequeath to my daughter, when she is married,” signifies that the person who executed the will intended that the condition should only be fulfilled, and that it made no difference when this was done. Therefore, if the daughter should marry after the will was made, and during the lifetime of the testator, the condition will be held to have been complied with, and especially where it is of such a character that it should be complied with but once. All material unions, however, do not bring about the fulfillment of a condition; for instance, where a girl who is not yet nubile is married, she does not comply with the condition. We say that the same rule will apply if she should marry anyone with whom she cannot be united according to law. But can any doubt arise whether she can comply with the condition by marrying afterwards, just as if she had not married the first time? If the testator had had in his mind the first marriage of his daughter, I think that the condition has failed; still the indulgent interpretation should be given that as the condition has not yet been fulfilled, it has not failed. 1Where a legacy was bequeathed under the following condition: “If a ship should arrive from Asia,” and the ship should arrive at the time that the will was made, but the testator was ignorant of the fact; it must be said that the condition has been fulfilled. This must also be said where a bequest is left to anyone, “When he arrives at puberty.”

The Same, On Sabinus, Book XXIII. Where a legacy is bequeathed to be paid annually, it is evident that this is not one legacy, but several.

Ulpianus, On Sabinus, Book XXIII. Legacies of this kind are not merely payable once, but are payable annually. 1The question arose whether such legacies were payable at the beginning, or at the end of every year. Labeo, Sabinus, Celsus, Cassius, and Julianus all were of the opinion that a legacy of this kind was payable at the beginning of every year. 2Hence Julianus says that where a legacy of this kind is bequeathed to a slave, and he becomes free after the first or second year, he will acquire the legacy. 3Celsus also says, and Julianus agrees with him, that such a legacy takes effect from the day of the death of the testator, and not from that on which the estate was accepted, and that if the estate should be entered upon after the lapse of several years, the legatee will be entitled to the legacy for all those years. 4Where, however, a legacy payable annually is bequeathed, it seems to me that the beginning of every year should be understood also in this instance; unless it is clear that the intention of the testator, in dividing the legacy into annual payments, was rather to benefit the heir than the legatee, in order that he might not be compelled to pay the entire amount at once. 5Where a sum payable annually or every year was bequeathed to provide a lodging, or instruction, the conjecture of the will of the testator in making the bequest is that it will be payable at the time when the rent of the lodging, or the price of the instruction, is due. 6In conclusion, Pomponius stated that it made no difference whether the legacy was payable every year, or annually; or every month, or monthly; or every day, or daily. I myself also adopt this opinion. Hence the same rule will apply where a certain sum of aurei payable annually is bequeathed. 7Where a slave is bequeathed in general terms, and the legatee dies before claiming the slave, he transmits the legacy to his heir. 8If a legacy is bequeathed to Titius as follows, “The slave whom Seius may select,” and Seius should die after making his choice, there is ground for the recovery of the slave who has once been acquired by the legatee.

The Same, On Sabinus, Book XXIII. When a time is prescribed by a will, it is considered to have been inserted for the benefit of the heir, unless the intention of the testator was otherwise; as in the case of stipulations, where time is granted in favor of the promisor.