Ulpianus, On Sabinus, Book XXIV. Where a guardian is appointed, the appointment can be revoked either by another will, or by a codicil. 1If a guardian is appointed under certain conditions, and the condition fails to take place, the appointment is void. 2Moreover, a guardian can be appointed from a certain time, and up to a certain date, as well as under a condition, and until the fulfillment of the condition. 3In the appointment of a guardian, must it be considered whether the condition is most easy of fulfillment, or latest; as, for instance, in the case of a legacy, where Titius is appointed guardian, when he is able to act, or where he is appointed, if a ship should come from Asia? Julianus very properly states in the Twentieth Book of the Digest, that the latest condition which is mentioned should be considered.

The Same, On Sabinus, Book XXIV. There is no difference in the cases where the authority of a guardian is not interposed, and where it is improperly exerted.

The Same, On Sabinus, Book XXIV. Where a slave belongs to several masters, and a legacy is left to him, he will acquire for each master a share of the legacy in proportion to his ownership of him. 1If a judge having jurisdiction of the settlement of an estate should decide that the heir did not conduct the case properly, or did not conduct it seriously, this will not prejudice the legatees to any extent. But what if the judge should render an unjust decision, and the heir should not appear? Any injury done to him will not prejudice the legatees, as Sabinus holds. Let us, however, consider if the judge should decide in favor of the substitute, whether he will be liable to the legatees, and, as this decision is just with reference to the substitute himself, can it not be said that he is liable to the legatees, for he cannot be so dishonorable as to allege that the judge decided in his favor through partiality. Hence the answer would be that he will be liable to both the legatees and the creditors. 2Where an heir enters upon an estate before slaves of their murdered master have been put to the question, or if he should not avenge the death of the testator, the claims of the legatees can be presented to the Treasury. But what if the Treasury should not accept the property? The burden of paying the legatees will then necessarily fall back upon the heir. If, however, the heir fraudulently presented an accuser of himself, in order that the estate might be adjudged to him, and be free from all claims, or if he did not defend himself as he should have done, he will not be released from liability, any more than a party who litigates collusively with reference to an estate. 3Where a certain number of coins is bequeathed, and it is not apparent what their denomination is, before anything else is done, the custom of the testator himself, and afterwards that of the neighborhood must be ascertained, in order to learn what he intended. And not only the intention of the testator, but also the rank of the legatee, or the affection with which he was regarded, and his wants must be considered; and the disposition of other sums by the same will, which either precede or follow the above-mentioned bequest, should also be taken into account.

Ulpianus, On Sabinus, Book XXIV. Under the designation of “books” all volumes are included, whether they are made of papyrus, parchment, or any other material whatsoever; even if they are written on bark (as is sometimes done), or upon any kind of prepared skins, they come under the same appellation. If, however, the books are bound in leather, or papyrus, or ivory, or any other substance, or are composed of wax tablets, will they be considered to be due? Gaius Cassius says that where books are bequeathed, the bindings are also included. Hence, it follows that everything relating to them will be due if the intention of the testator was not otherwise. 1Where a hundred books are bequeathed, we must deliver to the legatee a hundred volumes, and not the hundred parts of volumes which anyone may select as he wishes, and each of which will be sufficient to include the contents of a book; hence, when the works of Homer are all contained in one volume, we do not count them as forty-eight books, but the entire volume of Homer should be understood to mean one book. 2Where the works of Homer are left, and they are not complete, as many parts of the same as can be obtained at present will be due. 3Sabinus says that libraries are not included in legacies of books. Cassius adopts the same opinion, but he holds that parchment covers that are written upon are included. He adds, afterwards, that neither book-cases, writing desks, nor other furniture in which books are kept constitute part of the legacy. 4What Cassius stated with reference to blank parchments is true, for blank sheets of papyrus are not included in the term, “Books bequeathed,” and books are not due under the term, “Sheets of papyrus bequeathed,” unless, perhaps, in this case the intention of the testator may influence us; as for example, if one literary man should leave to another sheets of paper as follows, “I bequeath all my sheets of paper,” and he had nothing else but books, no one will doubt that his books were due; for ordinarily many persons designate books as papers. But what if anyone should bequeath sheets of papyrus. In this case neither parchments, nor any other materials used for writing, nor books which have been commenced will be included. 5Wherefore, when books are bequeathed, the question is not inappropriately asked whether those are included which are not yet completed. I do not think they are included, any more than cloth which is not yet entirely woven is included under the head of clothing. Books, however, which have been written, but have not yet been beaten or ornamented, are included in such a legacy, as well as such as are not glued together, or corrected, and leaves of parchment which are not sewed, are also included. 6The legacy of papyri does not include the material for making the leaves, nor such leaves as are not yet finished. 7If, however, a testator should leave a library, the question arises whether the book-case or book-cases, or whether only the books themselves, are included. Nerva very properly says that it is important to ascertain what the testator intended; for the word “library” sometimes means the place where books are kept, and at others the bookcase which contains them (as when we say, So-and-So bought an ivory library), and sometimes this means the books themselves as when we say, “He bought a library;” 7atherefore, when Sabinus stated that a library does not follow the books, this is not absolutely true, for sometimes the book-cases, which many persons call a library, are also included. It is clear if you should mention book-cases which are attached or connected with the walls of the house, they undoubtedly will not be included, as they constitute part of the building. 8What we have stated with reference to a library, Pomponius discusses in the Sixth Book on Sabinus, and he says that rings are included in a legacy together with the jewel-case which was made to contain them. He bases his opinion upon the following bequest of a testator, “I bequeath my jewel-case, and any rings which I may have in addition.” He says that Labeo also was of the same opinion. 9There are some things, however, which, under all circumstances, follow the article bequeathed, such as the bequest of a bed which also includes everything appertaining to it, and the locks and keys are always included in legacies of chests of drawers, or presses.

Ulpianus, On Sabinus, Book XXIV. Where a legacy, for instance of thirty aurei, is left to me payable in one, two, and three years, ten aurei will be due each year, even though the words “in equal payments” were not added. 1Hence, if the words “in payments” were employed, even though “equal” was not added, it must be said that equal payments must be made, just as if the word “equal” was written, and the word “payments” had not been added. 2But if the words, “In unequal payments,” are added, unequal payments must be made. But let us consider in what way they ought to be made. I think that they ought to be made in accordance with the judgment of a good citizen (unless the testator expressly left it to the choice of the heir), dependent upon the means of the deceased, and the place where his estate is situated. 3If, however, it was stated that payment should be made in accordance with the judgment of a good citizen, we infer from this that it must be made with reference to the situation of the estate, and without any trouble or annoyance to the heir. 4But if the testator directed that payment should be made in the way that the legatee might select; let us see whether the entire amount can be demanded at once. I think that this cannot be done, just as in the case of the choice of the heir; for the testator intended that several payments should be made, and that the amounts of the same should depend upon the judgment of the heir, or of the legatee. 5Where, however, a legacy has been bequeathed as follows, “Let my heir pay Titius ten aurei in three years,” will the amount be payable in three annual instalments, or at the expiration of three years? I think that this should be understood as if the testator had intended the payments to be made in one, two, and three years. 6Where a certain sum of money is bequeathed to anyone, and it is stated that, until it is paid, something shall be given to the legatee every year, as, for example, interest, the legacy will be valid; but in order to make the payment of the interest valid, the sum to be paid annually must not exceed the ordinary rate of interest.

Ulpianus, On Sabinus, Book XXIV. An heir was ordered by the testator to furnish the wife of the latter with a certain quantity of provisions every year, and in case he should not do so, he charged him to pay her a sum of money. The question arose whether she could bring an action to recover the provisions bequeathed, or whether the delivery was merely voluntary, and if the provisions were not furnished, whether they could be demanded. And, indeed, if such a legacy was only bequeathed once, and not payable annually, there is no doubt (as Marcellus observes in the Thirty-ninth Book of the Digest on Julianus) that the delivery of the articles themselves is not required, but that suit can be brought to recover the amount in money. Therefore, the heir will have the right to tender the provisions, or the cash, until issue is joined in an action to recover their value in money; unless the testator, either by implication, or expressly, indicated some other time for payment. Where, however, the legacy of provisions was to be paid annually, it must still be furnished in kind every year, or, if it is not, suit for the amount due can be brought annually. But what if a single sum of money was bequeathed, and the provisions were not furnished at the end of the first year? Can it be doubted that the whole sum would be payable, just as if the entire amount of the legacy of the provisions was due; or should the estimated value of the provisions to be furnished during the first year merely be taken into consideration? I think that the intention of the testator should be followed, and the entire sum ought to be paid at once, after the heir has failed to furnish the provisions to the wife, and that he should be punished for his want of filial piety.

Ulpianus, On Sabinus, Book XXIV. When an heir is forbidden to require the rendition of accounts, it has been very frequently stated in rescripts that he will not be prevented from demanding balances which are due, where the parties have them in their possession, or where the agent who transacted the business has been guilty of any fraudulent act. If anyone should desire to release another from liability on this account also, he should make his bequest as follows: “Let my heir be charged to return to So-and-So anything which he has collected from him by such-and-such and such-and-such a suit, or release him from liability under said actions.”

Ulpianus, On Sabinus, Book XXIV. If anyone should make a testamentary disposition as follows, “I give and devise such-and-such a tract of land to Titius, and if Titius should die, let my heir be charged to give it to Seius,” the devise is held to be legally transferred. Even if the party to whom it was left in the first place should be dead at the time of the transfer of the property, Seius will be entitled to it. 1If anyone should make a bequest to Titius as follows, “Let my heir give such-and-such an article to Titius, or if Titius should die before receiving it, let him give it to Sempronius,” according to the strict construction of the law, the heir will appear to be bound to both parties, that is to say to Sempronius and to the heir of Titius. If, however, the testator’s heir should be in default in delivering the property to Titius, the right to demand the legacy will be transmitted to his heirs, and Sempronius will have no claim to it; but if there should have been no default, Sempronius, and not the heirs of Titius, will then be entitled to receive the legacy. But if Titius should die before the time when the legacy vests, Sempronius alone will be entitled to it. 2The same thing must be said where an estate is left in trust for the benefit of a boy, and his mother becomes the legatee if he should die before obtaining the estate, so that if he dies before the time when the legacy vests the mother will be entitled to it; but if he dies afterwards, the benefit of the trust will pass to the heirs of the child, just as if there had been default in the execution of the trust itself. 3Where, however, anyone makes a bequest as follows, “Let my heir deliver such-and-such property to Titius, and if he does not do so, let him deliver it to Sempronius,” Sempronius will only be entitled to the legacy, if at the time it vests, Titius should be incapable of acquiring it. 4If anyone should make a bequest as follows, “Let my heir give such-and-such a tract of land to Titius, and if Titius should alienate the same, let my heir give it to Seius,” the heir will be charged with both trusts; for Titius is not charged with the trust if he should alienate the land, but the heir is charged with the devise to him. Therefore the heir, by filing an exception on the ground of bad faith, should provide for himself and exact security from Titius not to alienate the land. 5If anyone reserves more than he leaves, his reservation will be valid; as, for instance, if he should bequeath twenty aurei, and reserve forty. 6If a testator should bequeath the usufruct of certain land, and reserve the right of way, his reservation is void, but the legacy will not be invalidated, just as where a person leaves the ownership of land, reserving the right of way, the legacy will not be diminished. 7Ad Dig. 34,4,3,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 640, Note 8.If a testator should bequeath a legacy separately to two persons of the name of Titius, and afterwards deprives one of them of the bequest, but it is not clear which one is meant, both of them will be entitled to the legacy; just as where, in making a bequest, it is not apparent to which of two parties it is given, we say that it is bequeathed to neither of them. 8Where a tract of land was devised to Titius absolutely, and then was left to him under a condition, and finally he was deprived of it, as follows, “My heir shall not give to Titius the tract of land which I left to him conditionally,” he will not be entitled to it under either provision, unless the testator expressly stated that he desired him to receive the legacy absolutely. 9Let us see whether the condition on which a legacy, an estate, or the freedom of a slave is dependent, can be revoked. Julianus says that, in the case of the freedom of a slave, the removal of the condition does not immediately confer freedom upon him. Papinianus, also, in the Seventeenth Book of Questions, says that, generally speaking, the condition cannot be revoked, for he holds that a condition is not given but is imposed, and what is imposed cannot be taken away, as this applies only to what is given. It is, however, better that the signification of the words, rather than the words themselves, should be considered; and, as conditions can be imposed, so also they can be rescinded. 10Where a testator, by his will, left a hundred aurei to Titius and made the following bequest to him in a codicil, “Let my heir give to Titius fifty aurei, and no more,” the legatee cannot claim more than fifty aurei. 11Not only legacies, but also trusts can be revoked, even by a mere wish. Hence, it is asked whether a trust will be due in case enmity has arisen between the parties. If, indeed, the enmity relates to a capital offence or is of an extremely serious character, what has been bequeathed will be held to have been revoked; if, however, the offence is a light one, the trust will continue to exist. In accordance with this we can include legacies, and an exception on the ground of bad faith may be filed.

Ulpianus, On Sabinus, Book XXIV. Where the bequest of an article is made to anyone under a condition, and the same article has already been absolutely left to another, the first bequest is not held to have been absolutely revoked, but only in case the condition of the second one should be complied with. If, however, it was the intention of the testator that the first legacy should, under all circumstances, be cancelled, this must be held to have been done.

Ulpianus, On Sabinus, Book XXIV. When a bequest is made as follows, “As my eldest son has taken ten aurei out of my chest, let my younger son take the same amount from the bulk of my estate,” the legacy will be due, because it has been left in order that the condition of the children might be rendered equal. And it is clear that this is the case, for where anything is bequeathed for some reason, it refers to the past, but one which is left by way of penalty has reference to the future.

The Same, On Sabinus, Book XXIV. For as the slave is not entitled to his freedom before the estate has been accepted, it seems to be perfectly just that the legacy should not take effect before that time, otherwise, it would be void if it should become operative before the slave obtained his freedom, and this would be the case where a bequest was made absolutely to the slave, and he was ordered to be free under a certain condition, and the condition is ascertained to be pending after the estate has been entered upon.

Ulpianus, On Sabinus, Book XXIV. Where “The usufruct of certain property, or the sum of ten aurei, whichever the legatee may select,” is bequeathed, both the time of the death of the testator and that of the acceptance of the estate must be taken into consideration; the date of the death on account of the payment of the ten aurei, and that of the acceptance of the estate because of the usufruct. For, although the legatee has the right of choice, still, the selection cannot at once take effect, as it is supposed that the testator has not yet died, or if he has died, that his estate has not yet been entered upon. 1Therefore, Julianus asks, if the legatee should die after the death of the testator, whether the legacy of the ten aurei will pass to the heir. He says, in the Thirty-seventh Book of the Digest, that the ten aurei may be considered to have been transmitted to him, because the legacy begins to vest at the time of the death of the legatee. Julianus gives the following example in support of his opinion, “Let my heir pay ten aurei to Seia; if she has a child let him convey to her such-and-such a tract of land,” for he holds that if she should die before having a child, she will transmit the ten aurei to her heir. 2If anyone should make a bequest to a son under paternal control and charge him to pay himself, the legacy will stand, and the heir will not be to blame for paying it to the son, rather than to the father; for suppose, for instance, that he had been especially directed to pay the son. It is certain that if the father brings suit to recover the legacy, he should be barred by an exception. 3If, after the legacy takes effect, the legatee should be subjected to the control of another, the legacy will be due to the person under whose authority he has passed, for everything to which he is entitled is transferred with him. If, however, the legacy was bequeathed under a condition, it will not pass, but its delivery will be deferred until the condition has been fulfilled; and it will be acquired by the person under whose control the legatee was at the time when the condition was complied with. If the legatee should be his own master at that time, he himself will acquire the legacy.

Ulpianus, On Sabinus, Book XXIV. It is settled that he to whom a donation mortis causa is made can be substituted in such a way that he can promise the property to someone else, if the latter cannot himself acquire it, or cannot do so under some other condition.

Ulpianus, On Sabinus, Book XXIV. Where a slave was bequeathed in order to be manumitted and, if he should not be manumitted, he was directed to be free, and a legacy was bequeathed to him, it has been frequently decided that he is entitled to his freedom, and that the legacy is due to him. 1Where it is stated in a constitution that a slave cannot be manumitted who is forbidden by will to be set free, I think that this only refers to slaves belonging to the testator or to his heirs, for it cannot apply to a slave belonging to another.

Ulpianus, On Sabinus, Book XXIV. I stipulate that payment shall be made to me or to Stichus, the slave of Sempronius. Payment cannot be made to Sempronius, although he is the master of the slave. 1A man who owes ten aurei, by the payment of half of this sum will be released from liability for half of his obligation, and only the remaining five aurei will be due. Likewise, where anyone owes Stichus and delivers a part of him, he is liable for the remainder. If, however, he owes a slave, and delivers a part of Stichus, he will not, for that reason, cease to owe a slave. Finally, an action can be brought against him to recover the slave. But when the debtor delivers the remaining part of Stichus, or the creditor is to blame for not accepting him, the former will be released.

Ulpianus, On Sabinus, Book XXIV. It is established that a ward can be discharged from liability by means of a release, without the authority of his guardian.

Ad Dig. 50,17,19ROHGE, Bd. 16 (1875), Nr. 17, S. 52: Quisque gnarus esse debet conditionis ejus, cum quo contraxit im Handelsverkehr.Ulpianus, On Sabinus, Book XXIV. Anyone who makes an agreement with another either is not ignorant or should not be ignorant of his condition; the heir, however, cannot be blamed under such circumstances, as he did not voluntarily contract with the legatees. 1An exception on the ground of fraud does not usually operate as a bar to those who are not excluded by the will of the testator.