Ulpianus, On Sabinus, Book V. Whenever a testator who wishes to appoint an heir appoints another person through a mistake in the individual (as for instance, “My brother, my patron”), it is settled that neither of them will be his heir; he who is mentioned, for the reason that it was not the intention of the deceased to appoint him; nor he whom he intended to appoint, because he was not mentioned. 1In like manner, if a testator should make a mistake with reference to the property (for instance, if he should leave a garment when he intended to leave a dish), he will owe neither. This rule applies whether the testator wrote his will himself, or dictated it to be written by another. 2Ad Dig. 28,5,9,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 76, Note 5.Where, however, the testator was not mistaken with reference to the article itself, but only as to a part of what was to be bequeathed (for example, if, while dictating, he stated that a certain party should be appointed heir to half his estate, while, in fact, he was appointed only to a fourth), Celsus says, in the Twelfth Book of Questions and the Eleventh Book of the Digest, that it can be maintained that the party is heir to half of the estate, as the larger amount was mentioned, but the smaller one was written; and this opinion is supported by certain general rescripts. The same rule will apply if the testator himself writes down a smaller amount when he intended to write a larger one. 3But if the person who drew up the will put down the larger amount or (which is a matter more difficult of proof), the testator himself did so, as, for instance, a half instead of a quarter, Proculus thinks that the heir will only be entitled to the quarter, since the quarter is contained in the half. This opinion is also approved by Celsus. 4Where, however, the testator writes two hundred for one hundred in figures, the same rule of law will apply, because both the sum that he intended and what was added to it were written at the same time. This opinion is not unreasonable. 5Marcellus discusses this same point with reference to a party who, intending to insert a condition in his will, did not do it; and he holds that the heir should not be considered as having been properly appointed. If, however, he added a condition without intending to do so, it will be annulled, and the heir will be admitted to the succession; since whatever is written contrary to the intention of the testator is not held to have been mentioned by him. This opinion is adopted by Marcellus, and we approve it. 6He also discusses the point that, if the person who draws up the will omitted the condition against the wishes of the testator, or changed it, the heir will not be entitled to the succession, and will be considered as not appointed. 7But where the testator who intended to appoint one heir to half his estate, appoints both a first and second heir, the first one will solely be considered his heir, and the only one appointed to half the estate. 8Where a testator does not mention the name of his heir, but designates him by some mark which does not admit of doubt, and which differs very little from mentioning him by name, without, however. adding any epithet which may cause him injury, the appointment will be valid. 9No one can appoint an heir without designating him with certainty. 10When a testator says: “Let whichever of my brothers, Titius and Mævius, who may marry Seia, be my heir to three quarters of my estate, and the one that does not marry her, be my heir to the remaining quarter”; in this instance, it is certain that the appointment is legally made. 11It is clear that an appointment made in the following terms, namely: “Let whichever of my above-mentioned brothers who marries Seia be my heir”, comes under the same rule. I think that this appointment is valid, as being made subject to a condition. 12Heirs are legal successors, and, where several are appointed, their respective rights must be apportioned among them by the testator; for if he does not do this, all of them will share equally as heirs. 13Where two heirs are appointed, one to a third of the Cornelian Estate, and the other to two-thirds of the same estate, Celsus adopts the very appropriate opinion of Sabinus that, leaving the mention of the land out of consideration, the heirs whose names appear in the will are entitled to the estate just as if their respective shares had not been indicated; provided that it is perfectly evident that the will of the testator has not been disregarded. 14Where a testator inserts in his will: “Let Stichus be free, and after he becomes free let him be my heir”, Labeo, Neratius, and Aristo hold that if the word “after” should be omitted, the slave will obtain his freedom and the estate at the same time. 15If anyone should appoint an heir to a third of his estate, and another also to a third, and, in case there should be no second heir, appoints still another heir to the two-thirds; in this instance, if the second should reject the estate, the third heir appointed will be entitled to two-thirds of it, not only by the right of substitution, but also by that of appointment; that is to say, he will have one-third of the estate by the right of substitution, and one-third by the right of appointment. 16Where a slave is appointed an heir with the grant of his freedom, and then is alienated, he can enter upon the estate by the order of the party to whom he has been transferred. If, however, he should be ransomed by the testator, his appointment will be valid, and he will become a necessary heir. 17If a slave should be granted his freedom to date from a certain time, and is left the estate absolutely, and he is afterwards alienated or manumitted, let us see whether his appointment will be valid. And, indeed, if he should not be alienated, it can be maintained that his appointment will be valid, so that he will become a necessary heir when the day he receives his freedom, and which delays his right to the estate, arrives. 18But where his freedom is granted him from a certain time, and the estate is left to him under a certain condition, if the condition should be fulfilled after the day of his freedom arrives, he will become both free and the heir. 19When a slave has been appointed an heir unconditionally, and his freedom is to date from a certain time, if he should be either alienated or manumitted, it must be said that he can become the heir. 20Where, however, not the slave himself, but only the usufruct in him is alienated, his appointment will be valid, but it will be postponed until the time when the usufruct is extinguished.

Ulpianus, On Sabinus, Book V. If anyone should be appointed an heir as follows: “Let Titius be my heir, if Secundus will not be my heir”, and afterwards he says, “Let Secundus be my heir”, it is settled that Secundus is appointed in the first degree.

Ulpianus, On Sabinus, Book V. It is established that an appointment made under a condition which is impossible, or through mistake, is not void.

The Same, On Sabinus, Book V. Where a soldier appoints a sole heir to a certain tract of land, he is held to have died intestate so far as the remainder of his patrimony is concerned. For a soldier can die partly testate and partly intestate.

The Same, On Sabinus, Book V. Where a testator is mistaken with reference to the name of a tract of land, and mentions the Cornelian, instead of the Sempronian Estate, the Sempronian Estate will be due. If, however, he should be mistaken with reference to the land itself, it will not be due. For if anyone, intending to bequeath a garment, bequeaths household goods, thinking that clothing is included in the term “household goods,” Pomponius states that clothing will not be due; just as if anyone should think that electrun or brass was included in the term gold; or, which is even more absurd, if he thought that silver was included in the word clothing; for the names of things are unchangeable, those of men, however, are subject to alteration. 1Where anyone appoints an heir and makes a bequest as follows: “Whoever shall be the heir to my property in Gaul shall be charged with the payment of So-and-So,” the legacy is considered to be due from all the heirs, as the property involved belongs to all of them.

Ulpianus, On Sabinus, Book V. There are certain conditions which can be fulfilled even during the lifetime of the testator, for instance, “If a ship should come from Asia,” for the condition will be held to have been fulfilled when the ship arrives. There are others which cannot be complied with until after the death of the testator, as “If he should pay him ten aurei, if he should ascend to the Capitol.” For before anyone can be held to have complied with the condition, he must know that it has been inserted in the will; for if he should comply with it unintentionally he would not be considered to have carried out the wish of the testator.

Ulpianus, On Sabinus, Book V. The Divine Marcus granted the power of manumission to all corporate bodies that have the right to assemble.

The Same, On Sabinus, Book V. If anyone should appoint an heir as follows, “Let Titius be my heir, and if Titius should not be my heir, let Stichus be my heir; let Stichus be free,” Aristo says that Stichus will not be free, if Titius becomes the heir. It seems to me that he can be held to be free, as he does not receive his liberty in two different degrees, but it is granted to him twice; which is our practice.

The Same, On Sabinus, Book V. If a slave belonging to the Roman people, to a municipality, or to a colony, stipulates, I think that the stipulation will be valid.

Ulpianus, On Sabinus, Book V. If I delegate to you someone who owes me an usufruct, my obligation is not altered by novation, although he who has been delegated can protect himself against me by an exception on the ground of bad faith, or by one in factum; not only while the usufruct is enjoyed by the person to whom I delegated him, but even after his death, because, after I die, he to whom the usufruct was delegated will continue to hold it to the disadvantage of the debtor. This also applies to all obligations attaching to the person.