THE OPINIONS OF JULIUS PAULUS.
CONCERNING THE CARBONIAN EDICT.
(1) When a controversy is raised by a brother of the age of puberty as
to whether the trial of a case should be deferred until the heir in question
arrives at puberty, a difference of opinion exists, but it is generally held
that it should not be deferred.
CONCERNING THE ESTATES OP FREEDMEN.
(1) A patron has a better right to the estate of a freedman than the son
of another patron; likewise, the son of a patron is to be preferred to the
grandson of another patron.
(2) The freedman of two patrons appointed other heirs, one of whom died
during the lifetime of the freedman, and the survivor very properly demanded
possession of the estate contrary to the provisions of the will.
(3) The estate of a freedman is divided per capita and not per
stirpes; and therefore, if there are two children of one patron, and four
of another, each of them will be entitled to equal shares of the estate. The
patron, or the children of the patron who have been appointed heirs to half the
estate of a freedman, can be compelled to pay the debts of the deceased, in
proportion to their shares of his estate.
CONCERNING THE FABIAN FORMULA.
(1) Property which has been alienated in any way by a freedman for the
purpose of defrauding his patron, can be recovered under the Fabian formula, by
the patron himself, as well as by his children.
TITLE IV A.
(1) Males can make a will after having completed their fourteenth year,
females after having completed their twelfth; but not where they have the right
of children under the authority of a guardian.
(2) Eunuchs can make a will at the time when most males arrive at the
age of puberty, that is to say, when they have reached their eighteenth
(3) A son under paternal control who is a soldier, or who has served in
the army, can make a will disposing of his castrense peculium, not only
at common law, but through the privilege which he enjoys. Castrense
peculium is property acquired in camp, or which is given to a soldier while
on his way to the army.
(4) A blind man can make a will, because he can request witnesses to be
present, and hear them give their testimony.
(5) An insane person can make a will during a lucid interval of his
(6) A woman can be forbidden to dispose of her property if she is living
a depraved life.
(7) A person can be prohibited by the PrŠtor from receiving an
estate on account of his or her morals, in the following terms: "To prevent you
from squandering the estate of your father, (or grandfather) , by your
profligacy, and bringing your children to want, I exclude you from the house
and from all commercial intercourse."
(8) A person captured by the enemy cannot make a will, as he occupies
the position of a slave. A will, however, which was made before captivity is
valid, if the party returns under the law of postliminium; or, if he
dies in captivity, he will be entitled to the benefit of the Lex
Cornelia, by which lawful guardianship and inheritances are confirmed.
(9) A person who has been relegated to an island, or sentenced for a
time to labor on the public works, can make a will, and take under a will, for
the reason that he retains his citizenship.
(10) Where more than seven persons are called to witness a will no harm
is done; for any superfluous act is a benefit to the right of testation, and
cannot injure it.
(11) A person who has lost his senses on account of bodily illness
cannot make a will during the time that this condition exists.
(12) A spendthrift who leads a proper life after having reformed can
make a will and act as a witness to testamentary execution.
(13) If any of those who are called to witness a will do not know or
understand Latin, but still are aware for what purpose they are present, and
act as witnesses, this will not vitiate the will.1
1 The right of testamentary disposition is of comparatively
modern origin, the Greeks being the first nation to recognize it under the
legal system established by Solon. "He is likewise much commended for his law
concerning wills; for before him none could be made, but all the wealth and
estate of the deceased belonged to his family." (Plutarch, Life of Solon.)
Wills are not mentioned in the Code of Hammurabi, the Avesta, the Pentateuch,
or the Gentoo Code; the first and the last of which compilations devote much
space to the rules of inheritance. The declaration of Abraham that Eliezer was
his heir, (Genesis XV, 3) can hardly be considered either as a nuncupative
will, or a donatio mortis causa. The Germans of the time of Tacitus knew
nothing of wills. (De Germ. XX.)
By the Visigothic Code a minor of ten years of age, if supposed to be
in extremis, could make a testamentary disposal of his property;
otherwise he was required to be fourteen years old. (Forum Judicum, II,
VI, 10.) The collection of Alfonso X follows the rule of the text. (Las
Siete Partidas, VI, I, 13.) Under Moslem law, no person is competent to
make a will until the attainment of majority, incapacity being removed by
arrival at the age of puberty, which period, when proof of precocious
development is not adduced, is fixed at eighteen years for males, and seventeen
for females. It may, however, be as early as twelve and nine years,
respectively. A great divergence of opinion on this point exists among jurists.
Some concede this right to a child over ten years of age; "if he is capable of
discernment"; others deny it to a youth who has not arrived at puberty; others
again, hold that only adults are capable. (Syed Ameer Ali, Mohammedan
Law, Vol. II, Chap. XVI, Pages 470-471.) (The Hedaya, IV, LIII, 1.) (Hughes,
Dict, of Islam, Page 476.) In France and Belgium, the age of capacity for
testation is sixteen years, (Cod. Civ., Art. 904. Code Civil
AnnotÚ, Art. 903) ; in Spain and Portugal, it is fourteen years,
(Cod. Civ., Art. 763. Cod. Civ., Art. 1764) ; in Italy, eighteen
years, (Cod. Civ., Art. 763); in Sweden twenty-one years — but a
minor over fifteen can bequeath property acquired by his or her own industry,
(Sveriges Rikes Lag. ─rvdabalk XVI. Kap. 3); in Holland and
Austria, eighteen years — minors under that age can, in Austria, under
certain conditions, execute a nuncupative will; (Burgerlijk Wetboek,
Art. 944; Allgemeines BŘrgerliches Gesetzbuch, Art. 569) ; in
Japan, fifteen years, (Civil Code of Japan, Art. 1601). The age of puberty is
adopted by Scottish law. "Minors after puberty can test without their
curators." (Erskine, Principles of the Law of Scotland, III, IX, 5.) At Common
Law a male infant of fifteen and a female of twelve, could bequeath personal
property, as by the Civil Law. Under tenures in Socage, Coke lays down the rule
as being eighteen years. "If after his marriage he accomplish his age of
eighteen years, at what time he may make his testament, and constitute
executors for his goods and chattels." (Coke, Institutes, I, 89b.) In this
country no established rule exists, the age being regulated by statute, but,
generally speaking, a minor has not testamentary capacity. The age in most
instances is the same as in England, twenty-one years; in many States it is
eighteen; in Georgia, where it is the lowest, it is fourteen years. —
TITLE IV B.
CONCERNING THE APPOINTMENT OF HEIRS.
(1) There are two kinds of conditions, those which are possible and
those which are impossible. A possible condition is one which in the nature of
things can take place, an impossible condition is one which cannot take place;
the occurrence of one of which may be expected, but the fulfillment of the
other is suggested as impossible.
(2) Conditions which are contrary to the laws and decrees of the
emperors, or are opposed to good morals, are of no force or effect, for
instance, the following: "If you should not marry a wife; if you should not
have children; if you should not commit homicide; if you should appear in the
costume of a barbarian, or a spectre;" and others of the same description.
(3) When it is not apparent what heir was appointed, the appointment is
not valid; which occurs when the testator had several friends of the same
(4) Heirs are said to be either appointed or substituted; those that are
appointed are placed in the first degree, those that are substituted are placed
in the second, or third degree.
(5) A testator can substitute an heir either absolutely or conditionally
; and this applies to his own heirs as well as strangers, and to children over
and under puberty.
(6) A testator can divide his estate into as many shares as he wishes;
and where the entire estate is disposed of, heirs who are appointed without any
share will be entitled to equal portions of the first half of the estate.
(7) If a slave belonging to another is appointed an heir with his
freedom, this does not annul the appointment; but the grant of freedom is
considered to be superfluous as the slave belongs to another person.
(8) Where a son and a stranger are appointed heirs to an estate, and a
daughter has been passed over, she can only claim as her share the amount left
to the stranger; but where the two sons have been appointed heirs, she will
take a third from them, and half from the stranger.
(9) When an appointment of posthumous heirs is made as follows: "Let my
children born after my death be my heirs"; any children born during his
lifetime will break the will.
(10) A posthumous grandchild who can succeed to the place of his father,
and who should either be appointed heir by his grandfather, or disinherited by
name, does not break the will by his birth.
(11) Anyone who has once decided to accept an estate and meddles with
the property belonging to it, cannot repudiate it, even though it may cause him
ON THE SlLANIAN DECREE OF THE SENATE.
(1) Under the terms of the Silanian Decree of the Senate, the estate of
a person who is said to have been killed by his slaves cannot be entered on
before torture has been applied; nor can the prŠtorian possession of it
legally be demanded.
(2) One is said to have been killed not only where death took place
through violence, or murder, as where a man's throat was cut, or he was hurled
down from a precipice, but also where he is alleged to have been killed by
poison; for the honor of the heir is involved in not allowing any kind of
homicide of the testator to go unavenged.
(3) When the owner is killed, torture should be applied to those slaves
who are under the same roof, or who were outside of the house with their master
at the time he was murdered.
(4) When a person is said to have been killed, and it is established
that he took his own life in some way, his slaves should not be tortured,
unless they are able to prevent it, and did not do so.
(5) It is provided by the Neronian Decree of the Senate that where a
wife has been killed, the slaves of the husband should be tortured; and, on the
other hand, where the husband is alleged to have been killed, the same rule
shall be applied to the slaves devoted to the personal service of the wife.
(6) Slaves living under the same roof where the master is said to have
been killed, shall be tortured and punished, even though they have been
manumitted by the will of the deceased; and those also shall be tortured who
accompanied him, if he was killed on a journey.
(7) Slaves who were near at hand are punished if they could have heard
the cries of their master and did not go to his assistance.
(8) It has been decided that slaves who abandoned their master and took
to flight when he was surrounded by robbers while on a journey, shall be
arrested, tortured, and put to death.
(9) Torture shall be inflicted upon slaves if the heir is alleged to
have killed the testator; and it makes no difference whether he is a stranger,
or one of his children.
(10) Heirs are deprived of an estate and it is confiscated by the
Treasury, if, when the murder of the testator is suspected, they entered upon
the estate after the opening of the will, or after he has been declared
intestate, or they obtained prŠtorian possession of the same; and, in
addition to this, the penalty of a hundred thousand sesterces is imposed upon
them; nor does it make any difference by whom, or in what way, the head of the
household is said to have been killed.
(l0a) In conclusion, it should be noted that torture must be applied to
all those who, for any reason, are under suspicion.
(11) The following order is observed in subjecting those to torture
whose master is said to have been murdered. In the first place it should be
established that the master was killed, and then it should be made clear what
slaves should be put to torture and in this way the guilty parties be
(12) Although it may be certain who struck the fatal blow, the slaves
should, nevertheless, be put to torture, in order that the instigator of the
murder may be discovered.
(13) All those who have acted contrary to the intentions of the deceased
shall be deprived of the estate as being unworthy, if nothing was provided in
the will for the purpose of evading the law.
(14) The appointed heir can demand to be placed in possession of the
estate unless the will is alleged to be forged, broken, or void.
(15) If a controversy arises between the appointed heir and the
substitute, the better opinion is that the heir who was appointed in the first
place should obtain possession of the property of the estate.
(16) The heir appointed in writing can legally demand to be immediately
placed in possession. He cannot, however, obtain possession by law after a year
(17) The heir appointed in writing is not entitled to demand possession
under a will which has not been produced and publicly read, as is required.
(18) The heir appointed in writing cannot with propriety demand to be
placed in possession of any property which the testator did not possess at the
time of his death, before the question has been decided in the ordinary course
(1) A preferred legacy of money left to one of several heirs who were
not at home, must be paid by the co-heirs by order of court in a suit for
(2) A bequest cannot be made before the appointment of an heir; it can,
however, be made between the appointments of heirs, without one or both being
present; and sometimes half, and sometimes all will be due; half where the
legacy is bequeathed to be claimed, all, where it is left by condemnation.
(4) A legacy can be left to a slave owner in common either with the
grant of his freedom or without it, and the entire legacy is acquired for the
partner of the testator.
(5) A legacy cannot be bequeathed after the death of the heir, because
the heir of an heir cannot be charged with the payment of a legacy.
(6) A legacy can be bequeathed to take effect at the time of the death
of the heir, or when he dies, as follows: "I give and bequeath to Lucius
Titius, when he dies my heir", or, "Let my heir be required to pay".
(7) Although the legatee may not yet have determined to claim the
legacy, still, if he should die after the will has been opened, and before the
estate has been entered on, he will transmit the legacy to his heir.
(8) If the property bequeathed by condemnation was hypothecated to a
creditor, and the testator was not ignorant of the fact, the heir is expected
to release the claim.
(9) If the slave should die, the loss must be sustained by the legatee,
for the reason that the legacy lapsed through no fault of the heir.
(10) An heir can be charged to build a house for anyone, or to pay
(11) Corporeal property, as well as that consisting merely of rights,
can be bequeathed by way of permission; and therefore what was owed by a debtor
may legally be bequeathed to him.
(12) A legatee cannot reject a part of the legacy bequeathed, and accept
a part, as in the case of an heir.
(13) Unless the legacy consists of property which is certain, and is
left to a certain person, it is of no force or effect.
(14) If anyone leaves a legacy, to himself and to Titius, the better
opinion is that the entire legacy belongs to the joint legatees.
(15) Anyone who appoints himself guardian to the son of the testator,
who is under the age of puberty, should as being suspicious, be removed from
the guardianship which he is considered to have voluntarily attempted to
(16) If a testator subsequently pledges or hypothecates property which
he has bequeathed, he will not, for this reason, be considered to have changed
(17) The usufruct of any kind of property can be bequeathed, and either
vests by operation of law, or is transferred by the heir; hence, where left by
condemnation it must be transferred by the heir, and where left to be claimed
it vests by operation of law.
(18) The usufruct of a slave who is insane, ill, or an infant, may
legally be bequeathed; for he may either recover his senses, or his health, or
(19) When the usufruct of a female slave is bequeathed, her offspring
does not belong to the usufructuary.
(20) Where the usufruct of a flock is left, and it sustains no loss, the
increase belongs to the usufructuary; that is to say, except in the case where
some of the animals die, when the loss must be made up from their young.
(21) Where the usufruct of a piece of land is bequeathed, buildings
cannot be constructed upon it.
(22) The accession of the alluvion of land does not belong to the
usufructuary, for the reason that it is not the product of the soil, but any
animals or birds taken in hunting will become the property of the
(23) An usufructuary can neither torture, scourge, nor, by any act of
his, cause the deterioration of slaves.
(24) Where the profits of anything are bequeathed, and the use to be
made of them is not stated, the better opinion is that the usufruct should be
held to be included where profits cannot exist without use.
(25) If the use of a thing is left to one person, and the profits of it
to another, the usufructuary will share in the use, which the person who has
only the use cannot do, so far as the profits are concerned.
(26) Where the usufruct is bequeathed to two persons conjointly, by the
expression: "I give and bequeath"; and one of them dies, the entire legacy will
belong to the other.
(27) When the usufruct of anything is bequeathed, it is customary for
the usufructuary to furnish security as to the way he will make use of it; and
having furnished security, he is obliged to agree that he will use the property
in the same way as the most careful head of the household would do.
(28) When an usufruct is lost it reverts to the ownership, and it is
lost in five ways, namely: by the forfeiture of civil rights; by change in the
property itself; by failure to make use of it; by its surrender in court; and
by purchase of its ownership.
(29) It is lost by the forfeiture of civil rights, if the usufructuary
is deported to an island, or if, for some reason, he is sentenced to the mines,
or changes his condition either by arrogation or adoption.
(30) An usufruct is lost by failure to make use of it, where the
usufructuary, being in possession, does not use the land for the term of two
years, or movable property for the term of one year.
(31) The usufruct is lost by change in the property, where the usufruct
of a house is bequeathed, and the house is destroyed by fire, or becomes
ruined, although it may subsequently be rebuilt.
(32) An usufruct is lost by surrender in court, whenever the
usufructuary, in a judicial proceeding, transfers it to the owner of the
(33) An usufruct is terminated either by death or by lapse of time; by
death, when the usufructuary dies, by lapse of time, whenever the usufruct is
bequeathed for a certain time, for instance, for two or three years.
(34) When a tract of land, or a slave is bequeathed, neither the
appurtenances of the land nor the peculium of the slave belongs to the
(35) Those who perform farm labor are considered necessary for the
securing of crops, as superintendents, stewards, and foresters; as well as oxen
for plowing, plows, pruning hooks, and grain stored up for seed.
(36) Various articles are included among the implements, as, for
instance, baskets, sickles, and scythes for cutting grain and hay, and also
(37) Among the implements and appurtenances for preserving the crops air
casks, vats, farm vehicles, provisions for men and animals, millers, asses,
ovens, likewise female slaves who make garments for the laborers, leather and
shoemakers are also included.
(38) The better opinion is that the wives of the laborers also form part
of the appurtenances; and also flocks and their shepherds — if the former
are kept on account of their manure — are also included.
(39) Those things, however, which are for the purpose of taking care of
the property, rather than for the use of the head of the household, are not
included in the category of appurtenances.
(40) The wives of those who are accustomed to pay wages are not included
in the terms furnishings or appurtenances.
(41) Articles used for fishing and hunting are only included among the
appurtenances of land when the income therefrom is for the most part derived
from their employment.
(42) Gathered crops are only included where they were ordinarily
consumed on the ground by the testator.
(43) Where land situated in the country or in a city is bequeathed with
its appurtenances and the slaves thereon, all the seed and provisions will be
due under the legacy.
(44) When land with all its appurtenances both rustic and urban and the
slaves thereon is bequeathed, the furniture, the brazen and silver vessels, and
the clothing which the head of the household was accustomed to keep there for
the purpose of caring for, or cultivating the property, will be due under the
legacy; as well as any slaves ordinarily employed by the head of the household,
and any fowls or flocks
which are kept on the land to be used in banquets, with the exception of
those left there for safe keeping.
(45) Where land is left "to be maintained in the very best condition",
nets to capture wild boars, and other implements used for hunting are included.
These also are part of the appurtenances if the greater portion of the income
of the land consists of the produce of the chase.
(46) Any crops attached to the soil at the time of the death of the
testator belong to the legatee; those previously gathered belong to the
(47) Where land is bequeathed with its slaves and flocks and all its
rustic and urban appurtenances, the better opinion is that the peculium
of the steward, if he dies before the testator and if it was on the same
land, will also belong to the legatee.
(48) A steward, or tenant who was brought from the land of another and
bequeathed with all the appurtenances does not belong to the legatee, unless
the testator intended that he should be attached to the land in question.
(49) It has been decided that any additions derived from different
purchases which the testator to the land bequeathed will belong to the
(50) When the land is bequeathed furnished, blacksmiths, carpenters, and
pruners who live on the land for the purpose of working there are included in
(51) Where land is bequeathed with its appurtenances, books, and
libraries situated thereon, are included in the bequest.
(52) It has been decided that where a slave was on the land for the
purpose of studying, and the land was bequeathed with its slaves, if he was
transferred elsewhere he belongs to the legatee.
(53) Where land is bequeathed in such a way that possession may be
obtained, both urban and rustic slaves, and gold and clothing which are on the
land at the same time, belong to the legatee.
(54) Pastures subsequently purchased, which the testator added to the
land bequeathed, if included in that appellation, belong to the legatee.
(55) Any property in the same house which the owner bequeathed
furnished, and which he kept there to be constantly used, passes to the
(56) Any articles bequeathed with the house, and by which the building
is better provided, or rendered safe from fire, are embraced in the legacy;
hence tiles, mirrors, and curtains are included, likewise, coverlets, beds,
mattresses, pillows, benches, chairs, tables, chests, tripods, toilet-boxes,
wash-basins, candelabra, lamps, and similar objects, no matter of what material
they may be composed.
(57) When a house is bequeathed, the bath attached to it, which is for
common use, passes to the legatee, where it is not otherwise separated from
(58) Where a house is bequeathed furnished, with all the rights attached
to the same, the urban slaves, together with the artisans,
porters, and water-carriers employed in the service of the house, are
comprised in the legacy.
(59) When all the contents of a house are bequeathed, written evidences
of debt and bills of sales of slaves are not included in the legacy.
(60) When jewelry is bequeathed, gold and silver plate is not included,
unless it can be shown clearly that the testator intended that it should
(61) When an inn is bequeathed with its appurtenances which are said to
belong to the inn-keeper, all those things are included which are provided for
the use of the proprietor; for instance, vessels in which wine is poured, and
dishes and cups for eating and drinking, but those who serve food or drink by
means of these utensils do not pass with the legacy.
(62) Where the instruments of a physician are bequeathed, eyewashes and
plasters, all the apparatus for compounding medicines, as well as surgical
instruments, are comprised in the legacy.
(63) When the studio of a painter is bequeathed, paints, brushes,
branding irons, and vessels for mixing colors are included.
(64) Where the shop of a baker is bequeathed, sieves, asses, mills, and
slaves who are employed in the bakery, as well as the machines with which flour
is kneaded, are included in the legacy.
(65) When the establishment of a bather is bequeathed, the bather
himself, benches, footstools, pipes, cauldrons, spigots, water-wheels, and also
the beasts of burden by which wood is carried, are embraced in the legacy.
(66) When the equipment of a fisherman is bequeathed, nets, baskets,
tridents, boats, hooks, and everything else of this kind intended for the use
of fishermen is included.
(67) Where furniture is bequeathed, boxes and chests — except such
as are solely intended for books or clothing — are included; as well as
vessels of Phoenician, and other glass, or crystal, and of silver, both for
eating and drinking purposes, together with cloths used for covering, are
included in the legacy.
(68) When a house and a field are bequeathed separately, one is included
in the other.
(69) Where slaves are bequeathed by the formula: "I do give and
bequeath", female slaves are also included; but where male slaves are
bequeathed, females are not included. In the term female slaves, virgins, as
well as the sons of slaves are included. Those, however, are excepted who are
left in trust.
(70) When slaves who are secretaries are bequeathed, all who are engaged
in that service in the city will be included, unless some of them have been
permanently transferred to work in the country.
(71) It is doubtful whether hunters or bird-catchers should be included
among those employed in service in a city, and the question therefore depends
upon the intention. Still, if they are kept for the purpose of daily attendance
upon the table they will be included.
(72) Muleteers and stewards are included in those employed in urban
services, as well as purveyors and valets, butlers, chamberlains, cooks,
cake-bakers, barbers, litter-bearers, and grooms.
(73) When flocks are bequeathed, all quadrupeds are included which feed
together in herds.
(74) When beasts of burden are bequeathed, oxen are not included; and
where horses are bequeathed, it has been decided that mares are included; where
sheep are bequeathed, lambs are not included, unless they are a year old.
(75) Where a flock of sheep is bequeathed, rams are also included.
(76) Where fowls are bequeathed, geese, pheasants, chickens, and the
places where they are kept are included, but whether the keepers of pheasants
and of geese are included, depends upon the intention of the testator.
(77) When sweets are bequeathed, wine which has been boiled down either
with or without spices; mead; sweet wine; dates; figs; and raisins are
included. On this point, also, there is a question of the intention, because
this term includes some kinds of apples.
(78) When vegetables are bequeathed, not only leguminous plants, but
also barley and wheat are included.
(79) When cloth is bequeathed, it includes everything woven of wool and
flax as well as of silk and cotton which is prepared for the purpose of wear or
covering, as for girdles, or for placing under or upon one. Skins suitable for
wear are also included.
(80) When clothing for males is bequeathed, this only applies to
garments used by men for reasons of modesty, and any kind of covering is
embraced in a bequest of this description.
(81) When female clothing is bequeathed, all garments intended for the
use of women are included.
(82) When wool is bequeathed, it is included in the legacy whether it
has been cut off, or washed, and whether it has been carded or dyed; purple,
however, whether in the web or the woof, is not comprised in this category.
(83) When articles suitable for the use of women are bequeathed,
everything intended to render them more neat and elegant is included; for
instance, mirrors, toilet-boxes, vessels for water, ointments, and the vases in
which they are contained, and also a stool for. the bath, and other things of
(84) Where ornaments are bequeathed, all those things used for the
adornment of women are included; as for instance rings, chains, nets, and other
things with which women adorn their necks, heads, or hands.
(85) When silver is bequeathed, it only is due in the mass, for vessels
which are designated by their own names are not included in the legacy; for
when wool is bequeathed, clothing is not due.
(86) When silver vessels are bequeathed, all those are included which
are fashioned for any purpose, and therefore such as are used for eating or
drinking, as well as the slaves who handle them at banquets are due; as for
instance, small pitchers, bowls, dishes, pepper, cruets, spoons, ladles,
goblets, and other utensils of this kind.
(87) When books are bequeathed, volumes of paper, parchment, and papyrus
are included, and wooden tablets covered with wax, as well. By the term "books"
not merely volumes of leaves of paper, but also any kind of writing which is
enclosed in anything is understood.
(88) When gold is bequeathed, precious stones are also included, and
pearls and emeralds pass with the legacy; the better opinion, however, is that
this is a question of intention, for gold which is not manufactured is due, but
where it is manufactured, it is comprised in the category with ornaments.
(89) Where silver plate is bequeathed, any inlaid decoration of gold is
also embraced in the legacy.
(90) Where a silver drinking service is bequeathed, every kind of
drinking vessel is included; as for instance, bowls, cups, goblets, pitchers,
wine-jars, and spoons.
(91) When a carriage with its belongings is bequeathed, mules are also
included in the legacy but the muleteer does not seem to be, according to the
daily custom of speaking.
(92) When a codicil, or any other kind of a testament, is produced, from
which a legacy has been erased, or cut away, its payment cannot legally be
1 Original manuscript illegible.
CONCERNING DONATIONS MORTIS CAUSA.
(1) A person makes a donation mortis causa who, on departing for
war, or being about to undertake a sea voyage, does so upon the condition that
if he should return the property shall be restored to him, and if he should
die, it shall belong to him to whom he gave it.
(2) A donation mortis causa made on account of illness, on the
recovery of health is also revoked by a change of mind; for it becomes
effective only through death.
ON THE LEX FALCIDIA.
(1) When an estate has been exhausted by legacies, trusts, or donations
mortis causa, the appointed heir can, by the aid of the Lex
Falcidia, retain a fourth part of the same.
(2) Whenever a question arises with reference to the portion to be
retained, on account of the risk of the heir demanding more than he is entitled
to, after an appraisement of all the property has been made by the judge, the
amount of the fourth to which the heir is entitled is determined; or a bond is
executed from the legatee that if he receives any more than the fourth of the
estate he will return it.
(3) Property donated to a son by a mother during her lifetime, is not
subject to the reservation of the Falcidian fourth.
(4) Where default occurs in the payment of trusts or legacies, suit can
be brought to recover the profits and interest; and default is held to be
committed when the property left in trust or bequeathed is not delivered to the
party claiming it.