(1) A wife to whom her husband left the dowry as a preferred legacy cannot be charged with a trust, for the reason that she does not obtain any pecuniary benefit from the will, but is considered merely to receive that to which she is entitled.

(2) A posthumous child, who has been appointed heir, can be charged with the execution of a trust.

(3) If the Emperor is appointed heir, he can be charged with the payment of a legacy and the execution of a trust.

(4) A person who is deaf or dumb, whether he receives a legacy, is appointed an heir, or succeeds on the ground of intestacy, can legally be charged with the execution of a trust.

(5) Anyone who leaves a trust can charge the party to whom he leaves it, as follows: "I request you, Gaius Seius, to be content with the said property"; or, "Or I desire that that property be delivered to you".

(6) We can create a trust in the following words: "I ask, I request, I desire, I direct, I pray, I wish, I enjoin." The expressions "I desire", and "I command" create a valid trust. The terms "I leave", and "I recommend", do not furnish ground for an action of trust.

(7) We can leave our own property, as well as that of others, subject to the terms of a trust; but our own must be delivered immediately, and that of others must either be purchased, or its value paid.

(8) If a testator leaves property belonging to someone else, as his own, in trust, he should not do so if he is aware that it belongs to another, as is the practice with legacies; for the trust will be of no force or effect.

(9) If the testator survives, and sells the property which he bequeathed the trust is extinguished.

(10) A trust included in a codicil which is not confirmed by a will is legally due.

(11) A trust left by a father to a son, no matter in what words it is expressed, is due according to law; for among persons who are related it is sufficient for the intention to be stated in any words whatsoever, as is the case with donations; and therefore a trust is considered to be legally bequeathed even on the day before the death of the deceased.

(12) If a trust be left, in any manner whatsoever, to take effect at the time of the emancipation of a son, or when he becomes his own master; he will be entitled to it when freed from paternal control.

(13) Where children are requested to transfer an estate if they should die without issue, and one of them dies without leaving children, the estate will pass to the survivor; nor can the parties, with reference to this make any agreement which is contrary to the will of the testator.

(14) An heir cannot execute a trust before entering on the estate, or a legatee before receiving his legacy.

(15) If the heir should sell the property left in trust and knowingly should purchase it, the beneficiary of the trust can still legally demand to be placed in possession.

(16) Whenever a trust is left to freedmen, it has been decided that it can only belong to such as have been manumitted, or who are among the legal number of those who have obtained their freedom under the terms of the same will.

(17) An heir can not only be charged with a trust involving the property of the estate, but also with one relating to his own property.

(18) All the rights attaching to a trust consist not in bringing an action to recover the property, but in making a demand for it.


(1) It was provided by the Trebellian Decree of the Senate that the heir should not be burdened with all the actions which might be brought against the estate; and therefore, whenever the estate is transferred under the terms of a trust, the actions relating to it are also transferred to the beneficiary, for the reason that both parties should not be liable to loss.


(1) A stipulation is entered into between the heir and the beneficiary of a trust to whom an estate is transferred under the Pegasian Decree of the Senate, in such a way that a fourth part of the actions will lie in favor of the appointed heir, and the remainder in favor of the beneficiary of the trust in proportion to his share of the estate.

(2) If the heir is asked to transfer the entire estate and is unwilling to retain the fourth, the better opinion is that he should transfer it under the Trebellian Decree of the Senate; for then all actions are granted to the beneficiary of the trust.

(3) Again, the Lex Falcidia and the Pegasian Decree of the Senate as well, permit the fourth of the remainder of the estate to belong to the heir, after the debts and the gifts to the gods have been deducted.

(4) An heir who transfers the entire estate, and does not retain the fourth part of it under the Pegasian Decree of the Senate, as he should have done, cannot recover it; for he who prefers to discharge his entire duty to the deceased is not considered to have paid something which was not due.


(1) An estate can not only be refused by words but also by acts, and by any indication of the intention whatsoever.

(2) An heir can be compelled by municipal magistrates, under the authority of the governor, to enter upon and transfer an estate, on the demand of the beneficiary of the trust.

(3) If the beneficiary alleges that the heir refuses to enter on the estate he can demand that a decree be rendered in his absence, and that he legally be placed in possession.

(4) An heir who is compelled to enter on an estate which is supposed to be insolvent, transfers all the property belonging to the same under the Trebellian Decree of the Senate.1

1 Trusts, or bequests for the benefit of a third party, and known as fideicommissa, were invented to evade the rule of law by which a Roman citizen was prohibited from leaving property directly by will to foreigners and other persons legally incompetent to receive it. At first, no legal measures could be taken to enforce compliance with the wishes of the testator, the legacy absolutely vested in the trustee who was the testamentary heir, and was only in honor bound to carry out the provisions of the will, so far as the beneficiary of the trust was concerned. Violation of this moral obligation, however, occurred so often that the Emperor Augustus declared it to be legally binding, and provided for the enforcement of its performance. It is related of him that he himself scrupulously observed the directions of a testator with reference to the transfer to a beneficiary of property bequeathed for the benefit of the latter; thus affording a laudable example for the observance of his subjects. The consuls, and subsequently two prætors especially appointed for that purpose, were invested with jurisdiction over trusts. As difficulties arose in their execution, owing to the reluctance of the heir to assume responsibilities that in many cases were productive of no advantage, and which might result in serious loss, various decrees of the Senate were enacted to remove these drawbacks. By this means the heir, on the transfer of the estate, was released from all liability, which was assumed by the beneficiary; and he was entitled to a fourth of his share which, however, he forfeited if he refused to enter on the estate and legal measures were required to compel him to do so.

Trusts were either universal or special; the first involved the transfer of an entire inheritance, the second had reference to some designated article or a specified sum of money. An universal trust was, in its effect, merely a kind of substitution, entirely dependent upon the previous entry of the heir upon the estate. It was not necessary for the heir to even accept the execution of the trust in order to transmit it to his successors; and when certain property, which included his fourth, was bequeathed to him, he was held to occupy the position of an ordinary legatee. The beneficiary of a trust, as well as an heir, had the right to reject an estate or a legacy if he thought that it would prove burdensome, or disadvantageous.

Fideicommissa, which are treated under the head of Substitutions, are recognized by nearly all the Codes of Continental Europe. They were introduced into England under the name of "uses", during the reign of Edward III, for the purpose of evading the Statutes of Mortmain by enabling the clergy to enjoy the use and benefit of lands which could not be directly devised to them. The trustee was called the feoffee to uses, and the fideicommissarius, or beneficiary, the cestuy que use, and afterwards the cestuy que trust. The Statute 15, Richard II, 2, 5, effectively disposed of this ingenious expedient to avoid the requirements of the law. "If any be seized of any lands or other Possessions to the use of any Spiritual Person with purpose of Amortize them, and whereof such Spiritual Person takes the Profits, he shall before the Feast of St. Michael next, cause them to be Amortized by the Licence of the King and other Lords, or dispose of them to some use; otherwise they shall be Forfeit according to the Form of said Statute, as Lands purchased by People of Religion; And no such Purchase to the use of such Spiritual Person shall be hereafter made, upon like pain." (Wingate, An Exact Abridgment of all the Statutes from the beginning of Magna Charta, Title Mortmain, Page 433.) — ED.


(1) A will is said to be inofficious, because the children having been improperly disinherited, it does not appear to have been drawn up in accordance with the duty of parental affection.

(2) When a son is born after a will has been made by his mother, and her intention does not seem to have been changed when it could have been done; the son can properly file a complaint for inofficiousness, as in the case of an heir who has been passed over.

(3) A will in which the Emperor is appointed heir can be declared inofficious; for it is but fitting that he who makes the laws should with equal dignity obey them.

(4) Anyone who can allege a will to be inofficious is not prevented from claiming the estate.

(5) A son who is appointed heir to an entire estate cannot declare the will to be inofficious, nor does it make any difference whether the estate is exhausted or not, for he still will be entitled to the fourth part of the same by the benefit of either the Lex Falcidia or the Pegasian Decree of the Senate.

(6) The fourth part of the estate, after the debts and funeral expenses have been deducted, should be given to the children, in order that they may be prevented from making a complaint of inofficiousness. It is settled that grants of freedom also diminish this part.

(7) If a son obtains less than a fourth part of the estate under the will of his father, he can legally demand that the remainder of his share be made good by his brothers, his co-heirs, without filing a complaint of inofficiousness.

(8) An agreement not to declare a will inofficious does not bar a future complaint with reference to the will, for it has been decided that the claims of children should be considered rather than any agreement.

(9) Where an heir is requested to transfer the estate, no injury is done to the beneficiary of the trust, even though the heir might be able to file a complaint of inofficiousness; for he only loses a fourth part of the estate which he could have had under the terms of the Decree of the Senate. .

(10) If the appointed heir has a substitute, and makes a complaint of inofficiousness but fails to gain his case, the property will not belong to the Treasury, but to the substitute.


(1) A will is opened in the following manner: either all the witnesses who attached their seals to the will, or the majority of them are summoned, so that, having acknowledged their seals, and the cord having been broken, the will may be opened and read, and the opportunity to make a copy of the same may be afforded; and then, having been sealed with the public seal, it is placed among the public records, in order that if the copy should be destroyed, it may be known where the original can be found.

(2) Wills executed in provincial towns, colonies, fortified places, prefectures, villages, castles, and places of assembly should be opened and read in the presence of the witnesses or of respectable citizens in the forum or the church between the second and the tenth hour of the day. A copy having been made, the will is again sealed up in the presence of the magistrates in whose presence it was opened.

(2a) Anyone who opens or reads a will in any other manner, or in any other place than those required by law, is liable to a penalty of five thousand sesterces.

(3) The law directs a will to be opened immediately after the death of the testator; and although this rule has been changed by rescripts, still, under those at present in force a will should be opened within three to five days after the death of the testator, and where the parties are absent, within the same number of days after their return; for this is not a matter of such importance to the heirs, legatees, or recipients of grants of freedom, as it is that no delay should take place in the payment of the necessary tax.


(1) Anyone who writes, reads, substitutes, or seals a forged will, or knowingly and maliciously suppresses one which is genuine, or removes it, re-seals it, or destroys it, is liable to the penalty for forgery under the Lex Cornelia; that is to say, he shall be deported to an island.

(2) Not only he who substitutes, suppresses, or destroys a will, is punished by the penalty of the Lex Cornelia, but also he who knowingly and maliciously orders this to be done, or takes care that it shall be done.

(3) He suppresses a will who knowingly, intentionally and for the purpose of defrauding the heir, the legatees, the beneficiaries of a trust, or the slaves entitled to freedom under the will does not produce it.

(4) He is considered to suppress a will who having it in his possession and being able to produce it, takes care not to do so.

(5) If a codicil is concealed and not produced, it is considered to be suppressed.

(6) It is provided by the Perpetual Edict1 that if a will is not produced proceedings can be instituted within the year to compel its production through an interdict, by means of which the party who suppressed it can be forced to produce it. Where the instrument is written either on papyrus or parchment, it comes under the head of a will.

1 The Prætor was invested with extraordinary power with reference to subjects included in his jurisdiction. His edict, inscribed upon the "album" or "tablet" — so called from its white color — posted conspicuously in the Forum, announced to all the formulas of practice, and the principles which were to form the bases of his decrees for the ensuing year. It is true that he usually adopted, with slight modification, those promulgated by his predecessors, but he was, by no means, obliged to do so. A new order of proceeding, other rules of judicial conduct, were ever at his disposal, on the assumption of his magisterial duties; provided, of course, that he could frame them, that they were not inequitable, and did not interfere with the rights of the litigants who appeared before him. This vast authority, which, to a certain extent, practically conferred upon the person in whom it was vested the privilege of legislation, was naturally liable to abuse; and led to the enactment of the Edictum Perpetuum, or "Continuous Edict", by whose provisions the Prætor was deprived of the arbitrary power to issue new edicts arising from the circumstances of any particular case, and was compelled to adhere to the rules which he himself had prescribed for his guidance during his term of office. This regulation, whose observance was originally optional with the Prætor, became compulsory with the passage of the Lex Cornelia, 67 B. C.; and effectively disposed of the Edicta Repentina or Extraordinaria, which has reference only to individual cases, and too frequently had been inspired by the caprice or prejudice of the occupant of the Prætorian Tribunal.

In A. D. 131, during the reign of Hadrian, the Prætorian Edict, the interpretation and enforcement of which had previously been largely left to the discretion of the magistrate, acquired new legal authority through express Imperial sanction. Salvius Julianus, one of the most renowned jurists of the age, was ordered by the Emperor to revise the Edict as it then stood, with a view to having it enacted as a law. During the process of revision, many changes appear to have been made, some of them arbitrarily in accordance with the opinions of the compiler, others at the suggestion of the Emperor himself. The result of this was that, as strict construction and rigid application of the terms of the Edict now became obligatory on the Prætor, his equitable jurisdiction was greatly curtailed, often to the serious embarrassment and hardship of litigants, who sought relief in his Court from the severe and inflexible principles prescribed by the Civil Law. — ED.


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(14) The following difference exists between agnates and cognates, namely, cognates are included among agnates, but agnates are not included among cognates; and therefore a paternal uncle is both an agnate and a cognate, but a maternal uncle is a cognate but not an agnate. (15) (16) (17)

(18) Where one brother is dead, his surviving brother has a living son and there is a grandson of the deceased brother, the son of the former will be preferred to the grandson of the latter.


(20) The son of a brother is preferred to the son of a sister, where the property of an intestate estate is concerned.

(21) By the ancient Civil Law, if legal heirs merely enter upon an estate within a hundred days the succession is transferred to the next of kin.

(22) Women beyond the degree of sisters are not admitted to the succession of intestate estates; and this is considered to have been established by the Voconian rule under the Civil Law. The Law of the Twelve Tables, however, admits agnates without this distinction of sex.

(22a) Although women beyond the degree of sisters are not admitted to the succession of intestate estates, they are, nevertheless, not prevented from demanding prætorian possession on the ground of relationship.

(23) The rule of succession does not apply to inheritance by law, and therefore, if a brother dies before entering on an estate, or rejects it, the son of his brother cannot be admitted, although if the succession were lost it would pass to the next of kin.

(24) Anyone who is captured by the enemy and returns under the law of postliminium, does not lose his right either as a proper heir or an heir-at-law. It has been decided that the same rule shall apply to those who have been deported to an island or sentenced to penal servitude, if, through the indulgence of the Emperor, they are completely restored to the enjoyment of all their rights.

(25) To act as the heir is to assume the management of some property belonging to an estate with the intention of afterwards claiming it; and hence he is considered to act as an heir who arranges for the cultivation of land belonging to an estate, and who makes use of slaves, animals, and other property forming part of the same.

(26) Where some of several heirs-at-law have neglected to accept an estate, or have been prevented from entering on it for some reason or other, those who did enter on it, or their heirs, will obtain by accrual the shares of any who failed to do so. The rule which applies to an appointed heir who fails to accept an estate, namely, that he can have a substitute, is not applicable in this instance, for a difference exists between a testamentary heir and an heir-at-law.

2 Original manuscript illegible.


(1) It is sufficient for mothers — and this includes not only those who are freeborn, but also freedwomen who are Roman citizens — in order to be entitled to the right of children, to have had children three or four times provided the latter were born alive and after full term.

(2) A woman who has three children at a birth is not entitled to this right, for she did not have children three times, but is considered to have had but one birth, unless she should have had them at intervals.

(3) If a woman brings forth a monster or a prodigy, this is of no avail, for creatures having forms contrary to that of the human race are not children.

(4) It has been decided that a mother can take advantage of a child whose membranes serve a double purpose, for the reason that it seems, to a certain extent, to be human.

(5) A child born after the seventh month is an advantage to its mother in this respect, for the rule of the Pythagorean number seems to admit that the child appears to be mature after the seventh or the tenth month.

(6) An abortion or a miscarriage is not considered to constitute a birth.

(7) In order that a freedwoman, who is a Latin, may obtain the right attaching to the birth of a number of children, it is sufficient if she has had four, as in the case of a woman who is free born.

(8) A Latin woman, who is freeborn, obtains the right of Roman citizenship if she has had children three times and is admitted as heir-at-law to her son, for she was not manumitted.

(9) A mother is entitled to the right attaching to the birth of a number of children who, either has, or has had three sons, even though she may not have them, nor has had them. She has them when they survive, she has had them after she has lost them; and she neither has, or has had them, when, through the kindness of the Emperor, she obtains the right attaching to their birth.


(1) Children born of promiscuous intercourse are not prevented from claiming the estate of their mother, if she died intestate; because, as their estates pass to their mother so the estate of their mother should vest in them.

(2) Through the operation of the Claudian Decree of the Senate, the estate of a mother who died intestate cannot pass to a daughter who is either a female slave, or a freedwoman; because neither slaves nor freedmen are understood to have mothers under the Civil Law.

(3) Children who are Roman citizens, but not Latins, are admitted as heirs-at-law to the estate of their mother who died intestate; they must, however, be Roman citizens at the time when the intestate estate passed to them, and could be entered on; just as when children become certain that their mother is dead, although they have not been notified, and it is clearly ascertained that she died intestate.

(4) A son cannot acquire the estate of his mother as heir-at-law without entering on the same.


(1) In the first degree of the ascending line are the father and the mother; in the first degree of the descending line, are the son and the daughter, and no other persons.

(2) In the second degree of the ascending line are the grandfather and the grandmother; in the second degree of the descending line are the grandson and the granddaughter; in the collateral line are the brother and the sister. These persons are doubled for the grandfather and grandmother on the father's as well as the mother's side, and the grandson and the granddaughter born of the son as well as of the daughter, and the brother and the sister on the father's as well as the mother's side, are included. Moreover, these persons are also doubled in the same order and in the same manner in the succeeding degrees, according to their positions in each degree.

(3) In the third ascending degree are the great-grandfather and the great-grandmother; in the third descending degree the great-grandson and the great-granddaughter; in the collateral degree the son and the daughter of the brother and the sister; the paternal uncle and the paternal aunt, that is to say, the brother and sister of the father, and the maternal uncle and the maternal aunt, that is to say, the brother and sister of the mother.

(4) In the fourth ascending degree are the great-great-grandfather and the great-great-grandmother; in the fourth descending degree the great-great-grandson and the great-great-granddaughter; in the collateral line the grandson and the granddaughter of the brother and the sister, the son and the daughter of the father's brother, that is, the son and daughter of the paternal uncle, the son and daughter of the father's sister, that is the son and daughter of the paternal aunt and the son and daughter of the maternal aunt; although this term of relationship is properly applied to children born of two sisters, to which is added the great paternal uncle and the great paternal aunt, that is, the brother and sister of the paternal grandfather; and the great maternal uncle and the great maternal aunt, that is, the brother and the sister of both the paternal and the maternal grandmother, and of the maternal grandfather.

(5) In the fifth degree in the ascending line, are included the great-great-great-grandfather, and the great-great-great-grandmother; in the descending line, the great-great-great-grandson, and the great-great-great-granddaughter; in the collateral line the great-grandson and the great-granddaughter of the brother and sister, the paternal uncle of the brother, and the paternal uncle of the sister, the maternal uncle of the brother, and the maternal aunt of the sister, and their children; and then the cousins of both sexes, that is to say, the sons and daughters of the great paternal uncle and the great paternal aunt, and of the great maternal uncle and the great maternal aunt. Next in order of these come the great paternal uncle and the great paternal aunt, the brother and sister of the paternal greatgrandfather, and the great maternal uncle and the great maternal aunt, the brother and sister of the paternal and the maternal greatgrandfather, and the maternal great-grandparents.

(6) In the sixth degree in the ascending line are the great-great-great-great-grandfather and the great-great-great-great-grandmother; in the descending line are the great-great-great-great-grandson and the great-great-great-great-granddaughter, in the collateral line the great-great-great-grandson and the great-great-great-granddaughter of the brother and sister, the paternal uncle of the brother and sister, the maternal uncle and aunts, and the grandson and the granddaughter of cousins, the grandson and granddaughter of the paternal great uncle and the paternal great aunt and of the maternal great uncle and the maternal great aunt, that is, they are more properly called cousins, as the son and the daughter of a cousin are also styled cousins. Next in the collateral line come the son and the daughter of the paternal great-great-uncle, and the paternal great-great-aunt, and of the maternal great-great-uncle, and the maternal great-great-aunt, and the brother and sister of the paternal and maternal great-great-grandfather; and the brother and sister of the paternal and maternal great-great-grandmother, and the maternal great-great-grandparents.

(7) Those who are related in the seventh degree are not designated by peculiar names in either the direct ascending or descending lines; but in the collateral lines are the great-great-grandsons and the great-great-granddaughters of the brother and sister and the cousins or great-great-grandsons and great-great-granddaughters, and their sons and daughters.

(8) Only seven degrees of succession have been established, because in the nature of things neither names can be found nor life be prolonged, for those who succeed.


(1) Where one of his owners manumits a slave held in common he does not render him a Latin, nor still less a Roman citizen, and the share in the slave who, if he had belonged to but one person, would have obtained Roman citizenship, accrues to the other joint owner.

(2) A person who is dumb and deaf cannot liberate a slave under the wand of the Prætor; but he is not forbidden to manumit him in the presence of friends, or by means of a letter. Moreover, in order that the slave may obtain legal freedom, he can be excepted by his owners from the condition of the sale.

(3) A slave who has been subjected to torture in the presence of the governor and does not confess any crime, can receive lawful freedom.

(4) Where freedom is granted to a slave under the terms of a trust it is not annulled by the act of the heir, if he puts in chains the slave whom he was ordered to manumit.

(5) One of the joint-owners of a slave does not prejudice his future freedom by placing him in chains, for among similar opinions the more merciful is preferred to the more severe. It is certainly the part of human reason to favor the wretched, and to say that those are almost innocent whom we cannot declare to be absolutely bad.

(6) A creditor, or a debtor cannot, by placing a slave who has been pledged in chains, put him in the position of an enemy who has surrendered at discretion; for one of them cannot, without the other, cause deterioration of the property pledged.

(7) A slave who has been placed in chains by the order of an insane master or one who is a minor, is not to be classed in the number of persons who have surrendered at discretion, for the reason that neither an insane person nor a minor is capable of exercising good judgment.

(8) Not even if the master himself should place him in chains, will he prejudice his right to freedom; but if he should order this to be done, or should ratify the act of his attorney or agent who have placed him in chains, this will not affect the prospect of his future freedom; even if before he knew that he had been placed in chains, he should approve of his release.

(9) A curator cannot be appointed for a blind man, because he himself can appoint an attorney.


(1) Where an heir is appointed on the condition that he will emancipate his children, he is, by all means, required to emancipate them; for in this instance emancipation is considered to be conditional.

(2) Where the party who has been charged with a grant of freedom under the terms of a trust dies, his heirs should be required to bestow it.

(3) If a person at the time of his death grants freedom to his slaves, as follows, namely: "I wish So-and-So and So-and-So to be free, and I appoint them guardians of my children"; the grant of freedom under the trust will be prevented, because wards cannot manumit without the authority of their guardian, and a guardian cannot be appointed for those who already have one. In the meantime, however, wards are considered as being absent, and under the Decree of the Senate freedom can first be granted, and guardianship be established afterwards.


(1) Slaves can be manumitted by will only by name, according to the Lex Fufia. They are understood to be properly manumitted by name when the following forms are employed: "Let Stichus be free"; or "I desire my steward", or "the child of my female slave to be free". By the Orphitian Decree of the Senate freedom can be granted just as if the slave had been mentioned by name, for the reference to his occupation and trade makes no change in his designation, unless there are several slaves who discharge the same duties; for then the name should be added in order that it may be clear which one the testator seems to have meant.

(2) Where grants of freedom mentioned in a codicil confirmed by a will agree with those granted by the will, they are considered the most recent because both are confirmed by it whether they precede or follow the will in point of time.

(3) Whenever a number of slaves is referred to on account of the Lex Fufia Caninia, fugitives also, whose possession is always supposed to be retained, should be included.

(4) It is provided by the Lex Fufia Caninia that a certain number of slaves can be manumitted by will; therefore, where two have been stolen, half of the remainder from three to ten, can be manumitted; from ten to thirty, the third; from thirty to a hundred, the fourth; from a hundred to five hundred, the fifth; but it is not lawful for more than a hundred to be manumitted from the greater number of slaves.