THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. VII.
CINCINNATI THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME VII.
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXIX.
(Continued.)
TITLE VI.
PAGE
WHERE ANYONE PREVENTS ANOTHER FROM MAKING A WILL, OR COMPELS HIM TO MAKE ONE .......................................... 3
TITLE VII. CONCERNING THE LAW OF CODICILS ................................. 4
BOOK XXX.
TITLE I. CONCERNING LEGACIES AND TRUSTS ................................ 10.
BOOK XXXI.
TITLE I. CONCERNING LEGACIES AND TRUSTS ................................ 62
BOOK XXXII.
TITLE I. CONCERNING LEGACIES AND TRUSTS ................................ 106
BOOK XXXIII.
TITLE I. CONCERNING ANNUAL LEGACIES AND TRUSTS ........................ 157
TITLE II. PAGE
CONCERNING USE, USUFRUCT, INCOME, LODGING, AND SERVICES LEFT BY LEGACIES OR TRUSTS .......................................... 167
TITLE III. CONCERNING THE LEGACY OF SERVITUDES ............................ 178
TITLE IV. CONCERNING THE PREFERRED LEGACY OF A DOWRY .................... 180
TITLE V.
CONCERNING THE OPTION OR CHOICE OF ARTICLES BEQUEATHED AS A LEGACY ..................................................... 187
TITLE VI. CONCERNING BEQUESTS OF WHEAT, WINE, AND OIL ................... 192
TITLE VII. CONCERNING LEGACIES OF EQUIPMENT OR IMPLEMENTS ............... 195
TITLE VIII. CONCERNING LEGACIES OF PECULIUM ............................... 213
TITLE IX. CONCERNING LEGACIES OF PROVISIONS .............................. 220
TITLE X. CONCERNING BEQUESTS OF HOUSEHOLD GOODS ........................ 224
BOOK XXXIV.
TITLE I. CONCERNING LEGACIES OF SUBSISTENCE OR FOOD ..................... 228
TITLE II.
CONCERNING LEGACIES OF GOLD, SILVER, ORNAMENTS, JEWELS, PERFUMES, CLOTHING, TAPESTRY, AND STATUES ............................ 239
TITLE III. CONCERNING THE BEQUEST OF A RELEASE FROM LIABILITY ............. 255
TITLE IV. CONCERNING THE CANCELLATION OR TRANSFER OF LEGACIES AND TRUSTS. 269
TITLE V. CONCERNING DOUBTFUL MATTERS .................................. 279
TITLE VI. PAGE CONCERNING BEQUESTS MADE BY WAY OF PENALTY .................. 288
TITLE VII. CONCERNING THE RULE OF CATO ................................... 289
TITLE VIII.
CONSIDERING TESTAMENTARY PROVISIONS WHICH ARE CONSIDERED AS NOT HAVING BEEN WRITTEN ....................................... 290
TITLE IX.
CONCERNING THOSE WHO ARE DEPRIVED OF THEIR LEGACIES AS BEING UNWORTHY OF THEM ......................................... 291
BOOK XXXV.
TITLE I.
CONCERNING TESTAMENTARY CONDITIONS AND DESIGNATIONS, THEIR REASONS AND THEIR MODIFICATIONS ............................... 299
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XXIX.
(Continued.)
TITLE VI.
WHERE ANYONE PREVENTS ANOTHER PROM MAKING A WILL, OR COMPELS HIM TO MAKE ONE.
1. Ulpianus, On the Edict, Book XLVIII.
The Divine Hadrian decreed that if anyone, while endeavoring to obtain possession of an estate to which he was entitled either by descent or by will, should prevent a person from entering, who had been sent for, either to draw up a will which the testator desired to execute, or to change one already made, he shall be denied the right to bring any action, and when this is done, the Treasury will be entitled to the estate.
(1) Where a master acting in bad faith prevents a will from being changed by which his slave had been appointed heir, even though, having been manumitted, the latter should enter upon the estate, he shall be denied all rights of action, and his children, if anything has been left to them, shall also lose their rights, even though they are not under his control. Where, however, a legacy has been left to the master in trust, and he is requested to pay it, it must be said that he can receive the legacy, since he himself is not entitled to it, but it must be transferred to another.
(2) Where several heirs have been appointed, and all of them are guilty of bad faith in preventing a will from being changed, it must be said that rights of action shall be refused all of them, because all have acted fraudulently.
2. Paulus, On the Edict, Book XLIV.
Where anyone acts in bad faith in order to prevent the appearance of witnesses to a will, and by this means the power of making the will is lost, all rights of action shall be refused to the party responsible for the fraud, whether he is the heir-at-law, or was appointed under a former will.
(1) The act of a brother, however, under these circumstances, does not injure his brother.
(2) Where he who committed the fraudulent act was charged with the transfer of the estate, it will be forfeited with all liabilities, so that the Treasury will obtain the benefit of the Falcidian Law, and the beneficiary of the trust will receive three-fourths of the estate.
3. Papinianus, Opinions, Book XV.
Where a husband does not, by employing either force or fraud, interfere to prevent his wife from changing, by means of a codicil, a will which she had made in his favor but (as often happens), merely attempts to appease the anger of his wife by marital remonstrances; I gave as my opinion that he was not guilty of any offence, and should not be deprived of what had been given him by the will.
TITLE VII. CONCERNING THE LAW OP CODICILS.
1. Ulpianus, Disputations, Book IV.
It has very frequently been set forth in Rescripts and Imperial Constitutions, that where a testator was under the impression that he had made a will (but which was void as such), and did not intend it to be valid as a codicil, he is held not to have executed a codicil. Therefore, whatever is included in a will of this kind will not be due, although it would have been if included in a codicil.1
2. Julianus, Digest, Book XXXVII.
Where a child is born after a will has been executed, and before a codicil is written, and anything is left to it in trust by the codicil, it will be valid.
1 The distinguishing characteristic of a codicil at Civil Law, when compared with a will, was the fact that an heir was not, and could not be appointed by it. The designation of an heir was deemed essential to the validity of a testament, not only by the Romans, but also by the ancient Common Law of England. "Testament sauns executour est come nul." (Plowden, Les Commentaries ou Reports, Page 185.)
The origin of codicils is generally referred to the reign of Augustus, during which Lentulus, Proconsul of Africa, having executed a will in favor of the Emperor and his daughter, subsequently made a codicil in which he charged them with the execution of certain trusts. Some jurists, however, hold that they preceded the Law of the Twelve Tables.
Many of the formalities essential to the legality of a testament were not exacted in a codicil, although it was usually considered a supplementary will. The attestation of five witnesses was about the only one imperatively demanded to insure its validity, and even this requirement was not, at certain periods of Roman history, deemed indispensable. Any act could be performed under a codicil which did not require the agency of an appointed heir, and which the heir-at-law could execute. A codicil might or might not be confirmed by a will, and if confirmed, the obligation to pay the bequests was just as binding as if they had been the subject of original testamentary disposition. A codicil might also be noncupative, although this is in direct contradiction of the primary meaning of the term, which suggests an instrument in writing. An estate could be left in trust under a codicil which was not confirmed by a will; such confirmation was, however, necessary to insure the payment of a legacy. A will which, through some defect, was invalid, was often good as a codicil.
Under our laws, a codicil is held to be an integral part of a will, and it must be executed and attested just like one, and written on the same piece of paper, or attached thereto. It is not, however, necessary that this should be the case in order to establish its testamentary validity, when it is intended as a republication of the will. — ED.
(1) If, however, he to whom anything was given should die after the execution of the will, and before the codicil in which the bequest is made is executed, it will be considered as not having been written.
(2) A rule peculiar to a codicil is that whatever is included in it shall be considered to have the same effect as if it had been included in the will. Hence freedom is not legally granted to a slave who, at the time of the execution of the will, was the property of the testator, but, when the codicil was executed, belonged to another.
And, on the other hand, if the slave belonged to another at the time that the will was made, and at the time of the execution of the codicil had become the property of the testator, freedom is then understood to have been granted to a slave belonging to another; and therefore, although it cannot be directly bestowed, still recourse can be had to a trust.
(3) An insane person is not understood to have the power to make a codicil, for the reason that he is not considered to be competent to perform any other act; since, in the transaction of every kind of business, he is held to be in the position of one who is absent, or who takes no part in the transaction.
(4) Where an estate is fruitlessly bequeathed by a will, it cannot be confirmed by a codicil, but it can be claimed under a trust, with a reservation of the amount granted by the Lex Falcidia.
3. The Same, Digest, Book XXXIX.
Where anyone who has not made a will establishes a trust, by means of a codicil, as follows: "Whoever shall be my heir, or the prætorian possessor of my estate, I leave to him as trustee," the sums left under the trust must be paid, because the head of the household who had the power to make a will, and made a codicil, is in the same position as if all those were his heirs into whose hands the estate will come either through descent or through possession under praetorian law.
(1) Where a child is born after the execution of a codicil, and it is the next of kin, or the direct heir, it will not be obliged to pay any sums left in trust, for it is also understood to be the appointed heir, and therefore it should not be considered as having broken the codicil.
(2) Where a will has been made, even if a codicil should not be confirmed by it, the codicil will, nevertheless, obtain all its force and effect from the will. Again, if the estate is not entered upon by virtue of the will, a trust created by a codicil of this kind will be of no validity whatever.
4. The Same, Digest, Book LXIII.
It has been decided that a testator who was solvent at the time of making a codicil can legally grant freedom to his slaves, although he may not have been solvent at the time when the will was executed.
5. Papinianus, Opinions, Book VII.
A codicil which precedes a will is not valid unless confirmed by the will or by a second codicil subsequently executed, or where its pro-
visions are established by some other expression of the intention of the testator; but any different dispositions that the deceased may subsequently make shall not stand.
6. Marcianus, Institutes, Book VII.
The Divine Severus and Antoninus stated in a Rescript, where a mother appointed her children her heirs absolutely, but, in a codicil, added a condition of emancipation, that her act was void; because she could not impose a condition upon an heir who had been appointed, or directly make a substitution under a codicil.
(1) Anyone can make several codicils, and it is not necessary for him to write or seal them with his own hand.
(2) Although, in the confirmation of a codicil, the head of a household may have added that it was not his intention that it should be valid, unless it was sealed and signed with his own hand; still, the codicil made by him will be valid, even if it had neither been signed nor sealed with his own hand, for subsequent dispositions annul those which precede them.
(3) He only can make a codicil who is competent to make a will.
(4) If anyone, by a codicil, should bequeath a legacy to a person who died after he had made his will, the bequest will be considered as not having been made, even though the codicil may have been confirmed by the will.
7. The Same, Rules, Book II.
There are certain dispositions which do not relate to the confirmation of codicils; as, for instance, where anyone confirms a codicil before being taken prisoner, and writes a codicil while in captivity, for such a codicil will not be valid.
The same rule applies where a person in some way or other ceases to possess testamentary capacity.
(1) Moreover, in questions which are rather those of fact than of law, what is included in a codicil is not to be considered as if it had been written at the time when the codicil was confirmed; for example, if it should be stated in the codicil, "That such-and-such a garment which belongs to me is bequeathed", the time that the codicil was written, and not that when it was confirmed, should be considered. Again, if a bequest is made to Seius by a codicil as follows, "If Titius is living", or "If he is so many years old", the date of the codicil, and not that of the will, should be considered.
8. Paulus, On the Law of Codicils.
Codicils are drawn up in four ways: for they are either to be confirmed in the future; or have been confirmed in the past; or they are made by means of a trust, where a will has been executed; or where there is no will.
(1) Those who succeed to an estate ab intestato can be charged with a trust, as it is considered that the deceased has voluntarily left them the estate to which they were entitled by law.
(2) A codicil is valid whenever the party who executed it was competent to make a will. But it must not be understood that we require him to have been competent to make a will at the time when he wrote the codicil. (For what if he was unable to obtain a sufficient number of witnesses?) It is indispensable, however, for him to have had the legal right to make a will.
(3) If anyone, by his will, should confirm a codicil to be made hereafter, and then offer himself to be arrogated, and afterwards make a will, and die emancipated; the question arises whether the legacies bequeathed by the codicil should be paid, as the will is valid ? He, however, executed the codicil at a time when he did not have testamentary capacity; and this case is not similar to that of a dumb person, who can legally confirm a codicil; for, although he is not competent to make a will, still one which he made before he became dumb remains in the same condition; but the will of this party is void, and, he is in a certain way disposing of the property of others by means of it.
We hold, however, that the codicil is valid, for even if the birth of a posthumous child should break the will, and it should afterwards die, the codicil will still be valid.
(4) Where a soldier executes a will before entering the army, and executes a codicil after his enlistment, the question arises whether the codicil will be valid under military law, since a will made under such circumstances is valid by the Common Law only where the soldier did not seal it, or make some addition to it during the term of his military service. It is certain that the codicil made during military service should not be referred back to the will in order to establish its validity, but is valid by military law.
(5) Where freedom is granted by a codicil to a slave who had also received a legacy by will, we say that the legacy is valid, just as if it had been so from the beginning.
(6) Where anyone confirms a codicil of a certain kind, for instance, "the one which I shall execute last", the provisions contained in any codicil will not be considered to be valid immediately, so long as others can be made; and therefore if others should be made subsequently, all grants of legacies by former ones will be void.
9. Marcellus, Digest, Book IX.
Aristo denies that a codicil is valid where it is made by a person who was ignorant as to whether or not he was the head of the family. Ulpianus states in a note, "Unless he had served in the army, for then his will will be valid".
10. Papinianus, Questions, Book XV.
The opinion that an estate cannot be bequeathed by a codicil has been handed down from former times, and the reason for this is to prevent the will, which obtains all its force from the appointment of the heirs, from appearing to be confirmed by means of a codicil, which itself is dependent upon the will for its validity.
11. The Same, Questions, Book XIX.
A certain man who was not aware that his wife was pregnant, in a codicil directed to his son, liberated some of his slaves. After the death of the father, a daughter was born to him, and as it was established that her father had not had her in his mind at any time, it was held that the grant of freedom should be made by the son alone:
12. The Same, Questions, Book XXII.
After the sister had been reimbursed for her share of the slaves.
13. The Same, Questions, Book XIX.
For it can undoubtedly be maintained that the daughter could not be compelled to manumit the slaves, since her father requested nothing of her, and she becomes an heir in her own right.
(1) The point is often discussed as to what conclusion should be reached, where a man did not make a will, but stated in a codicil: "I wish Titius to be my heir". It makes a great deal of difference whether he left the estate in trust in charge of his lawful heir, by means of this instrument, which he intended for a codicil, or whether he thought that he was making a will, for, in this case, Titius could claim nothing from the lawful heir.
The intention of the party in question is generally ascertained by the examination of the instrument itself. For if he left a legacy to be discharged by Titius, and appointed a substitute for him, if he should not be the heir, there is no doubt that he should be understood to have intended to make a will, and not a codicil.
14. Scævola, Questions, Book VIII.
Certain authorities hold (as I recollect) that in Vivianus a controversy is explained which arose between Sabinus, Cassius, and Proculus with reference to the question whether legacies given, or taken away by a codicil from persons who died after they were appointed heirs, were due to the substitutes; that is to say, whether the giving or the taking away of the legacies was as valid where they were provided for by a codicil, as they were when provided for by a will. It is said that Sabinus and Cassius answered that this was the case, and that Proculus dissented. The conclusion of Sabinus and Cassius, (as they themselves assert) is that the codicil is considered as part of the will, and that it sustains the observance of the law with reference to the delivery of the property. Still, I venture to say that the opinion of Proculus is the more correct; for a legacy is of no force or effect which is bequeathed to one who, at the time the codicil was made, was not in existence, even though he was living at the time when the will was drawn up; as it should belong to him to whom it is given.
Then the question should be asked whether the legacy was properly bequeathed, so that the rule of law shall not be inquired into before the existence of the person is ascertained. In the case stated, therefore, the bequest is of no force or effect, if it was made or taken away by a codicil, after the death of the heir; for the reason that the heir referred
to was not in existence, and the deprivation or the grant of the legacy becomes void in consequence.
This would not apply where a substitute is given for an heir appointed to the entire estate, as the codicil would be confirmed by the appointment.
(1) Where two heirs have been appointed, and substitutes assigned, and one of them should die, the legacies will still be considered valid; but some discussion arose with reference to the co-heir, and whether he owed the entire legacy, where the bequest was as follows: "Whoever shall be my heir." Or must it be held that all is not due, for the reason that the heir who was substituted should pay a portion of the same, even though he himself does not owe it?
The same discussion may arise with reference to specified obligations ; but I think that there is much more ground for the co-heir being liable for the entire legacy, because the party who was joined with him is no longer in existence.
15. Africanus, Questions, Book II.
But as it was the will of the testator that the legacy should be paid out of the entire estate, it must be said that an exception on the ground of bad faith will lie for the benefit of the heirs appointed by the will, where a sum greater than they are entitled to is claimed.
16. Paulus, Questions, Book XXI.
Where a codicil is made without a will having been drawn up, the successor of the deceased, even though he was born after the codicil was executed, will owe whatever legacies were bequeathed by the same; for the codicil is valid, no matter who the heir may be who is entitled to the intestate succession; for only one case was taken into consideration, and it does not make any difference who obtains the estate, provided he succeeds ab intestato. The codicil depends upon the will, if one was made, no matter at what time this was done. And (in order that I may express myself more clearly) where the head of a household dies intestate, the codicil requires no confirmation, but takes the place of a will. Where, however, a will has been made, the codicil is governed by the same law.
17. The Same, Sentences, Book HI.
Letters by which an estate is promised, or affection is expressed, have not the force of a codicil.
18. Celsus, Digest, Book XX.
Plotiana to her friend, Celsus, Greeting. Lucius Titius made the following provision in his will: "If I leave anything by will in any document, which in any way relates to this will, I desire it to be valid." I ask whether a codicil made before this will should be confirmed. Juventius Celsus to Plotiana, Greeting. These words: "If I leave anything which relates to this will, I desire it to be valid," also include everything which was bequeathed before the will was made.
19. Marcellus, Digest, Book XIV.
A father, who had an only son, made a codicil directed to him, and died intestate, leaving as his heir a son whom he had begotten after he had made the codicil. No one can say that the codicil was annulled, and therefore if the deceased did not expect to have a posthumous heir, the codicil will not become void through his death; and the son to whom it was directed will be compelled to pay the legacy in proportion to his share of the estate, but the posthumous son will not be compelled to pay anything.
But if he, at the time of his death, should have left two surviving sons, but thought that one of them was dead, in like manner, it can be held that the son to whom the codicil was directed may be compelled to pay the entire legacy, just as if he had been the sole heir of his father; but he will only owe a sum in proportion to his share of the estate. Still, no part of a legacy which cannot be divided shall be paid, as the father would not have deprived his son of his share, unless he had thought that he would be his sole heir.
20. Paulus, On the Lex Julia et Papia, Book V.
Where an heir has been orally appointed, and the bequests of the legacies have been reduced to writing; Julianus says that this instrument should not be understood to be a will in which the heir is not mentioned, but it should rather be considered a codicil, and I think this to be the more correct opinion.
THE DIGEST OR PANDECTS. BOOK XXX.
TITLE I. CONCERNING LEGACIES AND TRUSTS.
1. Ulpianus, On the Edict, Book LXVII. Legacies are equal in every respect to trusts.
2. The Same, Trusts, Book I.
It must be remembered that only those can bequeath property in trust who have testamentary capacity.
3. The Same, On Sabinus, Book IV.
The following words of a testator: "Whoever of the parties above mentioned shall be my heir," or, "If Seius should be my heir," or, "If he should enter upon my estate," any trust subsequently bequeathed will not, for this reason, be conditional.
4. 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.
(1) Where 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.
5. Paulus, On Sabinus, Book I.
Where a slave is left to be selected by the legatee, we can make a choice but once.
(1) Labeo says that when a certain article or slave is bequeathed as follows: "Who will be mine when I die shall be given by my heir," and the article or slave is held in common, the whole of it will be due.
Cassius states that Trebatius gave it as his opinion that only the share owned by the testator is due; which is correct.
(2) Where a tract of land owned in common is devised, without mentioning the share belonging to the testator, but where he merely says "mine", it is established that only his share will be due.
6. Julianus, Digest, Book XXXIII.
"Let my heir give Stichus, who will be mine when I die." It is evident that the testator rather intended to impose a condition, than merely to point out the slave; for the reason that if this clause was inserted merely for the purpose of designating the slave, it would have been framed as follows: "Stichus who is mine," and not, "Who will be mine". A condition of this kind should, however, be understood to mean only "if he shall be mine," in order that, if he should alienate him altogether, the legacy will be extinguished; but if he should alienate him partially, only that share of the slave will be due which belonged to the testator at the time of his death.
7. Paulus, On Sabinus, Book II.
A master can reject a legacy bequeathed to his slave.
8. Pomponius, On Sabinus, Book II.
If a testator, after having bequeathed a tract of land, should dispose
of a part of the same, it is held that only the remaining portion is due to the party to whom it was left; because even if an addition was made to said land the legatee would profit by the increase.
(1) If the following provision should be inserted in a will: "Let Lucius Titius, my heir, or Mævius, my heir, pay ten aurei to Seius," Seius can bring suit against whichever of the heirs he may select, and if he brings an action against one of them, and payment is made by him, the other will be released; just as where two debtors have promised to pay, both will be liable for the entire amount. But what if the legatee should only demand half of the amount from one of the heirs? He would be free to demand the remainder from the other. The same rule will apply where one of the parties has paid his share.
(2) Where a legacy was bequeathed as follows: "I bequeath eight litter-bearers, or a certain sum of money instead of each one, of them, whichever the legatee may desire," the legatee cannot claim a part of his legacy in slaves and the other part in money, because the legacy is left as an alternative; just as if fifty pounds weight of oil, or a certain sum instead of each pound, is bequeathed, for otherwise, a division might be allowed where only a single slave was bequeathed. Nor does it make any difference whether the sum is divided, or whether the entire amount is paid at once. And, in fact, where eight slaves have been bequeathed, or a certain sum of money instead of all of them, the heir cannot, against his will, be compelled to be liable for a portion of the bequest in money, and a portion in slaves.
9. The Same, On Sabinus, Book III.
Octavenus states that property in the hands of the enemy can be bequeathed, and the bequest will stand, under the law of postliminium.
10. Paulus, On Sabinus, Book II.
Julianus holds that a choice cannot be made by a son under paternal control, without the consent of his father; nor before he has accepted the estate.
11. Papinianus, Questions, Book IX.
Where a legacy has been bequeathed to a son under paternal control, or a slave belonging to another, or an estate is left to him; it must be left in trust to the father or master, and only under these circumstances will the trust have any force or effect, unless it is left to those through whom the benefit of the estate or the bequest will accrue to the said father or master. Again, Julianus, induced by a very good reason, gives it as his opinion that a father, whose son has been appointed an heir, must surrender the estate even to a stranger, after having deducted the portion granted by the Falcidian Law; since he is responsible as the representative of his son, for the reason that the latter cannot be held liable in his own right, and the father cannot be liable as heir, but is considered to have been charged with the trust in the capacity of a parent.
Therefore, if the father was charged to deliver to his son, after his death, what came into his hands through a legacy or an estate bequeathed to his son, and the latter should die during the lifetime of his father, the father can retain this beyond all doubt, as the trust acquires its force from the person of the father.
12. Pomponius, On Sabinus, Book HI.
If the same property should be bequeathed to me and to yourself, and on the day when the legacy was due, I should become your heir, Labeo says that I can acquire the property either for the reason that it was left to me, or because I am your heir. Proculus says, that if I should wish to whole of it to belong to me on account of the legacy which was bequeathed to me, I must demand it on the ground of being heir to the legacy.
(1) Where anyone charges his heir to deliver to me, within three days after his death, certain slaves whom he had at Gades, by a will which he made at Rome just before he died, the legacy will be valid; and the shortness of the time provided will in no way prejudice the legatee.
(2) A rule of the Civil Law provides that, "We can bequeath a legacy to slaves belonging to those to whom we can also make a bequest."
(3) In the matter of legacies, the last instruments drawn up are valid; because, where previously executed, they can be changed either with reference to the day or the condition, or they can be entirely annulled. Where a legacy left under one condition is taken away by another, the last provision, by which it is taken away, must be considered. Sometimes, however, not the last, but the former disposition of the property is valid, for if I should say: "What I have left herein to Titius I neither give nor bequeath to him," what has been left to him by the will will not be valid; for it is held that the same clause by which legacies granted at a certain time are to be deferred has reference also to the provisions subsequently made. Therefore the desire of the testator establishes the validity of what he inserted in his will.
13. The Same, On Sabinus, Book IV.
Where a slave, insufficiently described, was left to you, and the heir delivered Stichus to your slave, Neratius was of the opinion that if the delivery was made with the consent of the master, or he ratified the act, the heir will be released, just as if Stichus himself had been bequeathed.
14. Ulpianus, On Sabinus, Book XV.
Where it was inserted in a will that, "If I should make a bequest twice to a certain individual, my heir shall only pay him one legacy;" or "One legacy only shall be due;" and he bequeaths to the said party two separate sums of money, or two separate tracts of land, will both of them be due? Aristo says that it appears but one legacy will be due, for whatever is taken away is not held to have been given, according to the opinion of Celsus and Marcellus; which is correct.
(1) Papinianus, however, says, in the Nineteenth Book of Questions, that if a testator, after having left several legacies to the same person, asserts that he expects only one of them to be paid, and does this before completing his will, the other legacies should be considered as annulled by operation of law. Which one, however, should be considered to have
been taken away, for this is not apparent? And he says it can be held that the smallest one should be paid.
15. Paulus, On Sabinus, Book III.
Where a person intended to bequeath the fourth part of his property, he wrote the half. Proculus very properly said that the fourth could have been maintained to have been bequeathed, for the reason that it is contained in the half. The same rule will apply if the testator intended to bequeath fifty aurei, and wrote a hundred, for fifty will be due. Where, however, he intended to bequeath more, and wrote less, the bequest will be valid.
(1) Where anyone bequeaths a sum of money to his daughters, having in mind a posthumous daughter, and she should not be born, the entire sum will be due to the survivor.
16. Pomponius, On Sabinus, Book V.
Where the same property is bequeathed to two persons conjointly, and one of them is not in existence, I think that it is true that only a half is due to the survivor.
(1) Where an heir is charged with the payment of a legacy together with another who is not his co-heir, he who was appointed owes the entire legacy; for if the testator expressly charged two heirs with the payment, and one of them does not enter upon the estate, the other who did would owe the whole amount, if the share of him who refused the estate should come into the hands of the heir who accepted it.
(2) Where a legacy is left to Titius and the posthumous child of the testator, and no posthumous child is born; Titius can claim the entire amount. If, however, the testator intended to bequeath equal shares to Titius and his own posthumous children, or even if he had expressed himself to this effect, the entire legacy will be due to Titius, if no posthumous child should be born.
17. Ulpianus, On Sabinus, Book XV.
Where a person made a bequest to his daughters and mentioned a posthumous daughter in some part of his will, he is held to have had the posthumous daughter in his mind at the time he made the bequest.
(1) Where anyone makes a bequest as follows: "If a daughter should be born to me, let my heir give her a hundred aurei," and several daughters should be born, it is held that each one of them is entitled to the same bequest, which must be understood in this way, unless it is clear that the intention of the testator was otherwise.
(2) Where the bequest is made to one of several heirs, it is evident that the judge must award it as due in an action brought for partition; and it is established that even if the party should reject the estate, he will be entitled to recover a legacy of this kind.
18. Julianus, Digest, Book XXXVII.
He can, indeed, claim the entire legacy, even though he would have been himself improperly charged if he had not refused the estate.
19. Ulpianus, On Sabinus, Book XV.
Papinianus holds in the Book of Questions that where legacies have been left in such a way as to be of no effect, they can be confirmed by repetition; that is to say, by the following clause subsequently inserted in a codicil: "Let my heir pay him this, in addition;" and where something different is afterwards stated: "Let my heir be charged with the payment of the money which I have bequeathed, on the days which I have fixed, and not at the end of one, two, and three years;" for the testator did not do this for the purpose of confirming the bequests which were void, but merely to prolong the time of payment for those which were valid.
(1) The same authority states in the same place, with reference to a substitute appointed for a child under the age of puberty, that if the said child should be improperly charged with the payment of a legacy, his substitute must pay it, if anything more has been left in his charge, and the heir should die without becoming the successor of his father.
(2) Where property is bequeathed to several persons, and the shares are not designated, all will inherit equally.
20. Pomponius, On Sabinus, Book V.
Where a testator has two slaves, and bequeaths one of them in such a way that it cannot be ascertained which one he bequeathed, the legatee can make his choice.
21. Ulpianus, On Sabinus, Book XV.
If a flock of sheep was left, any increase which subsequently takes place will belong to the legatee.
22. Pomponius, On Sabinus, Book V.
Where a drove of cattle was bequeathed, and some of them die during the life of the testator, and others are substituted in their stead, the drove is held to be the same. If the drove should be diminished to such an extent that only a single ox survives, it can be claimed, even though the drove, as such, has ceased to exist; just as in the case where a house which has been devised is burned, the land on which it stood can be claimed.
23. Paulus, On Sabinus, Book III.
Where a person bequeaths a part of his property, as is the custom at present, it can be surrendered without the crops, unless the heir is in default.
24. Pomponius, On Sabinus, Book V.
It is established that what is not yet in existence can be bequeathed, for example: "Any child that the female slave, So-and-So, may bring forth;" or where a bequest is made as follows: "Let any wine which Way be produced on my land, or any increase of the flocks, be given by my heir."
(1) If I have only an usufruct, and bequeath it, the bequest will be Void, unless I should afterwards acquire the ownership of the property.
(2) Where anyone, after having made a will by which the Titian Estate was bequeathed, adds thereto another tract of land, which he intends to include with the same estate, the addition can be demanded by the legatee. The same rule prevails in the case of alluvium, especially if, when the testator executed his will, he made the addition from another field which belonged to him.
(3) It should be considered what the rule would be if, after having made a will, he took something from the Titian Estate, and added it to land belonging to another; would the legatee be entitled to claim the part which was deducted, just as if it had ceased to form part of the Titian Estate, since it is by our intention, and not by the nature of the property, that the disposition of a tract of land or a house is determined. The better opinion is that what is joined to another tract of land should be held to have been deducted.
(4) If I should bequeath a ship, and state expressly that it was mine, and that I have entirely rebuilt it and only the original keel remains, it can, nevertheless, be properly claimed by the legatee.
25. Paulus, On Sabinus, Book III.
A son who has been appointed an heir can be absolutely charged with a legacy for the benefit of his father, nor does it make any difference whether or not he was under the control of his father at the time that the legacy vested. Therefore, if he accepts the estate by the order of his father, the legacy will be included in the Falcidian share to which he is legally entitled.
26. Pomponius, On Sabinus, Book V.
No more of a legacy is considered to belong to anyone than what remains after a deduction has been made of property given in order to comply with a condition.
(1) Where an heir is directed to give a certain article by way of legacy, and does not do so, because he was not obliged to deliver it to the legatee in the place where it was; and it should afterwards be destroyed without the fraud or negligence of the heir, the loss must be borne by the legatee.
(2) Where, however, a part of his estate is bequeathed, it is doubtful whether a portion of the property itself, or the estimated value of the same should be given. Sabinus and Cassius think that the value should be paid; Proculus and Nerva hold that a part of the property bequeathed should be delivered. It is necessary, however, to come to the relief of the heir, so that he himself may determine whether he prefers to give a portion of the property itself, or to pay its estimated value. But in matters of this kind, the heir will be obliged to give a portion of the property which can be divided without any loss, but if it is naturally incapable of division, or if the division cannot be effected without loss, the estimated value of the property must, by all means, be paid by the heir.
27. Paulus, On Plautius, Book IX.
Moreover, the heir can give to the legatee the share which has been left him by delivering to him a certain part of the property, or one arti-
cle alone, the value of which the legatee shall agree to accept, or the judge shall determine; in order that the legatee may not be forced to demand a share of all the property.
28. Ulpianus, On Sabinus, Book XIX.
If I bequeath to my creditor what I owe him, I being protected against the debt by an exception, the legacy will be valid; for the reason that a release of the exception is held to have been made. This corresponds to what Aristo says, namely, that if my debtor bequeaths to me what is due from him to me in a prætorian action, the legacy will be valid; for the reason that a civil action is granted me instead of an honorary one.
(1) Marcellus holds, in the Twenty-eighth Book, that if you should bequeath to me what you owe me under a stipulation, the legacy will be valid, and the bequest will not be diminished on account of the Falcidian Law.
29. Ulpianus, On the Lex Julia et Papia, Book VI.
If, however, the claim is not rendered more advantageous to the creditor, either by modification, time, condition, or place, the bequest is void.
30. Ulpianus, On Sabinus, Book XIX.
A provision as follows: "Let my heir pay the money which I have bequeathed, and for the payment of which I have not set a time, at the end of one, two, and three years," this will not refer to all articles which may be bequeathed, but only to such as can be weighed, counted, or measured.
(1) And it only applies to those legacies for which time of payment has not been fixed; hence if the legacy was absolutely bequeathed, its time of payment will be prolonged by this addition.
(2) What if a hundred aurei in cash should be bequeathed to me, shall payment be made on stated days, or all at once? Servius and Labeo say that the legacy is due at once, in cash. Therefore, although this addition may be superfluous, so far as the force and effect of the legacy is concerned, still, it will apply in such a way as to make the legacy due immediately.
(3) But if the legacy should be left payable by the year or by the month, this provision will not apply, because this legacy has a beginning and an end.
(4) Where, however, a legacy is bequeathed under a condition, it can be said that the payment of the same at intervals will not be applicable, because the condition is considered uncertain. (5) In accordance with this, Trebatius thinks that if a bequest is made to a person to be paid when he is twenty years of age, the provision above-mentioned, as commonly interpreted, does not apply.
(6) Again, this provision is not applicable where money is left which is in the testator's chest, or wine which is in his warehouse; because we have stated that it is not operative where any certain kind of property is bequeathed.
(7) Gallus Aquilius, Ofilius, and Trebatius have given it as their opinion that this rule not only applies to legacies previously made, but also to all those mentioned in the will, which is true.
31. Paulus, On Sabinus, Book III.
This provision has reference also to all legacies which are afterwards confirmed by codicils.
32. Ulpianus, On Sabinus, Book XX.
Where anyone bequeaths money to be paid by his minor son, who is appointed his heir, "When he arrives at puberty," and he also charges the heir whom he substitutes with the payment of the same, and the son dies before reaching puberty, the substituted heir will not owe the legacy. Sextus and Pomponius, however, do not think that this is correct, where the repetition of the legacy has been stated as follows, for instance: "Let my heir pay upon the same day the legacy with which I have charged my son, and which I have ordered him to pay if he shall become my heir."
If, however, the repetition was made as follows, "Let my heir pay the legacies, with the payment of which I have charged my son;" the legacies appear to have been repeated unconditionally, and the designation of them has only been made by the testator. Therefore, this very legacy with reference to which inquiry is made will be due me.
(1) Where anyone has several slaves named Stichus, and bequeaths Stichus, and it is not evident which Stichus he meant, the heir must deliver the slave chosen by the legatee.
(2) If anything should be left to a portion of the people of a town, which is for the ornament or benefit of the entire community, it undoubtedly will be due.
33. Paulus, Rules, Book III.
Where the same property is left to several persons, or it is left to all conjointly; and one brings suit to recover it, and another brings an action for the same purpose under the will, he who founds his action on the will cannot recover any more than his share of the legacy.
If it should be left to each person separately, and it is perfectly evident that the testator intended, by depriving the first legatee of the bequest, to confer it upon the second; it is established that the last legatee will be entitled to all of it. If, however, this does not plainly appear, all the legatees will be entitled to equal shares of the bequest; unless, indeed, the testator himself manifestly indicated by his language that he intended one of them to receive the entire property, for then the value of the article should be given to one of them, and the article itself to the other. And he who first joined issue with reference to the legacy, or the trust, shall have the right to choose which he will prefer, the property itself, or the value of the same; still, after having chosen one he will not be permitted to abandon it, and select the other.
34. Ulpianus, On Sabinus, Book XXI.
It is evident that where the testator intended to transfer the legacy to another party, it will not be due to the first one named, even if the last
mentioned is not capable of receiving it. If, however, the legatees were joint, or, being originally several, have afterwards been united, all of them together are classed as one and the same person.
(1) Where the same property is bequeathed several times by the game will, it cannot be claimed more than once; and it is sufficient if the property itself, or the value of the same, is acquired.
(2) Where the same property is bequeathed to me by the wills of two persons, I can demand it twice, and obtain the property by virtue of one of the wills, and the estimated value of the same by virtue of the other.
(3) Where no certain article is bequeathed, but a specified sum is mentioned several times in the same will, the Divine Pius stated in a Rescript that the heir must pay the said sum several times, if it is established by perfectly conclusive evidence that the testator intended to multiply the legacy.
The same rule has also been laid down by him with reference to a trust. The reason of this is evident, for as the identical thing cannot be delivered more than once, the same sum can be multiplied, if this should be the intention of the testator.
(4) This, however, ought only to be understood to be applicable where a certain amount of money should be left several times by the testator; as, for instance, a hundred aurei, which he has in his chest; for then I believe that it should be compared to the bequest of a tract of land.
(5) Where, however, a certain weight of gold or of silver has been left, Papinianus is of the opinion that it should rather be compared to the bequest of a sum of money, as no certain kind of property appears to have been bequeathed.
(6) Hence, if anything else which can be weighed, counted or measured has been left several times, it must be said that the same rule will apply; that is to say, it will be due several times, if such was the intention of the testator.
(7) If, however, I should purchase the property bequeathed to me, an action under the will will lie in my favor for the amount of the price which I have paid.
(8) And, with much more reason can this be said, where the same property is bequeathed to me by the wills of two different persons, but where one asked me to surrender the property itself to another, or something else in its stead; or where it was bequeathed under the condition of giving something in place of it; for I am considered to have been deprived of the property to the amount which I am compelled to Pay in order to obtain it.
(9) Where the property is bequeathed to several persons conjointly, it is settled that it is divided into shares from the beginning. The legatees have not only the right to a division in proportion to the number of persons to whom the legacy was left, but also those who are not entitled to it; as, for instance, where a bequest was made to Titius and to his slave, without granting the latter his freedom.
(10) Where a testator, by a will made while his son is under the age of puberty, bequeaths the same property to another which he had already left to me by will, Julianus says that the parties do not take the property concurrently. Therefore, in the meantime, he to whom the property has been bequeathed by the will of the father will be entitled to his share.
(11) Where the same property is bequeathed to two persons, one of whom is appointed heir, if the latter is charged with the payment of part of the legacy to himself, it will be held to be, to this extent, invalid ; and therefore, the share with which he was charged in his own favor will belong to his co-legatees.
(12) Hence, it must be said that where there are two heirs, one of whom is appointed for one-twelfth, and the other for eleven-twelfths of the estate, and a tract of land is bequeathed to them; one of the heirs will be entitled to eleven-twelfths of the land, and his co-heir to one-twelfth of the same.
(13) It is clear that if one of the legatees becomes the heir of the party charged with the payment of the legacy, this will render his coheir none the less entitled to half of it, for he will retain his share of the legacy in the same proportion.
(14) If a bequest is made to Titius in the following terms: "Let him have the Seian Estate, or the usufruct of the same for himself," there are two legacies, and it is at the option of the legatee whether or not he will only claim the usufruct.
(15) Where anyone makes a bequest as follows: "I do give and bequeath to Titius a certain tract of land, which he can have for his share," it seems to me that it can be said that he will be entitled to half of it; for it is held that by the mention of the land he did not refer to the entire tract, but to a part of the same, for a part is also properly designated a tract.
35. Paulus, On Sabinus, Book III.
Where an heir is charged with the delivery of a slave belonging to another, and the slave is manumitted by his master, nothing is due on account of the legacy.
36. Pomponius, On Sabinus, Book VI.
"I bequeath to Titia all my slaves who are weavers, except those whom I have bequeathed to another by this will. I bequeath to Plotia all my slaves, born in my house, except those whom I have bequeathed to another." As certain slaves born in his house were also weavers, Labeo says that since it cannot be ascertained which slaves who were weavers the testator did not bequeath to Titia unless it is known which ones he bequeathed to Plotia, and as this can not be ascertained, those must not be excepted from either legacy who belong to both classes, and therefore they are common to both legatees; for this is the rule of law where nothing is expressly excepted from either of two legacies.
(1) Where, however, a legacy was bequeathed in the following terms: "All my slaves, who are weavers, except those born under my
roof," and again, "All the slaves born under my roof except the weavers," those who were both born under his roof and were weavers, will not be included in either legacy.
(2) It makes no difference whether a legacy is bequeathed "To Titius and Mævius," or "To Titius together with Mævius;" for in both these instances the legacy is held to have been bequeathed conjointly.
(3) If an heir should deliver Stichus to one of two parties to whom he was charged to deliver him, and, before proceedings were instituted against him by the other legatee, Stichus should die, the heir will not be liable, because it is understood that no blame attached to him.
37. Ulpianus, On Sabinus, Book XXL
Where property has been bequeathed in general terms, as, for example, a slave, Gaius Cassius says that care should be taken that neither the best nor the worst slave should be received by the legatee. This opinion is confirmed by a Rescript of our Emperor and the Divine Severus, who decreed that where a slave was bequeathed, the one who transacted the business of his master could not be selected.
(1) Where a testator had in mind a certain tract of land, and it is not apparent what his intention was with reference to it, the heir shall have the choice to give the tract which he prefers; or if the intention of the testator is clear, the tract itself can be claimed by the legatee. Again, if he bequeathed a piece of silver plate, and it is not clear which one he meant, the heir will also have the choice to give the one that he wishes.
38. Pomponius, On Sabinus, Book VI.
A legatee cannot accept a part of his legacy and reject the remainder; his heirs, however, can do so, so that one of them can accept his share, and another reject his own.
(1) If we should conclude not to accept a legacy which was left to Us, the state of affairs will be the same as if the legacy had not been bequeathed; and therefore we say that if a tract of land is left to me, which is charged with servitudes in favor of my property, the servitudes will not be confused.
Moreover, if a slave is bequeathed to a person on account of whom the legatee can institute proceedings for theft, the right of action will remain unimpaired.
39. Ulpianus, On Sabinus, Book XXI.
Where a slave who has been bequeathed is in flight, or is absent in a distant country, the heir must exert himself to recover the property and deliver it. This also was stated by Julianus, for Africanus states in the Twentieth of his Letters on Julianus that, if the heir is compelled to incur any expense in this matter, he thinks that he should do so; and I hold that his opinion should be adopted.
(1) The profits of the property should also be deducted in making the claim for the legacy, not only those, however, which the heir may have collected, but also such as the legatee could have collected; and
this rule also applies not only to the labor of slaves, but also to the work of animals, as well as transportation by vessels. What has been stated with reference to profits must also be understood to apply to the rents of houses in cities.
With respect to the rate of interest on money, the custom of the country must be followed, and therefore the court must make an estimate and fix the rate of interest.
Moreover, if the heir is in default, he will also be liable for the destruction of the property, and its value must be paid; just as this is done in a stipulation where the property is lost after the party is in default. This rule also applies to the offspring of female slaves. Where a slave is bequeathed, the heir will be bound to surrender everything which he has acquired by means of said slave, whether it be an estate, a legacy, or anything else.
(2) If Titius should purchase property from me, and bequeath it to me before I deliver it to him, and then I deliver it and receive the price for the same; he is considered at first sight to have bequeathed it to me, and hence the legacy is void.1 But, as I am released from liability to an action on purchase, I can bring an action to recover the property which I delivered on the ground of its being a legacy. Still, if the price has not yet been paid to me, Julianus says that I am entitled to an action on sale to recover the price, and that, in addition, a suit under the will to recover the property which I sold and delivered will lie. He also adds that if the price had been paid to me, but I had not yet delivered the property, I would be free from liability on account of the right of action to which I would be entitled by virtue of the will.
(3) Julianus likewise stated that if the testator should devise to me a tract of land which he had purchased from someone else, the heir would be compelled to transfer to me the right of action to which he was entitled on account of the purchase; provided the property had not yet been delivered either to the deceased, or to his heir.
(4) Where anyone makes a bequest to another of the right to quarry stone on his premises, the question arises whether this legacy also passes to his heir. Marcellus denies that it does pass to his heir, unless the name of the latter was mentioned in the bequest.
(5) The heir is compelled to pay any taxes or tributes assessed on the land which was bequeathed, for sun-dials or for sewers, or for the right to conduct water.
(6) I know that the following case has been discussed. A certain person, who had two tracts of land bearing the same name, bequeathed the Cornelian Estate, and of the two thus designated one was of greater value than the other. The heir claimed that the least valuable one was bequeathed, and the legatee asserted that it was the one of greater value which was intended. It is generally understood that the one of lesser value was bequeathed, if the legatee should not be able to prove that the more valuable one was meant by the testator.
1 For the reason that no one can unconditionally bequeath to another property which already belongs to the latter. — ED.
(7) It is established that even property belonging to another can be bequeathed, provided it can be obtained, even if its acquirement should be difficult.
(8) If, however, anyone should bequeath the gardens of Sallust which belonged to Augustus, or the Alban Estate which is set apart for the use of the Imperial household, he would be considered insane for having made such a bequest in his will.
(9) It is also established that the Campus Martius, or the Roman Forum, or any sacred building cannot be devised.
(10) If, however, lands belonging to the Emperor, and forming part of the Imperial domain or under the superintendence of the Imperial Steward, are devised, their appraised value will not have to be paid by the heir, as any commercial disposal of them cannot take place, except by order of the Emperor, as they are not to be sold.
40. The Same, Trusts, Book II.
If, however, property belonging to another which the legatee has not control of in the way of trade, and which he has no right to possess, is left subject to a trust, I think that its estimated value will be due.
41. The Same, On Sabinus, Book XXI.
Now let us examine some other things in addition to what has been mentioned, and in fact all corporeal property, as well as rights and servitudes can be bequeathed.
(1) Property, however, which is joined to buildings cannot be disposed of by will, because the Senate, during the Consulship of Aviola and Pansa, decreed that this could not be done.
(2) Still, the question may be raised where pieces of marble or columns have been separated from buildings, whether the legacy does not become valid. And, indeed, if it was not valid from the beginning, it cannot become so subsequently, just as where property of mine was bequeathed to me and alienated after the will had been made, because the legacy had no force or effect in the beginning; but if it was bequeathed under a condition, the legacy can become valid, if, at the time when the condition was fulfilled, the property does not belong to me, or is no longer joined to the building; in accordance with the opinion of those who hold that I can purchase my own property under A condition, and that I can also promise it and bequeath it conditionally. Hence, the rule of Cato stands in the way of an absolute legacy left under such circumstances, but is not opposed to a conditional one; because it does not have reference to conditional bequests of this kind.
(3) It may also be asked whether the legacy will be valid where a party has two houses and devises one of them, and also leaves him to whom he devised the house something which was joined to the other. This question arises from the fact that we are permitted by the Decree Of the Senate and the Imperial Constitutions to transfer to one house property from another of which we are to remain in possession, that is to say, which is not to be sold. This Our Emperor and the Divine Severus stated in a Rescript. Therefore cannot I devise property
attached to one house to the person to whom I have devised the other? This will be denied, for the reason that the party to whom the property is bequeathed will not be the future possessor of the same.
(4) Where a testator leaves the Sempronian House to two persons, and bequeaths to one of them the marble which is in it, for the erection of the Seian House, which he devised to him, it may not unreasonably be asked whether such a bequest will be valid, for the reason that the legatee is the owner of both houses.
What would be the case if a person should devise a house, after excepting the marble which he wished the heir to have for the purpose of building another house which still remained a part of the estate. The better opinion may be said to be that the exception will be void in either instance, but the legacy will be valid, and the appraised value of the property must be paid.
(5) If, however, anyone bequeaths a legacy of this kind for the purpose of constructing some public work, I think that it will be valid; and Papinianus, in the Eleventh Book of Opinions, relates that our Emperor and the Divine Severus decided that those who promised to erect some public work can remove materials from their city and country houses, and use them with that design, because they do not remove them for commercial purposes.
Let us, however, consider whether property can only be left to a city situated in the same territory, or whether it can be transferred elsewhere, to be used in some other city. I think that this should not be allowed, although it has been settled that materials can be taken from a house which a man owns and transported to another belonging to him in a different town.
(6) This Decree of the Senate has reference not only to Rome, but also to other cities.
(7) There is also a Rescript of the Divine Brothers extant which was issued in answer to a petition of Proclianus and Epitynchanus, which requested permission for the removal of property from their houses that they desired to sell for the purpose of discharging a public debt, and in which the right to sell said property was denied them.
(8) This Decree of the Senate applies to dwellings, as well as to baths and every other kind of buildings, such as porticoes, drinking houses, and restaurants.
(9) It is also forbidden by this decree to bequeath property which the legatee cannot deliver without detaching it from a building; that is to say, blocks of marble, or columns. The Senate decided that this also applied to tiles, to beams, and to doors, as well as to libraries attached to walls.
(10) If, however, the articles consist of lattices, or awnings, it can be bequeathed, but water mains and reservoirs are not included.
(11) Hydraulic machines, however, and pipes through which the water issues can be bequeathed, and especially if they are merely placed upon the real property.
(12) What then must be said with reference to statues? Where they are fastened to the walls it will not be lawful to remove them,
but if they are separate, some doubt exists. The spirit of the Decree of the Senate must, however, be taken into consideration, and if the statues were placed in the house to remain there always, and as a portion of the same, they cannot be removed.
(13) Hence, it must be said that where pictures are attached to the walls, or small ornaments inserted into the latter, they cannot be
bequeathed.
(14) Where, however, the testator had prepared certain ornaments for the purpose of removing them to another house, and bequeathed them, a doubt may arise as to whether the bequest is valid; and I think that it is.
(15) But when the testator fastens to his house the objects which he bequeathed, the legacy will be extinguished,
42. The Same, Trusts, Book II.
Whether the legatee was aware of this fact or not.
43. The Same, On Sabinus, Book XXI.
The Senate, therefore, does not permit anything which is attached to a house to be separately bequeathed. But if any of these objects did not form part of the house at the time of the death of the testator, the heir must pay their appraised value. If he should detach them for the purpose of paying a legacy, he will be liable to the penalties prescribed, even though he removed them, not for the purpose of selling them, but in order to discharge his obligation.
(1) Marcellus also says that if a husband builds a summer-house in the garden of his wife, which he received by way of dowry, he can remove the same if he can make use of it himself, without, however, causing his wife any loss; and that the Decree of the Senate will offer no obstacle to his doing so. Therefore, if no injury is suffered by his wife, through the removal of the house, it must be held that he can dispose of it by will, since he can remove it.
(2) The bequest of a legacy can be made dependent upon the will of a third party, but not upon that of an heir.
(3) Where one person has ransomed another from the enemy, he can bequeath him to himself; and a legacy of this kind will cause his release from the obligation of the pledge which the party who ransomed him possessed.
44. The Same, On Sabine, Book XXII.
A father can bequeath a slave belonging to his son, and who forms part of the castrense peculium of the latter, and if the son should die during the lifetime of his father, and his peculium remain in the hands of his father, the legacy will stand; for as the son did not avail himself of his right, the father is held by retroaction to have the ownership of the slave who formed part of the peculium.
(1) If anyone should bequeath property belonging to another which had already been bequeathed to him without his knowledge, and afterwards should learn of the legacy and wish to acquire it, the
bequest will be valid; for the reason that where the legatee does not reject a bequest, it is held to have vested in him from the time when the estate of the testator was entered upon. If, however, he should reject it, the property is held to belong to the heir from the date of the rejection.
(2) Where anyone bequeaths drinking cups, and they have been melted down, or vice versa; and also where wool is bequeathed and clothing has been made out of it; Julianus says, in the Thirty-second Book of the Digest, that the legacy of all the above-mentioned articles is valid, and that whatever remains of them is due. I think that this opinion is correct, provided the testator did not change his mind.
(3) If, however, he should bequeath a silver dish, and it is melted down, and made into a cup, the cup will be due; provided the intention of the testator remains the same.
(4) If a house is built upon land which was devised, it will be due to the devisee, unless the testator changes his will.
(5) A party who bequeaths a note bequeaths the claim and not merely the material on which the writing appears. This is proved by a sale, for when a note is sold, the debt by which it is evidenced is also considered to be sold.
(6) However, even though a claim is bequeathed, what is due must be understood in the most favorable sense, so that the rights of action against the debtor may be assigned.
(7) Hence, where a slave is both bequeathed and directed to be free, in the meantime the legacy alone can take effect; for instance, suppose the grant of freedom was made for the purpose of defrauding a creditor, or if the slave is one who had already been sold into perpetual servitude, the rule will apply just as where a slave is given in pledge.
(8) Where a testator bequeaths a slave who is to have his freedom under certain conditions, it will be better for the heir to furnish the slave himself, rather than to pay his appraised value, for he must pay his true value. If, however, he should deliver the slave himself, and the condition should be fulfilled, he will sustain no injury, for his appraised value cannot be claimed where a free man is concerned.
(9) Where a testator who owns two tracts of land devises one of them to me, and the other to Titius, the devisee will not owe me his right to enter upon the estate, but the heir will be compelled to purchase this right and assign it to me.
45. Pomponius, On Sabinus, Book VI.
If I should bequeath to you certain female slaves to be delivered by the substitute of a minor heir, and you purchase said slaves from the said heir, and alienate them before you know that they have been bequeathed to you, Neratius, Aristo, and Ofilius hold that the legacy will be valid.
(1) Where an heir is charged in general terms with the delivery of a slave, he is not obliged to warrant that he is sound, but he should warrant him not to be liable for theft or damages; because he should
provide a slave such as the legatee may be permitted to retain. The health of a slave, however, has nothing to do with the title to him, but the rule is applicable where a slave has committed a theft or some damage for which he is responsible, in order to prevent his master from retaining him; just as a tract of land may happen to be liable for debts so that its owner cannot hold it.
(2) Where, however, a certain slave is bequeathed, he should be delivered such as he is.
46. The Same, Epistles, Book IX.
What has been stated with reference to a legacy also applies to a person who has promised to furnish either Stichus, or some other slave.
47. Ulpianus, On Sabinus, Book XXII.
Where property is bequeathed which belonged to the testator, and the heir has possession of it, he ought not to delay, but should deliver it at once. If, however, the property is elsewhere than where it is demanded, in the first place it must be held that it shall be delivered where it was bequeathed, unless the testator wished otherwise; for if this was the case, it should be delivered in the place where the testator intended this should be done, or in that which it is probable he had in mind.
Julianus gave this opinion not only with reference to property owned by the testator, but where bequests are made of articles belonging to others. If, however, the property has been left in one place and fraudulently transferred by the heir to another, unless it is delivered where the demand is made, the heir will be condemned on account of his bad faith; but where there was no bad faith, the property shall be delivered in the place to which it was transferred.
(1) Where a legacy of articles which can be weighed, counted, or measured is demanded, and a specified quantity is bequeathed (as, for example, grain from a certain granary, or wine from a designated warehouse), the article must be delivered where it was left, unless the intention of the testator was otherwise. But, if the bequest was not of a certain kind of property, it must be delivered where the demand is made.
(2) Therefore, if Stichus should be bequeathed, and through the default of the heir should not appear, the latter must pay his appraised value; but where he was not at all to blame, the heir should provide for his restitution, and will not be compelled to pay his value. But if the slave of another who had been bequeathed takes to flight without the fault of the heir, the same rule will apply; for the heir can become liable for negligence with reference to the slave of another. The heir must, however, furnish security that if the slave should be caught, he himself, or his value will be delivered. This also applies to a slave captured by the enemy.
(3) But if Stichus or Pamphilus should be bequeathed, and one of them takes to flight, or is captured by the enemy, it will be held
that if present, the slave must be delivered, or if absent, his appraised value must be paid. The choice of these two things is granted to the heir only when he is not guilty of delay in delivering him to the legatee. For this reason it is established that if one of the two slaves should die, the other must, by all means, be delivered, and perhaps also the price of the dead slave may be payable. Where, however, both slaves have taken to flight, security is not required of the heir, unless both of them come into his power; but where only one of them does, he must deliver either the slave himself whom he has recovered, or pay the appraised value of the one who is absent.
(4) The same rule applies where property belonging to another or to the estate is destroyed, without the fault of the heir, or it is not produced; for he will be obliged to do nothing more than give security. If, however, the property was destroyed through the fault of the heir, judgment must be rendered against him without delay.
(5) But let us consider in what way the neglect of the heir may be established; must that which resembles fraud be merely taken into account, or that also which is but slight negligence, or must exact diligence be required from the heir? The latter I think to be the most correct opinion.
(6) Moreover, the same rule applies where land has been swallowed up by an earthquake, and Labeo says that its appraised value will not be due. This opinion is correct, if the catastrophe did not happen after the default of the heir; for if the legatee had received it, he might have sold the land.
48. Pomponius, On Sabinus, Book VI.
Where the slave of the heir has misappropriated the property bequeathed, and sold it without the knowledge of his master, Atilicinus thinks that an action in factum should be granted the legatee, so that the master may be compelled to surrender his slave in satisfaction for the damage, or pay out of the peculium of the latter what he received by the sale of the property.
(1) Where one of the heirs killed a slave, it does not seem to me that his co-heir should be held liable in any respect, as it was not his fault that the act was committed, and the property is no longer in existence.
49. Ulpianus, On Sabinus, Book XXIII.
Where property is bequeathed to anyone when he attains the age of fourteen years, according to the rule in common use, the legatee must have fully completed his fourteenth year; and this Marcellus states was decreed by the Emperor.
(1) Therefore, where property is left to a legatee when he arrives at his fourteenth year, payable in three different instalments in one, two, and three years, and he has reached his seventeenth year at the time of the testator's death, the legacy should all be paid at once. Hence, if the legatee has attained his fifteenth year, we hold that the
legacy will be due after the lapse of two years; if he has reached his sixteenth year, it will be due a year afterwards; if some months are lacking before he reaches his seventeenth year, the legacy will be due after those months have elapsed.
This, however, will be the case if the testator thought that the minor was fourteen years of age when he made the bequest, when in fact he was more than that, and if he was aware of it, we must calculate that the payment of the legacy must be made three years after the date of the will.
(2) Again, this legacy is both conditional and dependent upon a certain time. It is conditional until the legatee has passed his fourteenth year, and afterwards it is dependent upon time.
(3) Therefore, if the legatee should die before attaining his fourteenth year, nothing passes to his heir. It is certain that if he dies subsequently, the property will pass to his heir. But if at the time that the will was made the son should be under fourteen years of age, I think that the periods of one, two, and three years, fixed for the payment, are to be computed from the time when the legatee reached the age of fourteen years, unless it is clearly proved that the intention of the testator was otherwise.
(4) If I should bequeath to Titius the sum of ten aurei, which I owe to someone else, and request him to pay it to my creditor, the trust is not valid so far as the creditor is personally concerned, because it is of no benefit to him; still, my heir can bring an action against the legatee, on the ground that it is to his interest for my creditor to be paid to prevent him from bringing suit. Therefore the legacy will be valid.
(5) Where a testator owes me ten aurei for which he gave a surety, a demand for the discharge of the trust cannot only be made by the heir, but also by the surety; for it is to the interest of the latter that I should be paid, rather than he should be sued, and then bring an action on mandate. It makes no difference whether he is solvent or not.
(6) Julianus asks, in the Thirty-ninth Book of the Digest, if a surety bequeaths to the creditor what he owes him, whether the legacy will be valid. He says that this in no way benefits the creditor, but that the debtor will be entitled to an action arising from the will, for it is to his interest to be discharged from liability, although he cannot be sued by the heir of the surety.
(7) But if the same surety makes a bequest to Titius, and charges him to pay his creditor, both the debtor and the heir of the surety fan bring an action against Titius, by virtue of the trust, because it is to the interest of both of them that the trust should be discharged.
(8) It should also be remembered that a party who is charged merely with the sale of a tract of land to someone cannot be required to give it to him, but only to sell it for a reasonable price.
(9) Where, however, the heir was charged to sell the property for a certain price, he is required to sell it for that price.
50. 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.
(1) If 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.
(2) Where 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.
(3) Where 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.
51. Papinianus, Questions, Book IV.
If, however, the testator should bequeath certain specified coins, as, for instance, such as he has in his chest, or a certain piece of plate, it is not so much that a sum of money, as that the very coins themselves, or the articles are bequeathed, for these cannot be changed, and they should be appraised, just as if any other kind of property was involved.
52. Paulus, On Sabinus, Book IV.
Where all the slaves of the testator, together with their peculium are bequeathed to anyone, those slaves also are due who have no peculium.
(1) Where a son under the age of puberty is charged with a legacy dependent upon some condition, and he becomes his father's heir, and afterwards dies, it can be said that the intention of the father who left the legacy to be discharged by his son under a condition, and charged a substitute absolutely with its payment, was that the legacy should be paid by the substitute without delay, if his son should die before the condition was fulfilled.
53. Ulpianus, On Sabinus, Book XXV.
But what if he left a larger amount to be paid by the substitute? The amount in excess would be what had been left to be paid by the substitute. This, in fact, would be included with the sum mentioned in the former will, and therefore would be due.
(1) If, however, the testator should repeat the legacy when he appointed the substitute; for example, if he had charged the minor to deliver a tract of land to me, and repeated this legacy charging the heir of the minor to deliver it to me and Seius; the effect of this repetition will be that only a portion of the land would be due to me.
(2) If anyone should appoint two heirs, and charge each one of them to deliver an undivided piece of property to the legatee, this is the same as if the legacy had been bequeathed by two different wills; for if a bequest is made to me and to my son or to my slave, by the same will, both legacies will undoubtedly be valid, as Marcellus has stated in his work on Julianus.
(3) Where the heir kills the slave that was bequeathed on account of some crime which the latter has perpetrated, that is to say, because he deserved death, it will, without doubt, be held that he is not liable under the will.
(4) If, however, he surrendered him in satisfaction for damage committed, will he be liable because he could make reparation ? I think that he will be liable.
(5) But if he should kill an animal that had been bequeathed, I think he would be liable, not only for the body of the dead animal, or any of its remains, but to also pay the value which it would have had if living.
(6) Likewise, where the heir suffered a house which had been bequeathed to be taken possession of, to avoid threatened injury; I think that he will be held, for he ought to give security.
(7) Where the heir has interred a dead body in ground which was bequeathed, and by so doing rendered it religious, if he buried his father there when he could not bury him elsewhere, or could not do so as conveniently, he will not be liable under the will. Will he, however, be liable for the price of the land? If the testator desired to be buried in that place, the heir will not be liable under the will. But of the heir buried him there on his own responsibility, he will be obliged to pay the value of the land, if the assets of the estate are sufficient to enable this to be done; for where a testator devises land, he either intends to be buried elsewhere, or that the price of the land should be paid to the legatee.
(8) If the heir himself did not kill the slave, but forced him to commit some unlawful act, in order that he might be killed, or subjected to punishment by someone else; it will be perfectly just for him to pay the price. The value of the land, however, will not be due, if the slave committed the crime through his own evil disposition.
(9) If the slave that was bequeathed should be captured by the enemy, without fraud on the part of the heir; his delivery will not be required, but if this was done fraudulently it will be required.
54. Pomponius, On Sabinus, Book VIII.
Where legacies which imply disgrace, and an intention to insult the legatee rather than to benefit him, are inserted into a will; they are considered as not having been written, on account of the odium attaching to the testator.
(1) If a legacy is bequeathed to Titia, under the condition that she shall marry with the approval of Seius, and Seius should die during the lifetime of the testator, and she should marry, she will be entitled to the legacy.
(2) If a legacy has been bequeathed to you on condition that you manumit a slave, and the death of the slave prevents his manumission, you will, nevertheless, be entitled to the legacy, because it was not your fault that he did not obtain his freedom. Where, in the bequest of a legacy, only a part of the heirs are mentioned, the heirs will be charged with it equally, and if all of them are charged, each will be liable in proportion to his share of the estate.
55. The Same, On Sabinus, Book IX.
No one can provide in his will that laws affecting it shall not apply to the same; for the reason that the obligation of the heir with reference to the payment of legacies cannot be affected by time, place, or condition.
56. The Same, On Sabinus, Book XIV.
Where a legatee makes a stipulation on account of a slave that has been bequeathed to him, the heir will not be obliged to produce the slave if he should run away. The heir will not be bound by such a stipulation, for the reason that the slave must be delivered just as he was when mentioned in the will, nor is any injury understood to have been inflicted upon the legatee by doing so.
57. Ulpianus, On Sabinus, Book XXXIII.
Where property which was encumbered was bequeathed by a trust, if the testator knew that it was encumbered, it must be released by the heir, unless the testator intended otherwise. If he did not know this, the debt must be assumed by the beneficiary, unless he can prove that if the testator knew that the property was encumbered he would have left something else, or if it is probable that something will remain after payment of the debt.
If, however, while it was not the intention of the testator that the burden of releasing the lien on the land should be borne by his heirs,
he evidently did not think of relieving them of their responsibility; the beneficiary of the trust can, by means of an exception on the ground of bad faith, compel the creditors, if they bring an Hypothecary Action against him, to assign their rights to him; and even though he may not have done this during the time prescribed by law, still, this privilege will be accorded him by means of the jurisdiction of the Governor of the province.
58. Papinianus, Opinions, Book IX.
I gave it as my opinion that where a house belonging to an estate was burned, and was rebuilt with the money of the heir, on account of a trust by which the said house was to be delivered to someone after the death of the heir, the amount of the expense should be deducted in accordance with the estimate of a reliable citizen, the age of the house having been taken into consideration:
59. Ulpianus, On the Edict, Book XXXIII.
Provided the fire did not take place through the negligence of the heir.
60. Julianus, Digest, Book XXXIX.
If the heir should have delivered the house without retaining anything, an action for the recovery of an indeterminate amount should lie in his favor, just as if he had paid more than he owed.
61. Papinianus, Opinions, Book IX.
It was my opinion that the necessary expenses incurred by the legatee for the repair of a house, where he claims the legacy and the condition upon which it is dependent was afterwards fulfilled, should not be included in the calculation.
62. Paulus, On the Edict, Book XLI.
Where a female slave is bequeathed, together with her children, the slave alone will be due if there are no children; and the children alone, if the slave is dead.
63. Celsus, Digest, Book XVII.
If a testator should bequeath all his female slaves and the children born of them, and one of said slaves should die, Servius denies that her child is due, for the reason that it was bequeathed by way of accessory. I think that this opinion is incorrect, and that it is in accordance with neither the language nor the intention of the deceased.
64. Gaius, On the Provincial Edict, Book XV. Documents procured by the schemes of interested parties, in like manner, are invalid, where they have reference to estates or legacies.
65. The Same, On the Edict of the Prætor, Concerning Legacies, Book I.
Where a bequest is made as follows: "I give to Seius ten slaves, to addition to the ten which I have directly bequeathed to Titius."
Then if only ten are ascertained to belong to the estate, the legacy is void; but if more than that number remain after Titius has selected his ten, the legacy will be valid with respect to the others; but for no greater number than the ten which were bequeathed. If less than ten should remain, the bequest will be valid with reference to as many as are found.
(1) The bequest is conditional when expressed as follows, "I give Stichus to So-and-So, if he is willing to accept him," and it does not pass to the heir, unless the legatee is willing to take it; although, otherwise, where a legacy is bequeathed without the addition, "If he wishes to accept," it will be transferred to the heir of the legatee; for it is one thing in law where something is tacitly included, and another where it is expressed in words.
(2) If a house should be bequeathed, even though it has been gradually rebuilt, so that none of the original materials remain, we nevertheless say that the legacy will be valid; but if, after the house has been torn down, the testator should build another in its place, we must hold that the legacy is annulled, unless it should be proved that the intention of the testator was otherwise.
66. The Same, On the Provincial Edict, Book XVIII.
If the testator directed his heir to purchase or sell a piece of property for a reasonable price, the legacy is valid. But what if the legatee, from whom the heir was directed to purchase the tract of land, should be compelled to sell it through necessity, and was unable to find a purchaser; or, on the other hand, if it would be greatly to the advantage of the legatee for him to purchase the property, and the heir would not sell it to him, unless the testator had ordered him to do so?
67. The Same, On the Edict of the Prætor, Concerning Legacies, Book I.
Where a slave is bequeathed to one of several heirs, and is said to have maliciously committed some act against the estate, as, for instance, to have removed the accounts; he shall not be adjudged to the heir before being put to the torture, if the other heirs desire it. The same rule applies if he is bequeathed to a stranger.
(1) Where the same property is bequeathed to two heirs out of several who have been appointed for different shares, each of the heirs will be entitled to half of the legacy, and not in proportion to their shares of the estate.
68. The Same, On the Provincial Edict, Book XVIII.
Where a bequest is made to a son after the death of his father, there is no doubt that when his father dies the legacy will belong to the son; and it makes no difference whether the legatee becomes the heir of his father or not.
(1) Where a legacy is bequeathed to a slave after the death of his master, if he remains in the condition of servitude, the legacy will belong to the heir of his master; and the same rule will apply if the
slave should be ordered to become free by the will of his master, for the time of the bequest dates from the moment of the appearance of the heir; the result of which is that the legacy will be acquired by the estate, and afterwards will vest in him who is the heir; and, moreover, where someone is created either the proper or the necessary heir of the master by his will, then, because the time of the appearance of the heir and that appointed for the vesting of the legacy coincide, it is held to be more probable that the legacy should belong to the party to whom it was left than to the heir of him from whom the slave obtains his freedom.
(2) If the slave should be bequeathed absolutely, and ordered to be free under some condition, and the condition should not be fulfilled, the legacy will be valid; and therefore if the condition should be fulfilled the legacy will be annulled, but if it should fail the slave will belong to the legatee. Therefore, if, while the condition upon which the freedom of the slave depends is in suspense, the legatee should die, and the condition upon which the freedom of the slave was dependent should fail, the legacy will not belong to the heir of the legatee.
(3) If, indeed, the slave should be bequeathed conditionally, and ordered to be free after the expiration of a certain time, the legacy is absolutely void, because the day appointed will certainly arrive. Julianus also was of this opinion.
(4) For this reason he says that if a slave was bequeathed to Titius, and was ordered to be free after the death of Titius, the legacy is void, because it is certain that Titius will die.
69. The Same, On the Edict of the Prætor Concerning Legacies.
It is accepted that a legacy can be bequeathed to a slave who has himself been disposed of by will; because at the moment the estate is entered upon the slave is acquired by the legatee, and then the legacy follows him.
(1) Where an heir alienates a slave under a certain condition, and the condition is afterwards fulfilled, he can, nevertheless, be demanded by the legatee, and the legacy is not extinguished.
(2) If a testator should direct some of his heirs to pay a debt, his creditors will not be entitled to an action against them, but they can proceed against the remaining co-heirs, as it is to their interest that this should be done. In this instance, not only another party than the one to whom the testator ordered property to be given will be entitled to an action, but others besides; as, for example, if he should direct a dowry to be given to his son-in-law, or to the man betrothed to his daughter, in her name. For neither the son-in-law nor the betrothed will be entitled to an action, but the girl will be, as she has the greatest interest in the matter.
(3) Where a tract of land which was devised is charged with a servitude, it must be delivered in the condition in which it is. But if it is devised as follows, "In the best possible condition," it must be delivered free from all servitudes.
(4) Where a slave who was engaged in transacting the business of the testator is bequeathed, he should not be delivered before he renders his accounts; and if judicial proceedings are instituted to compel his delivery, the court shall also take his accounts into consideration.
(5) Where there is some doubt whether the property left is in existence, for example, if it should be uncertain whether a slave who has been bequeathed is living, it has been decided that a testamentary action can be brought, and it is the duty of the judge to compel the heir to furnish a bond by which he agrees to search for the property, and if he finds it, deliver it to the legatee.
70. The Same, On the Provincial Edict, Book XVIII.
If a slave belonging to Titius should steal something from me, and afterwards Titius, having appointed me his heir, should bequeath the said slave to you, it is not unjust that I should deliver to you the slave just as he was when in the hands of Titius; that is to say, that you should indemnify me for the theft which the slave committed while belonging to Titius.
(1) For, if a tract of land which was subject to a servitude for the benefit of certain land of mine should be left to you, it should not be delivered to you by me in any other way than subject to the former servitude.
(2) This case is not unlike the one where anyone purchases a slave from someone by the mandate of another, or gives back to the former owner a slave which he had purchased with the right to return him; for persons are not compelled to restore a slave under such circumstances, unless indemnity was promised for a theft committed by said slave either before the transaction was entered into or subsequently.
(3) Therefore, if a slave who was bequeathed steals something from the heir, after his acceptance of the estate, the latter will be obliged to deliver the slave in such a way that the legatee will receive from the heir the amount which he could have recovered from him by an action growing out of the crime committed by the slave.
71. Ulpianus, On the Edict, Book LI.
Where a house has simply been left to someone, and it is not stated what house, the heirs will be compelled to give to the legatee any house belonging to the testator which the legatee may select. If, however, the testator did not leave any house, the legacy is ridiculous rather than valid.
(1) Let us consider whether, where anyone delivers a slave by virtue of a legacy, he should furnish security against eviction, and, generally speaking, it must be held that whenever property given by a legacy has been delivered, and the possessor is evicted, the legatee can bring suit for it under the terms of the will. If, however, a demand is made for the property in court, it is the duty of the judge to require a bond, so that an action may be brought under the stipulation.
(2) Where money has been bequeathed, and the heir acknowledges that it is due, a reasonable time must be granted him in which to pay it; and he should not be compelled to bring the matter into court. The Prætor must fix a time for payment, in accordance with what is equitable and just.
(3) Where a man acknowledges that he is indebted, but gives a good reason why he cannot deliver what is due, he should be heard; for instance, where property belonging to another has been bequeathed, and he alleges that the owner of the same refuses to sell it; or where he says that an exorbitant price is demanded for the property; or where he declines to give up a slave belonging to the estate, because the said slave is either his father, his mother, or one of his brothers; for it is perfectly just that under these circumstances he should be permitted by the court to pay the appraised value of the property.
(4) Where a cup has been bequeathed to anyone, and the heir desires to pay the appraised value of the same, because he says it would be a hardship for him to be deprived of it, he cannot obtain this favor from the Prætor, because the condition of a slave is one thing, and that of other property is another, and the more indulgent course is adopted with reference to slaves, as we have previously
stated.
(5) Where property belonging to a municipality, together with its municipal taxes, is bequeathed, let us consider whether the legacy is valid, and can legally be claimed. Julianus says in the Thirty-eighth Book of the Digest that, although land of this kind may belong to a municipality, still, because the party who bequeathed it had some right therein, the legacy will be valid.
(6) But if the testator had devised this land to others than to the municipality from which he had leased it, he is not considered to have left the ownership of the same, but only the right which he had in the rent of the land.
72. Paulus, On the Edict, Book XLVIII.
If anyone should bequeath the Cornelian Estate, with the exception of the vineyards which were there at the time of his death, and there are no vineyards there, nothing will be deducted from the legacy.
73. Gaius, On the Edict of the Prætor, Concerning Legacies.
Where an heir is directed to act in such a way that Lucius may obtain a hundred aurei, the heir will be compelled to pay that sum; because no one can act in such a way that I may obtain a hundred aurei unless he gives them to me.
(1) It is stated in a Rescript of Our Emperor that legacies bequeathed to villages, as well as those bequeathed to cities, are lawful.
74. Ulpianus, Disputations, Book IV.