THE CIVIL LAW
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.
Authorof "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. Vill.
THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased
CONTENTS OF VOLUME Vill.
THE DIGEST OR PANDECTS.
TITLE II. PAGE CONCERNING THE FALCIDIAN LAW .................................. 3
WHERE MORE is SAID TO HAVE BEEN BEQUEATHED TO ANYONE THAN is PERMITTED BY THE FALCIDIAN LAW ............................. 41
TITLE I. ON THE TREBELLIAN DECREE OF THE SENATE ......................... 47
TITLE II. AT WHAT TIME LEGACIES OR TRUSTS TAKE EFFECT. ................... 100
CONCERNING SECURITY GIVEN FOR THE PAYMENT OF LEGACIES OR THE EXECUTION OF TRUSTS ........................................ Ill
WHEN THE LEGATEES OR THE BENEFICIARIES OF A TRUST CAN BE PLACED IN POSSESSION OF THE PROPERTY OF THE ESTATE FOR THE PURPOSE OF PRESERVING THE SAME ..................................... 119
SIXTH PART. BOOK XXXVII.
TITLE I. CONCERNING THE PRAETORIAN POSSESSION OF PROPERTY. ............... 126
TITLE II. PAGE CONCERNING PRAETORIAN POSSESSION WHERE THERE is A WILL ......... 130
CONCERNING THE PRAETORIAN POSSESSION OF PROPERTY GRANTED TO AN INSANE PERSON, AN INFANT, OR ONE WHO is DUMB, DEAF, OR BLIND 130
CONCERNING THE PRAETORIAN POSSESSION OF PROPERTY CONTRARY TO THE PROVISIONS OF THE WILL. ..................................... 130
CONCERNING THE PAYMENT OF LEGACIES WHERE PRAETORIAN POSSESSION OF AN ESTATE is OBTAINED CONTRARY TO THE PROVISIONS OF THE WILL ....................................................... 144
TITLE VI. CONCERNING THE COLLATION OF PROPERTY ........................... 154
TITLE VII. CONCERNING COLLATION OF THE DOWRY ............................. 164
CONCERNING THE CONTRIBUTION TO BE MADE BETWEEN AN EMANCIPATED SON AND His CHILDREN ....................................... 167
CONCERNING THE PLACING OF AN UNBORN CHILD IN POSSESSION OF AN ESTATE, AND His CURATOR.................................... 172
TITLE X. CONCERNING THE CARBONIAN EDICT. ............................... 177
CONCERNING PRAETORIAN POSSESSION OF AN ESTATE IN ACCORDANCE WITH THE PROVISIONS OF THE WILL .................................. 187
CONCERNING PRAETORIAN POSSESSION WHERE A SON HAS BEEN MANUMITTED BY His FATHER ........................................ 200
CONCERNING PRAETORIAN POSSESSION OF AN ESTATE IN THE CASE OF THE WILL OF A SOLDIER........................................... 202
TITLE XIV. CONCERNING THE EIGHT OF PATRONAGE .............................. 203
CONCERNING THE RESPECT WHICH SHOULD BE SHOWN TO PARENTS AND
PATRONS .................................................... 209
TITLE I. PAGE CONCERNING THE SERVICES OF FREEDMEN ............................ 211
TITLE II. CONCERNING THE PROPERTY OF FREEDMEN ........................... 222
TITLE III. CONCERNING THE FREEDMEN OF MUNICIPALITIES ..................... 244
TITLE IV. CONCERNING THE ASSIGNMENT OF FREEDMEN ........................ 244
TITLE V. WHERE ANYTHING is DONE TO DEFRAUD THE PATRON ................. 248
WHERE NO WILL is IN EXISTENCE BY WHICH CHILDREN MAY BE BENEFITED ....................................................... 255
TITLE VII. CONCERNING PRAETORIAN POSSESSION BY AGNATES. ................... 258
TITLE Vill. CONCERNING THE PRAETORIAN POSSESSION GRANTED TO COGNATES ........ 261
TITLE IX. CONCERNING THE SUCCESSORY EDICT ................................. 263
CONCERNING THE DEGREES OF RELATIONSHIP AND AFFINITY AND THEIR DIFFERENT NAMES ........................................... 266
CONCERNING PRAETORIAN POSSESSION WITH REFERENCE TO HUSBAND AND WIFE ....................................................... 285
TITLE XII. CONCERNING THE SUCCESSION OF VETERANS AND SOLDIERS ............ 285
CONCERNING THOSE WHO ARE NOT ENTITLED TO PRAETORIAN POSSESSION OF AN ESTATE ................................................ 285
CONCERNING PRAETORIAN POSSESSION OF PROPERTY GRANTED BY SPECIAL LAWS OR DECREES OF THE SENATE .............................. 286
TITLE XV. PAGE WHAT ORDER is TO BE OBSERVED IN GRANTING PRAETORIAN POSSESSION .. 286
TITLE XVI. CONCERNING PROPER HEIRS AND HEIRS AT LAW. ...................... 288
TITLE XVII. ON THE TERTULLIAN AND ORPHITIAN DECREES OF THE SENATE. ......... 295
CONCERNING THE NOTICE OF A NEW STRUCTURE. ...................... 305
CONCERNING THREATENED INJURY AND THE ENCROACHMENTS AND PROJECTIONS OF A NEIGHBORING HOUSE. ............................ 317
THE DIGEST OR PANDECTS.
THE DIGEST OR PANDECTS.
(Continued.) BOOK XXXV.
TITLE II. CONCERNING THE FALCIDIAN LAW.
1. Paulus, On the Lex Falcidia.
The Falcidian Law, by its first Article, conferred the power of disposing of an estate up to and including three-fourths of the same, as follows: "Those Roman citizens who desire to make a will after the enactment of this law shall have the right and the power to give and bequeath their money and their property to anyone whom they may select, in accordance with the following provisions."
In the second Article, the amount of the legacies which can be bequeathed is established in the following words: "Any Roman citizen who may execute a will after the passage of this law shall have the right and the power to bequeath as large a sum of money as he wishes to any other Roman citizen, in accordance with public law; provided the legacy is left in such a way that his heirs will receive not less than a fourth part of his estate under the terms of the will. Those to whom any money is given or bequeathed shall be entitled to receive the same without being liable for fraud; and an heir who is ordered and charged to pay said money must pay it in compliance with the directions prescribed."
(1) On account of the Cornelian Law, the Lex Falcidia is also considered to apply to those who die in the hands of the enemy; for the reason that the Cornelian Law confirms their wills just as if they had lost their lives in their own country, by reason of which fiction the Lex Falcidia and all others relating to wills which can be considered to have the same application are included in this category.
(2) The Lex Falcidia does not have reference to those who reject an estate left by a will, in order to obtain possession of it on the ground of intestacy; but the power of the law can be applied by means of the Edict of the Praetor.
(3) The rule is the same where the condition of taking an oath is remitted.
(4) Where a testator makes a bequest to his slave with the grant of his freedom this law will apply, because payment of the legacy is postponed until the time when the slave will become free; and this is also the case where the person to whom property is left is in the hands of the enemy or has not yet been born.
(5) The Falcidian Law also applies to legacies bequeathed to municipalities, or even for religious purposes.
(6) Again, it not only applies to bequests of property of the testator, but also to those of property belonging to others.
(7) Everything which must be paid or delivered out of the estate of the deceased is subject to the provisions of this law, whether it is certain or uncertain, and whether it is to be weighed, counted, or measured; and the law also applies where the right of property is bequeathed, as, for instance, the usufruct, or any claim which may be due.
(8) Likewise, where a legacy is bequeathed as follows, "Let my heir furnish Seius with provisions, and if he should not do so, let him pay him ten aurei," some authorities hold that the legacy is limited to ten aurei, that the provisions can only be acquired as a donation mortis causa, and that the heir cannot avail himself of the benefit of the Falcidian Law. When stated that provisions must be furnished without delay, it should be understood to mean after a reasonable time. If, however, the heir should furnish them after having been in default, the legatee will have no right to receive them, and the Falcidian Law will not apply; for the provisions which were bequeathed have now been transformed into a pecuniary legacy, and the ten aurei are due.
The rule will be the same if, in the beginning, the bequest had been made as follows, "If he should not furnish the provisions, let him pay ten aurei," for in this instance the provisions are not the object of the bequest, and if they are furnished they will be acquired mortis causa, since the condition of the legacy has not been fulfilled.
(9) Where an usufruct is bequeathed, as it can be divided, it is different from other servitudes which are indivisible; and certain ancient authorities were accustomed to hold that the entire usufruct should be appraised, and in that way the amount included in the legacy be determined. Aristo, however, dissents from this opinion of the ancients, for he says that a fourth part of this can be reserved, as in the case of corporeal property. Julianus very properly approves this opinion. But where the services of a slave are bequeathed, as neither use nor usufruct is considered to be included in a legacy of this kind, the decision of the ancients must necessarily be adopted, in order that we may ascertain what is embraced in the legacy; because, necessarily, in all acts which are to be performed, a part must be deducted to comply with the Falcidian Law, and part of the labors of a slave cannot be understood to exist. Even if, in the case of the usufruct, the question should arise to how much the legatee to whom the usufruct was given will be entitled, and what proportion should be allotted to the other legatees, in order that the share of the said legatee may not exceed three-fourths of the estate, recourse must necessarily be had to the rule of the ancient jurists.
(10) Where anyone bequeaths to his creditor the amount that he owes him, the legacy will either be void, if no advantage enures to the creditor; or, if he is benefited by it, for instance, by immediate pay-
ment, the Falcidian Law will also apply with reference to the advantage obtained by the creditor.
(11) If the legatee has obtained possession of the property bequeathed, and he cannot be deprived of it because he obtained possession of the same with the consent of the heir, who gave it while laboring under a mistake, an action will be granted to the heir to recover everything over and above three-fourths of the value of said property.
(12) It sometimes becomes absolutely necessary for the entire legacy to be paid to the legatee, if he enters into a stipulation to return anything which he may receive above the amount allowed by the Falcidian Law; for example, where a minor is charged with the payment of legacies which do not exceed the amount authorized by that law, for there is reason to believe that other legacies may come to light after the death of the minor, which, after contribution has been made, will amount to more than three-fourths of the estate.
The same rule may be said to apply where legacies are bequeathed conditionally under the first will, and it is uncertain whether they will be payable or not; and therefore if the heir is ready to pay them without application to court, he can protect his interest by means of the stipulation above mentioned.
(13) The share obtained by an heir through the substitution of his co-heir will benefit the legatee, for, in this instance, the heir resembles one who has been appointed absolutely for one part of the estate, and conditionally for another. Where, however, he refuses to accept the estate, the legacies with which he is charged will not increase by accrual; for instance, where they are bequeathed specifically, and not in general terms, as to "Whomever shall be my heir."
(14) If the share of my co-heir is exhausted, mine remains unimpaired, and if I should claim his, Cassius thinks that the two shares ought to be merged. Proculus, however, holds the contrary. In this case Julianus agrees with Proculus, which opinion I think to be the more correct one. The Divine Antoninus, however, is said to have decided that both shares should be united in computing what is due under the Falcidian Law.
(15) If I should arrogate my co-heir after the estate has been entered upon, there is no doubt that the shares ought to be separated, just as if I became the heir of my co-heir.
(16) If a legacy, payable annually, is bequeathed to Titius for the reason that there are several legacies, and they are conditional, there will be ground for the furnishing of the bond mentioned in the Edict, in order to secure the return of any amount received over and above that allowed by the Falcidian Law.
(17) Certain authorities hold that payment of what is naturally due to the estate and cannot be demanded should not be required, and ought not to be reckoned as part of the assets. Julianus, however, thinks that these claims will, according to circumstances, either increase the amount of the estate or will not increase it, and if paid,
this can be acquired by the heir through hereditary right, and hence would be included in the distribution of the estate.
(18) Where a debtor becomes the heir of his creditor, although he may be released from liability by reason of the merger resulting therefrom; still, as he is considered to have received a larger inheritance on this account, the amount of his indebtedness must be computed, although it may have been extinguished by his acquiring the estate.
(19) The question arises whether expenses incurred for the erection of a monument should be deducted. Sabinus thinks that they should be deducted if it becomes necessary to erect the monument.
Marcellus, having been consulted as to whether the expenses for a monument which the testator ordered to be erected should be deducted as part of the debts of the estate, answered that no more ought to be deducted on this account than was expended for the funeral. For the case is different with reference to the expense incurred for the erection of a monument, since it is not necessary, as that of the funeral and the burial are. Therefore, the person to whom money is bequeathed for the erection of a monument must suffer the deduction under the Falcidian Law.
2. Marcellus, Digest, Book XXII.
A larger sum should not be allowed than will be sufficient for the erection of an ordinary monument.
3. Paulus, On the Falcidian Law.
Where an heir is appointed and sells the estate, which is insolvent, it would be very difficult to persuade anyone that it was not solvent, since it found a purchaser. If this is a fact, however, the legatees will not be entitled to anything, because the heir appears to have profited more from the folly of the purchaser than from the estate of the deceased.
On the other hand, if he should sell the property of the estate for too low a price, this will not prejudice the rights of the legatees, and therefore if the heir has made a good bargain he should enjoy the benefit of it.
(1) If, however, a person who is not solvent should make bequests, and the heir should agree with the creditors not to pay them in full, and, by reason of this agreement, be able to retain something from the estate, still, the legatees will not be entitled to anything, because the heir obtained the money not from the estate, but through the agreement with the creditors.
(2) Likewise, if a legacy payable annually to a municipality is bequeathed, and a question arises with reference to the Falcidian Law, Marcellus thinks that only as much should be considered to have been bequeathed as will amount to a sum which, at four per cent interest, will provide the annual payments of the legacy.
4. Papinianus, Questions, Book XVI.
A tract of land having been devised to me under a condition, the heir of the testator appointed me his heir while the condition of the
legacy was pending, and the condition was subsequently fulfilled. In considering the application of the Falcidian Law in this case, the land will be understood to be mine, not by hereditary right, but by virtue of the legacy.
5. The Same, Opinions, Book Vill.
A bequest left to a city by the terms of a legacy or a trust is not valid where it consists of what must be paid on account of a promise already made. Therefore, if the testator, by the disposition of his will, exceeded the amount of what was due, only the excess will be diminished by the Falcidian Law, hence the creditor cannot be charged with a trust as a legatee. If, Tiowever, the legacy is dependent upon the arrival of a certain date, or compliance with some condition, the estimate of the advantage should not be made, but the entire amount bequeathed can be demanded; and even if the time for payment should arrive, or the condition should be fulfilled during the lifetime of the testator, what in the first place was valid will not become void.
6. Venuleius, Stipulations, Book XIII.
If a man should become the heir of his wife, and incur expenses for her funeral, he will not be considered to have expended the entire amount as her heir, but he should contribute in proportion to the extent that he is pecuniarily benefited, after having deducted what was due on account of the dowry.
7. Papinianus, Questions, Book VII.
In considering the application of the Falcidian Law with reference to the bequest of a servitude, as a servitude cannot be divided, the legacy of the same need not be entirely delivered, unless an appraised value of a portion of the same is tendered.
8. The Same, Questions, Book XIV.
Where one of several heirs is charged to pay a debt of the estate, and the application of the Falcidian Law is considered, those who have received bequests shall not take any account of the said debt which the heir alone is to pay.
9. The Same, Questions, Book XIX.
It was decided with reference to the Falcidian Law that, after the crops which had matured at the date of the death of the testator have been gathered, they increase the value of the estate as forming part of the land, which is held to have been worth more at that time.
(1) No distinction with reference to time is admitted, so far as the unborn child of a female slave is concerned. This is not unreasonable, because as the child has not yet come into the world, it cannot properly be called a slave.
10. The Same, Questions, Book XX.
Anything over and above the fourth established by the Falcidian Law which goes into the hands of the heir, does not bind him beyond
the other three-fourths, so far as the amount of the legacies is concerned; as, for instance, in the case of the estate of a minor, where he who becomes the heir of the father of the said minor is substituted for the disinherited son.
11. The Same, Questions, Book XXIX.
In estimating the amount due under the Falcidian Law, any property which has been retained by the heir at any time is included in the fourth of the estate to which he is entitled.
(1) Where a slave is to become free under a certain condition, and the condition is fulfilled at any time whatsoever, the heir will not be held to have sustained any loss, so far as his fourth interest in said slave is concerned. If, however, the condition should fail to be fulfilled, an opposite opinion must be adopted, and the value of the slave should be estimated at what he was worth at the time of his death.
(2) The Emperor Marcus Antoninus decided that heirs who have been deprived of their shares of an estate shall not be liable for a larger sum for legacies than the remainder amounts to.
(3) Where a certain individual was sentenced to be banished after the confiscation of half his property, and having taken an appeal made a will and died, and, after his death, his appeal was decided to have been improperly taken, the question arose whether the half of his estate which had been forfeited to the Treasury should be considered as a debt, and the remaining half alone should constitute his estate; or whether it would be necessary to come to the relief of the heir. It appears that relief should be granted the heir, as the intention of the testator who took the appeal, and his evident desire warrant this opinion.
(4) Where a slave manumitted by a will dies before the estate is entered upon, it is understood that the heir must sustain the loss. But how can his value be estimated, who, if he had lived, could not be appraised? For those who, at the time of the death of their master, are attacked by a disease which renders it certain that they cannot live, and they afterwards die, it has been decided that the loss must be borne by the estate. Nor is the case different with respect to those who are under the same roof when the master was killed by his slaves.
(5) Let us examine what is the effect of the common rule, namely: "But one Falcidian portion can exist in the will of a father and his minor sons." For, although the substitute may have been charged with the distribution of property left by the minor, when he becomes the heir he will only be liable for it as an ordinary debt; still, on account of other legacies left by the pupillary substitution, there will be ground for contribution. Hence it may happen that the substitute cannot retain anything from the father's estate, or that he may obtain much more than the fourth to which he is entitled by the Falcidian Law.
But what if the estate of the minor should not be sufficient to pay the legacies, while that of the father would have been sufficient to pay those which he bequeathed? The substitute will certainly be required to employ his fourth for their payment, as the father made the bequests
out of his own estate, and it makes no difference that payment cannot be required beyond the assets of the estate by any will; for in this instance, the legacies left under the pupillary substitution are understood to have been bequeathed, as it were, conditionally, by the original will.
(6) Where a testator makes a substitution of two persons for his son, and charges each one with the payment of a legacy, the question arises: can the substitute personally claim the Falcidian portion which the minor does not possess, or shall there be but one substitute for the minor? Anyone might (in conformity to what has been already laid down with reference to the established rule governing estates), easily say that the'Falcidian Law will not apply, and that suit can be brought against the other substitute for an amount over and above his share.
The opposite opinion is, however, the better one, as it should be held that he has the right to deduct his fourth, just as if he had become the heir of his father; for as it is from this that the property of the father and the distribution of the legacies derive their form and origin, so where there are several substitutes, and the person of the minor is not to be considered, recourse must be had to the meaning of the appointment.
But what shall we say with reference to the other substitute who was not charged, so that, if the minor should die before paying the legacies with which he was burdened, and they amount to more than three-fourths of the estate, will he be authorized to deduct the Falcidian portion from all of them?
But he still has the fourth, and the same conclusion cannot be arrived at as in the case of the other appointment. Again, if we deny that this should be done, it must be held that such a course is contrary to the general rule. Therefore, a difference exists, as he who was charged in his own name can retain the fourth just as if he had been appointed an heir, and the other substitute, who was not charged, although his share may be increased, cannot be sued for the entire amount, on account of confusion in the estimate.
The result of this is that if security with reference to the Falcidian portion was furnished to the minor, it will enure to the advantage of both parties; that is to say, so far as the amount which each one will be able to retain for himself is concerned.
(7) Where a testator appointed a co-heir with his minor son, the question arose: in what way should the portion authorized by the Falcidian Law be ascertained, and what was the meaning of the ordinary rule that it should apply separately to different legacies? I said that, with reference to any legacies with which a father charged his son, as well as those with which he charged a substitute, no separation can be made, as they should be subjected to a common estimate and both must contribute in turn; but where legacies with the payment of which a foreign heir is charged are bequeathed, they cannot be mingled with the others, and therefore the substitute will be entitled to a fourth of the share which was given to the minor, although he may be entitled to his own share as the appointed heir.
Another rule, however, is applicable where an heir is appointed to different portions of an estate; for in this instance the legacies will be merged not less than if he had been appointed but once to one share which is composed of several; and it does not make any difference whether he was appointed heir to the several shares absolutely, or under different conditions.
(8) Where anyone substitutes an heir who has been appointed instead of his disinherited son, and charges him with the payment of a legacy by the second will, the legacies are necessarily merged; and therefore Julianus says that those with the payment of which the substitute was charged are valid, because he is the heir of the father.
12. The Same, Questions, Book XXX.
Where a debtor, who has appointed his creditor his heir, requests that, in estimating the sum reserved by the Falcidian Law, his obligation should not be included with the bequests to the legatees, there is no doubt that the will of the deceased can be sustained in court by filing an exception on the ground of fraud, when the amount due under the Falcidian Law is to be determined.
13. The Same, Questions, Book XXXVII.
Where a slave undertakes the execution of an implied trust under the direction of his master, it has been decided that, because he was obliged to obey his master, he will be entitled to the benefit of the Falcidian Law.
14. The Same, Opinions, Book IX.
A father appointed his daughter, who was separated from her husband, heir to a portion of his estate, and charged her to deliver to her brother and co-heir the share of it which she had received, after having deducted the sixth part of the same. In determining the amount to be reserved under the Falcidian Law, would the dowry be liable to contribution? If the father, with the consent of his daughter, did not claim her dowry, I gave it as my opinion that she would be entitled to the Falcidian portion by hereditary right, but she would be entitled to the dowry in her own right, because it should not be included in her father's estate.
(1) A grandmother, having appointed her grandchildren her heirs, charged some of them, without having deducted the amount to which they were entitled to by the Falcidian Law under another will, to pay the entire legacy to their brothers and co-heirs.
I gave it as my opinion that the trust was legally created, but that the amount with which it was charged would also be liable to contribution.
(2) It is not proper, where a substitute was appointed for two minors under the age of puberty, and became the heir to both, that the Falcidian Law should apply to the estate of only one of them; if, out of the property of the other minor, he should retain the fourth part of the estate of the father which passed to his children.
(3) If, however, one brother, who is legitimate, should become the heir to the other, and be substituted for the survivor, the share of the father's estate which the surviving son receives on the ground of intestacy will not be subject to contribution to the Falcidian portion, but the substitute can only retain the fourth part of what the minor who had a substitute acquired.
15. The Same, Opinions, Book XIII.
Where a debt has been remitted by an agreement mortis causa, the debtor must contribute to the amount due under the Falcidian Law, and this can be retained by the heir by filing a replication in factum.
(1) Where a brother appointed his sister his heir, and charged her with a donation which he wished to give to another, who stipulated with her that she would not take advantage of the Falcidian Law, and if she did so, that she would pay him a certain sum of money, as it has been well established that the laws cannot be violated by any agreement entered into by private individuals, the sister will be entitled by public law to retain the Falcidian portion, and an action based on the stipulation will be refused to the other party.
(2) Where annual legacies have been bequeathed, it has been decided that an heir will, none the less, be permitted to retain the Falcidian portion, because during the first and second years he paid the legatee without making any deduction.
(3) Where a grandfather was indebted to his grandson on account of his administration of his guardianship, and the latter afterwards became the sole heir of his grandfather, if the Falcidian Law should be applicable, it was held that the amount, along with the other debts, must be deducted from the assets of the estate. It makes no difference whether the grandfather, who was also the guardian, charged his heir, if he should die before reaching a certain age without having any children, to deliver the estate, as well as his own property to a third party; for it was not held that the estate should be set off against this debt, and it was practically admitted that such a set-off ought not to be made, as the deceased indicated that his heir should have his own property.
It is clear that if the condition of the trust was complied with, and the profits of the estate collected after the death of the grandfather, they should be set off against an equal sum of the money due to the guardianship; but the heir would only be entitled to retain the fourth part of the property of the grandson, which the grandfather left him at his death.
(4) Where a father was charged with a trust for the benefit of his son, by the will of the mother of the latter, which trust he had not executed, he wished a set-off against it to be made of the estate which he left to his son. If a calculation was made to determine the amount due under the Falcidian Law, what the son was entitled to should be set off against the fourth which he had actually obtained from his
father's estate, and he could only deduct the excess of the three-fourths of what was owing to the heirs.
(5) Whatever the heir is compelled to deliver to a husband out of donations made by him to his wife shall not be counted as part of her estate; as the woman, so far from becoming more wealthy, is considered to have become poorer to that extent. Again, when any diminution of the donations for which the heir is responsible takes place, the loss will not be borne by the husband.
(6) In fixing the amount due under the Falcidian Law, the heir cannot be compelled to give a receipt for the crops of land left conditionally under the terms of a trust; and where he has not been charged to deliver the crops to the beneficiary of the trust, he will be entitled to a fourth, and the profits of the fourth of the property of the deceased which belonged to him at the time of his death. Nor does it make any difference when the Falcidian Law begins to be operative, for although it will commence to apply to the trust immediately after the conditions have been fulfilled; still, the profits of the fourth must be left in possession of the heir from the time of the death of the testator.
(7) Where a son appointed his mother his heir, and bequeathed her, under a trust, a sum to make up the deficiency of what he should have left her, but did not do so; what was left to her can be diminished by the amount of the Falcidian portion, and the mother can receive the money left her in excess of the quarter of the share.
(8) In calculating the fourth to be reserved under the Falcidian Law, the amount cannot be diminished by the estimate made by the testator, any more than the heir can be entirely deprived of it.
16. Scsevola, Questions, Book III.
If an heir should deliver only certain articles out of several which have been bequeathed, he can retain the entire Falcidian portion out of the remainder, and can interpose an exception on the ground of bad faith against the legatee, even with reference to the property which he has already delivered.
(1) If only one article has been bequeathed, and a part of the same has been delivered, the heir can reserve the entire Falcidian portion out of the remainder.
17. The Same, Questions, Book VI.
If a soldier should make a codicil, and die within a year after his discharge, the legacies bequeathed by his military will, in accordance with military law, must be fully paid, but it is held that those left by his codicil must be paid after the Falcidian portion has been deducted. This matter should be explained as follows: If the testator has four hundred aurei and bequeaths four hundred by his will, and a hundred by his codicil, out of the fifth part (that is to say eighty, which the legatee would be entitled to by the codicil if it was not subject to the Falcidian Law), the heir will be entitled to retain a fourth, that is to say twenty aurei.
18. Paulus, Questions, Book XL
A son under paternal control who had served in the army, at his death, charged his father to give Titius his peculium castrense.
The question arose whether the heir could deduct a fourth of it. I said that the Falcidian Law, as interpreted by the Divine Pius, also included the successions of intestates where there had been trusts created; but in the case stated the peculium was not a part of the estate although I would hold that where a foreign heir was appointed it would become a portion of the estate by his entering upon the same. For when the peculium remains in the hands of the father, his ancient right continues to exist, and the property is still peculium. Nor is this contrary by the fact that the Falcidian Law applies to the wills of those who die in the hands of the enemy, since the fiction of the Cornelian Law creates both the estate and the heir.
However, I do not doubt that the father ought also to enjoy the benefit of the law; for if, indeed, he is required to surrender the property as having belonged to the head of the family, the appointed heir, having failed to enter upon the estate under the will, can be sued by the legatees in conformity with the terms of the Edict.
(1) The consequence of this is that if the father should, in the meantime, obtain the fourth and the profits of the same, we can apply the Trebellian Decree of the Senate, and equitable actions can be brought in order that the property may become a part of the estate after restitution has been made.
19. Scsevola, Questions, Book Vill.
Where an heir is charged to sell a tract of land for five aurei, which is worth ten, there is no doubt that the five aurei will be subject to the operation of the Falcidian Law.
20. The Same, Questions, Book IX.
If my slave, after having been appointed my heir, is charged with a legacy for my benefit, and acquires an estate for me, Msecianus denies that the legacy should be subject to the Falcidian Law because it is not valid.
21. Paulus, Questions, Book XII.
Where a ward who has borrowed ten aurei without the authority of his guardian receives a legacy from his creditor on condition that lie will pay his heir the ten aurei which he borrowed, and he does so in one payment, he will both comply with the condition and be released from a natural obligation, so that the Falcidian Law will also apply to the money paid to the heir; although this would not be the case if it had been paid only for the purpose of complying with the condition. Moreover, this is considered a payment to such an extent that if the legacy should be rejected, or the slave Stichus, who was bequeathed, should die, the ward cannot recover anything.
(1) If my slave and myself are appointed heirs to unequal shares of an estate, and the three-fourths of the share of the slave are not ex-
hausted by the payment of legacies, those legatees in whose favor I am charged will be benefited, in opposition to the Falcidian Law, by the amount which will come into my hands out of the share of the slave in excess of the Falcidian portion of his share.
On the other hand, if a slave is bequeathed to my slave, and ten aurei are bequeathed to me, the Falcidian portion of the slave will not, in conformity with the Falcidian Law, be deducted from the ten aurei bequeathed to me, for I shall retain the fourth of the person of the slave, even though my share of the bequest may not be exhausted.
22. The Same, Questions, Book XVII.
"Nesennius Apollinaris to Julius Paulus. The following case actually occurred. Titia appointed her three daughters heirs to equal shares of her estate, and left them charged with legacies for the benefit of one another, but she charged one of them in such a way that the Falcidian Law would apply as well to her co-heirs as to strangers to whom other property was bequeathed."
I ask whether the Falcidian Law is applicable against her co-heirs who were themselves charged with legacies for her benefit, and, if it should not be applicable, and she is barred by an exception on the ground of bad faith, how can the computation of the Falcidian portion be made as against the foreign legatees? I answered that what is received from a co-heir, as a legacy, does not profit the legatee by releasing him from the operation of the Falcidian Law.
Where, however, an heir who is obliged to pay a legacy demands something from the same person under the terms of the will, he should not be heard, if he wishes to avail himself of the benefit of the Falcidian Law against the said person, if what he is entitled to receive under the will of the testator, is equal to what he wishes to deduct from the legacy. With reference to the other legatees, it is evident that the heir will not be required to subject to the operation of the Falcidian Law all that he pays to his co-heir, but only what he actually gives him, that is, if he receives nothing from him.
(1) Where a slave is appointed an heir by someone, and his master is charged with a trust and the slave with a legacy, the calculation must first be made with reference to the legacy, and then the trust will be discharged out of what remains. The master, however, will only be liable for what comes into his hands, and, moreover, he will only receive what remains after the legacies have been deducted. It is clear that the Falcidian Law will apply.
(2) But if the master who was appointed heir fails to accept the estate and orders his slave, who was substituted for him, to do so, the legacies with which the master himself was charged must first be paid, and then, after reserving the Falcidian portion, payment should be made of those with which the slave was charged.
(3) Where a release from his obligation is bequeathed to a debtor, even though the latter may not be solvent, the entire legacy must be computed, although the bequest of the claim cannot increase the estate except in the event of payment. Therefore, if the Falcidian Law is
applicable, what was bequeathed to the debtor will be held to have increased the amount of the legacy. The other legacies will also be diminished by this one, and it will be diminished by the others; for the debtor is considered to receive the legacy by the mere fact of his being released from liability.
(4) Where, however, the claim is bequeathed to a third party, the legacy is void, and it will not be liable to contribution with the others.
23. Scsevola, Questions, Book XV.
Where a tract of land with a right of way is devised to me, and, after the deduction of the Falcidian portion, the estimated value of the right of way is greater, I will be entitled to the land without incumbrance, and the right of way will be extinguished. If, however, the right of way should be bequeathed, and the estate should prove insolvent, the right of way will not be due.
Where the land and the right of way are both devised, it should also be considered whether the heir will be entitled to make, from one or the other, a deduction of less than the value of the right of way. Strictly speaking, it may be said that, in this instance, the devisee will not only be entitled to the entire tract of land, but can also file an exception on the ground of bad faith, in order to obtain what is lacking, so that he may not have more than can be claimed under the Falcidian Law. Hence the right of way will only be lost where the requirements of the Falcidian Law amount to more than its value.
24. Paulus, Opinions, Book XIV.
Paulus says that where property belonging to an estate has been abstracted by the heir, and the amount due under the Falcidian Law must be ascertained, the estimate shall be made just as if what has been taken had been included in the estate.
(1) The same authority gives it as his opinion that the offspring of female slaves born before the day when the trust took effect will belong to the heirs of him who was charged with the execution of the trust; and where a question with reference to the Falcidian Law arises, a fourth of the value of the children and a fourth of the interest on the same must be computed.
(2) The same authority gives it as his opinion that where a legacy of property belonging to the heir is bequeathed, any profits of said property, which have been collected by him after the day when the trust became operative, cannot be charged against the fourth of the heir, even though he is not required to deliver them to the beneficiary of the trust.
25. Scsevola, Opinions, Book IV.
A woman appointed her husband and their son heirs to equal shares of her estate. The question arose whether, in calculating the portion allowed by the Falcidian Law, the share of the husband which had come into his hands from the same estate through his son should be charged. The answer was that, if by the appointment of his son, he
had received as much as was sufficient for the Falcidian portion, nothing should be deducted on that account.
(1) A testator bequeathed an estate to his freedman, and charged him by a trust to pay ten aurei to Seia, every year. The question arose, if the Falcidian Law diminished the legacy of the freedman, whether the annual trust with which he was charged for the benefit of Seia would also be diminished, provided that the income exceeded the annual payment. The answer was that, according to the facts stated, it would not appear to have been diminished, unless the intention of the testator was proved to be otherwise.
26. The Same, Opinions, Book V.
A testator bequeathed a string of thirty-five pearls, which was in the possession of the legatee at the time of his death. I ask whether the said string of pearls should be restored to the heir, in order to enable him to reserve a portion of them under the Falcidian Law. The answer was that the heir could bring an action to compel its restitution to him, and if he preferred to do so, he could bring suit to recover that portion of the string of pearls which he was entitled to keep under the provisions of the Falcidian Law.
(1) The question arose whether the value of statues is subject to the operation of the Falcidian Law. The answer was that it is.
27. The Same, Opinions, Book VI.
"Let Seius and Agerius be my heirs, if within thirty days after my death they execute a bond to my town that they will be content with such-and-such a sum of aurei, and will renounce the benefit of the Falcidian Law; and I hereby substitute the said heirs for one another. If they should not comply with my wishes, let them be disinherited."
The question arose whether the appointed heirs, having been substituted under the same condition, could enter upon the estate if they refused to comply with the condition. The answer was that Seius and Agerius, who were appointed in the first place, could enter upon the estate, just as if the condition which had been fraudulently imposed had not been imposed at all.
28. Msecianus, Trusts, Book I.
Where a foreign heir has been appointed by a son, the Falcidian Law applies even to a legacy which the son has bequeathed to his father.
29. Paulus, Trusts, Book II.
When I am charged with a trust or a legacy for your benefit, and you are requested after a certain time to deliver the same to me, I do not think that this should be subject to the operation of the Falcidian Law, because I shall begin to receive the property subsequently as the beneficiary of a trust.
30. Msecianus, Trusts, Book Vill.
In the application of the Falcidian Law, losses caused by the death of slaves and other animals, or by theft, robbery, fires, the ruin of
houses, shipwreck, and violence of enemies, depredators and thieves, or by debtors, in fine, any loss whatsoever, must be borne by the heirs, provided that the legatees are not to blame.
In like manner, the profits obtained by the heir from crops, the offspring of female slaves, and any acquisitions made by slaves (as, for instance, through stipulations, the delivery of property, legacies, or estates left to them, and other donations of every description) as well as servitudes—where lands become more valuable through being released from them—or where any rights of action, for example, those for theft, damage, injury, and others of this kind, are none of them liable to the operation of the Falcidian Law.
(1) Where the heir is directed either to sell or purchase a tract of land or any other kind of property for a certain price before estimating the Falcidian portion, in order to ascertain the amount of the legacy, only that sum is considered as bequeathed which either amounts to more or less than the price which the testator ordered to be paid or received for the said property. Then, from the portion which remains after the legacies have been deducted, a still further deduction will be made, since the said price is not acquired mortis causa, but after the deduction has been made, the remainder is understood to have been
(2) It should also be carefully noted that the ordinary rule, "All losses which occur after the death of the testator concern the heir alone," is of universal application, and must be accepted without any distinction. For as even where the Falcidian Law does not apply at all, the heir will legally be compelled to bear the entire loss, so he must bear his share of it in cases where the Falcidian Law is operative. For, generally speaking, this is the rule, since losses sustained after the death of the testator cannot be deducted, in order to prevent the portion which is lost from being taken from the legacies or trusts.
(3) It is, however, true that no deduction can be made except with reference to such articles alone as can be weighed, counted, or measured; and where any loss happens after the death of the testator the deduction must be made from the share belonging to the legatee, dependent upon the appraised value of the estate of the deceased at the time of his death.
(4) With regard to property which can be positively designated, and other articles left as follows, "The money which I have in such-and-such a chest," "The wine which I have in such-and-such casks," "The weight of silver which I have in such-and-such a building," and the property is lost, or becomes deteriorated without the fault of the heir, there is no doubt that either none of the legacy will be due under such circumstances, or, after the deduction of the Falcidian portion, the legatees will be entitled to a share of whatever remains, based upon an estimate of the value of the property belonging to the testator at the time of his death.
(5) Where property is left which is of an uncertain character, a distinction must be made; for if a testator should bequeath some articles without specifically designating them, as, for instance, where he
leaves to anyone the silver plate which he may select, and all the silver plate should be lost without the heir being to blame, nothing will be due to the legatee.
If, however, a certain amount of silver was absolutely bequeathed, even though all the silver of the testator should be lost, the Falcidian Law will apply, and that portion of the amount can be taken which was with the property of the estate at the time that the testator died, and any losses which may subsequently have occurred will not cause any diminution of the legacy.
(6) The heir will not be liable for any portion of the property bequeathed which is lost, and not even for the appraised value of the same, any more than if all the articles bequeathed had been specifically enumerated.
(7) In estimating the amount due to the heir under the Falcidian Law, anything which is paid to him in compliance with the conditions of the will shall not be charged against his fourth; still, it is held by Celsus and our Julianus that a charge should be made when he was directed to receive a sum of money from the beneficiary of the trust, to whom he has been ordered to deliver the estate, where the testator did not direct the beneficiary to pay the said sum under some condition; as, for instance, where the heir was directed to sell the property for a specified amount, for then he will pay the money to the heir, not for the purpose of complying with a condition, but as a price.
In a similar case, it has also been asked whether the beneficiary of the trust can be compelled to pay the said sum, and take the estate, even if he is unwilling to do so, just as if he himself had been charged with a trust for the benefit of the heir. This is not probable, however, as a provision of this kind appears to have been made in favor of the beneficiary of the trust rather than against him.
(8) When the Falcidian Law applies, that property is not subject to contribution where the heir himself is charged with a trust for the benefit of himself, or his slave. The case, however, is different where the legacies to the slave are payable at a certain time; for when the day of his freedom arrives he will be entitled to them, and they become subject to contribution. Where, however, anyone makes a bequest to a slave without the grant of his freedom, and which, for this reason, is void, or leaves it subject to a trust, it will not be considered as liable to contribution under this law.
(9) Property, which it is certain cannot legally be left in trust, is not included in that liable to contribution under the Falcidian Law.
31. Pomponius, Trusts, Book II.
The person to whom payment is made in compliance with the terms of a trust, just as one to whom a legacy is bequeathed, is obliged to give security to return anything which he receives in excess of what he is entitled to under the Falcidian Law; as, for example, where the amount due under the Falcidian Law is still in suspense, on account of the condition upon which other trusts or legacies are dependent not having yet been fulfilled.
But, according to the opinion of Cassius and the ancient authorities, where a minor is charged with a trust, he to whom the amount is paid should furnish security with reference to the property with which the substitute was charged; for although there may be a repetition of what has been paid under the provisions of the trust, which really is not due, still it is more satisfactory for security to be given to him by whom the money is paid, so that he may not sustain any loss through the party who receives it becoming insolvent.
32. Msecianus, Trusts, Book IX.
Penal actions, whether they are derived from the Civil or the Praetorian Law, with the exception of popular actions, should, none the less, be reckoned among the assets of the party entitled to them, because they become extinguished by the death of the criminal. Moreover, on the other hand, these actions do not take anything from the estate of the culprit in case of his death. But a right of action for injury sustained cannot be counted as a part of the estate of the person entitled to the same, in case of his death; because it itself is extinguished at that time, just as an usufruct, or an allowance which is payable to anyone at stated periods, for instance monthly or annually, as long as he lives. For an obligation of any kind only affords ground for the diminution of the property of a debtor, where it is transferred to his heir; nor, on the other hand, should the debtor be understood to have had that much less property during his lifetime, since, if anyone should stipulate that a sum shall begin to be due when he dies, his estate will, nevertheless, be increased, just as if he himself should promise, under the same condition, that it shall be diminished at the time of his death.
(1) Honorary actions, also, which are permitted by the Praetor to be brought within a certain time, increase the estate of the person entitled to bring them, at the time of his death, and decrease that of the person against whom they can be brought, if they are such as also pass to the heir.
(2) Julianus says that if the shares of two heirs are exhausted by legacies, and one of them has received a Praetorian bond from the legatees, he will be entitled to bring an action on the stipulation, not for half, but in proportion to his share of everything acquired by them over and above the amount authorized by the Falcidian Law. For all Praetorian stipulations are subject to the same interpretation, as where a stipulation has been made it is settled that the judgment shall be paid, whether the plaintiff or the defendant leaves several heirs. The action cannot be brought by all, or against all of them, but only in favor of the heirs -of those who gained the suit, and against the heirs of those who lost it, and in favor of those against whom no defence was made, and against those who did not defend the suit.
(3) Where a legacy of a hundred aurei is left, payable in one, two, and three years, it has been decided that the Falcidian portion shall be deducted from all the payments made, and not merely from the last one.
(4) Where part of the legacy of twenty aurei bequeathed to Titius has been deducted under the Falcidian Law, and the legatee was requested to pay five aurei to Seius, our Vindius says that the same proportion can be deducted by the legatee from the five due to Seius as was deducted from the twenty due to Titius.
This opinion is founded both on equity and reason, because, like the heir, the legatee is obliged to execute the trust, and, as he cannot, personally, profit by the Falcidian Law, the loss which he has sustained must not be borne by him, unless the testator had charged him to deliver everything that he had received under the terms of the will.
(5) If, however, the legatee should be requested to manumit either his own slave, or one belonging to another, he must, by all means, give him freedom. This is not contrary to what is above stated, because the favor conceded to liberty frequently gives rise to other and even more indulgent decisions.
33. Paulus, Trusts, Book HI.
Where a slave is bequeathed to you, and you are charged to manumit him, and there is nothing more from which you can obtain the fourth which an heir can reserve under the Falcidian Law, the Senate has decided that the Falcidian Law will not apply.
34. Marcellus, Digest, Book XLH.
The Falcidian Law is applicable to the case of a slave bequeathed for manumission by the testator; but if the latter left money, or anything else, and charged the legatee to manumit his own slave, or that of another, the law will apply.
35. Ulpianus, Disputations, Book VI.
If anything besides was left to the slave, it is clear that the Senate declared that the Falcidian Law would be applicable. Therefore, Scse-vola says that the Falcidian Law will apply to anything which was bequeathed to the slave in addition to his freedom, and hence the price which is to be paid for him would be liable to contribution.
36. Paulus, Trusts, Book HI.
Where the slave himself has not been bequeathed, but a sum of money has, and the legatee is asked to manumit his slave, he will be subject to the operation of the Falcidian Law, and will, nevertheless, be compelled to manumit him; because his slave is considered to be worth as much as the sum bequeathed.
(1) But what if the slave should belong to another? In this instance he cannot be compelled to pay more for him than he received.
(2) If, however, the heir is charged to manumit the slave, it has been decided that the value of the latter should be deducted as a debt of the estate.
(3) Where a slave alone is bequeathed, and presented with his freedom, under a trust, although the Falcidian Law will apply, the legatee can claim or recover the entire slave, and even if the legatee
should have received something in addition to the slave, the entire slave can still be demanded, but the fourth part of each legacy shall be retained, in order that the grant of freedom may take effect.
(4) Where it is uncertain whether freedom should be granted or not, for instance, because it was bequeathed under some condition, or to take effect after a certain time, and while the uncertainty exists whether it should be bestowed or not, should the application of the Falcidian Law be permitted, as, in the meantime, the slave may either die, or the condition fail of fulfilment?
When the slave is entitled to his freedom, or it is due, can the legatee claim that portion which was deducted on account of the Falcidian Law? It was held by Csecilius that if the heir, during the intervening time, had gained anything through the services of the slave, he should include it in the value of the latter in deducting the Falcidian portion.
37. Valens, On Trusts, Book VI.
The appraisement of such a slave should be made in the same way as that of one who is to become free under a certain condition.
(1) Where, however, the heir was charged to manumit a slave belonging to another, it was decided that the price of the said slave should also be deducted from the assets of the estate.
38. Hermogenianus, Epitomes of Law, Book I. A slave who is to become free under a certain condition does not increase the number of the slaves of the heir.
(1) Slaves held in common are counted as belonging to the estate of each of their masters.
(2) When the usufruct of a slave belongs to another, his ownership forms part of the estate of his master; when he is pledged, he belongs to the estate of the debtor when he is sold under the terms of the Lex Commissoria, or conditionally, for a certain time, he belongs to the vendor.
39. Paulus, Decisions, Book III.
Not only the value of those slaves to whom freedom was granted, but also that of those who have been condemned to death, is deducted from the assets of the estate, just as the value of those whom the Praetor has liberated on account of their having given information of projected assassination, or for having revealed a conspiracy, is also deducted.
40. Hermogenianus, Epitomes of Laio, Boole IV.
The Falcidian Law applies to the will of a veteran, whether he be the head of a household or a son under paternal control, even if he should die within a year after his discharge.
(1) If a tract of land of the value of twenty aurei should be devised to anyone on condition of his paying ten, the devisee will be entitled to the entire tract of land.
41. Paulus, On the Edict, Book IX.
He is not considered to be free from bad faith who pays legacies without security having been furnished, where a controversy has already arisen with reference to the estate.
42. Ulpianus, On the Edict, Book XIV.
In estimating the amount due under the Falcidian Law, the actual value of the property must be appraised.
43. The Same, On the Edict, Book XIX.
Where slaves who have been in the hands of the enemy return after the death of the testator, they increase the value of the estate, so far as the Falcidian Law is concerned.
44. The Same, On the Edict, Book XXI.
The Falcidian Law will not be applicable where a slave is to become free on condition of his paying a certain sum, and he does so with money belonging to another person, and not with what forms part of the estate of the deceased, or where he who is to comply with this condition becomes free for other reasons.
45. Paulus, On the Edict, Book LX.
In the consideration of the Falcidian Law, anything which is left to be paid within a certain period is not held to have been absolutely bequeathed; for the value of advantage enjoyed by the heir in the meantime must be computed.
(1) Proculus thinks that where a question arises under .the Falcidian Law with reference to legacies conditionally bequeathed, that only such property as is salable is included in them. If this is the case, and the deduction can be made, as much will be considered to be due as the claim will bring, if sold. This opinion, however, has not been adopted, therefore it is better that the transaction should be arranged by both parties giving security.
46. Ulpianus, On the Edict, Book LXXVI.
Where a person who is entitled to retain the Falcidian portion promises, in compliance with the will of the testator, that he will renounce his claim to it, he will be compelled to carry out his agreement.
47. The Same, On the Edict, Book LXXIX.
When, the Falcidian Law is operative, it includes all payments. Sometimes, however, it can only be determined subsequently whether it is applicable or not, as for example, where a legacy is left payable annually, as long as the Falcidian Law does not apply, the payments will be made every year without deduction. If, however, a year should come when it does apply, and what is payable exceeds three-fourths of the value of the estate, the result will be that all the payments previously made every year will be diminished.
(1) Neither the legatee nor the beneficiary of a trust can enjoy the benefit of the Falcidian Law, even though the estate may be delivered to him under the terms of the Trebellian Decree of the Senate.
48. Paulus, On the Edict of the Curule ^Ediles, Book II.
Where the purchaser of a slave becomes the heir of the vendor, or vice versa, and the slave is evicted, shall double his value be deducted, or only his actual value, in computing the amount due under the Falcidian Law; for the amount would be double if there should be another heir? The more equitable opinion is, that while the heir is the same, only the actual value of the slave should be calculated.
49. The Same, On Plautius, Book XII.
Plautius: I devised a tract of land to a slave whom I had already bequeathed to you. Atilicinus, Nerva, and Sabinus think that the Falcidian portion should be first calculated with reference to the slave, and whatever part should be deducted from his value ought not to be considered, so far as the land which was devised was concerned; and then the Falcidian portion should be deducted from the remainder of the land, just as is the case with all legacies. Cassius says that as soon as the Falcidian portion is deducted, the slave begins to become the common property of the heir and the legatee.
When, however, a legacy is made to a slave held in common by him and another, the entire legacy will belong to the other joint-owner, because it can only be valid with reference to his person; for which reason the deduction of the portion authorized by the Falcidian Law can be made from the land but once.
Paulus: We adopt the opinion of Cassius, for the Divine Pius stated in a Rescript that where the slave was made the beneficiary of the trust, under these circumstances the entire bequest would belong to the joint-owner.
(1) It sometimes happens that a second legacy is extinguished on account of the Falcidian Law; as, for example, where a tract of land and a right of way through another tract to give access to it is granted. For if a part of the land should be retained by the heir under the Falcidian Law, the devise of the right of way cannot stand, because a servitude cannot be partially acquired.
50. Celsus, Digest, Book XIV.
There is no doubt that those legacies from which the heir can exclude the legatee by means of an exception should be included in his fourth, and hence they do not diminish the legacies of others.
51. Julianus, Digest, Book LXI.
It makes no difference whether a legacy becomes void in the beginning, or something occurs subsequently on account of which an action cannot be brought by the legatee to recover it.
52. Marcellus, Digest, Book IX.
A freedman appointed his patron heir to his entire estate, which amounted to two hundred aurei, and then bequeathed a hundred and
twenty to his son, and the balance to a stranger. The diminution of the legacy which was paid to the stranger will benefit the son in acquiring the entire legacy which was bequeathed to him.
(1) Where, for some reason or other, legacies are not required to be paid, they are included in the fourth part which the heir is entitled to retain under the Falcidian Law.
53. Celsus, Digest, Book XVII.
Where the portion due under the Falcidian Law is in suspense, on account of some condition which has been imposed on the payment of the legacy, those legacies which are due at once cannot be claimed in full.
54. Marcellus, Digest, Book XV.
A father appointed his son, by whom he had three grandsons, his heir, and charged him not to alienate a certain tract of land, but to leave it in the family. The son, at his death, appointed his three sons his heirs. The question arose whether each of the said sons, as the creditor of his father, could make a deduction of anything from the estate, on account of the Falcidian Law; as it was in the power of their father to bequeath the entire trust to any one of his sons whom he might select. None of them for this reason could deduct anything on account of the Falcidian Law.
It appears, however, that this opinion will be productive of hardship, for as the father considered the land as a debt due to his children, he was necessarily obliged to leave it to them.
55. The Same, Digest, Book XX.
Where ten aurei, payable every year, are bequeathed to Titius, the judge having jurisdiction under the Falcidian Law to establish the proportion payable by the heir and other legatees should estimate the value of the legacy at whatever it could have brought during the life of Titius, it being uncertain how long Titius might live. After the death of Titius, however, the judge should not consider anything else than the amount that the heir owned by reason of the legacy.
56. The Same, Digest, Book XXII.
The owner of a slave who was liable to an action having reference to the peculium of the latter became the heir of the creditor. You ask what time should be considered in computing the value of the peculium under the Falcidian Law. Several authorities hold that the value of the peculium at the time that the estate was entered upon should be considered. I doubt whether this is the case, as it has been determined that the time of the death of the testator is the date to be observed in calculating the proportion due under the Falcidian Law. But what difference does it make whether the peculium of the slave is diminished after the death of the creditor, or whether the debtor becomes poorer?
(1) On the other hand, someone may ask what course should be pursued if the slave acquires property before the estate was entered upon? I, myself, ask whether, the means of the debtor who, at that time, was not solvent, are increased. And, as it has been decided in the latter instance that the estate has, after this event, been increased in value; so, if the condition upon which the claim depended was fulfilled after the death of the creditor, the increase of the peculium would augment the value of the estate.
(2) Scsevola inquires what should be done if the said slave owed ten aurei to the deceased and another person, and had ten aurei altogether in his peculium. Of course the estate is increased by the ten aurei, which were naturally due to him, and remain as a portion of his estate.
(3) A certain person, whose entire estate only consisted of one slave, bequeathed him to Titius, and charged the latter to manumit him at the end of three years. The heir will, in the meantime, while he is employed by Titius, be entitled to one-fourth of the value of the services of the slave, in the same manner .as if the testator had directly given the slave his freedom after the lapse of three years, and had bequeathed the usufruct or the ownership of said slave to someone under a trust.
(4) A testator bequeathed his slave Stichus to you, and ten aurei to your slave; or, on the other hand, he bequeathed ten aurei to you and Stichus, your slave, and charged you to manumit Stichus. The Falcidian Law diminishes the legacy, and you should purchase a part of the slave from the heir, just as if the testator had bequeathed you both legacies.
(5) It frequently happens that the heir does not enjoy the benefit of this law, for if a testator, whose estate amounted to a hundred aurei, should give twenty-five to someone and then appoint him his heir, and bequeath three-fourths of his estate to another, the heir cannot obtain anything else under the Falcidian Law, because the testator, during his lifetime, is considered to have made provision for his future heir.
57. The Same, Digest, Book XXVI.
Where a husband bequeaths a dowry of his wife to someone in order that it may be returned to her, it must be said that the Falcidian Law does not apply; and it is clear that in very many instances arrangements are made to leave out the intermediate party for the benefit of the person entitled to the legacy.
58. Modestinus, Rules, Book IX. The heir is not prevented from claiming the benefit of the Falcidian Law, even a long time after the death of the testator.
59. The Same, Pandects, Book IX.
He is considered to be unworthy of the benefit of the Falcidian Law, who acts in such a way as to cause the trust to be extinguished.
(1) Moreover, where an heir is requested to transfer the estate to some one who is not entitled to receive it, he will not, by the Plancian Decree of the Senate,1 be permitted to retain the fourth of said estate; but the said fourth, in accordance with a Rescript of the Divine Pius, will belong to the Treasury.
60. Javolenus, On Cassius, Book XIV.
Where a father substitutes an heir for his daughter, who has not yet arrived at puberty, any property which has been received as a legacy by the substitute from the father will not, when the estate passes to the former, be included in the computation made to ascertain the proportion due under the Falcidian Law.
(1) Where a legacy is claimed, and an oath was made in court by the legatee, the amount due under the Falcidian Law shall not be ascertained from the sum to which the legatee has made oath, but from the true value of the property which is claimed; for what accrues by way of penalty does not come within the scope of the Falcidian Law.
61. The Same, Epistles, Book IV.
A tract of land belonging to another was bequeathed to you. As the heir could not obtain it, except at an unreasonable price, he bought it for a sum far above its actual value, and the result of the purchase was that a reduction of the legacies was required under the Falcidian Law.
I ask if the land had been bought for what it was really worth, and the legacies had not been subject to diminution, whether, in this instance, the heir would have the right to reserve a part due to the legatees, because, in compliance with the will of the deceased, he had purchased the land for more than its value. The answer was that the heir could not, under the Falcidian Law, charge the other legacies with what he had paid to the legatee over and above the true price of the land, because his negligence ought not to prejudice the legatee, any
1 By the Plancian Decree of the Senate, passed during the reign of the Emperor Hadrian, a woman who was pregnant when divorced by her husband was required, within thirty days thereafter, either in person or by someone to whose authority she was subject, to notify her husband of her condition, which gave him an opportunity to repudiate the paternity of the child, and if he did not do so, placed him under the obligation to support it. It also enabled him to appoint persons to make a personal inspection of the woman, to determine whether pregnancy actually existed, and to send custodians to watch her, and provide against the perpetration of fraud. If she failed to give notice, or refused to allow the inspection, or to admit the custodians appointed by her husband, she could not bring suit against him; otherwise, she was permitted to institute legal proceedings, but the onus probandi rested on her. The failure of the wife to take action did not, however, prejudice the rights of the unborn child.
When the husband ignored the notice, did not deny its paternity, or did not send custodians, he could be forced to acknowledge the child as his own. If he died before availing himself of the precautions authorized by law, the woman could demand possession of his estate in the name of her unborn offspring. In this case another inspection might be made at the instance of the heirs of the deceased husband.—ED.
more than he could release himself from liability by tendering the actual value of the property.
62. Ulpianus, On the Lex Julia et Papia, Book I.
Julianus says that, in estimating the portion due under the Falcidian Law, the following rule should be observed, namely, where there are two promising, or two stipulating debtors, and they are partners, the common obligation should be divided between them; just as if each one had stipulated or promised to pay the amount individually.
If, however, no partnership existed between them, the matter would remain in abeyance, and a calculation should be made in order to determine what is due to the estates of the creditors, or what should be deducted from those of the debtors.
(1) Any property belonging to the estate of the deceased must be estimated at its value, that is to say, at the price it will bring at the present time; and it should be understood that the appraisement must not be made of the value which the property would have under certain conditions.
63. Paulus, On the Lex Julia et Papia, Book II.
The value of property should be estimated, not by affection nor according to any particular advantage attaching to it, but for what it can be disposed of at an ordinary sale. For where a father is in possession of a slave who is his natural son, he is none the more wealthy because, if the slave was in the possession of another person, he would be willing to pay a larger sum to recover him than someone else.
Nor will he who has possession of the natural son of another be considered to have the value of the price for which he could sell him to his father, since the prospective time of his sale ought not to be considered, but his value at present; and not the fact that he is the son of someone else, but what he is worth as a slave. The same rule applies to a slave who has caused some damage, for no one becomes any more valuable for having committed an offence.
Pedius says that a slave who has been appointed an heir after the death of his master is no more valuable for the reason that he will bring more at a sale; for it is absurd to suppose that where I have been appointed an heir, I am any the richer before I accept the estate, or where my slave is appointed an heir, that I immediately become more wealthy, as there may be many reasons why he should not accept the estate by my order. It is certain that he will acquire the estate for me when he does enter upon it, but it is preposterous to assume that we become enriched thereby before we obtain the property.
(1) Where a debtor of the testator is not solvent, the claim is only considered to be worth what can be collected from him.
(2) Places and times occasionally cause a difference in the price of property, for oil does not sell at the same price in Rome that it does in Spain, nor has it the same value in continuous bad years that it has in favorable ones; hence, under such circumstances, the value of articles should not be fixed by their scarcity at certain periods, nor on account of something which rarely occurs.
64. Ulpianus, On the Lex Julia et Papia, Book XIII.
Where the following provision is included in a will, "Let my heir be charged with the payment of ten aurei to Lucius Titius, and let as much more be given him as he will lose by the operation of the Falcidian Law," the will of the testator must be executed.
65. Paulus, On the Lex Julia et Papia, Book VI.
Where a tract of land, worth fifty aurei, is devised under the condition that the party to whom it is left shall pay fifty aurei to the heir, many authorities think that the devise is valid, because the reason for complying with the condition is stated. It is established that the devise is subject to the Falcidian Law. Where, however, fifty aurei are bequeathed on condition that the legatee pays fifty to the heir, the legacy is not only void, but also ridiculous.
66. Ulpianus, On the Lex Julia et Papia, Book XVIII.
The following must be noted with reference to the operation of the Falcidian Law, where a legacy is bequeathed to anyone conditionally, or payable after a certain time. If ten aurei should be bequeathed to someone under a condition, and the condition is fulfilled, for instance, after the lapse of ten years, the said ten aurei will not be considered to have been bequeathed to the legatee, but a smaller amount, for the interval, and the interest during that interval cause reduction of the original sum of ten aurei.
(1) Just as legacies are not payable unless a balance remains after deducting the amount of the debts from the property of the estate, so donations mortis causa will not be due, but may be annulled by the indebtedness of the estate. Therefore, if the indebtedness is very large, no one can receive property given to him mortis causa, out of the funds of the estate.
67. Terentius Clemens, On the Lex Julia et Papia, Book IV.
Whenever more is bequeathed to any person than he is legally entitled to receive, and the Falcidian Law is applicable, the amount due under it must first be estimated, so that, after what is excepted by the Falcidian Law has been deducted, the balance will be payable, if it does not exceed the amount specified by law.
68. Mtmlms Macer, On the Law of Five Per Cent Tax of Estates, Book II.
Ulpianus says that the following rule should be adopted in making the estimate of maintenance to be furnished. The amount bequeathed to anyone for this purpose from the first to the twentieth year is computed to have lasted for thirty years, and the Falcidian portion of that sum shall be reserved. From twenty to twenty-five years, the amount is calculated for twenty-eight years, from twenty to thirty years, the amount is calculated for twenty-five years; from thirty to thirty-five years, the amount is calculated for twenty-two years, from thirty to forty years, it is computed for twenty years; from forty to fifty years,
the computation is made for as many years as the party lacks of the sixtieth year after having omitted one year; from the fiftieth to the fifty-fifth, the amount is calculated for nine years; from the fifty-fifth to the sixtieth year, it is calculated for seven years; and for any age above sixty, no matter what it may be, the computation is made for five years.
Ulpianus also says that we use this same rule in making the calculation with reference to the legacy of an usufruct. Nevertheless, it is the practice for the computation to be made for thirty years from the first to the thirtieth, but after the age of thirty years it is made for as many years as the legatee lacks of being sixty; hence the computation is never made for a longer time than thirty years. Finally, in like manner, the computation is made for the period of thirty years, where the usufruct of property is bequeathed to the State, either simply, or for the purpose of celebrating games.
(1) Where one of the heirs claims that certain property belongs to him individually, and it is afterwards proved to constitute part of the estate, certain authorities hold that the Falcidian portion cannot be reserved out of said property, because it makes no difference whether the heir appropriated it, or denied that it belonged to the estate. This opinion Ulpianus very properly does not accept.
69. Pomponius, On Sabinus, Book V.
Where the usufruct of property is bequeathed, the debts must be deducted from all the assets of the estate; as, according to the Decree of the Senate, there is no property which is not included in the legacy of an usufruct.
70. Ulpianus, On Sabinus, Book XIX.
The stipulation for the Falcidian portion takes effect immediately, when the condition on which the legacy or the debt depends is fulfilled.
71. Paulus, On the Edict, Book XXXII.
In disposing of his rights to an estate, an heir can provide that in case the Falcidian Law should apply, the entire legacy shall be paid by the purchaser, because this law was enacted for the benefit of the heir, and the latter is not defrauded, if he himself diminishes his own right.
72. Gaius, On the Edict of the Prsetor with Reference to Legacies, Book III.
The value of an estate is estimated after having deducted any expenses which may be incurred by the sale of property.
73. The Same, On the Provincial Edict, Book XVIII.
In appraising an estate, it has been decided that its value at the time of the death of the testator should be ascertained. Therefore, if anyone has property worth a hundred aurei and bequeaths all of it, no profit will accrue to the legatees, if, before the estate is entered upon it should be increased by anything obtained through slaves belonging to it, or by the birth of the offspring of female slaves, or from the in-
crease of flocks, to such an extent that the hundred aurei, included in the legacies, having been paid, the heir will still have enough for his fourth; but it will, nevertheless, be necessary for the fourth part of the legacies to be deducted.
On the other hand, if the testator should bequeath seventy-five aurei out of the hundred, and, before the estate was entered upon, the amount should be diminished (for instance by fire, shipwreck, or the death of slaves), to such an extent that not more than seventy-five aurei, or even less than that sum, remains, the legacies must be paid in full; for this cannot be considered injurious to the heir, as he is at liberty not to accept the estate. Hence it becomes necessary for the legatees to compromise with the heir for a part of their legacies, in order to avoid obtaining nothing in case he should refuse to take under the will.
(1) Very serious doubts arise with reference to certain matters, the condition of whose accomplishment depends upon the time of the death of the testator; that is to say, where a debt is due under a condition, shall it be counted as part of the assets of the stipulator, or shall it be deducted from the estate of the promisor? Our present practice is that the amount which the obligation will bring, if sold, shall be considered as added to the estate of the stipulator, but deducted from that of the promisor; or the question can be settled by the parties giving security to one another; so that the claim may be considered as absolutely due, or as if nothing was due at all; therefore the heirs and the legatees can furnish one another security, so that, if the condition should be fulfilled, the heir may pay to the legatees the amount which he has withheld, or the legatees may refund whatever they have received in excess of that to which they were entitled.
(2) Even where some legacies have been absolutely bequeathed, and some have been bequeathed under a condition, and the condition was fulfilled, the Falcidian Law will apply, but the legacies absolutely bequeathed should only be paid after security has been taken. In a case of this kind, it is generally the custom for the legacies absolutely bequeathed to be paid just as if no others had been left conditionally; the legatees, however, should give security that after the condition has been complied with, they will return any excess which they may have received.
(3) A bond of this kind is considered necessary, where freedom is granted to certain slaves conditionally by the same will, because the value of said slaves should be deducted from the bulk of the estate, after the condition has been complied with.
(4) It is evident that the law is different, where legacies are bequeathed payable within a certain time, since it is absolutely certain that they will be due to the legatee himself, or to his heirs. It must, however, be understood that as much less will be deducted from the assets of the estate as the heir, in the meantime, until the day for payment arrives, will obtain by way of profit from the crops, or from interest.
(5) Therefore the best course will be for the testator, in bequeathing his property, to make such a disposition of the same that nothing
over three-fourths of it will remain. If anyone should exceed the three-fourths, the legacies will be diminished pro rata, by operation of law. For example, where a man has an estate of four hundred aurei, and bequeaths the whole of it in legacies, the fourth part of his legacy will be taken from each legatee. If he should bequeath three hundred and fifty aurei, the eighth of each legacy will be deducted; if, however, he should bequeath five hundred aurei, and should only have four hundred; in the first place, the fifth part, and afterwards the fourth part will be deducted, for the amount should first be deducted which is in excess of the value of the property of the estate, and afterwards what the heir is entitled to out of the actual assets of the same.
74. The Same, On the Edict of the Prsetor with Reference to Legacies, Book V.
Where, however, it is said that an heir who is entitled to his fourth under the will of the deceased is obliged to pay the legacies in full, we must understand that this applies where he receives the estate by hereditary right, for what anyone receives from his co-heir, as a legacy, shall not be charged to his fourth.
75. Marcellus, On the Digest of Julianus, Book XL.
Where a bequest is made to an heir in order that he may pay the legacies in full, as well as the trust with which he is charged, an action based on the legacy will be refused him if he prefers to avail himself of the benefit of the Falcidian Law.
76. Gaius, On the Edict of the Prsetor, Book III.
Any property, however, which is given either by a co-heir, a legatee, or a slave who is to be free conditionally, for the purpose of complying with the condition, shall not be charged to the Falcidian portion, because it is obtained mortis causa. It is clear that if the heir should receive any money from the peculium of the slave, he must charge it proportionally to his share, because the said proportional share does not pass to him mortis causa, but he is understood to acquire it by hereditary right.
(1) For which reason it has been decided that any bequests which legatees have no right to receive, and which, on this account, will belong to the heirs, the latter do not obtain by hereditary right, and therefore they must be charged to the fourth; for it does not make any difference whether property is bequeathed to him in the first place, or whether, after it has been bequeathed, it remains in his hands.
77. The Same, On the Provincial Edict, Book XVIII.
There is no doubt that the advantages conferred by the Falcidian Law are available by every individual heir, and therefore, if Titius and Seius have been appointed heirs, and the half of the estate belonging to Titius is exhausted in legacies, so that the fourth part of the entire property is left to Seius, Titius will be entitled to the benefit of the Falcidian Law.
78. The Same, On the Edict of the Urban Prsetor with Reference to Legacies, Book III.
If, however, one of two heirs should fail to accept his share of the estate, and the other should become the sole heir to the same, will the Falcidian Law apply, just as if the entire estate had been left to the latter heir in the beginning, or should the two portions of it be considered separately with reference to the operation of the Falcidian Law? It is established that if the share of the legacy of him who became the heir is exhausted, the legatees will be benefited by the share which was not accepted, for the reason that it was not burdened with legacies, since those remaining in the hands of the heir will cause either nothing at all, or only a small sum to be deducted from what is to be paid to the other legatees. If, however, the share which was not accepted is exhausted, it will be subject to the operation of the Falcidian Law, just as if it belonged to the party by whom it was refused.
79. The Same, On the Provincial Edict, Book XVIII.
In the case of double wills,1 when we make inquiry with reference to the estate, only the property which the father possessed at the time of his death should be considered, as it does not make any difference whether the son either gained or lost anything after the death of his father; and, when we investigate the legacies, both those which are bequeathed in the first, as well as in the second will, are liable to contribution, just as if those with which the testator charged his son, as heir, had been left to him under some other condition.
80. The Same, On the Edict of the Praetor with Reference to Legacies, Book HI.
Where a testator left an estate of four hundred aurei, and, having appointed his son who had not reached the age of puberty his heir, bequeathed him two hundred aurei, and substituted Titius and Seius for him as heirs, and charged Titius with a legacy of a hundred aurei; let us see what the law is, if the minor should die before the legacies with which the two substitutes were charged have been paid.
The heir Titius is the only one who can make use of the Falcidian Law, for as the two hundred aurei forming part of the estate of the minor belong to him, he will owe two hundred on account of the legacy, that is a hundred out of the two hundred which the minor owed, and the hundred which he himself was ordered by the testator to pay. Therefore, having deducted the fourth of each of these sums, he will have fifty.
The Falcidian Law, however, is not applicable to Seius personally, since the two hundred aurei belong to him as a part of the estate of the minor, and he will owe in legacies a hundred out of the two hundred which were left by the minor. If, however, the minor himself should
1 A double or second will, tabulse secwndse, was one in which provision was made for pupillary substitution, to avoid testamentary dispositions from being void because no one was entitled to receive them.—ED.
pay the legacies, his guardians should see that the legatees furnish him with security.
(1) There are certain legacies which are not susceptible of division; for instance, those of rights of way, of rights of passage, and of rights to drive cattle through land, for things of this kind cannot partly belong to anyone. Where, however, an heir is directed to build some public work for a municipality, the legacy is considered to be undivided, for it is not understood that he constructed a bath, a theatre, or a racecourse, until it has assumed its proper form, which only happens at its completion. In cases of this kind, even though there are several heirs, they are individually liable, and the bequest belongs to all the legatees. Hence, where bequests which are not susceptible of division are made, they belong wholly to the legatee. Still, relief can be granted to the heir, if he notifies the legatee to return to him his share of the amount, after an estimate has been made of the value of the legacy. If he should not do this, the heir can avail himself of an exception on the ground of fraud, in bar to legal proceedings instituted by the legatee to recover the bequest.
81. The Same, On the Provincial Edict, Book XVIII.
The bequest of an usufruct, however, is subject to computation under the terms of the Falcidian Law, for it is susceptible of division; so that if it is bequeathed to two parties, they will each be entitled to his share under the law.
(1) Where a dowry is bequeathed to a wife, it does not come within the terms of the Falcidian Law, for the reason that she is considered to have received her own property.
(2) It is expressly provided by the Falcidian Law that such property as has been purchased or prepared for the use of a wife is not subject to its operation.
82. Ulpianus, Disputations, Book Vill.
The question arose, where a testator, whose sole estate consisted of a claim of four hundred aurei, bequeathed to his debtor the release of his claim, but left four hundred aurei to Seius, if the debtor should be insolvent, or was not worth the hundred aurei, how much each one would be compelled to contribute under the Falcidian Law. I stated that the Falcidian Law intended that a fourth should be paid to the heir out of what could be obtained from the estate, and that the remaining three-fourths should be distributed among the legatees. Therefore, when a claim which is not perfectly good forms part of an estate, a distribution of what can be collected should be made pro rata, and the remainder should be sold so that the value of what can be sold should only be counted among the assets of the estate.
. Where, however, a release of the claim is bequeathed to the debtor, he himself is considered to be solvent, and, so far as he himself is concerned he is rich, although, if he had received the amount which he owed mortis causa, he would be considered to have received four hundred aurei, even though he could not pay anything, for he is understood
to have been fully released from liability, even though he may have nothing if he is released; and hence, upon the application of the Falcidian Law, the heir should give him a receipt for three hundred aurei, and retain the remainder of the obligation of a hundred, for if the debtor should become solvent, he can only collect a hundred aurei from him.
The same rule must be held to apply where, on account of a donation mortis causa, a receipt is given to the debtor for four hundred aurei. Wherefore, it has been very properly held that the effect of the release remains in suspense, for if, at the time of the death, the entire four hundred aurei should be found belonging to the debtor, the release of three hundred will be valid. If, however, any property, in addition, should be found which would be sufficient for the fourth of the heir, the release will be valid for the entire sum of four hundred aurei.
But if the debtor can only pay a hundred, for the reason that he is always considered solvent so far as he himself is concerned, he will be required to refund a hundred aurei to the heir. Therefore, as the debtor is considered to be individually solvent, the result will be that if an heir should be appointed, and a release should be bequeathed to the debtor, and four hundred aurei to someone else; if the debtor should be solvent, the heir can retain a hundred and fifty aurei out of the three hundred, and can pay a hundred and fifty to the legatee, and in this way he will have his hundred. But if the debtor can only pay a hundred aurei, a fourth of the same should be reserved by the heir, and consequently the hundred which can be paid will be divided into four parts, three-fourths of which will belong to the legatees, the heir will have twenty-five, the insolvent debtor will credit himself with a hundred and fifty, the balance of the claim which cannot be collected should be sold, and this shall be considered as the only property belonging to the estate.
If, however, the debtor is unable to pay anything, he must also be released from liability for the said one hundred and fifty aurei, and Neratius says a sale should be made of the balance of the claim, which opinion we also approve.
83. Julianus, Digest, Book XII.
If the creditor of your son should appoint you his heir, and you should desire to obtain the portion due to you under the Falcidian Law, the amount of the peculium which existed at the time that the estate was entered upon shall be included in your fourth.
84. The Same, Digest, Book XIII.
A case sometimes occurs in which the heir is entitled to an action, although the testator could not have availed himself of it; as, for instance, where a guardian, at the time when he paid the legacies with which his ward was charged, did not enter into a stipulation with the legatees, binding them to refund anything which they might receive above the amount allowed by the Falcidian Law. The ward, indeed, cannot bring suit against his guardian on this account, but the latter will be liable to the heir of the minor.
85. The Same, Digest, Book XVIII.
Where a dowry has been given to the father of the husband, and the son alone is heir to his father, the dowry will, in the first place, be included in calculating the amount of the estate and the Falcidian portion, and will be deducted as a debt; otherwise, it would appear that the wife had no dowry.
If, however, the son should have a foreign co-heir, he can always deduct as a debt of the estate that part of the dowry which he will inherit from his father, and his co-heir can also do so, before the dowry has been received by the son.
86. The Same, Digest, Book XL.
Titia, by her will, appointed her brother Titius heir to a third part of her estate, and charged him to transfer the estate to Secunda and Procula, after having reserved a fourth part of the same. She also left certain land to her brother as a preferred legacy. I ask whether Titius can retain all the land which was left to him in this way, or only what was in proportion to the share of the estate which he was asked to deliver to the beneficiaries. I answered that Titius could keep the entire devise, but that he should charge the twelfth part of said land to his
If it had not been stated that the fourth part of the estate must be deducted, he would have been obliged to include in his fourth the entire third of the land, under the Falcidian Law, as the Falcidian Law in this instance operates against the desire of the testatrix.
87. The Same, Digest, Book LXI.
Where a man left an estate composed of a tract of land worth a hundred aurei, and charged his heir to sell it to Titius for fifty, he should not be considered to have devised more than fifty, and therefore the Falcidian Law will not apply.
(1). Moreover, where a testator has an estate composed of two tracts of land, each worth a hundred aurei, and appoints Titius and myself his heirs, and charges me to sell the Cornelian Estate to Titius for fifty aurei, and, on the other hand, charges Titius to sell the Seian Estate to me for fifty aurei, I do not think that the Falcidian Law will apply, as each of the heirs will be entitled to half of one of the tracts of land by hereditary right, which is equal to half of the estate. For there is no doubt that the one who is charged to sell the Cornelian Estate will be entitled by hereditary right to half of the Seian Estate, and also he who is charged to sell the Seian Estate can retain by hereditary right the half of the Cornelian Estate.
(2) If'any one should appoint as his heir a person to whom he had been asked to pay a hundred aurei at his death, the hundred aurei should be deducted in computing the proportion due under the Falcidian Law, because if anyone else had been the heir, the said hundred aurei would have been included among the debts of the estate.
(3) If you and Titius are each appointed heirs to the fourth part of an estate, and then you are appointed heirs to the remaining half under
a condition, and legacies, as well as the freedom of slaves, have been bequeathed, they should obtain their freedom, and all the legacies should be paid while the condition is pending; because, if the condition is complied with, and you should become the heir, both the legacies and the grants of freedom will be valid; or if the condition should fail, Titius and yourself will become the heirs.
If you ask how the Falcidian portion can be estimated, and whether, when the condition is fulfilled, your quarter and your half of the estate should be combined, and hence the Falcidian portion must be calculated on three-fourths of the estate, if you pay the legacies with which you are absolutely charged as heir, we give it as our opinion that the two shares should be combined.
(4) Where a testator appointed his son, who was under the age of puberty, and Titius, heirs to equal shares of his estate, and charged his son with legacies amounting to his entire half, but charged Titius with nothing, and substituted Titius for his son, Titius having entered upon the estate under his appointment, and the minor son having died, and Titius having become his heir by virtue of the substitution, the question arose how much he should pay as legacies. It was decided that he must pay the legacies in full, for the two halves of the estate having become merged, cause the Falcidian Law to apply to the entire inheritance, and hence the legacies would be due without any deduction.
This is, however, true only where the son dies before becoming the heir of his father. But if he should become his heir, the substitute ought not to pay more of the legacies than the minor would have been compelled to do, because he is not bound in his own name, but in that of the deceased minor, who would not have been required to deliver more than three-fourths of his half to the legatees.
(5) If, however, the entire half of the foreign heir should have been bequeathed, and he, by virtue of pupillary substitution, becomes heir to the minor, who was not charged with the payment of any legacies, it can be said that they will be increased, and proceedings must be taken just as if the party had been substituted for any heir whomsoever, and the latter having refused to accept the estate, the substitute becomes entitled to all of it; for the reason that the substitute, in fixing the portion due under the Falcidian Law, always takes into consideration the amount of the property which the father left.
(6) The same must be said if the father should appoint his two minor children his heirs, and substitute them for one another, as under these circumstances the estate will vest in the other by the right of substitution, and the amount of the Falcidian Law must be established.
(7) Where a testator had two minor sons, and appointed one of them his heir, and disinherited the other, and subsequently substituted the disinherited son for the one whom he had appointed heir, and then substituted Msevius for the one whom he had disinherited, and charged him with the payment of legacies, the disinherited brother became the heir to the other, and afterwards died. As, by his father's will, the estate of the latter passed to him by hereditary right under the terms of the substitution, it can be said that the legacies with which he was
charged must, after deducting the Falcidian portion, be paid out of the property which the father left at the time of his death.
The following case is not opposed to this opinion, namely: when a father bequeaths a legacy to his disinherited son, the substitute is not obliged to pay the legacy on this account; because, in this instance, the son does not receive a part of his father's estate but only a legacy. Still, someone may ask what must be done if the disinherited son did not become the heir of his brother under the substitution, either by law, or through the intervention of some third party, and then should die before reaching the age of puberty. Could it be held, under such circumstances, that the substitute must pay the legacy with which he was charged? By no means. For it makes a difference whether the disinherited son becomes the heir of his brother by virtue of the substitution or in some other way, and it is clear that in one of these cases the father can charge the son with a legacy, but in the other he cannot; and hence it is agreeable to reason to hold that the testator has no more right with reference to the substitute than he would have had with reference to him for whom he was appointed.
(8) The co-heir of a minor, after reserving the Falcidian portion, paid the legacies bequeathed by the testator in proportion to his share of the estate. Then the minor having died, the other became his heir by virtue of the substitution, and the half of the estate which belonged to the minor having been exhausted, the portion due under the Falcidian Law should be deducted from all the legacies, so that all of them with which he and the minor were charged having been subjected to contribution, the fourth part of the estate will remain in his possession; for although he is the heir of the minor, still the deduction under the Falcidian Law must be made, just as if he had been the heir of his
The legacies with which the heir was charged, and which amounted to more than three-fourths of his share, will not be increased unless the heir who was appointed to a part of the estate and substituted for his co-heir, should pay the legacies, after having deducted the Falcidian portion, while his co-heir was deliberating; and then, after the latter had rejected the estate, the other, by virtue of the substitution, should also acquire the remaining part of the same.
88. Africanus, Questions, Book V.
Where a man, who had an estate of four hundred aurei, bequeathed three hundred of them, and then devised to you a tract of land worth a hundred aurei under the condition that the Falcidian Law should not apply to his will, the question arises, what is the rule? I replied that this is one of those perplexing questions which are discussed by dialecticians, and are designated by them sophistical, or illusory; for, in a case of this kind, whatever we may decide to be true will be found to be false. For if we should say that the devise left to you is valid, there will be ground for the application of the Falcidian Law, and therefore the legacy will not be payable, as the condition has not been fulfilled. Again, if the legacy should not be considered valid, because
the condition has not been complied with, there will be no ground for the application of the Falcidian Law.
If, however, the law is not applicable, and the condition should be complied with, you will be entitled to the devise. But as the intention of the testator appears to have been that the other legacies should not Be diminished on account of yours, the better opinion is to decide that the condition upon which your legacy is dependent has not been fulfilled.
(1) Therefore, what shall we say if the testator bequeathed two hundred aurei in other legacies, and left you two hundred under the same condition, for the condition upon which your legacy is dependent either was, or was not fulfilled; hence you will be entitled to all of it, or to none, and this will be considered unjust, and contrary to the intention of the testator.
Again, it is not reasonable to hold that you are entitled to a part of the legacy, when it is necessary for the condition on which the entire legacy depends either must have been fulfilled, or must have failed. Therefore the whole matter should be disposed of by having recourse to an exception based on fraud.
(2) For which reason, when a testator desires to obtain compliance with his wishes, he should provide as follows: "If I have bequeathed, or should bequeath anything more than is legal under the Falcidian Law, let my heir be charged to deduct as much as is necessary to make up his fourth out of the legacy which I have left to Titius."
(3) Where a testator left an estate of two hundred aurei, and bequeathed to me a hundred payable immediately, and also a hundred to you payable conditionally, and the condition was complied with after some time, in such a way, however, that out of the income which was left to you the heir did not receive more than twenty-five aurei, he will be entitled to the benefit of the Falcidian Law, and we must pay him twenty-five, and, in addition to this, the interest on fifty during the meantime, which (for example) amounts to five aurei. Therefore, as thirty aurei must be paid, certain authorities hold that fifteen shall be due from each of us, which opinion is entirely incorrect; for although we have each received the same amount, it is still evident that my legacy is somewhat more valuable than yours. Hence, it should be decided that your legacy is diminished by the amount that the heir has received from the profits; and according to this, the following computation should be made, namely, what is due to the heir must be divided into seven parts of which I will be required to pay four, and you three, since my legacy is a fourth larger than yours.
89. Marcianus, Institutes, Book VII.
The Divine Severus and Antoninus stated in a Rescript that money left for the support of children was subject to the operation of the Falcidian Law, and that it was the duty of the Governor of the Province to see that it was lent to persons who were solvent.
(1) The Divine Severus and Antoninus stated in a general Rescript, addressed to Bononius Maximus, that interest should be paid by
anyone who claimed the benefit of the Falcidian Law for the purpose of committing fraud.
90. Florentinus, Institutes, Book XI.
Where an heir, who was charged by a trust to transfer the estate to someone after the receipt of a certain sum of money, refuses to carry out the will of the testator, and afterwards desires to avail himself of the benefit of the Falcidian Law, even though the money may not have been paid to him who, on receipt of it, was asked to transfer the estate; still, he will be compelled to execute the trust, since what the testator wished to be given him will take the place of the Falcidian portion.
91. Marcianus, Institutes, Book XIII.
An heir is entitled to have, as a fourth of the estate under the Falcidian Law, all that he acquires in this capacity, but not any property which he can claim by hereditary right, or which he received as a legacy, or by virtue of a trust, or in order to comply with a condition; for none of these things are included in his fourth.
But where he is charged under the terms of a trust to transfer the entire estate, or where either a legacy is left him, or he becomes the beneficiary of a trust, or where he is directed to take certain property as a preferred legacy, or to deduct or retain anything from the estate, this will be included in his fourth. With reference, however, to the share which he receives from his co-heir, this will not be included.
Even though he may be requested to transfer the estate on receipt of a certain sum of money, what he receives shall be included in his fourth, as has been decided by the Divine Pius. And where anything is given to him by the beneficiary of the trust in compliance with a condition, it should be noted that this must also be included in his fourth. But if the heir should receive anything from the legatee for the purpose of fulfilling a condition, this does not come within the scope of the Falcidian Law; therefore, if the deceased devised a tract of land worth a hundred aurei, provided the devisee paid fifty to the heir, the legacies should be counted as a hundred, and the heir will be entitled to fifty, in addition to his share of the estate, and this will not be included in his fourth.
92. Macer, On Military Affairs, Book II.
If a soldier, having made his will, directs half of his estate to be delivered to you, and then executes a codicil after he has been discharged, by which he requests the other half of his estate to be delivered to Titius, and dies a year after his discharge, the heir shall retain his fourth out of what was due to yourself and Titius; because the testator died at a time when his will could not receive the benefit of the Imperial privilege relating to military wills.
If, however, he should die within a year after his discharge, Titius alone must suffer the deduction of the Falcidian fourth, because the trust was left to him at a time when the testator could not make a will under military law.
93. Papiniamis, Questions, Book XX.
An heir was charged to transfer an estate to Maevius on condition of his receiving a hundred aurei from him, and at his death, to leave the money to Titius. Although the said hundred aurei were sufficient to compose a fourth of the estate, still, because of the subsequent trust, there will be ground for the retention of a fourth of the first bequest; for, according to a Constitution of the Divine Hadrian, the amount only comes within the terms of the Falcidian Law where it remains in the hands of the heir; but he alone is subject to the operation of the Falcidian Law to whom the estate was bequeathed, hence it does not apply to the hundred aurei which were donated mortis causa.
It is clear that, if anyone should make the following testamentary provision, "I ask you to transfer my estate on the receipt of a hundred aurei," and the testator should not designate any person to pay the money, it can be retained and deducted by the heir under the terms of the Trebellian Decree of the Senate, if it is sufficient to make up his fourth.
94. Scsevola, Digest, Book XXI.
A testator, after having appointed his son and daughter his heirs, bequeathed certain property to each of them as preferred legacies, but he left much less to his daughter than to his son. He devised to the former, in addition, a house which was encumbered, including everything belonging to it and all its utensils, and added the following clause, "I make this devise on condition that Titius, the freedman of my son, shall pay any debts due on said house, and if he does, the house shall belong to both of them in common."
If the daughter should desire to avail herself of the benefit of the Falcidian Law for the purpose of reserving her fourth, the question arose whether the debts should be deducted from the share of the estate which was left to her, and she should obtain her fourth out of what was left. The answer was that she could claim it by law, but that she could not accept what was left to her, if it was sufficient to make up her fourth, without complying with the wishes of the deceased, and paying what she had been charged with.
95. The Same, Digest, Book XXI.
A husband had charge of the property of his wife, which did not include her dowry, and she, having died before her husband had rendered her an account of his administration, left him heir to her entire estate, and charged him, when he died, to deliver ten shares of the same to their common son, and to deliver two shares to her grandson. The question arose whether what was found to have remained in the hands of her husband from his administration of the property should be transferred to the son, along with the other assets, in proportion to ten shares of the estate. The answer was that what the husband owed the estate would also be included in the distribution.
(1) The paternal uncle of a girl, whom her mother requested to transfer her estate to Titius, if she should die before reaching the age
of puberty, became her legal heir. In estimating the amount due under the Falcidian Law, the heir desired to deduct from the estate the principal, out of the interest of which the deceased minor had paid several persons money that was due for support furnished on account of the testatrix. If he should make this deduction, the question arose whether he ought to give security to pay the principal of said sums of money, the amounts of the same to be determined by the time of death of each of the parties entitled to support. The answer was that he should give such security.
(2) Three years after having entered upon the estate an heir wished to enforce the Falcidian Law against the legatees, for the reason that the testator had administered certain guardianships of which no account had yet been rendered, and because he denied that as much could be recovered from the claims due to the minor as had been deducted on account of the security given by the testator. The question arose whether on the demand of the legatees copies should be taken of the accounts of the deceased, and of all the documents belonging to the estate, as well as a statement of the sums due to the wards, in order to prevent the heir from producing what papers he might select, and in this way defraud the legatees. The answer was that it was the duty of the court to examine any documents by which the amount of the estate might be established.
96. The Same, Questions, Publicly Discussed.
If a civilian executed a will before he becomes a soldier, and then executes a codicil during his time of military service, the Falcidian Law does not apply to the codicil, but it does apply to the will.
WHERE MORE Is SAID TO HAVE BEEN BEQUEATHED TO ANYONE THAN Is PERMITTED BY THE FALCIDIAN LAW.
1. Ulpianus, On the Edict, Book LXXIX.
Where more property is bequeathed to anyone than is permitted by law, and there is good reason to doubt whether the Falcidian Law is applicable or not, the Praetor will come to the relief of the heir, and compel the legatee to furnish him with security that, if it should become apparent that he has received a larger legacy than he is entitled to under the Falcidian Law, he will refund to him an amount equal to the excess, and that no attempt will be made to defraud him.
(1) It makes no difference whether this occurs in the first will, in the pupillary substitution, or in both, for it has already been decided that the Falcidian Law applies but once, even where there are two wills, and that all the legacies will be subject to contribution, not only those with which the minor himself is charged, but also those which his substitute is obliged to pay.
(2) Where no stipulation has been entered into with reference to the ward, the heir will be entitled to an action on guardianship against
the guardian of the former. But, as Pomponius says, the stipulation can take effect with reference to both the ward himself and his heir, in which case the Falcidian Law will begin to become operative during his lifetime.
He also lays down the same rule with reference to the action on guardianship.
(3) Marcellus says that a man whose estate amounted to four hundred aurei appointed as his heir his son, who had not yet reached the age of puberty, substituted Titius and Seius for him, and did not charge the minor with any legacy, but charged Titius with the payment of three hundred aurei. Marcellus asks whether two hundred or a hundred and fifty aurei should be paid by the substitute, as, under no circumstances, he should be compelled to pay three hundred.
It seems to me to be the better opinion that he ought not to be obliged to pay the legatees more than his share, and certainly he ought not to pay them less. It follows, according to this, that the stipulation does not take effect, so far as he alone is concerned, but it should be carried out for the benefit of all the heirs, since the Falcidian Law becomes applicable after proper cause has been shown, and is determined by the amount of the legacies and the debts of the estate.
(4) If the indebtedness of the estate is evident, or certain, the calculation is easily made. If, however, the indebtedness is still uncertain, either because it is dependent upon some condition, or the creditor has brought an action to collect his claim, and the litigation has not yet been terminated, it will be doubtful how much is payable to the legatee on account of the uncertainty.
(5) At the present day something very similar to this occurs with reference to trusts.
(6) When it is said that the Falcidian Law is applicable, an arbiter is usually appointed to appraise the amount of the estate, even though there may be only one person demanding the execution of a very moderate trust. An appraisement of this kind should not prejudice others who have not been summoned before the arbiter. Still, it is usual for the other beneficiaries of the trust to be notified by the heir to appear before the arbiter and state their cases there. The creditors, frequently, are also notified to prove their claims before the arbiter. It is but reasonable that the heir should be heard against the claims of the legatees and beneficiaries of the trust, if he should offer to pay all that is left, and desires to protect himself by a stipulation of this kind.
(7) Where certain legacies are bequeathed that are payable immediately, and others that are payable under a condition, this stipulation should be entered into with reference to the conditional legacies, provided those which are immediately due are fully paid.
Finally, Julianus says that where legacies are bequeathed absolutely and conditionally, in order to prevent the Falcidian Law from taking effect if the condition is complied with, an action will not be granted for the collection of the legacies which have been absolutely bequeathed, unless security is given to the heir to refund anything
which has been received in excess of what is permitted by the Falcidian Law.
(8) Julianus also says that where a fourth of an estate is left to a person under a condition, and three-fourths of it is bequeathed absolutely, security must be given to refund all that has been received above the amount authorized by the Falcidian Law.
(9) Hence this stipulation also can be exacted, because, although the heir can recover any excess which he has paid, still, the party to whom payment was made may not prove to be solvent, and for this reason what has been paid will be lost.
(10) It can be said that this stipulation should also be entered into with reference to donations mortis causa.
(11) These words of the stipulation, "What you may have received as legacies in excess of what is authorized by the Falcidian Law," not only refer to one who has received more than is permitted by the Falcidian Law, and who must refund a part, and can retain a part of the same, but they also have reference to a person who is obliged to refund his entire legacy, for it should be understood that sometimes the Falcidian Law revokes a portion of the legacy which has been paid, and sometimes revokes all of it. For, as the calculation of the Falcidian portion is made after an account of the indebtedness has been taken, it frequently happens that other indebtedness is discovered, or a condition is fulfilled upon which the payment of a debt depended, and the entire amount of the legacy is exhausted; sometimes, however, a condition is fulfilled upon which the freedom of slaves depends, which renders a legacy not due under any circumstances, since the calculation of the amount of the legacies is not made until that of the slave has been completed, and their value deducted from the assets of the estate.
(12) Moreover, the Falcidian Law does not apply to certain wills; still, with reference to them, the rule is observed that although the heir may not be entitled to reserve his fourth, yet the legacies would only be payable in case the assets of the estate should be sufficient, of course, after deducting the indebtedness, as well as the value of the slaves who have received their freedom by the will either directly, or under the terms of a trust.
(13) Security should also be given by the beneficiary of a trust to the legatee who is charged with the execution of the same.
(14) Sometimes, the agreement set forth in this stipulation has reference not to the Falcidian, but to some other law; as, for instance, where a patron is appointed heir to an entire estate, and is charged absolutely with a legacy of five-twelfths of the same, and is afterwards charged conditionally with another bequest in excess of the amount to which he is entitled as patron; for in this instance recourse must be had to that law which provides for patrons, and not to the Falcidian Law.
(15) Where property which has been bequeathed is lost while in the hands of the legatee, the better opinion is that relief should be
granted, by means of an exception, to the party who made the promise,
2. Paulus, On the Edict, Book LXXV.
Even if he consented to pay the value of the property,
3. Ulpianus, On the Edict, Book LXXIX.
Unless some fraudulent act was committed by the legatee himself, for then he will also be liable under the clause relating to bad faith, which is included in this stipulation, and can be opposed by a reply.
(1) This bond, which is executed on account of the Falcidian Law, has reference to the furnishing of sureties.
(2) Where legacies are bequeathed which are payable at different times, as it is certain that the Falcidian Law will be applicable, Pedius says that there is no ground for a stipulation, but there is one for a calculation, and that an estimate should be made of the sum payable at different times, and in this way the total amount of the legacies will be established.
The result of the estimate is that the amount due under the Falcidian Law will be fixed in proportion to what is to be deducted from all the legacies.
(3) Whenever it is clear that a legacy will be due and payable even before the time the Falcidian Law will begin to apply, the calculation of the legacy must be made. If, however, fulfillment of the condition upon which it depends is delayed, we must wait until it is complied with. But where the time for its fulfillment has not yet arrived, in this instance, an account should be taken of the profits received during the intermediate time, and an estimate made, so that we can determine the amount under the Falcidian Law, and can say that the stipulation has become operative.
(4) Although all legatees and beneficiaries of a trust may by means of this stipulation be obliged to give security, still, the Divine Brothers stated in a Rescript that some of them are excused from doing so, as, for instance, those to whom small allowances for support have been bequeathed. For they stated in a Rescript, addressed to Pompeius Faustina: "The bequest of the ten aurei payable annually under the will of Pompeia Crispiana, your patroness, which you allege have been left to you, is different from that by which food and clothing were left to her other freedwomen, for which reason we think that a bond should not be required."
(5) Moreover, it should be noted that the Treasury ought not to be required to furnish security, but an action can be brought against it, just as if it had done so. Still, the Divine Pius stated in a Rescript that others, no matter what their rank, and though they may have already received their legacies, should be compelled to give security. We also learn from this Rescript that the Emperor intended that a stipulation should be entered into, even after the legacies have been paid.
(6) When a legatee has given security to an heir with reference to the return of the legacy which has been paid to him, and the heir
fs already involved in a controversy on account of the estate, or expects to be, and the estate is evicted, either on account of the negligence or fraud of him who paid the legacy, we hold that the stipulation will not take effect, so far as the judgment of a good citizen is concerned, because it contains the element of good faith.
(7) Likewise, if he who paid the legacy should, for some other reason, deprive himself of the estate (for instance, because he is appointed heir by a second will, under which the said legatee did not receive the legacy), we say that, in accordance with the judgment of a good citizen, the stipulation will become operative.
(8) And, generally speaking, where he who provided for himself by a stipulation of this kind, and has transferred an estate, or a sum of money, or some advantage, it must be said that the stipulation will take effect; provided he who entered into it was not guilty of bad
(9) The question arose whether the stipulation can take effect more than once. And it is established that it can take effect repeatedly, if the heir is deprived of different parts of the estate at different times.
(10) If the legacy should be paid before the stipulation is entered into, and legal proceedings are instituted to compel security to be furnished, this suggests the point that proceedings can be instituted where anything has been omitted, or paid through mistake. Therefore, in this instance, as no security was given, more is considered to have been paid than is due.
Pomponius says that an action to compel security to be furnished will lie, and I think that his opinion should be adopted on account of the benefit to be derived from it.
4. Paulus, On the Edict, Book LXX11L
Again, this security must be given where there appears to be good reason for it, as it would be unjust for it to be required where no controversy has as yet arisen with reference to the estate, and where only idle threats have been made, and therefore the Prastor must decide the question after proper investigation.
(1) Where each of two parties claims the entire estate for himself, under the will, for example, where they are both of the same name, actions can be brought by the creditors as well as the legatees against both the party in possession, and the one who demands the estate.
(2) This security is necessary where anyone pays his own money or delivers his own property. If he pays money or delivers property belonging to the estate, some authorities hold that security need not be furnished, for if he loses his case he will not be liable, since he was not in possession and did not commit fraud to avoid having possession.
If he should make payment before any controversy has arisen, this rule will apply; because if he made payment afterwards he would be liable on the ground of negligence.
(3) In the case of two persons having the same name, the question arises whether security must be furnished by him who transfers the
property of the estate, for the reason that one of them is absolutely released from liability, just as if he had paid a debt due from the estate. If the party claiming the estate paid his own money, or delivered his own property, he will not have anything to retain, and therefore a bond must be given him.
5. Marcellus, Digest, Book XXI.
Let us see whether this stipulation, namely, "Do you promise to return whatever you may have received above what is allowed by the Falcidian Law?" will not be sufficient as against the party who is obliged to pay a legacy to another under the terms of a trust. It will be sufficient for the heir to say that there is nothing to be done by him under the trust. For, in this case also, he who receives the benefit of the trust must furnish security to indemnify the legatee, unless the latter should prefer to give security to the heir in order to avoid circumlocution.
Moreover, security must be given to the legatee if (as is perfectly proper), he should be permitted to retain a proportionate sum out of what was paid under the trust, even though enough of the legacy may remain in his hands to discharge the entire fiduciary obligation.
6. Callistratus, On Judicial Inquiries, Book IV.
If the legatee or the beneficiary of the trust cannot readily furnish security, and for this reason runs the risk of being deprived of the benefit conferred by the will, shall he be released from the necessity of giving security? This opinion seems to be adopted in a Rescript of the Divine Commodus, which is in the following words: "If the court having jurisdiction of the case should ascertain that application has been made to him to compel you to give security in order to prevent you from claiming the benefit of the trust, he must see that you are released from the requirement of furnishing it."
7. Paulus, On the Lex Julia et Papia, Book VII.
The Divine Pius forbade security from being exacted from a person who was directed to oversee the distribution of certain annual legacies, requiring him to return to the heir the shares of those who failed to accept them, unless he was expressly ordered to do so by the testator.
8. Marcianus, Trusts, Book X.
Where an heir alleges that part of an estate, or even all of it, is forfeited to the Treasury, and it should be established that he was also charged with a trust, it was decided that if the beneficiary should give security to restore the estate in case it should be evicted, he must be paid.
9. The Same, Trusts, Book XII.
When the ownership of property is not in controversy, but the usufruct of the same is (for it may happen that the ownership is be-
queathed to Titius, and the usufruct to someone else), then security to restore it should not be given to th'e heir, but to Titius.
Sometimes, even if the heir is charged with the transfer of the usufruct, security should be given to Titius; for instance, if the usufruct, having been reserved, the ownership is left to him, and the usufruct to Seius; for, in this instance, what advantage would it be for security to be given to the heir, since no benefit will accrue to him if the usufruct should be extinguished?
If, however, the usufruct, having been bequeathed to Seius, and the ownership is left to Titius in such a way that when the usufruct ceases to belong to Seius, he will be entitled to the ownership, then security must be furnished to the heir by the usufructuary, and also by the heir to Titius, because it is not certain that, if the usufruct should be extinguished, the ownership will be acquired by Titius.
THE DIGEST OR PANDECTS. BOOK XXXVI.
TITLE I. ON THE TREBELHAN DECREE OP THE SENATE.
1. Ulpianus, Trusts, Book III.
After having discussed matters relating to trusts of different kinds of property, let us now pass to the interpretation of the Trebellian Decree of the Senate.
(1) This Decree of the Senate was enacted in the time of Nero, on the eighth of the Kalends of September, during the Consulate of An-nseus Seneca and Trebellius Maximus.
(2) The words of the Decree are as follows: "As it is perfectly just that, with reference to all trusts involving estates where anything is to be paid out of property, recourse should be had to those to whom the rights and profits of the estate are transferred, rather than that the heirs should incur any risk on account of the faith reposed in them, it is hereby decreed that actions which are usually granted for and against the heirs shall not be allowed where the latter have transferred the property under the terms of a trust, as they were charged to do; but that in these instances actions shall be granted for and against those to wliom the property has been transferred under the trust created by the will, in order that the last wishes of deceased persons may be more thoroughly executed, so far as the remainder of the estate is
(3) By this Decree of the Senate, the doubts of those who have determined to refuse to accept the estate, either through apprehension of litigation or on account of fear are removed.
(4) But, although the Senate intended to come to the relief of heirs, it also comes to the relief of the beneficiary of the trust. For it is granted to the heirs, since they can avail themselves of an exception if suit is brought against them; and if the heirs bring suit they can be barred by an exception which the beneficiaries of the trust have a right to avail themselves of, hence there is no doubt that their interests have likewise been consulted.
(5) This Decree of the Senate applies whether anyone who is either a testamentary heir, or the heir-at-law, was charged to transfer the estate.
(6) It also applies to the case of the will of a soldier who is under paternal control, and who has the right to dispose of his castrense peculium or his quasi castrense peculium.
(7) The possessors of property under the Praetorian Law, or any other successors, can transfer an estate by virtue of the Trebellian Decree of the Senate.
(8) The question arises whether he to whom an estate has been transferred by the terms of a trust under the Trebellian Decree of the Senate can himself assign his rights of action by the same Decree of the Senate, where he has been charged to transfer the estate. Julianus says that he also can assign his rights of action. This opinion Marcianus also approves, and we ourselves adopt it.
(9) Where, however, anyone has been charged to transfer an estate to two persons, to one of them absolutely or within a certain time, and to the other under a condition, and he alleges that the estate is probably insolvent, the Senate decreed that the entire estate should be transferred to the party to whom the heir was asked to transfer it absolutely, or within a certain time.
If, however, the condition should be fulfilled, and the other beneficiary should desire to accept his share, the rights of action will pass to him by operation of law.
(10) Where a son or a slave is appointed an heir, and is charged to transfer the estate, and the master or father should transfer it, the rights of action will pass to the beneficiary of the trust, by virtue of the Trebellian Decree of the Senate. This will be the case even if the parties are charged to transfer the property in their own names.
(11) The same rule applies where a father is charged to transfer the estate by the son himself.
(12) Where the guardian or curator of a minor or an insane person is charged to transfer an estate, the Trebellian Decree of the Senate will undoubtedly apply.
(13) Where a minor was charged to transfer the estate to the guardian himself, the question arose whether he could do so by the authority of his guardian. It was decided by the Divine Severus that he could not transfer the estate to his guardian by the authority of the latter, because no one can act as judge in his own case.
(14) Still, the estate of a minor can be transferred by him to his curator, as the authority of the latter is not necessary to render the transfer legal.
(15) Moreover, where an association or a corporate body is charged to transfer an estate, the transfer will be valid where it is made to each of the different members individually, by the vote of those who belong to said association or corporate body; for, in this instance, each one of them is considered to have made the transfer to himself.
(16) Where the heir is asked to transfer the estate, after having reserved a tract of land for himself, he can do so under the Trebellian Decree of the Senate; nor does it make much difference if the land given to him has been pledged, as a personal action for the recovery of the money loaned will not follow the land; but he will be liable to whom the estate has been transferred under the Trebellian Decree of the Senate. Security must be furnished by the beneficiary of the trust to the heir so that the heir will be indemnified if the land should happen to be evicted by the creditor.
Julianus, however, does not think that security should be given, but that an estimate ought to be made of the value of the land without the security, that is to say, how much it will sell for if security were not furnished; and il, where no bond had been given, it will sell for as much as the fourth part of the property would amount to, the rights of action will pass by the terms of the Trebellian Decree of the Senate; but if it would bring less, then, the deficiency having been reserved, a transfer of the remainder should likewise be made, in accordance with the Trebellian Decree of the Senate.
This opinion disposes of many questions.
(17) Where a man who had an estate of four hundred aurei bequeathed three hundred, and, having deducted two hundred, charged his heir to transfer the estate to Seius, will the beneficiary of the trust be liable for the three hundred aurei, or will he only be liable in proportion to the amount of the estate which came into his hands? Julianus says that a demand for three hundred aurei can be made upon him, but that an action will not be granted against the beneficiary of the trust for more than two hundred, and for a hundred against the
This opinion of Julianus seems to me to be correct, in order that the beneficiary may not be liable for any more than the amount which he received from the estate. For no one is obliged to pay more of a legacy than the amount which came into his hands from the estate, even though the Falcidian Law may not apply, as is stated in a Rescript of the Divine Pius.
(18) Finally, no more shall be paid as legacies under the will of a soldier than his estate amounts to, after deducting the indebtedness; and still the beneficiary of the trust will not be permitted to reserve
(19) Hence Neratius says that if the heir is charged to transfer the entire estate without deducting the Falcidian portion, and he who is entitled to receive it is charged to transfer it to a third party, the heir cannot deduct the fourth from what the second beneficiary receives, as the testator only intended that the first beneficiary of the trust should enjoy his liberality.
(20) Where a testator, having property worth four hundred aurei, left two hundred to Titius, and charged his heir to transfer half the estate to Sempronius, Julianus says that the transfer should be made according to the terms of the Trebellian Decree of the Senate, and that the action of the legatee should be divided so that he can bring one suit against the heir for a hundred aurei, and one against the beneficiary of the trust for the other hundred. Therefore, Julianus holds that in this way the heir will obtain his fourth unimpaired, that is, the hundred aurei without deduction.
(21) Julianus also says that if anyone who has an estate of four hundred aurei should bequeath three hundred, and, having deducted a hundred, should charge his heir to transfer the estate to Sempronius, it must be said that if the estate is transferred after the deduction of the hundred aurei, an action to recover the legacy will be granted against the beneficiary of the trust.
2. Celsus, Digest, Book XXI.
Where a man who left four hundred aurei bequeathed three hundred to Titius, and charged his heir to transfer the estate to you, and the heir, who suspected the estate of being insolvent, entered upon it by order of the Praetor and transferred it, the question arose, what do you owe to the legatee? It must be held that, as the presumption is that the testator intended the trust to be transferred burdened with the legacies, you ought to pay the entire three hundred aurei to Titius; for the heir should be understood to have been requested to appoint you in his stead and to pay you the balance, and, after having performed all his duties with reference to the estate, that is to say, after he had paid the legacies, he would have been entitled to what was left if he had not been charged to transfer the estate to you. How much then would he have left? A hundred aurei, certainly. These are what he was charged to pay you, and therefore, in order to calculate the portion due under the Falcidian Law, as the heir was charged to pay three hundred aurei to Titius, and a hundred to you, the result will be that if he should enter upon the estate voluntarily, he must pay two hundred and twenty-five to Titius and seventy-five to you. Hence Titius will not be entitled to any more than if the heir had entered upon the estate without having been compelled to do so by the Praetor.
3. Ulpianus, Trusts, Book III.
Moreover, Marcellus, on Julianus, states with reference to this case that, if the testator had said that the heir should be charged with the legacies, and the latter voluntarily entered upon the estate, the calculation of the Falcidian portion must be made just as if four hundred aurei had been bequeathed under the trust, and three hundred had been left as a legacy; so that the three hundred ought to be divided into seven parts, to four of which the beneficiary of the trust would be entitled, and the other three would go to the legatee.