ENACTMENTS OF JUSTINIAN.
|~ Book XXXIV ~|
( S. P. Scott, The Civil Law, VII, Cincinnati, 1932 ).
1. Ulpianus, On All Tribunals, Book V.
Where maintenance is bequeathed, it can be said that water is also included in the legacy, if the bequest is made in the region where water is ordinarily sold.
2. Marcianus, Institutes, Book VIII.
Where anyone bequeaths maintenance to slaves whom he has enfranchised, even though the slaves themselves were bequeathed, and the legatees were requested to manumit them, they will be admitted to the benefit of the trust; as the Divine Severus and Antoninus stated in a Rescript.
(1) And even if the property from which the maintenance is derived should be forfeited to the Treasury, the maintenance must still be furnished, just as if it had passed to any successor whomsoever.
3. Ulpianus, On the Duties of Consul, Book II.
When bequests for maintenance are made to freedmen judges are accustomed to divide with the latter in proportion to the number of heirs, in order that they may not be compelled to obtain their means of support in small quantities from each of them; and this division should be sustained, just as if the head of the household himself had divided the freedmen. They have adopted the practice of selecting one heir, by whom the means of support shall be provided, either in compliance with the wishes of the deceased, or according to their own judgment, as the following Rescripts show: "I send you a copy of the petition presented to me by the freedmen of Favilla, for the reason that many persons, in their wills, order necessaries to be furnished to their freedmen, which, as they are of small amounts, are reduced to almost nothing where there are several heirs to an estate. Hence, I think that you will act properly, if, after having called together the heirs of Favilla, or their representatives, you decide to which one of them a sum of money shall be given, out of the interest of which the maintenance of the said freedman may be paid for. He who receives this money must furnish security to those who contribute it, that, in case any one of said freedmen should die, or should, in any other way, cease to be a citizen, he will refund as much of the principal as the computation pro rata may amount to." The Divine Pius stated, as follows in a Rescript addressed to a certain Rubrius Telesphorus: "The Consuls, after having called together all those who have been charged with furnishing you with maintenance under the terms of the trust, shall determine whether all of the legatees shall receive what is due them from one of the heirs, or whether the distribution shall be made pro rata, and who shall be notified, and by whom this shall be done. If anything should be due from the testator to you on this ground, the Treasury also shall pursue the same course; and know now that the shares of those who are insolvent will not cause the burden of the remaining heirs to be increased."
4. Modestinus, Opinions, Book X.
"I desire the lands which I have in the island of Chios to be given to my freedmen and freedwomen whom, during my lifetime, I have manumitted by my will or my codicil, or whom I may manumit hereafter, in order that they may obtain from them their food and clothing, as they did while I was living." I ask what signification these words have; do they mean that the freedmen shall themselves obtain their support from the said lands, or that they shall receive from the heir their food and clothing, in addition to what is obtained from the lands? And was the ownership or the usufruct of the lands left? If the ownership was left, and a sum greater than what is needed for the supply of food and clothing should be obtained from the income of the lands, will the excess belong to the heir of the patron ? And if some of said freedmen should die, will their shares pass to the surviving beneficiaries of the trust; and if they should die after the time appointed for the trust to take effect, will their shares belong to their heirs, or will they revert to the heirs of the testator? Modestinus answered: "It seems to me that these lands, and not merely the usufruct in the same, were left to the freedmen, in order that they might have full control over them; and, therefore, if anything more than is necessary for their support is obtained from the income of said lands, this will belong to the freedman. Even if one of the beneficiaries of the trust should die before it takes effect, his share will belong to the other beneficiaries, and those who die after the trust becomes operative will transmit their shares to their heirs."
(1) Lucius Titius, by his will and without imposing any condition, ordered food and clothing to be furnished to his freedmen and freedwomen by his children who were his heirs. I ask if said freedman should institute proceedings without communicating with the children of their patron, whether they can obtain their food and clothing. Modestinus answered that there was nothing in the case stated to prevent suit being brought by them, where the legacy was unconditionally bequeathed by will.
5. The Same, Opinions, Book XI.
The following words were inserted in a will: "You will furnish food to all our freedmen according to your judgment, as you are aware with what affection I regard them." Also, in another place, the testator said, "I commit Prothymus, Polychronius, and Hypatius, to your care, in order that they may live with you, and I ask you to provide them with food." I ask whether food should be given to all of them, or only to those whom he recommended to his heirs, and ordered to reside with them. Modestinus answered that, according to the case stated, subsistence was left to all of the freedmen, the amount of which was to be determined by the judgment of a good citizen.
6. Javolenus, On Cassius, Book II.
Where maintenance is bequeathed, food, clothing, and lodging are included, because without these the body cannot be sustained; but things which have reference to instruction are not embraced in the legacy,
7. Paulus, Opinions, Book XIV.
Unless it is proved that the testator intended otherwise.
8. Papinianus, Opinions, Book VII.
It has been decided that where the principal of a sum of money, intended for the support of freedmen, has been left as a preferred legacy to one of several heirs, in accordance with the will of the deceased, he cannot be compelled to give security to deliver to his co-heirs the shares of any of the freedmen who may die. Therefore, in this instance, no action on the ground of money not due will lie, nor will a praetorian action be granted, even after the death of all the freedmen. The case is different, however, where the heir has been directed to make a distribution of the legacy; for this matter only requires momentary attention, but the necessity of furnishing support extends over months and years, and is also a source of trouble to the party responsible for it.
9. The Same, Opinions, Book VIII.
A testator, having appointed two heirs, inserted the following provision into his will: "I request you, Gaius Seius, out of whatever you may obtain from my estate, to give to such-and-such of my foster-children ten aurei apiece, and I desire you to retain an equal sum in your hands, in order to support them with the interest thereof; and to pay the remainder to Numerius, our common freedman." The opinion rendered was that, although Gaius Seius could not sell the property of the estate, because another heir had been appointed, still, he had a right to claim the money which has been left to the foster-children in order that he might keep it and pay it to them, subject to the provisions of the Falcidian Law; but this will not apply to any excess of the sum bequeathed.
(1) I have thought that where a patroness left to a certain freedman twenty aurei, payable annually, and a certain quantity of wheat and wine to be delivered every month, the benefit of a trust under which she bequeathed the same amount of food and clothing to others that she had been in the habit of furnishing them during her lifetime, could be legally claimed.
10. The Same, Opinions, Book IX.
Where one of several heirs was directed to take a certain sum of money as a preferred legacy, to be used for the purpose of supporting the freedmen of the testator, it was decided that the heir of the heir should also be permitted to receive the said preferred legacy. If, however, the said heir should himself have several heirs, the wishes of the deceased will, at first sight, appear to have been disregarded, but no other course should be adopted. For what if the testator did not desire to charge the other heirs, and having in his mind the welfare of his freedmen, and desiring to have the distribution made quietly and honorably by a party who was solvent, preferred to have this done by a single member of the household? Therefore, the maintenance should be furnished by all the heirs of the heir aforesaid.
(1) Where a slave is manumitted unconditionally by the terms of a trust, support must be furnished for the past time, even though he may have obtained his freedom after the others, and the heir was not in default in granting it; for the cause of the delay must be ascertained where a question arises with reference to interest due under a trust, but not where the trust itself is concerned.
(2) Where maintenance was left to a daughter, the amount of which is to be determined in accordance with the judgment of a reliable citizen, I gave it as my opinion that the bequest with which the son, who was the heir, was charged should correspond with the dowry payable at the time of her marriage, which the father had left to his said daughter whom he had disinherited, according to her increase in age, and not in proportion to the value of his estate.
11. Paulus, Questions, Book X.
A certain individual to whom support had been bequeathed, payable annually, having been condemned to the mines, was afterwards restored to his rights by the favor of the Emperor. I held that he had lawfully received the support for the preceding years, and that he was entitled to it for those which followed.
12. The Same, Opinions, Book XIV.
Lucius Titius left food and clothing for the support of his freedmen, devoting a certain sum of money annually to that purpose, and made the following provision in the last part of his will: "I leave such-and-such and such-and-such tracts of land in trust for the benefit of my said freedmen, in order that they may receive the maintenance above mentioned from the income of the same." The question arose, if at any time the income from said lands should be less than what was required to provide food and clothing for the freedmen, whether the heirs should not be burdened with making up the deficiency; or if, in any year, there should be an excess, would they be entitled to this to supply what they had lost during the former year? Paulus answered that the food and clothing must be furnished entirely to the freedmen of the deceased, and that the testator did not intend to have the legacy which he bequeathed to them either increased or diminished because he afterwards desired the said lands to be held by way of pledge, so that the freedmen might receive their support from the income of the same.
13. Scaevola, Opinions, Book IV.
A man bequeathed three hundred aurei to Gaius Seius, in order that out of the interest of the said sum he might provide his freedmen with food and clothing, as he had specified; but afterwards, by a codicil, he forbade the said sum to be given to Gaius Seius, but desired it to be paid to Publius Maevius. I ask whether Maevius was required to execute the trust for the benefit of the freedmen. I answered that Maevius, according to the intention of the testator, appeared to be charged with the duties for which the said sum of money was left, which were transferred to him by the codicil; unless he could prove that some other obligations had been imposed upon him by the testator which are not at present under discussion.
(1) The Emperor Antoninus Pius to the freedman of Sextia Basilia, Greeting: "Although the terms of the will indicate that you shall be furnished with food and clothing as long as you reside with Claudius Justus, still, I think that the intention of the deceased was that this should be given to you after the death of Justus." The opinion was rendered that this clause must be understood to mean that the requirement to provide support shall be perpetual.
(2) I, myself, was consulted with reference to the following clause in a will: "And I wish that they shall always remain with you." I ask, where freedmen have been manumitted by the heir, and remained with him for a long time, but finally departed because the services he required of them were too severe; whether they would be entitled to the support with which he refused to furnish them, unless he had the benefit of their services. The answer is that, according to the facts stated, he would be obliged to furnish them support.
14. Ulpianus, Trusts, Book II.
Mela says that where maintenance is bequeathed to a boy or a girl, it must be furnished till he or she reaches the age of puberty. This, however, is not correct, for they should only be provided with it as long as the testator wished, and if his intention was not evident, they must be supported for life.
(1) But if maintenance is bequeathed until the age of puberty, and anyone desires to follow the former custom with reference to boys and girls, he is hereby informed that Hadrian decided that boys shall be supported until their eighteenth year, and girls until their fourteenth. Our Emperor stated in a Rescript that this rule promulgated by Hadrian must be observed. But although the age of puberty is not ordinarily fixed in this way, still, it is not illegal for it to be so established in the individual instance of the matter of support, where natural affection is involved.
(2) Where a testator bequeaths maintenance to the same extent that he furnished it during his lifetime, only such provision must be made as he was accustomed to make at the time of his death. Therefore, if different amounts were furnished at different times, that amount must be considered which was furnished just prior to the death of the testator. But what would be the case if the testator provided less at the time that he made his will, and more at the time of his death, or vice versa? In this case it must be held that the amount must be governed by what he provided last.
(3) A certain man bequeathed to his freedmen food and water by a trust. Advice was taken with reference to the trust, as the question was raised in that part of Africa or Egypt where water was sold. Therefore, I stated that the benefit to be derived from the trust depended upon whether the party who left it had cisterns or not, and whether it was included in the trust in order to provide for any amount which the beneficiary might have to pay for water for himself, and whether the trust did not appear to be void, as it was not the bequest of a servitude upon a tract of land for the benefit of a person who was not the possessor of one that adjoined it; for while the drawing of water, and the right of driving cattle to water, is a personal servitude, still, it is void if left to one who is not the owner of neighboring property. Under the same head are classed the right of conveying burdens, or of pressing grapes, or of threshing wheat and other grain on the premises of someone else; but in this instance, the right to obtain water is bequeathed for the benefit of the person himself.
15. Scaevola, Digest, Book XVII.
A testator, having appointed his son his heir, by a codicil charged him with the payment of ten aurei to Seia, and provided for a foster-child as follows: "I desire forty aurei to be given to my foster-child, Maevius, which sum I ask Seia to take charge of, and to pay to Maevius the interest on the same at the rate of five per cent per annum, until he reaches the age of twenty years; and I also ask her to take charge of him, and rear him." The question arose, if Seia, after having received her legacy, should refuse or neglect to take charge of the money left for the benefit of the foster-child, whether she would be compelled to assume the obligation of furnishing support for him from the time of the death of the testator. The answer was that, according to the facts stated, she would be compelled to provide support, as she had been charged with the execution of the trust. It was also asked whether the heir of Seia would be required to furnish Maevius support until he reached his twentieth year? The answer was that he would be required to do so.
(1) A testator bequeathed to his concubine eight slaves belonging to his country seat, and directed her to provide them with food as follows: "I wish the said slaves whom I have bequeathed, as above stated, to be furnished with food by my heirs, just as they were during my lifetime." As the slaves during the life of the testator were always employed in farm labor during harvest, and when the grain was threshed, and, with the exception of the steward in charge of the land at that time, never received any food provided by their master; the question arose whether the heir would be obliged to furnish the concubine, at that time also, that is to say during the season of harvest and threshing, with provisions for the said slaves belonging to the farm. The answer was that this must be left to the court having jurisdiction of the case. Claudius: This is reasonable, for if the slaves were to be employed in the same way by a concubine, as they had been by the testator, it would not be necessary for food to be furnished them during the time in question. If, however, they had been bequeathed for service in the city, food must be furnished them.
(2) Titia, at the time of her death, provided as follows in her will: "I wish the food and clothing which I have been accustomed to furnish them during my lifetime to be given to all my freedmen and freed-women." As during her lifetime she only furnished food and clothing to three of them, which was shown by her accounts, the question arose whether her heir could be sued by the remaining freedmen, or whether he would only be liable to the three who were found by the accounts of the testatrix to have previously received food and clothing. The answer was that he would be liable to all.
16. The Same, Digest, Book XVIII.
A certain testator bequeathed food and clothing to his freedmen. The question arose, as the testator had ordered the trust to be discharged by Moderatus, one of his heirs, whom he mentioned by name, whether Moderatus alone would be responsible so that his heirs would not be liable after his death. The answer was that his heirs would be liable.
(1) A testatrix left to her freedmen and freedwomen, whom she also manumitted by her will and codicil, suitable maintenance such as she had furnished during her lifetime, and she also directed certain lands to be given to all of them. The question arose whether the freedman of a freedman of the father of the testatrix, whom she was accustomed to address as follows: "To our freedman, the son of Rufinus," should be admitted to share in the legacy. A letter was also sent by her to the magistrates of her native city, in which she requested that a salary be paid to him out of the public funds, for the reason that he was a physician, and stated that he was her freedman. The answer was that this point should be decided by the court having jurisdiction of the matter; and that the freedman could be admitted to share in the benefit of the trust, if the testatrix, during her lifetime, had provided him with support; otherwise he could not.
(2) A testator bequeathed ten aurei to his freedwoman, Basilica, which he wished to remain in the hands of his freedmen Epictetus and Callistus, to be paid to Basilica with interest at the rate of five per cent, until she reached the age of twenty-five years, so that she might be supported by the interest of the money according to her age. The question arose whether Basilica was entitled to support under another clause of the same will, by which the testator, in general terms, left food, clothing, and lodging to his freedmen and freedwomen. The answer was that, according to the facts stated, she would not be entitled to it, unless it could be proved that it was given to her along with the others. Claudius: Because the testator intended the interest of a sum of money, which he has especially bequeathed to her, as a preferred legacy, to be employed for her support.
(3) A certain individual, who had held all his property in partnership with his wife for more than forty years, left her and a grandson by a son of his, heirs to equal shares of his estate, and provided as follows: "I also bequeath to my freedmen, whom I have manumitted during my lifetime, what I have been accustomed to furnish them." The question arose whether those slaves who had been manumitted by both of the parties while the partnership existed, and had become the freedmen of their joint-owners, could, under the terms of the trust, claim the entire amount which they had been accustomed to receive during the lifetime of the husband. The answer was that they were not entitled to any more than what the husband was accustomed to furnish as his share.
17. The Same, Digest, Book XIX.
A testator left certain slaves for the guardianship of a temple, and charged his heir with a legacy for their benefit as follows: "I ask, and I charge you in memory of me, to give and furnish to my footmen whom I have left to take care of the temple, such-and-such a quantity of food, every month, and such-and-such an amount of clothing every year." As the temple had not yet been erected, the question arose whether the slaves were entitled to receive their legacy from the day of the death of the testator, or from the time when the temple was completed. The answer was that it would be the duty of the judge to compel the heir to furnish the slaves with what was left to them until the temple should be built.
18. The Same, Digest, Book XX.
A man bequeathed to his freedmen, whom he had manumitted by his will, ten aurei, payable monthly, for their support; and afterwards, in general terms, bequeathed by a codicil seven aurei to all his freedmen, payable monthly for food, and ten aurei, payable annually, for the purpose of providing them with clothing. The question arose whether the heirs were charged with one trust under the terms of the will, and with another under the codicil, for the benefit of the freedmen. The answer was that, in the case stated, there was reason why the heir should not furnish what was left by the codicil, for by the bequests contained in the latter, the testator seems to have revoked those relating to food which he had bequeathed by his will.
(1) A testator having manumitted his slaves by his will, left them, in trust, food for their annual maintenance, if they should reside with his mother. The mother survived her son three years, but did not furnish the freedmen either food or clothing, because they did not demand the execution of the trust; and the daughter, who subsequently became her mother's heir, during the fourteen years which she lived, was not applied to for payment of the legacy by the slaves. The question arose whether, after the death of the daughter, the freedmen could demand from the last heir, for the past, as well as for the future time, the legacies which had been left to provide them with food and clothing. The answer was that, if the condition had been complied with, there was nothing in the case stated to prevent them from presenting the claim.
(2) A testator wished Stichus to be manumitted by his heirs, and directed food and clothing to be furnished him by Seius, if he should reside with him, and then he added the following words: "I also ask you, Seius, when you reach the age of twenty-five years, to purchase a commission in the army for him, if he should not leave you before that time." As Stichus obtained his freedom immediately, and Seius died before he reached the age of twenty-five years, the question arose whether the commission in the army should be purchased for Stichus by those who acquired the estate of Seius; and if it was decided that this should be done, whether it should be purchased without delay, or at the time when Seius would have completed his twenty-fifth year, if he had survived. The answer was that, as was decided that the commission should be purchased, it was not necessary for this to be done before the time fixed by the testator had expired.
(3) Where his posthumous children, together with the father and mother of a testator, were appointed his heirs, and then he, having made a substitution, manumitted the slaves who were his stewards, and bequeathed them their peculium, as well as an annual sum for their subsistence, and also left legacies to certain of his freedmen, and to strangers; and finally, a daughter having been born to him, after his will had been executed, he inserted the following provision in a codicil: "I wish that any property which, previous to this time, I have bequeathed to anyone to be given to them; and I ask them to deliver the third part of the same to my daughter Petina." A pupillary substitution having been made, he desired the freedmen who had not reached puberty and whom the testator had charged his parents to liberate, to receive, in addition to the bequest of food and clothing, as much again as he had left them in money. As his daughter survived the opening of the will and the codicil, but afterwards died, and transmitted to her heirs the trust by which she was charged to deliver the third part of the legacy, the question arose whether the third part of the food and clothing could also be claimed under the terms of the trust. The answer was that it could not. It was likewise asked whether the third part of the property bequeathed in trust by the codicil would belong to the daughter. The answer was that it would not. Inquiry was also made whether the provision included in the substitution by which the freedmen who had not yet reached puberty would be entitled to as much again as they had been left in money, and the third part of the legacies bequeathed by will having been deducted, the calculation should be made so that two-thirds of the amount, in addition to what was left by the codicil, would be payable; the third part of which legacies the testator desired should belong to his daughter. The answer was that the entire amount mentioned in the substitution should be paid.
(4) A certain testator left food and clothing in trust to his freedmen, and added: "I desire that they, my freedmen, shall reside where my body is buried, so that every year they may celebrate the anniversary of my death, at my tomb, in the absence of my daughters." The question arose whether support should be furnished to one of the freedmen who, after the death of the testator, did not present himself to the heirs, and refused to reside near the tomb. The answer was that it should not be furnished him.
19. The Same, Digest, Book XXII.
The following provision was inserted into a will, "I desire that food, and whatever else I was accustomed to give my freedmen, shall be furnished them by my heirs." One of the said freedmen, with the consent of his patron, was absent for four years before the death of the testator, for the purpose of transacting his private business, and on this account he did not, at the time of the testator's death, receive the food which he formerly had received. Nevertheless, the patron left him a legacy of five aurei by the same will, just as he did to the others, whom he had manumitted during his lifetime. The question arose whether this freedman was also entitled to the food and other articles which were bequeathed to the remaining freedmen. The answer was, why not?
20. The Same, Opinions, Book III.
"Let Stichus, the grandson of my nurse, be free, and I also wish ten aurei to be paid to him every year." Then the testator, having set aside certain credits for his benefit, bequeathed to the said Stichus his wife and children, and to the latter what he had furnished them during his lifetime; and afterwards, under another head, he directed to be given to all of his freedmen what he, while living, had been accustomed to furnish them. I ask whether Stichus will, in addition to his legacy, be entitled to maintenance. The answer was that, according to the facts stated, he will not.
(1) The same testator having charged the municipality of a city to provide support for his freedmen of both sexes, to be paid out of certain lands which he devised to it; I ask whether the daily allowance and the clothing which the testator had, while living, given to Stichus and his wife and children, should be given to them by the appointed heir, or by the municipality. The answer is that, in accordance with the most liberal interpretation of the will, it must be said that they should be furnished by the city.
(2) Titia bequeathed the usufruct of a tract of land to Maevius, and charged him to pay Pamphila and Stichus a hundred sesterces annually, out of the income of said land, as long as they lived; I ask whether, after the death of Maevius, the heir of Titia will be required to provide support. The answer is that there was nothing in the case stated which would require it to be furnished by the heir of Titia, or by the heir of the legatee either; unless it was clearly proved that the testator intended it to be furnished after the extinction of the usufruct, provided that the amount obtained from the usufruct should be sufficient.
(3) A mother, having appointed her son her heir, granted freedom to her slave Pamphilus, under a trust, and bequeathed him five aurei for the purpose of providing him with food, and fifty aurei, payable annually, for his clothing, on condition that he lived with her son. I ask whether the support must be furnished after the death of the son. The answer is that if the condition was complied with, it must be furnished after his death.
21. Ulpianus, Trusts, Book II.
Where a daily allowance or food is bequeathed, it is clear that neither lodging, clothing, nor shoes, are to be furnished, as the testator only had the provision of food in his mind.
22. Valens, Trusts, Book I.
Where maintenance is left by the terms of a trust, and the amount is not stated, what the deceased was accustomed to furnish the legatee must be learned before anything else is done, and then what he left to others of the same rank must be ascertained. If neither of these things can be found out, the amount must then be determined according to the means of the deceased, and the affection which he entertained toward the party for whose benefit the trust was created.
(1) A testator, who was already under obligations to provide support for the freedmen of his brother, bequeathed to them certain vineyards by his will, with the following addition: "That they may have them in order to provide themselves with food." If he left them these vineyards instead of the support which he was obliged to provide, they should not be transferred under the terms of the trust, unless the heirs are freed from the obligations imposed by the will; for if this should fail to be done, and he should afterwards bring suit under the will, the heir could protect himself by an exception on the ground of fraud; that is to say, if the vineyards were not worth less than the amount furnished for support. The addition, "That they may have them in order to provide themselves with food," rather shows the reason for making the bequest, than an intention to establish an usufruct.
23. Paulus, On Neratius, Book IV.
you are asked to educate someone, you can be compelled to furnish
him with the necessaries of life. Paulus: Why is the scope of a legacy
providing for support more extensive where it is stated that clothing
and lodging are included? This is not the case, for both are equal.
Where clothing in general is left to one person, and women's garments separately to another, the women's garments will be removed and given to the party to whom they were specially bequeathed, and the remainder will belong to the other. The same rule applies with reference to silver articles included in ornaments, where ornaments suitable for women are bequeathed to one person, and all silver articles are bequeathed to another. Likewise, where two marble statues are left to you, and afterwards all the marble belonging to the testator is left to another legatee, no marble statue, excepting those two, is left to you. The same rule applies where the urban slaves of a testator are bequeathed to you, and the steward of the testator is bequeathed to me.
(1) Where an heir is directed to deliver a certain weight of silver to someone, he is discharged from liability by operation of law if he pays him money, provided that the money is of the same value as the silver; which opinion is correct, if a certain kind of silver was not bequeathed.
2. Africanus, Questions, Book II.
Where anyone directed you to purchase certain ornaments for the use of his wife, and he then, as is customary, left his wife everything which he had provided for her use; and you, after the death of the testator and while you were not aware that he was dead, make the purchase, the woman will not be entitled to the ornaments, since the words employed have reference to the time of the testator's death. If, however, you should make the purchase during the lifetime of the testator, but after the death of his wife, it may not improperly be held that the legacy will be void, since it cannot truly be maintained that the ornaments were provided for the use of one who is already dead. The same must be said in the case of a woman who is still living, but has been divorced, when the question is asked whether she is entitled to what has been purchased after her divorce, as it does not appear to have been provided for her use as a wife.
3. Celsus, Digest, Book XIX.
A certain man left his wife everything which he had provided for her use, and obtained a divorce from her before his death. Proculus says that she will not be entitled to the property, because it appears that it was taken from her. This, however, is a question of fact, for even though he may have repudiated her, he could not have intended to deprive her of the legacy.
4. Paulus, On the Edict, Book LIV.
A certain individual sent his freedmen into Asia for the purpose of buying purple, and by his will bequeathed his purple wool to his wife. Servius gave it as his opinion that the goods which the freedman had purchased during the lifetime of the testator belonged to her.
5. Africanus, Questions, Book II.
The following is contained in the Second Book of Questions by Phuphidius: "If a woman should direct you to purchase pearls for her use, and you should do so after her death, but while you thought that she was still living," Atilicinus denies that the pearls were left to a person to whom the woman made the following bequest: "I bequeath all the jewels which have been or shall be obtained for my use," for they cannot be considered to have been obtained for her use as she was already dead at the time when the purchase was made.
6. Marcellus, Opinions.
Seia charged her heir, Publius Maevius, with a bequest as follows: "I give and bequeath to Antonia Tertylla such-and-such a weight of gold, and my large pearls set with hyacinths." She afterwards disposed of the pearls, and at the time of her death did not leave any among her jewels. I ask whether the heir will, under the terms of the trust, be compelled to furnish the value of property which does not form part of the estate. Marcellus answers that he will not be required to do so.
(1) I also ask, if it can be proved that Seia converted her necklace of pearls and hyacinths into some other kind of ornament, which afterwards became more valuable through the addition of other jewels and small pearls, whether the legatee can demand the said pearls and hyacinths; and whether the heir will be compelled to remove them from the other jewelry and deliver them. Marcellus answers that the demand cannot be made. For how can a legacy or a trust be held to exist when what is given by a will does not retain its original character? For the bequest is, as it were, extinguished, so that in the meantime it is lost sight of, and hence by this dismemberment and change the intention of the testatrix also appears to have been altered.
(2) Lucius Titius made the following provision in his will, "I charge my heir to erect a public portico in my native town, in which I desire my silver and marble statues to be placed." I ask whether the legacy is valid. Marcellus answers that it is, and that the bequest of the labor, and of the other things which the testator desired to be placed there, will belong to the municipality, for he understood that the city would receive some adornment therefrom.
7. Paulus, On Plautius, Book VIII.
When a bequest is made as follows, "Let my heir be charged to give my clothing and silver plate," whatever belonged to the testator when he executed his will will be considered to have been bequeathed; for the reason that the present time is always understood to have been meant, where something else is not included; for when he says, "My clothing and silver plate," by the pronoun "my" he indicates the present and not the future. The same rule will apply where anyone makes a bequest of "My slaves."
8. The Same, On Plautius, Book IX.
Plautius: A woman made a bequest as follows: "I charge my heir, whoever he may be, to give my clothes, my toilet articles, and my feminine ornaments to Titia." Cassius says, if it cannot be ascertained what the intention of the testatrix was, that all her clothing will be considered to have been bequeathed, according to the terms of the will. Paulus: Javolenus says the same thing, because, as he remarks, it is probable that the testratrix intended to limit her bequest to jewels, to which she gave the designation "feminine ornaments." It may be said, in addition, that the term "feminine" is not, in accordance with the proper manner of speaking, applicable to either clothing or toilet articles.
9. Modestinus, Rules, Book IX.
Where a certain weight of gold or silver is bequeathed, and the kind is not indicated, not the material itself, but its value at the present time must be delivered.
10. Pomponius, On Quintus Mucius, Book V.
Quintus Mucius says that where the head of a household bequeaths to his wife vases, clothing, or anything else whatsoever, as follows, "Which has been purchased and provided for her use," he is held to have bequeathed what was obtained for her individually rather than for their common use. Pomponius: This is true, not only where the articles were procured for the use of both husband and wife, but also when this was done for that of their children, or anyone else; as such a provision would seem to indicate that the property was acquired for the private use of the wife herself. But when Quintus Mucius stated that vases, clothing, or anything else is included, the falsity of what we have stated appears to be established; since, as a rule, there is a great deal of difference where articles of this kind are generally or specially bequeathed, for if they are bequeathed in general terms (as, for instance, "Which have been procured for the use of my wife"), his explanation is correct. If, however, the subject of the bequest should be described as follows, "Such-and-such a purple garment," by which a certain garment was indicated, even though the words, "Which I have purchased or intended for her use," were added; for the reason that it was neither purchased nor intended for, nor given to her for her use, the legacy will undoubtedly be valid, because when a certain article is left, a false description of the same does not annul the legacy; just as if the following had been written, "Stichus, whom I purchased at the sale of Titius;" for if the testator did not purchase him at all, or bought him at some other sale, the legacy will, nevertheless, be valid. It is clear that if the legacy was bequeathed as follows, "The vases, or clothing, or articles, intended for the use of my wife," then the opinion of Quintus Mucius will also be correct in this instance. It must be observed that even if the articles mentioned belonged to another, but the testator was under the impression that they were his, the heir will be obliged to furnish them.
11. Proculus, Epistles, Book V.
Where anyone bequeaths gold, silver, and pearls which are set in the gold, gold in which neither jewels nor pearls are set will be held to have been bequeathed.
12. Papinianus, Questions, Book XVII.
If the heir should deface a painting which was bequeathed, and deliver the board on which it was painted, it may be said that an action will still lie under the will, because the legacy consisted of a painting and not of a board.
13. Scaevola, Digest, Book XV.
A certain man made a bequest to his wife as follows: "I wish all the toilet-articles and jewels, and whatever else I have given or donated to my wife, or acquired, or made for her use during my lifetime, to be given to her." The question arose whether a four-wheeled carriage for sleeping purposes, together with its mules, which the wife had always made use of, was included in the legacy. The answer was that if it had been acquired for her use, she was entitled to it. It was also asked whether, under the same clause, the garments which the testator had purchased for the female slaves or the litter-bearers of his wife should also be given to her. The answer was that they should be given.
14. Pomponius, On Sabinus, Book V.
If I bequeath a statue, and afterwards add an arm to it taken from another, the entire statue can be claimed by the legatee.
15. Scaevola, Digest, Book XV.
A testator bequeathed a certain kind of gold and silver to Seia, and made the following request of her: "I ask you, Seia, at the time of my death, to deliver any gold or silver which I have specifically bequeathed to you, to So-and-So, my slaves, and the usufruct of said property will be sufficient for you while you live." The question arose whether the usufruct alone of the gold and silver should be given to the legatee. The answer was that, in accordance with the facts stated, the ownership of the articles was also bequeathed under the terms of the trust.
16. The Same, Digest, Book XVIII.
A mother appointed her daughter her heir while she was still under paternal control, substituted her father Maevius for her, and made the following provision in her will: "Whoever my heir may be, I charge him not to sell any of my jewelry, or my gold or silver-ware, or the clothing, which I make use of; but let them be kept for my daughter." The daughter having refused to accept the legacy, and the father, who was the heir under the substitution, having died intestate, the question arose whether she could still demand the execution of the trust. The answer was that, according to the facts stated, it appeared that the execution of the trust legally devolved upon the father's successor. Claudius: Because, by the term "to keep," which was used by the testatrix, the trust seems to have been deferred until the party for whose benefit it was created should be released from paternal control.
17. Ulpianus, On Sabinus, Book XXI
Where a jewel set in a ring, or any other ornaments or articles which are joined together are bequeathed, this is in accordance with law, and they should be separated and delivered to the legatee.
18. Scaevola, Digest, Book XXII.
A testator left the tenth part of his estate, his slaves, and certain silver articles which he specified, to his wife, and he charged his heirs to give her his rings and his clothing, just as if they were her own private property. If these things did not actually belong to her, the question arose whether she would be entitled to them by virtue of the legacy. The answer was that it appeared that the testator intended to bequeath them to her, unless the contrary could be proved by the heir.
(1) The same testator, under the terms of a trust, charged his wife to transfer to their common foster-child whatever came into her hands by his will. The question arose whether the heir would be compelled to deliver to the said foster-child any property which the testator knew belonged to his wife, and which he directed to be given to her. The answer was that, if the articles were her own property, the heir would not be required to deliver them, but if they were acquired by virtue of the legacy he would be compelled to give them up.
(2) A certain woman under a trust inserted in her will and afterwards by a codicil, left specially several kinds of clothing and silverware which she stated that she had made herself, or had in her possession. The question arose whether any other articles not found among the assets of the estate would belong to the legatees. The answer was that only those which were found there would belong to them.
19. Ulpianus, On Sabinus, Book XX.
When gold or silver is bequeathed, any gold or silver which was left is included in the legacy, whether manufactured or not. It is, however, well established that money, which is coined, is not included in the legacy.
(1) Hence, if a certain weight of gold or silver is bequeathed, the amount of the same is considered to have been left in bulk, and the legacy to have no reference to vases.
(2) If, however, a hundred weight of manufactured silver is bequeathed, the legacy is due in manufactured silver. Wherefore it was asked by Celsus whether small vessels should be excluded. He was of the opinion that they could not be excluded, even if the choice of them had been left to the heir.
(3) Celsus, in the Nineteenth Book of Questions, also asks where a hundred weight of silver is bequeathed, whether the leaden joints must be unsoldered, so that the silver can be weighed. Both Proculus and Celsus say that it must be weighed after the removal of the lead, for silver is delivered to purchasers unsoldered, and the weight of the same is taken into account; which opinion is reasonable.
(4) It is clear that where small silver vessels, for instance, square plates, are bequeathed, the lead with which they are soldered goes with them.
(5) Likewise, where silver-ware is bequeathed, the question arises whether any gold ornamentation united with it is included. Pomponius, in the Fifth Book on Sabinus, says that it makes a great deal of difference whether a certain weight of manufactured silver is bequeathed to him, or merely manufactured silver. If a certain weight of silver is bequeathed, it will not be included; if manufactured silver is bequeathed, it will be included, as anything united with any kind of silver-ware is, as it were, an accessory to the same; just as gold braid and purple form part of clothing. Pomponius, in the Books of the Epistles, says that braid is included in a legacy of clothing, even if it is not sewed to it.
(6) Celsus also states, in the Nineteenth Book of the Digest and the Seventh of the Commentaries, that where gold is bequeathed, neither articles which are gilded, nor gold ornamentation on silver plate will be due.
(7) Are gold rings included under the term "gold?" is asked. Quintus Saturninus says, in the Tenth Book on the Edict, that they are included.
(8) It is evident that a silver bed is not included under the term silver-ware, nor any other silver furniture, if the testator did not consider it as such. I know that I decided that this was the case with reference to a silver clasp, because the head of the household did not regard it as part of his silver-ware. And, neither can candelabra, nor silver lamps, nor small images kept in the house, nor silver statues, be included under the term "silver-ware." Nor are mirrors attached to walls and which women use for their toilet included, provided they do not consider them as part of their silver-ware.
(9) Where a bequest of silver-ware is made, Quintus Mucius says that silver vessels are included; as, for example, chafing dishes, oil-pots, bowls, basins, and other utensils of this kind which, however, are not classed as furniture.
(10) Where vases are bequeathed to anyone, not only those are included which are intended for eating and drinking, but also such as are used to support something, as, for instance, saucers and trays. The sideboards in which they are kept are also included, for the term "vases" is a general one, by which we designate vessels to hold wine as well as those employed for refrigerating purposes.
(11) The expression "unmanufactured silver," includes raw material, that is to say, such as has not been worked up. But what if some labor has been expended on the silver, but it has not yet been completed? There might be some doubt in this case whether or not it would come under the term "unmanufactured," but I think that the term "manufactured silver" will be more applicable. It would certainly be manufactured, and be included under that designation, if it was in the hands of the goldsmith to be adorned with gold. Where the gold ornamentation has been begun, should it be included under the term adorned with gold? I think it should be, if the silver ware was bequeathed, and the gold ornamentation had not been finished.
(12) Where a bequest is made of silver-ware for the table, that only will be due to the legatee which the testator included in his own table service, that is to say such as he used for eating and drinking. Hence, there is some doubt concerning the basin for washing the hands; still, I think it would be included, because it has reference to the service of the table. It is certain that, if the testator had silver pots or caldrons, or kitchen utensils, or any other articles used for cooking purposes, it may be doubted whether these will be included in the legacy. It is my opinion that such things rather belong to the equipment of the kitchen.
(13) Let us now discuss jewels set in gold and silver. Sabinus says that they are accessory to the gold and silver, as smaller things are accessory to those that are greater. This is correctly stated, for as we are sometimes at a loss to determine which of two articles is accessory, we must consider which one of them is used for the purpose of ornamenting the other, as the accessory follows the principal. Therefore, jewels inserted in drinking cups, or in gold or silver plates, are accessories to the same.
(14) So far as the crowns of tables are concerned, their jewels are accessory to the crowns, and the latter are accessory to the tables.
(15) The same rule applies to pearls set in gold, for if the pearls are inserted into the gold for the purpose of ornamenting it, they will be accessory to it; if the contrary is the case, the gold will be accessory to the pearls.
(16) The same rule applies to jewels set in rings.
(17) Jewels are of transparent material. Servius distinguished them from precious stones, as Sabinus states in his Books on Vitellius, for the reason that jewels are transparent; as, for instance, emeralds, chrysolites, and amethysts, while precious stones are of a different nature, as, for example, obsidian, and those that are found near Veii.
(18) Sabinus also says that pearls should neither be classed as jewels nor as precious stones, which has frequently been established, because the shell on which they are found is formed and grows near the Red Sea.
(19) Moreover, Cassius says that vessels of iridescent glass are not classed as jewels.
(20) Where gold is bequeathed, vases of that metal are included, and where jewels are bequeathed, vases set with gems constitute part of the legacy. In accordance with this, where gold or silver vases are inlaid with jewels, they are accessory to the gold or silver; as we must consider which of the articles was intended for the ornamentation of the other, and not which of them is the more valuable.
20. Paulus, On Sabinus, Book III.
Where jewels are set in gold, in order to be more easily preserved, we then say that the gold is accessory to the jewels.
21. Pomponius, On Sabinus, Book VII.
With reference to silver vessels used for drinking purposes, a doubt may arise whether those only used for actual drinking, or such as are employed for the preparation of beverages, as, for instance, strainers, and small pitchers are included. The better opinion is that they also should be included.
(1) Where perfumes are bequeathed, not only those which are used for pleasure, but also such as we employ in illness as comagena, essences distilled from lilies, roses, and myrrh, as well as pure nard, which women use for the purpose of appearing more elegant and clean.
(2) Cassius says with reference to basins used for washing the hands that, when his advice was asked, he gave it as his opinion where there were two legatees, to one of whom vessels for eating, and to the other those for drinking purposes were bequeathed, these should be considered as accessory to the table service of food.
22. Ulpianus, On Sabinus, Book XXII.
Under the term clothing is included any fabric which has been woven, even if it has not been cut off, that is to say made up. Material is classed as cloth, which is not yet completely woven, or finished. Therefore, where anyone bequeaths a garment, neither the warp nor the woof of a web will be included.
23. The Same, On Sabinus, Book XLIV.
It makes no difference whether garments or clothing is bequeathed.
(1) Under the term "clothing" are included all goods made of wool, flax, silk, or cotton, which are intended to be worn or used as garments, girdles, cloaks, wraps, carpets, or coverlets, and any designs, stripes, or embroidery sewed to such articles, are classed as accessories of the same.
(2) Clothing is either intended for the use of men, women, or children, or is common to both sexes, or is used by slaves. That peculiar to men is such as is designed for the use of the head of the household, for instance, togas, tunics, small capes, mantles, military cloaks, and other things of this description. Garments peculiar to children, are such as are used for no other purpose, as for example, the toga praetexta, short tunics, Greek cloaks, and capes such as we purchase for our offspring. Women's clothing is that intended for the use of the mother of the family, and which a man cannot readily wear without censure; as for instance, gowns, mantles, tunics, capes, belts, and hoods, which are designed rather to protect the head than for the purpose of ornament, veils, and travelling cloaks. Those are common to both sexes which both women and men use indiscriminately, such as cloaks, capes, and other garments of this kind, which either a man or his wife can wear without rendering themselves liable to unfavorable comment. The garments of slaves are such as are intended to clothe them, for example, capes, tunics, linen gowns, cloaks, wraps, smock frocks, and other articles of this description.
(3) Where clothing is bequeathed, it may also consist of furs;
24. Paulus, On Sabinus, Book XI.
As some persons have tunics and robes made of furs.
25. Ulpianus, On Sabinus, Book XLIV.
This is proved by the fact that certain nations, for instance the Sarmatians, clothe themselves in skins.
(1) Aristo says that receptacles for clothing, and the coverings of seats, are also included in a legacy of this kind.
(2) Fillets set with pearls, as well as buckles, should rather be classed as ornaments than clothing.
(3) Tapestry which is either used to recline upon, or as a covering, is also embraced in a bequest of clothing. I do not think that the cloths and housings used for horses should be considered as clothing.
(4) Cloths with which to wrap the thighs or legs and felt caps are included under the term clothing, because by means of them a portion of the body is clad. Felt socks are also included, because they are used to protect the feet.
(5) Pillows are also included in the term clothing.
(6) Where anyone makes use of the expression "His clothing" it is evident that he means that which he himself has for his own use.
(7) Mattresses are also clothing.
(8) The skins of goats and lambs are clothing.
(9) Pomponius, in the Twenty-second Book on Sabinus, very properly says that where the wardrobe of a woman is bequeathed the garments of female infants and young girls are also included, for the term "woman" means all persons of the feminine sex.
(10) Ornaments peculiar to woman are those with which she decorates herself, as, for instance, earrings, bracelets, necklaces, rings (with the exception of those used for seals), and all articles which are designed for no other purpose but the adornment of the body, to which class also belong trinkets of gold, jewels, and precious stones, for the reason that they themselves have no other use. Toilet-articles consist of those things by the use of which a woman becomes more neat and clean. Among them are included mirrors, urinals, ointments, vessels to contain the latter, and other articles of the same kind, bathing utensils, and chests. The following are classed as ornaments, namely, fillets, coifs, small hoods, head dresses, pins set with pearls which women are accustomed to have, and small nets for the hair. A woman can be clean and still not be adorned, as is the case with those who have washed themselves clean in the bath, and have not yet put on their ornaments; and, on the other hand, a woman may arise from her sleep decorated with her ornaments, but still she will not be clean.
(11) Pearls, where they are not unstrung, or any other precious stones where they can be readily detached from their settings, may be said to be included among ornaments. Where, however, precious stones, pearls, or jewels are still rough, they will not be considered as ornaments, unless the intention of the testator was otherwise, when he desired articles of this kind intended for adornment to be included in the class and under the name of ornaments.
(12) Ointments, such as are used in illness, do not come under the head of toilet-articles.
26. Paulus, On Sabinus, Book XI.
Although there are certain articles of dress which are intended for embellishment rather than to cover the body, still, because they are designated by the name of clothing, they should be considered to belong to the category of garments, and not to that of ornaments. In like manner, it is well established that those articles should be classed as ornaments which women make use of to increase their beauty, and adorn themselves; and it makes no difference if some of these things are used for other purposes (as hoods and other headdresses), for although they protect the body, they are still considered to be ornaments rather than clothing.
27. Ulpianus, On Sabinus, Book XLIV.
Quintus Mucius, in the Second Book on the Civil Law, says that silver plate should be classed as manufactured silver.
(1) The question arises where a bequest of all the silver of a testator is made whether his silver coin should also be held to be included in the legacy. I think that this should not be done, for no one ordinarily classes his money as silver-ware. Likewise, where manufactured silver is bequeathed, I do not think that coins are included, unless it plainly appears that the intention of the testator was otherwise.
(2) Where all the silver of the testator was bequeathed, there is no doubt that any which may have been placed with him for safe-keeping will not be due to the legatee, for the reason that what he cannot claim as his own is not considered to belong to him.
(3) Where a legacy of manufactured gold or silver is bequeathed to anyone, and it has been broken or damaged, it will not be included in the legacy; for Servius is of the opinion that manufactured gold or silver should be held to be such as we can conveniently use, but that silver vessels which are broken or damaged, do not come under this head, and should be classed as manufactured silver.
(4) Where a bequest is made to anyone of all the gold which may belong to the testator at his death, he can claim all the gold which the latter had at that time. Where, however, a distribution of his articles of gold was made by the testator, it then becomes a matter of importance to ascertain in what terms the legacy was expressed. If manufactured gold is bequeathed, where anything has been made out of the gold it will all belong to him to whom the legacy was left, whether it was intended for the use of the testator, or for that of someone else; as, for instance, gold vases, ornaments, seals, jewels for women, and all other articles of this description. When, however, unmanufactured gold is bequeathed, which is of such a character that it cannot be made use of without being worked up, and which the testator regarded as unmanufactured gold, it will be considered to have been bequeathed. But if engraved gold or silver is bequeathed, the testator will be held to have left by his will that on which any design is traced, as, for instance, articles made at Philippi, and also medals, and other things of this kind.
(5) Where silver is bequeathed, I do not think that vessels used as receptacles for discharges from the bowels are included, because they are not classed as silver ware.
(6) Anyone may properly define manufactured silver to be such as is not in bulk or in sheets, or which does not consist of inlaid pieces, or of furniture, toilet articles, or personal ornaments.
28. Alfenus Verus, Digest, Book VII.
Where silver destined for the use of the testator is left by will to anyone, together with his wardrobe and his furniture, the question arises for what use these articles would seem to be intended; whether the silver designed for daily table service of the head of the household was meant, or whether the silver tables and other things of the same kind which the testator did not use continually, but was accustomed to lend for games, and on other important occasions were referred to. The better opinion is that the silver only is included in such a bequest which was designed for the ordinary table service of the testator.
29. Florentinus, Institutes, Book XI.
Where material of another description is inserted in gold or silver, and the legacy consists of manufactured gold or silver, whatever is inserted in them will be due to the legatee.
(1) In order to determine which of the two materials is accessory, the intention and custom of the testator, as well as the use which he made of the article in question, must be ascertained.
30. Paulus, On the Allotment of Freedmen.
Where anyone bequeaths a legacy as follows, "I give and bequeath to my wife her toilet articles, her ornaments, or everything which I have acquired for her use," it is well established that everything is due. Likewise, when a bequest is made as follows, "I give and bequeath to Titius the wine which I have in the city, or in the harbor," he will be entitled to all of them; for the word "or" is introduced for the purpose of extending the scope of the legacy.
31. Labeo, Epitomes of the Last Works of Javolenus, Book II.
A certain man left a large dish, one of medium size, and one still smaller, as follows: "I bequeath to So-and-So my smaller dish." It was held that the dish of medium size was bequeathed, if it did not appear which dish the testator intended to designate.
32. Paulus, On Vitellius, Book II.
Where manufactured silver is bequeathed, the legacy will include the brazen ornaments added to the feet of silver vessels, and all other articles which can be brought under the same category.
(1) Under the term "manufactured gold" are included jewels set in rings, even though they belong to the rings. Small cups encrusted with gold, and pearls which are set in the jewelry of women in order that the brilliancy of the gold may be enhanced, are also included under the head of manufactured gold. Golden ornaments which are inserted in precious stones and silver plates, and which can be unsoldered, Gaius says are included in the legacy; but Labeo does not adopt his opinion. Tubero, however, says that the legacy includes everything that the testator classed as gold, otherwise articles of silver gilt and vases of any other material enclosed in gold should not be classed as gold.
(2) Where silver vessels used for eating or drinking are bequeathed, and any doubt arises as to which of these classes they belong, the custom of the testator must be taken into consideration; but this is not the case where it is certain that an article does not belong to either class.
(3) A certain officer of the triarii left his wife some silver articles to be used while eating, and, as the testator included among his silverware vessels used both for eating and drinking the question arose whether these also were embraced in the legacy. Scaevola gave it as his opinion that they were.
(4) Likewise, where a question was raised with reference to the following legacy, "Let my dear daughter, in addition, take from the bulk of my estate, and let her have for her use my entire wardrobe, together with the gold, and everything else destined for the use of women," as the testatrix was engaged in business, it was asked whether not only the silver which was in her house or her wareroom for her own use was left, and also whether that which she had in her place of business could be considered silver for the use of women, and would be included in the legacy. The answer was if the testatrix had silver plate destined for her own use, that which she kept for the purpose of sale would not be held to have been bequeathed, unless the party who claimed it could prove that she also had this in her mind when she made the bequest.
(5) Neratius relates that Proculus was of the opinion that where vases of electrum were bequeathed, it made no difference how much silver or electrum the vases in question contained. But how could it be decided whether the silver was accessory to the silver, or the silver to the electrum? This could be readily determined from the appearance of the vases. If the question should still remain in doubt, it should be ascertained in what class the party who made the will was accustomed to include the said vases.
(6) Labeo, by his will, made a special bequest of her wardrobe to his wife Neratia, as follows: "All her toilet articles, and all her ornaments intended for the use of women, all wool, linen, and purple cloth dyed of various colors, both finished and unfinished, etc." This unnecessary multiplication of terms does not change the nature of the property, because Labeo mentioned the wool, and afterwards many different colored woolen articles, just as if wool ceased to be such after it was dyed, for even if the expression "of various colors" had been omitted, the wool of different colors would still be due, if it was not clear that the intention of the deceased was otherwise.
(7) Titia bequeathed her toilet articles intended for the use of women to Septicia. The latter understood that the jewelry and necklaces set with gems and pearls, and the rings, together with the garments of one color as well as those of different colors, were left to her. The question arose whether all these things were included under the head of toilet articles. Scaevola answered that, in accordance with the facts stated, only such silver vessels as were employed in the bath would be included in toilet articles for the use of women.
(8) Again, where a testator bequeathed earrings set with two large pearls and two emeralds, and afterwards removed the pearls, the question arose whether the earrings would be due after the pearls had been removed. The answer was that they would still be due if the earrings remained, even though the pearls had been removed from them.
9) He also rendered a similar opinion in another case, where a man made a bequest of a necklace composed of thirty-four cylindrical stones, and an equal number of circular pearls, and afterwards removed four of the cylinders, and six of the pearls.
33. Pomponius, On Quintus Mucius, Book IV.
There is no difference between the expressions garments for men, and clothing for men, but the intention of the testator sometimes creates difficulty, if he himself was accustomed to make use of some garment which was also suitable for women. Therefore it should, by all means, be ascertained whether the garment bequeathed was the one which the testator had in his mind, and not that which was actually destined for the use of women, or for men. For Quintus Mucius says that he knew a certain Senator who was in the habit of wearing women's clothing at the table, and who, if he should bequeath a garment used by women, would not be considered to have had in his mind one which he himself was accustomed to make use of, as if it was one suitable for his sex.
34. The Same, On Quintus Mucius, Book IX.
Quintus Mucius said that if the head of a household should bequeath all his gold to his wife, she would not be entitled to that which he had given to a goldsmith for the purpose of being manufactured, or any which was due to him and had not been returned by the goldsmith. Pomponius: This opinion is partly true and partly false. For with reference to the gold which was due to him, there can be no question; for instance, if he had contracted for a certain number of pounds of gold, the gold to which he was entitled under the contract would not belong to his wife, since it had not yet become the property of her husband ; for he bequeathed to her what belonged to him, and not that which he had a right to collect by an action at law. So far as the goldsmith is concerned, the opinion is incorrect, if the party gave the metal to him in order that he might make something for him out of it; since, although the gold was in the hands of the goldsmith, this does not change its ownership, as it still remains the property of him who gave it, and he is only obliged to compensate the goldsmith for his labor, on which account we come to the conclusion that the wife will still be entitled to it. If, however, he gave the metal to the goldsmith, not in order that some article might be manufactured out of it, but out of other gold, then, as the ownership of the metal is transferred to the goldsmith, because an exchange is considered to have taken place, this gold will not pass to the wife.
(1) Quintus Mucius also says that if a husband, having five pounds weight of gold, should make a bequest as follows, "Let my heir deliver to my wife any gold which I may have acquired for her use," even if the husband has sold a pound of gold, and, at the time of his death, not more than four pounds should be found, the heir will be obliged to furnish the entire five pounds, as the terms made use of are indicative of the present time. This opinion, so far as it is applicable to the legal obligation, is correct; that is to say, the heir is liable by operation of law. It should, however, be remembered that if the testator alienated the above-mentioned pound of gold, because he desired to diminish the legacy to his wife, then the changed intention of the deceased will permit an exception based on bad faith to be pleaded, so that if the woman should insist in bringing suit to recover the five pounds of gold, she can be barred by an exception on that ground. But where the testator disposed of the gold, having been compelled to do so through necessity, and not because he desired to diminish the legacy, then the five pounds of gold will be due to the woman by operation of law, and an exception on the ground of bad faith will avail the heir nothing against the claimant.
(2) Where a testator makes a bequest to his wife as follows, "I bequeath to my wife any gold which may have been acquired for her use," Quintus Mucius very properly says that this clause contains in itself the designation and the proof of the legacy. Therefore, if the testator has alienated a pound of gold, no more than four pounds weight will remain due by operation of law, and it will not be necessary to consider for what reason the testator disposed of it.
35. Paulus, Opinions, Book XIV.
"I desire five pounds weight of gold to be given to Titia, with whom I have always lived without any disagreement." I ask whether the heirs shall be compelled to furnish the gold entirely in kind, or to pay the value of the same; and what amount they must pay. Paulus answers that either the gold in question must be furnished, or the price of the same, whatever it can be purchased for.
(1) I also ask if, issue having been joined in the above-mentioned case, and the Praetor having decided that the gold itself must be furnished, whether the guardians of a minor, who is the heir against whom the decree was rendered, and who applied to the successor of the Praetor for a decree for the complete restitution of their ward, shall be heard with reference to the said decree. Paulus answered that the Praetor had rendered a proper decision who, where gold had been bequeathed, ordered the amount of the same to be delivered.
36. Scaevola, Opinions, Book III.
"I charge my heirs to deliver to my dearest Seia any golden cup which she may select." As the assets of the estate do not include anything but bowls, goblets, small measures, or drinking vessels, I ask whether Seia can make her collection from these articles. The answer was since the word "cup" is applicable to everything intended for drinking purposes, she can make her selection from them.
37. Paulus, Opinions, Book XXI
I gave it as my opinion that woman's clothing is not included in the term "ornaments," and that a mistake of the heir does not change the law.
38. Scaevola, Opinions, Book V.
Titia, by her will and a codicil, specially bequeathed under a trust several articles of silver and of clothing. I ask whether any other property than that which may be found among the assets of the estate will be included in the legacy. The answer is that what is found will be included, and that security must be furnished to deliver the balance, in case it should be found.
(1) "I wish my Tabian mantles, and three tunics with their capes, also to be given to Sempronia-Pia, to be selected by herself." I ask whether Sempronia will have the right to make her selection of the different tunics and capes from all the clothing of the deceased, that is to say, from her entire wardrobe. The answer is that if the tunics with the capes were left separately, she could only make her choice from those of the same kind; but if this was not the case, the heir would have a right to furnish them from the entire wardrobe, or to pay her their appraised value.
(2) Seia made the following provision in her will: "If I, myself, should be prevented from doing so by the uncertainty of human affairs, I desire, and I direct that the bust of such-and-such a god, of a hundred pounds weight, be placed by my heirs in such-and-such a holy temple, with an inscription including my name, and stating that I have caused it to be set up in my native city." As there were no other gifts in this temple except some of bronze or silver, the question arose whether the heirs of Seia would be compelled to provide a silver, a gold, or a bronze bust. The answer was that, in accordance with the facts stated, one of silver should be placed there.
39. Javolenus, On the Last Works of Labeo, Book II.
Where toilet articles intended for women are bequeathed to a wife, Ofilius and Labeo gave it as their opinion that she will only be entitled to such as have been given to her by her husband for her own use. If this should be interpreted otherwise, great harm would result when a goldsmith or a silversmith makes such a bequest to his wife.
(1) Where a legacy was bequeathed as follows, "I leave to So-and-So the silver which may be found in my house at the time of my death," Ofilius holds that silver deposited with the testator or loaned to him, ought not to be included. Cascellius is of the same opinion with reference to silver that was loaned. Labeo thinks that what was deposited with him will be due to the legatee, if it was left with him forever as treasure, and not merely for temporary safe-keeping; because the words, "Which may be found in my house at the time of my death," should be understood to mean that which was ordinarily there. I approve of this opinion.
(2) Attius says Servius held that where a testator left a certain person the silver "which he might have on his Tuscan estate when he died;" that also was included in the legacy, which, before the testator's death, had, by his direction, been taken from the city to the Tuscan estate. The case, however, would be different if it had been removed without his order.
40. Scaevola, Digest, Book XVII.
A testator bequeathed to his physician, who resided with him and accompanied him on all his journeys, among other things, the following, "I wish the silver, which is used on my journeys, to be given to him." As the testator was absent at different times on public business the question arose what silver should be considered as included in this legacy. The answer was that that would be included which the testator had in his possession at the time when he made his will.
(1) A bequest was made by a husband to his wife as follows, "I bequeath to my wife, Sempronia, in addition, the silver-ware used in the bath." The question arose whether the silver which the testator was accustomed to use in the bath on feast-days was embraced in the legacy. The answer was that all of it was considered to have been bequeathed.
A woman, at the time of her death, made the following bequest of her
ornaments: "I wish all my jewelry to be given to my friend Seia."
She also added in the same will: "I desire my funeral to be conducted
in compliance with the wishes of my husband, and whatever my burial
ceremonies may be, I desire to have buried with me, of my jewelry,
two strings of pearls, and my emerald bracelets." When the body
of the deceased was committed to the earth, neither her heirs nor
her husband buried her with the jewelry, which she directed to be
placed upon her body. The question arose whether the aforesaid articles
would belong to the woman to whom she left all her jewelry, or to
her heirs. The answer was that they would not belong to the heirs,
but to the legatee.
Obligations due from all kinds of debtors can be lawfully bequeathed to them, even though they may be the owners of said obligations.
(1) Julianus stated that if property which is pledged is bequeathed by a creditor to his debtor, the legacy will be valid, and the debtor will be entitled to an action to recover the pledge before he pays the money due. In this instance, Julianus seems to have had in his mind a case where the debtor would not profit by the transaction. Where, however, the intention of the testator was otherwise, he can be released from the obligation just as if he had paid the debt.
2. Pomponius, On Sabinus, Book VI.
When an heir was charged not to demand anything of the security, he can collect the debt from the principal debtor; but when he was forbidden to collect it from the latter, and demands it of the security, Celsus thinks that he will be liable to the principal debtor under the terms of the will.
(1) Celsus also says that he has no doubt that where an heir has been forbidden to collect a debt from a debtor, his own heir cannot collect it.
3. Ulpianus, On Sabinus, Book XXIII.
It is certain that, at present, a release can be bequeathed to a debtor.
(1) But, even if the testator, at the time of his death, should give a debtor his note, I think that the latter will be entitled to an exception, as the surrender of the note will be valid as a trust.
(2) Julianus, in the Fortieth Book of the Digest, says that if anyone, when about to die, should give a note of Seius to Titius, and direct him to deliver it to Seius after his death; or, if he should recover, return it to him; and then Titius should give the note to Seius after the death of the creditor, and the heir of the latter should attempt to collect the debt, Seius will be entitled to an exception on the ground of fraud.
(3) Let us now see what will be the effect of this legacy. And, indeed if the release of a debt is left to me the only debtor, and an attempt is made to collect it from me, I can avail myself of an exception; or, if such an attempt is not made, I can bring an action to obtain a discharge from liability by means of a receipt. Still, even though I may be a joint-debtor with another party, for instance, where both of us are principal debtors, and the testator desired to favor me alone, I can bring suit, not to be discharged from liability by a receipt, nor that my fellow-debtor may be released against the intention of the testator, but that I may be released by an agreement. But what if we were partners? Let us see whether I should be released by means of a receipt; otherwise, would I not be subjected to annoyance, if suit were brought against my fellow-debtor? Julianus, in the Thirty-second Book of the Digest, states that if we are not partners, I ought to be released by an agreement, but if we are partners, this should be effected by means of a receipt.
(4) Hence the question arises, whether a partner should be considered a legatee whose name is not mentioned in a will, although it is an advantage to both parties if they are partners. It is true that not only he whose name is mentioned in a will should be considered a legatee, but also he who is not mentioned therein, if the testator had him in his mind at the time when the release was bequeathed.
(5) Both parties, however, are considered to be legatees in this instance. For if I owe anything to Titius, and, in order to favor me, the bequest is made to him on condition that I shall be released, no one will deny that I am a legatee, as Julianus states in the same Book; and Marcellus says in a note that the legacy is bequeathed to both parties, as much as to my creditor, even though I may be solvent, for it is always to the interest of the creditor to have two debtors liable for the same obligation.
4. Pomponius, On Plautius, Book VII.
What then must be done, as the creditor can bring an action under the will? The heir should not have judgment rendered against him, unless security is furnished him for defence against the debtor. Likewise, if the debtor should institute proceedings, the heir is required to do nothing more than to protect him against the creditor.
5. Ulpianus, On Sabinus, Book XXIII.
Where a testator has a principal and a surety indebted to him, and bequeaths a release to the principal, Julianus states in the same place that the principal ought to be released by means of a receipt; otherwise, if the heir should sue the surety, the principal debtor will be brought into the case in another way. But what if the surety intervenes for the purpose of making a donation, and has no recourse against the principal debtor? Or, what course must be pursued if the money had come into the hands of the surety, and he had given a principal in his stead, to whom he himself furnished a surety? In this instance, the principal debtor should be released by agreement. We are, however, accustomed to hold that the same exception on the ground of contract to which the principal debtor is entitled should be granted the surety. We say that this does not, in any way, apply to this case; as, when a testator leaves a legacy, his intention is one thing, and that of the heir when he makes an agreement is another.
(1) If, however, a release should be bequeathed to a surety, there is no doubt, as Julianus says that the surety should be released by the agreement of the heir. Still, I think that in a case of this kind he should sometimes be released by a receipt, if the party himself was the actual debtor, or if he was a partner with the principal in the transaction.
(2) Julianus, in the same Book, also states that if a son under paternal control should become a debtor, and his release is bequeathed to his father, the latter ought to be discharged from liability by an agreement, to avoid the son from being released. And he adds that it makes little difference whether there is any property in the peculium of the son on the day when the legacy vests, or not, for the father will always be secured by means of the legacy; and he holds that this is especially the case when the amount of the peculium is considered with reference to the time when the judgment was rendered. Julianus compares a husband to a father where his wife, after divorce, bequeathed him a release from liability for her dowry; for he, also, although he may not have been solvent at the time when the legacy vested, will be a legatee, and he says that both the parties cannot recover what has already been paid. The better opinion, however, as Marcellus observes, is that the father can bring an action, for he was not yet a debtor when he made payment, as the husband cannot do this, if he has paid the debt. For even if anyone should think that the father was a debtor, still, he only occupies the place of a conditional debtor, and there is no doubt that he can recover what he paid.
(3) Where, however, an heir is charged to release the son, Julianus does not add that the former should be released, either by a receipt or by an agreement, but he seems to think that the son should be discharged from liability, as it were, by a receipt; which transaction would also be a benefit to the father. This rule should prevail, unless it can be clearly proved that the testator intended otherwise, that is to say, that neither the son nor the father should be annoyed; for in this instance he ought to be released, not by means of a receipt, but by an agreement.
(4) Julianus also says that where a father becomes surety for his son, and his release is bequeathed to him, he should be discharged from liability by an agreement, as a surety, and not as a father; and therefore suit can be brought against him with reference to the peculium. Finally, he thinks that this rule only applies where the testator intended that he should be released as a surety, but if he intended that he should also be released as a father, he should also be discharged from liability for the peculium.
6. Javolenus, Epistles, Book VI.
But, after the emancipation of the son, the father will only be entitled to an action to the extent of whatever forms part of the peculium of his son, or when the latter may have paid out anything for the benefit of his father; since the property which it is to the interest of the father to have, will belong to him by virtue of the legacy.
(1) The inquiry may be made, whether the father can bring suit under the will for this purpose, with the result that the son will also be released from liability to an action. It has been held by certain authorities that the proceeding has this effect, because it is considered that it is to the interest of the father that his rights should remain unimpaired, where he gives his son his peculium after his emancipation. I, however, hold the contrary opinion, and I think that nothing more should be granted to the father under the terms of the will, than that he should be required to pay only what could be collected by the heir.
7. Ulpianus, On Sabinus, Book XXIII.
Moreover, not only what is due can be remitted, but also a portion of the same, that is to say, a part of the obligation, as is stated by Julianus in the Thirty-third Book of the Digest.
(1) Where he who has stipulated for the delivery of Stichus, or ten aurei, charges his heir not to demand Stichus, it is established that the legacy is valid; but let us consider what it includes. Julianus says that it appears that an action can be brought under the will to compel the discharge of the debtor by a receipt, which will also release him so far as the ten aurei are concerned, because a receipt is equivalent to payment; and just as the debtor should be released if he had delivered Stichus, so he will be discharged from liability by the receipt for Stichus.
(2) If, however, the heir should be charged to release the debtor from the payment of twenty aurei, Julianus also states, in the Thirty-third Book, that the debtor should, nevertheless, be released from liability for ten, as if he obtains a receipt for twenty, he will be discharged from liability for the former amount.
(3) Where two heirs have been appointed by a debtor, and he charges one of them to pay his creditor, the legacy will be valid so far as his co-heir is concerned, and the latter will have a right to bring suit to compel payment to the creditor.
(4) A release bequeathed to a debtor only becomes effective where payment has not been required from him, during the lifetime of the testator; if, however, it has been required, the legacy is extinguished.
(5) Therefore Julianus asks, if a release is bequeathed, and the substitute of a minor child is charged with the same, and the minor afterwards exacts payment of what is due, whether the legacy will be extinguished. And, as it is established that a minor, so far as a legacy with which his substitute is charged is concerned, occupies the same position as an heir charged with a conditional bequest, the result is that the substitute will be liable to an action under the will, if the minor should demand payment of the claim by the debtor.
(6) The same rule applies where the minor does not exact payment, but only institutes proceedings in court, for the substitute will be compelled to have the action dismissed.
(7) For if the release had been bequeathed to the debtor conditionally, and either issue had been joined, or payment had been exacted before the condition was fulfilled, the debtor will still be entitled to his action under the will to obtain the release which was bequeathed to him.
8. Pomponius, On Sabinus, Book VI.
We can not only make a bequest releasing our debtor, but also one releasing our heir and anyone else whomsoever.
(1) An heir can be charged not to demand payment of a debtor within a certain time, but there is no doubt that he should not release him during the intermediate time; and if the debtor should die, the debt cannot be collected from his heir within the said period.
(2) It should be considered whether the heir can collect interest on penalties for the time during which he is forbidden to demand the debt. Priscus Neratius held that to make such a demand would be contrary to the will, which is correct.
(3) A bequest like the following, "My heir must not collect the debt from Lucius Titius alone," does not pass to the heir of Lucius Titius, if, during the lifetime of the latter, nothing was done in opposition to the will by the heir attempting to collect the debt from him; for whenever property which is bequeathed attaches to the person of the legatee, it is in the nature of a personal servitude, and does not pass to his heir; but if it does not attach to his person, it will be transmitted to his heir.
(4) If the words granting the release refer to matters in rem, the effect is the same as if the heir had been specifically forbidden to collect the claim from either the debtor, or his heir, as the addition of the heir is of no force or effect; just as would be the case if the person of the debtor himself had not been included.
(5) He who is directed to render accounts is not considered to have complied with the wishes of the testator, if he does not produce his accounts, but merely pays the balance remaining in his hands.
(6) Where an heir is forbidden to bring suit against the agent who attended to the affairs of the deceased, it is not considered to be for the benefit of the legatee, if the obligation was contracted by the bad faith or the fraud of him who transacted the business, and the testator will be held to have entertained this opinion. Therefore, if the heir should institute proceedings against the agent on the ground of business transacted, and the latter brings suit under the will for an indeterminate amount, he can be barred by an exception on the ground of fraud.
(7) A release may also legally be bequeathed to anyone with whom I leave a deposit, or to whom I make a loan for use, or give property in pledge, or to one who is obliged to make good to me the proceeds of a theft.
9. Ulpianus, On Sabinus, Book XXIV.
When an heir is forbidden to require the rendition of accounts, it has been very frequently stated in rescripts that he will not be prevented from demanding balances which are due, where the parties have them in their possession, or where the agent who transacted the business has been guilty of any fraudulent act. If anyone should desire to release another from liability on this account also, he should make his bequest as follows: "Let my heir be charged to return to So-and-So anything which he has collected from him by such-and-such and such-and-such a suit, or release him from liability under said actions."
10. Julianus, Digest, Book XXXIII.
Where an heir is charged not to collect anything from a surety, and to pay to Titius what the principal owes; he ought to agree not to make a demand of the surety, and to assign to the legatee his rights of action against the principal debtor; just as when an heir is charged not to collect anything from the principal debtor, and to pay to a third party the amount that the surety owes, he must give a receipt to the principal, and will be compelled to pay to the legatee the amount fixed by the court as due from the surety.
11. The Same, Digest, Book XXXVI.
If a debtor should order his surety to be released by his heir, ought he to be released? The answer is that he should be. As the heirs are liable to an action on mandate, the inquiry was also made whether the legacy was not void, as the debtor made a bequest to his creditor. The answer was that, whenever a debtor makes a bequest to his creditor, the legacy will be void if it should not rather be to the interest of the creditor to bring an action under the will, than one founded on the original obligation; for if Titius should have directed Maevius to promise the payment of a certain sum of money, and afterwards should direct him to be released by the stipulation, it is clear that it is more to the interest of the party making the promise to be released than to pay the amount in accordance with the stipulation, and then to bring an action on mandate.
12. The Same, Digest, Book XXXIX.
Lucius Titius, who employed Eros as his agent, made the following provision in his codicil, "I desire Eros to be free, and I wish him to render an account of all that he has done, during the time subsequent to my last signature." He, afterwards, while still living, manumitted Eros, and, at the same time, the slave rendered his accounts, and the testator signed them up to that date, which was only a few days before he died. The heirs of Lucius Titius alleged that Eros had received certain sums of money, both while he was still a slave and after he became free, and did not include these in the accounts which were signed by Lucius Titius. I ask whether the heirs can collect anything from Eros for the time preceding the last signature of Lucius Titius. I answered that, according to the facts stated, Eros cannot demand his freedom, unless the sums referred to had been specifically remitted to him.
13. The Same, Digest, Book LXXXI.
If a creditor should make a bequest to a debtor of what he owes him, and the former can protect himself by a perpetual exception, the legacy will be of no force or effect. If, however, the same debtor should make a bequest to his creditor of what he owes him, he will be understood to have intended that his creditor shall be released from the operation of the aforesaid exception.
14. Ulpianus, Trusts, Book I.
The same rule will apply where the debtor was required to make payment within a certain time, or under some condition.
15. The Same, On the Edict, Book LXIV.
Where anyone is charged in a will not to collect a debt from Titius, he cannot sue either him or his heir; nor can the heir of the heir bring an action; nor can the payment of the obligation be demanded of the heir of the debtor's heir. The heir of the heir of the testator can also be charged not to collect the claim from the debtor.
16. Paulus, On Plautius, Book IX.
If I should rent a tract of land to anyone for five years, and then bequeath whatever the tenant was obliged to do for me or pay to me, or would be obliged to pay or give to me in the future, and the heir is charged to allow the tenant to have this himself; both Nerva and Atilicinus say that if the heir should prevent him from enjoying the legacy, he would be liable to an action on the lease, and if he should retain anything arising out of the contract of hiring, he would be liable to an action under the will; for the reason that it makes no difference whether he demands something from the tenant, or retains possession of it, as the entire lease is held to have been bequeathed.
17. Javolenus, On the Last Works of Labeo, Book II.
Any balance due on the lease is also included in the legacy.
18. Paulus, On Plautius, Book IX.
Cassius: Even if a lodging has been bequeathed in this way, the heir will be obliged to furnish it gratuitously; and moreover, it has been decided that the tenant can bring an action based on the will against the heir, in order to be relieved of liability under his lease; which opinion is perfectly correct.
19. Modestinus, Rules, Book IX.
If we make a bequest as follows, "Let my heir be charged to release from liability So-and-So, who has transacted my business, and not to exact anything from him which he may be obliged to pay to, or do for me," the heir will be charged not to collect any money from the legatee which has been lent to him. It is, however, hardly credible that, by a legacy of this kind, the testator intended there should also be bequeathed to the legatee whatever was due from him to his slaves as their peculium.
20. The Same, Opinions, Book X.
"To my brother Aurelius Sempronius. I do not desire that any of my debtors shall be annoyed on account of their obligations, nor that anything, either principal or interest, shall be collected from them as long as they live; and I return, free from liability and released from pledge, the house and the Carpathian land to the party interested in the same." Modestinus gives it as his opinion that if the debtor himself should be sued, he will be protected by an exception, but that this will not be the case so far as his heir is concerned.
(1) When Gaius Seius was growing up, he received Publius Maevius and Lucius Sempronius as his guardians. While still under lawful age, the said Gaius Seius, being about to die, made the following provision in his will with reference to his curators: "Let no one raise any question concerning my curators, for I myself have transacted my business." I ask whether the heirs of the minor can demand an accounting for the curatorship from the curators, since the deceased, as is apparent from the terms of his will, acknowledged that he had attended to all of his business himself. Modestinus was of the opinion that if the curators had committed any fraudulent act, or if any of the property of the testator was in their hands, suit could be brought against them on this ground.
21. Terentius Clemens, On the Lex Julia et Papia, Book XI.
If I should bequeath anything which you owe me, either to yourself or to a third party, and you should pay it to me, or be released by me for any other reason, the legacy will be extinguished.
(1) Hence, it was held by Julianus that, even if a creditor should become the heir of his debtor and should afterwards die, the legacy will be extinguished; and this is correct, because an obligation is, as it were, extinguished by confusion, just as it is by payment.
(2) Where, however, a legacy is bequeathed under some condition, and the heir comes in beforehand and collects the debt, another opinion must be rendered; because, while the condition is still pending, the prevention of the payment of the legacy to the legatee, if he is still living and entitled to receive it, does not depend upon the inclination of the heir, nor, if the legatee should not be legally capable of taking it, can the heir prevent the party entitled to the benefit of the legacy from obtaining the same.
22. Papinianus, Questions, Book XIX.
"I do not wish anything that Sempronius owes me to be collected." It was decided that the debtor, in order to compel his release, was not only entitled to an exception, but also to an action under the will.
23. The Same, Opinions, Book VII.
An agent from whom the heir was forbidden to require an accounting, and whom he was also charged to release from all liability for any act performed in that capacity, can still be required, by an action on mandate, to pay to the heirs all the money that may be due to him from a banker under a contract which he entered into as an agent, or to assign his rights of action against the said banker.
24. The Same, Opinions, Book VIII.
Where an heir is requested to release his debtor, it is held that this only applies to what remains due on the obligation. Therefore, where any of the debt was paid before the will was opened, it will not be included in the trust. But if, after the will has been opened, and before the estate has been entered upon by the heir, who was aware of the intention of the deceased, payment of what is owing should be required, this will closely resemble fraud, and hence the amount can be recovered by the legatee.
25. Paulus, Questions, Book X.
Where I bequeathed to Titius what he owed me, either stating or not stating the amount, or, on the other hand, where I make a bequest with a difference, as for instance: "I leave to Titius what I owe him," or "I leave to Titius a hundred aurei, which I owe him;" I ask if you think that it should, by all means, be ascertained whether anything is really due; and I furthermore request you to inform me in what way you interpret these matters, which are of every day occurrence. I answered that if the party to whom Titius is indebted wishes to release the debt, it makes no difference whether he directs his heir to discharge him from liability, or forbids him to collect the debt; for, in either instance, the debtor should be released, and in both cases an action will lie in favor of the debtor against the heir, for the purpose of procuring his release. If the testator mentioned the sum of a hundred aurei, or a certain tract of land as being due, and it can be proved that the legatee was the debtor, he should be released. If, however, he does not owe anything, as a false statement has been made, it may be said that he can also bring an action to recover what is embraced in the legacy. This principle also applies where the bequest was as follows: "Let my heir be charged not to collect the hundred aurei which he owes me," or "Stichus whom he owes me." If, however, he had said, "Let my heir be charged to give to Titius the hundred aurei which he owes me," it may be maintained that he can claim them, although the statement is untrue. However, I by no means agree to this, as the testator must have thought that the word "give" had reference to the debt. On the other hand, if the debtor makes a bequest to his creditor, I do not see that the legacy has any validity, if the amount is not stated. But if he should mention the sum which he acknowledges that he owes, the legacy will not be valid except in those instances where its payment will be more advantageous than that of the debt. For if the debtor should bequeath a hundred aurei, which he says that he owes, and he does owe them, the legacy is void. If, however, he should not owe them, it has been held that the legacy is valid; for, where a certain sum of money is mentioned, the case is similar to that where Stichus was bequeathed under a false statement. This rule the Divine Pius stated in a Rescript, where a certain sum of money was bequeathed as having been received by way of dowry.
26. Scaevola, Opinions, Book IV.
A guardian having appointed certain heirs at the time of his death, desired to give to his ward, whose guardianship he had administered, the third part of his estate, provided he did not raise any controversy with his heirs on account of the guardianship, but released them all from liability with reference to the same. The ward obtained the legacy, and, nevertheless, afterwards demanded of the heirs everything which had come into the hands of his guardian from the sale of property, or from any other source connected with the guardianship. I ask whether, by the terms of the will, he should be excluded from bringing actions of this kind. The answer was that, if he received the benefit of the trust before complying with the condition imposed, and then proceeded to make the claim contrary to the terms of the legacy, an exception on the ground of bad faith could be interposed against him by the heirs, unless he was ready to return what he had received from the trust, which had been granted him as a favor on account of his age.
27. Tryphoninus, Disputations, Book VIII.
Let us see whether a person to whom a release has been granted by a will, and against whom an action on the peculium is pending, shall be considered to occupy the position of a legatee, if, at the time when a legacy usually vests, nothing should be found in the peculium. Even if he is not yet a debtor, it does not follow that he would derive any advantage from the legacy, unless through the hope of some future addition to his peculium. Therefore, will his condition as legatee be in suspense, just as ii would be if, for any reason, he should render the expectation of the legacy doubtful? This is the better opinion.
28. Scaevola, Digest, Book XVI.
Aurelius Symphorus became surety for a certain guardian, and at his death made a bequest to the wards of the latter as follows: "I bequeath five aurei to Arellius Latinus and Arellius Felix, individually, when they shall have attained the age of fourteen years, at which time I desire to be paid to each one of them six denarii every month for their support, and twenty-five denarii every year for their clothing, with which legacy they must be content, since their guardianship has caused me no small amount of annoyance. I also charge my heirs to collect nothing from them on account of the guardianship, nor to retain anything by reason of this legacy." The question arose, if the said heirs had paid out anything on account of the suretyship, whether they could recover it from the heir of the children, or the party for whom the testator had become surety. The answer was that, in accordance with the facts stated, the heirs of the latter appeared to have been solely charged not to claim anything on account of the guardianship which Symphorus had administered, and which might be due from the wards named Arellius.
(1) A man, having made a will, bequeathed a release to his debtors, and then having unsealed the will and reread it, he executed another in which he repeated the legacy as follows: "I confirm every bequest made in a will which I unsealed, and everything that is written therein." After the estate had been entered upon under the second will, the question arose whether the debtors who had been released by the first will could demand to be discharged from liability for the sums of money for which they had become indebted after the making of the first will; and if the heirs brought an action against them, whether they could be barred by an exception on the ground of bad faith. The answer was that they would not be released.
(2) Titius made the following bequest to his debtor Seius: "I give and bequeath ten denarii to Seius. I also give five to him, in addition to this, all that he owes me both principal and interest." He also, in a general clause, charged his heirs to give and deliver to each one of the legatees what he had left him. Seius afterwards borrowed more money from Titius. I ask whether this money, which was borrowed after the will was made, should also be understood to have been bequeathed to Seius. The answer was that, as the words used by the testator had reference to past time, it should not be held that the last sum borrowed was bequeathed.
(3) Titius, having made a will and appointed his sons his heirs, expressed himself as follows with reference to his father, who also had formerly been his guardian: "I desire my father Seius to be released from liability to any action on guardianship." I ask in what way these words should be understood, that is to say, whether they mean that the money which had been obtained from the sale of property or the collection of claims, and which the father had converted to his own use, or lent at interest in his own name, should be paid to the children and heirs of the testator, or to his grandchildren. The answer was that this must be determined by the court having jurisdiction of the case, for the presumption of law is that on account of the natural affection entertained by a son, the father should be released from all liability, unless it can be proved by the heirs of the testator that his intention was otherwise.
(4) Maevius, in her will, desired one of her heirs to be released from liability to an action on guardianship, in the following words: "I do not wish an account of the guardianship which Julianus Paulus administered with Antistius Cicero, be required of him, and I wish him to be released from all liability on account of the same." I ask, if any money derived from the guardianship should remain in his hands, whether it can be collected from him. The answer was that there was nothing in the case stated why money which belonged to the ward and remained in the hands of the guardian should be considered to have been bequeathed.
(5) A testator made the following provision in his will, "I wish my relative Titius to be released from every debt whatsoever that he owes me, and in addition I give him ten aurei;" and he inserted the following in a codicil: "I desire, in addition, my heir to release my relative and debtor, Titius, from the payment of interest on any money which he owed me during his lifetime. If my heir should attempt to collect the said interest from him contrary to my wishes, then I desire the said interest be paid to Titius by my heirs as long as he lives." As the testator evidently had the intention rather to increase than to diminish the legacy, the question arose whether his heirs would, under the terms of the trust, be liable to Titius to compel them to release him from all indebtedness. The answer was that, in accordance with the facts stated, the legacy which the testator had bequeathed in the first place appeared to have been diminished.
(6) Where a testamentary bequest was made as follows, "I wish everything that Seius owes me, or for which I have pledged my faith for him, to be given to him," I ask whether only that which was due at the time when the will was executed was bequeathed, or whether the amount which accrued afterwards by way of interest, was included in the legacy. The answer was that the testator intended that every obligation of the debtor should be cancelled by the trust.
(7) Stichus, having been manumitted by will, the testator left him a tract of land with all its equipment, together with other property, and added the following: "I forbid any account to be rendered by him, because he has the records in his possession." The question arose whether Stichus would be obliged to pay over any sum of money remaining in his hands from the administration of his stewardship. I answered that Stichus was not liable on that ground. Claudius: No one, after his manumission, is liable for any act committed by him during servitude, and advice has been taken with reference to ascertaining the law as to what is due. Hence the heirs can retain the balance remaining in their hands, along with the peculium, or it can be deducted from the peculium if the latter is bequeathed.
(8) "I desire the hundred aurei which I deposited with Apronianus to remain in his hands until my son reaches the age of twenty years, and I forbid any interest on said money to be collected from him." The question arose whether Apronianus could, under the terms of the trust, maintain that the aforesaid sum was not collected from him before the time prescribed by the testator. The answer was that, according to the facts stated, he could assert such a claim.
(9) A testator appointed his daughters his heirs, and charged them with a trust as follows: "My daughters, do not require Gaius Seius to render any account for the administration of my property, which he has managed in his bank, or out of it, up to the time of my death, and release him from all liability with reference thereto." As the said Gaius Seius had charge of all the property of the testator at the time of his death, and had invested the same in his bank, and out of it, the question arose whether he would be compelled to render an account thereof to the heirs of the testator. The answer was that, in accordance with the facts stated, a release had been bequeathed, but the court must decide what was to be done under the circumstances.
(10) A testator appointed, as his heir, his former guardian, together with his own brother and certain other persons, and bequeathed to his said guardian ten aurei, which the latter had expended on his account and on that of his brother. The question arose whether the trust was valid, so far as the guardian was concerned. The answer was that, if the testator had left the amount which was due under a trust, the execution of the trust could not be demanded.
(11) The inquiry was also made if the bequest should prove to be void, so far as the guardian was concerned, whether it would be valid with reference to the brother of the testator; since it was for his benefit, as well as for that of the party who had administered his guardianship, also. The answer was that the legacy was valid so far as the brother was concerned, as he was released from his debt.
(12) The question also was asked whether the guardian should be heard if he agreed to accept the trust, provided that certain clauses of the will were allowed to stand, and others were rejected, alleging, as a reason, that the amount specified in the trust was less than he had advanced for expenses. The answer was that he was not prevented by the terms of the will from claiming everything which he could prove was due to him.
(13) A testator made the following bequest: "I direct the sum of fifty aurei, which I have borrowed from my wife on a note to be used in my business, to be paid to her by my heirs." The question arose whether the trust would stand if the husband should prove to be actually the debtor of his wife. The answer was that if the indebtedness existed the trust would be void.
(14) The question also was asked whether the execution of the trust could be demanded, if the wife, having brought suit to collect the money due, should lose the case. The answer was that, according to the facts stated, she could demand the execution of the trust, because it was apparent that the debt was not due on any other ground.
29. Paulus, On the Lex Julia et Papia, Book VI.
Where a testator has two principal debtors, and charges his heir to release both of them, and one of them is not capable of receiving a legacy, and they are not partners; the heir should transfer his right of action from the debtor who cannot take the legacy to the one upon whom the law does confer this benefit, and by this proceeding two things will happen, that is, the one who cannot receive the legacy will participate in the benefit, and the one who can receive it, will be released. If, however, the debtors are partners, the one who is incapacitated will necessarily profit through the other who can receive the legacy, and he will be released by means of a receipt; for the same thing will happen even if the testator had directed that the only one entitled to take under the will should be released.
30. The Same, Questions, Book X.
The plaintiff or the defendant, having charged his heir not to take judgment in the Court of the Centumvirs, the question arose as to the effect of this on the legacy. It was decided that the latter was only valid where the adversary of the testator had a bad case, so that he would be beaten in a contest with the heir; for then the heir would not only be obliged to surrender the property which was the subject of the suit, but also to pay all the expenses of litigation to the legatee. But if he had a good case, there does not seem to be anything in the legacy, not even the expenses, as some authorities have held.
31. Scaevola, Opinions, Book III.
A creditor made the following bequest to his debtor: "I desire everything due to me from Gaius Seius, and which he has secured by pledging his gardens, to be given to him by my heirs." If the testator, during his lifetime, had received any payment from Seius, I ask whether this could be claimed as due under the legacy. The answer was that, in accordance with the facts stated, it could not be claimed. The same party again applied for advice, alleging that the testator, before making the codicil by which he left the bequest, had received almost all the principal and interest of the debt, so that but a very small portion of the debt remained, and asked whether he would have a right of action for recovery on account of the clause, "everything due to me which is related to the past." The answer was that, with reference to the facts stated in the first place, my opinion was correct; but so far as those stated subsequently were concerned, something had been added, and the point must be decided by the court, who should ascertain whether the testator, having forgotten that the money had been paid, had made this provision; or because payment was without his knowledge; or whether he had acted designedly, as he wished that the amount due, rather than the right to demand a release, should be bequeathed.
(1) A testator, among others, made the following bequest to his freedman: "If he has transacted any business for me during my lifetime, I forbid any accounting to be required of him therefor." The question arose whether he would be compelled to surrender to the heirs the books in which the accounts were kept, as well as any sums remaining in his hands as shown by the entries of receipts and expenditures. The answer, with reference to the matter in question, was that the heir was also entitled to claim what the steward had lent to his fellow slaves who formed part of the estate, which sums, expended for the benefit of his master, should be deducted from the balance in his hands.
(2) Titia, who had had two guardians, made the following provision in her will: "I do not wish an account of my guardianship which Publius Maevius and Lucius Titius administered, to be required of the former." The question arose whether any money remaining in his hands from the administration of the guardianship could be collected from him. The answer was that there was nothing in the case stated to lead to the belief that the money which belonged to the ward, and remained in the hands of the guardian, was bequeathed.
(3) The question was also asked whether the fellow guardian should also be considered to have been released. The answer was that the fellow guardian was not released.
(4) "With reference to Gaius Seius, who has been especially deserving, I do not wish that anything he owes me in notes, or on account, or whatever he has borrowed from me, or any obligations I may have contracted for his benefit be required either of him or of his heirs." I ask whether only the amount of money due at the time when the will was made was bequeathed, or whether any of the interest which had accrued on the said sum afterwards, was included in the legacy. The answer was that, in accordance with the facts stated, it appeared that the testator intended all the obligations of Seius due to himself to be discharged by virtue of the trust.
It was also asked, after an obligation had been renewed and the amount
of the debt increased, whether what was due under the old contract
would still be included in the legacy; or where a renewal had been
made, and the party having become, as it were, a new debtor, he could
be sued for the increased amount. The answer was that only that was
considered to have been bequeathed which the party owed at the time,
but if the testator still adhered to his original intention, the legacy
would include all the indebtedness existing at the time of his death.
Where a testator, having bequeathed the right to drive cattle through his land, does not grant the right of way, he omits nothing from the legacy, for the reason that the right to drive cattle cannot exist without the right of way.
2. Pomponius, On Sabinus, Book V.
Where a tract of land is devised, a reservation may be made as follows, "I do not give or bequeath to So-and-So any other right attaching to the said land except the usufruct of the same," in order that the usufruct may constitute the legacy.
(1) The usufruct, however, can be reserved, so that only the mere ownership will be left.
(2) In like manner, a part of the land bequeathed may be reserved.
3. Ulpianus, On Sabinus, Book XXIV.
If anyone should make a testamentary disposition as follows, "I give and devise such-and-such a tract of land to Titius, and if Titius should die, let my heir be charged to give it to Seius," the devise is held to be legally transferred. Even if the party to whom it was left in the first place should be dead at the time of the transfer of the property, Seius will be entitled to it.
(1) If anyone should make a bequest to Titius as follows, "Let my heir give such-and-such an article to Titius, or if Titius should die before receiving it, let him give it to Sempronius," according to the strict construction of the law, the heir will appear to be bound to both parties, that is to say to Sempronius and to the heir of Titius. If, however, the testator's heir should be in default in delivering the property to Titius, the right to demand the legacy will be transmitted to his heirs, and Sempronius will have no claim to it; but if there should have been no default, Sempronius, and not the heirs of Titius, will then be entitled to receive the legacy. But if Titius should die before the time when the legacy vests, Sempronius alone will be entitled to it.
(2) The same thing must be said where an estate is left in trust for the benefit of a boy, and his mother becomes the legatee if he should die before obtaining the estate, so that if he dies before the time when the legacy vests the mother will be entitled to it; but if he dies afterwards, the benefit of the trust will pass to the heirs of the child, just as if there had been default in the execution of the trust itself.
(3) Where, however, anyone makes a bequest as follows, "Let my heir deliver such-and-such property to Titius, and if he does not do so, let him deliver it to Sempronius," Sempronius will only be entitled to the legacy, if at the time it vests, Titius should be incapable of acquiring it.
(4) If anyone should make a bequest as follows, "Let my heir give such-and-such a tract of land to Titius, and if Titius should alienate the same, let my heir give it to Seius," the heir will be charged with both trusts; for Titius is not charged with the trust if he should alienate the land, but the heir is charged with the devise to him. Therefore the heir, by filing an exception on the ground of bad faith, should provide for himself and exact security from Titius not to alienate the land.
(5) If anyone reserves more than he leaves, his reservation will be valid; as, for instance, if he should bequeath twenty aurei, and reserve forty.
(6) If a testator should bequeath the usufruct of certain land, and reserve the right of way, his reservation is void, but the legacy will not be invalidated, just as where a person leaves the ownership of land, reserving the right of way, the legacy will not be diminished.
(7) If a testator should bequeath a legacy separately to two persons of the name of Titius, and afterwards deprives one of them of the bequest, but it is not clear which one is meant, both of them will be entitled to the legacy; just as where, in making a bequest, it is not apparent to which of two parties it is given, we say that it is bequeathed to neither of them.
(8) Where a tract of land was devised to Titius absolutely, and then was left to him under a condition, and finally he was deprived of it, as follows, "My heir shall not give to Titius the tract of land which I left to him conditionally," he will not be entitled to it under either provision, unless the testator expressly stated that he desired him to receive the legacy absolutely.
(9) Let us see whether the condition on which a legacy, an estate, or the freedom of a slave is dependent, can be revoked. Julianus says that, in the case of the freedom of a slave, the removal of the condition does not immediately confer freedom upon him. Papinianus, also, in the Seventeenth Book of Questions, says that, generally speaking, the condition cannot be revoked, for he holds that a condition is not given but is imposed, and what is imposed cannot be taken away, as this applies only to what is given. It is, however, better that the signification of the words, rather than the words themselves, should be considered; and, as conditions can be imposed, so also they can be rescinded.
(10) Where a testator, by his will, left a hundred aurei to Titius and made the following bequest to him in a codicil, "Let my heir give to Titius fifty aurei, and no more," the legatee cannot claim more than fifty aurei.
(11) Not only legacies, but also trusts can be revoked, even by a mere wish. Hence, it is asked whether a trust will be due in case enmity has arisen between the parties. If, indeed, the enmity relates to a capital offence or is of an extremely serious character, what has been bequeathed will be held to have been revoked; if, however, the offence is a light one, the trust will continue to exist. In accordance with this we can include legacies, and an exception on the ground of bad faith may be filed.
4. The Same, On Sabinus, Book XXXIII.
If the parties should renew their friendship, and the testator should repent of his former resolution, the legacy or trust which was left will be restored in its entirety, for the will of the deceased was alterable until the last moment of his life.
5. Gaius, On the Urban Edict, Book II.
Just as a legacy can be taken away from one person, so also it can be transferred to another, for instance, as follows: "I give and bequeath to Seius what I have bequeathed to Titius." This clause contains a tacit deprivation of the legacy, so far as Titius personally is concerned.
6. Paulus, On the Lex Julia et Papia, Book V.
The transfer of a legacy is made in four ways. It can either be transferred by substituting one person for another; or this may be done by the party who directed it to be bestowed, so that another may give it; or where one kind of property is left instead of another, as ten aurei instead of a tract of land; or where the legacy was absolute, and it is transferred under a condition.
(1) If, however, I should give to Maevius what I have already given to Titius, although it is customary to hold that they are both charged with the delivery of the same property, still, the better opinion is that, in this case, the first legatee is deprived of the bequest, for where I say, "Let Seius be charged with giving what I have charged Titius to give," I shall be considered to have said that Titius shall not deliver the property.
(2) Likewise, where ten aurei are bequeathed instead of a tract of land, certain authorities think that the first bequest is not revoked; but, as a matter of fact it is, for the last will is the one to be carried into effect.
7. Ulpianus, On Sabinus, Book XXIV.
Where the bequest of an article is made to anyone under a condition, and the same article has already been absolutely left to another, the first bequest is not held to have been absolutely revoked, but only in case the condition of the second one should be complied with. If, however, it was the intention of the testator that the first legacy should, under all circumstances, be cancelled, this must be held to have been done.
8. Julianus, Digest, Book XXXII.
Therefore, if he to whom the legacy was transferred should die during the lifetime of the testator, it will, nevertheless, not belong to the person who was previously deprived of it.
9. Julianus, Disputations, Book V.
If anyone, after having left a hundred aurei to a person absolutely, then bequeathed the same sum to him conditionally, and intended to leave him this second sum in addition, what he left him absolutely will be due at once, and what was bequeathed to him under the condition will be payable if the condition should be fulfilled. Where, however, through having changed his mind, he left him the same sum under a condition, the absolute bequest may be considered to have become conditional. Hence, if in the same will by which he bequeathed a hundred aurei he afterwards left fifty, and he intended these fifty to constitute a new bequest, a hundred and fifty aurei will be due. But if he intended the bequest to consist of but fifty aurei, only fifty will be payable. The same rule will apply where this was done by means of a codicil.
10. Julianus, Digest, Book XXXVII.
Where a legacy is absolutely bequeathed to Titius, and he is deprived of it under a certain condition, and dies while the condition is pending, even though the condition should fail, the legacy will not belong to the heir of Titius; for where a legacy once given is taken away under a condition, the effect is the same as if in the first place it had been left under the opposite condition.
(1) Where a bequest is made as follows, "Let my heir pay ten aurei to Titius, and if he should not pay them to Titius, let him pay the said ten aurei to Sempronius," if Titius should die before the day when the legacy vests, Sempronius can legally claim the legacy, for it should be understood to have been transferred to him.
11. The Same, Digest, Book LIV.
Where a testator bequeaths a slave, in general terms, and reserves Stichus, he does not annul the legacy, but he weakens it;
12. Ulpianus, On Sabinus, Book L.
As the legatee cannot select Stichus.
13. Marcianus, Institutes, Book VI.
The Divine Severus and Antoninus stated in a Rescript that where a testator, induced by some motive or other, in his last will mentioned one of his freedmen as being of extremely bad character, he was considered to have deprived him of all that had been left to him previously.
14. Florentinus, Institutes, Book XI.
Legacies which are void when granted, are not rendered valid by being suppressed; as, for instance, after having appointed the master of a slave his heir, the testator conditionally deprives the said slave of an absolute bequest which he had made to him of the same. For where an absolute bequest is taken away by imposing a condition, it is held to have been bequeathed under the contrary condition, and therefore is confirmed. This, however, does not apply where the legacy which was suppressed was not valid in the first place.
(1) The same reasons for which a legacy becomes void when bequeathed, cause its suppression also to become of no force or effect; as, for example, if you deprive a legatee of a part of his right of way, or direct a slave to be only partly free.
15. Paulus, On the Allotment of Freedmen.
Where a slave bequeathed by a testator is alienated, and then repurchased by him, he will not be due to the legatee, against whom an exception on the ground of bad faith may be interposed. It is evident, however, that he will not be barred by it if the legatee can prove that the testator had renewed his intention to give him the slave.
16. The Same, On the Law of Codicils.
It makes no difference whether the legacy contained in the will is erased, or taken away.
17. Celsus, Digest, Book XXII.
There is nothing to prevent a testator from correcting, changing, or revoking a former will by a succeeding one.
18. Modestinus, Differences, Book VIII.
If a testator, during his lifetime, should give away to another the property which he had bequeathed, the legacy will be absolutely extinguished, nor do we make any distinction as to whether he disposed of his property through necessity, or merely through inclination; so that if he gave it away through necessity, the legacy will still be payable, but if he disposed of it merely through inclination, it will not be payable. This distinction, however, will not apply to a party who makes a donation through liberality, for no one is liberal when impelled by necessity.
19. The Same, Opinions, Book XI.
Modestinus gave it as his opinion that if the deceased, by depriving Maevius of a legacy which was bequeathed to him, did not intend to revoke the trust with which he was charged, the heirs can be sued by virtue of the trust; and this opinion shall be approved.
20. Pomponius, On Quintus Mucius, Book I.
Although I may transfer a legacy to a person who has not the right to receive it under my will, or bequeath the legacy without the grant of freedom to my own slave, even if they are not entitled to receive it, it will still not be payable to the person who was deprived of the same.
21. Licinius Rufinus, Rules, Book IV.
Only he can be deprived of a legacy to whom it was bequeathed, and therefore if a bequest should be made to the son or the slave of another, the father or the master cannot be deprived of it.
22. Papinianus, Opinions, Book VI.
An heir appointed to a share of an estate also received a legacy by the will. The testator afterwards regarded him with intense hatred, and intended to make another will which he began, but could not finish, and passed the party over without mentioning him. His rights of action as heir could, indeed, not be denied him, but if he should claim the legacy, he could be barred by an exception on the ground of bad faith.
23. The Same, Opinions, Book VII.
A father, having divided his property among his children, desired that his daughter should receive the sum of three hundred aurei, derived from the profit which he obtained from the advantages he enjoyed as the chief Centurion of the Triarii; and he afterwards used this money in acquiring a tract of land. Notwithstanding this fact, the brothers and co-heirs of the sister will be still obliged to execute the trust, for what was used for the benefit of the testator could not be held to have been consumed. But, as he had apportioned his property among his children, he intended that anything which had not been divided should belong to them in common; and hence it was decided that the land which had been acquired by means of funds derived from the office in the army should also be divided, so that the daughter might receive her share of the estate out of the amount paid for said land. This also would be the case, if money had been included in the assets of the estate.
24. The Same, Opinions, Book VIII.
Where a legacy bequeathed under a condition is transferred to another party, it is held to have been transferred subject to the same condition, unless it was one not attaching to the person of the first legatee. For if anyone should bequeath property to his wife, provided she should have children, and the legacy should be transferred, the condition which was necessarily attached to the person of the first woman will not be considered to have been repeated.
(1) A father devised his gardens with all their appurtenances to his daughter, and afterwards presented some of the slaves belonging to the said gardens to his wife. Whether he confirmed the donation or not, his last wishes will take precedence of the bequest to his daughter. But even if the donation should not be valid, still the father will be understood to have diminished the legacy of his daughter.
25. The Same, Opinions, Book IX.
A testator left to one of his heirs a tract of land as a preferred legacy, and afterwards directed that certain rights of action, to the amount of the purchase of said tract of land, should be assigned to another. Afterwards, having sold the land without causing any injury to the party entitled to it as a preferred legacy, he placed the price received for the same among the property of his estate. I gave it as my opinion that the rights of action should not be assigned to his co-heir.
26. Paulus, Questions, Book IX.
Where a legacy was bequeathed to a slave with his freedom, and he was afterwards sold, and the bequest of his freedom was revoked, although such a revocation is void with reference to a slave belonging to another, still, the purchaser will not be entitled to the legacy. There is reason in this, for the revocation will stand, as the slave can be repurchased, just as the bequest of the legacy is valid when it is made to one who, at the time the will was made, belonged to the testator, but who, after having been sold, obtained his freedom by means of a codicil.
(1) What would be the case if the testator, during his lifetime, should manumit a slave whom he had directed to be free by his will, and should then revoke his grant of freedom by a codicil? Let us see whether the mere revocation of his freedom would annul the legacy. Some authorities think that it would, but a superfluous provision does not affect a legacy.
27. The Same, Questions, Book XXV.
When a slave is bequeathed, and something is left to him, and he afterwards should be sold, and deprived of what was bequeathed to him, the revocation will be valid, because the legacy will take effect if the slave should be repurchased.
(1) Where a slave is bequeathed, and is manumitted during the lifetime of the parties, and he is deprived of his legacy, the deprivation will be of no force or effect; therefore he can take the legacy bequeathed to him, for, even if he should again be reduced to slavery, his legacy will still not be revived, for he is considered to be a new man.
28. Valens, Trusts, Book V.
If I should bequeath certain property to you, and ask you to deliver it to Titius, and then should leave you the same property under a trust, but should not request you to deliver it to anyone, the question arises whether it is in your power to select the property under the terms of the second trust in order to avoid the execution of the first one. It has been established that it is better to take into consideration the last provision of the will.
29. Paulus, Sentences, Book III.
A freedman who received a legacy by the first part of the will afterwards was stigmatized by the testator as ungrateful in the same instrument, and the testator having changed his mind, the freedman will not be entitled to an action based on the will.
30. Scaevola, Digest, Book XXX.
A testatrix left several articles to her foster-child, and afterwards revoked the bequest of some of them, and charged her heir to substitute others in their stead, among which she desired twenty pounds of gold to be bestowed, as follows: "In addition to this, I give and bequeath, and I wish twenty pounds of gold to be given to her." She also added: "And I charge you, Attius, above all, to care for and protect your sister Sempronia, with due affection, and if you think that she has returned to a good mode of life, leave her when you die the abovementioned twenty pounds of gold; and, in the meantime, pay her the income of said sum, that is to say, interest on the same at the rate of six per cent." She afterwards transferred the same twenty pounds of gold to her legatee, Maevius, by a codicil, and charged him with a trust as follows: "I desire the twenty pounds of gold which I have left to my foster-child, Sempronia, by my will, to be given to Maevius, after taking security from him to pay five denarii every month out of said sum to the said Sempronia, as long as she may live, in addition to a hundred and twenty-five denarii for her clothing; and this I beg you to do. I am certain that you, Maevius, on account of your affection, will charge your heir at your death to carry out my wishes with reference to my foster-child." The question arose whether Maevius, as legatee, would, at the time of his death, be compelled to pay the twenty pounds of gold to Sempronia, as the heir Attius had been charged to do. The answer was that, according to the facts stated, he could not be compelled to pay her the twenty pounds of gold; but that the other things with which he had been charged for the benefit of the foster-child must be furnished by Maevius and his heir, as long as the said foster-child lived.
(1) Titia, by her will, appointed her freedwoman Seia, who was also her foster-sister, heir to a twelfth part of her estate. She left certain lands to her freedman Pamphilus under a trust, among which were certain fields of large extent, designated as being near Colon; and she afterwards, by a letter, also gave other property to the same freedman, in which letter she referred to Seia and Pamphilus as follows: "To my heirs, Greeting. I wish that everything stated below be carried out, as well as any provisions which I have already made with reference to Pamphilus. If my foster-sister, Seia, should not become my heir to the share of my estate to which I have appointed her, I wish all the lands near Colon to be given to her." As the freedwoman Seia rejected the share of the estate left her by will, and selected what had been given to her by the codicil the question arose, if Pamphilus should claim the same land under the terms of the trust, whether he could be barred by an exception on the ground of bad faith. The answer was that the trusts having reference to the lands, that is to say to those which were situated near Colon, were considered to have been transferred to the freedwoman Seia.
(2) A testator requested his heirs that, if he should die in a province, sixty aurei should be given to Lucius Titius, in order that he might take charge of his body, and bring it back to his country. He also added the following: "If anything remains of said sum of money, I wish it to be given to him." On the same day he addressed a codicil to his heirs, in the following terms: "If I should happen to die either in the province or on my journey, I ask you to have my body taken to Campania, and placed in the tomb of my children." The question arose whether the testator, by this provision, tacitly deprived Lucius Titius of anything remaining out of the above mentioned sum of sixty aurei. The answer was that he should be considered to have been deprived of it.
(3) A father appointed his daughters by his will heirs to unequal portions of his estate, and by the same will made a division of almost all his property, and then he added the following: "All my remaining property, as well as any liabilities attaching to my estate, shall belong only to my two daughters namely, Prima and Secunda, or whichever of them survives." He afterwards, by a codicil, made a very different division of his property among them than he had done by his will, and some of it he did not leave specifically to anyone. The question arose whether the daughters, Prima and Secunda, could, under the terms of the will, claim that they alone were entitled to the property which was not specifically bequeathed to anyone by the last disposition which their father made of his estate. The answer was that he did not appear to have revoked his entire will, but had only made changes with reference to certain property which he had disposed of in a different manner.
(4) A mother made the following provision in a letter concerning a legacy and a share of her estate bequeathed to her son: "As I know that my son Priscillianus is at the point of death, I consider it only just and proper to bequeath to my brother Marianus, and my husband Januarius, equal shares of that portion of my estate which I have given to my son; and, in case he should die I do give and bequeath, and I desire to be delivered to them anything else, in addition, which I may leave to him." Priscillianus lived until after the will was opened, and then died of the same disease. The question arose whether the legacy left to him would, under the terms of the trust, belong to Januarius and Marianus. The answer was that it could be held that, if the son should die of the same disease from which he was suffering at the time that the legacy would be absolutely transferred to those with respect to whom the inquiry was made.
31. The Same, Digest, Book XIV.
A testator who had appointed his son heir to a part of his estate left him also two tracts of land with the slaves and all the implements belonging to the same. He also left several things to his wife, as well as the slaves Stichus and Damas. But, having ascertained that there was no steward in charge of one of the estates devised to his son, he sent Stichus, and appointed him superintendent of the cultivation of the said land, and gave him charge of the accounts relating to the same. The question arose whether Stichus would belong to his wife or his son. The answer was that, as the testator was mindful of the matters for which he was provided in his will, Stichus, as steward, would belong to the land to which he was transferred, and that the wife could not claim him under the terms of the trust.
(1) A certain individual bequeathed four fields to his mother, whom he had appointed heir to a portion of his estate, and charged her to deliver two of said fields to his father-in-law; and afterwards, by a codicil, he suppressed the trust which he had created for the benefit of his father-in-law. The question arose whether the said two fields would belong to the mother as a preferred legacy. I answered that there was nothing in the case stated why they should not belong to her.
(2) Seia, by her will, made a bequest of five pounds of gold. Titius accused her of having ordered the death of her father. After the accusation was made, Seia executed a codicil, but did not deprive her stepson Titius of the legacy previously mentioned, and she died before the accusation was heard. The case having proceeded to trial, it was decided that the father of Titius did not lose his life on account of any criminal act of Seia. As she did not by the codicil deprive Titius of the legacy which she had given him by will, I ask whether it should be paid to Titius by the heirs of Seia. The answer was that, according to the facts stated, it was not due to them.
(3) A certain individual, among other things, bequeathed his peculium to his daughter, who was under his control. After he had made his will, he collected money belonging to his daughter from a debtor of the latter, and used it on his own account. I ask whether the daughter can, on this ground, bring an action against her father's heirs. The answer was that if she can prove that he did this without the intention of depriving her of the legacy, she can bring the action.
32. Venuleius, Actions, Book X.
It is easy to take anything from, or add anything to a legacy, where only a sum of money was bequeathed, but where certain corporeal property is concerned, it is more difficult to express this in writing, and the division is likely to be unintelligible.
Where the freedom bequeathed to slaves is taken away from them, nothing
is gained by specifically depriving them of their legacies.
A testator left the Maevian, or the Seian Estate to Titius. As several tracts of land were mentioned in the records under the name of the Maevian Estate, I answered that it did not appear that the deceased intended all of said tracts to be included in the devise, provided the value of the Seian Estate did not greatly differ from that of the Maevian Estate.
2. The Same, Opinions, Book IX.
Where a legacy is bequeathed to or a trust is created for the benefit of the citizens of a town, it is considered to have been left to the town.
3. Paulus, Questions, Book XIV.
Where a sentence is ambiguous, we cannot interpret it both ways, but only according to the intention of the testator. Therefore, where anyone said something that he did not intend to say, he did not say what the words mean, because this was not his intention; nor did he say what he intended, because he did not make use of language suitable for that purpose.
4. The Same, Opinions, Book XIX.
Paulus was of the opinion that, where a legacy is bequeathed dependent upon compliance with a condition, it must undoubtedly be paid to certain or uncertain persons in such a way that an action to compel the execution of the trust will lie.
5. The Same, Opinions, Book XIX.
Paulus also gave it as his opinion that, where the name of the beneficiary of a trust is not inserted in the will, there is no doubt whatever that no person, either certain or uncertain, is entitled to the benefit of the trust.
6. Gaius, Trusts, Book I.
A certain individual, having been sent into exile, made a will, and after appointing an heir and making bequests to several persons added the following: "If any one of my heirs or other friends whom I have mentioned in this my will, or anyone else, should obtain my recall from the Emperor, and I should die before I can manifest my gratitude to him, I wish such-and-such a sum of money to be given by my other heirs to him who does this." One of the heirs whom he had appointed obtained his recall, but before the testator knew it he died. The question arose as to the execution of the trust. Julianus, having been consulted, gave it as his opinion that the trust should be executed; and even if the party who obtained the recall of the testator was neither his heir nor legatee, but one of his friends, that the latter was entitled to the benefit of the trust.
(1) If anyone should charge you to deliver his estate to his posthumous heir, or a stranger;
7. Marcianus, Trusts, Book III.
Or if he should appoint you his heir along with his posthumous child, or should bequeath legacies to both of you, or make you the beneficiaries of a trust;
8. Gaius, Trusts, Book I.
It is asked if the posthumous child, whether he was born or not, could prevent you from profiting by your share of the estate. I think it is more proper to hold that if the posthumous child should not be born, he will not enable you to share in the estate, but the whole of it will belong to you, just as if it had been entirely left to you in the first place; but if he should be born, both of you will be entitled to what was left to each, and if one child is born, you will be entitled to half the estate; if two are born, you will be entitled to a third; and if three children are brought forth at once (for triplets are also born), you will be entitled to a fourth of the estate. And, even in our time, Serapias, an Alexandrian woman, was presented to the Divine Hadrian with her five children, whom she had had at a single birth. Where, however, more than three children come into the world at the same time, the event is considered a prodigy.
(1) Where a certain man, after having appointed several heirs, charged one of them under a trust to deliver the share of the estate which might come into his hands to any one of his co-heirs whom he might select at the time of his death, it is absolutely certain that this trust is a valid one; as it is not left to the discretion of the heir of whom the request was made, whether he should deliver the property at all, but to whom he prefers to deliver it. For it makes a great deal of difference whether the testator places it in the power of the trustee whom he desires to deliver, or not to deliver certain property, or whether, after having imposed upon him the necessity of delivering it, he grants him alone the unrestricted choice of distribution.
(2) Where co-heirs are appointed to unequal shares of an estate, the question arose whether the heir should be required to give each one equal shares, or only shares in proportion to those to which they are appointed heirs. It was decided that if the testator directed one of his heirs to give up his share to his co-heirs, if they paid him a certain sum of money, to which they were directed to contribute equally; it would seem to be just that equal portions of the property should be given to them by virtue of the trust. If, however, in the distribution of said money, the testator intended that they should contribute unequal shares, in order that they might correspond with the shares of the estate to which they were entitled, it would appear to be reasonable that, under the terms of the trust, the property should be delivered to them in proportion to their respective shares of the estate.
9. Paulus, Sentences, Book II.
Where a donation is made between husband and wife, and the one to whom it was made dies before the other, the property reverts to the one who gave it. If both parties should die at the same time, in order to decide the question, it was held that the donation was valid, and that this was especially the case, because the donor who could claim the property did not survive.
10. Tryphoninus, Disputations, Book XXI.
A testator, who had two minor children, substituted Titius for the one who might die first. Both of them perished at the same time in a shipwreck. The question arose whether the estate would pass to the substitute, and to which one of the two minors he was to be considered the heir. I said that if the brothers had died in the ordinary course of nature, the brother of the one that died first would become his heir ab intestato, and the substitute would succeed to the second one; nevertheless, he would be entitled to the estate of the one that died first, as it was included in that of the other. In the question proposed, however, where both of them perished at once, and as neither brother survived the other, should it be held that both of them died last, or that neither of them died last, because the decision as to which died last was dependent upon the fact that one of them died first? The former opinion, however, namely, that the substitute is the heir of both the minors, should prevail. For where a testator, who has only one son, appoints a substitute for the one that dies last, he is not considered to have made an invalid substitution; just as the next of kin is understood where there is but one who does not precede anyone else, and in this instance, as neither one of the brothers survived the other, both of them are considered to have died first and last.
(1) Where a son and his father lost their lives in war, and the mother claimed the estate of her son on the ground of his having died last, and the relatives of her father declared that the son died first, the Divine Hadrian decided that the father died first.
(2) If a freedman should die at the same time as his son, the estate passes by operation of law to the patron of the intestate freedman, unless it is proved that the son survived his father. We hold that this is the case on account of the respect attaching to the right of patronage.
(3) Where a husband and a wife die at the same time, and a stipulation with reference to the dowry was entered into providing that it should belong to the husband, if the woman died during marriage, this will take effect, if it is not proved that she survived her husband.
(4) If Lucius Titius should lose his life at the same time as his son who had reached the age of puberty, and whom he had appointed his sole heir by his will, the son is understood to have survived the father, and will be his heir under the will, and the estate of the son will pass to the successors of the latter, unless the contrary can be proved by the heirs of the father. If, however, the son, who perished with the father, had not reached the age of puberty, it is held that his father survived him, unless the contrary can be proved.
11. Ulpianus, Disputations, Book VI.
Where a legacy was left to the one of my relatives who may first ascend to the Capitol, and two of them are said to have done so at the same time, and it is not apparent which one arrived first, will the legacy be prevented from taking effect? Or, it may be asked, what is the rule if the testator made a bequest "to the one who should erect a monument to him," and several of them erect one; or if a bequest is made to one who is the older of two persons, and both of them are of the same age; or where a legacy is bequeathed by the testator to his friend Sempronius, and there are two persons of the same name held in equal esteem? But if a legacy is bequeathed to two men of the same name, for instance, to two called Sempronius, and one of them is afterwards deprived of the legacy, and it does not appear which one was meant; will the legacy be extinguished, so far as both parties are concerned, or will its revocation be void? This question may also arise where freedom is left to several slaves of the same name, or to certain ones among them. The better opinion is that, in all these cases, the legacies and the grants of freedom should take effect, but where a revocation takes place it affects all the parties.
(1) It is clear that if a female slave should receive her freedom under the following provision, "Let her be free, if the first child she bears is a male," and she brings forth a male and a female child at a single birth, and it is certain which one was born first, there should be no doubt with reference to her condition; that is to say, whether she will be free or not; nor should there be any doubt so far as that of the girl is concerned, for if she was born after the boy, she will be freeborn. If, however, there is any uncertainty in this respect, and it cannot be removed by judicial investigation, where matters are doubtful it is better to adopt the more equitable opinion, and to presume that the male child was born first, so that the slave may obtain her freedom and her daughter be freeborn.
12. Julianus, Digest, Book XXXVI.
Whenever an usufruct is bequeathed to freedmen, and the ownership of the property to the last survivor, the bequest is valid, for I think that, in this instance, the property is left under the following condition: "If he should be the last survivor."
13. The Same, Digest, Book V.
Whenever there is any ambiguous clause in the phraseology of an action or an exception, it is most convenient to understand it in such a way that the property to which it relates shall rather be preserved than be lost.
14. The Same, On Ambiguities.
Where a man who had deposited two hundred aurei made the following bequest, "I leave to Seius three hundred aurei, in addition to the two hundred which I have deposited with him," these two sums, taken separately, have a certain designation, but where they are taken together, they give rise to ambiguity. It must, however, be held that not three hundred, but five hundred aurei are due, because the two sums are united.
(1) Where anyone makes a bequest as follows, "Let my heir give to Attius, together with Dion, the slave of Maevius, the Seian estate," there is some doubt as to whether the land was also left to Dion, or whether Dion was bequeathed along with the land. It is better to hold that not only the land, but also the slave Dion was left, and especially if the testator had no good reason to bequeath a legacy to Dion.
(2) Where we frame a stipulation as follows: "If you do not furnish such-and-such a slave, or such-and-such a tract of land, do you promise to pay a hundred aurei?" The penalty will be due, whether the stipulation is carried out or not; that is to say, the stipulation will be binding, whether neither one nor the other act is performed. It is evident that the same rule will apply where several things which we desire to be done are specifically mentioned, and we stipulate as follows, "If either of these things is not done," or, for example, "Do you agree to appear for Stichus, Damus, and Eros in court? If one of them is not represented, do you promise to pay ten aurei?" It is necessary for the party to appear for all of them, in order that the terms of the stipulation may be complied with. Or that the case may be more clearly stated, let us suppose the stipulation to be worded as follows: "Do you promise to pay ten aurei if you do not appear for Stichus, Damus, and Eros?" For we can have no doubt in this instance that all of them must be represented.
(3) There is a difference between the two following stipulations: "You will pay So-and-So so much if such-and-such a thing, or such-and-such a thing is not done," or, "If either of the things which it has been agreed should be done, is not done, you will pay such-and-such a sum," for while it is true that one or the other other is to be done, it is not, for this reason, true that one or the other of the two things is not to be done, for both of these propositions may be true, although they are opposed to one another; because when the meaning is not general, but has reference to some specific matter, if any of it is true it renders the whole clause true. Just as, on the other hand, two clauses containing statements which are opposite are both false at the same time; for instance, where some children of a testator die after reaching puberty, and others die before reaching that age, since on the one hand it is incorrect to say that all of them died under the age of puberty, and, on the other, it is also incorrect to say that they all died after that age. This results because the meaning is taken in a general sense, and in this case, if anything is false, it renders the entire clause untrue. Therefore it should be ascertained what the subject of the inquiry is, for if I should say such-and-such a thing, or such-and-such a thing should not be done, it ought to be asked if anything has not been done ? The effect of the former proposition is that neither of the things should be done; that of the latter that they both should be done. In the former instance, it will be of no advantage to the person not to have done one of the two things, if he did the other; and in the latter, it will not benefit him if he proves that he has done one of the two things, if he did not do the other.
(4) Hence, if anyone should put the following interrogatory: "Did you do any of those things with which you are charged?" and the party says he did not, he means to say, "I did not do any of those things with which I am charged," that is, "I did none of them."
(5) Where anyone inserts several things in a stipulation, one of which he desires to be done, he should frame the stipulation as follows: "Do you promise that such-and-such a thing, or such-and-such a thing shall be done, and if neither of them is done, will you pay such-and-such a sum?"
(6) Moreover, if the head of a household should insert the following in his will, "If a son or a daughter is born to me, let him or her be my heir; but if neither a son nor a daughter should become my heir, let Seius be my heir," he does not declare his purpose clearly enough if he intended to appoint a foreign heir, only in case neither his son nor his daughter should become his heir; for this should be expressed as follows: "If neither my son nor my daughter should become my heir." Sometimes, however, the former clause becomes necessary; as, for example, where anyone who has a son and a daughter desires to make both of them his heirs, and if only one of them should become his heir, to appoint a stranger with him or her, or if neither should become his heir, to substitute a stranger. That opinion, however, should be adopted which seems rather to correspond with the intention of the testator, so that if either a son or a daughter should be born to him, a stranger shall not be admitted to the succession, unless the testator expressly stated that this must be done.
15. Marcianus, Institutes, Book VI.
If anyone should make the following provision in his will, "Let my heir pays ten solidi to the witnesses who sealed my will," Trebatius holds that the legacy is valid. Pomponius also considers this to be true, because the will itself is confirmed by the production of the witnesses. This opinion I think to be correct.
16. The Same, Rules, Book II.
There are certain matters in which at first it is difficult to arrive at a conclusion, but in the end what has been done appears to be clear; as, for instance, where a bequest has been made, and, while the legatee is deliberating as to whether he will accept it or not, the heir transfers the property in question to a third party. In this instance the transfer will be void if the legatee should decide to accept the legacy; but if he should reject it, the transfer will be valid. The case would be the same if the heir should loan money belonging to the estate which was bequeathed; for if the legatee did not reject it, it would be held that the heir had loaned money belonging to someone else, but if the legatee rejected the estate he would be held to have lent his own money. But what if the money was expended? The same rule would apply, in accordance with the circumstances of the case.
17. The Same, Rules, Book III.
When we consider the case of persons dying at the same time, as well as the discussion of other matters; for example, where a mother stipulated that the dowry of her daughter should be returned to her by the husband, if her daughter should die during marriage, and the mother died at the same time as her daughter, the question arises whether an action based on the stipulation would lie in favor of the heir of the mother. The Divine Pius stated in a Rescript that the stipulation would not allow such an action to be brought, because the mother did not survive the daughter. The question was also asked if a stranger who stipulated for the return of a dowry should die at the same time as the husband, or at the same time as the wife on whose account he entered into the stipulation, could he transfer the right of action to his heir?
18. Paulus, On Plautius, Book XII.
The same rule applies where a dowry is left as a preferred legacy to a wife, and she dies at the same time as her husband.
19. Marcianus, Rules, Book III.
In the following instance, where a minor and his brother, who was his necessary heir, and was substituted for him, died at the same time, the question arises whether the brother would be the heir to his brother or not. Moreover, where two necessary heirs have been substituted for one another, and they perished together, will both be considered as the heirs of the testator, or will one of them be the heir of the other, that is to say, if they had been asked to deliver the estate to one another at the time of their death? In cases of this kind, if they should die at the same time, and it does not appear which of them was the first to lose his life, one of them will not be considered to have survived the other.
(1) However, with reference to the Falcidian Law, if a master dies at the same time as his slaves, the latter will not be reckoned as forming part of his estate at the time of his death.
20. Ulpianus, On Sabinus, Book XXV.
Where a legacy is bequeathed to relatives, and the said relatives have forfeited their rights as such, but still remain citizens, it must be said that they are entitled to the legacy, for they were members of the family at the time when the will was executed. It is certain that if anyone was not a member of the family when the will was made, but became one through arrogation, at the time of the death of the testator, he will, still more, be entitled to the legacy.
(1) If anyone should make a bequest to his kindred, it is the same as if he had made it to his relatives.
21. Paulus, On Plautius, Book XII.
As the Senate, in the time of the Divine Marcus, permitted bequests to be made to corporations, there is no doubt that if a bequest is made to a body which has a legal right to assemble, the latter will be entitled to it. However, a legacy left to one which has no right to assemble will not be valid, unless it is specially left to the members composing the same, for the latter will then be permittted to receive the legacy, not as an association, but as separate individuals.
22. The Same, On Plautius, Book XIV.
Where any ambiguity of language exists, the validity of a transaction will depend upon the intention of the parties; for instance, if I should stipulate for Stichus, and there are several slaves of that name; or for a slave in general; or for something to be delivered at Carthage, and there are two cities so called; and in every instance where doubt arises, it must be considered that the contract was made in good faith to be carried out in the place where it was most convenient, unless it is clear that it has been drawn up contrary to law.
23. Javolenus, On Cassius, Book V.
A mother lost her life in a shipwreck at the same time as her son who had reached the age of puberty. If it cannot be ascertained which of them died first, it is more natural to suppose that the son lived the longer.
24. Gaius, On the Lex Julia et Papia, Book V.
Where a woman perishes in a shipwreck, at the same time with her son who is under the age of puberty, the son is understood to have lost his life first.
25. Marcellus, Digest, Book XI.
It has been decided that where any statement, which is ambiguous, or even incorrect, is made in a will, it should be interpreted favorably, and in accordance with what is supposed to have been the intention of the testator.
26. Celsus, Digest, Book XXII.
"Let him be liberated whom I may tell my heir I desire shall be given his freedom, and let my heir be charged to give such-and-such a sum to him whom I shall designate." The wishes of the testator should be carried out, if the identity of the slave whom he had in his mind can be established in any way.
27. The Same, Digest, Book XXVI.
Where any question arises as to the intention of the parties in a stipulation, the ambiguity should be interpreted against the stipulator.
28. Modestinus, Rules, Book I.
Where a man desired one of his slaves to be manumitted, and it does not appear which one the testator intended to be liberated, none of them will be entitled to freedom under the terms of the trust.
29. Javolenus, On the Last Works of Labeo, Book III.
A certain individual that owned the slave Flaccus, who was a fuller, and Philonicus, who was a baker, left to his wife the baker Flaccus; and the question arose which of the slaves was due, and whether both of them were not included in the legacy. It was held, in the first place, that that slave was bequeathed whom the testator intended should form part of the legacy. If this could not be ascertained, an investigation should then be made to learn whether the master knew the names of his slaves. If this was the case, the slave would then be due whom he mentioned by name, even if he had made a mistake with reference to his trade. Where, however, the names of the slaves were unknown to him, the baker should be considered to be the subject of the legacy, just as if his name had not been mentioned.
30. Scaevola, Digest, Book XVIII.
manumitted several slaves by his will, and among them Sabina and Cyprogenia,
when each of them had reached the age of thirty years, and as soon
as they became free, he desired a certain sum of money to be given
to them; and he made the following provision, in which both slaves
were included: "I wish ten aurei to be given to Sabina
and Cyprogenia, each, when they arrive at the age above mentioned,
and, in addition to this, I desire ten aurei to be paid to
each of them every year, for their support, as long as they live."
The question arose whether support should be furnished to all the
slaves manumitted, or only to Sabina and Cyprogenia. The answer was
that, according to the facts stated, support seemed to have been bequeathed
to all of them.
Where a son under paternal control or a slave is appointed an heir, and the testator also illegally or insultingly bequeaths a legacy which will operate as a penalty against the father or the master, it has been held that the legacy is of no force or effect; for every bequest included in a will which is prompted by a desire for revenge, whether it is left to an heir or to anyone else who derives benefit from the last will of the testator, must be considered void.
2. Marcianus, Institutes, Book VI.
will of the testator distinguishes a penalty from a condition, and
whether it is a penalty, a condition, or a transfer that is referred
to in the legacy, must be ascertained from the intention of the deceased.
This the Divine Severus and Antoninus stated in a Rescript.
The Rule of Cato is stated as follows, "Any legacy that would be void if the testator died immediately after making his will will not be valid no matter how long afterwards he may die." This rule does not hold good in certain cases.
(1) But what if anyone should make a bequest as follows: "Let such-and-such a sum be paid to Titius, if I should die after the Kalends." Shall we quibble with reference to this? For, in this instance, if the testator should die immediately, it is better to hold that the legacy was not bequeathed at all, than that it was bequeathed illegally.
(2) In like manner, if a tract of land left to you was yours at the time the will was executed, and you alienated it during the lifetime of the testator, you will be entitled to the bequest, but you will not be entitled to it if the testator died immediately after having made his will.
2. Paulus, On Plautius, Book IV.
If, however, a bequest should be made as follows, "If my daughter should marry Titius," it is held to be valid if she should be married at the time of the death of the testator, even though at the time the will was made she was not marriageable.
3. Papinianus, Questions, Book XV.
The Rule of Cato is not applicable to either inheritances or legacies, the time of the vesting of which is not to be referred to the date of the death of the testator, but to that of the acceptance of the estate.
4. Ulpianus, On Sabinus, Book X.
It is well established that the Rule of Cato is not applicable to the conditional appointments of heirs.
5. The Same, On Sabinus, Book XXII.
Rule of Cato does not apply to new laws.
Where anyone has been asked to write the bequest of an estate or a legacy in a will to himself, the question arises whether the said bequest of the estate or the legacy shall be considered as not having been written; and also whether under an appointment made in this way, an heir can have a substitute. The answer was that the portion of the estate concerning which you have asked advice belongs to the substitute, for when the Senate fixed the penalties of the Cornelian Law against a person who, in a will, appointed himself heir or legatee of an estate, he is also held to have, in the same way, rendered appointments of an inveigling character void, as for instance, the following, "Let Titius be my heir to the same portion of the estate for which he himself has appointed me by his will," as provisions of this kind are considered just as if they had not been inserted in the will.
2. Alfenus Varus, Digest, Book V.
Where the meaning of any testamentary provision cannot be ascertained, it is just as if it had not been written, but the other provisions will still be valid.
3. Marcianus, Institutes, Book XI.
Anything over and above a bequest for maintenance which is left to a criminal sentenced to the mines is considered as not having been written, but it is not forfeited to the Treasury, because the legatee is the slave of a penalty, and not the slave of the Emperor. The Divine Pius stated this in a Rescript.
(1) If an heir or legatee, who was appointed, should be condemned to the mines after the will has been executed, the estate or the legacy will not be forfeited to the Treasury.
(2) Likewise, if anything is left to the slave of another, and he is afterwards purchased by the testator, the legacy will be extinguished; for any bequests which are transferred to a place from which they cannot originate are considered as not having been written.
4. Ulpianus, On the Lex Julia et Papia, Book XIII.
Where a bequest is made to anyone at a time when he is already dead, it is considered as not having been written.
(1) Moreover, where a legatee is in the power of the enemy at the time that the will is made, and does not return from captivity, the legacy is held not to have been written. This was also stated by Julianus.
5. Paulus, Questions, Book XII.
anyone appoints himself the heir in a will by which he is directed
to deliver the estate to someone else, the trust with its burden will
still remain imposed upon him, even though what he has done will be
considered as not having been written. The same rule also applies
to the will of a soldier.
The Divine Severus and Antoninus stated in a Rescript that a freedman to whom property had been bequeathed by the will of his patron should be deprived of his legacy or trust as being unworthy of it, if, after the death of his patron, he accused him of having been engaged in some illegal transaction, even though he may have deserved a reward for doing so.
2. The Same, Institutes, Book XI.
If an emancipated son, having been passed over, demands the possession of the estate of his father, in opposition to his will, and enters upon the estate as the substitute of a child under the age of puberty, he will be entirely deprived of the estate, which will be forfeited to the Treasury.
(1) Again, if anyone should, contrary to law, marry a wife in a province in which he exercises any public employment, the Divine Severus and Antoninus stated in a Rescript that he could not retain anything which he might have acquired by the will of his father; just as in the case of a guardian who marries his female ward in violation of the Decree of the Senate. Therefore, in both instances, if the person is appointed an heir to the entire estate, and enters upon the same, there will be ground for confiscation by the Treasury, for he will be deprived of the estate as being unworthy of it.
(2) On the other hand, however, this rule will not apply where a woman has married a man who is administering a public office in a province, nor to a female ward who has married her guardian unlawfully ; but it is better to hold that she can take under the will, and should not be rejected as unworthy of doing so.
(3) The same rule will apply where anyone gives away the entire estate, or a portion of the same, of some relative whom he has a right to succeed, but who he does not know is still living, for he will be deprived of the property as being unworthy.
3. The Same, Rules, Book V.
The Divine Pius decided that a person was unworthy (as Marcellus states in the Twelfth Book of the Digest) who was clearly proved to have permitted the woman by whom he was appointed heir to die through his own negligence and fault.
4. Ulpianus, On the Edict, Book XIV.
Papinianus, in the Fifth Book of Questions, says that where anyone accuses an heir of forging an appointment in a will, he will not be deprived of a legacy with which his co-heir, whom he did not disturb, has been charged.
5. Paulus, On the Rights of the Treasury.
After a legacy has once been accepted, it will still be lawful to prove that the will was forged, and it will also be proper to claim that it is void; but no allegation as to its being inofficious will be permitted.
(1) He who contends that a will is void and loses his case is not excluded from any provision made in his favor. Therefore, anyone who, having obtained a legacy, afterwards alleges that the will was forged, must lose what he received under it. However, with reference to him who received the legacy, and denies that the will is valid, the Divine Pius made the following statement in a Rescript: "Although the relatives of Sophro have received their legacies from the duly appointed heir, still, if they have good reason to suppose that the heir is not entitled to the estate, and that it belongs to them by the law of intestacy, they can claim it under said law. It shall be determined by the court, after proper examination, whether they should be excluded from the estate or not, after due consideration of their persons, their rank, and their ages."
(2) It has been well established that where a guardian has been appointed, and excuses himself from administering his trust, he will lose whatever he was entitled to under the terms of the will. If, however, he has already obtained it, he will not be allowed to excuse himself. I think that this rule will not apply to one who has only received a legacy, and having been requested by the mother of the minor to become his guardian, prefers to excuse himself; for, in this instance, he did nothing contrary to the will of the deceased. But the legacy which was refused to the guardian will not pass to the Treasury, but will be left to the son whose interests have been abandoned by the legatee.
(3) If a father or a master should attack a will, an action will be denied him, where the legacy is left either to his son or his slave, if they would obtain any advantage from the same. A different opinion must be given where the said legatee has received the sole benefit of the bequest.
(4) Where anyone entitled to a legacy is requested to manumit his slave, and anything is given to the slave by the will, it must be said that the act of the master will not prejudice the slave; and he should be purchased by the Treasury in order to be manumitted, provided the master is willing to sell him; but one who has refused to take under the will cannot be compelled to do this.
(5) If a son under paternal control alleges that the will is forged, let us consider whether an action should be refused his father. I think that if he made the accusation against the will of his father, an action should not be denied the latter.
(6) If anyone to whom I am charged to pay a legacy under a trust should say that the will is forged, I will be obliged to pay the legacy to the Treasury.
(7) Where anyone who alleges that a will is forged becomes the heir of the legatee, or of the heir who is appointed, it must be held that his statements will not prejudice him.
(8) The case is similar where a person alleges that a will is inofficious.
(9) Indulgence must be shown to the person who makes the accusation on account of his age, and especially if his guardian or curator desires to prove that the will is either forged, or inofficious. This the Emperors Severus and Antoninus stated in a Rescript.
(10) An action should be refused to those who have given testimony in favor of a party who alleged that the will was forged. This was decreed by the Divine Severus.
(11) Some authorities think, and very properly, that those should be refused an action who aided the accuser, or became sureties for him.
(12) Some authorities think that a Governor who declared a will to be forged is unworthy, if the heir who was appointed under it gains the case on appeal.
(13) In every instance, the requirements of his office will be sufficient excuse for the Advocate of the Treasury who has given assistance to the designs of the accuser.
(14) Where anyone attacks the principal will, he ought to be excluded from the benefits of the second, as well as from those granted by a codicil subsequently executed, even though they may not be confirmed by it. The same rule should not be followed where the party attacks the second will or the codicil, because, in this instance, he is not considered to have impugned the validity of both instruments.
(15) Let us consider whether a slave who attempted to break the will by his testimony should be deprived of the freedom granted him by the said will. He is not worthy to obtain the benefit of the trust, and so far as his liberty is concerned, the Divine Pius decided that he should be deprived of it.
(16) Where a party is appointed a guardian, he cannot, by alleging that the will was forged, be excused from serving in that capacity, but he can be excluded from the benefit of the legacy.
(17) Anyone who received from a testator a donation mortis causa does not, in this respect, resemble a legatee.
(18) The case is different with him who, under the terms of a will, is directed to receive something from a legatee, or a slave who is to be liberated conditionally, for he can be excluded as being unworthy.
(19) The Divine Pius and Marcus decided that under such circumstances the appointed heir should be excluded from the benefit of the Falcidian Law.
(20) All those who are rejected as being unworthy shall be excluded from participating in the reward which, according to the Edict of the Divine Trajan, should be given to those who accuse themselves.
6. Marcellus, Digest, Book XXII.
It was stated by the Emperor in a Rescript that an heir shall not retain the fourth part of an estate if he has appropriated any of the assets of the same; and therefore if the deceased left an estate of four hundred aurei, and the heir should abstract a hundred of them, and retain a quarter of the three hundred, that is to say, seventy-five, and give to the legatees two hundred and fifty, he must also give them seventy-five out of the hundred which he stole, and the remainder, that is to say, twenty-five, will be forfeited to the Treasury.
7. Modestinus, Differences, Book VI.
Where anyone alleges that the will of Titius is forged, and does not prove his allegation, he will not be prevented from becoming the heir of the heir of Titius, because he does not succeed directly to the estate of Titius.
8. The Same, Rides, Book IX.
Where an heir has been declared unworthy, and deprived of an estate, any rights of action which may have been merged cannot be restored to their original condition.
9. Ulpianus, On the Lex Julia et Papia, Book XIV.
If mortal hatred should have arisen between a legatee and the testator, and it should be probable that the latter was unwilling that he to whom a legacy, or the benefit of a trust was bequeathed, should enjoy the benefit of the same, the better opinion is that the legacy cannot be claimed by him.
(1) Again, where he has openly and publicly abused the testator, and made malicious speeches against him, the same rule will apply.
(2) Where, however, the civil condition of the testator is the cause of the controversy, raised by the legatee, the latter will not be entitled to what has been left him, which will, in this instance, immediately be forfeited to the Treasury.
10. Gaius, On the Lex Julia et Papia, Book XV.
He is guilty of a fraud against the law who tacitly agrees to deliver what is left to him, or anything else, to a person who is legally prohibited from taking under the will, whether he gives a written instrument to this effect, or undertakes to do so by a mere promise.
(1) Where anyone was charged to deliver certain property to someone who can take under a will, and who, at the time of death, has been forbidden to do so, I have no doubt that although the trust is extinguished, it should still remain with him who was asked to deliver the property, because no fraud is held to have been committed by him, unless he bound himself with reference to what he knew would occur; that is to say, that he would deliver the property to the beneficiary even though he might be legally incapacitated from receiving it.
(2) It has very properly been held that if the father of a son who is under his control makes a tacit agreement, this should not prejudice the son, because he is obliged to obey his father.
11. Papinianus, Questions, Book XV.
Where an heir has entered into an illegal tacit agreement, he cannot avail himself of the Falcidian Law with reference to the portion which was the subject of the fraudulent contract. This rule was established by the Senate. Where, however, the share of the estate to which he was appointed heir is larger than that which he fraudulently agreed to deliver, he can retain the Falcidian fourth from the excess of his share under the will.
12. The Same, Questions, Book XVI.
Where a certain man appointed heirs whom he had no right to select, although designation of this kind is not valid, and the first will is not broken in consequence, still, the Senate long since decreed that the heirs who were entitled to the estate under the last will of the deceased should be deprived of the same as unworthy. This the Divine Marcus decided with reference to a person whose name the testator had erased from his will, after it had been executed, for he sent the case to the Prefects of the Public Treasury. The legacies left by the will, however, remained unimpaired. With reference to the preferred legacies bequeathed to the heir, a question as to the intention of the testator may arise, and these legacies will not be refused to him, unless it clearly appears that the intention of the testator was otherwise.
13. The Same, Questions, Book XXXII.
Claudius Seleucus to his friend, Papinianus, Greeting. Maevius, having been condemned for adultery with Sempronia, married the said Sempronia, who had not been convicted of the offence, and he, at his death, appointed her his heir. I ask whether the marriage was legal, and whether the woman could be admittted to the succession. I answered that a marriage of this kind could not stand, and that the woman was not entitled to the benefit of the estate, but what was left by the will would be forfeited to the Treasury. Even though in a case of this kind the woman should appoint her husband her heir, we hold that he should be deprived of the estate as being unworthy of the same.
14. The Same, Questions, Book XXXIII.
Where a woman has been living with a soldier as his concubine, even if the said soldier should die within a year after his discharge, after having made a will in favor of the woman, I have recently given you as my opinion that she cannot enjoy the benefit of such a will executed in accordance with military law, and whatever is left her will belong to the Treasury.
15. The Same, Opinions, Book VI.
An heir who alleges that a codicil is false, and does not prove his case, shall not be deprived of the estate. If, however, his co-heir was charged by the same codicil with a trust for his benefit, an action to compel the execution of the trust will be refused him. Therefore, if the deceased made a distribution of his property among his heirs by means of the codicil, the party who asserts that it is forged will retain his hereditary share, except where a legacy has been left to him in trust; but he cannot enjoy the benefit of the Falcidian Law, if, in that part of the estate which he forfeited there should be enough property to make up for the Falcidian portion which he lost under the just principle of set-off.
16. The Same, Opinions, Book VIII.
Where, by a second will, a father made a pupillary substitution of his nephews for his son, who was under the age of puberty, and who had already been appointed the co-heirs of the latter, and the said nephews, substituted after the death of the minor, accused his mother of having produced a spurious child, in order to obtain the estate on the ground of intestacy, I answered that if they lost their case they should be deprived of the share of the estate to which they were entitled by the substitution, because a decree with reference to the will had not been rendered in their favor.
(1) As it is not considered a disgrace for a woman to become the concubine of a man who is not her patron, an action to recover what was left him by her will will not be denied to him who kept a woman as a concubine. Our most illustrious Emperors took this view in the case of Cocceius Cassianus, a man of the highest rank, who had greatly favored Rufina, a freeborn woman, to whom he was much attached, and whose daughter he had referred to in his will as his foster-child, and had appointed co-heir with his granddaughter, although it was afterwards ascertained that she was illegitimate.
(2) It was decided by the Divine Marcus that where a testator, having unsealed his will, erased the name of an heir through having changed his mind, and, in consequence of this, his share was adjudged to be forfeited to the Treasury, this fact would not prejudice the legatees with reference to whom the intention of the testator remained unaltered, and therefore that the share of the aforesaid heir would go to the Treasury with all its burdens.
17. The Same, Opinions, Book XIII.
I held that an heir who, being aware of the murder of the deceased, failed to avenge his death should be compelled to surrender all the profits of the estate, without being able to legally demand that the rights of action which had been merged when he obtained the estate should be restored to their former condition. Where, however, the heir has been misled by his ignorance of the crime, he will be entitled to the same defence, as a bona fide possessor, so far as the profits collected before the controversy arose are concerned; and in this case his demand that the rights of action which have been merged shall be restored to their former condition will not be improperly made.
18. The Same, Opinions, Book XV.
I gave it as my opinion that a person who fraudulently undertook the execution of a trust could be compelled to also surrender those profits which he had collected before legal proceedings were instituted; for he is not considered to have been a bona fide possessor; just as is the case with those who hold property which is claimed by the Treasury. I held that, after the controversy arose with reference to the execution of a trust of this description the value of the profits previously collected, together with the interest on the same, should be surrendered; and this applies to all the profits for which a price has been paid, but if the party had used the profits himself, only their value without interest should be refunded. The Divine Severus in a case of this kind graciously decreed that only the profits of the property, and not the interest on the same, would be due without any distinction of the time when they had been collected. This is the practice at the present time.
(1) Where all the property of an estate has been forfeited to the Treasury on account of the execution of a trust fraudulently undertaken, it is not proper that the heir should remain subject to the burden of the debts of the estate. The same rule applies where the death of the testator is not avenged. If, however, the heir has sustained any loss by entering upon the estate through the merger of rights of action or of servitudes, he will not be considered worthy of the relief of restitution.
(2) An heir, having been appointed to a share of an estate, received the devise of a tract of land, and agreed to deliver what he had received to a person who was legally incapable of receiving the same. Although the devise was not legal, so far as his share was concerned, that is to say, the portion to which he was entitled as heir, still, I gave it as my opinion that his right to the land was unimpaired, for neither the rule of law nor the difference of possession could accomplish the division of the will of the testator.
19. Paulus, Opinions, Book XVI.
If the appointed heirs are deprived of the estate because the testator, having changed his mind, desired to make another will and was prevented by them from doing so, he will be considered to have entirely revoked his former will.
20. Hermogenianus, Epitomes of Law, Book III.
A husband who does not avenge the death of his wife shall be deprived of her dowry as being unworthy.
21. Paulus, Sentences, Book III.
The shares of the estates of freedmen that have lost their lives under suspicious circumstances, which are due to patrons who neglect to avenge their death, shall be forfeited to the Treasury. For all heirs, as well as those who occupy the position of heirs, are required, as a matter of duty, to avenge the death of the deceased.
22. Tryphoninus, Disputations, Book V.
For the best of reasons, it can be maintained that a guardian who alleges in the name of his ward that a will is forged or inofficious, but is unable to prove his contention, does not lose his legacy. And even if he charges a freedman of the father of his ward with a capital crime, in the name of the latter, he shall not be excluded from possession of the estate in opposition to the terms of the will, because the requirements of his duty, and his responsibility as guardian should excuse him; nor can anyone convict a guardian of malicious prosecution who brings an accusation in the name of his ward, and not through any enmity entertained by himself, but, perhaps, induced by the representations of the mother of the ward, or at the instigation of the freedmen of the father. If a guardian accuses anyone of a crime in the name of his ward, and does not prosecute the case, because, in the meantime, the ward has arrived at the age of puberty, it must not be said that he has become liable to the Turpillian Decree of the Senate, as the rights are distinct, even though several are united in the same person, for the rights of a guardian are one thing, and those of a legatee another; and where a guardian brings an accusation, not in his own name, but in that of his ward, he does not deserve punishment. Finally, property left to a ward by a will under such circumstances is lost, unless it is preserved by order of the Emperor; to such an extent is he the defender, and, as it were, the patron of him who makes the accusation. Sabinus says the same thing in his works on Vitellius.
23. Gaius, On Implied Trusts.
Where any heir whosoever, having been tacitly requested by the will of a testator to deliver to some person not entitled to receive it a fourth part of the estate to which he is entitled under the Falcidian Law, there will also be ground for the application of the Decree of the Senate; for there is not much difference between a trust of this kind and one where an heir is charged to give property which he has received from an estate to a party who is incapable of receiving it.
24. Papinianus, Questions, Book XVIII.
Where a son denies that his father's will is valid, as the controversy relates to the legality of the instrument, and he does not attack the testamentary provisions made by his father, or accuse him of any offence, he will retain what was left him by the deceased.
25. The Same, Opinions, Book XIV.
Where a son-in-law appoints his father-in-law his heir, the sole incentive of paternal affection will not permit any suspicion to attach to the implied execution of the trust.
(1) Claudius, in the Thirtieth Book of the Digest on Scaevola, remarks that if the party to whom an unlawful bequest was made should die during the lifetime of the testator, the bequest will not be forfeited to the Treasury, but will remain in the hands of him who was charged with the execution of the trust.