1Ulpianus, On Sabinus, Book I. He who executes a will should generally begin with the appointment of an heir. He can also begin with a disinheritance specifically made; for the Divine Trajan stated in a Rescript that a son may be disinherited by name, even before the appointment of an heir. 1We also say that an heir has been appointed where the testator did not write, but only mentioned his name. 2A person who is dumb, or one who is deaf, can legally be appointed an heir. 3Where a testator is not about to bequeath any legacies or disinherit anyone, he can make a will in five words, by saying: “Let Lucius Titius be my heir”. This formula can also be used by a person who does not commit his will to writing, and who can even make a will in three words, as where he says: “Let Lucius be heir”; for the words my and Titius are superfluous. 4Where anyone is appointed sole heir to a tract of land, the appointment will be valid, without any mention of the land. 5If anyone should write as follows: “Lucius heir”, even though he may not add, “Let him be”; we hold that this is a nuncupative, rather than a written will. And if he should write: “Let Lucius be”, we hold that it would amount to the same thing. Therefore, if he should only write “Lucius”, Marcellus thinks, and not without reason, that this form would not be accepted at the present time. The Divine Pius, however, in the case where a testator, who was distributing certain portions of an estate among his heirs, merely said: “So-and-So to all this share, and So-and-So to all that”; but did not add “Let him be heir”, the Emperor stated in a Rescript that the appointment was valid, and this opinion was also adopted by Julianus. 6The Divine Pius also stated in a Rescript that an appointment was valid when made in the following terms: “Let my wife be”, even though the word “heir” was lacking. 7Julianus does not think, that an appointment made as follows, “So-and-So to be heir,” is valid, since something is lacking. This appointment, however, will be valid, because the words, “I order”, are understood.

2The Same, On Sabinus, Book II. Where a testator makes use of the words: “I appoint So-and-So and So-and-So to be my heirs according to their shares”; with reference to those who are appointed heirs, Marcellus does not think that they become such where no shares have been assigned to them, just as if they had been designated in the following terms: “If I should specify their shares”. The better opinion is, that where the wishes of the deceased are not disregarded, each appointment should be understood, for instance: “I appoint them heirs for the shares of the estate which I shall assign to them, but not to equal shares”; just as if a twofold appointment had been made. This opinion Celsus approves in the Sixteenth Book of the Digest. But he thinks otherwise where an appointment is made as follows: “Let Seius be my heir to the same portion to which Titius has appointed me heir”; for if he was not appointed by Titius, Seius will not be appointed by him. This opinion is not unreasonable, for in this instance a condition is involved. Marcellus, however, thinks that the cases are similar. 1It makes a difference where a party writes: “Of those shares which I have assigned to him”, or “Which I shall assign to him”, for, in the first instance, you can say that where no shares are designated, there is no appointment; just as Marcellus decided in a case where the appointment was made as follows: “Let So-and-So and So-and-So be heirs to those portions to which they have been appointed by the will of their mother”, and if their mother should die intestate, they will not be legally appointed.

3The Same, On Sabinus, Book III. A slave who belongs entirely, or partly, to another, can be appointed the heir of the testator, without the grant of his freedom. 1If I appoint my slave to be absolutely my heir, but grant him his freedom under a certain condition, his appointment will be deferred until the time when his freedom is granted him. 2Where a party stated in his will: “If Titius shall be my heir, let Seius be my heir and let Titius be my heir”; the acceptance of Titius is awaited as a condition for Seius to become the heir. And, indeed, this is reasonable, and seems so to Julianus and Tertyllianus. 3Where an heir has accepted a trust by which freedom is conditionally granted to a slave, the said slave can be appointed heir by the former, with an absolute grant of his freedom, without waiting for the fulfillment of the condition, and he will obtain both his freedom and the estate. In the meantime, he will be a necessary heir, and will become a voluntary heir when the condition is fulfilled, so that he will not cease to be an heir, but the right of succession will be changed so far as he is concerned. 4Delay in opening a will does not affect the rights of a necessary heir, as we are accustomed to hold where anyone is substituted for a minor. For it has been established that if the substitute gives himself to be arrogated by the minor, as the son of the deceased, he will become his necessary heir.

4The Same, On Sabinus, Book IV. A direct heir can also be appointed under a condition. The son of the testator must, however, be excepted, because he cannot be appointed under any condition whatsoever. He can, indeed, be appointed under a condition which it is in his power to carry out, and on this opinion all authorities are agreed; but will the appointment take effect if he fulfills the condition, or will it do so if he should not fulfill it, and dies? Julianus thinks, where a son has been appointed heir under such a condition, that he cannot be removed from the succession, even if he should not comply with the condition, and therefore when he is appointed in this way and has a co-heir, the latter is not obliged to wait until the son complies with the condition; since, although the latter, by not complying with it, can render his father intestate, there is no doubt that the co-heir should wait. This opinion seems to me to be correct, so that where a son is appointed under a condition, compliance with which depends upon his will, he cannot by avoidance render his father intestate. 1I think that, generally speaking, a question of fact is involved in the case where a condition is, or is not, dependent upon the power of the son to carry it out. For a condition like this: “If he should go to Alexandria”, does not depend upon the will of the son, if the weather should be severe, but it may depend upon it where the condition was imposed upon a person who only lived a mile from Alexandria. The following condition: “If he should pay ten aurei to Titius”, presents a difficulty, if Titius should be absent upon a long journey. Hence, recourse must be had to the general definition of a condition which can be complied with by the party in question. 2If, however, after the testator appointed his son his heir under a condition which the latter was able to carry out, or where he appointed a stranger, I think that the substitute cannot become an heir during the lifetime of the son, but can after his death; and it is not necessary for the son to be disinherited by the appointment of the substitute. And even if the disinheritance should be made it would be void; for we have shown elsewhere that where this takes place after the death of the son it is invalid. Therefore, we are of the opinion that where a son has been appointed under such a condition, and is under the control of his father, he does not need to be disinherited from the following degrees; otherwise he must also be disinherited by the appointment of a co-heir.

5Marcellus, On Julianus, In the Twenty-ninth Book of the Digest, Observes That: If the condition under which the son was appointed an heir is of such a character that it is certain that at the last moment of his life it cannot be fulfilled, and, while it is pending, the son dies, he will be the heir to his father just as if the latter was intestate; for instance: “If he should go to Alexandria, let him be my heir”. If, however, the condition can be complied with during the last hours of his life, for example, “If he pays ten aurei to Titius, let him be my heir”, I hold that the contrary is true.

6Ulpianus, On Sabinus, Book IV. Where a certain time is mentioned in the condition, for instance: “If he goes up to the Capitol within thirty days”; it can be said that if he does not comply with the condition, the son will be excluded from, and the substitute will be admitted to the succession. This is the result of the opinion of Julianus and myself. 1The grandsons and other successors of the testator, who, when appointed, do not break the will under the Lex Velleia, can be appointed under any condition whatsoever, although they occupy the position of a son. 2We are accustomed to say that anything which occurs in the intermediate time does not injuriously affect the heir; for example, where the party appointed is a Roman citizen, and becomes a foreigner during the lifetime of the testator, and afterwards recovers his Roman citizenship, what has happened to him in the meantime does not prejudice his rights. Where a slave belonging to another is appointed an heir, and afterwards is delivered to another slave belonging to the estate, and is then acquired by a stranger through usucaption, his appointment as heir is not annulled. 3When a master appoints a slave, owned by him in common with another, his heir with the grant of his freedom, and ransoms him from his joint-owner, he becomes a necessary heir. Where, however, the slave is substituted for a minor, and the latter purchases the share of the other joint-owner, Julianus says that the said slave does not become a necessary heir. 4It is asked by Julianus whether this slave, appointed heir with a grant of his freedom, can subsequently be deprived of it by means of a codicil. He holds that in the case where the said slave becomes a necessary heir, any deprivation of his freedom will not be valid, for he would be compelled to deprive himself of it; as where a slave is appointed an heir, he receives his freedom from himself. This opinion is reasonable, for as he cannot bequeath his freedom to himself, so also he cannot deprive himself of it.

7Julianus, Digest, Book XXX. When a slave held in common is appointed an heir under some condition, and obtains his freedom during the lifetime of the testator, he can enter upon the estate while the condition under which he is to obtain freedom by the will, is still pending. 1Again, he will be entitled to the estate by the order of his master, even if the testator had alienated him during his lifetime, or the heir has done so after the death of the testator.

8The Same, On Urseius Ferox, Book II. Two partners by their will directed a certain slave owned in common by them to be their heir and free, and both of them perished at the same time by the fall of a house. Several authorities gave it as their opinion that, in this instance, the slave became the heir of, and obtained his freedom from both of them; and this opinion is correct. 1Where two partners direct a slave owned in common by them shall become free and their heir, under the same condition, and the condition is complied with, the same rule of law will apply.

9Ulpianus, On Sabinus, Book V. Whenever a testator who wishes to appoint an heir appoints another person through a mistake in the individual (as for instance, “My brother, my patron”), it is settled that neither of them will be his heir; he who is mentioned, for the reason that it was not the intention of the deceased to appoint him; nor he whom he intended to appoint, because he was not mentioned. 1In like manner, if a testator should make a mistake with reference to the property (for instance, if he should leave a garment when he intended to leave a dish), he will owe neither. This rule applies whether the testator wrote his will himself, or dictated it to be written by another. 2Ad Dig. 28,5,9,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 76, Note 5.Where, however, the testator was not mistaken with reference to the article itself, but only as to a part of what was to be bequeathed (for example, if, while dictating, he stated that a certain party should be appointed heir to half his estate, while, in fact, he was appointed only to a fourth), Celsus says, in the Twelfth Book of Questions and the Eleventh Book of the Digest, that it can be maintained that the party is heir to half of the estate, as the larger amount was mentioned, but the smaller one was written; and this opinion is supported by certain general rescripts. The same rule will apply if the testator himself writes down a smaller amount when he intended to write a larger one. 3But if the person who drew up the will put down the larger amount or (which is a matter more difficult of proof), the testator himself did so, as, for instance, a half instead of a quarter, Proculus thinks that the heir will only be entitled to the quarter, since the quarter is contained in the half. This opinion is also approved by Celsus. 4Where, however, the testator writes two hundred for one hundred in figures, the same rule of law will apply, because both the sum that he intended and what was added to it were written at the same time. This opinion is not unreasonable. 5Marcellus discusses this same point with reference to a party who, intending to insert a condition in his will, did not do it; and he holds that the heir should not be considered as having been properly appointed. If, however, he added a condition without intending to do so, it will be annulled, and the heir will be admitted to the succession; since whatever is written contrary to the intention of the testator is not held to have been mentioned by him. This opinion is adopted by Marcellus, and we approve it. 6He also discusses the point that, if the person who draws up the will omitted the condition against the wishes of the testator, or changed it, the heir will not be entitled to the succession, and will be considered as not appointed. 7But where the testator who intended to appoint one heir to half his estate, appoints both a first and second heir, the first one will solely be considered his heir, and the only one appointed to half the estate. 8Where a testator does not mention the name of his heir, but designates him by some mark which does not admit of doubt, and which differs very little from mentioning him by name, without, however. adding any epithet which may cause him injury, the appointment will be valid. 9No one can appoint an heir without designating him with certainty. 10When a testator says: “Let whichever of my brothers, Titius and Mævius, who may marry Seia, be my heir to three quarters of my estate, and the one that does not marry her, be my heir to the remaining quarter”; in this instance, it is certain that the appointment is legally made. 11It is clear that an appointment made in the following terms, namely: “Let whichever of my above-mentioned brothers who marries Seia be my heir”, comes under the same rule. I think that this appointment is valid, as being made subject to a condition. 12Heirs are legal successors, and, where several are appointed, their respective rights must be apportioned among them by the testator; for if he does not do this, all of them will share equally as heirs. 13Where two heirs are appointed, one to a third of the Cornelian Estate, and the other to two-thirds of the same estate, Celsus adopts the very appropriate opinion of Sabinus that, leaving the mention of the land out of consideration, the heirs whose names appear in the will are entitled to the estate just as if their respective shares had not been indicated; provided that it is perfectly evident that the will of the testator has not been disregarded. 14Where a testator inserts in his will: “Let Stichus be free, and after he becomes free let him be my heir”, Labeo, Neratius, and Aristo hold that if the word “after” should be omitted, the slave will obtain his freedom and the estate at the same time. 15If anyone should appoint an heir to a third of his estate, and another also to a third, and, in case there should be no second heir, appoints still another heir to the two-thirds; in this instance, if the second should reject the estate, the third heir appointed will be entitled to two-thirds of it, not only by the right of substitution, but also by that of appointment; that is to say, he will have one-third of the estate by the right of substitution, and one-third by the right of appointment. 16Where a slave is appointed an heir with the grant of his freedom, and then is alienated, he can enter upon the estate by the order of the party to whom he has been transferred. If, however, he should be ransomed by the testator, his appointment will be valid, and he will become a necessary heir. 17If a slave should be granted his freedom to date from a certain time, and is left the estate absolutely, and he is afterwards alienated or manumitted, let us see whether his appointment will be valid. And, indeed, if he should not be alienated, it can be maintained that his appointment will be valid, so that he will become a necessary heir when the day he receives his freedom, and which delays his right to the estate, arrives. 18But where his freedom is granted him from a certain time, and the estate is left to him under a certain condition, if the condition should be fulfilled after the day of his freedom arrives, he will become both free and the heir. 19When a slave has been appointed an heir unconditionally, and his freedom is to date from a certain time, if he should be either alienated or manumitted, it must be said that he can become the heir. 20Where, however, not the slave himself, but only the usufruct in him is alienated, his appointment will be valid, but it will be postponed until the time when the usufruct is extinguished.

10Ad Dig. 28,5,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 553, Note 5.Paulus, On Sabinus, Book I. When anyone appoints heirs to different portions of different tracts of land, it will be the same as if they had not been appointed to certain portions of the same; for it is not easy to ascertain what their shares will be in the different tracts. Therefore, it is more expedient, as Sabinus says, for it to be considered that the testator had neither mentioned the land, nor the shares to which they were entitled.

11Javolenus, Epistles, Book VII. “Let Attius be my heir to the Cornelian Estate, and let the two persons named Titius be my heirs to such-and-such a house.” The persons named Titius will be entitled to half of the estate, and Attius to the remaining half. This opinion is held by Proculus; what do you think of it? The answer is that the opinion of Proculus is correct.

12Paulus, On Sabinus, Book II. Where unequal shares in an estate were bequeathed by a testator, and he added, “Let those heirs to whom I have allotted unequal portions share equally”; it should be held that they do share equally, provided this clause was inserted before the completion of the will.

13Ulpianus, On Sabinus, Book VII. Sometimes, this addition, “Let my heirs share equally”, expresses the intention of the testator; as, for instance: “Let the first, and the sons of my brother share equally”; for this addition indicates that all the heirs are appointed for equal shares, as is stated by Labeo; and if it is omitted, the first will be entitled to half the estate, and the sons of the testator’s brother to the other half. 1The father of a family can divide his estate into as many portions as he wishes, but the regular division of an estate is made into twelve shares, called unciæ. 2Hence, if the testator divides his estate into a smaller number than this, recourse is had to this rule by operation of law; for example, where a testator appoints two heirs each to a fourth of his estate, for in this case the remainder of the estate is apportioned in such a way that each heir is held to have been appointed for six shares. 3Where, however, one heir is appointed for one-fourth of the estate, and another for half, the remaining fourth will be added in proportion to the shares which they inherit respectively. 4If a testator should divide his estate into more than twelve shares, a diminution will then be made pro rata, as for example, if he appointed me heir to twelve shares, and you heir to six, I will be entitled to eight shares of the estate, and you to four. 5When a testator appoints two heirs for the entire estate and two others for twelve parts of the same, the inquiry is made by Labeo, in the Fourth Part of his Last Works, whether an equal distribution shall be made. And he holds that the former are entitled to half the estate, and those who are appointed for twelve shares of it will be heirs to the other half. I think that this opinion should be adopted. 6If, however, a testator should appoint two heirs for his entire estate, and then appoint a third for a half and a sixth of the same, Labeo says, in the same book, that the entire estate should be divided into twenty parts, of which the two first heirs shall have twelve, and he who was appointed for the half and the sixth will be entitled to eight. 7Labeo also gives as an example: “Let Titius be appointed for a third of my estate”; and then, after the entire estate had been disposed of was added: “Let the same Titius be appointed for a sixth”. Trebatius says that this estate should be divided into fourteen parts.

14Javolenus, On Cassius, Book I. If anyone should appoint heirs as follows: “Let Titius be heir to the first share, Seius to the second, Mævius to the third, and Sulpicius to the fourth”, equal shares of the estate will belong to the parties appointed; for the reason that the testator is held to have named them rather to show the order of their designation, than to prescribe the method of dividing the estate into shares.

15Ulpianus, On Sabinus, Book XXX. Julianus states in the Thirtieth Book that where a testator appointed his heirs as follows: “Let Titius be the heir to half of my estate, and Seius to half, and out of the portion which I have left to Seius, let Sempronius be my heir to an equal amount”; it may be doubted whether the testator intended to divide his estate into three shares, or whether he intended to join Seius and Sempronius as heirs to the same half. The latter is the better opinion, and therefore these two are held to have been appointed heirs to the same portion of the estate; hence the result is that Titius will be entitled to half of the estate, and each of the others to a fourth of the same. 1The same authority stated in the same book, that where a testator said, “If the first is heir to one-half, the second will be heir to the other half; but if the first should not be an heir, let the third be substituted as heir for three-quarters of my estate”. This is indeed a question of fact, but it may very properly be said that if the first heir enters upon the estate, the others will be entitled to equal shares of the same; but if he rejects it, it must be divided into fifteen parts, of which the third heir will be entitled to nine, and the second to six.

16Julianus, Digest, Book XXX. For the third heir occupies the position of one who has been both appointed and substituted, as he is held to have been appointed for three parts of the estate, and substituted for six.

17Ulpianus, On Sabinus, Book VII. Sabinus says that where a share has not been allotted to one of the heirs this requires investigation. For instance, where a testator appointed two heirs, each to a fourth of the estate, but did not assign anything to the third, the latter will be entitled to the remainder. Labeo also adopts this opinion. 1The same authority discusses the question: “Where a testator appointed two heirs to eleven shares of his estate, and two without any, and afterwards one of those to whom no share was assigned rejected the succession, will the twenty-fourth to which he was entitled belong to all the heirs, or to him alone to whom no share was assigned? He does not determine this point. Servius, however, says that the share will belong to all the heirs, and I think that this opinion is the better one; for, so far as the right of accrual is concerned, those who are appointed without any share are not joint heirs with the others. This opinion is adopted by Celsus in the Sixteenth Book of the Digest. 2Sabinus also holds that where the testator has disposed of the entire estate, and appointed two heirs without assigning them any portion thereof, neither of them will be joint-heirs with the others. 3But if, after having disposed of the entire estate, he should appoint another without any share, the latter will be entitled to half of double the amount of the original shares of the said estate. It will be otherwise, however, if, after having disposed of his entire estate, the testator should provide: “Let So-and-So be my heir to the remainder”; since, as there is nothing left, an heir cannot be appointed for any share. 4But if, after the entire estate was disposed of, two heirs should be mentioned without any shares being assigned to them, the question arises, shall these two be united in the doubling of the estate, or only in a single division of the same? Labeo thinks, and it is the better opinion, that they will be entitled to share in a single division; for, where one has been appointed without the assignment of any share, and afterwards two are appointed together without any share being assigned to them, Celsus says, in the Sixteenth Book, the estate should not be divided into three portions, but only into two. 5But if the testator, after doubling the shares of the estate, should divide it between two heirs, and should appoint a third without any share, the number of original shares will not be tripled; but the said third heir will be entitled to a third part of the same, as Labeo stated in the Fourth Book of his Last Works, and this opinion is not referred to by either Aristo or Paulus, perhaps because they deemed it correct,

18Paulus, On Vitellius, Book I. Sabinus says: “The question arises where a testator had distributed among his heirs a larger number of shares than the usual division of an estate requires, and had appointed one heir without any share; will the latter be entitled to half the double division, or only what is lacking of the twenty-four shares?” I think that the latter opinion is the more correct one, so that the same ratio shall be observed where the division is doubled, or any other greater number of shares is made than is done in the ordinary distribution of an estate. Paulus: “The same ratio must be observed in the second division as in the first”.

19Ulpianus, On Sabinus, Book VII. Pomponius and Arrianus assert that a discussion arose with reference to the following point, namely, where a man left a portion of his estate undisposed of, and then provided, “If Seius” (whom he had not appointed) “should not be my heir, let Sempronius be my heir”, whether the latter could take that portion of the estate which had not been allotted to anyone. Pegasus thinks that he would be entitled to this portion. Aristo holds the contrary opinion, because a share was allotted to him which did not exist. Javolenus, Pomponius, and Arrianus approve this opinion, which prevails at the present time.

20Paulus, On Sabinus, Book II. It makes no difference to what place an heir to whom no portion of the estate has been given is assigned, whether to the first, the intermediate, or the last. 1Where the fourth of an estate has been left to a person who is already dead, and the remaining three-fourths to another, and a third part was mentioned without any share of the estate being allotted to him, Labeo says that the one who was appointed heir without any share will be entitled to half of the doubled shares of the estate, and that this was the intention of the testator. Julianus also approves this opinion, and it is correct. 2Where a person who is living and one who is dead are appointed joint-heirs to half of an estate, and a third party to the other half; he says that they will be entitled to equal shares, because the share assigned to the deceased is considered as not having been mentioned.

21Pomponius, On Sabinus, Book I. Trebatius says that the following is not correctly stated: “Whoever shall be my heir, let Stichus be free and my heir”, but that the slave will, nevertheless, become free. Labeo holds, and very properly, that he will also be the heir. 1I think it very probable that freedom can be absolutely granted to a slave, and that the estate can, at the same time, be bequeathed under some condition, in such a way, however, that both provisions will depend upon the condition.

22Julianus, Digest, Book XXX. The condition having been fulfilled, the slave will become free and an heir; no matter in what part of the will freedom has been conferred upon him. Where, however, the condition has not been fulfilled, it is considered that freedom has been bestowed upon him without the estate.

23Pomponius, On Sabinus, Book I. Where an heir is appointed for a time which is either certain or uncertain, he can claim possession of the estate, and can dispose of it as the heir. 1But if he should not claim possession of the estate, but postpones compliance with the condition, which he can very easily carry out (for instance, if the condition was that he should manumit a slave who is under his control, but he does not do so), in this case it is the duty of the Prætor to issue his edict designating the time within which the heir shall enter upon the estate. 2Likewise, if the heir cannot comply with the condition because it is not in his power (for instance, when it consists of something to be done by another, or depends upon some uncertain event, for example: “If he should become Consul”); and the Prætor should then decide, upon application of the creditors, that unless the estate was accepted and entered upon within a certain time, he would direct the said creditors of the estate to take possession of the property of the deceased, and, in the meantime, would order any of the property which it was necessary to dispose of to be sold by agents appointed for that purpose. 3Where, however, an heir is appointed under a condition, and the indebtedness of the estate is considerable, and is liable to be increased by the imposition of penalties, and especially where there is a public debt, the indebtedness should be discharged by means of an agent, just as where an unborn child is in possession of the estate, or there is a minor heir who has no guardian. 4And therefore he says that an investigation should be made with reference to those heirs who are absent, without wilfully being in default; but who are prevented either by acute or chronic illness from coming into court, and have no one to appear in their defence.

24Celsus, Digest, Book XVI. “Let Titius and Seius, or the survivor of either of them, be my heir.” I think that if both of them survive, both will be heirs, but if one of them should die, the survivor will be heir to the entire estate:

25Ulpianus, Rules, Book VI. For the reason that a tacit substitution seems to be included in the appointment.

26Celsus, Digest, Book XVI. The Senate also decided this question where a legacy was bequeathed in the same way.

27Pomponius, On Sabinus, Book III. If I appoint you absolutely my heir to half of my estate, and appoint another heir to the other half under some condition, and I then appoint a substitute for you, Celsus says that if the condition is not complied with, the substitute will be the heir to that portion of the estate. 1But if I appoint you my heir unconditionally, and afterwards appoint you under some condition, the second appointment will not be valid, because the first one takes precedence of the other. 2Where, however, several appointments have been made for the same share of an estate under different conditions, and the first condition is fulfilled, the result will be the same that we stated above, where the appointment was made absolutely, and also under a condition.

28Ulpianus, On Sabinus, Book V. If anyone should be appointed an heir as follows: “Let Titius be my heir, if Secundus will not be my heir”, and afterwards he says, “Let Secundus be my heir”, it is settled that Secundus is appointed in the first degree.

29Pomponius, On Sabinus, Book V. By the term “either” all the heirs are meant, and therefore Labeo says that if the following was inserted in the will, namely: “Let Titius and Seius be my heirs to the amount that either of them has appointed me his heir”. If both of them did not appoint the testator their heir, neither of them will be his heir, since the phrase has reference to the act of all; but in this instance, I think that the intention of the testator should be considered. It is more equitable, therefore, that he whom the testator would have designated to inherit his estate should be his heir to that amount, and that he whom he would not have appointed, should not be admitted to share in his estate.

30Ulpianus, On the Edict, Book XXI. The Emperor Severus stated in a Rescript that where a slave was pledged he could be the necessary heir of his master, provided that he was ready to satisfy the creditor beforehand.

31Gaius, On the Provincial Edict, Book XVII. We can appoint as heirs not only slaves but freemen, provided that the slaves belong to parties whom themselves we can appoint, since the making of a will with reference to slaves is a right derived from the authority of their masters. 1The power to appoint a slave who forms part of an estate before the estate has been entered upon is based upon the principle that the estate is considered to be the owner of the slave, and to occupy the place of the deceased.

32The Same, Concerning Wills; On the Edict of the Urban Prætor, Book I. The appointment of an heir, as follows, “Those whom Titius may wish”, is defective, for the reason that it depends upon the desire of another. For the ancient authorities very frequently decided that the validity of wills must be derived from themselves, and not depend upon the wishes of others. 1Anyone who is in the hands of the enemy can legally be appointed an heir, because, by the law of postliminium, all his personal rights of citizenship remain in suspense, and are not annulled. Therefore, if he should return from captivity he can enter upon the estate. His slave can also legally be appointed heir, and if his master returns from captivity, he can be ordered to enter upon the estate. If, however, he should die, his legal successor will become his heir through the act of the slave.

33The Same, Concerning Wills; On the Edict of the Urban Prætor, Book II. If anyone should write the following into a will, namely: “Let Titius be heir to half of my estate, and let the same Titius be heir to the other half if a ship arrives from Asia”, as the heir enters upon the estate by reason of an unconditional appointment, although the condition of the second appointment may still be pending, he becomes the heir to the entire estate, even if the condition should not be fulfilled, as its fulfillment will not, in any way, benefit him; since there is no doubt that if a party is appointed heir to half of an estate, and no other heir should afterwards appear, he is held to have been appointed heir to the whole of it.

34Papinianus, Definitions, Book I. An estate cannot legally be bequeathed from a certain time or until a certain time, but the defect with reference to the time having been ignored, the appointment of the heir will stand.

35Ulpianus, Disputations, Book IV. In a case which was stated, a certain testator appointed two heirs, one to his property situated in a province, the other to his property situated in Italy; and as it was his custom to bring merchandise into Italy, he sent money into the province for the purpose of buying some, and this merchandise was purchased either during his lifetime or after his death, but had not yet been brought into Italy. The question arose whether the said merchandise belonged to the heir to whom the property in Italy had been bequeathed, or whether he was entitled to it to whom that in the province had been left? I stated that it was settled that heirs could be appointed for different kinds of property, and that the appointment was not void; but that it was the duty of the judge having jurisdiction of the partition of the estate to see that no heir to whom a certain portion of the estate had been left, should receive any more than he was entitled to under the will. This should be understood as follows: for example, suppose two heirs were appointed, one to the Cornelian Estate, the other to the Livian Estate, and that one of these tracts of land compose three-fourths of the property, and the other the remaining fourth; the said heirs will then inherit equal portions of the estate, just as if they had been appointed without any designation of their shares; but it will be the duty of the court to see that the land which was devised to each of them shall be adjudged or allotted to him. 1Hence, I am aware that the question arises for what portion of the debts of the estate shall each of these heirs be liable. Papinianus, whose opinion I myself have approved, holds that each of them should be liable for the debts of the estate, in proportion to his hereditary share, that is to say, for half of it; for these lands are understood to have been received as a preferred legacy. Therefore, if the indebtedness was so great that nothing will remain after it has been discharged; we hold consequently that such appointments made with reference to the disposition of certain specific property are of no force or effect. If the application of the Falcidian Law should cause the diminution of the legacies, it will then become the duty of the judge to reduce these preferred legacies, so that neither one of the heirs may receive more than he would have been entitled to if he had obtained a bequest, or any other property, or even the said legacies. But if there should be any doubt as to the application of the Falcidian Law, it will be perfectly right for the judge to require the parties to furnish security to one another. 2This being the case, the appointment which we are considering should not be rejected as invalid, where one heir was left property situated in a province, and the other property situated in Italy. It will be the duty of the judge to assign to each of the heirs that part of the estate which was bequeathed to him. Nevertheless, the said heirs will each be entitled to half of the estate, because no share was allotted to them by the testator. The result of this is, that if there should be more of certain assets of the estate in one place than in another (for example, more in Italy than in the province), and payment of the debts is pressing, it must be held that the same diminution must be made which we have mentioned above. Hence, where legacies have been left to others, contribution for their settlement should be made by the heirs. 3It should now be ascertained what is meant by property situated in Italy, or in the provinces. The intention of the deceased must determine this point, for consideration must be given to what he had in mind. Nevertheless, it must be understood that by the term “property in Italy” all those things are included which the testator always had there, and made arrangement to keep there. Again, if he transferred property temporarily from one place to another, not for the purpose of keeping it there, but with a view to restoring it to its former location, this will not increase the amount of the property in the place to which he transported it, nor diminish that in the place from whence he took it; as, for instance, if he should send from his Italian estate certain slaves into a province (as in Gaul) either for the purpose of paying a debt, or to buy merchandise, who were to return after they had made their purchases, there is no doubt that it must be said that they continue to belong to the Italian estate; as was stated by Mucius where a tract of land was devised, either with all the means of cultivation or with the property which is situated thereon. For Mucius says that where a slave named Agaso was sent to a country estate by his master, he did not belong to the land which was devised, because he had not been sent there to remain permanently; hence, where a slave is sent to a country estate to remain there for a certain time, because he had offended his master; he is, as it were, temporarily banished, and it is held that he does not constitute a part of the estate devised. Hence, slaves who are accustomed to labor on one farm and who are sent to another, being as it were loaned by one tract of land to the other, do not form part of the estate devised, because they do not seem to be permanently attached to the land. In the present instance it must be held that property situated in Italy is such as the testator intended should remain there permanently. 4Hence, where a man sends money into a province for the purpose of buying merchandise, and it has not yet been purchased, I say that the money which was sent there to obtain goods to be brought into Italy must be held to form part of the Italian estate; for if the testator had sent into the province money which he was accustomed to use in Italy, and it was taken and returned from one place to another, it should be considered to belong to the Italian estate. 5I therefore stated that the result would be that the said merchandise which had been purchased to be conveyed to Rome, whether it was transported during the lifetime of the testator, or whether this had not yet been done, and whether the testator knew, or did not know this to be the fact, it will belong to that heir to whom the Italian estate was bequeathed.

36The Same, Disputations, Book VIII. Where anyone appoints an heir as follows: “Let Titius be the heir to that portion of my estate to which I have appointed him by a codicil”; he will still be the heir, as having been appointed without any certain share, even though his share was not mentioned in the codicil.

37Julianus, Digest, Book XXIX. When a testator makes the following disposition in his will: “If my son should die during my lifetime, and the grandson by him should be born after my death, let him be my heir”, there are two degrees of succession, for under no circumstances can both of them be admitted to share in the estate. From this it is evident that, if Titius should be substituted for the grandson, and the son should be the heir of his father, Titius cannot be the heir of his son, for the reason that he is substituted not in the first, but in the second degree. 1The following clause: “Let Publius, Marcus, Gaius, substitutes for one another, be my heirs”, should be understood to mean that the testator seems to have appointed three heirs in a very few words, and to have substituted them for one another, just as if he had written, “Let So-and-So, So-and-So, and So-and-So be appointed my heirs, and be substituted”. 2Where a man has three sons and wrote in his will: “Let my sons be my heirs, and let my son Publius be disinherited”, he is considered to have only appointed two of his sons his heirs in the first part of his will.

38The Same, Digest, Book XXX. Where a testator bequeathed a slave named Pamphilus to his disinherited son, a minor, he can appoint the said slave heir to a portion of his estate in the same way, after the death of his son, just as anyone who bequeaths a slave to Sempronius, can appoint the said slave heir to a portion of his estate, after the death of Sempronius. 1When a slave is unconditionally appointed heir by a will, but is not directed to be free unless he pays ten aurei before the Kalends of December, and he subsequently obtains his freedom absolutely by a codicil, he will neither be free nor an heir, unless he pays the ten aurei before the Kalends of December; but if he should not do so, he will become free by reason of the codicil. 2If a testator should absolutely appoint a slave to be his heir, but should grant him his freedom under a condition and sell him while the condition was pending, the slave can enter upon the estate by order of his purchaser, because the appointment is valid, and the purchaser has a right to give the slave the order. 3When the slave has been alienated, after failure to comply with the condition has occurred, he cannot enter upon the estate by order of the purchaser, because at the time when he passed into the hands of the latter the appointment, having become void, was of no effect. 4Therefore, where a slave is directed to become free under a certain condition, and receives a legacy absolutely, and, while the condition is pending, he is either manumitted or alienated, he will be entitled to the legacy, or will obtain it for his master, even though, at the time of the death of the testator, the condition upon which his condition depended had not been fulfilled. If, however, he had been manumitted or alienated after the failure to comply with the condition had taken place, the legacy will become invalid. 5Where a vendor orders a slave, who has been appointed heir to a portion of the estate of the purchaser before his delivery to the latter, to accept the bequest, he will be required to return what he has received to the co-heir of the slave, because he should not profit by the right of the slave whom he sold. It is evident that he is not required to return everything which he received, but only the proportionate share which the slave had in common with his co-heir.

39Marcianus, Rules, Book II. That is to say, the half of the slave and the fourth of the estate,

40as Marcellus observes in the Thirtieth Book of the Digest of Julianus, and he holds that he ought to surrender this because the vendor could not recover it if the slave had been delivered before he entered upon his share of the estate, which opinion is correct.

41Ad Dig. 28,5,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 16.Julianus, Digest, Book XXX. The head of a family appointed Titius, whom he supposed to be freeborn, his heir, and substituted Sempronius for him, if he should not be his heir; and when Titius, being a slave, entered upon the estate by order of his master, it can be held that Sempronius should be admitted to a share of the estate; because where a man knowing someone to be a slave, appoints him his heir, giving him a substitute, as follows: “If Stichus should not be my heir, let Sempronius be my heir,” it is understood that he means to say that if Stichus should not be the heir he cannot transfer the possession to anyone else. But where anyone appoints as his heir a person whom he thinks to be free, in these terms, namely, “If he should not be my heir,” he is considered to intend nothing more than that if he should acquire the estate for himself, or his condition should be changed, he cannot appoint another his heir. This addition has reference to those who are appointed heirs of the head of the family, and are afterwards reduced to slavery; therefore, in this instance, the estate will be divided into two parts, of which one-half will go to him who was the master of the slave appointed heir, and the other half to the substitute.

42Ad Dig. 28,5,42Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 16.Pomponius, Various Passages, Book XII. Tiberius Cæsar rendered this decision with reference to Parthenius, who had been appointed heir, as being freeborn, and who entered upon an estate while he was the slave of the Emperor; for, as Sextus Pomponius relates, the estate was divided between Tiberius and the person who had been substituted for Parthenius.

43Julianus, Digest, Book LXIV. A man who was not solvent directed by his will that two slaves named Apollonius should be free and his heirs. One of the said slaves having died before the will was opened, it cannot improperly be held that the survivor would become free and the sole and necessary heir of the testator. If, however, both of them were living, the appointment would be void in accordance with the Lex Ælia Sentia, which prohibits the appointment of more than one necessary heir:

44Paulus, On the Law of Ælia Sentia, Book I. For then they stand in one another’s way.

45Alfenus, Digest, Book V. The head of a family appointed two heirs by his will, and ordered them to erect a monument for him within a certain time, and he afterwards inserted in his will: “Let him who does not do this be disinherited”. One of the heirs refused to enter upon the estate, and the other, inasmuch as he himself had built the monument, asked for an opinion as to whether he would not be entitled to the estate, because his co-heir had refused to accept it. The answer was that no one can be bound for, or deprived of, an estate by the act of another; but wherever anyone has complied with the condition, he will become the heir to the estate, even though none of the other heirs have entered upon the same.

46The Same, On the Epitomes of the Digest, by Paulus, Book II. “If my mother, Mævia, and my daughter Fulvia, should be living, then let Lucius Titius be my heir.” Servius was of the opinion that if the testator never should have a daughter and his mother should survive, Titius would still be his heir, because where anything that is impossible is inserted into a will it has no force.

47Africanus, Questions, Book II. A certain individual desiring to make a son under paternal control his heir, but in such a way that none of the estate would go to his father, stated his wishes to the son. The latter, fearing to offend his father, requested the testator to appoint him his heir under the condition that he should be emancipated by his father, and gained his consent to appoint one of his friends his heir, and in this way, the friend of the son who was unknown to the testator was appointed his testamentary heir, and nothing was required of him. The question arose, if the said friend was unwilling to enter upon the estate, or if, after having entered upon it he should refuse to surrender it, whether it could be demanded of him as trustee, or whether any action could be brought against him, or whether one would lie against the father, or the son. The answer was that, even though it was evident that the appointed heir was merely a trustee, still, the estate could not be demanded of him unless it could be proved that the testator himself regarded him in that light. If, however, the friend, having been requested by the son under paternal control, agreed to enter upon the estate, and to surrender it after he became his own master, it cannot improperly be held that an action on mandate could be brought, and that such an action would not lie in favor of the father, because good faith did not require that he should be given what the testator was unwilling should come into his hands. Nor will the common action on mandate be available to the son, but a prætorian action will be; as it has been settled that one should be granted to a party who while a son under paternal control, has become surety for someone, and after becoming his own master is obliged to make payment.

48The Same, Questions, Book IV. Where it is stated in a will, “Let Titius, not Seius, be my heir”, the opinion was that Seius alone will be the heir. Where, however, the following words are used: “Let Titius be my heir, not let Seius be my heir,” the same rule will apply. 1A certain testator appointed his heirs as follows: “Let Titia, my daughter, be my heir; and if any children are born to me during my lifetime, or after my death, then let one or more of those of the male sex who are born inherit half and a quarter of my estate, and let one or more of those of the female sex who may be born be heirs to the fourth part of my estate”; a posthumous male child was born to the testator, and it was asked what portion of the estate he would inherit. The answer was that the estate should be divided into seven parts, and that the daughter would be entitled to four of them, and the posthumous child to three; for the reason that the entire estate was bequeathed to the daughter, and three-fourths of it to the posthumous child, so that the daughter was entitled to a fourth more than the posthumous child. Therefore, if a posthumous daughter has also been born, the first daughter should be entitled to as much as both the posthumous children together. Hence, in the case stated, as the entire estate was given to the daughter, and three-fourths of it to the posthumous child, it should be divided into twenty-one shares, so that the daughter might have twelve shares and the son nine. 2Where the following provision was made in a will: “Let Lucius Titius be the heir to six shares of my estate, Gaius Attius to one share, Mævius to one share, and Seius to two shares”, the question arose as to what the law would be in this case. The answer was that the will should be interpreted in such a way that Lucius Titius should have one-sixth, and the others, as they had been appointed without definite shares, should be the heirs to the remainder of the estate, which should be divided so that Seius would receive five shares, and Attius and Mævius the remaining five between them.

49Marcianus, Institutes, Book IV. The appointment of an heir is legally made when expressed as follows: “Let Titius be the owner of my estate.” 1The following appointment is valid: “Let my most unnatural son, who has deserved so ill of me, be my heir”; for he is absolutely appointed heir, although in terms of reproach, and all appointments of this kind are accepted. 2Sometimes a slave is not legally appointed an heir with the grant of his freedom by his mistress, as is indicated by a Constitution of the Divine Severus and Antoninus, which is in the following words: “It is reasonable that a slave accused of adultery should not, before judgment has been rendered, be legally enfranchised by the same woman with whom he was implicated, where she is accused of the same crime. Hence it follows that his appointment as an heir by his mistress is of no force and effect.” 3Where the testator makes a false statement with reference to the father, the nationality, or any similar relationship of his heir, the appointment will be valid, provided the identity of the party designated is established.

50Florentinus, Institutes, Book X. If I should direct a slave belonging to another to be free and my heir, and the slave should afterwards become mine, neither of these provisions will be valid, for the reason that freedom cannot legally be granted to the slave of another. 1So far as foreign heirs are concerned, the rule must be observed that, where all have testamentary capacity, whether they themselves are appointed heirs, or others are appointed who are under their control, the appointment has reference to two different times, that of the execution of the will, in order that the appointment may be made, and that of the death of the testator, in order that it may take effect. Moreover, the execution of the instrument will have reference to the acceptance of the estate, whether the heir was appointed absolutely or under some condition; for, with regard to the right of the heir, special attention must be paid to the time when he acquires the estate. A change in the right of the heir, if it took place in the intermediate time, that is, during the interval between the execution of the will and the death of the testator or the fulfillment of the condition of the appointment, will not prejudice him, because, as I have stated, we must take into consideration these three different dates.

51Ulpianus, Rules, Book VI. If, during my lifetime, I should sell my slave, whom I had appointed my heir with the grant of his freedom, to a party who did not have testamentary capacity, and afterwards I should redeem said slave, he can be my heir under the will; nor will the intermediate time during which he was in the hands of another master annul the appointment, because it is certain that he has been mine at both times, namely that of the execution of the will, and that of death. Wherefore, if he had remained in the hands of his other master, the appointment would become void; or if he had been transferred to someone who had testamentary capacity, he would acquire my estate for the latter through entering upon it by his direction. 1If the condition upon which the appointment of an heir was dependent stated that some act was not to be performed, and it was impossible, the person designated will be the heir in accordance with the opinion of all authorities, just as if he had been unconditionally appointed. 2An estate is generally divided into twelve parts, which are included in the appellation as. These parts all have their own names from the uncia to the as, for example, the following: “The sixth, the fourth, the third, five-twelfths, half, seven-twelfths, two-thirds, three-fourths, five-sixths, eleven-twelfths, the as.”

52Marcianus, Rules, Book III. Certain authorities held that the following appointment was not valid: “Let Stichus be free, and if he should become free, let him be my heir.” The Divine Marcus stated in a Rescript that this appointment is valid, just as if the addition, “If he should become free”, had not been made. 1Where anyone makes the following provisions in a will, namely: “If Stichus should still belong to me when I die, let him be free, and my heir.” If Stichus is alienated, he cannot enter upon the estate by order of the purchaser, although, even if the testator had not declared it to be his intention, the slave cannot become free and the heir, unless he was under his control at the time of his death. If, however, he should manumit him during his lifetime, Celsus says in the Fifteenth Book of the Digest that Stichus will become his heir; for it is evident that the testator did not intend to exclude this case, nor are his words at all contradictory, for even though he is no longer his slave, he certainly is his freedman.

53Paulus, Rules, Book II. A slave belonging to the estate can be appointed an heir, provided that he had testamentary capacity with the deceased, even though this may not have been the case so far as the heir appointed by the testator was concerned.

54Marcellus, Opinions. Lucius Titius, after having appointed Seius and Sempronius equal heirs to his estate, and his other sons having been disinherited, substituted each of the said heirs for the other, and then bequeathed certain legacies, and manumitted certain slaves, and afterwards added the following: “Let Cornelius, Sallustius, and Varo be heirs to equal portions of my estate, and I substituted them for one another.” I ask, what portion of the estate the first heirs, who are appointed for the whole of it, and what portion the last heirs should have? Marcellus answered that it was doubtful whether the testator intended to appoint Cornelius, Sallustius, and Varo his heirs in the first, second, and third degrees; but according to the terms of the will as set forth, it would appear that the estate was given to all of the heirs after the shares had been doubled.

55Neratius, Parchments, Book I. A father substituted his slave as heir to his minor son, and at the same time granted the latter his freedom, and the minor sold the said slave to Titius. Titius, who had already made one will, in a second ordered the slave to be free and his heir. The first will of Titius was broken because the said slave could be his heir; and as the first will was broken, it is sufficient that the one subsequently executed provided that the heir appointed by it should, in a certain contingency, succeed to the testator. With reference to the effect of this appointment, the result will be that as long as the heir can succeed to the minor by reason of this substitution, he can not obtain his freedom and the estate under the will of Titius. If the heir should obtain control of himself, he would then obtain his freedom, and the estate by the terms of the will of Titius, just as if he had not been substituted for the minor; and if he should become the heir of the minor, there is the best reason to conclude that he could also be the heir of Titius, if he was willing.

56Paulus, On the Lex Ælia Sentia, Book I. If a man who is not solvent should, in the first place, appoint Stichus his heir with a grant of his freedom, and in the second, another slave, upon whom he conferred freedom by the terms of a trust, Neratius says that the slave appointed in the second place will be the heir, because he is not considered to have been manumitted for the purpose of defrauding creditors.

57The Same, On Second Wills. Anyone can appoint an heir as follows: “If I die in my seventieth year, let So-and-So be my heir.” In this instance, the person executing the will should not be considered to be partly testate, but to have made the appointment under a condition.

58The Same, On the Edict, Book LI. If anyone who is insolvent appoints his slave, with the grant of his freedom, his heir, and substitutes a freeman for him, the substitute will be first entitled to the estate, for the Lex Ælia Sentia confirms the freedom of the slave only where he has not been appointed heir for the purpose of defrauding creditors, if there is no one else who can be an heir under a will.

59The Same, On Vitellius, Book IV. No one doubts that an heir can legally be appointed as follows: “Let him be my heir,” where the party indicated is present. 1If a person is not a brother of the testator, but entertains fraternal affection for him, he can legally be appointed his heir, by mentioning his name with the appellation of brother.

60Celsus, Digest, Book XVI. A man who is free, but who is serving you as a slave, having been appointed an heir, enters upon the estate by your order. Trebatius says that he is the heir, but Labeo maintains that he is not, if he acted through necessity, and not, on the contrary, because he intended to bind himself. 1If anyone should appoint an heir as follows: “Let Titius be my heir to the portion in which he is a partner with me in the lease of the salt-pits,” certain authorities hold that if this statement had been made by the testator after the entire property had been divided, even though Titius was a partner to a very large extent, the appointee would not be the heir; but if there was a certain share which had not been bequeathed, he would be the heir to it. This opinion is absurd and incorrect, for what prevents the testator from legally making Titius his heir for the fourth part, which perhaps was the amount in which he was interested as a partner, after the entire property had been disposed of under the ordinary division? 2“Let Titius be my heir, and let Seius and Mævius also be my heirs.” It is true, as is held by Proculus, that the estate should be divided into two portions, one of which should be given to the two heirs who were appointed together. 3Where one of several heirs who has not been appointed conjointly with anyone else declines to take under the will, his share will accrue to all the others in proportion to their hereditary shares; and it does not make any difference whether any of them was appointed in the first place, or is substituted for someone else. 4Where a person appointed heir was a Roman citizen at the time that the will was executed, and was afterwards interdicted from water and fire, he will be the heir if he should return between the time of his sentence and that of the death of the testator, or if he was appointed an heir under a certain condition, and returns at the time that the condition was fulfilled. The same rule also applies to legacies, and the prætorian possession of estates. 5“Let Titius be my heir to half of my estate, Seius to a quarter, and Titius to the other quarter if he ascends to the Capitol.” If he conducts himself as heir before he ascends to the Capitol, he will be entitled to half of the estate; if he should do so afterwards, he will be heir to a quarter of the same; for it will not be necessary for him to signify his acceptance, since he is already an heir. 6Where the following is stated in a will: “Let Titius be my heir to a third part of my estate, and Mævius be my heir to another third, and let Titius be my heir to the remaining third, if a ship should arrive from Asia within three months.” Let us see whether Titius will not immediately become the heir to half of my estate, for two heirs have been appointed. Titius will either be an heir to one-half of it, or to two-thirds, so that a sixth of the estate will be in abeyance, and if the condition should be fulfilled, Titius will be the heir to two-thirds of the estate, but if it should not be fulfilled, the sixth will accrue to Mævius. If, however, Titius should die before the condition is fulfilled, and it should be fulfilled afterwards, the sixth of the estate which remained in abeyance will not accrue to the heir of Titius, but to Mævius; for Titius died when it was still doubtful as to whether he or Mævius would be entitled to the said sixth, since it could not be understood to have been given to him who was no longer in existence at the time it should have been allotted. 7If Attius should appoint Titius, Mævius, and Seius heirs to equal portions of his estate, and, in the meantime, Titius was the only one who accepted, and he appointed Seius his heir, Seius would enter upon the estate of Titius, and could either accept or decline that of Attius; but before he accepted or rejected the estate of Attius, he would still be the heir to half of it. If Seius should enter upon the estate of Attius, Titius would only be the heir to one-third of the same, and through inheritance only a third of the estate of Titius would come into the hands of Seius, but he would be entitled to another third by virtue of his appointment. But what if Titius and Seius, having been appointed heirs of Attius, Titius should enter upon the estate, and Seius should become the heir of Titius, could he, or could he not refuse the estate of Attius, or would he necessarily be the heir to the entire estate? As no one else was appointed but the person who was already the heir to a certain portion of the estate, it is just the same as if he had been appointed sole heir by Titius.

61Celsus, Digest, Book XXIX. A man who was insolvent appointed one slave in the first place, and another in the second place, his heirs. He alone who was appointed in the first place is entitled to the estate, for by the Lex Ælia Sentia, it is provided that where two or more are designated in the same way, the first one mentioned becomes the heir.

62Modestinus, Opinions, Book VIII. A testator who wished to disinherit his daughter inserted the following clause into his will: “As for you, my daughter, I have disinherited you because I desired that you should be content with your dowry.” I ask whether she was legally disinherited. Modestinus answered that there was nothing in the case stated which would prevent her from being disinherited by the will of the testator.

63The Same, Pandects, Book II. It is an act of kindness for an heir to be appointed for the time that he can obtain the benefit of the inheritance, as for instance: “Let Lucius Titius be my heir for the time when he can obtain my estate.” The same rule applies to legacies. 1Whenever it is not apparent who the appointed heir is, the appointment will not be valid; and this may happen where the testator had several friends of the same name, and in designating the one whom he appointed he used only a single name; unless it is disclosed by the clearest evidence whom the testator had in his mind.

64Ad Dig. 28,5,64Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 604, Note 4.Javolenus, On Cassius, Book VI. Where heirs are appointed without the designation of their shares, it is important to ascertain whether they are appointed conjointly, or separately; because if any one of those appointed conjointly should die, his share will not belong to all the heirs, but only to the remaining ones who are appointed along with him; but where one of those appointed separately dies, his share will belong to all of the heirs appointed under the will.

65The Same, Epistles, Book VII. Labeo has frequently stated that the slave of a person born after my death can be appointed my heir. The truth of this is readily established, for the reason that a slave forming part of an estate can be appointed an heir before the estate is entered upon, even though at the time of the execution of the will he did not belong to anyone.

66The Same, Epistles, Book XII. An estate cannot, under any circumstances, belong to Statius Primus, since he has not been appointed heir, and it would be of no benefit to him whatever if he were charged with the payment of a legacy, or if the freedman of the deceased was entrusted to his care by testamentary disposition; for he will remain a slave for all time, if he should not be manumitted.

67Pomponius, On Quintus Mucius, Book I. If anyone should appoint heirs as follows: “Let Titius be my heir, and let Gaius and Mævius be heirs to equal portions of my estate”; although the word “and” is a conjunction; still, if either of the parties should die, his share will not accrue to the other alone, but to all his co-heirs in proportion to their interest in the estate; because it is held that the testator did not mean to unite the two heirs, but intended to mention them more particularly.

68The Same, On Quintus Mucius, Book II. Where the following was inserted in a will: “Let Tithasus be my heir if he ascends to the Capitol; let Tithasus be my heir”; the second clause will have the greater effect, for it is more complete than the first one.

69Ad Dig. 28,5,69Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.The Same, On Quintus Mucius, Book VII. A certain man appointed Sempronius his heir under the following condition: “If Titius should ascend to the Capitol.” Even though Sempronius could not become the heir unless Titius should ascend to the Capitol, and this absolutely depends upon the inclination of Titius, for the reason that the desire of Titius is not expressly referred to in the will the appointment will be valid. But if the testator had said, “If Titius is willing, let Sempronius be my heir”; the appointment would be void. For certain things which are mentioned in wills have no force or effect, if, when they are obscured by words, they have the same signification as if they had been expressed, and have a certain amount of weight; for instance, the disinheritance of a son will be valid where there is an heir, and still no one doubts that if a testator should disinherit his son as follows: “Let Titius be my heir, and when he is my heir, let my son be disinherited”; that a disinheritance of this kind if of no force whatever.

70Proculus, Epistles, Book II. “Let Cornelius or Mævius, whichever one of them may desire to have my estate, be my heir.” Trebatius holds that neither of them is the heir, but Cartilius maintains that both of them are heirs. Whose opinion do you adopt? Proculus, I agree with Cartilius, and think that the addition, “Whichever one of them may desire to have my estate”, is superfluous; for if this addition had not been made, the result would be that whichever of them wished to take under the will would be the heir, and that the one who was not willing would not be. If, however, these parties were included in the number of necessary heirs, then this clause would not have been added in vain; and it would not only prevent the appearance, but would also have the effect of a condition; still, I would say that both of them would be heirs, if they desired to be.

71Papinianus, Opinions, Book VI. When the Senate disapproved of testamentary appointments of heirs which were obtained by intrigue, it did not include such as were dictated by mutual affection, but those in which a condition was imposed for the purpose of secretly obtaining an advantage through the will of another.

72Paulus, On the Lex Julia et Papia, Book V. The following appointment does not come under the head of such as are corruptly sought after; for instance, where a testator appoints an heir as follows: “Let Mævius be my heir, to the same portion to which Titius has appointed me to his heir”; for the reason that the appointment has reference to the past and not to the future. 1It may be asked, however, whether the same rule established by the Senate should be observed where the testator attempts to secure an estate for some other person; for instance, if he should say, “Let Titius be my heir, if he can show and prove that Mævius had been appointed his heir by his will”. There is no doubt that this comes within the terms of the Decree of the Senate.

73Terentius Clemens, On the Lex Julia et Papia, Book IV. Where anyone who has been designated an heir to the entire estate is for some legal reason incapable of acquiring it, and was appointed by a party who died insolvent, Julianus is of the opinion that he can inherit the whole estate, for the law is not applicable to the estate of one who was insolvent.

74Gaius, On the Lex Julia et Papia, Book XIII. Where an heir is appointed under a condition, and we substitute another for him, unless, when doing so, we repeat the same condition, the substitution of the heir will be understood to be absolute.

75Licinius Rufinus, Rules, Book II. If anyone should appoint an heir as follows: “Let him be my heir, with the exception of the land and the usufruct”, according to the Civil Law, this will be just as if the heir was appointed without the property; and this rule was established by the authority of Gaius Aquilius.

76Papinianus, Questions, Book XII. Where a son is substituted for an heir who has been passed over, he will be entitled to the estate by virtue of the will, and not on account of his father dying intestate; for if anyone else had been substituted, and the son had been disinherited, the will would begin to be operative from the degree in which the son was disinherited.

77The Same, Questions, Book XV. Where a slave is given by a husband to his wife, mortis causa, he remains the property of the husband, as was held by Julianus. Moreover, if he receives his freedom and the estate at the same time, he will be the necessary heir of the husband, as nothing can be left to him without granting him his freedom.

78The Same, Questions, Book XVII. His entire estate not having been distributed, a testator inserted in his will: “Let him be the heir whom I shall appoint by my codicil.” He appointed Titius his heir by his codicil. This appointment is valid, for although an estate cannot be bequeathed by a codicil; still, in this instance, it is held to have been left by the will. The heir, however, will only be entitled to that portion of the estate which has not yet been disposed of.

79The Same, Opinions, Book VI. A man who was not in the army appointed his freedman heir to certain property derived from his mother which he possessed in Pannonia, and appointed Titius heir to his paternal estate, which he held in Syria. It is established by law that each of the heirs would be entitled to half of his estate; but the court having jurisdiction of the distribution of the same followed the last will of the testator, and adjudged to each of the heirs what he had left them, after having required them to furnish security against any proceedings which might be instituted under the Falcidian Law; that is to say, that they should reserve the right to retain a fourth of the bequest, so that whatever each of them might have to pay could be set off by means of an exception on the ground of bad faith. 1Lucius Titius and Publius Mævius, having been appointed heirs, the first to two shares of an estate, and the second to three shares of the same, I gave it as my opinion that the intention was that the estate should be divided into nine parts, for the reason that the value of the two shares had been deducted by the testator from the value of the other three. In this same manner, the ancient authorities decided that where a sum of money was bequeathed to Titius, and the kind of coin was not specified, this could be ascertained by an examination of the other legacies bequeathed by the testator. 2Where children were appointed heirs to equal portions of an estate, and afterwards the son of a brother was appointed for two shares, it was decided that the intention was that the ordinary division of the estate should prevail; and accordingly that the children should receive ten shares of the same. A bequest is understood to have been made with a view to doubling the number of shares where the estate having been specifically bequeathed, or the twelve shares distributed, the remaining share can not be found. It makes no difference, however, in what place an heir has been appointed without a share, provided he appears to have received the remainder of the estate. 3Seius appointed Mævius heir to a portion of his estate, which he could take according to law, and appointed Titius heir to the remainder. If Mævius could take the entire estate, Titius, who was added to, or substituted for him, would not be an heir.

80The Same, Definitions, Book I. If no mention was made of the remainder, and the number of the shares was doubled, Mævius would only be entitled to as much as Titius would have been entitled to in the first place.

81The Same, Opinions, Book VI. But if Mævius was not capable of taking under the will the substitute would be entitled to the entire estate.

82Paulus, Questions, Book IX. Clemens Patronus provided by his will, “that if a son should be born to him, he should be his heir; if two sons should be born to him they should be his heirs to equal portions of his estate; if two daughters were born to him, the same division should be made; if a son and daughter should be born, two-thirds of the estate should be given to the son, and one-third to the daughter”. Two sons and a daughter having been born, the question arose how we should make the division of the estate in the case stated? Since the sons inherit equally, each of them should have twice as much as their sister; therefore the estate should be divided into five parts, out of which four should be given to the male heirs, and one to the female heir. 1A testator inserted the following into his will: “Let Sempronius be my heir to the share to which I was appointed heir by Titius, and which I shall apply for in person.” This appointment does not come under the head of seeking after an estate; for it is evident that the appointment will be void if the will of Titius is not offered by the testator himself, all suspicion of the appointment for interested purposes having been removed.

83Scævola, Questions, Book XV. Where a testator appoints an heir as follows: “If my lawful heir refuses to accept my estate”, I think the condition of the will is not fulfilled, if the heir should claim the estate.

84The Same, Questions, Book XVIII. If another law than that of Ælia Sentia, or a decree of the Senate, or even an Imperial Constitution prevents the grant of freedom to a slave, the latter cannot become a necessary heir, even though the testator may be insolvent. 1In the time of the Divine Hadrian, the Senate decreed that if a testator was not solvent when he died, and granted freedom to two or more slaves, and directed his estate to be given to them, if the appointed heir should say that he suspects that the estate would impose burdens upon him, he will be forced to accept it, in order that the slave first mentioned in the will may receive his freedom, and the estate be surrendered to him. The same rule must be observed in the case of those to whom freedom has been granted by virtue of a trust. Therefore, if the heir appointed in the first place wishes to enter upon the estate, no difficulty will arise; but if those slaves mentioned afterwards allege that they also should be free, and demand the surrender of the estate to them, an investigation must be made by the Prætor as to the solvency of the estate, and he must cause it to be delivered to all of said slaves who will become free. Where, however, the first slave is absent, and the one afterwards mentioned wishes to enter upon the estate, he shall not be heard, because if the first desires the estate to be given to him, he must be preferred, and the second must remain a slave.

85Paulus, Questions, Book XXIII. Where freedom was granted to a slave by virtue of a trust, and the heir appointed the same slave his own heir with the grant of his freedom, the question arose whether the said slave became a necessary heir. It is more just, and more consonant with the principles of equity, that he should not become a necessary heir, for he who could compel his freedom to be granted him even if the deceased had been unwilling when he ordered him to be free does not seem to have obtained great favor from the deceased, and, indeed, he is regarded rather to have received the freedom to which he was entitled, rather than to have had a favor conferred upon him. 1The same principle is applicable to the case of a slave whom a testator purchased under the condition that he would manumit him, if he should be appointed heir; for leaving the favor of the testator out of consideration, he can obtain his freedom in accordance with the Constitution of the Divine Marcus. 2The same rule applies to a slave who was purchased by another with his own money, for he also can compel the same testator to grant him his freedom.

86Ad Dig. 28,5,86Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 546, Note 11.Scævola, Opinions, Book II. Lucius Titius, who had a brother, made the following provision in his will: “Let my brother Titius be the heir to my entire estate. If Titius is unwilling to be my heir, or (which is something that I do not wish to happen) if he should die before entering upon my estate, or should not have a son or daughter born to him, then let Stichus and Pamphilus, my slaves, be free, and heirs to equal portions of my estate.” I ask, if Titius should accept the estate, and should have no children at that time, whether Stichus and Pamphilus can become free and heirs, by virtue of the substitution. I ask also, if they can be neither free nor heirs under the said substitution, whether they can be held to be co-heirs to a portion of the estate. The answer was that it is clear that it was not the intention of the testator to appoint any co-heir with his brother, whom he had evidently designated as heir to his entire estate. Hence if the brother enters upon the estate, Stichus and Pamphilus will not be heirs, for the reason that the testator did not wish them to be, if his brother should die and leave children before accepting it. The wise disposition of the testator must be noted, as he not only gave preference to his brother over the substitutes, but also to his brother’s children.

87Marcianus, Trusts, Book VII. There is no longer any room for doubt that heirs can be appointed under the following condition, namely: “If they wish to be heirs, and if they do not wish to be, another, who seems to be acceptable, shall be substituted for them.” In this instance, it has been denied that it is necessary to disinherit a son under the contrary condition; in the first place, because this is only required when the condition is in his power, or he is the heir of his father, and its fulfillment is dependent upon some outside influence and must be awaited; second, because no matter what kind of a condition has been imposed, the son should be disinherited under the contrary condition, and in the case stated disinheritance cannot possibly take place; and certainly if it were expressed in words it would be absurd, for what other terms can be conceived which would be contrary to this condition: “If he is willing, let him be my heir”, than these: “If he is unwilling to be my heir, let him be disinherited”? It is evident to every one that such a provision is ridiculous. 1It does not seem to be foreign to the subject to add here, by way of supplement, that when heirs are appointed under the condition, “If they wish to be heirs”, they should not be permitted to reject the estate for the reason that where they are appointed under this condition they are not necessary heirs, but become such voluntarily. Nor are they entitled to the right to reject the estate under other conditions which they are able to comply with, and have fulfilled.

88Hermogenianus, Epitomes of Law, Book III. Where an heir has been appointed first in order to half of an estate, and a second to two-thirds, and a third to the remaining portion, or if he has been appointed without mentioning what he shall receive, the said third heir will be entitled to five-twelfths of the estate; for if it is divided into twenty-four parts, the rules of calculation will give him ten twenty-fourths of the same, which is equivalent to five shares.

89Gaius, On Cases. Where a testator, who is insolvent, happens to have an heir in addition to a slave who has been appointed his heir with the grant of his freedom, for instance, where the testator in appointing the slave his heir with the grant of his freedom added: “If Stichus should be my heir, then let Titius also be my heir”; for Titius cannot be the heir before Stichus becomes such under the will, and as the slave has at once become the heir, he who was added cannot share in the estate; so that where the slave becomes the heir, the other ceases to be one.

90Paulus, Manuals, Book II. Where a partner is appointed sole heir to an estate, and the legacy is bequeathed to a slave held in common by both partners, without the grant of his freedom, this legacy is void. It is evident that a legacy can legally be bequeathed under a condition, and without the grant of freedom, since a bequest can be made legally to one’s own slave, and the heir be charged with the execution of it under a condition. Wherefore, where a partner is appointed an heir, a slave can be also appointed his co-heir, without the grant of his freedom, as, for instance, where he belongs to another; because a slave can be appointed an heir after his master has already been appointed.

91Tryphoninus, Disputations, Book XXI. Where a slave is appointed an heir with the grant of his freedom, but conditionally, by the will of his master; and while the condition is still pending, he discovers the murderers of his master, and the Prætor decides that he deserves his freedom, even though the condition of the will should afterwards be complied with, the said slave will become free, for another reason, that is to say, he will be liberated by way of reward, and not on account of the will. Hence, he is not the necessary heir of his master, although he can enter upon the estate if he desires to do so.

92Paulus, Decisions, Book V. It is odious for anyone to appoint the Emperor his heir in order to carry on a lawsuit, for it is not proper to make use of the Imperial authority for the purpose of encouraging vexatious litigation.

93The Same, On the First of the Six Books Relating to the Imperial Decisions; or the Second Book of the Decrees. 1Pactumeius Androsthenes appointed Pactumeia Magna, the daughter of Pactumeius Magnus, heir to his entire estate, and substituted her father for her. Pactumeius Magnus, having been killed, and the rumor having been spread that his daughter was also dead, the testator changed his will, and appointed Novius Rufus his heir, with this preamble: “Let Novius Rufus be my heir, for the reason that I have not been able to retain those heirs whom I desired to have.” Pactumeia Magna applied to our Emperors, and the case having been heard, it was decided that she was entitled to relief, as this was in compliance with the wishes of the testator; and while there was a certain reason for the appointment of the other heir, still, as it was ill founded, it could not legally be interposed. Therefore, the decision was that the estate belonged to Magna, but that she would be compelled to pay the legacies bequeathed by the second will, just as if she herself had been appointed heir by the said will.