1Ulpianus, Trusts, Book I. Where anyone is not certain of his condition, for instance, whether he is a captive in the hands of the enemy, or merely detained by robbers, he cannot execute a will. If, however, he should be ignorant of his legal rights, and thinks, through mistake, that because he has been captured by robbers, he is a slave of the enemy; or if, having been sent on an embassy, he believes that he does not differ from a captive, it is certain that he cannot create a trust, for the reason that he is unable to make a will who is in doubt as to whether he can do so or not. 1Ad Dig. 32,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where a son under paternal control, or a slave creates a trust by will, it will not be valid. If, however, the case is proposed that either of them should die after being manumitted, we constantly decide that the trust should be held to have been left, just as if it had been created at the time of the party’s death; that is if his intention had continued to exist after the manumission. Let no one suppose that we adopt this same rule with reference to wills, because whenever a will is not valid, none of its contents are valid either, but it is otherwise where anyone leaves a trust. 2Those who have been interdicted from the use of water and fire, as well as persons who have been deported, cannot create a trust by will, because they have not testamentary capacity when they are exiled. 3We must understand those to be deported to whom the Emperor has assigned some island as a residence; or such as he has banished by a written order. But before the Emperor has confirmed the sentence of the Governor, no one is considered to have lost his civil rights. Hence, if he should die before this is done, he is held to have died a citizen, and any trust which he left before he was sentenced will be valid, or one which he created after sentence was imposed upon him, and before the Emperor confirmed it, will also be valid; because up to this time he was still in the possession of his privileges as a citizen. 4So far as those are concerned who have been deported by the Prætorian Prefect, or his Deputy who has cognizance of cases under the direction of the Emperor, or also the Urban Prefect (because the right of deportation was likewise granted to him by a Rescript of the Divine Severus and our Sovereign) they immediately forfeit their civil rights, and therefore it is evident that they have neither testamentary capacity nor legal power to create a trust. 5Ad Dig. 32,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 17.Where anyone who has been deported to an island makes a codicil while there, and having been restored to the enjoyment of his civil rights by the favor of the Emperor, dies, leaving the same codicil unchanged, it can be maintained that the trust will be valid, provided the party always had the same intention. 6Moreover, it should be noted that those can be charged with a trust into whose hands any of a person’s estate is to pass when he dies, whether it is given to them, or whether they are not deprived of it. 7Not only the next of kin who have obtained possession of an estate by the judgment of the Prætor, but also those entitled to it on the ground of intestacy, can be charged with a trust. 8A child who is not yet born can be charged with a trust, if, after it is born, it will become our successor. 9It may undoubtedly be said that if anyone should die intestate, and leave a trust to be executed by the heir entitled to succeed him in the first degree, and the latter should reject the estate, and the succession pass to the next degree, the heir will not be required to execute the trust. This rule Our Emperor stated in a Rescript. 10If a trust should be left by a freedman to be executed by his patron, and he should die, and one of his children should be permitted to take possession of his property, the same rule will apply.

2Gaius, Trusts, Book I. A trust cannot be left to be executed by a son who has been passed over in a will, even though he should be the heir-at-law.

3Ulpianus, Trusts, Book I. Where a woman made a stipulation with reference to her dowry, and her husband, having taken a receipt from her therefor in order that she might charge him with a trust, it must be said that the trust should be executed, for he is considered to have received something from his wife. This is the case where the woman gives a receipt to her husband, being about to make him a donation mortis causa. But where she increases her dowry in favor of her husband, mortis causa, or marries him again after separation, it may be held that the trust can be executed by him. 1Julianus said that if a slave should be bequeathed to me, and I am asked to manumit him, I cannot be charged with a trust, that is to say, if I am requested to do so absolutely; for if I am asked under a condition, or within a certain period, I will be liable on account of the profit which I will derive from the labors of the slave in the meantime, and upon this point Julianus entertained no doubt. 2Where anyone owes some property to a certain person, as the result of a stipulation, and bequeaths him the property, he cannot charge him with a trust, although the creditor may be held to have benefited by the legacy, because ownership vests at once, and does not wait for an action based on the stipulation. Perhaps someone might say that he would profit by the expenses of the stipulation, which he would have to pay if the matter should come into court; but it can, by no means, be held that he can be charged with a trust. 3If I should transfer to you, mortis causa, the usufruct of certain property of which you have the ownership, it may be held that I can charge you with a trust, nor will the point that the usufruct is ordinarily extinguished by death have any weight, since we must consider the benefits which the owner will obtain during the intermediate time that the party who made the donation survives. 4If, however, I should release the pledge of my debtor, mortis causa, and charge him with a trust, the trust will not be valid.

4Paulus, Sentences, Book IV. Where a trust is left to be executed by a father or a master, and the estate is not obtained by him who has emancipated his son, or manumitted his slave, the beneficiary of the trust can bring a prætorian action against the said son or slave, because the profits of the estate which he has acquired remain in his hands.

5Ulpianus, Trusts, Book I. Where a legacy is left to a municipality, those who are transacting its business can be charged with a trust. 1Where anyone leaves a trust to be executed, not by the heir or legatee himself, but by the heir of said heir or legatee, it is but proper that this should be valid.

6Paulus, Trusts, Book I. Even if I should charge my heir with a trust as follows, “I ask you, Lucius Titius, to charge your heir to pay ten aurei to Mævius,” the trust will be valid; provided that, after the death of Titius, its execution can be demanded from his heir. This opinion was also held by Julianus. 1A trust cannot, however, be created as follows, “If Stichus should become the property of Seius, and should enter upon my estate by his order, I ask Seius to pay such-and-such a sum,” since anyone who obtains an estate through chance, and not by the will of the testator, or acquires a legacy under such circumstances, ought not to be burdened with the obligation of a trust; and the principle should not be adopted that you can bind anyone by a request of this kind when you give him nothing.

7Ulpianus, Trusts, Book I. Where the slave of a man who has been deported is charged with a trust, it will belong to the Treasury, unless the party who was deported disposed of the slave, or was restored to the enjoyment of his civil rights during the lifetime of the testator, for then it will belong to him. 1Where a soldier charges a man who has been deported with a trust, the better opinion is (and this is also approved by Marcellus), that he cannot receive the trust. 2If anyone should bequeath to his creditor what he owes him, he cannot charge him with a trust, unless the creditor obtains some benefit from the legacy; for example, where he is apprehensive of the filing of an exception, or where the debt was to be paid within a certain time, or under some condition.

8Paulus, Trusts, Book I. If a legatee, who has been charged with a trust, claims the legacy, he can only be compelled to pay to the beneficiary of the trust as much as will be required by the judge; or, if the judge does not compel him to pay anything, he must assign him his right of action; for it is unjust that he should sustain the risk attending a lawsuit, if the case should be lost through no fault of the legatee. 1A slave of the heir cannot be charged with a trust, unless the latter is requested to manumit the slave. 2Where a testator provided that any of his estate which might come into his father’s hands should be given to his daughter, so that, in this way, she would have more than she would otherwise obtain from her father’s estate, the Divine Pius stated in a Rescript that it was evident that the testator intended that the delivery of the property should be made after the death of the father.

9Marcianus, Trusts, Book I. Where a trust was left as follows, “To anyone who may obtain my estate under the terms of my will, or through intestacy,” or, “To anyone in whom my estate may vest by any title whatsoever,” by these terms a child who may subsequently be born or come into the family, or anyone who may afterwards become a near relative of the testator, is held to be charged with the trust, as well as any woman who is not yet married, and afterwards is ascertained to be in the position in which, according to the Edict, the property of an intestate husband usually passes to his wife.

10Valens, Trusts, Book II. If I bequeath a hundred aurei to you, and to the one of my three children who may come to my funeral, the legacy will not be diminished, so far as you are concerned, if none of the children should come.

11Ulpianus, Trusts, Book II. Trusts can also be left in any language, not only in Latin or Greek, but also in Carthaginian, Gallic, or the idiom of any nation whatsoever. 1Whenever anyone makes a rough draft of his will, and dies before he completes it, what is contained in the draft is not valid as a codicil, although the document may contain words creating a trust. Mæcianus states that this was decreed by the Divine Pius. 2Where anyone writes, “I recommend So-and-So to you,” the Divine Pius stated in a Rescript that a trust was not created; for it is one thing to recommend a person to his heirs, and another to intimate that it is his intention that they should be charged with a trust for his benefit. 3Where a man was asked to relinquish his share of an estate upon receiving a certain sum of money, it was held that he himself could demand the execution of the trust by the heir. If, however, he desires to do so, can he retain in his hands the sum bequeathed to him, and relinquish his share of the estate; or, indeed, can he, having been tendered the sum bequeathed, be compelled against his will to relinquish his share? He has a right to decide this matter himself. And, indeed, where anyone is asked to relinquish his share of an estate upon receiving a certain sum of money, a double trust is created; first, where the party is ready to give up his share, he can demand a sum of money; and second, even though he does not demand it, still, he can be forced to surrender his share if the trustee is ready to pay him the said sum. 4Where anyone inserts the following in his will, “Such-and-such vineyards, or lands are sufficient for you,” a trust is created, since we consider as a trust the clause, “Let him be content with such-and-such property.” 5Ad Dig. 32,11,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.Where a trust is left as follows, “I wish my heir to pay ten aurei to So-and-So, unless my heir should be unwilling to do so,” the trust is, to some extent, conditional, and first requires the consent of the heir; hence, after he has consented, he cannot change his mind and allege that he is unwilling to pay. 6When a bequest is made as follows, “If he should be willing,” it involves the question as to how long the party who is charged with the trust may live. If, however, the beneficiary should die before the trustee pays the legacy, the heir of the latter must pay it. But if the trustee should die before he is appointed heir, the trust will not be transmitted to his heir, for no one can doubt that the legacy is conditional, and the trustee is held to have died before the condition was fulfilled. 7Although a trust which is left in the following manner is not valid, namely, “If he should be willing,” it is, nevertheless, valid if expressed as follows: “If you should judge it advisable; if you think it ought to be done, if you should deem it expedient; if it seems, or should seem to you to be advantageous;” for the will does not confer full discretion upon the heir, but the trust is left, as it were, to the judgment of a good citizen. 8Hence, where a trust is left as follows, “If he should render some service to him,” it will undoubtedly be valid, if the beneficiary has been able to render the heir any service of which a good citizen would approve. It will likewise be valid if left as follows, “Provided that he does not offend you,” and the heir cannot allege that the beneficiary does not deserve it, if some other good citizen who is not prejudiced, will admit that the party is deserving of the benefit. 9These words, “I ask you, my son, to take the greatest care of the real property which is to come into your hands, in order that it may pass to your children,” although they do not exactly express the creation of a trust, as they rather imply advice than the obligation of leaving the property to the children; still, the devise of said land is considered to have the effect of a trust for the benefit of the grandchildren, after the death of their father. 10Where a trust is left to a son who has been appointed the heir of his father, while it was not expressly stated that it would take effect at the death of the latter, this may be inferred; for instance, because the following words are used, “In order that he may leave the property to his son,” or, “I wish him to have the property,” or, “I wish it to belong to him,” it can be maintained that the execution of the trust is to be postponed until the son becomes his own master. 11Where a trust has been left to anyone in the following terms: “If he should become his own master at the death of his father,” and he becomes independent by emancipation, the condition will not be held to have failed, but he will obtain the benefit of the trust at the time of his father’s death, just as if the condition had been fulfilled. 12Where a testator bequeathed certain property belonging to him, and afterwards alienated it through urgent necessity, the execution of the trust can be demanded, unless it can be proved that the testator intended to deprive him of the benefit of it, the fact, of his having changed his mind must, however, be proved by the heirs. 13Therefore, if anyone should collect the note of a debtor which he had in trust but did not, by enforcing payment, intend to annul the trust, it can be said that it must be executed. There is, however, a certain difference between these two cases; for, in one, the substance of the debt itself is extinguished, but in the other, the property still remains, although it may have been alienated. But I held that the claim for the execution of the trust still existed, even though a certain party had exacted the payment of a note of the debtor and retained possession of the money as a deposit, especially because the creditor did not himself demand the money, but the debtor tendered it of his own accord, and he, having done so, the former could not refuse to accept it. Therefore, by degrees we admit that, even if the testator had purchased property with this money which he did not collect with the intention of depriving the beneficiary of the bequest to which he was entitled, the demand for the execution of the trust can still be made. 14Where anyone builds a house in an unlawful manner (that is to say one which the Imperial Constitutions say should be demolished), let us see whether a person can leave anything of which it is composed, by way of trust. I think that he can do so; for although it is necessary for the house to be torn down, still, there is no doubt that the terms of the Decree of the Senate offer no obstacle to such a disposition of the property. 15Where an heir is requested to lend a sum of money at a specified rate of interest, the trust is valid. Mæcianus, however, thinks that he cannot be compelled to lend it, unless he is furnished with proper security. I am more inclined to the opinion that security should not be required. 16Where a commission in the army is left in trust to the slave of another, the question arises whether the legacy is acquired by his master. I hold that the estimated value of the legacy must be paid if the testator knew that the party was a slave; but if he was ignorant of the fact, the master should not be permitted to demand the execution of the trust, because if the testator had known that the legatee was a slave, he would not have left him the bequest. 17It is evident from these cases, that when anything is left by way of trust, the article itself must be delivered, and when this cannot be done, the appraised value of the same must be paid. 18If anyone should leave ten aurei to someone by a trust, and agree to leave the same amount to him a second time, if he should lose what was left to him by the will, the question arose whether the second trust would be valid, or whether the heir should require security to protect himself, lest he might be compelled to pay the ten aurei again; and also if the sum should be lost several times, whether the trustee ought to be called upon to make it good. The Divine Pius stated in a Rescript that no security should be required, and that where the property had been lost, it should not be replaced more than once by the trustee, for the heir ought not to be indefinitely burdened, and compelled to repay the said sum of money every time it was lost, but, as the legacy seems to be doubled by the second trust, no further liability attaches to the heir, if the beneficiary should afterwards waste what he has received under it. 19Likewise, if anyone should bequeath a certain sum of money to anyone, and add that the said sum can easily be set off, as the beneficiary is himself a debtor to the estate of the testator, Gaius Seius, and he refuses to accept the estate of the said Gaius Seius, but demands the execution of the trust, Our Emperor stated in a Rescript that such a demand was contrary to the intention of the testator, as with reference to trusts the intention of the testator must by all means be considered and observed. 20It frequently happens that what was left is intended for the benefit of several persons; but the testator desired to honor only one of them by mentioning him. This opinion of Marcellus is perfectly correct. 21Hence, it happens that, sometimes, where a testator wished to do honor to several persons, and had them all in his mind, although there was but one legacy, still, several are permitted to claim it, as for instance, where ten persons stipulated for the same property, and the heir or trustee was requested to pay them, for in this case, if it was to the interest of all of them, and the testator had them in his mind, they all could demand the execution of the trust. But let us see whether each can bring an action for his share, or for the entire amount. I think that they can bring suit according to the interest of each one, and therefore the one who first proceeds will obtain the entire amount, provided he gives security that he will defend the party who paid him against all the other beneficiaries of the trust, whether they are partners or not. 22Sometimes, however, the right to make a demand for the execution of a trust, or for a legacy, will belong to another party than the one whose name is mentioned in the will; as, for example, where the heir is charged to pay a public tax for Titius, the farmer of the revenue must make the demand for the execution of the trust, or for the payment of the legacy; although he may be the person mentioned, and Titius himself can demand the legacy which was left to him. I think that it makes a great deal of difference whom the testator had in his mind, and whom he intended to benefit. Generally, however, it should be understood that he acted for the advantage of a private individual, although the profit may have actually enured to the farmer of the revenue. 23Where something is left for the erection of a public work in a city, the Divine Marcus and Lucius Verus stated in a Rescript directed to Procula that each heir was liable for the entire amount. They, however, in this instance, granted time to a co-heir during which he might send persons to do the work, and after this time they decided that Procula alone would be liable, and that she could collect from her co-heir his share of the expense which she had incurred. 24The Divine Marcus also stated in a Rescript that the same rule was applicable to a statue, a servitude, and other things which are incapable of division. 25Where anyone is ordered to construct a public work, and offers to furnish the money to the city in order that it may construct it, when the testator intended that the trustee himself should do so, he shall not be heard; and this the Divine Marcus stated in a Rescript.

12Valens, Trusts, Book I. “Let Stichus be free, and I request my heir to teach him a trade, in order that he may be able to support himself.” Pegasus says that the trust is void, because the kind of trade was not stated. But the Prætor or the Judge must determine, in accordance with the intention of the deceased, and the age, position, character, and talents of the slave to whom the bequest was made, what trade it would be best for the heir to teach him at his own expense.

13Marcianus, Trusts, Book II. Where a testator expressed himself as follows, “Let my heir give So-and-So such-and-such a tract of land, and pay ten aurei to Seius in addition,” there is no doubt that Seius can claim half of the land and ten aurei under the provision of the will.

14Gaius, Trusts, Book I. There is no question, where a legacy is bequeathed to a wife under the condition that she will not marry again, and she is requested to return the legacy if she does; that she can be compelled to do so, if she should marry a second time. 1An heir who has been released from the requirement of taking an oath, will still be obliged to pay legacies and execute trusts under a will. 2Where, however, a legacy has been left to someone for the purpose of purchasing property belonging to another, in order to deliver the same to a third party; and he is unable to purchase said property for the reason that the owner will not sell it, or wishes to sell it at an exorbitant price, he must pay the just value of the same to the beneficiary of the trust.

15Marcianus, Trusts, Book II. Where the property of a testator, which is said to be in the sea is bequeathed, it must be delivered after it has been recovered.

16Ad Dig. 32,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 188, Note 2.Pomponius, Trusts, Book I. The property left under a trust is very frequently delivered to the beneficiary in a better condition than it was when bequeathed; as for instance, where a field has been increased by alluvial deposit, or where an island has arisen.

17Marcianus, Trusts, Book II. Property which will be in existence at some future time, as an island which may be formed in the sea or in a river, can also be bequeathed. 1A servitude can also legally be bequeathed to a slave who owns an adjoining tract of land.

18Pomponius, Trusts, Book I. If, having executed a will according to law, I leave you a trust, and then afterwards I make another will without observing the required formalities, by which I do not leave you a trust, or if I do, I leave you one entirely different from that included in the first will; it must be considered whether it was my intention, when I made my second will, to deprive you of what was bequeathed by the first, because trusts are annulled by the mere intention. This, however, is difficult to establish as perhaps I may not have intended to revoke the first will, unless the second should be valid, and now the trust in the second will will not be valid, even though the same heirs were appointed by both wills, and entered upon the estate under the first one.

19Valens, Trusts, Book V. Nerva and Atilicinus very properly held that where a legacy was bequeathed to you, or a trust was left requiring you to perform some act, even if it was not to the interest of the heir for this to be done, the right to bring an action should be denied to you, if you did not furnish security to the heir to comply with the will of the deceased.

20Ulpianus, Trusts, Book VI. If property should be left to me in trust, and the same property should be bequeathed to you either as a legacy, or in trust, not with the intention of dividing it, but entirely to each one of us, there is no doubt that if it should be given to one alone, the other will have no right whatever in the property, but he will be entitled to an action to recover the entire price of the same.

21Paulus, Sentences, Book IV. A trust can also be left by a mere motion of the head, provided he who does so is also able to speak, unless some disease with which he is suddenly attacked prevents him from using his voice. 1It has been established that where a trust is left, and the property to which it relates is ascertained to belong to the party to whom it was left by reason of a valuable consideration, the trust will be extinguished, unless the deceased intended that the appraised value of the property should also be paid to the owner of the same. 2Where the columns or timbers of a house are left under a trust, the highest authority has decided that only such parts of the building can be delivered which may be removed without injuring it, and that no statement of the appraised value of the same shall be made.

22Hermogenianus, Epitomes of Law, Book IV. Where anyone in the beginning of his will expresses himself as follows, “I wish he to whom I have twice made the same bequest shall only be paid once,” and afterwards, by the same will or by a codicil, he knowingly bequeaths the same property several times to the same person, his last will should be held to prevail, for no one can say that a man is not permitted to revoke his first will. This, however, will only apply where he expressly states that he had changed his original intention, and desired that the legatee should receive several bequests. 1Where a soldier who has been sentenced to death for a capital crime is, by the terms of the sentence which condemned him, permitted to make a will, he is also authorized to leave property in trust. 2The beneficiary of a trust must alone sustain the loss caused by the death of a slave left to him under the same, before the heir is in default, even though a slave belonging to another is the subject of the legacy.

23Paulus, Sentences, Book V. It is dishonorable for the Emperor to claim a legacy, or the benefit of a trust under an imperfect will; for it is becoming to the majesty of so great a ruler to show obedience to the laws from whose operation he himself seems to be exempt.

24Neratius, Opinions, Book II. A bequest can be made to a creditor in order to prevent his heir from recovering money which is not due.

25Paulus, On Neratius, Book I. “Let So-and-So, my heirs, pay a hundred aurei to Seius.” Seius can demand payment from whichever of said heirs he wishes. 1Where there is no ambiguity in the words made use of, no question as to the intention of the testator should be raised.

26The Same, On Neratius, Book II. He who owes a trust is compelled not only to deliver the property from the day when he is in default, but also to make good any loss Which the beneficiary of the trust may suffer on this account.

27The Same, Decrees, Book II. Paula, having appointed Callinicus heir to a part of her estate, bequeathed by her will ten aurei to her daughter Jubentiana, and then, after some time, having executed a codicil, she left the hundred aurei to the same Callinicus, but did not add: “In addition to his share.” It was decided that both sums should be paid to him, especially as nothing had been left to the daughter of Callinicus by the codicil. 1Pompeius Hermippus appointed his son Hermippus heir to three-fourths of his estate, and his daughter Titiana heir to the remaining fourth, and left to each of them certain lands as preferred legacies; and he also directed that if Hermippus should die without issue, another tract of land should be given to his daughter. After having made his will, he made a codicil by which he left his daughter certain lands, and desired her to be content with them, together with what he had left her by his will. The property of Hermippus was forfeited to the Treasury, and his sister Titiana demanded the execution of the trust. The question arose, as her brother was requested to pay her so much instead of her share of the estate, whether her father intended that she should only receive what he had left her by the codicil. It seems to me that he had absolutely revoked his first will. The more equitable interpretation seemed to be that her father did not intend to deprive her of her share of the estate to which she would have been entitled during the lifetime of her brother, nor of that which the latter was to leave her at his death, if he should die without issue; and it was so decided. 2Julianus Severus, having appointed several heirs at the time of his death, left to his foster brother fifty aurei which he desired to be paid to him by Julius Maurus, his tenant, out of the rent of land that he owed him; and he also bequeathed certain property to the said Maurus. The Treasury raised a question as to the disposal of the estate, and Maurus paid the money to the Treasury, by order of the Imperial Steward, and the appointed heir afterwards gained the case against the Treasury. The foster-brother having died, his heir demanded the execution of the trust by the heir of Maurus; but the Emperor decided that he was not charged with the trust, but that he had only been mentioned to point out the source from which the trust could be obtained, and therefore that the heir of Severus should execute it.

28The Same, On the Tertullian Decree of the Senate. If I should be charged with a trust to deliver to another person all over and above the share that I can legally take, it is established that I can also receive the said amount.

29Labeo, On the Last Epitomes of Javolenus. Where a man had a concubine, and gave her the privilege of using the clothes of a former concubine, and then made a bequest as follows, “I leave her such-and-such clothing which I have purchased, and intended for her,” Cascellius and Trebatius deny that she is entitled to the clothing which was obtained for the first concubine, because a different rule prevails in the case of a wife. Labeo does not adopt this opinion, because, while it is true that in the case of a legacy of this kind the law governing a wife does not apply, the interpretation of the words used by the testator must be considered. The same rule applies to the case of a daughter, or to any other person whatsoever. The opinion of Labeo is correct. 1Where a legacy was bequeathed as follows, “I desire my wife, Titia, to have a share of my estate equal to the smallest one which any one of my heirs may have,” and the shares of the heirs were unequal, Quintus Mucius and Gallus held that the largest share was bequeathed, for the reason that the smaller share is included in the larger. Servius and Ofilius contended that the smallest share was meant, because when the heir was charged with the payment of the legacy, he had the power to give whatever share he chose. Labeo approves this opinion, and it is correct. 2Where a legacy was bequeathed as follows, “Let my heir pay to Seia a sum of money equal to that which I obtained from the estate of Titius,” Labeo thinks that the legacy includes what the testator had entered in his accounts as having been derived from the said estate; but he denies that security should be furnished to the heir by the legatee to protect him, in case the heir should afterwards be required to pay anything on account of the said estate. I, however, hold the contrary opinion, because it cannot be maintained that what the heir will have to pay on account of said estate has actually come into his hands. Alfenus Varus states that this was the opinion of Servius, and it is correct. 3Where a slave has been left to you in general terms, and the heir delivers Stichus to you, and he is evicted, Labeo says that you can proceed against him under the will, because the heir is not considered to have given you any slave, since you were unable to retain the one he gave you. I think that this is correct. But he also says that you should notify the heir of the eviction before instituting proceedings, for, if you did otherwise, an exception on the ground of bad faith could be filed against you in case you brought an action under the will. 4“If my slaves Stichus and Damus are in my possession at the time of my death, let them be free, and let them have for themselves such-and-such a tract of land.” Labeo thinks that if either of said slaves should be alienated or manumitted by their owner, after the will was executed, neither of them would become free. Tubero, however, thinks that the one who remained in the hands of the testator would be free, and be entitled to the legacy. I think that the opinion of Tubero is the one more in conformity with the intention of the deceased.

30The Same, On the Last Epitomes of Javolenus, Book II. A testator who had four oil jars made the following bequest: “I bequeath two oil jars which are similar.” I gave it as my opinion that only a pair of jars was bequeathed, as the expression, “Two pairs of jars,” is not the same as “Two similar jars.” Trebatius is of the same opinion. 1Where a testator rented certain public gardens from the State, and bequeathed to Aufidius the produce of said gardens until the expiration of the lease under which they were rented, and charged his heir to pay the rent of said gardens and permit him to enjoy the same, I held that the heir was obliged to permit him to enjoy them, and moreover, that he would also be obliged to pay the rent of said gardens to the State. 2Where it was inserted into a will, “Let my heir pay five aurei to Stichus, my slave, and if Stichus should serve my heir as a slave for the term of two years, let him be free,” I think that the legacy will be due after the lapse of two years, for both it and the grant of freedom should be referred to that time. This was also the opinion of Trebatius. 3If you are charged to sell me a tract of land for a specified price, you will not be at liberty under the terms of said sale to reserve any of the crops of said land, because the price refers to the entire premises. 4Where I directed a party to purchase a tract of land for himself and me, to be held in partnership, and he then divided said land into two portions by boundaries, and, before delivering it to me, he devised it as follows, “I give to So-and-So my tract of land,” I denied that more than half the land was due, because it would not be probable that the testator, when he made the devise, intended that his heir should be charged with the mandate. 5“Let my heir pay two hundred aurei to my wife, while she remains with my son at Capua.” The son left his mother. I was of the opinion that as long as both parties resided at Capua, the legacy would be due to the mother, even though they did not live together. If, however, they should move to some other town, Trebatius says that the legacy would only be due for one year according to the time during which they lived together. Let us see whether a condition was not implied by the words, “While she remains with my son at Capua,” but that they shall be considered as superfluous. I do not adopt this opinion. Still, the legacy should be paid to her, provided it is not her fault if she did not reside with her son. 6If you are charged to deliver a house belonging to another, and you cannot purchase said house on any terms whatsoever, Attius says that the court must make an appraisement of its value, so that the heir may be discharged after the amount has been paid. The same rule applies if you could have bought the house and did not do so.

31The Same, Epitomes of Probabilities, by Paulus, Book I. Where a house is bequeathed to anyone, he will be entitled to all the buildings situated on the land belonging to said house. Paulus: This rule, however, does not apply where the owner possessed two adjoining houses, and a room of one of them was destined for the use of the other, and employed for this purpose; for, under these circumstances, the said room will cease to be accessory to the building to which it is attached, and will become accessory to the other.

32Scævola, Digest, Book XIV. A testator appointed Sextia heir to a fourth of his estate, and Seius and Marcius, his sister’s sons, heirs to the remaining three-fourths. He then substituted Sextia for Marcius, and Marcius for Sextia, and left Marcius certain property as a preferred legacy. Marcius rejected the share of the estate to which he was appointed heir, and, having died intestate, his property passed to his legitimate brother Seius. The question arose whether Sextia could, under the substitution, also claim for herself from the heir-at-law what had been left to Marcius as a preferred legacy, on the ground of the substitution. The answer was that, according to the facts stated, Sextia was not substituted, so far as the legacies which had been bequeathed to Marcius were concerned.

33The Same, Digest, Book XV. A certain man bequeathed to his wife, with other property, that portion of his house in which they had been accustomed to live. The question arose, since, at the time that the will was made as well as when the testator died, he made use of the entire house, and did not rent any portion of it, whether he only intended to bequeath the bedroom in which he was accustomed to sleep. The answer was that all that part of the house in which he habitually resided with his family was included. 1A testator, among other bequests, left the following legacy to his wife: “I desire that whatever I have presented to my wife, or have purchased for her use during my lifetime shall be given to her.” I ask whether it should be held that she was also entitled to what he had given to her after the will was made. The answer was that the words mentioned had no reference to future time. 2Where Seius paid a hundred aurei to a creditor of his wife, and redeemed a piece of jewelry which had been deposited by way of pledge, and, having afterwards executed a will, made the following bequest, “I give to my wife whatever I have paid on account of a stipulation into which she entered, and, in addition to this, two hundred aurei every year;” the question arose whether the said two hundred aurei could be recovered by the husband’s heirs from his wife or from her heirs. The answer was if he had paid the creditor as a donation, his heirs would be liable under the trust if they tried to collect the debt, and that they could even be barred by an exception. The presumption would be that a donation was intended, unless the contrary could be proved by the heir.

34The Same, Digest, Book XVI. A certain woman bequeathed a claim of her debtor as follows: “I wish the ten aurei, which the heirs of Gaius Seius owe me, to be paid to Titius, in addition; and I desire my heir to assign to him his right of action against them, and to deliver to the said Titius the pledges which they have given.” I ask whether the heirs should only pay the ten aurei, or whether the right of action should be assigned for the entire debt; that is to say, for the interest as well as the principal. The answer was that it appears that the entire obligation of the debt was bequeathed. I also ask, if a testatrix should not be aware that her agents in the province entered into a stipulation for the ten aurei, and the interest should be added to the principal on account of the above-mentioned trust, whether the increase of this debt would belong to Titius. I answered that it would. 1A testator, having appointed his son his heir to a portion of his estate, with other things left him a preferred legacy in these words: “I request that twenty claims, taken from my account-book, shall be given without fraudulent intent to my son Titius, after he has selected the same.” The said testator, during his lifetime, entrusted his son with the transaction of all his business, and the son, after the will was made, and for ten years before his father’s death, during which time he acted as his agent, contrary to the usual practice of his father as shown by his account-book, lent new debtors large sums of money, and permitted the old debtors who owed his father small amounts to increase their obligations, in order that the aforesaid twenty claims might almost fill the entire account-book of his father. The question arose whether the son was entitled, as a preferred legacy, to the loans which he himself had made. The answer was that he could only make a choice of those which were in the account-book of the testator at the time he executed his will. 2A woman left, as a preferred legacy, to one of her heirs all that remained of the estate of her husband Areto, and charged him to deliver said property to her great-grandson when he reached the age of sixteen years; and she then added the following: “I also ask that you pay, satisfy, and discharge any remaining debt due from the estate of Areto, out of the income of the same to the creditors of said estate.” The question arose, if the heir should prove that there was not sufficient income from the estate to pay all the claims, whether he himself would be required to assume the burden of the indebtedness. The answer was that it was evidently the intention of the testatrix that the debts should be paid out of the income of the property, and not out of the private estate of the heir. 3A father, having appointed his son and his daughter his heirs, and left to each one of them certain lands and book-accounts by way of preferred legacies, inserted the following provision into his will: “I charge you, my dear son, and I wish you to pay all the legacies which I have bequeathed, and if I should contract any indebtedness by a temporary loan, and owe this when I die, I desire that you pay it, so that what I have left to your sister may remain intact.” The question arose whether the son was required to pay all the debts of his father, no matter how they were contracted. The answer was that the daughter could, under the terms of the trust, demand to be released from liability, in order that what the testator had left her might come into her hands unencumbered.

35The Same, Digest, Book XVII. A patron asked his heir to immediately purchase a place in a tribe for his freedman. The latter suffered from the default of the heir of the patron for a long time, and, at his death, appointed a man of the most illustrious rank his heir. The question arose whether the appraised value of the place in the tribe was due to the heir of the freedman? The reply was that it was due. It was also asked whether, in this instance, the ordinary benefits and advantages to which the freedman would have been entitled by his membership in the said tribe until the day of his death could be recovered, if the place in the tribe had been purchased in the beginning, in accordance with the will of the patron; or whether his heir would only be entitled to the interest on the appraised value of the place. I answered that whatever the freedman could himself have recovered was transmitted to his heir. 1A testator made a devise to Sempronius as follows: “Let Sempronius take all the lands which I have within the boundaries of Galatia, as far as the tract which is called Gaas, and which are in charge of Primus, the steward, together with all the appurtenances of the same.” The question arose, as there was but one tract of land in charge of the said steward, and it was not within the boundaries of Galatia, but within those of Cappadocia, whether this tract would belong to Sempronius, along with the others. The answer was that it would belong to him. 2A testator made the following devise to his freedman, whom he mentioned by name, “I desire the Trebatian Estate, which is in the Atellatan district, and also the Satrian Estate, which is in the district of Niphana, together with a shop, to be given.” The question arose, as among the lands above devised there was a tract designated as Satrian, but which was not in the district of Niphana, whether it should be delivered to the freedman under the terms of the trust? The answer was if there was no estate called Satrian in the district of Niphana, but if it was certain that the testator had in his mind the one which was situated elsewhere, it would, none the less, be due, because he had made a mistake in indicating the district in which it was situated. 3A person made the following provision in a codicil, which he confirmed: “Let the Julian bath, which is joined to my house, be granted for the gratuitous use of the citizens of Tibur and Scitis, to whom I am much attached, in such a way that they can bathe there publicly, at the expense, and under the supervision of my heirs, for six months of every year.” The question arose whether the heirs would be required to pay the expense of necessary repairs. The answer was that, in accordance with the facts stated, the testator, in addition to the obligation to heat the bath, and provide for service, also included whatever was connected to its daily maintenance, so that the bath might be provided with everything necessary; and that, during the ordinary periods of intermission, it should be prepared and cleaned, so that it might be proper for occupancy, as is usual under some circumstances.

36Ad Dig. 32,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 9.Notes of Claudius on Scævola, Digest, Book XVIII. Where a will has been decided to be inofficious, the trusts therein contained are not due ab intestato because, as an insane person cannot make a will, it is held that nothing included in his last will is valid.

37Scævola, Digest, Book XVIII. A certain person, at the time of his death, devised to his mother, Seia, a certain tract of land which already belonged to her, and requested her when she died to transfer the same to his wife Flavia Albina. After the death of the testator, the mother stated in the presence of a magistrate that she did not wish to do anything against the wish of her son, and that she was willing to transfer the land to Flavia Albina, if she would pay her two aurei a year, as income. She, however, neither delivered possession of the property, nor received the sum of two aurei a year. The question arose whether she could legally sell the land to a third party. The answer was that, if the inquiry was made with reference to the legacy and the trust, in accordance with the facts stated, what the testator left to his mother was not valid, and there was no obligation to comply with the trust, provided the mother had not received anything else by the will. 1A certain person appointed an heir, and left two hundred aurei to Mævius, charging him to pay a hundred to Glaucetyches and fifty to Elpidus. Afterwards Mævius, with the consent of the testator, sent letters to the two legatees, and paid them their legacies in accordance with the will of the testator. The testator afterwards made a codicil, and provided that if any instrument was produced which was contrary to the said codicil, it should not be valid. The question arose whether Mævius, who had received two hundred aurei, could be sued by the legatees under the trust, because the testator had changed his mind with reference to the letters above mentioned. The answer was that, according to the facts stated, an action could not be brought against Mævius, whether he had received the two hundred aurei, or the land instead of them. 2A testator appointed Seia and Mævius, his freedmen, heirs to equal portions of his estate, and substituted his ward Sempronius for Mævius. He then confirmed a codicil by which he provided as follows: “Lucius Titius to Seia, his heir, whom he appointed to inherit half of his estate, Greeting. I forbid Mævius, my freedman, whom I have appointed by my will heir to half of my estate, to receive the same; and, in his place, I desire Publius Sempronius, my ward, to be my heir to his share of my estate.” He also left to Mævius, whom he did not wish to obtain a share of his estate, a trust with the following censure: “I wish a hundred and fifty bottles of old wine to be given to Mævius, my freedman, who deserves nothing from me.” As it was the intention of the testator, in the first place, that half of his estate should, under all circumstances, belong to Sempronius, the question arose whether the trust expressed in the above-mentioned words should be considered valid, and of whom Sempronius could make the demand, as the codicil was addressed to a certain person. The answer was that the execution of the trust could be demanded of Mævius. 3A father gave to his emancipated son all his property with the exception of two slaves, but did not make a donation mortis causa, and stipulated with his son as follows: “Do you promise that the slaves which I have given you and the lands which I have transferred to you as a gift, together with such offspring as may be born to said slaves, and also the implements used for cultivating the soil, or whatever of said property may remain or be under your control, and which has not been fraudulently disposed of by you, shall at your death be returned to me, if I should be living, or delivered to anyone whom I may designate? I, Lucius Titius, the father, have stipulated this and, I, Lucius Titius, the son, have promised it.” The father, when dying, wrote to his son creating a trust as follows: “Lucius Titius, to his son Lucius Titius, Greeting. Confident of your filial affection, I charge you to pay to So-and-So and So-and-So, a certain sum of money, and I desire my slave Lucrio to be free.” The question arose whether the son, who could neither obtain prætorian possession of his father’s estate nor was appointed his heir, was bound to execute the trust, and grant freedom to the slave by the terms of the letter. The answer was that while the son could not enter upon the estate of his father, nor demand prætorian possession of the same, and although he did not hold anything belonging to his estate, an action could, nevertheless, be brought against him as a debtor by the heirs of his father, on the ground of the stipulation; and also one on account of the trust by those who were interested in its execution; especially after the Constitution of the Divine Pius, which provided for a case of this kind. 4A widow, about to be married, directed her two children, whom she had by her first husband, to stipulate for twenty aurei, the value of the dowry which he was about to give, if for any reason her marriage could be dissolved, so that her entire dowry could be paid to one or the other of them. One of the children having died during the marriage, the wife, by a letter, directed the survivor to be content with half of the dowry, without demanding any more of it, and to let the remaining half remain in possession of her husband. The woman having afterwards died, the question arose whether her husband could be sued for the entire dowry by her son, and whether the former could be protected by an exception on the ground of bad faith; and moreover whether an action would lie in his favor, under the terms of the trust, in order that the son might be compelled to release him from his share of the obligation. The answer was that the exception could legally be interposed, and that he could also bring suit under the terms of the trust. It was also asked whether a prætorian action, having reference to the remaining half of the property, would lie in favor of the heirs of the woman against her son. The answer was that, according to the facts stated, and especially after the letter written to the son, the action could not be brought. Claudius: Since she stated in her letter that her son should be content with half the dowry, it was held that by these words a trust for the benefit of the son was created. 5A testator made the following provision in a codicil: “I wish everything included herein to be carried out. I give to my lord, Maximus, five thousand denarii which I received by way of deposit from his uncle Julius Maximus, to be paid to him with interest when he becomes a man, which will amount to thirty thousand denarii, for I have promised his uncle under oath to do this.” The question arose whether the terms of the codicil were sufficient to authorize a suit to recover the money deposited, as their truth could not be established by any other evidence. I answered that, in accordance with the facts stated, what the testator wrote should be believed, as he alleged that he had bound himself by an oath to do this. 6Titia, a woman of high rank, who had always employed Callimacus to transact her business (the latter being incapable of taking under a will), having drawn up a will in her own hand, provided as follows: “I, Titia, have made this my will, and I desire that the sum of ten thousand denarii be given to Callimacus, by way of reward.” I ask whether this money can be claimed by the heirs of Titia, on the ground of its being a recompense. I answered that what is bequeathed in violation of law can not be collected. 7With reference to the following words of a will: “I wish payment to be made to all male and female slaves whom I have manumitted, or may manumit, either by this will, or by any other, together with their sons and daughters,” the question arose whether the heir was liable to those whom the testator had manumitted during his lifetime. The answer was that the provisions of the trust must also be executed so far that those who had been manumitted before the will was made, and their children of both sexes, were concerned.

38The Same, Digest, Book XIX. Ad Dig. 32,38 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 172a, Note 5.A father forbade his son, who was also his heir, to alienate the lands belonging to the estate, or to subject them to pledge; but charged him to hold them for the benefit of such children as he might have by legal marriage, and of his other relatives. The son, having paid one creditor of the estate, released certain tracts of land which his father had encumbered, and, in order to obtain the money to pay him, transferred the said lands to a second creditor, by way of pledge or hypothecation. The question arose whether the pledge was legally contracted. The answer was that, according to the facts stated, it was legally contracted. The question was also raised, if the son should sell land forming part of the estate in order to satisfy its creditors, whether the purchasers, who were ignorant of the existence of a trust, could legally buy the land. I answered that, according to the facts stated, the sale would be valid if there was no other property belonging to the estate out of which the debt could be paid. 1A certain man having appointed his two freedmen, Stichus and Eros, his heirs, provided as follows in his will, “I do not consent that the Cornelian Estate shall leave the hands of freedmen.” Stichus directed his female slave Arescusa to be free by his will, and bequeathed to her his share of said estate. I ask whether Eros, and the other fellow-freedmen of Stichus, can demand from the heir of the latter his share of the said estate, under the terms of the trust. The answer was that Arescusa was not included in the trust. 2A man appointed his daughter his heir, and inserted into his will, “I do not desire my house to pass out of the hands of my freedmen, but I wish it to belong to the slaves born in my family, whom I have mentioned in this will.” The question arose, after the death of the heir and the slaves born in the household of the testator, whether a single freedman who remained was entitled to the entire benefit of the trust. The answer was that, in accordance with the facts stated, only the proportionate share of the surviving freedman would belong to him. 3A testator, having left a tract of land to his son, forbade him to sell, give, or pledge the same, as long as he lived, and added the following clause: “If he should do this contrary to my will, I desire that the Titian Estate shall belong to the Treasury, and this is provided in order that the said Titian Estate may always be held in his name.” As the son retained the property in compliance with the will of his father during his entire lifetime, the question arose whether, after his death, the land would belong to the members of the family, and not to the heirs appointed by the son. The answer was that it may be inferred from the will of the deceased that the son, as long as he lived, could neither alienate nor pledge the land, but that he would have a right to make a will, and leave it even to foreign heirs. 4Julianus Agrippa, a member of the First Company of the Triarii, inserted the following into his will: “I do not wish my heir to pledge or alienate, in any way whatsoever, the remainder of such-and-such lands, or my suburban estate, or my house in the city.” His daughter, whom he had appointed his heir, left a daughter the grandchild of the testator, who, having held the property for a long time, died after appointing foreign heirs. The question arose whether the foreign heirs would be entitled to the said land, or whether it would belong to Julia, who was a grand-niece of Julius Agrippa. I answered that, as the above provision was only a mere precept, nothing had been done against the will of the deceased, which would prevent the title to the land from vesting in the heirs. 5A certain testatrix left a small tract of land, together with a shop, to fifteen of her freedmen, whom she mentioned by name, and added the following: “I wish my freedmen to hold this land under the condition that none of them will sell or give away his share, or do anything else which will cause it to become the property of a stranger. If anything is done, contrary to this provision, I desire their shares, together with the land with the shop, to belong to the people of Tusculum.” Some of her freedmen sold their shares to two of their fellow-freedmen, who were included in their number, and the purchasers having died, appointed as their heir Gaius Seius, a stranger. The question arose whether the shares which were sold would belong to Gaius Seius, or to their surviving fellow-freedmen who had not disposed of theirs. The answer was that, according to the facts stated, they belonged to Gaius Seius. It was also asked whether the shares which were sold would belong to the people of Tusculum. I answered that they would not. Claudius: Because the person of the actual possessor, who is a stranger, is not to be considered but those of the purchasers, who, in accordance with the will of the deceased, were of the number of those to whom she had permitted the property to be sold, the condition under which the land was granted to the people of Tusculum by the terms of the trust has not been fulfilled. 6A testator charged a legatee to whom he had bequeathed two thousand solidi under a trust, as follows: “I ask you, Petronius, to pay the said sum of two thousand solidi to the society of a certain temple.” The society having been subsequently dissolved, the question arose whether the legacy should belong to Petronius, or should remain in possession of the heir. The answer was that Petronius could legally demand it, especially if it did not devolve upon him to execute the will of the deceased. 7A mother appointed her sons her heirs, and added: “They must, under no circumstances whatever, dispose of the lands which will come into their possession as part of my estate, but they must reserve them for their successors, and furnish security to one another with reference to this.” The question arose whether the lands should be considered to have been left in trust by these words. The answer was that, in accordance with what was stated, they did not create a trust. 8A man having appointed an heir to half his estate, left him a certain tract of land as a preferred legacy, and added the following: “I ask you to consent to receive Clodius Verus, my grandson, and your relative as your co-heir to the Julian Estate which I have ordered to be given to you as a preferred legacy.” The question arose whether the grandson was entitled to half of the land under the terms of the trust. I answered that he was.

39The Same, Digest, Book XX. “I wish a hundred aurei to be given to my freedman, Pamphilus, in addition to what I have left him by my codicil. Pamphilus, I know that all that I leave you will eventually come into the hands of my children, for I bear in mind the affection which you entertain towards them.” I ask whether the testator, by the use of the above-mentioned words, charged Pamphilus with the trust to pay to the children of the deceased a hundred aurei after his death? The answer was that, according to the facts stated, it could not be held, so far as the language of the testator was concerned, that Pamphilus was charged with a trust to pay the hundred aurei; but as it would be extremely dishonorable for the good opinion of the deceased to be contradicted by his freedman, the hundred aurei which had been bequeathed to him must be paid to the children of the testator. The Divine Marcus, Our Emperor, rendered the same decision in a similar case. 1The following question was proposed for determination. A certain individual who had no children or relatives, and was reduced to extremity by disease, having called his friends together, told them in the presence of Gaius Seius, who occupied the same house with him, that he desired to leave him certain lands which he mentioned; and Gaius Seius drew up this statement, which was witnessed, and the testator himself, having been interrogated, as to whether he had made it, answered “most assuredly,” which was inserted into the instrument. The question arose whether the lands which were designated would belong to Gaius Seius under the terms of the trust. The answer was that there could be no doubt whatever on this point, as the trust was valid. 2A father appointed his two daughters heirs to equal shares of his estate, and left a tract of land to one of them as a preferred legacy, and requested the other to pay her sister twenty aurei, and he also requested this same daughter to transfer to her said sister her half of the land. The question arose whether she was obliged to pay the twenty aurei, or not. I answered that she was not obliged to do so.

40The Same, Digest, Book XXI. A daughter, born after the emancipation of her father, requested her paternal uncle, as her heir-at-law, to give her share of the estate, and two tracts of land, in addition, to her maternal uncle. The succession of the said daughter passed equally to both of her uncles, as next of kin, through prætorian possession. As the trust was not valid with reference to that part of the estate to which her maternal uncle would be entitled as heir-at-law through prætorian possession, the question arose, whether it, nevertheless, would not be valid, as far as half of the said tract was concerned; so that the said Titius, her uncle, might have two shares of said tracts, that is to say, one of them through his right under Prætorian Law, and the other which he could claim by virtue of the trust. The answer was that he was entitled to make the claim. The question was also asked, if the deceased daughter had also charged her paternal uncle with trusts for the benefit of others, whether he would be obliged to execute them altogether, or only in proportion to his share of the estate. The answer was that he would be obliged to execute them in their entirety. 1A testator appointed Seia his heir to three-fourths of his estate, and Mævius his heir to one-fourth, and he charged Seia with a trust as follows: “I ask, and I charge you to deliver to your son everything that you obtained from my estate after reserving my gardens for yourself.” Since he had charged her with a trust in general terms, the question arose whether anyone who would become his heir would be compelled to pay whatever legacies he had bequeathed, and execute whatever trusts he had created; or whether, if Seia should surrender three-fourths of the estate, she could claim all the gardens. The answer was that it appeared that the co-heir was charged by the trust to deliver to Seia the fourth interest which he had in said gardens.

41The Same, Digest, Book XXII. A husband appointed his wife and a son whom he had by her, his heirs, and charged his wife with a trust as follows: “I ask you, my wife, not to claim any share in the Titian Estate, as you know that I myself bought all of said property, but on account of the affection and respect which I owe you, I have let it be understood that we had equal shares in this purchase which I made with my own money.” The question arose whether he intended the said land to belong entirely to his son. The answer, with reference to the clause in question, was that the testator intended the said land to be included in his estate, as constituting a portion of all of it, so that his wife and son should each be entitled to half of the land as constituting part of the same. 1Where the following provision was inserted in a will, “I wish my house, with the garden adjoining it, to be given to my freedmen,” and under another head was written, “I wish my heir to transfer to my freedman Fortunius, in the house which I have given to my freedmen, the room in which I was accustomed to live, and the storeroom connected with the same,” the question arose whether the heir of the testator was obliged to pay the legacy to Fortunius, although the entire house had been previously devised to all the freedmen. The answer was that he was not required to do so. 2A testator made the following provision in a codicil, which he confirmed by his will: “I bequeath to all my freedmen, including those whom I have manumitted during my lifetime, who are manumitted by this codicil, or whom I may hereafter manumit, and their wives, sons and daughters, except such as I have specifically bequeathed, to my wife by the terms of my will.” He afterwards charged his heirs as follows: “I desire my heirs to give to my wife, their co-heir, my lands in Umbria, Etruria, and Picenum, together with all their appurtenances, including the country or city slaves, and those who transact my business, with the exception of such as have been manumitted.” The question arose whether Eros and Stichus, his slaves who had transacted the business of the testator in Umbria and Picenum until the death of the latter, and who were the natural sons of Damas whom the testator had manumitted during his lifetime, should be delivered by the heirs to Damas, in compliance with the terms of the codicil, or whether they belonged to Seia, his wife, according to the terms of his letter. The answer was that, under the codicil, they belonged to their natural father, in conformity with the dictates of natural affection. 3A testatrix left to Felicissimus and Felicissima, to whom she had granted freedom, the Gargilian Estate, including the house, and, in another part of her will, she bequeathed to her son Titius, whom she appointed heir to a fourth of her estate, a legacy, as follows: “My son, Titius, in addition to your share of my estate, take the legacies which your father, Præsens, and Cælius Justus, your father’s brother, left me.” The question arose, as the Gargilian Estate had been devised to the testatrix by her husband, that is to say, by the father of her son Titius to whom the land was due under the terms of the trust, whether the said land should belong only to Titius, the son, or to Felicissima, or to all three of them. The answer was that it was not probable that the testatrix, who left nothing to Felicissimus and Felicissima except what was contained in a special bequest, intended that the legacy should, by a general statement, be transferred to her son to whom she had also left a portion of her estate. 4A man left certain slaves, who were children, by will as follows: “I wish five of my young slaves to be given by my heirs to my little lord Publius Mævius, the said slaves to be under the age of seven years.” The testator died many years after he executed the will. The question arose of what age the slaves that were due to Mævius should be, whether they were those who, at the time when the will was made, were under seven, or whether those should be given who were ascertained to be under that age at the time of the death of the testator. The answer was that those seemed to be designated who were of that age when they were bequeathed by the testator. 5A testator made a bequest to his concubine of the following legacy, among other things: “I wish the tract of land which I have on the Appian Way to be given to her, with the steward in charge of the same, and his wife and his children.” The question arose whether the testator intended that the grandchildren of the steward and his wife should belong to the concubine. The answer was that there was nothing in the case stated which would prevent them being given to her. 6A certain man left a legacy in trust to Mævius as follows: “I bequeath whatever I possess in the city of Gades.” The question arose whether, if he had any property in the suburb adjoining the city, this also would be due to Mævius under the terms of the trust. The answer was that the meaning of the words will also permit this extension. It was also asked, in the same case, certain notes having been found in the account-book of the testator, he being in the habit of loaning money in his native city of Gades, or in the environs thereof, and having left the property which he had in said city, whether Mævius would be entitled to the said notes on account of a trust having been created by the words above mentioned. I answered that he would not be entitled to them. The question also arose whether money found in a chest in his house at Gades, or which had been obtained by the collection of different notes and deposited there, would be due under the terms of the trust. The reply was that this question had already been answered. 7A testator, by his will, in which he appointed his wife and his son his heirs, left a hundred aurei to his daughter in trust, to be paid when she married in the family, and he added the following provision: “I charge you, my daughter, when you marry in the family, and as often as you may marry, to permit your brother, and your mother Seia, each to stipulate for the return of half of the dowry which will be bestowed, if you should die during your marriage without leaving either a son or a daughter, or a divorce should take place before your dowry is returned, or satisfaction is otherwise given you with reference to it.” The father gave his daughter, who was a virgin, in marriage, and presented her with a dowry. A divorce having taken place, he received the dowry, and gave her with it in marriage to another man, stipulating that the said dowry should be returned either to himself or to his daughter. The testator died during her second marriage, leaving the same will, and his son and wife became his heirs. The husband of the girl having subsequently died, she obtained her dowry, and married a third time in the presence, and with the consent of her brother and mother, who even increased her dowry, and neither of them made any stipulation with reference to it. The son and the daughter afterwards became the heirs of their mother, and then the daughter died, leaving her husband her heir. The question arose, as the girl had not received the money composing her dowry as a legacy from the heirs of her father, but, being the mother of a family, had recovered it after the death of her second husband, whether her heir could be held liable to the brother of the deceased, under the terms of the trust, for the money which he could have received if he had made a stipulation with reference to the dowry. The answer was that, according to the case stated, he would not be liable. 8Where the heir or legatee of a testator is requested to adopt someone, and the following words are added, “If he should do otherwise, let him be disinherited,” or, “Let him lose his legacy,” the question arose, if he should not adopt the person mentioned, whether an action would lie by virtue of the trust in favor of the person who was not adopted. The answer was that a trust by which a party is requested to adopt anyone is not valid. 9“I wish the tract of land which is situated in such-and-such a district to be transferred to Mævius, Publius, and Gaius for a price fixed by an arbiter, and, the purchase-money having been added to my estate, that my remaining heirs shall promise, under the penalty of a hundred aurei, to be liable for double the amount in case of eviction, in order that the said land may not either wholly, or in part, ever pass into the hands of Seia, or her descendants, in any way whatsoever.” The question arose whether the legacy was valid, because Publius wished to purchase it, and Gaius refused to consent. The answer was that he who wished to profit by the trust could claim half of the land which was devised, even though the other declined to avail himself of his right. Inquiry was also made as to what security ought to be furnished, in accordance with the will of the testator, for the amount to be paid to each of the heirs. The answer was that security should be given in proportion to the share to which they were entitled under the terms of the trust. 10A testator bequeathed to his sister certain slaves whom he designated in his will, and charged her to deliver the same slaves to his children when she died. The question arose whether the children born of said slaves should be delivered to the children who were the heirs of the deceased, after the death of the legatee, or whether they would belong to her heirs. The answer was that those which were born afterwards were not included in the terms of the trust. 11A father owed his daughter a certain sum of money under a trust created by the will of her husband, and, when the girl married again, her father gave a dowry to her husband without having been directed to do so by her, and stipulated for the return of the dowry to himself, if his daughter should die without issue. The woman had a daughter, and the question arose whether the father could be required to execute the trust. The answer was that if the daughter had not ratified the dowry which was given her, the right to demand the execution of the trust would survive. Inquiry was also made, if the father should be willing to release the obligation arising out of the stipulation, whether the right to demand the execution of the trust would be denied to the woman. I replied that this had already been answered, and if the father had given the dowry in order that the woman might sanction it, and she did not do so, he could bring suit to recover the dowry in question. 12A woman appointed her husband Seius, her heir, and substituted her foster-child, Apia, for him; and charged her heir to transfer her estate to her said foster-child after his death, and if anything should happen to her foster-child before that time, she directed him to deliver her said estate to Valerian, her nephew. The question arose, if Seius, during his lifetime, should deliver to the foster-child whatever he had obtained from the estate, whether he would be held to have done this in accordance with the will of the deceased; especially when the said foster-child had been substituted for him. The answer was that, if Apia should die during the lifetime of Seius, the latter would not be released from the execution of the trust which had been left for the benefit of Valerian. 13Scævola held that when an appointed heir is asked to deliver an estate to another person, when he wishes to do so, he will not be compelled, in the meantime, to execute the trust. Claudius: For a trust of this kind is considered to have been created after his death. 14A testator requested his appointed heir to deliver his entire estate to his wife, Seia, and charged her as follows: “I ask you, Seia, to deliver to Mævia, our dear child, everything which may come into your hands from my estate, except what I have bequeathed to you as above mentioned; and I forbid any security to be taken from Seia, as I know that she will rather increase, than diminish my estate.” The question arose whether Mævia could immediately demand the execution of the trust by Seia. The answer was that there was nothing in the case stated which would prevent her from doing so.

42The Same, Digest, Book XXXIII. Titius appointed his wife, Seia, his heir to a twelfth part of his estate, and Mævius his heir to the remainder, and made the following provision with reference to a monument which he wished to be erected for himself: “I desire my body to be delivered to my wife to be buried in such-and-such a place, and a monument of the value of four hundred aurei to be erected.” The wife obtained as the twelfth part of the estate not more than a hundred and fifty aurei, and I ask whether the testator, by this provision, intended that his monument should be erected by her alone. I answered that the monument should be erected by both the heirs, in proportion to their respective shares of the estate.

43Celsus, Digest, Book XV. Where a father ordered a dowry to be given to his daughter, to be fixed by the judgment of her guardian, Tubero says that this should be considered just as if the dowry had been bequeathed to her to the amount which would be approved of by a reputable citizen. Labeo asks in what way a dowry can be fixed for a girl in accordance with the judgment of a good citizen. He says that this is not difficult when the rank, the means, and the number of children of the party who made the will are taken into account.

44Pomponius, On Sabinus, Book II. Where a tract of land with everything upon it is devised, any property that is there only temporarily is not held to have been left, and therefore money which is there for the purpose of being loaned is not included in the legacy.

45Ulpianus, On Sabinus, Book XXII. A legacy expressed in the following words, “Which I have procured for the use of my wife,” is a general one, and includes clothing as well as silver and gold plate, ornaments, and all the other things which are obtained for the benefit of the wife. But what articles should be considered to have been obtained for this purpose? Sabinus, in his work on Vitellius, says upon this point, that whatever terms are most frequently employed in making bequests to wives should be understood as designating whatever is intended for her individual use, and is more frequently acquired for this purpose than for the common and promiscuous use of both parties. Nor does it appear to make any difference whether the head of the household obtained such articles before his marriage, or afterwards; or even if he should give anything to his wife which he himself had been accustomed to use, and then devoted it to her special use.

46Paulus, On Vitellius, Book II. The addition of the clause above mentioned sometimes diminishes, and sometimes increases the legacy; it increases it when it is written as follows, “And whatever has been acquired on her account,” for this signifies that something else has been acquired for her benefit in addition to what has already been mentioned. It is diminished when the conjunction “and” is omitted, because, then it signifies that those things alone of all the articles previously designated have been procured for her benefit.

47Ulpianus, On Sabinus, Book XXII. If the husband purchased some of these articles before he married his wife, and gave them to her for her use, it is the same as if he had obtained them with this intention afterwards. In a legacy of this kind, those articles belong to the wife which have been purchased, repaired, and retained for that purpose, and among them are included whatever belonged to a former wife, or the daughter, or granddaughter of the testator. 1The question arises as to what difference exists between the terms “purchased” and “prepared.” The answer is that the term “prepared” is included in the term “purchased,” but this is not the case with the term “prepared;” just as if anyone had purchased an article for the use of his first wife, and gave it to his second, for while the said article was prepared for his second wife, it was not purchased for her. Hence, even though a husband might not have purchased anything for his second wife, still, by giving her the articles which the first one had they are prepared for her use, and if they had not been transferred to her, they would be included in the legacy; but whatever was prepared for the use of the first wife will only belong to the second where they have been designated for her use, because where the husband obtained them for his first wife, he is not held to have done so with a second wife in view.

48Paulus, On Sabinus, Book IV. For no article is included in the legacy if, when it has been given to the wife, she is afterwards deprived of it by her husband.

49Ulpianus, On Sabinus, Book XXII. Slaves are also included in a legacy of this kind, for instance litter-bearers, who usually carried the mother of the family alone, and also beasts of burden, sedan chairs, and mules, as well as other slaves, such as girls and women employed as hair dressers. 1If the husband should have given his wife any ornaments worn by men, they will be considered as having been acquired for her use. 2Hence, if there were any articles used by both husband and wife, and he was accustomed to borrow them from her, as it were, it must be said they also should be considered as acquired for her use. 3There is likewise a difference between articles which have been prepared for her use and such as were purchased for her, when such articles are bequeathed; for where they are prepared for her use, all that have been intended for her are included, but where they have been purchased, those alone are included which the husband bought for that special purpose; therefore where only the articles which have been purchased are bequeathed, those which were obtained in any other way by the husband, and which he destined for her, are not included. Still, whatever the husband directed to be purchased or which he himself actually bought and did not yet give to his wife, but intended to give to her if she had lived, will be embraced in the legacy under both these terms. 4Where anyone bequeaths a legacy to his wife or his concubine, composed of articles which had been purchased and prepared for her use, no distinction is made; for, in fact, no difference exists between the two women except that of social rank. 5Where gold obtained for her use is bequeathed by a husband to his wife, and it afterwards is melted, but the material still remains, she will be entitled to it. 6But, in order for the legacy to be valid, Proculus says that the woman must be the wife of the testator at the time of his death. This is true, for a separation will extinguish the legacy. 7The bequest of articles acquired for his or her use can also be left to a son or a daughter, as well as to a male or female slave; and there will be included therein any property which may have been given to them, or intended for them.

50The Same, On Sabinus, Book XXIII. Where a son under paternal control bequeaths a legacy, “When he will be his own guardian,” the age of puberty is meant. And, in fact, if a legacy is bequeathed to a son under paternal control who has not reached the age of puberty, the opinion of Sabinus and the one generally adopted is that this means not when he becomes the head of a household, but when he arrives at the age of puberty. However, if a mother, who is suspicious of the life which her husband is leading, and from whom she has been divorced, should bequeath a legacy to her son, even though he may not have reached the age of puberty; she is understood to have had in view not the time when he shall have reached that age, but the time when he shall both have reached that age, and have become the head of a household. For if he should arrive at puberty afterwards, we can say much more decisively that she had in mind the time when he should become the head of a household, than if she had said: “When he will be his own guardian, and has control over himself.” 1If anyone should bequeath a legacy to the head of a household, who has not yet reached the age of puberty, “When he shall be his own guardian,” he is considered to have had in mind the age of puberty. Sometimes this has reference to the age of twenty-five years, where the intention of the testator is apparent. If, however, he should make a bequest to a person who is over the age of puberty, but under twenty-five, there is no doubt that he had in mind the age of twenty-five. 2Likewise, if a bequest is made to a lunatic, a spendthrift, or a person for whom the Prætor has appointed a guardian, for some reason or other, I think that the testator should be considered to have had in view the time when the party in question would be released from curatorship or guardianship. 3From these instances and others of the same kind, it becomes evident that Sabinus was of the opinion that the intention of the testator was the principal point involved. And, in order that there may be no doubt where a legacy has been left to a child under the age of puberty, and especially where one has been left to a person over twenty-five years of age, the testator must be understood to have meant when the legatee should have control of himself. 4Moreover, this clause is susceptible of various interpretations, and depends upon the intention of the testator, just as the following one, where he says, “When he becomes his own master.” For sometimes it is understood in one way and sometimes another, as frequently it means the freedom of the legatee from control, and then again it has reference to the age of puberty, or his twenty-fifth year. 5For my part, however, I think that, if anyone should make a bequest to an individual who has attained the age of puberty but is still under the age of twenty-five years, as follows, “When he shall reach the age of puberty,” the testator had in his mind the age when he would not be entitled to complete restitution. 6Likewise, where anyone makes a bequest to a person, “When he shall become of age,” or, “Of lawful age,” the intention of the testator must be ascertained as to whether he meant the age of puberty or that of twenty-five years; just as if he had written, “When he arrives at lawful age,” or “At mature age” or “When he grows up.”

51Paulus, On Sabinus, Book IV. Where a bequest is made to a daughter under paternal control, “When she becomes her own guardian,” it will be due when she is marriageable.

52Ulpianus, On Sabinus, Book XXIV. Under the designation of “books” all volumes are included, whether they are made of papyrus, parchment, or any other material whatsoever; even if they are written on bark (as is sometimes done), or upon any kind of prepared skins, they come under the same appellation. If, however, the books are bound in leather, or papyrus, or ivory, or any other substance, or are composed of wax tablets, will they be considered to be due? Gaius Cassius says that where books are bequeathed, the bindings are also included. Hence, it follows that everything relating to them will be due if the intention of the testator was not otherwise. 1Where a hundred books are bequeathed, we must deliver to the legatee a hundred volumes, and not the hundred parts of volumes which anyone may select as he wishes, and each of which will be sufficient to include the contents of a book; hence, when the works of Homer are all contained in one volume, we do not count them as forty-eight books, but the entire volume of Homer should be understood to mean one book. 2Where the works of Homer are left, and they are not complete, as many parts of the same as can be obtained at present will be due. 3Sabinus says that libraries are not included in legacies of books. Cassius adopts the same opinion, but he holds that parchment covers that are written upon are included. He adds, afterwards, that neither book-cases, writing desks, nor other furniture in which books are kept constitute part of the legacy. 4What Cassius stated with reference to blank parchments is true, for blank sheets of papyrus are not included in the term, “Books bequeathed,” and books are not due under the term, “Sheets of papyrus bequeathed,” unless, perhaps, in this case the intention of the testator may influence us; as for example, if one literary man should leave to another sheets of paper as follows, “I bequeath all my sheets of paper,” and he had nothing else but books, no one will doubt that his books were due; for ordinarily many persons designate books as papers. But what if anyone should bequeath sheets of papyrus. In this case neither parchments, nor any other materials used for writing, nor books which have been commenced will be included. 5Wherefore, when books are bequeathed, the question is not inappropriately asked whether those are included which are not yet completed. I do not think they are included, any more than cloth which is not yet entirely woven is included under the head of clothing. Books, however, which have been written, but have not yet been beaten or ornamented, are included in such a legacy, as well as such as are not glued together, or corrected, and leaves of parchment which are not sewed, are also included. 6The legacy of papyri does not include the material for making the leaves, nor such leaves as are not yet finished. 7If, however, a testator should leave a library, the question arises whether the book-case or book-cases, or whether only the books themselves, are included. Nerva very properly says that it is important to ascertain what the testator intended; for the word “library” sometimes means the place where books are kept, and at others the bookcase which contains them (as when we say, So-and-So bought an ivory library), and sometimes this means the books themselves as when we say, “He bought a library;” 7atherefore, when Sabinus stated that a library does not follow the books, this is not absolutely true, for sometimes the book-cases, which many persons call a library, are also included. It is clear if you should mention book-cases which are attached or connected with the walls of the house, they undoubtedly will not be included, as they constitute part of the building. 8What we have stated with reference to a library, Pomponius discusses in the Sixth Book on Sabinus, and he says that rings are included in a legacy together with the jewel-case which was made to contain them. He bases his opinion upon the following bequest of a testator, “I bequeath my jewel-case, and any rings which I may have in addition.” He says that Labeo also was of the same opinion. 9There are some things, however, which, under all circumstances, follow the article bequeathed, such as the bequest of a bed which also includes everything appertaining to it, and the locks and keys are always included in legacies of chests of drawers, or presses.

53Paulus, On Sabinus, Book IV. It has been established that where silver plate is bequeathed, small money boxes of that metal do not pass to the legatee. 1Where rings are bequeathed, jewel-cases are not included.

54Pomponius, On Sabinus, Book VII. If I should bequeath a legacy to you absolutely, and then afterwards should say, “Let my heir give him such-and-such a tract of land, in addition, if a ship should arrive from Asia,” the better opinion is that, by the words, “In addition,” what is first mentioned is repeated. Just as when we say, “Lucius Titius gave five thousand aurei to the people, and Seius has given, in addition, a distribution of meat,” we understand Seius to have also given five thousand aurei. And where it is said, “Titius received five aurei and Seius a tract of land in addition,” we understand that Seius has likewise received five aurei.

55Ulpianus, On Sabinus, Book XXV. The term “wood” is a general one, and is divided into building material and ordinary wood. Building material consists of what is necessary in the construction and support of houses; ordinary wood is anything which is intended for fuel. But should this term apply only to such as has been cut down, or also to such as has not been cut? Quintus Mucius states, in the Second Book, that where wood which is on the land is bequeathed to anyone, any trees which have been felled for building material are not included, but he does not add that what has been felled for firewood will belong to the legatee, still, this is understood to be the case. 1Ofilius also states, in the Fifth Book on the Law of Partition, that where wood is bequeathed to anyone, all will belong to him which is not called by some other name; for example, small branches, charcoal, and olive stones, of which no other use can be made than to burn them. The same rule applies to acorns, and all other seeds. 2The same authority denies in the Second Book that where wood is bequeathed, trees which have not yet been cut, but only such as have been split into small pieces, are held to have been bequeathed. I think, however, that any wood which has not yet been cut up into small pieces should also be included under the said term, if this was intended to be done. Hence, if a testator owned a grove which he had destined for this purpose, the grove itself would not belong to the legatee, but any trees which had fallen down would be included, under the term “wood,” unless the intention of the testator was otherwise. 3In a legacy of wood intended for fuel is included such as is used for heating baths, or for the furnaces of apartments, or for burning lime, or for any other purpose where heat is employed. 4Ofilius states in the Fifth Book of the Law of Partition, that twigs are not embraced in the term wood. But (where it is not contrary to the intention of the testator) small branches, boughs, sprouts, and the remains of materials used in building, as well as the stalks and roots of vines, are included. 5In some countries (as, for instance, in Egypt, where reeds are used for wood, and both reeds and papyrus for fuel), certain kinds of grass, thorns, and brambles are included in the term “wood.” Is there anything extraordinary about this? The Greek word signifying “wood” and the one indicating ships which transport wood, are derived from another Greek term which means marshes. 6In some provinces they use the dung of cattle for this purpose. 7Where wood has been prepared to be burned and made into charcoal, Ofilius says, in the Fifth Book on the Law of Partition, that material of this kind is not included in the term charcoal. But would it be included in the term fuel? Someone perhaps might say that it would not, for the testator did not have it in his possession to be used as fuel. Shall we enumerate, as belonging to a class of their own, firebrands and other wood which has been partially burned to avoid their making smoke, or shall we designate them as fire-wood, or charcoal? The better opinion is that they belong to a class of their own. 8The same designation will also apply to sulphurated wood. 9Wood to be used for torches is not included under the term fuel, unless this was the intention of the testator. 10Pine cones are also included in the term firewood.

56Paulus, On Sabinus, Book IV. Beams and poles should be classed as building material, and therefore are not included in the term firewood.

57Pomponius, On Sabinus, Book XXX. Servius gave it as his opinion that where all material destined for any purpose has been bequeathed, no boxes or chests are embraced in the legacy.

58Ulpianus, Disputations, Book IV. Where anyone leaves to his wife articles intended for her use, and then, during his lifetime, while absent in a province, purchases purple cloth for her, but does not give it to her before he dies, it was stated in a Rescript that the purple cloth would belong to the woman.

59Julianus, Digest, Book XXXIV. Where anyone bequeaths a promissory note, it is understood that he had in mind not only the tablets upon which it is written, but also the rights of action, the proof of which is contained in the tablets. For it is clear that we use the same “note” instead of the said rights of action; so when the note is sold, we understand that the claim was also disposed of. Moreover, where anyone bequeaths a claim, he is understood to have bequeathed what can be recovered by an action at law.

60Alfenus, On the Digest of the Epitomes by Paulus, Book II. As the question has been raised what should be considered a bequest of lambs, certain authorities hold that only lambs six months old are meant. The better opinion, however, is that those are bequeathed which are less than a year old. 1Where urban male and female slaves are bequeathed, I gave it as my opinion that muleteers are not included in the legacy; for only such slaves should be included in this designation whom the head of the household is accustomed to have about him, for his personal service. 2Where wool, flax and purple destined for her use were bequeathed to a wife, as the testator had left her a great deal of wool of different kinds, the question arose whether she was entitled to all of it. The answer was that, if none of this wool had been intended for the use of his wife, but all of it was mixed together, the decision must be the same as where provisions were bequeathed, and the testator left many things which were used as provisions, and which he was accustomed to sell, for if he had drawn different kinds of wine to be Used by himself and his heir, it all should be held to be included in the term “provisions.” But when it was proved that the party who made the will was accustomed to sell a portion of his provisions, it was decided that the heir should furnish the legatee with the amount of supplies which would be sufficient for his requirements during the year. It seems to me that the same rule should apply to the wool, and that the woman should receive what would be enough for her use for the term of a year; since after what had ordinarily been required by her husband had been deducted, the remainder should not be bequeathed to the wife, but only what was especially intended for her use. 3Where land, and everything purchased or intended for the cultivation of the same was left, it was held that neither the slave who was the gardener, nor the forester was bequeathed, as the gardener was intended to adorn the land, and the forester was employed for the purpose of watching and protecting it, rather than for its cultivation. A donkey, used for working a machine, is considered to have been bequeathed, as well as sheep intended to manure the land, together with the shepherd, if one had charge of sheep of this kind.

61The Same, Epitomes of the Digest by Paulus, Book VIII. Where certain weavers who belonged to the testator at the time of his death were bequeathed, the question arose whether one of them whom he had subsequently appointed porter should be included in the legacy. The answer was that he was included, for he was not transferred to another trade but was only temporarily assigned to a different task.

62Julianus, On Ambiguities. A certain man who had two mules bequeathed them as follows, “Let my heir give to Seius my two male mules, when I die.” The testator had no male mules, but left two female mules. Servius rendered the opinion that the legacy should be paid, because female mules are included in the term “mules,” just as female slaves are generally included in the term “slaves.” Hence it comes that the male sex always includes the female.

63The Same, On Urseius Ferox, Book I. In repeating legacies which have already been granted, the following words are usually added, “Moreover, let my heir be charged to give,” and Sabinus says they are equivalent to the repetition of the conditions upon which the legacies are dependent, and the dates on which they are to be paid.

64Africanus, Questions, Book VI. Where a testator appointed his son and his grandson his heirs, and gave to his grandson under a trust certain lands, and whatever might be on them at the time of his death “with the exception of his account book,” and, when he died, a sum of money was found in his chest in which the notes and bonds of his debtors were kept, it was held by several authorities to be hardly probable that the testator had the said money in his mind when he created the trust. I, however, think that, when anyone wishes his account-book to be delivered to another, it should be taken into consideration, whether it ought to be understood that he expected only the notes of his debtors to be delivered, or whether he also included the money which might be found, if it was derived from the collection of claims, and was intended to be loaned again. I go still further, and hold that if the money had been collected and again invested in a similar manner, the change of obligations would neither annul or diminish the effect of the trust, so that if the same money was intended to be placed in the account book, that is to say for the purpose of making new loans, it would still be payable to the beneficiary under the terms of the trust. Again, I think that it can be maintained that not only the money collected from the debtors, but also such as was obtained from any other source with the intention of being invested in the same way, would belong to the beneficiary.

65Marcianus, Institutes, Book VII. Where slaves are bequeathed with the exception of those who transact business, Labeo says that those are considered to be excepted from the legacy who have been appointed for the purpose of attending to some business; for instance, where they have been given authority to purchase, rent, or lease property, but those who take care of the rooms of a house, and walls, and fishermen, are not held as included under the head of slaves who transact business. I think that this opinion of Labeo is correct. 1Where a slave passes from some employment to a trade, certain authorities very properly think that the legacy is extinguished, for the reason that the employment was exchanged for a trade. On the other hand, the same rule does not apply where a litter-bearer afterwards becomes a cook. 2Where a slave understands several trades, and cooks are bequeathed to one legatee, weavers to another, and litter-bearers to a third, the slave above mentioned will be considered to belong to the person to whom other slaves of the trade in which the said slave was most frequently employed, are bequeathed. 3Where female slaves, assigned to dress their mistress’ hair, are bequeathed, Celsus says that those who have only been employed in this service for two months are not included in the legacy; others, however, think that they are, as the result might be that none of such slaves would be included, for all can still learn something, and every occupation is capable of improvement. This opinion should rather prevail because it is conformable to human nature. 4Where flocks are bequeathed, Cassius says that all quadrupeds which are accustomed to feed together are included. Hogs are also included in this appellation, because they feed together. Hence, Homer says in the Odyssey: “You will find him seated by his swine, which feed Near the rock of Corax, and the Spring of Arethusa.” 5Where beasts of burden are bequeathed, oxen are not included, and vice versa. 6Where horses are bequeathed, mares are included. 7Where sheep are bequeathed, lambs are not included, but it must be ascertained from the custom of the neighborhood for how long lambs are to be designated by this term, as in certain localities they are considered to be sheep when they are ready to be sheared.

66Paulus, Opinions, Book III. Where birds are bequeathed, geese, pheasants, and chickens, as well as aviaries will be due; but the slaves having charge of the pheasants and geese are not included; unless the testator expressly says so.

67Marcianus, Institutes, Book VII. Where a testator devises his woodland pasture and in addition bequeaths everything which is ordinarily there, he is not understood to have intended to bequeath the flocks which during the winter are kept in winter quarters, and during the summer are left in the pastures, but only to have meant those which are always there.

68Ulpianus, Opinions, Book I. Ulpianus stated to Julianus that the testator, by adding, “The entire Seian Estate,” was understood to have left also that portion of the above-mentioned land which seemed to be appurtenant to it by the terms of the trust, and which he had obtained by way of pledge; the right of the debtor to the same being reserved. 1The execution of a trust cannot be demanded under the following words: “Be sure to take good care of my fields, and the result will be that my son will give you your children.” 2Where slaves held in common with another are bequeathed by Seia, under the condition, “If they should be mine when I die,” they will not be due; provided the testatrix intended that they should be due if they were entirely hers at that time. 3Where certain tracts of land are left, together with the stores situated thereon, the slaves who belonged to said lands when the will was made will be included in the legacy, as well as those who were subsequently attached to it; provided the testator plainly showed that this was his intention.

69Marcellus, Opinions. The ordinary signification of words in a will must never be departed from, unless it is evident that the intention of the testator was otherwise. 1Titius provided as follows by a codicil: “I wish all the young slaves whom I have in my service to be given to Publius Mævius.” I ask at what age slaves should be understood to be young? Marcellus was of the opinion that this must be referred to the judge who had jurisdiction of the matter, in order to determine what the testator meant by the words which he made use of. For, in the case of wills, attention should not always be paid to the exact definition of terms, as very frequently persons speak incorrectly, and do not always employ appropriate names and appellations. However, a slave may be considered young who has passed the age of youth, until he begins to be included among old men.

70Ulpianus, On Sabinus, Book XXII. Where wool is left to anyone, that which is not dyed is considered to be bequeathed, that is to say, wool in its natural condition. 1This also applies to such as has been worked up, or is embraced in the term unfinished wool. 2The question arose whether under the term of “wool” only such is included as has not been spun, or whether that which is spun is also meant; as, for instance, the warp and woof. Sabinus thinks that wool which has been spun is included, and we adopt his opinion. 3It is held that the word wool should be employed until it is made into cloth. 4It must be understood that both washed and unwashed wool are included under this designation, provided it is not dyed. 5Cow-hair used for stuffing cushions is not included in the term wool. 6Moreover, wool out of which anyone can make a garment either for health or for convenience is not included. 7Nor will such as is prepared for application to the body or for medical treatment be embraced in the term wool. 8But should skins to which the wool is attached be included? It is evident that these are accessories to the wool. 9Where wool is bequeathed, it may in my opinion include the fur of hares and goats, and the down of geese, as well as the substance obtained from a certain plant which is called vegetable wool. 10Where, however, wool is bequeathed, flax is not included. 11Where flax is bequeathed, that which has been worked up, as well as the unfinished article, is included, as well as what has been spun, and what is in the web and has not yet been woven. Therefore, a difference exists in a bequest of flax and wool. I think that where flax has been dyed it would be included in a bequest. 12Where wool has changed its color, this should be taken into consideration. It was decided by the ancient authorities that wool which has changed its color should not be included under the term wool, but all which had been spun and not woven should be included. Hence the question arises whether the term “changed in color” is applicable to purple. I think that what has not been dyed is not included under this term, and therefore that neither wool which is naturally white or black, or of any other natural hue, is meant. I hold, however, that purple and scarlet, as they are not natural colors, should be included under the term dyed wools, unless the testator intended otherwise. 13It is my opinion that purple of every description should be included under this name. Scarlet should not be included, nor bluish red, or violet. No one doubts that thread already placed in the loom should be included under the term purple. Wool intended to be dyed purple is not included.

71The Same, On Sabinus, Book XX. Where the words, “my female slave, or slaves,” are inserted in a will, those are held to be indicated whom the testator included in the number of such slaves as belonged to him.

72Paulus, On Sabinus, Book IV. The same must be said with reference to all other property which anyone can bequeath as his own.

73Ulpianus, On Sabinus, Book XX. By the expression “his slaves or female slaves,” we understand those to be meant who belonged to the testator by a perfect title, and that those in whom he enjoyed only the usufruct are not included. 1Where freemen serve the testator in good faith as slaves, the better opinion is that they are included under the term “his own;” provided he intended that those who belonged to him, as well as those whom he regarded as being his property, should be included in this appellation. 2There is no doubt that those slaves whom a debtor has given in pledge should be held to have been bequeathed as his own; but this, under no circumstances, applies to the creditor. 3Therefore, if anyone has slaves of his own whose services he has leased to others, either as bakers or players, or for any other employment; should he be held to have also bequeathed them under the name of slaves? This must be presumed, unless the intention of the testator appears to be otherwise. 4I think that where a party pursues the calling of a slave trader, his slaves cannot properly be included among those which belong to his household, unless it was clear that this was his intention with reference to them; for where anyone purchases slaves in order immediately to sell them, he should be considered to hold them rather as merchandise, than as his slaves. 5Pomponius states in the Fifth Book that slaves belonging to other slaves are not included in this category.

74Pomponius, On Sabinus, Book VI. Where anyone bequeaths “his slaves,” those also held in common with others, as well as those in whom another enjoys the usufruct, are also included.

75Ulpianus, On Sabinus, Book XX. Where coins, in general, are bequeathed, it is understood that those of the smallest denominations are included; unless it appears from the terms of the will that the intention was to depart from the custom of the testator, or of the neighborhood.

76The Same, On the Edict, Book II. Where papers are bequeathed, no one can say that this refers to such as have been written upon, and that books already made up are included in the legacy. This also applies to tablets.

77Javolenus, On Plautius, Book I. Where legacies are repeated in making a substitution, grants of freedom are also included in the repetition.

78Paulus, On Vitellius, Book II. The question arose, where the slave Stichus had been removed from the land to which he had been attached, and given instruction, but had not afterwards been returned, whether he should be delivered to the legatee with said land. The answer was that if he had been sent for the purpose of studying, and not to be transferred to some other land, he must be delivered to the legatee. 1“My son, Mævius, as I have already given you the greater part of my property, you should be content with the Sempronian Estate, and all who live thereon; that is to say, with the slaves who are there.” The question arose as to the disposition of certain notes of debtors, and sums of money which were found on said land. The same testatrix wrote the following letter: “I give you all the silver plate and furniture which I have, and whatever I possess on the Sempronian Estate.” Will the furniture which is on other estates or in other houses belong to Mævius, and will he be entitled to the slaves which the testator bequeathed to others, and which formed part of the Sempronian Estate? The answer was that the notes and the money should not be considered as included, unless the intention of the deceased to bequeath them was positively proved, and that the legacy of the son should be diminished through the bequest to others of slaves attached to the said Estate. With reference to the silver plate and furniture which were elsewhere, their disposition must be left to the judge, who will determine to whom they should belong, in order that the intention of the testator may be carried out by the legatee. 2A testator left certain lands as follows, “Just as they were held by me, together with whatever property may be there at the time of my death.” The question arose with reference to the slaves who dwelt on said lands either for the purpose of cultivating them, or for other purposes, as well as with reference to other property which was there at the time of the testator’s death, whether they belonged to the legatee. The answer was that all the property in question should be held to have been bequeathed. 3“I desire that my Campanian Estate be given to Genesia, my foster-child, the said Estate being of the value of two hundred aurei, and that it be enjoyed by her as is customary.” The question arose whether the remaining rents of the tenants, and the slaves which were on the ground at the time of the death of the testator, were also due to the legatee. The answer was that whatever was due from the tenants was not bequeathed, but that everything else should be held to have been given by the words, “As is customary.” 4It might, perhaps, be asked by someone why, under the term “silver plate” manufactured silver should be included; when, where marble is bequeathed, nothing except the rough material can be considered to have been indicated. The reason for this is that articles of such a nature that they can be readily reduced to their former condition are subject to the power of the material of which they are composed without ever losing their force. 5There is no doubt that scarlet, which is designated by its peculiar name, is not included in wool whose color has been changed, any more than dye made from the blood of crows, or those known as hysginus and melinus are called scarlet or purple. 6Where a man made a bequest as follows: “I give and bequeath to my wife those articles which have been acquired for her use,” I asked the Prætor, who had jurisdiction of the trust, that the property which the wife had given to her husband, and which had been appraised, might be surrendered, so that its value might be included in the dowry, but I failed to obtain his consent, as he held the testator did not have this property in his mind at the time when he made his will. If, however, the said property had been given to her for her use, it would make no difference whether it had been obtained by herself, or by another. I afterwards found the following case mentioned in Aburnius Valens. A woman gave certain property, which had been appraised, by way of dowry to her husband, and the latter afterwards left it to her, described as follows, “The articles which have been acquired and purchased for her.” This authority held that what is given by way of dowry is not included in the category of property purchased and acquired, unless the husband, having afterwards become the owner of said property, devotes it to the use of his wife. 7Where property, which is on land, is bequeathed, the legacy also includes things which, if not on it at the time, are usually there, and any articles that are there by chance are not considered to have been bequeathed.

79Celsus, Digest, Book IX. Where a chorus, or a body of slaves were bequeathed, it is just the same as if the individuals composing them had been separately bequeathed. 1Proculus says that, by the words: “I give and bequeath all movable property which is found there,” money which is deposited in that place for the purpose of being loaned is not bequeathed, but that such as has been left there to render it secure (as certain persons were accustomed to do during the Civil Wars), will be included in the legacy; and he relates that he has heard old men in the country say that money without peculium is very easily lost, meaning by the term peculium what is put aside for safe-keeping. 2Ad Dig. 32,79,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 654, Note 4.Where a plot of land not built upon is devised, and, in the meantime, a house is erected upon it, and the house having bean demolished, the land again becomes vacant, the legatee will be entitled to it, although he could not have claimed it while the house stood there. 3Where a slave is bequeathed, and then, after having been manumitted, is again reduced to slavery, he can be claimed by the legatee.

80The Same, Digest, Book XXXV. Heirs can be appointed conjointly or made joint legatees; that is to say, an entire estate, or an entire legacy can be given to them individually, so that their shares will be indivisible, unless by universal consent.

81Modestinus, Differences, Book IX. Certain authorities very properly hold that where slaves are bequeathed, female slaves are included, as the common name of “slaves” includes both sexes. No one, however, has any doubt that where female slaves are bequeathed, male slaves are not included. Where children, who are slaves, are bequeathed, girl slaves are included. It must be said that it is not the case, where girl slaves are bequeathed, for boy slaves to be included. 1Where female slaves are bequeathed, virgins are also included, just as where male slaves are bequeathed boys are also included. 2When droves of cattle are bequeathed, oxen and other beasts of burden are included. 3When a herd is bequeathed, it is held that oxen are included, but not flocks of sheep and goats. 4When sheep are bequeathed, certain authorities very properly hold that neither lambs nor rams are included. 5There is no doubt, however, that rams and lambs are included in the bequest of a flock of sheep.

82The Same, Rules, Book IX. When a slave, who ordinarily dwelt on a tract of land, takes to flight and the land is devised in the condition in which it is, the slave will form part of the legacy, even though he should be caught after the death of the testator.

83The Same, Opinions, Book VI. Where a legacy was left as follows, “I ask you to give to So-and-So, at the time of your death, everything belonging to my estate and my property which may come into your hands,” the crops which the heir, during the lifetime, as well as whatever took the place of the crops, were not considered to have formed a part of the legacy, for it could not be proved that the testatrix intended that her heir should be charged with the delivery of the crops. 1Where a testator left a trust for the benefit of his children, and, after substituting them for one another, desired that, after the death of the last survivor, the trust would pass to their descendants, I ask, if no one remained after the death of the last child, except his freedman, whether he ought to be admitted to the benefit of the trust. The answer was that it was perfectly evident that by the appellation his “descendants,” only his children, and not their freedmen, were included in the number of those to whom the trust was bequeathed.

84Javolenus, On Cassius, Book II. Where a testator bequeathed his property, which was at Rome, to a certain person, he would also be entitled to whatever was stored for safe keeping in warehouses outside the City.

85Pomponius, On Quintus Mucius, Book II. It has recently been decided by the Emperor, that where a testator left property to anyone, but did not add the term “my,” and did not intend to leave the said property unless it was his, the legacy would be valid only where it was necessary to pay more attention to the wishes of the testator than to the word “my.” Wherefore this nice distinction arises, that whenever a certain article is bequeathed to be delivered immediately, the term “my” does not create the condition. If, however, property which is not expressly designated, as, for example, “My wines, my clothing,” the term “my” is held to be conditional, so that only that is left which belonged to the testator. Still, I do not think the above-mentioned opinion can be strongly maintained, but rather that, in this instance, any clothing or wine which the testator considered to be his, is bequeathed; and hence it was held that even wine which had become sour was included in the legacy, if the testator had always considered it to be wine. It is clear that where the testator used language relating to the time of his death, for instance, “the clothing which shall be mine,” I think that this undoubtedly should be understood as implying a condition. I also think that, where the testator says, “Stichus, who will be mine,” the sentence ought likewise to be considered as conditional; nor does it make any difference if he should say, “Who will be mine,” or “If he should be mine,” in both cases the bequest will be contingent. Labeo is of the opinion that the following clause, “Who shall be mine,” should only be considered by way of designation. We, however, make use of another rule.

86Proculus, Epistles, Book V. Where a legacy was bequeathed as follows, “I leave my house and its contents at the time of my death,” I do not think that money collected from certain debtors of the testator, in order to again be invested in other similar claims, forms a part of the legacy. I thoroughly approve of the distinction made by Labeo, that the legacy will not be diminished because something may happen to be out of the house, any more than it may be increased because some other article happens to be there.

87Paulus, On the Lex Julia et Papia, Book IV. A trust, and a donation mortis causa, are included in the term legacy.

88The Same, On the Lex Julia et Papia, Book V. It has been decided that where wool is bequeathed, a garment made out of it is not included in the legacy. 1Likewise, where material such as wood is bequeathed, a ship or a chest of drawers made out of it cannot be claimed as part of the legacy. 2Where a ship, which has been bequeathed, is broken up, neither the ship itself, nor the materials of which it is composed, will be due. 3Where, however, a mass of metal is bequeathed, any cup made out of it can be demanded.

89Ad Dig. 32,89Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 644, Note 13.The Same, On the Lex Julia et Papia, Book VI. Parties are considered joint legatees where the same article is bequeathed to them separately, by reason of the property itself, and not on account of the words employed by the testator. They are considered joint legatees on account of the words used, and not by reason of the property bequeathed, where the testator says, “I give and devise such-and-such a tract of land to Titius and Seius, share and share alike,” as both legatees have their shares from the beginning. Therefore a legatee is certainly preferred to others, where he is joined with his co-legatee both by the property left and by the terms of the bequest. If he should only be joined with him by the legacy of the property, it is established that he is not entitled to any preference. But where he is joined with him by words and not by his interest in the property, the question arises whether the other will be entitled to the preference. The better opinion is that he will be preferred.

90The Same, On the Lex Julia et Papia, Book VII. A legacy is understood to have been specifically bequeathed where the party who is charged with it is known, even though his name may not be stated.

91Papinianus, Opinions, Book VII. Where a tract of land was devised to a daughter as a preferred legacy, “Together with what is due from the stewards and tenants,” the legacy of the residue includes what remains of the rents of the lands under the same lease. Otherwise, it could readily be established that rent collected from the tenants and money deposited in the account-book of the testator in the same place, would not form part of what was left, as being due from either the tenant or the stewards, even though the testator may have expressly stated that he desired the stewards to belong to his daughter. 1It was decided that where the following words are employed, “I give to Lucius Titius such-and-such lands, with the house, in the same condition as they may be found at the time of my death,” the farming implements, and all articles for the use of the house must be delivered under the terms of the legacy; but anything which is due from the tenants will not be included. 2A father bequeathed to his son a factory used for dyeing purple, together with the slaves appointed to conduct the business, and the purple cloth which was there at the time of his death. It was decided that neither the money obtained from the sale of the cloth, nor what was due from purchasers, nor any debts of the slaves were included in the legacy. 3“I give and bequeath to Titius the Seian Estate in the same condition as when I purchased it.” As the Gabinian Estate had also been purchased with the other for a single price, I gave it as my opinion that the mere proof of the purchase was not sufficient, but that it must be ascertained from the letters and accounts of the testator whether the Gabinian Estate was included in the name of the Seian Estate, and whether the income of both of them had been united and carried on the books as that of the Seian Estate. 4It has been established that where a house is bequeathed, the baths constitute a part of the same. If, however, the testator permitted public access to them, the baths will form a part of it only when they can be entered through the building itself, and where they have sometimes been used by the head of the household, or his wife; and the rent of the baths has been carried on the books of the testator along with that of other rooms in the house; or where both have been purchased or furnished with money paid out at the same time. 5A certain person who owned a house bought an adjoining garden, and afterwards devised the house. If he purchased the garden on account of the house, in order to render the latter more pleasant and healthy, and there was an entrance to it through the house, and the garden was an addition to the latter, it will be included in the legacy of the house. 6Under the term “house” is also understood a building joined to the same, if both were purchased for one price, and it is established that the rents of both were carried together on the books.

92Paulus, Opinions, Book XVI. “If my daughters, Mævia and Nigidia, should become my heirs, then let Mævia take from my estate, and have as a preferred legacy, such-and-such of my lands, with the cottages thereon, and the slaves who have charge of the same; and, in addition, all the fields adjoining them, which I have obtained by purchase or in any other way whatsoever, for the purpose of uniting them to said lands; together with all the slaves, flocks, beasts of burden, and other personal property to be found on said land, or any part of the same, at the time of my death, in the best and most perfect condition that I then possessed them, or (to speak more plainly) everything that may be thereon.” On one of the tracts of land which had been left as a preferred legacy, there was a building used for keeping records, in which were found instruments relating to the purchases of many slaves, and others having reference to real property, various contracts and the promissory notes of debtors. I ask whether these instruments were to be considered the common property of the heirs. I answered that, according to the facts stated, neither the documents above mentioned relating to purchases or debts, which were found on the land left as a preferred legacy, appeared to be included in the bequest. 1Where a house is devised as follows: “I charge my heirs to permit So-and-So to have the house in which I reside, and everything included therein, without excepting any utensils whatever,” the testator is not held to have had in his mind any money or obligations of debtors.

93Scævola, Opinions, Book III. Lucius Titius made the following provision in his will: “My heir shall not, under any circumstances, alienate my suburban estate, or my city residence.” His daughter, who was appointed his heir, left a daughter who retained possession of the said property for a long time, and, at her death appointed foreign heirs. The question arose whether the land belonged to Julia, who was the grandniece of Titius the testator. The answer was that, in the case stated, nothing had been done against the will of the deceased to prevent the property from belonging to the heir, as the testamentary provision was a mere precept. 1“I direct my heirs to pay to my wife, Sempronia, a hundred aurei, which I have borrowed from her.” The question arose whether Sempronia could demand the execution of the trust, if, having brought suit for the said sum of money as being due to her, she should lose her case. The answer was that, according to the facts stated, the money could be claimed under the terms of the trust, since it appeared that it was not due for any other reason. 2A man devised certain lands to his freedman, and added the following words: “As they have been possessed by me, and with whatever may be there at the time of my death.” The question arose whether the slaves who remained on the land for the purpose of cultivating it, or for any other reason, at the time of the death of the testator, as well as the other personal property found there, would belong to the legatee. The answer was that they would. 3The question arose whether property which heirs were charged to deliver to their brothers would also belong to their sisters. The answer was that it would, unless it was proved that the intention of the testator was otherwise. 4A testator left to the guild of blacksmiths a legacy, as follows: I devise such-and-such a tract of land, together with the forest belonging to it, in the best and most excellent condition in which it may be.” I ask whether the personal property which was on the premises at the time of the death of the testator, for example, the hay, the fodder, the straw, the machines, the vessels for holding wine (that is to say the vats and casks attached to the warehouses), and the granaries, were also bequeathed. The answer was that anything which was not bequeathed is improperly claimed. 5A testator having left a certain tract of land as a preferred legacy to an heir to whom he had bequeathed half of his estate made the following request of him: “I request you to consent to accept Clodius Verus, my grandson, and your relative, as your co-heir to half of the Julian Estate, which I have directed to be given to you over and above your share.” I ask whether the grandson would be entitled to half of the estate under the terms of the trust. The answer was that he would.

94Valens, Trusts, Book II. A man who left several freedmen devised a tract of land to three of them, and requested them to see that its name was not changed. The question arose if, when the first one of the three died, he would be obliged to leave his share to both of his co-legatees who were joined with him in the legacy, or only to one of them; or whether he could leave it to another who was his fellow-freedman. It was decided that although this was a question of intention, still, the wishes of the testator would be sufficiently complied with if the legatee should leave the land to another of his fellow-freedmen. Where, however, he did not give it to any, could it not be doubted whether the claim for the execution of the trust would belong to the more diligent of the fellow-freedmen, or to all of them; or whether it would only belong to those to whom the legacy was jointly bequeathed? Julianus very properly held that the claim belonged to all the freedmen.

95Marcianus, Trusts, Book II. “Let whoever shall be my heir be required to pay, and I charge him to pay, whatever sums I mention.” Aristo says that corporeal property is also included in this provision, as, for example, lands, slaves, clothing, and silver plate; because the term “whatever” does not merely refer to money, as is evident where the legacy of a dowry and stipulations relating to a purchased estate are involved, and that the word “sums” should be understood in the same sense as in the instances above mentioned. Moreover, the intention of the deceased, which must be especially considered in the case of trusts, also depends upon this opinion; for the testator would hardly have intended his heir to only pay money when, after this preliminary statement, he added corporeal property.

96Gaius, Trusts, Book II. Where Titius was appointed heir to half an estate, and charged to deliver the entire estate to Mævius, and then his co-heir was asked to transfer to him his share, or a portion of the same, will Titius also be obliged to transfer to Mævius the share which he received from his co-heir under the terms of the trust? The Divine Antoninus, having been consulted on this point, stated in a Rescript that he was not obliged to transfer it, because neither legacies nor trusts are included in the term “estate.”

97Paulus, Decrees, Book II. A certain Osidius, having appointed his daughter Valeriana his heir, and granted freedom to his steward, Antiochus, and having devised to the latter certain tracts of land together with his peculium and whatever was due, not only from him but from the tenants, the legatee produced a statement written by the hand of the testator, showing what was owing from him and the tenants. The following was also inserted in this instrument: “Moreover, my steward must render an account of other property, that is to say, such as I have set aside for my use, namely grain, wine, and other articles.” The freedmen demanded these things from the heir, alleging that they were included in what remained due, and obtained a judgment in his favor from the Governor. When, on the other hand, it was stated by other interested parties that what remained due from the tenants, or even what was due from himself had not been demanded of him, and they claimed that the articles which had been set aside for the use of the deceased should not be included in the balance which was due, the Emperor interrogated the representative of the legatee, and, by way of example, asked: “Suppose there had been set aside a hundred thousand aurei, which were to be employed for the use of the testator, would you say that all that was left in the chest would be due to you?” He held that the appeal had been properly taken. It was alleged by the representative of the legatee, that certain sums of money had been collected from the tenants, after the death of the testator. The decision was that whatever was collected after his death should be delivered to the legatee.

98The Same, On the Form of a Will. Where there are several degrees of heirs, and the following clause appears in the will, “Let my heir give,” this applies to all the degrees, just as the following words, “Whoever shall be my heir,” do. Therefore, if anyone does not wish to burden all his heirs with the payment of legacies, but only some of them, he must charge them specifically by name.

99The Same, Concerning the Meaning of the Term Equipment. When urban slaves are bequeathed, certain authorities divide those living in a city, not by their place of residence but by their occupations, so that although they may be in country places, still, if they do not perform rural labor, they are held to be urban slaves. It must, however, be said that they should be considered urban slaves whom the head of the family is accustomed to include among those belonging to the city, and this can readily be ascertained from the register of the slaves, as well as from the food which is furnished them. 1It may be doubted whether slaves employed as hunters and bird-catchers should be included among urban or rustic slaves. It must, however, be said that they should belong to the place where the head of the household lives, and furnishes them support. 2Muleteers belong to the class of urban slaves, unless the testator employed them in rural labors. 3Some authorities hold where a child is born to a female slave belonging to the city, and it is sent into the country to be brought up, that it belongs to neither class. Let us see whether it should not be understood to be included along the urban slaves. This appears to be the better opinion. 4Where slaves who are litter-bearers are bequeathed, and one of them is both a litter-bearer and a cook, he will be included in the legacy. 5Where slaves born in the house are bequeathed to one person, and others who are couriers are bequeathed to another, and some of the number belong to both these classes, they will be included among the couriers, for the reason that the species is subordinate to the genus. Where two slaves belong to the same genus or species, they are generally held in common.

100Javolenus, On the Last Works of Labeo, Book II. “I charge my heir to deliver my slave, Stichus, to Lucius Titius,” or “Let him deliver my slave to him.” Cascellius says that, under a clause of this kind, the slave must be delivered; and Labeo approves his opinion, because where anyone is ordered to deliver anything, he is at the same time ordered to give it. 1A legacy of two marble statues, as well as all the marble in the possession of the testator was specifically bequeathed to a certain individual. Cascellius thinks that no other marble statue, except the two mentioned, is due. Ofilius and Trebatius are of the contrary opinion. Labeo adopts the conclusion of Cascellius, which I believe to be correct, because by leaving two statues, it can be held that the testator did not intend to leave any more when he bequeathed the marble. 2“I give and bequeath to my wife her clothing, jewels, and all gold and silver plate, which I have had made for her, or intended for her use.” Trebatius thinks that the words, “Which I have had made for her or intended for her use,” only refer to the gold and silver plate. Proculus holds that they refer to everything mentioned, and this opinion is correct. 3In a case where Corinthian vases were bequeathed to a certain person, Trebatius was of the opinion that the pedestals made to support them were due, as part of the legacy. Labeo, however, does not adopt this opinion, if the testator considered the said pedestals as vases. But Proculus very properly says that if the vases were not of Corinthian brass, they could be claimed by the legatee. 4Where articles made of tortoise-shell are bequeathed, Labeo and Trebatius are of the opinion that beds inlaid with tortoise-shell, whose feet are covered with silver, are due, which is correct.

101Scævola, Digest, Book XVI. A man who, in his native province, had certain lands of his own, as well as others which had been pledged to him as security for debts, executed a codicil as follows: “I wish to be given to my beloved country, as its share, and I give to it separately, all the lands which I possess in Syria, together with the personal property that is, the flocks, the slaves, the crops, the provisions, and all the implements which are there.” The question arose whether the testator should be held also to have left to his country the lands which are held in pledge. The answer was that, according to the facts stated, these should not be considered to have been left, provided they were not included in his own estate, which might be the case if the debtor should fail to make payment. 1“I ask that my tract of land, in its present condition, be given to my foster-child.” The question arose whether the balance due from the tenants as well as the slaves, if there were any there at the time of the death of the testator, should be included with the land. The answer was, that what was due from the tenants was not bequeathed, but that everything else appeared to have been included in the words, “In its present condition.”

102The Same, Digest, Book XVII. A testator made a bequest as follows: “I bequeath to my wife my travelling bags, and everything contained therein, as well as the claims in the small register written by my own hand, which have not been collected at the time of my death, although they may have been entered on my accounts as paid, and I have transferred the securities to my steward.” The said testator, when about to make a journey to Rome, placed the notes to his debtors and his money in the said travelling bags, and, having collected the notes, as well as expended the money, he returned home after the lapse of two years, and deposited in the said travelling bags deeds for some real estate which he had subsequently purchased, and a certain sum of money. The question arose whether he should be considered to have only bequeathed to the legatee the notes which, after his return, he placed in his bags. The answer was that, according to the facts stated, the notes which were in the bags when he died and which were not recorded by his own hand in his register were not due under the terms of the legacy. It was also asked, when he placed in his bags the evidences of the purchase of the said real estate, whether these also were included in the legacy? The answer was that it did not clearly appear what he intended to do with reference to the lands, but if he had placed the deeds for them in the bags with the intention that, when they were given to his legatee the ownership of the same would pass to her, it could be maintained that the lands also constituted part of the legacy. 1The father of a family made the following bequest, “I desire the two unchased dishes, which I bought in the square where images are sold, to be given.” The testator had, in fact, purchased certain dishes in that place, but they were not destitute of ornament, and he made his will only three days before his death. The question arose whether the said dishes, which he had purchased, formed part of the legacy, as he did not bequeath any others which he bought in the same place. The answer was that, according to the facts stated, those which he had purchased in the square of the images should be delivered to the legatee. 2A testator directed that a commission in the army should be purchased for a young man whom he had brought up, as follows: “I bequeath to Sempronius, whom I have brought up, such-and-such articles, and, when he has arrived at the proper age, I desire that a commission in the army shall be purchased for him, and that all expenses and charges arising therefrom be paid.” The question arose, if Sempronius himself purchased this commission, whether he could recover the price of the same, or whatever is customary to pay under such circumstances, from the heirs by the terms of the trust. The answer was that, according to the facts stated, he could do so. 3The same testator bequeathed a commission to his freedman, as follows, “I give and bequeath to Seius, my freedman, such-and-such a commission,” which commission the testator himself possessed. The question arose whether all the fees and expenses for admission to the army should be paid by the heir. The answer was that they should be paid by him.

103The Same, Questions Publicly Discussed. Ad Dig. 32,103 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 29.Where a father substituted a foreign heir for his disinherited son, and the said foreign heir afterwards appointed the son his heir, and the latter died under the age of puberty, I think that the legacies with which the substitute for the sum was charged will not be due, for the reason that the estate of the father did not come into the hands of the son directly, but through indirect succession. 1I have ascertained, besides, that in the case of a brother who was the heir of his father and appointed his own disinherited brother his heir, that his substitute will not be obliged to pay the legacy, even if he should succeed his brother, where the latter died intestate; because the property did not come into his hands directly, but through succession to his brother. 2Where a son was appointed heir to a twelfth of his father’s estate, and was charged with a legacy, and a substitute was appointed for him, and, afterwards, his other brother came within the scope of the Edict, and he obtained prætorian possession of half of the estate; the question arose whether his substitute would be required to pay the legacies in proportion to a twelfth, or in proportion to half of the estate. The better opinion is that he would be obliged to pay in proportion to half, but if he paid in proportion to a twelfth, it must be paid to all, and payment should be made to the children and other relatives in proportion to the balance. 3On the other hand, if the son was appointed heir to three-fourths of the estate, and having come within the scope of the Edict, he should obtain prætorian possession of half of the property, the substitute would only owe the legacies proportionally; for just as they are increased where prætorian possession of the estate is greater, so also they are reduced, where it is less.