De annuis legatis et fideicommissis
(Concerning Annual Legacies and Trusts.)
1Pomponius, On Sabinus, Book V. When something payable every year is bequeathed without adding the place where this is to be done the heir should pay it wherever it may be demanded, just as a demand can be made in the case of a stipulation, or a note.
2The Same, On Sabinus, Book VI. Where an heir is charged to permit me to enjoy the use of certain land by the year, and he is guilty of default at the beginning of the year, when I ought to cultivate the land, he will be liable to me for the entire year, even though he should afterwards permit me to cultivate it, because I have been excluded from putting in the crops; just as where he is charged with furnishing me the daily labor of Stichus, and he sends him to me, not in the morning but at the sixth hour of the day, he will be liable to me for the value of the entire day’s work of the slave.
3Ulpianus, On Sabinus, Book XXIV. Where a legacy, for instance of thirty aurei, is left to me payable in one, two, and three years, ten aurei will be due each year, even though the words “in equal payments” were not added. 1Hence, if the words “in payments” were employed, even though “equal” was not added, it must be said that equal payments must be made, just as if the word “equal” was written, and the word “payments” had not been added. 2But if the words, “In unequal payments,” are added, unequal payments must be made. But let us consider in what way they ought to be made. I think that they ought to be made in accordance with the judgment of a good citizen (unless the testator expressly left it to the choice of the heir), dependent upon the means of the deceased, and the place where his estate is situated. 3If, however, it was stated that payment should be made in accordance with the judgment of a good citizen, we infer from this that it must be made with reference to the situation of the estate, and without any trouble or annoyance to the heir. 4But if the testator directed that payment should be made in the way that the legatee might select; let us see whether the entire amount can be demanded at once. I think that this cannot be done, just as in the case of the choice of the heir; for the testator intended that several payments should be made, and that the amounts of the same should depend upon the judgment of the heir, or of the legatee. 5Where, however, a legacy has been bequeathed as follows, “Let my heir pay Titius ten aurei in three years,” will the amount be payable in three annual instalments, or at the expiration of three years? I think that this should be understood as if the testator had intended the payments to be made in one, two, and three years. 6Where a certain sum of money is bequeathed to anyone, and it is stated that, until it is paid, something shall be given to the legatee every year, as, for example, interest, the legacy will be valid; but in order to make the payment of the interest valid, the sum to be paid annually must not exceed the ordinary rate of interest.
4Paulus, On the Edict, Book LXII. Where anything is bequeathed to a person to be paid annually, Sabinus says (and his opinion is correct), there are several legacies, and that the one for the first year is absolute, and the other conditional; for the condition, “If he should live,” seems to be implied, and therefore, if the legatee dies, the legacy will not pass to his heir.
5Modestinus, Opinions, Book X. “I also charge my other heirs to pay to my wife ten aurei every year, as long as she lives.” The wife survived her husband five years and four months. I ask whether her heirs will be entitled to the entire legacy for the sixth year. Modestinus answers that they will be entitled to it.
6The Same, Opinions, Book XI. A testator left a certain sum of money to be paid annually for the maintenance of the public games of the city, over which he expressed a wish that his heirs should preside. The successors of his heirs denied that they were liable for the legacy, alleging that the testator only intended it should be paid as long as his heirs could preside over the games. Therefore, when he mentioned their presiding, I ask whether he intended payment to be made during the duration of the trust, or perpetually. Modestinus answers that the legacy should be paid to the city annually in perpetuity.
7Pomponius, On Quintus Mucius, Book VIII. Quintus Mucius says that if anyone makes the following provision in his will, “Let my sons and daughters live wherever their mother may desire, and let my heir pay, every year, to each boy and girl among them ten aurei, for his or her support.” If the guardians who had charge of the children were unwilling to pay the said sum of money, no action can be brought by anyone under the terms of the will; for the provision of the testator was only intended to inform the guardians what he desired, so that they could pay the money without any risk. Pomponius says that where anything is included in the will which merely has reference to the wishes of the testator, it does not create any obligation. The following is an instance of this. If I should appoint you my sole heir, and direct you to erect a monument to me with a certain sum of money, this statement does not place you under any obligation, but you can erect a monument in order to comply with my wishes, if you desire to do so. It would, however, be otherwise, when I made the same provision after I had given you a co-heir, for if I charged you alone to erect the monument, your co-heir could bring an action in partition against you to compel you to do so, as it is to his interest. If, however, both of you should be ordered to do this, you will be entitled to actions against one another. The following also has reference to the wishes of the testator, for instance, where anyone directs statues to be placed in a town, for if he did not do this for the purpose of honoring the town, but to perpetuate his own memory, no one will be entitled to bring an action on this ground. Therefore the testamentary disposition mentioned by Quintus Mucius, “Let my children reside where their mother may desire,” creates no obligation, but merely has reference to compliance with the wishes of the deceased; so that the children may live where their mother may direct. Nor must the will or the order of the testator always be observed; for example, if the Prætor should decide that it was not expedient for a minor to reside where his father ordered him to, on account of the bad character of persons with whom he directed them to associate, of which fact the father was ignorant. Where, however, ten aurei, payable annually, are left for their support, the legacy will be valid, whether this clause had reference to the parties with whom a mother might wish the children to reside, or whether we should understand by it that the children themselves were entitled to the legacy. The better opinion is, that the testator should be considered to have made this bequest in order to provide for his children. And, in all cases where only the wishes of the testator are concerned, they must neither be always rejected nor always observed, but such matters must be determined by the judge, and carried into effect if they do not relate to anything dishonorable.
8Gaius, On the Lex Julia et Papia, Book V. Where a legacy payable annually is bequeathed, it resembles an usufruct, as it is terminated by the death of the legatee. It is not, however, terminated by the loss of civil rights, as is the case of an usufruct, which can be bequeathed as follows: “I bequeath to Titius the usufruct of such-and-such a tract of land, and every time that he loses his civil rights, I bequeath to him the same usufruct.” The legacy is, in this respect, certainly more beneficial, because if the legatee should die at the beginning of any year, he leaves the legacy for that year to his heir. This does not apply to an usufruct, for if the usufructuary should die at the time that the crops are ripe, but before they have been gathered, he will not leave them to his heir.
9Ad Dig. 33,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 656, Note 1.Papinianus, Opinions, Book VII. A tract of land, which a testator desired to be hypothecated to secure legacies payable annually to his freedman, can be lawfully claimed by them on the ground of a trust, for the purpose of preserving the land. Paulus states that this rule also applies to other property belonging to an estate, to enable the legatee to be placed in possession of the same.
10The Same, Opinions, Book VIII. “I wish my faithful friend, Seius, to receive six aurei every year, and the house in which he lives, if he should be willing to take charge of the business affairs of my children, just as he has taken charge of mine.” It was held that the surviving daughter of the testator was, none the less, obliged to pay the annual legacy to Seius, in proportion to her share of the estate, because two of the three children of the testator had died, and other heirs had been appointed, as the labor as well as the money was susceptible of division. 1“I wish my physician, Sempronius, to receive the same that I have paid him during my lifetime.” The sums held to have “been left by this bequest were certain annual payments made by the testatrix, so that, as far as her liberality was concerned, no doubt of her intention could arise. 2“I desire a hundred aurei to be paid to my wife in addition to what she received from me as an annual allowance during my lifetime.” It is understood that the amount should be payable annually, and that the testator also left her a hundred aurei. 3“I wish to be given to my freedmen whatever I furnished them during my lifetime.” Their lodging must be provided, but the heir will not be required to allow the steward the expense of beasts of burden, which his mistress was accustomed to grant him for his own convenience. Again, where the freedman is a physician, he cannot legally demand money which he was accustomed to receive from his mistress for the purchase of medicines to be administered to his patroness and her family.
12The Same, Opinions, Book XIII. Gaius Seius devised to Mævius and Seia certain tracts of land in different localities, and provided as follows, “I wish three hundred thousand reeds to be furnished annually by the Potician to the Lutatien Estate, together with a thousand pounds of well-cleaned osier, also, every year.” I ask whether this legacy will be extinguished by the death of the legatee. Paulus answered that a servitude, either personal or real, does not seem to have been created in accordance with law; but that an action on the ground of a trust will lie in favor of the party to whom the Lutatian Estate was devised. Therefore, as the legacy was to be paid annually, it is considered to terminate with the death of the legatee.
13Scævola, Opinions, Book IV. Mævia appointed her grandson, who was born to Mævius and had reached the age of puberty, her heir, and made a bequest to Lucius Titius, as follows: “I desire ten aurei to be paid to Lucius Titius, a good man, to whom I am indebted for favors which he has done me, as long as he lives; if he should take charge of the business of my grandson, and conduct the administration of all his affairs.” I ask, if Lucius Titius had, at some time or other, transacted the business of Mævius, and the latter had objected to his doing so any longer, whether he would be obliged to execute the trust. I answered that, if Lucius Titius had been deprived of the right to transact the business of Mævius, not on account of any fraudulent act, and no other just reason had existed for rejecting his services, and he was willing to continue to conduct his affairs, he would be entitled to the legacy. 1A man, having appointed his wife his heir, provided as follows, in his will: “I wish twelve denarii to be paid every year by my heir to each of my freedmen for his support, if they do not abandon my wife.” As the testator very seldom left the town, and his wife frequently did so, I ask whether the freedmen should accompany her on her journey. I answer that a positive opinion cannot be given on this point, as many things might arise which it would be well to take into consideration; and therefore a case of this kind should be submitted to the judgment of a good citizen. It was also asked, as when the woman went on her journeys she never offered to pay anything additional to her freedmen, and for this reason they did not accompany her, whether they would be entitled to their legacies. The answer was that this should be determined by taking into account the length, or the shortness of the journeys, and the amount of the legacies.
14Ulpianus, Trusts, Book II. Mela says that if a legacy payable annually would be left to anyone without mentioning the amount, the bequest is void. The opinion of Nerva, however, is better, namely, that the testator is considered to have bequeathed what he was accustomed to give during his lifetime; but that, in every instance, the rank of the parties must be taken into consideration.
15Valens, Trusts, Book VII. Javolenus gave it as his opinion, with reference to an heir who having been charged to pay a certain sum of money after the lapse of ten years paid it before the expiration of the time, that, if it could be proved that the trust had been left for the said period to benefit the party entitled to it, because he could not take care of the property, and the heir paid him the money before the time, knowing that he would squander it, he will, under no circumstances, be released from liability. If, however, the time had been fixed on account of the heir, in order that he might profit by the delay, it is understood that he will be released; and, indeed, it may be said that he paid more than he should have done.
16Paulus, On Neratius, Book III. A slave was ordered to be free after the expiration of ten years, and a legacy was bequeathed to him payable annually from the day of his master’s death. The legacy will be due for the years when he shall have begun to be free, and, in the meantime, the heir will be compelled to furnish him with subsistence.
17Labeo, On the Last Epitomes of Javolenus, Book II. A legacy was bequeathed as follows, “Let my heir give to Attia fifty aurei until she marries.” It was not stated that the money was to be paid annually. Labeo and Trebatius think that the entire sum is immediately due. It is, however, more equitable to hold that the legacy is payable annually. 1“Let my heir give to Attius, every year, two measures of Falernian wine which are to be taken from my estate.” It was held that the two measures of wine should be furnished even for a year when no wine was made, provided they could be obtained from the vintage of former years.
18Scævola, Digest, Book XIV. A testator, having confirmed his codicil by his will, devised a tract of land to his freedmen, and forbade it to be alienated, but desired it to belong to the children and grandchildren of his freedmen. He afterwards added the following words: “I wish to be paid by them to my heir, out of the profits of said land, ten aurei every year, for the term of thirty-five years after my death.” As the heir appointed by Titius died before the expiration of the term of thirty-five years, the question arose whether the heir of the heir would, by the words above quoted, be entitled to the benefit of the trust for the remainder of the time. I answered that he would, unless it could be proved by the freedmen that the testator had in view the thirty-fifth year of the heir as the time for the extinction of the legacy. 1A testator left to Stichus, whom he had brought up, a hundred aurei, and ten aurei payable every month in addition, and then, after appointing Sempronia heir to a third of his estate, charged her as follows: “I request you, Sempronia, my sister, to take from the bulk of my estate the legacies which I have left to my foster-children, and keep them until they are entitled to the same.” The question was asked if Sempronia, who was charged with the trust, should refuse to accept the estate before having taken possession of the money left to the foster-children, in accordance with the will of the deceased, whether she would be liable to an action on account of the legacy brought by Stichus before he reached the age of twenty-five years? The answer was that such an action would lie.
19The Same, Digest, Book XVII. Titia, having appointed Seia her heir, bequeathed the usufruct of a certain tract of land to Mævius, and charged him with a trust as follows: “I request you, Mævius, to pay to Arrius Pamphilus and Arrius Stichus, out of the income of the Speratian Estate, six hundred aurei every year from the day of my death, as long as they live.” The question arose if Mævius should pay the annual sum for their support, and, after his death, the land should revert to the heir of Titia by operation of law, whether the provision for support under the terms of the trust would be due to Pamphilus and Stichus. I answered that there was nothing in the case stated to compel payment by the heirs of Titia, as the usufructuary was only charged with it. The question was also asked, whether payment of the legacy should be made by the heirs of the legatee, Mævius. The answer was that nothing was due from the heirs of the legatee, unless it should be clearly proved that the testator intended payment to be made after the extinction of the usufruct, provided the receipts from the usufruct were sufficient to continue it. 1A certain individual who had paid an annual sum to a learned man, named Marcus, inserted the following provision into his will: “My dear wife, I know that you will take care of my friends, and allow them to want for nothing, still, I wish eighty aurei to be given to Marcus.” The question arose whether Marcus, having received the legacy of eighty aurei, could also claim the aforesaid annual payments? The answer was that there was nothing in the case stated why the annual payments concerning which advice was asked should not be made. 2“I bequeath to Lucius Titius three pounds of gold, which I was accustomed to give him during my lifetime.” Inasmuch as the testatrix gave Titius every year forty aurei by way of annual salary, and a certain quantity of silver in addition, as a gift for festivals, or the value of the same, I ask whether the trust for the benefit of Titius must be executed by the heirs, or the money be paid as a legacy. The answer was that there was nothing in the case stated to prevent the money from being paid.
20The Same, Digest, Book XVIII. Ad Dig. 33,1,20 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.A testator bequeathed an annual pension under the following condition: “If they should reside with my mother, whom I have appointed heir to a portion of my estate.” The question arose whether, after the death of the mother, the condition which was imposed would be considered to have failed, and for this reason neither food nor clothing should be given to the legatees. The answer was that, according to the facts stated, they should be given. 1Attius left a trust in the following terms, “I charge whoever shall be my heir to pay, after my death, out of the income of my apartment and my warehouse the sum of ten denarii to the priest, the sacristan, and the freedmen attached to the temple, on the festival day which I have established.” I ask whether this legacy was only due to those who were living and in office at the time that it was bequeathed, or whether it should also be paid to those who succeed them. The answer was that, in accordance with the facts stated, although the officers had been mentioned, the legacy was bequeathed to the temple. I also ask whether the ten aurei were only due for one year under the terms of the trust, or whether they should be paid in perpetuity. The answer was that they should be paid in perpetuity.
21The Same, Digest, Book XXII. A certain person left the following bequest to his freedman: “I desire the fiftieth of my entire income derived from the tenants of my lands and the purchasers of the crops, according to the custom of my household, to be paid to Philo, as long as he lives.” The heirs sold the land from which the said fiftieth of the income was derived. The question arose whether the fiftieth of the interest on the price, which, according to the custom of the province, was ordinarily collected, was due? The answer was that, although the land had been sold, only the fiftieth of the income thereof was bequeathed. 1A testator charged his freedman, to whom he had left a tract of land that returned an income of sixty aurei a year, with the payment of ten denarii to Pamphila annually, under the terms of a trust. The question arose, if the Falcidian Law should diminish the legacy of the freedman, whether the annual allowance bequeathed to Pamphila under the trust would also be considered to be diminished; as the bequest to Pamphila was derived from income which would have to be paid, even if the Falcidian Law reduced the tract of land by half. The answer was that, in accordance with the facts stated, the bequest to Pamphila would not be diminished, unless the intention of the testator was proved to be otherwise. 2A certain testator having appointed his son heir to three-fourths of his estate, and his wife to one-fourth, charged his son to deliver his estate to his stepmother, and requested her “to take good care of his young son, and pay him ten aurei until he reached his twenty-fifth year, and, after he had attained that age, to transfer to him half of the estate.” The son having deducted the fourth part of the estate to which he had been appointed heir, delivered her share to his stepmother, and afterwards reached the age of twenty-five years. As the stepmother was entitled to the three-fourths, and one twenty-fourth, and one forty-eighth of the entire estate, the question arose whether she should surrender half of this share to her stepson? I answered that, according to the facts stated, she would have to deliver to him enough to make up half the estate; in addition to what the son had deducted by reason of the Falcidian Law. Since the father seemed to have had in view the tender age of his son, inquiry was also made whether the stepmother would be required to deliver to him the profits for the intermediate time. The answer was that, in accordance with the facts stated, she would be required to do so. 3Lucius Titius, by his will, bequeathed a hundred aurei to the city of Sebasta, his birthplace, in order that athletic contests might be celebrated there every other year in his name, with the interest of said sum, and added the following words: “If the city of Sebasta is unwilling to accept the money which I have bequeathed under the above-mentioned condition, I desire that my heirs shall, under no circumstances, be liable for the same, but that they keep it for themselves.” The Governor of the province afterwards selected certain good notes from the assets of the estate, and delivered them to the city as its legacy, and, after his decision, the city collected the money due on most of the claims. The question arose, if the city should not subsequently comply with the conditions of the will, whether the legacy would belong to the sons who were the heirs of the deceased. I answered that the city could be compelled to obey the wishes of the testator, and if it did not do so, the heirs could demand the amounts which had been settled by the debtors either in cash or by renewal, and so far as those claims which were not paid to the city, and of which the former obligation was not released by renewal were concerned, the heirs were not prevented from demanding from the debtors what they owed. 4Largius Euripianus rendered an opinion, after his advice had been requested in a case where a patron had left a certain sum of money to his foster-child, and afterwards made the following provision with reference to it in his will: “I wish the money which I have bequeathed to my freedman and foster-child, Titius, to remain in the hands of Publius Mævius, until he reaches the age of twenty-five years, and that, for the use of the same, interest shall be collected at the rate of three per cent. As for the amount of the expenses to be paid to him, Publius Mævius will estimate them, for he should entertain for him the affection of a father.” The question arose whether the heirs, when they paid Publius Mævius the money, should require him to give security. The answer was since no mention of security being required was made in the will, the heirs would be sufficiently safe if they paid the money to Publius Mævius, in accordance with the wishes of the deceased. Therefore neither Titius, the foster-child, nor his heirs should be heard, if they brought an action against the heirs of the patron on the ground that they did not exact security for, by the payment of the money; and the above-mentioned heirs will be released from liability to Titius, as well as to his heirs, unless Publius Mævius should cease to be solvent during the lifetime of the testator, for, in this case, security must be required of him. 5A father appointed his two sons his heirs to equal portions of his estate, an older one, and a younger who was still under the age of puberty, and he left to the latter certain lands as his share, and also bequeathed him a certain sum of money payable when he reached the age of fourteen years, which he placed in the hands of his brother, as trustee, in the following words: “I charge you, Seius, to give to your mother a certain sum of money annually, to enable your brother to pursue his studies from his twelfth to his fourteenth year, and, in addition to this, to pay the taxes assessed against him until you deliver him the property; and I desire that the income of said lands shall belong to you, until your brother reaches the age of fourteen years.” The elder brother having died and left a foreign heir, the question arises whether the condition of receiving the income every year, as well as the charge of paying the annual allowance which, if Seius had lived, he would have been compelled to pay, will be transmitted to his heir; or whether the entire amount of the legacy must be immediately delivered to the minor and his guardians. The answer was that, according to the facts stated, the testator is understood to have, as it were, addressed the guardian, so that, at the expiration of the guardianship, the allowance which he had ordered to be paid, and the income which was to be collected, should terminate; but as the elder brother was overtaken by death, everything that had been left by the testator would, at the time when his brother died, immediately pass to the minor and his guardians.
22Alfenus Verus, Epitomes of the Digest by Paulus, Book II. “Let my heir pay a hundred aurei annually to my daughter every time that she becomes a widow.” The question arose, if the daughter should become a widow in less than a year, whether she would be entitled to less than a hundred aurei. The answer was that, although the entire year had not yet elapsed, the whole amount would be due to her.
23Marciamis, Institutes, Book VI. When a certain man desired a distribution of his estate to be made to the Decurions on his birthday, the Divine Severus and Antoninus stated in a Rescript, that it was not probable that the testator had in his mind payment during only one year, but intended to leave a legacy in perpetuity.
24The Same, Institutes, Book VIII. Where a certain sum of money, for instance, a hundred aurei, was left to the city of Sardis for the purpose of celebrating games in honor of Apollo in four years, the Divine Severus and Antoninus stated in a Rescript that the testator appeared to have left a perpetual income, due every four years, and not merely a gross sum for payment at the end of the first term of four years.