1Pomponius, On Quintus Mucius, Book III. Either uncertain times or conditions are imposed upon legacies which are bequeathed; and if this is not done, they take effect at once, unless, by their very character, they are dependent upon some condition. 1Where a certain date is prescribed for the payment of a legacy, even though the time has not yet arrived, the heirs can, nevertheless, pay it, because it is certain that it will be due. 2When the time is uncertain, as in the following instance, “Let my heir pay ten aurei when he dies,” as the date of his death is uncertain, hence, if the legatee should die before him the legacy will not pass to his heir, for the reason that the time did not arrive during his lifetime, although it is certain that the heir will die some time or other. 3A condition is inserted in a legacy for example, where we make a bequest as follows, “Let my heir give the child born of Arescusa the slave,” or “Let my heir give the crops which may be collected from such-and-such an estate,” or “Let my heir give to Seius the slave whom I may have not bequeathed to anyone else.”

2Ulpianus, On Sabinus, Book V. There are certain conditions which can be fulfilled even during the lifetime of the testator, for instance, “If a ship should come from Asia,” for the condition will be held to have been fulfilled when the ship arrives. There are others which cannot be complied with until after the death of the testator, as “If he should pay him ten aurei, if he should ascend to the Capitol.” For before anyone can be held to have complied with the condition, he must know that it has been inserted in the will; for if he should comply with it unintentionally he would not be considered to have carried out the wish of the testator.

3The Same, On Sabinus, Book VI. It has been established that where impossible conditions are prescribed by a will they shall be considered as void.

4Pomponius, On Sabinus, Book III. Where legacies are bequeathed to persons to whom a patron is obliged to pay them, the Prætor should regulate the condition so that the amounts received by the patron and the appointed heirs, in compliance with the condition prescribed by the will, shall be in proportion to the respective shares of the legatees. 1Where the following provision was included in a will, “If a son should not be born to Titius within the next five years, let my heir then pay ten aurei to Seia,” and Titius should die before that time, Seia will not be immediately entitled to the ten aurei, because the word “then” means the date of the expiration of the five years.

5Paulus, On Sabinus, Book II. A ward can comply with a condition without the authority of his guardian. Let no one be apprehensive for the reason that, when the condition has been fulfilled, he may, in some cases, become the necessary heir, as he will become such by the right of paternal control, and not through the fulfillment of the condition. 1Likewise, a slave or a son under paternal control can comply with a condition without the order of his father or his master, because no one is defrauded by his own act.

6Pomponius, On Sabinus, Book III. A penalty is not imposed by a will upon an heir or legatee or upon anyone who profits in some manner by the last will of the testator, if he is ordered to erect a monument in accordance with the judgment of someone, and he who is to be consulted is not living, or cannot be present, or is unwilling to give his advice. 1Where an heir was directed to manumit certain slaves, and some of them died before the will was executed, Neratius gave it as his opinion that the heir had failed to comply with the condition, but he did not decide whether the latter was able to comply with the condition, or not. Servius, however, held that, where the following was written, “If my mother and my daughter should survive me,” and one of them died, the condition had not failed. The same rule is also stated by Labeo. Sabinus and Cassius think that where conditions considered impossible are inserted into a will they ought to be regarded as not having been written, and this opinion should be adopted.

7Ulpianus, On Sabinus, Book XVIII. The advantage derived from the Mucian bond is apparent in conditions where something is not to be done; as, for instance, “If he should not ascend to the Capitol,” “If he should not manumit Stichus,” and in other cases of the same kind. This opinion was held by Aristo, Neratius, and Julianus, and is also confirmed by a Constitution of the Divine Pius. The above-mentioned remedy was held not only to apply to legacies but also to inheritances. 1Ad Dig. 35,1,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.Where a wife appoints her husband, to whom she had promised her dowry, heir to a share of her estate, “If he should not demand, or exact the dowry which I have promised him,” the husband must notify his co-heir that he is ready to give a receipt for the dowry, or to furnish security that he will not claim it, and he can then enter upon the estate. If, however, the husband should be appointed heir to the entire estate, under the same condition, and there should not be anyone to whom he can furnish such security, he will not be prevented from entering upon the estate on this account. For the condition will be considered to have been fulfilled by operation of law, because after he has once entered upon the estate, there is no one against whom he can bring an action to recover the dowry.

8Pomponius, On Sabinus, Book V. Where anyone makes a bequest as follows, “Let my heir pay such-and-such a sum to my wife, as long as she remains with my son,” and the wife, desiring to avoid her patron, leaves the neighborhood, but still retains the intention of keeping her children with her, Trebatius and Labeo say that she will be entitled to the legacy, because she should not be required to be every moment with her children; but the only question is whether she has the intention and design of not sending her son away, and whether it is not her duty to keep her son with her while he is being reared.

9Ulpianus, On Sabinus, Book XX. Where a husband bequeathed a legacy to his wife payable when she had children, we are accustomed to say that he did not have in his mind those children whom his wife already had at the time when he made his will.

10The Same, On Sabinus, Book XXIII. The following condition, “I bequeath to my daughter, when she is married,” signifies that the person who executed the will intended that the condition should only be fulfilled, and that it made no difference when this was done. Therefore, if the daughter should marry after the will was made, and during the lifetime of the testator, the condition will be held to have been complied with, and especially where it is of such a character that it should be complied with but once. All material unions, however, do not bring about the fulfillment of a condition; for instance, where a girl who is not yet nubile is married, she does not comply with the condition. We say that the same rule will apply if she should marry anyone with whom she cannot be united according to law. But can any doubt arise whether she can comply with the condition by marrying afterwards, just as if she had not married the first time? If the testator had had in his mind the first marriage of his daughter, I think that the condition has failed; still the indulgent interpretation should be given that as the condition has not yet been fulfilled, it has not failed. 1Where a legacy was bequeathed under the following condition: “If a ship should arrive from Asia,” and the ship should arrive at the time that the will was made, but the testator was ignorant of the fact; it must be said that the condition has been fulfilled. This must also be said where a bequest is left to anyone, “When he arrives at puberty.”

11Paulus, On Sabinus, Book IV. Where those things have already been done which were imposed by way of condition, and the testator was aware that they can be done a second time, the parties must wait until they are done the second time. If, however, the testator did not know this, the legacies will be due immediately. 1It also should be remembered that ordinary conditions must be fulfilled after the death of the testator, if this is necessary in order to comply with the provisions of the will, as, for example, “If he should ascend to the Capitol,” and others of this kind. Unusual conditions can also be fulfilled during the lifetime of the testator, for instance, “If Titius should become Consul.”

12Ulpianus, On Sabinus, Book XXIV. When a bequest is made as follows, “As my eldest son has taken ten aurei out of my chest, let my younger son take the same amount from the bulk of my estate,” the legacy will be due, because it has been left in order that the condition of the children might be rendered equal. And it is clear that this is the case, for where anything is bequeathed for some reason, it refers to the past, but one which is left by way of penalty has reference to the future.

13Paulus, On Sabinus, Book V. Where an estate is left to anyone under the condition, “If he pays a certain sum to a minor, or an insane person,” the legatee will be held to have complied with the condition if he pays the money to the curator or the guardian of the party interested.

14Ad Dig. 35,1,14ROHGE, Bd. 5 (1872), S. 111: Rechtliche Bedeutung der Clausel in Feuerversicherungspolicen: „die Versicherung wird erst durch die gehörig geleistete Prämienzahlung giltig“.Pomponius, On Sabinus, Book VIII. “Let Titius be my heir, if he erects statues in the city.” If he is ready to erect the statues, but the municipal authorities will not furnish him with a place for that purpose, Sabinus and Proculus hold that he will become the heir, and that the same rule of law applies to a legacy.

15Ulpianus, On Sabinus, Book XXXV. Where a legacy is bequeathed under the following condition, “If she should marry in my family,” the condition is held to have been complied with as soon as the marriage ceremony has been performed, although the woman has not yet entered the bed-chamber of her husband, for consent and not cohabitation constitutes marriage.

16Gaius, On the Edict of the Prætor Relating to Wills. Where questions arise with reference to matters foreign to the will, they must receive a just and liberal interpretation; but those which arise concerning the will itself must be determined in strict accordance with the rules of the written law.

17The Same, On the Edict of the Prætor Relating to Legacies. A designation is incorrect where it is made as follows, “I bequeath the slave Stichus, whom I have bought of Titius, the Tusculan estate which was presented to me by Seius,” for if it is known to what slave or to what estate the testator referred, it will not be material if he whom he said that he had bought was really given to him, or if what he indicated had been donated to him he in fact had purchased. 1Therefore, where a slave is bequeathed as follows, “I bequeath to Titius my cook Stichus, my shoemaker Stichus,” although the slave may be neither a cook nor a shoemaker, he will belong to the legatee, if it should positively be ascertained that the testator had him in mind when he made the bequest. For even if the mistake is made in designating the person of the legatee, but it is clear to whom the testator intended to make the bequest, it will be as valid as if no error had been committed. 2This rule with reference to a false designation is still more applicable where the reason is incorrectly stated, as, for instance, as follows, “I give such-and-such an estate to Titius, because he has had charge of my business.” Likewise, “Let my son Titius receive, as a preferred legacy, such-and-such a tract of land, because his brother took such-and-such a sum of aurei from my chest,” for even if the brother did not take the said sum of money from the chest, the legacy will be valid. 3But if the legacy is mentioned in terms which impose a condition, for instance, as follows, “I give such-and-such a tract of land to Titius, if he has transacted my business,” “Let my son Titius receive such-and-such a tract of land, as a preferred legacy, if his brother took a hundred aurei from my chest,” the legacy will be valid if the legatee transacted the business, or his brother took a hundred aurei out of the chest. 4Where a legacy is bequeathed to anyone dependent upon his performing some act, as, for example, erecting a monument to the testator, or constructing some public work, or giving a banquet to the people of the city, or paying part of the legacy to another, the legacy will be considered to have been bequeathed under a certain modification.

18The Same, On the Provincial Edict, Book XVIII. Where property is left to anyone under the condition of his not doing something, he must give security by means of the Mucian Bond to him to whom the legacy or the estate will belong under the Civil Law if the condition should fail to be complied with.

19Ulpianus, Disputations, Book V. The intention of the deceased occupies the first place in the conditions prescribed by him, and it controls the conditions. Hence, with reference to the following, “If my daughter should marry Titius,” it was held that the date of the death of the testator ought not always to be considered, but that the time for the fulfillment of the condition could be extended beyond that event, where this was the wish of the testator. 1Ad Dig. 35,1,19,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 7.The following clause, “If the first should be my heir, let him be charged to pay,” is not to be considered as implying a condition; for the testator seems rather to have intended to indicate when the legacy should be payable than to insert a provision, unless he meant to impose a condition; hence the following should not be held to prescribe a condition, “I give and bequeath whatever is due to me at Ephesus.” If, however, a bequest is made as follows, “If the first should not be my heir, let the second be charged to pay,” and the first becomes the heir, the legacy will not be due. If the first should enter upon the estate, along with the second, there can be no doubt whatever that the condition has not been fulfilled. 2Where a patron, having obtained possession of an estate contrary to the provisions of the will, receives the share which is due to him by law, his co-heir will not be obliged to pay to him any legacies which have been bequeathed under the following condition, “If my patron should not be my heir.” 3Where the first heir has been charged with a legacy as follows, “If the second should not be my heir, let him pay Titius twenty aurei,” and, in like manner if the second heir is charged with a bequest to Titius as follows, “If the first should not be my heir,” and both parties become the heirs, the condition of the legacy will not be fulfilled. If one of the heirs should obtain the estate, and the other should not, the legacy will be due.

20Marcellus remarks as follows on Julianus, Digest, Book XXVII. We have no doubt that dishonorable conditions should be referred back to those who imposed them. Among these are, generally speaking, such as require an oath.

21Julianus, Digest, Book XXXI. It makes a great deal of difference whether the condition is one of fact or one of law. For conditions like the following, “If a ship should arrive from Asia,” “If Titius should become Consul,” although they may not be fulfilled, they prevent the heir from entering upon the estate, so long as he is ignorant that they remain unfulfilled. Those, however, which refer to matters of law, only require to be unfulfilled whether the heir is aware of the fact or not. For instance, where anyone thinks he is under paternal control, when he is, in reality, the head of a household, he can acquire an estate. Wherefore, when anyone is appointed heir to a portion of an estate, although he may be ignorant whether the will has been opened or not, he can still enter upon the estate.

22The Same, Digest, Book XXXV. Whenever a bequest is made to a wife under the condition that she will not marry, and she is charged to deliver the property bequeathed to Titius if she should marry, it has been well established that if she marries she can claim the legacy, and will not be compelled to execute the trust.

23The Same, Digest, Book XLIII. Where a testator directed his legatee to pay ten aurei to his two heirs, and to take for himself a certain tract of land, the better opinion is that the heir cannot divide the condition, unless the legacy is also divided. Therefore, although he may have paid five aurei to one of the heirs, he can claim no part of the land unless he pays the remaining five to the heir who enters upon the estate; or if he should reject it, he pays the entire ten to the one who alone accepts it.

24Ad Dig. 35,1,24ROHGE, Bd. 5 (1872), S. 111: Rechtliche Bedeutung der Clausel in Feuerversicherungspolicen: „die Versicherung wird erst durch die gehörig geleistete Prämienzahlung giltig“.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Noten 6, 10.The Same, Digest, Book XXXV. It has been established by the Civil Law that a condition is always considered to have been fulfilled where the party who is interested in not having this done opposes its fulfillment. Many authorities have extended the application of this rule to legacies and the appointment of heirs. Certain jurists have also very properly held that in cases of this kind, stipulations become operative when attempts are made by the promisor to prevent the stipulator from complying with the condition.

25The Same, Digest, Book LXIX. Where a husband bequeaths his estate to his wife, and they have children, and the woman, after a divorce has been obtained, has children by another man, and then, the second marriage having been dissolved, she returns to her first husband, the condition is not understood to have been complied with, for it is probable that the testator did not have in his mind the children who, during his lifetime, had been begotten by another man.

26The Same, Digest, Book LXXXII. The following clause, “If he should pay twenty aurei or swear that he will perform a certain act,” includes a condition which has two parts. Hence, if anyone should be appointed an heir under the condition that he will swear that he will pay ten aurei, or erect a monument, although he will be permitted, under the terms of the Edict, to receive the estate or the legacy, he will still be compelled to do what he was ordered to swear that he would do, as only the oath can be remitted. 1Ad Dig. 35,1,26,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 604, Note 6.Where the same property is bequeathed to one person absolutely, and to another conditionally, or where one heir is appointed absolutely, and another under a condition, and the condition fails, half of the legacy or the estate will accrue to the heir or the legatee to whom the legacy or the estate was absolutely bequeathed, provided the party accepted his share of the same.

27Alfenus Varus, Digest, Book V. A certain individual provided in his will that a monument, like that of Publius Septimius Demetrius which stands on the Salarian Way, should be erected to him, and if this was not done, that his heirs should be liable to a considerable fine. As no monument to Publius Septimius Demetrius could be found, but there was one erected to Publius Septimius Damas, and it was supposed that the party who made the will intended that a monument should be erected to him like the one aforesaid, the heirs asked advice as to what kind of a monument they would be obliged to erect, and whether they would be liable to the penalty if they did not erect any, because they could not find one to use as a pattern. The answer was that if it could be ascertained what kind of a monument the party who made the will intended to designate, even though he may not have described it in his will, it should still be erected in accordance with what he wished to indicate. If, however, his intention was not known, the penalty would have no force or effect, as there was no monument found which could serve as a pattern for the one which he ordered to be erected; but the heirs must, nevertheless, erect a monument corresponding in every respect with the wealth and rank of the deceased.

28Paulus, Epitomes of the Digest of Alfenus, Book III. A testator made the following bequest to his daughter, “If my daughter, Attia, should marry with the consent of Lucius Titius, let my heir give her such-and-such a sum.” Titius having died before the testator Attia married, the question arose whether she would be entitled to the legacy. The answer was that she would. 1“Let my wife Attia take the boy Philargyrus and the girl Agathea from the slaves who will belong to me at the time of my death.” The testator sold Agathea, whom he owned at the time he made the will, and afterwards bought other female slaves, to one of whom he gave the name of Agathea. The question arose whether she should be considered as having been bequeathed. The answer was that she should be.

29Julianus, On Urseius Ferox, Book I. The following condition, “If he should ascend to the Capitol,” should be understood to mean if he should ascend to the Capitol as soon as he could.

30The Same, On Minicius, Book I. If an entire estate should be bequeathed to me separately and absolutely, and to you conditionally, and you should die before the condition was complied with, I will not be required to comply with it, as even if the condition should fail, the share which you could have claimed will accrue to me.

31Africanus, Questions, Book II. The following provision was inserted into a will, “Let Stichus and Pamphila be free, and if they should be united in marriage, let my heir be charged to pay them a hundred aurei.” Stichus died before the will was opened. The answer was that” the right to the share of Stichus was extinguished, and that, as it appeared that Pamphila had failed to comply with the condition, her share would therefore remain in the possession of the heir. If, however, both of them had lived, and Stichus had refused to marry her while the woman was ready to marry him, she would be entitled to her share of the legacy, but the right of Stichus to his share would be extinguished. For where a legacy is bequeathed to anyone as follows, “Let my heir pay a hundred aurei to Titius, if he marries Seia,” and Seia should die, Titius is understood to have failed to comply with the condition. But if he himself should die, he will not transmit the legacy to his heir, because by his death the condition is understood not to have been fulfilled. Where, however, both of them are living, and he refuses to marry her, for the reason that the condition fails through his act, he cannot obtain the legacy; but if the woman is unwilling to marry him, and he is ready to marry her, he will be entitled to it.

32The Same, Questions, Book IX. Although the words, “Render his accounts,” have no other signification than to pay the balance which was due, still, if less than is due is paid by a slave who is to be free under a certain condition, through the fault of the heir, and not on account of any fraud committed by the slave, and he is considered to have rendered his accounts in good faith, he will become free; and, unless this rule is observed, no slave who is manumitted under a condition would ever obtain his freedom, if, through want of knowledge, he should pay less than he ought to have paid. This must be understood to refer to cases where a slave is ordered to render his accounts, and, through some mistake but without fraudulent intent, he does so in such a way that his master may also be mistaken with reference to his calculation.

33Marcianus, Institutes, Book VI. A false designation does not benefit the legatee, the beneficiary of the trust, or an heir who has been appointed; for instance, where” the testator incorrectly refers to his brother, his sister, his grandson, or anything else. This was provided for by the Civil Law, as well as by the Constitutions of the Divine Severus and Antoninus. 1Where, however, a controversy arises with reference to several persons having the same name, that one will be admitted to the succession who can prove that the deceased had reference to him. 2Where a bequest is made to anyone as to a freedman, that is to say, by mentioning him among other freedmen, he should not lose the legacy for the reason that afterwards he may have received a gold ring from the Emperor, for his dignity is increased, and his condition is not altered, as was stated by the Divine Severus and Antoninus in a Rescript. 3If anyone should bequeath property as follows, “If it should belong to me at the time of my death,” and it is not found at that time, the appraised value of said property will not be considered to have been bequeathed. 4But what if anyone should provide by his will as follows, “I give and bequeath Stichus and Pamphilus to Titius, if they should belong to me at the time of my death,” and he should alienate one of them, could the other be claimed by the legatee? It was decided that he could be claimed, for this clause, although it is in the plural number, must be understood just as if the testator had said separately, “I give and bequeath Stichus if he should be mine at the time of my death.”

34Florentine, Institutes, Book XI. Where a bequest is made to anyone specifically, as, for example, to Lucius Titius; it would make no difference whether he designated him in this way, or by mentioning his physical characteristics, his trade, employment, relationship, or affinity; for a designation of this kind generally takes the place of the name, nor is it of any consequence whether it be false or true, provided it is positively known whom the testator meant. 1There is this difference between designation and a condition: a designation generally refers to something which has already been done, a condition to something which is to take place.

35Pomponius, Rules. The easiest of several conditions upon which freedom is dependent is considered to be the one which leads most directly to freedom, although it may be, by nature, harder and more difficult of accomplishment than the others.

36Marcellus, Opinions. Publius Mævius provided by his will as follows: “I give and bequeath, and charge whoever shall be my heirs to pay to my sister’s son Gaius Seius, forty aurei for his expenses during his Consulate.” Seius was appointed Consul during the lifetime of Mævius, and gave the ordinary present, and afterwards, upon the Kalends of January, assumed the duties of the Consulate, and then Mævius died. I ask whether Seius would be entitled to the forty aurei. Marcellus answered that he would. 1Titia made the following provision with reference to certain lands which she had left to Septitia by her will, “I charge you, Septitia, to give to my son the same lands when he shall have reached the age of sixteen years. If, however, my said son should not reach the age of sixteen years, I charge you to deliver the said lands to Publius Mævius and Gaius Cornelius.” As Septitia died, and the son also died during his fifteenth year, I ask whether the trust should be executed, and the heirs of Septitia be compelled to deliver the land to Publius Mævius and Gaius Cornelius, the son not having completed his fifteenth year. Marcellus answered that Septitia had transmitted to her heirs the same right which she herself had in the land; for it would be contrary to the intention of the testatrix for the execution of the trust to be demanded immediately, as in that case more benefit would be derived by the substitutes than by the boy, either through Septitia or her heirs. The words used by the testatrix would, indeed, seem to indicate that the trust should be executed as soon as her son died, but it is not probable that she intended the benefit to be enjoyed by the substitutes sooner than it could have been by her son. The aspect of the case is not at all changed because Septitia died first, for even if the boy had lived, the heirs of Septitia could not have been sued by him any sooner than Septitia herself could.

37Paulus, On the Lex Fufia Caninia. If anyone should make a bequest to a slave, whom he himself could not manumit, under the condition that “his legatee should manumit him,” the legatee will not be excluded from receiving the legacy, but he cannot be compelled to manumit the slave, as one is only obliged to execute the will of the testator, when, by its terms, nothing is to be done contrary to law; and this opinion was stated by Neratius. The legatee will not be deprived of the legacy, as the testator preferred that he should obtain the benefit of the slave rather than that his own heir should have him.

38The Same, On the Law of Codicils. If I should say in my will, “I bequeath to So-and-So as much as I shall bequeath to Titius by my codicil,” although the legacy is only explicitly mentioned by the codicil, still it is valid under the terms of the will, and only the amount inserted in the codicil will be due. For legacies like the following were sustained by the ancients, namely, “Let my heir give to So-and-So an amount equal to that I shall state to him in a letter, or which I shall obtain from such-and-such an action.”

39Javolenus, On the Last Works of Labeo, Book I. Where a condition has reference to a certain class of persons, and not to individuals who are well known, we think that it relates to the entire will, and to all the heirs who have been appointed; but where the condition only has reference to certain individuals, we should consider it as relating only to that degree in which the said parties have been appointed heirs. 1Where a clause was inserted in a will providing that a “building may be erected in the Forum,” and it is not stated in what Forum, Labeo says that if it does not appear what the intention of the deceased was, the building should be erected in the Forum of the town in which the party who made the will resided. I also approve this opinion.

40The Same, On the Last Works of Labeo, Book II. If your neighbor should, upon certain days, hinder you from using a highway when you wish to travel upon it in order to comply with a condition, and you are not to blame for not bringing an action against him to prevent him from doing this, these days shall not be included in the time imposed by the condition. 1A certain man made a bequest as follows, “If Publius Cornelius should pay my heir for the expense which I have incurred with reference to the Seian Estate, then let my heir deliver the Seian Estate to Publius Cornelius.” Cascellius said that the legatee ought also to pay to the heir the price of the land. Ofilius denies that the price is included in the term “expenses,” but that only those expenses are meant which the party paid out of the land after it had been purchased. Cinna holds the same opinion, and adds that an account of the expenses must be taken without deducting the profits. I think that this is the better opinion. 2A testator bequeathed a hundred aurei to Titius, and afterwards made the following provision in his will, “Let my heir give the sums of money which I have bequeathed, if my mother should die.” Titius survived the testator, and died during the life of the mother. Ofilius gave it as his opinion that, after the death of the mother, the heirs of Titius were entitled to the legacy, as it had not been left under a condition, but had been bequeathed absolutely in the first place, and the time of its payment had been added afterwards. Labeo says, “Let us see if this opinion is not false,” because it makes no difference whether a bequest is made as follows, “Let my heir pay to my legatee the money which I have bequeathed to him, if my mother should die,” or, in these terms, “Let him not pay the money, unless my mother should die,” for, in either instance, the legacy is given or taken away under a condition. I approve the opinion of Labeo. 3A master bequeathed five aurei to his slave, as follows: “Let my heir pay to my slave Stichus, whom I have ordered to be free by my will, the five aurei which I owe him on account.” Namusa says that Servius gave it as his opinion that the bequest of the slave was void, because a master cannot be indebted to his slave. I think that, according to the intention of the testator, the debt should rather be considered a natural than a civil one, and this is the present practice. 4A husband, who had received no dotal land, made the following testamentary disposition, “Let my heir give to my wife the Cornelian Estate, which she gave to me as her dowry,” Labeo, Ofilius, and Trebatius held that the devise of the land was, nevertheless, binding, because as the Cornelian Estate actually existed, the false designation did not affect the devise. 5Thermus Junior mentioned in his will the names of certain persons by whose advice he desired a monument to be erected to himself, and then made the following bequest, “Let my heir pay to Lucius, Publius, and Cornelius a thousand aurei for the purpose of erecting my monument.” Trebatius gave it as his opinion that this is just the same as if the bequest had been made on condition that the party should give security for the erection of the monument with the said money. Labeo concurs in the opinion of Trebatius, because it was the intention of the testator that the sum should be used for the erection of a monument. Both Proculus and myself approve this opinion.

41Ad Dig. 35,1,41Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 10.Ulpianus, On the Edict, Book XXXIV. When a legacy is bequeathed under a condition, it does not become payable at once, but only after the condition has been complied with, and hence it cannot, in the meantime, be transferred by the heir.

42Africanus, Questions, Book II. A legacy was bequeathed to a son under paternal control, subject to the condition that he remained in the power of his father. It was held that the legacy seemed to have been bequeathed to the father, and that the latter could claim it in his own name. The same rule of law applies where a bequest is made in this way to a slave. The proof of this contention is, that even though provisions should be bequeathed to the slaves of Titius, there is no doubt that the legacy belongs to the master and not to the slaves.

43Paulus, On Plautius, Book VIII. Plautius: An heir was charged by the testator, who was a freedman, to sell the entire estate and reserve ten aurei for himself. The patron of the deceased subsequently claimed possession of the estate in opposition to the will, and took that portion of the same to which he was entitled by law. Proculus and Cassius say that the beneficiary can recover from the heir a sum in proportion to what he himself has paid. Paulus: This is the present practice, for as an heir, through the payment of trusts and legacies, is discharged from liability by the Prætor, so also he should receive his share of the same. 1The case is different where the Falcidian Law applies, and reduces the amount of the legacies, since in instances of this kind nothing can be recovered, because the condition has been entirely complied with. 2Likewise, the right of payment is restricted where the party to whom the bequest was made cannot take the entire share of the estate which may be left to him, for the better opinion is that he should pay a part, and that those also should pay a part whose shares have been increased by the amount taken from him to whom more had been left than is allowed by law. 3Neratius, in the First Book of Opinions, states that where two heirs have been appointed, and one of them is requested to deliver the estate to you, and you are asked to pay a certain sum to Titius, and the heir avails himself of the benefit of the Falcidian Law in delivering the property, it is not inequitable that you should pay as much less to Titius as the heir ought to pay to you.

44The Same, On Plautius, Book IX. Where anyone is directed to pay a certain sum to an heir, and the latter is a slave belonging to another, he should not pay the sum to the master, for even if some other heir had been appointed, and directed to pay the sum to the heirs of Titius, it should be paid to the slave himself, because things which have already been done do not pass to the master; just as where I stipulate for myself or for the slave of Titius, payment should be made, not to Titius, but to his slave. These opinions are correct. 1Where, however, a party is ordered to pay the heir, let us see whether the payment should be made to his master. It follows in this instance that payment should be made to the slave. 2It is certain that a slave who is to be free under some condition must pay the master. 3On the other hand, a legatee who is charged with payment to the master does not comply with the condition by giving the amount to the slave, unless the master consents. For no one can comply with the condition in a case of this kind, if I am either ignorant or unwilling. 4Where an estate is returned in compliance with the Trebellian Decree of the Senate, it should be given to the heir in order that the condition may be complied with, and it should not be returned by the latter under the trust. 5When an heir enters upon an estate which he suspects of being insolvent, and gives it back to the trustee, a doubt may arise whether he shall be deprived of it, and the more equitable opinion is that, in this instance, he will not be deprived of anything. 6Where, however, I am appointed heir, and a controversy arises as to my right to the estate, if the legatee should furnish security to return the legacy in case the estate should be evicted, security should also be given to him to return what he paid. 7But if you should be ordered to pay me the sum of ten aurei, and receive the estate, under the Decree of the Senate, I shall not be compelled to return you the said ten aurei, by virtue of the trust. 8Where a legacy is bequeathed to a slave belonging to two masters, under the condition of his paying something to the heir, certain authorities hold that the condition cannot be partially complied with, but that the money should be paid at once. I, however, hold the contrary opinion. 9Where a part of the property bequeathed has been acquired by a third party through usucaption, I doubt whether the condition should be complied with in full. I think it can be said that it may be partially complied with, in accordance with the intention of the testator. 10Plautius: I bequeath a tract of land to one of several heirs under the condition that he will pay a hundred aurei to my heirs. He must deduct his share of the estate, and give the remainder to the heirs in proportion to their respective shares. Where, however, he had been appointed heir to a share of the estate, “if he should pay ten aurei to the heirs,” he could only become the heir by paying the entire ten aurei to his co-heirs; because he could not be admitted to the succession before he paid the entire sum. For, in the case where a slave is granted his freedom by will, and made an heir to a share of the estate on condition that he pays ten aurei to the heirs, it was decided that he would not be free and become an heir until he had paid the entire sum of ten aurei to his co-heirs. Paulus: This is our practice at present.

45The Same, On Plautius, Book XVI. Julianus says that where a legacy has been left to a person under the condition that he pays his heir ten aurei and the heir gives him a receipt for what he owes him, he is not considered as having complied with the condition, as he would if he had actually made payment; but, as it was the heir’s fault that the condition was not complied with, the legacy can be claimed just as if this had been done.

46The Same, On Vitellius, Book III. If, for example, a slave who is to be free under the condition of paying a certain sum of money in a hundred days, and the beginning of the term is not mentioned, it will begin to run from the day that the estate is entered upon, because it is absurd to hold that it would begin before the time arrived when he who was entitled to the legacy would be able to receive it. This rule will apply to all legatees who are directed to pay the heir under such circumstances. Therefore the time for complying with the condition by the legatee will be computed from the day when the estate was entered upon.

47Marcellus, Digest, Book XIV. A master bequeathed freedom to his slave as follows, “Let him be free if he belongs to me at the time of my death.” He gave the legacy or the estate to him unconditionally, and then sold him. The legacy or the estate will be due to his new master, and the slave can accept it by his order; for the testator in granting him his liberty expressly stated, “If he belongs to me,” with the result that, even if this condition had not been explicitly mentioned, his freedom would be prevented. Still, the disposition of property is very frequently changed, even where the testator specifically indicated something which, if it was not done, would still be understood.

48The Same, Digest, Book XV. I do not think that the time for the execution of a trust has arrived when the beneficiary of the same has entered his sixteenth year, and the condition was when he should have reached the age of sixteen years. The Emperor, Aurelius Antoninus, rendered this decision in the case of an appeal from Germany.

49Celsus, Digest, Book XXII. Where an heir is charged to make a payment of a sum of money, or a slave is ordered to be free in ten years, the legacy will be payable, or the grant of freedom will become operative on the last day of the term.

50Ulpianus, On the Duties of Consul, Book I. Where freedom was bequeathed directly to a slave under condition of his rendering his accounts, the Divine Pius permitted the Consuls to appoint an arbiter to decide the matter in the following words, “The Consuls, having been applied to by you, shall appoint an arbiter to examine the accounts, and to decide not only what balance is due from Epaphroditus, as well as what accounts and what documents he must deliver or show to his masters, and when the judgment of the arbiter has been complied with, the freedom of Epaphroditus will no longer be interfered with.”

51Modestinus, Differences, Book V. Where a slave is ordered to be free under different conditions separately imposed, he can select the condition which seems to him to be the easiest complied with. Where, however, a legacy is bequeathed in this manner, the legatee must comply with the last condition imposed. 1A slave was directed to pay ten aurei to the heir and become free, and, by paying the amount to the heir of the heir, he can obtain his freedom. Publicius says that, under similar circumstances, this rule must not be observed with reference to a legatee.

52Ad Dig. 35,1,52Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.The Same, Differences, Book VII. It sometimes happens that certain provisions in a will, when explicitly stated, are disadvantageous, although if they could be tacitly understood this would not be the case. This occurs where a legacy is bequeathed to someone as follows, “I give and bequeath ten aurei to Titius, if Mævius should ascend to the Capitol.” For although the choice is left to Mævius as to whether he will ascend to the Capitol or not, and therefore cause the legacy to be payable to Titius, still, a legacy cannot be legally bequeathed in these terms, namely, “I give ten aurei to Titius if Mævius should consent,” as a legacy cannot be made dependent upon the will of another; hence it has been said that testamentary provisions specifically stated cause injury, but those expressed in general terms do not.

53The Same, On Inventions. Where anyone directs a slave to be free if he renders accounts to the heir, and he should afterwards forbid him to do so; he grants him his freedom as it were, absolutely, and he will be entitled to it by virtue of the will.

54Javolenus, On Cassius, Book II. Where anyone orders legacies, for the payment of which he does not fix any time, to be paid in one, two and three years, and bequeaths a sum of money to a minor when he shall arrive at the age of puberty, it is stated in the Commentaries of Gaius that the last legacy mentioned should be paid in one, two or three years after the boy arrives at puberty; because a more important condition than the term of payment is attached to the legacy. I think that the opposite opinion is correct, because where a time is prescribed, it has reference to the postponement of the payment of legacies which are due at present, but does not apply to those which are payable in the future, and the age of puberty establishes a certain date for the payment of the legacy. 1The same property was bequeathed to two persons, if they should pay a hundred aurei to the heir. If one of them should pay him fifty, he will be entitled to his share of the legacy, and the share of the one who did not pay will accrue to the other, dependent upon compliance with the condition.

55The Same, Epistles, Book XIII. An estate was left to Mævius if he paid two hundred aurei to Callimacus, who could not take anything under a will, and the legatee was, nevertheless, obliged to comply with the condition and to pay the two hundred aurei, in order to become entitled to the land which was devised to him, even though he did not transfer the ownership of the said sum to the person who received it. For what difference does it make whether anyone is directed to pay the money to such a person, or to deposit it in some place, or to throw it into the sea? Money cannot come into the hands of an individual of this kind under the terms of a will, but he can acquire it as a donation mortis causa.

56The Same, Epistles, Book XIV. Where an estate is left to anyone on condition of his paying ten aurei, the devisee cannot obtain any portion of the land without paying the entire amount. The case, however, is different where the identical property is left to two persons under the same condition, for in this instance, under the terms of the will, the condition imposed upon the different parties may appear to have been divided among them separately, and therefore they can, as individuals, comply with it in proportion to their respective shares, and receive the legacy. For although the entire sum, on the payment of which the legacy is dependent, seems to be divided by the enumeration of the different persons, the condition cannot be divided where some accidental occurrence takes place, in the case where the legacy is left to one person conditionally, and the entire number of those who are substituted for the legatee should be considered as constituting but one individual.

57Pomponius, On Quintus Mucius, Book IX. Where a slave was directed “to perform five acts for a stranger and become free,” the question arose whether the condition should be understood to mean the same as where the payment of a sum of money had been directed, so that, instead of its delivery we can specify the performance of labor. This is our present practice, just as when it is provided that if a slave should pay a stranger a certain sum of money out of his peculium he shall be liberated, so, if he furnishes the labor, he must also be granted his freedom. Therefore, in the case stated, the heir will act wisely if he prevents his slave from performing the labor, lor, by doing so, the slave will obtain his freedom, but the stranger will not get the benefit of his services.

58The Same, On Various Passages, Book X. Where a legacy is left to a female slave belonging to another, “provided she should marry,” Proculus says that the legacy is valid, because she can marry after having been manumitted.

59Ulpianus, On the Lex Julia et Papia, Book XIII. A legacy becomes of no effect, if the person to whom it was bequeathed conditionally should die before the condition is fulfilled. 1But what if he should not die, but should lose his civil rights? For instance, where a bequest was made to a certain man, “if he should become Consul,” and he is deported to an island, will the legacy not be extinguished in the meantime, because he can be restored to his civil rights? I think that this is extremely probable. 2The same rule cannot be said to apply where a penalty involving servitude is imposed upon him, because servitude resembles death.

60Paulus, On the Lex Julia et Papia, Book VII. Conditions relating to acts are of different kinds, and are susceptible, as it were, of a threefold division, that is to say where something must be given, or something must be done, or something must occur; or, on the other hand, where something must not be given, or not be done, or not occur. The conditions of giving something or of performing some act have reference either to those to whom a bequest was made, or to others; the third class depends upon some event taking place. 1The Treasury is obliged to comply witli the same conditions by which the person from whom the Treasury obtained possession of the property was bound; just as it can also claim the property which is the subject of the legacy, with any burdens attaching to the same.

61Ulpianus, On the Lex Julia et Papia, Book VIII. Where a man leaves a legacy to his wife payable at the time that she has children, some doubt may arise whether the testator only had reference to such children as might be born after his death, or whether he had in his mind those also who were born to him after his will was made, if he died while the marriage continued to exist. I think it is but proper that this should apply not only to children born during the lifetime of the husband, but also to those born after his death.

62Terentius Clemens, On the Lex Julia et Papia, Book IV. Children born to a woman by another person after the decease of her husband will still be allowed to receive a legacy, if the testator expressly stated that this should be the case. 1Where a bequest was made of more than the law allowed to a certain person who could not receive the entire amount, “if he should pay something to the heir,” the question arose whether what he gave for the purpose of complying with the condition could be acquired by virtue of the legacy, for the reason that he did not receive what he paid to the heir; or whether what he paid should be considered in excess of the legacy, and therefore that he will not be entitled to any more of the estate of the testator than he would have been if the legacy had been bequeathed unconditionally. Julianus very properly thinks that he will be entitled to as much more of the legacy as he may have paid for the purpose of complying with the condition, nor does it make any difference whether he was directed to make payment to the heir, or to a stranger; because after the calculation, which he is always obliged to make, is completed, no more will remain for him than the share authorized by the law. 2Where a man bequeaths an annual legacy to his wife under the condition that she shall not marry as long as she has children; what is the rule of law? Julianus answers that the woman can marry and take the legacy. If, however, the testator provided that she should not marry as long as her children were under the age of puberty, the rule would not apply; because the duty of caring for the children, rather than remaining in the state of widowhood, was enjoined by the testator.

63Gaius, On the Lex Julia et Papia, Book II. Where a legacy was bequeathed as follows, “If she should not marry Titius,” or, “If she should marry neither Titius, Seius, nor Mævius,” and finally a large number of persons were included in the prohibition, it was held to be the better opinion that the woman would lose her legacy if she married any one of them; for it does not appear that widowhood was imposed by such a condition, because she could very easily marry someone else. 1Let us see what would be the case if a legacy was bequeathed to a woman under the condition that she married Titius. And, indeed, if she could marry Titius honorably, there can be no doubt that she would be excluded from the legacy, unless she complied with the condition. If, however, the said Titius was unworthy of contracting marriage with her, it must be said that she can marry anyone that she pleases, by the beneficent provision of the law. For when she was ordered to marry Titius, she was forbidden to marry anyone else, and therefore, if Titius is unworthy of her, the provision is the same as if it had been stated in general terms, “If she should not marry.” And, moreover, if she entertains a genuine affection, this condition is harder than the one, “If she should not marry,” for she is forbidden to marry anyone else but Titius, with whom her marriage would be dishonorable.

64Terentius Clemens, On the Lex Julia et Papia, Book V. Where a legacy is bequeathed under the following condition, “If she should not marry Lucius Titius,” Julianus says that the law will not apply. 1If, however, the testator had said, “If he should not marry Aricia,” it should be ascertained whether a fraud on the law has not been perpetrated; for if the said Aricia was a woman who could not easily find another man to marry, it should be held that what the testator had said for the purpose of evasion became void by operation of law, for a law which is beneficial to the State and which has been enacted for the purpose of increasing the population should be aided by a favorable interpretation.

65Paulus, On the Edict, Book LXII. Where a legacy is bequeathed under a condition, and the heir who is charged with it dies while the condition is pending, he will leave his own heir charged with the legacy.

66Modestinus, Opinions, Book X. An heir manumitted a slave whom he was ordered to set free on the fulfillment of a condition, and who was also made the beneficiary of a trust. I ask whether the heir was obliged to pay him what was left him under the trust. Herennius Modestinus answered that, although the heir had manumitted the slave absolutely, he must, nevertheless, pay him what he was entitled to by virtue of the trust which had been left to him under the same conditions, provided that the slave could show that the conditions had been complied with, or that it was the fault of the heir that this had not been done.

67Javolenus, Epistles, Book VII. Where land was devised to a certain person under the following condition, “If he should not manumit his slave,” and, if he did manumit him, that the devise of the land should pass to Mævius, the legatee furnished security not to free the slave, received the bequest, and afterwards emancipated him. I ask whether anything is due to Mævius. The answer was that if the bequest had been as follows, “If he should not manumit his slave,” and security was furnished, the party could receive the legacy from the heir, and if he afterwards manumitted the slave, the agreement, having become operative, he must either deliver the land to the heir, or pay him its value, and in this instance the heir must give it to him to whom the legacy was due under this condition.

68The Same, On Cassius, Book II. Where a legacy is bequeathed to take effect when a woman marries, if she was already married and the testator was aware of the fact, the parties must wait for a second marriage, and it will make no difference whether the woman marries again during the lifetime of the testator or after his death.

69Gaius, On the Lex Julia et Papia, Book XIII. If the testator expressed himself as follows, “I give and bequeath to Titius such-and-such property, if he is willing,” Proculus, on Labeo, remarks that the legacy will not belong to the heir of the legatee, unless the legatee himself desired him to have it, because the condition appears to be attached to the person.

70Papinianus, Questions, Book XVI. A mother appointed her two children heirs to certain shares of her estate under the condition that they should be emancipated, and left them absolutely bequests of certain articles as preferred legacies. They entered upon the estate. Their father should be excluded from the benefit of the legacies, because by emancipating his children in compliance with her wishes, he desired that the last will of his wife should be observed.

71The Same, Questions, Book XVII. A hundred aurei were bequeathed to Titius, in order that he might purchase a tract of land. Sextus Cæcilius thinks that Titius should not be compelled to give security, because, in any event, the entire benefit of the legacy would accrue to him. If, however, the testator intended to benefit the son of his brother, whom he had reared, and who was hardly capable of transacting business, it must be held that the heir was interested, and therefore security should be furnished that the land would be purchased, and would not afterwards be alienated. 1A hundred aurei were left to Titius, under the condition that “he would marry Mævia who is a widow.” In this instance, the legatee cannot be released from compliance with the condition, and hence he will not be excused from giving security. This opinion cannot be successfully opposed, for if anyone should promise to pay the money to Titius if he should not marry Mævia, the Prætor will refuse him an action; for it is one thing for a man to be deprived of the freedom of marriage through fear of a penalty, and another to be induced to contract matrimony under a certain condition. 2A hundred aurei were bequeathed to Titius, under the condition, “That he will not leave my monument,” or “Or that he will always reside in such-and-such a city.” It can be said that there is no ground for demanding security by which the right of liberty may be infringed. We make use of a different rule with reference to the freedman of a deceased person. 3“Let my heir give to my son-in-law Titius a hundred aurei by way of dowry for my daughter Seia.” The benefit of the legacy will belong to Seia because she begins to have a dowry; but as the testator seemed to have had in his mind not only the woman, but also Titius to whom he bequeathed a sum of money, it is proper that he himself should be understood to be the legatee, and therefore be able to claim the legacy. If the heir should pay the money through the son-in-law, after a divorce had taken place, he will also be released, as the payment was converted into the dowry. Payment can legally be made to Titius during the existence of the marriage, even if the woman should forbid this to be done, for it is to her interest that she should begin to be endowed. And if anyone should say that she herself is entitled to a right of action and can bring suit to recover the money, and does not wish it to constitute her dowry, there is no doubt that she can be barred by an exception on the ground of bad faith. If Titius or the woman should die before contracting marriage, the legacy will belong to the heir. If Titius should not be willing to marry the woman, the legacy will be valid so far as she is personally concerned, but if Titius should claim it, he can be barred by an exception on the ground of bad faith. Sabinus was of the opinion that if the woman was married to Titius, the legacy would be due without any security, as the money would become her dowry. Security for payment, however, would be necessary before marriage, because the legacy, being absolute, can be demanded. But if the husband should lose his case through his own fault, and should prove to be insolvent, ought the woman to be entitled to relief against the heir for the money which was intended as her dowry, where she was not at all to blame? As both husband and wife have rights of action in this case, the woman will retain hers if the legacy is not paid to her husband.

72The Same, Questions, Book XVIII. Where a legacy is left as follows, “I bequeath to Titia, if she does not abandon her children,” authorities deny that she can be legally required to give security, because the condition can be fulfilled even if the children should die. This opinion was not adopted, however, for an ominous interpretation of this kind should not be opposed to the desire of the mother, and compel her to give security. 1Where a patron bequeathed a certain sum of money to his freedman on condition that he would not abandon his children, the Emperor permitted a kind of Mucian bond to be given, because it would be both dangerous and distressing for a freedman who was intimately associated with the children of his patron to anticipate their death. 2Titius charged the heir whom he had appointed to deliver to another his estate at the time of his death, if security was not demanded by the beneficiary of the trust. The beneficiary cannot require a Mucian bond to be filed before releasing the heir from giving security, since the condition can be complied with during the lifetime of the party to whom the legacy was bequeathed. 3What should be done if the following clause was inserted in the will, “I wish you, after my death, to deliver my estate to So-and-So, in such a way that no bond for the execution of the trust, nor any account will be required of you?” From these words it will undoubtedly appear that the condition of giving bond will not be required, and a certain degree of indulgence may be exercised in demanding an account, that is, so far as negligence is concerned; but the heir will not be excused from presenting one where fraud has been committed. A rescript on this point was issued with reference to a certain person who had transacted the business of the testator, and by the will of the latter had not been required to render an account. 4Ad Dig. 35,1,72,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.“If Seia should marry with the approval of Titius, let my heir give her such-and-such a tract of land.” If Seia should marry during the lifetime of Titius, and he granted his consent, it should be held that she could receive the legacy; for it is the spirit of the law that nothing shall be done in any way to interfere with marriage. If, however, Titius should die during the lifetime of the testator, relief must be granted to the woman, even though the condition has failed, because, being in suspense, it would be of no force or effect. 5“I bequeath to Mævia, at her death, such-and-such a tract of land, if she should not marry.” It can be said that even if she should marry, she will immediately be entitled to the legacy. This, however, would not apply, if a certain date, or any other indefinite time, should be fixed for the payment of the legacy. 6It is more equitable to hold that a false motive should not interfere with the payment of a legacy, for the reason that the cause of bequeathing it is not included in the legacy. Generally, however, an exception on the ground of bad faith will be available, if it should be proved that the testator would not otherwise have made the bequest. 7Cassius and Cælius Sabinus say that a false condition can be classed as impossible; as, for instance, “Let Pamphilus be free if he pays Titius what I owe him,” provided nothing was due to Titius. If, however, after the execution of the will, the testator should pay him what he owed him, the condition will be understood to have failed. 8Sabinus gives it as his opinion that the false designation of a legacy does not constitute one, for example, where a testator who had left nothing to Titius inserted the following provision in his will: “Let my heir pay Seius fifty aurei out of the hundred which I have bequeathed to Titius.” Sabinus came to this conclusion after consideration of the will of the deceased who made this provision, not with the intention of making a bequest, but for the purpose of diminishing one which he thought he had already made. Seius, however, cannot obtain any greater legacy on account of the false designation than if it had actually been true.

73The Same, Questions, Book XIX. A certain tract of land was left to Titius, “If he should not go into Asia,” and, if he should go there it was left to Sempronius. As in the case of all conditions which are terminated by the death of the legatees, it was decided that a Mucian bond must be furnished, and the heir received a bond from Titius, and transferred the land to him. If he should afterwards go to Asia, suit can be brought against the heir to compel him, by a prætorian action, to pay to Sempronius what he could recover under the stipulation secured by the bond which had been given. If the bond, which had been taken with all due caution, should in the meantime become worthless, the heir will not be required to make good the amount out of his own property; but as he can in no way be blamed, it will be sufficient for him to assign his rights of action. If, however, Titius should go into Asia, and Sempronius should die before receiving the legacy, the rights of the deceased will pass to his heir.

74The Same, Questions, Book XXXII. The usufruct of certain property was bequeathed to the wife of the testator and to Titius, provided the woman did not marry. If she should marry, as long as Titius lived and remained in the same civil condition, she would be entitled to half of the usufruct, for it should be understood that, under the law, she would be entitled to as much by virtue of the legacy as she would have been if she had complied with the condition; and if Titius, with reference to whom the condition actually failed, should reject the legacy, the woman will obtain no advantage.

75The Same, Questions, Book XXXIV. An uncertain date mentioned in a will imposes a condition.

76The Same, Opinions, Book VI. Where a trust has been left to be executed by children, “If any of them should die without issue,” it will not be invalidated by the legal fiction of adoption.

77The Same, Opinions, Book VII. A grandmother who had appointed her grandson heir to a certain portion of her estate, on condition that he should be emancipated, afterwards inserted the following in a codicil, “I also devise such-and-such lands to my grandson, in addition to what I have already left him as my heir.” It was held that the condition of emancipation was repeated, although the grandmother had made no substitution either with reference to the legacies, or the estate. For indeed where a slave was bequeathed his freedom absolutely, but was appointed an heir under a certain condition, and if he should not be the heir, he was directed to receive a legacy, the Divine Pius stated in a Rescript that his grant of freedom should be considered as repeated in the legacy. 1The Mucian bond does not apply, if payment of the legacy is deferred by some other condition. 2“Let my heir pay a hundred aurei to Titius, if my wife does not marry again.” Titius was charged to pay the money to the same woman under the terms of a trust. If the woman should marry, she can demand the execution of the trust on the day when the legacy is payable; and if she is excluded from the benefit of trust, the legatee will not be entitled to security such as the Mucian bond. 3A father appointed guardians for his daughter whom he had disinherited, and directed them to begin to transact the business of their ward, if her mother should die before the girl reached the age of puberty; and he charged his wife, at her death, to pay to their common daughter a million sesterces. The guardians are not considered to have been appointed under a condition, so that, if, in the meantime, the girl should have acquired any other property, they will not be prevented from administering it. The bond to be executed for the performance of the trust was not required of the mother, and that to be exacted from the heirs to secure the payment of the legacies, or the execution of the trust, can be remitted by any indication whatsoever of the wish of the deceased. Therefore, if the condition not to demand a bond is prescribed in the case of a legacy or a trust, this fact does not render them conditional; for if any of the parties should desire a bond to be furnished, and one is not executed, the condition will not fail, for, at present, under the public law, the heir cannot be compelled to furnish a bond against his will, after it has been decided that he can be excused from giving one.

78The Same, Opinions, Book IX. Where a ward or a guardian prevents compliance with a condition which has reference to the person of the former, whether a legacy or a grant of freedom is concerned, the condition is considered by the Common Law to have been fulfilled. 1Where two conditions have been prescribed in different ways, it will not affect the legacy if one of them should fail, and the other should afterwards be fulfilled. For it makes no difference whether the conditions imposed could be performed by the party entitled to the legacy, or were dependent upon some event taking place.

79The Same, Definitions, Book I. “Let my heir pay Titius a hundred aurei at the time of the latter’s death.” The legacy is absolute for the reason that it is not dependent upon the condition, but upon delay; for a condition cannot exist under such circumstances. 1“Let my heir, when he dies, pay Titius a hundred aurei.” This legacy is bequeathed under a condition. For although it is certain that the heir will die, it is, nevertheless, uncertain whether the time for the payment of the legacy will arrive during the life of the legatee, and it is not certain that he will receive it. 2Where anyone receives a legacy after having furnished a Mucian bond, and does something contrary to the terms of the bond, and the stipulation becomes operative, he must also restore the profits of the property to the heir. In this instance the legatee should be compelled to give security from the beginning. 3Although an usufruct to take effect at the time of the death of the legatee, when bequeathed in this way is void, still, the remedy of the Mucian bond will be available where the usufruct of property is bequeathed to anyone under the condition that he will not perform some act. 4Anything which is done to evade the law by preventing marriage has no force or effect, as for example, “Let my heir pay Titius a hundred aurei if his daughter, whom he has under his control, does not marry,” or “Let my heir pay the said sum to such-and-such a son under paternal control, if his father does not marry.”

80Scævola, Questions, Book VIII. Reasons which immediately exclude the party from taking action must not be considered conditional with reference to trusts, but we can only consider those as such which cause delay with expense, where the legatee can receive his bequest after having furnished a bond. For we cannot say that the following cases are similar, namely, where property is bequeathed, “If the legatee will erect a monument,” and where it is bequeathed, “to enable him to erect a monument.”

81Paulus, Questions, Book XXI. Julius Paulus to Numphidius, Greeting. Where the following was provided by a will: “If Stichus should render his accounts, let him be free, along with his wife; and let my heir pay him ten aurei;” and Stichus should die before rendering his accounts, whether they balanced, or he owed something, you. ask if the woman would become free, and whether we should have the same understanding with reference to the legacy. Freedom being dependent upon rendering his accounts, this condition is required of the slave in order to show the good faith of his administration, as he seems to have been ordered to account for any balance, in his hands if there was any, and if there was none, both the parties will be held to be absolutely entitled to their freedom; and if the slave should die after the estate was entered upon, both having obtained their freedom, they will also be entitled to the legacy. If, however, the slave should die with a balance in his hands unaccounted for, his wife will not be considered to have obtained her freedom, which was dependent on the same condition which was not fulfilled. It may not, however, improperly be said, that while Stichus was manumitted under a certain condition, his wife was absolutely manumitted, and that the same condition did not apply to her, but was only mentioned through the necessity of designating their union. 1A condition is considered to have been complied with where the party who will be indebted if it is complied with is responsible for this not being done.

82Callistratus, Questions, Book II. Where a slave is directed to be free as follows, “Let my heir be charged with the delivery of such-and-such a tract of land to my slave, if he renders his accounts,” let us see whether the condition has reference to the grant of freedom, or to the legacy. And, indeed, if we decide that it only refers to the grant of freedom, no further consideration is necessary, for the legacy is absolute, and therefore void. If, however, the condition was imposed on the legacy, as some authorities very properly hold, it becomes legally payable at the very moment when the slave obtains his freedom. What then is the meaning of the words, “If he renders his accounts”? Certain jurists say that it signifies if he should give a statement of the balance in his hands, just as if there was no difference between the two conditions, “If he renders an account of the balance remaining in his hands,” or, “If he renders his accounts.” We, however, do not think that the condition only has reference to payment, or to some act which is to be performed, but that it includes both of these things, since if the slave should tender the balance of the money in a bag, he will not be released from liability, as this was not the intention of the testator, but he wished him to render his accounts in the way in which a slave usually does so; that is to say, that if he should first show the accounts to the heir, and then the calculations, in order that it may be ascertained whether they are correctly or incorrectly made out, and whether the receipts which have been taken correspond with the statement, or not. In this way the investigation begins with an act, and finishes with the payment of money. These words also mean that the heirs can ascertain from the examination of each item what is contained in the several accounts, for the heir is understood to have ordered the same thing to be done by his heirs which he himself would have done if he had been living. For he was certainly not accustomed to sign accounts, where his slave merely showed him the balance which was due, but he was accustomed to read them, scrutinize them, and take exception to them; therefore, where freedom is left to a slave under the condition, “If he renders his accounts,” it has not merely the signification that he will deliver to his heir all the bonds and documents relating to his administration, but that he will also pay him any balance remaining in his hands.

83Paulus, Opinions, Book XII. Lucius Titius made a will as follows, “Let Aurelius Claudius, the son of such-and-such a woman, be my heir, if he proves in court that he is my son.” Paulus gave it as his opinion that the son in question did not appear to have been appointed under any condition which it was in his power to comply with, and therefore that the will was of no force or effect.

84Ad Dig. 35,1,84Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.The Same, Opinions, Book XIV. “I wish ten denarii and their clothing to be given to such-and-such freedmen every month, for their support, if they reside with my son.” The said freedmen remained in attendance on the son until the latter, having grown up, was appointed to a command in the army, the result of which was he set out on his journey, having left some of his freedmen at Rome, and died in camp. The question arose whether support should be furnished by the heirs of the son. Paulus was of the opinion that the condition should not be considered to have failed, so far as the freedmen who continued to reside with the son of the deceased were concerned, as the son having died, it was not their fault that they did not continue to reside with him; but if the testator had desired support to be furnished to those freedmen who resided with his son for the convenience of the latter, and the freedmen demanded it contrary to the wishes of the deceased, they should not be heard.

85Scævola, Opinions, Book III. Titia, having appointed her son, who also had children, her heir, charged him to deliver all her property to his children or grandchildren, whenever they should claim it, and to do so without any legal controversy. I ask whether, by these words, “Whenever they shall claim it,” a condition appears to have been imposed upon the trust. The answer was that it does not.

86Mæcianus, Trusts, Book III. Our Julianus says that where a slave is ordered to pay ten aurei and be free, and he is manumitted during the lifetime of his owner, he will not be entitled to the legacy which was left him with his freedom, unless he complies with the condition under which it was granted. This also applies to a purchaser of the slave, if he should be sold. It, however, only applies where he could obtain the legacy unconditionally with his freedom, even though no condition was imposed on the payment of the legacy; as, for instance, where the legacy was to vest at the time when he obtained his freedom. 1Where, however, his freedom was granted under a condition, and the legacy was payable at once, the question arises whether the legacy is valid. For, in this case there is no ground for the application of the Rule of Cato, since, even if the testator should die immediately after making his will, the legacy will not be absolutely void, as the condition upon which the freedom of the slave is dependent may be complied with before the estate is entered upon, and the manumitted slave be entitled to the legacy, unless he should be appointed a necessary heir; for, in this instance, the legacy will be absolutely void by operation of law because the slave received his freedom under a condition.

87Valens, Trusts, Book I. The following rule which has been handed down, namely, that where several conditions have been imposed with reference to grants of freedom, the one which is the most easily complied with, and, in the case of legacies, the last one, shall be considered.

88Gaius, Trusts, Book I. (That is to say, the one which will be the most convenient for the slave himself to carry out.)

89Valens, Trusts, Book I. This has reference not only to provisions which are often dependent upon different conditions, but also to dispositions which are at first absolutely made, and have afterwards become conditional. Therefore, where the heir is ordered to pay something absolutely, or where the bequest is absolute, and the same property is subsequently bequeathed under a condition, the last bequest will be valid. If the property is first left under a condition and afterwards absolutely, it will be payable immediately. If, however, the legacy is bequeathed absolutely and the heir is charged or requested to pay it at once under a certain condition, it is the same as if the bequest had been made in two places, so that, if the legatee desires, he can bring suit for its recovery immediately, or it can be claimed by the heir when the condition has been fulfilled, unless the legacy has only been mentioned the second time by way of calling attention to the first, for example, “Let my heir give Stichus to the party to whom I have bequeathed him, if he does such-and-such a thing,” for, in this instance, the testator is not considered to have made this provision for the purpose of revoking the bequest, and changing it to a conditional one, and if the legatee should bring suit to recover the property before the condition was complied with, an exception on the ground of bad faith will be a bar to further proceedings.

90Gaius, Trusts, Book I. Where freedom is bequeathed to a slave several times by a trust, not the condition most easy of fulfillment but the last one should be considered, in order that the final desire of the deceased may have the preference. A Rescript of the Divine Antoninus confirms this opinion.

91Mæcianus, Trusts, Book II. The nature of conditions which have reference to the future is threefold; some relate to the time during which the testator may live, some relate to that following his decease, and some relate to both, and the date of their fulfillment may be either certain or indefinite. All these things are accustomed to be taken into consideration, not only in the case of trusts, but also with reference to the appointments of heirs, and the bequests of legacies. For instance, there is no doubt that the following condition, “I bequeath to Titia, if she should marry me,” must be complied with during the lifetime of the testator; this one, however, “If he should attend my funeral,” cannot be complied with until after his death. The following one, namely, “If she should marry my son,” can be complied with either during the lifetime, or after the death of the testator. The first and the third of the conditions mentioned refer to an indefinite time, for the condition will be complied with whenever the girl marries; but the second condition has reference to a certain time.

92Ulpianus, Trusts, Book V. Where a person to whom a legacy was bequeathed is asked to emancipate his children, should he be compelled to emancipate them? I remember that I said on this point that the children were excluded from demanding the execution of the trust; for the Prætor, acting as trustee, does not protect children who desire emancipation as he does slaves. I am aware that Papinianus also in the Ninth Book of Opinions stated that a father should not be compelled to emancipate his children. I think, however, that an extraordinary rule should be established in such cases, and that a father should be forced to emancipate his children when he has received property which was left to him with the understanding that he would emancipate them, for the intentions of testators should not be evaded. Hence this should be understood in the same way as where a legacy was bequeathed to him on condition of his emancipating his children, to enable him to emancipate them. The rule stated by the Divine Severus in a Rescript, agrees with this; for when a certain woman appointed her grandchildren her heirs, and appointed her son, their father, their co-heir, and substituted them for one another, requesting her son that he should emancipate her children, but did not ask him to transfer the estate to them, he was compelled by the authority of the Divine Severus to emancipate them, and to deliver the estate to them, and it was added that if he should delay to do this, he would be liable for interest on the amount unpaid while he was in default; for it was held that he who was in default in granting their emancipation was guilty of the same default with reference to the delivery of the property under the terms of the trust.

93Papinianus, Opinions, Book VIII. A mother having appointed her son her heir, and designated the daughters of the latter as his co-heirs, charged him to emancipate the latter, so that they might receive a curator from the Prætor. It was held that the son was charged with a trust to permit his daughter to become independent of his authority, so that they could obtain the estate of their grandmother, and that it did not make any difference if he should acquire the shares of his daughters by the right of substitution.

94Hermogenianus, Epitomes of Law, Book I. Where freedom is bequeathed to a slave on condition that he will pay ten aurei to Titius, who was not the heir, a certain person is designated, and, on this account, the condition cannot be complied with except with reference to him. It is clear that, when the day for the payment of the legacy arrives, the slave who is to be free under a condition will, according to the law which has been established, be entitled to the money dependent upon said condition, and will gain his freedom without payment to anyone. The case of a legatee is different, and the condition with reference to him is considered to have failed if Titius should die before the legatee has paid the money. 1Where a condition is expressed in the following terms, “Let So-and-So, a slave, be free, if he pays ten aurei to the heir,” or “Or if he pays ten aurei to Titius, the heir,” he will obtain his freedom if he pays the money not only to the heir, but to the heir of the latter. But if there should be no successor to the heir he will, according to the established law, obtain his freedom without payment to anyone.

95The Same, Epitomes of Law, Book IV. Where a legacy bequeathed under a condition is transferred to another, it is considered to have been transferred under the same condition, if it was not personal.

96Paulus, On Neratius, Book I. The usufruct of a slave was bequeathed to Titius, and freedom was granted to the slave when it should cease to belong to the legatee. Titius died during the lifetime of the testator. The grant of freedom was not valid, because the condition did not have a beginning. Paulus: Hence, if Titius should live, and should not be able to receive the legacy, it must be said that the same rule will apply; for anything which did not have a beginning cannot be held to have ceased to exist. 1The usufruct of a slave was bequeathed to a woman as long as she remained unmarried, and the same slave was directed to be free if she did marry. If the woman should marry the slave would become free, because a grant of freedom has more force than a legacy.

97The Same, On Neratius, Book II. A legacy was bequeathed to the citizens of a municipality on condition of their taking an oath. This condition is not an impossible one. Paulus: How then can it be complied with? The officials by whom the affairs of the town are conducted can take the oath for the citizens.

98The Same, On Neratius, Book III. My own property can be bequeathed to me under a condition, because, in bequests of this kind, not the time when the will is executed but the time when the condition is fulfilled must be considered.

99Papinianus, Questions, Book XVIII. Conditions which are not specifically stated in a will, that is to say, such as seem to have been tacitly included therein, do not render legacies conditional.

100The Same, Opinions, Book VII. A testator bequeathed two hundred aurei to Titia, if she should not marry, and a hundred to her if she should. The woman married. She can claim the two hundred aurei, but not the other hundred; for it would be absurd for her to be considered a widow and a married woman at the same time.

101The Same, Opinions, Book VIII. A father, by his will, designated Severiana Procula, his daughter, as the wife of ælius Philippus, one of her relatives. He left a certain estate to his said daughter in trust if she should marry ælius Philippus, and if she should not marry him, he wished the same estate to be given to Philippus. The girl died before arriving at a marriageable age. I gave it as my opinion that in conditions mentioned in wills the intention, rather than the words of the testator, should be considered; and hence that ælius Philippus seemed to have been made the beneficiary of a trust if Procula, the daughter of the deceased, should refuse to marry him. 1Where a trust is created as follows, “I wish you to surrender my estate, if you should die without children,” according to the intention of the testator the condition will fail if only one child should survive the beneficiary of the trust. 2The terms of a condition prescribed by a will are considered only for the purpose of ascertaining the intention of the testator, and therefore where testamentary guardians are appointed to administer the affairs of the minor until he grows up, and the condition of a trust is, “If they should administer the guardianship until he reaches his eighteenth year,” it will not be considered to have failed to be fulfilled if the guardians should cause themselves to be appointed his curators. 3A mother-in-law left a trust for the benefit of her daughter-in-law, under the condition, “That she should remain married to my son.” A divorce having been obtained without the fault of the husband after the death of the mother-in-law, I gave it as my opinion that the condition had failed, that the day for the execution of the trust did not begin before the death of either the wife or the husband, and hence that there would be no ground for the Mucian bond because the condition could be fulfilled during the life of the husband. 4Where a monthly and annual allowance was left to a freedman by a trust, under the condition, “As long as he may transact the business of the daughter of the patron,” the money must be paid, even if the daughter should forbid the freedman to transact her business; still, if she should change her mind, the trusts will be restored to their former condition, for the reason that there are several of them.

102The Same, Opinions, Book IX. A grandfather appointed his son and a grandson by another son his heirs, and requested his grandson if he should die before reaching his thirtieth year, to deliver his share of the estate to his uncle. The grandson died within the period above mentioned, leaving children. I gave it as my opinion that, on account of paternal affection, the condition of the trust failed of fulfillment, because it should be considered that less had been prescribed than had been intended.

103Paulus, Questions, Book IV. Where a legacy was bequeathed as follows, “Let such-and-such a sum be paid to Titius, after ten years, if he does not require security from my heirs,” and Titius should die before the term of ten years has elapsed, he will transmit the legacy to his heir, because the condition was complied with at the time of his death.

104The Same, Opinions, Book XIV. The beneficiary of a trust who was banished after the will was opened and was afterwards restored to the rights can demand the execution of the trust, where the condition upon which the same was dependent was fulfilled after he had recovered his position as a Roman citizen.

105Pomponius, Epistles, Book V. Where, while the condition was pending, an heir left to a third party land devised by the testator under a condition, after the condition imposed by the first will has been complied with, the ownership of the property will not be lost by the prior legatee; nor can the heir render any part of the land religious, or impose a servitude upon the same, and if he does impose a servitude, it will be extinguished when the condition is fulfilled.

106Julianus, Digest, Book XXV. When a legacy is bequeathed under the condition, “If she should not marry Titius,” it must be considered just as if it had been bequeathed after the death of Titius; and therefore the legatee will be entitled to it without furnishing the Mucian bond. The woman will have a right to the legacy, even if she should marry someone else.

107Gaius, On Events. It sometimes happens that a legacy bequeathed conditionally may be understood to be absolute; as where something is left dependent upon the same condition under which another heir was also appointed. The same rule applies where a bequest is left under the condition that the heir enters upon the estate. On the other hand, where a legacy is bequeathed absolutely, it may be held to have been conditional; as, for example, where the property bequeathed is taken away under a condition, because it is understood to have been left under an opposite condition.

108Scævola, Digest, Book XIX. A certain man left a house to all his freedmen, and added the following words, “In order that my freedmen may always reside in the said house, and that it may never pass away from persons bearing my name, and may belong to the last survivor; and, in addition to this I wish the Sosian Estate be given to my said freedmen.” The question arose whether the condition, “That it may never pass away from persons bearing my name,” was also applicable to the second bequest. The answer was that it did apply to it.

109The Same, Digest, Book XX. An heir, having been charged by the testator to accept a hundred sesterces, and surrender his share of the estate to Titia, his co-heir, died after entering upon the estate; and Titia also died before paying the hundred sesterces. The question arose whether the heir of Titia, by tendering a hundred sesterces, could, under the terms of the trust, obtain her share of the estate. The answer was that the heir could not comply with the condition. Claudius: The opinion of Scævola is stated with a great deal of ability, where the law is clear; but, still, some doubt may arise whether in the present instance a condition was not imposed.

110Pomponius, Epistles, Book IX. A slave who is to be liberated on condition of paying a certain sum of money to Titius will become free if he pays the money out of his peculium, even without the consent of the heirs; but if Titius knowingly accepts the money against the consent of the heirs, he will only be considered to hold it as the possessor, and not the owner, and the heirs, who were unwilling that it should have been paid, can deprive him of it.

111Ad Dig. 35,1,111ROHGE, Bd. 11 (1874), Nr. 49, S. 148: Umfang der Beweislast des Mandatars in Erfüllung seiner Obliegenheiten.The Same, Epistles, Book XI. A slave who is ordered to be free under the condition of rendering his accounts must show that he has been honest in all the business transacted by him, and that he has not embezzled anything of what he received, and has not included in his accounts any expenses which he did not incur. He must also pay over whatever his accounts show remains in his hands by way of balance, for he cannot become free unless he, in this way, complies with the condition under which freedom was granted to him. He will not, however, be obliged to prove that the solvency of the debtors with whom he made contracts existed at the time of the death of his master, but that when he lent them money, their credit was such as would have induced the diligent head of a family to trust them.

112The Same, Letters, Book XII. Conditions like the following, “If they should erect a monument,” if imposed upon several persons, cannot be complied with unless by all of them at the same time. 1Likewise, “If Titius should pay to Symphorus and Januarius a hundred aurei, I leave him such-and-such a tract of land.” If Symphorus dies, will the devise be extinguished? I think that it ought to be interpreted in this way, if the legatee should pay the amount during the lifetime of either of the parties. According to the most indulgent interpretation, it must be said that, if Symphorus should die without Titius being in default, he could claim half of the land which was devised, if he tendered half the money to Januarius. 2A question arose with reference to the following case: A tract of land was devised to certain persons, if they paid a specified sum of money for funeral expenses, and for transporting the body into another province; for unless both of them made the payment, neither would be entitled to the devise, as the condition could not be complied with unless by both. We, however, are accustomed to make a more liberal interpretation in cases of this kind, just as where a tract of land is devised to two persons if they pay ten aurei, and one of them pays his share, he will be entitled to his portion of the devise. 3Priscus gives it as his opinion that a slave who is to become free on condition of rendering an account, cannot do this where the testator died, or where he himself may happen to be, or where he may desire to render it; but, in the meantime, he must present himself to the person to whom he is obliged to render the account, and by all means, if the latter should be absent on business for the State. It is, however, extremely probable that another conclusion might be arrived at in a case of this kind, where the rank of the parties and the distance of the places must be taken into consideration.

113Paulus, From the Second Book of the Collection of Imperial Decisions in Matters Brought Before the Emperors; Embraced in Six Books. Where a son was charged by his father, “To deliver his estate to Titius, if he should die before he himself could administer his affairs,” and the son died after reaching the twentieth year, it was stated in a Rescript that the trust must be executed.