1Paulus, On Sabinus, Book II. Legacies, with which a substitute is charged, take effect from the death of the father, even though the minor be living.

2Ulpianus, On Sabinus, Book XV. Where the legacy of an usufruct, or use, or the right of habitation is bequeathed, it does not take effect until the estate is entered upon, and an action for its recovery does not pass to the heir. The same rule applies where an usufruct is bequeathed to begin at a certain time.

3The Same, Disputations, Book V. For, as these rights cannot be transferred to the heir, it will be in vain to fix a day before that, when they will begin to take effect.

4The Same, On Sabinus, Book XIX. If a bequest is made to anyone to take effect at the time of the death of the heir, the legacy is conditional, so that if the legatee should die during the lifetime of the heir, he will not transmit his right to his own heir. If, however, the bequest should be made to the legatee to take effect at the time of his own death, it is certain that the legacy will pass to his heir.

5The Same, On Sabinus, Book XX. If a legatee should die after the time when the legacy begins to take effect, he will transmit it to his own heir. 1Therefore, if a legacy is bequeathed absolutely, it begins to become operative from the day of the death of the person who bequeathed it. Where, however, legacies are bequeathed to take effect after a certain date, they begin to vest just as other absolute legacies do; unless something has been bequeathed which does not pass to the heir, for one of this kind will not become operative before the time prescribed; as for instance, where an usufruct is left to take effect after a year. We approve this opinion. 2But where a legacy is bequeathed under a condition, it does not begin to vest before the condition is complied with, provided it is in the power of the legatee to comply with it. 3Where, however, the condition is of such a nature that compliance with it is generally excused by the Prætor, it takes effect at once. 4The same rule applies to a condition which is impossible, because a legacy of this kind is considered to be bequeathed absolutely. 5Likewise, where the condition is such that the legatee is not responsible for non-compliance with it, but it is the fault of the heir, or of some other person who has been ordered to comply with the condition, the legacy will take effect, as the condition is considered to have been fulfilled; as, for instance, if I should be ordered to pay the heir ten aurei, and he refuses to accept them. Where, however, a legacy is bequeathed to me if I marry Seia, and she is unwilling to marry me, it must be said that the legacy commences to vest, because it is not my fault that I do not comply with the condition, but another is to blame for its not being fulfilled. 6A legacy shall be paid to the heir of the legatee at the same times, that is to say, in the same instalments as it is paid to the legatee himself. 7If, when a legacy commences to be due, the legatee is under the control of someone else, it will be payable to those to whose authority he is subject. Hence, if the legacy is left absolutely to a slave, and he becomes free after the day when it is payable, the legacy will belong to his master. If, however, an usufruct is bequeathed, the slave will acquire the legacy for himself, even though he should become free after the death of the testator, and before the estate has been entered upon.

6Paulus, On Sabinus, Book III. Where a legacy is bequeathed absolutely, and is taken away under a condition, it is held to have been bequeathed conditionally. 1If the effect of a legacy should be suspended for some reason which has no reference to the will, we hold that it will be transmitted to the heir, even though the legatee should die before it becomes operative. For instance, if a husband should bequeath dotal property to a stranger, and a certain sum of money to his wife in lieu of the said dotal property, and the legatee should die while the wife is deliberating as to the election of her dowry, and should choose the legacy, it has been decided that the legacy will pass to the heir. Julianus adopted this opinion, for delay rather than a condition seems to be attached to the legacy. 2Legacies which are bequeathed by codicils take effect at the same time as those left by will.

7Ulpianus, On Sabinus, Book XX. The acceptance of the estate by the heir causes the claim for the legacy to be deferred, but does not prevent it from taking effect. 1Hence, whether an heir who was appointed absolutely defers his acceptance of the estate, or, whether, if he was appointed conditionally, he is prevented from accepting it by the condition, the rights of the legatee will be protected. 2If, however, an unborn heir, or a person who is in the hands of the enemy is appointed, in like manner, the rights of the legatee will not be prejudiced, because his legacy has begun to take effect. 3For this reason we say that where a substitute has been charged with a legacy, the legacy will not be affected, if, while the appointed heir is deliberating, the legatee should die; for his rights will not be prejudiced even if the appointed heir should afterwards reject the estate, since the legatee will transmit his claim to his own heir. 4The case is the same where a substitute for a minor is charged with a legacy, for he also will transmit the legacy to his heir. 5If the substitute of a minor is charged to pay a hundred aurei to Seius, and the son should die before reaching the age of puberty; it might be a subject of discussion whether, if Seius should die during the lifetime of the minor, he would transmit the legacy to his heir, just as if the condition upon which the legacy depended had been expressed. The better opinion is that the legacy will pass to the heir. 6Sometimes the acceptance of the estate having been postponed by the heir, it causes the vesting of the legacies also to be postponed; as, for instance, where a slave is manumitted, or is left to someone, and a bequest is made to the slave on this account; for where a legacy is bequeathed to a slave, it never takes effect until the estate has been entered upon.

8The Same, On Sabinus, Book XXIV. For as the slave is not entitled to his freedom before the estate has been accepted, it seems to be perfectly just that the legacy should not take effect before that time, otherwise, it would be void if it should become operative before the slave obtained his freedom, and this would be the case where a bequest was made absolutely to the slave, and he was ordered to be free under a certain condition, and the condition is ascertained to be pending after the estate has been entered upon.

9The Same, On Sabinus, Book XXI. Where a right of habitation is bequeathed to a son under paternal control, or to a slave, I do not think that the legacy will be acquired by the master or the father, if the son of the slave should die before the estate is accepted; for, as the legacy attaches to the person, it is very properly held that it does not take effect before the estate has been entered upon.

10The Same, On Sabinus, Book XXIII. Where a legacy is bequeathed to be paid annually, it is evident that this is not one legacy, but several.

11Julianus, Digest, Book XXXVII. It makes no difference whether so many aurei are payable every year, or the sum of a thousand aurei is to be paid at the end of the first year, and a slave is to be delivered at the end of the second, and grain at the end of the third.

12Ulpianus, On Sabinus, Book XXIII. Legacies of this kind are not merely payable once, but are payable annually. 1The question arose whether such legacies were payable at the beginning, or at the end of every year. Labeo, Sabinus, Celsus, Cassius, and Julianus all were of the opinion that a legacy of this kind was payable at the beginning of every year. 2Hence Julianus says that where a legacy of this kind is bequeathed to a slave, and he becomes free after the first or second year, he will acquire the legacy. 3Celsus also says, and Julianus agrees with him, that such a legacy takes effect from the day of the death of the testator, and not from that on which the estate was accepted, and that if the estate should be entered upon after the lapse of several years, the legatee will be entitled to the legacy for all those years. 4Where, however, a legacy payable annually is bequeathed, it seems to me that the beginning of every year should be understood also in this instance; unless it is clear that the intention of the testator, in dividing the legacy into annual payments, was rather to benefit the heir than the legatee, in order that he might not be compelled to pay the entire amount at once. 5Where a sum payable annually or every year was bequeathed to provide a lodging, or instruction, the conjecture of the will of the testator in making the bequest is that it will be payable at the time when the rent of the lodging, or the price of the instruction, is due. 6In conclusion, Pomponius stated that it made no difference whether the legacy was payable every year, or annually; or every month, or monthly; or every day, or daily. I myself also adopt this opinion. Hence the same rule will apply where a certain sum of aurei payable annually is bequeathed. 7Where a slave is bequeathed in general terms, and the legatee dies before claiming the slave, he transmits the legacy to his heir. 8If a legacy is bequeathed to Titius as follows, “The slave whom Seius may select,” and Seius should die after making his choice, there is ground for the recovery of the slave who has once been acquired by the legatee.

13Pomponius, On Sabinus, Book VI. Where a legacy is bequeathed in the following terms, “I give and bequeath to So-and-So such-and-such an article, whether it has been made or not,” the legacy does not pass to the heir, unless one or the other of the conditions has been fulfilled during the lifetime of the legatee; as the reason for which a legacy is due must always precede it, and not because it is certain that one or the other of two things will take place, and that the legacy will be due under all circumstances; for where a legacy is bequeathed as follows, “Let my heir give such-and-such property when he dies,” it is certain that the legacy will be due, and still it does not pass to the successor of the legatee, if the latter should die during the lifetime of the heir.

14Ulpianus, On Sabinus, Book XXIV. Where “The usufruct of certain property, or the sum of ten aurei, whichever the legatee may select,” is bequeathed, both the time of the death of the testator and that of the acceptance of the estate must be taken into consideration; the date of the death on account of the payment of the ten aurei, and that of the acceptance of the estate because of the usufruct. For, although the legatee has the right of choice, still, the selection cannot at once take effect, as it is supposed that the testator has not yet died, or if he has died, that his estate has not yet been entered upon. 1Therefore, Julianus asks, if the legatee should die after the death of the testator, whether the legacy of the ten aurei will pass to the heir. He says, in the Thirty-seventh Book of the Digest, that the ten aurei may be considered to have been transmitted to him, because the legacy begins to vest at the time of the death of the legatee. Julianus gives the following example in support of his opinion, “Let my heir pay ten aurei to Seia; if she has a child let him convey to her such-and-such a tract of land,” for he holds that if she should die before having a child, she will transmit the ten aurei to her heir. 2If anyone should make a bequest to a son under paternal control and charge him to pay himself, the legacy will stand, and the heir will not be to blame for paying it to the son, rather than to the father; for suppose, for instance, that he had been especially directed to pay the son. It is certain that if the father brings suit to recover the legacy, he should be barred by an exception. 3If, after the legacy takes effect, the legatee should be subjected to the control of another, the legacy will be due to the person under whose authority he has passed, for everything to which he is entitled is transferred with him. If, however, the legacy was bequeathed under a condition, it will not pass, but its delivery will be deferred until the condition has been fulfilled; and it will be acquired by the person under whose control the legatee was at the time when the condition was complied with. If the legatee should be his own master at that time, he himself will acquire the legacy.

15The Same, Disputations, Book V. Where a trust is left to children, “If they should become their own masters by the death of their father,” and they become independent, not through his death, but through emancipation by him, no one can doubt that they will be entitled to the benefit of the trust, and that the legacy which would have taken effect at the death of their father will vest from the time of their emancipation.

16Julianus, Digest, Book XXXV. Where a legacy is bequeathed in the following terms, “Let my heir give Stichus, or any children born to Pamphila,” the legacy will not be payable before the day when Pamphila has a child, or at a time when it will be certain that a child will not be born to her. 1Where an usufruct is bequeathed by anyone to a slave, who was himself bequeathed by his master before the estate of the latter has been entered upon, and also before the estate of him who left the usufruct has been accepted, we think that there is no reason why the legacy should begin to take effect before the estate to which the slave who was bequeathed belonged is entered upon, as no advantage will at present accrue to the estate, and if in the meantime the slave should die, the legacy will be extinguished. Therefore, it must be held that as soon as the estate has been entered upon, the usufruct must be considered to belong to the person whose slave was bequeathed. 2If the slave to whom the usufruct was left should not himself have been bequeathed, it must be said that the usufruct will belong to the estate, because the time for it to take effect did not arrive before the estate was accepted.

17The Same, Digest, Book XXXVI. Where a legacy is left to a slave who is himself bequeathed, the legacy does not take effect at the time of the death of the testator, but at the time when the estate is entered upon; and hence the rule of law under which a legacy is not permitted to be given to a slave, even if he is manumitted, cannot be cited in opposition; for even if the testator should die immediately, the benefit of the legacy and the obligation of the law to pay the same are not concurrent in the person of the same individual. Therefore, the question under discussion is exactly the same as if a bequest had been made to a father, after his son had been appointed the heir of the testator; because it is understood that even if the father should die immediately, his son, having been emancipated, could enter upon the estate just as if he owed the legacy to his father.

18The Same, Digest, Book XXXVII. Where a legacy is bequeathed to any one as follows, “When he shall have children,” and he dies leaving his wife pregnant, it is understood that the condition was complied with at the time of his death, and the legacy will be valid, provided a posthumous child should be born.

19The Same, Digest, Book LXX. Where a legacy is bequeathed without prescribing any time, as follows, “Let my heir provide my wife with provisions for her support, and if he does not do so, let him pay her a hundred aurei,” the legacy is understood to be only one of a hundred aurei, and it can be claimed at once. The statement relative to provisions has no other effect than to release the heir from liability, if they are delivered before issue has been joined in the case. 1Where the following provision was inserted into a will, namely, “If he should not furnish my wife with provisions before the Kalends of such-and-such a month, let him pay her a hundred aurei,” it is held that the result is not that there have been two legacies created, but that a hundred aurei were bequeathed to her under a condition. Hence if the wife should die before the Kalends of the month designated, she will not leave the provisions to her heir, because they have not been bequeathed; nor will she leave him a hundred aurei, because the day for the payment of the legacy has not arrived. 2Where a legacy is bequeathed under a condition to someone who is charged with a trust for my benefit, it is just as if the legacy was bequeathed to me absolutely, and the heir was appointed under a condition. 3Where a legacy of the amount which he owes is bequeathed to a debtor it is payable immediately, and an action can at once be brought under the will to obtain a release; and if the debtor should die after the death of the testator, he will transmit his right of action to his heir. 4The same rule will apply where a legacy is left in the same manner, not to the debtor himself, but to someone else.

20Marcianus, Institutes, Book VI. Where a legacy is bequeathed for a prescribed number of years, for instance, the sum of ten aurei is left to Titius payable annually for ten years, Julianus, in the Thirteenth Book of the Digest, says that a distinction must be made; for if the legacy is bequeathed for the purpose of support, there are several distinct legacies, and if the legatee should die he will not transmit to his heir those which are payable in years to come. If, however, the testator did not bequeath the legacy in order to provide support, but divided it into several payments for the convenience of the heir, in this instance, he says that the sums payable in future years will constitute but a single bequest, and if the legatee should die within ten years, he will transmit to his heir the amounts due for the ensuing time. This opinion is correct.

21Paulus, On Vitellius, Book II. If a day is not fixed for the payment of a legacy, it will be payable at once, or it belongs immediately to the person to whom it was given. Where a term is prescribed, even though it may be a long one, provided it is certain (as, for instance, after a hundred Kalends of January), the legacy vests immediately on the death of the testator, but it cannot be collected before the time which was fixed arrives. If, however, the time is uncertain (for example, when the boy arrives at puberty, or when he marries into my family, or when he obtains the office of magistrate, or finally, when he does something which it suited the testator to insert into his will), if the time does not arrive, or the condition take place, the property will not belong to the legatee, nor can the legacy take effect. 1Where a bequest is made to Titius subject to the same condition under which I have appointed you my heir, Pomponius thinks that the legacy will begin to take effect just as if it had been left absolutely, as it is certain that it will be payable whenever there is an heir; for a legacy does not become uncertain on account of a condition that there shall be an heir, since a bequest of this kind does not differ greatly from one dependent upon the following condition, “Let payment be made to him, if he should become my heir.”

22Pomponius, On Quintus Mucius, Book V. If a legacy should be made to Titius, payable when he reaches the age of fourteen years, and he dies before attaining his fourteenth year, it is true that the legacy will not pass to his heir, as it includes not only the time but also the condition under which it will take effect; that is to say, when the legatee reaches the age of fourteen years. Moreover, anyone who is not in existence cannot be understood to be fourteen years old. Nor does it make any difference whether the following clause, “If he should reach the age of fourteen years,” is inserted; as, in the first instance, the time is indicated by the condition, and in the second, the condition is indicated by the time, since the same condition applies to both. 1Again, some conditions are superfluous, as for example, if a testator should say, “Let Titius be my heir, and if he enters upon my estate, let him pay ten aurei to Mævius.” This condition is considered not to have been written, as the legacy will pass to the heir of Mævius, even if the latter should die before the estate was accepted. The rule will be the same where it is written, “If Titius enters upon my estate, let him pay Mævius ten aurei within a hundred days.” For this legacy was payable within a certain time, and not under a condition, and the rule of Labeo, who says that a legacy will pass to the heir of the legatee when it is certain that it will be payable if the estate is entered upon, should be adopted. 2Still, if I appoint two heirs, and charge both of them with a trust for the benefit of someone, if either should accept the estate, this condition will not be considered superfluous, but will be valid so far as the share of the co-heir is concerned; but it will be void with reference to the person to whom the condition relates, just as if the legacy had been bequeathed in the same way after the appointment of a single heir.

23Ulpianus, On the Lex Julia et Papia, Book IV. Where a legacy is bequeathed payable every year, it is said that there is no doubt that the condition of the legatee should be investigated every year, to determine whether he is capable of receiving it; and if he is a slave belonging to several masters, the condition of the different masters must be investigated.

24Paulus, On the Lex Julia et Papia, Book VI. Ad Dig. 36,2,24 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 3.Where an heir is charged with the delivery of provisions or land, and, if he should not deliver them, is required to pay ten aurei; and I have ascertained that the provisions which were the subject of the legacy have been changed into the sum of ten aurei, and if the heir refuses to deliver the provisions, the money will then be payable; and if, when notified to deliver the land, the heir does not do so, and, in the meantime he should die, his heir will not be entitled to anything but the land. For when anyone says, “Let my heir Publicius transfer such-and-such a tract of land,” the legacy is complete, and if he should add, “If he does not transfer it, let him pay a hundred aurei,” the legatee seems to have been deprived of the devise of the land on condition that the hundred aurei will begin to be due; and if the condition should not be fulfilled during the lifetime of the legatee, for instance, because no demand was made upon the heir, the result will be that the deprivation of the legacy will be of no force or effect, and the devise of the land will remain. 1When a bequest is made as follows, “If my heir should not furnish the provisions, let him pay ten aurei,” we hold that it is clear that no provisions have been bequeathed.

25Papinianus, Questions, Book XVIII. Where such-and-such an article, or such-and-such a piece of property is bequeathed, the enumeration of the different articles included in a disjunctive clause does not constitute several legacies. Nor can a different opinion be held if the testator should devise one tract of land absolutely, and another conditionally; for while the condition is pending, no choice can be made, and if the devisee should die, the devise will not be considered to have passed to his heir. 1“Let my heir pay Titius what Seius owes me.” If the ward, Seius, had borrowed a sum of money without the authority of his guardian, and did not become more wealthy on this account, and the testator had reference to this debt, as the ward did not owe him anything, the legacy will have no force or effect. If, however, the testator by the term “debt” had reference to the natural obligation incurred and to future payment, Titius can claim nothing; as the condition was tacitly imposed, and it is just the same as if the testator had said, “Let my heir pay Titius whatever the ward may pay,” or, if he should bequeath any children who may be born to the slave Arathusa, or any crops which may be obtained from the said tract of land. If, in the meantime, the legatee should die, and the female slave should afterwards have a child, or crops should be gathered, or the ward should pay the money which was due, the heir of the legatee will be entitled to assert his claim; and this is not contrary to what has been already stated, for a legacy vests where a condition is not imposed, even though this is due to some external cause.

26The Same, Opinions, Book IX. “I desire fifty aurei out of the income of my lands collected during the year after my death to be paid to my brother, Firmius Heliodbrus.” It was my opinion that the legacy was subject to no condition, but that the time of the payment of the money seemed to have been prolonged; and if the income of the land for the present year should be insufficient to make up the sum bequeathed, recourse must be had to the income of the following year. 1A testator desired a hundred aurei to be paid by his heirs to his foster-child, and that the said sum of money should be paid to a third party, so that the foster-child might receive the interest on the same at the rate of four per cent per annum, until he reached his twenty-fifth year; and then that he should be paid the principal. The said child having died before reaching his twenty-fifth year, I gave it as my opinion that the benefit of the trust was transmitted to his heir. For no condition seemed to be attached to the payment of the principal, except that it should be made when the beneficiary reached a certain age; and as the heir could not demand the execution of the trust from the third party aforesaid, with whom the testator desired the money to be deposited, because, on account of the following provision, “You will, without fail, pay the said sum of money to my foster-child, after he reaches the age above mentioned,” the execution of the trust must be demanded of the heirs of the testator, who ought to stipulate for the payment of the money; as a person in whom the deceased reposed confidence cannot be required to furnish sureties by the heir of the beneficiary. 2A father charged his wife, to whom he had bequeathed certain property, to pay to his son until he reached the age of twenty-five years a certain sum of money annually out of the income of said property, which was to form part of the estate of his son, in addition to the support of the latter which has been provided for. It appeared that there were not several trusts in this case, but one trust divided into several payments, and therefore the son, having died before reaching the aforesaid age, transmitted the trust for the remaining time to his heir; but the latter could not demand the payment of the money at the beginning of every year, because the father intended it should be paid to the son out of the income of the property given to the wife. Moreover, if the father intended the money, which was payable annually, to be used for the support of the son, there is no doubt that, after the death of the latter, the reason for paying it no longer existed.

27Scævola, Opinions, Book III. A testator appointed a son under paternal authority the unconditional heir to a portion of his estate, charged him with a trust, and inserted the following provision into his will, “For the reason that I have appointed Lucius Titius my heir, I wish him to enter upon my estate, if he should be released from the control of his father.” After the estate had been accepted by his co-heirs, the question arose whether the legacy left to the son would take effect. The answer was that if it was left without any condition, the execution of the trust could be demanded of the co-heirs of the son, in proportion to their respective shares in the estate. 1A testator left ten denarii payable monthly to certain slaves whom he manumitted. As the heirs were absent, and the slaves obtained their freedom under the Decree of the Senate, the question arose from what time the payment of legacies for their support should be made. The answer was that, according to the facts stated, these legacies should be paid to them from the time when they began to be free.

28The Same, Opinions, Book IV. When a tract of land, with all its equipment, is devised, the question arises in what way it should be delivered, whether in the condition it was at the time of the death of the testator, or at the time when the codicil was made, or at the time when it was claimed. The answer was that the land with its equipment should be delivered at the time when the legacy vested.

29Valens, Trusts, Book I. “I charge my heir to pay to Titius ten aurei at some time or other.” There is no doubt that the heir owes ten aurei, but it is uncertain when he owes them. It seems that the legacy will take effect, and can be demanded of the heir as soon as he is able to pay it.

30Labeo, Epitomes of the Last Works of Javolenus, Book III. Where a legacy is bequeathed to a female ward, to take effect when she marries, and she should marry before being nubile, she will not be entitled to the legacy before she reaches the marriageable age; because a girl cannot be considered to be married when she is incapable of cohabitation.

31Ad Dig. 36,2,31Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Scævola, Digest, Book XIV. A certain man having appointed his wife heir to a sixth part of his estate appointed a substitute for her, and charged his heirs by a trust, if his wife should not be his heir, to give her her dowry and certain other property; and the husband having died, the wife died also before the condition was complied with, and before she had entered upon the estate. The question arose whether the trust took effect at the time of her death, and whether her heirs were entitled to the benefit of it. I answered that if the wife died before entering upon the estate, they were entitled to the benefit of the trust from the time of her death.