Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXXVI3,
Ut legatorum seu fideicommissorum servandorum causa caveatur
Liber trigesimus sextus
III.

Ut legatorum seu fideicommissorum servandorum causa caveatur

(Concerning Security Given for the Payment of Legacies or the Execution of Trusts.)

1Ulpianus libro septuagensimo nono ad edictum. Legatorum nomine satisdari oportere praetor putavit, ut, quibus testator dari fierive voluit, his diebus detur vel fiat dolumque malum afuturum stipulentur. 1Semper autem satisdare cogitur, cuiuscumque sit dignitatis vel facultatium quarumcumque heres. 2Nec sine ratione hoc praetori visum est, sicuti heres incumbit possessioni bonorum, ita legatarios quoque carere non debere bonis defuncti: sed aut satisdabitur eis aut, si satis non datur, in possessionem bonorum venire praetor voluit. 3Non solum autem omnibus legatariis satisdari oportet, sed et successoribus legatariorum satisdari debere iam constat, quamvis isti non ex iudicio defuncti, sed successionis necessitate quasi ad aes alienum admittantur. 4Sed et procuratoribus legatariorum satisdandum est eoque iure utimur. 5Plane si ei qui in potestate alicuius erit legatum sit, cavebitur ei cuius iuri subiectus est. 6Non solum autem legatorum nomine heredes cavent, sed et successores eorum. 7Is etiam, cui ex senatus consulto restituta est hereditas, nihilo minus ad cautionem compellitur. 8Nec non et qui per alios heredes existunt sive honorarii successores ad satisdationem compelluntur. 9Plane si quis omissa stipulatione litem de legato contestatus est, probandum est cessare debere stipulationem. 10Idemque in fideicommissis quoque probandum est. 11Si cui ita sit legatum vel fideicommissum relictum et si id perdidisset, rursus relictum, videamus, an satis sequentis legati sive fideicommissi petere possit. movet quaestionem, an fideicommissum hoc sive legatum debeatur et quotiens debeatur et an ipse legatarius cavere debeat se non perditurum. de his omnibus extat rescriptum divi Pii ad Iunium Mauricum tale: ‘Clodio Fructulo secundum ea, quae epistula continentur, legata sive fideicommissa ex testamento Clodii Felicis praestari debent citra necessitatem cavendi nihil ex is deminuturum se. nam quod fidei heredis ab eodem testatore commissum est, ut, si Fructulus perdidisset quod ei in testamento relictum est, rursus heres ei id restitueret, non eo pertinet, ut aut Fructulo priorum legatorum nomine satisdatio iniungenda aut onerandus sit heres in infinito, ut, quotiens is perdiderit, restituere ei tantumdem debeat, sed ut per fideicommissum posterius duplicata legata eius videantur nec amplius ad periculum heredis pertineat, si quid postea is consumpsit exsoluto ei posteriore fideicommisso’. rescripto ergo ostensum legatarium heredi non debere cavere se non perditurum. versa vice an heres de sequenti legato sive fideicommisso cavere debeat, quaeritur. et putem non oportere ei caveri, cum in suo arbitrio habeat, ne perdat id quod sibi relictum est, quamvis si quis inspexerit, quod sub condicione relictum est, dicere debeat satisdationem exigendam. 12Certe sive ex asse sive ex parte quis legatum debeat, cavere debet, sive institutus sit heres sive substitutus. 13Bellissime quaeritur, an haec stipulatio incrementum ex fructibus vel usuris sentiat. et recte placuit ex mora incrementum habituram stipulationem, ut id quod oportebit conprehendat. 14Si quis sub condicione legatum stipulatus pendente condicione decesserit, stipulatio evanescit, quia nec legatum transmittitur. huic stipulationi easdem causas et condiciones inesse sciendum est: proinde si qua sit exceptio, quae petenti legatum opponi solet, eandem ex stipulatu quoque agenti opponendam esse placet. 15Procuratori eius, qui absens esse dicitur, si stipulanti legati nomine spondeat heres, Ofilius ait ita cavere debere, si is, cuius nomine caveat, vivat, videlicet ne teneatur illo ante defuncto. 16Item quaeritur, in hanc stipulationem utrum ipsae res veniant quae legatae sunt an vero pretia earum. et est verius in hanc stipulationem res vel pretia deduci. 17Si decem quae in arca erant mihi legata sint, tibi eorum usus fructus legatus sit, si pure utrique legatum sit relictum, is cui proprietas legata est ipso iure decem vindicabit, fructuarium autem ex senatus consulto acturum et quinque usum fructum petiturum constat. sed cum decem vindicat proprietarius, per exceptionem doli repelli, qua fructuarius de restituendis quinque heredi cavit. plane si decem aureorum possessionem legatarius habeat, Marcellus ait dandam vel heredi vel fructuario utilem actionem in legatarium, si modo ei caveatur. sed si sub condicione ei decem legata sint, fructuarium interim decem oblata cautione habiturum, legatario vero, cui proprietas relicta est, interim legatorum stipulatio praestanda est. sed si omiserit stipulationem, existente condicione ad exhibendum eum posse agere Marcellus ait. sed si ignorans heres legatum decem fructuario dedit, ad exhibendum eum non teneri palam est: succurrendum tamen legatario adversus fructuarium Marcellus ait. 18Si ad fiscum portio hereditatis pervenerit, cessabit ista stipulatio, quia nec solet fiscus satisdare. 19Qui minorem partem hereditatis possidet, cum ex maiore parte heres sit, si quidem ipso iure minuatur portio hereditatis, securior erit heres: neque enim ex maiore parte ex stipulatu tenetur legatariis, quam ex qua heres est: si vero nomen quidem heredis apud eos integrum maneat, verumtamen effectu minus habeant hereditatis et caverint legatorum nomine, videntur onerari, quia ipso iure pro ea parte legata debent, pro qua heredes sint. sed enim aequissimum est non maiorem partem legatariis solvere, quam cuius habent emolumentum. hoc autem evenit, cum hereditas pro aliqua parte ex Trebelliano restituitur: nam pro rata exonerandi sunt heredes eius partis nomine, cuius emolumentum sibi ablatum est. 20Si ei, qui in alterius potestate erit, incerta die legatum fuerit, cavebitur ei, qui habet eum in potestate, non praecise, sed sub condicione ‘si, cum eius legati dies cedit, in potestate sit’. ceterum si sui iuris inveniatur, iniquum esse visum est patri cautum esse, cum alii legatum debeatur, quamquam etsi sine hac adiectione caveretur, verum tamen exceptione patrem vel dominum submoveremus, si existentis condicionis tempore non haberent eos in potestate. evenit tamen secundum hoc, ut in casum non sit de legato cautum: nam si existentis condicionis tempore sui iuris sunt, non erit cautum.

1Ulpianus, On the Edict, Book LXXIX. The Prætor has decided that security must be furnished for the payment of legacies, so that the heir may be responsible for any fraud committed against those to whom the testator desired the payment of money to be made, or some act performed for their benefit; in order that the money may be paid, or the act performed at the time prescribed. 1The heir is always compelled to give security, no matter what his rank or fortune may be. 2This rule was not established by the Prætor without good reason. For, as the heir has possession of the estate, the legatees should not be deprived of the property of the deceased, and they must either be given security, or, if this is not done, the Prætor shall authorize them to take possession of the property bequeathed. 3Security must not only be given to all the legatees, but also to their successors, as has been already decided, although the latter are admitted to take possession of the property, not on account of the will of the deceased, but because of the requirements of the succession, just as occurs in the case of a debt. 4Security must also be given to the agents of the legatees, which is our practice at present. 5It is clear that if a legacy is bequeathed to anyone who is under the control of another, security must be given to him to whose authority he is subject. 6Moreover, not only the heirs must furnish security for the payment of legacies, but their successors must do so likewise. 7He also to whom an estate has been transferred under the Decree of the Senate is compelled to give security. 8Those who become heirs through the agency of other persons, as well as prætorian heirs, are obliged to furnish security. 9It is clear that if the terms of the stipulation are not complied with, and suit is brought to recover the legacy, it must be said that the stipulation ceases to exist. 10The same rule also applies in the case of trusts, 11Where a legacy or a trust is bequeathed to anyone, with the understanding that it shall be renewed if the property is lost, let us see whether security can be required for the payment or execution of the second legacy, or trust. The question arises whether this trust or legacy is due, and how many times it is due, and whether the legatee himself should give security that he will not lose the property. There is extant a Rescript of the Divine Pius, addressed to Junius Mauritius, with reference to all these matters, which is as follows, “In accordance with the contracts of your letter, legacies or trusts should be paid or delivered to Clodius Fructulus under the will of Clodius Felix, without requiring a bond that none of said legacies or trusts will be lost by him. For, as the heir is charged by said testator that, if Fructulus should lose any of the property left to him by said will, the heir must make it up to him, this does not have the effect of requiring Fructulus to give security against the loss of the first legacies, or that the heir should be rendered liable indefinitely; so that, as often as the legatee may lose any property the former will be required to restore it, but as, by the terms of the trust, it would seem that after the legacy has been paid a second time, the heir will no longer be liable if the legatee afterwards loses any of the property, the trust having been fully executed by the last payment.” It therefore appears by this Rescript that the legatee is not required to give security to the heir against the loss of the property. On the other hand, the question arises whether the heir should give security with reference to the second legacy, or trust. I think that it is not necessary for him to do so, as it is in the power of the legatee to avoid losing what has been left to him. However, if anyone should ascertain that the second legacy was left under some condition, it must be said that security should be required. 12It is evident that where anyone is charged with the payment of a legacy, either wholly or in part, he must furnish security, whether he is an appointed or a substituted heir. 13The question is very seriously asked whether this stipulation involves the increase derived from profits or interest. It has been decided, and very properly, that the stipulation has reference to any increase which has taken place after the heir has been in default, as it includes whatever should be paid. 14Where anyone has stipulated for the payment of a legacy under a condition, and, while the condition is pending, he dies, the stipulation becomes of no effect, because the legacy is not transmitted to the heir. It must also be noted that the same circumstances and conditions are embraced in this stipulation that are involved in the legacy. Hence, if there is an exception which can be filed in opposition to the person claiming the legacy, it is established that the same exception can be pleaded against anyone bringing an action based on the stipulation. 15Ofilius says that if the heir is asked to give security with reference to the legacy by the agent of the legatee, who is alleged to be absent, he should furnish it on condition that the person for whose benefit he does so is living, so that he will not be held liable if the legatee should have previously died. 16The question also arises whether the property itself, which is bequeathed, is included in this stipulation, or whether it has reference merely to its value. The better opinion is that either the property itself, or its value, comes within the terms of the stipulation. 17If ten aurei, which were in a certain chest, are bequeathed to me, and the usufruct of the same is bequeathed to you, and each bequest is absolute, he to whom the ownership is left can claim the ten aurei by law. Still, it is settled that the usufructuary can bring an action under the Decree of the Senate and demand the usufruct of five aurei. However, if the owner should claim the entire ten, he can be barred by an exception on the ground of bad faith, after the usufructuary, having received five aurei, has given security for their return. Marcellus says it is clear that if the legatee should obtain possession of the ten aurei, an equitable action should be granted to the heir or the usufructuary, against the legatee, provided security is given to him. Where, however, the ten aurei were left under a condition, the usufructuary can, in the meantime, hold them if a bond is furnished; and the legatee to whom the ownership was bequeathed can stipulate for the payment of his legacy. But if he should fail to demand the stipulation, and the condition should be fulfilled, Marcellus says that he can bring an action for the production of the property. If, however, the heir has paid the ten aurei to the usufructuary through mistake, it is evident that he will not be required to produce the property in court, and Marcellus holds that relief should be granted to the legatee against the usufructuary. 18If a part of the estate should come into possession of the Treasury, the stipulation above mentioned will be of no force or effect, because it is not customary for the Treasury to give security. 19Where anyone is in possession of a small portion of the estate, although he may be heir to a larger share of the same, if a part of the estate is diminished by operation of law, the heir will become more secure, nor will he be liable under the stipulation for any more of the estate than that to which he is the heir. If, however, the capacity of the heir with reference to the interest of the legatees should remain unimpaired, still, in fact, he will be entitled to less of the estate and he will appear to be burdened if he has given security to indemnify the legatees, because, by operation of law, the legacies are due in proportion to the share of the estate to which he is the heir. It is perfectly just that he should not pay the legatees any more than is in proportion to the share of the estate from which he derives an income. This is also the case where an estate is proportionally transferred under the Trebellian Decree of the Senate, for the heir is released from liability to pay the legacy, so far as his share, the profit of which has been lost, is concerned. 20If a bequest should be made payable at an indefinite time to someone who is under the control of another, security shall be given to him who has control of the legatee, not absolutely but conditionally; that is, provided he is subject to his authority when the time for the payment of the legacy arrives. If, however, the legatee should be ascertained to be his own master, it would seem to be unjust that security should be given to the father, when the legacy is payable to another. And even if security has been furnished without this addition, we can, nevertheless, bar the father or the master by an exception, if they have neither the son nor the slave under their control at the time when the condition is complied with. Still, according to this, the result will be that there is an instance in which security given with reference to a legacy does not take effect, for it will be void if the person in question is his own master at the time when the condition is fulfilled.

2Papinianus libro vicensimo octavo quaestionum. Nec si forte velit pater cavere neminem amplius petiturum, compellendus erit heres legatum, quod iam filius petere potest, alii quam cui debetur exsolvere.

2Papinianus, Questions, Book XXVIII. Even if the father should be willing to give security that no one will afterwards claim the legacy, the heir cannot be compelled to pay it to anyone else than to the son who it is entitled to, and can demand the same.

3Ulpianus libro septuagensimo nono ad edictum. Sed et ipsis, qui sunt in potestate, cavendum est, quemadmodum solet caveri, si eadem res duobus sub diversis vel contrariis condicionibus relicta sit: duobus enim satisdatur, sed in utroque casu isdem personis satisdationem subituris.

3Ulpianus, On the Edict, Book LXXIX. Security must also be given to those who are under the control of another, just as it is customary for this to be done where the same property is left to two persons under different conditions, for security is given to two legatees, but in both instances the same persons become sureties.

4Idem libro quinto decimo ad edictum. Si ex causa fideicommissi sit apud aliquem hereditas nec legatorum satisdat, in possessionem adversus eum legatarius mittitur.

4The Same, On the Edict, Book XV. Where an estate is in the hands of anyone under the terms of a trust, and he does not give security for the payment of the legacies, the legatee is placed in possession of the property as against him.

5Papinianus libro vicensimo octavo quaestionum. Postquam heres ab hostibus captus est, condicio legati, cuius nomine proposita stipulatione cautum fuerat, extitit: fideiussores interim teneri negavi, quia neque ius neque persona esset, ad quam verba stipulationis derigi possint. 1Imperator Marcus Antoninus Iulio Balbo rescripsit eum, a quo res fideicommissae petebantur, cum appellasset, cavere vel, si caveat adversarius, ad adversarium transferri possessionem debere. recte placuit principi post provocationem quoque fideicommissi cautionem interponi: quod enim ante sententiam, si petitionis dies moraretur, fieri debuit, amitti post victoriam dilata petitione non oportuit. sed quare non caverat de fideicommisso qui provocaverit, si caveret adversarius, ad eum possessionem esse transferendam rescripsit, cum alia sit edicti condicio? non enim exigitur a legatario vice mutua cautum, sed vicaria custodiae gratia possessio datur et qui optinuit in possessionem per praetorem aut praesidem inducitur. sed praetor quidem in omnium rerum possessione, quae in causa hereditaria permanent omnimodo, fideicommissi servandi gratia esse permittit: princeps autem earum rerum nomine, de quibus fuerat iudicatum, mutuas admisit cautiones: sicuti, cum de bonis suis conferendis filius accepta possessione cavere non potest, quia denegamus ei actiones, defertur condicio cavendi fratribus ex forma iurisdictionis, quod ex portione fratris fuerint consecuti, cum bona propria conferre coeperit, se restituturos. sed si nec ipsi cavere possint, utiliter probatum est virum bonum ab utraque parte eligendum, apud quem ut sequestrem fructus deponantur quique utiles actiones a praetore datas exerceat. possessio autem ex rescripto supra relato non aliter ad eum, qui fideicommissum petit, transfertur, quam si caverit, tametsi maxime adversarius non per inopiam, sed per contumaciam cavere noluerit: sed si is qui vicit non possit cavere, vel res deponenda vel iurisdictio restituenda erit. 2Si dies aut condicio legati fidei commissi petitionem actionemve differre dicatur et ideo satisdatio desideretur, heres autem per calumniam postulari contendat et relictum neget, non aliter audiendus erit qui cavere postulat, quam si scripturam, qua relictum adfirmet, exhibuerit. 3Cum quaerebatur, ubi fideicommissi servandi causa caveri oporteat, imperator Titus Antoninus rescripsit, si domicilium Romae non haberet heres et omnis hereditas in provincia esset, ad satisdationem fideicommissi nomine in provinciam fideicommissarium remittendum esse. quare si heres in eum locum cavendi gratia remitti desideret, ubi domicilium habet, legatarius autem ibi caveri postulet, ubi est hereditas, non erit heres remittendus. idque imperator Titus Antoninus rescripsit. 4Quibus litteris adiectum et si bona iam distracta sunt vel testatoris permissu vel concedente legatario, pretium eorum fideicommissi servandi causa in deposito habendum.

5Papinianus, Questions, Book XXVIII. The condition of a legacy for the payment of which security had been furnished was fulfilled after the heir had been captured by the enemy. I denied that the sureties could be held liable during the meantime, for there was neither a right nor a person to whom the terms of the stipulation could be applied. 1The Emperor Marcus Antoninus stated in a Rescript addressed to Julius Balbus that a person by whom property left under a trust was claimed should give security when he took an appeal; or, if his adversary furnished security, he should be given possession of the property in dispute. It was very properly decided by the Emperor that security should be furnished, even after the appeal of the case brought under the trust. This should be done before the decision is rendered if the claimant is in default, for he should not lose his victory because of his delay. But why should the appellant not give security on account of the trust, if his adversary did so in order that he might be given possession, when the requirements of the Edict are different, was asked in a rescript? For security is not exacted of the legatee, as in the case of a loan, but vicarious possession is granted on account of safekeeping, and he who obtains the property is placed in possession of the same, either by the Prætor or the Governor. The Prætor permits possession to be taken of all the property belonging to the estate, for the sole purpose of observing the condition of the trust; the Emperor, however, does so on account of the property which is the subject of litigation, and requires securities from both parties; just as where a son, having obtained possession, cannot give security to place all his property in the bulk of the estate, and, for the reason that we refuse him any action, the condition of his furnishing security to his brothers is deferred in accordance with the rule of the Prætorian Court, as his brothers must restore anything which they may have obtained from the share of their brother, when he does bring his own property into the bulk of the estate. If, however, none of them can give security, it is established, for the purpose of convenience, that a good man shall be chosen by both sides with whom the income shall be deposited, and, as it were, sequestrated, and who can bring the equitable actions granted by the Prætor. Moreover, possession under the terms of the Rescript previously cited is only transferred to the person who claims the benefit of the trust, where he gives security; even though his adversary may refuse to give it, not through inability to do so, but through obstinacy. But when the person who is successful cannot furnish security, the property itself must be deposited, or possession be given by a decree of the Prætor. 2Where the term or the condition of a legacy or a trust is said to postpone the demand, or the action for the same, and therefore security is demanded, and the heir alleges that this is done for the purpose of annoyance, and denies that anything has been left to the parties who make the application, he who asked that security should be furnished shall not be heard, unless he produces the will by which he can prove that the legacy was bequeathed to him. 3When the question was asked where security must be given for the purpose of preserving a trust, the Emperor, Titus Antoninus, stated in a Rescript that if the heir did not have his domicile at Rome, and all the property of the estate was situated in a province, the beneficiary of the trust who demanded that security be given should be sent back to the province. Hence, if the heir should ask to be sent back to his home for the purpose of giving security, and the legatee asks that security be given where the estate is situated, the heir should not be sent back. This was also stated by the Emperor Titus Antoninus in a Rescript. 4It was added in this Rescript that, where property belonging to the estate had already been sold, either by the will of the testator or with the consent of the legatee, the price of said property should be placed upon deposit for the purpose of carrying out the provisions of the trust.

6Ulpianus libro sexto fideicommissorum. Si quando incerta summa est fideicommissi, qui cognoscit taxationem quoque fideiussores petuntur. 1Admonendi autem sumus rebus publicis remitti solere satisdationem fideicommissorum etiam si quando necessitas dandi intercedat: repromissio plane exigenda est voluntati defuncti statu iri.

6Ulpianus, Trusts, Book VI. Where an indefinite amount is mentioned in a trust, sureties shall be demanded, after the amount has been established by the decision of the magistrate who has jurisdiction of the case. 1We must also remember that in matters relating to property in which the public is interested, it is not customary for security to be required for the execution of trusts, even if sometimes a necessity should arise for giving it. It is clear, however, that a promise can be exacted that the will of the deceased shall be executed.

7Paulus libro secundo manualium. Filio vel servo sub condicione a patre dominove herede instituto legatum est. huius legati satis petere non possunt: sed pendente condicione emancipatus vel manumissus si satis petant, quaeritur, an audiendi sint, ne beneficium patris dominive ipsis onerosum sit, an sibi imputare deberent, qui dederunt eis postulandi adversus se facultatem. sed melius est per mediocritatem causam dirimere, ut cautioni tantum cum hypotheca suarum rerum committantur.

7Paulus, Manuals, Book II. Where, after a father or a master had been appointed an heir, and charged with a legacy payable to a son or a slave of the former, under a condition, neither can demand security for the preservation of the legacy. If, however, the son or the slave should be emancipated or manumitted while the condition is pending, and demands security, the question arises whether he should be heard, lest the benefit which he has received from his father or his master may be to his disadvantage, or whether the father and the master should blame themselves for having given them the power to make such a demand. The better opinion is to dispose of this point by adopting a middle course, and say that they can only be held liable for the hypothecation of their property.

8Ulpianus libro quadragensimo octavo ad Sabinum. Cum legatorum nomine satisdatum est, simul dies legatorum cessit, protinus isdem diebus etiam ex stipulatione debentur,

8Ulpianus, On Sabinus, Book XLVIII. Where security is given to pay legacies, the day of payment arrives under this stipulation as soon as the legacies begin to be due:

9Paulus libro duodecimo ad Sabinum. non tamen ut statim peti possint: deberi enim dicimus et quod die certa legatario praestari oportet, licet dies nondum venerit.

9Paulus, On Sabinus, Book XII. Not, however, to the extent that the legacies can be claimed at once, for we hold that payment should be made on a certain day, even though the time has not yet arrived.

10Pomponius libro vicensimo sexto ad Sabinum. Si a te herede legatum mihi sit sub condicione tuque, postquam adieris hereditatem, satisdederis legatorum et post mortem tuam ante aditam tuam hereditatem condicio legati extiterit, Sabinus ait fideiussores mihi teneri, quia omnimodo dari oportet legatum et in rem esset concepta stipulatio.

10Pomponius, On Sabinus, Book XXVI. If you have been appointed an heir, and have been charged with a legacy to me under a condition, and you should afterwards accept the estate and give security for the payment of the legacy, and, after your death, but before your estate has been entered upon, the condition of the legacy should be fulfilled, Sabinus says that the sureties will be liable to me, because the legacy must, by all means, be paid, even if the stipulation was general in character.

11Gaius libro tertio decimo ad edictum provinciale. Si legatariis, qui adversus me in possessionem legatorum servandorum causa missi sunt, procurator vel quis alius meo nomine caverit, perinde mihi praetor accommodat interdictum, quo iubeantur discedere legatarii possessione, ac si ego cavissem.

11Gaius, On the Provincial Edict, Book XIII. Where the legatees have been placed in possession of the property of an estate against me, on account of having given bond for the payment of the legacies, and my agent or anyone else has furnished security in my name, the Prætor can grant me an interdict on this ground, by which the legatees will be ordered to relinquish possession, just as if I myself had given security.

12Marcianus libro septimo institutionum. Licet, ut non petatur cautio, condicio testamento scripta fuerit, non videtur condicio: et ideo licet desideraverit quis caveri sibi, non videtur condicione defectus, quia postquam remitti talem cautionem iure publico placuit, nec onus cautionis sequitur nec quidem condicio intellegitur.

12Marcianus, Institutes, Book VII. Even though the condition that no security shall be required may have been inserted into the will, such a condition will not be considered valid, and therefore, if any legatee should ask that security be given him, the condition will not be considered to have failed, because, after it has been established by public law that security of this kind can be remitted, the burden of a bond is not exacted, and no condition is understood to have been imposed.

13Neratius libro septimo membranarum. Ei quoque, cui legatorum actio datur in eum, qui praetermissa institutione ab intestato possidet hereditatem, legatorum satisdatur et, nisi satisdabitur, in possessionem legatorum servandorum causa mittitur: nam haec quoque praetor perinde salva esse vult atque ea quae iure civili debentur. idem Aristoni placet.

13Neratius, Parchments, Book VII. Security may also be given for the payment of legacies to him to whom an action is granted on account of said legacies as against one who, having rejected his appointment as heir, has acquired the estate on the ground of intestacy; and, unless security is furnished, he will be placed in possession of it for the purpose of preserving the legacies, as the Prætor desires them to be secure, just as in the case of those due under the Civil Law. Aristo holds the same opinion.

14Ulpianus libro septuagensimo nono ad edictum. Haec stipulatio et in fideicommissis locum habet, sive pure fideicommissum sit relictum sive ex die certa vel incerta vel sub condicione, sive res aliqua sive hereditas sive ius aliquod relictum est. 1Divus quoque Pius rescripsit, quotiens evidens res est, ut certum sit nullo modo fideicommisso locum esse, perquam iniquum esse supervacua cautione onerari heredem.

14Ulpianus, On the Edict, Book LXXIX. This stipulation also applies to trusts, where the trust is left either absolutely or to take effect after a certain day, or under a condition, or where certain property, or the entire estate, or any right dependent thereon, is bequeathed. 1The Divine Pius also stated in a Rescript that, whenever it is clear and certain that there is no ground for the execution of the trust under any circumstances, it would be unjust for the heir to be required to furnish a bond when there is no necessity for it.

15Paulus libro septuagesimo quinto ad edictum. Etiam de praesenti legato locum habet haec satisdatio, quoniam nonnullas moras exercitio iudicii habet. 1Si et ab herede instituto legatorum satis acceperit legatarius et a Trebelliano fideicommissario, utraque quidem stipulatio committetur, sed exceptione se tuebitur heres, quia cavere non debuerit. sed si pars hereditatis restituta sit, ab utroque cavendum est. 2Etiam si ab intestato debeatur fideicommissum, locum habet haec stipulatio.

15Paulus, On the Edict, Book LXXV. This bond also applies to a legacy which is payable immediately, as judicial proceedings give rise to some delay. 1If the legatee has received security from the appointed heir for the payment of his legacy, and has been charged with a trust under the Trebellian Decree of the Senate, both stipulations will take effect; but the heir can protect himself by an exception, because he is not obliged to give security. If, however, a portion of the estate has been transferred, security must be given by each of the parties. 2This stipulation is also applicable where a trust is to be executed ab intestato.

16Gaius libro vicensimo septimo ad edictum provinciale. Si duo eiusdem nominis de legato contendant, utrisque satisdatur: nec onerari heredem, cum possit eosdem fideiussores ad utramque stipulationem adhibere, qui et ipsi non onerantur, cum futurum sit, ut uni tenerentur.

16Gaius, On the Provincial Edict, Book XXVII. Where two persons of the same name claim a legacy, security must be given to both of them, but the heir will not be unnecessarily burdened on this account, as he can make the same sureties responsible under both stipulations; and the said sureties are not unnecessarily burdened, since the result will be that they will only be liable under one obligation.

17Paulus libro quadragensimo octavo ad edictum. Si ab uno ex heredibus legatorum satis accipimus, cum ab omnibus heredibus nobis legatum esset: si pars coheredis adcrescat promissori, in totum fideiussores tenentur, si solidum legatum is coeperit debere.

17Paulus, On the Edict, Book XLVIII. If we take security from only one heir for the payment to us of a legacy which all the heirs are charged with, and the share of the said co-heir accrues to the promisor, the securities will be liable in full, if the heir should owe the entire legacy.

18Scaevola libro vicensimo nono digestorum. Quae filium legitimum relinquebat, patrem eundemque collibertum ex asse scripsit heredem fideique eius commisit, ut, quidquid ad eum ex hereditate eius pervenisset, cum moreretur, restitueret filio testatricis nepoti suo, et haec verba adiecit: ‘satis a Seio patre meo exigi veto’. quaesitum est, cum iste Seius substantiam suam dissipat et veretur pater fideicommissarii, ne inane fideicommissum constituatur, an ad satisdationem fideicommissi nomine patrem defunctae compellere possit. respondit secundum ea quae proponerentur non compellendum cavere. 1Idem quaesiit: testatricem apud maritum suum, ex quo filium reliquerat, res deposuisse non exacta cautione depositionis: an ea res patri heredi restitui debeat? an vero quoniam emolumentum totius hereditatis ad filium defunctae reverti deberet, apud maritum remaneret, apud quem dos remansisset? respondit, quod mulieris mansisset nec in dote fuisset, restituendum esse heredi. 2Tutor, qui et coheres pupilli erat, absente pupillo, cum admonuerunt eum legatarii, fideicommissi nomine in solidum ipse cavit. quaesitum est, an in pupillum adultum factum danda sit utilis actio. respondit dandam.

18Scævola, Digest, Book XXIX. A woman who left a legitimate son appointed her father heir to her entire estate, he having been manumitted at the same time as herself, and charged him, at the time of his death, to transfer to his grandson, a son of the testatrix, all of her estate which might come into her hands, and added the following words, “I forbid any security to be required of my father Seius.” As the said Seius had squandered all his property, and the father of the beneficiary of the trust was apprehensive that it would become of no effect, the question arose whether he could compel the father of the deceased to furnish security for the execution of the trust. The answer was that, according to the facts stated, he could not be compelled to give security. 1The testatrix having deposited certain property with her husband, the father of the boy to whom she made the bequest, without requiring from him a bond for the deposit, it was also asked whether the said property should be delivered to the heir who was the father of the testatrix; or whether, as the entire estate must eventually revert to the son of the deceased, the property in question should remain in the hands of the husband, who had a right to the possession of the dowry. The answer was that all the property belonging to the woman which remained and was not included in her dowry must be delivered to the heir. 2A guardian, who was also the co-heir of his ward, during the absence of the latter, and after having been notified by the legatees, himself gave security on account of the trust for the entire amount left under the same. The question arose whether a prætorian action should be granted against the ward when he grew up. The answer was that it should be granted.