Africanus, Questions, Book II. If I take possession of a slave who is bequeathed to you, and sell him just as if he had been bequeathed to me, and he dies, then, Julianus says, that you can recover the purchase money from me as I have profited by means of your property.

Africanus, Questions, Book II. A certain individual desiring to make a son under paternal control his heir, but in such a way that none of the estate would go to his father, stated his wishes to the son. The latter, fearing to offend his father, requested the testator to appoint him his heir under the condition that he should be emancipated by his father, and gained his consent to appoint one of his friends his heir, and in this way, the friend of the son who was unknown to the testator was appointed his testamentary heir, and nothing was required of him. The question arose, if the said friend was unwilling to enter upon the estate, or if, after having entered upon it he should refuse to surrender it, whether it could be demanded of him as trustee, or whether any action could be brought against him, or whether one would lie against the father, or the son. The answer was that, even though it was evident that the appointed heir was merely a trustee, still, the estate could not be demanded of him unless it could be proved that the testator himself regarded him in that light. If, however, the friend, having been requested by the son under paternal control, agreed to enter upon the estate, and to surrender it after he became his own master, it cannot improperly be held that an action on mandate could be brought, and that such an action would not lie in favor of the father, because good faith did not require that he should be given what the testator was unwilling should come into his hands. Nor will the common action on mandate be available to the son, but a prætorian action will be; as it has been settled that one should be granted to a party who while a son under paternal control, has become surety for someone, and after becoming his own master is obliged to make payment.

Africanus, Questions, Book II. If a mother should make a will and appoint her son her heir, as soon as he arrives at the age of fourteen years, and in case he should not be her heir, appoints another for him by pupillary substitution, this will be valid. 1Where a son is appointed an heir, and his own posthumous son another, in compliance with the rule of Gallus Aquilius, and Titius is substituted for the grandson if he should not be the heir, if the son becomes his father’s heir, the opinion was given that Titius should be absolutely excluded; that is to say, even if a grandson should not be born.

Africanus, Questions, Book II. But as it was the will of the testator that the legacy should be paid out of the entire estate, it must be said that an exception on the ground of bad faith will lie for the benefit of the heirs appointed by the will, where a sum greater than they are entitled to is claimed.

Africanus, Questions, Book II. Where several heirs are charged with the payment of a bequest, which one of them is directed to pay as a preferred legacy? It is said that it is in the power of those to whom the legacy was bequeathed to choose whether they will bring suit against the heirs singly, or only against the one who was directed to pay the preferred legacy; hence the latter must give security to his co-heirs for the purpose of indemnifying them. 1Where anyone bequeaths a slave to whom he has left a legacy, without granting him his freedom, “If he should be his slave when he dies,” there is no doubt whatever that the legacy will be valid at some future time, because, on the death of the slave, the legacy which is left to him will belong to the person to whom the slave himself was bequeathed.

Africanus, Questions, Book II. Where anyone directed you to purchase certain ornaments for the use of his wife, and he then, as is customary, left his wife everything which he had provided for her use; and you, after the death of the testator and while you were not aware that he was dead, make the purchase, the woman will not be entitled to the ornaments, since the words employed have reference to the time of the testator’s death. If, however, you should make the purchase during the lifetime of the testator, but after the death of his wife, it may not improperly be held that the legacy will be void, since it cannot truly be maintained that the ornaments were provided for the use of one who is already dead. The same must be said in the case of a woman who is still living, but has been divorced, when the question is asked whether she is entitled to what has been purchased after her divorce, as it does not appear to have been provided for her use as a wife.

Africanus, Questions, Book II. The following is contained in the Second Book of Questions by Phuphidius: “If a woman should direct you to purchase pearls for her use, and you should do so after her death, but while you thought that she was still living,” Atilicinus denies that the pearls were left to a person to whom the woman made the following bequest: “I bequeath all the jewels which have been or shall be obtained for my use,” for they cannot be considered to have been obtained for her use as she was already dead at the time when the purchase was made.

Africanus, 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.

Africanus, 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.

Africanus, Questions, Book II. A freedman devised land worth forty sesterces out of his estate which was valued at eighty, and after having appointed a stranger his heir, died on the day when the devise became due. I gave it as my opinion that the patron could demand the share of the estate to which he was entitled by law; for the deceased, at the time of his death, appeared to have had an estate of more than a hundred sesterces, as it could have been sold for more than that, including the amount of the legacy. It would make no difference whether the appointed heir rejected the legacy left by the freedman, or not; for if a question should arise under the Falcidian Law, a bequest of this kind, even though it were rejected, would be charged by the legatees to the quarter of the estate due to the heir.

The Same, Questions, Book II. Where a donation mortis causa is made to a son under paternal control, and he dies during the lifetime of the donor, but his father survives, the question arises, what is the rule of law in a case of this kind? The answer was that, by the death of the son, an action to recover the property will lie; provided the donor had the intention of giving it to the son rather than to the father. Otherwise, if the agency of the son was only employed for the benefit of his father, then the death of the father must be taken into consideration. The same rule will apply where a question arises with reference to the person of a slave.