The Same, Digest, Book XXI. Lucius Titius bequeathed to Publius Mævius, by his will, an office which he held in the army, or the money which could be derived from the sale of the same, together with all the privileges attaching thereto. Lucius Titius, however, having survived his will, sold the office and collected the price, and gave it to him to whom he had intended to leave by his will the said office, or the price received for the same. After the death of Lucius Titius, Publius Mævius brought suit against the heirs of Lucius Titius to recover either the office or the money. Celsus: I think that the price received for the office should not be paid unless the legatee can show that the testator, after having paid it once, intended that he should receive it a second time. But if the testator, while living, gave to the legatee, not the entire price of the office but only that of a portion of the same, the remainder can be collected, unless the heir can show that the testator intended, by doing this, to annul the legacy; for the burden of proving that the deceased changed his mind rests upon him who refuses to discharge the trust.

Celsus, Digest, Book XXI. Where a man who left four hundred aurei bequeathed three hundred to Titius, and charged his heir to transfer the estate to you, and the heir, who suspected the estate of being insolvent, entered upon it by order of the Prætor and transferred it, the question arose, what do you owe to the legatee? It must be held that, as the presumption is that the testator intended the trust to be transferred burdened with the legacies, you ought to pay the entire three hundred aurei to Titius; for the heir should be understood to have been requested to appoint you in his stead and to pay you the balance, and, after having performed all his duties with reference to the estate, that is to say, after he had paid the legacies, he would have been entitled to what was left if he had not been charged to transfer the estate to you. How much then would he have left? A hundred aurei, certainly. These are what he was charged to pay you, and therefore, in order to calculate the portion due under the Falcidian Law, as the heir was charged to pay three hundred aurei to Titius, and a hundred to you, the result will be that if he should enter upon the estate voluntarily, he must pay two hundred and twenty-five to Titius and seventy-five to you. Hence Titius will not be entitled to any more than if the heir had entered upon the estate without having been compelled to do so by the Prætor.