The Same, On the Edict of the Prætor Concerning Legacies. Ad Dig. 30,69 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 17.It is accepted that a legacy can be bequeathed to a slave who has himself been disposed of by will; because at the moment the estate is entered upon the slave is acquired by the legatee, and then the legacy follows him. 1Where an heir alienates a slave under a certain condition, and the condition is afterwards fulfilled, he can, nevertheless, be demanded by the legatee, and the legacy is not extinguished. 2If a testator should direct some of his heirs to pay a debt, his creditors will not be entitled to an action against them, but they can proceed against the remaining co-heirs, as it is to their interest that this should be done. In this instance, not only another party than the one to whom the testator ordered property to be given will be entitled to an action, but others besides; as, for example, if he should direct a dowry to be given to his son-in-law, or to the man betrothed to his daughter, in her name. For neither the son-in-law nor the betrothed will be entitled to an action, but the girl will be, as she has the greatest interest in the matter. 3Where a tract of land which was devised is charged with a servitude, it must be delivered in the condition in which it is. But if it is devised as follows, “In the best possible condition,” it must be delivered free from all servitudes. 4Where a slave who was engaged in transacting the business of the testator is bequeathed, he should not be delivered before he renders his accounts; and if judicial proceedings are instituted to compel his delivery, the court shall also take his accounts into consideration. 5Where there is some doubt whether the property left is in existence, for example, if it should be uncertain whether a slave who has been bequeathed is living, it has been decided that a testamentary action can be brought, and it is the duty of the judge to compel the heir to furnish a bond by which he agrees to search for the property, and if he finds it, deliver it to the legatee.

Gaius, Concerning Legacies under the Prætorian Edict, Book II. Although it is established that property which the heir is ordered to deliver, and which has been pledged or publicly hypothecated, must be released, still, where a husband has received property of this kind by way of dowry, and bequeaths it, his heir will not be compelled to release it, unless the testator specially desired this to be done.

The 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.

Gaius, Concerning Legacies; On the Urban Edict. If the choice of a slave is given by the testator, or the slave is bequeathed without mentioning any particular one, the heir cannot annul or diminish the right of selection belonging to the legatee by manumitting some of the slaves, or all of them. For where the option or choice of a slave is granted, each slave is held to have been bequeathed under a condition.