Julianus, Digest, Book XXXII. Where an heir has been charged to deliver a tract of land under a condition, and while the condition is pending leaves it to a third party under another condition, and then the condition prescribed by the former will is fulfilled, and afterwards the condition under which the heir bequeathed said property is complied with; the ownership of the same is not lost by the first legatee. 1Where property is bequeathed to a slave owned in common by two masters, one of them can accept the legacy, and the other can reject it; for, in this instance, a slave owned in common occupies the place of two separate and distinct slaves. 2“I give and bequeath Stichus to Sempronius; if Sempronius does not manumit Stichus within a year, I give and bequeath the said Stichus to Titius.” The question arose, what effect did this have in law? I answered that, in the meantime, Sempronius would be entitled to the entire slave, and if he should manumit him within a year, the slave will become free, but if he does not do this, the entire slave will belong to Titius. 3Where a testator devises a tract of land, with the exception of the building, by the term “building” is understood either the edifice or the soil upon which it was erected in addition. If he excepts only the building itself, the entire tract of land can, nevertheless, be claimed by the terms of the legacy; but if the heir files an exception on the ground of bad faith, he can obtain permission to live in the house as well as acquire a right of way through the land to obtain access to it. Where, however, the ground was excepted, the land with the exception of the house can be claimed, and a servitude will, by operation of law, attach to it for the benefit of the house; just as where an owner bequeaths one of two tracts of land and subjects the other to a servitude in its favor. The probability is, however, that in a case of this kind, the testator had also in view the ground on which the house was built, and without which it could not stand. 4If a freedman should appoint his patron heir to seven-twelfths of his estate, and other persons heirs to the remainder, and make his bequest as follows: “I charge whoever of the above-mentioned persons will be my heirs, along with my patron, to deliver such-and-such slaves to Titius, which slaves I think to be worth twenty aurei apiece;” it must be understood that the co-heir of the patron is the only one charged with the legacy, and therefore that Titius can only claim five-twelfths of the slaves. But the following addition: “Whom I think to be worth twenty aurei apiece,” does not change the condition of the bequest, if allowance be made for the proportion due under the Falcidian Law, for in order that this may be done, the true value of the slaves must, nevertheless, be deducted, when they are appraised. 5“I give and bequeath a tract of land to Titius, if he pays ten aurei to my heir.” If my heir owes Titius ten aurei, and Titius gives him a receipt for the amount, he can claim the land. 6If Titius, to whom Stichus was bequeathed, should die before he learned that the legacy belonged to him, and should bequeath the same slave to Seius, and the heir of Titius does not reject the legacy, Seius can claim Stichus as his property. If the head of a household should charge his minor son with the delivery of a tract of land, which he left to Titius, and should charge a substitute in the same manner for the same person, and the minor should become the heir of his father, whether Titius claims the legacy or rejects it, he cannot demand anything from the substitute, even though the son should die before reaching puberty; for when a legacy is bequeathed a second time, and the substitute is charged therewith, it should be considered that the legacy is only repeated. 7Wherefore, if the son was absolutely, and the substitute conditionally, charged with the legacy, the case will be the same as if the son alone was charged with it. And, on the other hand, if the son was charged with it conditionally, and the substitute absolutely, and the minor should die before the condition was fulfilled, the legacy will be valid solely by virtue of the substitution. 8A bequest made as follows: “I give and bequeath a tract of land to Lucius and Titius, or to one of them,” is valid, and if both of them live, it will be due to both, but if only one lives, he will be entitled to it. 9Where a slave who is to be free under a condition is bequeathed under another condition, and while the condition of the bequest is pending, the other condition upon which his liberty is dependent fails to be carried out, the legacy is valid; for, as a conditional grant of freedom annuls the legacy if the condition is fulfilled; so also the legacy cannot be annulled before the time when it is to take effect shall have arrived. 10Where a minor son is charged with the legacy of a slave, and his substitute is directed to set him free, and the minor arrives at puberty, the slave can be claimed by the party to whom he was bequeathed. If, however, the minor should die, the slave will obtain his freedom. There would be much more reason for this to be observed, if the slave had been bequeathed conditionally in charge of the minor, and, while the condition was pending the son should die before reaching the age of puberty.

Julianus, Digest, Book XXXII. Where a bequest is made as follows, “I give and bequeath Stichus to Titius, if he does not select Pamphilus,” it is the same as if the bequest had been, “I do give and bequeath to Titius, either Stichus or Pamphilus, whichever one of them he may select.” 1If Stichus was ordered to be free under a condition, and I was left the choice of a slave, or one was bequeathed to me in general terms, the question arose, what would be the law? I said that it would be more convenient to decide that he who grants freedom to Stichus under some condition, and then bequeaths the choice of slaves, did not have Stichus in his mind at the time; just as it is established that he did not have him in view on whom he bestowed freedom without delay. In accordance with this, if I should choose or select Stichus, my act will be void, and I will still be entitled to make my selection from the others. 2In the same case, when I have been left the choice of slaves, and before I have made my selection the condition on which the freedom of a slave depended fails, the question arises, can I select Stichus? I think that the opinion of Mucianus should be adopted, by which it is held that freedom itself, and not the mere grant of it which has been resolved upon, annuls a legacy. Hence, if the condition upon which the grant of freedom depended should fail either during the lifetime of the testator, or after his death, and before the estate was entered upon, the legacy will be valid; for freedom which is granted absolutely, as well as where it is left under a condition, takes effect at the time when the estate is entered upon, and therefore I can select Stichus.

Julianus, Digest, Book XXXII. Therefore, if he to whom the legacy was transferred should die during the lifetime of the testator, it will, nevertheless, not belong to the person who was previously deprived of it.

Julianus, Digest, Book XXXIII. “I give and bequeath Stichus to Sempronius; if Sempronius should not manumit Stichus within a year, let the said Stichus be free.” The question arose, what is the rule in this case? The answer was that where freedom is granted as follows, namely, “If Sempronius should not manumit Stichus, let Stichus be free,” and Sempronius does not manumit him, he will have no right to Stichus, but he will be free.