Julianus, Digest, Book XXXIII. “Let my heir give Stichus, who will be mine when I die.” It is evident that the testator rather intended to impose a condition, than merely to point out the slave; for the reason that if this clause was inserted merely for the purpose of designating the slave, it would have been framed as follows: “Stichus who is mine,” and not, “Who will be mine”. A condition of this kind should, however, be understood to mean only “if he shall be mine,” in order that, if he should alienate him altogether, the legacy will be extinguished; but if he should alienate him partially, only that share of the slave will be due which belonged to the testator at the time of his death.

Julianus, Digest, Book XXXIII. The obligation attaching to a legacy is not always extinguished where the property vests to the legatee on the day prescribed, but it must vest in him in such a way that he cannot be deprived of it. Let us suppose that certain property that has been left to me absolutely, has been delivered to me by the heir upon the day appointed, and that the heir was also charged to deliver the said property to another subject to a certain condition; I can undoubtedly bring an action under the terms of the will, because the circumstances are such that I shall lose the ownership of the property if the condition is fulfilled. For, if Stichus is due to me under a stipulation, and he is bequeathed to someone else under a condition, he will become mine, because of the consideration; still, if the condition is fulfilled, I will be entitled to bring an action based on the stipulation. 1If I have acquired, by prescription, some property belonging to a person who is absent on public business, and it is bequeathed to me before I have been deprived of it by a better title, and then, afterwards, I should be deprived of it in this way, I can legally bring an action under the will and compel the said property to be delivered to me. 2Where a tract of land has been bequeathed to me, and I have acquired the mere ownership of the same without the usufruct, and the vendor afterwards forfeits his civil rights, the usufruct will belong to me. If I bring an action under the will, the court will render a judgment of the amount that I have lost through litigation. 3Marcellus: The same rule will apply if I purchase a part of said land, and the said part is either bequeathed or given to me; for I have a right to bring suit for a part. 4Julianus: If the children born of Pamphila are bequeathed to me, and I have bought Pamphila, and she has a child while under my control; it cannot be held that I am entitled to said child, for a valid consideration, simply because I purchased its mother. The proof of this is, that if I should be evicted I will be entitled to an action against the vendor on the ground of purchase. 5Where a testator, having Gaius and Lucius his debtors for the same sum of money, made a bequest as follows: “Let my heir give to Sempronius what Gaius owes me, and to Mævius what Lucius owes me,” he imposes upon his heir the necessity of assigning his rights of action to one of his legatees, and the amount of the claim due from them to the other. If, however, the testator, during his lifetime, had given a receipt to Gaius, the legacy bequeathed to Sempronius and Mævius will necessarily be void. 6Where Stichus and Pamphilus were bequeathed to me by two different wills, and I have received Stichus under the terms of another will, I can bring an action under the first to recover Pamphilus; for if Stichus and Pamphilus had been bequeathed to me by one will, and I had obtained Stichus for a good consideration, I could, nevertheless, claim Pamphilus.

Julianus, Digest, Book XIII. A bequest of this kind, “Let my heir pay a hundred aurei to Titius, if Titius will furnish my heir with security that he will pay a hundred aurei to Mævius,” will be valid; just as where a legacy is bequeathed to anyone and he delivered it to another in compliance with the terms of a trust. 1The following legacy is valid for the same reason: “Let my heir pay a hundred aurei to Titius, if Titius gives him security to construct a public work of this value in the City.” 2If Sempronius should appoint Titius his heir, and direct him to transfer a tract of land belonging to his estate to Mævius, after the lapse of two years; and Titius should then charge his heir to deliver the same land at once to Mævius, and Mævius receives the price of the land from the heir of Titius, and he afterwards wishes to claim the land under the will of Sempronius; he will be barred by an exception, if he is not satisfied with the price paid for said land. 3Where a slave was bequeathed by someone in general terms, and it was the legatee’s fault that he did not receive Stichus when the heir wished to deliver him, and Stichus should die, the heir can avail himself of an exception on the ground of bad faith. 4Where a house, in whose favor another house belonging to the heir was charged with a servitude was delivered to the legatee without the servitude, I held that the latter can bring an action under the will, because he did not receive the entire legacy. And, indeed, if the legatee should receive from the heir a slave, who had become disabled, he can very properly bring an action under the will. 5Where a man, not being aware that a slave had been bequeathed to him by a will, purchases the said slave from the heir, and then, after having ascertained this, he brings an action under the will and recovers the slave, he should be released from liability to suit on account of the sale; because this proceeding is one of good faith, and hence includes an exception on the ground of fraud. If, however, the price having been paid, he should bring suit under the will, he ought to recover the slave, and he can recover the price by an action on purchase, if he is deprived of him by a better title. But if he should proceed by an action on purchase, and should then ascertain that the slave had been bequeathed to him, and bring suit under the will; the heir cannot be released unless he refunds the price, and surrenders the slave to the purchaser. 6Where a father promised a hundred aurei as dowry for his daughter, and afterwards bequeathed the same amount to her, the heir will be protected by an action on the ground of bad faith, if the son-in-law institutes proceedings on account of the promise of the deceased, and the daughter brings suit under the will; for they should agree with one another to be content with one of these actions. 7Where a bequest is made as follows: “Let my heir pay ten aurei to So-and-So, if he returns my promissory note to my heir,” a condition of this kind has the effect of releasing my heir from the debt. Wherefore, if the note is in existence, the creditor will not be understood to have complied with the condition, unless he gives the heir a receipt. If, however, the note is not in existence, he is held to have complied with the condition, if he releases the heir. It makes no difference whether the note was destroyed at the time that the will was made, or subsequently, or after the death of the testator. 8If Stichus, who belongs to Titius, is bequeathed to Titius and Mævius, Mævius will be entitled to a half interest in Stichus, for Titius is entitled to half of said slave even though he may not be allowed to receive a legacy. 9“Let my heir give to Titius, Stichus, or Pamphilus, whichever one he chooses.” If the heir should say that he wishes to give Stichus, and Stichus should die, he will be released; but if he should mention at any time which one he wishes to give, he cannot change his mind. 10A legacy was bequeathed as follows: “Let my heir transfer to Titius the Cornelian Estate and the slaves who are on said estate, and who will be mine at the time of my death.” A female slave who ordinarily remained on said estate, at the time of the testator’s death had fled, and brought forth a child. I asked whether she herself and her child are included in the legacy. I answered that the slave seems to have been bequeathed, even though she has taken to flight, and even if she was a fugitive, she is considered to have been on said estate at the time of the testator’s death. Consequently, as the child follows the condition of the mother, it is included in the legacy, just as if it had been born on the estate. 11If either Stichus or Pamphilus, whichever one of them the legatee prefers, was bequeathed to Titius, and the testator gave Pamphilus to Titius, Stichus is still subject to the obligation. 12Where a legacy was bequeathed as follows: “I do give and bequeath to Titius and Mævius each a slave,” it is established that they do not have joint rights in the same slave, just as they would not have if the bequest was in the following terms: “I give and bequeath a slave to Titius, and another slave to Mævius.” 13Where a person to whom a legacy was bequeathed, before he decides what action he will make use of to recover his legacy, dies, leaving two heirs, and both of them appear to accept the legacy at the same time, they cannot receive it unless they agree as to the course to be pursued; as for instance, where one of them wishes to bring a real, and the other a personal action. If, however, they should agree, they will be entitled to the property in common, and they should agree either voluntarily, or by the direction of the court.

Julianus, Digest, Book XXXIII. Where an heir is charged not to collect anything from a surety, and to pay to Titius what the principal owes; he ought to agree not to make a demand of the surety, and to assign to the legatee his rights of action against the principal debtor; just as when an heir is charged not to collect anything from the principal debtor, and to pay to a third party the amount that the surety owes, he must give a receipt to the principal, and will be compelled to pay to the legatee the amount fixed by the court as due from the surety.

The Same, Digest, Book XLVII. All debtors who owe property for a valid consideration are released where the property comes into the hands of creditors in some other way from which they obtain pecuniary benefit.