Marcianus, Trusts, Book I. Where a trust was left as follows, “To anyone who may obtain my estate under the terms of my will, or through intestacy,” or, “To anyone in whom my estate may vest by any title whatsoever,” by these terms a child who may subsequently be born or come into the family, or anyone who may afterwards become a near relative of the testator, is held to be charged with the trust, as well as any woman who is not yet married, and afterwards is ascertained to be in the position in which, according to the Edict, the property of an intestate husband usually passes to his wife.

Marcianus, Trusts, Book I. Where a foreign heir has been appointed by a son, the Falcidian Law applies even to a legacy which the son has bequeathed to his father.

Marcianus, Trusts, Book I. A slave forming part of the castrense peculium of a son may be appointed heir by his father, and in this way make the son the necessary heir of his father. 1And, in a word, all matters or acts of the father which, for the time, may cause any alienation of a right belonging to the castrense peculium are prohibited, but any of these things which do not become operative immediately, but do so afterwards, are considered with reference to the time when they ordinarily take effect; so that if a son is deprived of any of his rights by his father, his act will be void, but this will not be the case if the son is already dead. 2Therefore, we deny that a father who brings an action in partition, while his son is living, cannot alienate the property; as is the case with land forming a part of the dowry. And if a partner of the son should make any agreement with the father, it will be void, just as if he had contracted with someone who had been forbidden to manage his own estate. 3A father can release from usufruct slaves who form part of the peculium castrense of his son, and he can also release land from usufruct, as well as from other servitudes imposed upon it; and he can also acquire servitudes for the land. It is true that he who is forbidden to manage his own property has this privilege. A father, however, cannot impose an usufruct or a servitude on the slaves or land constituting part of the peculium. 4If a son in good faith holds as part of his peculium property which belongs to another, the question arises whether a real action or one to compel the production of the property can be brought against his father, as in the case of other sons. The better opinion is that as this peculium is separate from the property of the father, the necessity of making a defence should not be imposed upon him. 5Nor can a father be compelled to defend an action De peculia, based on indebtedness which his son is said to have incurred on account of the peculium which he acquired in the service; and if he voluntarily submits to be sued, he should, like any other defender, give security for the entire amount involved, and not merely to the extent of the peculium. He cannot, however, bring an action in the name of his son without giving security that the latter will ratify his act.

Marcianus, Trusts, Book I. A son under paternal control is considered neither to retain, to recover, nor to acquire possession of his peculium.

Marcianus, Trusts, Book II. Where a testator expressed himself as follows, “Let my heir give So-and-So such-and-such a tract of land, and pay ten aurei to Seius in addition,” there is no doubt that Seius can claim half of the land and ten aurei under the provision of the will.

Marcianus, Trusts, Book II. Where the property of a testator, which is said to be in the sea is bequeathed, it must be delivered after it has been recovered.

Marcianus, Trusts, Book II. Property which will be in existence at some future time, as an island which may be formed in the sea or in a river, can also be bequeathed. 1A servitude can also legally be bequeathed to a slave who owns an adjoining tract of land.

Marcianus, Trusts, Book II. “Let whoever shall be my heir be required to pay, and I charge him to pay, whatever sums I mention.” Aristo says that corporeal property is also included in this provision, as, for example, lands, slaves, clothing, and silver plate; because the term “whatever” does not merely refer to money, as is evident where the legacy of a dowry and stipulations relating to a purchased estate are involved, and that the word “sums” should be understood in the same sense as in the instances above mentioned. Moreover, the intention of the deceased, which must be especially considered in the case of trusts, also depends upon this opinion; for the testator would hardly have intended his heir to only pay money when, after this preliminary statement, he added corporeal property.

Mæcianus, Trusts, Book II. The nature of conditions which have reference to the future is threefold; some relate to the time during which the testator may live, some relate to that following his decease, and some relate to both, and the date of their fulfillment may be either certain or indefinite. All these things are accustomed to be taken into consideration, not only in the case of trusts, but also with reference to the appointments of heirs, and the bequests of legacies. For instance, there is no doubt that the following condition, “I bequeath to Titia, if she should marry me,” must be complied with during the lifetime of the testator; this one, however, “If he should attend my funeral,” cannot be complied with until after his death. The following one, namely, “If she should marry my son,” can be complied with either during the lifetime, or after the death of the testator. The first and the third of the conditions mentioned refer to an indefinite time, for the condition will be complied with whenever the girl marries; but the second condition has reference to a certain time.

Mæcianus, Trusts, Book II. A grant of freedom having been made under a condition, the decision was rendered that if neither the slave nor the heir was responsible for the condition not having been complied with, the slave would be entitled to his freedom. I think that the same opinion should be given where freedom is granted under the terms of a trust to slaves belonging to an estate. 1It is not absurd to hold that this rule also applies to the slaves of the heir. 2We cannot reasonably doubt that this is also applicable to slaves whom the heir was charged to purchase; for in this instance, it would be unjust for him to be compelled to purchase them as if the condition had been fulfilled, because it might happen that the owner would refuse to comply with the condition, in order to obtain the price of a slave, and not demand him as the condition.

Marcianus, Trusts, Book II. Not only stipulations, but also any other contracts which have been made under impossible conditions are considered to be of no force or effect; as, for instance, sales or leases, where they are dependent upon impossible events, are also void; because when an agreement is made between two or more persons the intention of all of them is taken in account, and there is no doubt that they think a contract of this kind cannot be executed, if a condition is imposed which they know to be impossible.

Mæcianus, Trusts, Book II. When a debtor owing several debts pays money, Julianus very properly holds that it ought to be considered as credited on the obligation which, at the very time he paid it, he could have been compelled to satisfy in full.

Marcianus, Trusts, Book III. Or if he should appoint you his heir along with his posthumous child, or should bequeath legacies to both of you, or make you the beneficiaries of a trust;

Mæcianus, Trusts, Book III. Our Julianus says that where a slave is ordered to pay ten aurei and be free, and he is manumitted during the lifetime of his owner, he will not be entitled to the legacy which was left him with his freedom, unless he complies with the condition under which it was granted. This also applies to a purchaser of the slave, if he should be sold. It, however, only applies where he could obtain the legacy unconditionally with his freedom, even though no condition was imposed on the payment of the legacy; as, for instance, where the legacy was to vest at the time when he obtained his freedom. 1Where, however, his freedom was granted under a condition, and the legacy was payable at once, the question arises whether the legacy is valid. For, in this case there is no ground for the application of the Rule of Cato, since, even if the testator should die immediately after making his will, the legacy will not be absolutely void, as the condition upon which the freedom of the slave is dependent may be complied with before the estate is entered upon, and the manumitted slave be entitled to the legacy, unless he should be appointed a necessary heir; for, in this instance, the legacy will be absolutely void by operation of law because the slave received his freedom under a condition.

Marcianus, Trusts, Book III. It is true that, where a slave is directed to be free under the terms of a will, and is afterwards alienated by the testator, and again becomes a part of the estate before it is entered upon, he will obtain his liberty as soon as the estate is accepted.

Marcianus, Trusts, Book IV. Where a trust has been inserted into a stipulation, even though it was not due, still, because it has been promised for the purpose of complying with an obligation by a party who was aware of the facts, it is due and payable according to law.

Marcianus, Trusts, Book IV. A discussion arose as to whether the same indulgence should be granted with reference to the wills of civilians. It was established that in this instance there was a distinction, for if the parties should die during the lifetime of the testator, and he be aware of the fact, there was no necessity for anything new, but where he was not aware of it, relief must, by all means, be granted after his death.

Marcianus, Trusts, Book IV. Where a master sells a slave whom he had appointed his heir, and who himself had been charged with a trust, and he does this before he orders him to enter upon the estate, he should discharge the trust, because by obtaining the price of the slave he also obtained the value of the estate. 1Where a party is appointed heir and is requested to deliver the estate, and having relinquished his testamentary rights, obtains possession of the estate by operation of law, there is no doubt that he can be compelled to surrender the estate, and also the legacies and other property left in trust, as well as execute any grants of freedom direct, as well as indirect. Where, however, he is charged to manumit slaves belonging to others, he should redeem them, and he to whom the estate was surrendered, as well as he who surrenders it, must both share the loss.

Mareianus, Trusts, Book IV. It should be noted that, in a case of this kind, an account of the necessary travelling expenses must be required. For if the heir was appointed under the condition of paying ten aurei to Titius, he cannot be compelled to accept the estate unless the money is tendered to the person entitled to it. Moreover, the condition of health and the rank of the heir must be taken into consideration. But what if, while he was suffering from illness, he would be ordered to go to Alexandria, or take the name of the testator, a man of inferior rank?

Marcianus, Trusts, Book IV. Ad Dig. 36,1,66 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 15.If the estate of a ward, to whom money was lent without the authority of his guardian, is transferred to me under the Decree of the Senate, and I pay the creditor, I cannot recover the money. But if the heir should pay the debt after the property has been transferred, he can recover the amount, for no other reason than that the natural obligation was understood to have been transferred from him to me. On the other hand, if the estate of the person who made the loan to the ward without the authority of his guardian should be transferred to me and the ward should pay me, he cannot recover the money. If, however, he should pay the heir of the creditor, he can recover it, but he cannot do so if he paid him before the transfer of the estate had been made. 1If necessary heirs are appointed under some condition which it is easy to comply with, and which is usually observed, it must be said that they can be compelled to transfer the estate upon the application of those to whom they are charged to transfer it; because even necessary heirs are compelled to comply with the condition for the purpose of executing a trust. 2Where anyone is charged to transfer an estate, and dies before doing so, his heir can transfer it, and the rights of action pass to the beneficiary of the trust under the Trebellian Decree of the Senate. If, however, there are two heirs, and each of them is chargd to transfer the estate, the rights of action will pass to the beneficiary in proportion to the share of each of the said heirs; for if each one should transfer his share, it is certain that the rights of action will pass in proportion to the said share. If the person who is asked to transfer the estate should leave several heirs, and some of them should transfer their shares before the others, or where he to whom the estate is to be transferred leaves several heirs, and a transfer is made to one of them, he will be entitled to the rights of action in proportion to his share, under this Decree of the Senate. 3Where a patron is appointed heir to that portion of an estate to which he is legally entitled, and is asked to transfer it to the disinherited children of his deceased freedman, and he voluntarily accepts the estate, the Falcidian Law will apply; if he is compelled to accept it, the rights of action will pass entirely to the said children under this Decree of the Senate.

The Same, Trusts, Book V. Ad Dig. 36,1,67 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 11.An estate cannot legally be transferred to a slave, if his master is unwilling or not informed of the fact, but if he afterwards ratifies the transfer, it will be confirmed, and the rights of action will be acquired by the master himself, not for the reason that this transfer resembles the acquisition of the estate, and that the order of the master must precede it, but, as has already been stated, the subsequent ratification can be made just as in the case of the possession of property under the Prætorian Law. Nor does it make any difference, in the present instance, whether the master himself or his slave is charged to transfer his estate, nor is the consent nor the agency of the slave required but his consent is necessary where prætorian possession of the property is demanded, or an estate is to be accepted. Therefore, where heirs allege that they think an estate is insolvent, on the application of the master they can be compelled to enter upon and transfer it. 1Where a testator charges his heir to transfer his estate to a woman, if she does not marry, it must be held that if the heir alleges that he suspects the estate of being insolvent, he can be compelled to accept and transfer it to the woman, even if she should marry. Our Julianus adopts this view with reference to other conditions which, in like manner, cannot be fulfilled except at the termination of life. In accordance with this opinion, a bond should be furnished by those to whom the heir has been charged to transfer the estate under similar conditions, to deliver it to the persons to whom it will belong if the condition should not be complied with. 2If the Prætor, after proper investigation, should, either through mistake or partiality, order an estate to be transferred as due under a trust, it is to the interest of the community that it should be transferred, on account of the authority which invests judicial decisions. 3Where anyone is charged to transfer an estate to a ward who is not old enough to talk, and he voluntarily enters upon said estate, it can be transferred either to the slave of the ward, or to the ward himself, with the authority of his guardian; and the incapacity of the child to speak is no more an impediment to the transaction than exists in the case where a mute, who has reached the age of puberty, desires an estate to be delivered to him. If, however, the heir refuses to enter upon the estate, it is difficult to decide how the matter can be settled, because there will be no ground for the application of the Trebellian Decree of the Senate if the guardian should ask that the estate be accepted at the risk of his ward; nor can the ward ask that this be done, as he does not possess the faculty of speech. This question may be more easily solved in the case of persons who are dumb, for if they are interrogated and can hear, they can indicate by a nod that they are willing to accept the estate at their own risk, just as persons who are absent can give their consent by a messenger. However, I have no doubt that relief ought to be granted the child, and that this rule should be established on account of the resemblance between the Civil and the Prætorian Law. But if the said ward should be appointed heir, there is no doubt that he can act as such under the authority of his guardian; or, where a question arises with reference to obtaining possession of an estate under the Prætorian Law, he can claim it by his guardian; hence if appointed heir, he can be compelled by his guardian to enter upon and transfer the estate. In the same manner, a person who is dumb and destitute of understanding can be assisted by his curator. 4Where property is delivered by the heir, on my order, to the person to whom I have sold it, there is no doubt that the transfer should be considered to have been made to me as the beneficiary of the trust. The same rule will apply if, by my order, the property is delivered to anyone to whom I would be obliged to deliver it under the terms of a trust, or for any other reason; or to one to whom I intended to lend it, or give it.

Marcianus, Trusts, Book VI. Where a man of exalted rank or authority is charged to transfer an estate by a gladiator, or by a woman who lives by prostitution, he will be compelled to do so.

Marcianus, Trusts, Book VII. There is no longer any room for doubt that heirs can be appointed under the following condition, namely: “If they wish to be heirs, and if they do not wish to be, another, who seems to be acceptable, shall be substituted for them.” In this instance, it has been denied that it is necessary to disinherit a son under the contrary condition; in the first place, because this is only required when the condition is in his power, or he is the heir of his father, and its fulfillment is dependent upon some outside influence and must be awaited; second, because no matter what kind of a condition has been imposed, the son should be disinherited under the contrary condition, and in the case stated disinheritance cannot possibly take place; and certainly if it were expressed in words it would be absurd, for what other terms can be conceived which would be contrary to this condition: “If he is willing, let him be my heir”, than these: “If he is unwilling to be my heir, let him be disinherited”? It is evident to every one that such a provision is ridiculous. 1It does not seem to be foreign to the subject to add here, by way of supplement, that when heirs are appointed under the condition, “If they wish to be heirs”, they should not be permitted to reject the estate for the reason that where they are appointed under this condition they are not necessary heirs, but become such voluntarily. Nor are they entitled to the right to reject the estate under other conditions which they are able to comply with, and have fulfilled.

Marcianus, Trusts, Book VII. Our Emperor, Antoninus Pius, in order that the last wills of his soldiers might in every respect be considered valid, where an appointed heir and his substitute died suddenly before entering upon the estate, ordered that those to whom freedom and the estate had been left under a trust, by soldiers, should become free and be heirs, just as if they had received both of these bequests directly. Moreover, where slaves, by means of a trust, had acquired their freedom and an estate from a civilian, and the appointed heir and his substitute had also died suddenly, he held that this was sufficient for the confirmation of their freedom.

Marcianus, Trusts, Book VIII. Funeral expenses are always charged to the estate, and it is customary for them to take precedence of all other debts, when the estate is insolvent.

Marcianus, Trusts, Book VIII. In the application of the Falcidian Law, losses caused by the death of slaves and other animals, or by theft, robbery, fires, the ruin of houses, shipwreck, and violence of enemies, depredators and thieves, or by debtors, in fine, any loss whatsoever, must be borne by the heirs, provided that the legatees are not to blame. In like manner, the profits obtained by the heir from crops, the offspring of female slaves, and any acquisitions made by slaves (as, for instance, through stipulations, the delivery of property, legacies, or estates left to them, and other donations of every description) as well as servitudes—where lands become more valuable through being released from them—or where any rights of action, for example, those for theft, damage, injury, and others of this kind, are none of them liable to the operation of the Falcidian Law. 1Where the heir is directed either to sell or purchase a tract of land or any other kind of property for a certain price before estimating the Falcidian portion, in order to ascertain the amount of the legacy, only that sum is considered as bequeathed which either amounts to more or less than the price which the testator ordered to be paid or received for the said property. Then, from the portion which remains after the legacies have been deducted, a still further deduction will be made, since the said price is not acquired mortis causa, but after the deduction has been made, the remainder is understood to have been bequeathed. 2It should also be carefully noted that the ordinary rule, “All losses which occur after the death of the testator concern the heir alone,” is of universal application, and must be accepted without any distinction. For as even where the Falcidian Law does not apply at all, the heir will legally be compelled to bear the entire loss, so he must bear his share of it in cases where the Falcidian Law is operative. For, generally speaking, this is the rule, since losses sustained after the death of the testator cannot be deducted, in order to prevent the portion which is lost from being taken from the legacies or trusts. 3It is, however, true that no deduction can be made except with reference to such articles alone as can be weighed, counted, or measured; and where any loss happens after the death of the testator the deduction must be made from the share belonging to the legatee, dependent upon the appraised value of the estate of the deceased at the time of his death. 4With regard to property which can be positively designated, and other articles left as follows, “The money which I have in such-and-such a chest,” “The wine which I have in such-and-such casks,” “The weight of silver which I have in such-and-such a building,” and the property is lost, or becomes deteriorated without the fault of the heir, there is no doubt that either none of the legacy will be due under such circumstances, or, after the deduction of the Falcidian portion, the legatees will be entitled to a share of whatever remains, based upon an estimate of the value of the property belonging to the testator at the time of his death. 5Where property is left which is of an uncertain character, a distinction must be made; for if a testator should bequeath some articles without specifically designating them, as, for instance, where he leaves to anyone the silver plate which he may select, and all the silver plate should be lost without the heir being to blame, nothing will be due to the legatee. If, however, a certain amount of silver was absolutely bequeathed, even though all the silver of the testator should be lost, the Falcidian Law will apply, and that portion of the amount can be taken which was with the property of the estate at the time that the testator died, and any losses which may subsequently have occurred will not cause any diminution of the legacy. 6The heir will not be liable for any portion of the property bequeathed which is lost, and not even for the appraised value of the same, any more than if all the articles bequeathed had been specifically enumerated. 7In estimating the amount due to the heir under the Falcidian Law, anything which is paid to him in compliance with the conditions of the will shall not be charged against his fourth; still, it is held by Celsus and our Julianus that a charge should be made when he was directed to receive a sum of money from the beneficiary of the trust, to whom he has been ordered to deliver the estate, where the testator did not direct the beneficiary to pay the said sum under some condition; as, for instance, where the heir was directed to sell the property for a specified amount, for then he will pay the money to the heir, not for the purpose of complying with a condition, but as a price. In a similar case, it has also been asked whether the beneficiary of the trust can be compelled to pay the said sum, and take the estate, even if he is unwilling to do so, just as if he himself had been charged with a trust for the benefit of the heir. This is not probable, however, as a provision of this kind appears to have been made in favor of the beneficiary of the trust rather than against him. 8When the Falcidian Law applies, that property is not subject to contribution where the heir himself is charged with a trust for the benefit of himself, or his slave. The case, however, is different where the legacies to the slave are payable at a certain time; for when the day of his freedom arrives he will be entitled to them, and they become subject to contribution. Where, however, anyone makes a bequest to a slave without the grant of his freedom, and which, for this reason, is void, or leaves it subject to a trust, it will not be considered as liable to contribution under this law. 9Property, which it is certain cannot legally be left in trust, is not included in that liable to contribution under the Falcidian Law.

Marcianus, Trusts, Book VIII. When the heir transfers an estate, he is not obliged to furnish security against the eviction of the land, slaves, or any other property belonging to the same; but, on the other hand, the beneficiary of the trust must give security to indemnify the heir, if he should be evicted of any of the property which was sold by the latter.

The Same, Trusts, Book VIII. Payments and releases made by the heir before the estate is transferred should be ratified.

Marcianus, Trusts, Book IX. Penal actions, whether they are derived from the Civil or the Prætorian Law, with the exception of popular actions, should, none the less, be reckoned among the assets of the party entitled to them, because they become extinguished by the death of the criminal. Moreover, on the other hand, these actions do not take anything from the estate of the culprit in case of his death. But a right of action for injury sustained cannot be counted as a part of the estate of the person entitled to the same, in case of his death; because it itself is extinguished at that time, just as an usufruct, or an allowance which is payable to anyone at stated periods, for instance monthly or annually, as long as he lives. For an obligation of any kind only affords ground for the diminution of the property of a debtor, where it is transferred to his heir; nor, on the other hand, should the debtor be understood to have had that much less property during his lifetime, since, if anyone should stipulate that a sum shall begin to be due when he dies, his estate will, nevertheless, be increased, just as if he himself should promise, under the same condition, that it shall be diminished at the time of his death. 1Honorary actions, also, which are permitted by the Prætor to be brought within a certain time, increase the estate of the person entitled to bring them, at the time of his death, and decrease that of the person against whom they can be brought, if they are such as also pass to the heir. 2Julianus says that if the shares of two heirs are exhausted by legacies, and one of them has received a prætorian bond from the legatees, he will be entitled to bring an action on the stipulation, not for half, but in proportion to his share of everything acquired by them over and above the amount authorized by the Falcidian Law. For all prætorian stipulations are subject to the same interpretation, as where a stipulation has been made it is settled that the judgment shall be paid, whether the plaintiff or the defendant leaves several heirs. The action cannot be brought by all, or against all of them, but only in favor of the heirs of those who gained the suit, and against the heirs of those who lost it, and in favor of those against whom no defence was made, and against those who did not defend the suit. 3Where a legacy of a hundred aurei is left, payable in one, two, and three years, it has been decided that the Falcidian portion shall be deducted from all the payments made, and not merely from the last one. 4Where part of the legacy of twenty aurei bequeathed to Titius has been deducted under the Falcidian Law, and the legatee was requested to pay five aurei to Seius, our Vindius says that the same proportion can be deducted by the legatee from the five due to Seius as was deducted from the twenty due to Titius. This opinion is founded both on equity and reason, because, like the heir, the legatee is obliged to execute the trust, and, as he cannot, personally, profit by the Falcidian Law, the loss which he has sustained must not be borne by him, unless the testator had charged him to deliver everything that he had received under the terms of the will. 5If, however, the legatee should be requested to manumit either his own slave, or one belonging to another, he must, by all means, give him freedom. This is not contrary to what is above stated, because the favor conceded to liberty frequently gives rise to other and even more indulgent decisions.

Marcianus, Trusts, Book X. Where an heir alleges that part of an estate, or even all of it, is forfeited to the Treasury, and it should be established that he was also charged with a trust, it was decided that if the beneficiary should give security to restore the estate in case it should be evicted, he must be paid.

Marcianus, Trusts, Book X. All the heirs who deliberate with reference to an estate can be compelled to accept it, but not to transfer it immediately, on the application of anyone who desires it to be accepted at his risk; but in such a way that if, after the time of deliberation has passed, they should deem it expedient for them to accept it, they can enjoy the benefit of the will, just as if they had voluntarily entered upon the estate. But, on the other hand, if they should consider its acceptance unprofitable, they shall be released from liability by delivering it.

The Same, Trusts, Book XII. When the ownership of property is not in controversy, but the usufruct of the same is (for it may happen that the ownership is bequeathed to Titius, and the usufruct to someone else), then security to restore it should not be given to the heir, but to Titius. Sometimes, even if the heir is charged with the transfer of the usufruct, security should be given to Titius; for instance, if the usufruct, having been reserved, the ownership is left to him, and the usufruct to Seius; for, in this instance, what advantage would it be for security to be given to the heir, since no benefit will accrue to him if the usufruct should be extinguished? If, however, the usufruct, having been bequeathed to Seius, and the ownership is left to Titius in such a way that when the usufruct ceases to belong to Seius, he will be entitled to the ownership, then security must be furnished to the heir by the usufructuary, and also by the heir to Titius, because it is not certain that, if the usufruct should be extinguished, the ownership will be acquired by Titius.

Marcianus, Trusts, Book XII. There is no doubt that property can be left in trust to a municipality. If security should not be provided, we have no hesitation in saying that, according to the Edict, the citizens of the town can be placed in possession of the estate; but they themselves, if security should not be given them, cannot be placed in possession, but an extraordinary remedy will be required; that is to say, an agent who represents them can be placed in possession of the property by a decree of the Prætor.

Marcianus, Trusts, Book XII. When an instrument is ambiguous, the intention of the party who produced it should be considered.

Marcianus, Concerning Trusts, Book XIII. If a will should be opened before it was known that the testator had been killed, and then the crime should be ascertained to have been committed, I think that, where proper cause is shown, the appointed heir should be compelled to enter upon the estate which he declared was insolvent, and make restitution in accordance with the Trebellian Decree of the Senate.

Marcianus, Trusts, Book XXXII. If an heir lends property belonging to an estate, and takes pledges to secure the loan, the rights of action will not pass to the person to whom the estate is transferred, as against the property which has been pledged. There is some doubt, however, in a case where the heir, before he transferred the estate, had received a pledge under a contract made by the deceased. Still, the beneficiary of the trust will not be permitted to bring suit to recover the pledge, but he can proceed against the heir, to compel him to assign to him his right of action for its recovery. 1Where an estate is transferred under the Trebellian Decree of the Senate, the servitudes with which the lands of both the heir and the testator are mutually charged will still remain valid.

Marcianus, Trusts, Book XV. If the master is ready to alienate the slave, but is not willing to do so before he is satisfied with the price, he ought not to be compelled to liberate him, lest, if he did it, he might obtain little or nothing, if he who is asked to manumit him should prove to be insolvent. 1If the slave does not consent, neither the master nor anyone else should be permitted to proceed with the matter, because a trust of this kind is not one by which anything is acquired by the master; otherwise, the benefit of the trust would appear to accrue only to himself. This might happen if the testator wished the slave to be purchased for more than he was worth, and be manumitted, for then the master could proceed with the execution of the trust; because it would be to his interest to obtain, in addition to the true value of the slave, any excess which the testator ordered to be given him; and it is to the interest of the slave to secure his freedom. 2This will occur where the heir or the legatee is directed to purchase certain property for a special sum of money, and deliver it to another; for then both the owner of the property and the person to whom it is to be delivered can proceed to compel the execution of the trust, as both of them are interested in doing so; the owner, in order that he may obtain any excess over and above the price which the testator has ordered to be given him, and the person to whom the property was left, in order that he may acquire it.

Marcianus, Trusts, Book XV. The opinion of Gaius Cassius is not adopted, for he held that the obligation of manumitting his own slave should not be imposed upon the heir or the legatee, if the services of the slave were so necessary that he could not dispense with them; as, for instance, where he was his steward, or the teacher of children, or where he had committed an unpardonable crime. For the testator is considered to have had these slaves in his power, and the owners have the right to reject the will, but if this is not done, the wishes of the deceased should be carried out.

The Same, Trusts, Book XVI. Neither infants, insane persons, captives taken by the enemy, nor those whom religion or any honorable cause, or some calamity, or important business, or the danger of forfeiting life or reputation, or anything of this kind detains, come within the scope of the Rubrian Decree of the Senate; nor, indeed, minors who have no guardians, and even if they have any, are they or their guardians subject to its provisions, where any of the above-mentioned matters are involved. For, even if the latter designedly refrain from exerting their authority, I do not think that their wards should be deprived of the rights over their freedmen, because it is unjust that a ward should suffer wrong by the act of his guardian who, perhaps, may not be solvent, and only those are included in the Decree of the Senate who are obliged to grant freedom in accordance with the provisions of the trust. What course must then be pursued? Relief is granted to such persons by the Dasumian Decree of the Senate, under which provision is made with reference to those who are absent for some good reason, in order that no impediment may be placed in the way of freedom, and that the rights over a freedman may not be taken from those who are not guilty of fraud. 1If an absent party is defended by an attorney, he is always held to be absent for some good reason, and he will not be deprived of his rights over his freedman. 2No objection can be urged against the jurisdiction of a magistrate who has cognizance of a grant of freedom under a trust, by alleging a personal privilege, or one attaching to a municipality or a corporation, or any office held by anyone, or the civil condition of any of the parties interested.

Marcianus, Trusts, Book XVI. If the mother, after having received her child, or he who has succeeded to her place, refuses to grant it its freedom, he or she should be compelled to do so. Again, if the mother is unwilling that the child should be delivered to her, or if she should die before this is done, it may not incorrectly be said that freedom should be granted to the child by the heir.

Marcianus, Public Prosecutions, Book V. By the Julian Law relating to Public Violence, it is provided that no one can bind an accused person, or prevent him from appearing at Rome within a certain time.

Marcianus, On Public Prosecutions, Book X. A slave can be defended by an attorney appointed by his master, just as well as by his master himself.

Marcianus, On Public Prosecutions, Book XI. Slaves who have not reached the age of puberty are excepted from the operation of the Silanian Decree of the Senate. The Deputy, Trebius Germanus, however, ordered punishment to be inflicted upon a slave under the age of puberty; and this was not without reason, because the boy was very little under that age, and was sleeping at the feet of his master at the time when he was killed, and did not afterwards disclose that he had been murdered. As it was proved that he was unable to have assisted him, it was also certain that he afterwards kept silent; and it was held that boys under the age of puberty could only be excused from liability under the Decree of the Senate, where they had merely been under the same roof with their master, but where such slaves had been the principals or accomplices in the crime, and were of such an age as to understand what they were doing (even though they may not have reached the age of puberty), they should not be excused from responsibility for the murder of their master any more than for anything else.

Volusius Marcianus, On the Rhodian Law. A petition of Eudaimon of Nicomedia to the Emperor Antoninus; “Lord Emperor Antoninus, having been shipwrecked in Icaria we have been robbed by farmers of the revenue inhabiting the Cyclades Islands.” Antoninus answered Eudaimon as follows: “I am, indeed, the Lord of the World, but the Law is the Lord of the sea; and this affair must be decided by the Rhodian law adopted with reference to maritime questions, provided no enactment of ours is opposed to it.” The Divine Augustus established the same rule.