Julianus, Digest, Book XI. Note by Marcellus. Sometimes, also, the action for property employed in the affairs of another can be brought against one joint-owner; for the reason that such employment of property has taken place, and he, having been sued, can recover from his partner the amount for which judgment has been rendered against him. What shall we say, however, if the slave has been deprived of the peculium by one of the owners? Paulus says that this question only arises where an action on the peculium does not lie.

Julianus, Digest, Book XII. What then would be the case where the peculium of a common slave belongs to one of his masters alone? In the first place, if any one sells a half share in a slave, and grants him no peculium, and then, if any one gives money or property of any description to a slave owned in common, in such a way as to retain the ownership of said property, but to grant the slave the management of the same; Marcellus says in a note that this is an instance where one owner has taken away the peculium, or where an owner has actually granted one, but the grant is applicable to the obligations of his debtors.

The Same, Digest, Book XIII. If anyone should manumit a slave, after he had sold him together with his peculium, he will be liable not only for the peculium which the slave had at the time when he was manumitted, but also for what he acquired afterwards; and he must, in addition, furnish security to restore anything which might come into his hands from the estate of the freedman. Marcellus says in a note that the vendor is compelled, in an action on sale, to deliver whatever the purchaser would have obtained if the slave had not been manumitted. Therefore, nothing is included which he would have acquired if the slave had not been manumitted.

Julianus, Digest, Book XVI. If a father should promise a dowry for his daughter, and emancipates her before the marriage takes place, he will not be released from his promise; for even if the father should die before the celebration of the marriage, his heirs will still remain liable on account of his promise. 1Where a woman has a son under paternal control as her debtor, and she promises a dowry to his father as follows: “What you owe me, or what your son owes me, shall be yours as my dowry,” she is not bound; but the result will be that anything that she can recover from the father in an action De Peculio will be included in her dowry. Marcellus says that if, after this, she wishes to bring an action either against the son or the father, she will be barred by an exception on the ground of a contract entered into; but if she should bring an action on dowry, she can recover whatever was found to be in the peculium when the dowry was promised, and if it was promised after the marriage took place, the appraisement of the peculium must be made at the time that the nuptials were celebrated.

Julianus, Digest, Book XVII. If I give property belonging to another as a donation mortis causa, and it should afterwards be acquired by usucaption, the true owner cannot recover it, but I can do so, if I regain my health. 1Marcellus says that questions of fact may arise with reference to donations mortis causa, for the donation may be made in such a way that if the donor should die of his illness, it shall not be returned; or that it shall be returned if the donor, having changed his mind, desires it to be restored to him, even if he should die of the same illness. A donation of this kind can also be made subject to the provision that it shall not be returned unless the person who is to receive it dies first. A donation mortis causa can be made in such a way that the property shall not be returned in any event; that is to say, not even if the donor should recover his health.

Julianus, Digest, Book XXI. If a slave owned in common by you and Titius should receive any property by delivery from your ward with your consent, Marcellus states that its ownership will vest solely in Titius; for where anything cannot be acquired by all the owners of a slave, the ancient authorities have held that it will belong in its entirety to the one by whom it can be acquired.

Marcellus remarks as follows on Julianus, Digest, Book XXVII. We have no doubt that dishonorable conditions should be referred back to those who imposed them. Among these are, generally speaking, such as require an oath.

The Same, Digest, Book XXVII. Marcellus says that where sons under paternal control, who are serving in the army, have obtained the unrestricted right to dispose of their property by will to anyone whom they may select, it may be held that they are also released from the observance of the ordinary formalities required in the case of donations mortis causa. Paulus says, with reference to this, that it is established by the Imperial Constitutions that donations mortis causa can be revoked in the same way as legacies.

Marcellus, On Julianus, In the Twenty-ninth Book of the Digest, Observes That: If the condition under which the son was appointed an heir is of such a character that it is certain that at the last moment of his life it cannot be fulfilled, and, while it is pending, the son dies, he will be the heir to his father just as if the latter was intestate; for instance: “If he should go to Alexandria, let him be my heir”. If, however, the condition can be complied with during the last hours of his life, for example, “If he pays ten aurei to Titius, let him be my heir”, I hold that the contrary is true.

as Marcellus observes in the Thirtieth Book of the Digest of Julianus, and he holds that he ought to surrender this because the vendor could not recover it if the slave had been delivered before he entered upon his share of the estate, which opinion is correct.

Marcellus, Notes On the Digest of Julianus, Book XXXII. A man who left an estate of only thirty aurei bequeathed thirty to Titius, twenty to Seius, and ten to Mævius. Massurius Sabinus holds that Titius is entitled to fifteen, Seius to ten, and Mævius to five aurei; provided, however, that each legatee contributes his share of the Falcidian fourth in proportion to what was bequeathed to him.

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 XXXV. Where a person bequeathed a legacy to Titius, provided that, at the time of the testator’s death, the former should be in Italy, or he leaves it payable each year, as long as he remains in Italy; and the legatee obtains relief on the ground that he was excluded from the legacy because he was absent on public business, he is compelled to carry out any trust with which he was charged. Marcellus asks in a note, where an estate is restored to a soldier which he had lost because he was absent in the service of the State, whether any one can doubt that the right to legacies and trusts will not be impaired?

The Same, Digest, Book XXXVI. Where the Prætor has ordered a party against whom an action is brought for a debt, to appear; and the number of citations is exhausted; and he decides that the absent party owes the debt, and suit is brought to enforce the judgment; the judge who hears the case cannot examine the decree of the Prætor, otherwise citations of this kind and the decrees of the Prætors would be illusory. Marcellus says in a note: “Where the plaintiff knowingly and falsely states anything with malicious intent, and it is clearly established that in this way he obtained a judgment in his favor from the Prætor; I think that the judge should admit the complaint of the defendant.” Paulus says in a note, that if the defendant was unable to be present because he was prevented by illness, or was employed in some business for the State, it is his opinion that in this case an action to enforce the judgment against him should be refused, or the Prætor ought not to permit execution to be issued.

Julianus, Digest, Book XXXIX. Where one of several heirs purchases a tract of land which has been left in trust, the price having been determined by the income from said land on account of the debts due from the estate; the party entitled to the land under the terms of the trust, being present, and consenting, it is settled that not the land itself, but the value of the same should be delivered. Marcellus states in a note, “If the heir should prefer to deliver the land, I think that he should be heard.” 1Julianus: Where money is bequeathed to Titius, and he is charged by a trust to manumit a slave belonging to another, and the master of said slave is unwilling to sell him; he will, nevertheless, be entitled to his legacy, because it was not his fault that the property bequeathed by the trust was not delivered. For if the slave should die, he will not be deprived of his legacy. 2Just as it is conceded that a trust can be imposed upon anyone who is entitled to an estate as the lawful heir, or to prætorian possession of it, so he who, by law, has a right to the estate of a boy under the age of puberty, or to prætorian possession of the same, can be legally charged with a trust.

Julianus, Digest, Book IX. A certain person made the following provision in his will: “My heir, I ask and charge you to transfer to my son whatever comes into your hands out of my estate, upon the first day; or if anything should happen to him before that time, I request you to deliver it to his mother.” The question arises if the boy should die before the estate is entered upon, whether his mother would be entitled to the benefit of the trust. I answered that if the boy should die before the time arrived for the execution of the trust, it would be transferred to his mother; but if he should die after the day for its execution arrived, the heir of the boy would be entitled to the benefit of the trust. But, in order to ascertain the intention of the testator, namely, whether if the boy should die before the delivery of the property under the trust, it would be transferred to the mother rather than to the heirs, the Prætor must take into consideration the person of the mother as well as that of the heir of the boy. Marcellus: It is, however, more in conformity with the will of the testator to hold that whenever the boy dies, whether he dies before the day for the execution of the trust, or afterwards, the trust will be transferred to his mother, if he should not already have received it. This is the rule which we now make use of. 1Where a slave is appointed heir, and his master is charged to deliver the estate to the slave when he shall become free, the trust is valid. 2When anyone appoints his son heir to his entire estate, and, by a codicil which he directed to be opened after the death of his son, he charges him to transfer his estate to his sister if he should die without issue, and the son, being aware of the contents of the codicil, directed by his will that the slave Stichus, who belonged to the estate of his father, should be free, the heirs of the son must pay the value of the slave to the sister of the deceased, for his freedom cannot be lost by means of a favor. Moreover, even if the son should not be aware that his father had made a codicil, his heirs will, nevertheless, be obliged to pay the value of the slave, in order that the act of one may not injure another. 3Ad Dig. 36,1,26,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.If, however, this slave was appointed an heir by Sempronius, and after he had obtained his freedom, entered upon the same estate by the will of the brother, the heirs of the latter must also pay his sister the appraised value of the estate; because if the slave had not been manumitted, he could enter upon the estate by order of the woman. But if Sempronius should die during the lifetime of the son, deduction of the estate on account of the trust shall be made, since the slave, having been ordered to accept the estate by the son himself, will acquire it.

Marcellus, On the Digest of Julianus, Book XL. Where a bequest is made to an heir in order that he may pay the legacies in full, as well as the trust with which he is charged, an action based on the legacy will be refused him if he prefers to avail himself of the benefit of the Falcidian Law.

Julianus, Digest, Book XL. The cities, in order that the estates may be transferred to them, should select an agent who can sue and be sued. 1Where an heir who was compelled to accept an estate orders a slave forming part of the same to enter upon another left to the said slave by a stranger, and then transfers the former estate which he says he suspects of being insolvent, the question arises whether he ought also to transfer the one which had been acquired by the slave. I held that this estate should not be included in the transfer, any more than if the slave belonging to the first estate had, after having accepted it, entered into a stipulation and received it by delivery, or had collected the income from the property of the estate without being in default in the execution of the trust. If, however, the slave, before accepting the estate, entered into any stipulation, or accepted it by delivery, he must restore the subject of the stipulation, as the income collected before the estate was accepted will be included in the transfer. 2Ad Dig. 36,1,28,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 24.When an heir says that he suspects the estate of being insolvent, he will obtain no benefit under the will which he would not have obtained if he had not been appointed heir, or had not entered upon the estate. Therefore, if he was substituted for a minor as follows, “Let whoever shall be my heir also be my son’s heir,” he should be compelled to transfer the estate which came into his hands by virtue of the stipulation. If, however, the clause, “Whoever shall be my heir,” is omitted, and he should be substituted as follows, namely, “Let Titius be my son’s heir,” then, if the heir alone should survive the father he can, nevertheless, be compelled to transfer the estate of the minor. But if he should have a co-heir, he can retain the estate of the minor, because if his co-heir enters upon the estate, he can also enter by virtue of the substitution, even though he may have rejected the estate of the father. 3Where a father appoints his son, whom he has under his control, his heir, and charges him to transfer his estate to Sempronius, and says that he suspects the estate of being insolvent, the son can be compelled to transfer it under the Trebellian Decree of the Senate. Wherefore, even if he should not have concerned himself with the affairs of the estate, still, any rights of action for or against him will pass to Sempronius. 4When an heir, appointed by a father and substituted for his disinherited son, is charged to transfer to Titius the estate which may come to him by virtue of the substitution, he cannot be compelled to accept the estate of his father during the lifetime of the minor; in the first place, because the trust was established under a condition, and second, for the reason that an action with reference to the estate cannot legally be brought during the lifetime of the boy. When the minor dies, however, he should be compelled to enter upon the father’s estate. 5Where two heirs have been appointed by a father, and both of them have been charged to transfer his estate to a disinherited son, it will be sufficient for only one of them to be compelled to enter upon the same; for by this act he who did not enter upon the estate of the father can be compelled to enter upon and transfer the estate of the son. 6Whenever an emancipated son acquires possession of the estate contrary to the provisions of the will, there is no reason to compel the heir to transfer the estate; and, as he is not compelled to pay either legacies or trusts, so he can not be forced to transfer any portion of the estate. Marcellus: It is clear that he should not be compelled to enter upon the estate, where the son has already obtained possession of the same to prevent the trust from being extinguished, if the appointed heir should die, and prætorian possession of the property should be refused by the son. 7A person who has transferred an estate under the Trebellian Decree of the Senate can either be relieved or barred by an exception on the ground that the estate has been transferred, whether he is sued by the creditors of the estate, or sues the debtors. Moreover, the same actions can be brought by the beneficiary which the heir could have brought at the time when he transferred the property left under the trust. Marcellus: It is also established that those actions which were subject to a condition, the time for the fulfillment of which had not yet arrived, will lie in favor of the beneficiary of the trust. The heir, however, cannot have recourse to any exception before the estate has been transferred, as otherwise he would transfer so much less under the trust. 8The Trebellian Decree of the Senate is applicable whenever anyone charges his heir with the distribution of either the whole or a part of the estate, at a time. 9Hence, if Mævius should appoint you his heir, and ask you to deliver the estate of Titius, and you should enter upon the estate of Mævius just as if you had been charged with the trust, and had been asked to transfer land which had been devised to you by Titius, and you should say that you had reason to think that the estate of Mævius was insolvent, you cannot be compelled to enter upon the same. 10If Mævius should ask you to transfer to someone both his estate and that of Titius, and you voluntarily accept the estate, you can avail yourself of the benefit of the Falcidian Law, and retain the fourth part of the estate of Mævius, and transfer the other three-fourths in compliance with the terms of the trust. Nor will it make any difference whether you are asked to transfer both estates to the same individual, or the Msevian estate to one person, and the Titian estate to another. If you should say that the estate of Mævius is probably insolvent, you can be compelled to accept it and transfer it to the person to whom you are asked to deliver it; but he to whom you are charged to transfer the estate of Titius cannot compel you to enter upon it. 11If the heir should transfer the estate under the Trebellian Decree of the Senate, and should retain the income of the land, or the land itself, or should even be the debtor of the person who made the will, it will be necessary for an action to be granted to the beneficiary against him. Marcellus: It will also be necessary for this to be done where, only a portion of the estate having been transferred, an action in partition is brought between the person who delivered the estate and the one who received it. 12Where anyone is asked to transfer an estate after a son has been emancipated, he should be compelled to accept and transfer it, even though the son can obtain prætorian possession of the same in opposition to the provisions of the will. 13When a patron is appointed heir to that portion of the estate of his freedman to which he is entitled by law, and, having been asked to transfer the estate, says that he has reason to think that it is insolvent, I hold that the Prætor will act more justly if he compels him to enter upon and transfer the estate; although, notwithstanding this change of mind, he can retain that part of the same to which he is legally entitled. 14Where, after the reservation of certain property as a preferred legacy, the heir is requested to transfer an estate, and is compelled to accept it, ought he to retain the preferred legacy? I answered that anyone who enters upon an estate by order of the Prætor should be prevented from enjoying any advantage. 15But if a bequest is left to the same person under the condition that he does not become the heir, and he alleges that he has reason to think the estate to be insolvent, he cannot be compelled to accept it unless he surrenders the legacies which were bequeathed dependent upon the condition of his not becoming the heir; and this should not be done by the co-heirs to avoid liability, but by him to whom the estate was transferred. For, as the heir is obliged to accept the estate in order that the wishes of the testator may be complied with, so he should not be subjected to loss on this account. 16My cousin was appointed sole heir to an estate, and charged to transfer half of it immediately to Publius Mævius, and the other half after her death to the said Publius Mævius. Other legacies were also bequeathed to other persons. Mævius at once received his half of the estate, and gave security to return anything which he might have obtained over and above what was permitted by the Falcidian Law, and the others were paid their legacies in full, and likewise gave security to return any excess which they might have received. My cousin having died, Publius Mævius demanded that the other half of the estate, along with its income, should be delivered to him. Therefore, I ask how much I ought to transfer to him, and whether it should be what remained in the hands of my cousin in excess of the fourth part of the property, and nothing more; or whether I could recover something from the others to whom legacies had been paid, and if so, how much? I also ask if what I may receive from them under the stipulations, and what remained in the hands of my cousin in excess of the fourth of the estate should not amount to half of the same, whether I shall be compelled to make up the deficiency from the increase and the income of the property which remained in the hands of my cousin over and above the fourth, in order that the amount which should be transferred may not exceed the fourth part of the estate. Or, as Publius Mævius demands, after the fourth of the estate had been excepted, must whatever has been obtained from the profits of the said fourth be delivered to him? I answered that, if, with the addition of the income, whatever above the fourth remained in the hands of your cousin does not amount to less than half of the estate as it was at the time of her death, it must all be transferred to Publius Mævius; and nothing can be recovered under the stipulation from those to whom legacies have been paid. If, however, the income exceeds the value of half the estate, it must be added to your fourth and the income of the same. But if the income of your share which remained in the hands of your cousin in excess of the fourth does not amount to half of the estate, an action can be brought under the stipulation. In short, the calculation should be made in such a way that the income will actually be in excess of a fourth, and if it increased to such an extent as to amount to more than half of the estate, you can retain whatever is in excess. 17When anyone is asked to manumit his slaves, and transfer the estate to them, he should do so after having deducted the price of the slaves.

Marcellus, Digest, Book XLII. The Falcidian Law is applicable to the case of a slave bequeathed for manumission by the testator; but if the latter left money, or anything else, and charged the legatee to manumit his own slave, or that of another, the law will apply.

Julianus, Digest, Book LVI. When an agent, without a judgment, collects money which is not due, and his principal does not ratify the payment, but institutes proceedings to collect the same money, the sureties will be liable; and the right to the personal action under which the agent would have been responsible if the stipulation had not been interposed will be extinguished. For whenever money is paid to an agent, and his principal does not ratify the payment, I think that the effect is that the right of personal action for recovery will be extinguished, and that the sole proceeding to which he who paid the money which was not due will be entitled, against the agent, will be the one based on the stipulation. In addition to this, the sureties must pay the expenses incurred in the suit. If, however, the principal should ratify the payment, the sureties will be released; but the same money can be recovered from the principal by means of a personal action. 1Where an agent collects money due to his principal without bringing suit, the same rule applies, with the difference that if the principal has ratified the transaction he cannot afterwards make another demand for the money. 2If an agent should collect a sum of money which was not due, by having an execution issued on the judgment, it can be said that whether the principal ratifies his act or not, the sureties will not be liable, either for the reason that there was nothing that the principal could ratify, or because the stipulator had no interest in having the ratification made; hence he who pays the agent suffers an injury. It is, however, better to hold that if the principal does not ratify the transaction the sureties will be liable. 3Where, however, an agent who had not been directed to do so institutes judicial proceedings to collect money which is due, the better opinion is that the sureties will be liable for the entire amount, if the principal does not ratify the transaction. 4Ad Dig. 46,8,22,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 18.But when the agent makes a proper demand, he should not be compelled to guarantee that the principal will not profit by the injustice of the judge; for sureties are never liable on account of any damage caused by the wrongful act of a court. In this case it is better to hold that the sureties are only liable for the costs of the suit. 5Marcellus: If the principal does not ratify the transaction, but loses the case after it has been brought, nothing but the costs should be included in the agreement for ratification. 6Julianus: If, without an order of court, legacies should be paid to the agent of a person who is already dead, the stipulation will become operative unless the heir ratifies the transaction, that is, if the legacies were due; for then there is no doubt that it is to the interest of the stipulator to have the payment ratified by the heir, so that he may not be compelled to pay the same legacies twice. 7If, in a stipulation for ratification, it was expressly stated that Lucius Titius would ratify the transaction, as it was clearly the intention that the ratification of the heir and the other parties in interest should be omitted, it is difficult to hold that the clause having reference to fraud becomes operative. When the above-mentioned persons are omitted through inadvertence, an action under the clause having reference to fraud will undoubtedly lie. 8Where an attorney brings suit with reference to an estate, and afterwards his constituent demands a tract of land forming part of said estate, the stipulation for ratification becomes operative, because, if he was a genuine attorney, an exception on the ground of res judicata would act as a bar to his constituent. The stipulation for ratification, however, generally becomes effective in cases in which, if the genuine attorney should proceed, the action, if brought by the constituent, will become of no avail, either by operation of law or through pleading an exception. 9When anyone, in the name of a father, brings an action for injury sustained, because his son was struck or beaten, he will be compelled also to include the son in the stipulation; and especially as the father may happen to die before being informed that his attorney had instituted proceedings; and thus the right of action for injury will return to the son. 10If an injury is inflicted upon a grandson, and the attorney for the grandfather, on this account, brings suit for injury sustained, not only the son, but also the grandson, must be included in the stipulation. For what will prevent both the father and the son from dying before they knew that the attorney has brought the action? In this case it would be just for the sureties not to be held liable, if the grandson should bring suit for injury sustained.

The Same, Digest, Book LX. Marcellus says that he ceases to be a debtor who obtains a legal exception, and one which is not contrary to natural equity.