The Same, Institutes, Book VII. It is still more evident that the usufruct of a statue or a picture can be bequeathed, because articles of this kind have a certain utility if they are deposited in a proper place. 1Although there are certain estates of such a description that we expend more upon them than we receive from them, nevertheless, the usufruct in them can be bequeathed.

Marcianus, Institutes, Book VII. Where money was left to Titius in such a way that after the death of the legatee it was to go to Mævius; the Divine Severus and Antoninus stated in a Rescript that, although it had been added that Titius was to have the use of the money, still, the property of the same was bequeathed to him, and that mention was made of the use because the money was to be paid over after his death.

Marcianus, Institutes, Book VII. Where a slave was granted his freedom absolutely, and an heir was appointed under a condition, and it was provided that if the latter should not be the heir he would be entitled to a legacy, the Divine Pius stated in a Rescript that the conditions seemed to have been repeated in the legacy. 1With a view to this, Papinianus stated that where a grandmother appointed her grandson heir to a portion of her estate, under the condition that he should be emancipated, and afterwards, by a codicil, bequeathed to him whatever she had not left him as an heir, the condition of the emancipation was also held to have been repeated in the legacy; although in bequeathing the legacy, she made no substitution, any more than she did in leaving him a share of her estate.

Marcianus, Institutes, Book VII. The Divine Severus and Antoninus stated in a Rescript, where a mother appointed her children her heirs absolutely, but, in a codicil, added a condition of emancipation, that her act was void; because she could not impose a condition upon an heir who had been appointed, or directly make a substitution under a codicil. 1Anyone can make several codicils, and it is not necessary for him to write or seal them with his own hand. 2Although, in the confirmation of a codicil, the head of a household may have added that it was not his intention that it should be valid, unless it was sealed and signed with his own hand; still, the codicil made by him will be valid, even if it had neither been signed nor sealed with his own hand, for subsequent dispositions annul those which precede them. 3He only can make a codicil who is competent to make a will. 4If anyone, by a codicil, should bequeath a legacy to a person who died after he had made his will, the bequest will be considered as not having been made, even though the codicil may have been confirmed by the will.

The Same, Institutes, Book VII. A bequest can be made to the slave of another as follows, “As long as he remains a slave,” or, “If he should become the slave of Titius,” which was also held by Marcellus. 1If anyone should grant freedom to his slave after the lapse of a certain period, and, in the meantime, should charge his heir to furnish him with subsistence until he obtained his freedom; the Divine Severus and Antoninus stated in a Rescript that the wish of the testator must be complied with. 2If anyone should charge his heir with the payment of a legacy of a hundred aurei to someone, and charge a substitute with two hundred aurei to be paid to the same person, and afterwards should again mention the bequests in general terms, he is held to have referred to the said three hundred aurei. 3If, however, a father should make a pupillary substitution for his son under the age of puberty, and should refer to the legacy to be discharged by the substitute, and the minor becomes his heir, and dies before reaching puberty, the repetition of the legacy will not be valid, because it was the intention of the deceased that it should be due but once. 4Where a child under the age of puberty is charged with a legacy under the condition, “If he should arrive at puberty,” and the legacy is repeated in a substitution, it will also be due from the substitute; for the condition is not considered to be repeated which would render the legacy void. 5Foolish wishes of deceased persons relative to their interment (for instance, where they desire unnecesary expenses to be incurred for clothing, or other things to be used at their funerals), are not valid; as Papinianus states in the Third Book of Opinions.

Marcianus, Institutes, Book VII. Where slaves are bequeathed with the exception of those who transact business, Labeo says that those are considered to be excepted from the legacy who have been appointed for the purpose of attending to some business; for instance, where they have been given authority to purchase, rent, or lease property, but those who take care of the rooms of a house, and walls, and fishermen, are not held as included under the head of slaves who transact business. I think that this opinion of Labeo is correct. 1Where a slave passes from some employment to a trade, certain authorities very properly think that the legacy is extinguished, for the reason that the employment was exchanged for a trade. On the other hand, the same rule does not apply where a litter-bearer afterwards becomes a cook. 2Where a slave understands several trades, and cooks are bequeathed to one legatee, weavers to another, and litter-bearers to a third, the slave above mentioned will be considered to belong to the person to whom other slaves of the trade in which the said slave was most frequently employed, are bequeathed. 3Where female slaves, assigned to dress their mistress’ hair, are bequeathed, Celsus says that those who have only been employed in this service for two months are not included in the legacy; others, however, think that they are, as the result might be that none of such slaves would be included, for all can still learn something, and every occupation is capable of improvement. This opinion should rather prevail because it is conformable to human nature. 4Where flocks are bequeathed, Cassius says that all quadrupeds which are accustomed to feed together are included. Hogs are also included in this appellation, because they feed together. Hence, Homer says in the Odyssey: “You will find him seated by his swine, which feed Near the rock of Corax, and the Spring of Arethusa.” 5Where beasts of burden are bequeathed, oxen are not included, and vice versa. 6Where horses are bequeathed, mares are included. 7Where sheep are bequeathed, lambs are not included, but it must be ascertained from the custom of the neighborhood for how long lambs are to be designated by this term, as in certain localities they are considered to be sheep when they are ready to be sheared.

Marcianus, Institutes, Book VII. Where a testator devises his woodland pasture and in addition bequeaths everything which is ordinarily there, he is not understood to have intended to bequeath the flocks which during the winter are kept in winter quarters, and during the summer are left in the pastures, but only to have meant those which are always there.

Marcianus, Institutes, Book VII. When the studio of a painter is bequeathed with its equipment, the wax, the colors, and everything of this kind is included in the legacy, as well as the brushes, the implements for finishing encaustic tiles, and the flasks for oil. 1When the equipment of a fisherman is bequeathed, Aristo says that it includes the boats used for catching fish. The better opinion is that it also includes the fishermen themselves. 2Where the utensils of a bath are bequeathed, it has been established that the slave in charge of the bath is included; just as where a wood is devised, the forester, and where a wineshop is devised, the slave in charge of the same, are included; for baths cannot be used without the bathers.

Marcianus, Institutes, Book VII. In a case of this kind, it makes no difference whether the bequest of the peculium was made first, and the illegal manumission was granted afterwards; or vice versa.

Marcianus, Institutes, Book VII. The Divine Severus and Antoninus stated in a Rescript that money left for the support of children was subject to the operation of the Falcidian Law, and that it was the duty of the Governor of the Province to see that it was lent to persons who were solvent. 1The Divine Severus and Antoninus stated in a general Rescript, addressed to Bononius Maximus, that interest should be paid by anyone who claimed the benefit of the Falcidian Law for the purpose of committing fraud.

Marcianus, Institutes, Book VII. Even though the condition that no security shall be required may have been inserted into the will, such a condition will not be considered valid, and therefore, if any legatee should ask that security be given him, the condition will not be considered to have failed, because, after it has been established by public law that security of this kind can be remitted, the burden of a bond is not exacted, and no condition is understood to have been imposed.

Marcianus, Institutes, Book VII. If a slave should be ordered to be free, and afterwards is bequeathed to the son of the testator, and the latter afterwards manumits him, the freedman will belong to the son, just as if he had been assigned to him. This will be the case whether it is either expressly stated, or clearly understood that the slave was not bequeathed as a slave, but assigned as a freedman.

Marcianus, Institutes, Book VII. Where a slave has been bequeathed and manumitted under a trust, Cervidius Scævola, having been consulted, held that the last disposition was valid, whether it had reference to freedom or to a legacy; for the reason that it is established that when freedom is bequeathed it may afterwards be taken away, and it is clear that this can be done at the request of the slave. If, however, it is doubtful with what intention the testator bequeathed the same slave, after having left him his freedom, the bequest of freedom should have the preference. This opinion also seems to me to be the more correct one.

Marcianus, Institutes, Book VII. It has been decided that he who is born of urban slaves and is sent to the country to be brought up shall be classed as an urban slave.