Modestinus, Opinions, Book I. Where an estate left to a municipality in trust was ordered to be delivered, the magistrate appointed Titius, Seius, and Gaius as being suitable agents for the management of the property. These agents subsequently divided the administration of the estate among themselves, and did so without the authority or consent of the magistrates. Sometime afterwards, the will containing the trust under which the estate was to be turned over to the municipality, was proved in court to be void; and Sempronius appeared as the heir-at-law, ab intestato, of the deceased, but one of the aforesaid agents died insolvent, and without leaving an heir. I ask if Sempronius should bring suit against these agents of the estate, who would assume the risk caused by the insolvency of the deceased agent? Herennius Modestinus answered that the action based on business transacted could not be employed against anyone of the agents on account of what he alone had done, and that any loss must be borne by him who claimed the estate as heir-at-law.

Modestinus, Opinions, Book I. Gaius Seius, having died after making his will, appointed his freedman Julius, together with his sons, heir to part of his estate, just as if he had been his own child. I ask whether an appointment of this kind can change the civil condition of the freedman. Modestinus gave it as his opinion that it would not change his condition.

Modestinus, Opinions, Book I. The Governor of a province rendered a decision that a party should pay compound interest, contrary to the laws and the Imperial Constitutions, and, on this ground, Lucius Titius took an appeal from the unjust decision of the Governor. As Titius did not take his appeal in accordance with law, I ask whether the money can be collected under the judgment. Modestinus answered that if the judgment was for a specified sum, there was nothing in the case stated why execution could not be issued.

The Same, Opinions, Book II. While Titius was at Rome for the purpose of pursuing his studies, a letter was despatched to him by the magistrates of his native village, in order that he might deliver to the Emperor an ordinance of the said village which was transmitted along with the letter. But the person who had undertaken to deliver the letter, through collusion, delivered it to Lucius Titius, who himself was residing at Rome, for the same reason as Titius. After having erased the name of Titius, to whom the ordinance was directed, he inserted his own name, and then delivered it to the Emperor, according to the order of the municipality. I ask whether the messenger could demand his travelling expenses, and what offence he should be considered to have committed in not delivering the letter to the person to whom he had undertaken to give it, as well as what he was guilty of, who, having erased the name of another, and written in his own, delivered the ordinance to the Emperor, just as if he had been ordered to do so by his native town? Herennius Modestinus answered that Titius could not demand the travelling expenses, but that he could have recourse to the person who made the substitution in his own name. 1Titius accepted a pledge for public money which he himself had lent, and made an agreement with the debtor that, if the debt should not be paid, the pledge should be sold without any guarantee. The magistrates who succeeded to the place of Titius approved the claim as well as the pledge, as far as Mævius. Enough money was not realized by the sale of the pledge to pay the debt, on account of the guarantee made by the magistrate to the purchasers with reference to the amount of the land. The question arose, who was responsible to the municipality? Herrenius Modestinus answered that Titius was not liable on this account, as his successors had assumed responsibility for the debt, nor would the magistrates who made the sale, as they sold it as containing more than was shown by actual measurement of the land; and for the reason that they sold it for more, they should be ordered to make up the deficiency. Therefore, he who was the last to approve the claim should indemnify the municipality for the loss, if the claim should not be proved to have been transferred to a solvent successor.

Modestinus, Opinions, Book I. Herennius Modestinus gave it as his opinion that a man did not become a decurion merely by an order for the payment of his salary, when he not been legally created.

The Same, Opinions, Book I. Septicia promised a certain sum of money to her native city for the celebration of public games, under the condition that the principal should remain in her hands, and that she herself should give half of the interest as reward to the contestants, in the following terms: “I give and set apart thirty thousand aurei as principal to be devoted to the games every four years, I myself retaining the said amount in my hands, and furnishing security to the decurions to pay the interest, at the ordinary rate, on said principal of thirty thousand aurei; under the condition that the games shall be presided over by my future husband and the children who may be born to me. The said interest shall be expended in prizes to be awarded to the competitors whom the judges may decide to have excelled in each contest.” I ask whether the children of Septicia would suffer any injustice if they should not preside at these contests, in accordance with the terms and the condition of the promise. Herennius Modestinus answered that in case the institution of the public games was permitted, the condition imposed by the promise must be complied with.

Ad Dig. 2,14,35Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 2.The Same, Opinions, Book II. Two brothers, Titius and Mævius, and a sister Seia, divided an estate between them, which they held in common, and executed an instrument in which they stated that they divided the estate of their mother, and alleged that no property held in common by them remained. Afterwards, however, two of them, namely, Mævius and Seia, who were absent at the time of their mother’s death, learned that a sum of money in gold had been abstracted by their brother, of which sum no mention was made in the instrument of partition. I desire to know whether, after the agreement for partition was made, an action for the recovery of the money which had been abstracted would lie in favor of the brother and sister against the other brother? Modestinus answered that if, when they brought suit for a portion of the money which was said to have been abstracted by Titius, an exception was pleaded against them under a general contract, when they ignorantly agreed to the fraud which had been committed by Titius, they could avail themselves of a replication on the ground of fraud.

The Same, Opinions, Book II. Two brothers, one of age, and the other a minor, owned an unproductive tract of land in common. The older brother erected large buildings on the tract where the residence of his father stood, and when he divided the land with his brother, he claimed that he should be paid for what he had expended, since the property had been improved by what he had done; his younger brother having at that time become of age. Herennius Modestinus answered that he for whom the inquiry was made had no right of action on account of expenses incurred, when there was no necessity for them, and where they had been made only for the sake of pleasure. 1I gave it as my opinion that if Titius brought up his niece through affection for his sister, no action would lie against her on this ground.

Modestinus, Opinions, Book II. Even where it can be established that a minor has been imposed upon by his father, who was also his guardian, and a curator is afterwards appointed for him, the latter cannot be prevented from applying for complete restitution in behalf of the minor. 1Where a female ward who had judgment rendered against her in a case based on curatorship, wished to obtain restitution with reference to one part of the decision; and as it appeared that she had succeeded with reference to the other matter in the case, the plaintiff, who was of age, and had at first acquiesced in the decision, claimed that a new trial should be granted. Herennius Modestinus answered to this, that if the point with reference to which the female ward requested complete restitution had no connection with the others, no reason was alleged for which the plaintiff could demand that the entire judgment should be set aside. 2Where a minor obtains complete restitution on account of his youth, and by reason of this rejects his father’s estate, none of the creditors of the latter being present, or having been summoned by the Governor for the purpose of instituting proceedings; the question arises whether restitution should be considered to have been properly granted? Herennius Modestinus gave it as his opinion that since the creditors were not summoned, and the judgment of restitution had been rendered without this, the rights of the creditors were not in the least impaired.

The Same, Opinions, Book II. Gaius, by his will, appointed Nigidius guardian of his son, and also appointed him curator until his son had reached his twenty-fifth year. I ask, since it is lawful for Nigidius to be excused from the curatorship without an appeal, from what day the time fixed by the Divine Marcus to be observed in the application for discharge shall be reckoned; whether this shall be done from the day when the will is opened, or from that when the guardian is called upon to transact business; that is to say, after the ward has completed his fourteenth year? Modestinus answered that the application to be excused from the curatorship must be made at the time when the curator was confirmed by the decree of the Prætor or Governor.

Modestinus, Opinions, Book III. I stated as my opinion that even where a party succeeds on the ground that a testament is inofficious, any donations which the testator, while living, seems to have made in favor of the appointed heir, are not for that reason annulled; nor will an action lie to recover part of what was given to him by way of dowry.

Modestinus, Opinions, Book III. The risk of obligations for money lent attaches to the party by whose negligence it can be established that the risk was increased.

The Same, Opinions, Book III. Judgment having been rendered against a guardian, he delayed the execution of the judgment by taking an appeal. Herennius Modestinus gave it as his opinion that the judge who had jurisdiction of the appeal could also hold him responsible for interest during the intermediate time, if he ascertained that the appeal was fraudulently interposed for the purpose of delay. 1Lucius Titius, who owed the sum of a hundred aurei and interest on the same for a certain time, tendered and sealed up a smaller sum than he owed. I ask whether Titius did not owe interest on the money which he sealed up. Modestinus answered that if it was not agreed at the time of the loan that the debtor should be permitted to pay what he had borrowed by instalments, the payment of interest for the entire debt would not be affected; if, when the creditor was ready to receive the whole amount, the debtor who failed to make the payment of the entire sum only deposited a part of it. 2Gaius Seius borrowed a certain sum of money from Aulus Agerius on the following note: “The undersigned says that I have received, and I acknowledge having received from him, borrowed money to the amount of ten aurei, which I promise to pay to him on the Kalends of next July, together with the interest on the same that is agreed upon between us.” I ask whether interest can be collected on this instrument, and if so, how much. Modestinus answered that if it does not appear how much interest was agreed upon, it cannot be collected.

The Same, Opinions, Book IV. Gaius Seius gave his land to Lucius Titius as a pledge for money loaned, and afterwards it was agreed between them that the creditor should have possession of the pledge for a certain time, by way of setoff against his money. But, before the time had expired, the creditor, in stating his last wish, provided by his will that one of his sons should have the said tract of land, and added, “which I bought of Lucius Titius,” while in fact he had not bought it. Gaius Seius, who was the debtor, along with others signed this will. I ask whether, by the fact that he signed it he prejudiced himself in any way, since no instrument evidencing the sale was produced, but only the agreement that the creditor should be entitled to the crops for a certain time? Herennius Modestinus answered that the contract of pledge was not affected because the debtor had signed the will of the creditor in which he stated that he had purchased the pledge.

The Same, Opinions, Book IV. A surety obtained permission from the court that, before he paid the debt, he could obtain possession of the pledges, provided he satisfied the creditors. He did not satisfy them, and then the heir of the debtor offered to pay the creditors. I ask whether the surety can be compelled to return the pledges; and Modestinus answered that he can be compelled to do so. 1A father easily persuaded his emancipated son, Seius, who has borrowed a sum of money from Septicius, to write an acknowledgment of indebtedness with his own hand, because he himself was unable to do so at the time, for the purpose of giving a house belonging to his said son by way of pledge to his creditor. The question arose whether Seius could legally retain possession of this house with his other property, since he had renounced the estate of his father, and could be interfered with for the sole reason that he had written the said document with his own hand, by the direction of his father, as he did not give his consent to his father either under his own seal or by any other statement in writing. Modestinus answered that when Seius wrote with his own hand that his house would be hypothecated, it was evident that he gave his consent to the obligation. 2Lucius Titius hypothecated certain lands and the slaves that were attached to them. His heirs having divided the lands between them, substituted other slaves for those who died. The creditor afterwards sold the land together with the slaves; and the question arose whether the purchaser could properly bring an action to recover the slaves which had recently been placed upon the land. Modestinus answered that if the slaves were not themselves pledged, and were not the offspring of female slaves who had been encumbered, they were, by no means, bound to the creditor.

Modestinus, Opinions, Book IV. Titius pledged a tract of land to Sempronius, and afterwards pledged it to Gaius Seius; and then Titius sold the identical land to the said Sempronius and Gaius Seius in its entirety, to each of whom he had formerly pledged it as a whole. I ask whether the right of pledge was extinguished through the sale having taken place, or if, on this account, only title by purchase remains in both creditors? Modestinus answered that, by the right of purchase, the ownership vests in the parties mentioned; since, according to the facts stated, both of them had consented to the sale, but that they would not have the right of action on pledge against one another. 1Titius loaned money to Seius on a pledge of land, the said land having been previously encumbered to the State; the second creditor paid the money due to the State, but Mævius appeared and asserted that the land had been mortgaged to him before it had been encumbered to the State. It was, however, ascertained that Mævius had been present and had signed the undertaking executed by Seius to the government, by which instrument Seius guaranteed that the land was not encumbered to anyone else. I ask whether any action with reference to the property can be brought by Mævius. Modestinus answered that he could, by no means, retain any right to the pledge in question, after he had consented to the above mentioned transaction.

The Same, Opinions, Book IV. If an older date than the correct one is stated by a debtor in the obligation of a pledge, there will be ground for an accusation for crimen falsi.

Modestinus, Rules, Book V. I ask if anyone should sell a tract of land under the condition that all should be considered to be sold which he possessed within certain boundaries, and the vendor, nevertheless, well knew that he did not possess a certain part of said land, and did not notify the purchaser of the fact; would he be liable to an action on sale, since this general rule ought not to apply to those portions of the land which the party who sold them knew did not belong to him, and yet did not except them? Otherwise, the purchaser would be taken advantage of, who if he had known this, would perhaps not have purchased the property at all; or would have bought it at a lower price if he had been notified with reference to its true amount; as this point has been settled by the ancient authorities, with respect to a person who made an exception, in the following terms, “Any servitudes that are due, shall remain due.” For persons learned in the law gave it as their opinion that, if a vendor, knowing that servitudes were due to certain persons, did not notify the purchaser, he would be liable to an action on purchase; for this general exception does not refer to matters which the vendor was aware of, and which he could and should expressly except, but to things of which he was ignorant, and concerning which he could not notify the purchaser. Herennius Modestinus was of the opinion that if the vendor in the case stated did anything for the purpose of deceiving the purchaser, he could be sued in an action on purchase.

Modestinus, Digest, Book V. Herennius Modestinus was of the opinion that the purchaser, in bringing an action on sale, would not be barred because notice of the eviction had not been served upon him, if the necessity for notifying him had been released by the agreement. 1Gaia Seia purchased a tract of land from Lucius Titius, and proceedings having been instituted against her in the name of the Treasury, she had recourse to the vendor, and eviction having taken place, she was deprived of the land which was adjudged to the Treasury, the vendor being present at the time. The question arises, as the purchaser did not appeal, whether she can sue the vendor? Herennius Modestinus answered that if the land belonged to another when it was sold, or if it was hypothecated at the time it was evicted, there is no reason why the purchaser should not be entitled to an action against the vendor. 2Herennius Modestinus gave it as his opinion that if the purchaser appealed, and lost a good case through prescription by his own fault, he cannot have recourse to the vendor.

The Same, Opinions, Book V. Modestinus says that women accused of adultery cannot marry during the lifetime of their husbands, even before they have been convicted.

Modestinus, Opinions, Book V. Titia, a minor under twenty-five years of age, exchanged the fourth part of the estate of her mother, which she held in common with her brothers, and received a tract of land instead of her share, just as if a sale had taken place. This land, together with other property, she gave as dowry. I ask if complete restitution should be granted to her, and if she should receive her share of one-fourth of the estate; and should she return the land, what course must her husband pursue, or ought he to be content with the other property given by way of dowry? I also ask, if he should die, and her heirs, as her representatives, should bring suit for complete restitution, and some of them should demand a fourth part of the estate, and others the land, whether the husband would be compelled to return the land, and remain satisfied with the other property of the dowry as his profit. Modestinus answered that there is nothing in the case proposed to justify the husband being deprived of the dowry, but the woman of her heirs should have judgment rendered against them for the actual value of the land, and the appraisement of the same should be made with reference to what it was worth at the time it was given by way of dowry.

The Same, Opinions, Book V. If he who is alleged to have been the husband of a woman denies that the marriage was contracted, for the reason that he is ready to prove that she who claims to be his wife is a slave, he shall be compelled to support her children in the meantime; but if it should be established that she was a slave, he who was charged with their support will not be prejudiced on this account.

The Same, Opinions, Book V. Vendors furnished security against eviction to a purchaser to the extent of his interest, and they also specially promised that they would be responsible for all expenses which might be incurred by the purchaser, who was the stipulator, if the matter should come into court. After the death of the purchaser, one of the vendors brought suit, alleging that the price was due to him; and the heirs of the purchaser, who proved that the price had been paid, demanded, under the terms of the stipulation, that they should be reimbursed for the expenses incurred in defending the case. Modestinus gave it as his opinion that if the vendors promised to pay the expenses incurred in an action brought to determine the ownership of the property, such expenses could, by no means, be collected under the stipulation where one of the vendors sued to recover the price which had already been paid.

Modestinus, Opinions, Book VI. I hold a tract of land in common with a female minor who is also my co-heir, and in said land remains are buried to which reverence is due from both of us; for the parents of the minor are buried there. Her guardians, however, desire to sell the land, but to this I do not consent, as I prefer to retain possession of my own share, since I cannot purchase it all, and I wish to discharge my duty to the dead in accordance with my own judgment. I ask whether I can legally petition for an arbiter in an action for the partition of said tract of land; or whether the arbiter who is appointed for the partition of an estate can discharge the functions of his office and also divide the said property between us according to the rights of each; the remaining assets of the estate being left out of consideration. Herennius Modestinus answered that there was nothing in what was proposed to hinder the party appointed arbiter in the action for the partition of the estate from including in his duties the matter of dividing the said tract of land; but religious places could not be brought into the action, as the rights with respect to them belong to the individual heirs interested in the entire estate.

The Same, Opinions, Book VI. A guardian died without leaving an heir. I ask when a curator was appointed for his ward, and no inventory, nor any other document has been produced by the surety, whether the said surety can be sued on the stipulation, for the amount of the interest of the ward? Modestinus answered that the surety may be sued for the same amount for which an action can be brought against the guardian. 1Modestinus was of the opinion that the guardian would in no way be responsible where he was not guilty of negligence, if the ward should suffer any injury because receipts for taxes paid were not found. 2Modestinus held that a guardian should render an account to his ward for any income which he could have collected in good faith from land belonging to her. 3He also stated that if a guardian collected less from a slave placed in charge of land, than he should have collected in good faith, he could, for this reason, retain as much of the peculium of said slave as he was liable for to the female ward, and that this would be an advantage to the said guardian; provided he had not entrusted the management of the property to a wasteful slave. 4A minor, with the consent of his curator, sold a tract of land to Titius, and afterwards, having ascertained that he had been cheated, obtained complete restitution, and was ordered to be placed in possession of the property. I ask, since he did not profit by the said sale, and it was not proved that any advantage had been obtained by him with reference to his property, whether the price should not be returned to the purchaser? Modestinus answered that as the price of the land sold by the curator did not add to his pecuniary resources, and nothing had been decided with reference to it at the time when restitution was ordered by the court, the purchaser would present his claim in vain. 5He also gave it as his opinion that the minor should not be obliged to account for any expenses incurred by the purchaser for the sake of ornament; but if the improvements could be detached from the building in such a way that it could be left in its former condition (that is, as it was before the sale), the purchaser must be allowed to remove them. 6Lucius Titius was the co-heir and curator of his sister, and as he was a resident of a district in which it was customary for the owners of land, and not the lessees, to sustain the burdens of taxation, as well as temporary contributions, he, having followed this practice and custom, which had always been observed, paid the taxes for the common and undivided estate. I ask whether, when his accounts were rendered by the curator, objection could be taken to them that he did not incur said expenses legally, so far as the share of his sister was concerned. Modestinus answered that the curator had a right to render an account to the minor for what was complained of, because she herself would have been compelled to make the said payment if she had been managing her own affairs. 7Two guardians, after having made a sale of property belonging to their ward, divided the money among themselves; and, after this division, one of them was sent into exile during the existence of the guardianship. The question arose whether, if the exile appointed an agent, his fellow-guardian could make a demand on him for his share of the money belonging to the ward. Modestinus answered that: “If the question was whether, in case a guardian is exiled, his fellow-guardian can bring an action on guardianship; I am of the opinion that he can do so.”

Modestinus, Opinions, Book VI. Magistrates exacted security from the curators of a minor for the preservation of his property, and one of them died without leaving an heir. I ask whether his colleague will be liable to indemnify the ward from the entire amount. Modestinus answered that there is no reason why he should not be required to do so.

Ad Dig. 46,3,76Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 16.The Same, Opinions, Book VI. Modestinus holds that payment having been made of everything that was due on a tutelary account without any agreement, if, after a certain interval, the rights of action are assigned, the assignment is void, because no such right remains. If, however, this was done before payment, or if it was agreed between the parties that the rights of action should be assigned, and payment is made, and the assignment afterwards takes place, the rights of action will remain unimpaired; as, even in the last instance, the price of those which were assigned seems rather to have been paid than that the right which existed at the time has been extinguished.

Modestinus, Opinions, Book VII. Sempronia drew up a petition intending to give it to a centurion, in order that it might be filed in court; but she did not give it to him. Lucius read it in court as having been given to him officially. As it was not properly filed, or delivered to the centurion, of what offence is he guilty who presumed to read in court a petition stolen from the house of the person who drew it up, and who did not deliver it for that purpose? Modestinus answered that if he who took it did so secretly, he committed a theft.

Modestinus, Opinions, Book VIII. No principle of law or indulgent construction of equity permits matters which have been introduced for the welfare of mankind to be interpreted so rigorously as to be productive of hardship to them.

The Same, Opinions, Book VIII. A certain Lucius Titius having failed to have the testament of a relative set aside as forged; I ask whether he would not be able to file a complaint against the testament as being improperly executed, and not sealed? The answer was that he would not be prevented from instituting proceedings to show that the testament was not executed according to law, just because he did not succeed in having it set aside as forged.

Modestinus, Opinions, Book VIII. A testator who wished to disinherit his daughter inserted the following clause into his will: “As for you, my daughter, I have disinherited you because I desired that you should be content with your dowry.” I ask whether she was legally disinherited. Modestinus answered that there was nothing in the case stated which would prevent her from being disinherited by the will of the testator.

Modestinus, Opinions, Book VIII. A certain man appointed an heir by his will under the condition: “If he throws my remains into the sea”. As the heir did not comply with the condition, the question arose whether he should be excluded from the succession to the estate. Modestinus answered: “The heir should rather be praised than censured, who did not throw the remains of the testator into the sea, in accordance with the will of the latter, but gave them up to burial in memory of the duty due to humanity”. It must first be considered whether a man who imposes a condition of this kind is of sound mind, and, therefore, if this suspicion is not removed by convincing evidence, the heir-at-law cannot in any way dispute the right to the estate with the heir who was appointed. 1A testator, by a codicil, imposed a condition upon his heir whom he had appointed absolutely by his will, I ask whether it is necessary for him to comply with it. Modestinus answers: “An estate can neither be granted, nor taken away by a codicil”. The testator, however, is understood, in this instance, to have had in his mind the exclusion of the heir from the succession in case of his failure to comply with the condition.

The Same, Opinions, Book IX. Legatees have a right to claim their legacies from each one of the heirs in proportion to his share of the estate, but some co-heirs cannot be charged with legacies for others who are insolvent. 1A testator appointed several heirs, and charged some of them with legacies, and afterwards he made a codicil including all his heirs. I ask which of the heirs will be charged with the legacies? Modestinus answered, that as the testator had plainly indicated in his will by which of his heirs he desired the legacies to be paid, and even though he addressed his codicil to all of them, still, it is evident that what he bequeathed by the codicil must be paid by those whom he showed by his will he intended should discharge that duty.

Modestinus, Opinions, Book IX. A legacy was bequeathed to a town, so that from its income an exhibition might be given there every year for the purpose of preserving the memory of the deceased. It was not lawful for the exhibition to take place there, and I ask what opinion should be given with reference to the legacy. Modestinus answered that, as the testator intended the spectacle to be exhibited in the town, but it was of such a character that this could not be done, it would be unjust for the heir to profit by such a large sum of money as the deceased had destined for this purpose. Therefore, the heirs as well as the first citizens of the place should be called together in order to determine how the trust could be changed so that the memory of the testator might be celebrated in another and a lawful manner.

Modestinus, Opinions, Book IX. A testator, who had several freedmen, said in his will that he left lodging to those whom he designated in a codicil. As he did not afterwards designate anyone, I ask whether all of them would be admitted to share in the legacy. The answer was that, since the patron promised to designate certain of his freedmen, and did not afterwards designate any, the legacy with reference to the lodging was held to be imperfect, as there was no one in existence to whom it could be understood that it was given.

Modestinus, Opinions, Book IX. A husband having devised to his wife a house with all its appurtenances, its utensils, and its furniture, the question was asked whether the silver table service, both for eating and drinking, was included in the legacy. The answer was that if anything made of silver was found among the furniture, it would be included, but that the silver for table service would not be, unless the legatee could prove that the testator had the intention of bequeathing it also.

Modestinus, Opinions, Book IX. He gives it as his opinion that where a husband bequeaths his household goods to his wife by will, he should never be considered to have devised to her the residence in which the said household goods were situated; and therefore there is no doubt whatever, if the woman should claim the residence for herself, that this would be contrary to the intention of the deceased.

The Same, Opinions, Book X. Titia, after making a will and appointing her children Mævia and Sempronius heirs to equal shares of her estate, died, and charged Mævia to manumit her slave Stichus, in the following terms: “I ask you, my dear daughter Mævia, to manumit your slave Stichus, since I have bequeathed to you by my codicil so many slaves for your service,” but she did not actually make such a bequest. I ask, what seems to have been left by these words? For, as has been above stated the deceased testatrix, having appointed two heirs, the hereditary slaves of the estate belonged to two distinct persons, and since nothing was provided by the codicil with reference to the delivery of the slaves, the trust could not be held to be legal, where it was not really created; as where the testatrix said she made a bequest, but did not add what it consisted of, nor did she charge the heir with the delivery of the slave. Modestinus answered, as a result of the consultation, that Mævia had no right to claim either the legacy or the trust, and could not be compelled to grant freedom to her slave. 1Lucius Titius inserted the following provision into his will: “To Octaviana Stratonice, my dearest daughter, Greeting. I wish her to receive for herself the estate called Gaza, with all its appurtenances. To Octavianus Alexander, my dearest son, Greeting. I wish him to receive from himself all my unproductive lands, with their appurtenances.” I ask whether, by an instrument of this description, the testator should be considered to have given to each of his heirs an entire tract of land, or whether he merely included in the devise the shares of his estate to which they were legally entitled, as he could not properly charge each one of them with a legacy a portion of which he or she already had. Modestinus answered that the document in question should not be interpreted in such a way as to render the trust of no effect. I also ask, in case it should be decided that the land entirely belonged to one of the heirs, whether the value of the share of the brother and co-heir should be paid, because as the testator wished him to have the entire property in the land, he seemed to have prescribed the condition that the co-heir should be paid the value of his share. He answered that the beneficiary of the trust could, by no means, be compelled to pay the co-heir the value of his or her share. 2Lucia Titia, having died intestate, charged her children, by a trust, to deliver a certain house to a slave belonging to another. After her death, her children, who were also her heirs, when dividing their mother’s estate, also divided the above-mentioned house, at which division the master of the slave who was the beneficiary of the trust was present as a witness. I ask, if, for the reason that he was present at the division of the property, he should be considered to have lost the right to demand the execution of the trust, acquired by him through his slave. Modestinus answered that the trust was not annulled by operation of law, and it could not even be repudiated, nor would the master be barred by an exception on the ground of bad faith, unless it was perfectly evident that he had been present at the division of the property for the purpose of renouncing his rights under the trust. 3Gaius Seius, who had a house of his own, went to live in a villa belonging to his wife, and removed certain property to it from his own residence, and having died there a long time afterwards, left his wife and several other persons his heirs by his will, into which he inserted the following clause: “In the first place, let my heirs know that I have no money nor any other property in the hands of my wife, and therefore I do not wish her to be annoyed on this account.” I ask whether the property which, during the lifetime of the testator, was transferred to the residence of his wife, can be claimed by his estate; or, in accordance with the terms of the will, the co-heir can be prevented from sharing it with the widow of the deceased. Modestinus answered that if the testator intended the property which he had conveyed into the house of his wife to go to her, as a preferred legacy, there was nothing in the case stated to prevent his intention from being carried out; therefore, it was necessary for the woman to prove that such was the intention of the testator. If she did not do this, the property must remain a part of the estate of the husband. 4Where a trust was left to a freedman under the condition “That he should not desert my children,” and he was prevented from complying with the condition by their guardians, it is unjust that he should be deprived of the benefit of the trust since he is free from blame. 5Where a man, against the wishes of his daughter, brought suit for the recovery of her dowry, and died, and after disinheriting his daughter, appointed his son his heir, and charged him with a trust for the payment to his daughter of a sum of money instead of her dowry, I ask how much the woman is entitled to recover from her brother. Modestinus answered that, in the first place, the right of action for the recovery of the dowry is not lost by the woman, since she did not consent that her father should claim it, and was aware that he did so. Hence, the matter should be explained as follows. If a larger amount had been included in the former dowry, the woman should be content merely with her right of action; because if the sum bequeathed to her instead of the dowry was larger than the dowry itself, a deduction should be made until the sums were equal, and she could obtain under the will only the excess over and above the legacy. For it is not probable that the father would have intended to charge his son and heir with the payment of a double dowry, especially as he thought that he could properly bring an action against his son-in-law for the recovery of the dowry, even though his daughter did not give her consent. 6Lucius Titius, having left two children of different sexes, whom he appointed his heirs, added the following general provision to his will, namely, “That the legacies and grants of freedom which he left should be executed by these his heirs.” Nevertheless, in another part of his will he directed his son to sustain the entire burden of the legacies as follows, “I order that whatever I have left in my legacies or directed to be paid shall be given and delivered by Attianus, my son and heir.” He then added a preferred legacy to his daughter in the following terms: “I direct that my dear daughter, Paulina, shall have what I gave or purchased for her during my lifetime, and I forbid that any question shall be made with reference to said property; and I request you, my dear daughter, not to be offended because I have left the greater portion of my estate to your brother, as he has six great obligations to meet, and will be compelled to pay the above-mentioned legacies, which I have bequeathed.” I ask whether, by these last words which the father addressed to his daughter in his will, the result would seem to be that he charged his son with actions which could be brought against the estate, that is to say, with all of them; or whether it should be held that he only had reference to suits which could be brought by the legatee, so that actions against the estate might be granted to creditors against both the heirs. Modestinus answered that, in the case stated, it did not appear that the testator had directed that his son alone should be liable for the claims of the creditors. 7Titia, at the time that she married Gaius Seius, gave him by way of dowry certain lands and other property, and died after making the following provision by a codicil: “My daughter, I commit you to the care of my husband, Gaius Seius, whom I wish to receive the usufruct of, and a life interest in the Castle of Naclea, which I brought him as dowry, together with other property included in the dowry; and I desire that he should in no way be annoyed with reference to the dowry, for, after his death, all of this property will belong to you and your children.” In addition to this, the woman left a great deal of property to her husband to belong to him as long as he lived. I ask whether, after the death of Gaius Seius, an action based on the trust will lie in favor of the daughter and heir of Titia on account of the property which, in addition to the dowry, was left by the codicil, as well as on account of what Gaius Seius received by way of dowry. Modestinus answered that, although these words do not show that a trust was not created by which Gaius Seius was charged for the benefit of the daughter of the testatrix, after she had given him what had been bequeathed by the will; still, there is nothing to prevent an action to compel the execution of the trust, in accordance with the will of the testatrix, after the death of Gaius Seius.

The Same, Opinions, Book VI. Where a legacy was left as follows, “I ask you to give to So-and-So, at the time of your death, everything belonging to my estate and my property which may come into your hands,” the crops which the heir, during the lifetime, as well as whatever took the place of the crops, were not considered to have formed a part of the legacy, for it could not be proved that the testatrix intended that her heir should be charged with the delivery of the crops. 1Where a testator left a trust for the benefit of his children, and, after substituting them for one another, desired that, after the death of the last survivor, the trust would pass to their descendants, I ask, if no one remained after the death of the last child, except his freedman, whether he ought to be admitted to the benefit of the trust. The answer was that it was perfectly evident that by the appellation his “descendants,” only his children, and not their freedmen, were included in the number of those to whom the trust was bequeathed.

Modestinus, Opinions, Book X. “I also charge my other heirs to pay to my wife ten aurei every year, as long as she lives.” The wife survived her husband five years and four months. I ask whether her heirs will be entitled to the entire legacy for the sixth year. Modestinus answers that they will be entitled to it.

Modestinus, Opinions, Book X. “I desire the lands which I have in the island of Chios to be given to my freedmen and freedwomen whom, during my lifetime, I have manumitted by my will or my codicil, or whom I may manumit hereafter, in order that they may obtain from them their food and clothing, as they did while I was living.” I ask what signification these words have; do they mean that the freedmen shall themselves obtain their support from the said lands, or that they shall receive from the heir their food and clothing, in addition to what is obtained from the lands? And was the ownership or the usufruct of the lands left? If the ownership was left, and a sum greater than what is needed for the supply of food and clothing should be obtained from the income of the lands, will the excess belong to the heir of the patron? And if some of said freedmen should die, will their shares pass to the surviving beneficiaries of the trust; and if they should die after the time appointed for the trust to take effect, will their shares belong to their heirs, or will they revert to the heirs of the testator? Modestinus answered: “It seems to me that these lands, and not merely the usufruct in the same, were left to the freedmen, in order that they might have full control over them; and, therefore, if anything more than is necessary for their support is obtained from the income of said lands, this will belong to the freedman. Even if one of the beneficiaries of the trust should die before it takes effect, his share will belong to the other beneficiaries, and those who die after the trust becomes operative will transmit their shares to their heirs.” 1Lucius Titius, by his will and without imposing any condition, ordered food and clothing to be furnished to his freedmen and freedwomen by his children who were his heirs. I ask if said freedman should institute proceedings without communicating with the children of their patron, whether they can obtain their food and clothing. Modestinus answered that there was nothing in the case stated to prevent suit being brought by them, where the legacy was unconditionally bequeathed by will.

The Same, Opinions, Book X. “To my brother Aurelius Sempronius. I do not desire that any of my debtors shall be annoyed on account of their obligations, nor that anything, either principal or interest, shall be collected from them as long as they live; and I return, free from liability and released from pledge, the house and the Carpathian land to the party interested in the same.” Modestinus gives it as his opinion that if the debtor himself should be sued, he will be protected by an exception, but that this will not be the case so far as his heir is concerned. 1When Gaius Seius was growing up, he received Publius Mævius and Lucius Sempronius as his guardians. While still under lawful age, the said Gaius Seius, being about to die, made the following provision in his will with reference to his curators: “Let no one raise any question concerning my curators, for I myself have transacted my business.” I ask whether the heirs of the minor can demand an accounting for the curatorship from the curators, since the deceased, as is apparent from the terms of his will, acknowledged that he had attended to all of his business himself. Modestinus was of the opinion that if the curators had committed any fraudulent act, or if any of the property of the testator was in their hands, suit could be brought against them on this ground.

Modestinus, Opinions, Book X. An heir manumitted a slave whom he was ordered to set free on the fulfillment of a condition, and who was also made the beneficiary of a trust. I ask whether the heir was obliged to pay him what was left him under the trust. Herennius Modestinus answered that, although the heir had manumitted the slave absolutely, he must, nevertheless, pay him what he was entitled to by virtue of the trust which had been left to him under the same conditions, provided that the slave could show that the conditions had been complied with, or that it was the fault of the heir that this had not been done.

The Same, Opinions, Book X. Mævia, at the time of her death, bequeathed freedom to her slaves named Saccus, Eutychia, and Hirena, conditionally, in the following terms: “Let my male slave, Saccus, and my female slaves, Eutychia and Hirena, be free, under the following condition, namely, that they burn a lamp on my tomb every other month, and celebrate funeral rites there.” As the said slaves did not regularly visit the tomb of Mævia, I ask whether they would be free. Modestinus answered that neither the wording of the entire clause nor the intention of the testatrix indicated that the freedom of the slaves should be suspended under a condition, as she desired them to visit her tomb as persons who were free; but that it was, nevertheless, the duty of the judge to compel them to obey the order of the testatrix.

The Same, Opinions, Book X. Lucius Titius, having made a will, appointed Seia, his wife, and Titia, their common daughter, heirs to equal shares of his estate. In another place he said, “I desire my slave, Eros, who is also called Psyllus, to be free, if my wife consents.” Therefore, as Seia, the wife of Lucius Titius, refused to accept her share of the estate, which went to her daughter Titia, under the substitution, I ask whether Eros, who was also called Psyllus, will be entitled to his freedom by virtue of the above-mentioned clause. Modestinus answered that the rights of Eros were not prejudiced, because the wife of the testator declined to accept the estate. I also ask whether his wife, Seia, who did not enter upon the estate, could legally oppose Eros when he demanded his freedom? Modestinus answered that Seia’s refusal of consent would be of no force or effect.

Ad Dig. 22,1,42Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 14.The Same, Opinions, Book XI. Herennius Modestinus gave it as his opinion that crops taken from land after the ownership of the same had been acquired by means of a trust, belonging to the beneficiary; even though the greater part of the year had elapsed before the trust became operative.

The Same, Opinions, Book XI. A testator left a certain sum of money to be paid annually for the maintenance of the public games of the city, over which he expressed a wish that his heirs should preside. The successors of his heirs denied that they were liable for the legacy, alleging that the testator only intended it should be paid as long as his heirs could preside over the games. Therefore, when he mentioned their presiding, I ask whether he intended payment to be made during the duration of the trust, or perpetually. Modestinus answers that the legacy should be paid to the city annually in perpetuity.

The Same, Opinions, Book XI. The following words were inserted in a will: “You will furnish food to all our freedmen according to your judgment, as you are aware with what affection I regard them.” Also, in another place, the testator said, “I commit Prothymus, Polychronius, and Hypatius, to your care, in order that they may live with you, and I ask you to provide them with food.” I ask whether food should be given to all of them, or only to those whom he recommended to his heirs, and ordered to reside with them. Modestinus answered that, according to the case stated, subsistence was left to all of the freedmen, the amount of which was to be determined by the judgment of a good citizen.

The Same, Opinions, Book XI. Modestinus gave it as his opinion that if the deceased, by depriving Mævius of a legacy which was bequeathed to him, did not intend to revoke the trust with which he was charged, the heirs can be sued by virtue of the trust; and this opinion shall be approved.

The Same, Opinions, Book XI. Modestinus is of the opinion that the freedmen of a freedwoman of the testator are not included in the words, “My freedmen and freedwomen.”

The Same, Opinions, Book XII. Herennius Modestinus held that if a female slave brought forth a child at the time when, according to the terms of the donation which disposed of her, she should be manumitted; since she was free by the Imperial Constitution, the child born of her is freeborn.

Modestinus, Opinions, Book XII. A certain man, asserting that he was the son of Seia and Gaius, seized the estate of Gaius, although the latter had brothers, and discharged certain trusts in favor of these brothers, as if by the direction of the deceased, and took a receipt. They, having afterwards ascertained that the alleged son was not their brother, asked whether they could bring an action against him to recover the estate, on account of the receipt which they had given him as the son of the deceased. Modestinus answered that the position of the party to whom the receipt had been given in discharge of the trust, and who could be proved by the brothers of the deceased not to be his son, was not in the slightest degree established by this fact, but that proof must be submitted by the brothers.

The Same, Opinions, Book II. Two judges rendered two different decisions. Modestinus gave it as his opinion that they should remain in suspense until a competent magistrate had confirmed one of them.

Modestinus, Opinions, Book XII. Modestinus gave it as his opinion that a judgment obtained by others does not prejudice those who were not parties to the suit; and even if he, against whom judgment was rendered, should become the heir of the person who gained the case, an exception, based on the fact that, under this judgment, he has failed to effect what he undertook in his own name before he became the heir, cannot be pleaded against him.

Modestinus, Opinions, Book XII. If Seia, for the purpose of inflicting injury, seals up the house of her absent debtor, without the authority of the magistrate who has the right and the power to allow this, he gave it as his opinion that the action for injury could be brought.

The Same, Opinions, Book XIII. A man acknowledged as genuine certain notes which were, in fact, forged, and paid them after judgment was rendered against him. I ask, if the truth should subsequently be ascertained, and the notes found to be forged, and the defendant should desire to prove this in accordance with the order of the court, or an interlocutory decree; and, as he had admitted the genuineness of the said notes, whether he could be opposed by an exception, as it is clearly established by the Imperial Constitutions that although a judgment may be obtained by means of forged documents, and they are afterwards ascertained to be false, the fact that the matter has been decided cannot be pleaded in bar. Modestinus answered that, for the reason that payment was made through mistake, or security was furnished in the case of these notes, which were afterwards alleged to be forged, there would be no ground for an exception.

The Same, Opinions, Book XIII. Ad Dig. 46,1,41 pr.ROHGE, Bd. 8 (1873), S. 136: Substantiirung der Bürgschaftseinrede des Mitunterzeichners eines Wechsels. Beneficium excussionis.If sureties have been accepted for a sum which cannot be collected by a curator, and after the minor became of age, the amount could have been collected by the same curator, or by his heirs, and he who was a minor fails to assert his rights and becomes insolvent, a prætorian action can properly be brought against the sureties. 1The same authority gave it as his opinion, that if one of several mandators has judgment rendered against him in full and is notified to make payment, he can petition that all rights of action available against those who directed the same act to be performed be assigned to him.

The Same, Opinions, Book XIV. Modestinus stated that grandchildren, even though they are illegitimate, are not, for that reason, excluded from the intestate succession of their maternal grandmother.

The Same, Opinions, Book XV. Modestinus gives it as his opinion that a creditor can, by mere agreement, entirely remit or diminish the amount of interest to be due hereafter, without affecting the validity of the donation on the ground that the amount is illegal. 1It is the opinion of Modestinus that a person whose mind is affected cannot make a donation.

The Same, Opinions, Book XVI. Where a legacy of property which she was accustomed to use is left by a husband to his wife, the bequest will not include slaves that were not especially devoted to her service, but such as were used by both of them.

The Same, Opinions, Book XVII. Titia threatened to prove the will of her brother Gaius to be forged, but did not comply with the formalities required by the accusation within the time prescribed by the Governor of the province. The latter decided a second time that she could not proceed further with the accusation of a forged will. Titia did not appeal from these decisions, but alleged that, after the time had expired, she could maintain that the will was void. As Titia did not appeal from the decision of the Governor, I ask whether she could afterwards renew the accusation that the will was forged. The answer was that it was not clearly stated for what reason she should be heard, if she instituted proceedings disputing the authority of the decision.

Modestinus, Opinions, Book XVII. Gave it as his opinion that he who is alleged to have received a fugitive slave belonging to another, and to have concealed him, even if he asserts that he is his property, can, by no means, escape the penalty, if he is proved to be guilty.

Modestinus, Opinions, Book XVII. Lucius Titius accused Seius of forgery, and before he prosecuted him, the accusations of all defendants were dismissed by the indulgence of the Emperor. I ask, if the prosecution should not afterwards be resumed whether the accuser would be subject to the penalty of the Turpillian Decree of the Senate. Herennius Modestinus answered that the discharge of defendants, granted by public favor, does not apply to this kind of crime.

The Same, Opinions, Book XVII. Lucius Titius filed an appeal for his slave, who had been condemned to be thrown to wild beasts. I ask whether he can state the grounds for an appeal of this kind by an attorney. Modestinus answered that he could do so.

The Same, Opinions, Book XVII. Lucius Titius appointed his sister his heir to three-fourths of his estate, and his wife, Mævia, and his father-in-law, his heirs to the remainder. His will was invalidated by the death of a posthumous child, who himself died soon afterwards; and hence the entire estate was acquired by the mother of the said posthumous child. The sister of the testator accused Mævia of having poisoned Lucius Titius. Having failed to prove this, she appealed, and in the meantime, the defendant died, but nevertheless, notices were issued. I ask whether you think that the defendant having died, the appeal could be heard on account of the estate which was acquired. Modestinus answered that, although the accusation was annulled by the death of the defendant, still the Treasury had a right to recover the property, if it could be proved that it had been acquired by crime.

The Same, Opinions, Book XVIII. Herennius Modestinus held that a party who institutes proceedings in behalf of the Treasury can collect interest which was not included in the stipulation, after he has collected what is due to the Treasury for the time during which the debtor was in default.