Papinianus, Questions, Book XVII. Where the usufruct is bequeathed to Titius and the mere ownership to Mævius, and, during the lifetime of the testator Titius dies, nothing is left in the hands of the party appointed heir; and Neratius also gave this as his opinion. 1It is established that in certain instances the usufruct can not be regarded as a part of the property; and, therefore, where suit is brought for a portion of the land or of the usufruct and the defendant gains the case, and afterwards an action for recovery is brought for another part which has been obtained by accretion, Julianus says that in the action for the property on the ground of a previous decision rendered, an exception can be pleaded; but in the action for the usufruct it cannot be interposed, since the portion of the land which was added, for instance by alluvion, would belong to the original part, but the increased usufruct would accrue to the person.

Papinianus, Questions, Book XVII. Where an usufruct is left to two parties separately for alternate years, the property exists for years without the right of enjoyment; while, if it is left to one legatee alone to whom the usufruct for every other year is bequeathed, the entire property will vest in the heir during the time when the right of enjoyment does not belong to the legatee. Where, however, one of the two parties dies, the right to the property will be complete for the odd years, for there can be no accrual to the other party) since each one had his own times for the enjoyment of the entire usufruct without the other being associated with him. 1Where not death, but a loss of civil rights takes place, then, because there are several bequests, the usufruct only for that year will be lost, provided the party had the right of usufruct merely for that time; and this principle should be upheld in the case of a legatee who received the usufruct for a certain number of separate years, so that the mention of the terms has the effect of a renewal of the right. 2Where an usufruct is bequeathed to certain persons for alternate years, and they agree to enjoy it during the same year, they interfere with one another, since it does not seem to have been intended that they should enjoy it together; for it makes a great deal of difference whether an usufruct is bequeathed to two persons together for alternate years, (as then it cannot run longer than the first year, any more than if it had been bequeathed in the same way to one of them) or it is bequeathed to separate persons for alternate years; for if they wish to enjoy it together they will either interfere with one another, on account of this being contrary to the intention of the testator; or, if this is not the case, the usufruct for every other year will not be enjoyed by anyone.

Ad Dig. 7,5,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 204, Note 7.Papinianus, Questions, Book XVII. Three heirs having been appointed by a testator, he bequeathed to Titius the usufruct of fifteen thousand aurei, and ordered two of the heirs to give security for the legatee. It was decided that there was a Valid legacy of the security, and that the Decree of the Senate did not oppose this interpretation, because the execution of the bond was not prevented; and that one of the legacies was for a certain amount, and the other for an amount which was uncertain, and therefore that suit might be brought for a part of the money as usufruct against the heir who had received security from his co-heir; and that he was liable to an action for an uncertain amount if he himself did not give security. With reference, however, to the heir who furnished security, and who, on account of the delay of his co-heir, had not received any, he would not, in the meantime, be liable under the Decree of the Senate for the usufruct, nor would he be liable to the action for uncertain damages because he had given security to his co-heir. We are also of the opinion that the legatee can be compelled to promise; but when the usufruct is terminated, if the co-heirs are sued on account of their suretyship, they will not be entitled to an action on mandate, as no mandate was ever undertaken, but they only obeyed the will of the testator, and, in short, are released by the legacy of security. It is not necessary to enter into a long discussion with reference to the following question, namely, that the second legacy, that is to say the one of the security, does not seem to have been left to the heirs but to the party to whom the usufruct of the money was bequeathed, and for whom the testator wished to provide, and whose interest he thought it was that he should not seek for sureties at his own risk.

The Same, Questions, Book XVII. His entire estate not having been distributed, a testator inserted in his will: “Let him be the heir whom I shall appoint by my codicil.” He appointed Titius his heir by his codicil. This appointment is valid, for although an estate cannot be bequeathed by a codicil; still, in this instance, it is held to have been left by the will. The heir, however, will only be entitled to that portion of the estate which has not yet been disposed of.

The Same, Questions, Book XVII. Mævius left a tract of land to Titius and myself under a condition, and his heir left the same land to me under the same condition. Julianus says that it would be held that, when the condition is fulfilled, the same share will belong to me under both wills. The question of intention is, however, involved, for it seems to be incredible that the heir should have intended that the same share of the estate should be twice due to the same person. Still, it is very probable that he had in mind the other half of the estate. For the Constitution of the Emperor, by which it was provided that where the same property is bequeathed several times to the same person, does not impose an additional burden upon the heir, as it applies to only one will. A debtor, however, cannot always legally bequeath what he owes, as, for him to do so, the property contained in the legacy must be of greater value than the debt. For if the same property is left under the same conditions under which it is due, what advantage will attach to a legacy? 1Ad Dig. 31,66,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 639, Note 4.Part of a tract of land which belonged to Mævius was left to Titius by the wills of two persons. It was not unreasonably decided, where the share which belonged to Mævius was delivered by one heir, that a release was obtained for the same share under the other will, and that, where the share had been alienated, the heir could not afterwards recover it by a right of action which had once been extinguished. 2Where merely the devise of a portion of the land, but not that which belonged to Mævius, was involved, a former payment did not extinguish the second action, and the other heir could deliver the same share of the property in any manner he chose, after it had once become his own; for it is understood that several persons can have a legal right to one tract of land, even where it is not divided up into sections. 3The same opinion is not held where a slave is bequeathed in general terms by two wills, for where a slave is delivered under one of them, and once becomes the property of the legatee, even though he may afterwards be alienated, he cannot be delivered by the other heir. The same rule applies to a stipulation. For where a slave is bequeathed in general terms, a separate slave should be understood, so that, as a legacy is not valid from the beginning if it includes property which belongs to the legatee, so also the delivery of property whose ownership was subsequently acquired by the legatee is without effect, even though he has ceased to be the owner of the same. 4Where the heir has buried a dead body in land which was devised, an appraisement must be made of the value of the entire tract, before the burial took place. Therefore, if the land has been transferred, it is but reasonable that the legatee should retain his right of action under the will, to indemnify him for the alienation of the property. 5Where a legatee, to whom one of the heirs was charged to transfer certain property, paid the estimated value of what was bequeathed, and afterwards a codicil was produced by which all the heirs were charged to deliver the same property, I held that the ownership of the same could not again be demanded. For indeed where a party makes use of several ways to establish the testamentary disposition of his estate, he is not understood to have left the same property several times to the same person, but merely to have mentioned it several times. 6Ad Dig. 31,66,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 654, Note 23.Where a tract of land is devised, and the usufruct belongs to someone else, it can, nevertheless, be demanded from the heir, for the usufruct, although it may not legally be a part of the land, still includes its profit. And, indeed, where a tract of land is left, an action can be brought to compel the heir to deliver everything which should be transferred, and follow the legacy; for example, where a tract of land is hypothecated, or is in the possession of someone else. The same rule, however, does not apply to other servitudes. If my own property is bequeathed to me, the legacy will not be valid, for the reasons above stated. 7Where a municipality is appointed an heir, with the reservation of the usufruct, the mere ownership can be bequeathed by the municipality, for the reason that it can lose the usufruct by non-user.

Ad Dig. 33,2,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 208, Note 8.Papinianus, Questions, Book XVII. Where the services of a slave are bequeathed, they are not lost by forfeiture of civil rights, or by non-user; and, as the legatee can profit by the labors of the slave, he can also lease them. If the heir should prevent him from making use of his services, he will be liable. The same rule applies where the slave leases himself. And, for the reason that the legatee is not considered an usufructuary, he will transmit the legacy of the slave’s services to his heir, but where the title to the slave is obtained by usucaption the legacy will be extinguished.

Papinianus, Questions, Book XVII. If the heir should deface a painting which was bequeathed, and deliver the board on which it was painted, it may be said that an action will still lie under the will, because the legacy consisted of a painting and not of a board.

The Same, Questions, Book XVII. A hundred aurei were bequeathed to Titius, in order that he might purchase a tract of land. Sextus Cæcilius thinks that Titius should not be compelled to give security, because, in any event, the entire benefit of the legacy would accrue to him. If, however, the testator intended to benefit the son of his brother, whom he had reared, and who was hardly capable of transacting business, it must be held that the heir was interested, and therefore security should be furnished that the land would be purchased, and would not afterwards be alienated. 1A hundred aurei were left to Titius, under the condition that “he would marry Mævia who is a widow.” In this instance, the legatee cannot be released from compliance with the condition, and hence he will not be excused from giving security. This opinion cannot be successfully opposed, for if anyone should promise to pay the money to Titius if he should not marry Mævia, the Prætor will refuse him an action; for it is one thing for a man to be deprived of the freedom of marriage through fear of a penalty, and another to be induced to contract matrimony under a certain condition. 2A hundred aurei were bequeathed to Titius, under the condition, “That he will not leave my monument,” or “Or that he will always reside in such-and-such a city.” It can be said that there is no ground for demanding security by which the right of liberty may be infringed. We make use of a different rule with reference to the freedman of a deceased person. 3“Let my heir give to my son-in-law Titius a hundred aurei by way of dowry for my daughter Seia.” The benefit of the legacy will belong to Seia because she begins to have a dowry; but as the testator seemed to have had in his mind not only the woman, but also Titius to whom he bequeathed a sum of money, it is proper that he himself should be understood to be the legatee, and therefore be able to claim the legacy. If the heir should pay the money through the son-in-law, after a divorce had taken place, he will also be released, as the payment was converted into the dowry. Payment can legally be made to Titius during the existence of the marriage, even if the woman should forbid this to be done, for it is to her interest that she should begin to be endowed. And if anyone should say that she herself is entitled to a right of action and can bring suit to recover the money, and does not wish it to constitute her dowry, there is no doubt that she can be barred by an exception on the ground of bad faith. If Titius or the woman should die before contracting marriage, the legacy will belong to the heir. If Titius should not be willing to marry the woman, the legacy will be valid so far as she is personally concerned, but if Titius should claim it, he can be barred by an exception on the ground of bad faith. Sabinus was of the opinion that if the woman was married to Titius, the legacy would be due without any security, as the money would become her dowry. Security for payment, however, would be necessary before marriage, because the legacy, being absolute, can be demanded. But if the husband should lose his case through his own fault, and should prove to be insolvent, ought the woman to be entitled to relief against the heir for the money which was intended as her dowry, where she was not at all to blame? As both husband and wife have rights of action in this case, the woman will retain hers if the legacy is not paid to her husband.

The Same, Questions, Book XVII. Where an heir is charged to deliver an estate left in trust, after having deducted the legacies, it is not held that those should be deducted which cannot be recovered by an action. Where a dowry is bequeathed as a preferred legacy to a wife, who is appointed heir to a part of the estate of a testator, and she is charged to transfer the estate after having deducted the legacies, she can still deduct her share of the estate in proportion to the dowry, even if the fourth which she is entitled to retain by the Falcidian Law amounts to as much as her dowry. For, as she is entitled to both of these, there is no difference between this woman and any other creditor who may be appointed heir, and charged to transfer the estate. The same principle also applies where she is charged with a trust without the deduction of the legacies.