cum Notis Pauli

Ex libro XIX

Dig. 22,6,7Papinianus libro nono decimo quaestionum. Iuris ignorantia non prodest adquirere volentibus, suum vero petentibus non nocet.

Papinianus, Questions, Book XIX. Ignorance of the law is not advantageous to those who desire to acquire it, but it does not injure those who demand their rights.

Dig. 29,1,35Idem libro nono decimo quaestionum. Miles si testamentum inperfectum relinquat, scriptura quae profertur perfecti testamenti potestatem optinet: nam militis testamentum sola perficitur voluntate: quique plura per dies varios scribit, saepe facere testamentum videtur.

The Same, Questions, Book XIX. Where a soldier leaves an imperfect will, the instrument when offered has the effect of a perfect one, for the testament of a soldier is perfected by the mere statement of his wishes. Where anyone makes several wills on different days, he is considered to make his will frequently.

Dig. 29,7,11Idem libro nono decimo quaestionum. Qui gravi utero uxorem esse ignorabat, codicillis ad filium scriptis libertates dedit. nata post mortem patris filia, cum de ea nihil patrem sensisse constitisset, placuit libertates a solo filio praestari: posse.

The Same, Questions, Book XIX. A certain man who was not aware that his wife was pregnant, in a codicil directed to his son, liberated some of his slaves. After the death of the father, a daughter was born to him, and as it was established that her father had not had her in his mind at any time, it was held that the grant of freedom should be made by the son alone:

Dig. 29,7,13Idem libro nono decimo quaestionum. Illud enim sine dubio dici non potest etiam filiam manumittere cogendam, cum ab ea nihil pater petierit et iure suo heres exstiterit. 1Tractari solet de eo, qui, cum tabulas testamenti non fecisset, codicillis ita scripsit: ‘Titium heredem esse volo’. sed multum interest, utrum fideicommissariam hereditatem a legitimo per hanc scripturam, quam codicillorum instar habere voluit, reliquerit an vero testamentum facere se existimaverit: nam hoc casu nihil a legitimo peti poterit. voluntatis autem quaestio ex eo scripto plerumque declarabitur: nam si forte a Titio legata reliquit, substitutum adscripsit, heres si non exstitisset, sine dubio non codicillos, sed testamentum facere voluisse intellegetur.

The Same, Questions, Book XIX. For it can undoubtedly be maintained that the daughter could not be compelled to manumit the slaves, since her father requested nothing of her, and she becomes an heir in her own right. 1The point is often discussed as to what conclusion should be reached, where a man did not make a will, but stated in a codicil: “I wish Titius to be my heir”. It makes a great deal of difference whether he left the estate in trust in charge of his lawful heir, by means of this instrument, which he intended for a codicil, or whether he thought that he was making a will, for, in this case, Titius could claim nothing from the lawful heir. The intention of the party in question is generally ascertained by the examination of the instrument itself. For if he left a legacy to be discharged by Titius, and appointed a substitute for him, if he should not be the heir, there is no doubt that he should be understood to have intended to make a will, and not a codicil.

Dig. 31,67Idem libro nono decimo quaestionum. Unum ex familia propter fideicommissum a se cum moreretur relictum heres eligere debet: ei quem elegit frustra testamento suo legat quod, posteaquam electus est, ex alio testamento petere potest. utrum ergo non constitit quod datur, quasi creditori relictum, an, quamdiu potest mutari voluntas, non recte creditori comparabitur? sive tamen durat electio, fuisse videtur creditor, sive mutetur, ex neutro testamento petitio competit. 1Si de Falcidia quaeratur, perinde omnia servabuntur ac si nominatim ei, qui postea electus est, primo testamento fideicommissum relictum fuisset: non enim facultas necessariae electionis propriae liberalitatis beneficium est: quid est enim, quod de suo videatur reliquisse, qui quod relinquit omnimodo reddere debuit? 2Itaque si, cum forte tres ex familia essent eius, qui fideicommissum reliquit, eodem vel dispari gradu, satis erit uni reliquisse: nam postquam paritum est voluntati, ceteri condicione deficiunt. 3Sed si uno ex familia herede instituto ille fundus extraneo relictus est, perinde fideicommissum ex illo testamento petetur, ac si nemo de familia heredi heres exstitisset. verum is, qui heres scriptus est, ratione doli exceptionis ceteris fideicommissum petentibus facere partem intellegitur: nam quae ratio ceteros admittit, eadem tacitam inducit pensationem. 4Si duos de familia non aequis portionibus heredes scribserit et partem forte quartam extero eiusdem fundi legaverit, pro his quidem portionibus, quas iure hereditario retinent, fideicommissum non petetur, non magis quam si alteri fundum praelegasset: pro altera vero parte, quae in exterum collata est, virilem qui sunt de familia petent admissa propter heredes virilium portionum pensatione. 5Sed et si fundum heres uni ex familia reliquerit eiusque fidei commisserit, ut eum extero restituat, quaesitum est, an hoc fideicommissum peti possit. dixi ita demum peti posse, si fundi pretium efficiat. sed si quidem ille prior testator ita fideicommissum reliquisset: ‘rogo fundum cui voles aut quibus voles ex familia relinquas’, rem in expedito fore: quod si talia verba fuissent: ‘peto non fundus de familia exeat’, heredis heredem propter sequens fideicommissum, quod in exterum collatum est, oneratum intellegi, petituris deinceps ceteris ex primo testamento fideicommissum post mortem videlicet eius qui primo electus est. 6Et ideo si electo uno fideicommissum in exterum non conferatur, non alias ei qui electus est fideicommissum praestandum erit, quam interpositis cautionibus: ‘fundum, cum morietur, si non in familia cum effectu relinqueretur, restitui’. 7‘Rogo, fundum cum morieris restituas ex libertis cui voles’. quod ad verba attinet, ipsius erit electio nec petere quisquam poterit, quamdiu praeferri alius potest: defuncto eo prius quam eligat petent omnes. itaque eveniet, ut quod uni datum est vivis pluribus unus petere non possit, sed omnes petant quod non omnibus datum est, et ita demum petere possit unus, si solus moriente eo superfuit. 8Si rem tuam, quam existimabam meam, te herede instituto Titio legem, non est Neratii Prisci sententiae nec constitutioni locus, qua cavetur non cogendum praestare legatum heredem: nam succursum est heredibus, ne cogerentur redimere, quod testator suum existimans reliquit: sunt enim magis in legandis suis rebus quam in alienis comparandis et onerandis heredibus faciliores voluntates: quod in hac specie non evenit, cum dominium rei sit apud heredem. 9Si omissa fideicommissi verba sint et cetera quae leguntur cum his, quae scribi debuerunt, congruant, recte datum et minus scriptum exemplo institutionis legatorumque intellegetur: quam sententiam optimus quoque imperator noster Severus secutus est. 10Item Marcus imperator rescripsit verba, quibus testator ita caverat ‘non dubitare se, quodcumque uxor eius cepisset, liberis suis reddituram’, pro fideicommisso accipienda. quod rescriptum summam habet utilitatem, ne scilicet honor bene transacti matrimonii, fides etiam communium liberorum decipiat patrem, qui melius de matre praesumpserat: et ideo princeps providentissimus et iuris religiosissimus cum fideicommissi verba cessare animadverteret, eum sermonem pro fideicommisso rescripsit accipiendum.

The Same, Questions, Book XIX. Where an heir is obliged to select one person out of the family of the testator to whom to deliver property under a trust, which was to be executed at the time of his death, he cannot, after he has made his selection, legally bequeath the same property by will to anyone else, because he can claim the property under another will. Therefore, will it not be the case that the bequest is invalid, as where a legacy is left to a creditor; for so long as he can change his mind should he not properly be compared to a creditor? Still, while his choice stands, he will appear to resemble a creditor, but when he changes his mind, he will have no right to claim the property under either will. 1Where the benefit of the Falcidian Law is claimed, everything must be carried out just as if the trust had been expressly left by the first will to him who afterwards was chosen, for the necessity of making a choice does not give rise to an obligation founded on his own liberality. For, can he, who would absolutely be obliged to surrender what he left, be considered to have bequeathed some of his own property? 2Hence, where there are three persons in the family, of the same or different degrees, to whom a trust was left, it will be sufficient to leave it to one of them, for after the will of the testator has been complied with, the others will be excluded by the condition. 3If, however, one of the family of the testator should be appointed heir, and the tract of land be left by him to a stranger, the execution of the trust can be made the subject of an action at law under the will, if no member of the family was appointed by the heir. However, where a testamentary heir was appointed by him, it is understood that an action based on bad faith can be filed against the others who claim the trust, for the same reason which enables them to benefit by the trust, will also furnish a ground for implied compensation. 4If the heir should appoint two members of the testator’s family heirs to unequal portions of his estate, and should leave to a stranger a certain share of the land (for instance a fourth), the execution of the trust cannot be demanded, so far as those shares which the heirs retained by right of inheritance are concerned, any more than if the land had been devised to one of them as a preferred legacy; but all the members of the family can claim equal portions of the share which was left to the stranger, and contribution must be made, in order that these heirs may receive equal portions with the others. 5If, however, the heir should leave the land to one member of the family and charge him to deliver it to a stranger, the question arises whether the execution of this trust can be demanded. I said that this could only be done where an amount was also left to the heir which was equal to the value of the land. If, however, the first testator had left the trust as follows, “I charge you leave this tract of land to whom you may wish, or to those members of my family to whom you may desire to leave it,” the matter will be free from difficulty. But if the trust was established in the following words, “I do not wish the land to go out of my family,” the successors of the heir are understood to be bound on account of the trust, which was created for the benefit of the stranger; and the members of the family of the first testator will afterwards have a right to demand the execution of the trust, of course after the death of him who was selected in the first place. 6Therefore, if, after the selection of one of the relatives of the testator has been made, a trust should not be created in favor of a stranger, the party who was chosen cannot obtain the benefit of the trust, unless he furnishes security for the return of the land at the time of his death, if it should actually not be in the family at that time. 7“I ask that when you die you will transfer such-and-such a tract of land to any one of my freedmen whom you may select.” These words seem to mean that the choice will belong to the heir himself, and that none of the freedmen can claim the property so long as another can be preferred to him; but if the heir should die before making a selection, all the freedmen can claim the land. Hence, the result is that where the property is given to one, one of them cannot claim it while several are living, but all can claim it although it is not left to all; and one can only claim it if he should be the sole survivor at the time of the death of the heir. 8If, after having appointed you my heir, I bequeath your property, which I suppose to be my own, to Titius, there is no ground in this case for the application of the opinion of Neratius Priscus, by which it is provided that an heir cannot be compelled to pay the legacy, as relief should be granted heirs to prevent them from being compelled to purchase property which the testator bequeathed under the impression that it was his own. For men are much more inclined to bequeath their own property than to purchase that of others, and thereby impose a burden upon their heirs, which, in this instance, does not happen, as the ownership of the property is vested in the heir. 9If words creating a trust are omitted by the testator, and other property which is bequeathed seems to agree with what should have been written, the trust will be legally created, and it is presumed that less was written than was intended; just as is understood in the case of the appointment of heirs and legatees. This opinion was also adopted by our Illustrious Emperor Severus. 10Moreover, the Emperor Marcus stated in a Rescript that where a testator provided as follows, “I do not doubt that my wife will return to her children everything that she has received from me,” it should be considered to be a trust. This Rescript is of the greatest importance, for it presumes the existence of an honorable and well-conducted matrimonial life, and that the father was not deceived with reference to a trust created for the benefit of the children of both the parties. Therefore, when this most wise Prince, who scrupulously observed the laws, perceived that the ordinary terms employed in creating a trust had been omitted, he decided that the language used should be understood as having established one.

Dig. 31,69Papinianus libro nono decimo quaestionum. ‘Peto, Luci Titi, contentus sis centum aureis’. fideicommissum valere placuit idque rescriptum est. quid ergo si, cum heredem ex parte instituisset, ita locutus est: ‘peto pro parte tua contentus sis, Luci Titi, centum aureis?’ petere poterunt coheredes partem hereditatis, retinente sive praecipiente quo contentum esse voluit defunctus. sine dubio facilius est hoc probare, quam probari potuit illud, cum ibi fideicommissum petatur ab his, cum quibus non est testator locutus. idem dicemus, si, cum ex asse scripsisset heredem, eius gratia, qui legitimus heres futurus esset, ita loquatur: ‘peto pro hereditate, quam tibi reliqui, quae ad fratrem meum iure legitimo rediret, contentus sis centum aureis’. 1Praedium, quod nomine familiae relinquitur, si non voluntaria facta sit alienatio, sed bona heredis veneant, tamdiu emptor retinere debet, quamdiu debitor haberet bonis non venditis, post mortem eius non habiturus quod exter heres praestare cogeretur. 2Mater filio impubere herede instituto tutorem eidem adscripsit eiusque fidei commissit, ut, si filius suus intra quattuordecim annos decessisset, restitueret hereditatem Sempronio. non ideo minus fideicommissum recte datum intellegi debet, quia tutorem dare mater non potuit. nam et si pater non iure facto testamento tutoris fidei commisserit, aeque praestabitur, quemadmodum si iure testamentum factum fuisset: sufficit enim, ut ab impubere datum fideicommissum videatur, ab eo dari, quem is qui dabat tutorem dederat vel etiam tutorem fore arbitrabatur. idem in curatore impuberis vel minoris annis debet probari. nec interest, tutor recte datus vivo patre moriatur vel aliquo privilegio excusetur vel tutor esse non possit propter aetatem, cui tutor fuerat datus: quibus certe casibus fideicommissum non intercidit, quod a pupillo datum videtur. hac denique ratione placuit a tutore, qui nihil accepit, fideicommissum pupillo relinqui non posse, quoniam quod ab eo relinquitur extero, non ipsius proprio, sed pupilli iure debeatur. 3Fratre herede instituto petit, ne domus alienaretur, sed ut in familia relinqueretur. si non paruerit heres voluntati, sed domum alienaverit vel extero herede instituto decesserit, omnes fideicommissum petent qui in familia fuerunt. quid ergo si non sint eiusdem gradus? ita res temperari debet, ut proximus quisque primo loco videatur invitatus. nec tamen ideo sequentium causa propter superiores in posterum laedi debet, sed ita proximus quisque admittendus est, si paratus sit cavere se familiae domum restituturum. quod si cautio non fuerit ab eo, qui primo loco admissus est, desiderata, nulla quidem eo nomine nascetur condictio, sed si domus ad exterum quandoque pervenerit, fideicommissi petitio familiae competit. cautionem autem ratione doli mali exceptionis puto iuste desiderari, quamvis nemo alius ulterior ex familia supersit. 4Si quidam sint postea emancipati, tractari potest, an hi quoque recte fideicommissum petant. et puto recte petituros, quoniam familiae appellatione personae quoque hae demonstratae intelleguntur.

Papinianus, Questions, Book XIX. “I ask Lucius Titius to be content with a hundred aurei.” It is settled that where a clause of this kind is inserted into a will it creates a valid trust. But what if, after the testator had appointed an heir to a portion of his estate, he should speak as follows: “I ask that Lucius Titius be content with his share of a hundred aurei”? The co-heirs will have a right to demand his share of the estate, whether he either retains or holds as a preferred legacy, the sum which the deceased desired he should be content with. It is no doubt better to adopt this opinion than the one that the trust can be claimed to those whom the testator did not mention. We hold that the same rule will apply where the testator appointed an heir to his entire estate for the purpose of favoring him who would be his heir-at-law, and used the following language: “I ask that you be content with a hundred aurei which I have left to you instead of my estate, which will pass to my brother by operation of law.” 1Where a tract of land is left with the understanding that it will remain in the family, and it is disposed of without the consent of the heir, by means of a forced sale, the purchaser can retain it as long as the debtor could have held it, if his property had not been sold, but he cannot retain it after his death, as the foreign heir will be compelled to surrender it. 2A mother having appointed her son, who was under the age of puberty, her heir, also appointed a guardian for him, and charged the latter: “To deliver the estate to Sempronius, if her son should die without reaching the age of fourteen years.” Although the mother could not legally appoint a guardian, the trust should still be understood to have been properly created. For if a father should appoint a guardian, and charge him with the trust by a will which was not drawn up in compliance with the legal requirements, the trust must, nevertheless, be executed, just as if the will had been made in accordance with law. In order that a minor under the age of puberty may be charged with a trust it will be sufficient for the testator to charge his guardian, whom he appointed, with it, or one whom he supposed to be his guardian. The same rule should be adopted in the case of the appointment of a curator for a child under the age of puberty, or a minor. Nor does it make any difference whether a guardian, who was properly appointed, dies during the lifetime of the father, or whether he has been excused from serving on account of some privilege which he enjoyed, or whether he could not act for the ward for whom he was appointed on account of his age; since in these instances it is certain that the trust is not annulled, because it is considered that the ward is charged with its execution. Hence, in accordance with this principle, it was decided that a guardian who did not receive anything under the will can not be charged with a trust for the benefit of his ward, as whenever he is charged with a trust for the benefit of a stranger, it must be executed in the name of his ward, and not in that of himself. 3Where a testator appointed his brother his heir and charged him not to sell his house, but to retain it in the family, and the heir did not comply with the request, but sold the house, or died after appointing a stranger his heir; all those who belong to the family can demand the execution of the trust. But what if they were not all of the same degree? This question should be disposed of by considering the party who is next of kin to be first heir called to the succession; still, the rights of the heirs further removed should not be prejudiced on account of those who precede them, and the next of kin should be admitted only where he is ready to give security to restore the house to the family. If, however, security should not be required of the heir who was first admitted, no right of action for the recovery of the property will arise on this ground; but if the house should ever pass into the hands of a stranger, an action to compel the execution of the trust will lie in favor of the members of the family. I think that security can properly be required of the next of kin, by filing an exception on the ground of bad faith, even though there may be no surviving member of the family in a more distant degree. 4Where certain members of the family are subsequently emancipated, the question may arise whether they also can legally demand the execution of the trust. I think that they can do so, according to law, since the persons mentioned by the testator in this way are understood to be included in the term “members of the family.”

Dig. 34,3,22Papinianus libro nono decimo quaestionum. ‘Quod mihi Sempronius debet, peti nolo’: non tantum exceptionem habere debitorem, sed et fideicommissum ut liberetur petere posse responsum est.

Papinianus, Questions, Book XIX. “I do not wish anything that Sempronius owes me to be collected.” It was decided that the debtor, in order to compel his release, was not only entitled to an exception, but also to an action under the will.

Dig. 35,1,73Idem libro nono decimo quaestionum. Titio fundus, si in Asiam non venerit, idem, si pervenerit, Sempronio legatus est. cum in omnibus condicionibus, quae morte legatariorum finiuntur, receptum est, ut Muciana cautio interponatur, heres cautionem a Titio accepit et fundum ei dedit. si postea in Asiam pervenerit, Sempronio heres, quod ex stipulatu cautionis interpositae consequi potest, utili actione praestare cogitur. sed si cautio medio tempore defecerit, quae sollicite fuerat exacta, non de suo praestabit heres, sed quia nihil ei potest obici, satis erit actiones praestari. si tamen, Titius cum in Asiam venisset, Sempronius, priusquam legatum accipiat, decesserit, heredi eius deberetur, quod defunctus petere potuit.

The Same, Questions, Book XIX. A certain tract of land was left to Titius, “If he should not go into Asia,” and, if he should go there it was left to Sempronius. As in the case of all conditions which are terminated by the death of the legatees, it was decided that a Mucian bond must be furnished, and the heir received a bond from Titius, and transferred the land to him. If he should afterwards go to Asia, suit can be brought against the heir to compel him, by a prætorian action, to pay to Sempronius what he could recover under the stipulation secured by the bond which had been given. If the bond, which had been taken with all due caution, should in the meantime become worthless, the heir will not be required to make good the amount out of his own property; but as he can in no way be blamed, it will be sufficient for him to assign his rights of action. If, however, Titius should go into Asia, and Sempronius should die before receiving the legacy, the rights of the deceased will pass to his heir.

Dig. 35,2,9Idem libro nono decimo quaestionum. In Falcidia placuit, ut fructus postea percepti, qui maturi mortis tempore fuerunt, augeant hereditatis aestimationem fundi nomine, qui videtur illo in tempore fuisse pretiosior. 1Circa ventrem ancillae nulla temporis admissa distinctio est nec immerito, quia partus nondum editus homo non recte fuisse dicitur.

The Same, Questions, Book XIX. It was decided with reference to the Falcidian Law that, after the crops which had matured at the date of the death of the testator have been gathered, they increase the value of the estate as forming part of the land, which is held to have been worth more at that time. 1No distinction with reference to time is admitted, so far as the unborn child of a female slave is concerned. This is not unreasonable, because as the child has not yet come into the world, it cannot properly be called a slave.

Dig. 36,1,54Idem libro nono decimo quaestionum. Si res aliena Titio legata fuerit isque domino rei herede instituto petierit, ut hereditatem Maevio restituat, Maevius legatum inutiliter petet: non enim poterit consequi, quod ad institutum, id est rei dominum pervenire non poterat. 1Servus ab altero ex heredibus libertatem, ab altero fideicommissum hereditatis accepit. si neuter adire velit, nullae praetoris partes erunt, quia neque propter solam libertatem compellitur adire neque is, a quo libertas data non est, propter eum, qui nondum liber est, ut adeat, compellitur: et senatus consulto locus est, cum ab omnibus directa, vel fideicommissa libertas ab eo datur a quo hereditas quoque relinquitur. sed si forte is, a quo libertas data est, portionem suam repudiavit vel condicione exclusus est, cum portio eius ad alterum pervenerit, defendi poterit adire cogendum: quid enim interest, quo iure debitor libertatis et hereditatis idem esse coeperit?

The Same, Questions, Book XIX. Where property belonging to a third party is bequeathed to Titius, and the latter charges his master, whom he has appointed his heir, to transfer the estate to Mævius, Mævius cannot legally claim the legacy, for he cannot acquire what has never come into the hands of the appointed heir, that is to say, the ownership of the property. 1A slave obtained his freedom from one of two heirs who had been appointed, and from the other received an estate left in trust. If neither of the said heirs was willing to accept the estate, the Prætor would have no jurisdiction, because he cannot compel an heir to enter upon an estate for the sole purpose of securing the freedom of the slave, nor can he compel him by whom freedom has not been granted to accept the estate on behalf of a slave who has not yet been liberated, as the Decree of the Senate applies only where all the heirs are charged directly with a grant of freedom, or one is charged with it as well as with the delivery of the estate under the terms of a trust. If the heir who is charged with the grant of freedom should reject his share of the estate, or should be excluded because of the non-fulfillment of the condition upon which his appointment depends, as his share will pass to the other heir, it can be maintained that he should be forced to accept the estate. For what difference does it make under what rule the same person should owe the slave both freedom and the estate?

Dig. 36,1,56Idem libro nono decimo quaestionum. Titius rogatus est, quod ex hereditate superfuisset, Maevio restituere. quod medio tempore alienatum vel deminutum est, ita quandoque peti non poterit, si non intervertendi¹¹Die Großausgabe liest interveniendi statt intervertendi. fideicommissi gratia tale aliquid factum probetur: verbis enim fideicommissi bonam fidem inesse constat. divus autem Marcus cum de fideicommissaria hereditate cognosceret, his verbis: ‘quidquid ex hereditate mea superfuerit, rogo restituas’ et viri boni arbitrium inesse credidit: iudicavit enim erogationes, quae ex hereditate factae dicebantur, non ad solam fideicommissi deminutionem pertinere, sed pro rata patrimonii, quod heres proprium habuit, distribui oportere. quod mihi videtur non tantum aequitatis ratione, verum exemplo quoque motus fecisse. cum enim de conferendis bonis fratribus ab emancipato filio quaereretur, praecipuum autem, quod in castris fuerat adquisitum militi, relinqui placeret, consultus imperator sumptus, quos miles fecerat, non ex eo tantummodo patrimonio, quod munus collationis pati debuit, sed pro rata etiam castrensis pecuniae decedere oportere constituit. propter huiusmodi tractatus Maevius fideicommissi nomine cautionem exigere debet: quod eo pertinet, non ut ex stipulatione petatur, quod ex fideicommisso peti non poterit, sed ut habeat fideiussores eius quantitatis, quam ex fideicommisso petere potuit.

The Same, Questions, Book XIX. Titius was charged to transfer to Mævius the residue of an estate. The beneficiary can not recover anything which the heir may have in the meantime alienated or wasted, if it should be proved that he has not done this fraudulently and for the purpose of interfering with the trust; for it is established that good faith is an essential characteristic of a fiduciary bequest. The Divine Marcus, however, when he was deciding a matter involving an estate left in trust, which was contained in the following words, “I charge you to transfer anything which remains of my estate,” held that this should be left to the judgment of a good citizen, and decided that any expenses which were said to have been incurred with reference to the estate should not only cause a diminution of the property included in the trust, but should also be distributed pro rata with reference to the patrimonial estate, to which the heir was entitled as his own. This seems to me to not only be based on equity, but also to be confirmed by example; for if a question should arise concerning the contribution of property by an emancipated son in favor of his brothers, it has been definitely settled that whatever was acquired by the son in the army he is entitled to retain; and the Emperor, having been consulted, decided that the expenses incurred by the soldier should not only be apportioned among the funds due from the estate, but ought also to be deducted pro rata from the money forming part of the peculium. According to what has just been stated, Mævius should require a bond to be given for the execution of the trust, not in order that he may, under the stipulation, make a claim for what he could not recover under the trust, but that he may have sureties for the amount which he could have recovered under the terms of the trust.

Dig. 36,4,9Idem libro nono decimo quaestionum. Etiam si condemnatus heres fuerit nec pecuniam solvat, legatarius potest desiderare mitti in possessionem. 1Cum sub condicionibus contrariis eadem res duobus legetur, si non caveatur, uterque mittitur in possessionem.

The Same, Questions, Book XIX. Even if the heir should be ordered by the court to pay the legacy, and does not do so, the legatee can apply to be placed in possession. 1Where the same property is bequeathed to two persons, under different conditions, and security is not furnished, both of them can be placed in possession of said property.

Dig. 40,5,21Papinianus libro nono decimo quaestionum. ‘Rogo, ne Stichus alterius servitutem experiatur’. intellegi datam fideicommissam libertatem placuit principi: quid enim tam contrarium est servituti quam libertas? nec tamen quasi post mortem heredis data videbitur: quod eo pertinet, ut, si vivus eum alienaverit, confestim libertas petatur nec prosit ad impediendam libertatis petitionem, si redemerit eum, cuius semel condicio extitit. idem probandum est et si non voluntaria alienatio ab herede facta est: nec refragabitur, quod non per ipsum alienatio facta est. fuit enim quasi statuliber et quacumque ratione condicio impleta est.

Papinianus, Questions, Book XIX. “I request that Stichus shall not become the slave of another.” It was decided by the Emperor that freedom was granted by a trust under this clause: for what is more opposed to slavery than freedom? Freedom, however, is not considered as granted after the death of the heir. The result is that if the heir, during his lifetime, should alienate the slave, he can immediately demand his freedom, and if the heir purchases him, it will be no impediment to his becoming free, as the condition has already been fulfilled. This rule should also be adopted where the alienation by the heir was not voluntary, nor can it be stated, in opposition, that the alienation was not made by the heir himself; for the case resembles that of a slave who was to be free conditionally, where, to a certain extent, the condition has been complied with.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

Quaestionum libri

Ex libro XIX