Paulus, On the Lex Falcidia. Therefore, it could happen in this instance that a virgin might be entitled to her dowry and an action to recover the same.

The Same, On the Lex Falcidia. Where a flock is bequeathed, a portion of the same cannot be rejected, and a portion accepted; because there are not several legacies, but only one. Where a peculium, or clothing, or silver plate, or other articles of this kind are bequeathed, we hold that the same rule will apply.

Paulus, On the Lex Falcidia. The Falcidian Law, by its first Article, conferred the power of disposing of an estate up to and including three-fourths of the same, as follows: “Those Roman citizens who desire to make a will after the enactment of this law shall have the right and the power to give and bequeath their money and their property to anyone whom they may select, in accordance with the following provisions.” In the second Article, the amount of the legacies which can be bequeathed is established in the following words: “Any Roman citizen who may execute a will after the passage of this law shall have the right and the power to bequeath as large a sum of money as he wishes to any other Roman citizen, in accordance with public law; provided the legacy is left in such a way that his heirs will receive not less than a fourth part of his estate under the terms of the will. Those to whom any money is given or bequeathed shall be entitled to receive the same without being liable for fraud; and an heir who is ordered and charged to pay said money must pay it in compliance with the directions prescribed.” 1On account of the Cornelian Law, the Lex Falcidia is also considered to apply to those who die in the hands of the enemy; for the reason that the Cornelian Law confirms their wills just as if they had lost their lives in their own country, by reason of which fiction the Lex Falcidia and all others relating to wills which can be considered to have the same application are included in this category. 2The Lex Falcidia does not have reference to those who reject an estate left by a will, in order to obtain possession of it on the ground of intestacy; but the power of the law can be applied by means of the Edict of the Prætor. 3The rule is the same where the condition of taking an oath is remitted. 4Where a testator makes a bequest to his slave with the grant of his freedom this law will apply, because payment of the legacy is postponed until the time when the slave will become free; and this is also the case where the person to whom property is left is in the hands of the enemy or has not yet been born. 5The Falcidian Law also applies to legacies bequeathed to municipalities, or even for religious purposes. 6Again, it not only applies to bequests of property of the testator, but also to those of property belonging to others. 7Everything which must be paid or delivered out of the estate of the deceased is subject to the provisions of this law, whether it is certain or uncertain, and whether it is to be weighed, counted, or measured; and the law also applies where the right of property is bequeathed, as, for instance, the usufruct, or any claim which may be due. 8Likewise, where a legacy is bequeathed as follows, “Let my heir furnish Seius with provisions, and if he should not do so, let him pay him ten aurei,” some authorities hold that the legacy is limited to ten aurei, that the provisions can only be acquired as a donation mortis causa, and that the heir cannot avail himself of the benefit of the Falcidian Law. When stated that provisions must be furnished without delay, it should be understood to mean after a reasonable time. If, however, the heir should furnish them after having been in default, the legatee will have no right to receive them, and the Falcidian Law will not apply; for the provisions which were bequeathed have now been transformed into a pecuniary legacy, and the ten aurei are due. The rule will be the same if, in the beginning, the bequest had been made as follows, “If he should not furnish the provisions, let him pay ten aurei,” for in this instance the provisions are not the object of the bequest, and if they are furnished they will be acquired mortis causa, since the condition of the legacy has not been fulfilled. 9Where an usufruct is bequeathed, as it can be divided, it is different from other servitudes which are indivisible; and certain ancient authorities were accustomed to hold that the entire usufruct should be appraised, and in that way the amount included in the legacy be determined. Aristo, however, dissents from this opinion of the ancients, for he says that a fourth part of this can be reserved, as in the case of corporeal property. Julianus very properly approves this opinion. But where the services of a slave are bequeathed, as neither use nor usufruct is considered to be included in a legacy of this kind, the decision of the ancients must necessarily be adopted, in order that we may ascertain what is embraced in the legacy; because, necessarily, in all acts which are to be performed, a part must be deducted to comply with the Falcidian Law, and part of the labors of a slave cannot be understood to exist. Even if, in the case of the usufruct, the question should arise to how much the legatee to whom the usufruct was given will be entitled, and what proportion should be allotted to the other legatees, in order that the share of the said legatee may not exceed three-fourths of the estate, recourse must necessarily be had to the rule of the ancient jurists. 10Where anyone bequeaths to his creditor the amount that he owes him, the legacy will either be void, if no advantage enures to the creditor; or, if he is benefited by it, for instance, by immediate payment, the Falcidian Law will also apply with reference to the advantage obtained by the creditor. 11If the legatee has obtained possession of the property bequeathed, and he cannot be deprived of it because he obtained possession of the same with the consent of the heir, who gave it while laboring under a mistake, an action will be granted to the heir to recover everything over and above three-fourths of the value of said property. 12It sometimes becomes absolutely necessary for the entire legacy to be paid to the legatee, if he enters into a stipulation to return anything which he may receive above the amount allowed by the Falcidian Law; for example, where a minor is charged with the payment of legacies which do not exceed the amount authorized by that law, for there is reason to believe that other legacies may come to light after the death of the minor, which, after contribution has been made, will amount to more than three-fourths of the estate. The same rule may be said to apply where legacies are bequeathed conditionally under the first will, and it is uncertain whether they will be payable or not; and therefore if the heir is ready to pay them without application to court, he can protect his interest by means of the stipulation above mentioned. 13Ad Dig. 35,2,1,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 653, Note 8.The share obtained by an heir through the substitution of his co-heir will benefit the legatee, for, in this instance, the heir resembles one who has been appointed absolutely for one part of the estate, and conditionally for another. Where, however, he refuses to accept the estate, the legacies with which he is charged will not increase by accrual; for instance, where they are bequeathed specifically, and not in general terms, as to “Whomever shall be my heir.” 14Ad Dig. 35,2,1,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 653, Note 16.If the share of my co-heir is exhausted, mine remains unimpaired, and if I should claim his, Cassius thinks that the two shares ought to be merged. Proculus, however, holds the contrary. In this case Julianus agrees with Proculus, which opinion I think to be the more correct one. The Divine Antoninus, however, is said to have decided that both shares should be united in computing what is due under the Falcidian Law. 15If I should arrogate my co-heir after the estate has been entered upon, there is no doubt that the shares ought to be separated, just as if I became the heir of my co-heir. 16If a legacy, payable annually, is bequeathed to Titius for the reason that there are several legacies, and they are conditional, there will be ground for the furnishing of the bond mentioned in the Edict, in order to secure the return of any amount received over and above that allowed by the Falcidian Law. 17Certain authorities hold that payment of what is naturally due to the estate and cannot be demanded should not be required, and ought not to be reckoned as part of the assets. Julianus, however, thinks that these claims will, according to circumstances, either increase the amount of the estate or will not increase it, and if paid, this can be acquired by the heir through hereditary right, and hence would be included in the distribution of the estate. 18Where a debtor becomes the heir of his creditor, although he may be released from liability by reason of the merger resulting therefrom; still, as he is considered to have received a larger inheritance on this account, the amount of his indebtedness must be computed, although it may have been extinguished by his acquiring the estate. 19The question arises whether expenses incurred for the erection of a monument should be deducted. Sabinus thinks that they should be deducted if it becomes necessary to erect the monument. Marcellus, having been consulted as to whether the expenses for a monument which the testator ordered to be erected should be deducted as part of the debts of the estate, answered that no more ought to be deducted on this account than was expended for the funeral. For the case is different with reference to the expense incurred for the erection of a monument, since it is not necessary, as that of the funeral and the burial are. Therefore, the person to whom money is bequeathed for the erection of a monument must suffer the deduction under the Falcidian Law.

Paulus, On the Falcidian Law. Where an heir is appointed and sells the estate, which is insolvent, it would be very difficult to persuade anyone that it was not solvent, since it found a purchaser. If this is a fact, however, the legatees will not be entitled to anything, because the heir appears to have profited more from the folly of the purchaser than from the estate of the deceased. On the other hand, if he should sell the property of the estate for too low a price, this will not prejudice the rights of the legatees, and therefore if the heir has made a good bargain he should enjoy the benefit of it. 1If, however, a person who is not solvent should make bequests, and the heir should agree with the creditors not to pay them in full, and, by reason of this agreement, be able to retain something from the estate, still, the legatees will not be entitled to anything, because the heir obtained the money not from the estate, but through the agreement with the creditors. 2Likewise, if a legacy payable annually to a municipality is bequeathed, and a question arises with reference to the Falcidian Law, Marcellus thinks that only as much should be considered to have been bequeathed as will amount to a sum which, at four per cent interest, will provide the annual payments of the legacy.

Paulus, On the Falcidian Law. When we say with regard to an heir that he should repay immediately to the surety of the testator what the surety had paid before the acceptance of the estate, must be understood to admit of some slight delay, for he need not come immediately with his bag of money.