Paulus, On the Lex Julia et Papia, Book VI. Where anyone brings an action for a donatio mortis causa on the recovery of the party from sickness, he can claim also the produce of the property donated, the children of female slaves, and anything else which may have accrued to the property donated.

Ulpianus, On the Lex Julia et Papia, Book VI. If, however, the claim is not rendered more advantageous to the creditor, either by modification, time, condition, or place, the bequest is void.

Ad Dig. 32,89Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 644, Note 13.The Same, On the Lex Julia et Papia, Book VI. Parties are considered joint legatees where the same article is bequeathed to them separately, by reason of the property itself, and not on account of the words employed by the testator. They are considered joint legatees on account of the words used, and not by reason of the property bequeathed, where the testator says, “I give and devise such-and-such a tract of land to Titius and Seius, share and share alike,” as both legatees have their shares from the beginning. Therefore a legatee is certainly preferred to others, where he is joined with his co-legatee both by the property left and by the terms of the bequest. If he should only be joined with him by the legacy of the property, it is established that he is not entitled to any preference. But where he is joined with him by words and not by his interest in the property, the question arises whether the other will be entitled to the preference. The better opinion is that he will be preferred.

Paulus, On the Lex Julia et Papia, Book VI. Where a testator has two principal debtors, and charges his heir to release both of them, and one of them is not capable of receiving a legacy, and they are not partners; the heir should transfer his right of action from the debtor who cannot take the legacy to the one upon whom the law does confer this benefit, and by this proceeding two things will happen, that is, the one who cannot receive the legacy will participate in the benefit, and the one who can receive it, will be released. If, however, the debtors are partners, the one who is incapacitated will necessarily profit through the other who can receive the legacy, and he will be released by means of a receipt; for the same thing will happen even if the testator had directed that the only one entitled to take under the will should be released.

Paulus, On the Lex Julia et Papia, Book VI. Where a tract of land, worth fifty aurei, is devised under the condition that the party to whom it is left shall pay fifty aurei to the heir, many authorities think that the devise is valid, because the reason for complying with the condition is stated. It is established that the devise is subject to the Falcidian Law. Where, however, fifty aurei are bequeathed on condition that the legatee pays fifty to the heir, the legacy is not only void, but also ridiculous.

Paulus, On the Lex Julia et Papia, Book VI. Ad Dig. 36,2,24 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 285, Note 3.Where an heir is charged with the delivery of provisions or land, and, if he should not deliver them, is required to pay ten aurei; and I have ascertained that the provisions which were the subject of the legacy have been changed into the sum of ten aurei, and if the heir refuses to deliver the provisions, the money will then be payable; and if, when notified to deliver the land, the heir does not do so, and, in the meantime he should die, his heir will not be entitled to anything but the land. For when anyone says, “Let my heir Publicius transfer such-and-such a tract of land,” the legacy is complete, and if he should add, “If he does not transfer it, let him pay a hundred aurei,” the legatee seems to have been deprived of the devise of the land on condition that the hundred aurei will begin to be due; and if the condition should not be fulfilled during the lifetime of the legatee, for instance, because no demand was made upon the heir, the result will be that the deprivation of the legacy will be of no force or effect, and the devise of the land will remain. 1When a bequest is made as follows, “If my heir should not furnish the provisions, let him pay ten aurei,” we hold that it is clear that no provisions have been bequeathed.

Paulus, On the Lex Julia et Papia, Book VI. The Senate decreed that where donations mortis causa were made to those whom the law forbade to receive them, they are in the same position as persons to whom legacies are bequeathed by will, and who are not permitted by law to accept them. A great variety of questions have arisen under this Decree of the Senate, a few of which we shall mention. 1The word “donation” is derived from donum, meaning “presented with a gift.” It is taken from the Greek, for the Greeks say dwron kai dwreisvai, that is to say, “a gift and to give.” 2A donation mortis causa, however, differs greatly from a genuine and absolute gift, which is made in such a way that it can, under no circumstances, be revoked; and where he who makes it would rather that the donee should have the property than he himself. On the other hand, he who makes a donation mortis causa thinks of himself and, through his love of life, prefers to keep the property, rather than to give it away. This is the reason why it is commonly said that the donor would rather have the property than allow him to whom he gives it to have it, but that he would rather that he should have it, than that it should pass to his heir. 3Therefore, he who makes a donation mortis causa, so far as his thoughts of himself are concerned, concludes a business transaction; that is to say, he imposes the condition that the property shall be returned to him if he is restored to health. The followers of Cassius entertained no doubt that the property could be recovered, as in the case of an unfinished transaction; for the reason that, where anything is given, it is done either that you may perform some act, or that I may perform one, or that Lucius Titius may do so, or in case some event takes place; and in all these instances, the property may be recovered by an action. 4A donation mortis causa is made in several different ways. Sometimes it is made by a man who is well and has no anticipation of immediate death, who enjoys excellent health, but who reflects that man is liable to die. Sometimes it is made through the fear of death, either on account of present or future danger. For the danger of death may be apprehended on land and sea, in peace and in war, at home as well as in the army. A donation may also be made under the condition that if the donor should die of his illness, the property shall not, under any circumstances, be returned; or that it shall be returned if he should change his mind, and desire it to be restored to him, even before he died of the same illness. A donation can also be made under the condition that it shall not be returned unless the person entitled to it dies before the donor. A donation mortis causa can also be made in such a way that it cannot be recovered in any event, that is, not even if the donor should recover his health. 5If anyone should form a partnership with another for the purpose of making a donation mortis causa, it must be said that the partnership is void. 6When a creditor wishes to make a donation mortis causa to two of his debtors, of what they owe him, and releases one of them from liability, and regains his health, he can sue either one of them that he may select. 7He who stipulates for the payment of a sum of money annually as a donation mortis causa does not resemble the person to whom a legacy, payable annually, has been bequeathed; for although there are many legacies, still there is only one stipulation, and the status of him to whom the promise was made must always be considered.

Paulus, On the Lex Julia et Papia, Book VI. A man is understood to have acquired something, even though he may have acquired it for another.

Paulus, On the Lex Julia et Papia, Book VI. A joinder of heirs can take place in three different ways, for it can either be made by means of the property itself; or by means of the property and words contained in the will; or by the words alone. There is no doubt that those are joined who are connected by both their names and by the property; for example, “Let Titius and Mævius be heirs to half my estate;” or “Let Titius and Mævius be my heirs;” or “Let Titius, with Mævius, be heirs to half of my estate.” Let us see, however, if we omit the particles “and” “and with,” whether the parties can be considered to be joined, for instance: “Let Lucius Titius, Publius Mævius be heirs to half of my estate,” or, “Let Publius Mævius, Lucius Titius, be my heirs; let Sempronius be the heir to half my estate.” As Titius and Mævius are entitled to half of the estate, they are understood to be joined with reference to the property, and the terms of the will. “Let Lucius Titius be heir to half of my estate; let Seius be the heir to the same share to which I have appointed Lucius Titius; let Sempronius be the heir to half of my estate.” Julianus says that a doubt may arise as to whether the estate was divided into three parts, or whether Titius was appointed heir to the same share as Gaius Seius. But, for the reason that Sempronius was also appointed an heir to half the estate, it is more probable that the two others were to share the same half and were made heirs conjointly.