The Same, On Plautius, Book VIII. The party who first makes application is the plaintiff.

Paulus, On Plautius, Book VIII. The same rule applies where Titius and the woman become sureties, as two debtors, for my debtor.

Paulus, On Plautius, Book VIII. Or deny that they have sealed the will; for it is expedient that the last will of men should be carried into effect.

The Same, On Plautius, Book VIII. The better opinion is that no one can accept a portion of a legacy, and reject the remainder of the same.

The Same, On Plautius, Book VIII. If ten aurei are bequeathed to Titius and another party who cannot legally receive them, as the heir is obliged to pay both the legatees, where one cannot receive the legacy, only five aurei shall be paid to Titius.

Paulus, On Plautius, Book VIII. Where the selection of a slave is left to me, and the testator bequeaths something to Stichus without granting him his freedom, the second legacy will only stand where the entire body of slaves is reduced to one individual, that is to say, Stichus; and the legacy will be valid, just as if it was bequeathed unconditionally. The opinion of Cato cannot be quoted in opposition to this, if a voluntary heir has been appointed, for the reason that the body of slaves may be diminished before the estate is entered upon, even if the testator should die immediately. Where, however, a necessary heir is appointed, the second legacy will be void in accordance with the rule of Cato. 1Pomponius says that where the purchaser of an estate asks that the party to whom the choice of slaves has been bequeathed shall make his selection, it should be considered whether the Prætor must compel the legatee to do so, just as if the appointed heir should make such a demand, for the reason that the purchaser can accomplish this by applying to the heir. I do not see why it cannot be done.

Paulus, On Plautius, Book VIII. When a bequest is made as follows, “Let my heir be charged to give my clothing and silver plate,” whatever belonged to the testator when he executed his will will be considered to have been bequeathed; for the reason that the present time is always understood to have been meant, where something else is not included; for when he says, “My clothing and silver plate,” by the pronoun “my” he indicates the present and not the future. The same rule will apply where anyone makes a bequest of “My slaves.”

Paulus, On Plautius, Book VIII. Plautius: An heir was charged by the testator, who was a freedman, to sell the entire estate and reserve ten aurei for himself. The patron of the deceased subsequently claimed possession of the estate in opposition to the will, and took that portion of the same to which he was entitled by law. Proculus and Cassius say that the beneficiary can recover from the heir a sum in proportion to what he himself has paid. Paulus: This is the present practice, for as an heir, through the payment of trusts and legacies, is discharged from liability by the Prætor, so also he should receive his share of the same. 1The case is different where the Falcidian Law applies, and reduces the amount of the legacies, since in instances of this kind nothing can be recovered, because the condition has been entirely complied with. 2Likewise, the right of payment is restricted where the party to whom the bequest was made cannot take the entire share of the estate which may be left to him, for the better opinion is that he should pay a part, and that those also should pay a part whose shares have been increased by the amount taken from him to whom more had been left than is allowed by law. 3Neratius, in the First Book of Opinions, states that where two heirs have been appointed, and one of them is requested to deliver the estate to you, and you are asked to pay a certain sum to Titius, and the heir avails himself of the benefit of the Falcidian Law in delivering the property, it is not inequitable that you should pay as much less to Titius as the heir ought to pay to you.

Paulus, On Plautius, Book VIII. Moreover, a guardian cannot reject the prætorian possession of an estate to which his ward is entitled, because a guardian is permitted to claim it, but not to reject it.

Paulus, On Plautius, Book VIII. When a slave is appointed an heir conditionally, there is some doubt as to whether he can obtain prætorian possession of the estate, or not. Our Scævola holds that he can obtain it.

Paulus, On Plautius, Book VIII. Paconius says that if a son who had been emancipated and manumitted by his father should appoint some disreputable persons his heirs (as, for instance, prostitutes), possession of his entire estate contrary to the provisions of the will shall be given to his father; otherwise he would be entitled to only half of the estate, if a disreputable heir had not been appointed. 1If an emancipated son should pass his father over in his will, or should appoint him his heir, the father will not be obliged to execute any trust, so far as the share of the estate to which he is entitled is concerned, even if he enters upon it. Where, however, a daughter or a granddaughter is manumitted, and the father or grandfather, having been passed over in the will, demands prætorian possession of the estate, the same rule will apply as in the case of a son.

Paulus, On Plautius, Book VIII. Where a son under paternal control is a tenant, let us see whether he can be placed in possession of a neighboring house on account of threatened injury; for the question arises whether a son under paternal control is not considered to sustain damage, when his property consists of his peculium, and his father can enter into a stipulation to provide against any damage which he may suffer. It is established that both of them should be placed in possession, unless the son, when he rented the house, agreed that it should be at his risk; for then, as he alone is liable under the lease, it is very properly held that he himself should be placed in possession, if security is not given him.

Paulus, On Plautius, Book VIII. Where a legacy or a trust has been conditionally bequeathed to a son under paternal control, it must be said that he himself, as well as his father, ought to be placed in possession, for the reason that both of them anticipate a benefit.

Ad Dig. 45,2,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 626, Note 11.Paulus, On Plautius, Book VIII. Where certain heirs are specifically charged with a legacy, or all are charged excepting one, Atilicinus, Sabinus and Cassius say that they are all liable for the legacy in proportion to their respective shares of the estate, because the estate binds them. The same rule applies where all the heirs are mentioned.

The Same, On Plautius, Book VIII. If a slave stipulates by order of an usufructuary, or a bona fide possessor, under such circumstances that he cannot acquire for them, he will acquire for his master. The same rule does not apply if their names are inserted in the stipulation.

The Same, On Plautius, Book VIII. I directed my steward to be free by my will, and I bequeathed him his peculium. After my death, he collected money from my debtors. The question arises whether my heir can withhold what he collected from his peculium. If he collected the money after the estate had been entered upon, there can be no duobt that he cannot deduct it from his peculium on this account; because, having been made free, he will become liable himself if the debtors of the estate are released by payment. But if the steward received the money before the estate was entered upon, and the debtors were released by the payment of the same, the amount unquestionably can be deducted from the peculium, because the steward begins to be indebted to the heir by having transacted his business, or complied with his mandate. If, however, the debtors are not released, and, in transacting my business, you were paid by them, and I did not afterwards ratify your act, and then, if I wish to bring an action on the ground of voluntary agency, the question arises whether I can do so properly if I give security to indemnify you against loss. I do not think that this is the case, for suit on the ground of voluntary agency cannot be brought, for the reason that I have not ratified the transaction, and hence the debtors remain liable, to me.

The Same, On Plautius, Book VIII. He can act who already appears able to comply with the condition. 1Anything which a person cannot have, even if he wishes it, he cannot reject.