Paulus, On Sabinus, Book III. Even though he should receive much less income by doing so.

Paulus, On Sabinus, Book III. Unless the condition of the usufructuary should not become worse thereby; as for instance, where the owner grants the servitude to a neighbor that he himself shall not have the right to raise his house.

Paulus, On Sabinus, Book III. Where the usufruct which is bequeathed consists of a field, other trees must be substituted in the place of those which have died, and the latter will belong to the usufructuary.

Paulus, On Sabinus, Book III. Whenever a slave subject to a usufruct leases his services, and before the time of the lease expires, the usufruct terminates, the time which remains will belong to the proprietor. But where, from the beginning, the slave stipulates for a specified sum in consideration of the performance of certain services, and the usufructuary suffers a loss of civil rights, the same rule applies.

Ad Dig. 7,1,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Paulus, On Sabinus, Book III. Where a person who has two houses bequeaths the usufruct of one of them, Marcellus says that the heir can shut off the lights of one of them by raising the height of the other; since the house could be inhabited even if it was darkened. This must be regulated to such an extent that the entire house must not be darkened, but must have a certain amount of light which will be sufficient for the occupants.

Paulus, On Sabinus, Book III. Where anyone bequeaths an usufruct to Attius and his heirs, Attius will be entitled to half the same, and his heirs to the remaining half. Where, however, the language is, “To Attius and Seius together with my heirs”; the usufruct will be divided into three parts, of which the heirs will have one, Attius one, and Seius one; nor does it make any difference whether the bequest is to A and B with Mævius, or “to A and B and Mævius”.

Paulus, On Sabinus, Book III. But I could still use and enjoy the ground on which the house had stood.

Paulus, On Sabinus, Book III. Unless, before the legacy vests, another horse is put in the place of the one that died.

Ad Dig. 7,4,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.Paulus, On Sabinus, Book III. If an usufructuary has harvested a crop and then dies, Labeo says that the crop which is lying on the ground belongs to his heir, but that the grain still attached to the soil belongs to the owner of the land; for the crop is considered to be gathered when the heads of grain or stems of grass are cut, or the grapes are picked, or the olives are shaken off the trees, although the grain may not yet have been ground, or the oil made, or the vintage finished. But although what Labeo stated with reference to the olives being shaken off the trees is true, the rule is not the same concerning those which have fallen of themselves. Julianus says that the crops become the property of the usufructuary when he has gathered them, but that they belong to a bona fide possessor as soon as they are once separated from the soil.

Paulus, On Sabinus, Book III. Moreover, a father-in-law can live with his daughter-in-law; at all events, if her husband lives there also.

Paulus, On Sabinus, Book III. Where the use of everything else is bequeathed, it must be held that the wife is entitled to the use of the property in common with her husband.

Paulus, On Sabinus, Book III. Where the use of land is bequeathed, the party entitled to the use can take sufficient supplies from the same to last only for a year; even though, by doing so, the crops of a moderate estate may be exhausted; for the same reason that he has a right to enjoy the use of a house and a slave in such a way that nothing which can be classed as produce may be left for another. 1Just as he to whom the use of land is bequeathed, cannot prevent the owner from coming there frequently for the purpose of cultivating the soil, as, by acting otherwise it would be precluding the owner from its enjoyment; so, also, the heir cannot act in any way so as to prevent the party to whom the use was bequeathed from making use of the land, as the careful head of the household should do.

Paulus, On Sabinus, Book III. Where a party pays money which he does not owe to one who falsely represents himself as an agent, the money cannot be recovered from the agent unless his alleged principal ratifies the transaction; but, as Julianus states, the principal himself would be liable. Where, however, the principal does not ratify the act, then if the money paid had been actually due, it can be recovered from the alleged agent himself; since an action for the recovery of money paid where there was no debt is not based on this fact, but on the ground that it was paid on account of something which did not take place, and no ratification was made; or suit may be brought because the false agent committed a theft of the money, since he can not only be sued for theft but also in a personal action for recovery.

Paulus, On Sabinus, Book III. The Divine Hadrian stated in a Rescript that the same rule would apply if another will should be produced.

Paulus, On Sabinus, Book III. If your agent pays a debt which was not due, and you do not ratify his act, then, as Labeo states in the Books styled “Last Works,” an action can be brought to recover the money, but if it was due, Celsus says it cannot be recovered; because where anyone appoints an agent to transact his business, it is held that he also directs him to pay his creditor; and it is not necessary afterwards to wait for him to ratify his acts. 1Labeo also says that if money which is not due is paid to an agent and his principal does not ratify his act, suit can be brought to recover it. 2Celsus says that anyone who pays a debt to an agent is immediately released, and no ratification should be considered; but where the agent receives what is not due, then ratification is required, because he would be held not to have directed that anything should be done with reference to the collection of this claim, and therefore, if his act is not ratified, suit must be brought against the agent for its recovery. 3Ad Dig. 12,6,6,3ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Julianus says that neither a guardian nor an agent can bring an action for the recovery of money after they have paid it; and that it makes no difference whether they paid out their own money or that of the ward or principal.

Ad Dig. 16,2,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 10.Paulus, On Sabinus, Book III. The opinion of Neratius, which is also held by Pomponius, is correct, namely: that what the principal debtor can retain as set-off the surety is released from liability for, by operation of law, in every contract; just as if when I bring suit for the entire amount against a debtor I do not proceed properly, and thus the security is not liable in strict law for a larger amount than the principal debtor can be compelled to pay as a judgment.

The Same, On Sabinus, Book V. When an heir is charged by will to sell property belonging to the estate, and he does so, an action can be brought against him either on sale or on account of the will, for all the accessories belonging to the property purchased. 1Where, however, he, erroneously believing that he is charged with the sale of the property, sells it; it must be held that an action on sale cannot be brought against him, since he can be barred by an exception on the ground of fraudulent intent; just as if he, laboring under a mistake, having promised that he will deliver property subject to such a charge, can bar the other party if he brings an action, by pleading an exception based on fraudulent intent. Pomponius even holds that he can bring an action for an indeterminate amount, in order to obtain his release.

Paulus, On Sabinus, Book III. Where an agreement is entered into which has reference to the time of a divorce, and a divorce does not take place, the agreement will not become operative.

Paulus, On Sabinus, Book III. Guardians do not derive their authority from the heir, but directly from the testator, and they are vested with it as soon as an heir appears; or the heir himself can be appointed guardian, and a guardian can legally be appointed after the death of the heir.

Paulus, On Sabinus, Book III. Where a person intended to bequeath the fourth part of his property, he wrote the half. Proculus very properly said that the fourth could have been maintained to have been bequeathed, for the reason that it is contained in the half. The same rule will apply if the testator intended to bequeath fifty aurei, and wrote a hundred, for fifty will be due. Where, however, he intended to bequeath more, and wrote less, the bequest will be valid. 1Where anyone bequeaths a sum of money to his daughters, having in mind a posthumous daughter, and she should not be born, the entire sum will be due to the survivor.

Paulus, On Sabinus, Book III. Where a person bequeaths a part of his property, as is the custom at present, it can be surrendered without the crops, unless the heir is in default.

Paulus, On Sabinus, Book III. A son who has been appointed an heir can be absolutely charged with a legacy for the benefit of his father, nor does it make any difference whether or not he was under the control of his father at the time that the legacy vested. Therefore, if he accepts the estate by the order of his father, the legacy will be included in the Falcidian share to which he is legally entitled.

Paulus, On Sabinus, Book III. This provision has reference also to all legacies which are afterwards confirmed by codicils.

Paulus, On Sabinus, Book III. Where an heir is charged with the delivery of a slave belonging to another, and the slave is manumitted by his master, nothing is due on account of the legacy.

Ad Dig. 33,2,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 206, Note 15.Paulus, On Sabinus, Book III. Neither the use nor the usufruct of the right to traverse a path, a drive-way or a road, or to convey water by means of an aqueduct, can be left by will, because the servitude of a servitude cannot exist. Nor can such a bequest be rendered legal under the Decree of the Senate by which it is provided that the usufruct of everything included in property may be bequeathed, for the reason that this is neither included in property or excluded from it, but an action for an indeterminate amount will lie against the heir, and in favor of the legatee, as long as he lives, in order to compel the former to permit him to walk, ride, or drive through the property or the servitude may be granted, if security is furnished to return it in case the legatee should die, or forfeit his civil rights for some serious offence.

Paulus, On Sabinus, Book III. The services of a freeman can also be bequeathed, just as he can be hired under a contract, or be made the subject of a stipulation.

Paulus, On Sabinus, Book XVIII. If I promise the enjoyment of an usufruct “at the time of my death,” the disposition will be void; and the same rule applies to a legacy, for when an usufruct is created, it is usual for it to be extinguished by death.

Paulus, On Sabinus, Book III. Where the choice of a cup is left as a legacy, if the legatee makes a selection before all the cups have been shown to him, it is held that he still retains his right; unless he intended to choose one of those which he has seen when he knew that there were others.

Paulus, On Sabinus, Book III. Where jewels are set in gold, in order to be more easily preserved, we then say that the gold is accessory to the jewels.

Paulus, On Sabinus, Book III. Where a testator, having bequeathed the right to drive cattle through his land, does not grant the right of way, he omits nothing from the legacy, for the reason that the right to drive cattle cannot exist without the right of way.

Paulus, On Sabinus, Book III. Where a trust is bequeathed absolutely, and the following words are added, “I charge you to deliver my estate to your son, and cause it to come into his hands,” it is stated in a Rescript that the bequest is made to take effect at the time when the son can receive it, that is to say, when he becomes his own master. 1“I ask you, Lucius Titius, to divide my estate with Attius.” Aristo says that, under the Trebellian Decree of the Senate, the rights of action affecting the estate pass to him to whom the estate is transferred; because the words are understood to mean, “I ask you to transfer that estate.” The terms of the Decree of the Senate are not to be considered, but the intention of the testator must be, no matter how it was expressed, provided he intended that his estate should be transferred. 2Where any expense has been incurred by the sale, or through measures taken for the preservation of property forming part of an estate, it should be charged to the heir.

Paulus, On Sabinus, Book III. Where a legacy is bequeathed absolutely, and is taken away under a condition, it is held to have been bequeathed conditionally. 1If the effect of a legacy should be suspended for some reason which has no reference to the will, we hold that it will be transmitted to the heir, even though the legatee should die before it becomes operative. For instance, if a husband should bequeath dotal property to a stranger, and a certain sum of money to his wife in lieu of the said dotal property, and the legatee should die while the wife is deliberating as to the election of her dowry, and should choose the legacy, it has been decided that the legacy will pass to the heir. Julianus adopted this opinion, for delay rather than a condition seems to be attached to the legacy. 2Legacies which are bequeathed by codicils take effect at the same time as those left by will.

Paulus, On Sabinus, Book III. Prætorian possession of property can, under no circumstances, be granted to an heir whose name has been erased from the will so that it can hardly be read, even though this has been done unintentionally; because the presumption is that it was not properly inserted, although such possession may be granted if the name has been defaced after the will has been produced. For if the will was in existence at the time of death, even though it may have been subsequently destroyed, prætorian possession of the estate can be granted, because it is true that there once was a will.

Paulus, On Sabinus, Book III. Everyone is permitted to acquire a donation mortis causa who has the right to receive a legacy.

Paulus, On Sabinus, Book III. Any period of possession to which our own possession can not be added will be of no benefit whatever to us.

Paulus, On Sabinus, Book III. He who has fraudulently appropriated a will, or concealed it, or taken it by force, or erased or defaced it, or substituted another for it, or unsealed it; or anyone who has forged a will, or sealed it, or fraudulently published it; or anyone through whose fraudulent acts these things have been done, shall suffer the penalty of the Cornelian Law.

Ad Dig. 50,17,10ROHGE, Bd. 15 (1875), Nr. 39, S. 112: Eintritt der Wirksamkeit eines gegen einen Verschwender ergangenen Interdictionsurtheils.Paulus, On Sabinus, Book III. It is in accordance with nature that he should enjoy the benefit of anything who pays the expenses attaching to it.

Paulus, On Sabinus, Book III. In the interpretation of wills, the intention of the testator should be liberally construed.