Paulus, On Vitellius, Book I. A certain man appointed his daughter sole heir to his estate, and bequeathed ten aurei to his son, who was under his control, and added: “My son shall be disinherited so far as the remainder of my estate is concerned.” The question arose whether he could be held to be legally disinherited. Scævola answered that he did not seem to be properly disinherited, and, while discussing the point, added that the disinheritance was void, for a child could not be legally disinherited when this only had reference to a certain tract of land; and that the case was different where anyone is appointed an heir, for the reason that appointments are understood to be subject to the most liberal interpretation, but no encouragement should be given to disinheritances.

The Same, On Vitellius, Book I. Nor does a son returning from captivity break the will of his father through the right of postliminium, which is the opinion held by Sabinus.

Paulus, On Vitellius, Book I. Sabinus says: “The question arises where a testator had distributed among his heirs a larger number of shares than the usual division of an estate requires, and had appointed one heir without any share; will the latter be entitled to half the double division, or only what is lacking of the twenty-four shares?” I think that the latter opinion is the more correct one, so that the same ratio shall be observed where the division is doubled, or any other greater number of shares is made than is done in the ordinary distribution of an estate. Paulus: “The same ratio must be observed in the second division as in the first”.

The Same, On Vitellius, Book I. If no one accepts an estate, the force of the will is entirely destroyed.

Paulus, On Vitellius, Book II. Where money left by a legacy is not found among the property of the testator, but his estate is solvent, the heir will be compelled to pay the amount bequeathed out of his own pocket, or by selling some of the assets of the estate, or by obtaining it from any other source that he pleases. 1Where a legacy is bequeathed as follows, “Let my heir, when he dies, pay ten aurei to Lucius Titius,” as the bequest is to take effect at an uncertain time, it does not pass to the heirs of the legatee if he should die during the lifetime of the heir of the testator.

Paulus, On Vitellius, Book II. The addition of the clause above mentioned sometimes diminishes, and sometimes increases the legacy; it increases it when it is written as follows, “And whatever has been acquired on her account,” for this signifies that something else has been acquired for her benefit in addition to what has already been mentioned. It is diminished when the conjunction “and” is omitted, because, then it signifies that those things alone of all the articles previously designated have been procured for her benefit.

Paulus, On Vitellius, Book II. The question arose, where the slave Stichus had been removed from the land to which he had been attached, and given instruction, but had not afterwards been returned, whether he should be delivered to the legatee with said land. The answer was that if he had been sent for the purpose of studying, and not to be transferred to some other land, he must be delivered to the legatee. 1“My son, Mævius, as I have already given you the greater part of my property, you should be content with the Sempronian Estate, and all who live thereon; that is to say, with the slaves who are there.” The question arose as to the disposition of certain notes of debtors, and sums of money which were found on said land. The same testatrix wrote the following letter: “I give you all the silver plate and furniture which I have, and whatever I possess on the Sempronian Estate.” Will the furniture which is on other estates or in other houses belong to Mævius, and will he be entitled to the slaves which the testator bequeathed to others, and which formed part of the Sempronian Estate? The answer was that the notes and the money should not be considered as included, unless the intention of the deceased to bequeath them was positively proved, and that the legacy of the son should be diminished through the bequest to others of slaves attached to the said Estate. With reference to the silver plate and furniture which were elsewhere, their disposition must be left to the judge, who will determine to whom they should belong, in order that the intention of the testator may be carried out by the legatee. 2A testator left certain lands as follows, “Just as they were held by me, together with whatever property may be there at the time of my death.” The question arose with reference to the slaves who dwelt on said lands either for the purpose of cultivating them, or for other purposes, as well as with reference to other property which was there at the time of the testator’s death, whether they belonged to the legatee. The answer was that all the property in question should be held to have been bequeathed. 3“I desire that my Campanian Estate be given to Genesia, my foster-child, the said Estate being of the value of two hundred aurei, and that it be enjoyed by her as is customary.” The question arose whether the remaining rents of the tenants, and the slaves which were on the ground at the time of the death of the testator, were also due to the legatee. The answer was that whatever was due from the tenants was not bequeathed, but that everything else should be held to have been given by the words, “As is customary.” 4It might, perhaps, be asked by someone why, under the term “silver plate” manufactured silver should be included; when, where marble is bequeathed, nothing except the rough material can be considered to have been indicated. The reason for this is that articles of such a nature that they can be readily reduced to their former condition are subject to the power of the material of which they are composed without ever losing their force. 5There is no doubt that scarlet, which is designated by its peculiar name, is not included in wool whose color has been changed, any more than dye made from the blood of crows, or those known as hysginus and melinus are called scarlet or purple. 6Where a man made a bequest as follows: “I give and bequeath to my wife those articles which have been acquired for her use,” I asked the Prætor, who had jurisdiction of the trust, that the property which the wife had given to her husband, and which had been appraised, might be surrendered, so that its value might be included in the dowry, but I failed to obtain his consent, as he held the testator did not have this property in his mind at the time when he made his will. If, however, the said property had been given to her for her use, it would make no difference whether it had been obtained by herself, or by another. I afterwards found the following case mentioned in Aburnius Valens. A woman gave certain property, which had been appraised, by way of dowry to her husband, and the latter afterwards left it to her, described as follows, “The articles which have been acquired and purchased for her.” This authority held that what is given by way of dowry is not included in the category of property purchased and acquired, unless the husband, having afterwards become the owner of said property, devotes it to the use of his wife. 7Where property, which is on land, is bequeathed, the legacy also includes things which, if not on it at the time, are usually there, and any articles that are there by chance are not considered to have been bequeathed.

Ad Dig. 33,4,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 658, Note 3.Paulus, On Vitellius, Book II. A certain man received a dowry from the mother of his wife, and, after having entered into a stipulation with her, left the dowry to his wife by his will. The question having arisen whether the wife could recover the amount of the dowry, Scævola was of the opinion that it did not seem to be necessary to return to the mother what had been given to the wife; or in other words, he held that unless the wife could clearly prove that this was the wish of the testator, it did not appear that he intended to burden the heirs with a double payment of the dowry.

The Same, On Vitellius, Book II. The slave employed in the vaults to keep up the fire is also included.

Paulus, On Vitellius, Book II. Whenever, in the case of the bequest of the implements of a butcher, any question arises, after excluding the meat, we leave the tables, the weights, the cleavers, the balances, the knives, and the axes as the equipment. 1Where the equipment of anything is bequeathed, it is sometimes necessary to take into consideration the persons of those who leave the legacy; as, for instance, where the equipment of a mill is bequeathed, since the slaves who are the millers will only be included when the head of the household conducted the business of the mill himself; for it makes a great deal of difference whether the utensils were intended for the use of the millers, or for that of the mill. 2Neratius says that the ass which turns the wheel of the mill and the millstone are not included in the equipment which goes with the transfer of the land. 3Likewise, we say that pots and pans are included in the equipment of a tract of land, because, without them, cooking cannot be done, nor is there much difference between the pots and the cauldrons which are suspended over the fire; as in the latter drinking water is heated, and in the former food is boiled. If, however, the cauldrons are included in the equipment, the pitchers also, with which water is poured into the cauldrons, come under the same head; and thus one vessel follows another in regular succession. Therefore, Pedius says that it is best not to adhere too closely to the literal meaning of words, but above all things to find out what the testator intended to designate, and then ascertain the opinion of those residing in different districts of the province. 4Where a question arises with reference to a farmer who is a slave, as to whether he is included as part of the equipment of the land, and there is any doubt on the subject; Scævola, having been consulted, held that the slave should be included, where he was the confidential agent of his master, and did not cultivate the land for a certain amount of the income from the same. 5The same authority, having been interrogated with reference to the lower millstone of a mill, answered that it also was included, if it was operated for the benefit of the slaves employed in the labors of the farm. The lower part of a millstone is called meta, and the upper part catillus. 6Where inquiry was made with reference to a plowman, the answer was that, no matter whether one who actually tilled the land, or one who fed the oxen used in cultivating it, was meant, he was included in the legacy. 7He also answered that trimmers of trees were included, if they were specially considered to be attached to the land. 8Shepherds and excavators also belong to the legatee. 9Likewise, where a tract of land is devised as follows, “I give to Mævius the Seian Estate in the very best condition in which it may be found, together with all the implements, rustic and urban, and the slaves who are there,” the question was asked whether grain for seed would be included. The reply was that it certainly would be, unless the heir could prove that the intention of the testator was otherwise. The same authority rendered a similar opinion with reference to grain reserved for the maintenance of slaves. 10Cassius says that in the equipment of a slave-physician eyewashes, plasters, and other things of this kind are included. 11A testator left certain of his slaves, whom he mentioned by name, to a person to whom he had devised a tract of land with its equipment. The question arose whether his remaining slaves, whom he did not enumerate, were included in the equipment. Cassius says it was decided that, although the slaves constituted part of the equipment of the land, only those who were designated by name were considered to have been bequeathed, as it is evident that the head of the household did not intend that the others should also be classed as such. 12Sabinus says that where a tract of land with everything thereon is devised, the soil itself, and whatever is ordinarily kept there, and remains for the greater part of the year, as well as those slaves who are accustomed to betake themselves thither for the purpose of residing on the land, are held to have been left, but anything which has been designedly conveyed there for the purpose of increasing the amount of the legacy will not be considered to have been bequeathed. 13Where a testator made a bequest as follows, “I leave my country-house in the same condition as I myself possessed it, together with the furniture, tables, and the urban and rustic slaves which shall be sent there, and the wines that may be in said house at the time of my death, and ten aurei in addition,” as upon the day of the testator’s death he had books, articles of glass, and a small clothes-press in the house, the question arose whether these articles should be included among those enumerated in the bequest. Scævola answered that only such articles as were specifically mentioned formed part of it. 14A testator left his house furnished, together with everything attached to the same. The question arose whether the legatee was entitled to the obligations of debtors. The answer was that, in accordance with the facts stated, he was not entitled to them.

Paulus, On Vitellius, Book II. Where manufactured silver is bequeathed, the legacy will include the brazen ornaments added to the feet of silver vessels, and all other articles which can be brought under the same category. 1Under the term “manufactured gold” are included jewels set in rings, even though they belong to the rings. Small cups encrusted with gold, and pearls which are set in the jewelry of women in order that the brilliancy of the gold may be enhanced, are also included under the head of manufactured gold. Golden ornaments which are inserted in precious stones and silver plates, and which can be unsoldered, Gaius says are included in the legacy; but Labeo does not adopt his opinion. Tubero, however, says that the legacy includes everything that the testator classed as gold, otherwise articles of silver gilt and vases of any other material enclosed in gold should not be classed as gold. 2Where silver vessels used for eating or drinking are bequeathed, and any doubt arises as to which of these classes they belong, the custom of the testator must be taken into consideration; but this is not the case where it is certain that an article does not belong to either class. 3A certain officer of the triarii left his wife some silver articles to be used while eating, and, as the testator included among his silverware vessels used both for eating and drinking the question arose whether these also were embraced in the legacy. Scævola gave it as his opinion that they were. 4Likewise, where a question was raised with reference to the following legacy, “Let my dear daughter, in addition, take from the bulk of my estate, and let her have for her use my entire wardrobe, together with the gold, and everything else destined for the use of women,” as the testatrix was engaged in business, it was asked whether not only the silver which was in her house or her wareroom for her own use was left, and also whether that which she had in her place of business could be considered silver for the use of women, and would be included in the legacy. The answer was if the testatrix had silver plate destined for her own use, that which she kept for the purpose of sale would not be held to have been bequeathed, unless the party who claimed it could prove that she also had this in her mind when she made the bequest. 5Neratius relates that Proculus was of the opinion that where vases of electrum were bequeathed, it made no difference how much silver or electrum the vases in question contained. But how could it be decided whether the silver was accessory to the silver, or the silver to the electrum? This could be readily determined from the appearance of the vases. If the question should still remain in doubt, it should be ascertained in what class the party who made the will was accustomed to include the said vases. 6Labeo, by his will, made a special bequest of her wardrobe to his wife Neratia, as follows: “All her toilet articles, and all her ornaments intended for the use of women, all wool, linen, and purple cloth dyed of various colors, both finished and unfinished, etc.” This unnecessary multiplication of terms does not change the nature of the property, because Labeo mentioned the wool, and afterwards many different colored woolen articles, just as if wool ceased to be such after it was dyed, for even if the expression “of various colors” had been omitted, the wool of different colors would still be due, if it was not clear that the intention of the deceased was otherwise. 7Titia bequeathed her toilet articles intended for the use of women to Septicia. The latter understood that the jewelry and necklaces set with gems and pearls, and the rings, together with the garments of one color as well as those of different colors, were left to her. The question arose whether all these things were included under the head of toilet articles. Scævola answered that, in accordance with the facts stated, only such silver vessels as were employed in the bath would be included in toilet articles for the use of women. 8Again, where a testator bequeathed earrings set with two large pearls and two emeralds, and afterwards removed the pearls, the question arose whether the earrings would be due after the pearls had been removed. The answer was that they would still be due if the earrings remained, even though the pearls had been removed from them. 9He also rendered a similar opinion in another case, where a man made a bequest of a necklace composed of thirty-four cylindrical stones, and an equal number of circular pearls, and afterwards removed four of the cylinders, and six of the pearls.

Paulus, On Vitellius, Book II. If a day is not fixed for the payment of a legacy, it will be payable at once, or it belongs immediately to the person to whom it was given. Where a term is prescribed, even though it may be a long one, provided it is certain (as, for instance, after a hundred Kalends of January), the legacy vests immediately on the death of the testator, but it cannot be collected before the time which was fixed arrives. If, however, the time is uncertain (for example, when the boy arrives at puberty, or when he marries into my family, or when he obtains the office of magistrate, or finally, when he does something which it suited the testator to insert into his will), if the time does not arrive, or the condition take place, the property will not belong to the legatee, nor can the legacy take effect. 1Where a bequest is made to Titius subject to the same condition under which I have appointed you my heir, Pomponius thinks that the legacy will begin to take effect just as if it had been left absolutely, as it is certain that it will be payable whenever there is an heir; for a legacy does not become uncertain on account of a condition that there shall be an heir, since a bequest of this kind does not differ greatly from one dependent upon the following condition, “Let payment be made to him, if he should become my heir.”

Paulus, On Vitellius, Book II. By the term “sons” we understand all children to be meant.

Paulus, On Vitellius, Book III. Usufruct is the right to use and enjoy the property of others, at the same time preserving intact the substance of the same.

Paulus, On Vitellius, Book III. Titius left the Tusculan Estate to Mævius, and appointed him a trustee for the transfer to Titia of the usufruct of half of the said estate. Mævius rebuilt a house which was ruined by age, and which was required for the collection and preservation of the crops. The question then arose, whether Titia was obliged to assume part of the expense in proportion to her usufruct? Scævola answered that if it was necessary to rebuild the house before the usufruct was transferred, Mævius would not be compelled to deliver it, unless an action for the expense was allowed.

Paulus, On Vitellius, Book III. And his clients.

The Same, On Vitellius, Book III. A portion of an use cannot be bequeathed; for we can enjoy a portion, but we cannot use one.

Paulus, On Vitellius, Book III. If an insane person should be appointed a guardian, the appointment must be understood to have been made under the condition that he becomes of sound mind.

The Same, On Vitellius, Book III. If, for example, a slave who is to be free under the condition of paying a certain sum of money in a hundred days, and the beginning of the term is not mentioned, it will begin to run from the day that the estate is entered upon, because it is absurd to hold that it would begin before the time arrived when he who was entitled to the legacy would be able to receive it. This rule will apply to all legatees who are directed to pay the heir under such circumstances. Therefore the time for complying with the condition by the legatee will be computed from the day when the estate was entered upon.

Paulus, On Vitellius, Book III. Where a slave was ordered to pay a certain sum of money, and the person to whom he was to pay it was not mentioned, he must pay it to the heirs in proportion to their respective shares of the state, for each one of them must receive a share in proportion to his ownership of the slave. 1Where certain heirs are mentioned by the testator as those to whom the slave is required to make payment, he must do so in proportion to their respective shares of the estate. 2If a stranger is joined with the heirs who are mentioned, the full share must be paid to him, and amounts in proportion to their respective shares of the estate should be paid to the others. If the testator not only added Titius, but others besides, they will each be entitled to a full share, and their co-heirs to amounts in proportion to their interest of the estate; as is stated by Julianus.

The Same, On Vitellius, Book III. If I stipulate as follows: “Do you promise that you will do nothing to prevent me from taking one of the slaves which you have?” I will be entitled to the choice.

The Same, On Vitellius, Book III. When the title to property cannot vest in anyone, no obligation can cause it to do so.

The Same, On Vitellius, Book IV. No one doubts that an heir can legally be appointed as follows: “Let him be my heir,” where the party indicated is present. 1If a person is not a brother of the testator, but entertains fraternal affection for him, he can legally be appointed his heir, by mentioning his name with the appellation of brother.

Paulus, On Vitellius, Book IV. Where the same slave is bequeathed and ordered to be free, the favor shown to freedom takes precedence of the legacy. If, however, the slave is bequeathed in another part of the will, and it is clearly shown that it was intended to deprive him of his liberty, the legacy will take precedence on account of the intention of the deceased. 1Where a slave belonging to another is appointed an heir, it is established that his freedom can be conferred upon him after the death of his master for whom he acquired the estate.