The Same, On Quintus Mucius, Book IX. Ad Dig. 34,2,34 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 401, Note 12.Quintus Mucius said that if the head of a household should bequeath all his gold to his wife, she would not be entitled to that which he had given to a goldsmith for the purpose of being manufactured, or any which was due to him and had not been returned by the goldsmith. Pomponius: This opinion is partly true and partly false. For with reference to the gold which was due to him, there can be no question; for instance, if he had contracted for a certain number of pounds of gold, the gold to which he was entitled under the contract would not belong to his wife, since it had not yet become the property of her husband; for he bequeathed to her what belonged to him, and not that which he had a right to collect by an action at law. So far as the goldsmith is concerned, the opinion is incorrect, if the party gave the metal to him in order that he might make something for him out of it; since, although the gold was in the hands of the goldsmith, this does not change its ownership, as it still remains the property of him who gave it, and he is only obliged to compensate the goldsmith for his labor, on which account we come to the conclusion that the wife will still be entitled to it. If, however, he gave the metal to the goldsmith, not in order that some article might be manufactured out of it, but out of other gold, then, as the ownership of the metal is transferred to the goldsmith, because an exchange is considered to have taken place, this gold will not pass to the wife. 1Quintus Mucius also says that if a husband, having five pounds weight of gold, should make a bequest as follows, “Let my heir deliver to my wife any gold which I may have acquired for her use,” even if the husband has sold a pound of gold, and, at the time of his death, not more than four pounds should be found, the heir will be obliged to furnish the entire five pounds, as the terms made use of are indicative of the present time. This opinion, so far as it is applicable to the legal obligation, is correct; that is to say, the heir is liable by operation of law. It should, however, be remembered that if the testator alienated the above-mentioned pound of gold, because he desired to diminish the legacy to his wife, then the changed intention of the deceased will permit an exception based on bad faith to be pleaded, so that if the woman should insist in bringing suit to recover the five pounds of gold, she can be barred by an exception on that ground. But where the testator disposed of the gold, having been compelled to do so through necessity, and not because he desired to diminish the legacy, then the five pounds of gold will be due to the woman by operation of law, and an exception on the ground of bad faith will avail the heir nothing against the claimant. 2Where a testator makes a bequest to his wife as follows, “I bequeath to my wife any gold which may have been acquired for her use,” Quintus Mucius very properly says that this clause contains in itself the designation and the proof of the legacy. Therefore, if the testator has alienated a pound of gold, no more than four pounds weight will remain due by operation of law, and it will not be necessary to consider for what reason the testator disposed of it.

Pomponius, On Quintus Mucius, Book IX. Where a slave was directed “to perform five acts for a stranger and become free,” the question arose whether the condition should be understood to mean the same as where the payment of a sum of money had been directed, so that, instead of its delivery we can specify the performance of labor. This is our present practice, just as when it is provided that if a slave should pay a stranger a certain sum of money out of his peculium he shall be liberated, so, if he furnishes the labor, he must also be granted his freedom. Therefore, in the case stated, the heir will act wisely if he prevents his slave from performing the labor, lor, by doing so, the slave will obtain his freedom, but the stranger will not get the benefit of his services.