Ad Dig. 5,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 9.Scævola, Opinions, Book III. Titia appointed her daughter heir, left her son a legacy, and provided by the same will that: “All those things which I have above directed to be given or done, I wish to be given and done by any person who will become my heir, or the possessor of my estate, even on intestacy. Also, whatever I may direct hereafter to be given or done, I leave in trust to the said person to see that it is given and done.” The question arose whether, if a sister gained a case in the Centumviral Court, the trust must be executed in compliance with the preceding clause? My answer to the inquiry whether a party can lawfully impose a trust on those whom he thinks will succeed him on intestacy, either as heirs, or as possessors of his estate, was that he could do so. Paulus states in a note that he approves the opinion that trusts imposed by a party who dies intestate need not be executed, as they would seem to have been ordered by a person of unsound mind.

Scævola, Opinions, Book III. A woman who had an usufruct died during the month of December, and all the crops which were obtained from the land having already been removed by the tenants, in the month of October, the question arose whether rent should be paid to the heir of the usufructuary, although she died before the Kalends of March, when the rent became due; or whether it ought to be divided between the heir of the usufructuary and the municipality to which the ownership was bequeathed? I answered that the municipality was not entitled to any action against the tenant; but, according to what had been stated, the heir of the usufructuary would have a right to collect the entire rent on the day when it becomes due. 1“I give and bequeath to Sempronius one sixth part of the crops of cabbage and leeks which I have in the field of the Farrarii”. The question is asked whether an usufruct seems to be bequeathed by these words? My answer was, that an usufruct was not bequeathed, but that the particular part of the crop gathered and which was mentioned in the bequest, was. 2The question also arose, if this was not an usufruct, whether the testator did not bequeath the sixth part of the crops which was gathered every year? I answered that it must be considered to have been left every year, unless the contrary was expressly proved by the heir.

Scævola, Opinions, Book III. Lucius Titius provided by his will as follows: “Where I have given anything to any one of my children, whether I made him a present of it, or merely permitted him to use it, or where he has acquired any property for himself, whether it has been given to him or bequeathed to him, I desire that he may take and hold the same as a preferred legacy.” The father had kept, in the name of one of his sons, an account book of debts, and it was afterwards decided and held that what remained in said book in the name of his son was due to the latter; but not what had been already collected and placed by his father among the assets of his estate. I ask whether the claims of the son which his father had collected before his will was made, and which, after it had been made, he still loaned in the name of his son, would belong to the latter, according to this decision. I answered that any sum which the father had collected in the name of his son, and had afterwards invested in the same way, would belong to him. 1“I request you, Titius, and I charge you to attend to my funeral, and to this end I take so many aurei from the funds of my estate.” I ask, if Lucius Titius should use less than ten aurei for the purpose aforesaid, whether the balance of the sum will belong to the heirs. I answered that, according to the case stated, the heirs would profit by the remainder. 2Where a woman became the heir of her husband, and made the following provision in her will: “My dearest children, Mævius and Sempronius, take as a preferred legacy everything which came into my hands from the estate and property of my lord, your father, Titius, at the time of his death; provided, however, that you assume all the burdens of said estate, for the past as for the future, as well as those for which it may have become liable after the death of my lord, Titius.” I ask if she paid anything after the death of her husband, and made a donation to anyone while she was enjoying the profits of the estate, whether the children will be liable for such obligations. I answered that, in accordance with the case stated, only those obligations which remained unsatisfied could be imposed upon the legatees. 3“I direct whomever shall be my heir, or heirs, to see that Lucius Eutycus receives, in addition to the share which I have given him as heir out of the assets of my estate, in common with Pamphilus, whom I order to be free, all the implements for the manufacture of iron, in order that they may carry on the business.” Lucius Eutycus died during the lifetime of the testatrix, and his share of the estate passed to his co-heir. I ask whether Pamphilus, who was manumitted by the same will, can be permitted to demand half of the said implements for the manufacture of iron, although it cannot be carried on according to the will of the testatrix. I answered that he should be allowed to do so. 4Sempronia was substituted for an appointed heir, and, in case she should not be the heir, was to receive a legacy. She instituted proceedings against the heir, alleging that through his fraudulent conduct, the testatrix who, in the first place, had intended to make her her heir, had been prevented from changing her will, and lost her case. I ask whether she could still bring an action to recover her legacy. The answer was that, in accordance with the facts stated, she had a right to do so. 5A testator forbade the legacies which he bequeathed to be either claimed or paid before the expiration of five years; the heir, however, voluntarily paid a certain part of a legacy before the five years had elapsed. The question arose whether the heir, having paid the remainder of the legacy, could claim the benefit resulting from the payment of a portion of said legacy before the time prescribed. I answered that, because a portion of the legacy was paid before the designated time, a smaller sum could not be held to have been bequeathed. 6Lucius Titius made the following provision in his will: “I desire my small tract of land to be given to my male and female enfranchised slaves, both to those whom I have manumitted by this will, and to Seia, my foster-daughter, in order that it may not pass out of the hands of my family, until the ownership of the same shall vest in one person.” I ask whether Seia will be entitled to a share in common with the freedmen, or whether she will have a right to claim for herself alone half of said tract of land. I answered that it was evidently the intention of the testator that all the persons mentioned should be entitled to equal shares of the estate. 7A testator appointed as his heir his son, who had not yet attained the age of puberty, and he bequeathed his wife her dowry as a privileged legacy, together with a number of jewels and slaves, and ten aurei; and, in case the minor child should die without reaching the age of puberty, he appointed certain substitutes for him, to whom he made the following bequest: “I desire that all of what I have disposed of by my first will, and as much more, shall be given to the heirs of my heir.” The question arose whether the amount of the dowry would be payable a second time, under such a substitution, if the child should die before attaining puberty. I answered that it does not appear that the testator intended to double the legacy of the dowry. I also ask, in case the property composing the legacy should already have come into the hands of the woman for a valuable consideration, whether she could demand it from the substitutes. I answered that she could not do so. 8“I do give and bequeath to my fellow-citizens the note executed in my favor by Gaius Seius.” The testator subsequently made a codicil in which he forbade the note to be collected from Seius, and charged his heir to pay the same sum to the City out of the debt due from another party, whom he mentioned in the codicil. The question arose, if the latter should not prove to be solvent, whether the heirs would be required to pay the entire amount themselves. I answered that the heirs would only be compelled to transfer to the City their rights of action against the debtor who, in accordance with the facts stated, had been mentioned in the codicil. 9A testator appointed an heir to his entire estate, substituted his grandson for him, and then provided as follows: “If, as I hope may not happen, neither my daughter, nor my grandson should become my heirs, I then desire that my share, that is half of such-and-such a tract of land, shall belong to my freedmen.” The question arises, if the daughter and the grandson should die before the testator, and his estate should pass to his great grandson on the ground of intestacy, whether the freedmen would be entitled to the benefit of the trust. I answered that, in accordance with the facts stated, if no other heir than the daughter and grandson should be appointed, or substituted, it appeared that the heirs-at-law would be required to execute the trust. 10“Let my heir, whoever he may be, know that three denarii are due from me to my paternal uncle Denetrius, and that three denarii have been deposited with me by Seleucus, another uncle, which I direct shall be immediately delivered and paid to them.” The question arose whether the uncles would be entitled to an action, if the money should not be due. I answered that it should not be due, that no action would lie on account of the debt, but that one could be brought on account of the trust. 11Lucius Titius, two years before his death, sent away from his house his freedmen, Damas and Pamphilus, and ceased to furnish them with food as he had formerly done, and, afterwards, having made his will, he inserted into it the following legacy: “Let my heir, whoever he may be, give to my freedman whom I have manumitted by this will, as well as to those whom I formerly had, and to such as I have bestowed freedom upon under a trust, a certain sum of money for their support every month.” The question arose whether Damas and Pamphilus were entitled to the benefit of the trust. I answered that, in accordance with the facts stated, they were entitled to it, if those who made the claim should clearly prove that it was the intention of the patron, at the time when he made his will, that the legacy should also be given to them; otherwise, nothing would be due to them. 12A testatrix gave to Damas and Pamphilus, whom she manumitted by her will, a certain tract of land, and charged them to transfer the same to their children, when they died. She charged her heirs by the same will to manumit Pamphila who was the natural daughter of Pamphilus. This same Pamphilus, after the time that the legacy vested in him, appointed Mævius his heir by will, and charged him to give his property to Pamphila, his daughter, as soon as she became free, that is to say, half of the land above mentioned, acquired by the will of her patroness, and which constituted his entire estate. I ask whether Pamphila, having been manumitted, could claim this share of the estate by virtue of the will of the patroness of her father, or, indeed, by that of her natural father, and whether on account of the trust, the provision of the Falcidian Law will apply. I answered that, in accordance with the facts stated, it should be held that Pamphila could only claim the execution of the trust by virtue of the first will. Claudius: For the reason that it is believed that under the appellation of “children,” natural children are also included, that is to say, such as are born in slavery. 13Scævola: A certain person bequeathed a hundred aurei to Gaius Seius by a codicil, and charged him to give that sum to a certain female slave belonging to him, the testator. I ask whether the trust, by which the legatee is ordered to make payment to a female slave of the testator, is valid. I answered that it was not. Again, if it is not valid, will the legatee be obliged to pay the heir to whom the said female slave belongs? I answered that he would not be obliged to do so, as he himself would have no right to bring suit to collect the legacy bequeathed to him. 14A certain man left a house to his freedmen of both sexes, in such a way that the males receive two-thirds and the females one-third of the rent of the same; and he forbade them to alienate the property. The house, however, was sold by the heir with the consent of all the parties interested. I ask whether the males will be entitled to two-thirds of the purchase-money of the said house, and the females to one-third, or not. I answered that no demand, under the trust, could be made for any part of the price of the house, unless the parties had consented at the time of the sale that the male freedmen should have two-thirds of the purchase-money, and the females one-third of the same. 15Having appointed his son his heir, along with his grandson, who had been born to said son, a testator made the following provisions in his will: “I do not wish my house to be sold by my heirs, nor any money to be borrowed on it, but that it shall remain permanently and absolutely, for all time, in the possession of my sons and grandsons. If, however, any one of them should desire to alienate his share, or to borrow money on it, he shall have the power to sell to his co-heir, and to borrow the money from him. But if any one of them should do otherwise, any obligation which he may incur shall be null and void.” A son of the deceased afterwards borrowed money from Flavia Dionysia, and having rented the house to her, assigned to his creditor the rent due to him; and the question arose whether the condition of the will was held to have been fulfilled, so that the son would be liable to his brothers under the terms of the trust. I answered that, in accordance with the facts stated, the condition was not fulfilled. 16A testator, having appointed his mother and his wife his heirs, inserted the following provision into his will: “I request you, my dear wife, not to bequeath anything at your death to your brothers; you have your sister’s children to whom you can leave your property, for you know that one of your brothers killed our son, while he was robbing him, and your other brother caused me great injury.” I ask, as the wife died intestate, and her estate passed to her brother as her heir-at-law, whether the sister’s sons could demand the execution of the trust. I answered that they could do so, and that the trust was due. 17“I, Lucius Titius, have drawn up this, my last will and testament, without the aid of anyone learned in the law, rather having chosen to follow the inclinations of my mind, than to conform to an over-particular and excessive exactitude. Therefore, if I have included herein anything which does not conform to the prescribed legal requirements, or is indicative of a want of knowledge, the will of a man of sound mind should still be considered valid in law.” He then appointed his heirs. The question arose when possession of his estate was claimed on the ground of intestacy, whether the dispositions made under the trust could be enforced. I answered that, in accordance with the facts stated, they could be.

Scævola, Opinions, Book III. Lucius Titius made the following provision in his will: “My heir shall not, under any circumstances, alienate my suburban estate, or my city residence.” His daughter, who was appointed his heir, left a daughter who retained possession of the said property for a long time, and, at her death appointed foreign heirs. The question arose whether the land belonged to Julia, who was the grandniece of Titius the testator. The answer was that, in the case stated, nothing had been done against the will of the deceased to prevent the property from belonging to the heir, as the testamentary provision was a mere precept. 1“I direct my heirs to pay to my wife, Sempronia, a hundred aurei, which I have borrowed from her.” The question arose whether Sempronia could demand the execution of the trust, if, having brought suit for the said sum of money as being due to her, she should lose her case. The answer was that, according to the facts stated, the money could be claimed under the terms of the trust, since it appeared that it was not due for any other reason. 2A man devised certain lands to his freedman, and added the following words: “As they have been possessed by me, and with whatever may be there at the time of my death.” The question arose whether the slaves who remained on the land for the purpose of cultivating it, or for any other reason, at the time of the death of the testator, as well as the other personal property found there, would belong to the legatee. The answer was that they would. 3The question arose whether property which heirs were charged to deliver to their brothers would also belong to their sisters. The answer was that it would, unless it was proved that the intention of the testator was otherwise. 4A testator left to the guild of blacksmiths a legacy, as follows: I devise such-and-such a tract of land, together with the forest belonging to it, in the best and most excellent condition in which it may be.” I ask whether the personal property which was on the premises at the time of the death of the testator, for example, the hay, the fodder, the straw, the machines, the vessels for holding wine (that is to say the vats and casks attached to the warehouses), and the granaries, were also bequeathed. The answer was that anything which was not bequeathed is improperly claimed. 5A testator having left a certain tract of land as a preferred legacy to an heir to whom he had bequeathed half of his estate made the following request of him: “I request you to consent to accept Clodius Verus, my grandson, and your relative, as your co-heir to half of the Julian Estate, which I have directed to be given to you over and above your share.” I ask whether the grandson would be entitled to half of the estate under the terms of the trust. The answer was that he would.

Scævola, Opinions, Book III. A man left certain lands to a town, and desired the income of the same to be devoted to the celebration of public games every year, and added the following: “I request the Decurions, and I desire that they shall not change the character of the legacy, or employ it for any other use.” The town did not celebrate the games for the period of four continuous years. I ask whether the income which it obtained during the said four years should be refunded to the heir, or whether it should be set off against a legacy of another kind bequeathed by the same will. The answer was that if possession of the land had been taken contrary to the will of the heirs, any profits which had been acquired must be given up, and compensation should be made for what was not expended in accordance with the will of the deceased by the surrender of any other property which was due.

The Same, Opinions, Book III. “I wish the income of the æbutian Estate to be paid to my wife as long as she lives.” I ask whether the guardian of the heir can sell the land and tender to the legatee, annually a sum equal to that which the testator was, during his lifetime, accustomed to obtain from the lease of the property in question? The answer was that he can do so. I also ask whether the legatee can with impunity be prevented from living on the said land. The answer was that the heir is not required to furnish him lodging. I also ask whether the heir can be compelled to make repairs on the land. The answer was that if, through the acts of the heir, the income has been reduced, the legatee can lawfully claim the amount of the diminution. I also ask in what way a legacy of this kind differs from an usufruct. The answer was that the difference can be ascertained from the opinions previously given.

Scævola, Opinions, Book III. Where a husband who had received a dowry from his wife in money, and other property which had been appraised, made a bequest to her as follows: “If my wife, Seia, should be able to show to my heir all the property contained in her dotal contract, and pay to him the amount which her father gave me for her, by way of dowry, I wish ten denarii over and above this sum to be paid to her.” As there was considerable property belonging to the dowry which was worn out by use and which did not exist at the time of the death of the husband, the question arose whether the legacy should be paid under an apparently impossible condition. I answered that the condition would seem to have been complied with, if what remained of the property given as dowry had come into the hands of the heir.

Scævola, Opinions, Book III. A man made a bequest to his wife as follows: “Let my wife take from the bulk of my estate whatever I have obtained for her use, and what she has given to me.” I ask whether it should be held that a preferred legacy of her dowry had been bequeathed. The answer was that, in accordance with the facts stated, the legacy of the dowry should also be understood to be meant, unless it was proved that the intention of the testator was otherwise. 1“I give to my wife Titia, the money which came into my hands as her dowry, or has been stipulated for as such, which is evidenced by two dotal instruments, duly sealed, and amounts to the sum of a hundred aurei.” The question arose whether the woman can recover both sums. The answer was that there seems to be no reason why she cannot do so.

Scævola, Opinions, Book III. A testator left Seia, whom he had appointed heir to a portion of his estate, certain lands as a preferred legacy, together with the farmers who cultivated them, and any rent not yet paid by tenants, if she should become his heir; and then he made the following provision in a codicil: “It has afterwards occurred to me to mention that I wish Seia, to whom I devised my land, to also have all the farming implements, furniture, cattle, farmers, rent due from tenants, and supplies.” The question arose whether those articles which were on the land and were intended for the daily use of the head of the household, were included in the legacy. The answer was that, in accordance with the facts stated, property over and above the land had been bequeathed to Seia; but that no more was due to her than the testator had specifically mentioned in the codicil which he had drawn up after having forgotten to clearly indicate this in his will, and which he showed he intended to be included in the term equipment. 1A testator devised to his freedman certain lands as follows: “I do give and bequeath to my freedman, Seius, such-and-such and such-and-such tracts of land, provided with implements as they are, together with all dowries, and balances due from tenants, and also with the foresters, and their wives and their children.” The question arose whether the slave, Stichus, who cultivated one of the said tracts of land and owed a considerable sum of money, was due to Seius under the terms of the trust. The answer was if he cultivated the land, not as a trusted agent of his master, but for the payment of rent, as foreign tenants are accustomed to do, Seius would not be entitled to him. 2“I wish such-and-such tracts of land, provided with all implements, and the upper house, to be given to my foster-child Gaius Seius.” The question arose whether the testator designed that the house should be given, fully furnished. The answer was that, in accordance with the facts stated, he seemed to have intended it to be so given, unless the party of whom it was demanded could clearly show that his intention was otherwise. If, however, he had bequeathed the equipment of the lodging, that is to say, of the building, any slaves who were destined for other purposes and whose services were employed elsewhere would not be included in the legacy. 3A man left certain lands, provided as they were with implements, together with all property and balances due from tenants and farmers, with the slaves and cattle, and including the peculia and the steward. The question arose whether the balances due from tenants who, after their lease had expired and they had given security, had left their farms, would be included in the devise, under the words above mentioned. The answer was that the testator did not seem to have had these claims in his mind. 4With reference to the steward who was bequeathed, the question was also asked whether his wife and daughter were included in the legacy, as the steward did not reside on the land, but in the city. The answer was that there was nothing in the case stated to show that they were included. 5It was also asked, if a testator, after having made his will, should go on a journey into a province, whether those slaves who, after his departure, or after his death, had voluntarily and without the authority of anyone, betaken themselves to their relatives and acquaintances on the lands which had been devised, were included in the legacy. The answer was that those who were, so to speak, passing back and forth, were not bequeathed. 6“I desire that the Titian Estate, provided with its equipment along with everything else that is there, be given to Pamphila, my freedwoman, when I die.” The question arose whether the slave, Stichus, who a year before the death of the testator had been removed from the land to be educated, and afterwards did not return, would be included in the legacy. The answer was if the testator had sent him away merely for the purpose of instruction, and had not transferred him from the said tract of land to another, he would be included. 7“I leave to my sister, Tyranna, my Grecian estate, together with the barn, and all the farming implements.” The question arose whether the pastures, which the testator obtained at the same time with the said land, and which he had always kept for the use of the same, were included under the appellation, “Grecian estate,” and were embraced in the devise. The answer was that if he had united them with the Grecian estate, so that they were included under one denomination, they would form part of the devise. 8Where a house was left completely furnished, a silver-gilt bedstead, having temporarily been stored in a warehouse, was not found there at the time of the death of the testatrix, Titia. I ask if it also should be delivered to the legatee. The answer was that if it was ordinarily kept in the residence, and had, in the meantime, been taken to the warehouse in order to be in a safer place, it ought nevertheless, to be delivered to the legatee. 9Where the testator added the following phrase, “Just as I have possessed it,” does this refer to the way in which the land was equipped at the time of his death, that is to say, with slaves, cattle, and farming implements? The answer was that this has no reference to the legal rights of the legatee.

Scævola, Opinions, Book III. “Let my son Titius take from the assets of my estate, as a preferred legacy, such-and-such a house, and a hundred aurei.” Then, under another article, the testator left to his children their peculia as preferred legacies. The question arose, whether the hundred aurei and the interest on the same would be included in the preferred legacy of the peculium, together with the account-books containing the amounts due, both principal and interest, to the other creditors. The answer was if the father had lent money in the name of his son, and had credited the latter with interest on the same, as might be suggested, this also would be included in the legacy of the peculium.

Scævola, Opinions, Book III. “I wish all my provisions to go to my mother, or to my children who are with her.” I ask, if the guardians of a ward should say that only the provisions contained in his residence were bequeathed, and certain jars of wine were found in his storehouses, whether these are included in the legacy. The answer was that any provisions which he had anywhere for his own use were included.

The Same, Opinions, Book III. “Let Stichus, the grandson of my nurse, be free, and I also wish ten aurei to be paid to him every year.” Then the testator, having set aside certain credits for his benefit, bequeathed to the said Stichus his wife and children, and to the latter what he had furnished them during his lifetime; and afterwards, under another head, he directed to be given to all of his freedmen what he, while living, had been accustomed to furnish them. I ask whether Stichus will, in addition to his legacy, be entitled to maintenance. The answer was that, according to the facts stated, he will not. 1The same testator having charged the municipality of a city to provide support for his freedmen of both sexes, to be paid out of certain lands which he devised to it; I ask whether the daily allowance and the clothing which the testator had, while living, given to Stichus and his wife and children, should be given to them by the appointed heir, or by the municipality. The answer is that, in accordance with the most liberal interpretation of the will, it must be said that they should be furnished by the city. 2Titia bequeathed the usufruct of a tract of land to Mævius, and charged him to pay Pamphila and Stichus a hundred sesterces annually, out of the income of said land, as long as they lived; I ask whether, after the death of Mævius, the heir of Titia will be required to provide support. The answer is that there was nothing in the case stated which would require it to be furnished by the heir of Titia, or by the heir of the legatee either; unless it was clearly proved that the testator intended it to be furnished after the extinction of the usufruct, provided that the amount obtained from the usufruct should be sufficient. 3Ad Dig. 34,1,20,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.A mother, having appointed her son her heir, granted freedom to her slave Pamphilus, under a trust, and bequeathed him five aurei for the purpose of providing him with food, and fifty aurei, payable annually, for his clothing, on condition that he lived with her son. I ask whether the support must be furnished after the death of the son. The answer is that if the condition was complied with, it must be furnished after his death.

Scævola, Opinions, Book III. “I charge my heirs to deliver to my dearest Seia any golden cup which she may select.” As the assets of the estate do not include anything but bowls, goblets, small measures, or drinking vessels, I ask whether Seia can make her collection from these articles. The answer was since the word “cup” is applicable to everything intended for drinking purposes, she can make her selection from them.

Scævola, Opinions, Book V. Titia, by her will and a codicil, specially bequeathed under a trust several articles of silver and of clothing. I ask whether any other property than that which may be found among the assets of the estate will be included in the legacy. The answer is that what is found will be included, and that security must be furnished to deliver the balance, in case it should be found. 1“I wish my Tabian mantles, and three tunics with their capes, also to be given to Sempronia-Pia, to be selected by herself.” I ask whether Sempronia will have the right to make her selection of the different tunics and capes from all the clothing of the deceased, that is to say, from her entire wardrobe. The answer is that if the tunics with the capes were left separately, she could only make her choice from those of the same kind; but if this was not the case, the heir would have a right to furnish them from the entire wardrobe, or to pay her their appraised value. 2Seia made the following provision in her will: “If I, myself, should be prevented from doing so by the uncertainty of human affairs, I desire, and I direct that the bust of such-and-such a god, of a hundred pounds weight, be placed by my heirs in such-and-such a holy temple, with an inscription including my name, and stating that I have caused it to be set up in my native city.” As there were no other gifts in this temple except some of bronze or silver, the question arose whether the heirs of Seia would be compelled to provide a silver, a gold, or a bronze bust. The answer was that, in accordance with the facts stated, one of silver should be placed there.

Scævola, Opinions, Book III. A creditor made the following bequest to his debtor: “I desire everything due to me from Gaius Seius, and which he has secured by pledging his gardens, to be given to him by my heirs.” If the testator, during his lifetime, had received any payment from Seius, I ask whether this could be claimed as due under the legacy. The answer was that, in accordance with the facts stated, it could not be claimed. The same party again applied for advice, alleging that the testator, before making the codicil by which he left the bequest, had received almost all the principal and interest of the debt, so that but a very small portion of the debt remained, and asked whether he would have a right of action for recovery on account of the clause, “everything due to me which is related to the past.” The answer was that, with reference to the facts stated in the first place, my opinion was correct; but so far as those stated subsequently were concerned, something had been added, and the point must be decided by the court, who should ascertain whether the testator, having forgotten that the money had been paid, had made this provision; or because payment was without his knowledge; or whether he had acted designedly, as he wished that the amount due, rather than the right to demand a release, should be bequeathed. 1A testator, among others, made the following bequest to his freedman: “If he has transacted any business for me during my lifetime, I forbid any accounting to be required of him therefor.” The question arose whether he would be compelled to surrender to the heirs the books in which the accounts were kept, as well as any sums remaining in his hands as shown by the entries of receipts and expenditures. The answer, with reference to the matter in question, was that the heir was also entitled to claim what the steward had lent to his fellow slaves who formed part of the estate, which sums, expended for the benefit of his master, should be deducted from the balance in his hands. 2Titia, who had had two guardians, made the following provision in her will: “I do not wish an account of my guardianship which Publius Mævius and Lucius Titius administered, to be required of the former.” The question arose whether any money remaining in his hands from the administration of the guardianship could be collected from him. The answer was that there was nothing in the case stated to lead to the belief that the money which belonged to the ward, and remained in the hands of the guardian, was bequeathed. 3The question was also asked whether the fellow guardian should also be considered to have been released. The answer was that the fellow guardian was not released. 4“With reference to Gaius Seius, who has been especially deserving, I do not wish that anything he owes me in notes, or on account, or whatever he has borrowed from me, or any obligations I may have contracted for his benefit be required either of him or of his heirs.” I ask whether only the amount of money due at the time when the will was made was bequeathed, or whether any of the interest which had accrued on the said sum afterwards, was included in the legacy. The answer was that, in accordance with the facts stated, it appeared that the testator intended all the obligations of Seius due to himself to be discharged by virtue of the trust. 5It was also asked, after an obligation had been renewed and the amount of the debt increased, whether what was due under the old contract would still be included in the legacy; or where a renewal had been made, and the party having become, as it were, a new debtor, he could be sued for the increased amount. The answer was that only that was considered to have been bequeathed which the party owed at the time, but if the testator still adhered to his original intention, the legacy would include all the indebtedness existing at the time of his death.

Scævola, Opinions, Book III. Titia, having appointed her son, who also had children, her heir, charged him to deliver all her property to his children or grandchildren, whenever they should claim it, and to do so without any legal controversy. I ask whether, by these words, “Whenever they shall claim it,” a condition appears to have been imposed upon the trust. The answer was that it does not.

Scævola, Opinions, Book III. A testator appointed a son under paternal authority the unconditional heir to a portion of his estate, charged him with a trust, and inserted the following provision into his will, “For the reason that I have appointed Lucius Titius my heir, I wish him to enter upon my estate, if he should be released from the control of his father.” After the estate had been accepted by his co-heirs, the question arose whether the legacy left to the son would take effect. The answer was that if it was left without any condition, the execution of the trust could be demanded of the co-heirs of the son, in proportion to their respective shares in the estate. 1A testator left ten denarii payable monthly to certain slaves whom he manumitted. As the heirs were absent, and the slaves obtained their freedom under the Decree of the Senate, the question arose from what time the payment of legacies for their support should be made. The answer was that, according to the facts stated, these legacies should be paid to them from the time when they began to be free.