The Same, Opinions, Book IV. A certain man appointed his son and his wife his heirs by his will, and afterwards is said to have written a letter, by which he gave to his son all the property the latter had in his peculium; and added that he desired that the latter should have this property as a preferred legacy, to be disposed of at his pleasure, at his death. The testator set forth in his will that any paper found sealed after his death would be valid as a codicil; the above-mentioned letter, however, was not sealed, and I ask whether its contents would benefit the son. I answered that if the genuineness of the letter was clearly established, any property which the testator stated therein he intended should be given to his son, the latter would be entitled to. 1A testator who owned property jointly with his brother appointed his daughters his heirs, and made the following provision in his will: “With reference to all my property which is owned in common with you, my brother, and your uncle, and of which the value may altogether amount to two thousand aurei, I ask that you receive therefrom the sum of a thousand aurei from your uncle Lucretius Pacatus, in lieu of your share.” The testator survived this will five years, and left a greatly increased estate. The question arose whether the heirs of Lucretius Pacatus could, in compliance with the terms above quoted, by tendering the sum of a thousand aurei, obtain the execution of the trust. I answered that, according to the facts stated, it was not the intention of the testator that his entire estate should be given up on the payment of a thousand aurei, but that the tender should be made in accordance with its appraised value at the time of the testator’s death. 2A testator made a bequest to Seius, whom he had substituted for his heir, as follows: “I wish fifteen pounds of silver to be given to Seius, and his wife Marcella, if he should not be my heir.” I ask whether if Seius should be his heir, Marcella would be entitled to half of this bequest. I answered that, according to the facts stated, she would be entitled to it. 3Lucius Titius, having died intestate, left a wife and a daughter by her, who had been emancipated, and inserted the following provision into his codicil: “This codicil had reference to my wife and daughter. In the first place, I request them to live together, as they did during my lifetime. I also request them to hold in common any property which I may leave to them, or whatever they may have otherwise obtained.” The daughter acquired possession of the estate of her father, on the ground of intestacy; and the question arises whether any portion of the estate of Lucius Titius is due to her mother from the daughter by the terms of the trust, and if so, how much. I answered that, in accordance with the facts stated, half of the estate is due to her, provided the mother was ready to place all her own property in the common fund. 4A testator appointed his four children his heirs to equal shares of his estate, and left a tract of land to each of them as a preferred legacy. The entire estate of the father being encumbered, the children borrowed money with which to pay the first creditor, and encumbered the same property to the second one; then the latter, as the debt was not paid, sold all the land to one of the heirs under his right of hypothecation. The question arises, as the son had possession of this property by the title of purchase, whether his brothers and co-heirs were entitled to demand the execution of the trust; or whether the trust was annulled, as the entire property held in common had been hypothecated by them to the second creditor. I answered that the personal action to which the heirs were entitled could still be brought by all of them, but that the trust could not be restored unless the heir who purchased the property should first be paid the debt by his co-heirs. 5A father charged his daughter with a trust as follows: “I ask you, my daughter, after my death to change the dotal security, and renew it in such a way that your brothers may agree that your dowry may be returned to you on condition that, if you should die without having one or more children during your marriage, your dowry shall go to them.” The husband died after the death of the father, and before the dotal bond had been renewed, and the girl, having married a second time, died, leaving no children, and was survived by Titius, one of her brothers. The question arose whether Titius had a right to claim the property which was included in the dowry. I answered that the execution of the trust could be demanded by the heirs of the sister, if it was her fault that her brother did not make the agreement with reference to the dowry. 6A testatrix who had appointed her son and daughter her heirs, bequeathed legacies to her freedmen, and charged them with a trust as follows: “As I have bequeathed you certain property I ask you to be content with it, during your lives, and when you die, to deliver it to my children.” Mævia, the daughter of the testatrix, having died, a freedman also died, after having appointed a son of his patroness his heir to that portion of his estate to which he was entitled by law, and the remaining portion he left to a stranger. The question arose whether, after the estate had been entered upon, the son of the patroness could demand from his co-heir the share of the property which, according to the will of the mother, had come into the hands of the said freedman. I answered that he could demand from his co-heir the same share to which he would have been entitled if the estate had not been entered upon. 7A husband appointed his wife heir to his entire estate, and directed that a codicil, which he had executed, should not be opened until after her death. She, considering a certain tract of land which formed part of the estate unproductive, sold it. The purchaser asks whether, after the death of the woman, the legality of the sale can be called in question by parties to whom it was ascertained that the estate of the testator had been left in trust by the terms of the codicil; or whether the beneficiaries of the trust would only be entitled to the amount of the price received for the land. I answered that on account of the justifiable ignorance of the woman, as well as of that displayed by the purchaser, the land should remain in possession of the latter, and the heir of the woman should be required to pay the price obtained for it to the beneficiary of the trust.

Scævola, Opinions, Book IV. Mævia appointed her grandson, who was born to Mævius and had reached the age of puberty, her heir, and made a bequest to Lucius Titius, as follows: “I desire ten aurei to be paid to Lucius Titius, a good man, to whom I am indebted for favors which he has done me, as long as he lives; if he should take charge of the business of my grandson, and conduct the administration of all his affairs.” I ask, if Lucius Titius had, at some time or other, transacted the business of Mævius, and the latter had objected to his doing so any longer, whether he would be obliged to execute the trust. I answered that, if Lucius Titius had been deprived of the right to transact the business of Mævius, not on account of any fraudulent act, and no other just reason had existed for rejecting his services, and he was willing to continue to conduct his affairs, he would be entitled to the legacy. 1A man, having appointed his wife his heir, provided as follows, in his will: “I wish twelve denarii to be paid every year by my heir to each of my freedmen for his support, if they do not abandon my wife.” As the testator very seldom left the town, and his wife frequently did so, I ask whether the freedmen should accompany her on her journey. I answer that a positive opinion cannot be given on this point, as many things might arise which it would be well to take into consideration; and therefore a case of this kind should be submitted to the judgment of a good citizen. It was also asked, as when the woman went on her journeys she never offered to pay anything additional to her freedmen, and for this reason they did not accompany her, whether they would be entitled to their legacies. The answer was that this should be determined by taking into account the length, or the shortness of the journeys, and the amount of the legacies.

Scævola, Opinions, Book IV. A man bequeathed three hundred aurei to Gaius Seius, in order that out of the interest of the said sum he might provide his freedmen with food and clothing, as he had specified; but afterwards, by a codicil, he forbade the said sum to be given to Gaius Seius, but desired it to be paid to Publius Mævius. I ask whether Mævius was required to execute the trust for the benefit of the freedmen. I answered that Mævius, according to the intention of the testator, appeared to be charged with the duties for which the said sum of money was left, which were transferred to him by the codicil; unless he could prove that some other obligations had been imposed upon him by the testator which are not at present under discussion. 1Ad Dig. 34,1,13,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 92, Note 8.The Emperor Antoninus Pius to the freedman of Sextia Basilia, Greeting: “Although the terms of the will indicate that you shall be furnished with food and clothing as long as you reside with Claudius Justus, still, I think that the intention of the deceased was that this should be given to you after the death of Justus.” The opinion was rendered that this clause must be understood to mean that the requirement to provide support shall be perpetual. 2I, myself, was consulted with reference to the following clause in a will: “And I wish that they shall always remain with you.” I ask, where freedmen have been manumitted by the heir, and remained with him for a long time, but finally departed because the services he required of them were too severe; whether they would be entitled to the support with which he refused to furnish them, unless he had the benefit of their services. The answer is that, according to the facts stated, he would be obliged to furnish them support.

Scævola, Opinions, Book IV. A guardian having appointed certain heirs at the time of his death, desired to give to his ward, whose guardianship he had administered, the third part of his estate, provided he did not raise any controversy with his heirs on account of the guardianship, but released them all from liability with reference to the same. The ward obtained the legacy, and, nevertheless, afterwards demanded of the heirs everything which had come into the hands of his guardian from the sale of property, or from any other source connected with the guardianship. I ask whether, by the terms of the will, he should be excluded from bringing actions of this kind. The answer was that, if he received the benefit of the trust before complying with the condition imposed, and then proceeded to make the claim contrary to the terms of the legacy, an exception on the ground of bad faith could be interposed against him by the heirs, unless he was ready to return what he had received from the trust, which had been granted him as a favor on account of his age.

Scævola, Opinions, Book IV. A woman appointed her husband and their son heirs to equal shares of her estate. The question arose whether, in calculating the portion allowed by the Falcidian Law, the share of the husband which had come into his hands from the same estate through his son should be charged. The answer was that, if by the appointment of his son, he had received as much as was sufficient for the Falcidian portion, nothing should be deducted on that account. 1A testator bequeathed an estate to his freedman, and charged him by a trust to pay ten aurei to Seia, every year. The question arose, if the Falcidian Law diminished the legacy of the freedman, whether the annual trust with which he was charged for the benefit of Seia would also be diminished, provided that the income exceeded the annual payment. The answer was that, according to the facts stated, it would not appear to have been diminished, unless the intention of the testator was proved to be otherwise.

Scævola, Opinions, Book IV. A father charged his daughter, if she left any children at her death, to transfer to her brother half of what she obtained from the paternal estate, but if she should die without issue, he directed that she should transfer the whole of it to him. As the daughter died during the marriage, leaving a daughter, the question arose whether her heir should transfer to the brother half of the estate together with half of the dowry which had been given to her husband. The answer was that what had been given by way of dowry was not included in that part of the estate which should be transferred; and that even if something was due by virtue of a promise made with reference to the dowry, it should be classed among the debts of the estate. 1A testator left a certain sum of money to a boy whom he had brought up, and directed it to be paid to Sempronius, and that a certain amount of interest on said sum should be paid to the boy until he reached his twentieth year; and it was then provided that, if he should die without issue, he should pay half of the said sum to Sempronius, and half to Septitia. The boy, having died before reaching his twentieth year, the question arose whether those who had been substituted for him could claim the benefit of the trust at the time of his death, or whether the trust would continue to exist for that period of time which would have been required for the boy to reach his twentieth year, if he had lived. I answered that, according to the facts stated, the execution of the trust could be demanded at the time of the boy’s death.

The Same, Opinions, Book IV. When a tract of land, with all its equipment, is devised, the question arises in what way it should be delivered, whether in the condition it was at the time of the death of the testator, or at the time when the codicil was made, or at the time when it was claimed. The answer was that the land with its equipment should be delivered at the time when the legacy vested.

Scævola, Opinions, Book IV. I ask whether a freedman can be prevented by his patron from carrying on the same kind of business which his patron is transacting in the same colony. Scævola answered that he could not be prevented from doing so.

Scævola, Opinions, Book IV. Scævola gave it as his opinion that those who have the right to render judicial decisions are accustomed to authorize the continuance of aqueducts, whose use has been confirmed by time, although the legal right by which they exist cannot be established.

Scævola, Opinions, Book IV. A man who had a slave named Cratistus made the following provision in his will, “Let my slave, Cratinus, be free.” I ask whether the slave Cratistus can obtain his freedom, as the testator had no slave called Cratinus, but only the said slave, Cratistus. The answer was that no impediment existed because a mistake had been made in a syllable. 1Certain testamentary heirs, before entering upon the estate, agreed with the creditors that the latter should be content with half of their claims; and a decree having been issued by the Prætor to this effect, they accepted the estate. I ask whether the grants of freedom made by the will would take effect. The answer was that they would take effect, if the testator had no intention of committing fraud.

Scævola, Opinions, Book IV. “I wish Thais, my female slave, to become my freedwoman, after she has served my heir as a slave for ten years.” The question arises, as the testator desired the slave to be his freedwoman, and the heir could not make her such, and freedom was not absolutely and directly granted her, whether she would remain in slavery even after the ten years had elapsed. The answer was that there was nothing in the case stated to show why Thais should not be entitled to freedom. 1Lucius Titius provided in his will as follows, “My dear son, Mævius, if Stichus, Damas, and Pamphilus have deserved it at your hands, I request you not to permit them to serve as slaves to another after my debts have been paid.” If it was the fault of the heir that the debts of the estate were not paid, I ask whether the slaves can obtain their freedom under the terms of the trust. The answer was that the heir ought not to be blamed if he delayed payment of the debts on account of the convenience resulting to himself in managing his property; but if it should clearly be proved that he designedly did not pay the debts, in order to prejudice the grants of freedom, the latter will become operative. 2A testator charged the testamentary guardian of his children to manumit his slaves, but the person appointed was excused. I ask whether the other guardians appointed in the place of the one who was excused should be required to liberate the slaves. The answer was that, according to the facts stated, the appointed heir appeared to have been charged with the grants of freedom. 3“I give to Seius three pounds of gold and my notary Stichus, whom I charge him to manumit.” Seius was appointed guardian by the same will, but excused himself from accepting the guardianship. The question arises whether the grant of freedom under the trust should, nevertheless, be executed. The answer was that there was nothing in the case stated which would prevent this from being done. 4A testator, having appointed his sister his heir, made the following provision with reference to his slaves, “I wish, and I charge you, my dear sister, to entertain the highest consideration for my stewards, Stichus and Damas, whom I have not manumitted, as they have not rendered their accounts. If you are also satisfied with those slaves, you know the feelings which I entertain towards them.” Where the stewards were ready to render their accounts, and the heir did not grant them their freedom, I ask whether she should be heard if she alleged that she was not satisfied with them. The answer was that the displeasure of the heir should not be considered, but only what would satisfy a reliable citizen to enable them to obtain their freedom. 5Lucia Titia charged her heirs to purchase Pamphila, the female slave of Seia, and her children, and manumit them. An estimate of the amount which ought to be given for them was made by a judge, and, in the meantime, before the money was paid, Pamphila brought forth a child. I ask whether the child of Pamphila would belong to the heirs of Seia, or to the heir of Titia? The answer was that the child would be the property of the person to whom the mother belonged at the time of its birth; but if the heir was in default in executing the trust, he should be compelled also to grant freedom to the child. 6Lucius Titius made the following provision in his will: “I recommend So-and-So and So-and-So, slaves who are physicians, to you, and it depends upon you whether you have them as your good freedmen and medical attendants. I myself would grant them freedom, but I fear to do so, because the physicians of my sister, who were slaves, having been manumitted by her, and having served their time, abandoned her.” I ask whether the above-mentioned slaves are entitled to their freedom under the trust. The answer was that, in accordance with the facts stated, the necessity of liberating them is not imposed upon the heirs, but that this depends upon their judgment. 7Titius granted freedom to his slave “in case he rendered his accounts.” I ask whether the accounts rendered by him should include, as part of the sum remaining in his hands, any losses which may have accidentally been incurred. I gave it as my opinion that in any business which was transacted with the consent of the master, those losses which were the result of accident could not be charged to the slave, and must not be included, in the balance remaining in his hands. 8I also ask, where a slave is directed to surrender all of his peculium, whether the peculium should be calculated in such a way that only that will be included in it which would belong to the master for any reason whatsoever. The answer was that, in the case in question, what the master was entitled to should not be deducted from the peculium. 9I also ask, if the slave has placed in his peculium any of the balance remaining in his hands, whether this should be deducted from the peculium which he is required to surrender. The answer was that if what is mentioned has been placed in his peculium, it must be paid over as a part of the balance, for the condition is sufficiently complied with where the remainder of the peculium is delivered. 10A testator made a grant of freedom by his will as follows: “I desire my slave, Cupitus, to be free, after rendering his accounts, when my son Marcianus reaches the age of sixteen years.” After the death of the testator, the guardians of his son required Cupitus to pay a debt due to the estate, and the latter paid to the said guardians the amount which he had collected. The son afterwards died under the age of puberty, his mother became his heir, and caused judgment to be rendered against the guardians on account of their administration of the guardianship. Cupitus demanded his freedom at the time when Marcianus would have been sixteen years of age, if he had lived; and offered to render his accounts for a year after the death of the testator, as the other accounts had been approved. The question arose whether Cupitus could also be compelled to render the accounts for which the guardians were responsible. The answer was that the slave in question seems to have complied with the condition of rendering his accounts, if he had rendered one of all the business which he had conducted, and which could properly be required. With regard to the other proviso, the more indulgent interpretation should be adopted, that is, the child having died, the slave had waited long enough, as he did not demand his freedom until the time when the minor would have attained his sixteenth year if he had lived. 11“Stichus and Damas, my slaves, you will become my freedmen, if you render your accounts.” The question arose whether, in order to obtain their freedom, they must not only render their accounts, but also give up any property which had been designedly and fraudulently appropriated by them. The answer was that, in the condition of rendering their accounts, everything which related to the administration and fidelity of the slave was included. 12Certain slaves did not comply with the condition of rendering their accounts within a specified time, and afterwards announced that they were ready to do so. The question arose whether they could obtain their freedom. The answer was that if they were to blame for not complying with the condition within the prescribed time, they would not become free, even if they were subsequently willing to render their accounts. 13“I request my heirs, and I charge them to manumit Stichus, after he renders his accounts, when my son reaches the age of sixteen years.” I ask whether the testator intended that the slave should act as steward until the time when the son reached the age of puberty. The answer was that it was clear that the testator intended that Stichus should also render an account of this part of his administration. 14“I direct that my slave, Stichus, give and pay to my daughter and my wife, my heirs, so many aurei, without any controversy, and I charge them to manumit him.” As the wife rejected the estate, the question arose whether the slave was obliged to pay both of them, or only the daughter. The answer was that the entire sum should be paid to the daughter, as she was the sole heir to the estate. 15A testator having appointed his son heir to his entire estate, granted him his freedom in the following words: “Let December, my accountant, Severus, my steward, and Victorina, the wife of Severus, become free in eight years, and I wish them to remain in the service of my son for that time. Moreover, I charge you, my dear son Severus, to treat December and Severus, to whom I have not immediately granted freedom, with due consideration, in order that suitable services may be rendered by them to you, and I hope that you will have them as good freedmen.” As the son of Titius was nine years of age at the time that the latter made his will, and Titius died two years and six months afterwards, I ask whether the eight years during which the grant of freedom was deferred should be reckoned from the date of the will, or from the time of the death of the testator. The answer was, that the testator appeared to have counted the eight years, during which the grant of freedom was in abeyance, from the day when the will was made, unless it can be proved that his intention was otherwise. 16“Let Spendophorus be free when my daughter marries in my family, if he renders a satisfactory account of his administration to her.” The daughter, having died before reaching the age of puberty, and during the lifetime of her father, Seius became the heir by substitution. If Spendophorus did not transact the business of the minor, and ceased to administer the affairs of her father, I ask whether he would become free by the terms of the will, at the time when, if Titia had lived, she would be twelve years old. The answer was that according to the facts stated, if the slave had not transacted any business of which he would be compelled to render an account to the heir, he would become free. 17“I wish Stichus to be manumitted after he has rendered his accounts.” Stichus, who was a banker, executed certain promissory notes with the approval of his master, and produced accounts signed by the latter, but he did not afterwards contract any other liabilities. The question arose whether the condition could be held to have been complied with, if there were some insolvent debtors whose claims others had attempted to collect. The answer was, that the fact that some of the debtors were not solvent had nothing to do with the obligation of rendering the account.

Scævola, Opinions, Book IV. The heir of a debtor manumitted a slave who had been given in pledge. The question arose whether he became free. The answer was that, according to the facts stated, if the debt was still unpaid, he would become free by the manumission. Paulus: Therefore, if the money was paid, he would be free.