The Same, Disputations, Book IV. If the seals of a will have been broken by the testator, and it has been sealed a second time by himself and seven witnesses, it will not be void, but will be valid by both the Prætorian and the Civil Law.

The Same, Disputations, Book IV. Then, if the heirs appointed in the first degree deliberate as to the acceptance of the estate, those appointed in the second degree cannot obtain it, because the second degree being broken and weakened, the estate can no longer be acquired from that source.

The Same, Disputations, Book IV. Ad Dig. 28,3,12 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 563, Note 7.A posthumous child, having been passed over, was born and died during the lifetime of the testator. Although by strict construction of the law, and by the employment of excessive subtlety, the will may be held to be broken, still, if it was properly sealed, the heir who was entitled to the possession of the estate in accordance with the terms of the will will acquire it; as the Divine Hadrian and Our Emperor stated in Rescripts. For this reason the legatees, as well as the beneficiaries of the trust, will be secure in the possession of whatever has been left to them. The same must be said with reference to a will improperly executed, or one which is void, where the possession of the estate was granted to him who could have obtained it ab intestato. 1Ad Dig. 28,3,12,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 3.Where a civilian who had already made one will makes another, and provides in the latter that the heir shall be entrusted with the execution of the first will, the first is unquestionably broken. Having been broken, it may be asked whether it should not be valid as a codicil. Since the words of the testator in the second will refer to a trust, undoubtedly all matters therein contained relate to a trust, not only the legacies and the property left to be administered in a fiduciary capacity but also all manumissions, as well as the appointment of an heir.

Ad Dig. 28,4,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 564, Note 8; Bd. III, § 673, Note 1.The Same, Disputations, Book IV. A certain individual cancelled his will, or erased it, and stated that he did so on account of a certain heir, and this same will was afterwards sealed by witnesses. The question arose with reference to the validity of the instrument, and of that portion of it which the testator said that he had cancelled on account of the said heir. I held that if the testator had erased the name of one of the heirs, the remainder of the will would undoubtedly be valid, and the right of action would be absolutely refused to the said heir; but where he had been specifically charged with legacies they would be due, if it was the intention of the testator that only his appointment as heir should be annulled. If, however, he erased the name of the appointed heir, and retained that of the substituted heir, he who was appointed would not be entitled to anything out of the estate. But if (as in the case stated), the testator should erase all the names, and should allege that he had done so on account of his dislike to a single heir, I think that it makes a great deal of difference whether he merely desired to deprive the said heir of his inheritance, or whether, on his account, he intended to invalidate the entire will; so that, although only one heir was the cause of the erasure, all of them would be prejudiced by it. If, however, he only wished to deprive a single heir of his share of the estate, the erasure will not prejudice the others, any more than if the testator, while intending to erase the name of one heir, had also unintentionally erased that of another. If the testator thought that his entire will should be cancelled because one of the heirs was undeserving, the right of action will be denied to all of them. But it may be asked whether the right of action should also be denied to the legatees. So far as this doubtful question is concerned, it should be held that the legacies are due, and that the appointment of the co-heir is not invalidated.

Ulpianus, Disputations, Book IV. In a case which was stated, a certain testator appointed two heirs, one to his property situated in a province, the other to his property situated in Italy; and as it was his custom to bring merchandise into Italy, he sent money into the province for the purpose of buying some, and this merchandise was purchased either during his lifetime or after his death, but had not yet been brought into Italy. The question arose whether the said merchandise belonged to the heir to whom the property in Italy had been bequeathed, or whether he was entitled to it to whom that in the province had been left? I stated that it was settled that heirs could be appointed for different kinds of property, and that the appointment was not void; but that it was the duty of the judge having jurisdiction of the partition of the estate to see that no heir to whom a certain portion of the estate had been left, should receive any more than he was entitled to under the will. This should be understood as follows: for example, suppose two heirs were appointed, one to the Cornelian Estate, the other to the Livian Estate, and that one of these tracts of land compose three-fourths of the property, and the other the remaining fourth; the said heirs will then inherit equal portions of the estate, just as if they had been appointed without any designation of their shares; but it will be the duty of the court to see that the land which was devised to each of them shall be adjudged or allotted to him. 1Hence, I am aware that the question arises for what portion of the debts of the estate shall each of these heirs be liable. Papinianus, whose opinion I myself have approved, holds that each of them should be liable for the debts of the estate, in proportion to his hereditary share, that is to say, for half of it; for these lands are understood to have been received as a preferred legacy. Therefore, if the indebtedness was so great that nothing will remain after it has been discharged; we hold consequently that such appointments made with reference to the disposition of certain specific property are of no force or effect. If the application of the Falcidian Law should cause the diminution of the legacies, it will then become the duty of the judge to reduce these preferred legacies, so that neither one of the heirs may receive more than he would have been entitled to if he had obtained a bequest, or any other property, or even the said legacies. But if there should be any doubt as to the application of the Falcidian Law, it will be perfectly right for the judge to require the parties to furnish security to one another. 2This being the case, the appointment which we are considering should not be rejected as invalid, where one heir was left property situated in a province, and the other property situated in Italy. It will be the duty of the judge to assign to each of the heirs that part of the estate which was bequeathed to him. Nevertheless, the said heirs will each be entitled to half of the estate, because no share was allotted to them by the testator. The result of this is, that if there should be more of certain assets of the estate in one place than in another (for example, more in Italy than in the province), and payment of the debts is pressing, it must be held that the same diminution must be made which we have mentioned above. Hence, where legacies have been left to others, contribution for their settlement should be made by the heirs. 3It should now be ascertained what is meant by property situated in Italy, or in the provinces. The intention of the deceased must determine this point, for consideration must be given to what he had in mind. Nevertheless, it must be understood that by the term “property in Italy” all those things are included which the testator always had there, and made arrangement to keep there. Again, if he transferred property temporarily from one place to another, not for the purpose of keeping it there, but with a view to restoring it to its former location, this will not increase the amount of the property in the place to which he transported it, nor diminish that in the place from whence he took it; as, for instance, if he should send from his Italian estate certain slaves into a province (as in Gaul) either for the purpose of paying a debt, or to buy merchandise, who were to return after they had made their purchases, there is no doubt that it must be said that they continue to belong to the Italian estate; as was stated by Mucius where a tract of land was devised, either with all the means of cultivation or with the property which is situated thereon. For Mucius says that where a slave named Agaso was sent to a country estate by his master, he did not belong to the land which was devised, because he had not been sent there to remain permanently; hence, where a slave is sent to a country estate to remain there for a certain time, because he had offended his master; he is, as it were, temporarily banished, and it is held that he does not constitute a part of the estate devised. Hence, slaves who are accustomed to labor on one farm and who are sent to another, being as it were loaned by one tract of land to the other, do not form part of the estate devised, because they do not seem to be permanently attached to the land. In the present instance it must be held that property situated in Italy is such as the testator intended should remain there permanently. 4Hence, where a man sends money into a province for the purpose of buying merchandise, and it has not yet been purchased, I say that the money which was sent there to obtain goods to be brought into Italy must be held to form part of the Italian estate; for if the testator had sent into the province money which he was accustomed to use in Italy, and it was taken and returned from one place to another, it should be considered to belong to the Italian estate. 5I therefore stated that the result would be that the said merchandise which had been purchased to be conveyed to Rome, whether it was transported during the lifetime of the testator, or whether this had not yet been done, and whether the testator knew, or did not know this to be the fact, it will belong to that heir to whom the Italian estate was bequeathed.

Ulpianus, Disputations, Book IV. Where several heirs are appointed for different shares of an estate, and all of them are substituted for one another, they should generally be considered as substituted for the same shares to which they were appointed heirs; for example, if one was appointed heir to one-twelfth, another to one-eighth, and a third to a quarter of the estate, and the latter should reject his share, the quarter shall be divided into nine parts, to eight of which he will be entitled who was appointed heir to two-thirds, unless it was the intention of the testator that he who was appointed heir to one-twelfth should receive one share, and this is hardly to be believed unless it was explicitly stated.

Ulpianus, Disputations, Book IV. Ad Dig. 29,1,19 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 3.The question arose, where a soldier having already made one will makes a second, and in the latter charges his heir as trustee to carry out the provisions of the first, what would be the rule of law in this case? I said, “A soldier is permitted to make several wills, but whether he makes them all at once or separately, they will be valid only where the testator expressly stated that he desired this to be the case; nor will the first will be annulled by the last, as he can appoint an heir to a portion of his estate, that is to say, he can die partly testate and partly intestate. Again, if he had, in the first place, made a codicil, he can arrange it by providing in the will which follows that the codicil can have the effect of an appointment, and can render a direct appointment effective which was formerly precarious; hence, I will say that, in the case stated, if the soldier had intended that the will first executed should be valid, what he provided must stand, and the consequence is that there will be two wills. However, where the execution of the first will is committed to the heir as trustee, it is evident that he did not intend that it should be valid by operation of law, but rather through the acts of the trustee, that is to say, that he has converted the effect of the first will into that of a trust and a codicil. 1Ad Dig. 29,1,19,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 3.The question, however, arises, whether the entire will is converted into a codicil, that is to say, whether the appointment of the heir is included, or in fact only the legacies, the trusts, and the grants of freedom. It seems to me that not only the other matters, with the exception of the appointment of the heir, but also the appointment itself is included in the trust, unless it is proved that the intention of the testator was otherwise. 2Where anyone has been appointed by a soldier heir for a certain time, and another person an heir for the ensuing time, the question arises whether the last heir should be responsible for the distribution of the legacies not distributed by the first one. I think that this obligation does not rest upon him, unless it is established that the soldier’s intention was different.

The Same, Disputations, Book IV. The question arose, where a son had not obtained any portion of his father’s estate, but had still received something, or performed some act in accordance with his father’s will, whether he could be compelled to be liable to his father’s creditors, just as if he had been substituted for a son under the age of puberty? In a case of this kind, Julianus slated in the Twenty-sixth Book of the Digest that he would come within the scope of the Edict, if he had meddled with the affairs of the minor’s estate, for where anyone opposes the will of a parent, he ought not to obtain anything from his estate. Marcellus, however, makes a very nice distinction in this instance, since it makes a great deal of difference whether the son was appointed heir to the entire estate of his father, by the will of the latter, or only to a portion of the same; as if he was only an heir to a portion, he could obtain the estate of the minor after it had been separated from that of the father.

Ulpianus, Disputations, Book IV. Julianus says in the Twenty-first Book of the Digest that if a minor rejects the estate of his father, and someone appears as his heir, the latter cannot be compelled to be liable to the father’s creditors, unless he was substituted for the said minor; for he is inclined to believe that in this case the substitution must be responsible for the father’s debts. This opinion is very properly rejected, by Marcellus, as being opposed to the interest of the minor, who himself, at all events, can have a successor; for anyone would enter upon the estate with great reluctance if he was apprehensive of being liable for the debts of the father. Otherwise, he says, if he had a brother who rejected the will in order to obtain the estate as heir-at-law, he could do so with impunity; for he would not be held to have intended to evade the Edict, which provides for this, in order to prevent the estate of the minor from being burdened with the debts of the father. What, however, was stated with reference to the brother, I think should be understood to apply to the brother of the testator, and not to that of the minor. But if another brother was substituted for the minor, he would undoubtedly be his necessary heir. 1If a son, after the death of his father, should continue to belong in the same firm of which he was a member during the lifetime of his father, Julianus very properly says, by way of distinction, that it makes a difference whether he merely finishes some business which had been begun by his father, or he himself does something which is entirely new; for where he commences something entirely new which is connected with the partnership to which he belongs, he will not be considered to have interfered with the estate of his father. 2If a son should manumit a slave that belongs to his father, he will undoubtedly be held to have interfered with his father’s estate. 3The following case has been suggested, namely: A son purchased slaves from his father with his castrense peculium, and was appointed heir by his father and charged to manumit said slaves. The question arose, if he should reject his father’s estate, and manumit the slaves, would he be considered to have interfered with the estate of his father? He says that unless it was evident that he had manumitted them while acting as heir, he should not be apprehensive of being held responsible for having interfered with the estate.

Ulpianus, Disputations, Book IV. Where the same property was left to different persons, and both the appointed heir and the substitute were charged with its delivery, both of said legatees are not entitled to recovery, but only the one who received it from the appointed heir.

Ad Dig. 29,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 82, Note 14.Ulpianus, Disputations, Book IV. It has very frequently been set forth in Rescripts and Imperial Constitutions, that where a testator was under the impression that he had made a will (but which was void as such), and did not intend it to be valid as a codicil, he is held not to have executed a codicil. Therefore, whatever is included in a will of this kind will not be due, although it would have been if included in a codicil.

Ulpianus, Disputations, Book IV. Although Our Emperor and his father stated in a Rescript that, where property was ordered to be delivered by the appointed heir, this, according to the intention of the testator, also applied to the substitute; still, it must be understood in this way, only where it is clear that the intention of the testator was not otherwise. It can be ascertained in several ways whether; where his heir was charged with the payment of a legacy or trust, he was unwilling for the substitute to be charged with it. But what if he had charged the substitute with the delivery of other property to the beneficiary of the trust, or to the legatee, with which he had not charged the appointed heir? Or what course should be pursued if a good reason existed why the appointed heir should be charged with the legacy, and the substitute should not? Or what should be done if he had substituted the beneficiary, to whom he had left property in trust, to be delivered by his appointed heirs? It must therefore be said that the above-mentioned Rescript does not apply, except where the intention of the testator is obscure.

Ulpianus, Disputations, Book IV. Where anyone leaves to his wife articles intended for her use, and then, during his lifetime, while absent in a province, purchases purple cloth for her, but does not give it to her before he dies, it was stated in a Rescript that the purple cloth would belong to the woman.

Ulpianus, Disputations, Book IV. If we suppose the case of two children, one of whom, being under the control of his father, was passed over in his will, and the other, having been emancipated, was appointed by him his heir, the Edict will be applicable so far as the one who is under parental control is concerned. If both of them should demand prætorian possession contrary to the provisions of the will, he who remained subject to the authority of his father will not be required to pay the legacies to the descendants and ascendants of the testator as he is entitled to the property ab intestato. But can it be said that the emancipated son should not pay them himself, because he was deprived of the estate by one who would not be compelled to pay them, if he were alone? The better opinion is that the latter should, by all means, pay the legacies to the descendants and ascendants; hence if he did not obtain prætorian possession contrary to the provisions of the will, it must be said that he should be protected with reference to half of the estate, and that he must pay the legacies to the legal representatives of the testator. I doubt whether he will be obliged to pay all the legatees; still, for the reason that he is in full enjoyment of the property of the testator, he should discharge his entire duty under the will, so far as his share of the estate is concerned.

Ulpianus, Disputations, Book IV. If a daughter should be appointed heir, she will not be required to place her dowry in the mass of the estate. Therefore, if another child has taken advantage of the Edict, she also must obtain possession of the estate in opposition to the terms of the will, for since she commits no wrong against her brother, she need not contribute her dowry, as what she obtained by the will is changed into what she would obtain through prætorian possession of the estate, contrary to its provisions. It is clear that, if she was appointed heir to a smaller portion of the estate than her legal share, and she obtained something else through the prætorian possession, as her share is increased thereby, she will be obliged to contribute for collation, unless she remains content with the share which was left her. For then it must be held that she will not be obliged to perform the duty of collation, as she acquired the property by the will of her father.

The Same, Disputations, Book IV. Where anyone is appointed an heir under a condition, and after he has obtained prætorian possession in accordance with the terms of the will, the condition is not fulfilled, the result will be that the property in the meantime will remain in the hands of the possessor; as, for instance, where an emancipated son is appointed an heir conditionally. For, if the condition should fail to be fulfilled, Julianus says that he can, nevertheless, obtain prætorian possession in accordance with the terms of the will; but he also says that he should be protected if he is one who can obtain prætorian possession of the estate as heir at law. This is our present practice. 1Let us see whether legacies must be paid by these heirs. The son, indeed, who has obtained possession, as it were, contrary to the provisions of the will, is considered to hold the estate by virtue of his appointment, but the others hold it as heirs at law; therefore the son is only compelled to pay the legacies left to descendants and ascendants, but not those left to others. It is evident that a trust must be executed for the benefit of him who was entitled to it as heir-at-law; as otherwise it would seem that prætorian possession under the terms of the will had been claimed for the purpose of defrauding him.

Ulpianus, Disputations, Book IV. Where a patron is appointed heir to a smaller share of an estate than he is legally entitled to, and alleges that the will is forged, and loses his case, there is no doubt that prætorian possession of the estate contrary to the provisions of the will should not be granted him, for the reason that he lost the estate by his own act when he rashly declared that the will was forged. 1If he has been appointed heir to the share of the estate to which he was entitled, whether he accepts it or not, he will be excluded from prætorian possession of the same contrary to the provisions of the will; for, as he received the share to which he was entitled, he cannot demand prætorian possession contrary to the provisions of the will.

The Same, Disputations, Book IV. If the heir manumits a slave who has been bequeathed, and the legatee afterwards rejects the legacy, the grant of freedom has a retroactive effect. The same rule applies where a slave is absolutely bequeathed to two persons, and one of them afterwards repudiates the manumission made by the other; for, in this instance also, the grant of freedom has a retroactive effect.

Ulpianus, Disputations, Book IV. Marcellus, in the Twentieth Book, discusses the point as to whom a stipulation or a legacy applies when it is made by a slave forming part of the castrense peculium of a son under paternal control, who was serving in the army, before the estate was entered upon. I think that the opinion entertained by Scævola, and discussed by Marcellus himself, is the correct one; namely, if the estate is entered upon, everything is acquired where the slave forms part of it; but if it is not entered upon, the acquisition should be considered as made by a slave of the father. Where an usufruct is bequeathed to such a slave, it will sometimes be considered as left to the father, and sometimes to the heir, without being held to have passed from one of these persons to the other. 1The same distinction is applicable where property has been taken in order to determine whether an action for theft will lie or not; since if the heir should enter upon the estate, the property will not be considered as having been stolen from it; or if he should not enter upon it, an action on the ground of theft, and also a personal one for the recovery of property, will be granted to the father. 2Whenever a slave belonging to an estate enters into a stipulation, or acquires property by delivery, his act takes effect through the person of the deceased; as is held by Julianus, whose opinion that the person of the testator should be considered in a case of this kind is still accepted,

Ulpianus, Disputations, Book IV. Anyone who, not knowing that a will is forged, either enters upon an estate or accepts a legacy, or acknowledges it in any way whatsoever, is not barred from declaring in court that the will is forged.

The Same, Disputations, Book IV. The following case was stated. A son under paternal control, who was a soldier, and who was appointed a foreign heir by will, afterwards died during the lifetime of his father; and, while the appointed heir was deliberating whether to accept the estate or not, the father himself died; and then the appointed heir rejected the estate. The question arose to whom the castrense peculium would belong. I held that if the son died testate, it would belong to the appointed heir, as the estate of the son, whether he had appointed a foreign heir, or his father. If, however, the son made no disposition of his peculium, it would not appear to pass to his father, but would seem to always have been a part of the property of the latter. Finally, if the father should grant freedom to a slave forming part of the castrense peculium of his son, and his son should afterwards die during the lifetime of his father, the grant of freedom would not be interfered with, but if the son survived his father, this would not be the case. Wherefore, Marcellus thinks that a slave who formed part of the peculium of the son would become the necessary heir of the latter, if his father should survive him. I gave the same opinion where the father bequeathed the peculium of his son; for, in the same case, in which we stated that the grant of freedom would stand, we also stated that the legacy would either be due, or be annulled. These matters having been disposed of, I said with reference to the case stated, that, as the heir did not enter upon the estate, the peculium was retroactively added to the property of the father; hence it might be held that the estate of the father was even increased by this refusal. It is not a new principle that anyone may appear to have a successor on account of the occurrence of some subsequent event. For if the son of a man who had been captured by the enemy should die while the father was living and in captivity, and his father should return, he would be entitled to the estate of his son as his peculium. If, however, his father should die in captivity, his son, as the head of a household, would have a lawful heir, and his successor would, by retroactive effect, be considered to be entitled to whatever the said son had acquired in the intermediate time; and this would appear to have been obtained not for the heir of the father, but for the son himself.

The Same, Disputations, Book IV. An agreement arises from the consent of two persons, in the same manner as a contract. A promise, however, only requires the consent of the individual making the offer; and therefore it has been established that if a promise is made in consideration of some honor to be conferred, it can be collected as a debt. When, however, the work has been begun, it has been decided that the promisor will be compelled to complete it, even if he did not promise it in consideration of some honor to be conferred. 1If anyone who has delivered property to a city in compliance with his promise desires to reclaim it, his request should be barred; for it is perfectly just that voluntary gifts of this kind bestowed upon cities should not be revoked by merely changing one’s mind. Where, however, a municipality has ceased to possess property obtained under such circumstances, an action should be granted to it.