The Same, Disputations, Book V. Where an usufruct is bequeathed to me on a certain condition, and, in the meantime, it is in the possession of the heir, the latter can bequeath the usufruct to someone else; with the result that, if the condition on which my legacy depends is complied with, the usufruct left by the heir is terminated. But if I should lose the usufruct, it will not revert to the legatee to whom it was bequeathed absolutely by the heir, because the right of joint legatees cannot be acquired under different wills.

The Same, Disputations, Book V. Where a legacy or a trust is left as follows: “If my heir should deem it proper, if he should approve of it, if he should consider it just;” the legacy or the trust will be due; since it was entrusted to him as to a man of character, and the validity of the bequest was not dependent upon the mere consent of the heir. 1Ad Dig. 30,75,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 657, Note 4.Where, “what Titius owes,” is left to me, and Titius does not owe anything, it should be noted that the bequest is void. And, also, if the amount is not stated, nothing will be due, for the good and sufficient reason that it is not apparent how much was bequeathed. For if I bequeath to Titius what I owe him, and do not mention the amount, it is settled that the bequest is void; but if I should bequeath to Titius ten aurei that I owe him, although I may not owe him anything, the false representation does not annul the legacy; as Julianus decided in the case of the bequest of a dowry. 2Ad Dig. 30,75,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 657, Note 4.If the testator had said, “I bequeath the ten aurei which Titius owes me,” the legacy will undoubtedly be void, for a great deal of difference exists between a false representation and a false condition, or cause. Hence, if I should bequeath to Titius ten aurei which Seius owes me, the legacy will be void if he owes me nothing, because he should be my debtor. If, however, he did owe me, and I should collect the debt during my lifetime, the legacy will be extinguished; and if he should remain my debtor, my heir will only be compelled to assign to him his right of action. 3If anyone should stipulate “To give Stichus, or ten aurei, whichever I may choose,” and bequeaths what was due to the legatee, his heir will be required to assign his right of action to the legatee, and the latter will have the right to choose Stichus or the ten aurei, whichever he may prefer. 4Ad Dig. 30,75,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 255, Note 5.Hence, if he should bequeath Stichus, while he owed him either Stichus or the ten aurei, an action for an indeterminate amount will lie in favor of the legatee against the heir, as Julianus stated in the Thirty-third Book of the Digest; and by means of this action he can compel the heir to institute proceedings; and if, after having brought suit, he should recover Stichus, the heir must deliver him to the legatee, but if he should pay the ten aurei, he will recover nothing. Therefore, it is in the power of the debtor to determine whether he to whom Stichus was bequeathed shall be a legatee or not.

Ulpianus, Disputations, Book V. Where money is deposited with anyone, and afterwards he is charged, as trustee, to pay the said money to the beneficiary, the trust must be executed, according to a Rescript of the Divine Pius; as it is held that the heir was requested to pay the money to the debtor. For if the debtor should be sued by the heir, he can avail himself of an action on the ground of bad faith, which renders the trust valid; and since this is the case, every debtor can be charged with a trust.

Ulpianus, Disputations, Book V. Where a husband bequeaths a dowry to his wife, and charges her with a trust, the trust shall be estimated in proportion to the benefit which the woman will receive from immediate payment of her dowry. Celsus also says the same in the Twentieth Book of the Digest. But if certain necessary expenses were incurred, which, by operation of law, diminished the dowry, and all of it which the husband received is bequeathed to her, it should be held that the entire amount of the expense which diminished the dowry by law must be deducted from the trust, for no one can doubt that the woman is the legatee. If, however, not the dowry, but something in lieu thereof was bequeathed to the wife, this will be understood to be the same as if the dowry was the subject of the bequest. Julianus goes still farther, for he says that even if it should not be stated that the property was bequeathed in lieu of the dowry, it still will be considered to have been left with that intention. Therefore, if the wife was requested to give up either the dowry or something which was left to her in lieu of it, she will not be compelled to do so, except to the extent which we have stated. Hence if she was appointed heir, and charged with the transfer of a certain portion of the estate, she would only be compelled to deliver what was in excess of her dowry, and the value of the benefit which he received from immediate payment. For if anyone who has received a dowry from his daughter-in-law should appoint his son his heir, and ask him to deliver to someone else all of the estate which might come into his hands, and he should afterwards obtain the benefit of the dowry through the death of his wife, he will not be compelled to give up the dowry which he had received, for the reason that he profited by it on account of his marriage, and not through the will of his father. 1A woman promised a dowry of four hundred aurei, and gave two tracts of land for two hundred of it, and afterwards gave the other two hundred in notes of debtors. Her husband, dying afterwards, left to her, instead of her dowry, two tracts of land which were not the same ones which he had received as part of her dowry; and, in addition to them, the two dotal tracts of land whose value had been appraised; and he charged her by a trust that she would, at the time of her death, deliver to Seius all of his estate which might come into her hands. The question arose, what would be the amount of the trust after the death of the woman? I said that the wife, who was charged to deliver everything which came into her hands under the will, was in a position to be asked to transfer only what she had received after the deduction of the amount of her dowry; for she was entitled to the dowry rather because it was due to her, than as having received it as a legacy, with the exception of what could be claimed under the trust as constituting the benefit resulting from immediate payment. Hence, she will not be compelled to deliver the land which her husband left to her in lieu of her dowry, unless it was of greater value or extent than that which she had brought as such. She, however, will be obliged to give up any excess, together with the profits over and above what had been left to her. Therefore he will be entitled to the dowry with its profits, and anything which was left to her outside of this she must surrender, along with the profits which she obtained from the same.

Julianus, Disputations, Book V. If anyone, after having left a hundred aurei to a person absolutely, then bequeathed the same sum to him conditionally, and intended to leave him this second sum in addition, what he left him absolutely will be due at once, and what was bequeathed to him under the condition will be payable if the condition should be fulfilled. Where, however, through having changed his mind, he left him the same sum under a condition, the absolute bequest may be considered to have become conditional. Hence, if in the same will by which he bequeathed a hundred aurei he afterwards left fifty, and he intended these fifty to constitute a new bequest, a hundred and fifty aurei will be due. But if he intended the bequest to consist of but fifty aurei, only fifty will be payable. The same rule will apply where this was done by means of a codicil.

Ulpianus, Disputations, Book V. The intention of the deceased occupies the first place in the conditions prescribed by him, and it controls the conditions. Hence, with reference to the following, “If my daughter should marry Titius,” it was held that the date of the death of the testator ought not always to be considered, but that the time for the fulfillment of the condition could be extended beyond that event, where this was the wish of the testator. 1Ad Dig. 35,1,19,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 7.The following clause, “If the first should be my heir, let him be charged to pay,” is not to be considered as implying a condition; for the testator seems rather to have intended to indicate when the legacy should be payable than to insert a provision, unless he meant to impose a condition; hence the following should not be held to prescribe a condition, “I give and bequeath whatever is due to me at Ephesus.” If, however, a bequest is made as follows, “If the first should not be my heir, let the second be charged to pay,” and the first becomes the heir, the legacy will not be due. If the first should enter upon the estate, along with the second, there can be no doubt whatever that the condition has not been fulfilled. 2Where a patron, having obtained possession of an estate contrary to the provisions of the will, receives the share which is due to him by law, his co-heir will not be obliged to pay to him any legacies which have been bequeathed under the following condition, “If my patron should not be my heir.” 3Where the first heir has been charged with a legacy as follows, “If the second should not be my heir, let him pay Titius twenty aurei,” and, in like manner if the second heir is charged with a bequest to Titius as follows, “If the first should not be my heir,” and both parties become the heirs, the condition of the legacy will not be fulfilled. If one of the heirs should obtain the estate, and the other should not, the legacy will be due.

Ad Dig. 36,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 557, Note 5.Ulpianus, Disputations, Book V. A woman who left two children under the control of their father married another man after a divorce, appointed her second husband her heir, and charged him to transfer her estate to her children, or to the survivor of them, after the death of their father. The said children having been emancipated by their father, the stepfather was said to have transferred the estate to them, and afterwards one of the children died during the lifetime of his father. The question arose whether the surviving child could demand that the share of his brother should be given to him, because it was prematurely transferred. Scævola relates that the Divine Marcus decided a case of this kind in his audience room. A certain Erasidas, a Lacedemonian, and a man of prætorian rank, emancipated his children who had remained with him after his wife had been divorced, and to whom an estate had been left in trust in case they should become their own masters by the death of their father. After their emancipation they demanded the execution of the trust. Scævola says that the Divine Marcus decided that they were entitled to the trust in accordance with the intention of their mother, who deferred its execution until the death of her husband, because she did not think that their father would emancipate them, and she would not have deferred it until his death if she had expected him to emancipate them. In accordance with this, I held that the Decree of the Divine Marcus applied to the present case, and that the trust had been legally executed with reference to the two children. 1There is no doubt that an appointed heir can be compelled to enter upon an estate and transfer it to slaves, where their freedom has been bequeathed to them either directly or under the terms of a trust, as the heir should not treat with contempt whoever compels him to accept the estate. For, although a slave cannot demand that the heir shall enter upon the estate, or claim his freedom directly under the trust, he has a right to appear before the Prætor in person, on account of the expectation which he has of obtaining his freedom and the estate. 2Where an heir transfers an estate after a long period of time, when he was required to do so at once under a trust, he can still transfer the estate after having deducted his fourth; and any profits which he may have collected on account of the neglect of the claimant are considered not to have been obtained under the will of the deceased. The case, however, is different if he was asked to transfer the estate under a condition, or within a certain time; for then anything which he has collected will take the place of the Falcidian portion, if it amounts to as much as his fourth and the profits of the same. Any profits which have been obtained in the meantime are considered to have been collected in accordance with the will of the testator. 3Ad Dig. 36,1,23,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 665, Note 7.If a person is asked to transfer an estate, and before he does so any of the slaves belonging to it should die, or any of the property be lost, it is decided that he cannot be compelled to transfer anything which he does not have; but it is evident that he must account for his negligence, but only in case it resembles fraud. This was stated by Neratius in the First Book of Opinions. If he did not sell the property at a time when he should have done so, he is guilty of gross, and not of slight negligence, such as he would have avoided in the transaction of his own business, and he must, under such circumstances, be held responsible. Moreover, if a house should be burned through his negligence, he must account for it. Again, he will be accountable for the children of slaves, and even the children of those children if they should die, because these are not included in the profits of the estate. He himself can deduct any expense which he has incurred on account of property belonging to the estate. But if, through no act of his, a house is acquired by use through lapse “of time, it is perfectly just that he should not be considered liable, as he is free from blame. 4The following was proposed: “A certain man appointed his daughter his heir, and charged her, if she died without issue, to transfer her estate to Titius. She had given a dowry of a certain sum of money to her husband, and afterwards, having died without issue, she appointed her husband her heir.” The question arose whether the dowry could be deducted. I said that it could not be held that the daughter intended to annul the trust, which was in accordance with both the duty of the woman and the wishes of her father; hence it must be said that the dowry has disappeared, just as if she had asked what remained of it to be transferred. If the woman collected enough income from the estate to be able to pay the amount of her dowry, it should be said that this expense ought to be charged to the profits rather than to the trust. 5In order that the Trebellian Decree of the Senate may apply, it is not sufficient for a bequest to be made merely with reference to the estate, but the heir must be charged to execute the trust in his capacity as heir. Hence, if a portion of an estate is bequeathed to anyone (for we are of the opinion that a portion of an estate can be bequeathed), and the legatee is asked to transfer this portion to another, there is no doubt that a transfer cannot be made under the Decree of the Senate, and therefore the fourth should not be reserved.

The Same, Disputations, Book V. For, as these rights cannot be transferred to the heir, it will be in vain to fix a day before that, when they will begin to take effect.

The Same, Disputations, Book V. Where a trust is left to children, “If they should become their own masters by the death of their father,” and they become independent, not through his death, but through emancipation by him, no one can doubt that they will be entitled to the benefit of the trust, and that the legacy which would have taken effect at the death of their father will vest from the time of their emancipation.

The Same, Disputations, Book V. Where freedom was granted to two slaves under the condition that they should build a house, or erect a statue, the condition cannot be divided between them. Doubt can only arise where one of them, having complied with the condition, appears to have carried out the wishes of the testator, and therefore will be entitled to his freedom, which is the better opinion; unless the testator had expressed himself otherwise. One of the slaves, by doing what he was directed to do, complied with the condition so far as he himself was concerned, and while he did not do so with respect to the other, still the condition will no longer bind the latter, for he cannot comply with it any further after it has once been fulfilled. 1The same question can also arise where a legacy is bequeathed to two artisans or painters, under the condition that they shall paint a picture, or build a ship; for the intention of the testator must be considered, and if he imposed the condition of the performance of one upon the other, the result will be that when one of them does not do anything, the condition will not be fulfilled, although the other may be ready to do his share. If, however, it can be shown that the testator would have been content, if whatever he had written or stated was only done by one of them, the matter will be readily disposed of; for one of them will, by his act, benefit either himself and his associate, or himself alone, according as it appears to have been the intention of the testator. 2This question can also be discussed in the case where a testator grants freedom to two slaves, if they render their accounts. For Julianus asks, if one of them is ready to render his account, and the other is not, whether the former will be prevented from doing so by the latter. And he very properly says that if their accounts were kept separately, it will be sufficient for the one who renders his to obtain his freedom; but if both of them kept their accounts together, one of them shall not be considered to have complied with the condition, unless he pays the balance remaining in the hands of the other. We must understand this to mean that the books containing the accounts shall also be given up. 3If, however, a female slave, together with her children, is directed to be liberated, even if she has no children, she will, nevertheless, become free; or if she should have any, and they are not capable of obtaining their freedom, the result will be the same. This rule will also apply even though the slave herself cannot become free, as her children will still obtain their liberty; for the clause, “together with her children,” does not impose a condition, unless you suggest that the intention of the testator was otherwise; since, under such circumstances, these words must be understood to establish a condition. But that they do not impose a condition is proved by the Edict of the Prætor by which it is provided as follows: “I will order the mother of the unborn child and her children to be placed in possession of the estate.” For it is settled that even if there are no children, the mother of the unborn child should still be placed in possession of the estate.

Ulpianus, Disputations, Book III. When a debtor is asked by his creditor to manumit a female slave who has been pledged to him, it can be maintained that freedom has been legally bequeathed by the debtor under the terms of the trust. For what difference does it make whether a certain amount is left by him, or freedom is granted under a trust? Whether the value of the slave is more or less, he can be forced to grant her freedom; provided he has once acknowledged the validity of his creditor’s will. We must understand that he has done so when, for instance, if he is sued by the heir, he avails himself of an exception; or proves the wishes of the creditor in some other way. For if the debtor should be sued by the heir of the creditor he can plead an exception on the ground of bad faith, because of the interest of the debtor in obtaining his slave. 1In granting freedom under the terms of a trust, even though the legatee may only have obtained a small bequest, it will, nevertheless, be necessary for him to manumit his slave. For, if a pecuniary trust should be divided, great injury will be done to the cause of freedom as well as to the beneficiary; therefore, it is better for him who accepts the legacy to be burdened than that the bequest of freedom should be annulled. 2Whenever freedom is bequeathed to a male or female slave under the terms of a trust, the slave is in such a position that he or she will remain in servitude until they are manumitted. If the person charged with this duty causes no delay in liberating the slave, no change will take place in his or her condition, and therefore it is established that the slave can, in the meantime, be bequeathed, subject to his manumission afterwards.