Ad Dig. 30,40Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 634, Note 7.The Same, Trusts, Book II. If, however, property belonging to another which the legatee has not control of in the way of trade, and which he has no right to possess, is left subject to a trust, I think that its estimated value will be due.

The Same, Trusts, Book II. Whether the legatee was aware of this fact or not.

Ulpianus, Trusts, Book II. Where a certain man left a trust in the following terms, “I charge you to deliver such-and-such property to those of my freedmen whom you may select,” Marcellus thinks that even an heir who is unworthy can be selected. If, however, he had said, “Those whom you may consider worthy;” he holds such as have not committed any offence will be eligible. He also holds that if the heir does not select anyone, all the freedmen will be permitted to claim the legacy, just as if it had been given upon that very day when it was left “To those whom you may select,” and the heir does not tender it to any of them. It is clear that if the other freedmen are dead, it must be delivered to the survivor, or to his heir, if he should die before presenting his claim. Scævola, however, says in a note that if all could demand a legacy when it is not tendered to any of them, why will not those who have died transmit their rights to their heirs, especially where there is only one claiming it, and the heir cannot select the one to whom he may give the legacy? For it appears that Marcellus held that where a trust was bequeathed as follows, “To such of my freedmen as you may select,” unless he tenders the legacy to the party whom he wishes to have it, and does so without any delay, all the heirs will be entitled to claim it. Therefore, since all of them can do this, he very properly thinks that it should be given to the survivor alone, unless the other heirs have died before sufficient time had elapsed during which the heir could select one to whom he could give the legacy.

Ulpianus, Trusts, Book II. Trusts can also be left in any language, not only in Latin or Greek, but also in Carthaginian, Gallic, or the idiom of any nation whatsoever. 1Whenever anyone makes a rough draft of his will, and dies before he completes it, what is contained in the draft is not valid as a codicil, although the document may contain words creating a trust. Mæcianus states that this was decreed by the Divine Pius. 2Where anyone writes, “I recommend So-and-So to you,” the Divine Pius stated in a Rescript that a trust was not created; for it is one thing to recommend a person to his heirs, and another to intimate that it is his intention that they should be charged with a trust for his benefit. 3Where a man was asked to relinquish his share of an estate upon receiving a certain sum of money, it was held that he himself could demand the execution of the trust by the heir. If, however, he desires to do so, can he retain in his hands the sum bequeathed to him, and relinquish his share of the estate; or, indeed, can he, having been tendered the sum bequeathed, be compelled against his will to relinquish his share? He has a right to decide this matter himself. And, indeed, where anyone is asked to relinquish his share of an estate upon receiving a certain sum of money, a double trust is created; first, where the party is ready to give up his share, he can demand a sum of money; and second, even though he does not demand it, still, he can be forced to surrender his share if the trustee is ready to pay him the said sum. 4Where anyone inserts the following in his will, “Such-and-such vineyards, or lands are sufficient for you,” a trust is created, since we consider as a trust the clause, “Let him be content with such-and-such property.” 5Ad Dig. 32,11,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 4.Where a trust is left as follows, “I wish my heir to pay ten aurei to So-and-So, unless my heir should be unwilling to do so,” the trust is, to some extent, conditional, and first requires the consent of the heir; hence, after he has consented, he cannot change his mind and allege that he is unwilling to pay. 6When a bequest is made as follows, “If he should be willing,” it involves the question as to how long the party who is charged with the trust may live. If, however, the beneficiary should die before the trustee pays the legacy, the heir of the latter must pay it. But if the trustee should die before he is appointed heir, the trust will not be transmitted to his heir, for no one can doubt that the legacy is conditional, and the trustee is held to have died before the condition was fulfilled. 7Although a trust which is left in the following manner is not valid, namely, “If he should be willing,” it is, nevertheless, valid if expressed as follows: “If you should judge it advisable; if you think it ought to be done, if you should deem it expedient; if it seems, or should seem to you to be advantageous;” for the will does not confer full discretion upon the heir, but the trust is left, as it were, to the judgment of a good citizen. 8Hence, where a trust is left as follows, “If he should render some service to him,” it will undoubtedly be valid, if the beneficiary has been able to render the heir any service of which a good citizen would approve. It will likewise be valid if left as follows, “Provided that he does not offend you,” and the heir cannot allege that the beneficiary does not deserve it, if some other good citizen who is not prejudiced, will admit that the party is deserving of the benefit. 9These words, “I ask you, my son, to take the greatest care of the real property which is to come into your hands, in order that it may pass to your children,” although they do not exactly express the creation of a trust, as they rather imply advice than the obligation of leaving the property to the children; still, the devise of said land is considered to have the effect of a trust for the benefit of the grandchildren, after the death of their father. 10Where a trust is left to a son who has been appointed the heir of his father, while it was not expressly stated that it would take effect at the death of the latter, this may be inferred; for instance, because the following words are used, “In order that he may leave the property to his son,” or, “I wish him to have the property,” or, “I wish it to belong to him,” it can be maintained that the execution of the trust is to be postponed until the son becomes his own master. 11Where a trust has been left to anyone in the following terms: “If he should become his own master at the death of his father,” and he becomes independent by emancipation, the condition will not be held to have failed, but he will obtain the benefit of the trust at the time of his father’s death, just as if the condition had been fulfilled. 12Where a testator bequeathed certain property belonging to him, and afterwards alienated it through urgent necessity, the execution of the trust can be demanded, unless it can be proved that the testator intended to deprive him of the benefit of it, the fact, of his having changed his mind must, however, be proved by the heirs. 13Therefore, if anyone should collect the note of a debtor which he had in trust but did not, by enforcing payment, intend to annul the trust, it can be said that it must be executed. There is, however, a certain difference between these two cases; for, in one, the substance of the debt itself is extinguished, but in the other, the property still remains, although it may have been alienated. But I held that the claim for the execution of the trust still existed, even though a certain party had exacted the payment of a note of the debtor and retained possession of the money as a deposit, especially because the creditor did not himself demand the money, but the debtor tendered it of his own accord, and he, having done so, the former could not refuse to accept it. Therefore, by degrees we admit that, even if the testator had purchased property with this money which he did not collect with the intention of depriving the beneficiary of the bequest to which he was entitled, the demand for the execution of the trust can still be made. 14Where anyone builds a house in an unlawful manner (that is to say one which the Imperial Constitutions say should be demolished), let us see whether a person can leave anything of which it is composed, by way of trust. I think that he can do so; for although it is necessary for the house to be torn down, still, there is no doubt that the terms of the Decree of the Senate offer no obstacle to such a disposition of the property. 15Where an heir is requested to lend a sum of money at a specified rate of interest, the trust is valid. Mæcianus, however, thinks that he cannot be compelled to lend it, unless he is furnished with proper security. I am more inclined to the opinion that security should not be required. 16Where a commission in the army is left in trust to the slave of another, the question arises whether the legacy is acquired by his master. I hold that the estimated value of the legacy must be paid if the testator knew that the party was a slave; but if he was ignorant of the fact, the master should not be permitted to demand the execution of the trust, because if the testator had known that the legatee was a slave, he would not have left him the bequest. 17It is evident from these cases, that when anything is left by way of trust, the article itself must be delivered, and when this cannot be done, the appraised value of the same must be paid. 18If anyone should leave ten aurei to someone by a trust, and agree to leave the same amount to him a second time, if he should lose what was left to him by the will, the question arose whether the second trust would be valid, or whether the heir should require security to protect himself, lest he might be compelled to pay the ten aurei again; and also if the sum should be lost several times, whether the trustee ought to be called upon to make it good. The Divine Pius stated in a Rescript that no security should be required, and that where the property had been lost, it should not be replaced more than once by the trustee, for the heir ought not to be indefinitely burdened, and compelled to repay the said sum of money every time it was lost, but, as the legacy seems to be doubled by the second trust, no further liability attaches to the heir, if the beneficiary should afterwards waste what he has received under it. 19Likewise, if anyone should bequeath a certain sum of money to anyone, and add that the said sum can easily be set off, as the beneficiary is himself a debtor to the estate of the testator, Gaius Seius, and he refuses to accept the estate of the said Gaius Seius, but demands the execution of the trust, Our Emperor stated in a Rescript that such a demand was contrary to the intention of the testator, as with reference to trusts the intention of the testator must by all means be considered and observed. 20It frequently happens that what was left is intended for the benefit of several persons; but the testator desired to honor only one of them by mentioning him. This opinion of Marcellus is perfectly correct. 21Hence, it happens that, sometimes, where a testator wished to do honor to several persons, and had them all in his mind, although there was but one legacy, still, several are permitted to claim it, as for instance, where ten persons stipulated for the same property, and the heir or trustee was requested to pay them, for in this case, if it was to the interest of all of them, and the testator had them in his mind, they all could demand the execution of the trust. But let us see whether each can bring an action for his share, or for the entire amount. I think that they can bring suit according to the interest of each one, and therefore the one who first proceeds will obtain the entire amount, provided he gives security that he will defend the party who paid him against all the other beneficiaries of the trust, whether they are partners or not. 22Sometimes, however, the right to make a demand for the execution of a trust, or for a legacy, will belong to another party than the one whose name is mentioned in the will; as, for example, where the heir is charged to pay a public tax for Titius, the farmer of the revenue must make the demand for the execution of the trust, or for the payment of the legacy; although he may be the person mentioned, and Titius himself can demand the legacy which was left to him. I think that it makes a great deal of difference whom the testator had in his mind, and whom he intended to benefit. Generally, however, it should be understood that he acted for the advantage of a private individual, although the profit may have actually enured to the farmer of the revenue. 23Where something is left for the erection of a public work in a city, the Divine Marcus and Lucius Verus stated in a Rescript directed to Procula that each heir was liable for the entire amount. They, however, in this instance, granted time to a co-heir during which he might send persons to do the work, and after this time they decided that Procula alone would be liable, and that she could collect from her co-heir his share of the expense which she had incurred. 24The Divine Marcus also stated in a Rescript that the same rule was applicable to a statue, a servitude, and other things which are incapable of division. 25Where anyone is ordered to construct a public work, and offers to furnish the money to the city in order that it may construct it, when the testator intended that the trustee himself should do so, he shall not be heard; and this the Divine Marcus stated in a Rescript.

Ulpianus, Trusts, Book II. Mela says that if a legacy payable annually would be left to anyone without mentioning the amount, the bequest is void. The opinion of Nerva, however, is better, namely, that the testator is considered to have bequeathed what he was accustomed to give during his lifetime; but that, in every instance, the rank of the parties must be taken into consideration.

Ulpianus, Trusts, Book II. Mela says that where maintenance is bequeathed to a boy or a girl, it must be furnished till he or she reaches the age of puberty. This, however, is not correct, for they should only be provided with it as long as the testator wished, and if his intention was not evident, they must be supported for life. 1But if maintenance is bequeathed until the age of puberty, and anyone desires to follow the former custom with reference to boys and girls, he is hereby informed that Hadrian decided that boys shall be supported until their eighteenth year, and girls until their fourteenth. Our Emperor stated in a Rescript that this rule promulgated by Hadrian must be observed. But although the age of puberty is not ordinarily fixed in this way, still, it is not illegal for it to be so established in the individual instance of the matter of support, where natural affection is involved. 2Where a testator bequeaths maintenance to the same extent that he furnished it during his lifetime, only such provision must be made as he was accustomed to make at the time of his death. Therefore, if different amounts were furnished at different times, that amount must be considered which was furnished just prior to the death of the testator. But what would be the case if the testator provided less at the time that he made his will, and more at the time of his death, or vice versa? In this case it must be held that the amount must be governed by what he provided last. 3Ad Dig. 34,1,14,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 2.A certain man bequeathed to his freedmen food and water by a trust. Advice was taken with reference to the trust, as the question was raised in that part of Africa or Egypt where water was sold. Therefore, I stated that the benefit to be derived from the trust depended upon whether the party who left it had cisterns or not, and whether it was included in the trust in order to provide for any amount which the beneficiary might have to pay for water for himself, and whether the trust did not appear to be void, as it was not the bequest of a servitude upon a tract of land for the benefit of a person who was not the possessor of one that adjoined it; for while the drawing of water, and the right of driving cattle to water, is a personal servitude, still, it is void if left to one who is not the owner of neighboring property. Under the same head are classed the right of conveying burdens, or of pressing grapes, or of threshing wheat and other grain on the premises of someone else; but in this instance, the right to obtain water is bequeathed for the benefit of the person himself.

Ulpianus, Trusts, Book II. Where a daily allowance or food is bequeathed, it is clear that neither lodging, clothing, nor shoes, are to be furnished, as the testator only had the provision of food in his mind.

The Same, Trusts, Book II. In a matter which was under discussion, the question arose whether anyone could, under the terms of a trust, be charged to appoint another his heir. The Senate decreed that anyone could not be charged to appoint another his heir, but if he did so it was held that it would be the same as if he had been asked to transfer his estate to him; that is to say, to transfer to him anything which he may have received from his estate. 1Julianus also, in the Fortieth Book of the Digest, says that a trust in the following terms will be valid, “I charge you to transfer the estate of Titius,” when he who was asked to do this was appointed an heir by Titius. 2If I should appoint someone my heir, I can not only ask him to appoint another person his heir, but also if I should bequeath to him a legacy, or anything else, I can do so; for persons of this kind are liable to the amount of any property which may come into their hands. 3If anyone should insert the following into his will, “I ask you to give such-and-such an article to So-and-So,” or “leave him something under a trust,” or “bequeath him his freedom,” such legacies are valid; for, as the Senate decreed that a trust is valid with reference to the appointment of heirs, so the same rule must be understood to apply to other testamentary dispositions. 4If anyone should be asked to transfer an estate provided he died without issue, Papinianus, in the Eighth Book of Opinions, says that the condition will fail to be fulfilled if the person should leave even a natural child; and he asserts that the same rule will apply to a freedman, where a child of this kind is manumitted with him. For my part, however, I think that this question, so far as natural children are concerned, seems to depend upon the intention of the testator, and what kind of children he had in his mind; for when he charged anyone with a trust of this description, his rank, wishes, and condition must all be taken into account. 5I remember that the following point was discussed. A certain woman requested her son to transfer the estate to his brother, if he should die without issue, and the son, after having been banished, had children in the island to which he was sent. Hence, the question arose whether the condition upon which the trust was dependent had failed to be complied with. We are of the opinion that where children are conceived before the banishment, even though they may be born afterwards, this causes the condition to fail; but where they are both conceived and born after the banishment, the case is different, because they are, as it were, born to a stranger, and especially should this be considered where all the property of the person is subject to confiscation by the Treasury. 6Where a man is asked to transfer an estate to his children, or to anyone of them whom he may select, Papinianus, in the Eighth Book of Opinions, concedes the right of selection even to a person who has been banished; if, having become free, he desires the restoration of the trust. Where, however, he was condemned to penal servitude, without any child having previously been conceived, he will be unable to comply with the condition, for he is considered to have died without issue. But he cannot be granted the privilege of selection which Papinianus accords to a person who is under sentence of banishment at the time of his death. 7If, however, he should have a child, but should lose it during his lifetime, he will be considered to have died without issue. But let us see if the child should die at the same time as its father, through a shipwreck, or the fall of a house, or an attack, or any other occurrence, whether the condition would fail to be fulfilled. I think that the condition would not fail, because, in this instance, it is not certain that the child survived its father, therefore it either survived its father and this extinguished the condition of the trust, or it did not survive him, and the condition was fulfilled. Moreover, as it is not apparent which one died before, and which one after the other, the better opinion is to hold that the condition of the trust was fulfilled. 8If anyone should leave a trust as follows, “My son, if you should die after having appointed a foreign heir, I charge you to transfer my estate to Seius,” the Divine Pius stated in a Rescript that the testator seems to have had reference to the heir’s children; therefore, where anyone dies without issue, leaving a maternal uncle entitled to prætorian possession, on the ground of intestacy, the Emperor declared in a Rescript that the condition of the trust had been fulfilled.

Ulpianus, Trusts, Book II. It is not usual for superfluous matter to vitiate a document.