The Same, Trusts, Book VI. Women who are married to persons of illustrious rank are included in the appellation of illustrious persons. The daughters of Senators are not known by the name of illustrious women, unless they have obtained husbands of eminent dignity, for their husbands confer illustrious rank upon them; but parents, indeed, do so, so long as they are not connected with plebeian families. Therefore, a woman is of illustrious rank while she is married to a Senator or a distinguished man; or, having been separated from him, she has not married a person of inferior station.

Ulpianus, Trusts, Book VI. In a case where an unmarried woman had undertaken a defence before a competent judge and was defeated, and afterwards married a man who was subject to a different jurisdiction, the question arose whether the judgment of the former court could be executed? I have said that it could, because judgment had been rendered before her marriage; but if this had occurred after the judge had taken cognizance of the case, and before judgment, I hold the same opinion, namely that the decision of the first judge was properly rendered. This rule should be observed generally in all cases of this description. 1When the amount is made the subject of inquiry with reference to jurisdiction, the sum claimed must always be considered, and not that which is due.

Ulpianus, Trusts, Book VI. Where an action for the execution of a trust is brought by anyone, and the defendant alleges that the greater portion of the estate is situated elsewhere, he cannot be forced to execute the trust; and it is provided by many constitutions that where an action is brought to enforce compliance with a trust, this must be done where the greater portion of the estate is situated; unless it is proved that the testator wished the trust to be executed where suit was brought. 1The question has been raised with respect to borrowed money; whether when the greater part of the indebtedness was in the province where suit is brought to enforce a trust, could the action be transferred to some other place, because the bulk of the estate was elsewhere? It was, however, established in this instance that the fact of the indebtedness is of no importance, as it is not dependent on the place, but on the entire assets of the estate; for a debt is a diminution of the entire estate, and not of the assets in any particular locality. But what if this part of the estate were charged with some burden, as, for instance, to furnish support which the testator ordered to be done at Rome, or with taxes; or with any other unavoidable burdens; in these instances would the party be entitled to have the case transferred? I think that it may be said with great justice that he would. 2It has, however, been stated in a rescript that suit should be brought to enforce a trust in the place where the heir resides. 3But whenever anyone begins to make payment in compliance with the terms of the trust, he cannot subsequently avail himself of this resource:

Ulpianus, Trusts, Book VI. But if the heir appears in an action on the trust and makes use of other defences, but neglects this one, he cannot afterwards have recourse to it, even before a decision is rendered. 1Where a testator directs in his will that tickets for grain should be purchased for his freedmen; then, although the greater portion of the estate is in a province, still, the trust must be carried out at Rome; which is the proper opinion, since it is evident that it was the intention of the testator that this should be done, on account of the nature of the purchase. 2Moreover, if you should suggest the following case, namely: that a certain amount of silver or gold was bequeathed to such-and-such illustrious persons, and there is enough of the estate at Rome to execute the trust, even though the greater portion of the estate is situated in a province; it should be held that the trust must be discharged at Rome; for it is not very probable that a testator who intended to show honor to those to whom he bequeathed such moderate legacies under the trust, should have desired them to be paid in the province. 3Ad Dig. 5,1,52,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 282, Note 7.Where the property left under a trust is at hand, it must be held that anyone who brings suit for it cannot be barred by an exception on the ground that the greater portion of the estate is elsewhere. 4Where, however, the property which is the subject of the trust is not to be sued for where it is situated, but security for the execution of the trust is to be given; it must be considered whether an exception can be pleaded (and I do not think that it can) and, indeed, even if there is no property there, still the party must be required to furnish security. For what is there to fear, since, if he does not give security, his adversary will be placed in possession in order to protect the trust?

Ulpianus, Trusts, Book VI. If property should be left to me in trust, and the same property should be bequeathed to you either as a legacy, or in trust, not with the intention of dividing it, but entirely to each one of us, there is no doubt that if it should be given to one alone, the other will have no right whatever in the property, but he will be entitled to an action to recover the entire price of the same.

Ulpianus, Trusts, Book VI. Where an indefinite amount is mentioned in a trust, sureties shall be demanded, after the amount has been established by the decision of the magistrate who has jurisdiction of the case. 1We must also remember that in matters relating to property in which the public is interested, it is not customary for security to be required for the execution of trusts, even if sometimes a necessity should arise for giving it. It is clear, however, that a promise can be exacted that the will of the deceased shall be executed.

Ulpianus, Trusts, Book VI. When an absolute grant of freedom is made under the terms of a trust to a slave who is said to have administered the affairs of his master, the Divine Marcus stated in a Rescript that it should not be delayed; but that an arbiter must immediately be appointed for the purpose of compelling the slave to render an account. The words of the Rescript are as follows: “It seems to be the more equitable course to grant freedom to Trophinus at once under the trust, because it is established that it was bestowed without the condition of his rendering an account. Nor would it be humane for the enjoyment of his liberty to be delayed on account of any pecuniary question which may arise. However, as soon as he obtains his freedom, an arbiter should be appointed by the Prætor before whom he who transacted the business must appear and render an account.” Therefore, he is only obliged to render an account, but nothing is said as to his paying over any balance which may remain in his hands. I do not think that he can be forced to do so, for he cannot be sued after having obtained his freedom on account of any business which he transacted while in servitude. It is clear that he can be forced by the Prætor to surrender any property mentioned in his accounts, and all the articles or money of which he has possession, as well as to give information with reference to special matters.

Ad Dig. 42,4,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 342, Note 6b.Ulpianus, Trusts, Book VI. He who has received property in exchange resembles a purchaser, and he also who receives property in payment, and one who accepts the amount of its appraisement in court, as well as he who acquires anything by virtue of a stipulation, and not through liberality, occupy the same legal position.

The Same, Trusts, Book VI. If, when a slave purchased property, he knew that it was in litigation, but his master was not aware of this, or vice versa, let us see whose knowledge of the fact should be taken into account. The better opinion is that the knowledge of him who purchased the property, and not that of him by whom it was acquired, should be considered. Hence, the penalty attaching to the purchase of the above-mentioned property, which is in litigation, can be collected, provided the slave did not buy it under the direction of his master, for if he did so, even if he knew that the title was in dispute, and his master was ignorant of the fact, the knowledge of the slave will not prejudice him. This was also stated by Julianus with reference to property in litigation.

Ulpianus, Trusts, Book VI. Our Emperor stated in a Rescript that the Treasury would be entitled to a real action where the existence of a secret trust is established.

The Same, Trusts, Book VI. No one doubts that he should be considered solvent who is defended.