Ulpianus, On Sabinus, Book XXI. It is evident that where the testator intended to transfer the legacy to another party, it will not be due to the first one named, even if the last mentioned is not capable of receiving it. If, however, the legatees were joint, or, being originally several, have afterwards been united, all of them together are classed as one and the same person. 1Where the same property is bequeathed several times by the game will, it cannot be claimed more than once; and it is sufficient if the property itself, or the value of the same, is acquired. 2Where the same property is bequeathed to me by the wills of two persons, I can demand it twice, and obtain the property by virtue of one of the wills, and the estimated value of the same by virtue of the other. 3Where no certain article is bequeathed, but a specified sum is mentioned several times in the same will, the Divine Pius stated in a Rescript that the heir must pay the said sum several times, if it is established by perfectly conclusive evidence that the testator intended to multiply the legacy. The same rule has also been laid down by him with reference to a trust. The reason of this is evident, for as the identical thing cannot be delivered more than once, the same sum can be multiplied, if this should be the intention of the testator. 4This, however, ought only to be understood to be applicable where a certain amount of money should be left several times by the testator; as, for instance, a hundred aurei, which he has in his chest; for then I believe that it should be compared to the bequest of a tract of land. 5Where, however, a certain weight of gold or of silver has been left, Papinianus is of the opinion that it should rather be compared to the bequest of a sum of money, as no certain kind of property appears to have been bequeathed. 6Hence, if anything else which can be weighed, counted or measured has been left several times, it must be said that the same rule will apply; that is to say, it will be due several times, if such was the intention of the testator. 7If, however, I should purchase the property bequeathed to me, an action under the will will lie in my favor for the amount of the price which I have paid. 8And, with much more reason can this be said, where the same property is bequeathed to me by the wills of two different persons, but where one asked me to surrender the property itself to another, or something else in its stead; or where it was bequeathed under the condition of giving something in place of it; for I am considered to have been deprived of the property to the amount which I am compelled to Pay in order to obtain it. 9Where the property is bequeathed to several persons conjointly, it is settled that it is divided into shares from the beginning. The legatees have not only the right to a division in proportion to the number of persons to whom the legacy was left, but also those who are not entitled to it; as, for instance, where a bequest was made to Titius and to his slave, without granting the latter his freedom. 10Where a testator, by a will made while his son is under the age of puberty, bequeaths the same property to another which he had already left to me by will, Julianus says that the parties do not take the property concurrently. Therefore, in the meantime, he to whom the property has been bequeathed by the will of the father will be entitled to his share. 11Ad Dig. 30,34,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Where the same property is bequeathed to two persons, one of whom is appointed heir, if the latter is charged with the payment of part of the legacy to himself, it will be held to be, to this extent, invalid; and therefore, the share with which he was charged in his own favor will belong to his co-legatees. 12Ad Dig. 30,34,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 8.Hence, it must be said that where there are two heirs, one of whom is appointed for one-twelfth, and the other for eleven-twelfths of the estate, and a tract of land is bequeathed to them; one of the heirs will be entitled to eleven-twelfths of the land, and his co-heir to one-twelfth of the same. 13It is clear that if one of the legatees becomes the heir of the party charged with the payment of the legacy, this will render his coheir none the less entitled to half of it, for he will retain his share of the legacy in the same proportion. 14If a bequest is made to Titius in the following terms: “Let him have the Seian Estate, or the usufruct of the same for himself,” there are two legacies, and it is at the option of the legatee whether or not he will only claim the usufruct. 15Where anyone makes a bequest as follows: “I do give and bequeath to Titius a certain tract of land, which he can have for his share,” it seems to me that it can be said that he will be entitled to half of it; for it is held that by the mention of the land he did not refer to the entire tract, but to a part of the same, for a part is also properly designated a tract.

Ulpianus, On Sabinus, Book XXI. Where property has been bequeathed in general terms, as, for example, a slave, Gaius Cassius says that care should be taken that neither the best nor the worst slave should be received by the legatee. This opinion is confirmed by a Rescript of our Emperor and the Divine Severus, who decreed that where a slave was bequeathed, the one who transacted the business of his master could not be selected. 1Where a testator had in mind a certain tract of land, and it is not apparent what his intention was with reference to it, the heir shall have the choice to give the tract which he prefers; or if the intention of the testator is clear, the tract itself can be claimed by the legatee. Again, if he bequeathed a piece of silver plate, and it is not clear which one he meant, the heir will also have the choice to give the one that he wishes.

Ulpianus, On Sabinus, Book XXI. Where a slave who has been bequeathed is in flight, or is absent in a distant country, the heir must exert himself to recover the property and deliver it. This also was stated by Julianus, for Africanus states in the Twentieth of his Letters on Julianus that, if the heir is compelled to incur any expense in this matter, he thinks that he should do so; and I hold that his opinion should be adopted. 1The profits of the property should also be deducted in making the claim for the legacy, not only those, however, which the heir may have collected, but also such as the legatee could have collected; and this rule also applies not only to the labor of slaves, but also to the work of animals, as well as transportation by vessels. What has been stated with reference to profits must also be understood to apply to the rents of houses in cities. With respect to the rate of interest on money, the custom of the country must be followed, and therefore the court must make an estimate and fix the rate of interest. Moreover, if the heir is in default, he will also be liable for the destruction of the property, and its value must be paid; just as this is done in a stipulation where the property is lost after the party is in default. This rule also applies to the offspring of female slaves. Where a slave is bequeathed, the heir will be bound to surrender everything which he has acquired by means of said slave, whether it be an estate, a legacy, or anything else. 2If Titius should purchase property from me, and bequeath it to me before I deliver it to him, and then I deliver it and receive the price for the same; he is considered at first sight to have bequeathed it to me, and hence the legacy is void. But, as I am released from liability to an action on purchase, I can bring an action to recover the property which I delivered on the ground of its being a legacy. Still, if the price has not yet been paid to me, Julianus says that I am entitled to an action on sale to recover the price, and that, in addition, a suit under the will to recover the property which I sold and delivered will lie. He also adds that if the price had been paid to me, but I had not yet delivered the property, I would be free from liability on account of the right of action to which I would be entitled by virtue of the will. 3Julianus likewise stated that if the testator should devise to me a tract of land which he had purchased from someone else, the heir would be compelled to transfer to me the right of action to which he was entitled on account of the purchase; provided the property had not yet been delivered either to the deceased, or to his heir. 4Where anyone makes a bequest to another of the right to quarry stone on his premises, the question arises whether this legacy also passes to his heir. Marcellus denies that it does pass to his heir, unless the name of the latter was mentioned in the bequest. 5Ad Dig. 30,39,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 220, Note 6.The heir is compelled to pay any taxes or tributes assessed on the land which was bequeathed, for sun-dials or for sewers, or for the right to conduct water. 6I know that the following case has been discussed. A certain person, who had two tracts of land bearing the same name, bequeathed the Cornelian Estate, and of the two thus designated one was of greater value than the other. The heir claimed that the least valuable one was bequeathed, and the legatee asserted that it was the one of greater value which was intended. It is generally understood that the one of lesser value was bequeathed, if the legatee should not be able to prove that the more valuable one was meant by the testator. 7It is established that even property belonging to another can be bequeathed, provided it can be obtained, even if its acquirement should be difficult. 8If, however, anyone should bequeath the gardens of Sallust which belonged to Augustus, or the Alban Estate which is set apart for the use of the Imperial household, he would be considered insane for having made such a bequest in his will. 9It is also established that the Campus Martius, or the Roman Forum, or any sacred building cannot be devised. 10If, however, lands belonging to the Emperor, and forming part of the Imperial domain or under the superintendence of the Imperial Steward, are devised, their appraised value will not have to be paid by the heir, as any commercial disposal of them cannot take place, except by order of the Emperor, as they are not to be sold.

The Same, On Sabinus, Book XXI. Now let us examine some other things in addition to what has been mentioned, and in fact all corporeal property, as well as rights and servitudes can be bequeathed. 1Property, however, which is joined to buildings cannot be disposed of by will, because the Senate, during the Consulship of Aviola and Pansa, decreed that this could not be done. 2Still, the question may be raised where pieces of marble or columns have been separated from buildings, whether the legacy does not become valid. And, indeed, if it was not valid from the beginning, it cannot become so subsequently, just as where property of mine was bequeathed to me and alienated after the will had been made, because the legacy had no force or effect in the beginning; but if it was bequeathed under a condition, the legacy can become valid, if, at the time when the condition was fulfilled, the property does not belong to me, or is no longer joined to the building; in accordance with the opinion of those who hold that I can purchase my own property under A condition, and that I can also promise it and bequeath it conditionally. Hence, the rule of Cato stands in the way of an absolute legacy left under such circumstances, but is not opposed to a conditional one; because it does not have reference to conditional bequests of this kind. 3It may also be asked whether the legacy will be valid where a party has two houses and devises one of them, and also leaves him to whom he devised the house something which was joined to the other. This question arises from the fact that we are permitted by the Decree Of the Senate and the Imperial Constitutions to transfer to one house property from another of which we are to remain in possession, that is to say, which is not to be sold. This Our Emperor and the Divine Severus stated in a Rescript. Therefore cannot I devise property attached to one house to the person to whom I have devised the other? This will be denied, for the reason that the party to whom the property is bequeathed will not be the future possessor of the same. 4Where a testator leaves the Sempronian House to two persons, and bequeaths to one of them the marble which is in it, for the erection of the Seian House, which he devised to him, it may not unreasonably be asked whether such a bequest will be valid, for the reason that the legatee is the owner of both houses. What would be the case if a person should devise a house, after excepting the marble which he wished the heir to have for the purpose of building another house which still remained a part of the estate. The better opinion may be said to be that the exception will be void in either instance, but the legacy will be valid, and the appraised value of the property must be paid. 5If, however, anyone bequeaths a legacy of this kind for the purpose of constructing some public work, I think that it will be valid; and Papinianus, in the Eleventh Book of Opinions, relates that our Emperor and the Divine Severus decided that those who promised to erect some public work can remove materials from their city and country houses, and use them with that design, because they do not remove them for commercial purposes. Let us, however, consider whether property can only be left to a city situated in the same territory, or whether it can be transferred elsewhere, to be used in some other city. I think that this should not be allowed, although it has been settled that materials can be taken from a house which a man owns and transported to another belonging to him in a different town. 6This Decree of the Senate has reference not only to Rome, but also to other cities. 7There is also a Rescript of the Divine Brothers extant which was issued in answer to a petition of Proclianus and Epitynchanus, which requested permission for the removal of property from their houses that they desired to sell for the purpose of discharging a public debt, and in which the right to sell said property was denied them. 8This Decree of the Senate applies to dwellings, as well as to baths and every other kind of buildings, such as porticoes, drinking houses, and restaurants. 9It is also forbidden by this decree to bequeath property which the legatee cannot deliver without detaching it from a building; that is to say, blocks of marble, or columns. The Senate decided that this also applied to tiles, to beams, and to doors, as well as to libraries attached to walls. 10If, however, the articles consist of lattices, or awnings, it can be bequeathed, but water mains and reservoirs are not included. 11Hydraulic machines, however, and pipes through which the water issues can be bequeathed, and especially if they are merely placed upon the real property. 12What then must be said with reference to statues? Where they are fastened to the walls it will not be lawful to remove them, but if they are separate, some doubt exists. The spirit of the Decree of the Senate must, however, be taken into consideration, and if the statues were placed in the house to remain there always, and as a portion of the same, they cannot be removed. 13Hence, it must be said that where pictures are attached to the walls, or small ornaments inserted into the latter, they cannot be bequeathed. 14Where, however, the testator had prepared certain ornaments for the purpose of removing them to another house, and bequeathed them, a doubt may arise as to whether the bequest is valid; and I think that it is. 15But when the testator fastens to his house the objects which he bequeathed, the legacy will be extinguished,

The Same, On Sabinus, Book XXI. The Senate, therefore, does not permit anything which is attached to a house to be separately bequeathed. But if any of these objects did not form part of the house at the time of the death of the testator, the heir must pay their appraised value. If he should detach them for the purpose of paying a legacy, he will be liable to the penalties prescribed, even though he removed them, not for the purpose of selling them, but in order to discharge his obligation. 1Marcellus also says that if a husband builds a summer-house in the garden of his wife, which he received by way of dowry, he can remove the same if he can make use of it himself, without, however, causing his wife any loss; and that the Decree of the Senate will offer no obstacle to his doing so. Therefore, if no injury is suffered by his wife, through the removal of the house, it must be held that he can dispose of it by will, since he can remove it. 2Ad Dig. 30,43,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 93, Note 5; Bd. III, § 633, Note 17.The bequest of a legacy can be made dependent upon the will of a third party, but not upon that of an heir. 3Where one person has ransomed another from the enemy, he can bequeath him to himself; and a legacy of this kind will cause his release from the obligation of the pledge which the party who ransomed him possessed.

Ulpianus, On Sabinus, Book XXI. Where a jewel set in a ring, or any other ornaments or articles which are joined together are bequeathed, this is in accordance with law, and they should be separated and delivered to the legatee.

Ulpianus, On Sabinus, Book I. Obligations due from all kinds of debtors can be lawfully bequeathed to them, even though they may be the owners of said obligations. 1Julianus stated that if property which is pledged is bequeathed by a creditor to his debtor, the legacy will be valid, and the debtor will be entitled to an action to recover the pledge before he pays the money due. In this instance, Julianus seems to have had in his mind a case where the debtor would not profit by the transaction. Where, however, the intention of the testator was otherwise, he can be released from the obligation just as if he had paid the debt.

The Same, On Sabinus, Book XXI. Where a right of habitation is bequeathed to a son under paternal control, or to a slave, I do not think that the legacy will be acquired by the master or the father, if the son of the slave should die before the estate is accepted; for, as the legacy attaches to the person, it is very properly held that it does not take effect before the estate has been entered upon.

The Same, On Sabinus, Book XXI. If a slave owned in common stipulates for himself and one of his masters, it is the same as if he stipulated for all his masters, and one of them; as, for example, if he stipulates for Titius and Mævius, and for Mævius, it may be held that three-fourths are due to Titius, and one-fourth to Mævius.

Ulpianus, On Sabinus, Book XXI. If a son who is under the control of his father should himself have a son, he will be considered to be under his control, so far as municipal honors are concerned.

Ulpianus, On Sabinus, Book XXI. A sale is not fictitious when the price is agreed upon.