The Same, On Sabine, Book XXII. A father can bequeath a slave belonging to his son, and who forms part of the castrense peculium of the latter, and if the son should die during the lifetime of his father, and his peculium remain in the hands of his father, the legacy will stand; for as the son did not avail himself of his right, the father is held by retroaction to have the ownership of the slave who formed part of the peculium. 1Ad Dig. 30,44,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 643, Note 2.If anyone should bequeath property belonging to another which had already been bequeathed to him without his knowledge, and afterwards should learn of the legacy and wish to acquire it, the bequest will be valid; for the reason that where the legatee does not reject a bequest, it is held to have vested in him from the time when the estate of the testator was entered upon. If, however, he should reject it, the property is held to belong to the heir from the date of the rejection. 2Ad Dig. 30,44,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 187, Note 2.Where anyone bequeaths drinking cups, and they have been melted down, or vice versa; and also where wool is bequeathed and clothing has been made out of it; Julianus says, in the Thirty-second Book of the Digest, that the legacy of all the above-mentioned articles is valid, and that whatever remains of them is due. I think that this opinion is correct, provided the testator did not change his mind. 3If, however, he should bequeath a silver dish, and it is melted down, and made into a cup, the cup will be due; provided the intention of the testator remains the same. 4If a house is built upon land which was devised, it will be due to the devisee, unless the testator changes his will. 5A party who bequeaths a note bequeaths the claim and not merely the material on which the writing appears. This is proved by a sale, for when a note is sold, the debt by which it is evidenced is also considered to be sold. 6However, even though a claim is bequeathed, what is due must be understood in the most favorable sense, so that the rights of action against the debtor may be assigned. 7Hence, where a slave is both bequeathed and directed to be free, in the meantime the legacy alone can take effect; for instance, suppose the grant of freedom was made for the purpose of defrauding a creditor, or if the slave is one who had already been sold into perpetual servitude, the rule will apply just as where a slave is given in pledge. 8Where a testator bequeaths a slave who is to have his freedom under certain conditions, it will be better for the heir to furnish the slave himself, rather than to pay his appraised value, for he must pay his true value. If, however, he should deliver the slave himself, and the condition should be fulfilled, he will sustain no injury, for his appraised value cannot be claimed where a free man is concerned. 9Where a testator who owns two tracts of land devises one of them to me, and the other to Titius, the devisee will not owe me his right to enter upon the estate, but the heir will be compelled to purchase this right and assign it to me.

Ulpianus, On Sabinus, Book XXII. Where property is bequeathed which belonged to the testator, and the heir has possession of it, he ought not to delay, but should deliver it at once. If, however, the property is elsewhere than where it is demanded, in the first place it must be held that it shall be delivered where it was bequeathed, unless the testator wished otherwise; for if this was the case, it should be delivered in the place where the testator intended this should be done, or in that which it is probable he had in mind. Julianus gave this opinion not only with reference to property owned by the testator, but where bequests are made of articles belonging to others. If, however, the property has been left in one place and fraudulently transferred by the heir to another, unless it is delivered where the demand is made, the heir will be condemned on account of his bad faith; but where there was no bad faith, the property shall be delivered in the place to which it was transferred. 1Where a legacy of articles which can be weighed, counted, or measured is demanded, and a specified quantity is bequeathed (as, for example, grain from a certain granary, or wine from a designated warehouse), the article must be delivered where it was left, unless the intention of the testator was otherwise. But, if the bequest was not of a certain kind of property, it must be delivered where the demand is made. 2Therefore, if Stichus should be bequeathed, and through the default of the heir should not appear, the latter must pay his appraised value; but where he was not at all to blame, the heir should provide for his restitution, and will not be compelled to pay his value. But if the slave of another who had been bequeathed takes to flight without the fault of the heir, the same rule will apply; for the heir can become liable for negligence with reference to the slave of another. The heir must, however, furnish security that if the slave should be caught, he himself, or his value will be delivered. This also applies to a slave captured by the enemy. 3But if Stichus or Pamphilus should be bequeathed, and one of them takes to flight, or is captured by the enemy, it will be held that if present, the slave must be delivered, or if absent, his appraised value must be paid. The choice of these two things is granted to the heir only when he is not guilty of delay in delivering him to the legatee. For this reason it is established that if one of the two slaves should die, the other must, by all means, be delivered, and perhaps also the price of the dead slave may be payable. Where, however, both slaves have taken to flight, security is not required of the heir, unless both of them come into his power; but where only one of them does, he must deliver either the slave himself whom he has recovered, or pay the appraised value of the one who is absent. 4The same rule applies where property belonging to another or to the estate is destroyed, without the fault of the heir, or it is not produced; for he will be obliged to do nothing more than give security. If, however, the property was destroyed through the fault of the heir, judgment must be rendered against him without delay. 5But let us consider in what way the neglect of the heir may be established; must that which resembles fraud be merely taken into account, or that also which is but slight negligence, or must exact diligence be required from the heir? The latter I think to be the most correct opinion. 6Moreover, the same rule applies where land has been swallowed up by an earthquake, and Labeo says that its appraised value will not be due. This opinion is correct, if the catastrophe did not happen after the default of the heir; for if the legatee had received it, he might have sold the land.

Ulpianus, On Sabinus, Book XXII. A legacy expressed in the following words, “Which I have procured for the use of my wife,” is a general one, and includes clothing as well as silver and gold plate, ornaments, and all the other things which are obtained for the benefit of the wife. But what articles should be considered to have been obtained for this purpose? Sabinus, in his work on Vitellius, says upon this point, that whatever terms are most frequently employed in making bequests to wives should be understood as designating whatever is intended for her individual use, and is more frequently acquired for this purpose than for the common and promiscuous use of both parties. Nor does it appear to make any difference whether the head of the household obtained such articles before his marriage, or afterwards; or even if he should give anything to his wife which he himself had been accustomed to use, and then devoted it to her special use.

Ulpianus, On Sabinus, Book XXII. If the husband purchased some of these articles before he married his wife, and gave them to her for her use, it is the same as if he had obtained them with this intention afterwards. In a legacy of this kind, those articles belong to the wife which have been purchased, repaired, and retained for that purpose, and among them are included whatever belonged to a former wife, or the daughter, or granddaughter of the testator. 1The question arises as to what difference exists between the terms “purchased” and “prepared.” The answer is that the term “prepared” is included in the term “purchased,” but this is not the case with the term “prepared;” just as if anyone had purchased an article for the use of his first wife, and gave it to his second, for while the said article was prepared for his second wife, it was not purchased for her. Hence, even though a husband might not have purchased anything for his second wife, still, by giving her the articles which the first one had they are prepared for her use, and if they had not been transferred to her, they would be included in the legacy; but whatever was prepared for the use of the first wife will only belong to the second where they have been designated for her use, because where the husband obtained them for his first wife, he is not held to have done so with a second wife in view.

Ulpianus, On Sabinus, Book XXII. Slaves are also included in a legacy of this kind, for instance litter-bearers, who usually carried the mother of the family alone, and also beasts of burden, sedan chairs, and mules, as well as other slaves, such as girls and women employed as hair dressers. 1If the husband should have given his wife any ornaments worn by men, they will be considered as having been acquired for her use. 2Hence, if there were any articles used by both husband and wife, and he was accustomed to borrow them from her, as it were, it must be said they also should be considered as acquired for her use. 3There is likewise a difference between articles which have been prepared for her use and such as were purchased for her, when such articles are bequeathed; for where they are prepared for her use, all that have been intended for her are included, but where they have been purchased, those alone are included which the husband bought for that special purpose; therefore where only the articles which have been purchased are bequeathed, those which were obtained in any other way by the husband, and which he destined for her, are not included. Still, whatever the husband directed to be purchased or which he himself actually bought and did not yet give to his wife, but intended to give to her if she had lived, will be embraced in the legacy under both these terms. 4Where anyone bequeaths a legacy to his wife or his concubine, composed of articles which had been purchased and prepared for her use, no distinction is made; for, in fact, no difference exists between the two women except that of social rank. 5Where gold obtained for her use is bequeathed by a husband to his wife, and it afterwards is melted, but the material still remains, she will be entitled to it. 6But, in order for the legacy to be valid, Proculus says that the woman must be the wife of the testator at the time of his death. This is true, for a separation will extinguish the legacy. 7The bequest of articles acquired for his or her use can also be left to a son or a daughter, as well as to a male or female slave; and there will be included therein any property which may have been given to them, or intended for them.

Ulpianus, On Sabinus, Book XXII. Where wool is left to anyone, that which is not dyed is considered to be bequeathed, that is to say, wool in its natural condition. 1This also applies to such as has been worked up, or is embraced in the term unfinished wool. 2The question arose whether under the term of “wool” only such is included as has not been spun, or whether that which is spun is also meant; as, for instance, the warp and woof. Sabinus thinks that wool which has been spun is included, and we adopt his opinion. 3It is held that the word wool should be employed until it is made into cloth. 4It must be understood that both washed and unwashed wool are included under this designation, provided it is not dyed. 5Cow-hair used for stuffing cushions is not included in the term wool. 6Moreover, wool out of which anyone can make a garment either for health or for convenience is not included. 7Nor will such as is prepared for application to the body or for medical treatment be embraced in the term wool. 8But should skins to which the wool is attached be included? It is evident that these are accessories to the wool. 9Where wool is bequeathed, it may in my opinion include the fur of hares and goats, and the down of geese, as well as the substance obtained from a certain plant which is called vegetable wool. 10Where, however, wool is bequeathed, flax is not included. 11Where flax is bequeathed, that which has been worked up, as well as the unfinished article, is included, as well as what has been spun, and what is in the web and has not yet been woven. Therefore, a difference exists in a bequest of flax and wool. I think that where flax has been dyed it would be included in a bequest. 12Where wool has changed its color, this should be taken into consideration. It was decided by the ancient authorities that wool which has changed its color should not be included under the term wool, but all which had been spun and not woven should be included. Hence the question arises whether the term “changed in color” is applicable to purple. I think that what has not been dyed is not included under this term, and therefore that neither wool which is naturally white or black, or of any other natural hue, is meant. I hold, however, that purple and scarlet, as they are not natural colors, should be included under the term dyed wools, unless the testator intended otherwise. 13It is my opinion that purple of every description should be included under this name. Scarlet should not be included, nor bluish red, or violet. No one doubts that thread already placed in the loom should be included under the term purple. Wool intended to be dyed purple is not included.

Ulpianus, On Sabinus, Book XXII. Where anyone bequeaths provisions, let us see what is embraced in the legacy. Quintus Mucius says, in the Second Book of the Civil Law, that whatever can be eaten or drunk is considered as forming part of a legacy of provisions. Sabinus also says, in his Books on Vitellius, that everything is included in such a legacy that is ordinarily consumed by the head of the household, his wife, his children, or his slaves, and that this also applies to such beasts of burden as are destined for the use of the testator. 1Aristo, however, remarks, that some things which are not eaten or drunk are included in the legacy; for instance, those that we are accustomed to use with them, as oil, sauce made from fish, brine, honey, and other articles of this kind. 2If articles used with food are bequeathed, it is clear (as Labeo says in the Ninth Book of his Last Works) that none of them should be embraced in the legacy, because we do not eat these things, but, by means of them, we are accustomed to eat others. Trebatius is of a different opinion so far as honey is concerned, and with good reason, because we are in the habit of eating honey. Proculus, however, very properly holds that all articles of this kind are included in the legacy, unless it is evident that this was not the intention of the testator. 3Where a bequest is made of provisions, does this include articles which we are accustomed to eat, or those by means of which we eat others? It should be held that the latter are also included in the legacy, unless the intention of the testator is shown to be otherwise. It is certain that honey is always classed among provisions. Labeo himself does not deny that fish, together with the brine in which they are pickled, are also included. 4All drinkables which the head of the household considered as wine are classed as provisions, but none of those above mentioned are included. 5No one doubts that vinegar is also included in the term “provisions,” unless it was kept for the purpose of extinguishing fire, for then it cannot be eaten or drunk. This Ofilius stated in the Sixteenth Book of Actions. 6What we have said with reference to the clause, “Destined for the use of the testator,” should be understood to apply to his friends, his clients, and all the persons whom he has about him, but not to his slaves, or to those who are not attendant upon him or his people; for example, the slaves who are employed upon his estates; and Quintus Mucius thinks that those only are included in bequests of provisions who do not perform any labor. This gives occasion to Servius to remark that food for the maintenance of male and female weavers is embraced in such a legacy. Mucius, however, only intended to designate those who are in attendance upon the testator. 7Likewise, food intended for the subsistence of beasts of burden is included in the legacy; but this does not apply to such beasts of burden as are used by the testator himself and his friends. Food for such animals as are employed in farm labor, or are hired out, are not included in this legacy. 8Any grain or vegetables which the testator kept in a storehouse are included in a legacy of provisions, as well as any barley for the subsistence of his slaves, or his beasts of burden; as Ofilius stated in the Sixteenth Book on Actions. 9The question arises whether firewood, charcoal, and other combustibles by which food is prepared, are embraced in a legacy of provisions. Quintus Mucius and Ofilius deny that this is the case, and they say that these are not included, any more than millstones are. They also deny that either incense or wax is included. Tutilius, however, holds that both firewood and charcoal, if they are not kept for the purpose of sale, come under this head. Sextus and Cæcilius also state that incense and wax tapers, kept for domestic use, are included. 10Servius, On Mela, says that perfumes and papyrus for letters also should be classed as provisions. The better opinion is that all these articles, including perfumes, should be included, and that sheets of papyrus intended for the daily accounts of the testator belong to the same category. 11There is no doubt that vessels for table-service are also included. Aristo, however, says that casks are not, and this is correct, in accordance with the distinction which we previously made with reference to wine. Nor are receptacles for grain or vegetables, or boxes, or baskets, or anything else of this kind, which is kept to be used in warehouses or cellars, where provisions are stored, included, but only those articles without which provisions cannot properly be made use of.

Ulpianus, On Sabinus, Book XXII. Under the term clothing is included any fabric which has been woven, even if it has not been cut off, that is to say made up. Material is classed as cloth, which is not yet completely woven, or finished. Therefore, where anyone bequeaths a garment, neither the warp nor the woof of a web will be included.

The Same, On Sabinus, Book XXII. The Rule of Cato does not apply to new laws.