The Same, On Sabinus, Book XXV. Where a father has been condemned to punishment by which he cither loses his citizenship, or is subjected to penal servitude, there is no doubt that his grandson takes the place of his son.

Ulpianus, On Sabinus, Book XXV. But what if he left a larger amount to be paid by the substitute? The amount in excess would be what had been left to be paid by the substitute. This, in fact, would be included with the sum mentioned in the former will, and therefore would be due. 1If, however, the testator should repeat the legacy when he appointed the substitute; for example, if he had charged the minor to deliver a tract of land to me, and repeated this legacy charging the heir of the minor to deliver it to me and Seius; the effect of this repetition will be that only a portion of the land would be due to me. 2If anyone should appoint two heirs, and charge each one of them to deliver an undivided piece of property to the legatee, this is the same as if the legacy had been bequeathed by two different wills; for if a bequest is made to me and to my son or to my slave, by the same will, both legacies will undoubtedly be valid, as Marcellus has stated in his work on Julianus. 3Where the heir kills the slave that was bequeathed on account of some crime which the latter has perpetrated, that is to say, because he deserved death, it will, without doubt, be held that he is not liable under the will. 4If, however, he surrendered him in satisfaction for damage committed, will he be liable because he could make reparation? I think that he will be liable. 5But if he should kill an animal that had been bequeathed, I think he would be liable, not only for the body of the dead animal, or any of its remains, but to also pay the value which it would have had if living. 6Likewise, where the heir suffered a house which had been bequeathed to be taken possession of, to avoid threatened injury; I think that he will be held, for he ought to give security. 7Ad Dig. 30,53,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 647, Note 11.Where the heir has interred a dead body in ground which was bequeathed, and by so doing rendered it religious, if he buried his father there when he could not bury him elsewhere, or could not do so as conveniently, he will not be liable under the will. Will he, however, be liable for the price of the land? If the testator desired to be buried in that place, the heir will not be liable under the will. But of the heir buried him there on his own responsibility, he will be obliged to pay the value of the land, if the assets of the estate are sufficient to enable this to be done; for where a testator devises land, he either intends to be buried elsewhere, or that the price of the land should be paid to the legatee. 8If the heir himself did not kill the slave, but forced him to commit some unlawful act, in order that he might be killed, or subjected to punishment by someone else; it will be perfectly just for him to pay the price. The value of the land, however, will not be due, if the slave committed the crime through his own evil disposition. 9If the slave that was bequeathed should be captured by the enemy, without fraud on the part of the heir; his delivery will not be required, but if this was done fraudulently it will be required.

Ulpianus, On Sabinus, Book XXV. The term “wood” is a general one, and is divided into building material and ordinary wood. Building material consists of what is necessary in the construction and support of houses; ordinary wood is anything which is intended for fuel. But should this term apply only to such as has been cut down, or also to such as has not been cut? Quintus Mucius states, in the Second Book, that where wood which is on the land is bequeathed to anyone, any trees which have been felled for building material are not included, but he does not add that what has been felled for firewood will belong to the legatee, still, this is understood to be the case. 1Ofilius also states, in the Fifth Book on the Law of Partition, that where wood is bequeathed to anyone, all will belong to him which is not called by some other name; for example, small branches, charcoal, and olive stones, of which no other use can be made than to burn them. The same rule applies to acorns, and all other seeds. 2The same authority denies in the Second Book that where wood is bequeathed, trees which have not yet been cut, but only such as have been split into small pieces, are held to have been bequeathed. I think, however, that any wood which has not yet been cut up into small pieces should also be included under the said term, if this was intended to be done. Hence, if a testator owned a grove which he had destined for this purpose, the grove itself would not belong to the legatee, but any trees which had fallen down would be included, under the term “wood,” unless the intention of the testator was otherwise. 3In a legacy of wood intended for fuel is included such as is used for heating baths, or for the furnaces of apartments, or for burning lime, or for any other purpose where heat is employed. 4Ofilius states in the Fifth Book of the Law of Partition, that twigs are not embraced in the term wood. But (where it is not contrary to the intention of the testator) small branches, boughs, sprouts, and the remains of materials used in building, as well as the stalks and roots of vines, are included. 5In some countries (as, for instance, in Egypt, where reeds are used for wood, and both reeds and papyrus for fuel), certain kinds of grass, thorns, and brambles are included in the term “wood.” Is there anything extraordinary about this? The Greek word signifying “wood” and the one indicating ships which transport wood, are derived from another Greek term which means marshes. 6In some provinces they use the dung of cattle for this purpose. 7Where wood has been prepared to be burned and made into charcoal, Ofilius says, in the Fifth Book on the Law of Partition, that material of this kind is not included in the term charcoal. But would it be included in the term fuel? Someone perhaps might say that it would not, for the testator did not have it in his possession to be used as fuel. Shall we enumerate, as belonging to a class of their own, firebrands and other wood which has been partially burned to avoid their making smoke, or shall we designate them as fire-wood, or charcoal? The better opinion is that they belong to a class of their own. 8The same designation will also apply to sulphurated wood. 9Wood to be used for torches is not included under the term fuel, unless this was the intention of the testator. 10Pine cones are also included in the term firewood.

Ulpianus, On Sabinus, Book XXV. Where a peculium is bequeathed which consists of tangible property (as, for instance, lands or houses), it can be claimed in its entirety, if the slave is not indebted to his master, to his fellow-slaves, or to the children of his master. If, however, he owes anything to the latter, or to the other persons above mentioned, the property should be diminished pro rata. Julianus and Celsus are of the same opinion. 1If a peculium should be bequeathed without the deduction of the indebtedness of the slave, it is to be apprehended that the legacy will be void, because what is added is contrary to the nature of the legacy. I think, however, that it is true that the validity of the legacy is not impaired by this addition, but the testator has also added nothing of the amount of it, as the claim to the peculium cannot be increased in this manner. It is clear that if you suppose that the legatee has obtained possession of the property, he can avail himself of an exception on the ground of bad faith against the heir, if he brings an action against him; for he is protected by the will of the testator, who directed that the debt should not be deducted. If, however, the master had stated that what the slave owed should be given to him, or indicated that the latter did not owe him anything, the addition above mentioned will be valid; because a master can, by the mere expression of his wishes, give to the slave what the latter owes him. 2However, where my sub-slave has been bequeathed to me, the question arises whether the peculium of said sub-slave will be mine. We think that his peculium is included in the legacy of the sub-slave, unless this is contrary to the intention of the testator. 3Where a slave and his sub-slave are directed to be free by a will, and their peculia are bequeathed to them, the words of the bequest ought to be interpreted in accordance with the intention of the testator, as if the latter referred to separate and distinct peculia. In accordance with this, a sub-slave will not be held in common where there are two freedmen, unless such was the intention of the testator. 4As on the one hand, the debt of the slave, that is to say what is due to his master, diminishes the legacy of the peculium; so, on the other, what the master owes to the slave should increase it. A Rescript of Our Emperor and his father, which is as follows, is however, opposed to this opinion: “Where a peculium is bequeathed to a slave, the right is not granted to the latter to recover from the heir any money which he may say he has expended on his master’s account.” But what if this was the intention of the testator, could he not then recover it? What he has expended for this purpose should certainly be subject to set-off against that which was due to his master. Will what his master stated in writing was due from him to the slave be included in the legacy of the peculium? Both Pegasus and Nerva say that it will not. When Gneus Domitius bequeathed his daughter her peculium, but he had not paid her, for two years, the allowance which he was accustomed to give her, but retained it for his own purposes and stated that he owed his daughter fifty aurei, Atilicinus held that this was not included in the legacy. This opinion is correct, for the reason that it agrees with the Rescript. 5Not only what is due to the master is deducted from the peculium bequeathed, but also anything that may be due to the heir.

Ulpianus, On Sabinus, Book XXV. Finally, Pegasus gives it as his opinion that if an heir should lend money to a slave, who is to be free under a certain condition, before the condition is fulfilled, the amount will be deducted by operation of law, and each individual part of the peculium will be diminished by this debt. 1Hence, if a slave should receive his freedom unconditionally, and the heir should lend him money, either during the lifetime of the master, or before the estate was entered upon, a legacy of the peculium will be diminished, according to the opinion of Julianus, although the heir may never have become the master of the slave. 2Where a testator owned the slaves, Stichus and Pamphilus, and, having manumitted them by his will, bequeathed to each of them his peculium, it was decided that what one of the slaves owed to his fellow-bondman should be taken from his peculium, and be added to the legacy of the other. 3Where freedom was granted to a slave if he should pay the heir ten aurei, and his peculium was bequeathed to him, it was also asked whether the ten aurei which he had paid to the heir should be deducted from the peculium. Sabinus holds, and this is correct, that the legacy of the peculium is diminished to this extent. 4Sabinus goes still farther, and says that if a slave to be free upon a condition should sell to the heir one of his own slaves, the latter must be deducted from the peculium just as if he had been sold to a stranger. 5Consequently, the question is asked if, where a slave has made an agreement with his master with reference to the price of his freedom, and he pays a portion of the money, and before he pays the remainder his master should die, and the latter, by his will, directs that the said slave shall be free and receive the legacy of his peculium, must what he paid to his master be included in his peculium? Labeo says it should be deducted from it. It is evident, if he has not yet paid it but has kept it in his hands as a deposit until he could pay the entire amount, that it should be included in his peculium. 6Likewise, where his peculium is bequeathed to a slave, and the heir has been forbidden to collect from a debtor to said peculium a claim which was due; it is a fact that this should be deducted from the peculium bequeathed, that is to say, that what was left to the said debtor should be taken from the peculium. 7Sometimes, where the peculium is not bequeathed, this is understood to have been done, as appears from the following example. A certain man granted a slave freedom if he should render his accounts, and pay a hundred aurei to his heirs. With reference to this Our Emperor, together with his lather, stated in a Rescript that while the peculium was not due unless it was bequeathed, still, he said, if the slave complied with the conditions prescribed, he concluded that it was the intention of the testator that he should keep his peculium, especially as he had directed him to pay a hundred aurei out of his peculium to his heirs. 8Moreover, shall we understand the peculium to be the amount of the latter at the time of death, or shall we add to it any subsequent accessions, or subtract from it any subsequent diminutions? Julianus says that where the peculium is bequeathed, a difference should be understood to exist when it was left to the slave himself, and when it was left to others. If it was left to himself, the time of the vesting of the legacy must be considered, but if it was left to a stranger, the time of death should be taken into account; but in such a way that the increase of the property composing the peculium may come into the hands of the legatee; as, for instance, the offspring of female slaves, or the increase of cattle. Any accession, however, derived from the labor of the slaves or from any other source, will be due to no one else than the slave to whom the peculium was bequeathed. Julianus says that both of these cases should be decided in accordance with the intention of the testator; for, when his own peculium is bequeathed to the slave, it is probable that the testator intended the entire increase of the same to belong to him, in whom, after his manumission, his patrimony would vest. This is not the case where the peculium is bequeathed to another; still, you may say that the rule will apply if it is evident that the testator had the same intention with reference to the other party.

Ulpianus, On Sabinus, Book XXV. Where a legacy is bequeathed to relatives, and the said relatives have forfeited their rights as such, but still remain citizens, it must be said that they are entitled to the legacy, for they were members of the family at the time when the will was executed. It is certain that if anyone was not a member of the family when the will was made, but became one through arrogation, at the time of the death of the testator, he will, still more, be entitled to the legacy. 1If anyone should make a bequest to his kindred, it is the same as if he had made it to his relatives.

The Same, On Sabinus, Book XXV. It has been established that a son under paternal control can have a domicile.

Ulpianus, On Sabinus, Book XXV. The material of which it is composed is not included in the term “charcoal,” but is it included in that of “firewood”? Perhaps someone may say that it is not, for all wood is not firewood; but shall we include under the terms “firewood” or “charcoal” firebrands which have been extinguished, and other burnt wood which does not make any smoke, or shall we place it in a class of its own? The better opinion is that it has a class of its own. Wood which has been treated with sulphur is included in the term “firewood.” Wood which is prepared for torches does not come under the head of “firewood,” unless it was specially intended that this should be done. The same rule applies to olive seeds, acorns, and any other seeds. When pine cones are entire, they are included in the term “firewood.”