Ad Dig. 23,3,33Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 267, Note 12.Ulpianus, On Sabinus, Book VI. Where a stranger who promised a dowry becomes insolvent, the husband will be to blame for not having brought suit against him, especially if he promised the dowry through compulsion, and not voluntarily. For if he donated the property, the husband should be excused for not having pressed the donor for payment, against whom he could have obtained a judgment, to the extent of his resources, if he had brought suit; for the Divine Pius stated in a Rescript that where persons are sued on account of their liberality, they should have judgment rendered against them for the full amount that they are able to pay. But if the father, or daughter herself made the promise, Julianus says in the Sixteenth Book of the Digest that, even if the father made it the risk must be borne by the husband, which opinion should not stand. Therefore, the woman should bear the risk, for no judge will patiently listen to a woman who alleges that her husband did not press her father, who had promised her a dowry out of his property, for the payment of the same; and still less, where he did not bring an action against her. Hence Sabinus very properly holds that where the father or the woman herself promised a dowry, the risk should not be borne by the husband; but where the debtor makes the promise, the risk must be borne by the husband; and where someone else does so, by way of donation, the party who was benefited will be responsible. We understand, however, that the advantage will accrue to the woman to whom the benefit of the property belongs.

Ad Dig. 24,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 509, Note 35.The Same, On Sabinus, Book VI. Papinianus very properly thinks that the Rescript of the Divine Severus relates merely to the donation of property; hence if the husband bound himself by a stipulation for the benefit of his wife, he does not hold that the heir of the husband can be sued, even though the husband should die without having changed his mind.

Ulpianus, On Sabinus, Book VI. Let us consider at what age males or females can make a will. The better opinion is that males must have attained the age of fourteen and females that of twelve, to fulfill the legal requirements. In order to make a will, is it sufficient for a party to have reached the age of fourteen, or must he have passed that age? Suppose a person born on the Kalends of January makes his will upon his fourteenth birthday, will such a will be valid? I hold that it will be valid, and I go even farther, and say that if he made his will upon the day preceding the Kalends of January, after the sixth hour of the night, his will will be valid, for, according to Marcianus, he is then considered to have completed his fourteenth year.

Ulpianus, On Sabinus, Book VI. It was introduced by custom, that if anyone made a will for his children under puberty, it would only be valid until his sons attained the age of fourteen years, and his daughters that of twelve. This must, however, be understood to apply where the children are under his control. We cannot substitute other heirs for emancipated children, but it is clear that we can do so for posthumous children, as we also can grandchildren and their successors, if they are not liable to again come under the authority of their father. If, however, they precede their parents, they can only be substituted for them where they have been appointed heirs or disinherited; for, according to the Lex Velleia they do not break the will of their grandfather by the succession, since if the principal will is broken, the pupillary one cannot stand. But if anyone appoints as his heir a child who has not yet reached puberty, he can appoint a substitute for him, provided he adopted him instead of his grandson, or arrogated him, and his son precedes him. 1Where anyone makes a will for the benefit of a child who has not reached puberty, he must also make one for himself. He cannot, however, make a will for his son alone, unless he happens to be a soldier; therefore, unless he also executes one for himself, it will not be valid, and unless the estate of the father is entered upon, the pupillary will will be of no effect. It is evident that if the estate is not affected under the principal will, it will come into possession of the heir ab intestato, and it must be held that the pupillary substitution will be preserved. 2Sometimes, in order to establish the validity of a pupillary substitution, the appointed heir can be compelled to enter upon the estate, or this can be done to uphold a trust in the second will; for instance, where the minor has already died. But if he is still living, Julianus thinks that he is despicable who solicits an estate during the lifetime of the owner. 3I think that where a minor under the age of twenty-five years is granted restitution because of having entered upon an estate, that this will confirm the second will, and enable the Prætor to grant an equitable action to the substitute. 4The testator should first mention his own heir, and then he can appoint a substitute for his son, and he must not reverse this order of appointment. Julianus also thinks that he should first appoint an heir for himself, and afterwards one for his son. If, however, he should first make a will for his son, and afterwards one for himself, his acts will not be valid. This opinion is adopted in a Rescript of our Emperor addressed to Virius Luppus, Governor of Britain, for it is clear that there is but one will, although there are two estates, so that, where anyone appoints necessary heirs for himself, he also appoints them for his son, and a man can substitute his posthumous child for his son who has not yet reached the age of puberty. 5Where a testator stated in his will: “If my son should die before reaching the age of fourteen years, let Seius be my heir”, and then added, “Let my son be my heir”; the substitution will be valid, although he inserted the provision in a reversed order. 6But where he said: “If my son should not be my heir, let Seius be my heir, let my son be my heir”; Seius is appointed heir in the second degree; and if his son should be his heir, there is no doubt that Seius will be the heir of the son; but if the son becomes the heir and dies before attaining the age of puberty; Seius is held to have been properly admitted to the succession, as not the order observed in the will, but the order of the succession must be considered. 7Therefore, when it was said that a substitution could be made for each one of the children, this was added in order to show that the father should not begin with the will of a son, who has not yet reached the age of puberty.

The Same, On Sabinus, Book VI. Where it was stated in a will: “Let a certain slave, if he should be mine”; or, “If he should be mine at the time I die, be my heir”, the question arises how should the term “mine” be understood. If the testator should alienate the usufruct in the slave, the latter will, nevertheless, belong to him; but the question is whether the condition of the appointment would fail if he alienated a portion of his ownership in said slave. The better opinion is, that the condition would not fail, unless it appeared by the clearest evidence that the intention of the testator, when he inserted the words relative to the condition, was that the entire ownership of the slave should remain in him, for then, if any part in him was alienated, the condition would not be fulfilled. 1Where, however, there are two slaves who are appointed heirs in the following words: “If the first and second slaves mentioned should belong to me at the time of my death, let them be free and my heirs”, and one of them should be alienated, Celsus very properly holds that the language should be understood to mean the same as if the testator had appointed the slaves his heirs separately, and under the same condition.

The Same, On Sabinus, Book VI. As long as the first heir who was appointed can enter upon an estate, the substitute cannot do so.

The Same, On Sabinus, Book VI. Anyone who is subject to the authority of another cannot bind him under whose control he is for the debts of the estate, without his consent, unless the father is liable for the debts. 1It is established with reference to the possession of property, that that shall be considered to have been ratified which a son has acknowledged contrary to the will of his father, while under the control of the latter. 2Where, however, the estate of a mother is transferred to her son as heir-at-law, in accordance with the Orphitian Decree of the Senate, the same rule should be adopted. 3If the son did not accept the estate, but, nevertheless, remained in possession of the same for a considerable time, he must be held to have accepted it; as the Divine Pius and Our Emperor stated in a Rescript. 4Where he who thought he was a son under paternal control enters upon an estate by the order of his father; it is held that the said estate was neither acquired by him, nor by his father who ordered him to accept it, even though the father may have died after doing so, if he enters upon the estate after his father’s death, and thereby bound himself for its debts; as Julianus states in the Thirty-first Book of the Digest. For when anyone is in doubt as to whether or not he is a son under paternal control, and by the death of his father becomes his own master, the better opinion is that he can enter upon the estate. 5Sometimes a son under paternal control acquires an estate without acceptance from him under whose control he is; for instance, where a grandson is appointed the heir instead of a disinherited son, and his father constitutes him his heir, and even his necessary heir, without his formal acceptance of the estate. 6Where anyone is appointed an heir by a disinherited son, he does not make him his necessary heir, but he should order him to enter upon the estate, since he was not under his control at the time of his death; for no one can become a necessary heir by the act of a party who himself cannot acquire the estate. 7Ad Dig. 29,2,6,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 20.Celsus stated in the Fifteenth Book of the Digest that where anyone, through fear of corporeal punishment, or impelled through any other kind of duress, pretends to accept an estate; if he is a freeman, he is not considered an heir, and if he is a slave, he does not make his master an heir.

The Same, On Sabinus, Book VI. It has been established that where impossible conditions are prescribed by a will they shall be considered as void.

Ad Dig. 40,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Note 12.Ulpianus, On Sabinus, Book VI. It has been decided that anyone who is born on the Kalends of January can manumit his slave after the sixth hour of the night preceding the Kalends, as having, at that time, completed his twentieth year. For anyone more than twenty years old is permitted to manumit a slave, but a minor under that age is forbidden to do so. Hence, he is not considered under the age of twenty, who is in the last day of his twentieth year.

The Same, On Sabinus, Book VI. Where an impossible condition has been prescribed, and it has reference to the performance of some act, it is an impediment to the stipulation. The case is otherwise, however, if a condition like the following one, namely, “If he does not ascend to heaven,” is inserted into the stipulation; for it is available and effectual, and applies to money which has been loaned.

Ulpianus, On Sabinus, Book VI. A son under paternal control, serving as a soldier, who is appointed an heir either by a fellow-soldier, or by one whom he has known through being in the service, can of his own accord become his heir, without the order of his father.

The Same, On Sabinus, Book VI. He is not considered to give his full consent who obeys the command of his father or his master.