THE DIGEST OR PANDECTS. BOOK XXXIII.

TITLE I. CONCERNING ANNUAL LEGACIES AND TRUSTS.

1. Pomponius, On Sabinus, Book V.

When something payable every year is bequeathed without adding the place where this is to be done the heir should pay it wherever it may be demanded, just as a demand can be made in the case of a stipulation, or a note.

2. The Same, On Sabinus, Book VI.

Where an heir is charged to permit me to enjoy the use of certain land by the year, and he is guilty of default at the beginning of the year, when I ought to cultivate the land, he will be liable to me for the entire year, even though he should afterwards permit me to cultivate it, because I have been excluded from putting in the crops; just as where he is charged with furnishing me the daily labor of Stichus, and he sends him to me, not in the morning but at the sixth hour of the day, he will be liable to me for the value of the entire day's work of the slave.

3. Ulpianus, On Sabinus, Book XXIV.

Where a legacy, for instance of thirty aurei, is left to me payable in one, two, and three years, ten aurei will be due each year, even though the words "in equal payments" were not added.

(1) Hence, if the words "in payments" were employed, even though "equal" was not added, it must be said that equal payments must be made, just as if the word "equal" was written, and the word "payments" had not been added.

(2) But if the words, "In unequal payments," are added, unequal payments must be made. But let us consider in what way they ought to be made. I think that they ought to be made in accordance with the judgment of a good citizen (unless the testator expressly left it to the choice of the heir), dependent upon the means of the deceased, and the place where his estate is situated.

(3) If, however, it was stated that payment should be made in accordance with the judgment of a good citizen, we infer from this that it must be made with reference to the situation of the estate, and without any trouble or annoyance to the heir.

(4) But if the testator directed that payment should be made in the way that the legatee might select; let us see whether the entire amount can be demanded at once. I think that this cannot be done, just as in the case of the choice of the heir; for the testator intended that several payments should be made, and that the amounts of the same should depend upon the judgment of the heir, or of the legatee.

(5) Where, however, a legacy has been bequeathed as follows, "Let my heir pay Titius ten aurei in three years," will the amount be payable in three annual instalments, or at the expiration of three years? I think that this should be understood as if the testator had intended the payments to be made in one, two, and three years.

(6) Where a certain sum of money is bequeathed to anyone, and it is stated that, until it is paid, something shall be given to the legatee every year, as, for example, interest, the legacy will be valid; but in order to make the payment of the interest valid, the sum to be paid annually must not exceed the ordinary rate of interest.

4. Paulus, On the Edict, Book LXII.

Where anything is bequeathed to a person to be paid annually, Sabinus says (and his opinion is correct), there are several legacies, and that the one for the first year is absolute, and the other conditional; for the condition, "If he should live," seems to be implied, and therefore, if the legatee dies, the legacy will not pass to his heir.

5. Modestinus, Opinions, Book X.

"I also charge my other heirs to pay to my wife ten aurei every year, as long as she lives." The wife survived her husband five years and four months. I ask whether her heirs will be entitled to the entire legacy for the sixth year. Modestinus answers that they will be entitled to it.

6. The Same, Opinions, Book XI.

A testator left a certain sum of money to be paid annually for the maintenance of the public games of the city, over which he expressed a wish that his heirs should preside. The successors of his heirs denied that they were liable for the legacy, alleging that the testator only intended it should be paid as long as his heirs could preside over the games. Therefore, when he mentioned their presiding, I ask whether he intended payment to be made during the duration of the trust, or perpetually. Modestinus answers that the legacy should be paid to the city annually in perpetuity.

7. Pomponius, On Quintus Mucius, Book VIII.

Quintus Mucius says that if anyone makes the following provision in his will, "Let my sons and daughters live wherever their mother may desire, and let my heir pay, every year, to each boy and girl among them ten aurei, for his or her support." If the guardians who had charge of the children were unwilling to pay the said sum of money, no action can be brought by anyone under the terms of the will; for the provision of the testator was only intended to inform the guardians what he desired, so that they could pay the money without any risk.

Pomponius says that where anything is included in the will which merely has reference to the wishes of the testator, it does not create any obligation. The following is an instance of this. If I should appoint you my sole heir, and direct you to erect a monument to me with a certain sum of money, this statement does not place you under any obligation, but you can erect a monument in order to comply with my wishes, if you desire to do so.

It would, however, be otherwise, when I made the same provision after I had given you a co-heir, for if I charged you alone to erect the monument, your co-heir could bring an action in partition against you to compel you to do so, as it is to his interest. If, however, both of you should be ordered to do this, you will be entitled to actions against one another.

The following also has reference to the wishes of the testator, for instance, where anyone directs statues to be placed in a town, for if he did not do this for the purpose of honoring the town, but to perpetuate his own memory, no one will be entitled to bring an action on this ground. Therefore the testamentary disposition mentioned by Quintus Mucius, "Let my children reside where their mother may desire," creates no obligation, but merely has reference to compliance with the wishes of the deceased; so that the children may live where their mother may direct.

Nor must the will or the order of the testator always be observed; for example, if the Prætor should decide that it was not expedient for a minor to reside where his father ordered him to, on account of the bad character of persons with whom he directed them to associate, of which fact the father was ignorant. Where, however, ten aurei, payable annually, are left for their support, the legacy will be valid, whether this clause had reference to the parties with whom a mother might wish the children to reside, or whether we should understand by it that the children themselves were entitled to the legacy. The better opinion is, that the testator should be considered to have made this bequest in order to provide for his children.

And, in all cases where only the wishes of the testator are concerned, they must neither be always rejected nor always observed, but such matters must be determined by the judge, and carried into effect if they do not relate to anything dishonorable.

8. Gaius, On the Lex Julia et Papia, Book V.

Where a legacy payable annually is bequeathed, it resembles an usufruct, as it is terminated by the death of the legatee. It is not, however, terminated by the loss of civil rights, as is the case of an usufruct, which can be bequeathed as follows: "I bequeath to Titius the usufruct of such-and-such a tract of land, and every time that he loses his civil rights, I bequeath to him the same usufruct." The legacy is, in this respect, certainly more beneficial, because if the legatee should die at the beginning of any year, he leaves the legacy for that year to his heir.

This does not apply to an usufruct, for if the usufructuary should die at the time that the crops are ripe, but before they have been gathered, he will not leave them to his heir.

9. Papinianus, Opinions, Book VII.

A tract of land, which a testator desired to be hypothecated to secure legacies payable annually to his freedman, can be lawfully claimed by them on the ground of a trust, for the purpose of preserving the land. Paulus states that this rule also applies to other property belonging to an estate, to enable the legatee to be placed in possession of the same.

10. The Same, Opinions, Book VIII.

"I wish my faithful friend, Seius, to receive six aurei every year, and the house in which he lives, if he should be willing to take charge of the business affairs of my children, just as he has taken charge of mine."

It was held that the surviving daughter of the testator was, none the less, obliged to pay the annual legacy to Seius, in proportion to her share of the estate, because two of the three children of the testator had died, and other heirs had been appointed, as the labor as well as the money was susceptible of division.

(1) "I wish my physician, Sempronius, to receive the same that I have paid him during my lifetime." The sums held to have "been left by this bequest were certain annual payments made by the testatrix, so that, as far as her liberality was concerned, no doubt of her intention could arise.

(2) "I desire a hundred aurei to be paid to my wife in addition to what she received from me as an annual allowance during my lifetime." It is understood that the amount should be payable annually, and that the testator also left her a hundred aurei.

(3) "I wish to be given to my freedmen whatever I furnished them during my lifetime." Their lodging must be provided, but the heir will not be required to allow the steward the expense of beasts of burden, which his mistress was accustomed to grant him for his own convenience. Again, where the freedman is a physician, he cannot legally demand money which he was accustomed to receive from his mistress for the purchase of medicines to be administered to his patroness and her family.

11. Paulus, Questions, Book XXI.

It is established that where legacies are payable annually, they are multiple, and the right of the legatee to each bequest should be regularly investigated. Where the legacy is left to a slave, the capacity of his master to take it, should also be inquired into.

12. The Same, Opinions, Book XIII.

Gaius Seius devised to Mævius and Seia certain tracts of land in different localities, and provided as follows, "I wish three hundred thousand reeds to be furnished annually by the Potician to the Lutatian Estate, together with a thousand pounds of well-cleaned osier, also, every year."

I ask whether this legacy will be extinguished by the death of the legatee. Paulus answered that a servitude, either personal or real, does not seem to have been created in accordance with law; but that an action on the ground of a trust will lie in favor of the party to whom the Lutatian Estate was devised. Therefore, as the legacy was to be paid annually, it is considered to terminate with the death of the legatee.

13. Scævola, Opinions, Book IV.

Mævia appointed her grandson, who was born to Mævius and had reached the age of puberty, her heir, and made a bequest to Lucius Titius, as follows: "I desire ten aurei to be paid to Lucius Titius, a good man, to whom I am indebted for favors which he has done me, as long as he lives; if he should take charge of the business of my grandson, and conduct the administration of all his affairs."

I ask, if Lucius Titius had, at some time or other, transacted the business of Mævius, and the latter had objected to his doing so any longer, whether he would be obliged to execute the trust. I answered that, if Lucius Titius had been deprived of the right to transact the business of Mævius, not on account of any fraudulent act, and no other just reason had existed for rejecting his services, and he was willing to continue to conduct his affairs, he would be entitled to the legacy.

(1) A man, having appointed his wife his heir, provided as follows, in his will: "I wish twelve denarii to be paid every year by my heir to each of my freedmen for his support, if they do not abandon my wife." As the testator very seldom left the town, and his wife frequently did so, I ask whether the freedmen should accompany her on her journey. I answer that a positive opinion cannot be given on this point, as many things might arise which it would be well to take into consideration; and therefore a case of this kind should be submitted to the judgment of a good citizen.

It was also asked, as when the woman went on her journeys she never offered to pay anything additional to her freedmen, and for this reason they did not accompany her, whether they would be entitled to their legacies. The answer was that this should be determined by taking into account the length, or the shortness of the journeys, and the amount of the legacies.

14. Ulpianus, Trusts, Book II.

Mela says that if a legacy payable annually would be left to anyone without mentioning the amount, the bequest is void. The opinion of Nerva, however, is better, namely, that the testator is considered to have bequeathed what he was accustomed to give during his lifetime; but that, in every instance, the rank of the parties must be taken into consideration.

15. Valens, Trusts, Book VII.

Javolenus gave it as his opinion, with reference to an heir who having been charged to pay a certain sum of money after the lapse of ten years paid it before the expiration of the time, that, if it could be proved that the trust had been left for the said period to benefit the party entitled to it, because he could not take care of the property, and the heir paid him the money before the time, knowing that he would squander it, he will, under no circumstances, be released from liability. If, however, the time had been fixed on account of the heir, in order that he might profit by the delay, it is understood that he will be released; and, indeed, it may be said that he paid more than he should have done.

16. Paulus, On Neratius, Book III.

A slave was ordered to be free after the expiration of ten years, and a legacy was bequeathed to him payable annually from the day of his master's death. The legacy will be due for the years when he shall have begun to be free, and, in the meantime, the heir will be compelled to furnish him with subsistence.

17. Labeo, On the Last Epitomes of Javolenus, Book 11.

A legacy was bequeathed as follows, "Let my heir give to Attia fifty aurei until she marries." It was not stated that the money was to be paid annually. Labeo and Trebatius think that the entire sum is immediately due. It is, however, more equitable to hold that the legacy is payable annually.

(1) "Let my heir give to Attius, every year, two measures of Falernian wine which are to be taken from my estate." It was held that the two measures of wine should be furnished even for a year when no wine was made, provided they could be obtained from the vintage of former years.

18. Scævola, Digest, Book XIV.

A testator, having confirmed his codicil by his will, devised a tract of land to his freedmen, and forbade it to be alienated, but desired it to belong to the children and grandchildren of his freedmen. He afterwards added the following words: "I wish to be paid by them to my heir, out of the profits of said land, ten aurei every year, for the term of thirty-five years after my death." As the heir appointed by Titius died before the expiration of the term of thirty-five years, the question arose whether the heir of the heir would, by the words above quoted, be entitled to the benefit of the trust for the remainder of the time. I answered that he would, unless it could be proved by the freedmen that the testator had in view the thirty-fifth year of the heir as the time for the extinction of the legacy.

(1) A testator left to Stichus, whom he had brought up, a hundred aurei, and ten aurei payable every month in addition, and then, after appointing Sempronia heir to a third of his estate, charged her as follows: "I request you, Sempronia, my sister, to take from the bulk of my estate the legacies which I have left to my foster-children, and keep them until they are entitled to the same." The question was asked if Sempronia, who was charged with the trust, should refuse to accept the estate before having taken possession of the money left to the foster-children, in accordance with the will of the deceased, whether she would be liable to an action on account of the legacy brought by Stichus before he reached the age of twenty-five years? The answer was that such an action would lie.

19. The Same, Digest, Book XVII.

Titia, having appointed Seia her heir, bequeathed the usufruct of a certain tract of land to Mævius, and charged him with a trust as follows: "I request you, Mævius, to pay to Arrius Pamphilus and Arrius Stichus, out of the income of the Speratian Estate, six hundred aurei every year from the day of my death, as long as they live." The question arose if Mævius should pay the annual sum for their support, and, after his death, the land should revert to the heir of Titia by operation of law, whether the provision for support under the terms of the trust would be due to Pamphilus and Stichus. I answered that there was nothing in the case stated to compel payment by the heirs of Titia, as the usufructuary was only charged with it.

The question was also asked, whether payment of the legacy should be made by the heirs of the legatee, Mævius. The answer was that nothing was due from the heirs of the legatee, unless it should be clearly proved that the testator intended payment to be made after the extinction of the usufruct, provided the receipts from the usufruct were sufficient to continue it.

(1) A certain individual who had paid an annual sum to a learned man, named Marcus, inserted the following provision into his will: "My dear wife, I know that you will take care of my friends, and allow them to want for nothing, still, I wish eighty aurei to be given to Marcus." The question arose whether Marcus, having received the legacy of eighty aurei, could also claim the aforesaid annual payments? The answer was that there was nothing in the case stated why the annual payments concerning which advice was asked should not be made.

(2) "I bequeath to Lucius Titius three pounds of gold, which I was accustomed to give him during my lifetime." Inasmuch as the testatrix gave Titius every year forty aurei by way of annual salary, and a certain quantity of silver in addition, as a gift for festivals, or the value of the same, I ask whether the trust for the benefit of Titius must be executed by the heirs, or the money be paid as a legacy. The answer was that there was nothing in the case stated to prevent the money from being paid.

20. The Same, Digest, Book XVIII.

A testator bequeathed an annual pension under the following condition : "If they should reside with my mother, whom I have appointed heir to a portion of my estate." The question arose whether, after the death of the mother, the condition which was imposed would be considered to have failed, and for this reason neither food nor clothing should be given to the legatees. The answer was that, according to the facts stated, they should be given.

(1) Attius left a trust in the following terms, "I charge whoever shall be my heir to pay, after my death, out of the income of my apartment and my warehouse the sum of ten denarii to the priest, the sacristan, and the freedmen attached to the temple, on the festival day which I have established." I ask whether this legacy was only due to those who were living and in office at the time that it was bequeathed, or whether it should also be paid to those who succeed them. The answer was that, in accordance with the facts stated, although the officers had been mentioned, the legacy was bequeathed to the temple.

I also ask whether the ten aurei were only due for one year under the terms of the trust, or whether they should be paid in perpetuity. The answer was that they should be paid in perpetuity.

21. The Same, Digest, Book XXII.

A certain person left the following bequest to his freedman: "I desire the fiftieth of my entire income derived from the tenants of my lands and the purchasers of the crops, according to the custom of my household, to be paid to Philo, as long as he lives." The heirs sold the land from which the said fiftieth of the income was derived. The question arose whether the fiftieth of the interest on the price, which, according to the custom of the province, was ordinarily collected, was due? The answer was that, although the land had been sold, only the fiftieth of the income thereof was bequeathed.

(1) A testator charged his freedman, to whom he had left a tract of land that returned an income of sixty aurei a year, with the payment of ten denarii to Pamphila annually, under the terms of a trust. The question arose, if the Falcidian Law should diminish the legacy of the freedman, whether the annual allowance bequeathed to Pamphila under the trust would also be considered to be diminished; as the bequest to Pamphila was derived from income which would have to be paid, even if the Falcidian Law reduced the tract of land by half. The answer was that, in accordance with the facts stated, the bequest to Pamphila would not be diminished, unless the intention of the testator was proved to be otherwise.

(2) A certain testator having appointed his son heir to three-fourths of his estate, and his wife to one-fourth, charged his son to deliver his estate to his stepmother, and requested her "to take good care of his young son, and pay him ten aurei until he reached his twenty-fifth year, and, after he had attained that age, to transfer to him half of the estate." The son having deducted the fourth part of the estate to which he had been appointed heir, delivered her share to his stepmother, and afterwards reached the age of twenty-five years.

As the stepmother was entitled to the three-fourths, and one twenty-fourth, and one forty-eighth of the entire estate, the question arose whether she should surrender half of this share to her stepson? I answered that, according to the facts stated, she would have to deliver to him enough to make up half the estate; in addition to what the son had deducted by reason of the Falcidian Law.

Since the father seemed to have had in view the tender age of his son, inquiry was also made whether the stepmother would be required to deliver to him the profits for the intermediate time. The answer was that, in accordance with the facts stated, she would be required to do so.

(3) Lucius Titius, by his will, bequeathed a hundred aurei to the city of Sebasta, his birthplace, in order that athletic contests might be celebrated there every other year in his name, with the interest of said sum, and added the following words: "If the city of Sebasta is unwilling to accept the money which I have bequeathed under the above-mentioned condition, I desire that my heirs shall, under no circumstances, be liable for the same, but that they keep it for themselves." The Governor of the province afterwards selected certain good notes from the assets of the estate, and delivered them to the city as its legacy, and, after his decision, the city collected the money due on most of the claims.

The question arose, if the city should not subsequently comply with the conditions of the will, whether the legacy would belong to the sons who were the heirs of the deceased. I answered that the city could be compelled to obey the wishes of the testator, and if it did not do so, the heirs could demand the amounts which had been settled by the debtors either in cash or by renewal, and so far as those claims which were not paid to the city, and of which the former obligation was not released by renewal were concerned, the heirs were not prevented from demanding from the debtors what they owed.

(4) Largius Euripianus rendered an opinion, after his advice had been requested in a case where a patron had left a certain sum of money to his foster-child, and afterwards made the following provision with reference to it in his will: "I wish the money which I have bequeathed to my freedman and foster-child, Titius, to remain in the hands of Publius Mævius, until he reaches the age of twenty-five years, and that, for the use of the same, interest shall be collected at the rate of three per cent. As for the amount of the expenses to be paid to him, Publius Mævius will estimate them, for he should entertain for him the affection of a father."

The question arose whether the heirs, when they paid Publius Mævius the money, should require him to give security. The answer was since no mention of security being required was made in the will, the heirs would be sufficiently safe if they paid the money to Publius Mævius, in accordance with the wishes of the deceased. Therefore neither Titius, the foster-child, nor his heirs should be heard, if they brought an action against the heirs of the patron on the ground that they did not exact security for, by the payment of the money; and the above-mentioned heirs will be released from liability to Titius, as well as to his heirs, unless Publius Mævius should cease to be solvent during the lifetime of the testator, for, in this case, security must be required of him.

(5) A father appointed his two sons his heirs to equal portions of his estate, an older one, and a younger who was still under the age of puberty, and he left to the latter certain lands as his share, and also bequeathed him a certain sum of money payable when he reached the age of fourteen years, which he placed in the hands of his brother, as trustee, in the following words: "I charge you, Seius, to give to your mother a certain sum of money annually, to enable your brother to pursue his studies from his twelfth to his fourteenth year, and, in addition to this, to pay the taxes assessed against him until you deliver him the property; and I desire that the income of said lands shall belong to you, until your brother reaches the age of fourteen years."

The elder brother having died and left a foreign heir, the question arises whether the condition of receiving the income every year, as well as the charge of paying the annual allowance which, if Seius had lived, he would have been compelled to pay, will be transmitted to his heir; or whether the entire amount of the legacy must be immediately delivered to the minor and his guardians. The answer was that, according to the facts stated, the testator is understood to have, as it were, addressed the guardian, so that, at the expiration of the guardianship, the allowance which he had ordered to be paid, and the income which was to be collected, should terminate; but as the elder brother was overtaken by death, everything that had been left by the testator would, at the time when his brother died, immediately pass to the minor and his guardians.

22. Alfenus Verus, Epitomes of the Digest by Paulus, Book II.

"Let my heir pay a hundred aurei annually to my daughter every time that she becomes a widow." The question arose, if the daughter should become a widow in less than a year, whether she would be entitled to less than a hundred aurei. The answer was that, although the entire year had not yet elapsed, the whole amount would be due to her.

23. Marciamis, Institutes, Book VI.

When a certain man desired a distribution of his estate to be made to the Decurions on his birthday, the Divine Severus and Antoninus stated in a Rescript, that it was not probable that the testator had in his mind payment during only one year, but intended to leave a legacy in perpetuity.

24. The Same, Institutes, Book VIII.

Where a certain sum of money, for instance, a hundred aurei, was left to the city of Sardis for the purpose of celebrating games in honor of Apollo in four years, the Divine Severus and Antoninus stated in a Rescript that the testator appeared to have left a perpetual income, due every four years, and not merely a gross sum for payment at the end of the first term of four years.

25. Valens, Trusts, Book II.

Ten aurei can be left to be paid annually to a son under paternal control, as long as he is in the power of his father.

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TITLE II. CONCERNING USE, USUFRUCT, INCOME, LODGING, AND SERVICES LEFT BY LEGACIES OR TRUSTS.

1. Paulus, On Sabinus, Book III.

Neither the use nor the usufruct of the right to traverse a path, a drive-way or a road, or to convey water by means of an aqueduct, can be left by will, because the servitude of a servitude cannot exist. Nor can such a bequest be rendered legal under the Decree of the Senate by which it is provided that the usufruct of everything included in property may be bequeathed, for the reason that this is neither included in property or excluded from it, but an action for an indeterminate amount will lie against the heir, and in favor of the legatee, as long as he lives, in order to compel the former to permit him to walk, ride, or drive through the property or the servitude may be granted, if security is furnished to return it in case the legatee should die, or forfeit his civil rights for some serious offence.

2. Papinianus, Questions, Book XVII.

Where the services of a slave are bequeathed, they are not lost by forfeiture of civil rights, or by non-user; and, as the legatee can profit by the labors of the slave, he can also lease them. If the heir should prevent him from making use of his services, he will be liable. The same rule applies where the slave leases himself. And, for the reason that the legatee is not considered an usufructuary, he will transmit the legacy of the slave's services to his heir, but where the title to the slave is obtained by usucaption the legacy will be extinguished.

3. Paulus, On Sabinus, Book III.

The services of a freeman can also be bequeathed, just as he can be hired under a contract, or be made the subject of a stipulation.

4. Ulpianus, On Sabinus, Book XVIII.

Where the ownership of land is left absolutely, it will pass to the legatee, even though the usufructuary may be appointed heir.

5. Paulus, On Sabinus, Book XVIII.

If I promise the enjoyment of an usufruct "at the time of my death," the disposition will be void; and the same rule applies to a legacy, for when an usufruct is created, it is usual for it to be extinguished by death.

6. Pomponius, On Sabinus, Book XV.

If an usufruct should be bequeathed to me to be enjoyed for two years after the death of the testator, and, I am prevented from enjoying it through the fault of the heir, he will still be liable after the two years have elapsed; just as anyone will be liable where property due under a legacy is destroyed, and he was in default in delivering the same.

Hence this usufruct cannot be claimed, because it is different from the one which was bequeathed, but its value for two years should be computed, and paid to the usufructuary.

7. Ulpianus, On the Edict, Book XXVI.

Where services were left by will, when should they begin to be available, from the day when the legatee demands them, or from the time when the estate is entered upon? And who must bear the loss while the slave is ill ? I think that the services are due from the time when they are demanded, and therefore if the slave should begin to be sick after that date, the loss must be borne by the legatee.

8. Gaius, On the Edict of the Prætor Concerning Legacies, Book III.

Where an usufruct is bequeathed to a municipality, the question arises how long it shall be entitled to the same, for if anyone should say that it was entitled to it in perpetuity, the mere ownership, if the usufruct should be perpetually separated from it, would be worthless; hence it is established that the municipality can hold it for a hundred years, which is the longest term of life.

9. Ulpianus, Disputations, Book VIII.

If anyone to whom an usufruct has been bequeathed is charged with a trust, and the usufruct should not come into the hands of the legatee, the heir in whom the said usufruct remains, must execute the trust. This rule also applies to a military will, if the legatee charged with the trust should reject the legacy, or should die during the lifetime of the testator.

10. Julianus, Digest, Book LXX.

If a tract of land and the usufruct of the same should be left to Titius, he will have the right to claim either the land or the usufruct; and if he selects the land, he will necessarily be entitled to the full ownership of the same, even though he has rejected the usufruct. Where, however, he prefers to have the usufruct, and rejects the ownership of the land, he will only be entitled to the usufruct.

11. The Same, On Minicius, Book I.

It is established that the legacy of an annual lodging is due from the beginning of each year.

12. Alfenus Verus, Epitomes of the Digest by Paulus, Book II.

An heir built a country-house on land, the usufruct of which had been bequeathed. He cannot demolish the building without the consent of the usufructuary, any more than he can remove a tree from the land which he had planted there; but if he should demolish the house before the usufructuary forbids him, he can do so with impunity.

13. Paulus, On Plautius, Book XIII.

Where an usufruct is left to be enjoyed for alternate years, not only one, but several legacies are bequeathed. The case is different, however, where a servitude to conduct water and use a right of way is left; for the servitude of a right of way is distinct, since by its nature it is subject to interruption.

14. Celsus, Digest, Book XVIII.

Where an heir was charged to permit two persons to separately enjoy the usufruct of a tract of land, and he suffered them to enjoy it in common, the question arose whether, under the terms of the will, he would be liable to both. I held that he would be liable, if the testator had intended that each should enjoy the entire usufruct individually; for, in this instance, he would be required to deliver the entire legacy to each one of them. Therefore, if the heir should permit one of the legatees to use part of the usufruct, he could not permit the other to use the same part. Hence, he would be compelled to give to each of them the appraised value of that of which he was deprived.

15. Marcellus, Digest, Book XIII.

"Let my heir be charged to permit Titius to reside in such-and-such a house, as long as he lives." This is held to be a single legacy.

(1) Where a testator had two tracts of land, and devised one of them, and then conveyed it to one person and the usufruct of it to another, I ask, if the usufructuary did not have access to the said land by any other way than through the tract which had been devised, whether the servitude would be due to him. The answer that the rule was the same as if the land had belonged to an estate through which a right of way could be granted to the usufructuary, and, according to the will of the deceased, it appeared that this was required from the heir; for in this instance, the legatee would not be permitted to claim the land, unless he had first granted the right of way through it to the usufructuary, in order that the same condition which was obtained during the lifetime of the testator might be preserved either as long as the usufruct continued to exist, or until it was reunited with the land.

16. Modestinus, Opinions, Book IX.

A legacy was bequeathed to a town, so that from its income an exhibition might be given there every year for the purpose of preserving the memory of the deceased. It was not lawful for the exhibition to take place there, and I ask what opinion should be given with reference to the legacy. Modestinus answered that, as the testator intended the spectacle to be exhibited in the town, but it was of such a character that this could not be done, it would be unjust for the heir to profit by such a large sum of money as the deceased had destined for this purpose. Therefore, the heirs as well as the first citizens of the place should be called together in order to determine how the trust could be changed so that the memory of the testator might be celebrated in another and a lawful manner.

17. Scævola, Opinions, Book III.

A man left certain lands to a town, and desired the income of the same to be devoted to the celebration of public games every year, and added the following: "I request the Decurions, and I desire that they shall not change the character of the legacy, or employ it for any other use." The town did not celebrate the games for the period of four continuous years. I ask whether the income which it obtained during the said four years should be refunded to the heir, or whether it should be set off against a legacy of another kind bequeathed by the same will. The answer was that if possession of the land had been taken contrary to the will of the heirs, any profits which had been acquired must be given up, and compensation should be made for what was not expended in accordance with the will of the deceased by the surrender of any other property which was due.

18. Modestinus, Opinions, Book IX.

A testator, who had several freedmen, said in his will that he left lodging to those whom he designated in a codicil. As he did not afterwards designate anyone, I ask whether all of them would be admitted to share in the legacy. The answer was that, since the patron promised to designate certain of his freedmen, and did not afterwards designate any, the legacy with reference to the lodging was held to be imperfect, as there was no one in existence to whom it could be understood that it was given.

19. The Same, Concerning Inventions.

If a testator should leave a tract of land to one person, and the usufruct of the same to another; and he did this on purpose in order that the former should only have the mere ownership, he committed an error, for he ought to have left the ownership of the property, with the reservation of the usufruct, as follows, "I devise such-and-such a tract of land to Titius, with the reservation of the usufruct;" or "Let my heir give the usufruct of said land to Seius;" as unless he expressed himself in this way the usufruct will be shared between them, for the reason that sometimes what is written is of more effect than what is intended.

20. Pomponius, On Quintus Mucius, Book VIII.

If I order a slave to be free under a certain condition, and bequeath to you the usufruct in said slave, the legacy will be valid.

21. Paulus, On the Lex Julia et Papia, Book VII.

"I bequeath to Titius the usufruct of Stichus," or, "if a ship should come from Asia, I bequeath the sum of ten aurei". The legatee cannot demand the usufruct before the condition relating to the ten aurei is fulfilled, or has failed, in order that the heir may not be deprived of the power of giving whichever he chooses.

22. Ulpianus, On the Lex Julia et Papia, Book XV.

"I desire the income of my estate to be paid every year to my wife." Aristo gives as his opinion that this legacy will not pass to the heir of the wife, because it resembles either an usufruct, or a legacy to be paid annually.

23. Julius Mauricianus, On the Lex Julia et Papia, Book II.

A testator is allowed to repeat the legacy of an usufruct, so that it may be payable after the forfeiture of civil rights. This the Emperor Antoninus recently stated in a Rescript, for under such circumstances there is only ground for the application of this decision where a legacy is left to be paid annually.

24. Papinianus, Opinions, Book VII.

Where a legacy of the usufruct of property is bequeathed to a wife, ' the principal, as well as the interest which the deceased loaned, must be paid after security has been furnished in accordance with the terms of the Decree of the Senate. Therefore, it will be necessary for the interest of the notes which formed part of the assets of the estate, and were due before security was given, to be deducted from the bond.

The same rule, however, will not be observed where the money was loaned on the notes by the heir himself; for in this case, only the principal must be paid to the legatee, or whatever interest is found to be due on account of default of payment, and with reference to which no security will be required.

(1) "I wish my slave, Scorpus, to serve my concubine Sempronia." In this instance, not the ownership, but the usufruct of the slave is held to have been bequeathed.

25. The Same, Opinions, Book VIII.

A testator left his wife the usufruct of certain lands, and desired that after his death the said lands with their revenues should revert to his heirs; and by doing so he committed an error. The owner did not create a trust in favor of the heirs, either with reference to the ownership or the usufruct of the property, for the future revenues, and not those of time which had passed, seemed to have been referred to.

26. Paulus, Questions, Book X.

Sempronius Attilus charged his heir after the expiration of ten years to give to Gaius his tract of land in Italy, with the reservation of the usufruct. I ask, if the heir should die before the ten years have elapsed whether, after that time, the entire tract of land will belong to the legatee. I am convinced that the time of this legacy, or that of the execution of the trust has arrived, and for this reason that it should belong to the heir of the legatee. Therefore, since the legacy was already due at the time of the death of the heir, the usufruct is extinguished and cannot belong to the successor of the latter. I gave it as my opinion that if the heir should be requested or ordered to deliver certain property, the time for the execution of the trust or for the delivery of the legacy will be when the testator dies, but the usufruct will not belong to the heir until he delivers the ownership after reserving the usufruct. Hence the usufruct cannot be lost by the forfeiture of civil rights, or the death of the heir, for the reason that he does not yet possess it.

The same thing takes place where the ownership of property is bequeathed under a certain condition, after the reservation of the usufruct, and the heir dies before the condition has been fulfilled; for then the usufruct, which terminates with his life, begins to vest in the heir of the heir.

In these instances, however, the intention of the testator must be ascertained, that is if he, at the time of reserving the usufruct, had someone in his mind who was to be joined with his heir, so that, at the death of the former, he intended the entire ownership to belong to the legatee; because no more could be transmitted to his successor, who had not yet acquired the usufruct, than if he had already begun to enjoy it.

(1) Where a tract of land is devised to two persons, and the usufruct is left to another, they all three of them do not enjoy the usufruct in common, if it is divided into two parts. On the other hand, the same rule will apply where there are two usufructuaries, and the ownership of the property is left to a third party. The right of accrual only exists between them.

27. Scævola, Opinions, Book I.

A husband left to his wife the usufruct of certain lands and other property and her dowry under a trust. The heirs delivered to her the usufruct in the land. Two years afterwards the marriage was declared to be null and void. The question arose whether what she had collected during that time could be recovered from her. I answered that what she had collected by way of profit could be recovered.

28. Paulus, Opinions, Book XIII.

I ask, where the usufruct of land is left and the said land becomes subject to temporary taxes, what will be the law in this case? Paulus answered that it would be the same in this instance as where ordinary taxes are imposed; and therefore that this burden must be sustained by the usufructuary.

29. Gaius, Trusts, Book I.

When anyone is requested to transfer to another an usufruct which was left to himself, and he has united it to the land for the purpose of enjoying the same; although the usufruct may be extinguished by operation of law, at the death, or by the forfeiture of civil rights by the legatee who acquired it under this title, the Prætor, nevertheless, should exert his authority in order that the right may be preserved if it was left to him under a trust, just as if it had been bequeathed as a legacy.

30. Javolenus, On the Last Works of Labeo, Book II.

Where an usufruct is bequeathed to a woman until her dowry has been entirely paid, and one of the heirs gives her security for his share of the estate but the others do not; Labeo says that the woman will cease to enjoy the usufruct to the extent of said share. The same will take place where the woman is in default in accepting the security.

(1) An owner left to his tenant the usufruct of certain land which he cultivated. The tenant will have a right of action against the heir, in order that the judge may compel the latter to release him from liability under his contract.

31. Labeo, On the Last Epitomes of Javolenas, Book II.

Where anyone has a tract of land in common with you, and leaves the usufruct of said land to his wife, and, after his death, his heir applies to the court for partition of the land; Blæsus says that it was held by Trebatius that, if the judge should divide the land into different portions, the usufruct of the part allotted to you would not, under any circumstances, be due to the woman, but she would be entitled to the usufruct of the entire share assigned to the heir. I think this opinion is incorrect, for if, before the judgment was rendered, the woman was entitled to the usufruct of the undivided half of the entire tract of land, the judge could not, in deciding between the parties, prejudice the rights of the third. This last decision is the one adopted.

32. Scævola, Digest, Book XV.

A certain man having stated his intentions in general terms, added the following in his will: "I bequeath to Felix, whom I have directed to be free, the usufruct of the Vestigian Estate, as I think that he will be entitled to the property if he does not enter into a contest with my heir, but remains on good terms with him. I ask my heir to act in such a way that he and Felix may continue to be friends, for this will be of advantage to both of them." The question arose whether Felix could during the lifetime of the heir exact the ownership of the land. The answer was that there was nothing in the facts stated which showed that the ownership of the land was left to Felix.

(1) A testatrix appointed her children by Seius, and her daughter by another husband, her heirs to equal shares of her estate, and made the following bequest to her mother: "I desire that the usufruct of my property be given to Ælia Dorcas, my mother, as long as she lives, and that, at her death, it shall go to my children, or to the survivor of them." The children of Seius died after entering upon the estate, and after the death of the mother, who was survived by the daughter of the testatrix, the question arose whether the usufruct would belong entirely to the daughter, or only in proportion to her share of the estate. The answer was that it would revert to those in whom the ownership of the land was vested.

Claudius: Scævola believed that after the death of their grandmother, the usufruct itself would revert to the children in proportion to their shares of the estate, especially because they were appointed heirs to equal portions of the same.

(2) Where a husband left to his wife the usufruct of his houses and everything contained therein, except the silver plate, and, in addition, that of his lands and salt-pits; the question arose whether the usufruct of wools of different colors which were intended for commerce, as well as of the purple which was in the houses, were also due to the wife. The answer was that, with the exception of the silver plate and the articles which would be classed as merchandise, the legatee would be entitled to the usufruct of all the other property.

(3) It was also asked, as a considerable amount of salt had been found in the salt-pits, the usufruct of which was bequeathed, whether it also would belong to the wife, under the terms of the trust. The answer was that the testator had not intended to bequeath any property which was for the purpose of sale.

(4) The question was also asked, if the testator should have made the following provision in the same will, namely, "I ask you, my wife, to be content with the sum of four hundred aurei a year, which I desire you to receive for the term of fifteen years, out of the usufruct, and that you pay to my heirs anything in excess of said sum which may be derived from the said usufruct," whether it should not be held that the testator had changed his mind with reference to the former bequest, and therefore that the wife would not be entitled to more than four hundred aurei a year out of the usufruct. The answer was that the inquiry was clearly explained by the words which were quoted.

(5) Lucius Titius, by his will, left the Tusculan Estate to Publius Mævius, and charged him to give half of the usufruct of the same to Titia. Publius Mævius rebuilt an old country-house which had fallen into decay through age, and which was required for the collection and preservation of the crops.

I ask whether Titia should contribute to the payment of the expense of this, in proportion to her share of the usufruct. The answer was that if the legatee had rebuilt the house before he delivered the legacy of the usufruct to Titia, he could not be compelled to deliver it until she had paid her share of the expense.

(6) A man appointed his two daughters and his son, who was not of sound mind, his heirs, and bequeathed the usufruct of the share of his imbecile son to one of his daughters, in the following terms: "In addition to this, let Publia Clementiana take, by way of preferred legacy, the usufruct of the fourth part of my estate, to which I have appointed my son, Julius Justus, my heir; and I ask you, Publia Clementiana, in consideration of the usufruct of his share which I have bequeathed to you, to support and take care of him until he becomes of sound mind and recovers."

As the son continued in the same condition until the time of his death, the question arose whether the usufruct would be extinguished. The answer was that, according to the case stated, the legacy would continue to exist, unless it was clearly proved that the testator intended otherwise.

(7) A testatrix charged her appointed heir to pay ten aurei to her son every year, or to purchase land which would return a revenue of ten aurei annually, and assign the usufruct of the same to him; and the son, having received the land from the heir, rented it in compliance with the will of his mother. After his death the question arose, whether the amount remaining due from the tenants would belong to the heir of the son, who was the usufructuary, or to the heir of Seia, the testatrix? The answer was that there was nothing in the case stated which would prevent the balance of the rent from belonging to the heir of Seia.

(8) A certain man left the usufruct of a third part of his estate to one of his heirs, and the question arose whether the third of the money to which the property, after having been divided, amounted to according to the appraisement, should be paid to the usufructuary. The answer was that the heir had the choice of delivering either the usufruct of the property itself, or that of the appraised valuation of the same.

(9) It was also asked whether the taxes, in addition to what was due and required to be paid on the land or personal property might be deducted from the amount, so that payment would only be made of the remainder, if the heir should prefer to do this? The answer was that the third of the remaining sum could be paid.

33. The Same, Digest, Book XVII.

"I desire that there should be given to Sempronius what I was accustomed to give him during my lifetime." Sempronius lived in the testator's house, which was bequeathed to one of the heirs as a preferred legacy.

The question arose whether he was also entitled to his lodging therein. The answer was that there was nothing in the case stated to prevent him from being entitled to it.

(1) The question arose with reference to the following words of a will: "I desire to be given to those of my freedmen, to whom I have left nothing, what I was accustomed to give them during my lifetime." The question arose whether lodging was intended to be left to those freedmen who lived with their patron until the time of his death? The answer was that it appeared to have been left to them.

(2) A testatrix inserted in a codicil: "I ask you to permit Nigidius, Titius, and Dion, my old and infirm freedmen, to pass their lives where they now are." I ask whether the above-mentioned freedmen will, under the terms of the trust, be entitled to receive the profits of the land on which they reside; inasmuch as they have obtained, without controversy, other legacies which were bequeathed to them. The answer was that, according to the case stated, the charge was that the heirs should permit them to remain where they were, in the same way as she herself had allowed them to do.

34. The Same, Digest, Book XVIII.

A man inserted a trust in his codicil in the following terms: "I desire that there shall be given to the men and women whom I have enfranchised by my codicil the tract of land where I have expressed my wish to be buried; and that, when one of them dies, his share may accrue to the remainder; so that, at last, it will all belong to the survivor, and I desire that, after the death of the survivor, the property shall go to the City of Aries. Moreover, I leave lodgings in my house to my freedmen and freedwomen as long as they may live. Pactia and Trophina shall occupy all the rooms which I was accustomed to use, and when they die I wish the house to belong to the said city." The question arose whether the heirs of the freedmen were charged with the trust for the benefit of the city? The answer was that, according to the facts stated, the words might be held to mean that the last survivor of the legatees appeared to be charged with the trust.

It was also asked, after certain of the freedmen to whom a lodging was left had died whether those parts of the house in which they dwelt would immediately belong to the city. The answer was that, as long as any of the freedmen lived, the trust would not be due to the city.

(1) A certain party who had appointed Sempronia heir to a tenth of his estate, Mævia to another tenth, and a foster-child to the remainder of the same, appointed a curator for the latter, thinking that he had a right to do so by law, and charged the curator not to suffer the land to be sold, and to permit his foster-child to enjoy the income of the property with Sempronia and Mævia, his nurses; and, at the end of his will, he added, "I charge all my heirs with the execution of this, my testament."

The question arose whether the nurses could claim the third part of the usufruct of the land under the terms of the trust, even though the curator, whom the testator could not legally appoint for his foster-child, had been charged with the execution of the same. The answer was that, in accordance with the facts stated, the testator had properly legally intimated his wishes by the creation of the trust, and therefore the nurses could enjoy the income of the land, along with his foster-child, in accordance to what he had given to each one of them.

35. The Same, Digest, Book XXII.

A man left to his wife the usufruct of his country-house for the term of five years after his death, then he added the following words, "After the said term of five years has elapsed, and the usufruct is extinguished, I wish the said land to belong to So-and-So and So-and-So, my freedmen."

The wife having died within the five years, the question arose whether the said freedmen were entitled to claim the ownership of the property immediately, or after the expiration of the five years, because the testator had left it at the expiration of that time. The answer was that the land would belong to the freedmen after the expiration of the five years.

36. The Same, Digest, Book XXV.

The usufruct of a tract of land was left to Stichus, who was manumitted by the will, and after he had ceased to enjoy it, the testator left it to his heirs in trust, to be delivered to Lucius Titius. Stichus, however, by his will, left the ownership of said land to his grandchildren, and the heirs of Stichus, in accordance with the terms of his will, transferred the said land to his grandchildren, who were his legatees.

The said grandchildren, not being aware of the condition under which the land was devised by the former will, and having possessed it for a longer time than that provided by law to give title by prescription, the question arose whether they acquired the ownership of the land for themselves. The answer was that, in accordance with the facts stated, the legatees had acquired it.

(1) It was also asked, if, in any event, the legatees should be deprived of the land, whether an action in favor of the grandsons would lie for the recovery of the same against the heirs of Stichus. The answer was that, according to the opinion previously rendered where the property for some reason had not been acquired, if Stichus had made a will after the death of those to whom it was left, he would have been held to have intended to bequeath something which he thought belonged to him, rather than to have burdened his heirs.

37. The Same, Digest, Book XXXIII.

"I give to my wife the usufruct of my estate until my daughter arrives at the age of eighteen years." The question arose whether the wife should be entitled to the usufruct of both the land in the country and in the city, as well as to that of the slaves, the furniture, and the funds belonging to the estate. The answer was that, in accordance with the facts stated, she would be entitled to the usufruct of everything.

38. The Same, Opinions, Book III.

"I wish the income of the Æbutian Estate to be paid to my wife as long as she lives." I ask whether the guardian of the heir can sell the land and tender to the legatee, annually a sum equal to that which the testator was, during his lifetime, accustomed to obtain from the lease of the property in question? The answer was that he can do so.

I also ask whether the legatee can with impunity be prevented from living on the said land. The answer was that the heir is not required to furnish him lodging.

I also ask whether the heir can be compelled to make repairs on the land. The answer was that if, through the acts of the heir, the income has been reduced, the legatee can lawfully claim the amount of the diminution.

I also ask in what way a legacy of this kind differs from an usufruct. The answer was that the difference can be ascertained from the opinions previously given.

39. The Same, Opinions, Book IX.

A certain man appointed his sons his heirs, and bequeathed to his wife her clothing, her jewels, wool, flax and other articles, and added: "I wish the ownership of the articles above mentioned to pass to my daughters, or to any of them who may survive." The question arose whether the usufruct, or the ownership of said property was bequeathed. The answer was that the ownership seemed to have been bequeathed.

40. Alfenus Verus, Epitomes of the Digest of Paulus, Book VIII.

"I bequeath lodging for So-and-So along with So-and-So." This is just the same as if the testator had left it "To So-and-So and So-and-So."

41. Javolenus, On the Last Works of Labeo, Book II.

When a bequest is made as follows, "I give and bequeath to Publius Mævius all the annual crops of the Cornelian Estate," Labeo thinks this should be understood to be the same as if the usufruct of the land had been left, because this seems to have been the intention of the testator.

42. The Same, On the Last Works of Labeo, Book V.

Among the crops of land is understood to be included everything which can be used by a man. For it is not necessary in this place to consider the time when they naturally mature, but the time when it is most advantageous for the tenant or the owner to gather them. Therefore, as olives which are not ripe are more valuable than they are after maturity, it cannot be held that they did not form part of the crops, where they are gathered before they are ripe.

43. Venuleius, Actions, Book X.

It makes no difference whether the testator bequeaths the usufruct of the third part of property, or the usufruct of the third part of certain property, for where the usufruct of property in general is left, the debts are deducted from it, and any accounts which may be due are credited. Where the usufruct of certain property is bequeathed, the same rule is not observed.

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TITLE III. CONCERNING THE LEGACY OF SERVITUDES.

1. Julianus, On Minicius, Book I.

A testator who had two adjoining shops left them to different persons. If either one of the buildings projected over the other, the question might arise whether the one underneath would be obliged to pay the expense of keeping up the other. I was of the opinion that the servitude appeared to be imposed, and Julianus says with reference to this: "Let us see whether this is only true where the servitude has been expressly imposed, or where the legacy was granted as follows: "I give and bequeath my shop in the condition in which it is at present."

2. Marcellus, Digest, Book XIII.

A right of way can be bequeathed to persons holding a tract of land in common, just as a slave held in joint ownership can legally stipulate for a right of way, and the stipulation will not be annulled where two heirs are left by him who stipulated for the right of way.

3. The Same, Digest, Book XXIX.

If anyone should devise a tract of land to Mævius, and a right of way to give access to the same through other land, and then should leave the same tract of land to Titius without the right of way, and both of them should claim the land; the latter should be delivered without the right of way, because a servitude cannot be partially acquired. If, however, Mævius should be the first to claim the land, while the other is deliberating as to whether or not he will accept it, if Titius should afterwards reject the estate, it may be doubted whether the right of way which was bequeathed will continue to exist. This has been held to be the better opinion.

But if anyone should devise a tract of land under some condition, and the right of way absolutely; or a part of the land absolutely, and a part of the same under a condition, and the right of way absolutely; and the devise should become due before the condition was fulfilled, the bequest of the right of way will be annulled.

The rule is the same where two neighbors of the testator owned a tract of land in common, and he left a right of way to one of them conditionally, and to the other absolutely, and before the condition was fulfilled he died; and this is the case because one of the legatees prevents the other from claiming the entire premises together with a right of way.

4. Javolenus, Epistles, Book IX.

Where a man who had two houses left one of them to me and the other to you, and there was a party-wall which separated the buildings, I think that the said wall will belong to us in common, just as if it had been left to us both jointly, and therefore neither you nor I will have any right to prevent the other from inserting a beam into said wall; for it has been established that whenever a joint-owner holds any property he is entitled to all the rights appurtenant to the same. Therefore, in a case of this kind an arbiter must be appointed for the purpose of dividing the common property, if this should become necessary.

5. Papinianus, Questions, Book XVI.

Although the execution of a will for the benefit of the slaves of others especially depends for its validity upon the testamentary capacity of their masters, still, any bequests made to slaves are just as valid as when left to persons who are free. Hence a right of way to obtain access to the land of his master, cannot legally be bequeathed to a slave.

6. The Same, Opinions, Book VII.

A father left a house to his daughter, and gave her access to it through other buildings belonging to the estate. If the daughter resides in the house, the right of access will also be granted to her husband; otherwise, it will not be considered as granted to her.

If, however, anyone should assert that this right is not merely a personal privilege, but a complete bequest of a servitude, then the right can only be transmitted to the heir. But, in this instance, such a conclusion can, under no circumstances, be admitted, lest what was granted through affection for his daughter might seem to be transmitted to foreign heirs.

7. Paulus, Questions, Book XXI.

Where several appointed heirs are charged with a right of way, each of them can be sued for the entire right, because the servitude cannot be divided, for each can claim his legacy, even where only one of the heirs enters upon the estate.

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TITLE IV. CONCERNING THE PREFERRED LEGACY OF A DOWRY.

1. Ulpianus, On Sabinus, Book XIX.

Where a dowry is bequeathed, it is certain that everything is included in it which is embraced in the dotal action.

(1) Therefore, where an agreement has been made between husband and wife, that, if the marriage should be dissolved by the death of the husband, and a son should be born, the dowry shall remain in the hands of the heir of the husband, and the latter, at his death, shall bequeath the dowry, the agreement will not stand, because the dowry was bequeathed. It should, however, be executed if the dowry was not bequeathed; for the established rule that the condition of the dowry cannot become worse through the intervention of children becomes applicable whenever the woman dies during marriage, or a divorce takes place.

(2) It is true that there is the advantage of payment where a dowry is bequeathed, as otherwise it would only be payable annually.

(3) There is also the advantage that, according to the Decree of the Senate, no demand can be made for property donated, provided the testator did not change his mind.

(4) Moreover, expenses which have been incurred diminish the dowry to that extent by operation of law, and what we have said concerning this does not refer to separate articles, but to the entire dowry.

(5) The bequest of a dowry includes also the dotal action, so that if the husband, while living, restored it to his wife, as is permitted in certain cases, the legacy will be annulled.

(6) But if slaves, whose value had not been appraised, should be included in the dowry, and they should be dead, the legacy of the dowry, so far as they are concerned, will be void.

(7) If the wife promised a dowry, but did not give it, and the husband, at his death, should leave it as a preferred legacy to his wife; she will be entitled to nothing more than a release from liability. For if anyone should make a bequest as follows: "I bequeath a hundred aurei, which I have in my chest," or "Which So-and-So has deposited with me;" and there should be no such sum, it is established that nothing will be due, because the property in question was not in existence.

(8) If anyone should bequeath the Titian Estate to his wife, as follows, "Since the said land has come into my hands through her"; the land will undoubtedly be due; for where anything is added for the purpose of pointing out something which has already been designated, it is superfluous.

(9) Celsus in the Twentieth Book of the Digest says that if a father-in-law bequeaths her dowry to his daughter-in-law, and he intends to leave a right of action with reference to the dowry, the legacy will be of no force or effect, as she is already married; but if he wished her to receive the money which she brought as dowry, he says that the legacy will be valid. When, however, she has received her dowry, the husband will, nevertheless, have the right to claim it by means of a prætorian action, whether an heir has been appointed in a suit for partition, or not.

I think that, as the father-in-law did not intend his heir to pay the dowry twice, if the woman should bring an action under the will, she should furnish him security to defend the heir against the husband. Therefore, the husband also should furnish security to defend him against his wife, if he should be the first to institute proceedings.

(10) On the other hand, it is stated by Julianus in the Thirty-seventh Book, that if a father-in-law should bequeath the dowry of his daughter-in-law to his disinherited son, while she cannot bring the dotal action against her disinherited husband, he himself can claim the dowry, on the ground of a legacy; but he cannot obtain it unless he furnishes security to defend the heir against the woman. He makes this difference between the person to whom the dowry is bequeathed, and a freedman liberated by the will, and to whom his peculium was bequeathed; for he says that the heir cannot be sued on account of the peculium for the reason that it is no longer in his possession, but the dotal action can, nevertheless, be brought against him, even though he has ceased to have control of the dowry.

(11) Julianus also asks, where the father-in-law bequeathed the dowry to the husband, and it has been paid to the wife, whether the legacy of the husband will be extinguished. He says that it will be extinguished, because there is nothing more which the heir can pay to the husband.

(12) He also asks, in case the dowry should be bequeathed to someone else who is charged to return it to the woman, whether the Falcidian Law will apply to the legacy. He says that it will apply, but that she can by the dotal action recover any deficiency which the trust may have suffered on this account. I ask whether the benefit of payment should be taken into consideration in this legacy, as if the dowry had been paid directly to the wife herself. I think that this ought to be done.

(13) Julianus also asks, if a dowry is bequeathed to a wife, and she is asked to pay it to another, whether the Falcidian Law will apply, and he says that it will not, as the trust is invalid. He thinks, however, that where anything, in addition, is bequeathed to the wife, the residue of the trust should be discharged and therefore what is paid her will be subject to the operation of the Falcidian Law.

Where, however, the husband is appointed heir to a portion of the father-in-law's estate, and the dowry is bequeathed by the latter as a preferred legacy, the bequest of the dowry will be subject to the Falcidian Law, for the reason that, as the marriage still exists, the dowry is considered not to be due to the woman. But whatever has been deducted through the operation of the Falcidian Law can be recovered by the husband in an action for partition, just as he could recover the entire dowry if it had not been bequeathed to his wife.

(14) Mela says that if a tract of land forming part of the dowry has been especially bequeathed, and after the dowry has been bequeathed in general terms, the land will be due not twice, but only once.

(15) Mela adds, in the same place, that where land forming a part of a dowry has been leased by the husband for a certain time, the wife cannot obtain it under the bequest, unless she furnishes security to permit the tenant to enjoy it, provided she herself receives the rent.

2. Ulpianus, Disputations, Book V.

Where a husband bequeaths a dowry to his wife, and charges her with a trust, the trust shall be estimated in proportion to the benefit which the woman will receive from immediate payment of her dowry. Celsus also says the same in the Twentieth Book of the Digest. But if certain necessary expenses were incurred, which, by operation of law, diminished the dowry, and all of it which the husband received is bequeathed to her, it should be held that the entire amount of the expense which diminished the dowry by law must be deducted from the trust, for no one can doubt that the woman is the legatee. If, however, not the dowry, but something in lieu thereof was bequeathed to the wife, this will be understood to be the same as if the dowry was the subject of the bequest.

Julianus goes still farther, for he says that even if it should not be stated that the property was bequeathed in lieu of the dowry, it still will be considered to have been left with that intention. Therefore, if the wife was requested to give up either the dowry or something which was left to her in lieu of it, she will not be compelled to do so, except to the extent which we have stated.

Hence if she was appointed heir, and charged with the transfer of a certain portion of the estate, she would only be compelled to deliver what was in excess of her dowry, and the value of the benefit which he received from immediate payment. For if anyone who has received a dowry from his daughter-in-law should appoint his son his heir, and ask him to deliver to someone else all of the estate which might come into his hands, and he should afterwards obtain the benefit of the dowry through the death of his wife, he will not be compelled to give up the dowry which he had received, for the reason that he profited by it on account of his marriage, and not through the will of his father.

(1) A woman promised a dowry of four hundred aurei, and gave two tracts of land for two hundred of it, and afterwards gave the other two hundred in notes of debtors. Her husband, dying afterwards, left to her, instead of her dowry, two tracts of land which were not the same ones which he had received as part of her dowry; and, in addition to them, the two dotal tracts of land whose value had been appraised; and he charged her by a trust that she would, at the time of her death, deliver to Seius all of his estate which might come into her hands. The question arose, what would be the amount of the trust after the death of the woman? I said that the wife, who was charged to deliver everything which came into her hands under the will, was in a position to be asked to transfer only what she had received after the deduction of the amount of her dowry; for she was entitled to the dowry rather because it was due to her, than as having received it as a legacy, with the exception of what could be claimed under the trust as constituting the benefit resulting from immediate payment.

Hence, she will not be compelled to deliver the land which her husband left to her in lieu of her dowry, unless it was of greater value or extent than that which she had brought as such. She, however, will be obliged to give up any excess, together with the profits over and above what had been left to her. Therefore he will be entitled to the dowry with its profits, and anything which was left to her outside of this she must surrender, along with the profits which she obtained from the same.

3. Julianus, Digest, Book XXXIV.

Where anyone bequeaths a legacy to his wife, as follows: "Let my heir give so many aurei to Titia in addition to her dowry," it is clear that he also intended to leave her the dowry.

4. Africanus, Questions, Book V.

Where certain dates are fixed for the payment of legacies, as is customary, Africanus says that this does not refer to the legacy of a dowry, because it has its own time of payment.

5. Marcianus, Rules, Book III.

Where a dowry has been bequeathed, the heir should not be heard, if he wishes to defer payment of it to the woman on account of donations which have been made to her by her husband, or because of other expenses than those which, by operation of law, diminish a dowry, for it is one thing for a dowry to be diminished by necessary expenses, and another where it is retained because of a pledge; since it is but just that the woman should contribute her share of the indebtedness for which it was given as security.

6. Labeo, On the Last Epitomes by Javolenus, Book II.

Where the following was inserted into a will, "Let my heir give to my wife the sum of fifty aurei, which came into my hands through her and as much more in lieu of her dowry," Alfenus Verus says that Servius was of the opinion that, although the dowry was only composed of forty aurei, fifty were, nevertheless, due, because an additional sum of fifty was added.

(1) Likewise, where a husband made a bequest to his wife, who had not brought him any dowry, in the following terms, "Let my heir give the sum of fifty aurei, instead of the money which I received from my wife by way of dowry," Ofilius, Cascellius, and the pupils of Servius assert that the legacy is due to her; and hence it must be considered similar to the case where a slave, who is dead, has been bequeathed to someone, or a hundred aurei has been left in his stead.

This is correct, because by these words not the dowry itself, but money in lieu of it is held to have been bequeathed.

7. Papinianus, Questions, Book XVIII.

A father bequeathed to his disinherited son the dowry which he had received from his daughter-in-law. If the heir of the father should file an exception on the ground of bad faith, he will not be compelled to pay the legacy, unless security is given him that he will be indemnified in case the marriage is dissolved.

(1) But if, before the legacy has been paid to the son, the woman should recover her dowry, the son will in vain bring an action to recover the legacy.

(2) If, however, the Falcidian Law is applicable to the legacy of the dowry against the disinherited son, and the woman should have ratified the payment, she will be granted a dotal equitable action, based on the amount of the legacy which the heir retained. But if she should not ratify it, the heir must be defended against her by the husband, who promised that he would do so, but if the latter should alone be compelled to undertake the defence, an action on the judgment for the amount claimed under the Falcidian Law will be granted against the heir, if security is not furnished.

(3) But if the wife should obtain a divorce from the son before the legacy is paid, although she cannot yet secure her dowry, the action of the son will, nevertheless, not be deferred for that reason; because when it was decided that the dowry should be paid to him at that time, it was also held that this should not be done unless he became the heir to a portion of his father's estate, and that, after the marriage was dissolved, and he had accepted the estate, would have been admitted to receive the dowry before distribution.

(4) If security for the defence of the heir should have been neglected through mistake, and the son should receive the dowry under a trust, the trust cannot be claimed again as not having been due; for the necessity of furnishing security causes delay, and does not render that not due, which actually was due. Hence it will not be inequitable to grant relief to the heir.

(5) But what if the heir of the father was not solvent? Could not a prætorian dotal action legally be granted to the woman against her husband; for her dowry should not be lost merely because the heir failed to give security through mistake?

8. The Same, Opinions, Book VII.

A man bequeathed a sum of money, in lieu of her dowry, to his wife, who had brought him her dowry in slaves. The slaves having died during the lifetime of the husband, his wife died after he did. The right of action to recover the legacy will pass by law to her heir, as the will of the husband must be executed.

9. The Same, Opinions, Book VIII.

"I desire that the Cornelian Estate, and whatever property my wife brought me at the time of her marriage, and which was appraised, be returned to her in kind." I held that the said tract of land which had formed part of the dowry, but had not been appraised, did not appear to have been excepted, but that the entire dowry had been bequeathed, and that not the value of the appraised property, but the property itself had been left in the condition in which it might be found.

10. Scævola, Questions, Book VIII.

If a tract of land of the value of a hundred aurei should be left to Seia, in lieu of her dowry, and the same should be devised to Mævius, the woman can recover, in addition, the amount which the Falcidian Law will take from Mævius, because they are not, so to speak, joint legatees of the same, as there is more included in the dowry of the woman than in the remainder of the land.

11. Paulus, Opinions, Book VII.

Seia, when she married Lucius Titius, gave him a hundred aurei by way of dowry, and called in Quintus Mucius, who did not pay anything, but stipulated for the return of the dowry, if the marriage should be dissolved by the death of the wife. Seia, at the time of her death, provided as follows by her will: "I wish the sum of so many aurei to be given to my husband, Lucius Titius, to whom I am under many obligations, in addition to what I have given him as my dowry."

I ask, if when Quintus Mucius instituted proceedings against Lucius Titius by an action founded on the stipulation, could the husband defeat him by setting out the terms of the will? The answer was that, if Quintus Mucius made the stipulation under the direction of Seia, and not for the purpose of making a donation, he will be liable to the heirs of the woman, and therefore Quintus Mucius will be barred by an exception. If, however, Seia permitted him to make the stipulation as a donation, he will be in the same position as one who had stipulated mortis causa, and therefore it must be said that in this instance he could have been charged with the execution of the trust.

12. Scævola, Opinions, Book III.

Where a husband who had received a dowry from his wife in money, and other property which had been appraised, made a bequest to her as follows: "If my wife, Seia, should be able to show to my heir all the property contained in her dotal contract, and pay to him the amount which her father gave me for her, by way of dowry, I wish ten denarii over and above this sum to be paid to her."

As there was considerable property belonging to the dowry which was worn out by use and which did not exist at the time of the death of the husband, the question arose whether the legacy should be paid under an apparently impossible condition. I answered that the condition would seem to have been complied with, if what remained of the property given as dowry had come into the hands of the heir.

13. Labeo, Abridgment of Probabilities by Paulus, Book I.

Paulus: If a son under paternal control, who had a wife from whom he had received a dowry, should afterwards become the head of a household, and, as is customary, bequeath the dowry to her, the legacy will still be due, even though he did not become the heir of his father.

14. Scævola, Digest, Book XV.

Theopompus, having made a will, appointed his two daughters and his son equal heirs to his estate, and inserted the following provision in a codicil: "I wish my daughter, Crispina, to be married to someone of whom my friends and relatives will approve; and Pollianus, who knows my intentions, will provide for her dowry, in proportion to the equal shares of my estate which I have left to her and her sister." Pollianus, having been sworn at the instance of the husband of the girl, stated that her father had intended the young daughter to receive as much, by way of dowry, as the elder one.

I ask whether the co-heirs will be required to give the same sum to the younger daughter, over and above her share of the estate. The answer was that the magistrate, who had jurisdiction of the case, should decide that the same amount, after having been taken from the bulk of the estate, shall be given to the younger daughter, by way of dowry.

15. Gaius, Concerning Legacies under the Prætorian Edict, Book II.

Although it is established that property which the heir is ordered to deliver, and which has been pledged or publicly hypothecated, must be released, still, where a husband has received property of this kind by way of dowry, and bequeaths it, his heir will not be compelled to release it, unless the testator specially desired this to be done.

16. Paulus, On Vitellius, Book II.

A certain man received a dowry from the mother of his wife, and, after having entered into a stipulation with her, left the dowry to his wife by his will. The question having arisen whether the wife could recover the amount of the dowry, Scævola was of the opinion that it did not seem to be necessary to return to the mother what had been given to the wife; or in other words, he held that unless the wife could clearly prove that this was the wish of the testator, it did not appear that he intended to burden the heirs with a double payment of the dowry.

17. Scævola, Opinions, Book III.

A man made a bequest to his wife as follows: "Let my wife take from the bulk of my estate whatever I have obtained for her use, and what she has given to me." I ask whether it should be held that a preferred legacy of her dowry had been bequeathed. The answer was that, in accordance with the facts stated, the legacy of the dowry should also be understood to be meant, unless it was proved that the intention of the testator was otherwise.

(1) "I give to my wife Titia, the money which came into my hands as her dowry, or has been stipulated for as such, which is evidenced by two dotal instruments, duly sealed, and amounts to the sum of a hundred aurei." The question arose whether the woman can recover both sums. The answer was that there seems to be no reason why she cannot do so.

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TITLE V. CONCERNING THE OPTION OR CHOICE OF ARTICLES BEQUEATHED AS A LEGACY.

1. Ulpianus, On Sabinus, Book II.

The Divine Pius stated in a Rescript addressed to Cæcilius Proculus, that, where a choice of slaves was bequeathed, the legatee could select three.

2. The Same, On Sabinus, Book XX.

Whenever the choice of selection of a slave is bequeathed, the legatee can choose anyone that he wishes.

(1) When a slave is bequeathed in general terms, the right of selection also belongs to the legatee.

(2) Therefore, where an option is given, and the legatee chooses a slave belonging to another, or a freeman, it should be considered whether he has lost his right of selection. I think that he has not done so.

(3) Where a legatee, to whom has been left the choice of a hundred measures of wine, selects vinegar, he is not, by doing so, considered to have lost his right of selection, if the testator did not include vinegar under the head of wine.

3. The Same, On Sabinus, Book XXIII.

This, of course, will be the case, if he should select the vinegar before the wine was shown to him, and before it was tasted.

4. Paulus, On Sabinus, Book III.

Where the choice of a cup is left as a legacy, if the legatee makes a selection before all the cups have been shown to him, it is held that he still retains his right; unless he intended to choose one of those which he has seen when he knew that there were others.

5. Africanus, Questions, Book V.

The above-mentioned rule applies not only when this takes place through the fraud of the heir, but also when it happens for any other reason whatsoever.

6. Pomponius, On Sabinus, Book VI.

The choice of several slaves is bequeathed. In order that the sale of the slaves belonging to the estate may not be hindered while the legatee is making his choice, it is the duty of the Prætor to decree that unless he avails himself of his right within a certain time fixed by the latter, he will not be entitled to an action to recover the legacy. But what if, after the time had elapsed, and before the heir had sold the slaves, the legatee should desire to make a selection? The Prætor is accustomed to appoint a time, in order that the heir may not sustain any loss.

What course should be pursued, if the time prescribed by the Prætor having expired, the heir should manumit some or all of the slaves? Would not the Prætor be obliged to maintain their freedom? The action must not be refused where everything remains intact.

The same rule will apply where the heir has given away some of the slaves, or sold them, after the prescribed time has elapsed.

7. Paulus, Questions, Book X.

Moreover, if the heir has sold some of the slaves and kept others, the legatee should not be heard if he wishes to make his selection out of those retained by the heir, as the latter has already disposed of the slaves belonging to the estate.

8. Pomponius, On Sabinus, Book VI.

Where the choice of a slave is left to you, and the rest of them are bequeathed to me, it must be held by the Prætor that, unless you make a selection within a certain time, the right of action will be lost.

(1) Where, out of four bracelets, the two which I may choose are bequeathed to me, or only two are left; or where, in the first place, there were only two; the legacy is valid.

(2) Where the choice of a single slave is bequeathed to you and myself, and I make my selection, and do not change my mind, and you select the same slave, he will belong to both of us in common. If, however, I should die, or become insane, before you make your choice, the slave will not belong to us in common, because, as I have lost my mind, I am not considered to have given my consent. The more equitable rule, in this instance, will be that, as I have once made my choice, the slaves will belong to us as joint owners.

(3) If the choice of articles deposited with someone else is bequeathed to me, I can bring suit for the production of the same against the person with whom it was deposited; or I can proceed against the heir to compel him to bring an action on deposit against the party having the property, to compel him to give me an opportunity to make my selection.

9. Julianus, Digest, Book XXXII.

Where a bequest is made as follows, "I give and bequeath Stichus to Titius, if he does not select Pamphilus," it is the same as if the bequest had been, "I do give and bequeath to Titius, either Stichus or Pamphilus, whichever one of them he may select."

(1) If Stichus was ordered to be free under a condition, and I was left the choice of a slave, or one was bequeathed to me in general terms, the question arose, what would be the law? I said that it would be more convenient to decide that he who grants freedom to Stichus under some condition, and then bequeaths the choice of slaves, did not have Stichus in his mind at the time; just as it is established that he did not have him in view on whom he bestowed freedom without delay. In accordance with this, if I should choose or select Stichus, my act will be void, and I will still be entitled to make my selection from the others.

(2) In the same case, when I have been left the choice of slaves, and before I have made my selection the condition on which the freedom of a slave depended fails, the question arises, can I select Stichus ? I think that the opinion of Mucianus should be adopted, by which it is held that freedom itself, and not the mere grant of it which has been resolved upon, annuls a legacy. Hence, if the condition upon which the grant of freedom depended should fail either during the lifetime of the testator, or after his death, and before the estate was entered upon, the legacy will be valid; for freedom which is granted absolutely, as well as where it is left under a condition, takes effect at the time when the estate is entered upon, and therefore I can select Stichus.

10. The Same, Digest, Book XXXIV.

Where a slave is bequeathed in general terms to Pamphilus, the slave of Lucius Titius, and then the master of Pamphilus manumits him after the time that the legacy becomes due, and Titius claims the slave, the legacy of Pamphilus is extinguished, because there is no slave belonging to the estate who can be selected. If, however, Titius should reject the legacy, it is established that Pamphilus can make his choice of a slave bequeathed to him; for although by the manumission of Pamphilus two persons, Titius and Pamphilus, are constituted legatees, still, the bequest of one and the same thing is left to them, and if Titius claims it, the option of Pamphilus is extinguished, and if he rejects it, Pamphilus can make his selection.

11. The Same, Digest, Book XXXVI.

If Eros is bequeathed to Seius, and a tract of land to Eros, and then the option of a slave is left to Mævius, and he chooses Eros, the land alone will belong to Seius, since at the time when the estate was entered upon he was the only one to whom the legacy could belong. For, where one of two joint-owners of a slave leaves him a bequest, the entire legacy will belong to the other joint-owner, as he is the only one who can acquire the legacy through the slave at the time when it becomes due.

12. The Same, On Minicius, Book I.

Where a slave is bequeathed in general terms, the better opinion is that all the heirs, if the choice is left to them, should give the same slave, and if they do not agree, they will be liable under the terms of the will.

13. Paulus, On Plautius, Book VIII.

Where the selection of a slave is left to me, and the testator bequeaths something to Stichus without granting him his freedom, the second legacy will only stand where the entire body of slaves is reduced to one individual, that is to say, Stichus; and the legacy will be valid, just as if it was bequeathed unconditionally.

The opinion of Cato cannot be quoted in opposition to this, if a voluntary heir has been appointed, for the reason that the body of slaves may be diminished before the estate is entered upon, even if the testator should die immediately. Where, however, a necessary heir is appointed, the second legacy will be void in accordance with the rule of Cato.¹

¹ The general principal of the Regula Catoniana, whose author is not certainly known, is that where a bequest would have been void if the testator had died as soon as he had executed his will, it will still remain void, no matter how long afterwards he may live. This rule was only applicable to legacies that vested at once on the death of the testator, and hence did not affect such as were dependent upon a condition, or the acceptance of the estate. Inheritances did not come within its scope. — ED.

(1) Pomponius says that where the purchaser of an estate asks that the party to whom the choice of slaves has been bequeathed shall make his selection, it should be considered whether the Prætor must compel the legatee to do so, just as if the appointed heir should make such a demand, for the reason that the purchaser can accomplish this by applying to the heir. I do not see why it cannot be done.

14. Javolenus, On Cassius, Book II.

Where the right to select a slave from the entire body of those forming part of an estate is bequeathed, and the heir manumits one of them before the choice is made, he cannot, in the meantime, confer his freedom upon him, but he will lose the slave whom he manumitted, because if he is chosen by the legatee, he will belong to him, but if he is rejected, he will then become free.

15. The Same, Epistles, Book II.

I made a bequest to a slave without granting him his freedom, and I then bequeathed to Mævius his choice of my slaves. He selected the same slave, and I ask whether what was bequeathed to the latter is also due to him. The answer was, I do not think that the legacy left to the said slave will belong to his master.

16. Terentius Clemens, On the Lex Julia et Papia, Book XV.

It is established that where the choice of certain articles is bequeathed, it cannot be made before the estate is entered upon, and if it should be made, it will be void.

17. The Same, On the Lex Julia et Papia, Book XVII.

Where the choice of two slaves is bequeathed to Titius, and the remaining ones are left to Mævius; if the first legatee should fail to make his selection, all of the slaves will belong to Mævius, under the term "the remaining one."

18. Scævola, Questions, Book XIII.

Where a slave is bequeathed, Neratius says that if Pamphilus is rejected the act will be void, and therefore the legatee will still have the right of selection.

19. Paulus, Opinions, Book III.

"The legatee may select such-and-such an article, or such-and-such an article." Where no choice was made by the legatee, and he died after the time when the bequest was due, it was decided that the right of selection was transmitted to his heir.

20. Labeo, Epitomes of the Last Works of Javolenus, Book II.

It is stated in the First Book of Aufidius, that when a bequest was made as follows, "Let him take and have for himself any coverings for table-couches which he may wish," if he mentioned those he wanted, and then, before he took them, should say that he wanted others, he cannot change his mind and take the others; because he had disposed of his entire right of selection under the legacy by his first statement, in which he indicated those which he would take, as the articles become his immediately, just as if he had said that he would take them.

21. Scævola, Digest, Book XXII.

A testator appointed his son and his wife his heirs, and disinherited his daughter, but left her a legacy of a hundred aurei, payable when she married in his family, and made the following provision in his will: "In addition to this, I bequeath to her ten slaves, to be selected by her mother, Sempronia, whom I wish to be selected by the said Sempronia, my wife, immediately after my estate is entered upon. I desire the said slaves to be given to my daughter when she marries in the family, and if any of the slaves should die before she marries, then I wish others, also to be selected by her mother, Sempronia, to be given in their stead, until the full number of said slaves come into her hands, but if her mother, Sempronia, should not select them, then she herself can choose those whom she may desire." The mother having made the selection, the question arose whether the offspring of the slaves born before her marriage would belong to the girl, in addition to the original ten. The answer was that, as the testator had deferred the legacy of the slaves until the time of the marriage, any of the offspring of the female slaves born in the meantime would not belong to the daughter.

It was also asked whether her mother, Sempronia, would be entitled to the use and enjoyment of the said slaves before the marriage of the daughter. The answer was that there was nothing in the case stated why they should not entirely belong to the mother.

22. The Same, Digest, Book XVII.

A husband by a codicil left to his wife certain lands in trust, and also four silver dishes which she might select. The question arose whether she could make her selection from all the dishes which were found at the time of the death of the testator. The answer was that she could do so.

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TITLE VI. CONCERNING BEQUESTS OF WHEAT, WINE, AND OIL.

1. Ulpianus, On Sabinus, Book XX.

Where wine is bequeathed, any vinegar which the head of the household kept with his wine is also included.

2. Pomponius, On Sabinus, Book VI.

Where provisions are left to one person, and wine to another, all the provisions will belong to the first legatee, with the exception of the wine.

(1) Where a hundred jars of wine are left to you to be selected as you may desire, you can institute proceedings under the will in order to obtain the opportunity to taste the wine; or you can bring suit to compel the wine to be produced, or to recover any damages you may have sustained because you were not permitted to taste it.

3. Ulpianus, On Sabinus, Book XXIII.

If a hundred measures of wine should be bequeathed to anyone, leaving none for the estate, the heir can purchase and deliver wine, but he cannot deliver vinegar which was found among the wine of the testator.

(1) Where wine is bequeathed, let us see whether the legatee is also entitled to the vessels in which it is contained. Celsus says that where wine is bequeathed, even though the vessels may not be included in the legacy, they are held to be bequeathed; not because they are a part of the wine, to the same extent as the chasing constitutes a part of a cup or a mirror, but because it is probable that the intention of the testator was that he wished the vessels to be accessory to the wine; and hence he says it is usual for us to say that we have a thousand jars, referring to the quantity of the wine.

I do not think that this opinion is correct with reference to casks, so that where wine is bequeathed, the casks will also be due; especially if they are fastened in the wine cellar, or it is difficult to move them on account of their size. With reference to vats, however, or small receptacles, I think that they are included, and will be due, unless they are likewise fixed immovably in the ground, and are there as utensils belonging to the same. Where wine is bequeathed, I hold that neither leathern bags nor bottles are included.

4. Paulus, On Sabinus, Book IV.

Where a certain quantity of oil, without mentioning the quality, is bequeathed, it is not the practice to ask what kind of oil the testator was accustomed to make use of, or what kind of oil men ordinarily use in that neighborhood. Therefore the heir is at liberty to give to the legatee oil of any kind that he may wish.

5. Julianus, Digest, Book XV.

Where a certain number of measures of wine out of that obtained from the Sempronian Estate were bequeathed, and a smaller quantity was obtained, it was decided that more was not due, and that the following words, "That obtained," operated as a kind of limitation of the legacy.

6. Proculus, Epistles, Book V.

Where an heir is charged with the delivery of wine, he will be obliged to deliver whatever is contained in vases or jars, even though no mention was made of vessels. Moreover, although the wine may have been left with the vases and jars, still, that which is contained in casks is held to have also been left; just as where a testator bequeaths all his slaves with their peculium of each of them, those who have no peculium are considered to have likewise been bequeathed.

7. Javolenus, On the Last Works of Labeo, Book II.

A certain individual charged his heir to give to his wife wine, oil, grain, vinegar, honey, and salt-fish. Trebatius said that the heir was not obliged to deliver any more of each article to the woman than he desired, since it was not stated how much of each article was to be given. Ofilius, Cascellius, and Tubero think that the entire amount of the said articles which the testator left was included in the legacy. Labeo approves of this, and it is correct.

(1) "Let my heir deliver to Lucius Titius a hundred measures of wheat, each of which shall weigh a hundred pounds." Ofilius holds that nothing is bequeathed, and Labeo agrees with him, as wheat of this kind does not exist; which opinion I think to be true.

8. Pomponius, Epistles, Book VI.

When an heir is charged with the delivery of wine which is contained in casks, and it is the fault of the legatee that he did not receive it, the heir will assume the responsibility if he pours out the wine; and if the legatee should bring suit to recover the wine from the heir, it was held that he would be barred by an exception on the ground of bad faith, if he does not pay the amount of damage sustained by the heir on account of his delay.

9. Ulpianus, On Sabinus, Book XXIII.

Where anyone bequeaths wine, everything is included which, having originated from the vine, retains the nature of wine. If, however, mead is made, it will not properly be included in the term wine, unless the head of the household had this intention. And, in fact, as the beverage called zythum, which is made in some provinces from wheat, barley, or bread, will not be included, so neither beer nor hydromeli is included. But what would be the case with wine mixed with other substances? I do not think that it will be included, unless the intention of the testator was that it should be. It is clear that wine mingled with honey, that is to say, very sweet wine, will be included; and the drink made of raisins will also be, unless the intention was otherwise. New wine, boiled down and spiced, is not included, because it rather resembles a compound. Wine made of water and grapes is evidently included. The beverage of quinces, and any other drinks not derived from the vine, are not embraced in the term wine, likewise vinegar does not come under that category. None of these things will be included in the term wine, if they were not classed as such by the testator.

Sabinus, however, stated that everything will be included under the appellation of wine which the testator considered to be such. Therefore, vinegar which the testator considered as wine, as well as zythum, beer, and all other beverages which, according to the taste and use of man, are classed as wine, will be included. If all the wine which the testator possessed had become sour, the legacy will not be extinguished.

(1) If anyone should bequeath vinegar, that vinegar which the testator kept as wine will not be included. Fruits preserved in vinegar will be included, because they come under the head of vinegar.

(2) Likewise, where anyone bequeaths wine which he had in his possession, and it should afterwards become sour, even though it may have subsequently been placed with the vinegar by the testator, it will be included with the wine which was bequeathed, because that was designated which was wine at the time when the will was executed. This also is true unless opposed to the intention of the testator.

(3) Where wine which came from the estate of the testator's father is bequeathed, that only is held to have been left which the former kept as wine, and not what his father considered to be such. Moreover, where wine belonging to a peculium is bequeathed, that only is included which the slaves regarded as wine.

What is the reason for this distinction? It is because the wine of the testator's father has already begun to belong to him, but that forming part of the peculium remained for the use of the slaves.

(4) The same rule applies where old wine is bequeathed.

10. Hermogenianus, Epitomes of Law, Book II.

The age of wine when bequeathed is established according to the custom of the testator, that is to say, how many years he considered necessary to render wine old, that is, if this was not known.

11. Ulpianus, On Sabinus, Book XXIII.

"Old wine" is understood to be such as is not new, that is to say, wine of the preceding year will be included under the term "old."

12. Paulus, On Sabinus, Book IV.

For where persons do not concur in this opinion, any end, or any beginning, can be taken to designate the age of wine.

13. Ulpianus, On Sabinus, Book XXIII.

"Let my heir give to So-and-So, every year, ten measures of wine out of that obtained from such-and-such an estate." Sabinus thinks that where no wine was made during one year, the heir must furnish the amount to the legatee from the yield of the preceding year. This opinion I also adopt, if it is not contrary to the intention of the testator.

14. Pomponius, On Sabinus, Book VI.

Where wine is bequeathed, it also includes the vessels, where they are not such as are reserved for constant use, for instance, jars and measures.

15. Proculus, Epistles, Book II.

A man bequeathed his wine and the vessels containing it. Trebatius denies that any wine, which is in casks, is included; and he holds that the intention of the testator was different from what is expressed in his words, and, moreover, casks are not classed as wine vessels. Although casks are not included in the term "wine vessels," still, I do not agree with Trebatius in his opinion that the wine included in the casks, that is to say, which is not in vessels, is not bequeathed.

I think, however, that it is true where wine is bequeathed to anyone with the vessels, that the measures and jars into which it is drawn are also bequeathed to the legatee; for we pour out wine into jars and measures, in order that it may remain in them, until we require it for use; and, again, we sell it together with said jars and measures. We place it in casks, however, with a different intention, that is to say, in order to draw it out of them into jars and measures, or to sell it without the casks.

16. The Same, On the Last Works of Labeo, Book III.

A certain testator kept wine of Surrentum in earthen urns, and he bequeathed it to you in jars. Labeo and Trebatius gave it as their opinion that all the wine contained in the urns was bequeathed.

(1) Where sweetened wines are bequeathed, and no other designation is contained in the will, all the following are included in the legacy, namely: wine mixed with honey, wine made of raisins, new wine boiled and spiced, and similar beverages, including all those made of grapes, figs, dates, and dried fruits.

(2) Where a legacy is bequeathed as follows, "I give and bequeath the wine in my jars, my Aminisean and Greek wine, and all my sweet beverages," Labeo thinks that nothing will be included under the latter term, except the beverages which have been made by mixing other substances with the wine contained in the jars of the testator. This opinion I do not reject.

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TITLE VII. CONCERNING LEGACIES OF EQUIPMENT OR IMPLEMENTS.

1. Paulus, On Sabinus, Book IV.

Where a tract of land furnished with everything is devised, or where it is devised with its equipment, two separate and distinct legacies are understood to have been left.

(1) Where land is devised with its equipment, and it has been alienated, the equipment cannot be recovered in accordance with the will of the deceased.

2. Papinianus, Opinions, Book VII.

Where a father, after having appointed several of his children his heirs, bequeathed to two of them, as a preferred legacy, the property of their grandmother, in addition to their shares of his own estate; it was held that the legatees would be entitled to equal shares in proportion to those of the co-heirs.

(1) Gifts of land, when the implements for its cultivation, called e9ute1kai~ in the Greek language, are not left with it, are not delivered to the devisee.

3. The Same, Opinions, Book VIII.

A patron left a tract of land, with its equipment, to his freedmen by his will, and he afterwards requested in a codicil that the legatees, at their death, should give their shares of the land to the survivors; but he did not make any mention of the equipment. It was held that the land which was devised should be considered just as if it had been left under a trust; but that the increase of animals and slaves which took place in the meantime, as well as the losses caused by death, should be included in the trust.

(1) A minor of twenty years of age desired a tract of land with all its equipment to be given to his female cousin, and, during his lifetime, manumitted certain slaves who were attached to said land. The manumitted slaves should not be delivered to the legatee, although they cannot obtain their freedom under such circumstances.

The same rule of law applies where freedom is not obtained for any other reason whatsoever.

4. Javolenus, On the Last Works of Labeo, Book II.

A certain testator had two adjoining tracts of land, and the oxen used on one tract, after the work there was completed, were then removed to the other. He bequeathed both tracts, with all the equipment. Labeo and Trebatius think that the oxen ought to belong to the land where they worked, and not where they were accustomed to remain. Cascellius holds the contrary opinion. I adopt the view of Labeo.

5. Labeo, Abridgment of Probabilities by Paulus, Book I.

If you wish to devise to anyone a tract of land with its equipment it makes no difference what form you use, whether you devise the land with its equipment or the land and its equipment, or the land furnished with its equipment.

Paulus: I indeed am of the contrary opinion, for there is this difference between legacies, namely, if the testator who made the devise should employ the following form, "I leave the land with its equipment," and the land should be alienated, the devise will be of no force or effect; but if he used either of the other forms it will be valid.

6. Scævola, Digest, Book XVI.

A testatrix left to her grandson the lands which she possessed in a certain district, as they were equipped, together with the wine, grain, and a book of accounts; and added the following words: "Everything to be found in that district, when I die, and all property of every description which is there, or which may belong to me." Judgment having been taken against one of her debtors, during the lifetime of the testatrix, he did not satisfy it. The question arose whether what was due under the decision of the court would belong to the grandson. The answer was that there was nothing in the case stated to prevent his being entitled to it.

7. The Same, Digest, Book XXII.

A certain person left to Pardula, whom he had manumitted by his will, a shop and an apartment, together with the merchandise utensils and furniture contained therein, and also a warehouse for wine, along with the wine, vessels, utensils, and slaves in charge of the same, which he had been accustomed to have with him. The question arose whether Pardula could claim the entire legacy, as the house which contained the apartment that had been devised was burned during the lifetime of the testator, and had been rebuilt in the same place, after the lapse of two years, and the warehouse which had been left to the same party had been disposed of by the testator, but the sale of the wine had been deferred in order to obtain a higher price. The answer was that that portion of it with reference to which the testator had changed his mind was not due.

8. Ulpianus, On Sabinus, Book XX.

Sabinus says clearly in his works on Vitellius that everything is included in the equipment of land which is used for procuring, gathering, and preserving the crops. For instance, in order to procure the latter some slaves are employed to cultivate the soil, and others are placed in charge of them to compel them to labor, and among the latter are the stewards and overseers, and, in addition, are oxen, broken to work, and flocks provided for manuring the ground, and implements and utensils for cultivation, such as plows, hoes, weeding hooks, pruning knives, forks, and other tools of this kind.

For the purpose of gathering the crops, implements such as presses, baskets, sickles for cutting grain, scythes for mowing hay, baskets in which grapes are picked and carried, are included.

For preserving the crops, casks, for example, even though they may not be buried in the ground, and vats, are used.

(1) In some districts, for instance, if a farmhouse is of the better class, there are added, as accessories, slaves who are porters, and floor-cleaners ; and if there are pleasure-gardens, gardeners. If the land has woods and pastures, droves of cattle and their shepherds and foresters are included.

9. Paulus, On Sabinus, Book IV.

With reference to flocks of sheep, the following distinction must be observed, namely, that if they were kept in order to obtain the profits from them, they will not be due under the legacy; but this will not be the case if the profits of the woodland cannot otherwise be acquired, as these profits are obtained therefrom by means of flocks of sheep.

10. Ulpianus, On Sabinus, Book XX.

If the income of the land also consists of honey, the bees and their hives will be included.

11. Javolenus, On Cassius, Book II.

The same rule applies to birds which are kept in houses near the sea.

12. Ulpianus, On Sabinus, Book XX.

The question arose whether grain which was intended for the support of slaves who cultivated the land would form part of the equipment of the latter. The greater number of authorities do not think that it would, because it is to be consumed; as the equipment in general includes everything which is intended to remain on the land for a considerable time, and without which the possession of it cannot be maintained. Food prepared for the support of the slaves is considered as accessory, rather than as something destined to promote cultivation.

I think, however, that grain and wine intended for food should be included in the equipment, and the pupils of Servius state that this was also his opinion. Likewise, it is held by some authorities that grain reserved for seed is included in the equipment, and I believe this to be correct, because it has reference to the cultivation of the soil, and is consumed in such a way that it is always replaced. Grain reserved for seed differs in no respect from that intended for the food of slaves.

(1) We have mentioned granaries, for the reason that the crops are kept therein, and earthen vessels, and bins in which they are arranged, as belonging to the class of things used for the preservation of crops. Whatever is intended for the transportation of the crops is also included in the equipment of the land, for example, beasts of burden, vehicles, ships, barrels, and sacks.

(2) Alfenus, however, says that if the testator should make a bequest of certain slaves who were not attached to the land, those who were attached to it will not be included in the equipment of the same, because he is of the opinion that no animal is an implement. This is not correct, for it is well established that the slaves who are on the land for the purpose of cultivating it are included in its equipment.

(3) The question arose whether a slave who was a tenant on land is included in a devise as an implement. Labeo and Pegasus very properly hold that he is not, because he is not on the premises as an appurtenance to the same, even if he were accustomed to exercise supervision over others employed thereon.

(4) Labeo thinks that a forester who has been appointed to see to the preservation of the crops is included in the legacy, but that one who is charged with the maintenance of boundaries is not. Neratius, however, holds that he is. The latter opinion, at present, prevails, so that all foresters are included.

(5) Trebatius goes still farther, and thinks that the baker and the barber who are employed for the benefit of the slaves of rustic estates are included, as well as the mason whose duty it is to repair the buildings, and the female slaves who bake the bread, and take care of the house, and likewise the millers employed on the estate and the cook and stewardess, provided they assist any male slave by their service; and also women who are spinners and weavers, and make clothing for the slaves and prepare their food.

(6) The question, however, arises whether any accessories to the equipment are included in a legacy of the latter; for slaves employed for the benefit of the farmers, such as spinners, weavers, barbers, fullers, and cooks do not, properly speaking, form part of the equipment of the land, but are they accessory to the same? I think that cooks are included as well as spinners and weavers, together with the others above enumerated, and the pupils of Servius assert that this was also his opinion.

(7) It must be held that the testator intended that the wives and children of those above mentioned, and who were members of the same household, should be included in the legacy; for it is incredible that he would have directed such a cruel separation to take place.

(8) Where flocks are pastured for a part of the year upon the land, and food is purchased for them during the remainder; or where the land is cultivated for a portion of the year by the slaves, and they are hired out for pay during the remaining portion, they will, nevertheless, be included in the equipment.

(9) It is well established that the steward also (that is to say the slave who is charged with seeing that the accounts are properly rendered), as well as the porter and the muleteer, are also included in the equipment.

(10) The millstones, machinery, hay, straw, the ass used to turn the wheel and all the apparatus of the mill are included; the brazen cauldron in which the juice of the grape is boiled and spiced, and those which contain water intended for drinking and washing by the slaves are also part of the equipment, as well as the hand-barrows and carts used for the transportation of manure.

(11) Cassius says that anything attached to the soil does not constitute any part of the equipment of the land, as reeds and osiers before they are cut, because the land cannot be an equipment of itself. If, however, they should be cut, I think that they will be included, because they serve for the production of crops.

The same rule applies to stakes.

(12) If there is game on the land, I think that the slaves who are hunters and trackers, as well as the dogs, and everything else necessary for hunting, are included in the equipment, especially if the land derives an income from this source.

(13) Likewise, if an income is derived from bird-catching, the slaves who are fowlers and their nets, and any other apparatus used for this purpose, are included in the equipment. This is not extraordinary, as Sabinus and Cassius think that birds themselves are included in the equipment of the land, for instance, such as have been domesticated.

(14) Where a man uses the same implements on different tracts of land, the question arises, to which one will they belong as equipment? I think that if the intention of the testator is plain as to which tract of land he intended them to belong, they will be accessory thereto, for the other tracts have, as it were, borrowed the said implements from this one. If his intention is not clear, they will be accessory to none of them, for we cannot divide implements proportionally.

(15) Any furniture, or other articles found on the land, which the owner intended to be placed in better order, will not be included in the equipment of the same.

(16) It should be considered what comes under the head of household equipment, where the latter is bequeathed. Pegasus says that the equipment of a house includes everything used for protection against the weather, or for the prevention of fire; but not what is employed for purposes of pleasure; and therefore neither the glass screens nor awnings which are kept in the house to provide against cold or to furnish shade are due. This was the opinion of Cassius, who was accustomed to say that a great difference existed between utensils and ornaments, as utensils are articles which are employed for the protection of the house, and ornaments are things which contribute to the pleasure of the owner, as for instance, paintings.

(17) Cassius thinks that the hair-cloth curtains used to prevent buildings from being affected by wind or rain belong to the equipment of a house.

(18) Pegasus and many other authorities say that vinegar kept for the purpose of extinguishing fire, mops made of rags, siphons, poles, ladders, mats, sponges, buckets and brooms are included.

(19) If the owner should have obtained any tiles or beams for his house, they will be included in the equipment of the same, if they were intended for this use, and were not employed in any other. Hence, if he had a scaffold required for this purpose, it would also be included in the equipment of the building.

(20) Celsus says with reference to curtains extending over the thresholds and window sills, and also concerning such as are suspended from columns, that they should rather be classed as furniture; and Sabinus and Cassius are of the same opinion.

(21) Pipes and grappling hooks are also included in the term equipment.

(22) Likewise, long rods used for removing spider webs, sponges with which columns, floors, and the feet of furniture are cleansed, and ladders employed for the purpose of washing ceilings, are utensils, because they render the house cleaner.

(23) Papinianus says, in the Seventh Book of Opinions, that ornamental plaster work, and statues fastened to the walls, are not included in the equipment of a house, but are part of the house itself; and, indeed, where they are not attached to it, they are not included, for they come under the head of furniture; with the exception of brass clocks which are not fastened to the walls; for he thinks that these, like the cloth curtains suspended before a house, form part of its equipment.

(24) Pipes, gutters and basins, as well as other things required for fountains, together with locks and keys, rather constitute a part of the house itself than accessories thereof.

(25) Panes of glass, attached to a house, I incline to believe belong to it, for when a house is bought, the panes and the shelves are included in the purchase; whether they are in the building at the time, or have been temporarily removed. If, however, they have not been replaced, but are, nevertheless, kept to be restored to their original position, they will be embraced in the equipment.

(26) I think that lattices should be included under the head of equipment.

(27) Where a tract of land is not devised with its equipment, but in order that it may be furnished with it, the question arose whether more is included than if the land had been merely left together with its equipment. Sabinus stated in his works on Vitellius, that it must be confessed that more is left where land is devised to be provided with the means of cultivation than where it is devised furnished with them, which opinion we see is increasing in importance and validity every day.

Therefore let us consider in what respect this legacy is more advantageous than the other. Sabinus lays down the rule, and Cassius, in a note on Vitellius, says that everything that has been brought upon the land in order that the owner of the same may be better prepared for cultivating it is included; that is to say, whatever he has there in order that he may be more abundantly supplied. Thus, by such a legacy he is held to have left not the implements which belong to the land, but those that constitute his own private property.

(28) Hence, if land already provided with the necessary implements is devised, and the furniture which was there for the use of the testator himself is included, together with clothing, not only outer garments, but also those which the testator was accustomed to wear while there, and tables of ivory or of any other material, vessels of glass, gold, and silver, as well as wines, if there were any intended for his own use, and any other utensils; they will also be included.

(29) Where, however, the testator had collected certain articles, not for his own use but for safe-keeping, they will not be included. Wines contained in warehouses are also not included.

We have adopted this rule so that whatever the head of the household has collected there, as, for instance, in a granary, may not be embraced in the legacy.

(30) Celsus also states, in the Nineteenth Book of the Digest, that where fruits are collected on the premises in order to be sold, or for any other purpose than for the use or benefit of the land itself, they will not be included among the equipment of the same.

(31) Celsus also says, in the same Book, that slaves who have care of the furniture and other slaves of this kind are included; that is to say, household slaves, who are employed on the land, with the exception of those who have received their freedom, and who are accustomed to reside in the country.

(32) If a testator should devise land already provided with the means of cultivation, young slaves who are being instructed in the service of the table, and whom the testator was accustomed to have there, whenever he came, are embraced in the legacy.

(33) The members of the slaves' families, that is, their wives and children, are undoubtedly included in the devise of land with its equipment.

(34) Where land with its equipment is devised, it is well established that the library, and any books upon the premises, which the head of the household made use of whenever he came, are included. If, however, a warehouse should be used for the storage of the books, the contrary opinion must be held.

(35) Neratius, also, in replying to Rufinus, stated, in the Fourth Book of the Epistles, that the devise of a tract of land with its equipment includes the furniture, the wines, and the slaves, not only those employed in the cultivation of the soil, and the care of the same, but also those attached to the personal service of the head of the household.

(36) Only such pictures are considered to have been bequeathed as were used for the adornment of the country-house.

(37) Papinianus holds that where land is devised with its equipment those slaves are not included who were there only temporarily, and who had not been brought by the testator either for the purpose of being employed on the land, or for his own service.

(38) The same authority was of the opinion that where land was devised with its equipment, and the steward who had charge of the same was sent back into the province to resume his former duties, after having transacted the business for which he came, he will be included in the devise of the land, even though he may not yet have returned.

(39) He also says, where a testator devised his gardens with their equipment, that even the wines which were there for the purpose of having the table of the owner better supplied, are included. It is otherwise, however, if he kept the wines in warehouses, from whence he transported them either to the city, or to other estates.

(40) He also holds that where a house was devised by Umbrius Primus, under a trust, together with its furniture, to Claudius Hieronianus, a most illustrious man, that the tables and the other furniture which the head of the household, being about to start on a journey to assume the proconsulate of a province, had stored in warehouses in order that they might be in a safer place, were included.

(41) He also gave it as his opinion that a certain antidote against poison, and other drugs, together with any clothing which he had deposited there on account of his departure, were included in the devise of the land with its equipment.

(42) He also held, where a house was devised with its equipment and all the legal rights attaching thereto, that the city slaves, as well as those who were skilled workmen, and whose services were also employed on other tracts of land, were not included in the bequest; but he he says that the doorkeeper, the gardeners, those having charge of the rooms, the water-carriers, and slaves who only worked in the house will be included. However, what he states with reference to the skilled workmen is not true, if they were destined for the service of the house, even though they were lent to other estates to be employed thereon.

(43) He also gives it as his opinion that where a house is devised with its equipment, ivory tables and books are not included. This, however, is false, for everything in the house by means of which the owner may be better provided and rendered more comfortable will be included. No one doubts that the furniture is something which contributes to the convenience of the head of a household.

Finally, Neratius, in the Fourth Book of Epistles, informs his brother Marcellus that clothing is included in the devise of a house with its equipment; and he says that this is especially true in the case stated, for it was alleged that the testator who devised the property excepted the silver plate and the accounts, for anyone who excepted these things cannot have had in his mind any other articles which were there.

Papinianus himself, however, says in the same Book of Opinions, that where a father who was a merchant and a money-broker, and had two sons and as many daughters, appointed them his heirs as follows, "I do give and bequeath to my sons my house, furnished as it is, and I order it to be delivered to them," the question may be asked whether the merchandise and pledges are contained in this bequest. It would be easy for the judge to ascertain the intention of the testator by examining his other property.

(44) Celsus says that where anyone bequeaths the slaves residing on the land, their under-slaves are not included, unless it should be evident that the testator had them also in his mind.

(45) Papinianus also held, in the Seventh Book of Opinions, that a wife, to whom her husband had left everything that was in his house, could not require his daughter, who was his heir, to surrender the obligations of debtors and the bills of sale of slaves that did not appear to have been bequeathed, unless (he says), it is clear that the testator had had the slaves in his mind, so that he would seem to have bequeathed to his wife the evidences of the transfer of said slaves whom themselves, he intended should belong to her.

(46) If anyone should devise a tract of land "With its equipment, just as it is," and should afterwards add, "Together with its furniture, and its slaves, and everything else which was not expressly mentioned," the question arises whether, by adding this clause, he will diminish the bequest, or not. Papinianus answers that it will not be considered to have been diminished, but rather to have been unnecessarily increased by this superfluous addition.

(47) Papinianus likewise, in the Seventh Book of Opinions, says, if certain gardens with all their equipment are devised by a mother to a son, and she also bequeaths to her daughter her silverware intended for the use of women, that his opinion is if the said silverware, which she kept in her gardens, was there for her own personal convenience, it will belong to her daughter.

13. Paulus, On Sabinus, Book IV.

Neratius thinks that where a tavern with its equipment is devised, even the slaves who conduct it are included. It must, however, be considered whether a difference does not exist between the utensils of a house used for drinking purposes, and those of a warehouse for the storage of wine, as only the following are utensils of the latter, namely, casks, vats, large jars, cauldrons, pitchers for pouring out wine, and which are ordinarily passed at supper; brazen urns, large and small measures for liquids, and other things of this kind; but in the word "tavern," as it is a commercial term, slaves who transact the business are also included.

(1) Neratius gives it as his opinion that where a bath is devised as equipped, it also includes the slave in charge of the same.

14. The Same, On Vitellius, Book II.

The slave employed in the vaults to keep up the fire is also included.

15. Pomponius, On Sabinus, Book VI.

Where the following clause was inserted into a will, "I do give and bequeath all the utensils which are intended for the purpose of carrying on the business of my shops, and for furnishing the same, and for that of my mill and warehouse," Servius held that the horses which were in the mills, and the slaves who were millers, as well as those employed in the shops, the woman who cooked, and the merchandise contained in the shop, were all considered to have been bequeathed.

(1) Where a house, fully equipped, is devised it was decided that the furniture is included, but not the wine; because where a house is devised ready furnished, wines cannot be understood to be there for that purpose.

(2) A female slave who was left constantly in charge of a country-house, and bequeathed as belonging to the same, is included in the devise just as a forester is, and for the same reason; since houses require guardians as well as land, on the one hand, to prevent the neighbors from trespassing, or appropriating the fruit, and on the other, to prevent anyone from removing any of the property contained in the house. The building, however, is undoubtedly considered a part of the land.

16. Alfenus, Epitomes of the Digest by Paulus, Book II.

Where the utensils of a country-house are bequeathed, the better opinion is that the furniture is not included.

(1) Servius gave it as his opinion, where a vineyard and everything appertaining to it was left, that there were no such things as implements used for the cultivation of a vineyard. Cornelius, when his opinion was asked upon this point, replied that stakes, poles, and hoes are implements which belong to a vineyard; which is correct.

(2) A certain man left to his wife a tract of land where he himself resided, equipped for cultivation just as it was. When advice was taken whether the female slaves, who were spinners and weavers, were included in the devise, the answer was that they did not, properly speaking, constitute part of the equipment of the land; but, as the testator who devised the property lived upon it, there could be no doubt that the female slaves and other property which were on the premises for the use of the head of the household should be held to be embraced in the bequest.

17. Marcianus, Institutes, Book VII.

When the studio of a painter is bequeathed with its equipment, the wax, the colors, and everything of this kind is included in the legacy, as well as the brushes, the implements for finishing encaustic tiles, and the flasks for oil.

(1) When the equipment of a fisherman is bequeathed, Aristo says that it includes the boats used for catching fish. The better opinion is that it also includes the fishermen themselves.

(2) Where the utensils of a bath are bequeathed, it has been established that the slave in charge of the bath is included; just as where a wood is devised, the forester, and where a wineshop is devised, the slave in charge of the same, are included; for baths cannot be used without the bathers.

18. Paulus, On Vitellius, Book II.

Whenever, in the case of the bequest of the implements of a butcher, any question arises, after excluding the meat, we leave the tables, the weights, the cleavers, the balances, the knives, and the axes as the equipment.

(1) Where the equipment of anything is bequeathed, it is sometimes necessary to take into consideration the persons of those who leave the legacy; as, for instance, where the equipment of a mill is bequeathed, since the slaves who are the millers will only be included when the head of the household conducted the business of the mill himself; for it makes a great deal of difference whether the utensils were intended for the use of the millers, or for that of the mill.

(2) Neratius says that the ass which turns the wheel of the mill and the millstone are not included in the equipment which goes with the transfer of the land.

(3) Likewise, we say that pots and pans are included in the equipment of a tract of land, because, without them, cooking cannot be done, nor is there much difference between the pots and the cauldrons which are suspended over the fire; as in the latter drinking water is heated, and in the former food is boiled. If, however, the cauldrons are included in the equipment, the pitchers also, with which water is poured into the cauldrons, come under the same head; and thus one vessel follows another in regular succession. Therefore, Pedius says that it is best not to adhere too closely to the literal meaning of words, but above all things to find out what the testator intended to designate, and then ascertain the opinion of those residing in different districts of the province.

(4) Where a question arises with reference to a farmer who is a slave, as to whether he is included as part of the equipment of the land, and there is any doubt on the subject; Scævola, having been consulted, held that the slave should be included, where he was the confidential agent of his master, and did not cultivate the land for a certain amount of the income from the same.

(5) The same authority, having been interrogated with reference to the lower millstone of a mill, answered that it also was included, if it was operated for the benefit of the slaves employed in the labors of the farm. . The lower part of a millstone is called meta, and the upper part catillus.¹

¹ The millstones of the Romans were of an entirely different form from ours. Instead of presenting flat surfaces, the lower one was conical, and the upper, shaped like an hourglass, fitted over the former, and was supported upon a strong iron pivot. The grain was poured into the hollow top of the upper stone, and issued as flour at the base of the cone. The principle was the same as that at present adopted in the construction of many small mills used for grinding feed for stock. Into two square holes in the centre of the upper stone, and equidistant from one another, heavy wooden bars were inserted, to which the motive power was applied. Slave labor was originally employed for this purpose, though asses, and wheels turned by water, were afterwards used. The Roman milling apparatus was very solid and substantial in character, being often more than six feet high, and two feet in diameter. — ED.

(6) Where inquiry was made with reference to a plowman, the answer was that, no matter whether one who actually tilled the land, or one who fed the oxen used in cultivating it, was meant, he was included in the legacy.

(7) He also answered that trimmers of trees were included, if they were specially considered to be attached to the land.

(8) Shepherds and excavators also belong to the legatee.

(9) Likewise, where a tract of land is devised as follows, "I give to Mævius the Seian Estate in the very best condition in which it may be found, together with all the implements, rustic and urban, and the slaves who are there," the question was asked whether grain for seed would be included. The reply was that it certainly would be, unless the heir could prove that the intention of the testator was otherwise.

The same authority rendered a similar opinion with reference to grain reserved for the maintenance of slaves.

(10) Cassius says that in the equipment of a slave-physician eyewashes, plasters, and other things of this kind are included.

(11) A testator left certain of his slaves, whom he mentioned by name, to a person to whom he had devised a tract of land with its equipment. The question arose whether his remaining slaves, whom he did not enumerate, were included in the equipment. Cassius says it was decided that, although the slaves constituted part of the equipment of the land, only those who were designated by name were considered to have been bequeathed, as it is evident that the head of the household did not intend that the others should also be classed as such.

(12) Sabinus says that where a tract of land with everything thereon is devised, the soil itself, and whatever is ordinarily kept there, and remains for the greater part of the year, as well as those slaves who are accustomed to betake themselves thither for the purpose of residing on the land, are held to have been left, but anything which has been designedly conveyed there for the purpose of increasing the amount of the legacy will not be considered to have been bequeathed.

(13) Where a testator made a bequest as follows, "I leave my country-house in the same condition as I myself possessed it, together with the furniture, tables, and the urban and rustic slaves which shall be sent there, and the wines that may be in said house at the time of my death, and ten aurei in addition," as upon the day of the testator's death he had books, articles of glass, and a small clothes-press in the house, the question arose whether these articles should be included among those enumerated in the bequest. Scævola answered that only such articles as were specifically mentioned formed part of it.

(14) A testator left his house furnished, together with everything attached to the same. The question arose whether the legatee was entitled to the obligations of debtors. The answer was that, in accordance with the facts stated, he was not entitled to them.

19. Paulus, Opinions, Book XIII.

I gave it as my opinion that if, after the execution of the will, any slaves were placed by the testator upon the land devised to Seia, for the purpose of cultivating the same, they belonged to the said land and were also included in its equipment; even though the testator enumerated the slaves who were there at the time that he made the devise, as he mentioned them not for the purpose of diminishing the legacy, but in order to increase it.

Moreover, there is no doubt that slaves who have been brought on land for the purpose of cultivating it are included in its equipment.

(1) Paulus held that neither crops which are stored, nor a stud of horses, are included in the devise of a country-house with its equipment, but that the furniture forms part of it. A slave skilled in the art of building, who pays his master a certain sum of money every year, is not included in the equipment of the house.

20. Scævola, Opinions, Book III.

A testator left Seia, whom he had appointed heir to a portion of his estate, certain lands as a preferred legacy, together with the farmers who cultivated them, and any rent not yet paid by tenants, if she should become his heir; and then he made the following provision in a codicil: "It has afterwards occurred to me to mention that I wish Seia, to whom I devised my land, to also have all the farming implements, furniture, cattle, farmers, rent due from tenants, and supplies." The question arose whether those articles which were on the land and were intended for the daily use of the head of the household, were included in the legacy. The answer was that, in accordance with the facts stated, property over and above the land had been bequeathed to Seia; but that no more was due to her than the testator had specifically mentioned in the codicil which he had drawn up after having forgotten to clearly indicate this in his will, and which he showed he intended to be included in the term equipment.

(1) A testator devised to his freedman certain lands as follows: "I do give and bequeath to my freedman, Seius, such-and-such and such-and-such tracts of land, provided with implements as they are, together with all dowries, and balances due from tenants, and also with the foresters, and their wives and their children." The question arose whether the slave, Stichus, who cultivated one of the said tracts of land and owed a considerable sum of money, was due to Seius under the terms of the trust. The answer was if he cultivated the land, not as a trusted agent of his master, but for the payment of rent, as foreign tenants are accustomed to do, Seius would not be entitled to him.

(2) "I wish such-and-such tracts of land, provided with all implements, and the upper house, to be given to my foster-child Gaius Seius." The question arose whether the testator designed that the house should be given, fully furnished. The answer was that, in accordance with the facts stated, he seemed to have intended it to be so given, unless the party of whom it was demanded could clearly show that his intention was otherwise.

If, however, he had bequeathed the equipment of the lodging, that is to say, of the building, any slaves who were destined for other purposes and whose services were employed elsewhere would not be included in the legacy.

(3) A man left certain lands, provided as they were with implements, together with all property and balances due from tenants and farmers, with the slaves and cattle, and including the peculia and the steward. The question arose whether the balances due from tenants who, after their lease had expired and they had given security, had left their farms, would be included in the devise, under the words above mentioned. The answer was that the testator did not seem to have had these claims in his mind.

(4) With reference to the steward who was bequeathed, the question was also asked whether his wife and daughter were included in the legacy, as the steward did not reside on the land, but in the city. The answer was that there was nothing in the case stated to show that they were included.

(5) It was also asked, if a testator, after having made his will, should go on a journey into a province, whether those slaves who, after his departure, or after his death, had voluntarily and without the authority of anyone, betaken themselves to their relatives and acquaintances on the lands which had been devised, were included in the legacy. The answer was that those who were, so to speak, passing back and forth, were not bequeathed.

(6) "I desire that the Titian Estate, provided with its equipment along with everything else that is there, be given to Pamphila, my freedwoman, when I die." The question arose whether the slave, Stichus, who a year before the death of the testator had been removed from the land to be educated, and afterwards did not return, would be included in the legacy. The answer was if the testator had sent him away merely for the purpose of instruction, and had not transferred him from the said tract of land to another, he would be included.

(7) "I leave to my sister, Tyranna, my Grecian estate, together with the barn, and all the farming implements." The question arose whether the pastures, which the testator obtained at the same time with the said land, and which he had always kept for the use of the same, were included under the appellation, "Grecian estate," and were embraced in the devise. The answer was that if he had united them with the Grecian estate, so that they were included under one denomination, they would form part of the devise.

(8) Where a house was left completely furnished, a silver-gilt bedstead, having temporarily been stored in a warehouse, was not found there at the time of the death of the testatrix, Titia. I ask if it also should be delivered to the legatee. The answer was that if it was ordinarily kept in the residence, and had, in the meantime, been taken to the warehouse in order to be in a safer place, it ought nevertheless, to be delivered to the legatee.

(9) Where the testator added the following phrase, "Just as I have possessed it," does this refer to the way in which the land was equipped at the time of his death, that is to say, with slaves, cattle, and farming implements? The answer was that this has no reference to the legal rights of the legatee.

21. Pomponius, Trusts, Book I.

Where a tract of land is devised without its equipment, the casks, olive-mills, presses, and everything else fastened to or built upon the land, are included in the devise; but none of these things which can be moved are, with very few exceptions, included under the designation real-property.

Where any question arises concerning mills attached to the land, or erected upon it, they are considered as parts of the buildings.

22. Paulus, Opinions, Book III.

Where land is devised, "In the very best condition in which it may be found," the nets, and all other apparatus for hunting which refers to the equipment, are included in the devise, if the revenue of the land is principally derived from the chase.

(1) Where a tract of real property was devised, "Together with the slaves and cattle, and all its rustic and urban equipment, the peculium acquired by the steward before the death of the deceased, if it was derived from the same land, is held by the greater number of authorities to belong to the legatee."

23. Neratius, Opinions, Book II.

When the question is asked what is the equipment of a shop, it is usual to ascertain what kind of business is transacted therein.

24. Paulus, On Neratius, Book III.

A tract of land which had been leased was devised with its equipment. The implements which the tenant had on the farm are included in the legacy. Paulus: Does this refer to what belonged to the tenant, or only to what belonged to the testator? It must be said that the better opinion is that this is the case, unless none of the implements belonged to the owner.

25. Javolenus, On the Last Works of Labeo, Book II.

When the equipment of a tract of land is devised, Tubero thinks that all the cattle which the land can support are included in the devise. Labeo is of the contrary opinion, for he says if, when the land could support a thousand sheep, two thousand were kept there, how many of them should we decide ought to be included in the devise? No inquiry should be made as to how many sheep the testator ought to have had there for the purpose of constituting the number to be included in the devise, but how many he actually had on the land; for the estimate should not be made from the number or the amount that was left. I concur in the opinion of Labeo.

(1) A certain individual, who had potteries on his land, employed the services of his potters for the greater portion of the year in farm labor, and afterwards devised the land with its equipment. Labeo and Trebatius think that the potters should not be included in the equipment of the land.

(2) Where all the equipment of a tract of land was left with the exception of the cattle, Ofilius improperly holds that the shepherds and the sheep are included in the bequest.

26. The Same, On the Last Works of Labeo, Book V.

Earthenware, and leaden vessels in which earth is placed, and flowers planted in pots, Labeo and Trebatius think constitute a part of the house. I think this to be correct, if they are fastened to the house so as to always remain there.

(1) Ofilius says that hand-mills should be classed with household goods, but those moved by animal power are appurtenant to the land. Labeo, Cascellius, and Trebatius think that neither should be classed as household goods, but rather as appurtenances. I think that this is true.

27. Scævola, Digest, Book VI.

A testator left to the man who had reared him his land near the sea, together with the slaves who were thereon, and all the implements and crops belonging to the same, as well as the balances due from his tenants. The question arose whether the slaves, who were fishermen, who were attached to the personal service of the testator, and accustomed to follow him everywhere, and whose names were carried on the accounts in the city, and at the time of the death of the testator were not found on the land which was devised, should be considered to have been bequeathed. The answer was that, in accordance with the facts stated, they were not bequeathed.

(1) A testatrix made the following bequest to one of her relatives: "I desire the Cornelian Estate, provided that everything, just as it is, together with all the personal property and slaves, and the amounts due from the tenants, to be given to Titius." This testatrix having come, on account of a lawsuit, to Rome from Africa, brought with her certain slaves belonging to the aforesaid land, in order that she might avail herself of their services during the winter. The question arose whether the said slaves were embraced in the trust, as some of them had been removed from their duties on the farm at the time of the journey, and had left their wives and children, while others had left their fathers and mothers behind them. The answer was that, in accordance with the facts stated, the slaves which were the subject of the inquiry should be delivered under the terms of the trust.

(2) It was also asked whether the crops of the same tract of land which had already been gathered and remained there at the time of the death of the testatrix were included in the trust; since it was evidently her intention to display the greatest liberality towards her relative, as was proved by her desire that the balance due from the tenants should also belong to him. The answer was that, when a provision of this kind was made, it should only be ascertained whether it was perfectly clear that the deceased intended to bequeath the property with reference to which the inquiry is made.

(3) A testator devised a tract of land as a preferred legacy to his freedman, whom he had appointed heir to a portion of his estate, as follows: "Pamphilus, my freedman, I desire you to have, as a preferred legacy my Titian Estate, together with my small Sempronian Estate, with all their appurtenances, and the personal property which shall be there at the time of my death, together with the slaves who reside on said land, with the exception of those whom I shall hereafter manumit."

As the testator had a certain quantity of wine in casks on the said land, all of which he had sold during his lifetime, and the third part of the price of which he had received, the question arose whether the wine which remained in the casks would belong to the freedman under the terms of the preferred legacy. The answer was that, in accordance with the facts stated, it would be included, unless the co-heirs could prove that the intention of the testator was otherwise.

The testator also left the claims in his account-book, and the money which was on said land.¹ The opinion with reference to the money was the same as that above given.

¹ The contraction of indebtedness, evidenced by entries in account-books which took the place of the modern promissory note, was very common among Romans of the earliest period. No special form was requisite in order to create a valid obligation, although the consent of the debtor was, of course, necessary, and a regular stipulation was often entered into. These entries were admissible in the tribunals as evidence to establish the claims, which is not in accordance with either English or American Law. We do not know how they were proved, whether by the testimony of witnesses, or by the oath of the plaintiff. The entry itself was not the essential point of the transaction, it was the actual counting and payment of the money, "pecuniæ numeratio," that was indispensable. The lender generally demanded a receipt from the borrower, or insisted upon his signing his name in the book under the entry of the loan, to show that he had received the money. This subject is involved in great obscurity, for we know that a person who was not present could be rendered liable to an obligation dependent upon a ledger entry. If the debt was contested, the defendant could produce his own books to show that it had been settled. Where, however, this was not done, only proof of fraud was available to avoid collection of the claim. Where indebtedness of some other kind was entered on the book, it was styled nomen transcriptitium, or a transferred obligation. The Romans had carried the science of book-keeping to a state of accuracy and perfection not surpassed by the most expert accountants of the present day. — ED.

(4) A devise was made as follows: "I desire half of the Seian Estate, which came to me from my father, to be given to my sister Septitia, just as it is at present, and the other half in the condition in which it may be found at the time of my death." The question arose whether, under the words above quoted, the beams and joists already in position and prepared to be inserted into the building, as well as the urban and rustic equipment, and the slaves employed on the land would belong to the legatee. The answer was that the following words, "Just as it is," can have reference to the equipment of the land.

(5) A testator devised certain lands as follows: "I also leave to my brother, Sempronius, my Cassian and Novian Estates, equipped just as they are, together with their willow-groves and woods." As the woods and willow-groves did not form part of the aforesaid land, but were in small tracts adjacent to the same, which the testator had purchased at the same time and without which the former lands could not be cultivated, the question arose whether they were included in the legacy. The answer was that that property only formed part of the legacy which was specifically designated by the testator.

28. The Same, Digest, Book XXIII.

Lucius Titius devised a tract of land with all its equipment. The question arose how it should be delivered, whether as it was equipped at the time of the death of the testator, so that any slaves born, or taken to the land in the meantime should belong to the heir; or whether as it was equipped at the time that the will was executed; or whether it should be delivered in the condition it was when the land was claimed, so that any of the equipment found there at the time would be for the benefit of the legatee. The answer was that, in accordance with the terms of the legacy, the property found on the land at the time the devise was made, and which was in the same condition when the will was opened, would be included in the equipment.

29. Labeo, Probabilities, Book I.

If you purchase a ship with its equipment, the boat belonging to it should be delivered to you. Paulus: By no means; for a ship's boat is not part of its equipment, as the boat differs from it in size, but not in kind. It is necessary for the equipment of anything to be of a different description, no matter what it may be. This opinion is adopted by Pomponius, in the Seventh Book of the Epistles.

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TITLE VIII. CONCERNING LEGACIES OF PECULIUM.

1. Paulus, On Sabinus, Book IV.

Where a slave is bequeathed with his peculium, and he is either alienated or manumitted, or dies, the legacy of the peculium is also extinguished.

2. Gaius, On the Provincial Edict, Book XVIII.

For those things which occupy the place of accessories are extinguished when the principal property is destroyed.

3. Paulus, On Sabinus, Book IV.

Where, however, a female slave is bequeathed with her children, and either dies, or is alienated or manumitted, her children will belong to the legatee, because there are two distinct legacies.

4. Gaius, On the Provincial Edict, Book XVIII.

When, however, a slave is bequeathed with his sub-slaves, the legacy of the sub-slaves will continue to exist, if the slave dies, or is alienated or manumitted.

5. Paulus, On Sabinus, Book IV.

When peculium is bequeathed, it is well established that the heir can collect any debts due to the peculium, and be required to pay them to the legatee, over and above anything which he himself may owe to the slave.

6. 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.

(1) If 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.

(2) However, 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.

(3) Where 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.

(4) As 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.

(5) Not only what is due to the master is deducted from the peculium bequeathed, but also anything that may be due to the heir.

7. Pomponius, On Sabinus, Book VII.

If anyone should give himself to his creditor to be arrogated, and proceedings based on the peculium are instituted against the arrogator, I think that the same rule will apply with reference to the heir.

8. 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.

(1) Hence, 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.

(2) Where 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.

(3) Where 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.

(4) Sabinus 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.

(5) Consequently, 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.

(6) Likewise, 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.

(7) Sometimes, 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.

(8) Moreover, 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.

9. Paulus, On Sabinus, Book IV.

Anything which is due from one slave to another to whom the former is bequeathed with his own peculium, of which the legatee forms a part, is not deducted from the legacy, even though the legatee may be his fellow-slave.

(1) If one slave should wound one of his fellow-slaves, and, by doing so, depreciate his value, Marcellus says that there is no doubt that the amount due to the master as damages should be deducted from the peculium of the slave. For what difference is there if one slave should wound his fellow-slave, or should cut to pieces, break, or steal any other property? In this instance, his peculium will undoubtedly be diminished, but not to a greater extent than the actual amount of the injury.

(2) If, however, the slave should wound himself, or even commit suicide, nothing ought to be deducted from the peculium on this account. We would be of a different opinion if he should take to flight, for the amount of depreciation of his value, in consequence, should be deducted from his peculium.

10. Pomponius, On Sabinus, Book VII.

If you wish to bequeath his peculium to your slave, or to your son as a preferred legacy, the property included in the peculium must be specially bequeathed, to prevent what he owes you from being deducted from the same.

11. Ulpianus, On the Edict, Book XXIX.

A peculium can also be bequeathed to someone who has none, for such a bequest can be made not only of peculium owned at the present time, but also of any which may subsequently be acquired.

12. Julianus, Digest, Book XXXVII.

A bequest of peculium is void where the slave dies during the lifetime of the testator, but if he should be living at the time of his death, the peculium will be included in the legacy.

13. Celsus, Digest, Book XIX.

The rule is different where the slave is bequeathed with his clothing.

14. Alfenus Verus, Digest, Book V.

A certain individual inserted the following provision into his will: "When I die, let my slave Pamphilus have for himself his own peculium and let him be free." It was asked whether or not the peculium should be held to have been legally bequeathed to Pamphilus, for the reason that he was directed to take the peculium before he became free. The answer was that there was no order to be observed in the two provisions, which in this instance were joined, and that it did not make any difference which of the two was mentioned or written first; and therefore that the peculium was held to have been legally bequeathed, just as if the slave had been directed to be free first, and to receive the peculium afterwards.

15. The Same, Epitomes of the Digest by Paulus, Book II.

His own peculium was bequeathed to a manumitted slave. By another clause of the will the testator left all his female slaves to his wife. One of these formed part of the peculium of the slave who had been manumitted, and it was decided that she belonged to the said slave, and that it did not make any difference which bequest had been made first.

16. Africanus, Questions, Book V.

Stichus had Pamphilus in his peculium, and the master defended him in a noxal action, and, having lost the case, paid the amount of the damages assessed. Then he manumitted Stichus by will, and bequeathed to him his peculium. The question arose whether what had been paid on account of Pamphilus, as damages, should be deducted from the peculium of Pamphilus himself, or from that of Stichus. The answer was that the deduction must be made from the peculium of Pamphilus, no matter what the sum might be; that is to say, even if it should be expedient to surrender him in satisfaction of the damage committed, for everything that is paid out by the master on account of a slave makes him a debtor to his master. If the peculium of Pamphilus was not sufficient, an amount not more than the value of Pamphilus should be deducted from the peculium of Stichus.

(1) The question arose if Pamphilus, for some other reason, owed a sum of money to his master, and this could not be obtained from his peculium, whether an amount to the extent of his value could be deducted from the peculium of Stichus. This was denied, for the case is not similar to the former one. The reason why the price of the sub-slave should be deducted is because Stichus himself became the debtor to his master on account of the defence of the sub-slave by the latter. But, in the instance proposed, nothing can be deducted from his peculium, because Stichus owes nothing, but the deduction must only be made for the peculium of Pamphilus, who certainly cannot himself be understood to form part of his own peculium.

17. Javolenus, On Cassius, Book II.

A certain individual who had bequeathed the peculium of his slave undertook to defend him in court, and afterwards died. It was decided that the heir was not compelled to deliver the peculium on account of the legacy, unless security to indemnify him for any loss arising from the defence of the slave was furnished.

18. Marcianus, Institutes, Book VI.

If his own peculium should be bequeathed to a manumitted slave, there is no doubt that no action will lie against him in favor of the creditors of his peculium, but the heir will not be obliged to deliver it, unless security is furnished to defend him against the said creditors.

19. Papinianus, Opinions, Book VII.

Where a master wishes to manumit his slave, and directs him to furnish him with a list of the property of which his peculium is composed, and, after doing so, the slave receives his freedom, it is evident that any property belonging to the peculium which the slave had withheld from his statement will not have been tacitly given to him when he was manumitted.

(1) Where freedom is granted by a will, and the testator also bequeaths the peculium, and afterwards manumits the slave, the freedman can, under the terms of the will, demand that the rights of action for claims belonging to the peculium shall be assigned to him.

(2) A son under paternal control, to whom his father bequeathed his peculium, manumitted a slave who formed part of the same, during the lifetime of his father. This slave became the common property of all the heirs, and was removed from the peculium on account of the intention of the son, because that part of the peculium only belongs to the legatee which is found to be included in it at the time of the father's death.

20. Marcianus, Institutes, Book VII.

In a case of this kind, it makes no difference whether the bequest of the peculium was made first, and the illegal manumission was granted afterwards; or vice versa.

21. Scævola, Questions, Book VIII.

If, after Stichus has been manumitted, his peculium should be left to him, and a slave belonging to said peculium is bequeathed to Titius, Julianus says that the amount deducted from the peculium on account of the debt due to the master will be added to that received by him to whom the sub-slave was bequeathed.

22. Labeo, Last Epitomes by Javolenus, Book II.

A master manumitted his slave by his will, and left him his peculium. The slave owed his master a thousand sesterces, and paid them to the heir. I rendered the opinion that all the property composing the peculium was due to the enfranchised slave, if he had paid the money which he owed.

(1) A master manumitted his slave, who held a sub-slave in common with him, left the former his peculium, and then bequeathed specifically the sub-slave himself, who was held in common by them, to him and to his freedwoman. I held that a fourth part of the slave would belong to the freedwoman, and that the remaining three-fourths would belong to the freedman; which is also the opinion of Trebatius.

23. Scævola, Digest, Book XV.

A master, by his will, bequeathed freedom to his slave Stichus, who transacted the business of one of his freedmen, to half of whose estate the master was the testamentary heir; a list of claims being included among the assets. The bequest of freedom was dependent upon the condition that he should render an account; and he left him his peculium under a trust. Stichus rendered an account of the sums of money which he had collected from the claims, as well as those which he had obtained from other sources, the debtors in whose behalf he himself had paid the heirs of his patron still remaining liable for their obligations; and having obtained his freedom, he died.

The question arose whether, by virtue of the trust, the heirs of the patron could be compelled to assign to the heirs of Stichus their rights of action against the debtors for whom Stichus had made payment, when there was nothing else due from Stichus to the patron. The answer was that they could be compelled to do so.

(1) A certain testator manumitted his slaves by his will and a codicil, bequeathed them their peculium, and made the following provision with reference to Stichus: "I wish my slave Stichus to be free, and that ten aurei be given to him, together with whatever money he may have in my purse, and I desire that he render an account to my heirs. I also wish the peculium of all the slaves whom I have manumitted to be given to them."

The question arose whether Stichus should receive from the heirs any excess over and above the contents of his master's purse, which he had expended for his benefit at the time of his death, as it was the custom of the household that, where he expended anything more than the contents of the purse, for him to be reimbursed for the same by his master. The answer was that, according to the facts stated with reference to the custom of the household, that also was included in the peculium bequeathed which was due to him from his master, and which the latter was accustomed to return to him.

(2) A testator granted freedom to his slaves, left them certain legacies, and then prescribed the following condition: "I desire that no accounts be required from the slaves whom I have manumitted, and to whom I have bequeathed legacies." The question arose whether their peculium should be considered to have been bequeathed to them by this clause. The answer was that, according to the facts stated, the peculium was not considered to have been bequeathed.

(3) It was also asked whether, under this provision, the slaves could retain as part of their legacies anything that remained due to them from their master, either if they had any of his property in their hands, or if, where they were his tenants, they owed him rent. The reply was that the answer has already been given.

24. Ulpianus, On Sabinus, Book XLIII.

Where a slave is bequeathed, it is unnecessary to except his peculium, because, unless expressly specified, it is not included in the legacy.

25. Celsus, Digest, Book XIX.

When a slave is ordered to be free by a testator, and his peculium is left to him, the sub-slaves of his sub-slaves are embraced in three legacies.

26. Scævola, Opinions, Book III.

"Let my son Titius take from the assets of my estate, as a preferred legacy, such-and-such a house, and a hundred aurei." Then, under another article, the testator left to his children their peculia as preferred legacies. The question arose, whether the hundred aurei and the interest on the same would be included in the preferred legacy of the peculium, together with the account-books containing the amounts due, both principal and interest, to the other creditors. The answer was if the father had lent money in the name of his son, and had credited the latter with interest on the same, as might be suggested, this also would be included in the legacy of the peculium.

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TITLE IX. CONCERNING LEGACIES OF PROVISIONS.

1. Ulpianus, On Sabinus, Book XXIV.

An heir was ordered by the testator to furnish the wife of the latter with a certain quantity of provisions every year, and in case he should not do so, he charged him to pay her a sum of money. The question arose whether she could bring an action to recover the provisions bequeathed, or whether the delivery was merely voluntary, and if the provisions were not furnished, whether they could be demanded. And, indeed, if such a legacy was only bequeathed once, and not payable annually, there is no doubt (as Marcellus observes in the Thirty-ninth Book of the Digest on Julianus) that the delivery of the articles themselves is not required, but that suit can be brought to recover the amount in money. Therefore, the heir will have the right to tender the provisions, or the cash, until issue is joined in an action to recover their value in money; unless the testator, either by implication, or expressly, indicated some other time for payment. Where, however, the legacy of provisions was to be paid annually, it must still be furnished in kind every year, or, if it is not, suit for the amount due can be brought annually.

But what if a single sum of money was bequeathed, and the provisions were not furnished at the end of the first year? Can it be doubted that the whole sum would be payable, just as if the entire amount of the legacy of the provisions was due; or should the estimated value of the provisions to be furnished during the first year merely be taken into consideration? I think that the intention of the testator should be followed, and the entire sum ought to be paid at once, after the heir has failed to furnish the provisions to the wife, and that he should be punished for his want of filial piety.

2. Marcianus, Rules, Book III.

Where a certain kind of provisions is bequeathed, together with the vessels in which they are contained, and they have been consumed, the vessels are not included in the legacy, as in the case of the peculium.

3. 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.

(1) Aristo, 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.

(2) If 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.

(3) Where 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.

(4) All drinkables which the head of the household considered as wine are classed as provisions, but none of those above mentioned are included.

(5) No 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.

(6) What 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.

(7) Likewise, 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.

(8) Any 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.

(9) The 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.

(10) Servius, 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.

(11) There 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.

4. Paulus, On Sabinus, Book IV.

As liquids cannot be kept without receptacles, they take with them as accessories any articles without which they cannot be preserved. Vessels, however, which are accessories of the legacy of provisions, are not bequeathed. Finally, after the provisions have been consumed, the vessels which contained them will no longer be due. But even if the provisions were expressly bequeathed with the vessels, the latter will not be due after the provisions have been consumed, or the legatee has been deprived of them.

(1) Where provisions contained in a storehouse are left to anyone, all the provisions of the testator are not the subject of the legacy.

(2) Likewise, if anyone who is accustomed to sell his crops should bequeath provisions, he is not held to have left everything which he had in his hands as merchandise, but only what he had set apart as supplies for himself.

But if he was accustomed to make use of what he had indiscriminately, only the quantity which would be sufficient for the annual consumption of himself, his slaves, and the other persons whom he had about him, will be embraced in the legacy. Sabinus says that this usually occurs in the case of merchants, or when a warehouse containing oil or wine which was accustomed to be sold, forms part of an estate.

(3) I have been informed that the term "provisions" is applicable to every kind of food.

(4) Where a bequest is made of provisions which are at Rome, are those bequeathed which are situated in the suburbs, or only such as are within the walls? While, indeed, almost all towns are enclosed by walls, Rome is enclosed by its suburbs, and the City of Rome is bounded by its suburbs.

(5) Where a legacy of provisions in a city is left, Labeo says that everything of the kind to be found anywhere should be considered as bequeathed, even articles which are at a country-seat, but are destined for urban consumption; just as we call those slaves "urban" whose services we are accustomed to make use of outside of the city. If, however, the provisions are situated outside of the City, they will, nevertheless, be considered to be at Rome, and if they are in the gardens adjoining the City, the same rule will apply.

(6) Where provisions, with the exception of wine, are bequeathed to anyone, all the provisions except the wine will be considered as included in the legacy. Where, however, it was set forth explicitly in a will that all provisions, except the wine which was at Rome, were bequeathed, only the provisions which were at Rome were held to be embraced in the legacy. This was stated by Pomponius in the Sixth Book on Sabinus.

5. The Same, On Sabinus, Book IV.

Everything which can be drunk is not included in the term "provisions," otherwise, it would be necessary for all medicines which are fluids to be included in the legacy. Hence, only such are included as are drunk for the purpose of nourishment, and antidotes do not belong to this category; as Cassius very properly remarks.

(1) Certain authorities deny that pepper, lovage, caraway seed, assafœdita, and other articles of this kind, are included in provisions, but this opinion is not accepted.

6. The Same, On Sabinus, Book X.

The utensils of a bakery, and all the vessels used for cooking, are not included in a bequest of provisions.

7. Scævola, Opinions, Book III.

"I wish all my provisions to go to my mother, or to my children who are with her." I ask, if the guardians of a ward should say that only the provisions contained in his residence were bequeathed, and certain jars of wine were found in his storehouses, whether these are included in the legacy. The answer was that any provisions which he had anywhere for his own use were included.

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TITLE X. CONCERNING BEQUESTS OF HOUSEHOLD GOODS.

1. Pomponius, On Sabinus, Book VI.

Furniture, or any domestic utensils belonging to the head of a family, but not including articles of silver or gold, or clothing,

2. Florentinus, Institutes, Book XI.

That is to say, movable property, but not animals, is classed under this head.

3. Paulus, On Sabinus, Book IV.

The following are embraced in bequests of household goods, namely: cupboards, benches, bedsteads, beds, even such as are inlaid with silver, mattresses, coverlets, pillows, vases for water, basins, candelabra, lamps, and ladles.

(1) Ordinarily, brazen vessels, for example, those which are not fastened to any certain place, are included.

(2) In addition to these are strong boxes and coffers. Some authorities very properly hold that wardrobes and chests of drawers, if intended for the storage of clothes or books, should not be classed as household goods, because the articles for which they are designed are not included in that category.

(3) Glass vessels for the table, used both for eating and drinking, are included among household goods, as well as earthenware vessels, not only common ones, but also such as are of great value. For there is no doubt that silver basins and bowls, tables and bedsteads inlaid with gold or silver and set with jewels, are included in the term household goods, even to the extent that the same rule applies where they are entirely made of these precious metals.

(4) There is some doubt with reference to vases of iridescent glass, and of crystal, whether they form part of the household goods on account of their rarity and value, but the same rule must be said to also apply to them.

(5) Nor does it make any difference of what material the articles composing the household goods are made, but neither silver cups, nor silver vases are included, on account of the severity of the age, which does not admit of silver furniture. At present, however, if a silver candlestick is placed among silver-ware, on account of a misconception of ignorant persons, it will be considered to form part of it, and the error will establish the right.

4. The Same, Concerning the Meaning of Equipment.

A four-wheeled chariot and its cushions are included in the term household goods.

5. The Same, On Sabinus, Book IV.

With reference to tapestry, and the other coverings of seats and chairs, it may be asked whether they are included under the head of clothing, as coverlets, or under that of household goods, as pillows, which, properly speaking, are not coverlets. I think that the better opinion is that they should be classed as household goods. So far as cloths or linen coverings which are placed over vehicles are concerned, is there any doubt whether they should be included among household goods? It must be said that they ought rather to be classed as baggage for a journey, just as skins in which clothing is wrapped up and with the straps with which the said skins are usually fastened.

6. Alfenus, Epitomes of the Digest by Paulus, Book III.

I think that such things as are intended for the ordinary use of the head of the family should be included among household goods, where they have no distinct name peculiar to them. Therefore, articles which are employed in some trade, and are not adapted to the ordinary use of the head of the family, are not embraced in the term household goods.

(1) Small writing tablets and memorandum books are not classed as household goods.

7. Celsus, Digest, Book XIX.

Labeo says that the term "supellex" is derived from the custom of persons who, when about to start on a journey, were accustomed to place in skins such articles as would be of use to them.

(1) Tubero attempts to explain the term household goods as utensils destined for the daily use of the head of the family, which do not come under some other designation, as, for example, provisions, silver plate, clothing, ornaments, implements intended for farming or for a house.

It is not strange that the name has changed with the manners of the citizens, and their use of different articles; for, in former times, household goods were composed of earthenware, wood, glass, or copper, and afterwards they were made of ivory, tortoise-shell, and silver, and, at present, gold and even jewels are employed as material for such things. Hence, it is necessary to consider the nature of the articles, rather than the material of which they are composed, in order to determine whether they should be classed as household goods, silver plate, or clothing.

(2) Servius admits that it is necessary to ascertain the intention of the person who made the bequest, and the category in which he was in the habit of placing the articles bequeathed. If, however, anyone is accustomed to designate as household goods things which there is no doubt should be classed otherwise (as, for instance, silver plate for the table, cloaks, and togas), it should not, for that reason, be held that the articles which he left are also included among his household goods; for the names should not be derived from the opinions of individuals, but from the custom of people in general.

Tubero says that this does not seem to be clear to him, for he asks of what value are names unless to show the intention of the person who uses them. And, indeed, I do not think that anyone would say something which he did not intend, especially if he used the term by which the article was commonly designated; for we make use of speech, and no one should be presumed to have said what he did not have in his mind. However, although the judgment and the authority of Tubero has great weight with me, still, I do not dissent from the opinion of Servius, that a man should not be considered to have said anything because he did not make use of the name by which it is indicated. For although the intention of the person speaking is preferable, and more important than his words, still, no one is held to have said anything without speech, unless indeed, those who cannot talk, and by their gestures and the utterance of certain sounds, that is to say, by inarticulate expressions, are considered to have spoken.

8. Modestinus, Opinions, Book IX.

A husband having devised to his wife a house with all its appurtenances, its utensils, and its furniture, the question was asked whether the silver table service, both for eating and drinking, was included in the legacy. The answer was that if anything made of silver was found among the furniture, it would be included, but that the silver for table service would not be, unless the legatee could prove that the testator had the intention of bequeathing it also.

9. Papinianus, Opinions, Book VII.

Where a bequest of household goods is made, and the description of the articles is, through ignorance, set forth with unnecessary minuteness, it does not affect the general legacy. If, however, the number of the articles specified is stated, the amount is understood to have been reduced with reference to the kind of household goods referred to. The same rule shall be observed where land with all its equipment is devised, and a certain number of different kinds of implements are mentioned.

(1) It is well established that tables of every kind of material (for instance, those of silver or inlaid with silver) are included in household goods. The custom of the present age classes silver bedsteads and silver candelabra among household goods; for, as Homer says, Ulysses ornamented with gold and silver a bedstead made of the trunk of a green tree, by which Penelope recognized her husband.

(2) Where a testator bequeathed all of his household goods, certain silver plate which had been received by way of pledge was not held to be included, because he only bequeathed his own effects, especially as the said silver plate had not been used by the creditor, with the debtor's consent, but he had put it aside as security for the payment of the obligation, to be returned when the latter was discharged.

10. Javolenus, On the Last Works of Labeo, Book III.

A certain man who was accustomed to set down in his expense account all his clothing, as well as articles of different kinds, as "furniture," bequeathed his household goods to his wife. Labeo, Ofilius, and Cascellius very properly deny that the clothing was embraced in the legacy, because it cannot be said that clothing is classed as furniture.

11. The Same, On the Last Works of Labeo, Book X.

Labeo and Trebatus think that brass vases placed under jets of water, and also other articles designed for pleasure rather than for use, are not included among household goods.

Vessels of iridescent glass and of crystal, which are to be used for drinking purposes, it is said, should be classed as household goods.

12. Labeo, Epitomes of Probabilities by Paulus, Book IV.

Just as urban and rustic slaves are distinguished, not by the place in which they are, but by the nature of their employment, so, likewise, urban provisions and household goods should be classified according to their use in a city, and not from the mere fact of their being situated there, or elsewhere; and it makes a great deal of difference whether provisions and household goods which are in the city are bequeathed, or where they are bequeathed as belonging to the city.

13. Modestinus, Opinions, Book IX.

He gives it as his opinion that where a husband bequeaths his household goods to his wife by will, he should never be considered to have devised to her the residence in which the said household goods were situated; and therefore there is no doubt whatever, if the woman should claim the residence for herself, that this would be contrary to the intention of the deceased.

14. Callistratus, On Judicial Inquiries, Book III.

When a tract of land is devised, its equipment will not be embraced in the legacy, unless this was expressly mentioned; for where a house is devised, neither its utensils nor its furniture are included, unless this was explicitly stated by the testator.

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