William Alexander Hunter.

A systematic and historical exposition of Roman law in the order of a code online

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1**. When a time was limited by the testator.

A legacy was bequeathed to Titins after ten years, if he did not exact aecority
from the heir. Titius died in five years, and of course after that it was impossible he
should exact security, so that by his death the condition was fulfilled. The legacy is,
therefore, transmitted to his heir. (D. 35, 1, 103.)

2**. When no time is fixed by the testator.

" Let Stichus be free if he does not go up the Capitol." So long as Stichus lived
it was possible he might go up the Capitol, and thus defeat the bequest of freedom.
Can Stichus obtain his freedom t The answer depends on the intention of the tes-
tator. If the testator meant the condition to be taken literally— that is, if he meant
Stichus to get his freedom only with his last breath— the legacy was a mockery and
void. (D. 40, 4, 61, pr.) But if the testator really wished Stichus to be free, then it
was held that the condition was fulfilled as soon as he had an opportunity of gmng up
the Capitol, and did not go. (D. 40, 4, 17, 1.)

" A legacy to Seia, if she does not many Titius." She marries Gains. Still the
condition is not fulfilled, because (ralus may die, and she may marry Titius. It » in
effect, therefore, a legacy to her on her death or the death of Titius, whichever
happens first. (D. 35, 1, 106.)

Muciana Cautio.

To obviate this inconvenience, a legatee was allowed in
certain cases to take the legacy, subject to a promise by stipula-
tion to the person entitled to the legacy on the failure of the
condition (D. 35, 1, 18) to restore the object of the bequest,
with all the profit derived from it (D. 31, 76, 7), if he did that
which the condition forbade him to do. (D, 35, 1, 79, 2.) This
was called the cautio Muciana. This practice was sanctioned
by the opinion of Aristo, Neratius, and Julian, and lastly by a
constitution of Antoninus Pius, It applied generally in favour
of heirs as well as legatees, when the condition was negative
{in non faciendo). (D. 35, 1, 7, pr.)


A wife appointed her husband heir for a part of her property, if be did not sae
for or exact payment of the dowry she had promised, but had never given him. Tbo


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hxisband may give notice to the co-heir, and npon offering him a release or a stipula-
tion not to sue, may enter as heir. (D. 35, 1, 7, 1.)

A usufruct is bequeathed subject to a condition of not doing something. The
usufructuary is entitled to possession on giving the Mitciana cautio. (D. 36, 1, 79, 3.)

But the legatee is not entitled to oflFer this security, when
the condition of not doing (non faciendi) is meant by. the testator
to indicate some particular event.


** A legacy to a daughter-in-law if she does not divorce her husband." The meaning
of this is, that the legacy is due on the death of the husband. (D. 35, 1, 101, 3.)

** A legacy to Titia if she does not go away from her children." Strictly, this would
mean after the death of the children, and such was the decision of some jurists ; but
Fapinian said the Mueiana cautio must be allowed, because the testator could not be
supposed to have had before his eyes the sinister contemplation of the death of the
children before their mother. (D. 35, 1, 72, pr.)

III. Restrictions on Conditions,

1. A legacy is void if the condition deprives it of positive


A legacy of dO aurti, on condition that the legatee gives the heir 50 aum, is
nugatory. (D. 85, 2, 65.)

" If Titius gives security to my heir to give Maevius 100 aurtiy let my heir give
Utius 100 aurei" This \a a valid legacy, and is equivalent to a legacy of 100 aurei to
Titius on trust for Maevius. (D. 30, 84, pr.)

A l^acy of a farm supposed to be worth 100 aurei was made to Titius, on condition
of his giving the heir 100 aureL The legacy is valid, because the farm may have a
special value to Titius. (D. 31, 54.)

2. The condition " si voletj^

The condition " if the heir pleases " makes a legacy nugatory
(D. 30, 43, 3), just as a contract cannot be made if the promiser
is bound only according to his own good pleasure. But if the
language does not imply that the choice is perfectly arbitrary,
as if it be " if you think fit " (si fueris arbitratus, si putaveris,
si aestimaveris, si utile tihi fuerit visum)^ the condition is good,
and is interpreted to mean the discretion of a fair and honest
man (arbitrium viri boni). (D. 40, 6, 46, 3.)


'* I desire and beg you, sweetest sister, to regard with the utmost favour Stichus
and Dama, my stewards, whom I have not manumitted until they shall have rendered
their accounts. And if they also are approved by you, I have stated my opinion." It
was held that the sister could not refuse to receive the accounts ; and if they were
satisfactory in the eyes of a reasonable man, she must give them their freedom.
(D. 40, 5, 41, 4.)

A testator charged his heir, if he did not obey a particular injunction of the will.


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to give a legacy. This is a good condition, although it is in his power to do it or not
to do it, and therefore the legacy may seem to be left to his good pleasure. (D. 31, S.)

*' Unless my heir refuses, let him give." This is a good condition, requiring the
express assent of the heir to the vesting of the legacy. (D. 82, 11, 5.)

A legacy of a thing on trust to give it to another when the l^^tee pleases, is valid,
and enables the legatee to keep it for the whole of his life. (D. 82, 41, 13. )

"To Titius, if he wishes, I bequeath Stichus.** The legacy is conditional (D. 30,
65, 1), and does not vest until the legatee accepts. (D. 35, 1, 69.)

** Let Publius Maevius, if he wishes, be heir." A different rule applies to the heiE.
The clause, si voUt, is held to be superfluous, and not to make a condition, except in
the single case where a slave of the deceased was named heir. (D. 28, 7, 12.) Hm
slave was the only person that was compelled to take. The reason of the difierent
interpretation between legacy and inheritance was, no doubt, an anxiety to prevent
wills being made void. If a legatee did not accept, no one suffered but himsftlf ; bat if
an heir did not take, all the legacies fell to the ground.

An appointment of heirs cannot be left to the decision of a
third person. Such a condition was inconsistent with the
theory that a testament derived its authority from the will of
the deceased, not from the will of apjy other person. (D. 28,
5, 32.)

*' If Titius pleases, let Sempronius be heir." The assent of Titius gives no efficacy
to such an appointment. But, "If Titius ascends the Capitol, let Sempronius be
heir," is a ^ood appointment, although it is entirely in the power of Titius to go up or
not. (D. 28, 5, 68.)

Whether a legacy can be left to the assent of a third person,
is a point on which the Digest speaks with an uncertain voice.
"If Titius ascends the Capitol, let my heir give Maevius
100 aureiy^ is a good condition, but there is a diflFerence of
opinion in regard to the form " If Titius pleases." Modestinus
says such a condition makes the legacy nugatory, and cites this
as an illustration of the rule, " expressa nocent, non eapressa nan
nocent;^^ and that the express dependence of a legacy on the
will of a third person is void, although the implied dependence,
as in " if he goes up the Capitol," is valid. (D. 35, 1, 52.) On
the other hand, Ulpian says there is no diflference between the
two, and that both conditions are good. (D. 31, 1, pr.)

Power op Appointment. — An heir or legatee might be charged to give certain
property to certain persons, as "my freedmen,'* "to which of them he pleases,**
{cui eorum voles, rojo reslUtuis). If he did not appoint any one of them, all are entitled to
equal shares, according to a rescript of Antoninus Pius. (D. 40, 7, 21, 1 ; D. 81, 67, 7.)

If any person is selected under such a trust, he takes not from the heir or legatee
that has the power of appointment, but from the testator, in the same manner as if be
had been named legatee in the wiU. (D. 31, 67, pr.)

3. Conditions that cannot take eflfect until after the death
of the heir or legatee.


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A legacy, after the death of the heir or legatee, in like manner was void ;
as, for instance, when any one said thus, " When my heir shall be dead, I
give and leave it ; '* or again, " The day before my heir or legatee shall die."
But in a like way we have corrected this too, and have given effect to legacies
of this kind after the analogy of trusts, that even in this case legacies
might not be found to be in a worse position than trusts. (J. 2, 20, 35.)

4. Impossible and illegal conditions.

When the condition cannot be fulfilled, or is forbidden by the
law to be fulfilled, it is regarded as a superfluity, leaving the
legacy valid and unconditional. (D. 35, 1, 3 ; D. 28, 5, 50, 1.)
The legacy vests {dies cedit) at the death of the testator. (D. 36,
2, 5, 3 ; D. 36, 2, 5, 4.)

(0.) Restrictions on Legaot.

I. In respect of the object of a legacy.

In describing the rights and duties arising from bequest, we
have shown by particular examples the range of things that
might be the objects of a legacy. Not only every right of
property, but rights arising from contract, and even a hereditas,
might be bequeathed. The limits, then, to legacy are simply
the limits to property.

It has also been mentioned that a testator could by way of
trust bequeath what did not belong to him to a legatee.

Not only what belongs to the testator or his heir, but what belongs to
another, can be left as a legacy. In that case the heir is forced to buy it up
and supply it ; or if he cannot buy it up, to give its value. If, however, the
thing is such that it cannot be bought or sold, not even its value is due ; —
as if a man leaves the Campus Martius^ or a basilica or temples, or things
set apart for the public use : for the legacy is of no force. In saying that
what is another's can be left as a legacy, we must be understood to mean if
the deceased knew that it was another's, but not if he did not know ; for
perhaps if he had known it was another's he would not have left it ; and so
the late Emperor Pius decided in a rescript. The truer view also is, that
the man that brings the action (the legatee, that is), ought to prove that the
deceased knew the thing was another's, not that the heir ought to prove he
did not know it was another's ; because the necessity of proving his case
rests always on him that brings the action. (J. 2, 20, 4.)

If a man leaves what is his own in the belief that it is another's, the
legacy takes effect ; for what rests on truth is more effectual than what rests
on opinion. If, further, he thought it was the legatee's, it is agreed that the
legacy takes effect, because the wishes of the deceased can be fulfilled. (J. 2,
20, II.)

If a man leaves as a legacy what belongs to the legatee, the legacy
is void : because what is his private property cannot become any more
his ; and although he has alienated it, neither it nor its value is due.
(J. 2, 20, 10.)


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II. Who may not be legatees.

A legacy can be left to those only with whom there is tesiamenti /actio.
(J. 2, 20, .24.)

Those that cannot be heirs cannot be legatees ; but can an
heir be also legatee under the same will I A sole heir cannot
be legatee, because he would at the same time be both creditor
and debtor : as legatee he would be creditor, and as heir debtor.
But if there are several heirs, one of them may be charged with
a legacy in favour of the others. (D. 30, 116, 1.) This gives
rise to a curious result when the heir is made co-legatee along
with other persons not heirs.


A farm is bequeathed to Titius (one of two co-heirs), and to Seius, who is not heir.
Titius is entitled to half the farm, Seius to the other half. But since there are two
heirs jointly liable, Titius can claim one-half of his half from his co-heir. Can he
claim the other half of the half from himself ? No, for then he would be at once
creditor and debtor. He can claim, therefore, only one-half of his share from the
co-heir, and thus Seius gets in addition to his own half a half of the share of Titius.
(D. 30, 34, 11.)

A farm is bequeathed from Titius and Seius, co-heirs, to Titius, A, and B, as 00-
legatees. If Titius were not heir, he, along with A and B, would be entitled to a
third o£ the farm. But this third, as it happens, is due in equal parts from himnelf
and Seius. He cannot get the part due from himself ; therefore he gets only the half
of his third, t.e. one-sixth of the whole. The other half is divided equally between
A and B, who thus each get one-third plut one-twelfth, or five-twelfths, Titius getting
two-tweUths. (D. 30, 116, 1.)

Titius and Gains are co-heirs, Titius having one ounce and Gaius eleven omieca.
A farm is given them as a legacy. In what proportion will they enjoy the legacy ?
Titius as heir cannot owe to himself any part of the farm, but Gaius can -owe him
eleven-twelfths of the farm. Gaius cannot owe himself any portion of the farm, but
Titius, as heir for one-twelfth, may owe him one-twelfth. Thus Titius gets eleven-
twelfths of the farm, and Gaius one-twelfth, and they take the legacy in shares inrenely
as their shares of the inheritance. (D. 30, 34, 12.)

A slave could not be a legatee, except for aliment.

An annuity for aliment was left to a person who was condemned to the mines, but
afterwards puxioned by the Emperor. Held that he was entitled to payment for the
time he was a convict, as well as for future years. (D. 34, 1, 11.)

A slave is to be freed after a certain time, and meanwhile a legacy of aliment is
given. Held that before he attains freedom, he may, according to a rescript of
Severus Antoninus (D. 33, 1, 16), claim the allowance. (D. 30, 113, 1.) Even if the
slave dies before the tune fixed for his manumission, what has been given him as an
allowance cannot be demanded back by ao heir from the co-heir who made the allav>
auce. (D. 10, 2, 39, 2.)

Can the slave of a sole heir be legatee ?

Whether a legacy we leave to a person in the poUsUis of the man wc


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appoint our heir is a good one, is questioned. Servius approves of the view
that it is good, but thinks the legacy disappears if he is still in potestate at
the time when the legacies usually vest. Whether, therefore, the legacy is
unconditional, and in the lifetime of the testator he ceases to be in ih^potestas
of the heir, or whether it is conditional, and that happens before the condi-
tion is fulfilled, in either case he holds the legacy is due. Sabinus and
Cassius, on the other hand, think a legacy can rightly be left conditionally,
but not unconditionally. Although, they say, he might in the testator's life-
time cease to be in the potestas of the heir, yet on this ground the legacy
ought to be understood to be void, that it would have no force if the testator
died at once after making the will ; and it would be absurd to say that it
took effect because he dragged out his life longer. The authorities of the
opposing school, again, think that not even conditionally can the legacy be
a good one ; because we can owe nothing tj^i^bose we have in our potestas
any more conditionally than unconditionally. (G. 2, 244.)

Whether a legacy we leave to a slave of our heir is a good one is questioned.
It is agreed that an unconditional legacy is void, and that it goes for nothing
that in the testator's Hfetime the legatee went out of \hQ potestas of the heir ;
because since the legacy would have been void if the testator had died at
once after making his will, it ought not to take effect merely because the
testator lived longer. A conditional legacy, however, is a good one ; so that
we must ask carefully whether at the time the legacy fell due the slave was
not in ih^ potestas of the heir. (J. 2, 20, 32.)

On the contrary, it is agreed that through a person in your potestas, if he
is appointed heir, a legacy can rightly be left to you. If, however, you
become heir through him, the legacy vanishes ; because you cannot owe
yourself a legacy. But if the son is emancipated or the slave manumitted
or transferred to another, and himself becomes heir or makes another heir,
then the legacy is due. (G. 2, 245.)

On the contrary, if a slave is appointed heir, there is no doubt that even
an imconditional legacy to his master is a good one. For even if the testator
died at once after making the will, yet the legacy is not understood to vest in
him that is heir ; because the inheritance is distinct from the legacy, and
through the slave another can be made heir, if before he enters on it by his
master's orders he is transferred to the potestas of another, or by being
manumitted is himself made heir. In these cases the legacy is good. But
if he remains in the same case, and enters by order of the legatee, the legacy
disappears. 0- 2, 20, 33.)

III. Unlawful objects, or purposes, or conditions.

1. A thing cannot be acquired twice bj a lucrativa caitsa.

If what belongs to another is left as a legacy, and in the testator's lifetime
the legatee becomes its owner, then if the ground of its ownership is purchase,
he can under the will obtain the price by an action ; but if the ground of his
ownership is gainful (tucrativa) — if it is a gift for instance, or any other like
ground — he cannot bring an action. The rule handed down is this, that two
grounds of ownership both gainful cannot meet in the same man with regard
to the same thing. On this principle, if under two wills the same thing is
due to the same man, it makes a difference whether he obtained the thing or
its value under one will If he obtained the thing he cannot bring an action,


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because he has the thing on a ground that is gainful ; but if he obtained its
value, he can bring an action. (J. 2, 20, 6.)

To acquire a thing luercUiva causa is to obtain it without a valuable oonaideratkin.

If a man has another man's farm left him, and buys the ownership of it
without the usufruct, and the usufruct comes to him, and thereafter he brings
an action under the will, Julian says he can rightly bring the action and
demand the farm, because in his demand the usufruct holds the place of a
servitude. But it falls within the duty of the judge to order the value, less
the usufruct, to be made good to him. (J. 2, 20, 9.)

In this case the assumption is that the usufruct is obtained without valuable con-
sideration. In strict law, this was immaterial in an action brought for ownenhip, the
usufruct being viewed as a servitude. But although technically a servitude, the
usufruct was substantially a fragment of the ownership, and therefore the legatee wm
allowed to recover only the value of the reversion, ue. deducting the usufruct or life-

2. Legacy left by way of penalty.

To leave a legacy, or to revoke it, or to transfer it by way of a penalty,
was useless. A legacy is left by way of a penalty when it is left in order
to coerce the heir, and to make him do or not do something. An
instance is if a man writes thus, " If my heir bestows his daughter
in marriage on Titius ; " or, on the contrary, " If he does not bestow
her, let him give 10 aurei to Seius;" or if he writes thus, "If my heir
alienates the ^lave Stichus^ " or, on the contrary, " If he does not alienate
him, let him give Titius 10 aureiP So much was this rule observed that
very many imperial constitutions point out that not even the Emperor him-
self will accept a legacy left him by way of penalty. Even under a
soldier's will such legacies did not take effect, although in other cases the
wishes of soldiers in drawing up their wills are closely observed. Nay,
even a grant of freedom, it was held, could not be made by way of a
penalty. More than that, not even an heir could be added by way of a
penalty, as Sabinus thought ; as if one were to speak thus, " Let Titius
be heir. If Titius bestows his daughter on Seius in marriage, let Seius also
be heir ;" for it made no difference in what way Titius was coerced, whether
by giving a legacy or by adding an heir. But of such niceties as these we do
not approve. We have therefore settled generally that what is left or
revoked or transferred to others, although by way of a penalty, is to
differ in no point from all other legacies as regards the giving or revoking or
transfer, except, of course, things impossible or forbidden by the statutes, or
otherwise disgraceful ; for dispositions of this sort by testators the views of
my times do not suffer to take effect. (J. 2, 20, 36.)

3. Restraint on the liberty of the legatee.

A legacy was made to a person on condition that he should always dwell in the
same city, near the tomb of deceased. The legacy is valid, but the conditiozi is
void. (D. 85, 1, 71, 2.) But such a restriction may be imposed on freedmen who get
a legacy of aliment ; so that if they neglect the testator's injunctions, their aliment may
be stopped. (D. 34, 1, 18, 6.)

4. Restraint on alienation of property.


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In terms of a rescript of Severus and Antoninus, a general
or absolute prohibition of alienation of property left by legacy
was void; but if the restriction was made in the interest of
children, freedmen, heirs, or any specified person, it was upheld
— ^without prejudice, however, to the creditors of the testator.
. (D. 30, 114, 14.)


Julius Ag^ppa in his will enjoined his heir not to mortgage nor in any manner
alienate his burial-ground and suburban residence. His daughter was heir, and
died, leaving a daughter, her heir, who in turn died, appointing curtain persons not
in the family her heirs. All this time the property in question had never changed
hands. Julia Domna was niece to Julius Agrippa. Could she claim under the will of
Julius Agrippa against the heirs named in his granddaughter's will, on the ground that
the condition against alienation had been broken ? No, because the prohibition in the
will was absolute and unqualified, not limited by any object— as, to keep the property
in the family. (D. 32, 38, 4.)

A mother appointed her sons heirs, and enjoined them " on no account to alienate
the lands they would obtain from her, but to preserve them to their own family, and
to give reciprocal sureties to that eflTect.*' ' Held that this restriction was void on
account of its being absolute and unqualified. (D. 32, 38, 7.)

A father appointed his son Titius heir. Titius had three sons. The father
bequeathed a farm to Titius on trust not to alienate it, but to keep it in the family.
Titius died appointing as heirs his two sons and a stranger to the family. Held that
the third son could under the will of his grandfather demand a third of the farm.
(D. 80, lU, 15.)

A father bequeathed a farm to his son, forbidding him, during his lifty to sell, give
away, or pledge the land ; adding, that if he acted against his will the farm should (2ro
to the Exchequer ; for the prohibition was imposed in order that the farm should never
go out of the family. On account of the limit, during his life, it was held that the son
could hequecLth the property even to persons not in his family. (D. 32, 38, 3.)

A testator bequeathed land with a shop to fifteen of his freedmen by name, and
added, ** I wish them to have and hold on the condition and terms that no one of them
shaU sell, give away, or in any other manner dispose of his share, if anything is done
against this injunction, then I wish the portions so dealt with to belong to the town of .
Tuaculum." Some of the freedmen sold their shares to two of the joint-tenants, and
these two dying, left Gaius Seius (who was not one of the freedmen) his heir. This
was not a forfeiture to the town of Tusculum, because it is consistent with the
wiU that a freedman might sell to his f ellow-freedmen (although not to a stranger) ; and
a freedman was not forbidden to leave what he had bought, but only what he had
acquired from the will of the deceased patron. (D. 32, 38, 5.)

A testator appointed heirs his son and his son's children, who were emancipated, and
said, ** My will is that my houses be neither sold nor mortgaged by my heirs, but that
they remain intact for ever to them and their children and grandchildren. If any of
them desires to sell or mortgage his share, it shall be lawful for him to sell or mort-
gage to his co-heir. Whatever any of them does against this will shall be null and

Online LibraryWilliam Alexander HunterA systematic and historical exposition of Roman law in the order of a code → online text (page 95 of 115)