| II:I De rerum divisione II:II De rebus incorporalibus II:III De servitutibus II:IV De usufructu II:V De usu et habitatione II:VI De usucapionibus et longi temporis possessionibus II:VII De donationibus II:VIII Quibus alienare licet vel non II:IX Per quas personas nobis adquiritur II:X De testamentis ordinandis II:XI De militari testamento II:XII Quibus non est permissum testamenta facere II:XIII De exheredatione liberorum |
II:XIV De heredibus instituendis II:XV De vulgari substitutione II:XVI De pupillari substitutione II:XVII Quibus modis testamenta infirmantur II:XVIII De inofficioso testamento II:XIX De heredum qualitate et differentia II:XX De legatis II:XXI De ademptione legatorum II:XXII De lege Falcidia II:XXIII De fideicommissariis hereditatibus II:XXIV De singulis rebus per fideicommissum relictis II:XXV De codicillis |
| 2:1 On the division of things 2:2 On incorporeal things 2:3 On servitudes 2:4 On usufruct 2:5 On use and habitation 2:6 On usucaptions and long-term possessions 2:7 On donations 2:8 Who are allowed to alienate, or not 2:9 Through which persons acquisition is made for us 2:10 On ordering testaments 2:11 On the military testament 2:12 To whom it is not permitted to make testaments 2:13 On the disinheritance of children |
2:14 On appointing heirs 2:15 On vulgar (common) substitution 2:16 On pupillary substitution 2:17 By what modes testaments are invalidated 2:18 On the inofficious testament 2:19 On the quality and difference of heirs 2:20 On legacies 2:21 On the ademption of legacies 2:22 On the Lex Falcidia 2:23 On fideicommissary inheritances 2:24 On individual things left by fideicommissum 2:25 On codicils |
Superiore libro de iure personarum euimus: modo videamus de rebus. quae vel in nostro patrimonio vel extra nostrum patrimonium habentur. quaedam enim naturali iure communia sunt omnium, quaedam publica, quaedam universitatis, quaedam nullius, pleraque singulorum, quae variis ex causis cuique adquiruntur, sicut ex subiectis apparebit.
In the preceding book we have dealt with the law of persons: now let us consider things, which are held either in our patrimony or outside our patrimony. For certain things are, by natural law, common to all; certain are public; certain belong to a universitas (corporate body); certain are of no one; most are of individuals, which are acquired by each person for various causes, as will appear from what follows.
Et quidem naturali iure communia sunt omnium haec: aer et aqua profluens et mare et per hoc litora maris. nemo igitur ad litus maris accedere prohibetur, dum tamen villis et monumentis et aedificiis abstineat, quia non sunt iuris gentium, sicut et mare.
And indeed by natural law these things are common to all: air, and flowing water, and the sea, and by this the shores of the sea. No one, therefore, is forbidden to approach the shore of the sea, provided, however, that he abstains from villas and monuments and buildings, because these are not under the law of nations, as the sea is.
Flumina autem omnia et portus publica sunt: ideoque ius piscandi omnibus commune est in portibus fluminibusque. Est autem litus maris, quatenus hibernus fluctus maximus excurrit. Riparum quoque usus publicus est iuris gentium sicut ipsius fluminis: itaque navem ad eas appellere, funes ex arboribus ibi natis religare, onus aliquid in his reponere cuilibet liberum est, sicuti per ipsum flumen navigare.
But all rivers and harbors are public; and therefore the right of fishing is common to all in harbors and rivers. The seashore is, moreover, as far as the greatest winter wave runs up. The use of the banks likewise is public by the law of nations, just like that of the river itself: and so to bring a ship up to them, to tie ropes to trees growing there, to set down any cargo upon them, is free to anyone, just as it is to navigate the river itself.
but the property of them belongs to those to whose estates they are attached; for which reason the trees likewise born in the same places are theirs as well. The public use of the shores also is by the law of nations, just as that of the sea itself; and on that account it is free for anyone to set a hut there in which they may take refuge, as also to dry nets and to draw them up from the sea. But the ownership of these can be understood to be no one’s, but to be of the same law as the sea, and so too the land or sand that lies beneath the sea.
Nullius autem sunt res sacrae et religiosae et sanctae: quod enim divini iuris est, id nullius in bonis est. Sacra sunt, quae rite et per pontifices Deo consecrata sunt, veluti aedes sacrae et dona quae rite ad ministerium Dei dedicata sunt, quae etiam per nostrum constitutionem alienari et obligari prohibuimus, excepta causa redemptionis captivorum. si quis vero auctoritate sua quasi sacrum sibi constituerit, sacrum non est, sed profanum.
However, sacred, religious, and holy things belong to no one: for whatever is of divine law is the property of no one. Sacred are those things which have been duly and through the Pontiffs consecrated to God, for example sacred shrines and gifts which have been duly dedicated to the ministry of God, which too by our constitution we have prohibited to be alienated and encumbered, except for the purpose of the redemption of captives. But if anyone, by his own authority, should constitute something as if sacred for himself, it is not sacred, but profane.
The place, moreover, in which sacred temples have been built, even with the building demolished, remains still sacred, as also Papinian wrote. A religious place each person makes by his own will, when he brings in a dead body into his own place. But into a common pure place it is not permitted to inter against a partner unwilling; whereas into a common sepulcher it is permitted to inter even the others being unwilling.
likewise, if the usufruct belongs to another, it is held that the proprietor, unless the usufructuary consents, is not to make the place religious. into another’s place, with the owner granting permission, it is permitted to inter; and even if he has ratified it only afterwards, after the dead man has been brought in, nevertheless the place becomes religious. Sacred things also, such as walls and gates, are in a certain manner of divine law and therefore are in no one’s goods.
Singulorum autem hominum multis modis res fiunt: quarundam enim rerum dominium nanciscimur iure naturali, quod, sicut diximus, appellatur ius gentium, quarundam iure civili. commodius est itaque a vetustiore iure incipere. palam est autem, vetustius esse naturale ius, quod cum ipso genere humano rerum natura prodidit: civilia enim iura tunc coeperunt esse, cum et civitates condi et magistratus creari et leges scribi coeperunt.
As for individual persons, their things come to be in many ways: for we acquire the dominion of some things by natural law, which, as we said, is called the law of nations, and of others by civil law. It is therefore more commodious to begin from the more ancient law. It is manifest, moreover, that natural law is more ancient, which the nature of things brought forth together with the human race itself: for civil laws then began to exist, when both cities began to be founded and magistrates to be created and laws to be written.
Ferae igitur bestiae et volucres et pisces, id est omnia animalia quae in terra mari caelo nascuntur, simulatque ab aliquo capta fuerint, iure gentium statim illius esse incipiunt: quod enim ante nullius est id naturali ratione occupanti conceditur. nec interest, feras bestias et volucres utrum in suo fundo quisque capiat, an in alieno: plane qui in alienum fundum ingreditur venandi aut aucupandi gratia, potest a domino, si is providerit, prohiberi, ne ingrediatur. quidquid autem eorum ceperis, eo usque tuum esse intellegitur, donec tua custodia coercetur: cum vero evaserit custodiam tuam et in naturalem libertatem se receperit, tuum esse desinit et rursus occupantis fit.
Therefore wild beasts and birds and fishes— that is, all animals which are born on land, in the sea, and in the sky— as soon as they have been captured by someone, by the law of nations immediately begin to be his: for what previously is no one’s is, by natural reason, conceded to the occupant. Nor does it matter whether one takes wild beasts and birds on his own land or on another’s: plainly, he who enters another’s land for the sake of hunting or fowling can, by the owner, if he has taken precautions, be prohibited from entering. Whatever of them you have taken is understood to be yours so long as it is restrained by your custody; but when it has escaped your custody and has betaken itself to its natural liberty, it ceases to be yours and becomes again that of the next occupant.
it is understood to recover natural liberty when it has either escaped your eyes, or is so in your sight that its pursuit is difficult. The question has been raised whether, if a wild beast has been wounded in such a way that it can be captured, it is to be understood as immediately yours. Some have decided that it is at once yours, and is to seem yours so long as you pursue it; but if you cease to pursue, it ceases to be yours and again becomes that of the occupier (the one who seizes it).
and so those which have settled in your tree, before they are enclosed by you in a hive, are understood to be no more yours than birds which have made a nest in your tree: and therefore if someone else has enclosed them, he will be their owner. Honeycombs too, if any they have made, anyone can extract. Plainly, with the matter intact, if you have anticipated someone entering your estate, you can by right forbid him, that he not enter.
A swarm which has flown out from your hive is understood to be yours so long as it is in your sight and its pursuit is not difficult; otherwise, it becomes the property of the occupant. Peacocks and pigeons have a wild nature. Nor does it pertain to the point that by consuetude they are wont to fly away and fly back; for bees do the same, whose nature is established to be wild. Deer likewise some keep so tame that they are accustomed to go into the woods and return, and no one denies that these too have a wild nature.
but in the case of those animals which by consuetude are wont to go away and return, such a rule has been approved, that they are understood to be yours so long as they have the intention of returning; for if they have ceased to have the intention of returning, they also cease to be yours and become the property of the occupiers. and they seem to have ceased to have the intention of returning when they have abandoned the habit of returning. the nature of hens and geese is not feral, and this we can understand from the fact that there are other hens which we call feral, likewise other geese which we call feral.
If the force of the river has torn off some part from your estate and driven it onto the neighbor’s estate, it is clear that it remains yours. Clearly, if it has adhered for a longer time to the neighbor’s farm, and the trees which it carried along have thrust roots into that farm, from that time they are deemed to have been acquired for the neighbor’s farm. An island which has been born in the sea, which rarely happens, becomes the property of the occupier; for it is believed to be no one’s.
but an island born in a river, which happens frequently, if indeed it occupies the middle part of the river, is common to those who on both sides of the river possess estates near the bank, in proportion to the breadth of each estate, which breadth is along the bank. but if it is closer to one side, it belongs only to those who on that side possess estates near the bank. but if the river, divided in some part and then lower down united, has reduced someone’s field into the form of an island, that field remains that of the same person of whom it had been.
But if, the natural channel having been altogether abandoned, it has begun to flow by another course, the former channel indeed is theirs who possess estates near its bank, in proportion, namely, to the width of each field, which width lies near the bank; but the new channel begins to be of the same right as the river itself, that is, of the public. But if after some time the river shall have returned to its prior channel, then again the new channel begins to belong to those who possess estates near its bank. The case is otherwise, to be sure, if someone’s whole field has been inundated.
Cum ex aliena materia species aliqua facta sit ab aliquo, quaeri solet, quis eorum naturali ratione dominus sit, utram is qui fecerit, an ille potius qui materiae dominus fuerit: ut ecce si quis ex alienis uvis aut olivis aut spicis vinum aut oleum aut frumentum fecerit, aut ex alieno auro vel argento vel aere vas aliquod fecerit, vel ex alieno vino et melle mulsum miscuerit, vel ex alienis medicamentis emplastrum aut collyrium composuerit, vel ex aliena lana vestimentum fecerit, vel ex alienis tabulis navem vel armarium vel subsellium fabricaverit. et post multas Sabinianorum et Proculianorum ambiguitates placuit media sententia existimantium, si ea species ad materiam reduci possit, eum videri dominum esse qui materiae dominus fuerat; si non possit reduci, eum potius intellegi dominum qui fecerit: ut ecce vas conflatum potest ad rudem massam aeris vel argenti vel auri reduci, vinum autem aut oleum aut frumentum ad uvas et olivas et spicas reverti non potest, ac ne mulsum quidem ad vinum et mel resolvi potest. quodsi partim ex sua materia, partim ex aliena speciem aliquam fecerit quisque, velut ex suo vino et alieno melle mulsum aut ex suis et alienis medicamentis emplastrum aut collyrium aut ex sua et aliena lana vestimentum fecerit, dubitandum non est, hoc casu eum esse dominum qui fecerit: cum non solum operam suam dedit, sed et partem eiusdem materiae praestavit.
Whenever from another’s material some species (form) has been made by someone, it is wont to be asked, which of them by natural reason is owner—whether he who made it, or rather he who was owner of the material: as, for example, if someone from another’s grapes or olives or ears (of grain) makes wine or oil or grain, or from another’s gold or silver or bronze fashions some vessel, or from another’s wine and honey mixes mulsum (wine-and-honey), or from another’s medicaments composes an emplastrum (plaster) or a collyrium (eye-salve), or from another’s wool makes a garment, or from another’s boards constructs a ship or a cupboard (armarium) or a bench (subsellium). And after many ambiguities of the Sabinians and the Proculians, a middle opinion prevailed, of those who think that, if that species can be reduced back to the material, he is held to be owner who had been owner of the material; if it cannot be reduced, he rather is understood to be owner who made it: as, for example, a cast vessel can be reduced to a crude mass of bronze or silver or gold, but wine or oil or grain cannot return to grapes and olives and ears, and not even mulsum can be resolved back into wine and honey. But if anyone has made some species partly from his own material and partly from another’s—say, a mulsum from his own wine and another’s honey, or an emplastrum or a collyrium from his own and another’s medicaments, or a garment from his own wool and another’s—there is no doubt that in this case he is owner who made it: since he has not only given his labor, but has also furnished a part of the same material.
If, however, someone has interwoven another’s purple into his own garment, although the purple is more precious, by way of accession it yields to the garment; and the one who was owner of the purple has an action for theft and a condiction against the one who purloined it, whether he himself is the one who made the garment or another. For although things that have been extinguished cannot be vindicated, nevertheless they can be the object of a condiction from thieves and from certain other possessors. If the materials of two persons have been commingled by the will of the owners, the whole body that arises from the commixture is common to both, for example if persons have mixed their wines or have fused masses of silver or of gold.
but if the materials are diverse and on that account a proper species has been made, for instance mulsum from wine and honey, or electrum from gold and silver, the same in law applies: for even in that case it is not doubted that the species is common. But if either diverse materials or those of the same genus have been confused by chance and not by the will of the owners, it has been settled that the same law holds. And if Titius’s grain has been mixed with your grain, if indeed by your will, it will be common, because the individual bodies, that is, the individual grains, which were each one’s own, have by your consensus been made common.
but if it was mixed by chance, or Titius mixed it without your will, it does not seem to be common, because the individual bodies endure in their own substance, nor in these cases does the grain become common any more than a herd is understood to be common if Titius’s cattle have been mixed with your cattle. But if by either of you all that grain is retained, an action in rem lies according to the measure of each one’s grain, and it is contained within the judge’s discretion, for him to assess what the quality of each one’s grain was. When someone has built on his own soil with another’s material, he himself is understood to be the owner of the building, because everything that is built into the soil yields to the soil. Nor, however, on that account does he who had been the owner of the material cease to be its owner: but meanwhile he can neither vindicate it nor bring an action to produce it, on account of the Law of the Twelve Tables, by which it is provided that no one be compelled to remove another’s beam joined to his house; rather he obtains double for it through the action which is called de tigno iuncto (by the appellation “beam” is signified every material from which buildings are made): which was provided for this reason, lest it be necessary that buildings be cut down.
but if the building has been demolished for any reason, the owner of the material, if he has not already obtained the double, can then vindicate it and bring an action for production. Conversely, if someone has built a house on another’s soil with his own material, the house becomes his whose the soil is. but in this case the owner of the material loses its proprietorship, because it is understood to have been alienated by his will, particularly if he was not unaware that he was building on another’s soil: and therefore, although the house has been demolished, he will not be able to vindicate the material.
certainly this is agreed: if, with the builder established in possession, the owner of the soil claims that the house is his, and does not pay the price of the materials and the wages of the craftsmen, he can be repelled by the exception of dolus malus, especially if the one who built had been a possessor in good faith; for to one who knew the soil was another’s, fault can be imputed, because he rashly built on that soil which he understood to be another’s. If Titius were to set another’s sapling on his own ground, it will be his; and conversely, if Titius were to set his own sapling in the soil of Maevus, it will be Maevus’s sapling, provided in both cases it has put forth roots; before, however, it has put forth roots, it remains his whose it had been. Indeed, the ownership is so changed from the time that the plant puts forth roots that, if a neighbor’s tree is so pressed by Titius’s earth that it drives roots into his estate, we say it becomes Titius’s tree; for reason does not permit that a tree be understood to belong to any other than him into whose estate it has driven roots.
and therefore, if a tree set near the confine should even put forth roots into the neighbor’s fund, it becomes common. By the same rationale whereby plants which coalesce with the earth cede to the soil, grain too, which has been sown, is understood to cede to the soil. Moreover, just as he who has built on another’s soil, if the owner should claim the edifice from him, can be defended by the exception of dolus malus, according to the things which we have said, so by the aid of the same exception he who in good faith has sown another’s fund at his own expense can be safe.
Letters too, even if they are golden, in like manner accede to papers and parchments, just as things which are built into or inserted are accustomed to accede to the soil: and so if on your papers or parchments Titius should write a poem or a history or an oration, of this corpus not Titius, but you will seem to be the owner. But if you demand from Titius that your books or your parchments are yours, and are not prepared to pay the expense of the writing, Titius will be able to defend himself by the exception of malicious fraud, especially if in good faith he has chanced upon possession of those papers or parchments. If someone has painted on another’s panel, some think the panel accedes to the painting; to others it seems that the painting, of whatever sort it may be, accedes to the panel.
but it seems better to us that the tablet yield to the painting: for it is ridiculous that a painting of Apelles or of Parrhasius should yield, as an accession, to a most worthless tablet. whence, if from the owner of the tablet, who possesses the image, the one who painted it should demand it, and does not pay the price of the tablet, he can be removed by the exception of doli mali: but if the one who painted is in possession, it follows that a useful action be given to the owner of the tablet against him, in which case, if he does not pay the expense of the painting, he can be repelled by the exception of doli mali, especially if he who laid on the painting was a possessor in good faith. for this is plain: that, whether he who painted stole the tablets or someone else, an action for theft is competent to the owner of the tablets.
Si quis a non domino, quem dominum esse crederet, bona fide fundum emerit vel ex donatione aliave qua iusta causa aeque bona fide acceperit: naturali ratione placuit, fructus quos percepit eius esse pro cultura et cura. et ideo si postea dominus supervenerit et fundum vindicet, de fructibus ab eo consumptis agere non potest. ei vero qui sciens alienum fundum possederit non idem concessum est.
If someone from a non-owner, whom he believed to be the owner, in good faith has purchased a farm (estate), or has received it equally in good faith by donation or by some other just cause: by natural reason it has been settled that the fruits which he has collected are his, in return for cultivation and care. And therefore, if afterward the owner supervenes and claims the estate, he cannot bring an action for the fruits consumed by him. But to one who knowingly has possessed another’s estate, the same is not conceded.
and so he is compelled to restore along with the estate also the fruits, even if they have been consumed. He to whom the usufruct of the estate pertains becomes owner of the fruits in no other way than if he himself has perceived (i.e., gathered) them. And therefore, although the fruits are ripe, if he has died before they have yet been perceived, they do not pertain to his heir, but are acquired by the owner of the property.
Nearly the same things are said also about the tenant-farmer (colonus). In the fruits of livestock the offspring is included as well, just as milk and hair and wool: and so lambs and kids and calves and foals are at once, by the natural law of ownership, the usufructuary’s. But the issue of a female slave is not among the fruits, and so it pertains to the owner of the property: for it seemed absurd that a human being be among the fruits, since the nature of things has provided all fruits for the sake of human beings.
But if someone has the usufruct of a flock, in the place of the dead head(s) the usufructuary must supply replacements from the offspring, as also seemed right to Julian; and in the place of vines or trees that have died he ought to substitute others. For he ought to cultivate properly and to use it as if a good paterfamilias.
Thesauros, quos quis in suo loco invenerit, divus Hadrianus, naturalem aequitatem secutus, ei concessit qui invenerit. idemque statuit, si quis in sacro aut in religioso loco fortuito casu invenerit. at si quis in alieno loco non data ad hoc opera sed fortuitu invenerit, dimidium domino soli concessit.
Treasures which someone finds on his own place, the deified Hadrian, following natural equity, granted to the one who found them. He likewise established the same, if someone by fortuitous chance should find it in a sacred or in a religious place. But if someone in another’s place, not having applied work for this but by chance, should find it, he granted one half to the owner of the soil.
Per traditionem quoque iure naturali res nobis adquiruntur: nihil enim tam conveniens est naturali aequitati, quam voluntatem domini, volentis rem suam in alium transferre, ratam haberi. et ideo cuiuscumque generis sit corporalis res, tradi potest et a domino tradita alienatur. itaque stipendiaria quoque et tributaria praedia eodem modo alienantur.
By delivery too, by natural law, things are acquired by us: for nothing is so fitting to natural equity as that the will of an owner, willing to transfer his own thing to another, be held valid. And therefore, whatever be the kind of corporeal thing, it can be delivered, and, once delivered by the owner, it is alienated. And so even stipendiary and tributary estates are alienated in the same way.
But the estates called stipendiary and tributary are those which are in the provinces, between which and Italian estates, by our constitution, there is no difference. But if indeed they are delivered on the ground of gift or of dowry or on any other ground, they will without doubt be transferred: however, if sold and delivered, they are not otherwise acquired by the buyer than if he has paid the price to the seller or has satisfied him in some other way, as by an expromissor (a surety) or by a pledge given. This is indeed provided for also by the Law of the Twelve Tables: nevertheless it is rightly said that this is effected by the law of nations, that is, by natural law.
But also, if the one who sold has followed the buyer’s credit, it must be said that the thing at once becomes the buyer’s. Moreover, it makes no difference whether the owner himself delivers the thing to someone, or another does so with his will. For which reason, if to someone the free administration of business has been permitted by the owner, and he from these businesses has sold and delivered the thing, he makes it the recipient’s.
Sometimes even without delivery, the bare will of the owner suffices for transferring the thing, for example if he should sell to you or donate to you the thing which someone has lent to you for use, or has leased to you, or has deposited with you. although indeed he has not delivered it to you for that cause, yet by the very fact that he allows it to be yours, proprietorship is immediately acquired by you, just as if it had been delivered under that title. Likewise, if someone sells merchandise deposited in a granary, as soon as he has handed over the keys of the granary to the buyer, he transfers the proprietorship of the merchandise to the buyer.
Moreover, further, the will of the owner, even when placed upon an uncertain person, transfers the property of the thing: as, behold, praetors or consuls who hurl gifts into the crowd do not know which of them each person is going to catch, and yet, because they will that whatever each one has caught be his, they at once make him owner. On which reasoning it seems truer that also, if someone should seize a thing held by the owner as derelict, he at once is made owner. Now it is held as derelict what the owner has thrown away with the intention that he does not want it to be among his goods, and for that reason he immediately ceases to be owner.
Another case is that of those things which, in a tempest of the sea, are ejected for the sake of lightening the ship. For these remain the property of their owners, because it is plain that they are not thrown out with the intention with which one does not wish to have them, but in order that, together with the ship itself, the peril of the sea may be the more escaped; for which reason, if anyone, having found them driven out by the waves, or even in the very sea, removes them with an intention of lucre, he commits theft. Nor do they seem to depart far from those things which, from a running carriage, fall without the owners’ perceiving it.
such as are those which consist in law: for instance inheritance, usufruct, obligations contracted in whatever way. nor does it matter that corporeal things are contained within an inheritance: for the fruits which are taken from an estate are corporeal, and that which is owed to us from some obligation is for the most part corporeal, for example an estate, a person, money: for the right itself of inheritance and the right itself of using-and-enjoying, and the right itself of obligation, are incorporeal. In the same category are the rights of urban and rural praedia, which are also called servitudes.
Rusticorum praediorum iura sunt haec: iter, actus, via, aquae ductus. iter est ius eundi, ambulandi homini, non etiam iumentum agendi vel vehiculum: actus est ius agendi vel iumentum vel vehiculum. itaque qui iter habet, actum non habet; qui actum habet, et iter habet eoque uti potest etiam sine iumento.
These are the rights of rustic predial estates: iter, actus, via, aquae ductus. An iter is the right of going—of a person walking—not also of driving a beast of burden or a vehicle; an actus is the right of driving either a beast of burden or a vehicle. And so he who has an iter does not have an actus; he who has an actus also has an iter and can use it even without a beast of burden.
via is the right of going and of driving and of walking: for the via contains within itself both iter and actus. aquae ductus is the right of conducting water through another’s land. Praediorum urbanorum are the servitudes which inhere in buildings, therefore called of urban praedia because all buildings are called urban praedia, even if they are built on a country estate.
likewise the servitudes of urban estates are these: that the neighbor sustain the neighbor’s burdens; that it be permitted to the neighbor to insert a beam into his wall; that one receive eaves-drip or flow into his house or into his yard, or not receive it; and that one not raise his house higher, lest he obstruct the neighbor’s lights. Among the servitudes of rustic estates some rightly think to be computed: the drawing of water, the driving of cattle to water, the right of pasturing, of burning lime, of digging sand.
Ideo autem hae servitutes praediorum appellantur, quoniam sine praediis constitui non possunt. nemo enim potest servitutem adquirere urbani vel rustici praedii, nisi qui habet praedium, nec quisquam debere, nisi qui habet praediam. Si quis velit vicino aliquod ius constituere, pactionibus atque stipulationibus id efficere debet.
Therefore these servitudes are called praedial, since they cannot be constituted without praedia. For no one can acquire a servitude of an urban or rustic praedium unless he has a praedium, nor can anyone owe one unless he has a praedium. If anyone should wish to constitute some right for a neighbor, he ought to effect it by pactions and stipulations.
thus, for instance, if someone should bequeath a usufruct to someone; for the heir has the bare proprietorship, the legatee the usufruct: and conversely, if he should bequeath the farm with the usufruct deducted, the legatee has the bare proprietorship, but the heir the usufruct: likewise, he can bequeath to one the usufruct, to another, with it deducted, the farm. but without a testament, if someone wishes to constitute a usufruct for another, he ought to effect this by pactions and stipulations. lest, however, proprietorships should be altogether useless, with the usufruct always departing, it has been settled that in certain ways the usufruct is extinguished and reverts to the proprietorship.
Moreover, usufruct is established not only in land and houses, but also in slaves and draft animals and other things, except those which are consumed by the very use: for these admit usufruct by neither natural reason nor civil law. In this number are wine, oil, grain, garments. Closest to these is counted money (cash): for in its very use, by constant exchange, it is in a certain way extinguished.
but for the sake of utility the senate decreed that a usufruct could also be constituted of those things, provided, however, that under that title security be usefully taken for the heir. and so, if a usufruct of money has been bequeathed, it is given to the legatee in such a way that it becomes his, and the legatee gives surety to the heir for the restoration of so much money, if he shall die or be diminished in status (capitis deminutio). the other things also are delivered to the legatee in such a way that they become his: but, after these have been appraised, surety is given, that, if he shall die or be diminished in status, as much money shall be restored as they were appraised at.
therefore the senate did not indeed make a usufruct of those things (for it could not), but through a cautio it, as it were, constituted a usufruct. moreover, a usufruct is terminated by the death of the usufructuary and by two diminutions of status, the greatest and the middle, and by non-use in the prescribed manner and time; all of which our constitution has established.
likewise a usufruct is terminated if it is ceded by the usufructuary to the owner of the property (for by ceding to an outsider nothing is achieved): or conversely if the usufructuary shall have acquired the ownership of the thing, which matter is called consolidation. moreover, it is established that, if the building(s) should have been consumed by fire or should also have collapsed by an earthquake or by their own defect, the usufruct is extinguished, and not even a usufruct of the site is owed. but when the usufruct shall have been ended, it reverts, of course, to the property, and from that time the owner of the bare property begins to have full power over the thing.
Iisdem istis modis quibus ususfructus constituitur etiam nudus usus constitui solet, iisdemque illis modis finitur quibus et ususfructus desinit. Minus autem scilicet iuris in usu est quam in usufructu. namque is qui fundi nudum usum habet, nihil ulterius habere intellegetur, quam ut oleribus, pomis, floribus, feno, stramentis, lignis ad usum cottidianum utatur: in eoque fundo hactenus ei morari licet, ut neque domino fundi molestus sit, neque his per quos opera rustica fiunt impedimento sit: nec ulli alii ius quod habet aut vendere aut locare aut gratis concedere potest, cum is qui usumfructum habet potest haec omnia facere.
By those same very modes by which a usufruct is constituted, the naked use is also wont to be constituted, and by those same modes it is ended by which a usufruct likewise ceases. Moreover, there is, of course, less right in use than in usufruct. For he who has the naked use of a farm is understood to have nothing further than that he may make use of vegetables, fruits, flowers, hay, straw, and wood for daily use: and on that farm it is permitted for him to stay only to this extent, that he be neither troublesome to the owner of the farm nor a hindrance to those by whom rural works are performed: nor can he sell, lease, or grant gratis to any other the right which he has, whereas he who has the usufruct can do all these things.
Likewise, he who has the use of a house is understood to have so much right that he alone may dwell there, nor can he transfer this right to another: and it seems scarcely accepted that it be permitted for him to receive a guest, and that he have the right of dwelling with his wife and his children, likewise with his freedmen and also with other free persons, whom he employs no less than slaves; and correspondingly, if the use of the house pertains to a woman, it is permitted for her to dwell with her husband. Likewise, he to whom the use of a slave pertains may himself alone make use of his work and ministry; but it has in no way been granted to him to transfer his right to another. The same, to be sure, of right holds also in the case of a beast of burden.
Sed si cui habitatio legata sive aliquo modo constituta sit, neque usus videtur neque ususfructus, sed quasi proprium aliquod ius. quam habitationem habentibus, propter rerum utilitatem secundum Marcelli sententiam, nostra decisione promulgata permisimus non solum in ea degere sed etiam aliis locare.
But if to anyone a habitation has been bequeathed or in some way constituted, it appears neither as use nor as usufruct, but as a kind of proper right. To those holding such a habitation, on account of the utility of things, according to Marcellus’s opinion, by our promulgated decision we have permitted not only to dwell in it but also to lease it to others.
Haec de servitutibus et usufructu et usu et habitatione dixisse sufficiat. de hereditate autem et de obligationibus suis locis proponemus. euimus summatim, quibus modis iure gentium res adquiruntur: modo videamus, quibus modis legitimo et civili iure adquiruntur.
Let it suffice to have said these things about servitudes and usufruct and use and habitation. but about inheritance and about obligations we will set forth in their own places. we have gone over summarily the modes by which, by the law of nations, things are acquired: now let us see the modes by which they are acquired by legitimate and civil law.
Iure civili constitutum fuerat, ut, qui bona fide ab eo qui dominus non erat, cum crediderit eum dominum esse, rem emerit vel ex donatione aliave qua iusta causa acceperit, is eam rem, si mobilis erat, anno ubique, si immobilis, biennio tantum in Italico solo usucapiat, ne rerum dominia in incerto essent. et cum hoc placitum erat, putantibus antiquioribus dominis sufficere ad inquirendas res suas praefata tempora, nobis melior sententia resedit, ne domini maturius suis rebus defraudentur neque certo loco beneficium hoc concludatur. et ideo constitutionem super hoc promulgavimus, qua cautum est, ut res quidem mobiles per triennium usucapiantur, immobiles vero per longi temporis possessionem, id est inter praesentes decennio, inter absentes viginti annis, usucapiantur, et his modis, non solum in Italia sed in omni terra quae nostro imperio gubernatur, dominium rerum iusta causa possessionis praecedente adquiratur.
It had been constituted by civil law that one who, in good faith, from one who was not owner—since he believed him to be owner—has bought a thing or has received it by donation or by some other just cause, should acquire that thing by usucapion: if it was movable, in one year everywhere; if immovable, in a biennium only on Italic soil—lest the ownerships of things be in uncertainty. And whereas this had been agreed, the earlier rulers thinking the aforesaid periods sufficient for searching out their goods, a better opinion settled with us, lest owners be too early defrauded of their property nor this benefit be shut up within a fixed place. And therefore we promulgated a constitution on this, by which it is provided that movables be usucapt over a triennium, but immovables by long-time possession—that is, among those present in ten years, among those absent in twenty years—and that by these modes, not only in Italy but in every land governed by our empire, the dominion of things be acquired, a just cause of possession preceding.
Sed aliquando etiamsi maxime quis bona fide rem possederit, non tamen illi usucapio ullo tempore procedit, veluti si quis liberum hominem vel rem sacram vel religiosam vel servum fugitivum possideat. Furtivae quoque res et quae vi possessae sunt, nec si praedicto longo tempore bona fide possessae fuerint, usucapi possunt: nam furtivarum rerum lex duodecim tabularum et lex Atinia inhibet usucapionem, vi possessarum lex Iulia et Plautia. Quod autem dictum est furtivaram et vi possessarum rerum usucapionem per legem prohibitam esse, non eo pertinet ut ne ipse fur quive per vim possidet usucapere possit: nam his alia ratione usucapio non competit, quia scilicet mala fide possident: sed ne ullus alius, quamvis ab eis bona fide emerit vel ex alia causa acceperit, usucapiendi ius habeat.
But sometimes, even if someone has possessed a thing in the fullest good faith, nevertheless usucaption does not proceed to him at any time, for instance if someone possesses a free man or a sacred or religious thing or a fugitive slave. Stolen things also, and things which have been possessed by force, cannot be usucapt, not even if they have been possessed in good faith for the aforesaid long time: for as to stolen things the law of the twelve tables and the Atinian law inhibit usucaption, as to things possessed by force the Julian and Plautian law. But what has been said, that the usucaption of stolen things and of things possessed by force is prohibited by law, does not pertain to this—that the thief himself or he who possesses by force cannot usucapt: for to these, on another ground, usucaption does not befit, since they possess in bad faith; but rather that no other person, although he may have bought from them in good faith or have received it on another just cause, may have the right of usucapting.
for if an heir, supposing a thing which had been loaned for use (commodated) or leased or deposited with the deceased to be hereditary, has sold it to, or donated it to, or given it as a dowry to, one receiving in good faith, there is no doubt that he who has received can acquire it by usucapion, since that thing has not fallen into the vice of theft, inasmuch as an heir who in good faith has alienated it as though his own does not commit theft. Likewise, if the person to whom the usufruct of a maidservant pertains, believing the offspring to be his own, has sold it or donated it, he does not commit theft: for theft is not committed without the intent to steal. It can also happen in other ways that someone, without the taint of theft, transfers another’s property to someone and brings it about that it is usucapted by the possessor.
But as regards those things which are contained in the soil, the matter proceeds more expeditiously: as, for instance, if someone should, without force, acquire the possession of a vacant place on account of the owner’s absence or negligence, or because he has died without a successor. Although he himself possesses in bad faith, since he understands that he has seized another’s estate, nevertheless, if he shall have delivered it to another who receives in good faith, the thing can be acquired for him by long possession, because he received it neither as stolen nor as possessed by force; for the opinion of certain ancients, who supposed that even theft of an estate or of a place was committed, has been abolished, and by imperial constitutions provision is made for those who possess things of the soil, lest anyone’s long and indubitable possession ought to be taken away. Sometimes even a stolen thing, or one possessed by force, can be usucapted: namely, if it shall have returned into the power of the owner; for then, the defect of the thing being purged, its usucaption proceeds.
Property of our fisc cannot be acquired by usucaption. But Papinian wrote that, when ownerless goods have not yet been reported to the fisc, a good‑faith purchaser can usucapt a thing delivered to him from those goods; and thus the deified Pius and the deified Severus and Antoninus have replied by rescript. Lastly, it must be understood that the thing must be such as to have no defect in itself, so that it can be usucapted by a good‑faith buyer or by one who possesses under another just cause.
Diutina possessio, quae prodesse coeperat defuncto, et heredi et bonorum possessori continuatur, licet ipse sciat praedium alienum: quodsi ille initium iustum non habuit, heredi et bonorum possessori, licet ignoranti, possessio non prodest. quod nostra constitutio similiter et in usucapionibus observari constituit, ut tempora continuentur. Inter venditorem quoque et emptorem coniungi tempora, divi Severus et Antoninus rescripserunt.
Long-continued possession, which had begun to benefit the deceased, is continued to the heir and to the bonorum possessor, although he himself knows the estate is another’s; but if that man did not have a lawful inception, possession does not benefit the heir and the bonorum possessor, even though ignorant. And our constitution has likewise established that the same is to be observed also in usucapions, namely that the periods be continued (tacked). The deified Severus and Antoninus issued a rescript that the periods are to be joined between seller and buyer as well.
Edicto divi Marci cavetur, eum qui a fisco rem alienam emit, si post venditionem quinquennium praeterierit, posse dominum rei per exceptionem repellere. constitutio autem divae memoriae Zenonis bene prospexit his qui a fisco per venditionem vel donationem vel alium titulum aliquid accipiunt, ut ipsi quidem securi statim fiant et victores existant, sive conveniantur sive experiantur: adversus sacratissimum autem aerarium usque ad quadriennium liceat intendere his qui pro dominio vel hypotheca earum rerum quae alienatae sunt putaverint sibi quasdam competere actiones. nostra autem divina constitutio, quam nuper promulgavimus, etiam de his qui a nostra vel venerabilis Augustae domo aliquid acceperint haec statuit quae in fiscalibus alienationibus praefata Zenoniana constitutione continentur.
By the edict of the deified Marcus it is provided that he who buys from the fisc a thing belonging to another, if five years have passed after the sale, can repel the owner of the thing by way of an exception. The constitution, moreover, of Zeno of blessed memory has looked well to those who receive something from the fisc through sale or donation or another title, that they themselves immediately become secure and stand as victors, whether they are convened or bring suit: but against the Most Sacred Treasury it is permitted, for up to four years, to institute proceedings by those who, on account of ownership or hypothec of the things that have been alienated, shall have thought certain actions to be competent to them. But our divine constitution, which we have recently promulgated, also establishes concerning those who have received something from our house or from the house of the venerable Augusta, these same provisions which, in fiscal alienations, are contained in the aforesaid constitution of Zeno.
Est etiam aliud genus adquisitionis, donatio. Donationum autem duo genera sunt: mortis causa et non mortis causa. Mortis causa donatio est quae propter mortis fit suspicionem, cum quis ita donat, ut, si quid humanitus ei contigisset, haberet is qui accepit: sin autem supervixisset qui donavit, reciperet, vel si eum donationis poenituisset, aut prior decesserit is cui donatum sit.
There is also another kind of acquisition, a donation. Of donations, however, there are two kinds: mortis causa and not mortis causa. A mortis causa donation is that which is made on account of suspicion of death, when someone thus gives, that, if anything mortal (i.e., death) should befall him, the one who received would have it; but if the donor should survive, he would take it back, or if he should repent of the donation, or the one to whom it was donated should die first.
These donations mortis causa have been reduced after the example of legacies in all respects. For since it had been ambiguous to the jurists whether it ought to obtain the semblance of a donation or of a legacy, and it had certain insignia of each case, and some drew it back to one class, others to the other, it was established by us that it be reckoned together with legacies in almost all respects: and that it proceed thus, just as our constitution has formed it. And in sum, a donation mortis causa is when one prefers that he himself have it rather than the one to whom it is donated, and prefers the one to whom he donates rather than his own heir.
Aliae autem donationes sunt quae sine ulla mortis cogitatione fiunt, quas inter vivos appellamus, quae omnino non comparantur legatis: quae si fuerint perfectae, temere revocari non possunt. perficiuntur autem cum donator suam voluntatem scriptis aut sine scriptis manifestaverit: et ad exemplum venditionis nostra constitutio eas etiam in se habere necessitatem traditionis voluit, ut, et si non tradantur, habeant plenissimum et perfectum robur et traditionis necessitas incumbat donatori. et cum retro principum dispositiones insinuari eas actis intervenientibus volebant, si maiores ducentorum fuerant solidorum, nostra constitutio et quantitatem usque ad quingentos solidos ampliavit, quam stare et sine insinuatione statuit, et quasdam donationes invenit quae penitus insinuationem fieri minime desiderant, sed in se plenissimam habent firmitatem.
thus also in Homer Telemachus makes a gift to Piraeus: But other donations are those which are made without any thought of death, which we call inter vivos, which are in no way compared with legacies: if they have been perfected, they cannot be rashly revoked. They are perfected when the donor has manifested his will, by writings or without writings: and, on the model of sale, our constitution also wished them to have in themselves the necessity of delivery, so that, even if they are not delivered, they may have most full and perfect force, and the necessity of delivery rests upon the donor. And whereas earlier the emperors’ enactments required them to be insinuated in the acts (public records), if they were greater than 200 solidi, our constitution both enlarged the amount up to 500 solidi, which it established should stand even without insinuation, and it discovered certain donations which in no way desire insinuation to be made, but have in themselves the most complete firmness.
we have further discovered many other things for a more abundant outcome of donations, all of which are to be gathered from our constitutions which we have set forth concerning these matters. nevertheless it must be known that, although donations be most complete, yet if the persons upon whom the benefit has been conferred prove ungrateful, we have, by our constitution, afforded to donors leave for certain causes to revoke them, lest those who have bestowed their property upon others suffer from them some injury or loss, according to the modes enumerated in our constitution.
Est et aliud genus inter vivos donationum, quod veteribus quidem prudentibus penitus erat incognitum, postea autem a iunioribus divis principibus introductum est, quod ante nuptias vocabatur et tacitam in se condicionem habebat, ut tunc ratum esset, cum matrimonium fuerit insecutum: ideoque ante nuptias appellabatur, quod ante matrimonium efficiebatur et nunquam post nuptias celebratas talis donatio procedebat. sed primus quidem divus Iustinus, pater noster, cum augeri dotes et post nuptias fuerat permissum, si quid tale evenit, etiam ante nuptias donationem augeri et constante matrimonio sua constitutione permisit: sed tamen nomen inconveniens remanebat, cum ante nuptias quidem vocabatur, post nuptias autem tale accipiebat incrementum. sed nos plenissimo fini tradere sanctiones cupientes et consequentia nomina rebus esse studentes, constituimus, ut tales donationes non augeantur tantum sed et constante matrimonio initium accipiant et non ante nuptias, sed propter nuptias vocentur et dotibus in hoc exaequentur, ut, quemadmodum dotes et constante matrimonio non solum augentur, sed etiam fiunt, ita et istae donationes, quae propter nuptias introductae sunt, non solum antecedant matrimonium sed etiam eo contracto et augeantur et constituantur.
There is also another kind of donations inter vivos, which indeed was entirely unknown to the ancient jurists, but later was introduced by younger deified emperors, which was called “before marriage” and had within itself a tacit condition, namely that it would be valid when the matrimony had ensued: and therefore it was called “before marriage,” because it was effected before the marriage, and never after the nuptials had been celebrated did such a donation proceed. But the first to act, the deified Justin, our father, since it had been permitted that dowries be augmented even after marriage, if anything of the sort occurred, by his constitution allowed the donation “before marriage” to be augmented also while the marriage was subsisting: yet an unsuitable name remained, since it was called “before marriage,” but after marriage it received such an increment. But we, wishing to hand down enactments to a most complete end, and striving that the names correspond to the things, have established that such donations not only be augmented, but also take their beginning while the marriage is subsisting, and be called not “before marriage” but “on account of marriage,” and be equated with dowries in this respect: so that, just as dowries even while the marriage is subsisting are not only increased but are also made, so also these donations, which were introduced on account of marriage, not only precede matrimony but, when it is contracted, are both increased and constituted.
Erat olim et alius modus civilis adquisitionis per ius adcrescendi, quod est tale: si communem servum habens aliquis cum Titio, solus libertatem ei imposuit vel vindicta vel testamento, eo casu pars eius amittebatur et socio adcrescebat. sed cum pessimum fuerat exemplo, et libertate servum defraudari et ex ea humanioribus quidem dominis damnum inferri, severioribus autem lucrum adcrescere: hoc quasi invidiae plenum pio remedio per nostram constitutionem mederi necessarium duximus et invenimus viam, per quam et manumissor et socius eius et qui libertatem accepit nostro fruantur beneficio, libertate cum effectu procedente (cuius favore et antiquos legislatores multa et contra communes regulas statuisse manifestissimum est) et eo qui eam imposuit suae liberalitatis stabilitate gaudente et socio indemni conservato pretiumque servi secundum partem dominii quod nos definivimus accipiente.
There once was also another mode of civil acquisition through the right of accretion, which is as follows: if someone having a common slave with Titius, by himself imposed liberty upon him either by vindicta or by testament, in that case his share was lost and accrued to his partner. But since it was a most pernicious example, both that the slave was defrauded of liberty and that from it loss was inflicted upon the more humane masters, while to the more severe gains accrued, we deemed it necessary to remedy this, as being full of ill-will, by a pious remedy through our constitution, and we found a way by which both the manumitter and his partner and the one who received liberty may enjoy our beneficium, liberty proceeding with effect (in favor of which it is most manifest that even the ancient legislators established many things even against common rules), and he who imposed it rejoicing in the stability of his liberality, and the partner being kept unharmed and receiving the price of the slave according to the share of ownership which we have defined.
Accidit aliquando ut qui dominus sit alienare non possit, et contra qui dominus non sit alienandae rei potestatem habeat. nam dotale praedium maritus invita muliere per legem Iuliam prohibetur alienare, quamvis ipsius sit, dotis causa ei datum. quod nos, legem Iuliam corrigentes, in meliorem statum deduximus.
It sometimes happens that he who is owner cannot alienate, and conversely that he who is not owner has the power of alienating the thing. For the husband is prohibited by the Julian Law from alienating a dotal estate with the wife unwilling, although it is his, having been given to him for the sake of the dowry. Which we, correcting the Julian Law, have brought into a better state.
for when the law had place only in things of the soil which had been Italian, and inhibited alienations that were done with the woman unwilling, but allowed hypothecs of them even with her willing: we imposed a remedy for both, so that even in those things which are situated on provincial soil, alienation or obligation (i.e., encumbrance) is interdicted, and neither of them proceeds even with the women consenting, lest the fragility of the female sex be turned to the destruction of their substance. Conversely, however, a creditor can alienate a pledge out of a paction, although that thing is not his. But this perhaps seems to occur for this reason: that the alienation of the pledge is understood to be with the debtor’s will, who from the beginning of the contract stipulated that it should be permitted to the creditor to sell the pledge, if the money is not paid.
but lest creditors be hindered from pursuing their right, and lest debtors seem rashly to lose the ownership of their things, it has been provided by our constitution and a certain method has been imposed, by which the sale of pledges may proceed; by the tenor of which provision, ample and sufficient care has been taken for both parties, creditors and debtors. Now we must be reminded that neither a male ward nor a female ward can alienate any thing without the authority of the guardian. And so, if a loan of money is given to anyone without the guardian’s authority, no obligation is contracted, because the money does not become the recipient’s property; and therefore the coins can be vindicated, wherever they exist: but if the coins which were lent have been consumed in good faith by the taker, they can be claimed by condiction; if in bad faith, an action ad exhibendum can be brought concerning them.
but conversely all things can rightly be given to a male ward and to a female ward without the authority of a guardian. and so, if a debtor pays a ward, the guardian’s authority is necessary: otherwise he will not be released. but this too has been established by most evident reason in the constitution which we promulgated to the advocates of Caesarea on the suggestion of Tribonian, a most eminent man, quaestor of our sacred palace, in which it is laid down that it is permitted to the tutor or curator to discharge the ward’s debtor, provided that first a judicial sentence, rendered without any detriment, permits this.
when this has followed, if both the judge has pronounced and the debtor has paid, let the fullest security attend such a payment. But if payment has been made otherwise than we have arranged, and the ward has the money safe or is made more wealthy from it, and yet demands the same sum of money, he can be barred by the exception of dolus malus; but if he has either badly consumed it or lost it by theft, the exception of dolus malus will be of no avail to the debtor, but he will nonetheless be condemned, because he paid rashly without the tutor’s authority and not according to our disposition. But conversely, a boy-ward or girl-ward cannot pay without the tutor authorizing, because that which they pay does not become the recipient’s, since, of course, the alienation of any thing has not been granted to them without the tutor’s authority.
Adquiritur nobis non solum per nosmet ipsos, sed etiam per eos quos in potestate habemus: item per eos servos in quibus usumfructum habemus: item per homines liberos et servos alienos, quos bona fide possidemus. de quibus singulis diligentius dispiciamus. Igitur liberi vestri utriusque sexus, quos in potestate habetis, olim quidem, quidquid ad eos pervenerat (exceptis videlicet castrensibus peculiis), hoc parentibus suis adquirebant sine ulla distinctione: et hoc ita parentum fiebat, ut esset eis licentia quod per unum vel unam eorum adquisitum est alii filio vel extraneo donare, vel vendere vel quocumque modo voluerant applicare.
It is acquired for us not only by our own very selves, but also by those whom we have in our power: likewise by those slaves in whom we have usufruct: likewise by free persons and by others’ slaves, whom we possess bona fide. Concerning each of these let us look more diligently. Therefore your children of either sex, whom you have in your power, formerly indeed, whatever came to them (the castrense peculium being excepted, of course), this they acquired for their parents without any distinction: and this so became their parents’ that they had license to give to another son or to an outsider, or to sell, or to apply in whatever way they wished, that which had been acquired through any one of them (male or female).
which seemed to us inhuman; and, a general constitution having been issued, we both spared the children and reserved to fathers what was due. For it has been sanctioned by us that, if anything comes to him out of the father’s property, this, according to ancient observance, he acquires wholly for the parent (for what envy is there, that what has proceeded on the occasion of the father should return to him?); but what the son-in-power has acquired for himself from another cause, the usufruct indeed he acquires for the father, while the ownership remains with him, lest what has accrued to him by his own labors or by favorable fortune, passing over to another, should turn out grievous to him. And this too has been ordered by us even in that case where the parent, by emancipating the child, had, from the things which escape acquisition, the license under earlier constitutions to retain for himself a third part, if he wished, as if for a kind of price of emancipation; and something inhuman occurred, namely that the son was defrauded in part of the ownership of his own things by this emancipation, and that the honor which was added to him from emancipation—that he became sui iuris—should diminish through the diminution of his assets.
and therefore we have decreed that the parent, instead of the one-third share of ownership of the goods which he was able to retain, shall retain a half—not of the ownership of the things, but of the usufruct: for thus both the things will remain intact with the son, and the father will enjoy a larger amount, being to obtain a half in place of a third. Likewise, there is acquired for you whatever your slaves get by delivery, or whatever they stipulate, or acquire from any other cause whatsoever. For this accrues to you even if you are unaware or unwilling.
For the slave himself, who is in the power of another, can have nothing of his own. But if he should be instituted heir, he cannot enter upon the inheritance except by your command; and if, with you bidding, he has entered, the inheritance is acquired for you, just as if you yourselves had been instituted heirs. And correspondingly, of course, a legacy is acquired for you through them.
Not only, moreover, is proprietorship acquired for you through those whom you have in your power, but possession as well: for whatever thing’s possession they have obtained, you are deemed to possess it. Whence also through them usucapion or long-time possession accrues to you. As to those slaves, however, in whom you have only usufruct, it has been decided thus: whatever they acquire from your property or from their own works is added to you; but what they procure outside those causes pertains to the owner of the property.
Therefore, if that slave has been instituted heir, or if any legacy or gift has been made to him, it is acquired not for the usufructuary, but for the proprietor (owner of the property). The same rule pleases—holds—also concerning one who is possessed by you bona fide, whether he be free or another’s slave; for what has been settled concerning the usufructuary, the same is settled concerning the bona fide possessor. Therefore, what is acquired outside those two cases belongs either to the man himself, if he is free, or to the owner, if he is a slave.
but a possessor in good faith, when he has acquired a slave by usucapion, because in that way he becomes owner, can through him acquire for himself on all grounds: the usufructuary, however, cannot usucapt, first because he does not possess, but has the right of usufruct, then because he knows the slave is another’s. Not only, moreover, is ownership acquired for you through those slaves in whom you have a usufruct or whom you possess in good faith, or through a free person who in good faith serves you, but possession as well: we are speaking, however, in the case of each according to the definition which we have just set forth, that is, if they shall have obtained any possession from your property or from their own works. From these points, therefore, it appears that through free men whom you have neither subject to your authority nor possess in good faith, likewise through another’s slaves in whom you have neither a usufruct nor a lawful possession, nothing can on any ground be acquired for you.
and this is what is said, that through an external person nothing can be acquired: except that through a free person, as for instance through a procurator, it is deemed that possession is acquired to you not only when you are knowing, but even when you are unknowing, according to the constitution of the deified Severus; and through this possession even ownership, if the one who delivered was the owner, or by usucapion or long-time prescription, if he was not the owner.
Hactenus tantisper admonuisse sufficiat, quemadmodum singulae res adquiruntur: nam legatorum ius, quo et ipso singulae res vobis adquiruntur: item fideicommissorum, ubi singulae res vobis relinquuntur, opportunius inferiori loco referemus. videamus itaque nunc, quibus modis per universitatem res vobis adquiruntur. si cui ergo heredes facti sitis sive cuius bonorum possessionem petieritis vel si quem adrogaveritis vel si cuius bona libertatum conservandarum causa vobis addicta fuerint, eius res omnes ad vos transeunt.
Thus far let it for the moment suffice to have given warning how individual things are acquired: for the law of legacies, by which likewise individual things are acquired for you; likewise of fideicommissa, where individual things are left to you—we shall more opportunely set this forth in a later place. Let us then see now by what modes things are acquired for you by universality. If therefore you have been made heirs to someone, or have sought possession of his estate, or if you have adrogated someone, or if anyone’s goods have been assigned to you for the sake of preserving liberties, all his property passes over to you.
Testamentum ex eo appellatur quod testatio mentis est. Sed ut nihil antiquitatis penitus ignoretur sciendum est, olim quidem duo genera testamentorum in usu fuisse, quorum altero in pace et in otio utebantur, quod calatis comitiis appellabatur, altero, cum in proelium exituri essent, quod procinctum dicebatur. accessit deinde tertium genus testamentorum, quod dicebatur per aes et libram, scilicet quia per emancipationem, id est imaginariam quandam venditionem agebatur, quinque testibus et libripende, civibus Romanis puberibus, praesentibus et eo qui familiae emptor dicebatur.
A testament is so called because it is a testation of the mind. But, so that nothing of antiquity be utterly ignored, it must be known that formerly indeed two kinds of testaments were in use, of which the one was employed in peace and leisure, which was called at the calata comitia, the other, when they were about to go out into battle, which was called procinctum. Then a third kind of testament was added, which was called per aes et libram, namely because it was transacted through mancipation, that is, a certain imaginary sale, with five witnesses and a scale‑holder, Roman citizens of full age, being present, and with him who was called the purchaser of the family.
but those earlier two kinds of testaments passed into desuetude from ancient times: but that which was done per aes et libram, although it endured longer, nevertheless in part this too ceased to be in use. But the aforesaid names of testaments were referred to the ius civile. afterwards, however, from the edict of the praetor another form of making testaments was introduced: for by the honorary law (praetorian law) no mancipation was required, but the seals of seven witnesses sufficed, whereas by the civil law the seals of witnesses were not necessary.
Sed cum paulatim, both from the usage of men and from emendations of constitutions, the civil and praetorian law began to be joined into one consonance, it was established that, at one and the same time, with seven witnesses adhibited and with the subscription (signature) of the witnesses—which was devised by the constitutions—and with seals imposed upon wills from the praetor’s edict, that which the civil law in a certain manner required should be fulfilled: so that this law may seem to be tripartite, namely, that the witnesses and their presence, in one context for the sake of celebrating the testament, descend from the civil law; but the subscriptions of the testator and of the witnesses are adhibited from the observance of the sacred constitutions; and the seals and the number of witnesses from the edict of the praetor. But to all these, by our constitution, for the sincerity (integrity) of testaments, so that no fraud be employed, this has been added: that by the hand of the testator or of the witnesses the name of the heir be expressed, and that all proceed according to the tenor of that constitution.
Possunt autem testes omnes et uno anulo signare testamentum (quid enim, si septem anuli una sculptura fuerint?) secundum quod Pomponio visum est. sed et alieno quoque anulo licet signare. Testes autem adhiberi possunt ii cum quibus testamenti factio est.
Moreover all the witnesses can seal the testament with a single ring (for what, indeed, if seven rings should have one engraving?), according to what seemed good to Pomponius. but it is also permitted to seal with another’s ring. Witnesses, moreover, can be employed—those with whom there is testamentary capacity.
but neither a woman nor one underage (an impubes) nor a slave nor a mute nor a deaf person nor an insane person, nor one upon whom interdiction from goods has been laid, nor he whom the laws order to be disreputable and intestable, can be employed in the number of witnesses. But when one of the witnesses at the time of making the testament was supposed to be free, but afterward proved to be a slave, both the deified Hadrian to Catonius Verus, and later the deified Severus and Antoninus, issued rescripts that they would come to the aid of the testament out of their liberality, so that it be regarded just as if it had been made as was proper, since at the time when the testament was being sealed, by the consent of all, this witness had been in the place of free persons, and there was no one to raise a status-question against him. The father, and likewise those who are in his power, both alike can be made witnesses to one and the same testament: because it does no harm for several witnesses from one household to be employed in another’s business.
Among the witnesses, he ought not to be one who is under the power of the testator. But if a filiusfamilias makes a testament from castrense peculium after discharge, neither his father is rightly employed as a witness nor he who is under the power of the same father: for in that matter domestic testimony is disapproved. And neither the instituted heir nor he who is under his power, nor his father who has him in his power, nor the brothers who are under the power of the same father, can be brought in as witnesses, because the whole business which is conducted for the sake of ordering the testament is today believed to be transacted between the heir and the testator.
for although that law had once been greatly disturbed, and the ancients, who kept the family purchaser and those who had been united to him through power away from testamentary testimonies, granted to the heir and to those who had been joined to him through power to furnish testimonies in wills, although those who permitted this urged that they ought by no means to abuse this law: nevertheless we, correcting the same observance and transferring what was advised by them into a necessity of law, in imitation of the former family purchaser, deservedly do not grant to the heir—who holds the image of the most ancient family purchaser—nor to other persons who, as said, are conjoined to him, the license to provide, as it were, testimonies on their own behalf: and therefore we have not allowed an old constitution of this kind to be inserted into our Code. But to legatees and fideicommissaries, because they are not successors in right, and to other persons connected with them, we do not deny testimony; indeed in a certain of our constitutions we have specially granted this, and much more to those who are in their power, or who have them in power, we grant such license.
Nihil autem interest, testamentum in tabulis an in chartis membranisve vel in alia materia fiat. Sed et unum testamentum pluribus codicibus conficere quis potest, secundum optinentem tamen observationem omnibus factis. quod interdum et necessarium est, si quis navigaturus et secum ferre et domi relinquere iudiciorum suorum contestationem velit, vel propter alias innumerabiles causas, quae humanis necessitatibus imminent.
However, it makes no difference whether a testament is made on tablets or on papers or on parchments or on another material. But also one and the same testament a person can compose in several codices, according to the prevailing observance, with all things done—a thing which at times is even necessary, if someone about to sail wishes both to carry with himself and to leave at home the attestation of his judgments, or on account of other innumerable causes which impend upon human necessities.
Sed haec quidem de testamentis quae in scriptis conficiuntur. si quis autem voluerit sine scriptis ordinare iure civili testamentum, septem testibus adhibitis et sua voluntate coram eis nuncupata, sciat hoc perfectissimum testamentum iure civili firmunque constitutum.
But as to these matters concerning testaments which are executed in writing. If, however, anyone should wish to ordain, under the civil law, a testament without writing, with seven witnesses present and his will nuncupated before them, let him know this to be a most perfect testament, established and firm by the civil law.
Supra dicta diligens observatio in ordinandis testamentis militibus propter nimiam imperitiam constitutionibus principalibus remissa est. nam quamvis hi neque legitimum numerum testium adhibuerint neque aliam testamentorum sollemnitatem observaverint, recte nihilo minus testantur, videlicet cum in expeditionibus occupati sunt: quod merito nostra constitutio induxit. quoque enim modo voluntas eius suprema sive scripta inveniatur sive sine scriptura, valet testamentum ex voluntate eius.
The diligent observance aforesaid in arranging testaments has, for soldiers, been relaxed by imperial constitutions on account of excessive inexperience. For although they have neither employed the lawful number of witnesses nor observed any other solemnity of testaments, nonetheless they bear witness rightly, namely when they are occupied on campaigns: which our constitution has rightly introduced. For in whatever way his last will is found, whether written or without writing, the testament is valid on the basis of his will.
But in those periods during which, without the necessity of expeditions, they pass their time in other places or in their own quarters, they are by no means assisted to vindicate such a privilege: yet the making of a testament is granted to them on account of military service, even if they are sons under paternal power (filii familias), nevertheless under the common law the same observance is to be applied in their testaments as we have most recently set out in the testaments of civilians (pagani). Clearly, concerning the testaments of soldiers, the deified Trajan thus issued a rescript to Statilius Severus:
"Id privilegium quod militantibus datum est, ut quoquo modo facta ab his testamenta rata sint, sic intellegi debet, ut utique prius constare debeat, testamentum factum esse, quod et sine scriptura a non militantibus quoque fieri potest. is ergo miles de cuius bonis apud te quaeritur, si convocatis ad hoc hominibus, ut voluntatem suam testaretur, ita locutus est ut declararet quem vellet sibi esse heredem et cui libertatem tribuere, potest videri sine scripto hoc modo esse testatus, et voluntas eius rata habenda est. ceterum si, ut plerumque sermonibus fieri solet, dixit alicui: EGO TE HEREDEM FACIO aut TIBI BONA MEA RELINQUO, non oportet hoc pro testamento observari.
"That privilege which has been given to those serving as soldiers, namely that testaments made by them are valid in whatever manner, ought to be understood thus: that in any case it must first be established that a testament has been made—which even without writing can also be done by non-soldiers. Therefore that soldier, concerning whose goods inquiry is being held before you, if, men having been called together for this, in order that he might declare his will, he spoke in such a way as to make clear whom he wished to be his heir and to whom to grant liberty, can be seen in this manner to have made a will without writing, and his intention is to be held valid. But if, as for the most part is wont to be done in conversations, he said to someone: I MAKE YOU HEIR or I LEAVE MY GOODS TO YOU, this ought not to be observed as a testament.
nor does it more concern anyone than those themselves to whom that privilege has been given, that an example of this kind not be admitted: otherwise, not with difficulty after the death of some soldier there will be witnesses who affirm that they have heard someone saying that he leaves his goods to whom it seemed good, and through this true judgments will be subverted."
Quin immo et mutus et surdus miles testamentum facere potest. Sed hactenus hoc illis a principalibus constitutionibus conceditur, quatenus militant et in castris degunt: post missionem vero veterani vel extra castra si faciant adhuc militantes testamentum, communi omnium civium Romanorum iure facere debent. et quod in castris fecerint testamentum non communi iure, sed quomodo voluerint, post missionem intra annum tantum valebit.
Nay rather, even a mute and a deaf soldier can make a testament. But this is granted to them by imperial constitutions only so far as they are on service and dwell in the camp: after discharge, indeed, the veterans—or if, while still on service, they make a testament outside the camp—must make it by the common law of all Roman citizens. And a testament which they have made in the camp, not by the common law but in whatever manner they wished, after discharge will be valid only within a year.
But also, if someone before military service made a testament not according to law, and, having become a soldier and being on campaign, unsealed it and added certain things or subtracted, or otherwise the soldier’s intention is manifest, wishing this to be valid, it must be said that the testament is valid as if from the soldier’s new intention. Finally, even if the soldier has been given in adrogation or a son-in-power has been emancipated, his testament, as a soldier’s, is valid by a new intention, nor does it seem to be rendered void by a diminution of status (capitis deminutio).
Sciendum tamen est, quod ad exemplum castrensis peculii tam anteriores leges quam principales constitutiones quibusdam quasi castrensia dederunt peculia, atque eorum quibusdam permissum erat etiam in potestate degentibus testari. quod nostra constitutio latius extendens, permisit omnibus in his tantummodo peculiis testari quidem, sed iure communi: cuius constitutionis tenore perspecto, licentia est nihil eorum quae ad praefatum ius pertinent ignorare.
It must, however, be known that, on the model of the castrense peculium, both earlier laws and principal constitutions granted to certain persons quasi‑castrensian peculia, and to some of these it was permitted to make a testament even while living under potestas. Our constitution, extending this more broadly, has permitted all to make a testament indeed in these peculia only, but according to the ius commune; and, the tenor of this constitution having been examined, there is license to ignore nothing of the things that pertain to the aforesaid law.
Non tamen omnibus licet facere testamentum. statim enim hi qui alieno iuri subiecti sunt testamenti faciendi ius non habent, adeo quidem ut, quamvis parentes eis permiserint, nihilo magis iure testari possint: exceptis his quos antea enumeravimus, et praecipue militibus qui in potestate parentum sunt, quibus de eo quod in castris adquisierint permissum est ex constitutionibus principum testamentum facere. quod quidem initio tantum militantibus datum est tam ex auctoritate divi Augusti quam Nervae nec non optimi imperatoris Traiani; postea vero subscriptione divi Hadriani etiam dimissis militia, id est veteranis, concessum est.
Not, however, is it permitted to all to make a testament. For at once those who are subject to another’s law have no right of making a testament, indeed to such an extent that, although their parents may have permitted them, they can by no means make a will by right: excepting those whom we have enumerated before, and especially soldiers who are in the power of their parents, to whom, concerning that which they have acquired in the camp, it has been permitted by the constitutions of the princes to make a testament. Which indeed at the beginning was given only to those serving as soldiers, both by the authority of the deified Augustus and of Nerva and likewise of the best emperor Trajan; but afterwards, by the subscription of the deified Hadrian, it was granted also to those dismissed from military service, that is, to veterans.
And so, if indeed they have made a testament concerning the castrense peculium, this will pertain to him whom they have left as heir: but if they die intestate, with no children or brothers surviving, it will pertain to their parents by the common law. From this we can understand that what a soldier who is under his father’s power has acquired in the camp, neither can the father himself take away, nor can the father’s creditors sell it or otherwise trouble it, nor—after the father’s death—will it be common with the brothers, but clearly what he has acquired in the camp is his own proper property; although by the civil law the peculia of all who are under the power of parents are likewise reckoned among the goods of the parents, just as the peculia of slaves are counted among the goods of their masters: with, to be sure, the exception of those things which by sacred constitutions, and especially by our own, for diverse causes are not acquired. Accordingly, apart from those who have a castrense or quasi-castrense peculium, if any other son-in-power should make a testament, it is ineffectual, even if he dies after having become sui iuris.
Furthermore, those under puberty cannot make a testament, because they have no judgment of mind; likewise the insane, because they lack mind. Nor does it pertain to the matter if one under puberty has afterwards become of age or an insane person has afterwards become of sound mind and has died. But the insane, if during that time in which their fury is intermitted they make a testament, are considered by law to have made a valid will, certainly with the testament which they made before the madness remaining valid: for neither testaments rightly made nor any other business rightly transacted is afterwards destroyed by intervening madness.
Likewise, a prodigal, to whom the administration of his own goods has been interdicted, cannot make a testament; but what he made before an interdiction of his goods is imposed is valid. Likewise, a mute and a deaf person cannot always make a testament. And here we speak of that deaf person who does not hear at all, not one who hears slowly; for a mute is understood as one who can utter nothing, not one who speaks slowly.
Often, too, even literate and erudite men, through various accidents, lose the faculty both of hearing and of speaking: whence our constitution has also brought aid to these, so that in certain cases and modes, according to its norm, they may be able to make a testament, and to do other things which are permitted to them. But if anyone, after a testament has been made, by illness or by any other accident begins to be mute or deaf, his testament nonetheless remains ratified. A blind man, however, cannot make a testament except through the observance which the law of the deified Justin, my father, introduced.
Non tamen, ut omnimodo valeat testamentum, sufficit haec observatio quam supra euimus. sed qui filium in potestate habet, debet curare ut eum heredem instituat vel exheredem nominatim faciat: alioquin si eum silentio praeterierit, inutiliter testabitur, adeo quidem ut, etsi vivo patre filius mortuus sit, nemo ex eo testamento heres existere possit, quia scilicet ab initio non constiterit testamentum. sed non ita de filiabus vel aliis per virilem sexum descendentibus liberis utriusque sexus fuerat antiquitati observatum: sed si non fuerant heredes scripti scriptaeve vel exheredati exheredataeve, testamentum quidem non infirmabatur, ius autem adcrescendi eis ad certam portionem praestabatur.
Nevertheless, in order that the testament may be valid in every respect, this observance which we have set forth above does not suffice. But he who has a son in his power ought to take care either to institute him heir or to make him exheredated by name; otherwise, if he passes him over in silence, he will testify to no effect, to such a degree that, even if the son dies while the father is still alive, no one can become heir from that testament, because, namely, the testament did not stand from the beginning. But it was not thus observed by antiquity concerning daughters or other descendants through the male line of either sex: but if they had not been written as heirs or exheredated (male or female), the testament was not invalidated; rather, a right of accretion to a certain portion was afforded to them.
But nor was it necessary for parents to disinherit those persons by name; it was permitted to do this also among the “others.” Moreover, someone is considered to be disinherited by name whether he is disinherited thus TITIUS FILIUS MEUS EXHERES ESTO, or thus FILIUS MEUS EXHERES ESTO, with no proper name added—namely, if no other son exists.
Postumi quoque liberi vel heredes institui debent vel exheredari. et in eo par omnium condicio est, quod et in filio postumo et in quolibet ex ceteris liberis sive feminini sexus sive masculini praeterito valet quidem testamentum, sed postea adgnatione postumi sive postumae rumpitur et ea ratione totum infirmatur: ideoque si mulier, ex qua postumus aut postuma sperabatur, abortum fecerit, nihil impedimento est scriptis heredibus ad hereditatem adeundam. sed feminini quidem sexus personae vel nominatim vel inter "ceteros" exheredari solebant, dum tamen, si inter "ceteros" exheredentur, aliquid eis legetur, ne videantur per oblivionem praeteritae esse, masculos vero postumos, id est filium et deinceps, placuit non aliter recte exheredari, nisi nominatim exheredentur, hoc scilicet modo: QUICUMQUE MIHI FILIUS GENITUS FUERIT, EXHERES ESTO.
Posthumous children too must either be instituted as heirs or be exheredated. And in this the condition of all is equal: both in the case of a posthumous son and in the case of any of the other children, whether of the female sex or the male, if passed over, the testament is indeed valid, but afterwards it is broken by the agnation of the posthumous child, male or female, and on that account is wholly invalidated: and therefore, if the woman from whom a posthumous son or daughter was expected has had a miscarriage, there is nothing to hinder the written heirs from entering upon the inheritance. But persons of the female sex were accustomed to be exheredated either by name or among the "others," provided, however, that if they are exheredated among the "others," something is bequeathed to them, lest they seem to have been passed over by forgetfulness; but posthumous males—that is, a son and those thereafter—it has been decided are not rightly exheredated otherwise than if they are exheredated by name, namely in this manner: WHATEVER SON SHALL BE BORN TO ME, LET HIM BE DISINHERITED.
In the place of posthumous children are also those who, by succeeding into the place of a sui heir, as it were by “being born in” (agnascendo), become sui heirs to their parents. For example, if someone has in his power a son and, from him, a grandson or granddaughter, because the son precedes in degree, he alone has the rights of a sui heir, although the grandson and granddaughter from him are in the same power. But if his son, while he himself is alive, should die, or should depart from his power for any other reason, the grandson or granddaughter begins to succeed into his place, and in that way they acquire the rights of sui heirs, as it were by agnation. Therefore, lest his testament be broken in that way, just as the testator ought either to institute the son himself as heir or to disinherit him by name, lest he make a testament not according to law, so too it is necessary for him either to institute as heir or to disinherit the grandson or granddaughter through the son, lest perhaps, the son having died while he is alive, by succeeding into his place the grandson or granddaughter, as it were by agnation, break the testament.
Emancipatos liberos iure civili neque heredes instituere neque exheredare necesse est, quia non sunt sui heredes. sed praetor omnes tam feminini sexus quam masculini, si heredes non instituantur, exheredari iubet, virilis sexus nominatim, feminini vero et inter "ceteros." quodsi neque heredes instituti fuerint neque ita, ut diximus, exheredati, promittit praetor eis contra tabulas testamenti bonorum possessionem.
Emancipated children, by civil law, need neither be instituted as heirs nor disinherited, because they are not their own heirs. But the praetor orders that all, both of the female sex and of the male, if they are not instituted as heirs, be disinherited—the male sex by name, but the female indeed among the "others." And if neither heirs have been instituted nor thus, as we have said, have they been disinherited, the praetor promises to them bonorum possessio against the testament.
Adoptivi liberi quamdiu sunt in potestate patris adoptivi, eiusdem iuris habentur cuius sunt iustis nuptiis quaesiti: itaque heredes instituendi vel exheredandi sunt secundum ea quae de naturalibus euimus: emancipati vero a patre adoptivo neque iure civili neque quod ad edictum praetoris attinet inter liberos numerantur. qua ratione accidit ut ex diverso, quod ad naturalem parentem attinet, quamdiu quidem sint in adoptiva familia, extraneorum numero habeantur, ut eos neque heredes instituere neque exheredare necesse sit. cum vero emancipati fuerint ab adoptivo patre, tunc incipiunt in ea causa esse in qua futuri essent si ab ipso naturali patre emancipati fuissent.
Adoptive children, so long as they are in the power of the adoptive father, are held to be under the same law as those acquired by lawful nuptials: and so they must be instituted as heirs or disinherited according to the things which we have set forth concerning natural children: but those emancipated by the adoptive father are counted among the children neither by civil law nor, so far as the praetor’s edict is concerned. For which reason it happens that, conversely, as regards the natural parent, so long indeed as they are in the adoptive family, they are held in the number of strangers, so that it is not necessary either to institute them as heirs or to disinherit them. But when they have been emancipated by the adoptive father, then they begin to be in that position in which they would be if they had been emancipated by their natural father himself.
Sed haec vetustas introducebat. nostra vero constitutio inter masculos et feminas in hoc iure nihil interesse existimans, quia utraque persona in hominum procreatione similiter naturae officio fungitur et lege antiqua duodecim tabularum omnes similiter ad successiones ab intestato vocabantur, quod et praetores postea secuti esse videntur, ideo simplex ac simile ius et in filiis et in filiabus et in ceteris descendentibus per virilem sexum personis non solum natis sed etiam postumis introduxit, ut omnes, sive sui sive emancipati sunt, aut heredes instituantur aut nominatim exheredentur, et eundem habeant effectum circa testamenta parentum suorum infirmanda et hereditatem auferendam quem filii sui vel emancipati habent, sive iam nati sunt sive adhuc in utero constituti postea nati sunt. circa adoptivos autem certam induximus divisionem, quae constitutione nostra, quam super adoptivis tulimus, continetur.
But these things antiquity used to introduce. Our constitution, however, considering that between males and females there is no difference in this law—since each person similarly performs nature’s office in the procreation of human beings, and by the ancient law of the Twelve Tables all were likewise called to successions ab intestato, which the praetors later seem to have followed—has therefore introduced a simple and similar law both for sons and for daughters, and for the other persons descending through the male line, not only those born but also posthumous, namely, that all, whether they are sui or emancipated, either be instituted heirs or be expressly disinherited by name; and that they have the same effect for invalidating their parents’ testaments and carrying off the inheritance as sons who are sui or emancipated have, whether they are already born or are still in the womb and afterwards born. But concerning adoptives we have introduced a certain division, which is contained in our constitution which we issued concerning adoptees.
But if a soldier, occupied on campaign, makes a testament and does not by name disinherit his children already born or posthumous, but passes them over in silence, not being ignorant as to whether he has children, it has been provided by the constitutions of the emperors that his silence shall avail for a disinheritance made by name. The mother or the maternal grandfather are not required either to institute their children as heirs or to disinherit them, but may omit them. For the silence of the mother or of the maternal grandfather and of the other ascendants through the mother effects just as much as the father’s exheredation.
for neither is it necessary for a mother to disinherit a son or daughter, nor for a maternal grandfather to disinherit a grandson or granddaughter through a daughter, if he or she does not appoint him or her as heir, whether we inquire under the civil law or under the praetor’s edict, by which he promises, for children who have been passed over, bonorum possessio against the tablets. But another aid is reserved for them, which will become manifest to you a little later.
Heredes instituere permissum est tam liberos homines quam servos tam proprios quam alienos. proprios autem olim quidem secundum plurium sententias non aliter quam cum libertate recte instituere licebat. hodie vero etiam sine libertate ex nostra constitutione heredes eos instituere permissum est quod non per innovationem induximus, sed quoniam et aequius erat et Atilicino placuisse Paulus suis libris quos tam ad Masurium Sabinum quam ad Plautium scripsit refert.
It is permitted to institute heirs, both free persons and slaves, both one’s own and others’. as for one’s own, formerly indeed, according to the opinion of the majority, it was lawful to institute them rightly in no other way than together with liberty (manumission). but today, even without liberty, by our constitution it is permitted to institute them as heirs, which we have introduced not by way of innovation, but because both it was more equitable, and Paulus in his own books, which he wrote both to Masurius Sabinus and to Plautius, reports that this pleased Atilicinus.
but a “proper” slave is also understood to be one in whom the testator has the bare proprietorship, another having the usufruct. Moreover, there is a case in which not even with liberty is a slave usefully instituted as heir by a mistress, as is provided by the constitution of the deified Severus and Antoninus, whose words are these:
"Servum adulterio maculatum non iure testamento manumissum ante sententiam ab ea muliere videri quae rea fuerat eiusdem criminis postulata, rationis est: quare sequitur, ut in eundem a domina collata institutio nullius momenti habeatur."
"That a slave maculated by adultery, deemed by that woman—who had been arraigned as defendant for the same crime—to have been manumitted by testament not by right before sentence, is a matter of reason: wherefore it follows that the institution conferred upon the same man by the mistress is to be held of no moment."
alienus servus etiam is intellegitur, in quo usumfructum testator habet. Servus autem a domino suo heres institutus, si quidem in eadem causa manserit, fit ex testamento liber heresque necessarius. si vero a vivo testatore manumissus fuerit, suo arbitrio adire hereditatem potest, quia non fit necessarius, cum utrumque ex domini testamento non consequitur.
another’s slave is also understood to be one in whom the testator has a usufruct. But a slave appointed heir by his own master, if indeed he remains in the same condition, becomes by the testament free and a necessary heir. If, however, he has been manumitted by the testator while alive, he can enter upon the inheritance at his own discretion, because he does not become necessary, since he does not obtain both from his master’s testament.
But if he has been alienated, by the order of the new master he must enter upon the inheritance, and in that way through him the master becomes heir: for the one alienated can be neither free nor heir, even if he has been instituted heir together with liberty: for the master who alienated him is seen to have desisted from the donation of liberty. Likewise, an alien slave instituted as heir, if he endures in the same condition, must, by the order of his master, enter upon the inheritance. But if he has been alienated either while the testator is alive or after his death, before he enters, he must enter by the order of the new master.
but if he has been manumitted, whether while the testator is alive or after his death, before he enters, he can enter upon the inheritance at his own discretion. A slave belonging to another is rightly instituted heir after his master’s death, because there is testamentary capacity also with hereditary slaves: for an inheritance not yet entered upon sustains the role of a person, not of the future heir, but of the deceased, since even the slave of one who is in the womb is rightly instituted heir. A slave of several owners, with whom there is testamentary capacity, if instituted heir by an outsider, acquires the inheritance for each of the masters at whose order he shall have entered, in proportion to the share of ownership.
Et unum hominem et plures in infinitum, quot quis velit, heredes facere licet. Hereditas plerumque dividitur in duodecim uncias, quae assis appellatione continentur. habent autem et hae partes propria nomina ab uncia usque ad assem, ut puta haec; uncia, sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans deunx, as. non autem utique duodecim uncias esse oportet.
And it is permitted to make as heirs either a single person or more, to infinity, as many as one wishes. The inheritance is for the most part divided into twelve ounces (unciae), which are contained under the appellation of the as. Moreover, these shares also have their own names from the uncia up to the as, for example, these; uncia, sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextans, deunx, as. Nor, however, must there necessarily be twelve ounces.
for as many ounces (unciae) make up the as as the testator may wish; and if someone appoints only a single heir, for example to a half-as (semis), the whole as will be in the half-as: for the same person cannot die partly testate and partly intestate, unless he is a soldier, whose will alone is regarded in testation. And conversely, one can divide his inheritance into as many ounces as he wishes, however many. If several are instituted, then a distribution of shares is necessary only if the testator does not wish them to be heirs in equal parts: for it is well settled that, with no shares named, they are heirs in equal parts.
But when shares have been expressed for certain persons, if someone else has been named without a share, then, if indeed some part of the as is lacking, he becomes heir from that part; and if several have been written without a share, they all concur in that same part. But if the whole as has been completed, they are called into a half share, and he or they all into the other half. Nor does it matter whether the one written without a share is first or middle or last: for that share is understood to be given which is vacant.
Let us see, if some share is vacant and yet no one has been instituted heir without a share, what the law is? For example, if three heirs are written from quarter parts. And it is agreed that the vacant part tacitly accrues to each as an hereditary share and is held just as if the heirs had been written from third parts; and conversely, if there is more than an “as” in the portions, it tacitly decreases for each, so that, if, for example, four heirs are written from third parts, they are held just as if each had been written from a fourth part.
Heres et pure et sub condicione institui potest. ex certo tempore aut ad certum tempus non potest, veluti POST QUINQUENNIUM QUAM MORIAR vel EX KALENDES ILLIS aut USQUE AD KALENDAS ILLAS HERES ESTO: diemque adiectum pro supervacuo haberi placet, et perinde esse ac si pure heres institutus esset. Impossibilis condicio in institutionibus et legatis nec non in fideicommissis et libertatibus pro non scripto habetur.
An heir can be instituted both purely and under condition. From a fixed time or for a fixed time he cannot, for example, AFTER FIVE YEARS FROM MY DEATH or FROM THOSE KALENDS or BE HEIR UP TO THOSE KALENDS: and it is the accepted view that the day added is treated as superfluous, and that it is just as if the heir had been instituted purely. An impossible condition in institutions and legacies, and likewise in fideicommissa and in manumissions, is held as though not written.
Potest autem quis in testamento suo plures gradus heredum facere, ut puta SI ILLE HERES NON ERIT, ILLE HERES ESTO; et deinceps, in quantum velit, testator substituere potest et novissimo loco in subsidium vel servum necessarium heredem instituere. Et plures in unius locum possunt substitui, vel unus in plurium, vel singuli singulis, vel invicem ipsi qui heredes instituti sunt. Et si ex disparibus partibus heredes scriptos invicem substituerit et nullam mentionem in substitutione habuerit partium, eas videtur partes in substitutione dedisse quas in institutione expressit: et ita divus Pius rescripsit.
However, one can make several grades of heirs in his testament, as, for example, IF THAT ONE WILL NOT BE HEIR, LET THAT ONE BE HEIR; and thereafter, so far as he wishes, the testator can substitute, and in the last place, by way of reserve, even institute as heir a necessary slave. And several can be substituted in the place of one, or one in the place of several, or individuals for individuals, or reciprocally those very persons who have been instituted as heirs. And if he has reciprocally substituted the heirs named in unequal shares and has made no mention in the substitution of the shares, he is deemed to have given in the substitution those shares which he expressed in the institution: and thus the deified Pius rescripted.
But if, the instituted heir having been appointed, and for his coheir a substitute having been given, another substitute shall have been appointed, the deified Severus and Antoninus rescripted, without distinction, that the substitute be admitted to both shares. If someone, thinking another’s slave to be a paterfamilias, shall have written him as heir and, if he should not be heir, shall have substituted Maevius to him, and that slave, by the order of his master, shall have entered upon the inheritance, Maevius is admitted into a part. For those words SI HERES NON ERIT, in the case of one whom the testator knows to be subject to another’s law, are thus understood: if neither he himself will be heir nor will he have made another heir; but in the case of one whom he believes to be a paterfamilias, they signify this: if he shall not have acquired the inheritance for himself or for him whose law (authority) he shall thereafter have begun to be subject to.
Liberis suis impuberibus, quos in potestate quis habet, non solum ita, ut supra diximus, substituere potest, id est ut, si heredes ei non extiterint, alius ei sit heres, sed eo amplius ut et si heredes ei extiterint et adhuc impuberes mortui fuerint, sit eis aliquis heres. veluti si quis dicat hoc modo: TITIUS FILIUS MEUS HERES MIHI ESTO: SI FILIUS MEUS HERES MIHI NON ERIT, SIVE HERES ERIT ET PRIUS MORIATUR QUAM IN SUAM TUTELAM VENERIT (id est pubes factus sit), TUNC SEIUS HERES ESTO. quo casu si quidem non extiterit heres filius, tunc substitutus patri fit heres: si vero extiterit heres filius et ante pubertatem decesserit, ipsi filio fit heres substitutus.
For his own under-age children, whom a person has in potestas, he can substitute not only in the way we said above, that is, so that, if they do not become his heirs, another may be his heir, but further, so that even if they do become his heirs and, still under-age, die, there may be someone to be their heir. For example, if someone says in this way: TITUS, MY SON, SHALL BE MY HEIR; IF MY SON SHALL NOT BE MY HEIR, OR IF HE SHALL BE HEIR AND DIE BEFORE HE HAS COME INTO HIS OWN TUTELAGE (that is, has become of puberty), THEN SEIUS SHALL BE HEIR. In which case, if indeed the son does not become heir, then the substitute becomes the father’s heir; but if the son does become heir and dies before puberty, the substitute becomes the son’s heir.
for it has been established by custom that, since they are of that age in which they cannot make a testament for themselves, their parents make one for them. Stirred by this reasoning, we have also placed in our Code a constitution by which provision is made that, if they have sons or grandsons or great-grandsons of whatever sex or degree who are insane, it is permitted to them, even though they are of age (puberes), to substitute certain persons after the example of pupillary substitution; but if they come back to their senses, that the same substitution is to be invalidated—this too after the example of pupillary substitution, which, after the ward has grown up, is invalidated. Therefore, in a pupillary substitution arranged according to the aforesaid manner, there are, as it were, two testaments: one of the father, the other of the son, as if the son himself had instituted an heir for himself; or at any rate there is one testament of two causes, that is, of two inheritances.
But if someone should be so timorous as to fear lest his son, still a ward, from the fact that he has openly received a substitution, after his death be exposed to the danger of plots: he ought indeed to make the common substitution openly and in the first parts of the testament; but that substitution by which, even if the ward has become heir and dies within puberty, the substitute is called, he should write separately in the lower parts and seal that section with his own cord and his own wax, and in the prior part of the testament provide that the lower tablets not be opened while the son is alive and still under puberty. It is manifest that the substitution of an underage son is not for that reason of less validity, because it has been written on the same tablets on which each person has instituted an heir for himself, although this is dangerous for the ward. Not only, moreover, to underage children appointed as heirs can parents thus substitute, so that even if they have become heirs and have died before puberty, the heir for them is the one whom they themselves have wished, but also to those who have been disinherited.
and so, in that case, if anything has been acquired for the pupil from inheritances or legacies or from the donations of kinsmen and friends, all of it pertains to the substitute. Whatever we have said about the substitution of underage children, whether instituted as heirs or disinherited, we understand the same also about posthumous children. Moreover, no one can make a testament for his own children unless he also makes one for himself: for the pupillary testament is a part and sequel of the paternal testament, to such an extent that, if the father’s testament is not valid, not even the son’s will will be valid.
Either to each individual child, or to the one of them who as an underage person will be the last to die, a substitute can be appointed. To each individually, indeed, if he did not wish any of them to die intestate; to the last, if he wishes the right of legitimate inheritances to be kept intact among them. Moreover, an underage child is substituted either by name, as TITIUS, or generally, QUISQUIS MIHI HERES ERIT (“WHOEVER SHALL BE MY HEIR”): by which words, upon the underage son’s death, those are called under the substitution who both have been written as heirs and have actually accrued, and in proportion to the share for which they were made heirs.
Therefore, for a male one can substitute up to 14 years, for a female up to 12 years: and if this time is exceeded, the substitution vanishes (evanesces). But for a stranger or for a son who is of age (pubes) appointed as heir, no one can so substitute that, if he has become heir and dies within some period, another shall be his heir; but only this is permitted: that the testator bind him by a fideicommissum to restore his inheritance to another, either in whole or in part; what sort of right this is, we shall set forth in its own place.
Rumpitur autem testamentum, cum in eodem statu manente testatore ipsius testamenti ius vitiatur. si quis enim post factum testamentum adoptaverit sibi filium per imperatorem, eum qui sui iuris est, aut per praetorem, secundum nostram constitutionem, eum qui in potestate parentis fuerit, testamentum eius rumpitur quasi adgnatione sui heredis. Posteriore quoque testamento, quod iure perfectum est, superius rumpitur.
However, a will is broken when, the testator remaining in the same status, the right of that will is vitiated. For if someone, after making a will, should adopt a son for himself through the emperor—one who is sui iuris (independent)—or through the praetor, according to our constitution—one who has been under a parent’s power—his will is broken, as though by the agnation of a sui heir. By a later will too, which has been duly perfected, the earlier is broken.
it does not matter whether some heir has arisen from it or has not arisen: for this alone is regarded, whether in any event he could have come into being. and so, if someone either has not wished to be heir, or, with the testator alive or after his death, before he should enter upon the inheritance, has died, or has failed the condition under which he was instituted heir, in these cases the paterfamilias dies intestate: for both the prior testament is not valid, being broken by the later, and the later likewise has no force, since from it no heir has arisen. but if someone, with the earlier testament perfected in law, has made a later likewise in law, even if he has instituted in it an heir with respect to specified things, the deified Severus and Antoninus wrote in a rescript that the earlier testament is removed.
"Imperatores Severus et Antoninus Cocceio Campano. Testamentum secundo loco factum, licet in eo certarum rerum heres scriptus sit, iure valere, perinde ac si rerum mentio facta non esset, sed teneri heredem scriptum, ut, contentus rebus sibi datis, aut suppleta quarta ex lege Falcidia, hereditatem restituat his qui in priore testamento scripti fuerant, propter inserta verba secundo testamento, quibus ut valeret prius testamentum expressum est, dubitari non oportet."
"The Emperors Severus and Antoninus to Cocceius Campanus. A testament made in second place, although in it an heir of certain things has been written, is valid in law, just as if no mention of things had been made; but the instituted heir is bound, so that, content with the things given to him, or with the fourth supplemented under the Lex Falcidia, he restore the inheritance to those who had been written in the prior testament, on account of the words inserted in the second testament, by which it was expressed that the earlier testament should be valid—there ought to be no doubt."
Alio quoque modo testamenta iure facta infirmantur, veluti cum is qui fecerit testamentum capite deminutus sit. quod quibus modis accidit, primo libro rettulimus. Hoc autem casu irrita fieri testamenta dicuntur, cum alioquin et quae rumpantur, irrita fiunt, et quae statim ab initio non iure fiunt, irrita sunt: et ea quae iure facta sunt, postea propter capitis deminutionem irrita fiunt, possumus nihilo minus rupta dicere.
In another way as well, testaments made according to law are invalidated, for instance when the person who has made the testament has been capite deminutus. By what modes this happens, we reported in Book One. In this case, however, testaments are said to become void; since otherwise both those which are broken become void, and those which from the very beginning are not made according to law are void: and those which have been made according to law, later, on account of capitis deminutio, become void—we can nonetheless call them broken.
But because indeed it was more commodious that individual causes be distinguished by individual appellations, therefore some are said to be not made according to law, some, though made according to law, to be broken or to become void. Nevertheless, those testaments which from the beginning were made according to law but were made void on account of capitis deminution are not in all respects useless. For if they have been sealed with the seals of seven witnesses, the written heir can claim bonorum possession according to the testamentary tablets, provided only that the deceased was both a Roman citizen and in his own power at the time of death: for if the testament has been made void for this reason, that the testator lost citizenship or even liberty, or because he gave himself into adoption and at the time of death was in the power of his adoptive father, the written heir cannot seek bonorum possession according to the tablets.
But from this alone a will cannot be invalidated, that afterwards the testator did not wish it to have force; and, what is more, even if after making an earlier will someone began to make a later one and, either forestalled by mortality or because he repented of it, did not complete it, by the oration of the deified Pertinax it was provided that the earlier tablets, lawfully made, should not otherwise become void unless the subsequent ones had been lawfully ordered and perfected; for an imperfect will is without doubt null. By the same oration he declared that he would not admit the inheritance of one who, for the sake of litigation, had left the emperor as heir, nor would he approve tablets not legitimately made in which he himself had been instituted heir for that cause, nor would he admit the name of an heir from a bare voice, nor would he obtain anything from any writing to which the authority of law is lacking.
Quia plerumque parentes sine causa liberos suos vel exheredant vel omittunt, inductum est ut de inofficioso testamento agere possint liberi, qui queruntur, aut inique se exheredatos aut inique praeteritos, hoc colore, quasi non sanae mentis fuerunt, cum testamentum ordinarent. sed hoc dicitur non quasi vere furiosus sit, sed recte quidem fecit testamentum, non autem ex officio pietatis: nam si vere furiosus est, nullum est testamentum. Non tantum autem liberis permissum est parentum testamentum inofficiosum accusare, verum etiam parentibus liberorum.
Because parents very often without cause either disinherit or omit their children, it has been introduced that the children can bring an action on an undutiful testament, who complain that they have been unjustly disinherited or unjustly passed over, under this pretext, as though they were not of sound mind when they made the testament. But this is said not as if he were truly mad, but that indeed he made the testament rightly, yet not in accordance with the duty of pietas; for if he is truly insane, the testament is null. Not only, moreover, is it permitted to children to accuse the testament of their parents as undutiful, but also to parents that of their children.
sister and brother, moreover, are preferred, by the sacred constitutions, to disgraceful persons named as heirs: therefore they cannot proceed against all heirs. Beyond brothers and sisters, cognates can in no way either bring the action or, if bringing it, prevail. Both natural children and those adopted, according to the division of our constitution, may bring an action concerning an inofficious testament only if by no other right they can come to the estate of the deceased.
for those who come by another right to the whole inheritance or a part of it cannot bring an action for inofficiousness. posthumous children too, who can come by no other right, can bring an action for inofficiousness. but these matters are to be understood thus, if absolutely nothing has been left to them by the testators in the testament.
which our constitution introduced out of reverence for nature. But if indeed whatever portion of the inheritance, or a thing, has been left to them, the complaint of inofficiousness remaining at rest, that which is lacking to them is filled up to a fourth of the legitimate share, although it has not been added that it ought to be so filled by the arbitrament of a good man. If a tutor, in the name of the ward whose tutelage he was administering, has received a legacy from his own father’s testament, when nothing had been left to the tutor himself by his father, nonetheless he can in his own name proceed on the inofficiousness of his father’s testament.
But also, if conversely, in the name of the ward, to whom nothing was left, he has proceeded on the undutiful-will charge and is defeated, he himself does not lose what in that same testament was left to him as a legacy. Therefore someone ought to have the fourth, so that he may not be able to proceed on an undutiful testament: whether by hereditary right or by the right of a legacy or a fideicommiss, or if a fourth has been given to him mortis causa, or inter vivos in only those cases of which our constitution makes mention, or by other modes which are contained in the constitutions. And what we have said about the fourth is to be understood thus: whether there is one person or several to whom it is permitted to proceed concerning an undutiful testament, a single fourth can be given to them, so that it is distributed to them pro rata, that is, by virile portion, the fourth.
Necessarius heres est servus heres institutus: ideo sic appellatur, quia, sive velit sive nolit, omnimodo post mortem testatoris protinus liber et necessarius heres fit. unde qui facultates suas suspectas habent, solent servum suum primo aut secundo vel etiam ulteriore gradu heredem instituere, ut, si creditoribus satis non fiat, potius eius heredis bona quam ipsius testatoris a creditoribus possideantur vel distrahantur vel inter eos dividantur. pro hoc tamen incommodo illud ei commodum praestatur, ut ea quae post mortem patroni sui sibi adquisierit ipsi reserventur: et quamvis non sufficiant bona defuncti creditoribus, iterum ex ea causa res eius, quas sibi adquisierit, non veneunt.
A necessary heir is a slave instituted as heir: he is so called because, whether he wills it or not, in any case after the death of the testator he immediately becomes free and a necessary heir. Whence those who hold their resources suspect are accustomed to institute their slave heir in the first or second, or even a further, degree, so that, if satisfaction is not made to the creditors, the goods of that heir rather than of the testator himself may be possessed by the creditors, or sold off, or divided among them. For this inconvenience, however, this advantage is afforded to him: that the things which after the death of his patron he has acquired for himself are reserved to himself; and although the goods of the deceased do not suffice for the creditors, nevertheless for that reason his property, which he has acquired for himself, is not sold.
Sui autem et necessarii heredes sunt veluti filius, filia, nepos neptisque ex filio et deinceps ceteri liberi, qui modo in potestate morientis fuerint. sed ut nepos neptisve sui heredes sint, non sufficit eum eamve in potestate avi mortis tempore fuisse, sed opus est ut pater eius vivo patre suo desierit suus heres esse, aut morte interceptus aut qualibet alia ratione liberatus potestate: tunc enim nepos neptisve in locum patris sui succedit. sed sui quidem heredes ideo appellantur quia domestici heredes sunt et vivo quoque patre quodammodo domini existimantur.
Sui, however, and necessary heirs are, as it were, the son, daughter, grandson and granddaughter through a son, and thereafter the other descendants, who at the time were in the power of the one dying. But for a grandson or granddaughter to be “sui” heirs, it does not suffice that he or she was in the power of the grandfather at the time of death; rather it is required that his father, while his own father was alive, ceased to be a “suus heres,” either intercepted by death or freed from power on any other ground: then indeed the grandson or granddaughter succeeds into the place of his father. But they are called “sui” heirs for this reason, because they are domestic heirs, and even with the father living they are in a certain way considered masters.
Whence also, if someone has died intestate, the first claim in succession is that of the children. They are called “necessary” for this reason, because in every way, whether they wish it or not, they become heirs both on intestacy and under a testament. But to these the praetor permits, if they are willing, to abstain from the inheritance, so that rather the goods of the parent than their own may likewise be possessed by the creditors.
Ceteri, qui testatoris iuri subiecti non sunt, extranei heredes appellantur. itaque liberi quoque nostri qui in potestate nostra non sunt, heredes a nobis instituti, extranei heredes videntur. qua de causa et qui heredes a matre instituuntur eodem numero sunt, quia feminae in potestate liberos non habent.
The others, who are not subject to the testator’s authority, are called external heirs. And thus our children too who are not in our power, if instituted as heirs by us, are regarded as external heirs. For which cause, those who are instituted as heirs by the mother are in the same category, because women do not have children in their power.
Likewise a slave appointed heir by his master and, after the testament has been made, manumitted by him, is held in the same category. In the case of extraneous heirs it is observed that there be testamentary capacity with them, whether they themselves are instituted heirs, or those who are in their power. And this is inspected at two times: at the making of the testament, so that the institution may stand, and at the death of the testator, so that it may have effect.
Further, this besides: also when he enters upon the inheritance he must have testamentary capacity with respect to him, whether the heir has been instituted purely or under a condition; for the right of the heir must be examined most of all at that time at which he acquires the inheritance. But in the intermediate time between the making of the testament and the death of the testator, or (if the institution is conditional) while the condition of the institution is pending, a change of legal status does not harm the heir, because, as we have said, three times must be inspected. Moreover, testamentary capacity is considered to be had not only by one who can make a testament, but also by one who from another’s testament can either take for himself or acquire for another, even if he cannot make a testament.
and therefore even an insane man, a mute, a posthumous child, an infant, a filiusfamilias, and another’s slave are said to have testamentary capacity: for although they cannot make a testament, nevertheless from a testament they can acquire either for themselves or for another. But extraneous heirs have the power of deliberating about entering upon the inheritance or not entering. But whether he to whom there is the power of abstaining has intermeddled with the hereditary goods, or an extraneous person, to whom it is permitted to deliberate about entering upon the inheritance, has entered, thereafter he does not have the faculty of relinquishing the inheritance, unless he is under 25 years: for to persons of this age, just as in all other cases when deceived, so also if they have rashly undertaken a ruinous inheritance, the praetor brings succor.
Nevertheless it must be known that the deified Hadrian even granted indulgence to someone older than twenty-five years, when, after the inheritance had been entered upon, a great debt, which at the time of the entry upon the inheritance lay hidden, had emerged. But the deified Hadrian furnished this to a certain person by a special favor; and the deified Gordian later extended this only among the soldiers. Our benevolence, however, has afforded this benefit in common to all subject to our empire and has written a constitution as most equitable as it is noble; if people observe its tenor, it is permitted to them to enter upon an inheritance and to be held liable only to the extent that the assets of the inheritance prove to be worth, so that for this cause the aid of deliberation is not necessary for them—unless, setting aside observance of our constitution, they should think that deliberation is required and prefer to subject themselves to the old burden of entry. Likewise, an extraneous heir, instituted by testament or called to the legitimate inheritance ab intestato, can become heir either by acting as heir or even by the bare will to accept the inheritance.
But one is considered to act as heir, if he uses the hereditary things as if he were heir—whether by selling hereditary things, or by cultivating or leasing out the estates—and in any way, if he declares his will, either by deed or by words, about entering upon the inheritance, provided that he knows that the person in whose goods he acts as heir has died testate or intestate, and that he is his heir. For to act as heir is to act as owner: for the ancients called heirs “owners.” And just as by naked will an extraneous heir is made, so also by a contrary determination he is immediately repelled from the inheritance.
Post haec videamus de legatis. quae pars iuris extra propositam quidem materiam videtur: nam loquimur de his iuris figuris quibus per universitatem res nobis adquiruntur. sed cum omnino de testamentis deque heredibus qui testamento instituuntur locuti sumus, non sine causa sequenti loco potest haec iuris materia tractari.
After these things let us consider legacies. This part of the law seems indeed outside the proposed material: for we are speaking about those juridical figures by which things are acquired to us by universal succession. But since we have in general spoken about testaments and about heirs who are instituted by testament, not without cause can this topic of law be treated in the following place.
Legatum itaque est donatio quaedam a defuncto relicta. Sed olim quidem erant legatorum genera quattuor: per vindicationem, per damnationem, sinendi modo per praeceptionem: et certa quaedam verba cuique generi legatorum adsignata erant, per quae singula genera legatorum significabantur. sed ex constitutionibus divorum principum sollemnitas huiusmodi verborum penitus sublata est.
A legacy, therefore, is a certain donation left by the deceased. But formerly indeed there were four kinds of legacies: per vindicationem, per damnationem, sinendi modo, per praeceptionem; and certain fixed words were assigned to each kind of legacy, by which the several kinds of legacies were signified. But by the constitutions of the deified emperors the solemnity of words of this sort has been utterly removed.
Our constitution, which we composed with great lucubration, desiring the wills of the deceased to be more valid, and favoring not their words but their volitions, ordained that there be one nature for all legacies, and that, with whatever words anything has been left, it be permitted to the legatees to pursue it not only by personal actions, but also by in rem and by hypothecary actions: the carefully weighed method of which constitution it is possible to apprehend most perfectly from its very tenor. But we judged that one ought not to stand fast only up to that constitution. For when we found antiquity indeed strictly confining legacies, but indulging a “fuller” (more liberal) nature to fideicommissa, which more descend from the will of the deceased, we deemed it necessary to equalize all legacies with fideicommissa, so that there be no difference between them; rather, what is lacking to legacies is to be filled from the nature of fideicommissa, and if there is anything more in legacies, by this the nature of the fideicommissum is to increase.
But, lest in the very cradles of the laws, by setting forth about these matters in a mixed fashion, we introduce a certain difficulty for studious adolescents, we have judged it worth the work, for the time being, to treat separately first of legacies and afterward of fideicommissa, so that, the nature of each law having been known, the erudite, with more subtle ears, may be able easily to receive their permixture.
Non solum autem testatoris vel heredis res, sed et aliena legari potest: ita ut heres cogatur redimere eam et praestare vel, si non potest redimere, aestimationem eius dare. sed si talis res sit, cuius non est commercium, nec aestimatio eius debetur, sicuti si campum Martium vel basilicam vel templa vel quae publico usui destinata sunt, legaverit: nam nullius momenti legatum est. quod autem diximus, alienam rem posse legari, ita intellegendum est, si defunctus sciebat alienam rem esse, non et si ignorabat; forsitan enim si scisset alienam non legasset: et ita divus Pius rescripsit.
Not only the property of the testator or of the heir, but even another’s property can be bequeathed by legacy: such that the heir is compelled to redeem it and deliver it, or, if he cannot redeem it, to give its valuation. But if the thing is of such a kind that it is not in commerce, not even its valuation is owed—as, for instance, if he has bequeathed the Campus Martius or a basilica or temples or things destined for public use: for the legacy is of no moment. And what we have said, that another’s thing can be bequeathed, is to be understood thus: if the deceased knew that the thing was another’s, and not also if he was ignorant; for perhaps, if he had known it to be another’s, he would not have bequeathed it: and thus the deified Pius rescripted.
and the truer view is that the very person who brings the action, that is, the legatee, ought to prove that the deceased knew he was bequeathing another’s thing, not that the heir ought to prove that he was ignorant that it was another’s, because the necessity of proving always rests on him who sues. But also, if someone should bequeath a thing pledged to a creditor, the heir is under necessity to redeem it. And in this case too the same rule is approved as in the case of another’s thing: that only then the heir must redeem, if the deceased knew the thing was pledged; and thus the deified Severus and Antoninus issued rescripts.
if, however, the deceased wished the legatee to redeem and expressed this, the heir ought not to redeem it. If a thing belonging to another has been left as a legacy and, while the testator was still alive, the legatee became owner of it, then if by cause of purchase, he can, by an action on the testament, recover the price; but if by a lucrative cause, as by a donation or some other similar cause, he cannot sue. For it is handed down that two lucrative causes cannot concur in the same person and in the same thing.
By this reasoning, if from two testaments the same thing is owed to the same person, it matters whether he has obtained the thing or the valuation from the testament: for if the thing, he cannot bring an action, because he has it from a lucrative cause; if the valuation, he can bring an action. A thing also which is not in the nature of things, provided only that it will exist, is rightly bequeathed, for example the fruits which will be born on that farm, or what will be born from that maidservant.
Si eadem res duobus legata sit sive coniunctim sive disiunctim, si ambo perveniant ad legatum, scin ditur inter eos legatum: si alter deficiat, quia aut spreverit legatum aut vivo testatore decesserit aut alio quolibet modo defecerit, totum ad collegatarium pertinet. coniunctim autem legatur, veluti si quis dicat TITIO ET SEIO HOMINEM STICHUM DO LEGO: disiunctim ita TITIO HOMINEM STICHUM DO LEGO, SEIO STICHUM DO LEGO, sed et si expresserit EUNDEM HOMINEM STICHUM, aeque disiunctim legatum intellegitur.
If the same thing has been bequeathed to two, whether jointly or severally, if both attain the legacy, the legacy is split between them: if one fails, because either he has spurned the legacy or has died with the testator still alive or has failed in any other way, the whole pertains to the co‑legatee. Jointly it is bequeathed, for instance if someone says TO TITUS AND TO SEIUS I GIVE AND BEQUEATH THE SLAVE STICHUS: severally thus, TO TITUS I GIVE AND BEQUEATH THE SLAVE STICHUS, TO SEIUS I GIVE AND BEQUEATH STICHUS, but even if he has expressed THE SAME SLAVE STICHUS, it is understood equally as a several bequest.
Si cui fundus alienus legatus fuerit et emerit proprietatem detracto usufructu et ususfructus ad eum pervenerit et postea ex testamento agat, recte eum agere et fundum petere Iulianus ait, quia ususfructus in petitione servitutis locum optinet; sed officio iudicis contineri, ut deducto usufructu iubeat aestimationem praestari. Sed si rem legatarii quis ei legaverit, inutile legatum est, quia quod proprium est ipsius, amplius eius fieri non potest: et licet alienaverit eam, non debetur nec ipsa nec aestimatio eius. Si quis rem suam quasi alienam legaverit, valet legatum: nam plus valet quod in veritate est quam quod in opinione.
If to someone another’s estate has been bequeathed, and he has bought the proprietorship with the usufruct deducted, and the usufruct has come to him, and thereafter he brings an action on the will, Julian says that he proceeds rightly and may demand the estate, because a usufruct holds the place in a claim of servitude; but that it should be contained within the duty of the judge to order that, the usufruct being deducted, the valuation be provided. But if someone has bequeathed to him a thing belonging to the legatee, the legacy is ineffectual, because what is his own cannot become more his; and even if he has alienated it, neither the thing itself nor its valuation is owed. If someone has bequeathed his own thing as if it were another’s, the legacy is valid: for what is in truth prevails over what is in opinion.
but even if he thought it was the legatee’s, it is agreed to be valid, because the will of the deceased can have its effect. If the testator has bequeathed his own property and afterwards alienated it, Celsus considers that, if he did not sell with the intention of revoking, it is nonetheless owed; and the deified Severus and Antoninus issued a rescript to that effect. The same emperors rescripted that one who, after the testament was made, gave in pledge the estates that had been bequeathed does not seem to have revoked the legacy, and therefore the legatee can proceed against the heir, so that the estates may be redeemed from the creditor.
Si quis debitori suo liberationem legaverit, legatum utile est, et neque ab ipso debitore neque ab herede eius potest heres petere, nec ab alio qui heredis loco est: sed et potest a debitore conveniri, ut liberet eum. potest autem quis vel ad tempus iubere, ne heres petat. Ex contrario si debitor creditori suo quod debet, legaverit, inutile est legatum, si nihil plus est in legato quam in debito, quia nihil amplius habet per legatum.
If someone has bequeathed to his debtor a release, the legacy is effective, and the heir can demand it neither from the debtor himself nor from his heir, nor from another who is in the heir’s place; but he can also be sued by the debtor, in order that he release him. Moreover, one can even order for a time that the heir not demand. Conversely, if a debtor has bequeathed to his creditor what he owes, the legacy is ineffective, if there is nothing more in the legacy than in the debt, because he has nothing more by means of the legacy.
but if he has bequeathed to him outright a debt payable on a future day or under a condition, the legacy is valid on account of representation. And if, while the testator is still alive, the day arrives or the condition comes to pass, Papinian wrote that the legacy is nonetheless valid, because once it has been established. And this is true: for the opinion did not find favor of those who supposed that the legacy is extinguished, because it has come into that condition from which it cannot begin.
But if a husband has bequeathed a dowry to his wife, the legacy is valid, because the legacy is more ample than the action concerning the dowry. But if he has bequeathed a dowry which she has not received, the deified Severus and Antoninus issued a rescript: if indeed he bequeathed it simply, the legacy is invalid; but if a fixed sum of money or a specific thing, or the instrument of the dowry, has been indicated by way of a pre-legacy, the legacy is valid.
Si res legata sine facto heredis perierit, legatario decedit. et si servus alienus legatus sine facto heredis manumissus fuerit, non tenetur heres. si vero heredis servus legatus fuerit et ipse eum manumiserit, teneri eum Iulianus scripsit, nec interest, scierit an ignoraverit, a se legatum esse.
If the thing bequeathed has perished without the act of the heir, it falls away from the legatee. And if a slave belonging to another, having been bequeathed, is manumitted without the act of the heir, the heir is not held liable. But if the heir’s slave has been bequeathed and he himself manumits him, Julian wrote that he is held liable, nor does it matter whether he knew or was ignorant that it had been bequeathed by himself.
Si quis ancillas cum suis natis legaverit, etiamsi ancillae mortuae fuerint, partus legato cedunt. idem est, si ordinarii servi cum vicariis legati fuerint, ut, licet mortui sint ordinarii, tamen vicarii legato cedant. sed si servus cum peculio fuerit legatus, mortuo servo vel manumisso vel alienato, et peculii legatum extinguitur.
If anyone has bequeathed maidservants together with their offspring, even if the maidservants have died, the offspring accrue to the legacy. The same holds if principal slaves have been bequeathed together with their vicarii, so that, although the principals are dead, nevertheless the vicarii accrue to the legacy. But if a slave has been bequeathed with his peculium, when the slave has died or has been manumitted or alienated, the legacy of the peculium is extinguished as well.
the same holds if an estate equipped or with its equipment has been bequeathed: for upon the estate being alienated the legacy of the equipment is extinguished. If a flock has been bequeathed and afterwards has come down to a single sheep, what remains can be claimed. Moreover, with a flock bequeathed, Julian says that even those sheep which, after the testament has been made, are added to the flock fall to the legacy: for a flock is one body from separate heads, just as a building is one body from cohering stones: finally, with a building bequeathed, the columns and marbles which, after the testament has been made, have been added fall to the legacy.
If a peculium has been bequeathed, there is no doubt that whatever is added to or subtracted from the peculium while the testator is alive is to the legatee’s profit or loss. But if, after the testator’s death and before the inheritance has been entered, the slave acquires something, Julian says that, if the peculium was bequeathed to the slave himself upon his manumission, everything acquired before the inheritance is entered passes to the legatee, because the day of this legacy “falls due” from the entering of the inheritance; but if the peculium was bequeathed to an outsider, those acquisitions do not pass under the legacy, unless they were an increase arising from the peculiar assets. Moreover, unless the peculium has been bequeathed, it is not owed to a manumitted slave—although, if he manumits him while alive, it suffices that it is not taken away; and thus the deified Severus and Antoninus replied by rescript.
the same men rescripted that, when a peculium has been bequeathed, it is not to be regarded as left in such a way that he should have a petition for the money which he expended into the master’s accounts. the same men rescripted that a peculium is to be regarded as bequeathed when, the accounts having been rendered, he has been ordered to be free and to pay in from it the balances due.
Tam autem corporales res quam incorporales legari possunt. et ideo quod defuncto debetur potest alicui legari, ut actiones suas heres legatario praestet, nisi exegerit vivus testator pecuniam: nam hoc casu legatum extinguitur. sed et tale legatum valet: DAMNAS ESTO HERES DOMUM ILLIUS REFICERE vel ILLUM AERE ALIENO LIBERARE.
But both corporeal things and incorporeal things can be bequeathed; and therefore what is owed to the deceased can be left to someone, so that the heir furnish his actions (rights of action) to the legatee, unless the testator, while alive, has collected the money: for in this case the legacy is extinguished. But even such a legacy is valid: LET THE HEIR BE OBLIGATED TO REPAIR THAT MAN’S HOUSE or TO FREE HIM FROM DEBT.
Si generaliter servus vel alia res legetur, electio legatarii est, nisi aliud testator dixerit. Optionis legatum, id est ubi testator ex servis suis vel aliis rebus optare legatarium iusserat, habebat in se condicionem, et ideo nisi ipse legatarius vivus optaverat, ad heredem legatum non transmittebat. sed ex constitutione nostra et hoc in meliorem statum reformatum est et data est licentia et heredi legatarii optare licet vivus legatarius hoc non fecit.
If a slave or another thing is bequeathed in general terms, the selection is the legatee’s, unless the testator has said otherwise. A legacy of option, that is, where the testator had ordered the legatee to choose from among his slaves or other things, contained a condition in itself, and therefore unless the legatee himself had chosen while alive, the legacy did not transmit to his heir. But by our constitution this too has been reformed into a better state, and license has been given even to the heir of the legatee to make the choice, although the legatee did not do this while alive.
and, a more diligent tractation having been undertaken, this too has been added in our constitution: that, whether there are several legatees to whom an option has been left and they disagree in choosing the corpus, or one legatee’s several heirs who among themselves disagree about opting, one wishing to choose one corpus, another a different one, lest the legacy perish (which a great many of the jurists were introducing contrary to benevolence), Fortune is to be the judge of this option and this is to be decided by lot, so that, to whom the lot comes, that person’s sentence in the option shall prevail.
Legari autem illis solis potest, cum quibus testamenti factio est. Incertis vero personis neque legata neque fideicommissa olim relinqui concessum erat: nam nec miles quidem incertae personae poterat relinquere, ut divus Hadrianus rescripsit. incerta autem persona videbatur quam incerta opinione animo suo testator subiciebat, veluti si quis ita dicat: QUICUMQUE FILIO MEO IN MATRIMONIUM FILIAM SUAM COLLOCAVERIT, EI HERES MEUS ILLUM FUNDUM DATO: illud quoque, quod his relinquebatur qui post testamentum scriptum primi consules designati erunt aeque incertae personae legari videbatur: et denique multae aliae huiusmodi species sunt.
But a legacy can be bequeathed only to those with whom testamentary capacity (testamenti factio) exists. To uncertain persons, however, neither legacies nor fideicommissa were formerly permitted to be left: for not even a soldier could leave to an uncertain person, as the deified Hadrian issued a rescript. An uncertain person was considered to be one whom the testator subjected to his intention under an uncertain supposition, for example if someone should say thus: WHOEVER SHALL PLACE HIS DAUGHTER IN MARRIAGE WITH MY SON, TO HIM LET MY HEIR GIVE THAT FARM: that provision too, which was left to those who after the testament has been written will be the first consuls-designate, was likewise regarded as being legated to uncertain persons: and finally there are many other species of this kind.
Liberty also did not seem able to be given to an uncertain person, because it was approved that slaves be freed by name. A definite guardian too had to be given. But under a definite designation, that is, from definite persons, a bequest was rightly left to an uncertain person, as, FROM MY COGNATES, WHO NOW ARE, IF ANYONE SHALL HAVE TAKEN MY DAUGHTER AS WIFE, TO HIM LET MY HEIR GIVE THAT THING.
But that legacies or fideicommissa left to uncertain persons and paid out through error could not be recovered had been provided by the sacred constitutions. A legacy was also ineffectually bequeathed to an alien posthumous: now an alien posthumous is one who, when born, will not be about to be among the testator’s sui heirs; and therefore a grandson conceived from an emancipated son was an extraneous posthumous to his grandfather. Yet this kind of case too has not been entirely left without a just emendation, since in our Code a constitution has been set down, by which we have administered a remedy to this part not only in inheritances, but also in legacies and fideicommissa—which clearly becomes evident from the reading of that very constitution.
however, not even by our constitution ought a tutor to be appointed as uncertain, because by a certain judgment one ought to provide surety for the tutelage of his posterity. but an alien posthumous (child) both formerly could be instituted heir and now can, unless he is in the womb of a woman who by our law cannot be our wife.
Si quis in nomine, cognomine, praenomine legatarii erraverit testator, si de persona constat, nihilo minus valet legatum. idem in heredibus servatur: et recte; nomina enim significandorum hominum gratia reperta sunt, qui si quolibet alio modo intellegantur, nihil interest. Huic proxima est illa iuris regula, falsa demonstratione legatum non peremi, veluti si quis ita legaverit STICHUM SERVUM MEUM VERNAM DO LEGO: licet enim non verna sed emptus sit, de servo tamen constat, utile est legatum.
If the testator has erred in the name, cognomen, or praenomen of the legatee, if the person is clear, the legacy is nonetheless valid. The same is observed in the case of heirs—and rightly: for names were devised for the sake of signifying persons; and if they are understood in any other way, it makes no difference. Closely allied is that rule of law, that by a false description the bequest is not destroyed, as when someone has thus bequeathed: I GIVE AND BEQUEATH STICHUS, MY HOMEBORN SLAVE. Although he is not homeborn but purchased, nevertheless, since it is evident which slave is meant, the legacy is effective.
and accordingly, if he has thus designated STICHUM SERVUM, QUEM A SEIO EMI, and he was bought from another, the legacy is useful, if it is clear which slave is meant. Far more, a false cause does not harm a legacy. For example, when someone has said thus: TITIO, QUIA ABSENTE ME NEGOTIA MEA CURAVIT, STICHUM DO LEGO, or thus: TITIO, QUIA PATROCINIO EIUS CAPITALI CRIMINE LIBERATUS SUM, STICHUM DO LEGO: for although Titius never managed the testator’s affairs nor was he freed by his patronage, nevertheless the legacy is valid.
An servo heredis recte legamus, quaeritur. et constat, pure inutiliter legari, nec quidquam proficere si vivo testatore de potestate heredis exierit, quia quod inutile foret legatum, si statim post factum testamentum decessisset testator, hoc non debet ideo valere, quia diutius testator vixerit. sub condicione vero recte legatur, ut requiramus, an, quo tempore dies legati cedit, in potestate heredis non sit.
Whether we may rightly bequeath to the heir’s slave is the question. And it is settled that an unconditional legacy is ineffectual, nor does it profit anything if, while the testator is alive, he has passed out of the heir’s power; for a legacy which would have been ineffectual if the testator had died immediately after making the testament ought not on that account to be valid because the testator has lived longer. But under a condition it is rightly bequeathed, so that we inquire whether, at the time when the day of the legacy accrues, he is not in the heir’s power.
Conversely, with a slave instituted as heir, there is no doubt that the legacy will be bequeathed to his direct owner even without a condition. For even if the testator should die immediately after the will has been made, nevertheless the day of the legacy is not understood to accrue to the one who is heir, since the inheritance is separate from the legacy, and it can come about through that slave that another becomes heir, if, before he enters upon it by his master’s order, he has been transferred into another’s power, or, once manumitted, he himself becomes heir: in which cases the legacy is operative. But if he remains in the same condition and, by the legatee’s order, he enters upon it, the legacy vanishes.
Ante heredis institutionem inutiliter antea legabatur, scilicet quia testamenta vim ex institutione heredum accipiunt et ob id veluti caput atque fundamentum intellegitur totius testamenti heredis institutio. pari ratione nec libertas ante heredis institutionem dari poterat. sed quia incivile esse putavimus, ordinem quidem scripturae sequi (quod et ipsi antiquitati vituperandum fuerat visum), sperni autem testatoris voluntatem: per nostram constitutionem et hoc vitium emendavimus, ut liceat et ante heredis institutionem et inter medias heredum institutiones legatum relinquere et multo magis libertatem, cuius usus favorabilior est.
Before the institution of the heir, a legacy used formerly to be ineffectually bequeathed, namely because testaments take their force from the institution of heirs, and for that reason the institution of the heir is understood as the head and foundation of the whole testament. By equal reasoning, liberty could not be given before the institution of the heir. But because we thought it uncivil to follow the order of the writing (which had seemed blameworthy even to antiquity itself), yet to scorn the will of the testator: by our constitution we have also corrected this fault, so that it is permitted both before the institution of the heir and in the midst of the institutions of heirs to leave a legacy, and much more to grant liberty, whose use is more favored.
Post mortem quoque heredis aut legatarii simili modo inutiliter legabatur: veluti si quis ita dicat: CUM HERES MEUS MORTUUS ERIT, DO LEGO: item PRIDIE QUAM HERES AUT LEGATARIUS MORIETUR. Sed simili modo et hoc correximus, firmitatem huiusmodi legatis ad fideicommissorum similitudinem praestantes, ne vel in hoc casu deterior causa legatorum quam fideicommissorum inveniatur.
After the death of the heir or of the legatee, likewise, it was formerly ineffectually bequeathed: for example, if someone should say thus: WHEN MY HEIR HAS DIED, I GIVE AND I BEQUEATH: likewise, THE DAY BEFORE THE HEIR OR THE LEGATEE WILL DIE. But in a similar way we have corrected this too, affording firmness to legacies of this kind in similarity to fideicommissa, lest even in this case the condition of legacies be found worse than that of fideicommissa.
Poenae quoque nomine inutiliter legabatur et adimebatur vel transferebatur. poenae autem nomine legari videtur quod coercendi heredis causa relinquitur, quo magis is aliquid faciat aut non faciat: veluti si quis ita scripserit: HERES MEUS SI FILIAM SUAM IN MATRIMONIUM TITIO COLLOCAVERIT (vel ex diverso SI NON COLLOCAVERIT), DATO DECEM AUREOS SEIO, aut si ita scripserit: HERES MEUS SI SERVUM STICHUM ALIENAVERIT (vel ex diverso SI NON ALIENAVERIT), TITIO DECEM AUREOS DATO. et in tantum haec regula observabatur, ut perquam pluribus principalibus constitutionibus significetur nec principem quidem agnoscere quod ei poenae nomine legatum sit.
Also under the name of a penalty it was ineffectually bequeathed, and taken away or transferred. By the name of a penalty there is understood to be bequeathed that which is left for the purpose of coercing the heir, in order that he all the more do something or not do it: for example, if someone should write thus: MY HEIR, IF HE SHALL HAVE PLACED HIS DAUGHTER IN MARRIAGE WITH TITIUS (or conversely IF HE SHALL NOT HAVE PLACED HER), GIVE TEN AUREI TO SEIUS; or if he should write thus: MY HEIR, IF HE SHALL HAVE ALIENATED THE SLAVE STICHUS (or conversely IF HE SHALL NOT HAVE ALIENATED HIM), GIVE TEN AUREI TO TITIUS. And this rule was observed to such an extent that by very many imperial constitutions it is signified that not even the emperor acknowledges what has been bequeathed to him under the name of a penalty.
nor even from a soldier’s testament were such legacies valid, although otherwise soldiers’ wishes in ordering testaments are greatly observed. Moreover, it was held that liberty could not be given under the name of a penalty. Further, Sabinus thought that an heir could not be added under the name of a penalty, for example, if someone should say thus: LET TITIUS BE HEIR: IF TITIUS SHALL PLACE HIS DAUGHTER IN MARRIAGE TO SEIUS, LET SEIUS ALSO BE HEIR: for it made no difference by what method Titius was coerced, whether by the granting of a legacy or by the addition of a coheir.
but such scrupulosity has not pleased us, and generally we have established that those things which are bequeathed, although they may have been left under the name of a penalty or taken away or transferred to others, differ in nothing from the other legacies in giving, in ademption, or in transfer: except, namely, those which are impossible or interdicted by the laws or otherwise opprobrious: for the practice of my times does not permit dispositions of testators of this kind to be valid.
Ademptio legatorum, sive eodem testamento adimantur sive codicillis, firma est, sive contrariis verbis fiat ademptio, veluti si quod ita quis legaverit DO LEGO ita adimatur NON DO NON LEGO, sive non contrariis, id est aliis quibuscumque verbis. Transferri quoque legatum ab alio ad alium potest, veluti si quis ita dixerit: HOMINEM STICHUM, QUEM TITIO LEGAVI, SEIO DO LEGO, sive in eodem testamento sive in codicillis hoc fecerit: quo casu simul Titio adimi videtur et Seio dari.
The ademption of legacies, whether they are taken away in the same testament or by codicils, is firm, whether the ademption is made by contrary words—such as if what someone has bequeathed thus, I GIVE I BEQUEATH, is thus taken away, I DO NOT GIVE I DO NOT BEQUEATH—or not by contrary words, that is, by any other words whatsoever. A legacy can also be transferred from one person to another, as if someone were to say thus: THE SLAVE STICHUS, WHOM I BEQUEATHED TO TITIUS, TO SEIUS I GIVE I BEQUEATH, whether he has done this in the same testament or in codicils: in which case it is seen at once to be taken away from Titius and given to Seius.
Superest ut de lego Falcidia dispiciamus, qua modus novissime legatis impositus est. cum enim olim lege duodecim tabularum libera erat legandi potestas, ut liceret vel totum patrimonium legatis erogare (quippe ea lege ita cautum esset: "uti legassit suae rei, ita ius esto"): visum est hanc legandi licentiam coartare, idque ipsorum testatorum gratia provisum est, ob id quod plerumque intestati moriebantur, recusantibus scriptis heredibus pro nullo aut minimo lucro hereditates adire. et cum super hoc tam lex Furia quam lex Voconia latae sunt, quarum neutra sufficiens ad rei consummationem videbatur: novissime lata est lex Falcidia, qua cavetur, ne plus legare liceat quam dodrantem totorum bonorum, id est ut, sive unus heres institutus esset sive plures, apud eum eosve pars quarta remaneret.
It remains for us to consider the Lex Falcidia, by which a limit was most recently imposed upon legacies. For since by the Law of the Twelve Tables the power of making legacies was free, so that it was permitted to distribute even the whole patrimony by legacies (indeed by that law it was thus provided: "as he shall have legated concerning his own property, so let it be law"), it seemed good to curtail this license of legating—and this was provided for the sake of the testators themselves—because very often men died intestate, the instituted heirs refusing to enter upon inheritances for no gain or the merest trifle. And although on this matter both the Lex Furia and the Lex Voconia were enacted, neither seemed sufficient for the completion of the business: most recently the Lex Falcidia was passed, which provides that it is not permitted to bequeath more than three-quarters of the entire goods, that is, whether one heir was instituted or several, a one-fourth part should remain with him or them.
Et cum quaesitum esset, duobus heredibus institutis, veluti Titio et Seio, si Titii pars aut tota exhausta sit legatis quae nominatim ab eo data sunt, aut supra modum onerata, a Seio vero aut nulla relicta sint legata, aut quae partem eius dumtaxat in partem dimidiam minuunt, an, quia is quartam partem totius hereditatis aut amplius habet, Titio nihil ex legatis quae ab eo relicta sunt retinere liceret: placuit, ut quartam partem suae partis salvam habeat, posse retinere: etenim in singulis heredibus ratio legis Falcidiae ponenda est. Quantitas autem patrimonii, ad quam ratio legis Falcidiae redigitur, mortis tempore spectatur. itaque si verbi gratia is qui centum aureorum patrimonium habebat centum aureos legaveri, nihil legatariis prodest, si ante aditam hereditatem, per servos hereditarios aut ex partu ancillarum hereditariarum aut ex fetu pecorum, tantum accesserit hereditati ut, centum aureis legatorum nomine erogatis, heres quartam partem hereditatis habiturus sit, sed necesse est ut nihilo minus quarta pars legatis detrahatur.
And when it was asked, with two heirs instituted, for example Titius and Seius, if Titius’s share has either been wholly exhausted by legacies which were specified by name to be charged upon him, or burdened beyond the measure, while from Seius either no legacies have been left, or such as reduce his share only to one half—whether, because he has a fourth part of the whole inheritance or more, it would be permitted that Titius retain nothing from the legacies which have been left upon him: it was decided that he can retain so as to have safe the fourth part of his own share; for the computation of the Lex Falcidia is to be applied to each individual heir. But the quantity of the patrimony, to which the computation of the Lex Falcidia is referred, is regarded at the time of death. Accordingly, for example, if a man who had a patrimony of one hundred aurei has bequeathed one hundred aurei, it profits the legatees nothing if, before the inheritance is entered upon, there has accrued to the inheritance—through hereditary slaves, or from the bearing of hereditary maidservants, or from the offspring of the herds—so much that, with one hundred aurei disbursed in the name of legacies, the heir would be going to have a fourth part of the inheritance; but it is necessary that nonetheless a fourth part be deducted from the legacies.
Conversely, if he has bequeathed seventy-five and, before the inheritance is entered upon, the goods have decreased to such an extent—by fires, say, or shipwrecks, or the death of slaves—that no more than a substance of seventy-five gold pieces, or even less, is left, the legacies are owed in full. Nor is this circumstance damaging to the heir, to whom it is free not to enter upon the inheritance; which fact brings it about that it is necessary for the legatees, lest with the testament abandoned they obtain nothing, to make terms with the heir for a portion. But when the computation of the Falcidian law is set, first the alien debt is deducted, likewise the funeral expense and the prices of slaves manumitted; then thereafter, as to what remains, the reckoning is thus: that of it a fourth part remains with the heirs, while three parts are distributed among the legatees, namely in proportion to the share of that which has been bequeathed to each of them.
Therefore, if we suppose four hundred aurei to have been left as legacies, and the quantity of the patrimony, from which the legacies ought to be disbursed, to be four hundred, a fourth part must be deducted from each legacy to the legatees. But if we suppose three hundred and fifty to have been left in legacies, an eighth must be deducted. But if he has bequeathed five hundred, at the outset a fifth, then a fourth must be deducted: for first that which is outside the quantity of the goods must be deducted, then that which ought to remain from the goods with the heir.
Sciendum itaque est, omnia fideicommissa primis temporibus infirma esse quia nemo invitus cogebatur praestare id de quo rogatus erat: quibus enim non poterant hereditates vel legata relinquere, si relinquebant, fidei committebant eorum qui capere ex testamento poterant: et ideo fideicommissa appellata sunt, quia nullo vinculo iuris, sed tantum pudore eorum qui rogabantur, continebantur. postea primus divus Augustus semel iterumque gratia personarum motus, vel quia per ipsius salutem rogatus quis diceretur, aut ob insignem quorundam perfidiam iussit consulibus auctoritatem suam interponere. quod, quia iustum videbatur et populare erat, paulatim conversum est in adsiduam iurisdictionem: tantusque favor eorum factus est, ut paulatim etiam praetor proprius crearetur, qui fideicommissis ius diceret, quem fideicommissarium appellabant.
Accordingly it must be known that all fideicommissa in the earliest times were infirm, because no one unwilling was compelled to render that which he had been asked for: for to those to whom they could not leave inheritances or legacies, if they did leave them, they would commit them to the faith of those who could take under a testament: and therefore they were called fideicommissa, because they were contained by no bond of law, but only by the sense of honor of those who were asked. afterwards the deified Augustus first, once and again, moved by favor toward persons, either because someone was said to have been asked by his very safety, or on account of the remarkable perfidy of certain men, ordered the consuls to interpose his authority. which, because it seemed just and was popular, gradually was converted into a continual jurisdiction: and so great a favor for them arose that gradually even a special praetor was created, to pronounce law concerning fideicommissa, whom they called the fideicommissary.
Inprimis igitur sciendum est, opus esse ut aliquis recto iure testamento heres instituatur, eiusque fidei committatur ut eam hereditatem alii restituat: alioquin inutile est testamentum in quo nemo heres instituitur. cum igitur aliquis scripserit: LUCIUS TITIUS HERES ESTO, poterit adicere: ROGO TE, LUCI TITI, UT, CUM PRIMUM POSSIS HEREDITATEM MEAM ADIRE, EAM GAIO SEIO REDDAS, RESTITUAS. potest autem quisque et de parte restituenda heredem rogare: et liberum est vel pure vel sub condicione relinquere fideicommissum vel ex die certo.
In the first place, therefore, it must be known that it is necessary that someone be instituted heir by a testament according to proper law, and that it be committed to his good faith to restore that inheritance to another: otherwise a testament in which no one is instituted heir is useless. Therefore, when someone has written: LUCIUS TITIUS, BE HEIR, he will be able to add: I ASK YOU, LUCI TITI, THAT, AS SOON AS YOU CAN ENTER UPON MY INHERITANCE, YOU GIVE IT BACK, RESTORE IT, TO GAIO SEIO. Moreover, anyone can also ask the heir for a part to be restored: and it is free to leave a fideicommissum either purely or under condition, or to take effect from a fixed day.
Restituta autem hereditate is quidem qui restituit nihilo minus heres permanet: is vero qui recipit hereditatem aliquando heredis aliquando legatarii loco habebatur. Et in Neronis quidem temporibus Trebellio Maximo et Annaeo Seneca consulibus senatusconsultum factum est. quo cautum est ut, si cui hereditas ex fideicommissi causa restituta sit, omnes actiones quae iure civili heredi et in heredem competerent, ei et in eum darentur cui ex fideicommisso restituta esset hereditas.
However, the inheritance having been restituted, he who restituted it nonetheless remains heir: but he who receives the inheritance was held sometimes in the place of an heir, sometimes in the place of a legatee. And indeed in the times of Nero, with Trebellius Maximus and Annaeus Seneca as consuls, a senatus-consult was enacted, by which it was provided that, if to anyone the inheritance had been restituted by reason of a fideicommissum, all actions which by civil law would belong to the heir and lie against the heir should be given to and against the person to whom the inheritance had been restituted from the fideicommissum.
Sed quia heredes scripti, cum aut totam hereditatem aut paene totam plerumque restituere rogabantur, adire hereditatem ob nullum vel minimum lucrum recusaban, atque ob id extinguebantur fideicommissa; postea Vespasiani Augusti temporibus Pegaso et Pusione consulibus senatus censuit, ut ei qui rogatus esset hereditatem restituere perinde liceret quartam partem retinere, atque lege Falcidia ex legatis retinere conceditur. ex singulis quoque rebus quae per fideicommissum relinquuntur eadem retentio permissa est. post quod senatusconsultum ipse heres onera hereditaria sustinebat: ille autem qui ex fideicommisso recepit partem hereditatis legatarii partiarii loco erat, id est, eius legatarii cui pars bonorum legabatur.
But because the instituted heirs, when they were for the most part asked to restitute either the whole inheritance or almost the whole, refused to enter upon the inheritance on account of no gain or the very least, and on that account the fideicommissa were extinguished; afterwards, in the times of Vespasian Augustus, with Pegasus and Pusio as consuls, the senate decreed by senatus-consult that it should be likewise permitted to him who had been asked to restitute the inheritance to retain a fourth part, just as by the Lex Falcidia it is conceded to retain from legacies. From individual things also which are left by fideicommissum the same retention was permitted. After that senatus-consult the heir himself bore the hereditary burdens; but the one who by fideicommissum received a part of the inheritance was in the position of a partiary legatee, that is, of that legatee to whom a part of the goods was bequeathed.
this kind of legacy was called partition, because the legatee was partitioning the inheritance with the heir. whence the stipulations which used to be interposed between the heir and the partiary legatee were the same as those interposed between the one who received the inheritance from a fideicommissum and the heir, that is, that both profit and loss of the inheritance should be common between them in a pro rata share. therefore, if indeed the instituted heir was asked to restore not more than three-quarters of the inheritance, then by the Trebellian senatus-consult the inheritance was restored and hereditary actions were given against each for a pro rata share: against the heir by civil law, and against the one who was receiving the inheritance, by the Trebellian senatus-consult, as though against an heir.
but if he has been asked to restore more than three-quarters, or even the whole inheritance, there was room for the Pegasian senatorial decree, and the heir who once has entered upon the inheritance—provided only that he has entered of his own will—whether he has retained the fourth part or has not wished to retain it, himself bore all the universal hereditary burdens. But, the fourth having indeed been retained, stipulations “of a share and for a share” were interposed, as between a partiary legatee and the heir; but if he has restored the whole inheritance, stipulations of a purchased and sold inheritance were interposed. But if the instituted heir refuses to enter upon the inheritance on the ground that he says it is to him suspect as if ruinous, it is provided by the Pegasian senatorial decree that, if the person to whom he was asked to restore so desires, by order of the Praetor he shall enter and restore the inheritance, and actions be given to him and against him who receives the inheritance, just as the law is from the Trebellian senatorial decree: in which case there is need of no stipulations, because at once both security is given to him who restores, and the hereditary actions are transferred to and against him who receives the inheritance, with both senatorial decrees concurring in this kind.
Sed quia stipulationes ex senatusconsulto Pegasiano descendentes et ipsi antiquitati displicuerunt et quibusdam casibus captiosas eas homo excelsi ingenii Papinianus appellat et nobis in legibus magis simplicitas quam difficultas placet, ideo omnibus nobis suggestis tam similitudinibus quam differentiis utriusque senatusconsulti, placuit exploso senatusconsulto Pegasiano, quod postea supervenit, omnem auctoritatem Trebelliano senatusconsulto praestare, ut ex eo fideicommissariae hereditates restituantur, sive habeat heres ex voluntate testatoris quartam sive plus sive minus sive penitus nihil, ut tunc, quando vel nihil vel minus quarta apud eum remaneat, liceat ei vel quartam vel quod deest, ex nostra auctoritate retinere vel repetere solutum, quasi ex Trebelliano senatusconsulto pro rata portione actionibus tam in heredem quam in fideicommissarium competentibus, si vero totam hereditatem sponte restituerit, omnes hereditariae actiones fideicommissario et adversus eum competunt; sed etiam id quod praecipuum Pegasiani senatusconsulti fuerat, ut, quando recusabat heres scriptus sibi datam hereditatem adire, necessitas ei imponeretur totam hereditatem volenti fideicommissario restituere, et omnes ad eum et contra eum transirent actiones, et hoc transposuimus ad senatusconsultum Trebellianum, ut ex hoc solo et necessitas heredi imponatur, si ipso nolente adire fideicommissarius desiderat restitui sibi hereditatem, nullo nec damno nec commodo apud heredem manente. Nihil autem interest, utrum aliquis ex asse heres institutus aut totam hereditatem aut pro parte restituere regatur, an ex parte heres institutus aut totam partem aut partis partem restituere rogatur: nam et hoc casu eadem observari praecepimus, quae in totius hereditatis restitutione diximus. Si quis una aliqua re deducta sive praecepta quae quartam continet, veluti fundo vel alia re, rogatus sit restituere hereditatem, simili modo ex Trebelliano senatusconsulto restitutio fiat, perinde ac si quarta parte retenta rogatus esset reliquam hereditatem restituere.
But because the stipulations descending from the Pegasian senatus-consult displeased antiquity as well, and in certain cases a man of exalted genius, Papinian, calls them captious, and because simplicity rather than difficulty pleases us in the laws, therefore, all the similarities and differences of each senatus-consult having been laid before us, it has pleased us, with the Pegasian senatus-consult—which supervened later—cast out, to afford all authority to the Trebellian senatus-consult, so that under it fideicommissary inheritances are to be restored, whether the heir has from the will of the testator a fourth, or more, or less, or absolutely nothing; so that then, when nothing or less than a fourth remains with him, it is permitted to him, by our authority, either to retain the fourth or what is lacking, or to reclaim what has been paid, as if under the Trebellian senatus-consult actions competent pro rata portion both against the heir and against the fideicommissary; but if he has voluntarily restored the whole inheritance, all hereditary actions are competent to the fideicommissary and against him. And even that which had been the distinctive feature of the Pegasian senatus-consult—namely, that when the instituted heir refused to enter upon the inheritance given to him, a necessity was imposed upon him to restore the whole inheritance to the willing fideicommissary, and that all actions should pass to him and against him—we have also transposed to the Trebellian senatus-consult, so that from this alone likewise a necessity is imposed on the heir, if, he himself being unwilling to enter, the fideicommissary desires the inheritance to be restored to himself, with neither loss nor gain remaining with the heir. Moreover, it makes no difference whether someone instituted heir for the whole share is asked to restore the whole inheritance or a part of it, or an heir instituted for a part is asked to restore the whole of that part or a part of the part: for in this case too we have ordered the same to be observed which we have said for the restoration of the whole inheritance. If someone, with a single thing deducted or taken in advance that contains a fourth—such as a farm or another thing—has been asked to restore the inheritance, in like manner let the restoration be made under the Trebellian senatus-consult, just as if, a fourth having been retained, he had been asked to restore the remaining inheritance.
but this makes a difference: that, in the one case—namely, when the inheritance is restored with some thing deducted or pre-taken—by virtue of that senatus-consult the actions are transferred in solidum, and the thing which remains with the heir stays with him without any hereditary burden, as if acquired by him from a legacy; whereas in the other case—namely, when, the fourth part having been retained, the heir is asked to restore the inheritance and does restore it—the actions are split, and for the three-quarters (dodrans) they are transferred to the fideicommissary, for the quarter (quadrans) they remain with the heir. Moreover, even if in the one thing, with which deducted or pre-taken someone is asked to restore the inheritance, the greatest part of the inheritance is contained, still the actions are transferred in solidum, and the person to whom the inheritance is restored ought to deliberate with himself whether it is expedient for it to be restored to him. The same, of course, intervenes also if, with two or several things deducted or pre-taken, he is asked to restore the inheritance.
but also, if a fixed sum, deducted or pre-taken, which comprises a quarter or even the greater part of the estate, someone is asked to restore the inheritance, the same rule of law applies. What we have said about one who has been instituted heir for the whole, we likewise transfer to one who has been appointed heir for a part.
Praeterea intestatus quoque moriturus potest rogare eum ad quem bona sua vel legitimo iure vel honorario pertinere intellegit, ut hereditatem suam totam partemve eius aut rem aliquam, veluti fundum, hominem, pecuniam, alicui restituat: cum alioquin legata nisi ex testamento non valeant. Eum quoque cui aliquid restituitur potest rogare ut id rursus alii totum aut partem vel etiam aliud aliquid restituat. Et quia prima fideicommissorum cunabula a fide heredum pendent et tam nomen quam substantiam acceperunt, et ideo divus Augustus ad necessitatem iuris ea detraxit: nuper et nos, eundem principem superare contendentes, ex facto quod Tribonianus vir excelsus quaestor sacri palatii suggessit, constitutionem fecimus, per quam disposuimus: si testator fidei heredis sui commisit, ut vel hereditatem vel speciale fideicommissum restituat et neque ex scriptura neque ex quinque testium numero, qui in fideicommissis legitimus esse noscitur, res possit manifestari, sed vel pauciores quam quinque vel nemo penitus testis intervenerit, tunc sive pater heredis sive alius quicumque sit, qui fidem elegit heredis et ab eo aliquid restitui voluerit, si heres perfidia tentus adimplere fidem recusat, negando rem ita esse subsecutam, si fideicommissarius iusiurandum ei detulerit, cum prius ipse de calumnia iuraverit, necesse eum habere vel iusiurandum subire, quod nihil tale a testatore audivit, vel recusantem ad fideicommissi vel universitatis vel specialis solutionem coartari, ne depereat ultima voluntas testatoris fidei heredis commissa.
Moreover, one who is about to die intestate can also ask the person to whom he understands his goods will pertain either by legitimate (civil) law or by honorary (praetorian) law, that he restore his inheritance, either the whole or a part of it, or some particular thing—say, a farm, a slave, money—to someone; although otherwise legacies are not valid except from a testament. He can also ask the one to whom something is restored to restore that in turn to another, either whole or in part, or even to restore something else. And because the first cradles of fideicommissa depend upon the good faith of heirs and received from that both their name and their substance, the deified Augustus therefore drew them under the necessity of law: recently we too, striving to surpass that same princeps, on the basis of a report which Tribonian, an exalted man, quaestor of the sacred palace, suggested, made a constitution, through which we arranged as follows: if the testator entrusted to the faith of his heir that he restore either the inheritance or a special fideicommissum, and the matter cannot be made manifest either from a writing or from the number of five witnesses, which is known to be the lawful number in fideicommissa, but either fewer than five or no witness at all appeared, then whether it be the father of the heir or any other whosoever, who chose the faith of the heir and wished that something be restored by him, if the heir, seized by perfidy, refuses to fulfill the trust, denying that the matter so occurred, then—if the fideicommissary has tendered an oath to him, after he himself has first sworn the oath against calumny—he must either undergo the oath that he heard nothing of the sort from the testator, or, if he refuses, be constrained to the payment of the fideicommissum, whether of the universality or of a special item, lest the last will of the testator, committed to the faith of the heir, perish.
we have judged that the same be observed also if something has likewise been left by a legatee or by a fideicommissary. But if the one by whom it is said to have been left does indeed confess that something has been left by him, yet flees to the subtlety of the law, he is in every way to be compelled to pay.
Potest autem quis etiam singulas res per fideicommissum relinquere, veluti fundum, hominem, vestem, argentum, pecuniam numeratam, et vel ipsum heredem rogare ut alicui restituat, vel legatarium quamvis a legatario legari non possit. Potest autem non solum proprias testator res per fideicommissum relinquere, sed et heredis aut legatarii aut fideicommissarii aut cuiuslibet alterius. itaque et legatarius et fideicommissarius non solum de ea re rogari potest, ut eam alicui restituat, quae ei relicta sit, sed etiam de alia, sive ipsius sive aliena sit.
Moreover, one can also leave individual things by fideicommissum, for example a farm/estate, a slave, a garment, silver, ready cash, and one can either ask the heir himself to restore it to someone, or the legatee—although a legacy cannot be bequeathed by a legatee. And it is possible not only for the testator to leave his own things by fideicommissum, but also those of the heir, or of a legatee, or of a fideicommissary, or of any other person. Accordingly, both a legatee and a fideicommissary can be asked not only with respect to the thing that has been left to him, to restore it to someone, but also with respect to another thing, whether it be his own or someone else’s.
this alone is to be observed: that no one be asked to restitute to someone more than he himself has taken under the testament; for whatever is in excess is ineffectually left. But when a thing belonging to another is left by fideicommissum, it is necessary for the one who is requested either to redeem the thing itself and deliver it, or to pay its valuation. Liberty also can be given to a slave by fideicommissum, such that the heir is asked to manumit him, or the legatee, or the fideicommissary.
nor does it matter whether the testator asks concerning his own slave, or one who belongs to his heir or to a legatee, or even to an outsider. therefore another’s slave ought to be bought (redeemed) and manumitted; but if the owner will not sell him, so long as he has received nothing by way of a judgment at the suit of the one who left the freedom, the fideicommissary freedom is not immediately extinguished, but is deferred, because as time proceeds, whenever an occasion for redeeming the slave arises, the freedom can be provided. moreover, the one who is manumitted on the ground of a fideicommissum does not become the testator’s freedman, even if he is the testator’s slave, but the freedman of the one who manumits; whereas he who is ordered to be free by a direct testamentary disposition becomes the testator’s own freedman, who is also called “orcine.”
nor can any other have liberty directly out of the testament except one who was the testator’s at both times—both when he made the testament and when he died. But liberty is then deemed to be given directly, when he does not ask that the slave be manumitted by another, but wishes, as it were, that liberty belong to him from his own testament.
Ante Augusti tempora constat ius codicillorum non fuisse, sed primus Lucius Lentulus, ex cuius persona etiam fideicommissa coeperunt, codicillos introduxit. nam cum decederet in Africa scripsit codicillos testamento confirmatos, quibus ab Augusto petiit per fideicommissum ut faceret aliquid: et cum divus Augustus voluntatem eius implesset, cuius deinceps reliqui auctoritatem secuti, fideicommissa praestabant, et filia Lentuli legata quae iure non debebat solvit, dicitur Augustus convocasse prudentes, inter quos Trebatium quoque, cuius tunc auctoritas maxima erat, et quaesisse, an possit hoc recipi nec absonans a iuris ratione codicillorum usus esset: et Trebatium suasisse Augusto, quod diceret, utilissimum et necessarium hoc civibus esse propter magnas et longas peregrinationes, quae apud veteres fuissent, ubi, si quis testamentum facere non posset, tamen codicillos posset. post quae tempora cum et Labeo codicillos fecisset, iam nemini dubium erat quin codicilli iure optimo admitterentur.
Before the times of Augustus it is agreed that the law of codicils did not exist, but Lucius Lentulus was the first to introduce codicils, from whose person also fideicommissa began. For when he was dying in Africa, he wrote codicils confirmed by a testament, by which he asked from Augustus through a fideicommissum that he do something: and since the deified Augustus fulfilled his will, whose authority the rest thereafter followed, they rendered fideicommissa, and the daughter of Lentulus paid legacies which by law she did not owe, Augustus is said to have convoked the jurists, among whom also Trebatius, whose authority was then greatest, and to have inquired whether this could be received and whether the use of codicils was not discordant with the reason of law: and that Trebatius advised Augustus, saying that this was most useful and necessary for citizens on account of the great and long peregrinations which had existed among the ancients, where, if someone could not make a testament, nevertheless he could make codicils. After which times, since Labeo also had made codicils, now it was doubtful to no one that codicils were admitted with the best right.
Non tantum autem testamento facto potest quis codicillos facere, sed et intestatus quis decedens fideicommittere codicillis potest. sed cum ante testamentum factum codicilli facti erant, Papinianus ait, non aliter vires habere quam si speciali postea voluntate confirmentur. sed divi Severus et Antoninus rescripserunt, ex his codicillis qui testamentum praecedunt posse fideicommissum peti, si appareat eum qui postea testamentum fecerat a voluntate quam codicillis expresserat non recessisse.
Not only, however, can someone make codicils after a testament has been made, but even one dying intestate can make a fideicommissum by codicils. But when codicils had been made before a testament was made, Papinian says that they have force only if they are afterward confirmed by a special intention. But the deified Severus and Antoninus issued a rescript that from those codicils which precede the testament a fideicommissum can be sought, if it appears that the one who later made the testament did not depart from the intention which he had expressed in the codicils.
But by codicils an inheritance can neither be given nor taken away, lest the law of wills and of codicils be confounded; and therefore disinheritance too cannot be written. Moreover, an inheritance cannot be given or taken away directly by codicils; for through a fideicommissum an inheritance is lawfully left by codicils. Nor can one by codicils add a condition to an instituted heir, nor directly substitute [a heir].