THE INSTITUTES OF JUSTINIAN

Translated into English by J. B. Moyle, D.C.L.
of Lincoln’s Inn, Barrister-at-Law,
Fellow and Late Tutor of New College, Oxford

Fifth Edition (1913)

BOOK II (Of Things)

TITLE XX
OF LEGACIES

Let us now examine legacies: -- a kind of title which seems foreign to the matter at hand, for we are expounding titles whereby aggregates of rights are acquired; but as we have treated in full of wills and heirs appointed by will, it was natural in close connexion therewith to consider this mode of acquisition.

1 Now a legacy is a kind of gift left by a person deceased; 2 and formerly they were of four kinds, namely, legacy by vindication, by condemnation, by permission, and by preception, to each of which a definite form of words was appropriated by which it was known, and which served to distinguish it from legacies of the other kinds. Solemn forms of words of this sort, however, have been altogether abolished by imperial constitutions; and we, desiring to give greater effect to the wishes of deceased persons, and to interpret their expressions with reference rather to those wishes than to their strict literal meaning, have issued a constitution, composed after great reflection, enacting that in future there shall be but one kind of legacy, and that, whatever be the terms in which the bequest is couched, the legatee may sue for it no less by real or hypothecary than by personal action. How carefully and wisely this constitution is worded may be ascertained by a perusal of its contents. 3 We have determined, however, to go even beyond this enactment; for, observing that the ancients subjected legacies to strict rules, while the rules which they applied to fiduciary bequests, as springing more directly from the deceased person’s wishes, were more liberal, we have deemed it necessary to assimilate the former completely to the latter, so that any future features in which legacies are inferior to fiduciary bequests may be supplied to them from the latter, and the latter themselves may in future possess any superiority which has hitherto been enjoyed by legacies only. In order, however, to avoid perplexing students in their first essays in the law by discussing these two forms of bequests together, we have thought it worth while to treat them separately, dealing first with legacies, and then with fiduciary bequests, so that the reader, having first learnt their respective natures in a separate treatment, may, when his legal education is more advanced, be able easily to comprehend their treatment in combination. 4 A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff. 5 If the thing which a testator bequests is in pledge to a creditor, the heir is obliged to redeem it, subject to the same distinction as has been drawn with reference to a legacy of a thing not belonging to the testator; that is to say, the heir is bound to redeem only if the deceased knew the thing to be in pledge: and the Emperors Severus and Antoninus have decided this by rescript. If, however, the deceased expresses his intention that the legatee should redeem the thing himself, the heir is under no obligation to do it for him. 6 If a legacy is given of a thing belonging to another person, and the legatee becomes its owner during the testator’s lifetime by purchase, he can obtain its value from the heir by action on the will: but if he gives no consideration for it, that is to say, gets it by way of gift or by some similar title, he cannot sue; for it is settled law that where a man has already got a thing, giving no consideration in return, he cannot get its value by a second title of the same kind. Accordingly, if a man is entitled to claim a thing under each of two distinct wills, it is material whether he gets the thing, or merely its value, under the earlier one: for if he gets the thing itself, he cannot sue under the second will, because he already has the thing without giving any consideration, whereas he has a good right of action if he has merely got its value. 7 A thing which does not yet exist, but will exist, may be validly bequeathed: -- for instance, the produce of such and such land, or the child of such and such female slave. 8 If the same thing is given as a legacy to two persons, whether jointly or severally, and both claim it, each is entitled to only a half; if one of them does not claim it, because either he does not care for it, or has died in the testator’s lifetime, or for some other reason, the whole goes to his co-legatee. A joint legacy is given in such words as the following: ‘I give and bequeath my slave Stichus to Titius and Seius’: a several legacy thus, ‘I give and bequeath my slave Stichus to Titius: I give and bequeath Stichus to Seius’: and even if the testator says ‘the same slave Stichus’ the legacy is still a several one. 9 If land be bequeathed which belongs to some one other than the testator, and the intended legatee, after purchasing the bare ownership therein, obtains the usufruct without consideration, and then sues under the will, Julian says that this action for the land is well grounded, because in a real action for land a usufruct is regarded merely as a servitude; but it is part of the duty of the judge to deduct the value of the usufruct from the sum which he directs to be paid as the value of the land. 10 A legacy by which something already belonging to the legatee is given him is void, for what is his own already cannot become more his own than it is: and even though he alienates it before the testator’s death, neither it nor its value can be claimed. 11 If a testator bequeaths something belonging to him, but which he thought belonged to another person, the legacy is good, for its validity depends not on what he thought, but on the real facts of the case: and it is clearly good if he thought it already belonged to the legatee, because his expressed wish can thus be carried out. 12 If, after making his will, a testator alienates property which he has therein given away as a legacy, Celsus is of opinion that the legatee may still claim it unless the testator’s intention was thereby to revoke the bequest, and there is a rescript of the Emperors Severus and Antoninus to this effect, as well as another which decides that if, after making his will, a testator pledges land which he had therein given as a legacy, the part which has not been alienated can in any case be claimed, and the alienated part as well if the alienator’s intention was not to revoke the legacy. 13 If a man bequeaths to his debtor a discharge from his debt, the legacy is good, and the testator’s heir cannot sue either the debtor himself, or his heir, or any one who occupies the position of heir to him, and the debtor can even compel the testator’s heir to formally release him. Moreover, a testator can also forbid his heir to claim payment of a debt before a certain time has elapsed. 14 Contrariwise, if a debtor leaves his creditor a legacy of what he owes him, the legacy is void, if it includes no more than the debt, for the creditor is thus in no way benefited; but if the debtor unconditionally bequeaths a sum of money which the creditor cannot claim until a definite date has arrived or a condition has been satisfied, the legacy is good, because it confers on the creditor a right to earlier payment. And, even if the day arrives, or the condition is satisfied, during the testator’s lifetime, Papinian decides, and rightly, that the legacy is nevertheless a good one, because it was good when first written; for the opinion that a legacy becomes void, because something happens to deprive it of all material effect, is now rejected. 15 If a man leaves his wife a legacy of her dowry, the gift is good, because the legacy is worth more than a mere right of action for the dowry. If, however, he has never received the dowry which he bequeaths, the Emperors Severus and Antoninus have decided by rescript that the legacy is void, provided the general term ‘dowry’ is used, but good, if in giving it to the wife a definite sum or thing is specified, or described generally by reference to the dowry deed. 16 If a thing bequeathed perishes through no act of the heir, the loss falls on the legatee: thus if a slave belonging to another person, who is given in this way, is manumitted through no act of the heir, the latter is not bound. If, however, the slave belongs to the heir, who manumits him, Julian says that he is bound, and it is immaterial whether he knew or not that the slave had been bequeathed away from him. 17 If a testator gives a legacy of female slaves along with their offspring, the legatee can claim the latter even if the mothers are dead, and so again if a legacy is given of ordinary slaves along with their vicarii or subordinates, the latter can be claimed even if the former are dead. But if the legacy be of a slave along with his peculium, and the slave is dead, or has been manumitted or alienated, the legacy of the peculium is extinguished; and similarly, if the legacy be of land with everything upon it, or with all its instruments of tillage, by the alienation of the land the legacy of the instruments of tillage is extinguished. 18 If a flock be given as a legacy, which is subsequently reduced to a single sheep, this single survivor can be claimed; and Julian says that in a legacy of a flock are comprised sheep which are added to it after the making of the will, a flock being but one aggregate composed of distinct members, just as a house is but one aggregate composed of distinct stones built together. So if the legacy consists of a house, we hold that pillars or marbles added to it after the making of the will pass under the bequest. 20 If a slave’s peculium be given as a legacy, the legatee undoubtedly profits by what is added to it, and is a loser by what is taken from it, during the testator’s lifetime. Whatever the slave acquires in the interval between the testator’s death and the acceptance of the inheritance belongs, according to Julian, to the legatee, if that legatee be the slave himself who is manumitted by the will, because a legacy of this kind vests from the acceptance of the inheritance: but if the legatee be a stranger, he is not entitled to such acquisitions, unless they are made by means of the peculium itself. A slave manumitted by a will is not entitled to his peculium unless it is expressly bequeathed to him, though, if the master manumits him in his lifetime, it is enough if it be not expressly taken from him, and to this effect the Emperors Severus and Antoninus have decided by rescript: as also, that a legacy of his peculium to a slave does not carry with it the right to sue for money which he has expended on his master’s account, and that a legacy of a peculium may be inferred from directions in a will that a slave is to be free so soon as he has made a statement of his accounts and made up any balance, which may be against him, from his peculium. 21 Incorporeal as well as corporeal things can be bequeathed: thus a man can leave a legacy even of a debt which is owed to him, and the heir can be compelled to transfer to the legatee his rights of action, unless the testator has exacted payment in his lifetime, in which case the legacy is extinguished. Again, such a legacy as the following is good: ‘be my heir bound to repair so and so’s house, or to pay so and so’s debts.’ 22 If a legacy be a general one, as of a slave or some other thing not specifically determined, the legatee is entitled to choose what slave, or what thing, he will have, unless the testator has expressed a contrary intention. 23 A legacy of selection, that is, when a testator directs the legatee to select one from among his slaves, or any other class of things, was held to be given subject to an implied condition that the legatee should make the choice in person; so that if he died before doing so the legacy did not pass to his heir. By our constitution, however, we have made an improvement in this matter, and allowed the legatee’s heir to exercise the right of selection, although the legatee has not done so personally in his lifetime; which enactment, through our careful attention to the subject, contains the further provision, that if there are either several co-legatees to whom a right of selection has been bequeathed, and who cannot agree in their choice, or several co-heirs of a single legatee, who differ through some wishing to choose this thing and others that, the question shall be decided by fortune -- the legacy not being extinguished, which many of the jurists in an ungenerous spirit wished to make the rule --; that is to say, that lots shall be drawn, and he on whom the lot falls shall have a priority of choice over the rest.

24 Three persons only can be legatees who have testamentary capacity, that is, who are legally capable of taking under a will. 25 Formerly it was not allowed to leave either legacies or fiduciary bequests to uncertain persons, and even soldiers, as the Emperor Hadrian decided by rescript, were unable to benefit uncertain persons in this way. An uncertain person was held to be one of whom the testator had no certain conception, as the legatee in the following form: ‘Whoever bestows his daughter in marriage on my son, do thou, my heir, give him such or such land.’ So too a legacy left to the first consuls designate after the writing of the will was held to be given to an uncertain person, and many others that might be instanced: and so it was held that freedom could not be bequeathed to an uncertain person, because it was settled that slaves ought to be enfranchised by name, and an uncertain person could not be appointed guardian. But a legacy given with a certain demonstration, that is, to an uncertain member of a certain class, was valid, for instance, the following: ‘Whoever of all my kindred now alive shall first marry my daughter, do thou, my heir, give him such and such thing.’ It was, however, provided by imperial constitutions that legacies or fiduciary bequests left to uncertain persons and paid by mistake could not be recovered back. 26 An after-born stranger again could not take a legacy; an after-born stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emancipated son was held to be an after-born stranger to his grandfather. 27 These parts of the law, however, have not been left without due alteration, a constitution having been inserted in our Code by which we have in these respects amended the rules relating to legacies and fiduciary bequests no less than to inheritances, as will be made clear by a perusal of the enactment, which, however, still maintains the old rule that an uncertain person cannot be appointed guardian: for when a testator is appointing a guardian for his issue, he ought to be quite clear as to the person and character of the party he selects. 28 An after-born stranger could and still can be instituted heir, unless conceived of a woman who cannot by law be a man’s wife. 29 If a testator makes a mistake in any of the names of the legatee, the legacy is nevertheless valid provided there is no doubt as to the person he intended, and the same rule is very properly observed as to heirs as well as legatees; for names are used only to distinguish persons, and if the person can be ascertained in other ways a mistake in the name is immaterial. 30 Closely akin to this rule is another, namely, that an erroneous description of the thing bequeathed does not invalidate the bequest; for instance, if a testator says, ‘I give and bequeath Stichus my born slave,’ the legacy is good, if it quite clear who is meant by Stichus, even though it turn out that he was not born the testator’s slave, but was purchased by him. Similarly, if he describe Stichus as ‘the slave I bought from Seius,’ whereas in fact he bought him from some one else, the legacy is good, if it is clear what slave he intended to give. 31 Still less is a legacy invalidated from a wrong motive being assigned by the testator for giving it: if, for instance, he says, ‘I give and bequeath Stichus to Titius, because he looked after my affairs while I was away,’ or ‘because I was acquitted on a capital charge through his undertaking my defence,’ the legacy is still good, although in point of fact Titius never did look after the testator’s affairs, or never did, through his advocacy, procure his acquittal. But the law is different if the testator expresses his motive in the guise of a condition, as: ‘I give and bequeath such and such land to Titius, if he has looked after my affairs.’ 32 It is questioned whether a legacy to a slave of the heir is valid. It is clear that such a legacy is void if given unconditionally, even though the slave ceases to belong to the heir during the testator’s lifetime: for a legacy which would be void if the testator died immediately after making his will ought not to become valid by the simple fact of the testator’s living longer. Such a legacy, however, is good if given subject to a condition, the question then being, whether at the vesting of the legacy the slave has ceased to belong to the heir. 33 On the other hand, there is no doubt that even an absolute legacy to the master of a slave who is instituted heir is good: for, even supposing that the testator dies immediately after making the will, the right to the legacy does not necessarily belong to the person who is heir; for the inheritance and the legacy are separable, and a different person from the legatee may become heir through the slave; as happens if, before the slave accepts the inheritance at his master’s bidding, he is conveyed to another person, or is manumitted and thus becomes heir himself; in both of which cases the legacy is valid. But if he remains in the same condition, and accepts at his master’s bidding, the legacy is extinguished. 34 A legacy given before an heir was appointed was formerly void, because a will derives its operation from the appointment of an heir, and accordingly such appointment is deemed the beginning and foundation of the whole testament, and for the same reason a slave could not be enfranchised before an heir was appointed. Yet even the old lawyers themselves disapproved of sacrificing the real intentions of the testator by too strictly following the order of the writing: and we accordingly have deemed these rules unreasonable, and amended them by our constitution, which permits a legacy, and much more freedom, which is always more favoured, to be given before the appointment of an heir, or in the middle of the appointments, if there are several. 35 Again, a legacy to take effect after the death of the heir or legatee, as in the form: ‘After my heir’s death I give and bequeath,’ was formerly void, as also was one to take effect on the day preceding the death of the heir or legatee. This too, however, we have corrected, by making such legacies as valid as they would be were they fiduciary bequests, lest in this point the latter should be found to have some superiority over the former. 36 Formerly too the gift, revocation, and transference of legacies by way of penalty was void. A penal legacy is one given in order to coerce the heir into doing or not doing something; for instance, the following: ‘If my heir gives his daughter in marriage to Titius,’ or, conversely, ‘if he does not give her in marriage to Titius, let him pay ten aurei to Seius’; or again, ‘if my heir parts with my slave Stichus,’ or, conversely, ‘if he does not part with him, let him pay ten aurei to Titius.’ And so strictly was this rule observed, that it is declared in a large number of imperial constitutions that even the Emperor will accept no legacy by which a penalty is imposed on some other person: and such legacies were void even when given by a soldier’s will, in which as a rule so much trouble was taken to carry out exactly the testator’s wishes. Moreover, Sabinus was of opinion that a penal appointment of a co-heir was void, as exemplified in the following: ‘Be Titius my heir: if Titius gives his daughter in marriage to Seius, be Seius my heir also’; the ground of the invalidity being that it made no difference in what way Titius was constrained, whether by a legacy being left away from him, or by some one being appointed co-heir. Of these refinements, however, we disapproved, and have consequently enacted generally that bequests, even though given, revoked, or transferred in order to penalize the heir, shall be treated exactly like other legacies, except where the event on which the penal legacy is contingent is either impossible, illegal, or immoral: for such testamentary dispositions as these the opinion of my times will not permit.

TITLE XXI
OF THE ADEMPTION AND TRANSFERENCE OF LEGACIES

Legacies may be revoked either in a later clause of the will or by codicils, and the revocation may be made either in words contrary to those of the gift, as the gift thus ‘I give and bequeath,’ the revocation thus ‘I do not give and bequeath,’ or in words not contrary, that is to say, in any words whatsoever.

1 A legacy may also be transferred from one person to another, as thus: ‘I give and bequeath to Seius the slave Stichus whom I bequeathed to Titius,’ and this may be done either by a later clause of the will or by codicils; the result being that the legacy is taken away from Titius and simultaneously given to Seius.

TITLE XXII
OF THE LEX FALCIDIA

We have finally to consider the lex Falcidia, the most recent enactment limiting the amount which can be given in legacies. The statute of the Twelve Tables had conferred complete liberty of bequest on testators, by which they were enabled to give away their whole patrimony in legacies, that statute having enacted: ‘let a man’s testamentary disposition of his property be regarded as valid.’ This complete liberty of bequest, however, it was thought proper to limit in the interest of testators themselves, for intestacy was becoming common through the refusal of instituted heirs to accept inheritances from which they received little or no advantage at all. The lex Furia and the lex Voconia were enactments designed to remedy the evil, but as both were found inadequate to the purpose, the lex Falcidia was finally passed, providing that no testator should be allowed to dispose of more than three-quarters of his property in legacies, or in other words, that whether there was a single heir instituted, or two or more, he or they should always be entitled to at least a quarter of the inheritance.

1 If two heirs, say Titius and Seius, are instituted, and Titius’s share of the inheritance is either wholly exhausted in legacies specifically charged thereon, or burdened beyond the limit fixed by the statute, while no legacies at all are charged on Seius, or at any rate legacies which exhaust it only to the extent of one half or less, the question arose whether, as Seius has at least a quarter of the whole inheritance, Titius was or was not entitled to retain anything out of the legacies which had been charged upon him: and it was settled that he could keep an entire fourth of his share of the inheritance; for the calculation of the lex Falcidia is to be applied separately to the share of each of several heirs in the inheritance. 2 The amount of the property upon which the calculation is brought to bear is its amount at the moment of the testator’s decease. Thus, to illustrate by an example, a testator who is worth a hundred aurei at his decease gives the whole hundred away in legacies: here, if before the heir accepts, the inheritance is so much augmented through slaves who belong to it, or by births of children from such of them as are females, or by the young of cattle that, even after paying away a hundred aurei in legacies, the heir will still have a clear fourth of the inheritance, the legatee’s position is in no way improved, but a quarter of the sum given in legacies may still be deducted for himself by the heir. Conversely, if only seventy-five aurei are given in legacies, and before acceptance the inheritance is so much diminished in value, say by fire, shipwreck, or death of slaves, that no more or even less than seventy-five aurei are left, the legatees can claim payment of their legacies in full. In this latter case, however, the heir is not prejudiced, for he is quite free to refused the inheritance: consequently, the legatees must come to terms with him, and content themselves with a portion of their legacies, lest they lose all through no one’s taking under the will. 3 When the calculation of the lex Falcidia is made, the testator’s debts and funeral expenses are first deducted, and the value of slaves whom he has manumitted in the will or directed to be manumitted is not reckoned as part of the inheritance; the residue is then divided so as to leave the heirs a clear fourth, the other three quarters being distributed among the legatees in proportion to the amount of the legacies given them respectively in the will. Thus, if we suppose four hundred aurei to have been given in legacies, and the value of the inheritance, out of which they are to be paid, to be exactly that sum, each legatee must have his legacy abated by one-fourth; if three hundred and fifty have been given in legacies, each legacy will be diminished by one-eighth; if five hundred, first a fifth, then a fourth, must be deducted: for when the amount given in legacies actually exceeds the sum of the inheritance, there must be struck off first the excess, and then the share which the heir is entitled to retain.

TITLE XXIII
OF TRUST INHERITANCES

We now proceed to fiduciary bequests or trusts; and let us begin with trust inheritances.

1 Legacies or inheritances given by trust had originally no binding legal force, because no one could be compelled against his will to do what he was merely asked to do. As there were certain classes of persons to whom testators were unable to leave inheritances or legacies, when they wished to effect these objects they used to trust to the good faith of some one who had this kind of testamentary capacity, and whom they asked to give the inheritance, or the legacy, to the intended beneficiary; hence the name ‘trusts,’ because they were not enforced by legal obligation, but only by the transferor’s sense of honesty. Subsequently the Emperor Augustus, either out of regard for various favourites of his own, or because the request was said to have been made in the name of the Emperor’s safety, or moved thereto by individual and glaring cases of perfidy, commanded the consuls in certain cases to enforce the duty by their authority. And this being deemed equitable, and being approved by the people, there was gradually developed a new and permanent jurisdiction, and trusts became so popular that soon a special praetor was appointed to hear suits relating to them, who was called the trust praetor.

2 The first requisite is an heir directly instituted, in trust to transfer the inheritance to another, for the will is void without an instituted heir in the first instance. Accordingly, when a testator has written: ‘Lucius Titius, be thou my heir,’ he may add: ‘I request you, Lucius Titius, as soon as you can accept my inheritance, to convey and transfer it to Gaius Seius’; or he can request him to transfer a part. So a trust may be either absolute or conditional, and to be performed either immediately or on a specified future day.

3 After the transfer of the inheritance the transferor continues heir, the transferee being sometimes regarded as quasi-heir, sometimes as quasi-legatee. 4 But during the reign of Nero, in the consulate of Trebellius Maximus and Annaeus Seneca, a senatusconsult was passed providing that, when an inheritance is transferred in pursuance of a trust, all the actions which the civil law allows to be brought by or against the heir shall be maintainable by and against the transferee: and after this enactment the praetor used to give indirect or fictitious actions to and against the transferee as quasi-heir. 5 However, as the instituted heirs, when (as so often was the case) they were requested to transfer the whole or nearly the whole of an inheritance, declined to accept for what was no benefit, or at most a very slight benefit, to themselves, and this caused a failure of the trusts, afterwards, in the time of the Emperor Vespasian, and during the consulate of Pegasus and Pusio, the senate decreed that an heir who was requested to transfer the inheritance should have the same right to retain a fourth thereof as the lex Falcidia gives to an heir charged with the payment of legacies, and gave a similar right of retaining the fourth of any specific thing left in trust. After the passing of this senatusconsult the heir, wherever it came into operation, was sole administrator, and the transferee of the residue was in the position of a partiary legatee, that is, of a legatee of a certain specified portion of the estate under the kind of bequest called participation, so that the stipulations which had been usual between an heir and a partiary legatee were now entered into by the heir and transferee, in order to secure a rateable division of the gains and losses arising out of the inheritance. 6 Accordingly, after this, if no more than three- fourths of the inheritance was in trust to be transferred, then the SC. Trebellianum governed the transfer, and both were liable to be sued for the debts of the inheritance in rateable portions, the heir by civil law, the transferee, as quasi-heir, by that enactment. But if more than three-fourths, or even the whole was left in trust to be transferred, the SC. Pegasianum came into operation, and when once the heir had accepted, of course voluntarily, he was the sole administrator whether he retained one-fourth or declined to retain it: but if he did, he entered into stipulations with the transferee similar to those usual between the heir and a partiary legatee, while if he did not, but transferred the whole inheritance, he covenanted with him as quasi-purchaser. If an instituted heir refuse to accept an inheritance from a suspicion that the liabilities exceed the assets, it is provided by the SC. Pegasianum that, on the petition of the person to whom he is requested to transfer, he shall be ordered by the praetor to accept and transfer it, whereupon the transferee shall be as capable of suing and being sued as the transferee under the SC. Trebellianum. In this case no stipulations are necessary, because by a concurrent operation of the two senatusconsults both the transferor is protected, and all actions relating to the inheritance pass to and against the transferee. 7 As, however, the covenants which had become necessary through the SC. Pegasianum were disliked even by the older lawyers, and are in certain cases considered injurious by the eminent jurist Papinian, and it being our desire that our statute book should be clear and simple rather than complicated, we have, after placing these two senatusconsults side by side and examining their points of resemblance and difference, resolved to repeal the SC. Pegasianum, as the later enactment, and to give exclusive authority to the SC. Trebellianum, under which in future all trust inheritances are to be transferred, whether the testator has freely given his heir a fourth of the property, or more or less, or even nothing at all: provided always, that when the heir has either nothing or less than a fourth, it shall be lawful for him, under our authority expressed in this statute, to retain a fourth, or to recover it by action if he has already paid it over, the heir and the transferee being capable both of suing and being sued in proportion to their shares in the inheritance, after the analogy of the SC. Trebellianum; and provided also, that if the heir voluntarily transfers the whole inheritance, the transferee shall be able to sue and be sued on all actions relating to the inheritance whatsoever. Moreover, we have transferred to the SC. Trebellianum the leading provision of the SC. Pegasianum, whereby it was enacted that when an instituted heir refused to accept an inheritance offered to him, he could be compelled to accept and transfer the whole inheritance if the intended transferee so desired, and that all actions should pass to and against the latter: so that it is under the SC. Trebellianum alone that the heir, if unwilling to accept, is now obliged to do so, if the intended transferee desire the inheritance, though to him personally no loss or profit can accrue under the transaction. 8 It makes no difference whether it is a sole or part heir who is under a trust to another, or whether what he is requested to transfer is the whole or only a part of that to which he is heir; for we direct that the same rules shall be applied in the case of a part being transferred as we have said are observed in the transference of a whole inheritance. 9 If the request addressed to the heir is to transfer the inheritance after deducting or reserving some specific thing which is equal in value to a fourth part thereof, such as land or anything else, the conveyance will be made under the SC. Trebellianum, exactly as if he had been asked after retaining a fourth part of the inheritance to transfer the residue. There is, however, some difference between the two cases; for in the first, where the inheritance is transferred after deducting or reserving some specific thing, the senatusconsult has the effect of making the transferee the only person who can sue or be sued in respect of the inheritance, and the part retained by the heir is free from all encumbrances, exactly as if he had received it under a legacy; whereas in the second, where the heir, after retaining a fourth part of the inheritance, transfers the rest as requested, the actions are divided, the transferee being able to sue and be sued in respect of three-fourths of the inheritance, and the heir in respect of the rest. Moreover, if the heir is requested to transfer the inheritance after deducting or reserving only a single specific thing, which, however, in value is equivalent to the greater part of the inheritance, the transferee is still the only person who can sue and be sued, so that he ought well to weigh whether it is worth his while to take it: and the case is precisely the same, whether what the heir is directed to deduct or reserve before transferring is two or more specific things, or a definite sum which in fact is equivalent to a fourth or even the greater part of the inheritance. What we have said of a sole heir is equally true of one who is instituted only to a part.

10 Moreover, a man about to die intestate can charge the person to whom he knows his property will go by either the civil or praetorian law to transfer to some one else either his whole inheritance, or a part of it, or some specific thing, such as land, a slave, or money: but legacies have no validity unless given by will. 11 The transferee may himself be charged by the deceased with a trust to transfer to some other person either the whole or a part of what he receives, or even something different. 12 As has been already observed, trusts in their origin depended solely on the good faith of the heir, from which early history they derived both their name and their character: and it was for that reason that the Emperor Augustus made them legally binding obligations. And we, in our desire to surpass that prince, have recently made a constitution, suggested by a matter brought before us by the eminent Tribonian, quaestor of our sacred palace, by which it is enacted, that if a testator charges his heir with a trust to transfer the whole inheritance or some specific thing, and the trust cannot be proved by writing or by the evidence of five witnesses -- five being, as is known, the number required by law for the proof of oral trusts -- through there having been fewer witnesses than five, or even none at all, and if the heir, whether it be his own son or some one else whom the testator has chosen to trust, and by whom he desired the transfer to be made, perfidiously refuses to execute the trust, and in fact denies that he was ever charged with it, the alleged beneficiary, having previously sworn to his own good faith, may put the heir upon his oath: whereupon the heir may be compelled to swear that no trust was ever charged upon him, or, in default, to transfer the inheritance or the specific thing, as the case may be, in order that the last wishes of the testator, the fulfilment of which he has left to the honour of his heir, may not be defeated. We have also prescribed the same procedure where the person charged with a trust is a legatee or already himself a transferee under a prior trust. Finally, if the person charged admits the trust, but tries to shelter himself behind legal technicalities, he may most certainly be compelled to perform his obligation.

TITLE XXIV
OF TRUST BEQUESTS OF SINGLE THINGS

Single things can be left in trust as well as inheritances; land, for instance, slaves, clothing, gold, silver, and coined money; and the trust may be imposed either on an heir or on a legatee, although a legatee cannot be charged with a legacy.

1 Not only the testator’s property, but that of an heir, or legatee, or person already benefited by a trust, or any one else may be given by a trust. Thus a legatee, or a person in whose favour the testator has already created a trust, may be asked to transfer either a thing left to him, or any other thing belonging to himself or a stranger, provided always that he is not charged with a trust to transfer more than he takes by the will, for in respect of such excess the trust would be void. When a person is charged by a trust to transfer a thing belonging to some one else, he must either purchase and deliver it, or pay its value. 2 Liberty can be left to a slave by a trust charging an heir, legatee, or other person already benefited by a trust of the testator’s, with his manumission, and it makes no difference whether the slave is the property of the testator, of the heir, of the legatee or of a stranger: for a stranger’s slave must be purchased and manumitted; and on his master’s refusal to sell (which refusal is allowable only if the master has taken nothing under the will) the trust to enfranchise the slave is not extinguished, as though its execution had become impossible, but its execution is merely postponed; because it may become possible to free him at some future time, whenever an opportunity of purchasing him presents itself. A trust of manumission makes the slave the freedman, not of the testator, though he may have been his owner, but of the manumitter, whereas a direct bequest of liberty makes a slave the freedman of the testator, whence too he is called ‘orcinus.’ But a direct bequest of liberty can be made only to a slave who belongs to the testator both at the time of making his will and at that of his decease; and by a direct bequest of liberty is to be understood the case where the testator desires him to become free in virtue, as it were, of his own testament alone, and so does not ask some one else to manumit him. 3 The words most commonly used to create a trust are I beg, I request, I wish, I commission, I trust to your good faith; and they are just as binding when used separately as when united.

TITLE XXV
OF CODICILS

It is certain that codicils were not in use before the time of Augustus, for Lucius Lentulus, who was also the originator of trusts, was the first to introduce them, in the following manner. Being on the point of death in Africa, he executed codicils, confirmed by his will, by which he begged Augustus to do something for him as a trust; and on the Emperor’s fulfilling his wishes, other persons followed the precedent and discharged trusts created in this manner, and the daughter of Lentulus paid legacies which could not have been legally claimed from her. It is said that Augustus called a council of certain jurists, among them Trebatius, who at that time enjoyed the highest reputation, and asked them whether the new usage could be sanctioned, or did not rather run counter to the received principles of law, and that Trebatius recommended their admission, remarking ‘how convenient and even necessary the practice was to citizens,’ owing to the length of the journeys which were taken in those early days, and upon which a man might often be able to make codicils when he could not make a will. And subsequently, after codicils had been made by Labeo, nobody doubted their complete validity.

1 Not only can codicils be made after a will, but a man dying intestate can create trusts by codicils, though Papinian says that codicils executed before a will are invalid unless confirmed by a later express declaration that they shall be binding. But a rescript of the Emperors Severus and Antoninus decides that the performance of a trust imposed by codicils written before a will may in any case be demanded, if it appears that the testator had not abandoned the intention expressed in them. 2 An inheritance can neither be given nor taken away by codicils, nor, accordingly, can a child be disinherited in this way: for, if it were otherwise, the law of wills and of codicils would be confounded. By this it is meant that an inheritance cannot directly be given or taken away by codicils; for indirectly, by means of a trust, one can very well be given in this manner. Nor again can a condition be imposed on an instituted heir, or a direct substitution be effected, by codicils. 3 A man can make any number of codicils, and no solemnities are required for their execution.