Book III

( S. P. Scott, The Civil Law, I, Cincinnati, 1932 ).

1  2  3  4a  4b  5  6  7  8

Title 1. – Concerning the Carbonian Edict.

1. When a controversy is raised by a brother of the age of puberty as to whether the trial of a case should be deferred until the heir in question arrives at puberty, a difference of opinion exists, but it is generally held that it should not be deferred.

Title 2. – Concerning the estates of freedman.

1. A patron has a better right to the estate of a freedman than the son of another patron; likewise, the son of a patron is to be preferred to the grandson of another patron.

2. The freedman of two patrons appointed other heirs, one of whom died during the lifetime of the freedman, and the survivor very properly demanded possession of the estate contrary to the provisions of the will.

3. The estate of a freedman is divided per capita and not per stirpes; and therefore, if there are two children of one patron, and four of another, each of them will be entitled to equal shares of the estate. The patron, or the children of the patron who have been appointed heirs to half the estate of a freedman, can be compelled to pay the debts of the deceased, in proportion to their shares of his estate.

Title 3. – Concerning the Fabian formula.

1. Property which has been alienated in any way by a freedman for the purpose of defrauding his patron, can be recovered under the Fabian formula, by the patron himself, as well as by his children.

Title 4a. – Concerning wills.

1. Males can make a will after having completed their fourteenth year, females after having completed their twelfth; but not where they have the right of children under the authority of a guardian.

2. Eunuchs can make a will at the time when most males arrive at the age of puberty, that is to say, when they have reached their eighteenth year.

3. A son under paternal control who is a soldier, or who has served in the army, can make a will disposing of his castrense peculium, not only at common law, but through the privilege which he enjoys. Castrense peculium is property acquired in camp, or which is given to a soldier while on his way to the army.

4. A blind man can make a will, because he can request witnesses to be present, and hear them give their testimony.

5. An insane person can make a will during a lucid interval of his insanity.

6. A woman can be forbidden to dispose of her property if she is living a depraved life.

7. A person can be prohibited by the Praetor from receiving an estate on account of his or her morals, in the following terms: "To prevent you from squandering the estate of your father (or grandfather), by your profligacy, and bringing your children to want, I exclude you from the house and from all commercial intercourse."

8. A person captured by the enemy cannot make a will, as he occupies the position of a slave. A will, however, which was made before captivity is valid, if the party returns under the law of postliminium; or, if he dies in captivity, he will be entitled to the benefit of the Lex Cornelia, by which lawful guardianship and inheritances are confirmed.

9. A person who has been relegated to an island, or sentenced for a time to labor on the public works, can make a will, and take under a will, for the reason that he retains his citizenship.

10. Where more than seven persons are called to witness a will no harm is done; for any superfluous act is a benefit to the right of testation, and cannot injure it.

11. A person who has lost his senses on account of bodily illness cannot make a will during the time that this condition exists.

12. A spendthrift who leads a proper life after having reformed can make a will and act as a witness to testamentary execution.

13. If any of those who are called to witness a will do not know or understand Latin, but still are aware for what purpose they are present, and act as witnesses, this will not vitiate the will.

Title 4b. – Concerning the appointment of heirs.

1. There are two kinds of conditions, those which are possible and those which are impossible. A possible condition is one which in the nature of things can take place, an impossible condition is one which cannot take place; the occurrence of one of which may be expected, but the fulfillment of the other is suggested as impossible.

2. Conditions which are contrary to the laws and decrees of the emperors, or are opposed to good morals, are of no force or effect, for instance, the following: "If you should not marry a wife; if you should not have children; if you should not commit homicide; if you should appear in the costume of a barbarian, or a spectre;" and others of the same description.

3. When it is not apparent what heir was appointed, the appointment is not valid; which occurs when the testator had several friends of the same name.

4. Heirs are said to be either appointed or substituted; those that are appointed are placed in the first degree, those that are substituted are placed in the second, or third degree.

5. A testator can substitute an heir either absolutely or conditionally ; and this applies to his own heirs as well as strangers, and to children over and under puberty.

6. A testator can divide his estate into as many shares as he wishes; and where the entire estate is disposed of, heirs who are appointed without any share will be entitled to equal portions of the first half of the estate.

7. If a slave belonging to another is appointed an heir with his freedom, this does not annul the appointment; but the grant of freedom is considered to be superfluous as the slave belongs to another person.

8. Where a son and a stranger are appointed heirs to an estate, and a daughter has been passed over, she can only claim as her share the amount left to the stranger; but where the two sons have been appointed heirs, she will take a third from them, and half from the stranger.

9. When an appointment of posthumous heirs is made as follows: "Let my children born after my death be my heirs"; any children born during his lifetime will break the will.

10. A posthumous grandchild who can succeed to the place of his father, and who should either be appointed heir by his grandfather, or disinherited by name, does not break the will by his birth.

11. Anyone who has once decided to accept an estate and meddles with the property belonging to it, cannot repudiate it, even though it may cause him loss.

Title 5. – On the Silanian Decree of the Senate.

1. Under the terms of the Silanian Decree of the Senate, the estate of a person who is said to have been killed by his slaves cannot be entered on before torture has been applied; nor can the praetorian possession of it legally be demanded.

2. One is said to have been killed not only where death took place through violence, or murder, as where a man's throat was cut, or he was hurled down from a precipice, but also where he is alleged to have been killed by poison; for the honor of the heir is involved in not allowing any kind of homicide of the testator to go unavenged.

3. When the owner is killed, torture should be applied to those slaves who are under the same roof, or who were outside of the house with their master at the time he was murdered.

4. When a person is said to have been killed, and it is established that he took his own life in some way, his slaves should not be tortured, unless they are able to prevent it, and did not do so.

5. It is provided by the Neronian Decree of the Senate that where a wife has been killed, the slaves of the husband should be tortured; and, on the other hand, where the husband is alleged to have been killed, the same rule shall be applied to the slaves devoted to the personal service of the wife.

6. Slaves living under the same roof where the master is said to have been killed, shall be tortured and punished, even though they have been manumitted by the will of the deceased; and those also shall be tortured who accompanied him, if he was killed on a journey.

7. Slaves who were near at hand are punished if they could have heard the cries of their master and did not go to his assistance.

8. It has been decided that slaves who abandoned their master and took to flight when he was surrounded by robbers while on a journey, shall be arrested, tortured, and put to death.

9. Torture shall be inflicted upon slaves if the heir is alleged to have killed the testator; and it makes no difference whether he is a stranger, or one of his children.

10. Heirs are deprived of an estate and it is confiscated by the Treasury, if, when the murder of the testator is suspected, they entered upon the estate after the opening of the will, or after he has been declared intestate, or they obtained praetorian possession of the same; and, in addition to this, the penalty of a hundred thousand sesterces is imposed upon them; nor does it make any difference by whom, or in what way, the head of the household is said to have been killed.

10a. In conclusion, it should be noted that torture must be applied to all those who, for any reason, are under suspicion.

11. The following order is observed in subjecting those to torture whose master is said to have been murdered. In the first place it should be established that the master was killed, and then it should be made clear what slaves should be put to torture and in this way the guilty parties be detected.

12. Although it may be certain who struck the fatal blow, the slaves should, nevertheless, be put to torture, in order that the instigator of the murder may be discovered.

13. All those who have acted contrary to the intentions of the deceased shall be deprived of the estate as being unworthy, if nothing was provided in the will for the purpose of evading the law.

14. The appointed heir can demand to be placed in possession of the estate unless the will is alleged to be forged, broken, or void.

15. If a controversy arises between the appointed heir and the substitute, the better opinion is that the heir who was appointed in the first place should obtain possession of the property of the estate.

16. The heir appointed in writing can legally demand to be immediately placed in possession. He cannot, however, obtain possession by law after a year has elapsed.

17. The heir appointed in writing is not entitled to demand possession under a will which has not been produced and publicly read, as is required.

18. The heir appointed in writing cannot with propriety demand to be placed in possession of any property which the testator did not possess at the time of his death, before the question has been decided in the ordinary course of law.

Title 6. – Concerning legacies.

1. A preferred legacy of money left to one of several heirs who were not at home, must be paid by the co-heirs by order of court in a suit for partition.

2. A bequest cannot be made before the appointment of an heir; it can, however, be made between the appointments of heirs, without one or both being present; and sometimes half, and sometimes all will be due; half where the legacy is bequeathed to be claimed, all, where it is left by condemnation.

3.  . . . .

4. A legacy can be left to a slave owner in common either with the grant of his freedom or without it, and the entire legacy is acquired for the partner of the testator.

5. A legacy cannot be bequeathed after the death of the heir, because the heir of an heir cannot be charged with the payment of a legacy.

6. A legacy can be bequeathed to take effect at the time of the death of the heir, or when he dies, as follows: "I give and bequeath to Lucius Titius, when he dies my heir", or, "Let my heir be required to pay".

7. Although the legatee may not yet have determined to claim the legacy, still, if he should die after the will has been opened, and before the estate has been entered on, he will transmit the legacy to his heir.

8. If the property bequeathed by condemnation was hypothecated to a creditor, and the testator was not ignorant of the fact, the heir is expected to release the claim.

9. If the slave should die, the loss must be sustained by the legatee, for the reason that the legacy lapsed through no fault of the heir.

10. An heir can be charged to build a house for anyone, or to pay another's debt.

11. Corporeal property, as well as that consisting merely of rights, can be bequeathed by way of permission; and therefore what was owed by a debtor may legally be bequeathed to him.

12. A legatee cannot reject a part of the legacy bequeathed, and accept a part, as in the case of an heir.

13. Unless the legacy consists of property which is certain, and is left to a certain person, it is of no force or effect.

14. If anyone leaves a legacy, to himself and to Titius, the better opinion is that the entire legacy belongs to the joint legatees.

15. Anyone who appoints himself guardian to the son of the testator, who is under the age of puberty, should as being suspicious, be removed from the guardianship which he is considered to have voluntarily attempted to obtain.

16. If a testator subsequently pledges or hypothecates property which he has bequeathed, he will not, for this reason, be considered to have changed his mind.

17. The usufruct of any kind of property can be bequeathed, and either vests by operation of law, or is transferred by the heir; hence, where left by condemnation it must be transferred by the heir, and where left to be claimed it vests by operation of law.

18. The usufruct of a slave who is insane, ill, or an infant, may legally be bequeathed; for he may either recover his senses, or his health, or grow up.

19. When the usufruct of a female slave is bequeathed, her offspring does not belong to the usufructuary.

20. Where the usufruct of a flock is left, and it sustains no loss, the increase belongs to the usufructuary; that is to say, except in the case where some of the animals die, when the loss must be made up from their young.

21. Where the usufruct of a piece of land is bequeathed, buildings cannot be constructed upon it.

22. The accession of the alluvion of land does not belong to the usufructuary, for the reason that it is not the product of the soil, but any animals or birds taken in hunting will become the property of the usufructuary.

23. An usufructuary can neither torture, scourge, nor, by any act of his, cause the deterioration of slaves.

24. Where the profits of anything are bequeathed, and the use to be made of them is not stated, the better opinion is that the usufruct should be held to be included where profits cannot exist without use.

25. If the use of a thing is left to one person, and the profits of it to another, the usufructuary will share in the use, which the person who has only the use cannot do, so far as the profits are concerned.

26. Where the usufruct is bequeathed to two persons conjointly, by the expression: "I give and bequeath"; and one of them dies, the entire legacy will belong to the other.

27. When the usufruct of anything is bequeathed, it is customary for the usufructuary to furnish security as to the way he will make use of it; and having furnished security, he is obliged to agree that he will use the property in the same way as the most careful head of the household would do.

28. When an usufruct is lost it reverts to the ownership, and it is lost in five ways, namely: by the forfeiture of civil rights; by change in the property itself; by failure to make use of it; by its surrender in court; and by purchase of its ownership.

29. It is lost by the forfeiture of civil rights, if the usufructuary is deported to an island, or if, for some reason, he is sentenced to the mines, or changes his condition either by arrogation or adoption.

30. An usufruct is lost by failure to make use of it, where the usufructuary, being in possession, does not use the land for the term of two years, or movable property for the term of one year.

31. The usufruct is lost by change in the property, where the usufruct of a house is bequeathed, and the house is destroyed by fire, or becomes ruined, although it may subsequently be rebuilt.

32. An usufruct is lost by surrender in court, whenever the usufructuary, in a judicial proceeding, transfers it to the owner of the property.

33. An usufruct is terminated either by death or by lapse of time; by death, when the usufructuary dies, by lapse of time, whenever the usufruct is bequeathed for a certain time, for instance, for two or three years.

34. When a tract of land, or a slave is bequeathed, neither the appurtenances of the land nor the peculium of the slave belongs to the legatee.

35. Those who perform farm labor are considered necessary for the securing of crops, as superintendents, stewards, and foresters; as well as oxen for plowing, plows, pruning hooks, and grain stored up for seed.

36. Various articles are included among the implements, as, for instance, baskets, sickles, and scythes for cutting grain and hay, and also olive-oil mills.

37. Among the implements and appurtenances for preserving the crops air casks, vats, farm vehicles, provisions for men and animals, millers, asses, ovens, likewise female slaves who make garments for the laborers, leather and shoemakers are also included.

38. The better opinion is that the wives of the laborers also form part of the appurtenances; and also flocks and their shepherds if the former are kept on account of their manure are also included.

39. Those things, however, which are for the purpose of taking care of the property, rather than for the use of the head of the household, are not included in the category of appurtenances.

40. The wives of those who are accustomed to pay wages are not included in the terms furnishings or appurtenances.

41. Articles used for fishing and hunting are only included among the appurtenances of land when the income therefrom is for the most part derived from their employment.

42. Gathered crops are only included where they were ordinarily consumed on the ground by the testator.

43. Where land situated in the country or in a city is bequeathed with its appurtenances and the slaves thereon, all the seed and provisions will be due under the legacy.

44. When land with all its appurtenances both rustic and urban and the slaves thereon is bequeathed, the furniture, the brazen and silver vessels, and the clothing which the head of the household was accustomed to keep there for the purpose of caring for, or cultivating the property, will be due under the legacy; as well as any slaves ordinarily employed by the head of the household, and any fowls or flocks which are kept on the land to be used in banquets, with the exception of those left there for safe keeping.

45. Where land is left "to be maintained in the very best condition", nets to capture wild boars, and other implements used for hunting are included. These also are part of the appurtenances if the greater portion of the income of the land consists of the produce of the chase.

46. Any crops attached to the soil at the time of the death of the testator belong to the legatee; those previously gathered belong to the heir.

47. Where land is bequeathed with its slaves and flocks and all its rustic and urban appurtenances, the better opinion is that the peculium of the steward, if he dies before the testator and if it was on the same land, will also belong to the legatee.

48. A steward, or tenant who was brought from the land of another and bequeathed with all the appurtenances does not belong to the legatee, unless the testator intended that he should be attached to the land in question.

49. It has been decided that any additions derived from different purchases which the testator to the land bequeathed will belong to the legatee.

50. When the land is bequeathed furnished, blacksmiths, carpenters, and pruners who live on the land for the purpose of working there are included in the bequest.

51. Where land is bequeathed with its appurtenances, books, and libraries situated thereon, are included in the bequest.

52. It has been decided that where a slave was on the land for the purpose of studying, and the land was bequeathed with its slaves, if he was transferred elsewhere he belongs to the legatee.

53. Where land is bequeathed in such a way that possession may be obtained, both urban and rustic slaves, and gold and clothing which are on the land at the same time, belong to the legatee.

54. Pastures subsequently purchased, which the testator added to the land bequeathed, if included in that appellation, belong to the legatee.

55. Any property in the same house which the owner bequeathed furnished, and which he kept there to be constantly used, passes to the legatee.

56. Any articles bequeathed with the house, and by which the building is better provided, or rendered safe from fire, are embraced in the legacy; hence tiles, mirrors, and curtains are included, likewise, coverlets, beds, mattresses, pillows, benches, chairs, tables, chests, tripods, toilet-boxes, wash-basins, candelabra, lamps, and similar objects, no matter of what material they may be composed.

57. When a house is bequeathed, the bath attached to it, which is for common use, passes to the legatee, where it is not otherwise separated from it.

58. Where a house is bequeathed furnished, with all the rights attached to the same, the urban slaves, together with the artisans, porters, and water-carriers employed in the service of the house, are comprised in the legacy.

59. When all the contents of a house are bequeathed, written evidences of debt and bills of sales of slaves are not included in the legacy.

60. When jewelry is bequeathed, gold and silver plate is not included, unless it can be shown clearly that the testator intended that it should be.

61. When an inn is bequeathed with its appurtenances which are said to belong to the inn-keeper, all those things are included which are provided for the use of the proprietor; for instance, vessels in which wine is poured, and dishes and cups for eating and drinking, but those who serve food or drink by means of these utensils do not pass with the legacy.

62. Where the instruments of a physician are bequeathed, eyewashes and plasters, all the apparatus for compounding medicines, as well as surgical instruments, are comprised in the legacy.

63. When the studio of a painter is bequeathed, paints, brushes, branding irons, and vessels for mixing colors are included.

64. Where the shop of a baker is bequeathed, sieves, asses, mills, and slaves who are employed in the bakery, as well as the machines with which flour is kneaded, are included in the legacy.

65. When the establishment of a bather is bequeathed, the bather himself, benches, footstools, pipes, cauldrons, spigots, water-wheels, and also the beasts of burden by which wood is carried, are embraced in the legacy.

66. When the equipment of a fisherman is bequeathed, nets, baskets, tridents, boats, hooks, and everything else of this kind intended for the use of fishermen is included.

67. Where furniture is bequeathed, boxes and chests except such as are solely intended for books or clothing are included; as well as vessels of Phoenician, and other glass, or crystal, and of silver, both for eating and drinking purposes, together with cloths used for covering, are included in the legacy.

68. When a house and a field are bequeathed separately, one is included in the other.

69. Where slaves are bequeathed by the formula: "I do give and bequeath", female slaves are also included; but where male slaves are bequeathed, females are not included. In the term female slaves, virgins, as well as the sons of slaves are included. Those, however, are excepted who are left in trust.

70. When slaves who are secretaries are bequeathed, all who are engaged in that service in the city will be included, unless some of them have been permanently transferred to work in the country.

71. It is doubtful whether hunters or bird-catchers should be included among those employed in service in a city, and the question therefore depends upon the intention. Still, if they are kept for the purpose of daily attendance upon the table they will be included.

72. Muleteers and stewards are included in those employed in urban services, as well as purveyors and valets, butlers, chamberlains, cooks, cake-bakers, barbers, litter-bearers, and grooms.

73. When flocks are bequeathed, all quadrupeds are included which feed together in herds.

74. When beasts of burden are bequeathed, oxen are not included; and where horses are bequeathed, it has been decided that mares are included; where sheep are bequeathed, lambs are not included, unless they are a year old.

75. Where a flock of sheep is bequeathed, rams are also included.

76. Where fowls are bequeathed, geese, pheasants, chickens, and the places where they are kept are included, but whether the keepers of pheasants and of geese are included, depends upon the intention of the testator.

77. When sweets are bequeathed, wine which has been boiled down either with or without spices; mead; sweet wine; dates; figs; and raisins are included. On this point, also, there is a question of the intention, because this term includes some kinds of apples.

78. When vegetables are bequeathed, not only leguminous plants, but also barley and wheat are included.

79. When cloth is bequeathed, it includes everything woven of wool and flax as well as of silk and cotton which is prepared for the purpose of wear or covering, as for girdles, or for placing under or upon one. Skins suitable for wear are also included.

80. When clothing for males is bequeathed, this only applies to garments used by men for reasons of modesty, and any kind of covering is embraced in a bequest of this description.

81. When female clothing is bequeathed, all garments intended for the use of women are included.

82. When wool is bequeathed, it is included in the legacy whether it has been cut off, or washed, and whether it has been carded or dyed; purple, however, whether in the web or the woof, is not comprised in this category.

83. When articles suitable for the use of women are bequeathed, everything intended to render them more neat and elegant is included; for instance, mirrors, toilet-boxes, vessels for water, ointments, and the vases in which they are contained, and also a stool for. the bath, and other things of this kind.

84. Where ornaments are bequeathed, all those things used for the adornment of women are included; as for instance rings, chains, nets, and other things with which women adorn their necks, heads, or hands.

85. When silver is bequeathed, it only is due in the mass, for vessels which are designated by their own names are not included in the legacy; for when wool is bequeathed, clothing is not due.

86. When silver vessels are bequeathed, all those are included which are fashioned for any purpose, and therefore such as are used for eating or drinking, as well as the slaves who handle them at banquets are due; as for instance, small pitchers, bowls, dishes, pepper, cruets, spoons, ladles, goblets, and other utensils of this kind.

87. When books are bequeathed, volumes of paper, parchment, and papyrus are included, and wooden tablets covered with wax, as well. By the term "books" not merely volumes of leaves of paper, but also any kind of writing which is enclosed in anything is understood.

88. When gold is bequeathed, precious stones are also included, and pearls and emeralds pass with the legacy; the better opinion, however, is that this is a question of intention, for gold which is not manufactured is due, but where it is manufactured, it is comprised in the category with ornaments.

89. Where silver plate is bequeathed, any inlaid decoration of gold is also embraced in the legacy.

90. Where a silver drinking service is bequeathed, every kind of drinking vessel is included; as for instance, bowls, cups, goblets, pitchers, wine-jars, and spoons.

91. When a carriage with its belongings is bequeathed, mules are also included in the legacy but the muleteer does not seem to be, according to the daily custom of speaking.

92. When a codicil, or any other kind of a testament, is produced, from which a legacy has been erased, or cut away, its payment cannot legally be demanded.

Title 7. – Concerning donations mortis causa.

1. A person makes a donation mortis causa who, on departing for war, or being about to undertake a sea voyage, does so upon the condition that if he should return the property shall be restored to him, and if he should die, it shall belong to him to whom he gave it.
2. A donation mortis causa made on account of illness, on the recovery of health is also revoked by a change of mind; for it becomes effective only through death.

Title 8. – On the Lex Falcidia.

1. When an estate has been exhausted by legacies, trusts, or donations mortis causa, the appointed heir can, by the aid of the Lex Falcidia, retain a fourth part of the same.

2. Whenever a question arises with reference to the portion to be retained, on account of the risk of the heir demanding more than he is entitled to, after an appraisement of all the property has been made by the judge, the amount of the fourth to which the heir is entitled is determined; or a bond is executed from the legatee that if he receives any more than the fourth of the estate he will return it.

3. Property donated to a son by a mother during her lifetime, is not subject to the reservation of the Falcidian fourth.

4. Where default occurs in the payment of trusts or legacies, suit can be brought to recover the profits and interest; and default is held to be committed when the property left in trust or bequeathed is not delivered to the party claiming it.