The Institutes of Justinian

111쪽

NNES XX XL 93to itius, let him ante aurei to Seius; o again, is myhei paris it myralave Stichus. or, conversely, 4 he cloes no pari Mith him, letiim ante aurei to Titius An sostricti Was his ut observed that it is declare in a large number of imperia constitutions that even in Emperor illacceptis legac by hic a penalty is impose on ome

a void, as exemplifie in the ollowing AB Titius myheir: is Titius grues his aughter in marriage to Seius, beSeius, hei also; the ground of the invalidit hein thati made no difference in hat a Titius a Construineo, Whether is a legac bein test away srom him, o by someones ing appotnte co-heir. Os these refinement howeverWe is proved, and have consequently nacte generallythat equesta, even though given, revoked, o transferrecli orde to penalis the heir, hali e reate exacti like oster legacies, excepi here the event on hicli the penallega cis contingent is either impossibie illegat, or immorat: sor such testamentar disposition a thes the opinionis mytimes illiso permit.

O THE ADEMPTIO AN TRANSFERENCE O LEGACIES. Legacies may be revoke either in a later clause of the willor is codiciis, and the revocatio ma he Me either in Wom contra clo hos os in gist, a the gis thus clinive and equeath, in revocatio thus ' do notinive an be- queath, o in om no contra , that is to say, in ann essinalaoeveri A legac may also e transferre sto oneri person to another, a thus: diive and hequeat to Seius theslave Stichus hom I equeathe to Titius, and this maybeione eitherina later clause of the wili or is codicil theresuit Ming that the lega cis ahen way srom Titius and simultane styalven to Seius.

112쪽

o THE LEX FALCIDIA.we have finalty to conside therae Falc1dia, the ostrecent enaciment limiting the amoundi hic canis give in legacies. The statute os the welve able had consermo complete liberinos hequesti testatore, is hic the were enataeesto give away thei hole patrimon in legacies that statute havin enacted let a man' testamenta dispositionos his properi he regarde a valid This complete liberi os hequest howeve it a thought prope to limitin the interest os testatore themselves sor intestac Washecomin Common throuo the resusa os institute heirsto accepi inheritances rom hic they received lirile or noaduantam at all. herae Furia an therae Voconia ereenaciment designe to remedy the evit, but a both were found in equale to the pumose, the lex Falcidia asfinali passed, providin that no testator hould e allowedio dispos os more than three-quartem os his properi in legacies, o in the woms that Whether there mas a single hei instituted, o two Or more, hei theninould alWayche Ventille to a leas a quarter of the inheritance. Is two heira, in Titius an Seius, re instituted an Titius' hare os the inheritanc is ithe wholi exhauste in legacies specificatly charge thereon, or burdene heyon the limi fixed by the statuis, while no legacies at ali are charge on Seius, or at an rate legacies hic exhaust itininis the extent ofone hal or ess, the question rose Whether, as Seius has atteast a quarter of the whole inheritance, Titius as Or Was notentitieesto retain mythingiuiis the legacies hic ha been charge umn him and it was etlle that he could keemanentire Burin os his hare of the inheritance so the calculation os the lex Falcidicis tot applied separalely to the 2 share os eata os severat heir in the inheritance. The amountos the properinumn hic the calculation is brought tomearis iis amount at in momentis the testator's decease. hus,to illustrate is an example, a testator horis,orth a hundredaurei at his deceas oves the whole hundred away in legacies: here, is besore the ei accepta, the inheritance is o much

113쪽

NNES XII XLII. 95 augmente throuo flaves in belon in it, o by birin oschilare Bom suin os them a Messemales, o by the mungis carite, that, even uter paying - hundred aurei in legacies, the heir Wili still have a clea lauri os the inheritance, inelegatin's position is in no a improved, but a quarteris thesum ove in legacies may stillis deducto sor himself

the heir. Conversely, is onlyraeventy-five murei are give in legatam, an besore acceptance the inheritance is o much diminishe in value, sanis fire, hipwrecli, o deat os flaves, statio more or evenum than euent'five a rei are test thelegatem ea claim paymentis thei legacies in lall. In his latis cases Meve the heir is no preiudiced sorine is quiteste to res e the inheritance consequently the legastes must come o term With him, an content themserues it a portionis their macies, test the lose ali inrouo no one'stisin unde the will. When in calculation os the lex Falcidicis made, the testator' clebis an sunera expenses Meraret deducted, and the value os flaves homo has manumitte in the wil or directe to e manumitte is notrechone a par of the inheritance the residue is thendivideo sorus to leave the heim a clea Murth, the other three quarteri in distribute among the legatem in proportionis the amount of the legacies give them respectivel in thewil Τhus, is, supposeriour hundred rure is have been ven in legacies, and the value of the inheritance, ut os Whic the are to e aid, o be exacti that sum, inchlegate mus have his lega rubale is one-λurin is three

and then a Murin, mustae deducted sor,hen the amount ove in macies actuali exceed in sum os the inherit- ance, there musti struck of firs the excess, and the inestare hic the heir is entille to retain.

114쪽

certain Classes of person to whom testator viere unable toleave inheritances or legacies, when thenwishe to effect these objecta they used to trus to the good satin os some ne inoha this kin os testamentary capaci , and Whom then isdis ove the inheritance, o the lega , to the intende beneficiary hence the name trusis, beCaus theyMeremo ensorcedis legat obligation, ut ni is the transseror' sense os honesty. Subsequently the Emperor Augustus, either out os regaressor various savourites os his own or hecause the equest Was sal to have been made in the nam os the Emperoessala , o move theret by individua an farin cases os

perfidy, commande the consul in certain cases to ensorce

velope a neW an permanent urisdiction, an trusti cames popula that soon a specia praetor as appotnte to hear fuit relatincto them, Wh was calle the trusi praetor. Therars requisite is an hei directi instituted in trus is transse the inheritance to another, o the wili is vol&without an instituted hei in therars instance Accomingly, When a testator has writtem: A Lucius Titius, be thou fheir, he may d: I equest you Lucius Titius, a Soon as Ou an accepim inheritance, to convenand transis it to Gaius Seius; orhe an eques him to transfer a part S a rus may beeither absolute or conditional, an to e persorme either immediatetnori a specifie suture day. Aster in transser os the inheritanc the transferor continues heir, in transsere Min somelime regarde a quasi-heir, somelimes as quasi-legalee. ut during the reigmos Nero, in theconsulate os Trebellius aximus and Annaeus Seneca, a SenatuSconsuit Was passe providing that when an inheritance is transferre in pureuanc os a trusi, at the actions hic the

maintainable is and against in transseree: and aster this en-aciment the praetor sed to give indirecti fictilious actions to an against in transfere a quasi-heir. Howeve a the

115쪽

institute heira osten a the case in 'erer ueste to transfer the whole or early the whole os an in Mance, decline to accepi sor,hat was no benefit, or atmos a very light benefit, to themselves, and this caused stilure of the trusis, aster ares, in the time os the Emperor Vespasian, an during the consulat os Pegasus an Pugio, the senate decreo that an heir, Mas equeste to transfer

the inheritanceishould have in fame right to retain a ourththereos a the te Falcidia grues to an hei charge wit the ymenti legacies, and gave a simila right os retaining thes re os any specific hinclest in trust Aster the passingos this senatusconsul the heir, hereve it came into operati , mas sole administrator, and the transsere os the residue

Nas in the positionis a partiar legalae, that is os a legasteos a certain specifie portio of the estate unde the kin os quest calle participation, so that the stipulations hichta Men usual etween an heir an a partiar legate Wereno entered into by the heir an transseree in orde to seCurea rateatae division os the gain an losses arising out of the inheritance Accordingly, after his, is no more than three 6 Burins of the inheritance was in trusi tot transferred, thenthe SC. Trebellianum ouerne the transfer, an both werelisit in he me so the debis os the inheritance in rateableportions the hei by civi law, the transseree, a quasi-heir, by that enacimenti ut is more than three-Murths, o eventhe whole a lest in trusi tot transserred the C. Pegasianum came into operation, and when once the heir ad aecepted os murae voluntarily, he was the sole administrator hester he retaine one-λurthis decline to retaincit butis he id, he niere into stipulations it the transferee simila to thos usual bet em the heir an a partia degate while is he id nox ut transferre the whole inheritance. he covenante Withaim a quasi-purchaser. Is an instituted heir eius to accepi an inheritanc stoma suspicio that thecitabilities excee in assera it is provide by the C. Pegasianum that, o the petitionis the person to whomine is queste to transfer, he hallis ordered by the praetor toaecept an transse it, hereum the transferee hallis ascapable os suin an Min sue a the transsere unde the

116쪽

SC. Trebellianum. In this casemo stipulations are necessary, hecause by a concurrent operation Os the wo senatusconsulis both in transferor is protected an ali actions relating to the inheritance passo an against the transferre Ashoweve the covenant Whicli ha hecome necessary throughthe SC. egasianum ere distiked even hy the olde la ers, and are in certain cases considere injurious by the eminent jurist Ρapinian, an it Ming ou destre that ou statute bookshout be clear an simple ather than complicated we have aster placin these two senatusconsulis fide is fide and examining thei potnis os resemblance and difference, resolvedio repea the SC. egasianum, a the later naciment, andio give exclusive aut rit to the C. Trebellianum, underwhic in latur ali trus inheritances are to e transferreo,

whether the testator has Beelrgive his heir a fourin os the

always that he the heir has either nothin or es than a fourth, it hali e lawsul for im, under our authori expresse in this statute, to retain a ourth, o so much as,illmake his portio eques to a Murth, o to recove ita actionis he has atready aid it ver the ei and the transferre in capable both os suin an Min sue in proportionto their hares in the inheritance aster the analog of the SC. Trebellianum an provide also that is the hei voluntariintransfer the whole inheritance, the transferee hali beable to sue an be sue o ali actions relatin to the in

SC. Trebellianum the leadin provision os the C. agasianum, Whereis it was macte that he an institute heir resuse to accepi an inheritanc offere in him, he could e compelle to accepi and transfer the whole inheritanc is the intende transsere so destred, and that ali actions hould pascio an against the alter so that it is unde the SC. Trebellianum alone that he heir, is unwillincto accepi, is no oblige to do so, is the intende transfere destre theinheritance, though to hi personali no os o profit can

ac me unde the transaction. t mahes no disserenoe whetherit is a sole or par heir hocis unde a trus to transfer orwhether What heris equeste to transse is the whol orinly

117쪽

NTLE XXIII. 99 partis that to whic hecis heir; sor, direct that the samerules hallis applied in the caseis a part bein transferredas, have sat are observe in the transference of a wholeisieritance. Is the request addresse to the heir is to transfer sine inheritance aster deductin or reservin some specificining whichris equa in valueri a sourthiari thereos, Such astandis mythin else, the conveyance illis made underine SC. Trebellianum, exactinas i he had been asta asterretaining a ourth par os the inheritance to transfer heresidue. here is however ome disserence etween the two cases sor in the iret, here the inheritanc is transferredaster deductingi reservin some specific thing the senatusconsuli has the effectis making the transsere the only personN AEan sue orie sue in respectis the inheritanice, and thepar retaine by the et is re sto ali encumbrances, exactinas iste had received it unde a legacy wherea in the second where the heir, aster retaining a ouri partis theinheritance, transfer the est a requested the actions redivides, the transsere bein able to sue and e sue in respectis three- urths of the inheritance, and the heir in respectis the est. Oreover, is the heir is equeste totransfer in inheritance aster eductingis reserving oni a single specific thing, hic howeve in value is equivalent toste greater par of the inheritance, the transfere is stili theoni person Who can sue an be sued so that he ought wellio eigh whether it is orth his hile to in cit: and thecas is recisely the fame, Whether ha the heir is directedio deducti reserves sore transferrinii two or more specificthings, or a desinite sum hic in fac is equivalent in aso in or even in greater par os the inheritance. What we have sat os a sole heir is equalinime os one horis institutedonlyrio a partiuor ver a man a ut o die intestate an harge the 10 person to whom heanows his properin illio by either theeivili praetorian lawrio transse to sommone eis eitheriis inole inheritance, or a par of it, or some specific hing sucha land a lave, o money but legacies have no validi untes ovem, Will. The transfere may himselsi charge 1 Iby the deceased with a trus to transferri some ther Person ma

118쪽

either the whole or a pari os What he receives, o me Some-

12 hin different As has Men atready observeti, trusis in their origi depende solet o the good ait os the heir, hom hic early histor the derive both thei nam and thei character: anesit,a so that reaso that the Emperor Augustus ad them legali binclin obligations And we,

in ur destre to surpas that prince, have recenti made constitution suggeste by a matteramurat besore us by the eminent Tribonian quaestori ou sacre palace, hy hic itis nacted that is a testator harges his heir Wit a trus is transse the whole inheritance or some specifi ining and thetrus Cannotae prove by rilingi by the evidence of five witnesses-five Ming, ascis nown the number require bylaw so the proos os ora trusis inrough there havin Mensewer Witnesse thanive or even non at ali an is the heir, whether it he his own soni sommone else Whom the testator has chosen to trusi, an by whom he destre in transfer obe made, perfidiousty refuses to execute the trusi, an in facidentes that he was ver charge wit it the allege hen ficiary havin previouslyra orno his own goo laith mayput the hei upo his attici hereum the heir may be compelle to swea thatio trus was ver charge umn him, Or, in desauit, to transse the inheritancei the specific hing, asth cas may be in orcle that the last Wishes of the testator, the sulfilment of whic he has est to the honouris his heir, ma notis desinted. e have also rescribe the fame procedure here the person charge With a trus is a legareeor atready himsel a transsere unde a prior trusi. Finalty, i the person charge admit the trusi, ut tries o helter

himself heliin legat technicalities, he may mos certaini becompelle to persor his obligation.

TITI E XXIV.

Single things an e lest in trus as wel as inheritances; land sor instance, laves, lothing, gold, Silver, an coinedmoney and the trus maybe imposed eitherio an heir orina legalee, although a legalee cannot be charged With a lega .

119쪽

NTLES XXV XXIV. IOIΝot ni in testator' proper , ut that os an heir, o It alae, o person atready benefited by a trusi, o any oneelse may beatve trusL hus a legalee o a person in Whose favour in testator has Hready create a trusi, a Masked is transse either a thinguestrio him, or annother thing longinnis himselsi a stranger, provide always that he is no charmo wit a rus to transfer more than he takes hythe will, is in respectis such exces the trus Would M void. hen a person is charge is a trus to transfer a thing longin to ome ne else, he must ither purchas and desive it, orsa it value Liberincante lest to a flaves a trust chargin an heir, legalee, or ther person atready ben te is a trus os the testator's, with his manumission, an it mahes no differenc Whether in flave is the propertyos the testator, of the heir, os the legate oris a stranger sor stranger' flave must e purchase an manumitted ando his master' refusa io seli whic refusa is allowableoninis in master has take nothin unde the willhthe trustis enseanchise the lave is no eκtinguished, a though iis executio ha hecome impossibie, but iis eκecution is merelypostponeo; ecauserit a b ome possibi to Dee tam at Some suture time, heneve an opportuniinos purchasinthim presenti iraeis in trus os manumission malies the flave thesmedman, notis the testator though he may have been his

oWner, ut of the manumitter, hereas a direct equest os liber Mahes a lave the re man os the testator, hencetoo hecis calle orcistis But a directiequestis liberincania made onlyrio a flave who long to the testator both atthe time os makinchis,ill and at that os his decease and bya direct hequestis liberi is to beranderstoo the case hereth testator destres him to hecome re in viriue, as it were, es his own testamen alone, an so does no as Some one elset manumit him. he word mos commonly used to create a

120쪽

It is certain that codicil Weremo in se hesore the timeos Augustus, o Lucius Lentulus, who was also the originatoros trusis, a therars to introduce them in the solio ingmanner. Being on the potntis deat in Africa, he executed codiciis, confirme by hi Will, is hic he herae Augustusto do omethin sor himas a trust an on the Emperor's sulfillinthi Wishes, ther persons sollowed the precedent and discharge trusis create in this manner, and the clauoteris Lentulus at legacies hic could not have been legallyclaime Dominer. t is sal that Augustus calle a councilos certain jurisis, amon them Trebatius, ho a that timeenjon the hi est reputation, an aske them hether the

to the receive principies os law, and that rebatius recommende thei admission remarhinc how convenient and evennecessary the practice acto citigens, o in to the tengin os the ourneys which were lata in thos early days, andisponwhicho man might osten e able o mata codicil Whenhe could not mali a wili. An subsequently aster codiciis

his Men made by Labeo, obod doubte thei complete validi .

Not only a codiciis e made aster a Will, ut a mandyin intestate an create trusis is codiciis, though apinia says that codiciis executed hesore a illore invaliduntes confirme by a later Apres declaratio that theyshallie binding. ut a rescript of the Emperors Severus and Antoninus decides that the performanceis a trus imposed by codicil Writte hesore a Wil may in any case e demanded, is it appears that the testator ha no abandone the intendition expresse in them. An inheritanc canteitheri givennor ahen way by codiciis, nor, accordingly, canis Chil bedisinherite in his way sor, is it were ther ise, the law of wilis an os codiciis ould e consounded. y this it is meant that an inheritanc cannot directi heisive or talienaway is codicil sor indirectly by means os a trusi, ne can