herede enim gerere est pro domino gerere: veteres enim heredes pro dominis appellabant. Sicut autem nuda voluntate extraneus heres fit: ita et contraria destinatione statim ab hereditate repellitur'. Eum qui mutus vel surdus natus est, vel postea factus, nihil prohibet pro herede gerere et acquirere sibi hereditatem, si tamen intellegit quod agitur.

TIT. XX. DE LEGATIS.

Post haec videamus de legatis. Quae pars iuris extra propositam quidem materiam videtur; nam loquimur de his iuris

as owner: since the ancients employed the word "heir" to denote owner." But just as an extraneous heir makes himself heir by mere intention, so by a contrary determination he is immediately excluded from the inheritance'. There is nothing to prevent a dumb or deaf person, who was born such or became such afterwards, from acting as heir and acquiring for himself an inheritance, provided only he understands what is done.

TIT. XX. ON LEGACIES.

Next let us consider legacies. Which portion of law seems indeed beyond the topic at present under review, for we are speaking of those legal methods whereby things are acquired

figuris quibus per universitatem res nobis acquiruntur. sed cum omnino de testamentis deque heredibus qui testamento instituuntur locuti sumus, non sine causa sequenti loco potest haec iuris materia tractari.

1. Legatum itaque est donatio quaedam a defuncto relicta'. 2. Sed olim quidem erant legatorum genera quatuor: per vindicationem, per damnationem, sinendi modo, per praeceptionem; et certa quaedam verba cuique generi legatorum assignata erant per quae singula genera legatorum significabantur. sed ex constitutionibus divorum Principum sollemnitas huiusmodi verborum penitus sublata est3. nostra autem constitutio⭑

for us in the aggregate: but as we have discussed all points relating to testaments and heirs appointed in testaments, this matter of law may with good reason be discussed in the next place.

I. A legacy then is a gift of a certain kind' left by a deceased person. 2. And formerly there were four classes of legacies: namely per vindicationem, per damnationem, sinendi modo and per praeceptionem; certain special wordings being appropriated to each class of legacy, by which the varieties were distinguished. But by constitutions of former emperors formality of such kind in the wording has been abolished: and a constitution of our own* (which we have drawn up with

1 A legacy is a gift bestowed in imperative form, whereas a fidei commissum is a gift left by way of request: see Ulpian XXIV. 1; the command or request, as the case may be, being in Justinian's days directed to the heir. Under the old system of legacies, there was one variety at any rate, viz. legata per vindicationem, where the command was issued to the legatee.

2 The wording of the various kinds of legacy is given in full by Gaius II. 192-217, to which passage we therefore refer the reader. The statements of Gaius are also arranged in a tabulated form in App. (I) to our edition of that author.

3 The Senatusconsultum Nero

nianum, referred to by Gaius (II. 197, 218), and Ulpian (XXIV. 11), had enacted "ut quod minus aptis verbis legatum est, perinde sit ac si optimo jure legatum esset." The varieties of legacy were not thereby abolished, but if the intention of the testator could be gathered from the context, that rather than the actual words employed decided which species was intended: and in doubtful cases the legacy would be usually treated as per damnationem, that being the most effective form. Constantine, Constantius and Constans, in an edict quoted in C. 6. 37. 21, legislated to the same effect.

4 C. 6. 43. I. The personal ac

tion was in olden times the method for recovering a legacy per damnatio

quam cum magna fecimus lucubratione, defunctorum voluntates validiores esse cupientes, et non verbis, sed voluntatibus eorum faventes, disposuit, ut omnibus legatis una sit natura, et quibuscumque verbis aliquid derelictum sit, liceat legatariis id persequi, non solum per actiones personales, sed etiam per in rem et per hypothecariam: cuius constitutionis perpensum modum ex ipsius tenore perfectissime accipere possibile est. (3.) Sed non usque ad eam constitutionem standum esse existimavimus. cum enim antiquitatem invenimus legata quidem stricte concludentem, fideicommissis autem quae ex voluntate magis descendebant defunctorum' pinguiorem naturam indulgentem: necessarium esse duximus omnia legata fideicommissis exaequare, ut nulla sit inter ea differentia, sed quod deest legatis, hoc repleatur ex natura fideicommissorum,

great care, because of our desire that the intentions of the dead should be chiefly regarded, and our preference for such intentions rather than the wording,) has appointed that all legacies shall be of one nature, and that whatever be the form of words in which anything is left, the legatee may proceed for it either by personal action, or by action real or hypothecary. The wellcontrived plan of this constitution may be understood most completely by reference to its actual provisions. 3. But we have not thought it right to stop at this constitution: for finding that the ancients strictly limited legacies, but allowed to trusts a more unfettered character, because they spring more immediately from the wishes of the deceased'; we have judged it fitting to put all legacies on a level with trusts, so that there is now no difference between them; but whatever defect there may be in legacies is supplied from their character as trusts, and the

nem, or sinendi modo; the real action was the proper process for a legacy per vindicationem. An actio hypothecaria in regard of a legacy seems to have been a novel remedy which Justinian introduced into his constitution, besides allowing either of the older actions to be brought in every case. A legacy per praeceptionem had always been pursued by the peculiar action styled judicium familiae erciscundae: and possibly this

remedy still applied where a legacy was left to a joint-heir in addition to his portion of the inheritance. The distinction between actions in rem and in personam is stated in the opening paragraphs of Iv. 6:-and the actio quasi-serviana or hypothecaria is treated of in IV. 6. 7.

1 "In fideicommissis voluntas magis quam verba plerumque intuenda est." C. 6. 42. 16.

et si quid amplius est in legatis, per hoc crescat fideicommissi natura'. sed ne in primis legum cunabulis, permixte de his exponendo, studiosis adolescentibus quandam introducamus difficultatem, operae pretium esse duximus interim separatim prius de legatis, et postea de fideicommissis tractare, ut natura utriusque iuris cognita facile possint permixtionem eorum eruditi subtilioribus auribus accipere.

4. Non solum autem testatoris vel heredis res, sed et aliena legari potest: ita ut heres cogatur redimere eam et praestare, vel si non potest redimere, aestimationem eius dare3. sed si talis res sit cuius non est commercium3, nec aestimatio eius debetur, sicuti si campum Martium, vel basilicas, vel templa, vel quae publico usui destinata sunt legaverit: nam nullius momenti legatum est. Quod autem diximus alienam rem

nature of trusts is improved by any advantage there may be in (regarding them as) legacies'. But that we may put no difficulty in the way of students by treating of these subjects conjointly at the commencement of their legal course, we have thought it worth while for the present to treat first of legacies, and afterwards of trusts, so that after learning the nature of cach, the students may with ears more critical through instruction readily understand the fusion of the two.

4. It is allowable then for a testator to bequeath not only his own property or that of his heir, but also that of third parties: in which case his heir is bound to purchase and deliver it: or to pay its value, if he be unable to purchase it. But if the article be such that there is no power of dealing with it, the heir is not even bound to pay its value; for instance if any one bequeath the Campus Martius, public buildings, temples, or any thing intended for the use of the community; for the legacy is of no account. And when we said that the property of a third party could be given

1 Trusts under the old law could often be enforced when legacies could not; and on the other hand, certain convenient forms of action applied to the recovery of legacies but not to the recovery of trusts. Gaius II. 278.

2 Gaius II. 202. The heir could pay the value instead of the article

in case the owner demanded an exorbitant price, as well as when he flatly refused to sell. D. 30. 1. 71. 3, D. 32. I. 14. 2.

3 Res extra commercium include res communes, res publicae, res universitatis, res nullius: as to which see II. I.

posse legari, ita intellegendum est, si defunctus sciebat alienam rem esse, non et si ignorabat: forsitan enim, si scisset alienam, non legasset. et ita divus Pius rescripsit, et verius esse ipsum qui agit, id est legatarium, probare oportere scisse alienam rem legare defunctum, non heredem probare oportere ignorasse alienam; quia semper necessitas probandi incumbit illi qui agit'. (5.) Sed et si rem obligatam creditori aliquis legaverit, necesse habet heres luere. et hoc quoque casu idem placet quod in re aliena, ut ita demum luere necesse habeat heres, si sciebat defunctus rem obligatam esse: et ita divi Severus et Antoninus rescripserunt. si tamen defunctus voluit legatarium luere et hoc expressit, non debet heres eam luere. (6.) Si res aliena legata fuerit et eius vivo testatore legatarius dominus factus fuerit: si quidem ex causa emptionis, ex testamento actione pretium consequi potest: si vero ex causa lucrativa, veluti

as a legacy, we must be understood to mean if the deceased knew that it belonged to the third party, and not if he was unaware of the fact: for perhaps if he had known it belonged to a third party, he would not have bequeathed it. To this effect the late emperor Pius issued a rescript: "it is also correct to state that the plaintiff, that is to say the legatee, is bound to prove that the deceased knew that he was bequeathing another person's property, and the heir is not bound to prove that he was ignorant of its being another's; for the necessity of proof is always incumbent on a plaintiff'." 5. Again, if any one

bequeath an article which has been given in pledge to a creditor, the heir is bound to redeem it. And in this case too the rule is the same as it is with the property of a third party, viz. that the heir is only bound to redeem, supposing the deceased knew that the article was pledged: to which effect the emperors Severus and Antoninus issued a rescript. If, however, the deceased wished the legatee to redeem the pledge, and so stated, the heir is under no obligation to redeem. 6. If the property of another person be bequeathed, and the legatee become owner of it in the testator's lifetime, then, if he acquired it by purchase, he can recover its price by action: but

1 A maxim of Paulus, quoted in D. 22. 3. 9.