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ditis liber esse jussus est, et exeo reliqua inferre.

slave, his peculium will pass to him of course, if not excepted; and such is the rescript of the emperors SEverus and ANToni NUs ; who have also declared, that when a peculium is bequeathed to a slave, it does not seem intended that he should have the right of demanding what he may have expended for the use of his master. The same princes have farther declared, that a slave seems intitled to his peculium, if his liberty be left him, on condition, that he will bring in his accounts, and supply any deficiency out of the profits of his peculium.

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aliis rebus optare legatarium jusserat, habebat olimi in se conditionem: et ideò, nisi ipse legatarius vivus optasset, ad hæredem legatum non transmittebat. Sed ex constitutione mostrâ et hoc in meliorem statum reformatum est, et data est licentia hæredi legatarii optare servum, licèt vivus legatarius hoc non fecerit. Et, diligentiore tractuta habito, hoc in nostrâ constitutione additum est, sivè plures legatarii extiterint, quibus optio relicta est, et dissentiant in corpore eligendo ; sivè unius legatarii plures hæredes sint, et inter se circa optandum dissentiant, alio aliud corpus eligere cupiente, ne pereat legatum, (quod plerique prudentium contra benevolentiam ' introducebant,) fortunam esse hujus optionis judicem, et fortè hoc esse dirimendum, ut, ad quem sors pervenerit, illus sententia in optione praecelîat.

any slave, from among his slaves, or any article from a certain class of things ; and such legacy was formerly presumed to imply this condition, that, ifthe legatee in his ijfetime did not make his election, the legacy could not be transmitted to his heir. But, by our constitution, this presumed condition is now taken away, and the heir of the legatee is permitted to elect, although the legatee in his life-time hath negleeted to de it. And, upon further consideration, we have added to our constitution, that, if there be several legatees, to whom an optiom is left, and they differ in their choice, or if there be many heirs of one legatee, of divers. sentiments, then Fortune must be the judge : for, lest the loss of the legaey should ensue, (which the generality of ancient lawyers, contrary to all benevolence, would have permitted,) we have decreed, that such dissensions should be decided by lot; so that his option, to whom the lot falls, shall be preferred.

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olim relinqui concessum erat; nam • in trust, should be bequeathed to inJus antiquum de posthumo alieno.

ne miles quidem incertæ personae poterat relinquere, ut Divus Hadrianus rescripsit. Incerta autem persona videbatur, quam incertâ opi

certain persons ; this vvas even prohibited to a soldier, by the emperor Adrian. An incertain person is one whom the testator has figured ii. nione animo suo testator subjiciebat, veluti, si quisita dicat, quicumque filio meo filiam suam in matrianonium dederit, ei hatres meus illum fundum data. Illud quoque, quod

iis relinquebatur, qui post testamen

tum scriptum primi consules designati essent, acque incertae personae legari videbatur: et denique multae aliae hujusmodi species sunt. Libertas quoque incertae persona, non widebatur posse dari, quia placebat, nominatim servos liberari. Sub certā vero demonstratione, id est, ex certis personis, incertae personae rectè legabatur: veluti, ex cognatis meis, qui nunc sunt, si quis filiam meam uxorem duxerit, ei hatres meus illam rem data. Incertis autem personis legata vel fidei-commissa relicta, et per errorem soluta, repeti non posse, sacris constitutionibus Cautum erat.

* } XXVI. Posthumo quoque alieno inutilitër antea legabatur. Est autem alienus posthumus, qui natus inter suos haredes testatori futurus non est: ideðque, ex emancipato filio conceptus nepos, extraneus erat posthumus avo.

his imagination, without any determinate knowledge; as if he should say : whoever shall give his daughter in marriage to my son, to that, person let my heir deliver up such a piece of ground. And, if he load. made a bequest to the first consuls appointed after his testament was written, this also would have been a bequest to incertain persons ; and there are other similar examples. I’reedom likewise could not be conferred upon an incertain person; for it was necessary, that all slaves should be nominally infranchised: but a legacy might have been given to an incertain person under a certain demonstration ; or, in other words, to an incertain person, being. one of a number of persons certain : as, I direct my heir to give such a thing to any one of my present collateral relations, who shall take my daughter in marriage. But, if a legacy or fiduciary gift had been paid to incertain persons by mistake, it was provided by the constitutions, that such persons were not compellable to refund.

! § 26. Formerly a legacy could not enure to a posthumous strangers that is, to one who, if he had been born before the death of the testator, could not have been numbered among

- his proper heirs ; and of consequence

a posthumous grandson, by an emancipated son, was a posthumous stranger in regard to his grandfather.

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meum vernam do, lego. Licet enim non verna, sed emptus sit, si tamen de servo constat, utile est legatum. Et convenientèr, si ita demonstraverit, Stichum servum, quem a Seio emi, sitdue abalio emptus, utile est legatum, side servo constat.

quest thus worded t I give and be. queath Stichus my slave, who was born in my family: in this case, although Stichus was not born in the family, but bought, yet, if there be certainty of his person, the legacy is valid. And if a testator should write ; I bequeath Stichus my slave, whom I bought of Seius; vet, although bought of another, the legacy would be good, if no doubt existed as to the person of Stichus.

De falsa causa adjecta. o

§ XXXI. Longé magislegato falsa causa adjecta non nocet : veluti cum quisita dixerit: Titio, quia me absente negotia mea curavit, Stichum do, lego; vel ita, Titio, quia patrocinio ejus, capitali crimine liberatus sum, Stichum do, lego. Licêt enim neque negotia testatoris unquam gesserit Titius, neque patrocinio ejus liberatus sit, legatum tamen valet. Sed, si conditionalitër enunciata fuerit causa, aliud juris est; veluti hoc modo, Titio, si negotia mea curaverit, fundum meum do, lego.

De servo § XXXII. An servo haredis recte legemus, quaeritur: et constat, purè inutilitër legari, nec quicquam proficere, si vivo testatore de potestate haeredis exierit: quia, quod inutile foret legatum, si statim post

§ 31. A fortiori a legacy is not rendered less valid, although a false reason be assigned for bequeathing it: as if a testator should say: I give my slave STIchus to TITIUs, because he took care of my affairs in my absence: or, because I was acquitted upon a capital accusation, by his protection. For although Titius had never taken care of the affairs of the deceased, and although the testator was never thus acquitted by means of Titius, the legacy will be good. But if the bequest had been conditional, as I give to TITIUs, such a piece of ground, if it shall appear, that he hath taken proper care of my affairs, then the law would be different.

haeredis. § 32. It is doubted, whether a testator can bequeath to the slave of his heir ; and it is settled that such a legacy, would be of no avail, although the slaves should be freed from the power of the heir in the life-time of

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