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potest ita ut heres cogatur redimere eam et præstare vel, si non potest redimere, æstimationem ejus dare. Sed si talis res sit, cujus non est commercium, nec æstimatio ejus debetur, sicuti si campum Martium vel basilicam vel templa vel quæ publico usui destinata sunt, legaverit: nam nullius momenti legatum est. Quod autem diximus, alienam rem 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 est, 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.

his heir, but also the property of others. The heir is then obliged either to purchase and deliver it, or, if it cannot be bought, to give its value. But, if the thing given is not in its nature a subject of commerce, or purchasable, the heir is not bound to pay the value to the legatee; as if a man should bequeath the Campus Martius, a basilica, temples, or any of the things appropriated to public purposes, for such a legacy is of no effect. But when we say that a testator may give the goods of another as a legacy, we must be understood to mean, that this can only be done if the deceased knew that what he bequeathed belonged to another, and not if he was ignorant of it; since, if he had known it, he would not perhaps have left such a legacy. To this effect is a rescript of the Emperor Antoninus, which also decides that it is incumbent upon the plaintiff, that is, the legatee, to prove that the deceased knew that what he left belonged to another, not upon the heir to prove that the deceased did not know it, for the burden of proof always lies upon the person who brings the action.

GAI. ii. 202; D. xxx. 39. 7. 10; D. xxxi. 67. 8; C. vi. 37. 10 ; D. xxii. 3. 21.

A basilica was a building which was used as a court of law, and also as a resort of merchants and men of business.

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.

5. If a testator gives as a legacy anything in pledge to a creditor, the heir is bound to redeem it. But in this case, as in that of the property of another, the heir is not bound to redeem it, unless the deceased knew that the thing was pledged; and this the Emperors Severus and Antoninus have decided by a rescript. But when it has been the wish of the deceased that the legatee should redeem the thing, and he has expressly said so, the heir is not bound to redeem it.

D. xxx. 5. 7.

6. Si res aliena legata fuerit et ejus, vivo testatore, legatarius dominus factus fuerit, si quidem ex causa emptionis, ex testamento actione pretium consequi potest: si vero ex causa lucrativa, veluti ex donatione vel ex alia simili causa, agere non potest. Nam traditum est, duas lucrativas causas in eundem hominem et in eandem rem

6. If a thing belonging to another is given as a legacy, and becomes the property of the legatee in the lifetime of the testator, then, if it becomes so by purchase, the legatee may recover the value, by an action founded on the testament; but if the legatee obtained it by any way of clear gain to him, as by gift, or any similar mode, he cannot bring such an action, for it is a received

concurrere non posse. Hac ratione si ex duobus testamentis eadem res eidem debeatur, interest, utrum rem an æstimationem ex testamento consecutus est: nam si rem, agere non potest, quia habet eam ex causa lucrativa, si æstimationem, agere potest.

rule, that two modes of acquiring, each being one of clear gain, can never meet in the same person with regard to the same thing. If, therefore, the same thing be given by two testaments to the same person, it makes a difference, whether the legatee has obtained the thing itself, or the value of it, under the first, for, if he has already received the thing itself, he cannot bring an action, for he has received it by a mode of clear gain to him; but, if he has received the value only, he may bring an action.

D. xxx. 108; D. xliv. 7. 17; D. xxx. 34. 2.

It may be observed, that if a person acquired the subject of a legacy by a causa lucrativa during the lifetime of the testator, and the legacy was made, not in his own favour directly, but was given to his slave, or a descendant in his power, he could recover the value of the thing given from the heir. In such a case the two causæ lucrativa were not considered so to unite in one person as to violate the general rule, although, in fact, the result was the same as if the rule had been directly violated. (D. xxx. 108.)

In the beginning of this paragraph it is said that if the legatee acquired the thing during the lifetime of the testator by a causa lucrativa, he could not regain it or its value by legacy. The vivo testatore is merely an example; it would be the same if the legatee acquired the thing by a causa lucrativa at any time before receiving it by way of legacy.

7. Ea quoque res, quæ in rerum natura non est, si modo futura est, recte legatur, veluti fructus, qui in illo fundo nati erunt, aut quod ex illa ancilla natum erit.

7. A thing not in existence, but which one day will be in existence, may be properly given as a legacy, as, for instance, the fruits which shall grow on such a farm, or the child which shall be born of such a slave.

GAI. ii. 203.

8. Si eadem res duobus legata sit sive conjunctim sive disjunctim, si ambo perveniant ad legatum, scin; ditur inter eos legatum: si alter deficiat, quia aut spreverit legatum aut vivo testatore decesserit aut alio quolibet modo defecerit, totum ad collegatarium pertinet. Conjunctim autem legatur, veluti si quis dicat Titio et Seio hominem Stichum do lego:' disjunctim ita 'Titio hominem Stichum do lego, Seio Stichum do lego.' Sed et si expresserit eundem hominem Stichum,' æque disjunctim legatum intellegitur.

8. If the same thing is given as a legacy to two persons, either conjointly or separately, and both take the legacy, it is divided between them. But if either of the legatees fails to take it, either from refusing it or from dying in the lifetime of the testator, or from any other reason, the whole goes to his co-legatee. A legacy is given conjointly, if a testator says, 'I give as a legacy my slave Stichus to Titius and Seius:' but separately, if he says, 'I give as a legacy my slave Stichus to Titius; I give as a legacy my slave Stichus to Seius.' And even if the testator says, that he gives the same slave Stichus, yet the legacy is still taken to be given separately. GAI. ii. 199.

A legacy might be void originally, when it was said to be taken pro non scripto, i.e. as if it had never been inserted; or it might be valid originally, and yet before the rights of the legatee were fixed (i.e., to use the technical term (see note on paragr. 20), before the dies cedit) the legatee might die, or refuse the legacy, or become incapable to take, when the legacy was called irritum or destitutum; or the rights of the legatee might be fixed, but before the legacy was actually delivered over to him, it might be taken. away from him on account of something rendering him unworthy to receive it; the legacy was then called ereptitium (quæ ut indignis eripitur). If there were no co-legatees, the legacy, if ereptitium, went to the fiscus; in the two other cases the failure of the legacy was for the benefit of the heir. The legacies were burdens with which he might have been, but was not, charged.

But if there was a co-legatee the case was different. Co-legatees might be created, according to a division made by Paulus (D. 1. 16. 142), re, re et verbis, or verbis; re being equivalent to the disjunctim of the text, when the same gift was made separately to two or more persons; re et verbis, equivalent to the conjunctim of the text, when the same thing was given at once to two or more; and verbis, in which the joint legacy was only apparent, the gift being made at once to two or more, but their respective shares being assigned them, as lego Titio et Seio ex æquis partibus.'

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The rights of co-legatees were very different at different periods of Roman law. Originally the interest of the co-legatee was determined by the formula under which the legacy was given. If it was per vindicationem, the right to the property in the whole thing given passed to each legatee. They had to divide it between them, but each had a right, as against the heir, to claim the whole. If it was given per damnationem, no right to the property passed, but each legatee was a creditor of the heir in respect of the thing given, and a difference was made according as the thing was given conjunctim or disjunctim. In the former case, each of the co-legatees, if there were two, was entitled to half only, and if either could not take, his half remained in the inheritance for the benefit of the heir. If the legacy was given disjunctim, then each had a claim against the heir for the whole, and if one got the thing from the heir, the other could get its value. (GAI. ii, 205.) If the legacy was given sinendi modo, and the heir allowed either co-legatee to take the thing, he had done his duty, and the co-legatee got nothing. (GAI. ii. 215.) If the legacy was given per præceptionem, the effect as between co-legatees was the same as in the case of legacies given per vindicationem. (GAI. ii. 223.) Before the lex Papia Poppaa there was no such thing as accrual of legacies between colegatees; each legatee was entitled to the property in the whole | thing, or was creditor for the whole.

The lex Julia de maritandis ordinibus (B.c. 13) and the lex rhiqe Papia Poppaa (A.D. 9), which are usually spoken of as one law, lex Julia et Papia, introduced great changes in testamentary law:

the former to prevent unequal marriages, as of a senator with a liberta, and the latter to promote marriage and the birth of children. Two classes of persons, calibes and orbi, were affected with incapacities. They might be instituted or have legacies given them, i.e. the institution or gift was not void, but the benefit derivable from it was taken away from them and given to some one else. By calebs was meant a man between the ages of twenty and sixty, or a woman between the ages of twenty and fifty, who had not been married or was a widower or widow. Men had a hundred days from the death of the testator in which they might marry, and thus avoid the penalties attaching to celibacy, and women were allowed two years from the death of a husband, and eighteen months from the time of divorce, in which to remarry. By orbus was meant a man between twenty-five and sixty, and a woman between twenty and fifty who had not a child living at the time of the accrual of the right to take under the testament. Adoptive children could not be counted, a senatusconsultum having been passed to exclude them. The lex Papia fixed the time of accrual of rights under a testament, the dies cedit, as it was technically termed, at the date of the opening of the testament, instead of the date of the testator's death, which had previously been the legal date.

The calebs lost all, and the orbus one-half, of what was given him, and this lapsed portion (caducum, quasi ceciderit ab eo, ULP. Reg. 17. 1) was given to some one else. These caduca produced by the person to whom they were given not being capable of taking them were not the only interests dealt with by the lex Papia. If a gift was originally invalid, as if it was given to a person already dead at the date when the testament was made, the gift was looked on as if it had never been made at all, pro non scripto. With such gifts the lex Papia had nothing to do. But a gift might have been valid originally and then become invalid, as if, e.g., it had been given to a person who died after the making of the testament and before the death of the testator. The old law prescribed how they should be treated, and gave them by accrual to co-heirs if given to an heir, or allowed them to fall in as part of the inheritance if given to a legatee. Such vacant things, however, were affected by the lex Papia. They were said to be in causa caduci; and the caduca and the things in causa caduci devolved together to those who had the jus caduca vindicandi.

In the first place there were certain excepted persons, viz. ascendants or descendants of the testator up to the third degree, who were not affected by the lex Papia at all. They lost nothing if they were calibes or orbi; they took all that the old law would have given them, although calibes or orbi. They were said to be solidi capaces, capable of taking all the testament gave them. But they did not take caduca under the special provisions of the lex Papia, for they were only left in the position they held apart from the law, jus antiquum (ULP. Reg. 18); therefore if not patres they could only get caduca by being made substituted heirs. (See note on Title 15.)

Apart from them it was the patres, i.e. persons having a husband or wife and one child living, mentioned in the testament, who took the caduca and the things in causa caduci, heirs taking before legatees. If there were no persons answering to this description, the ærarium, or treasury of the people, as opposed to the fiscus, or treasury of the emperor, took them. But the object of the law was not to get money for the treasury, but to reward marriage and the birth of children, and this is why testators were allowed to substitute heirs (who, of course, unless near relations or patres, could not take) so as to prevent the ærarium taking.

Where there were co-legatees, the caduca of co-legatees were given, in the first place, to co-legatees who were patres; but it was only those joined re et verbis, and those joined verbis, who had to be considered for this purpose. For those joined re were each entitled to the whole thing, and so any one co-legatee capable of taking was entitled to the whole by the form of the gift. If there were no co-legatees who were patres, the legacies went to the heirs who were patres. If there were none, then to legatees generally who had children. If none had children, then to the ærarium. (GAI. ii. 206, 207.) Any legacy given by the lex Papia Poppaa might be refused: if accepted, it passed with all the burdens attaching to it. Caduca cum suo onere fiunt. (ULP. Reg. 17. 2.) By a constitution of Caracalla (ULP. Reg. 17. 2), all caduca were given to the fiscus, the distinction between the ærarium and the fiscus having ceased to exist, and no legatee or heir any longer profited by the failure of legacies under the lex Papia Poppaa.

Constantine abolished the law of incapacity arising from celibacy. (Cod. viii. 58.) And Justinian did away with all the law of caduca springing out of the lex Papia Poppaa. The distinction between the kinds of legacies being no longer in existence, new provisions on the subject were made. (C. vi. 51. 11.) The right to bring a real action was to attach to every legacy; and colegatees were placed in the position they would have occupied before the lex Papia Poppaa; but it was enacted that in every case of a gift to a co-legatee failing, an accrual should take place to the other, or others joined with him. If they were joined re, the accrual was said to be obligatory on those conjoined; but the burdens of the legacy did not pass with it. Really there was no accrual at all; the co-legatees were in the same position as if the gift had only been made to one. If the co-legatees were joined re et verbis, the accrual was voluntary, but the burdens of the legacy passed with it. The co-legatees were looked upon as having really distinct interests, and, therefore, if the gift to one failed, the others had something to receive. But, at the same time, they took the share they gained, with all its burdens; it might, for instance, be encumbered with a fideicommissum. Legatees joined only verbis were not, properly speaking, co-legatees at all, and Justinian does not permit any accrual between them. There was thus a clear distinction made between legacies given jointly to legatees re et verbis and

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