CASE 208: The Gargilian Farm
D. 32.41.3 (Scaevola libro vicesimo secundo Digestorum)
Felicissimo et Felicissimae, quibus libertatem dederat, fundum Gargilianum legavit cum casa, et alio capite Titio filio, quem ex parte quarta heredem scripserat, praelegaverat in haec verba: Titi fili, hoc amplius de medio sumito legata mea, quae mihi tam pater tuus Praesens quam Coelius lustus frater patris reliquerunt'.
quaesitum est, cum fundus Gargilianus testatrici a marito eius, id est a patre Titii filii legatus sit, cui fundus ex causa fideicommissi debeatur, utrum Titio filio tantum an Felicissimo et Felicissimae an tribus. respondit non esse verisimile eam, quae nihil aliud Felicissimo et Felicissimae nisi haec quae specialiter legavit, ad filium, cui et hereditatis suae partem reliquit, legatum generali sermone transferre voluisse.(Scaevola in the twenty-second book of his Digests)
To Felicissimus and Felicissima, whom she had manumitted, a woman legated the Gargilian farm and its farmhouse. In another clause, she gave to her son Titius, whom she had instituted heir for a quarter of her estate, an advance legacy in these words: “Titius, my son, take from the estate, in addition, the legacies that your father Praesens as well as your father’s brother Coelius Justus left to me.” The Gargilian farm had been left as a legacy to the testator by her husband, that is, the father of her son Titius. Question was raised as to whom the farm was due on the basis of a fideicommissum, whether to Titius or to Felicissimus and Felicissima or to all three.
He (Scaevola) responded that it was unlikely that she, who had legated nothing to Felicissimus and Felicissima except what she specified, had intended by a general proviso to transfer this as a legacy to her son, to whom she had also left a share of her estate.
1. Pension Plan. When testators manumitted slaves in their wills, they often provided material support through an annuity or, as here, a piece of property.
Why should it matter that the testator left nothing else to Felicissimus and Felicissima?2. Advance Legacy. The wording of the case shows that the testator granted her son Titius a legacy that he was to take from the estate before it was divided among the heirs (a praelegatum). Does this not give him precedence over the claim of the two freedpersons? Compare Case 204. Try to reconstruct Titius's argument; why did he think that his mothers bequest had nullified the legacy to her freedmen? He seems to have referred to a fideicommissum whereby her husband had obliged the testator to transfer the Gargilian farm to her son. Why does the jurist seem to dismiss its relevance to the immediate question? Does his position seem reasonable? Note that Scaevola may be confusing the category of legacy with that of fideicommissum.
3. Generalizing Proviso. What does Scaevola imply in his response? Does he imply that the testator had probably just forgotten or overlooked the source of the Gargilian farm?
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