2.1.234 to 2.1.238

(197) This, however, is the rule only under the Civil Law. Subsequently a Decree of the Senate was enacted at the instance of the Emperor Nero, by which it was provided that if a testator bequeathed anything which had never belonged to him, the legacy would be valid just as if it had been left in the most approved manner, "the most approved manner" meaning where it is left by condemnation, m which way property belonging to another can be bequeathed, as will appear hereafter. (198) If anyone should bequeath property belonging to him, and, after having made his will, should alienate it. the greater number of authorities hold that the legacy is not only void under the Civil Law, but that it does not become valid by the Decree of the Senate. This opinion was promulgated for the reason that even if anyone should bequeath his property by condemnation, and afterwards should alienate it, many authorities think that although, by strict law, the legacy is still due, if the legatee demands it, he can be barred by an exception on the ground of fraud as claiming something contrary to the intention of the deceased. (199) It has been established that if the same property is bequeathed by way of claim to two or more persons, whether jointly or severally, and all of them demand the legacy, each of them is only entitled to a certain portion of the same; and if any share is rejected it will vest in the co-legatee. A legacy bequeathed jointly as follows: "I do give and bequeath my slave Stichus to Titius and Seius"; severally, as follows: "I do give and bequeath my slave Stichus to Titius," "I do give and bequeath the same slave to Seius." (200) Where a legacy is bequeathed as a claim, conditionally, the question arises to whom does it belong while the condition is pending? Our preceptors hold that it belongs to the heirs, as in the case of a slave to be conditionally free, that is to say, a slave who has been ordered to be free by a will under a certain condition, and who, it is established, in the meantime belongs to the heir. The authorities of the other school however, think, that the property does not belong to anyone in the meantime; and they assert that this rule applies even more forcibly in the case where a legacy has been bequeathed absolutely, before the legatee has accepted it.