2.1.243 to 2.1.246

(205) Another distinction exists between a bequest by claim and one by condemnation; for where property is left to two or more persons by condemnation, and this is done jointly, each is entitled to a certain share, as in the case where a legacy is bequeathed by claim; but if the bequest is made severally the entire amount is due to each legatee, and the result is that the heir must deliver the article itself to one and pay its value to another. In a joint bequest, a share which has lapsed does not belong to the co-legatee, but remains a part of the estate. (206) What we have stated with reference to the lapsed share of a legacy bequeathed by condemnation remaining as a part of the estate, and where it is left as a claim, accruing to the co-legatee, we should observe was established by the Civil Law before the enactment of the Lex Papia ; but after the Lex Papia a lapsed share of the legacy is considered to have no owner, and belongs to those who are mentioned in the will as having children. (207) And although heirs who have children have the best right to a legacy which is considered to have no owner, and heirs who have no children have the next best right to the same; still, it is stated by the Lex Papia itself that a co-legatee who has children shall be preferred to heirs, even though they also may have them. (208) It is held by the greater number of authorities with reference to the rights conferred upon joint legatees by the Lex Papia ,that it makes no difference whether the legacy is bequeathed by claim or by condemnation.