2.1.257 to 2.1.259

(219) Likewise, our preceptors are of the opinion that a bequest made in this manner can be recovered by the party to whom it was bequeathed, in no other way than by the action for partition of the estate, that is to say, for the purpose of dividing the same; for it is part of the duty of the judge to decide with reference to the bequest of a preferred legacy. (220) From this we understand that, according to the opinion of our preceptors, nothing can be left as a preferred legacy except what belongs to the testator; for no other property than that forming part of an estate can become the subject of this action. Hence, if a testator should, in this manner, bequeath property which is not his own, the bequest will be void by the Civil Law, but will be rendered valid by the Decree of the Senate. In one instance, however, they admit that property belonging to another may be left as a preferred legacy, as, for instance, where anyone bequeaths property which he has transferred to his creditors by a fiduciary sale; for they hold that it is the duty of the judge to compel the co-heirs to release the property from liability by payment of the debt, so that he to whom it has been bequeathed may be able to obtain it as a preferred legacy. (221) Authorities of the other school are of the opinion that a preferred legacy may be bequeathed even to a stranger, just as if it were written in the will as follows: "Let Titius take my slave Stichus," and that the addition "as a preferred legacy" is superfluous; and therefore that the legacy would appear to be left by claim; and this opinion is said to be confirmed by a Constitution of the Divine Hadrian.