2.1.247 to 2.1.252

(209) We make a bequest by permission as follows: "Let my heir be condemned to permit Lucius Titius to take and to have my slave as his own." (210) This kind of a legacy has a broader application than one bequeathed by claim, but a narrower one than a bequest by condemnation, for in this way a testator can legally bequeath not only his own property, as well as that of his heirs; while by claim he can only bequeath his own property, and by condemnation he can bequeath any property belonging to any stranger whomsoever. (211) If the property bequeathed belonged either to the testator himself or to his heirs at the time of his death, it is clear that the legacy is valid, even if at the time of making the will the property belonged to neither of them. (212) If, after the death of the testator, the property vests in the heir, the question arises whether the legacy is valid; and most authorities hold that it is not. What then is the law? Although anyone can bequeath property which never belonged to the testator, and never after his death belonged to his heir, by the Decree of the Senate promulgated during the reign of Nero, all bequests are considered as having been left by condemnation. (213) Just as property left by condemnation does not immediately belong to the legatee as soon as the estate has been entered upon, but remains the property of the heir until he transfers it to the legatee, either by delivery, sale, or surrender in court; so, in the form of bequest by permission the same rule applies; and therefore a personal action is also brought in the name of a legatee of this kind to recover or enforce, "Whatever the heir is required by the will to give or to perform." (214) Nevertheless, some authorities are of the opinion that an heir is not bound by this kind of a legacy, either to sell the property, surrender it in court, or deliver it; but that it will be sufficient for him to permit the legatee to take the property, because the testator did not order him to do anything else than to grant him permission, that is to say, to allow the legatee to have it for himself.