2.1.253 to 2.1.256

(215) A more important distinction arises with reference to a legacy of this description, where the same property is left separately to two or more persons; for some authorities hold that each one is entitled to the whole, as where a bequest is left by claim; and others think that the condition of the first occupant is the better one, because in this kind of a legacy the heir is condemned to permit the legatee to have the property, and the consequence is, that if he allows the first one to take it, and he does so, he will be secure against anyone who afterwards demands the legacy from him; for the reason that he neither has the property so as to permit it to be taken by the second claimant, nor was he guilty of fraud in order to avoid having possession of the same. (216) We bequeath property by a preferred legacy as follows: "Let Lucius Titius have my slave Stichus as a preferred legacy." (217) Our preceptors, however, hold that property cannot be bequeathed in this way to anyone except to a person who has been appointed heir to a certain share of an estate, for to take as a preferred legatee is to receive something more than what he is entitled to as heir; and he only can do so who has been appointed heir to a certain part of the estate, and is entitled to it as a preferred legacy over and above his share of the said estate. (218) Therefore, if a legacy of this kind is bequeathed to a stranger, it will be void, and to such an extent is this true that Sabinus was of the opinion that the defect could not even be remedied by the Decree of the Senate of Nero; for he says that by this decree only those faults are corrected which render a bequest invalid under the Civil Law, and not such as have reference to the person of the legatee. It was, however, held by Julian and Sextus that, even in this instance, the legacy was rendered valid by the Decree of the Senate, for it might happen, in a case of this kind, that by the words employed a legacy would be void at civil law; and hence it is clear that a proper bequest could be made to the same person by other words, for example, by claim, by condemnation, or by permission, for then the legacy is not valid on account of the defect in the person of the legatee, as when it is bequeathed to one to whom it can, under no circumstances, be left, as for instance, to an alien who cannot receive anything by a will; in which case it is evident that the Decree of the Senate does not apply.