THE DIGEST OR PANDECTS. BOOK VII.
TITLE I. CONCERNING USUFRUCT AND ITS USE AND ENJOYMENT.
1. Paulus, On Vitellius, Book HI.
Usufruct is the right to use and enjoy the property of others, at the same time preserving intact the substance of the same.
2. Celsus, Digest, Book XVIII.
For usufruct is a right in the material part of a thing, so that, if it is removed, the usufruct itself must be removed also.
3. Gaius, Diurnal, or Golden Matters, Book II.
An usufruct can be created in any real property by means of a legacy, so that the heir may be directed to transfer the usufruct to some person; and he is understood to transfer it if he conducts the legatee upon the land or permits him to enjoy or use the same. Where any one wishes to create an usufruct, he can do so by means of agreements and stipulations, without making a will.
(1) An usufruct may be created not only with reference to land and buildings but also with reference to slaves, beasts of burden, and other property.
(2) In order, however, that the mere ownership may not become absolutely worthless on account of the perpetual existence of the usufruct, it has been decided that the usufruct may be extinguished in various ways, and revert to the mere ownership.
(3) Moreover, in whatever way an usufruct is created and terminated, mere use can in the same way be created and terminated.
4. Paulus, On the Edict, Book II.
In many instances usufruct is a part of the ownership and stands by itself, since it can be granted immediately, or from a certain date.
5. Papinianus, Questions, Book VII.
An usufruct can, in the beginning, be created with reference to a share of property whether it be divided or undivided, and it can also be lost by lapse of time fixed by law; and on the same principle it can be diminished by the operation of the Lex Falcidia. Where, however, the party who promised an usufruct dies, the obligation to grant the same is divided in proportion to the shares of the estate; and if it must be granted in land held in common, and one of the owners is defendant in a suit, the transfer shall be made in proportion to the share of the said defendant.
6. Gaius, On the Provincial Edict, Book VII.
An usufruct may be created in several ways; for instance it may be bequeathed as a legacy. The mere ownership of the property can be left by way of legacy, and the usufruct be reserved, so that the usufruct will remain for the heir.
(1) An usufruct may be created also by an action for the partition of an estate, or by one for the division of property held in common, where the court adjudges the mere ownership to one party and the usufruct to another.
(2) An usufruct is, moreover, acquired for us not only through ourselves, but also through persons whom we have under our control.
(3) There is nothing to prevent my slave being appointed an heir, and the bare ownership be left as a legacy, the usufruct being reserved.
7. Ulpianus, On Sabinus, Book XVII.
Where an usufruct is bequeathed as a legacy, the entire profits of the property belong to the usufructuary. An usufruct of either real or personal property may be bequeathed.
(1) When that of real property is bequeathed, as for instance, where the usufruct of a house is left, all income therefrom belongs to the usufructuary; and also whatever is derived from buildings, enclosures, and the other things which appertain to the house. Wherefore, it has been established that an usufructuary can be placed in possession of an adjoining building, with a view to the prevention of threatened injury; and he can retain possession of the said building as owner, if the other party persists in not furnishing security; nor will he lose anything when the usufruct is terminated. On this principle, Labeo states that the owner of property has no right to raise his building if you are unwilling; as, where the usufruct of unoccupied ground has been bequeathed, he cannot erect a house thereon; which opinion I think to be correct.
(2) Therefore, since all the produce of the property belongs to the usufructuary, he can, as Celsus states in the Eighteenth Book of the Digest, be compelled by application to the court to repair the house, only so far, however, as to keep it in good condition, but if any of it should be destroyed through age, neither one of the parties can be compelled to repair it; still, if the heir should do so, he must permit the usufructuary to use it; wherefore Celsus asks to what an extent
must it be kept in repair? If any portions are destroyed by age he cannot be compelled to repair them, and therefore he is only liable for moderate repairs, since as the usufruct is left to him, he assumes other burdens also, as for instance, taxes, tribute, rent, or a provision for maintenance charged upon the property; and this Marcellus stated in the Thirteenth Book.
(3) Cassius also says in the Eighth Book of the Civil Law that an usufructuary can be compelled to make repairs by applying to the court, just as he is obliged to plant trees; and Aristo states in a note that this is correct. Neratius also says in the Fourth Book of Parchments, that an usufructuary cannot be prohibited from making repairs, for the same reason that he cannot be prevented from plowing or cultivating the soil; and not only can he make necessary repairs, but also he may make improvements for the purpose of enjoyment, as stucco-work, mosaic pavements, and things of this kind; but he cannot enlarge the buildings, or remove anything from them which is useful:
8. The Same, On the Edict, Book XL.
Even though his intention is to put something better in its place, and this opinion is the true one.
9. The Same, On Sabinus, Book XVII.
Moreover, where the usufruct of land has been bequeathed, whatever is derived from the land and whatever can be collected therefrom, is included in the profits which belong to the legatee, on the condition, however, that he makes use of it as a good citizen would do; and indeed, Celsus states in the Eighteenth Book of the Digest, that he can be compelled to cultivate the land in a suitable manner.
(1) If there are bees on the land, the usufruct of them also belongs to him.
(2) But where the land contains stone quarries, and the usufructuary desires to cut stone, or it contains chalk or sand pits; Sabinus says he has a right to make use of all these, just as a thrifty owner would do; which I think to be the correct opinion.
(3) Even where these quarries have been discovered after the bequest of the usufruct, when the usufruct of the entire field and not certain parts of the same were left, they are included in the legacy.
(4) Intimately connected with this is a question which has often been treated of with respect to accessions, made to property; and it has been established that the usufruct of alluvial soil also belongs to the usufructuary. But where an island appears in a river opposite a tract of land, Pegasus says that the usufruct of it does not belong to the usufructuary of the adjoining land, although it is an accession to the property; for it is, as it were, a peculiar tract of real-estate to whose usufruct you are not entitled. This opinion is not unreasonable, for where the increase is not noticeable the usufruct is increased, but where it appears separately, it does not contribute to the benefit of the usufructuary.
(5) Cassius states in the Eighth Book of the Civil Law that the proceeds obtained from the capture of birds and game belong to the usufructuary, and therefore those from fishing do also.
(6) I am of the opinion that the yield of a nursery also belongs to the usufructuary, so that he also has the right to sell and to plant; but he is obliged to have the bed always prepared, and to renew it for the purpose of replanting the same, as a kind of implement to be employed for the benefit of the land; so that, when the usufruct is terminated it may be restored to the owner.
(7) He is likewise entitled to what this implement for the good of the land produces, but he has not the power to sell it; for if the usufruct of the land was bequeathed, and there is a field where the owner was accustomed to obtain stakes, osiers, or reeds for the use of the land, the usufruct of which was bequeathed; I am of the opinion that the usufructuary can make use of the same, provided he does not sell anything off of it, unless if it should happen that an usufruct was left to him of a clump of willows, or of the wood where the stakes were found, or of the bed of reeds; for then he can sell the same. Trebatius says that the usufructuary can cut stakes and reeds just as the owner of the land was accustomed to do, and can sell them, even though the former was not accustomed to do so, but to use them himself; as the condition of the usufructuary must be considered with reference to the amount to be used, and not to the manner of using it.
10. Pomponius, On Sabinus, Book V.
The usufructuary can take stakes for props from a thicket, and limbs from trees, and from a wood which is not a thicket he can take what he requires for his vineyard; provided he does not make the land any the less valuable.
11. Paulus, Epitomes of the Digest of Alfenus, Book II. But where the trees are larger he cannot cut them down.
12. Ulpianus, On Sabinus, Book XVII.
Where trees are uprooted or overthrown by the force of the wind, Labeo says that the usufructuary can recover them for his own use, and that of his household, but he must not use the timber for firewood, if he has any other available for that purpose; and I think that this opinion is correct, otherwise, if all the land should suffer this misfortune, the usufructuary could remove all the trees. Labeo, however, thinks that he has a right to cut down as many trees as are necessary for the repair of the house; just as he can burn lime, or dig sand, or take anything else which is necessary for the building.
(1) Where the usufruct of a ship has been bequeathed, I think that it can be sent to sea, although the danger of shipwreck may be threatened; as a ship is constructed for the purpose of navigation.
(2) The usufructuary can either enjoy the property itself, or transfer the right of enjoyment to another, or he can leave, or sell the latter; for a man who leases and one who sells also uses. But where he trans-
fers it to someone to be held on sufferance, or donates it, I think that he uses it, and therefore retains the usufruct of the same; and this was the opinion of Cassius and Pegasus, and Pomponius adopts it in the Fifth Book on Sabinus. For not only do I retain the usufruct, if I lease it, but also where another person who is transacting my business leases the usufruct, Julianus states in the Thirty-first Book, that I still
Where, however, I do not lease it, but while I am absent, and ignorant of the fact, someone who transacts my business makes use of it, and enjoys it; I, nevertheless, retain the usufruct, because I have acquired a right of action on the ground of business transacted; and this opinion Pomponius approves in the Fifth Book.
(3) Pomponius is in doubt as to the following case, namely, where a fugitive slave in whom I have an usufruct stipulates for something with reference to my property, or receives something by delivery, do I retain the usufruct under these circumstances, on the ground that I am making use of him? He fully admits that I do retain it, for he says that very often we may not be using slaves at the time, but we retain the usufruct in them; for example, where a slave is ill, or is an infant, his services are of no value, or where he becomes decrepit through old age. We still retain the usufruct if we plow a field, although it is so barren that it yields no crop. Julianus, however, states in the Thirty-fifth Book of the Digest, that even where a fugitive slave does not stipulate for anything the usufruct is still retained; for he says, on the principle that possession is retained by the owner where the slave has fled, on the same principle the usufruct is also retained.
(4) He also discusses the following question, namely, where anyone acquires possession of the slave, must the usufruct be lost, just as the slave ceases to be in possession of the mere owner? And first he says that it may be held that the usufruct is lost, but even if it is, it must also be held that whatever the slave may have stipulated for with reference to the property of the usufructuary, within the time established by law, can be acquired by the usufructuary. From this it may be said to be inferred that even if the slave is in the possession of another person, the usufruct is not lost, provided the slave stipulated for something for me; and it makes but little difference whether he is in possession of the heir, or of someone else, to whom the estate has been sold, or to whom the mere ownership has been bequeathed, or even of a plunderer; for it will be sufficient for the usufruct to be retained if there is a desire to hold it, and the slave performs some act in behalf of the usufructuary; and this opinion seems to be reasonable.
(5) Julianus presents the following question in the Thirty-fifth Book of the Digest. If a thief plucks, or cuts off ripe fruit which is hanging upon a tree, who will be entitled to a suit against him for its recovery; the owner of the land, or the usufructuary? And he thinks that as fruit does not belong to the usufructuary unless it has been gathered by him, even though it should be separated from the land by another person, the proprietor has the better right to bring an action for its recovery; but the usufructuary has a right to an action for
theft, for it was to his interest that the fruit should not have been removed.
Marcellus, however, is influenced by the fact that if the usufructuary subsequently obtains possession of the fruit, it will perhaps become his; and if it does, under what rule will this happen, unless that, in the meantime, it belonged to the mere owner, for, as soon as the usufructuary secures it, it becomes his, just as where property is bequeathed under some condition, and, in the meantime, belongs to an heir, but when the condition is complied with, it passes to the legatee; for it is true that the mere owner is entitled to an action for its recovery.
Where, however, the ownership is in suspense, as Julianus himself says in a case where the young of animals which are permitted to grow up have died; and where a slave subject to an usufruct received something by delivery for which the price had not yet been paid, but security had been given; it must be held that the right of action for its recovery remains in suspense, and that the ownership of the property is even more in abeyance.
13. The Same, On Sabinus, Book XVIII.
Where the usufruct in any property has been bequeathed, the owner can demand security for the property, and this can be done by order of court, for just as the usufructuary has a right to use and enjoyment, so also the mere owner has a right to be secure with reference to his property. This also applies to every usufruct, as Julianus states in the Thirty-eighth Book of the Digest. Where an usufruct has been bequeathed, an action for its recovery should not be granted to the usufructuary unless he gives security that he will make use of and enjoy it as would meet with the approval of a good citizen; and where there are several heirs who are charged with said usufruct, security must be given to every one of them individually.
(1) Therefore, when an action is brought with reference to an usufruct, not only what has been done will be decided, but also it will be determined how the usufruct should be enjoyed in the future.
(2) The usufructuary is liable under the Lex Aquilia, for damage already committed, and can be held under the interdict Quod vi aut clam, as Julianus says; and it is certain that the usufructuary is also liable to the above-mentioned actions and to those of theft as well, just like any other party who has been guilty of an offence of this kind with reference to the property of another.
Hence, having been asked what is the benefit of the prætor promising an action, when one already existed under the Lex Aquilia; Julianus answered that because there were instances in which the Aquilian Action could not be brought, and therefore a judge was appointed in order that the party might comply with his decision; for where anyone does not break up a field, or does not plant vines, or allows aqueducts to be ruined he is not liable under the Lex Aquilia. The same principles are applicable where a party only has the use of property.
(3) When a controversy arises between two usufructuaries, Julianus says in the Thirty-eighth Book of the Digest, that it is perfectly
just for an action like that in partition to be granted them; or that, by means of a stipulation, they should secure one another as to how they will make use of their usufructs; for why, Julianus asks, should the prætor suffer them to proceed to the employment of armed force, when he is able to restrain them by means of his judicial authority? Celsus also approves this opinion in the Twentieth Book of the Digest, and I think that it is correct.
(4) An usufructuary cannot make the condition of the property worse, but he can improve it. If the usufruct of land was bequeathed, the usufructuary should not cut down fruit trees, or demolish buildings, or do anything else to the injury of the property. And if the estate should happen to be one used for enjoyment, and possesses pleasure gardens, lanes, or shady and pleasant walks laid out under trees which do not bear fruit, he should not cut them down for the purpose of making kitchen-gardens, or anything else designed to produce an income.
(5) Hence the question arose, whether the usufructuary himself can open stone quarries, or chalk, or sand-pits? I think that he can do so, if he does not use for that purpose any portion of the land required for something else. Therefore he can look for places for quarries and excavations of this kind, and he can work any mines of gold, silver, sulphur, copper, iron, or other minerals which the original proprietor opened; or he himself can open them, if this does not interfere with the cultivation of the soil. And if he should happen to obtain more income by doing this than he derives from the vineyards, plantations, or olive orchards, which are already there, he can, perhaps, cut these down since he is allowed to improve the property.
(6) Where, however, the operations begun by the usufructuary pollute the air of the land, or necessitate a great array of workmen, or gardeners, which is more than the mere owner can endure; he will not be considered as exercising his usufruct as a careful person should do. Nor can he erect a building on the land, except one which is necessary for the harvesting of crops.
(7) Where, however, the usufruct of a house was bequeathed, Nerva, the son, says that he can put in windows, and can also paint the walls, and add pictures, marbles, statuettes, and anything else which adorns a house; but he will not be permitted to change the rooms, throw them together, or separate them, or reverse the front and back entrances, or open places which are retired, or change the hall, or alter the pleasure gardens in any way; for he must take care of everything as he found it, without changing the arrangement of the building. Moreover, Nerva says that a party to whom the usufruct of a house has been bequeathed, cannot raise the height of the latter, even if no lights should be obscured by doing so, because the roof would be more likely to be disturbed; and this Labeo also holds with reference to the mere owner. Labeo also states that the usufructuary cannot obstruct the lights.
(8) Again, where the usufruct of a house is bequeathed, the usufructuary cannot rent rooms in it, nor can he divide it up into apartments, but there is no doubt that he can rent it, but he must do so as
one residence; nor can he open a public bath there. When it is said that "He cannot rent rooms in it"; this must be understood to mean what are commonly designated lodgings for travellers, or shops for fullers. I am, however, of the opinion that where there is a bath in the house for the use of the household, and it is situated in some retired place, and among pleasant rooms, the usufructuary would not act properly, or in accordance with the judgment of a careful man, if he rented it as a public bath; any more than if he should rent the house as a place in which to keep beasts of burden, or where the house had a building which could be used as a stable and coach-house, he should rent it as a bakery.
14. Paulus, On Sabinus, Book III.
Even though he should receive much less income by doing so.
15. Ulpianus, On Sabinus, Book XVIII.
If, however, he should make any addition to the house, he cannot afterwards remove, or separate it; although it is clear that he can recover, as the owner, anything which has been detached.
(1) Where the usufruct which is bequeathed consists of slaves, he must not abuse them, but must employ them in accordance with their condition. For if he sends a copyist to the country, and compels him to carry a basket of lime, and makes an actor perform the duties of an attendant of a bath, or a singer act as a porter, or takes a slave from a wrestling arena, and employs him to clean out the vaults of water-closets, he will be considered to be making an improper use of the property.
(2) He must also furnish the slaves with sufficient food and clothing, in accordance with their rank and standing.
(3) Labeo states as a rule of general application that, in the case of movable property of every description, the usufructuary must observe a certain degree of moderation, so as not to spoil it by rough handling or violence, otherwise an action can be brought against him under the Lex Aquilia.
(4) Where the usufruct of clothing is bequeathed, the right not having reference to quantity; it must be said that he ought to make use of it so that it may not be worn out, but he cannot hire it as a good citizen would not employ it in that manner.
(5) Hence, if the usufruct of theatrical costumes, or curtains, or some other similar articles is bequeathed, he must not use them anywhere but on the stage. It should be considered whether he can hire them, or not; and I think that this can be done, even though the testator was accustomed to lend these articles and not to hire them. Still, I am of the opinion that the usufructuary can hire theatrical costumes as well as such as are used at funerals.
(6) The mere owner of the property must not interfere with the usufructuary, so long as he does not use the article in such a way as to render its condition worse. With reference to some articles, a doubt arises where he forbids him to use them whether he can legally do so;
as for instance, in the case of casks, where the usufruct of land has been bequeathed. Certain authorities hold that where the casks are buried in the ground their use may be prohibited; and they say the same of vats, barrels, jars, and bottles, and also of window panes, if the usufruct of a house is bequeathed. I am of the opinion, however, that everything belonging to the land and the house is included, where a contrary intention does not exist.
(7) The owner of the property cannot subject it to a servitude, nor can he permit one to be lost, but it is evident that he can acquire a servitude, even if the usufructuary is unwilling, as Julianus says. Consequently, according to the same rule, the usufructuary cannot acquire a servitude in the land, but he can preserve one, and if there is one, and it should be lost by the usufructuary not using it, he will be liable on this account. The owner cannot impose a servitude on the land even if the usufructuary consents,
16. Paulus, On Sabinus, Book III.
Unless the condition of the usufructuary should not become worse thereby; as for instance, where the owner grants the servitude to a neighbor that he himself shall not have the right to raise his house.
17. Ulpianus, On Sabinus, Book HI.
He can make a place religious with the consent of the usufructuary, and this is permitted in favor of religion. Sometimes, however, the owner of the property alone can make the place religious; for suppose he buries the testator therein, when there is no other place so convenient for his burial.
(1) On the principle that the proprietor must not place the usufructuary in a worse condition, the question is frequently asked whether the owner of a slave can punish him? Aristo states in a note to Cassius, that he has a perfect right to punish him, provided he does so without malice; although the usufructuary cannot, by means of improper or unusual tasks, or by disfiguring him with scars, treat the slave so as to diminish the value of his services.
(2) The proprietor can also surrender the slave by way of reparation for damage committed by him, if he does so without malicious intent; since, a surrender of this kind does not legally terminate the usufruct, any more than usucaption of property which took place after the usufruct has been created. It is clear that an action for the recovery of the usufruct must be refused unless the amount appraised as damages is tendered by the usufructuary to the party who received the slave by way of reparation.
(3) If anyone should kill the slave, I have never had any doubt that the usufructuary will be entitled to a prætorian action in the same manner as under the Lex Aquilia.
18. Paulus, On Sabinus, Book III.
Where the usufruct which is bequeathed consists of a field, other trees must be substituted in the place of those which have died, and the latter will belong to the usufructuary.
19. Pomponius, On Sabinus, Book V.
Proculus thinks that the usufruct of a house can be bequeathed in such a way that a servitude may be imposed upon it in favor of some other house belonging to the estate, as follows: "If So-and-So promises my heir that he will not do anything by which certain buildings may be raised in height, then I give and bequeath to him the usufruct of said buildings"; or as follows: "I give and bequeath to So-and-So the usufruct of such-and-such a house, so long as it shall not be built higher than it now is".
(1) Where trees are thrown down by the wind and the owner does not remove them, and the usufruct is rendered more inconvenient, thereby, or a roadway is obstructed; suit can be brought by the usufructuary against him in a proper action.
20. Ulpianus, On Sabinus, Book XVIII.
Where anyone makes a bequest in the following terms: "I give and bequeath the annual crops of the Cornelian Estate to Gaius Nævius"; this clause should be understood to mean the same as if the usufruct of the estate had been bequeathed.
21. The Same, On Sabinus, Book XVII.
Where the usufruct of a slave is bequeathed, whatever he earns by his own labor or by means of the property of the usufructuary belongs to the latter; whether the slave stipulates, or possession is delivered to him. But where a slave has been appointed an heir, or receives a legacy, Labeo makes a distinction dependent upon whose behalf he is appointed heir or receives the legacy.
22. The Same, On Sabinus, Book XVIII.
Moreover, when anything is given to a slave in whom someone else has the usufruct, the question arises what must be done in this instance? In all such cases, where anything is left or given to a slave to the advantage of the usufructuary, the slave acquires it for him, but where it is given for the benefit of the owner, he acquires it for the latter, and if it was given for the benefit of the slave himself, it is acquired by the owner; for we do not take into consideration where he who made the gift or left the legacy came to know the slave, or what service the slave performed to deserve it. But where a slave, in whom there is an usufruct, acquires something on account of complying with a condition, and it is established that the condition was inserted for the benefit of the usufructuary, it must be held that the latter is entitled to it; as the same rule applies in the case of a donatio mortis causa.
23. The Same, On Sabinus, Book XVII.
But just as the slave by stipulating acquires property for the usufructuary, in like manner, as Julianus states in the Thirtieth Book of the Digest, he can, by means of an informal contract, acquire an exception for the usufructuary; and also, by securing a release, he can obtain a discharge for him.
(1) We have previously stated that what is acquired by the labor of the slave belongs to the usufructuary; but it must be borne in mind that he can be forced to work; for Sabinus has given the opinion that the usufructuary can administer moderate punishment, and Cassius says in the Eighth Book of the Civil Law, that he cannot torture the slave, or scourge him.
24. Paulus, On Sabinus, Book X.
Where anyone about to give a present to an usufructuary, promises a slave, who is subject to the usufruct on his own stipulation, he will be bound to the usufructuary; for the reason that it is customary for a slave to be able to enter into a stipulation in favor of the usufructuary.
25. Ulpianus, On Sabinus, Book XVIII.
Where, however, a person stipulates for anything for himself or Stichus, a slave subject to an usufruct, with the intention that it shall, for the purpose of making him a gift, go to the usufructuary; it must be stated that if money is paid to the slave it will be acquired for the usufructuary.
(1) Sometimes, however, the question for whom this slave, subject to an usufruct, will acquire it, remains in abeyance; as, for instance, where the slave purchases another slave and receives him by delivery, and does not yet pay the purchase-money, but only furnishes security for it; in the meantime, the question arises to whom does the slave belong? Julianus states in the Thirty-fifth Book of the Digest, that the ownership of the slave is in abeyance, and the payment of the price will decide to whom he belongs; for if it is paid out of money of the usufructuary, the slave will belong to the latter by retroactive effect. The same rule applies where, for instance, the slave makes a stipulation for the payment of money; for the payment itself will determine for whose benefit the stipulation was entered into. Hence we see that the ownership is in abeyance until the price is paid. What then would be the case if the price is paid after the usufruct has terminated? Julianus says in the Thirty-fifth Book of the Digest, that it must still be considered from whence the price is to come; but Marcellus and Mauricianus think that where the usufruct is lost, the ownership will be acquired by the person to whom the property belongs. The opinion of Julian is, however, the more equitable one.
If, however, the price should be paid out of property belonging to both parties, Julianus says that the ownership will belong to both; of course, in proportion to the amount paid by each. Suppose, however, the slave pays out of the property of both at the same time; as for instance, if he owed ten thousand sesterces as the price, and he paid ten thousand out of the funds of each; for which one does the slave actually acquire the property? If he pays by counting out the money, the important point is who was the owner of the sum which is first paid, for the other party can bring an action to recover that which was paid subsequently; or if the money was already expended by the individual who received it, a personal action can be brought for its recovery. But
where the slave paid the entire amount in a sack, he who received it does not acquire the property, and therefore the ownership is not held to be acquired by anyone, because where the slave pays more than the price he does not transfer the money to the receiver.
(2) Where such a slave leases his own services and stipulates for a certain sum to be paid every year, this stipulation, during the time which the usufruct continues, will enure to the benefit of the usufructuary, but the benefit of the stipulation will enure to the owner during the ensuing year, although in the beginning it was for the benefit of the usufructuary; notwithstanding it is not customary for a stipulation when once obtained for the benefit of anyone, to pass to another, unless to his heir or to a party by whom he is arrogated. Hence, where an usufruct is bequeathed for a number of years, and the slave leases his services and stipulates, as is above stated, as often as the usufruct is lost by the change of condition of the usufructuary, and is subsequently restored, the stipulation will pass from one to the other, and after having gone to the heir, it will return to the usufructuary.
(3) It may be questioned whether what cannot be acquired by the usufructuary can be acquired by the owner? Julianus, in the Thirty-fifth Book of the Digest, states that what cannot be acquired by the usufructuary belongs to the owner. He also states that where a slave stipulates with reference to the property of the usufructuary for the proprietor, expressly, or by his order, he acquires for the latter; but, on the other hand, if he stipulates for the usufructuary, not on account of the property of the latter, nor in consideration of his own labor, the stipulation is void.
(4) Where a slave subject to an usufruct stipulates for a transfer of said usufruct, either without mentioning anyone or expressly for his owner, he makes the acquisition for the latter; just as in the case of a slave held in common by two parties, who, in a stipulation contracts for one of his owners for property which already belongs to him, the stipulation is not valid; because where any party stipulates for what belongs to him the stipulation is void, but where the slave stipulates for the other owner, he acquires all of said property for him.
(5) Julianus also states in the same Book, that where an usufructuary leases the services of a slave to the latter, the contract is inoperative for he says if anyone stipulates with me for my own property, the stipulation is void; for this is no more operative than where a slave belonging to another, who is serving me in good faith, does the same thing, he will acquire the property for his owner. In like manner, he says, if he rents my property from me, the usufructuary, this will not render me liable.
The general principle he establishes is, that where anyone making a stipulation with another would acquire property for me, if he makes a stipulation with me his act is void; unless, indeed, Julianus adds, he stipulates with me or leases from me especially for the benefit of his owner.
(6) If you suppose the case of two usufructuaries, and the slave makes a stipulation with reference to the property of one of them, the
question arises whether he is entitled to all of it or only the share which he has in the usufruct? This case is the same which is treated of by Scævola in the Second Book of Questions, with respect to two bona-fide possessors; and he says that it is generally held and is consonant with reason, that where a stipulation was made with reference to the property of one of them, then part of it is only obtained for him, and part for the owner. But where the stipulation is expressly made, there should be no doubt, if the name of the party is mentioned, that he will obtain the whole of it. He says that the rule is the same where the slave stipulates by order of the party, as an order is understood to take the place of a name.
The same rule also applies to the case of usufructuaries; so that wherever an usufructuary does not acquire the whole of the property, it will be acquired by the mere proprietor, for we have already shown that he can obtain it by a title having reference to the property of the usufructuary.
(7) As we have previously stated that the usufructuary can acquire property through what he owns, or by the labors of the slave; it should be taken into consideration whether this is applicable merely where the usufruct is created by means of a bequest, or where it is obtained by delivery, stipulation, or in any other way. The opinion of Pegasus is the correct one, which Julianus has followed in the Sixteenth Book, namely: that it is in every instance acquired by the usufructuary.
26. Paulus, On Sabinus, Book III.
Whenever a slave subject to a usufruct leases his services, and before the time of the lease expires, the usufruct terminates, the time which remains will belong to the proprietor. But where, from the beginning, the slave stipulates for a specified sum in consideration of the performance of certain services, and the usufructuary suffers a loss of civil rights, the same rule applies.
27. Ulpianus, On Sabinus, Book XVIII.
Where a testator leaves fruit, which was already ripe, hanging upon a tree, the usufructuary will be entitled to it if he takes it from the tree upon the day when his legacy vests; for even standing crops belong to the usufructuary.
(1) Where the owner was accustomed to use shops for the sale of his merchandise or for conducting his business, then the usufructuary will be allowed to lease them even for a sale of different merchandise; and this precaution alone shall be observed, namely, that the usufructuary must not make an unusual use of the property, or employ the usufruct in a way which will insult or injure the owner.
(2) When the usufruct of a slave is bequeathed, and the testator was accustomed to employ him in different ways, and the usufructuary educates him or teaches him some trade; he can avail himself of the trade or skill obtained in this manner.
(3) Where anything is due as taxes for constructing a sewer, or must be paid for the channel of a water-course which traverses the
land, the burden of the same shall be assumed by the usufructuary; and where anything is to be paid for the maintenance of a highway, I think that this expense also must be borne by the usufructuary. Therefore, where any contribution of crops is levied on account of the passage of an army, or due to a municipality, since possessors of property are accustomed to deliver to the municipal authorities a certain portion of their crops at a low price, and also to pay taxes to the Treasury, all the aforesaid burdens must be assumed by the usufructuary.
(4) Where any kind of servitude is imposed upon land, the usufructuary will be compelled to tolerate it, and therefore, if a servitude is owing as the result of a stipulation, I think that the same rule will apply.
(5) Where, however, a slave has been sold, and the purchaser is forbidden under a penalty from employing him for certain purposes, if the usufruct in the slave is bequeathed, must the usufructuary comply with these conditions? I think that he must comply with them; otherwise, he will not use and enjoy his right in a way that would be approved by a good citizen.
28. Pomponius, On Sabinus, Book V.
. An usufruct in old gold and silver coins which are usually ordinarily used for ornaments can be bequeathed.
29. Ulpianus, On Sabinus, Book XVIII.
Celsus in the Thirty-second Book, and Julianus in the Sixty-first Book of the Digest, state that the usufruct in an entire estate can be bequeathed, provided it does not exceed three-fourths of the appraised value; and this is the better opinion.
30. Paulus, On Sabinus, Book HI.
Where a person who has two houses bequeaths the usufruct of one of them, Marcellus says that the heir can shut off the lights of one of them by raising the height of the other; since the house could be inhabited even if it was darkened. This must be regulated to such an extent that the entire house must not be darkened, but must have a certain amount of light which will be sufficient for the occupants.
31. The Same, On Sabinus, Book X.
The phrase, "Based on the property of the usufructuary", must be understood to refer to anything which the usufructuary may have presented or granted to the slave, or where the slave gained anything through the transaction of his business.
32. Pomponius, On Sabinus, Book XXXIII.
Where a person transfers a house, which is the only one he has, or a tract of land, he can reserve a servitude which is personal and not prædial; as for instance, the use or usufruct. But if he makes a reservation of pasturage or the right of residence, it is valid; as profits are obtained from the pasturage of many tracts of woodland. Where the
right of residence is reserved, whether this is for a certain time or until the death of the person who reserves it, it is held to be a reservation of the use.
33. Papinianus, Questions, Book XVII.
Where the usufruct is bequeathed to Titius and the mere ownership to Mævius, and, during the lifetime of the testator Titius dies, nothing is left in the hands of the party appointed heir; and Neratius also gave this as his opinion.
(1) It is established that in certain instances the usufruct can not be regarded as a part of the property; and, therefore, where suit is brought for a portion of the land or of the usufruct and the defendant gains the case, and afterwards an action for recovery is brought for another part which has been obtained by accretion, Julianus says that in the action for the property on the ground of a previous decision rendered, an exception can be pleaded; but in the action for the usufruct it cannot be interposed, since the portion of the land which was added, for instance by alluvion, would belong to the original part, but the increased usufruct would accrue to the person.
34. Julianus, Digest, Book XXXV.
Whenever an usufruct is bequeathed to two persons in such terms that "they are to use and enjoy the same during alternate years"; as if, for instance, the bequest had been made to "Titius and Mævius"; it can be said that it was made for the first year to Titius, and for the second to Mævius. Where, however, there are two parties of the same name, and the terms of the bequest are as follows: "I give the usufruct to the two Titii, for alternate years"; unless both of them agree which one shall have the use of it first, they will interfere with one another. But if Titius acquires the ownership during a year in which he enjoyed the usufruct, he will not have the bequest in the meantime, but the usufruct will belong to Mævius for alternate years; and if Titius alienates the property, he will still be entitled to his usufruct; because, even if the usufruct was bequeathed to me under some condition, and, in the meantime, I acquired the ownership from the heir but while the condition was still unfulfilled, I alienated the property, I should be permitted to obtain the legacy.
(1) If you bequeath the usufruct of a tract of land to your tenant, he can bring an action to recover said usufruct, and he can bring suit against your heir on the ground of the lease; by which means he will avoid paying rent, and will recover the expenses which he incurred by cultivating the land.
(2) With reference to the point whether the usufruct of an entire estate or that of certain articles is bequeathed, I think that it is applicable where, if a house is burned down, an action for the usufruct of it if it be the object of a special bequest cannot be brought; but where the usufruct of the entire property was left, an action for the usufruct of the ground will lie; since anyone who bequeaths the usufruct of his property is held to include not only that of things of a certain kind
which are there, but also that of his entire possessions, and the ground on which the house stood is a part of these.
35. The Same, On Urseius Ferox, Book I.
Where an usufruct has been bequeathed, and the person appointed heir purposely delays entering upon the estate in order that the acquisition of the legacy may be deferred; this will have to be accounted for; as was held by Sabinus.
(1) The usufruct of a slave was bequeathed to me, and when I ceased to use and enjoy it, it was directed that he should be free; and I subsequently obtained from the heir an estimated equivalent of the legacy in money. Sabinus was of the opinion that the slave will not for that reason become free; for it may be held that I am enjoying the usufruct in him, since I have obtained other property in his stead, and the condition of his freedom remains the same, so that he will become free at my death, or if my civil condition is changed.
36. Africanus, Questions, Book V.
A testator bequeathed the usufruct of a plot of land and erected a house upon it, and during his lifetime it was demolished or burned down; it was held that the usufruct could be demanded. On the other hand, the same rule would not apply if the usufruct of the house had been bequeathed, and the land afterwards was built upon. The case would be the same if the usufruct in certain cups was bequeathed, and they were afterwards melted into a mass, and were a second time fashioned into cups; for although their former condition as cups was restored, they were not the same as those in which the usufruct was bequeathed.
(1) I stipulated with Titius with reference to the Cornelian Estate, the usufruct therein being reserved; Titius then died, and it was asked what his heir was required to deliver to me? The answer was that the principal point had reference to the intention with which the usufruct was reserved, for if it was agreed in fact that the usufruct should be established merely in the person of someone, the heir must transfer the bare ownership; but if it was intended that the usufruct should be withheld for the promisor alone, his heir must transfer the ownership without any restriction. That this is true is more clearly apparent in the case of a legacy, for if an heir who was charged with the bequest of mere ownership, after reservation of the usufruct, should die before proceedings have been instituted with reference to the will, there is still less reason for doubt that the heir will be obliged to transfer complete ownership.
The same rule applies where the legacy is bequeathed under a condition and the heir dies pending its fulfillment.
(2) The usufruct of a slave was bequeathed to Titius, and before it had been transferred by the heir, who was intentionally in default, the slave died. No other conclusion could be arrived at than that the liability of the heir is in proportion to the amount of the interest of the legatee that there should have been no delay, so that the value of the
usufruct should be appraised from the date of the default to the time when the slave died. The result of this also would be that if Titius himself should die, there would also have to be paid to his heir a sum equal to the value of the usufruct from the time when the default began to the day of his death.
37. The Same, Questions, Book VII.
The question arose, if I stipulated with you for you to give me an usufruct for the next ten years, and you neglected to give it, and five years elapsed; what would be the law? Moreover, if I stipulated with you to give me the services of Stichus for the next ten years, and five years pass, as above stated, what then? The answer was that suit could properly be brought for both the usufruct and the services of the slave for the term that you permitted to elapse without giving them.
38. Marcianus, Institutes, Book III.
The usufructuary is not considered to make use of anything, where neither he nor anyone else in his behalf does so; as, for instance, where a party purchased or leased an usufruct or received it as a gift, or transacted the business of the usufructuary. It is evident that a distinction should be made here; for if I sell an usufruct, then, even though the purchaser does not use the property, I am held to still retain the usufruct:
39. Gaius, On the Provincial Edict, Book VII.
Because he who enjoys the purchase-money is none the less considered as possessing the usufruct than one who enjoys and uses the actual property:
40. Marcianus, Institutes, Book III.
But if I make a present of the usufruct, I no longer retain it, unless the person to whom it was given makes use of it.
41. The Same, Institutes, Book VII.
It is still more evident that the usufruct of a statue or a picture can be bequeathed, because articles of this kind have a certain utility if they are deposited in a proper place.
(1) Although there are certain estates of such a description that we expend more upon them than we receive from them, nevertheless, the usufruct in them can be bequeathed.
42. Florentinus, Institutes, Book XI.
Where a bequest of the use of some property is left to one man, and the yield of it to another, the usufructuary will obtain whatever remains after the demands of the party entitled to the use are satisfied, but he himself will have a certain amount of use for the purpose of enjoyment.
(1) It makes a difference whether the usufruct of property or the value of the same is bequeathed to you; for if the usufruct of the property is left to you, any article which was bequeathed to you in addition,
must be deducted from it, and you will be entitled to an usufruct in whatever remains; but where the usufruct of the value in money is left you, this also will be estimated, because it is an additional bequest, for by bequeathing the same property several times the testator does not increase the legacy; but where one specific article has been bequeathed, we can increase the legacy by bequeathing the estimated value of it also.
43. Ulpianus, Rules, Book VII.
The usufruct of only a portion of an estate can be bequeathed, and if it is not expressly stated what portion, half the estate is understood to be meant.
44. Neratius, Parchments, Book III.
An usufructuary is not permitted to put fresh plaster on walls which are rough; because, even though by improving the house he would render the condition of the owner better, he cannot do this through any right of his own; for it is one thing for him to take care of what he has received, and another to do something new.
45. Gaius, On the Provincial Edict, Book VII.
Just as the expenses of the maintenance of a slave whose usufruct belongs to anyone must be paid by the latter; so, also, it is evident that the expenses of his illness must naturally be borne by him.
46. Paulus, On Plautius, Book IX.
Where a stranger is appointed heir by will, and an emancipated son is passed over, and the ownership of the estate is bequeathed to the mother of the deceased, the usufruct being withheld; then, if suit is brought for the possession of the estate in opposition to the will, the entire ownership, on the ground of filial duty toward the mother, must be delivered to her.
(1) Where a testator directs that his heir shall repair a house the usufruct of which he has bequeathed, the usufructuary can bring suit under the will to compel the heir to repair it.
47. Pomponius, On Plautius, Book V.
If, however, the heir should not make these repairs, and on this account the usufructuary should not be able to enjoy the property; the heir of the usufructuary will be entitled to an action on this ground for an amount of damages equal to the difference it would have made to the usufructuary if the heir had not failed to make said repairs; even though the usufruct has been terminated by the death of the usufructuary.
48. Paulus, On Plautius, Book IX.
If, while the usufructuary is absent, the heir makes the repairs as a person having charge of his business, he will be entitled to an action against the usufructuary on the ground of business transacted, even though the heir was looking to his own future benefit. Where, how-
ever, the usufructuary is ready to relinquish the usufruct, he is not required to make repairs, and is released from the suit based on business transacted.
(1) Where a thicket is cut down, even though this is done at an unsuitable season of the year, it is considered as part of the yield of the land; just as olives which are gathered before they are ripe, and grass cut before the proper time are also considered to be a part of the crops.
49. Pomponius, On Plautius, Book VII.
Where an usufruct is bequeathed to me and to you at the charge of Sempronius and Mucius, heirs of the testator, I will be entitled to a fourth part from the share of Sempronius and another fourth part from the share of Mucius; and you, in like manner, will be entitled to two-fourths taken from their respective shares.
50. Paulus, On Vitellius, Book HI.
Titius left the Tusculan Estate to Mævius, and appointed him a trustee for the transfer to Titia of the usufruct of half of the said estate. Mævius rebuilt a house which was ruined by age, and which was required for the collection and preservation of the crops. The question then arose, whether Titia was obliged to assume part of the expense in proportion to her usufruct? Scævola answered that if it was necessary to rebuild the house before the usufruct was transferred, Mævius would not be compelled to deliver it, unless an action for the expense was allowed.
51. Modestinus, Differences, Book IX.
It is understood that the bequest of an usufruct to Titius "when he dies", is void; as it has reference to the time when it must cease to belong to the party in question.
52. The Same, Rules, Book IX.
Where an usufruct is left by will on condition of paying the taxes on the property, there is no doubt that the usufructuary must pay them; unless it is proved that the testator provided expressly by means of a trust that they should also be paid by the heir.
53. Javolenus, Epistles, Book II.
Where the usufruct of a house is bequeathed as long as any part of said house remains, the legatee will be entitled to an usufruct in the entire ground.
54. The Same, Epistles, Book III.
The usufruct of certain land was conditionally bequeathed to Titius, you being charged with the same as heir, and you sold and delivered the said land to me after reserving the usufruct. I ask, if the condition was not fulfilled, or if it should be and the usufruct should terminate, to whom would it belong? The answer was, I understand, that your question has reference to the usufruct which was bequeathed; and
therefore, if the condition on which the legacy was dependent was fulfilled, there is no doubt that the usufruct will belong to the legatee; and if, by any accident, it should be lost to him, it will revert to the ownership of the estate. Where, however, the condition is not fulfilled, the usufruct will belong to the heir, for all the rules which have relation to the heir are carried out, just as those that pertain to the loss of an usufruct are ordinarily observed. But, in a sale of this kind, what has been agreed upon between the purchaser and the vendor must be considered; so that if it is apparent that the usufruct was reserved on account of the legacy, even though the condition was not fulfilled, it should be restored by the vendor to the purchaser.
55. Pomponius, On Quintus Mucius, Book XXVI.
If only the use of an infant slave should be bequeathed, even though in the meantime no employment be made of his services, still, as soon as the child passes the age of infancy, it begins to be operative.
56. Gaius, On the Provincial Edict, Book XVII.
The question has been raised whether an action on account of an usufruct should be granted a municipality? In this instance there seems to be danger that the usufruct may become perpetual, because it could not be lost by death, nor easily by change of civil condition; for which reason the ownership would be worthless, as the usufruct would always be separate from it. It, nevertheless, has been established that an action should be granted. Whence another doubt arises, that is to say, how long a municipality should be protected in the enjoyment of an usufruct? It has been settled that it will be protected for a hundred years, because this is the term of the longest life of man.
57. Papinianus, Opinions, Book VII.
The owner of an estate left to an usufructuary by will the interest which the latter had therein by way of usufruct, and this estate the legatee, after having had possession of it for a time, was compelled to surrender to the son of the testator, who had successfully conducted a case of inofficious testament; and it was apparent from what subsequently occurred that the right of usufruct remained unimpaired.
(1) Where the crops from certain tracts of land were left under a trust for the maintenance of freedom, and any of the parties who are entitled to the same die; the profits of their shares revert from them to the mere owner of the land.
58. Scævola, Opinions, Book III.
A woman who had an usufruct died during the month of December, and all the crops which were obtained from the land having already been removed by the tenants, in the month of October, the question arose whether rent should be paid to the heir of the usufructuary, although she died before the Kalends of March, when the rent became due; or whether it ought to be divided between the heir of the usufructuary and the municipality to which the ownership was bequeathed? I
answered that the municipality was not entitled to any action against the tenant; but, according to what had been stated, the heir of the usufructuary would have a right to collect the entire rent on the day when it becomes due.
(1) "I give and bequeath to Sempronius one sixth part of the crops of cabbage and leeks which I have in the field of the Farrarii". The question is asked whether an usufruct seems to be bequeathed by these words? My answer was, that an usufruct was not bequeathed, but that the particular part of the crop gathered and which was mentioned in the bequest, was. The question also arose, if this was not an usufruct, whether the testator did not bequeath the sixth part of the crops which was gathered every year? I answered that it must be considered to have been left every year, unless the contrary was expressly proved by the heir.
59. Paulus, Opinions, Book HI.
Where trees are overthrown by the force of a storm without any negligence of the usufructuary, it has been decided that he is not required to replace them.
(1) Whatever is grown upon the land or is gathered therefrom belongs to the usufructuary, as well as the rent of fields already leased, if these things are expressly included. But as in the case of a sale, unless the rents are expressly reserved, the usufructuary can eject the lessee.
(2) Whatever is obtained from the cutting of reeds or stakes belongs to the usufructuary, wherever it has been customary to consider this a portion of the income of the land.
60. The Same, Opinions, Book V.
The usufructuary of any description of land, if interfered with in his enjoyment of the same, or ejected, can bring suit for the restitution of everything which was seized at the same time; but if, in the meanwhile, the usufruct should be terminated by any accident, a prætorian action will be granted for the recovery of any crops which may have been previously gathered.
(1) Where land, the usufruct of which is sued for, is not in the possession of the owner, an action will be granted. Therefore, if there is a dispute between two parties with reference to the ownership of the land, the usufructuary is, nevertheless, entitled to occupy the premises; and security must be given him by the possession, if his own right is disputed, "That he to whom the usufruct was bequeathed will not be prevented from enjoying the same, as long as he is engaged in establishing his title".
If, however, the right of the usufructuary himself is disputed, his usufruct will remain in abeyance; but the owner of the land must furnish him with security to return to him any of the crops which the latter may have gathered from it, or, if he refuses to do so, the usufructuary will be permitted to enjoy the property.
61. Neratius, Opinions, Book II.
An usufructuary cannot attach a new gutter to a wall; and where a building is not completed, it has been decided that a usufructuary cannot finish it, even if he is unable to make use of that portion of it without doing so. And indeed, it is considered that he has not even an usufruct in said building; unless, when it was created or bequeathed, it was expressly added that he could do either of the two above mentioned things.
62. Tryphoninus, Disputations, Book VII.
It is very properly held that an usufructuary has a right to hunt in the woods or on the mountains of the property in which he has the usufruct; and where he killed a wild-boar or a stag, he does not take anything belonging to the owner of the land, but he renders what he acquired his either by the Civil Law or in the Law of Nations.
(1) Where wild animals were kept in enclosures, when an usufruct becomes operative the usufructuary can make use of them, but he cannot kill them; but if, in the beginning, he encloses them by his own effort, and they are caught in traps by him, are they lawfully the property of the usufructuary? It is most convenient, however, on account of the difficult distinction that would arise as to the uncertain rights of the usufructuary with reference to different animals, to hold that it would be sufficient, at the termination of the usufruct, to deliver to the owner of the property the same number of different kinds of animals which existed at the time the usufruct became operative.
63. Paulus, On Private Law.
We can transfer to others what is not our own; for example, where a man has land, even though he has not the usufruct, still he can grant an usufruct to another party.
64. Ulpianus, On the Edict, Book LI.
Where an usufructuary is ready to relinquish his usufruct, he cannot be compelled to repair the house, even in instances where this would ordinarily be required of the usufructuary. However, after issue has been joined, and the usufructuary is ready to relinquish the usufruct, it must be held that he should be released from liability by the Court.
65. Pomponius, On Plautius, Book V.
But as the usufructuary is obliged to repair anything which has been injured by his own act, or by that of any of his family; he should not be released, even though he is ready to relinquish the usufruct; for he himself is obliged to do everything that the careful head of a household would do in his own house.
(1) An heir is no more compelled to repair property which a testator left ruined by age, than he would be if the testator had left anyone the ownership of the same.
66. Paulus, On the Edict, Book XLVII.
An action can not only be brought against an usufructuary under the Lex Aquilia, but he is also liable to one for demoralizing a slave
as well as for injury, where he depreciated the value of the slave by torturing him.
67. Julianus, On Minicius, Book I.
Anyone to whom the usufruct has been bequeathed can sell the same to a stranger, even without the consent of the heir.
68. Ulpianus, On Sabinus, Book XVII.
The question was raised in ancient times whether the issue of a female slave belonged to the usufructuary? The opinion of Brutus prevailed, namely, that the usufructuary had no right to it, as one human being cannot be considered as the product of another; and for this reason the usufructuary cannot be entitled to a usufruct in the same. If, however, the usufruct was left in the child before it was born, would he be entitled to it? The answer is that since offspring can be bequeathed, the usufruct of it can be also.
(1) Sabinus and Cassius are of the opinion that the increase of cattle belongs to the usufructuary.
(2) It is evident that the person to whom the usufruct of a flock or a herd is bequeathed, must make up any loss out of the increase, that is to say, replace those which have died,
69. Pomponius, On Sabinus, Book V.
Or to supply others instead of such as are worthless; and the latter, after the substitution, become the property of the usufructuary, to avoid the owner from profiting by the entire number. And as those which are replaced at once belong to the owner, so also the former ones cease to belong to him, according to the natural law of production; for otherwise the increase belongs to the usufructuary, and when he replaces it, it ceases to do so.
70. Ulpianus, On Sabinus, Book XVII.
What then must be done if the usufructuary does not act as above stated, and does not replace the cattle? Gaius Cassius says in the Tenth Book of the Civil Law, that he is liable to the owner.
(1) In the meantime, however, while they are being reared and those which are dead are being replaced, the question arises, to whom does the increase belong? Julianus in the Thirty-fifth Book of the Digest holds that the ownership is in abeyance; for if they are used to replace others they belong to the proprietor; but, if not, they belong to the usufructuary; which opinion is the correct one.
(2) In accordance with this, if the young die, it will be at the risk of the usufructuary and not at that of the owner, and it will be necessary for him to provide others. Whence Gaius Cassius states in the Eighth Book,, that the flesh of any dead young animal belongs to the usufructuary.
(3) Where it is stated that the usufructuary must provide others; this is only true where the usufruct of a flock, a herd, or a stud of horses, that is to say, of an entire number, has been bequeathed; for where only certain heads of the same are left, there will be nothing for him to replace.
(4) Moreover, suppose that, at the time when the young animals are born, nothing has occurred by which he was required to replace some of them, but after their birth this became necessary; it must be considered whether he should replace them from those born last, or those born previously? I think the better opinion to be, that those which are born when the flock is complete belong to the usufructuary; and that he will only lose by reason of some subsequent injury to the flock.
(5) Replacement is a matter of fact, and Julianus very properly says that it means to separate, set apart, and to make a certain division; because the ownership of those which are set aside is in the proprietor.
71. Marcellus, Digest, Book XVII.
Where anyone builds a house on a lot in which some other person has the usufruct, and the house is removed before the expiration of the time within which the usufruct will be terminated, the usufruct must be restored; in accordance with the opinion of the ancient authorities.
72. Ulpianus, On Sabinus, Book XVII.
Where the owner of the mere property bequeaths an usufruct, what Mæcianus stated in the Third Book of Questions, on Trusts, is correct, namely: that the bequest is valid; and if the usufruct should happen to be merged in the property during the life of the testator, or before the estate is entered upon, it will belong to the legatee. Mæcianus goes even further, for he holds that if the usufruct was merged after the estate had been entered upon, it becomes legally vested and belongs to the legatee.
73. Pomponius, On Sabinus, Book V.
Where the usufruct of unoccupied ground is bequeathed to me, I can build a hut there for the protection of personal property on the said ground.
74. Gaius, On the Provincial Edict, Book VII.
Where an usufruct is bequeathed to your slave Stichus, and to my slave Pamphilus, such a bequest is the same as if it had been made to me and to you; and therefore there is no doubt that it belongs to us equally.
CONCERNING THE ACCRUAL OF USUFRUCT. 1. Ulpianus, On Sabinus, Book XVII.
Where an usufruct is bequeathed, the right of accrual between usufructuaries only exists where the usufruct is left conjointly; but where it is left separately to each one of the parties, the right of accrual undoubtedly ceases to exist.
(1) Hence, it is asked by Julianus in the Thirty-fifth Book of the Digest, if an usufruct is left to a slave owned in common, and is acquired by both owners, whether if one of them rejects or loses the usufruct, the other shall have the whole of it? He thinks that it belongs to the other, and even though the usufruct was acquired by the owner of the slave, not in equal shares but in shares corresponding to their interest in the slave; still, the personality of the slave and not that of the owners must be considered; so that it belongs to one of the owners and does not accrue to the mere property.
(2) He also says that where an usufruct is bequeathed to a slave owned in common, and to Titius separately, and the usufruct is lost by the other joint owner, it will not belong to Titius, but to the remaining owner alone, as he was the only one who had a right to it jointly; and this opinion is the correct one, for as long as only one is making use of the property, it may be said that the usufruct is in its former condition. The same rule applies where the usufruct is left to two persons jointly, and to another separately.
(3) Sometimes, however, even if the parties were not joint legatees, the usufruct bequeathed vests in one of them by accrual; as, for instance, where the usufruct of an entire estate is left to me separately, and it is left to you in the same way. For (as Celsus states in the Eighteenth Book, and Julianus in the Thirty-fifth Book of the Digest), we hold shares by concurrence; and this would also happen so far as the ownership is concerned; for if one rejected it, the other would be entitled to the entire estate. But there is this point in addition with reference to the usufruct; since it has been created and afterwards lost, the right of accrual, nevertheless, exists, for all authors quoted by Plautius are of this opinion; and, (as Celsus and Julian very properly say) an usufruct is created and bequeathed every day, and not, like ownership, only at the time when an action can be brought to recover it. Thus, as soon as either party does not find anyone associated with him, he alone can make use of the entire usufruct; nor does it make any difference whether it was jointly or severally bequeathed.
(4) Julianus also states in the Thirty-fifth Book of the Digest, that where two heirs have been appointed and the mere ownership bequeathed, the usufruct being reserved; the heirs have no right of accrual, for the usufruct is held to have been created, not divided by concurrence;
2. Africanus, Questions, Book V.
Wherefore any part of the usufruct which has been lost reverts to the legatee who is the owner of the mere property.
3. Ulpianus, On Sabinus, Book XVII.
Neratius, in the First Book of Opinions, thinks that the right of accrual is extinguished under such circumstances; and the principle stated by Celsus agrees with this opinion, namely, that the right of accrual exists where two parties have the entire usufruct, and it is divided between them by their association.
(1) Therefore, Celsus states in the Eighteenth Book, that where two owners of an estate convey the property after having reserved the usufruct of the same, and either of them loses his usufruct, it will revert to the mere property, but not to all of it; for the usufruct of each accrues to the share which each one conveyed, and it must revert to the share from which, in the beginning, it was separated.
(2) But not only the right of accrual exists where an usufruct is bequeathed to two parties, but also where it is bequeathed to one, and the estate to another; for if the one to whom an usufruct was left should lose it, it will belong to the other rather through the right of accrual than by reversion to the property; nor is there anything unusual in this, for where an usufruct is bequeathed to two persons and, while held by one of them, is merged into the mere property, the right of accrual is not lost either by him with whom it was merged, nor by him for the benefit of the other; and no matter how he may have lost his usufruct before the merger, he may lose it in the same manner now. This opinion is held by Neratius and Aristo, and is approved by Pomponius.
4. Julianus, Digest, Book XXXV.
Where the mere property in an estate is bequeathed to you, and the usufruct of the same estate to me and Mævius, you, Mævius, and I will each have a third part of the usufruct, and the other third part will be merged in the property. But if either I or Mævius should lose our civil rights, a third part will be divided between you and one or the other of us, so that the one who has not lost his civil rights will have half the usufruct, and the property along with the remaining half of the usufruct will belong to you.
5. Gaius, On the Provincial Edict, Book VII.
And if you convey the property to anyone after the usufruct has been reserved, Julianus thinks that, nevertheless, the right of accrual will exist; and that you are not considered to acquire a new usufruct.
6. Ulpianus, On Sabinus, Book XVII.
The same rule applies where the usufruct is merged in property in the hands of one of three usufructuaries.
(1) But where property is bequeathed to anyone, the usufruct having been reserved, and a portion of the usufruct is bequeathed to me; it should be considered whether the right of accrual exists between me and the heir? The correct opinion is, however, that if anyone loses the usufruct it reverts to the property.
(2) Where the usufruct of an estate is left to me absolutely, and to you under a certain condition, it can be said that the usufruct of the entire estate belongs to me in the meantime, and that if I should lose my civil rights the entire usufruct will be lost; but if the condition is complied with, the entire usufruct will belong to you if I should lose my civil rights, but if I retain my condition, the usufruct must be divided between us.
7. Paulus, On Sabinus, Book HI.
Where anyone bequeaths an usufruct to Attius and his heirs, Attius will be entitled to half the same, and his heirs to the remaining half. Where, however, the language is, "To Attius and Seius together with my heirs"; the usufruct will be divided into three parts, of which the heirs will have one, Attius one, and Seius one; nor does it make any difference whether the bequest is to A and B with Mævius, or "to A and B and Mævius".
8. Ulpianus, On Sabinus, Book XVII.
Where an usufruct is bequeathed to a woman, "with her children"; and she loses her children, she will be entitled to the usufruct; but where the mother dies, her children will, nevertheless, be entitled to the usufruct by the right of accrual. For, as Julianus remarks in the Thirtieth Book of the Digest, the same rule must be understood to apply where a testator appoints his children his sole heirs; even though he does not name them as legatees, but only wishes to make it more plain that the mother shall enjoy the estate, and have her children enjoy it with her. But Pomponius makes the inquiry: "What if the children and the foreign heirs are mingled together?" He says that the children must be understood to be legatees; and, on the other hand, if the testator wished his children to enjoy the estate along with their mother, it must be held that the mother should be understood to be a legatee; so, in this instance, the effect of the law will be in every respect similar to that previously mentioned.
9. Africanus, Questions, Book V.
Where the mere property of an estate is bequeathed to two parties and the usufruct to one, all of them are not entitled to third parts of the usufruct, but two of them take half and the usufructuary the other half. On the other hand the same rule applies where there are two usufructuaries and one legatee of the estate.
10. Ulpianus, On the Edict, Book XVII.
Sometimes a share of the usufruct is obtained through accrual by a party who has no share of his own, but has lost it; for if an usufruct is bequeathed to two persons, and one of them, after issue is joined, loses his usufruct, and soon after his co-legatee who did not join issue loses his also; then the one who joined issue against the party who offered himself to defend the suit, will obtain from the possessor only the half which he lost; for the share of his co-legatee will belong to him by accrual, but not to the owner of the property; for the usufruct accrues to the person, even though it may have been lost.
11. Papinianus, Definitions, Book II.
Where an usufruct in the same thing is bequeathed to different persons at the charge of different heirs, the usufructuaries are not less held to be separate than if the usufruct of the same property had been bequeathed to the two in equal shares; whence it happens that no right of accrual exists between them:
12. Ulpianus, On Sabinus, Book XVII.
Since each legatee can bring an action against one of the heirs to recover the usufruct.
TITLE III. WHEN THE LEGACY OF AN USUFRUCT VESTS.
1. Ulpianus, On Sabinus, Book XVII.
Although an usufruct consists of enjoyment, that is to say, in some effort exerted by him who enjoys and uses the right; still, it vests but once, and it is different from where something is bequeathed every month, or every day, or every year; for then the legacy vests daily, monthly, or yearly. Wherefore the question may arise, where an usufruct is bequeathed to anyone, for every day, or for every year, does it vest but once? I think that it does not, but as many times as it is mentioned, so that there are several legacies. Marcellus approves this opinion in the Fourth Book of the Digest, where an usufruct is bequeathed to anyone for alternate days.
(1) Therefore, if an usufruct is bequeathed which cannot be enjoyed every day, the bequest will not be invalid, but it will vest on the day when it can be enjoyed.
(2) An usufruct, however, and likewise an use, will not vest before the estate is entered upon, for an usufruct is not created until someone can immediately enjoy it. According to this rule, if the usufruct is bequeathed to a slave forming part of an estate, Julianus holds that, although other legacies may be acquired by the estate, in the case of an usufruct we must wait for the person of the owner who can use and enjoy the same.
(3) Moreover, if an usufruct is bequeathed from a certain day, it will not vest until the day arrives; for it is established that an usufruct can be bequeathed from a certain time or until a certain time.
(4) Not only does an usufruct not vest before the estate is entered upon, but a right of action based upon usufruct does not do so either; and the same rule applies where an usufruct is bequeathed after a certain day; hence, Scævola says that a party who brings an action before the day of the usufruct will gain nothing; although any legal procedure which is instituted before the proper time is void.
IN WHAT WAYS USUFRUCT OR USE IS LOST.
1. Ulpianus, On Sabinus, Book XVII.
It is established that an usufruct is not only lost by forfeiture of civil rights, but that the right of action based on usufruct is also lost; and it makes little difference whether the usufruct was created by law or with the assistance of the prætor. Hence, where an usufruct is delivered, or is created not strictly by law but through a perpetual lease,
or occupancy of the surface of land, it is lost with the forfeiture of civil rights.
(1) Thus usufruct can be lost by a forfeiture of civil rights only where it has been already created; but if anyone forfeits his civil rights before the estate is entered upon, or before the usufruct has vested, it is held that it is not lost.
(2) Where an estate in land is devised to you from a certain day, and you are asked to deliver the usufruct to me, it should be considered whether, if I have lost my civil rights before the day mentioned in the devise to you, my usufruct is not safe; as the loss of civil rights must occur before the usufruct vests, which may be said to be a liberal interpretation.
(3) To such an extent is it a fact that the loss of civil rights not only destroys an usufruct which has already been created, but if an usufruct has been bequeathed for every year, month, or day, that only is lost which is running at the time; and where, for instance, it is bequeathed for separate years, the usufruct for that year only is lost, and if for separate months, that month, and if for separate days, that day.
2. Papinianus, Questions, Book XVII.
Where an usufruct is left to two parties separately for alternate years, the property exists for years without the right of enjoyment; while, if it is left to one legatee alone to whom the usufruct for every other year is bequeathed, the entire property will vest in the heir during the time when the right of enjoyment does not belong to the legatee. Where, however, one of the two parties dies, the right to the property will be complete for the odd years, for there can be no accrual to the other party) since each one had his own times for the enjoyment of the entire usufruct without the other being associated with him.
(1) Where not death, but a loss of civil rights takes place, then, because there are several bequests, the usufruct only for that year will be lost, provided the party had the right of usufruct merely for that time; and this principle should be upheld in the case of a legatee who received the usufruct for a certain number of separate years, so that the mention of the terms has the effect of a renewal of the right.
(2) Where an usufruct is bequeathed to certain persons for alternate years, and they agree to enjoy it during the same year, they interfere with one another, since it does not seem to have been intended that they should enjoy it together; for it makes a great deal of difference whether an usufruct is bequeathed to two persons together for alternate years, (as then it cannot run longer than the first year, any more than if it had been bequeathed in the same way to one of them) or it is bequeathed to separate persons for alternate years; for if they wish to enjoy it together they will either interfere with one another, on account of this being contrary to the intention of the testator; or, if this is not the case, the usufruct for every other year will not be enjoyed by anyone.
3. Ulpianus, On Sabinus, Book XVII.
Just as an usufruct can be bequeathed for separate years, so also it can again be bequeathed if lost by forfeiture of civil rights, as where the addition is made: "Whenever So-and-So loses his civil rights I bequeath to him"; or, as follows: "Whenever it shall be lost"; and then, if it is lost by the forfeiture of civil rights, it will be considered to have been renewed. Wherefore, it has been discussed, where an usufruct is bequeathed to anyone for as long as he lives, whether it must be held to be renewed as often as it is lost? Mæcianus adopts this opinion, and I think that it must be held to be renewed; therefore if an usufruct is bequeathed for a certain time, as for instance, for ten years, the same principle will apply.
(1) The question arises with reference to the renewal which takes place after an usufruct has been lost by forfeiture of civil rights, whether the right of accrual remains unimpaired; for example, where an usufruct was bequeathed to Titius and Mævius, and Titius, having lost his civil rights, the testator bequeathed him the usufruct a second time; and inquiry was made if Titius should again receive the usufruct by renewal whether the right of accrual would remain unimpaired between the parties? Papinianus states in the Seventeenth Book of Questions that it does remain unimpaired, just as if some other person had been substituted for Titius in the enjoyment of the usufruct; for these parties are held to be conjoined in fact, if not in words.
(2) Papinianus also asks if the testator, after having left the usufruct to Titius and Mævius, in the second bequest of the same, did not leave the entire usufruct but only a portion of it to Titius, would they be considered to be conjoined? He says in reply, that if Titius should lose his share, it would all accrue to his associate; but if Mævius should lose his, the whole would not accrue, but half would belong to him, and half would revert to the property.
This opinion is reasonable, for it cannot be held that the ground on which a person loses the usufruct and takes it back will entitle him to any accrual from the usufruct; as it is our opinion that he who loses an usufruct can gain nothing by accrual out of what he loses.
(3) There is no doubt whatever that an usufruct can also be lost by death; since the right of enjoyment is extinguished by death, just as any other right which attaches to the person.
4. Marcianus, Institutes, Book III.
Where the legatee of an usufruct is requested to deliver it to another person, the prætor should provide that, if it is lost, it should rather affect the person of the trustee than that of the legatee.
5. Ulpianus, On Sabinus, Book XVII.
An usufruct which has been bequeathed may be renewed without reference to the way in which it was lost, provided that it was not lost by death, unless the testator, under such circumstances, bequeathed it to the heirs of the usufructuary.
(1) Where anyone alienates only the usufruct in a slave by whom he has acquired an usufruct, there is no doubt that he retains the usufruct which was acquired through him.
(2) It is established that an usufruct is terminated by a change of the property to which it belongs; for example, if a bequest was made to me of the usufruct in a house, and the house has been demolished, or burned, the usufruct is unquestionably extinguished. Does this also apply to the ground? It is absolutely certain that where the house is burned down, no usufruct remains in either the ground or the materials; and Julianus is of this opinion.
(3) Where the usufruct of the ground is bequeathed, and a house is built upon the latter, it is established that the property is changed, and that the usufruct is extinguished. It is clear that if the mere owner built it, he will be liable to an action on the will, or to one on the ground of fraud.
6. Pomponius, On Sabinus, Book V.
And the usufructuary will be entitled also to the interdict Quod vi aut clam;
1. Julianus, Digest, Book XXXV.
Unless the building having been removed, the owner grants me an usufruct in the ground; that is where the time had elapsed by which the usufruct was lost.
8. Ulpianus, On Sabinus, Book XVII.
Where the usufruct of an estate is bequeathed, if the house should be destroyed the usufruct will not be extinguished, because the house is an accession to the land; any more than if trees were to fall.
9. Paulus, On Sabinus, Book HI.
But I could still use and enjoy the ground on which the house had stood.
10. Ulpianus, On Sabinus, Book XVII.
What would be the case, however, if the land was an accession to the house? Let us see whether, in this instance, the usufruct of the land would not also be extinguished, and we must hold the same opinion, namely, that it would not be extinguished.
(1) The usufruct is extinguished not only where the building has been levelled with the ground, but also where, after having demolished the house, the testator erects a new one in its place; for it is evident that if he repairs certain portions of it we must establish a different rule, even though the entire house should be renewed.
(2) Where the usufruct of a field or an enclosure is bequeathed, and it is inundated so as to become a pond, or a swamp, the usufruct will undoubtedly be extinguished.
(3) Moreover, where the usufruct of a pond is bequeathed, and it dries up so that it becomes a field; the property being changed, the usufruct is extinguished.
(4) I do not think, however, where the usufruct of tillable land is bequeathed and vineyards are planted thereon, or vice versa, that the usufruct is extinguished. It is certain, however, where the usufruct of a wood is bequeathed, and the trees are cut down, and seed sowed upon the land, that the usufruct is extinguished.
(5) Where the usufruct of a mass of metal is bequeathed, and vessels are made out of it, or vice versa, Cassius, as quoted by Urseius, says that the usufruct is terminated, and I think this opinion to be the correct one.
(6) Thus, where an ornament is destroyed, or its shape is changed, this extinguishes the usufruct therein.
(7) Sabinus also states with reference to the usufruct of a ship, that where certain portions of the same are repaired, the usufruct is not lost; but where it is taken apart, even though it should be rebuilt out of the same timber and nothing additional be supplied, the usufruct will be extinguished; and this opinion I think to be the better one, for where a house is rebuilt, the usufruct is extinguished.
(8) Where the usufruct in a team of four horses is bequeathed, and one of them dies, the question arises, is the usufruct extinguished? I think that it makes a great deal of difference whether the usufruct in the horses, or in the team was bequeathed; for, if it was that of the horses it will remain in the others, but if it was that of the team, it will not remain, as it has ceased to be a team:
11. Paulus, On Sabinus, Book III.
Unless, before the legacy vests, another horse is put in the place of the one that died.
12. Ulpianus, On Sabinus, Book XVII.
Where the usufruct of a bath is bequeathed, and the testator changed it into a lodging, or a shop, or made a residence out of it, it must be held that the usufruct is extinguished.
(1) Hence, if anyone leaves an usufruct in an actor and then transfers him to some other kind of service, it must be said that the usufruct is extinguished.
13. Paulus, On Sabinus, Book HI.
If an usufructuary has harvested a crop and then dies, Labeo says that the crop which is lying on the ground belongs to his heir, but that the grain still attached to the soil belongs to the owner of the land; for the crop is considered to be gathered when the heads of grain or stems of grass are cut, or the grapes are picked, or the olives are shaken off the trees, although the grain may not yet have been ground, or the oil made, or the vintage finished. But although what Labeo stated with reference to the olives being shaken off the trees is true, the rule is not the same concerning those which have fallen of themselves. Julianus says that the crops become the property of the usufructuary when he has gathered them, but that they belong to a bona-fide possessor as soon as they are once separated from the soil.
14. Pomponius, On Sabinus, Book V.
With the exception of the loss of civil rights and death, other causes of the extinction of usufruct allow partial loss of the same.
15. Ulpianus, On Sabinus, Book XVIII.
Sometimes the mere owner can grant freedom to a slave, for example, where the usufruct was bequeathed until the slave should be manumitted; for the usufruct is extinguished whenever the owner begins the manumission.
16. The Same, Disputations, Book V.
Where an usufruct is bequeathed to me on a certain condition, and, in the meantime, it is in the possession of the heir, the latter can bequeath the usufruct to someone else; with the result that, if the condition on which my legacy depends is complied with, the usufruct left by the heir is terminated. But if I should lose the usufruct, it will not revert to the legatee to whom it was bequeathed absolutely by the heir, because the right of joint legatees cannot be acquired under different wills.
17. Julianus, Digest, Book XXXV.
Where the usufruct of land is bequeathed to you absolutely, and the mere ownership of the same is bequeathed to Titius conditionally, while the condition is unfulfilled you acquire the mere right of ownership, and after the condition has been complied with, Titius will be entitled to the land without any restriction; and it makes no difference that the property was bequeathed after the usufruct had been reserved, because when you acquired it you lost all the right to the legacy of the usufruct.
18. Pomponius, On Sabinus, Book III.
Where an usufruct is bequeathed to a slave belonging to an estate before the estate is entered upon, the better opinion is that when it is entered upon, the usufruct vests in you, and is not terminated because of change of ownership, because it did not vest before you became the heir.
19. Gaius, On the Provincial Edict, Book VII.
Neither an usufruct, nor a right of way, nor a right to drive, is lost by change of ownership.
20. Paulus, On Plautius, Book XV.
Will a person who has an usufruct retain it if he only makes use of it because he thinks that he is solely entitled to the use of the same? I am of the opinion that if he knows that he is entitled to the usufruct, and he only exercises the use, he must, nevertheless, be considered to enjoy the usufruct; but if he does not know this, he will lose the usufruct as his use is based not on what he has, but on what he thinks he has.
21. Modestinus, Differences, Book III.
Where an usufruct is bequeathed to a city, and the site of it is afterwards turned into a plowed field, it ceases to be a city, as was the fate of Carthage; therefore it ceases to have the usufruct, just as in case of death.
22. Pomponius, On Quintus Mucius, Book VI.
Where the use of a house is bequeathed to a woman, and she goes beyond sea and is absent for the time established by law for the loss of the use, but her husband uses the house, the use is, nevertheless, retained; just as if she had left her slaves in her house, and herself had travelled in foreign countries.
This must be stated even more forcibly if a husband leaves his wife at home, where the use of the house was bequeathed to the husband himself.
23. The Same, On Quintus Mucius, Book XXVI.
Where a field whose usufruct is ours is flooded by a river or by the sea, the usufruct is extinguished, since even the ownership itself is lost in this instance; nor can we retain the usufruct even by fishing. But as the ownership is restored if the water recedes with the same rapidity with which it came, so also, it must be said that the usufruct is restored.
24. Javolenus, On the Last Works of Labeo, Book III.
If I have the usufruct of a garden, and a river covers it and then recedes; it is the opinion of Labeo that the usufruct is also restored, because the soil always remained in the same legal condition. I think that this is true only where the river covered the garden by reason of an inundation; for if its bed was changed and it flowed in that direction, I think that the usufruct is lost, as the ground of the former bed becomes public property, and cannot be restored to its former state.
(1) Labeo states that the same rule of law should be observed with reference to a right of way and a road; but I am of the same opinion with reference to these things as I am with reference to the usufruct.
(2) Labeo says that even if the surface of the ground is removed from my field and replaced with other soil, the land does not, for this reason, cease to be mine, any more than if the field were covered with manure.
25. Pomponius, Various Passages, Book XI.
It is established that an usufruct may be lost by want of use, whether it is that of a share or is undivided.
26. Paulus, On Neratius, Book I.
Where a field is occupied by enemies, or a slave is taken by them and afterwards liberated; the usufruct in either is restored by the right of postliminium:
27. The Same, Manuals, Book I.
Where a slave in whom another party has an usufruct is surrendered, by way of reparation for damage, by the mere owner to the usufructuary; the servitude is merged and the usufruct terminated by the acquisition of the property.
28. The Same, On Plautius, Book XIII.
If an usufruct is bequeathed for alternate years, it cannot be lost by not making use of it; because there are several legacies.
29. Ulpianus, On Sabinus, Book XVII.
Pomponius asks the following question: Where the mere owner of land rents it from me as usufructuary, and sells the same land to Seius without the reservation of the usufruct; do I retain the usufruct on account of the act of the purchaser? He says in reply: that although the mere owner may pay me rent, the usufruct nevertheless is extinguished, because the purchaser enjoys it not in my name, but in his own.
It is evident that the mere proprietor is liable to me on account of the lease, to the extent of the interest I had in his not doing this; although, if anyone rents the usufruct from me and leases it to another, the usufruct is retained; but if the mere owner leases it in his own name, it must be held to be lost, for the tenant does not enjoy it in my name.
(1) But if the mere owner should sell the usufruct after it had been purchased from me, it might be asked, would I lose the usufruct? I think that I would lose it; since the purchaser, in this instance also, does not enjoy it as having been bought from me.
(2) Pomponius also makes this inquiry: If I am asked to deliver to you an usufruct which has been bequeathed to me, am I held to enjoy it through you, so that the usufruct will not be lost? He replied that he is in doubt with reference to this question; but the better opinion is, as Marcellus states in a note, that this matter does, in no way, prejudice the beneficiary of the trust, as he will be entitled to a prætorian action in his own name.
30. Gaius, On the Provincial Edict, Book VII.
The flesh and hides of dead cattle do not form part of the product of the same, because the usufruct is extinguished as soon as they are dead.
31. Pomponius, On Quintus Mucius, Book IV.
Where the usufruct of a flock is bequeathed, and the number of the same is reduced to such a point that it cannot be considered a flock, the usufruct terminates.
CONCERNING THE USUFRUCT OP THINGS WHICH ARE CONSUMED OR DIMINISHED BY USE.
1. Ulpianus, On Sabinus, Book XVIII.
The Senate decreed that, "the usufruct of all property which it is established could belong to the patrimony of any individual, can be bequeathed"; and, as the result of this Decree of the Senate, it is held that the usufruct of those things which are destroyed or diminished by use can be bequeathed.
2. Gaius, On the Provincial Edict, Book VII.
In the case of money, however, it is necessary for security to be given to those at whose charge the usufruct of this money is bequeathed.
(1) By this Decree of the Senate it was not brought about that an usufruct of money should actually exist, for natural reason cannot be altered by the authority of the Senate; but where the remedy of security is introduced, a quasi usufruct was created.
3. Ulpianus, On Sabinus, Book XVIII.
After this the usufruct of anything can be bequeathed. But does this apply to an obligation? Nerva says that it does not; but the better opinion is the one entertained by Cassius and Proculus, namely, that it can be bequeathed. Nerva, moreover, says that the usufruct can be bequeathed to the debtor himself, and if this is done he must be released from paying interest.
4. Paulus, On Neratius, Book I.
Therefore security can also be required of him.
5. Ulpianus, On Sabinus, Book XVIII.
This Decree of the Senate not only has reference to a party who bequeaths the usufruct of money or other things which he has, but also where they belong to others.
(1) Where the usufruct of money is bequeathed, or that of anything else which consists in the consumption of the same, and security is not given; it must be considered when the usufruct is terminated, whether the money, or the other articles which are used by consumption can be recovered by a personal action? But so long as the usufruct exists, if anyone wishes to bring suit to compel the execution of a bond, it may be stated that an action can be brought for an uncertain sum on account of the omitted bond; but after the usufruct is terminated, Sabinus thinks that proceedings can be instituted for the recovery of the entire amount. This opinion Celsus adopts in the Eighteenth Book of the Digest, and it does not seem to me devoid of ingenuity.
(2) What we have stated with reference to the usufruct of money or of other articles which are made use of by consumption, also applies
to the use of the same; for both Julianus and Pomponius state in the Eighth Book of Stipulations, that the use and usufruct of money are identical.
6. Julianus, Digest, Book XXXV.
If ten thousand aurei are bequeathed to you and the usufruct of the same ten thousand to me, the entire ten thousand will belong to you; but five thousand must be paid to me on condition that I give security to you that, "At the time of my death or loss of civil rights, they will be delivered to you"; for, if a tract of land is devised to you, and the usufruct of the same land to me, you would, indeed, have the ownership of the entire tract, but you would have part of it together with the usufruct, and part of it without, and I should give security which would be approved by a good citizen to you and not to the heir.
(1) But where the usufruct of the same ten thousand aurei is bequeathed to two persons, they will each receive five thousand, and must give security to one another and also to the heir.
7. Gaius, On the Provincial Edict, Book VII.
Where the usufruct of oil, wine, or grain is bequeathed, the property should be delivered to the legatee, and he should be required to give a bond that, "Whenever he dies or forfeits his civil rights, articles of the same quality shall be delivered"; or the former article must be appraised and security be given for a certain sum of money, which is more convenient.
We understand the same rule to apply to other things, the value of which is embraced in their use.
8. Papinianus, Questions, Book XVII.
Three heirs having been appointed by a testator, he bequeathed to Titius the usufruct of fifteen thousand aurei, and ordered two of the heirs to give security for the legatee. It was decided that there was a Valid legacy of the security, and that the Decree of the Senate did not oppose this interpretation, because the execution of the bond was not prevented; and that one of the legacies was for a certain amount, and the other for an amount which was uncertain, and therefore that suit might be brought for a part of the money as usufruct against the heir who had received security from his co-heir; and that he was liable to an action for an uncertain amount if he himself did not give security. With reference, however, to the heir who furnished security, and who, on account of the delay of his co-heir, had not received any, he would not, in the meantime, be liable under the Decree of the Senate for the usufruct, nor would he be liable to the action for uncertain damages because he had given security to his co-heir.
We are also of the opinion that the legatee can be compelled to promise; but when the usufruct is terminated, if the co-heirs are sued on account of their suretyship, they will not be entitled to an action on mandate, as no mandate was ever undertaken, but they only obeyed the will of the testator, and, in short, are released by the legacy of security.
It is not necessary to enter into a long discussion with reference to the following question, namely, that the second legacy, that is to say the one of the security, does not seem to have been left to the heirs but to the party to whom the usufruct of the money was bequeathed, and for whom the testator wished to provide, and whose interest he thought it was that he should not seek for sureties at his own risk.
9. Paulus, On Neratius, Book I.
In a stipulation having reference to the restoration of the usufruct of money, two occurrences also are mentioned, namely, death, and the loss of civil rights.
10. Ulpianus, On the Edict, Book LXXIX.
Since the use of money cannot be lost in any other way than by the said occurrences.
(1) Where only the use of money is bequeathed, since it must be understood, in this particular instance, that the term "use" also includes the profits, a stipulation must be entered into. Certain authorities hold that a stipulation should not be entered into before the money has been paid; but I am of the opinion that the stipulation will be valid whether it is made before, or after the money has been paid.
11. The Same, On Sabinus, Book XVIII.
Where the usufruct of wool, perfumes, or spices is bequeathed, it is held that no usufruct is legally created in these substances, but recourse must be had to the Decree of the Senate which provides for security with reference to them.
12. Marcianus, Institutes, Book VII.
Where money was left to Titius in such a way that after the death of the legatee it was to go to Mævius; the Divine Severus and Antoninus stated in a Rescript that, although it had been added that Titius was to have the use of the money, still, the property of the same was bequeathed to him, and that mention was made of the use because the money was to be paid over after his death.
CONCERNING THE ACTION FOR THE RECOVERY OF USUFRUCT, AND THAT BY WHICH IT IS DENIED.
1. Ulpianus, On Sabinus, Book XVIII.
Where a servitude is attached to land subject to an usufruct, Marcellus, in the Eighth Book quoted by Julianus, approves the opinion of Labeo and Nerva, namely, that the usufructuary cannot bring an action for the recovery of the servitude, but can bring one for the recovery of the usufruct; and, according to this, if the neighbor does not suffer him to walk or drive across the land, the latter is liable because he did not permit him to enjoy the usufruct.
(1) An usufruct requires those adjuncts to be bequeathed without which a party cannot enjoy it; and therefore where one is bequeathed, it is also necessary for access to be joined with it; to such an extent is this true, that where a person leaves the usufruct of a certain place in such language that the heir shall not be compelled to permit a road, this addition is considered void; and also where an usufruct is bequeathed and a right of way is withheld, the reservation is void, because a right of access always accompanies the usufruct.
(2) Where, however, an usufruct is bequeathed, and there is no right of access to the land which is subject to it and is part of the estate; the usufructuary can bring suit under the will to obtain the usufruct together with access to the same.
(3) Pomponius, in the Fifth Book, is in doubt as to whether, where an usufruct is bequeathed, the usufructuary has only a right of access, or has the right to a path or roadway as well? He very properly thinks that he ought to be granted means by which he may enjoy his usufruct.
(4) Will the heir be required to provide him with other benefits and servitudes also; as, for instance, those of light and water, or not? I am of the opinion that he can only be compelled to provide him with those alone without which he cannot use the property at all; but if he can use it, even with some inconvenience, the said benefits need not be furnished.
2. Pomponius, On Sabinus, Book V.
Where suit is brought for an usufruct of land under a will, against an heir who has cut down trees, demolished the house, or, in any way, diminished the value of the usufruct, either by imposing servitudes upon the land, or by releasing servitudes from neighboring property, it is the duty of the judge to ascertain what the condition of the land was before issue was joined, in order that the usufructuary may be protected by him in the enjoyment of what he is entitled to.
3. Julianus, Digest, Book VII.
Where a party to whom an usufruct was delivered in compliance with the terms of a trust, has ceased to use it for such a time as would have caused him to lose it if it had become his lawfully, he should not be granted an action for restitution; for it is absurd that parties who have only obtained possession of an usufruct and not the ownership of the same, should have the better right.
4. The Same, Digest, Book XXXV.
A tract of land was bequeathed to Titius, the usufruct having been reserved, and the usufruct of the same land was bequeathed to Sempronius, under a certain condition. I said that, in the meantime, the usufruct was united with the property, although it is settled that when land is bequeathed with reservation of the usufruct the usufruct remains with the heir, because when a testator bequeaths land with reservation of the usufruct, and the usufruct of the same to another under
some condition, he does not do so intending that the usufruct shall remain with the heir.
5. Ulpianus, On the Edict, Book XVII.
He alone can claim the right to use and enjoy property who has the usufruct of the same; the owner of the land cannot do so, because he who holds the property has not a separate right to use and enjoy it, as his own property cannot be subject to servitudes for his own benefit; and it is necessary for a party to bring suit in his own right and not in the right of another. For although a prohibitive right of action will lie in favor of an owner against an usufructuary, he is considered still more to sue in his own right, rather than in that of another, when he denies that the usufructuary has the privilege of use against his will, or alleges that he has a right to prohibit him. But if it should happen that the party who brings the action is not the owner of the property, even though the usufructuary has not the right to use it, he will still prevail, on the principle that the condition of possessors is preferable, even though they may have no legal right.
(1) The question arises, whether the usufructuary has a right of action in rem only against the mere owner, or also against some possessor? Julianus states in the Seventh Book of the Digest, that he is entitled to this action against any possessor whomsoever; for where a servitude is attached to land which is subject to usufruct, the usufructuary should bring suit against the owner of the adjoining land, not for the recovery of the servitude, but for the recovery of the usufruct.
(2) Where an usufruct is created in part of an estate an action in rem can be brought with reference to it, if someone claims an usufruct in the same, or denies that another is entitled to it.
(3) In all those actions which are brought with reference to usufruct, it is perfectly evident that the crops are involved.
(4) If, after issue has been joined in a case of usufruct, the usufruct is terminated, can any crops be claimed subsequently? I thing that they cannot, for Pomponius states in the Fortieth Book, that if the usufructuary should die, his heir would be entitled to an action only for crops which were due before his decease.
(5) Everything must be restored to the usufructuary who gains his case, and therefore where the usufruct of a slave is bequeathed, the possessor must surrender everything which he obtained by means of the property of the usufructuary, or from the labor of the slave.
(6) But if the usufruct should, perchance, be lost by lapse of time, one party being in possession, and another volunteering to defend the suit; it is not sufficient for the latter to renew the usufruct, but he must give security against its recovery by eviction. What if the party in possession had pledged a slave or the land for a debt, and the claimant should be forbidden by the person who received the pledge from making use of his right? Hence, he also will be entitled to security.
(7) Just as where the crops must be delivered to the usufructuary who brings an action in rem for his usufruct, they must likewise be
delivered to the mere owner of the property, if he brings a prohibitory action.1 But, in any event, this is the case only where the party who brings suit is not the possessor; for the possessor is entitled to certain actions; but where either party is in possession he will obtain nothing by way of crops. Therefore, is it the duty of the judge to allow the usufructuary to have the privilege of enjoying the crops in security, and prevent the owner of the property from being disturbed?
6. Paulus, On the Edict, Book XXI.
Where a party has joined issue with reference to an usufruct, he will be discharged if he relinquishes possession without fraud; but if he voluntarily undertook to defend the case, and joined issue as if he were the possessor, judgment shall be rendered against him.2
1 The Actio Negatoria, or prohibitive action, was brought by a party who denied that the defendant enjoyed some exclusive privilege to which he alleged that he was entitled, and the exercise of which interfered with the natural rights of the plaintiff. It was, of course, an equitable or prætorian proceeding. The prayer of the petition asked for a decree setting forth that no such exclusive privilege was enjoyed by the defendant, and that he be ordered not to do anything which might obstruct or prevent the performance of any act of the plaintiff with reference to the question at issue, provided it was not in violation of the principles of natural liberty, or prohibited by the Common Law or by special legislation. In this respect the Actio Negatoria presented some analogy to an injunction. ED.
2 Usufruct, in its origin, only applied to corporeal substances, but afterwards incorporeal rights were made subject to the rules by which it was established and governed. Generally speaking, the most essential principle of its exercise was the preservation of the property of which the usufructuary enjoyed the benefit from loss or injury at his hands. As strict adherence to this principle was often found to be inconvenient in practice, a quasi usufruct was granted in many kinds of chattels, for instance, grain, wine, oil, and clothing, which were destroyed by use; and an obligation arose for the delivery of other articles equal in quality, quantity, and value to those worn out or consumed. While a legal distinction was made between use and usufruct the latter, nevertheless, included the former, without which, indeed, it could not be said to exist.
The right of usufruct was created either by agreement between the parties or by testamentary provision. It was extinguished by prescription; by the destruction of the property to which the right attached; by transfer of both the ownership and the usufruct under the control of the same individual; or by the death of the usufructuary or his forfeiture of civil rights.
The usufructuary was only entitled to the ordinary income of the property; he was not allowed to change its form; he was bound to use ordinary diligence for its preservation, and was forbidden to commit waste; and the crops of the land or the profits of the animals did not belong to him until they had been separated from whatever had produced them.
Usufruct was not recognized by the Common Law. A life estate bears some resemblance to it, principally in the fact that it is determined by either the civil or the natural death of the tenant, but the rights of the latter are much more restricted in their scope than those enjoyed by the usufructuary.
Under the French Law, the right of usufruct is applicable to every description of property, movable or immovable. The usufructuary takes the property as he finds it, but he cannot enter on its enjoyment until an inventory has been drawn up. He is required to give bond to take such care of the property as would be exercised by the prudent head of a household. He can sell, or otherwise dispose of, his right to anyone. (Code Civil, Arts. 578-615.) The provisions of the Spanish, Italian, and Portuguese Codes are similar in their character. (Código Civil de España, Arts. 467-522. Codice Civile del Regno d'Italia, 476-520. Código Civil Portuguêz, Arts. 2197-2253.) ED.
TITLE VII. CONCERNING THE SERVICES OF SLAVES.
1. Paulus, On the Edict, Book II.
Services consist of acts, and in the nature of things they do not exist before the day comes in which they are to be rendered; just as when we make a stipulation for a child which is to be born of Arethusa.
2. Ulpianus, On the Edict, Book XVII.
The services of a slave which have been bequeathed are not lost by the forfeiture of civil rights.
3. Gaius, On the Provincial Edict, Book VII,
In the usufruct of a slave, his services as well as compensation for the same are included.
4. The Same, On the Urban Edict Relating to Freedom, Book II. The produce of a slave consists of his services, and on the other
hand, the services of a slave are what he produces. And, as, in other matters, the produce is understood to be what is left after the necessary expenses have been deducted, this is also the case with refence to the services of slaves.
5. Terentius Clemens, On the Lex Julia et Papia, Book XVIII. Where the services of a slave are bequeathed, I have always been
taught, and Julianus holds, that the use is understood to be given.
6. Ulpianus, On the Edict, Book LV.
Where an action is brought for the services of a slave who is an artisan, payment must be made in proportion to their value; but in the case of an ordinary laborer, this will depend upon the kind of work he does, which was the opinion of Mela.
(1) Where a slave is under five years of age, or is weak, or is one who is unable to do any work for his owner, no estimate of the value of his services shall be made.
(2) Nor shall any estimate of them, based upon the pleasure or affection of the owner, be considered; for example, where the owner is greatly attached to him, or employs him in his pleasures.
(3) Moreover, the value of his services shall be estimated after necessary expenses have been deducted.
CONCERNING USE AND HABITATION.
1. Gaius, On the Provincial Edict, Book VII.
Let us now consider use and habitation. A mere use may be created, that is to say, without complete enjoyment; and this is ordinarily created in the same ways as an usufruct.
2. Ulpianus, On Sabinus, Book XVII.
Where the use is left, a party can use but not enjoy. Now let us examine certain cases.
(1) The use of a house is left to the husband, or to the wife; where it is left to the husband, he can not only live in it himself, but can also reside there with his slaves. The question arose whether he could live there with his freedmen. Celsus holds that he can not only do so, but, that he can also entertain a guest; for he states this in the Eighteenth Book of the Digest, which opinion Tubero approves. Moreover, I remember that the question whether he can take a tenant is discussed by Labeo in the Book of his Last Works, who says that he who resides there can take a tenant, as well as entertain guests, along with his freedmen,
3. Paulus, On Vitellius, Book III. And his clients.
4. Ulpianus, On Sabinus, Book XVII.
But persons of this kind must not live in the house without him. Proculus, however, in a note on tenants, says that one cannot properly be designated a tenant, who lives with him. In accordance with this, if the party having the use of the property collects rent as long as he himself lives in the house, this should not be mentioned to his prejudice; for suppose that the use of a large house was left to a man in moderate circumstances, so that he is content with a small portion of the same? Again, he may live with persons whom he employs in labor instead of slaves, even though they are free, or the slaves of others.
(1) Where the use is left to a woman, Quintus Mucius first admitted that she could live with her husband, since otherwise, if she wished to use the house, she would have to remain unmarried; for, on the other hand, there never was any doubt that a wife could live with her husband. Where the use is bequeathed to a widow, could this woman, if she contracted a second marriage after the use was established, reside there with her husband? And it is true, (as Pomponius in the Fifth Book, and Papinianus in the Nineteenth Book of Questions holds) that her husband can live with her if she is married subsequently. Pomponius goes still farther, and says that her father-in-law can also live with her.
5. Paulus, On Sabinus, Book III.
Moreover, a father-in-law can live with his daughter-in-law; at all events, if her husband lives there also.
6. Ulpianus, On Sabinus, Book XVII.
A woman can not only have her husband live with her, but also her children and her freedmen, as well as her parents. Aristo states this in a note on Sabinus. Indeed, we may go as far as to say that women can entertain the same persons that men can.
7. Pomponius, On Sabinus, Book V.
A woman, however, cannot receive anyone as a guest, unless he can live respectably with her who has the use of the house.
8. Ulpianus, on Sabinus, Book XVII.
Parties who have a right to use cannot lease the premises and give up their residence there, nor can they sell the use of the same.
(1) Where, however, the use of a house was bequeathed to a woman on condition that she would separate from her husband, she can be released from this condition, and can live with her husband. This opinion Pomponius also adopts in the Fifth Book.
9. Paulus, On Sabinus, Book HI.
Where the use of everything else is bequeathed, it must be held that the wife is entitled to the use of the property in common with her husband.
10. Ulpianus, On Sabinus, Book XVII.
Where the right to a residence is left, the question arises is it the same as use? Papinianus in the Eighteenth Book of Questions admits that the bequest of use and habitation have practically the same effect; for the legatee of a right to a residence cannot give it away; he can entertain the same persons as the party who has the use; it does not pass to the heir; nor is it lost by want of use, nor by the forfeiture of civil rights.
(1) But where cresiV is left, it must be considered whether this constitutes use, and Papinianus in the Seventh Book of Opinions, states that the use is left, but not the income.
(2) Where, however, this is left in the following terms, "To Soand-So, the usufruct of the house for the purpose of residence therein"; it must be considered whether he is entitled only to the residence or to the usufruct as well? Priscus and Neratius think that the right of residence alone is left; which is correct. It is evident that if the testator had said, "The use for the purpose of residence", we would not doubt that it was valid.
(3) The question was raised by the ancient authorities whether the right of residence for a year would endure for life? Rutilius says that the right of residence belongs to the party as long as he lives, and Celsus in the Eighteenth Book of the Digest approves this opinion.
(4) Where the use of a tract of land is left, this is very much less than the crops, as no one doubts. Let us see, however, what is involved in this bequest. Labeo says the legatee can live on the land and can prevent the owner from entering thereon; but he cannot prevent a tenant or the slaves of the owner from doing so; that is to say, those who are there for the purpose of cultivating the soil, but if the owner should send his household slaves there, they can be prevented from entering, on the same principle that the owner himself can be prevented from doing so. Labeo also states that the usuary can alone make use of the store-rooms for wine and oil, and that the owner cannot use them if the former is unwilling.
11. Gaius, Diurnal, or Golden Matters, Book II.
The party entitled to the use can remain on the land only as long as he does not molest the owner of the same, or interfere with those who are engaged in agricultural pursuits; and he cannot sell, lease, or transfer gratis to anyone the right which he has.
12. Ulpianus, On Sabinus, Book XVII.
He has a right to have the full use, if that of the farm-house and the country-seat are left him. It is evident that it must certainly be held that the proprietor is entitled to come for the purpose of gathering the crops, and, during the time of the harvest, it must be admitted that he can live there.
(1) In addition to the right of residence to which the person who was granted the use is entitled, he has also the right of walking and driving around. Sabinus and Cassius state that he is likewise entitled to firewood for daily use, and also to the garden, and to apples, vegetables, flowers, and water, not however, for profit but merely for use and not to be wasted. Nerva holds the same opinion, and adds that he can use straw, but not leaves, oil, grain, or fruit. Sabinus, Cassius, Labeo, and Proculus go still further, and say that he can take enough out of what is raised on the land for his own maintenance and that of his family, in instances where Nerva denies him that right. Juventius holds that he can use these things for the benefit of his guests and the persons whom he entertains, and this opinion seems to me to be correct; for more indulgence may be accorded the usuary, on account of the respect due to a person to whom a use has been left. I think, however, that he can make use of these things only while in the house.
With reference to apples, vegetables, flowers, and firewood, it must be considered whether he can only make use of them in that place, or whether they can be delivered to him in the town; but it is better to adopt the rule that they can be brought to him in the town, for this is not a matter of great importance, if there is an abundant supply of them on the land.
(2) Where the use of a flock is left, for instance, a flock of sheep; Labeo says that they can only be used for their manure; as he can not use the wool, the lambs, or the milk, for these are to be classed with the profits. I think that he can go still farther, and use a moderate quantity of milk, as the wills of deceased persons should not be interpreted so strictly.
(3) Where the use of a herd of cattle is left, the legatee will be entitled to the entire use of the same for plowing or for any other purpose for which cattle are adapted.
(4) Also, where the use of a stud of horses is bequeathed, let us consider whether the legatee cannot break them to harness and use them for draft. If the party to whom the use of said horses is left is a charioteer, I do not think that he can use them for races in the circus, because this might be considered to be hiring them; but if the testator, when he left them, was aware that this was his occupation and mode
of life, he may be held to have intended them to be employed for this purpose.
(5) Where the use of a slave is left to anyone, he can use him for attendance upon himself, and upon his children and his wife, and he will not be deemed to have granted his right to another if he together with them make use of said slave; although if the employment of a slave is left to the son of a family or to another slave, as this will be acquired by the father or owner, he can only exact the use of him alone, and not that of those who are under his control.
(6) A legatee cannot lease the services of a slave subject to use, nor can he transfer them to another; and this is the opinion of Labeo. For how can a man transfer to another services which he himself should make use of? Labeo, however, holds that where a party has rented a farm, a slave of whom he has the use can work there; for what difference does it make in what way he uses his labor? Wherefore, if the party entitled to the use enters into a contract for the spinning of wool, he can have this done by female slaves of whom he has the use; and also, if he makes a contract for the weaving of clothing, or for the building of a house or a ship, he can employ the labor of the slave of whom he has the use. This opinion does not conflict with that of Sabinus that, where the use of a female slave is granted, she cannot be sent to a wool-factory, nor compensation be received for her labor; but the legatee must, in accordance with law, have her work the wool for himself; for she is held to do this for him where he does not hire her labor, but performs the work which he agreed to do. Octavenus also approves this opinion.
13. Gaius, On the Provincial Edict, Book VII.
It was held by Labeo that a male or a female slave can be compelled to pay money instead of working.
14. Ulpianus, On Sabinus, Book XVII.
If I stipulate, or receive anything by delivery through a slave of whom I have the use, the question arises whether I make any acquisition either through my property or by his labor? It will not be valid if it is based on his labor, since I have no right to lease his services, but if what is acquired is derived through my property, we hold that if a slave of whom I have the use either stipulates or receives anything by delivery he acquires for me, since I am making use of his labor.
(1) It makes no difference whether the usufruct or the crop is bequeathed, for the use is included in the crop, but the crop does not include the use; and while a crop cannot exist without the use, still the use may exist without the crop. Hence, if the crop is bequeathed to you after the use has been reserved, the bequest is void, as Pomponius states in the Fifth Book On Sabinus; and he also says that where an usufruct is bequeathed but the crops are withheld, the entire legacy must be considered to be revoked. Where, however, the crop is bequeathed without the use it is held to have been created, since it might have been created in the beginning. But in case the usufruct is be-
queathed and the use is withheld, Aristo stated that there is no revocation. This opinion is the more liberal one.
(2) Where the use is bequeathed and afterwards the crop to the same person; Pomponius says that it is joined to the use. He also says that if the use is bequeathed to you and the crop to me, we hold the use in common, but that I alone will be entitled to the crop.
(3) The use, however, may belong to one person, the crop without the use to another, and the mere property to still another; for example, where a party who had a certain tract of land bequeathed the use of the same to Titius, and afterwards his heir bequeathed the crop to you, or transferred them to you in some other way.
15. Paulus, On Sabinus, Book III.
Where the use of land is bequeathed, the party entitled to the use can take sufficient supplies from the same to last only for a year; even though, by doing so, the crops of a moderate estate may be exhausted; for the same reason that he has a right to enjoy the use of a house and a slave in such a way that nothing which can be classed as produce may be left for another.
(1) Just as he to whom the use of land is bequeathed, cannot prevent the owner from coming there frequently for the purpose of cultivating the soil, as, by acting otherwise it would be precluding the owner from its enjoyment; so, also, the heir cannot act in any way so as to prevent the party to whom the use was bequeathed from making use of the land, as the careful head of the household should do.
16. Pomponius, On Sabinus, Book V.
Where the use of a tract of land is bequeathed in such a way that the latter must be provided with those things which are necessary for its cultivation, the use of them will belong to the legatee, just as if they had been expressly bequeathed to him.
(1) The owner of the property can have a watch kept over the land or the house by a forester or a steward, even if the usufructuary or the party entitled to use should be unwilling; for it is to his interest to protect the boundaries of his estate. All these things are applicable, no matter in what way the usufruct or the use has been created.
(2) If we are only entitled to the use of a slave, and not to the fruit of his industry, as well, something can be given to him by us, or he can even transact business with our money, so that whatever he acquires thereby shall belong to his peculium through us.
17. Africanus, Questions, Book V.
Where the use of a house is bequeathed to the son of a family, or to a slave, I think that this legacy is valid and the same method can be employed to recover it which could have been employed if the profits of the same had also been bequeathed. Therefore, the father or the owner can live in the house just as well when the son or the slave is absent as when he is present.
18. Paulus, On Plautius, Book IX.
If the use of a house is bequeathed without the rent, it is the duty of the heir as well as of the party entitled to the use of the same to keep it in repair, so that it will be closed and protected against the weather. Let us see, however, whether, if the heir receives the rent he himself is not obliged to make the repairs; but where the property the use of which is left is of such a description that the heir cannot collect the income thereof, the legatee will be compelled to repair it; which distinction is reasonable.
19. The Same, On Vitellius, Book III.
A portion of an use cannot be bequeathed; for we can enjoy a portion, but we cannot use one.
20. Marcellus, Digest, Book XIII.
A slave whose use is bequeathed to me acquires for me if he is my agent, and I employ his services in a shop; for he acquires for me by the sale and purchase of merchandise; and he likewise does so if he receives property through delivery by my order.
21. Modestinus, Rules, Book II.
The use of water is a personal right, and therefore cannot be transmitted to the heir of the party entitled to the same.
22. Pomponius, On Quintus Mucius, Book V.
The Divine Hadrian, where the use of a forest had been bequeathed to certain persons, decided that the produce of the same must also be held to have been bequeathed to them; because, unless they were permitted to cut down and sell the trees, just as usufructuaries are, they would obtain nothing from the legacy.
(1) Even though a legatee to whom the use of a house is bequeathed may be in such reduced circumstances that he cannot have the use of the entire building; still, the owner cannot use the part which is vacant, because the party entitled to the use will be permitted to use the entire house at one time or another; as occasionally the owner uses certain portions of a building and does not use others, according as the circumstances may demand.
(2) Where an use is bequeathed, if the legatee exercises his right to a greater extent than he should do, is it the duty of the judge to determine how far the use may be employed? He must see that he uses it not otherwise than he should do.
23. Paulus, On Neratius, Book I.
Neratius says that the owner of the property which is subject to an use cannot change its nature in any way. Paulus holds that he cannot make the condition of the party entitled to the use any worse; but he may make it worse, even where he improves the property.
TITLE IX. IN WHAT WAY AN USUFRUCTUARY MUST GIVE SECURITY.
1. Ulpianus, On the Edict, Book XCVII.
Where the usufruct of anything is bequeathed, it seemed to the prætor to be perfectly just that the legatee should give security with reference to two things; one, that will use the property as a good citizen should, and the other, that when the usufruct ceases to belong to him, he will restore what remains of it.
(1) This stipulation must be entered into, whether the property is movable, or consists of land.
(2) It must be borne in mind that this proceeding must also be employed in the case of trusts; for it is evident that if an usufruct is created by a donatio mortis causa, this security must be furnished in the case of legacies. Moreover, if the usufruct is created in any other manner, the same rule will apply.
(3) The party must give security that "the usufruct will be enjoyed as a good citizen would enjoy it"; that is to say, that the quality of the usufruct will not be deteriorated, and that he will do everything else which he would do, if the property belonged to him.
(4) The heir and the legatee will do well, as soon as the legatee begins to enjoy his right, to have it established by witnesses what the condition of the property is at the time, so that, by this means it may be apparent whether, and to what extent, the legatee has diminished the value of the property.
(5) It was considered more advisable that security should be given under these circumstances by means of a stipulation, so that if anyone should make use of the property in a way that a good citizen would not do, suit might be at once brought on the stipulation; and hence we do not have to wait until the usufruct terminates.
(6) This kind of a stipulation has reference to two cases; one where the party uses the property in a way which a good citizen would not do, and another where the usufruct must be restored; the first of these becomes operative as soon as an improper use of the property is made, and it may occur many times; the other takes effect when the usufruct expires.
(7) With reference to what we have stated, however, namely, that "he will restore what remains of it"; the owner does not stipulate for the thing itself, (as he would be considered to uselessly stipulate for his own property) he merely stipulates that whatever remains shall be restored. Sometimes, however, the provision for an appraisement of the property is inserted; for example, where an usufructuary who can prevent usucaption neglects to do so; as he undertakes to exercise every care over the property:
2. Paulus, On the Edict, Book LXXV.
For the usufructuary must be responsible for its safe keeping.
3. Ulpianus, On the Edict, Book LXXIX.
All cases in which the usufruct can be lost are included in this stipulation.
(1) We understand the usufruct to "cease to belong" to the usufructuary even if it has not commenced to belong to him at all, although it may have been bequeathed to him, and the stipulation will, nevertheless, become operative on the principle that property ceases to belong to a party in whom the ownership has not yet begun to vest.
(2) Where an usufruct is renewed by a legacy "every time that it is lost", this stipulation will become operative, unless the bond is properly drawn up, but an exception will be required.
(3) Where, however, anyone leaves you an usufruct and the ownership of the property as well, on the condition that you have children, and the usufruct should be lost; and action can be brought on the stipulation, but an exception will be available.
(4) Where an heir alienates the property, and the usufruct afterwards is lost, let us consider whether he can bring suit on the stipulation. It may more forcibly be stated that, in accordance with the strict principles of law, the stipulation does not become operative because the property cannot be delivered to the heir or his successor; and the individual to whom it can be delivered that is he in whom the ownership vests was not a party to the stipulation. The latter, however, must provide for the protection of his own rights by means of another bond, at the time when he obtains the ownership; but if he should not do this, he will, nevertheless, be entitled to an action in rem.
4. Venuleius, Stipulations, Book XII.
If the usufructuary should obtain the property, the usufruct ceases to belong to him on account of the merger of the same; but if suit is brought against him on the stipulation, it must be held either that he has not proceeded in accordance with the strict principles of law, if the doctrine governing the conduct of a good citizen is considered applicable; or that the party must make use of an exception based on what has taken place.
5. Ulpianus, On the Edict, Book LXXIX.
The provision, "That no fraud has been committed", or will be committed, is contained in this stipulation; and as this mention of fraud always relates to matters in rem, it is held to include the bad faith of any of the parties, whether he be one of the successors or an adoptive father.
(1) Where the use without the enjoyment is bequeathed, the prætor orders security to be given, with the enjoyment of the produce omitted. This is reasonable, since security is given solely with reference to the use, and not to the usufruct.
(2) Therefore the stipulation will be operative if the enjoyment is obtained without the use.
(3) Where the right of residence, or of the services of a slave or those of any other animal, are left, the stipulation will become necessary, although these things are not copied from the usufruct.
6. Paulus, On the Edict, Book LXXV.
The same rule is applicable to the returns from land, as for instance, where a vintage or a harvest is bequeathed; just as property obtained by means of an usufruct, if bequeathed, reverts to the heir on the death of the legatee.
7. Ulpianus, On the Edict, Book LXXIX.
Where property was delivered on account of an usufruct, and security was not given, Proculus says that the heir can bring an action for recovery, and if an exception is interposed on the ground that the property was delivered because of an usufruct, he will be entitled to a replication. This opinion is reasonable; but a personal action can be brought to compel the execution of a bond by the usufructuary.
(1) When the usufruct of a sum of money is bequeathed, the following two instances must be set forth in the stipulation, "Shall be paid when you die, or lose your civil rights"; and therefore these two instances alone are given, because the use of money cannot be lost in any other way than under such circumstances.
8. Paulus, On the Edict, Book LXXV.
If the usufruct is bequeathed to you, and the mere ownership to me, security must be given to me; but where the mere ownership is bequeathed to me on a condition, some authorities, and among them Marcianus, are of the opinion that security must be given both to the heir and to myself; Which opinion is correct. Moreover, if the property is bequeathed to me, and when it ceases to belong to me, will belong to another; in this case also security must be given to both, as we established in the preceding instance. Where the usufruct is bequeathed to two parties jointly, they will be required to give security to another, as well as to the heir; the condition being referred to in the following terms: "To surrender the usufruct to the heir, if it does not belong to the co-legatee".
9. Ulpianus, On the Edict, Book LI.
Where an usufruct is bequeathed to me, and I am asked to deliver it to Titius, it should be considered who is obliged to give security, whether Titius should do so, or I, the legatee? Or shall we say that the heir can bring an action against me, and that I must sue the beneficiary of the trust? It is better to hold that if I have any expectation arising out of the usufruct, so that it may revert to me, that is to the legatee, if you lose it; the question can be settled by your giving security to me, and by my giving security to the mere owner of the property. If, however, the usufruct was left to me in trust for the beneficiary, and there is no hope of its reverting to me, then the beneficiary should give security directly to the mere owner of the property.
(1) It must be borne in mind that whether a party has an usufruct by direct operation of law, or even through the assistance of the prætor, he should, nevertheless, be compelled to give security or to defend any actions which may be brought.
(2) Pomponius says it is evident that if the ownership is bequeathed to anyone from a certain time, and the usufruct absolutely; it must be held that the usufructuary is released from liability on his bond, because it is certain that the property will come into his hands or into those of his heir.
(3) When the usufruct of clothing is bequeathed, Pomponius holds that although the heir may have stipulated that the clothing should be returned when the usufruct comes to an end; nevertheless, the promisor is not liable if he delivers the clothing which was worn out without malicious intent.
(4) Where several parties are the mere owners of property, any one of them can enter into a stipulation with reference to his own share of the same.
10. Paulus, On the Edict, Book XL.
If I bequeath to you the usufruct of a slave which both of us own in common, the security must be given to my heir; for although he can institute proceedings for partition of the property, still, the question of the usufruct, which belongs to you, is not included in the duty of the judge who is to preside.
11. Papinianus, Opinions, Book VII.
Where the use of a house is left, security must be furnished which would be satisfactory to a good citizen; nor does it alter the case if the father wishes his sons, who are his heirs, to reside in the house with his widow, who is the legatee.
12. Ulpianus, On Sabinus, Book XVIII.
Where the usufruct of certain vessels is left, the security provided by the Decree of the Senate will not be necessary; but only that which states that "the party will use and enjoy as a good citizen should do". Therefore, where the vessels were delivered for the purpose of being enjoyed, no one doubts that the ownership of the same is not transferred to the party who received them, for they are not delivered for this purpose; but that the legatee might use and enjoy them. Hence, as the said vessels do not become the property of the usufructuary, they can be recovered by the owner of the same, if security is not given. It should be considered whether a personal action will lie under such circumstances? It has been decided that no one can bring an action of this kind to recover his own property, except from a thief.