that any heir burdened with a trust should get some advantage out of it; and accordingly he was empowered, if he entered and accepted the liabilities, to retain one-fourth as by the Falcidian statute. Or if he suspected the estate to be insolvent, he might restore, as the phrase went, the inheritance altogether to the person favoured by the trust and be free from both risk and advantage. Otherwise he might indeed take his fourth, but would, as partial heir, be liable for his share of the heir's obligations. If however testator had directed him to retain a certain thing or a certain amount, which was equal in value at least to one-fourth of the inheritance, and restore the rest, he was regarded as a legatee and not in any way liable to the creditors of deceased's estate. The risk and difficulty attending heirs did not arise where a trust was imposed on a legatee; he was liable for no more than he received; and as the validity of the will was not at stake, there was no necessity for the law to bribe him to accept by a share of the gift.
Justinian swept away a mass of distinctions and perplexities by putting trusts and legacies in other respects on the same footing, giving legacies the flexibility of trusts and fortifying trusts with the legal character and effective suits belonging to legacies. The phraseology was held to be unimportant, the intention was to prevail. Not only the trust but the will and legacies might now be written in Greek.
When an oral trust was added to a written will, or the will itself was oral and contained a trust, and the regular number of witnesses had not been present on the occasion, Justinian enacted that if the heir denied the trust, the person claiming under it should, having first sworn to his own good faith, put the heir on his oath whether he had not heard the testator declare the trust: the heir's answer on oath was then decisive.
Legitim. The Statute of the XII Tables authorised, according to tradition, full effect to be given to a Roman's will for the disposal of his estate at his death. But a paterfamilias was expected to shew in the will that he had duly considered the claims of his children in his power, and especially of his sons, they being his natural representatives. He must either appoint them heirs or expressly disinherit them, whether they were sons by birth or by adoption and even if posthumous. In default of such express notice, the will was set aside. Others in his family, whether daughters or grandchildren by his sons, had either to be appointed heirs or to be disinherited, but general terms were sufficient, e.g. "all others are disinherited." If no notice was taken of them, the will was partly broken, for the daughters and grandchildren were admitted to share with the appointed heirs. Justinian in 531 abolished the distinction in these matters between sons and daughters and between those in testator's power and those emancipated, and required express notice for all. The praetor had already in practice made the like amendments of the old civil law.
