[FLORENTINUS libro undecimo institutionum. ] §30.1.116.prLegatum est delibatio hereditatis, qua testator ex eo, quod uniuersum heredis foret, alicui quid collatum uelit.
[FLORENTINUS, Institutes, Book XI] A legacy is a separation from an inheritance, by which the testator wishes something to be bestowed upon someone out of that which would otherwise entirely belong to the heir.
§30.1.116.1Heredi a semet ipso legatum dari non potest, a coherede potest.
A legacy cannot be given to an heir from himself, but it can be given from his co-heir.
itaque si fundus legatus sit ei qui ex parte dimidia heres institutus est et duobus extraneis, ad heredem cui legatus est sexta pars fundi pertinet, quia a se uindicare non potest, a coherede uero semissario duobus extraneis concurrentibus non amplius tertia parte: extranei autem et ab ipso herede cui legatum est semissem et ab alio herede trientem uindicabunt.
Therefore, if a tract of land is bequeathed to one who has been appointed heir to a half-share, and to two outsiders, one-sixth of the land belongs to the heir to whom it was bequeathed, because he cannot claim it from himself, and from his co-heir who has a half-share, since two outsiders concur, he obtains no more than a third part of that share; the outsiders, however, will claim both a half of the land from the heir himself to whom it was bequeathed, and a third of the land from the other heir.
§30.1.116.2Alienus seruus heres institutus legari ipse a se nec totus nec pro parte potest.
A slave belonging to another, who has been appointed heir, cannot himself be bequeathed from himself, either in whole or in part.
§30.1.116.3Seruo hereditario recte legatur, licet ea adita non sit, quia hereditas personae defuncti, qui eam reliquit, uice fungitur.
A legacy is validly given to a slave belonging to an inheritance, although the inheritance has not yet been entered upon, because the inheritance takes the place of the person of the deceased who left it.
§30.1.116.4Fundus legatus talis dari debet, qualis relictus est.
A bequeathed tract of land must be given in such a state as it was left.
itaque siue ipse fundo heredis seruitutem debuit siue ei fundus heredis, licet confusione dominii seruitus exstincta sit, pristinum ius restituendum est.
Therefore, whether the land itself owed a servitude to the land of the heir, or the land of the heir owed one to it, although the servitude has been extinguished by confusion of ownership, the former right must be restored.
et nisi legatarius imponi seruitutem patiatur, petenti ei legatum exceptio doli mali opponetur: si uero fundo legato seruitus non restituetur, actio ex testamento superest.
And unless the legatee allows the servitude to be imposed, if he sues for the legacy, the exception of fraud will be opposed to him; but if the servitude is not restored to the bequeathed land, the action on the testament remains.