[MARCIANUS libro sexto institutionum. ] §35.1.33.prFalsa demonstratio neque legatario neque fideicommissario nocet neque heredi instituto, ueluti si fratrem dixerit uel sororem uel nepotem uel quodlibet aliud: et hoc ita iuris ciuilis ratione et constitutionibus diuorum Seueri et Antonini cautum est.
[MARCIANUS, in the sixth book of his Institutes.] A false description does not prejudice either a legatee or a beneficiary of a trust, nor an appointed heir, as, for instance, if the testator has called someone his brother, sister, grandson, or any other relationship; and this is so provided both by the rule of the civil law and by the constitutions of the divine Severus and Antoninus.
§35.1.33.1Sed si controuersia sit de nomine inter plures: qui probauerit sensisse de se defunctum, ille admittetur.
But if there is a dispute concerning a name among several persons, he who proves that the deceased was thinking of him shall be admitted.
§35.1.33.2Sed si cui quasi liberto, id est inter libertos legatum fuerit, non idcirco legatum amittit, quia postea anulos ab imperatore acceperit: nam honor eius auctus est, non condicio mutata: et ita diui Seuerus et Antoninus rescribserunt.
But if a legacy has been left to someone as if to a freedman, that is, among the freedmen, he does not on that account lose the legacy because he afterwards received rings from the emperor; for his honor was increased, not his status changed; and the divine Severus and Antoninus so replied.
§35.1.33.3Si quis legauerit rem ita, si mortis tempore eius erit, nec tunc eius inuenitur, nec aestimatio eius legari uidebitur.
If anyone has bequeathed property in this manner, "if it shall belong to him at the time of his death," and it is not found to be his at that time, it will not be deemed that the value of the property was bequeathed.
§35.1.33.4Quid ergo, si quis ita scribserit: 'Stichum et Pamphilum Titio do lego, si mei erunt cum moriar' et unum ex his alienauerit, an uel alter possit a legatario uindicari? placet uindicari, nam hunc sermonem, licet pluralis sit, pro eo oportet accipi, atque si separatim dixisset: 'Stichum, si meus erit cum moriar'.
What then, if anyone has written as follows: "I give and bequeath Stichus and Pamphilus to Titius, if they shall be mine when I die," and he has alienated one of them, can even the other be claimed by the legatee? It is held that it can be claimed, for this expression, although it is in the plural, ought to be accepted in the same way as if he had said separately: "Stichus, if he shall be mine when I die."