ilate the former completely to the latter,
so that any future features in which legacies are inferior to fiduciary
bequests may be supplied to them from the latter, and the latter
themselves may in future possess any superiority which has hitherto
been enjoyed by legacies only. In order, however, to avoid perplexing
students in their first essays in the law by discussing these two forms
of bequests together, we have thought it worth while to treat them
separately, dealing first with legacies, and then with fiduciary
bequests, so that the reader, having first learnt their respective
natures in a separate treatment, may, when his legal education is more
advanced, be able easily to comprehend their treatment in combination.

4 A legacy may be given not only of things belonging to the testator
or heir, but also of things belonging to a third person, the heir being
bound by the will to buy and deliver them to the legatee, or to give him
their value if the owner is unwilling to sell them. If the thing given
be one of those of which private ownership is impossible, such, for
instance, as the Campus Martius, a basilica, a church, or a thing
devoted to public use, not even its value can be claimed, for the legacy
is void. In saying that a thing belonging to a third person may be given
as a legacy we must be understood to mean that this may be done if the
deceased knew that it belonged to a third person, and not if he was
ignorant of this: for perhaps he would never have given the legacy if
he had known that the thing belonged neither to him nor to the heir, and
there is a rescript of the Emperor Pius to this effect. It is also the
better opinion that the plaintiff, that is the legatee, must prove that
the deceased knew he was giving as a legacy a thing which was not his
own, rather than that the heir must prove the contradictory: for the
general rule of law is that the burden of proof lies on the plaintiff.

5 If the thing which a testator bequests is in pledge to a creditor,
the heir is obliged to redeem it, subject to the same distinction as has
been drawn with reference to a legacy of a thing not belonging to
the testator; that is to say, the heir is bound to redeem only if the
deceased knew the thing to be in pledge: and the Emperors Severus and
Antoninus have decided this by rescript. If, however, the deceased
expresses his intention that the legatee should redeem the thing
himself, the heir is under no obligation to do it