Justinian•DIGESTA
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Sed cum ita legatum sit pupillo sive pupillae " arbitrio tutorum", neque condicio inest legato neque mora, cum placeat in testamentis legatum in alterius arbitrium collatum pro viri boni arbitrio accipi. quae enim mora est in boni viri arbitrio, quod iniectum legato velut certam quantitatem exprimit, pro viribus videlicet patrimonii?
But when a legacy has been left to a ward, whether male or female, "at the discretion of the guardians," neither a condition inheres in the legacy nor a delay, since it is accepted in testaments that a legacy referred to another’s arbitrium is to be taken as according to the arbitrium of a good man. For what delay is there in the arbitrium of a good man, which, annexed to the legacy, as it were expresses a definite quantity, in proportion, namely, to the resources of the patrimony?
Sed si unum ex legatis onus habet, et hoc repellatur, non idem dicendum est: pone eum, cui decem et stichus legatus est, rogatum servum manumittere: si falcidia locum habet, ex decem utriusque legati quarta deducetur. igitur repudiato servo non evitabitur onus deductionis, sed legatarius ex pecunia duas quartas relinquet.
But if one of the legacies carries a burden, and this is repudiated, the same is not to be said: suppose a person to whom ten and Stichus have been bequeathed, having been asked to manumit the slave: if the Falcidian share has place, a quarter of each legacy will be deducted out of the ten. therefore, with the slave repudiated, the burden of deduction will not be avoided, but the legatee will leave two quarters from the money.
Si inter duos dubitetur de eodem legato, cui potius dari oportet, ut puta si titio relictum est et duo eiusdem nominis amici testatoris veniant et legatum petant et heres solvere paratus sit, deinde ambo defendere heredem parati sint, eligere debere heredem, cui solvat, ut ab eo defendatur.
If between two there is doubt about the same legacy, to whom it ought rather to be given—for instance, if it has been left to Titius and two friends of the testator of the same name come and demand the legacy and the heir is prepared to pay, and then both are prepared to defend the heir—the heir ought to choose the one to whom he pays, so that he may be defended by him.
Certam pecuniam legatam si et legatarius et substituti legatarii peterent et heres solvere paratus sit, si ambo defendere heredem parati sint, eligere debet heres cui solvat, ut ab eo defendatur: et, si neutrius manifesta calumnia videatur, ei potius solvendum, cui primum legatum est.
If a determinate sum of money has been bequeathed, and both the legatee and the substitute legatees should claim it, and the heir is prepared to pay, if both are ready to defend the heir, the heir ought to choose to whom he should pay, so that he may be defended by that person; and, if manifest calumny appears on neither side, payment should rather be made to the one to whom the legacy was first bequeathed.
Cum fundus nominatim legatus sit, si quid ei post testamentum factum adiectum est, id quoque legato cedit, etiamsi illa verba adiecta non sint " qui meus erit", si modo testator eam partem non separatim possedit, sed universitati prioris fundi adiunxit.
When a farm is bequeathed by name, if anything has been added to it after the testament was made, that too accedes to the legacy, even if those words “which shall be mine” are not added, provided only that the testator did not possess that part separately, but joined it to the entirety of the former farm.
Statuliberum ab herede ne tunc quidem, cum dubia sit eius ex testamento libertas, legatum sine libertate accipere posse labeo ait, quia servus eius esset: sed si heres eandem condicionem legato inserat, quae libertati a testatore datae praeposita fuerit, valet legatum: nam et si, cum moreretur heres, servus liber esse iussus esset, recte sine libertate ei ab herede legari posse constitit, quia supervacuum sit ei libertatem dare, quam ex testamento heredis capturus non sit, sed ex testatoris habet.
Labeo says that a statuliber cannot receive a legacy from the heir without liberty, not even when his liberty under the testament is doubtful, because he would be his slave: but if the heir should insert into the legacy the same condition which had been prefixed to the liberty given by the testator, the legacy is valid. For even if, when the heir died, the slave had been ordered to be free, it has been established that he can rightly be left a legacy by the heir without liberty, because it is superfluous to give him a liberty which he is not going to obtain from the heir’s testament, but has from the testator.
"stichum aut pamphilum, utrum heres meus volet, titio dato, dum, utrum velit dare, eo die, quo testamentum meum recitatum erit, dicat". si non dixerit heres, pamphilum an stichum dare malit, perinde obligatum eum esse puto, ac si stichum aut pamphilum dare damnatus esset, utrum legatarius elegerit. si dixerit se stichum dare velle, sticho mortuo liberari eum: si ante diem legati cedentem alter mortuus fuerit, alter qui supererit in obligatione manebit. cum autem semel dixerit heres, utrum dare velit, mutare sententiam non poterit.
"Give Stichus or Pamphilus, whichever my heir may wish, to Titius, provided that he says, on the day on which my testament will be recited, which he wishes to give." If the heir shall not have said whether he prefers to give Pamphilus or Stichus, I consider him obligated just as if he had been condemned to give Stichus or Pamphilus, whichever the legatee shall have chosen. If he says that he wishes to give Stichus, then, Stichus having died, he is released; if, before the day when the legacy vests, one of the two has died, the other who survives will remain under obligation. But once the heir has said which he wishes to give, he will not be able to change his mind.
Qui duos reos eiusdem pecuniae habet titium atque maevium, ita legavit: " quod mihi titius debet, maevio heres meus dato. quod maevius debet, seio dato". his verbis onerat heredem: nam cum actiones suas heres maevio praestiterit adversus titium, videtur maevius facto eius liberatus esse et idcirco seio heres tenebitur.
He who has two debtors for the same money, titium and maevium, made a bequest thus: " what titius owes me, let my heir give to maevium. what maevius owes, let it be given to seio". By these words he burdens the heir: for when the heir shall have furnished his actions to maevium against titium, maevius is deemed to have been freed by his act, and on that account the heir will be liable to seio.
Si titio aut seio, utri heres vellet, legatum relictum est, heres alteri dando ab utroque liberatur: si neutri dat, uterque perinde petere potest atque si ipsi soli legatum foret: nam ut stipulando duo rei constitui possunt, ita et testamento potest id fieri.
If a legacy has been left to Titius or to Seius, whichever the heir should prefer, the heir, by giving to the one, is released from both; if he gives to neither, each can in the same way demand as if the legacy had been for himself alone: for just as by stipulation two parties (rei) can be constituted, so too by testament that can be done.
Si is, cui legatus sit stichus aut pamphilus, cum stichum sibi legatum putaret, vindicaverit, amplius mutandae vindicationis ius non habet: tamquam si damnatus heres alterutrum dare stichum dederit, cum ignoret sibi permissum vel pamphilum dare, nihil repetere possit.
If the person to whom stichus or pamphilus has been bequeathed, when he supposed that stichus had been bequeathed to himself, has vindicated stichus, he no longer has the right to change his vindication: just as if the heir condemned to give one or the other has given stichus, while unaware that it was permitted to him to give pamphilus as well, he can recover nothing.
Et proculo placebat et a patre sic accepi, quod servo communi legatum sit, si alter dominorum omitteret, alteri non adcrescere: non enim coniunctim, sed partes legatas: nam ambo si vindicarent, eam quemque legati partem habiturum, quam in servo haberet.
And it pleased Proculus, and thus I received from my father, that if a legacy has been left to a common slave, if one of the masters should omit it, it does not accrue to the other: for it is not bequeathed conjointly, but parts are bequeathed; for if both should vindicate, each would have that part of the legacy which he had in the slave.
Cum quidam uxori suae dotem reddidisset, quadraginta ei legare voluisset et quamquam sciret dotem redditam, hoc tamen praetextu usus esset, quasi dotis reddendae nomine eam summam legaret, existimo deberi quadraginta: etenim reddendi verbum quamquam significationem habet retro dandi, recipit tamen et per se dandi significationem.
When a certain man had returned the dowry to his wife, he wished to bequeath forty to her; and although he knew the dowry had been returned, yet he used this pretext—as though, under the name of returning the dowry, he were bequeathing that sum—I judge that forty are owed: for the word “returning” (reddendi), although it has the signification of giving back, nevertheless also admits, in and of itself, the signification of giving.
Lucius titius in testamento suo publio maevio militiam suam reliquit sive pecuniam eius quaecumque redigi ex venditione eius potuerit, cum suis commodis: sed cum supervixit testamento lucius titius, militiam vendidit et pretium exegit et dedit ei, cui illam militiam vel pretium eius testamento dari voluerit: post mortem lucii titii iterum publius maevius vel militiam vel pretium eius ab heredibus lucii titii exigebat. celsus: existimo pretium militiae praestari non oportere, nisi legatarius ostenderit testatorem et post factam solutionem iterum eum pretium militiae accipere voluisse. quod si non totum pretium militiae, sed partem vivus testator legatario dedit, reliqui superesse exactionem, nisi heres et ab hoc decessisse testatorem ostenderit.
Lucius titius in his testament left to publio maevio his military outfit, or the money of it, whatever could be realized from its sale, together with its advantages; but since Lucius titius outlived the testament, he sold the outfit and exacted the price and gave it to him to whom he had wished by the testament that that outfit or its price be given. After the death of Lucius titius, again publius maevius was demanding either the outfit or its price from the heirs of Lucius titius. celsus: I judge that the price of the outfit ought not to be furnished, unless the legatee shall show that the testator, even after the payment had been made, wished that he again receive the price of the outfit. But if, not the whole price of the outfit, but a part, the testator while alive gave to the legatee, the remainder of the exaction subsists, unless the heir also shall show that the testator had withdrawn from this.
Cum quidam ita fideicommissum reliquisset: " rogo restituas libertis meis, quibus voles", Marcellus putavit posse heredem et indignum praeferre. at si ita:: his quos dignos putaveris", petere posse ait eos qui non offenderint. idem ait, si neminem eligat, omnes ad petitionem fideicommissi admitti videri quasi iam praesenti die datum, cum sic relinquitur " quibus voles" nec ulli offerat.
When someone had thus left a fideicommiss: " I ask that you restore to my freedmen, whichever you will", Marcellus thought that the heir can even prefer one unworthy. But if thus:: " to those whom you shall deem worthy", he says that those who have not offended can seek it. The same he says, that if he chooses no one, all seem to be admitted to the claim of the fideicommiss as if it had already been given on the present day, when it is left thus " quibus you will" and he offers it to none.
plainly, if the others have died, it must be given to the survivor, or to his heir if he died before he could petition. scaevola, however, notes: if all were able to petition, when it is offered to no one, why did not even those who have died transmit it to their heir—especially if, once one is petitioning, he can no longer choose to whom he should give it? for marcellus seems, when a fideicommissum is left thus “from the freedmen, to whom you will,” to consider that, unless he offers it to whom the heir wishes and offers it immediately, namely without any interval, at once the right of petition accrues to all: therefore, since it accrues to all, he is rightly criticized for thinking it should be given only to the survivor—unless perhaps the others died before the proper time elapsed within which he could choose to whom rather he should offer it.
Si illud aut illud legatum sit, unum legatum est. si sub contrariis condicionibus aliud atque aliud legatum est, unum legatum esse arbitramur. neque refert et heredum et eorum quibus legatum est diversas personas esse, veluti si ita legatum est: " si nerva consul factus erit, titius heres attio fundum, si non erit nerva consul factus, seius heres maevio centum dato".
If this or that legacy is bequeathed, it is one legacy. If, under contrary conditions, one thing and another is bequeathed, we judge it to be one legacy. Nor does it matter that both the heirs and those to whom it is bequeathed are different persons, for example if it is bequeathed thus: "if nerva shall have been made consul, let the heir titius give a farm to attius; if nerva shall not have been made consul, let the heir seius give one hundred to maevio".
Cum patronus ex debita parte institutus fideicommissum relictum ab eo praestare non cogitur: si omiserit institutionem, qui eam partem vindicant utrum eodem modo retinere an vero praestare debeant fideicommissum? et magis est deberi fideicommissum, quoniam quod illius personae praestaretur, hoc nequaquam ad alium pertinere deberet.
When a patron, instituted for the due share, is not compelled to perform the fideicommissum left by him: if he omits the institution, do those who claim that share retain it in the same way, or rather ought they to perform the fideicommissum? And the more persuasive view is that the fideicommissum is owed, since what would be afforded to that person ought by no means to pertain to another.
Pater meus referebat, cum esset in consilio duceni veri consulis, itum in sententiam suam, ut, cum otacilius catulus filia ex asse herede instituta liberto ducenta legasset petissetque ab eo, ut ea concubinae ipsius daret, et libertus vivo testatore decessisset et quod ei relictum erat apud filiam remansisset, cogeretur filia id fideicommissum concubinae reddere.
My father reported that, when he was on the council of Ducenius Verus, consul, his opinion prevailed: namely, that where Otacilius Catulus, with his daughter appointed heir to the whole, had bequeathed two hundred to a freedman and had asked of him that he give it to his (the freedman’s) concubine, and the freedman had died while the testator was still alive and what had been left to him had remained with the daughter, the daughter should be compelled to pay back that fideicommissum to the concubine.
Quidam in testamento ita scripsit: " rei publicae graviscanorum lego in tutelam viae reficiendae, quae est in colonia eorum usque ad viam aureliam": quaesitum est, an hoc legatum valeat. iuventius celsus respondit: propemodum quidem imperfecta est haec scriptura in tutelam aureliae viae, quia summa adscripta non est: potest tamen videri tanta summa legata, quanta ei rei sufficeret: si modo non apparet aliam fuisse defuncti voluntatem aut ex magnitudine eius pecuniae aut ex mediocritate facultatium, quam testatrix reliquit: tunc enim officio iudicis secundum aestimationem patrimonii et legati quantitas definiri potest.
A certain man wrote thus in his testament: "I bequeath to the republic of the Graviscanes, in trust for the repairing of the road which is in their colony up to the Via Aurelia": it was asked whether this legacy is valid. Juventius Celsus answered: this wording for the tutelage of the Aurelia road is indeed almost imperfect, because no sum is appended: nevertheless, it can seem that so great a sum is bequeathed as would suffice for that matter—provided only that it does not appear that the deceased had a different intention, either from the magnitude of that money or from the mediocrity of the resources which the testatrix left: for then, by the office of the judge, according to an estimation of the patrimony, the amount of the legacy can be defined.
In fideicommisso quod familiae relinquitur hi ad petitionem eius admitti possunt, qui nominati sunt, aut post omnes eos exstinctos qui ex nomine defuncti fuerint eo tempore, quo testator moreretur, et qui ex his primo gradu procreati sint, nisi specialiter defunctus ad ulteriores voluntatem suam extenderit.
In a fideicommissum that is left to the familia, the following may be admitted to the claim of it: those who are named; or—after all those have become extinct who, under the name of the deceased, were in being at the time when the testator was dying—and those who from these have been procreated in the first degree, unless the deceased has specially extended his volition to further degrees.
Qui plures heredes instituit, testamento a quibusdam nominatim reliquit legata, postea codicillos ad omnes heredes scripsit: quaero, quae legata debeant. modestinus respondit: cum manifeste testator testamento expresserit, a quibus heredibus legata praestari vellet, licet codicillos ad omnes scripserit, apparet tamen ea quae codicillis dedit ab his praestanda esse, quos munere fungi debere testamento suo ostendit testator.
He who has instituted several heirs, and in the testament has left legacies, charging certain persons by name, afterward wrote codicils to all the heirs: I ask which legacies are owed. Modestinus responded: Since the testator plainly expressed in the testament by which heirs he wished the legacies to be provided, although he wrote the codicils to all, nevertheless it appears that those things which he gave in the codicils must be furnished by those whom the testator, by his testament, showed ought to discharge the burden.
Titia cum testamento facto decederet heredibus institutis maevia et sempronio filiis suis ex aequis partibus, petit a maevia, ut stichum servum suum manumitteret, in haec verba: " a te autem, maevia filia carissima, peto, ut stichum servum tuum manumittas, cum in ministerio tuo tot capita servorum tibi his codicillis legavero", nec legavit. quaero, quid his verbis relictum videatur, cum, ut supra cautum est, duobus heredibus institutis defunctam testatricem et mancipia hereditaria duarum personarum fuisse, et codicillis nihil relictum sit de praestandis mancipiis nec possit utile fideicommissum putari, quod datum non sit, cum legasse se dixerit nec adiecerit legati speciem nec ab herede uti praestarentur mancipia petierit. modestinus respondit ex verbis consultationi insertis maeviam neque legati neque fideicommissi petitionem habere neque libertatem servo suo dare compelli.
titia, when, a will having been made, she was departing life with heirs instituted—maevia and sempronius, her children, in equal shares—asks of maevia that she manumit her slave stichus, in these words: " a te autem, maevia filia carissima, I ask of you, dearest daughter maevia, that you manumit stichus your slave, when I shall have bequeathed to you, for your service, so many heads of slaves by these codicils", and she did not bequeath. i ask what appears to have been left by these words, since, as was provided above, with two heirs instituted the deceased testatrix and the hereditary slaves were of two persons, and by the codicils nothing was left about furnishing the slaves, nor can a “useful” fideicommiss be thought, because it was not given, since she said she had bequeathed and did not add the kind of legacy, nor did she ask from the heir that the slaves be provided. modestinus replied that, from the words inserted into the consultation, maevia has neither an action for a legacy nor for a fideicommiss, nor can she be compelled to give freedom to her slave.
"I wish, as an exceptional item, that he take from himself a jointly acquired, revenue‑bearing village estate, together with all the appurtenances it has." I ask whether a writing of this sort seems to have given the entire estate to each individually, or rather contains only an hereditary share, since he ineffectually wished each of them to receive from himself the share which he had. Modestinus responded that the writing in question is not to be interpreted in such a way that the fideicommissum becomes ineffectual. I also ask, if the entire estate seems to have been left, whether the price of the portion should be paid to the brother and coheir, so that by this very thing, that he ordered him to receive it from himself, he meant him to have it entire upon the price being paid in.
Lucia titia intestata moriens a filiis suis per fideicommissum alieno servo domum reliquit: post mortem filii eius idem qui heredes cum diviserunt hereditatem matris, diviserunt etiam domum, in qua divisione dominus servi fideicommissarii quasi testis adfuit: quaero, an fideicommissi persecutionem adquisitam sibi per servum eo, quod interfuit divisioni, amisisse videatur. modestinus respondit fideicommissum ipso iure amissum non esse, quod ne repudiari quidem potest: sed nec per doli exceptionem summovetur, nisi evidenter apparuerit omittendi fideicommissi causa hoc eum fecisse.
Lucia Titia, dying intestate, left by fideicommissum, through her sons, a house to another’s slave: after the death of her son, those same persons who were heirs, when they divided the mother’s inheritance, also divided the house, in which division the owner of the fideicommissary slave was present as if a witness: I ask whether he seems to have lost, because he took part in the division, the pursuit of the fideicommissum that had been acquired for himself through the slave. Modestinus responded that the fideicommissum is not lost ipso iure, since it cannot even be repudiated; nor is he excluded by the exceptio doli, unless it has plainly appeared that he did this for the sake of omitting the fideicommissum.
Gaius seius cum domum suam haberet et in praetorio uxoris suae transtulisset, quasdam res de domo sua in eodem praetorio transtulit ibique post multos dies decedens testamento uxorem suam heredem et alios complures reliquit. quo testamento significavit verba, quae infra scripta sunt: " in primis sciant heredes mei nullam pecuniam esse penes uxorem meam, sed nec aliud quicquam: ideoque hoc nomine eam inquietari nolo". quaero, an ea, quae vivo eo in praetorio uxoris eius translata sunt, communi hereditati vindicari possint et an secundum verba testamenti praescribi coheredibus possit a parte uxoris defuncti. modestinus respondit, si ea, quae in domum seu praetorium uxoris defunctus transtulit, praecipua ad eam pertinere voluit, nihil proponi, cur voluntate ipsius standum non sit.
Gaius Seius, when he had his own house and had transferred into his wife’s praetorium, moved certain things from his house into that same praetorium; and there, after many days, upon dying, he left by testament his wife as heir and several others besides. In which testament he signified the words written below: " in the first place let my heirs know that there is no money in the possession of my wife, nor anything else; and therefore on this account I do not wish her to be disturbed." I ask whether those things which, while he was alive, were transferred into his wife’s praetorium can be vindicated to the common inheritance, and whether, according to the words of the testament, there can be prescribed against the coheirs by the party of the deceased’s wife. Modestinus responded: if he wished that those things which the deceased transferred into the house or praetorium of his wife pertain to her as praecipua, nothing is set forth why his will should not be stood by.
Si ea condicione liberto fideicommissum relictum est, ne a filiis eius recederet, et per tutores factum est, quo minus condicionem impleret, iniquum est eum, cum sit inculpatus, emolumento fideicommissi carere.
If a fideicommissum has been left to a freedman on the condition that he not withdraw from his children, and through the tutors it has come about that he was prevented from fulfilling the condition, it is inequitable that he, since he is blameless, should be deprived of the emolument of the fideicommissum.
Qui invita filia de dote egerat, decessit eadem illa exheredata, filio herede instituto et ab eo fideicommissum filiae dotis nomine reliquit: quaero, quantum a fratre mulier consequi debeat. modestinus respondit: quod in primis est non esse consumptam de dote actionem mulieri, cum patri suo non consenserit, utique non ignoras. sic enim res explicatur, ut, si quidem maior quantitas in dote fuit, illius petitione sit tantummodo mulier contenta: quod si in summa dotis nomine legata amplius sit quam in dote principali, compensatio fiat usque ad eandem summam quae concurrit et id tantummodo, quod excedit in sequenti summa, ex testamento consequatur: non est enim verisimile patrem duplici praestatione dotis filium eundemque heredem onerare voluisse, praeterea cum putaverit se efficaciter licet non consentiente filia instituisse adversus generum de dote actionem.
He who, with his daughter unwilling, had brought an action concerning the dowry, died; that same daughter, disinherited, with the son instituted as heir, and by him a fideicommissum was left to the daughter under the name of dowry. I ask, how much ought the woman to obtain from her brother. Modestinus responded: What is first is that the action about the dowry has not been consumed for the woman, since she did not consent to her father—you certainly are not unaware of this. For the matter is explained thus: if indeed the greater amount was in the dowry, the woman is to be content with the petition for that alone; but if in the total bequeathed under the name of dowry there is more than in the principal dowry, let a set-off (compensatio) be made up to the same sum which overlaps, and let her obtain from the testament only that which exceeds in the subsequent sum: for it is not plausible that the father wished to burden the son, and the same his heir, with a double prestation of the dowry; moreover, since he thought that he had effectively, although the daughter did not consent, instituted an action against the son-in-law concerning the dowry.
Lucius titius relictis duobus filiis suis heredibus diversi sexus institutis addidit caput generale, uti legata et libertates ab his heredibus suis praestarentur: quadam tamen parte testamenti a filio petit, ut omne onus legatorum in se sustineret, in hunc modum: " ea quaecumque in legatis reliqui vel dari praecepi, ab attiano filio meo et herede dari praestarique iubebo", deinde subiecit in praeceptione relinquenda filiae suae haec verba: " paulinae filiae meae dulcissimae si quid me vivo dedi comparavi, sibi habere iubeo: cuius rei quaestionem fieri veto. et peto a te, filia carissima, ne velis irasci, quod ampliorem substantiam fratri tuo reliquerim, quem scis magna onera sustentaturum et legata quae supra feci praestaturum". quaero, an ex his extremis verbis, quibus cum filia sua in testamento pater locutus est, effectum videatur, ut hereditariis actionibus id est omnibus filium suum oneraverit, an vero iam solum propter onus legatorum locutus esse videatur, petitiones autem hereditariae in utrumque heredem creditoribus dari debeant. modestinus respondit, ut actiones creditorum filius solus excipiat, iussisse testatorem non proponi.
Lucius Titius, having left his two children, of different sex, instituted as his heirs, added a general clause, that the legacies and manumissions should be performed by these his heirs: yet in a certain part of the testament he asks of the son that he should bear upon himself the whole burden of the legacies, in this manner: "whatever things I have left in legacies or have ordered to be given, I will order to be given and performed by Attianus, my son and heir", then he subjoined, in the prelegacy to be left to his daughter, these words: "to my sweetest daughter Paulina, if I have given or procured anything for you while I lived, I order that you have it for yourself: I forbid any inquiry to be made about this matter. And I ask of you, dearest daughter, that you do not wish to be angry, because I have left a larger substance to your brother, whom you know will bear great burdens and will discharge the legacies which I have made above". I ask whether from these last words, with which in the testament the father spoke with his daughter, it appears to have been effected that he burdened his son with the hereditary actions, that is, with all of them, or rather he seems to have spoken only on account of the burden of the legacies, but that the hereditary claims ought to be given to the creditors against each heir. Modestinus responded that it is not to be alleged that the testator ordered that the son alone should meet the creditors’ actions.
Titia cum nuberet gaio seio, dedit in dotem praedia et quasdam alias res, postea decedens codicillis ita cavit: " gaion seion ton andra mou parakatativemai soi, w vugater. hw boulomai dovynai eis biou xrysin kai epikarpian metoxyn kwmys naklynwn, hyn efvasa dedwkuia eis proika, sun swmasi tois emferomenois ty proiki, kai kata myden enoxlyvynai auton peri tys proikos: estai gar meta tyn teleutyn autou sa kai twn teknwn sou " : praeterea alia multa huic eidem marito legavit, ut quamdiu viveret haberet. quaero, an propter haec, quae codicillis ei extra dotem relicta sunt, possit post mortem gaii seii ex causa fideicommissi petitio filiae et heredi titiae competere et earum rerum nomine, quas in dotem gaius seius accepit.
Titia, when she was marrying Gaius Seius, gave as dowry some landed estates and certain other things; later, when dying, she provided thus in codicils: " I entrust to you, O daughter, Gaius Seius, my husband. To whom I wish to give for his lifetime the use and the usufruct-share of the village of Naklynae, which I declared I had given as dowry, together with the items appurtenant to the dowry, and that in no way is he to be troubled concerning the dowry: for after his death it shall be yours and your children’s. " Moreover, she left many other things to this same husband, that he might have them as long as he lived. I ask whether, on account of these things which by codicils were left to him outside the dowry, an action from the cause of a fideicommissum can, after the death of Gaius Seius, belong to the daughter and heir of Titia also with respect to those things which Gaius Seius received in dowry.
modestinus responded: although the words are not set forth by which the daughter of the testatrix, after she has performed what has been bequeathed by the testament, could petition for the fideicommissum from Gaius Seius, nevertheless nothing prevents, because of the testatrix’s intention, that after the death of Gaius Seius the fideicommissum be petitioned for.
"maevio fundi partem dimidiam, seio partem dimidiam lego: eundem fundum titio lego". si seius decesserit, pars eius utrique adcrescit, quia cum separatim et partes fundi et totus legatus sit, necesse est, ut ea pars quae cessat pro portione legati cuique eorum, quibus fundus separatim legatus est, adcrescat.
"i bequeath to maevius a half part of the farm, to seius a half part; i bequeath the same farm to titius." if seius has died, his part accrues to both, because, since both the parts of the farm and the whole have been bequeathed separately, it is necessary that the part which fails accrues, according to the proportion of the legacy, to each of those to whom the farm has been separately bequeathed.
A me herede uxori meae ita legatum est: " quidquid propter titiam ad seium dotis nomine pervenit, tantam pecuniam seius heres meus titiae det": quaero, an deductiones impensarum fieri possint, quae fierent, si de dote ageretur. respondit: non dubito, quin uxori suae quod ita legatum est: " a te heres peto, quidquid ad te pervenisset, ut tantum ei dares", tota dos sine ratione deductionis impensarum mulieri debeatur. non autem idem ius servari debet ex testamento extranei, quod servatur in testamento viri, qui dotem uxori relegavit.
By me as heir it has thus been bequeathed to my wife: " whatever reached seius on account of titia, in the name of dowry, let seius, my heir, give to titia so much money": I ask whether deductions of expenses can be made, which would be made if it were a case about the dowry. he answered: I do not doubt that, when it has been thus bequeathed to one’s wife: " from you, heir, I request, whatever had come to you, that you give so much to her", the whole dowry is owed to the woman without regard to the deduction of expenses. however, the same law ought not to be observed from the testament of a stranger as is observed in the testament of the husband, who has bequeathed the dowry to his wife.
Pegasus solitus fuerat distinguere, si in diem fideicommissum relictum sit, veluti post annos decem, interesse, cuius causa tempus dilatum sit, utrumne heredis, quo casu heredem fructum retinere debere, an legatarii, veluti si in tempus pubertatis ei qui impubes sit fideicommissum relictum sit, tunc enim fructus praestandos et antecedentis temporis. et haec ita intellegenda sunt, si non nominatim adiectum est, ut cum incremento heres fideicommissum praestet.
Pegasus was wont to distinguish that, if a fideicommissum has been left to a fixed day, as, for example, after ten years, it makes a difference on whose account the time was deferred—whether on that of the heir, in which case the heir ought to retain the fruits, or on that of the legatee, as when a fideicommissum has been left until the time of puberty for one who is impubes; for then the fruits are to be furnished even for the antecedent time. And these matters are to be understood thus, if it has not been expressly added that the heir should discharge the fideicommissum together with the increment.
Si ita scriptum sit: " decem aut quindecim heres dato", pro eo est ac si decem sola legata sint: aut si ita sit: " post annum aut post biennium, quam ego decessero, heres dato", post biennium videtur legatum, quia heredis esset potestas in eligendo.
If it be written thus: " ten or fifteen, let the heir give", it amounts to the same as if only ten had been bequeathed: or if thus: " after a year or after a biennium, after I have died, let the heir give", it is deemed to be for after the biennium, because the power of choosing would belong to the heir.
Si ita legatum fuerit: " lucius titius heres meus tithaso quinque aureos dare damnas esto", deinde alio loco ita: " publius maevius heres meus tithaso quinque aureos damnas esto dare", nisi titius ostenderit adimendi causa a publio legatum esse relictum, quinos aureos ab utroque accipiet.
If a legacy has been bequeathed thus: " lucius titius my heir, let him be bound to give to tithaso five gold pieces," then elsewhere thus: " publius maevius my heir, let him be bound to give to tithaso five gold pieces," unless titius shall show that the legacy was left by publius for the purpose of ademption, he will receive five gold pieces from each.
Si ita sit scriptum: " filiabus meis centum aureos do", an et masculini generis et feminini liberis legatum videatur? nam si ita scriptum esset: " filiis meis hosce tutores do", responsum est etiam filiabus tutores datos esse. quod non est ex contrario accipiendum, ut filiarum nomine etiam masculi contineantur: exemplo enim pessimum est feminino vocabulo etiam masculos contineri.
If it be written thus: " to my daughters I give one hundred gold pieces", does it seem that a legacy has been left to children of both the masculine and feminine sex? For if it had been written thus: " to my children I give these guardians", it has been answered that guardians were given to the daughters also. Which is not to be taken conversely, so that under the name of daughters males also be included: for as a precedent it is most undesirable that males be contained under a feminine term.
Si pater filiae suae testamento aureos tot heredem dare iusserit, ubi ea nupsisset, si filia nupta sit, cum testamentum fit, sed absente patre et ignorante, nihilo minus legatum debetur: si enim hoc pater non ignorabat, videtur de aliis nuptiis sensisse.
If a father has ordered by testament that the heir give his daughter so many aurei when she shall have married, if the daughter is married when the testament is made, but the father is absent and unaware, nonetheless the legacy is owed; for if the father was not unaware of this, he appears to have had in mind other nuptials.
Si scripsisset qui legabat: " quidquid mihi lucium titium dare facere oportet, sempronio lego" nec adiecit " praesens in diemve", non dubitarem, quantum ad verborum significationem attineret, quin ea pecunia comprehensa non esset, cuius dies moriente eo, qui testamentum fecisset, nondum venisset. adiciendo autem haec verba " praesens in diemve" aperte mihi videtur ostendisse eam quoque pecuniam legare voluisse.
If he who made the bequest had written: " whatever I ought to give or do to lucius titius, I bequeath to sempronius" and did not add " whether present or for a term", I would not doubt, so far as the signification of the words is concerned, that that money was not included, the due date of which had not yet come at the death of him who had made the will. But by adding these words " present or for a term" he seems to me openly to have shown that he wished to bequeath that money as well.
Sempronius proculus nepoti suo salutem. binae tabulae testamenti eodem tempore exemplarii causa scriptae ( ut volgo fieri solet) eiusdem patris familias proferuntur: in alteris centum, in alteris quinquaginta aurei legati sunt titio: quaeris, utrum ^ centum^ et quinquaginta aureos an centum dumtaxat habiturus sit. proculus respondit: in hoc casu magis heredi parcendum est ideoque utrumque legatum nullo modo debetur, sed tantummodo quinquaginta aurei.
Sempronius Proculus to his grandson, greetings. Two tablets of a will, written at the same time for the sake of a copy ( as it is commonly done), of the same paterfamilias are produced: in the one a legacy of one hundred aurei, in the other of fifty aurei, has been bequeathed to Titius: you ask whether he will have ^ one hundred^ and fifty aurei, or only one hundred. Proculus answered: in this case more indulgence is to be shown to the heir, and therefore both legacies are in no way due, but only fifty aurei.
Licinnius lucusta proculo suo salutem. cum faciat condicionem in releganda dote, ut, si mallet uxor mancipia quae in dotem dederit quam pecuniam numeratam, recipere, si ea mancipia uxor malit, numquid etiam ea mancipia, quae postea ex his mancipiis nata sunt, uxori debeantur, quaero. proculus lucustae suo salutem.
licinnius lucusta to his proculus, greeting. when he sets a condition in restoring the dowry, namely that, if the wife should prefer to receive back the slaves which she gave in dowry rather than counted-out money, if the wife prefers those slaves, i ask whether also those slaves which afterwards were born from these slaves are owed to the wife. proculus to his lucusta, greeting.
Bonorum possessione dementis curatori data legata a curatore, qui furiosum defendit, peti poterunt: sed qui petent, cavere debebunt, si hereditas evicta fuerit, quod legatorum nomine datum sit redditu iri.
With the possession of the goods (bonorum possessio) having been granted to the curator of a demented person, legacies can be sought from the curator, who defends the madman; but those who seek must give security that, if the inheritance should be evicted, what has been given under the name of legacies will be returned.
Sed proculus ait, si quis heredem suum eum fundum, cuius commercium is heres non habeat, dare iusserat ei, qui eius commercium habeat, putat heredem obligatum esse, quod verius est, vel in ipsam rem, si haec in bonis testatoris fuerit, vel si non est, in eius aestimationem.
But Proculus says: if someone had ordered his heir to give that estate, with which the heir does not have commercium, to one who does have its commercium, he thinks the heir is obligated—which is truer—either to the thing itself, if it was among the testator’s goods, or, if it is not, to its valuation.
Ut heredibus substitui potest, ita etiam legatariis. videamus, an idem fieri possit et cum mortis causa donabitur, ut id promittat ille alteri, si ipse capere non poterit: quod magis est, quia in posterioris quoque persona donatio confertur.
Just as substitution can be made for heirs, so also for legatees. Let us consider whether the same can be done also when a donation mortis causa is made—that he should promise it to another, if he himself cannot take: which is the better view, since the donation is conferred upon the person of the latter as well.
Si titius mihi stichum aut decem debeat et legavero tibi stichum quem mihi debet, placet exstingui legatum decem solutis: et si diversis alii decem, alii stichus legatus fuerit, ex eventu solutionis legatum valet.
If Titius owes me Stichus or ten, and I have bequeathed to you the Stichus whom he owes me, it is held that the legacy is extinguished upon payment of the ten; and if, to different persons, the ten to one and Stichus to another have been bequeathed, the legacy is valid according to the event of the payment.
Cum ita legatum est: " quantam pecuniam heres meus a titio exegerit, tantam maevio dato", si sub condicione legatum est, antequam exacta pecunia sit, legatarius agere non potest: quod si statim dies legati cedit, ut publicius recte putat, legatarius agere potest, ut actiones praestentur.
When it is thus bequeathed: " quantam pecuniam my heir shall have exacted from titio, give the same amount to maevio", if the legacy is under a condition, before the money has been exacted, the legatee cannot bring an action: but if the day of the legacy vests at once, as publicius rightly thinks, the legatee can bring an action, so that actions may be furnished.
Si ita quis testamento suo cavisset: " illi quantum plurimum per legem accipere potest dari volo", utique tunc, cum quando capere potuerit, videtur ei relictum. sed et si dixerit: " quam maximam partem dare possum, damnas esto heres meus ei dare", idem erit dicendum.
If someone should thus have provided in his testament: " to him I wish to be given as much as he can receive by law," certainly it is deemed to have been left to him then, at the time when he became able to take. but also if he shall have said: " the greatest share that I am able to give, let my heir be bound to give to him," the same is to be said.
Cum ab uno herede mulieri pro dote compensandi animo legatum esset eaque dotem suam ferre quam legatum maluit, utrum in omnes heredes, an in eum solum, a quo legatum est, actio ei de dote dari debeat, quaeritur. iulianus in eum primum, a quo legatum sit, actionem dandam putat: nam cum aut suo iure aut iudicio mariti contenta esse debeat, aequum esse eum, a quo ei maritus aliquid pro dote legaverat, usque ad quantitatem legati onus huius aeris alieni sustinere reliqua parte dotis ab heredibus ei praestanda.
When by one heir a legacy had been left to a woman for the dowry with the intention of compensating, and she preferred to take her dowry rather than the legacy, the question is asked whether the action for the dowry ought to be given to her against all the heirs, or only against him by whom the legacy was charged. julian thinks the action ought to be given in the first place against him by whom the legacy was charged: for since she ought to be content either with her own right or with the husband’s judgment, it is equitable that the one by whom her husband had bequeathed something to her for the dowry should bear, up to the amount of the legacy, the burden of this indebtedness, the remaining part of the dowry being to be furnished to her by the heirs.
Sed de legatis et legis falcidiae ratione belle dubitatur, utrum is, in quem solum dotis actio detur, legata integra ex persona sua debeat, perinde ac si omnes heredes dotem praestarent, an dotem totam in aere alieno computare, quia in eum solum actio eius detur: quod sane magis rationem habere videtur.
But concerning legacies and the reckoning of the Falcidian law, it is plausibly disputed whether he against whom alone the action for the dowry is granted ought to owe the legacies entire from his own share, just as if all the heirs were furnishing the dowry, or whether he should compute the whole dowry among the liabilities, because the action for it is given against him alone: which indeed seems to have the better reason.
Si cui fundus centum dignus legatus fuerit, si centum heredi vel cuilibet alii dederit, uberrimum videtur esse legatum: nam alias interest legatarii fundum potius habere quam centum: saepe enim confines fundos etiam supra iustam aestimationem interest nostra adquirere.
If to anyone an estate worth a hundred has been bequeathed, if he gives a hundred to the heir or to any other person, the legacy seems most bountiful: for otherwise it is in the legatee’s interest to have the estate rather than the hundred: for often it is in our interest to acquire adjoining estates even above a just valuation.
Si titio et mihi eadem res legata fuerit et is die cedente legati decesserit me herede relicto et vel ex mea propria causa vel ex hereditaria legatum repudiavero, magis placere video partem defecisse.
If to Titius and to me the same thing has been bequeathed as a legacy, and he, the day of the legacy having accrued, has died, I being left as heir, and if I repudiate the legacy either from my own proper cause or from a hereditary cause, I see that the more approved view is that the share has failed.
Si eo herede instituto, qui vel nihil vel non totum capere potest, servo hereditario legatum fuerit, tractantibus nobis de capacitate videndum est, utrum heredis an defuncti persona an neutrius spectari debeat. et post multas varietates placet, ut, quia nullus est dominus, in cuius persona de capacitate quaeri possit, sine ullo impedimento adquiratur legatum hereditati atque ob id omnimodo ad eum pertineat, quicumque postea heres exstiterit, secundum quod accipere potest: reliqua autem pars ad eos, qui iure vocantur, venit.
If, with an heir instituted who can either take nothing or not the whole, a legacy has been made to a slave of the inheritance, while we are treating the matter of capacity it must be considered whether the person of the heir, or of the deceased, or of neither ought to be regarded. And after many variations it is settled that, since there is no owner in whose person the question of capacity can be raised, the legacy is acquired to the inheritance without any impediment and therefore in every way pertains to whoever afterwards becomes heir, according to what he can receive; but the remaining part comes to those who are called by law.
Si mihi pure, servo meo vel pure vel sub condicione eadem res legata est egoque legatum quod mihi datum est repudiem, deinde condicione exsistente id, quod servo meo legatum est, vellem ad me pertinere, partem legati deficere responsum est: nisi si quis dubitet, an exsistente condicione, si servus vivat, omnimodo legatum meum fiat, quod semel ad me pertinere voluerim: quod aequius esse videtur. idem est et si duobus servis meis eadem res legetur.
If to me unconditionally, and to my slave either unconditionally or under a condition, the same thing has been bequeathed, and I repudiate the legacy that has been given to me, then, when the condition comes to pass, I should wish that what has been bequeathed to my slave pertain to me, it has been held that a part of the legacy fails; unless someone should doubt whether, the condition existing, if the slave lives, the legacy becomes mine in every way, because I have once wished it to pertain to me: which seems more equitable. The same holds also if the same thing is bequeathed to two of my slaves.
Iulianus ait, si a filio herede legatum sit seio fideique eius commissum fuerit sub condicione ut titio daret, et titius pendente condicione decesserit, fideicommissum deficiens apud seium manet, non ad filium heredem pertinet, quia in fideicommissis potiorem causam habere eum, cuius fides electa sit, senatus voluit.
Julian says that, if a legacy has been left by the son-heir to Seius and committed to his good faith under the condition that he give it to Titius, and Titius dies while the condition is pending, the failing fideicommissum remains with Seius; it does not pertain to the son-heir, because in fideicommissa the Senate wished him whose faith was chosen to have the superior claim.
Iulianus quidem ait, si alter ex legitimis heredibus repudiasset portionem, cum essent ab eo fideicommissa relicta, coheredem eius non esse cogendum fideicommissa praestare: portionem enim ad coheredem sine onere pertinere. sed post rescriptum severi, quo fideicommissa ab instituto relicta a substitutis debentur, et hic quasi substitutus cum suo onere consequetur adcrescentem portionem.
Julian indeed says that, if one of the legitimate heirs had repudiated his portion, since fideicommissa had been left by him, his coheir is not to be compelled to perform the fideicommissa: for the portion pertains to the coheir without burden. But after the rescript of Severus, by which fideicommissa left by the instituted heir are owed by the substitutes, here too he, as if a substitute, will obtain the accreting portion with its own burden.
Si alienus servus heres institutus fuerit, a domino eius fideicommissum relinqui potest. sed ita hoc fideicommissum dominus praestare debet, si per servum factus sit heres: quod si ante, quam iussu eius adiretur hereditas, servus manumissus fuerit et suo arbitrio adierit hereditatem, dominus id debiturus non est, quia heres factus non est, nec servus, quia rogatus non est. itaque utilis actio hoc casu competit, ut is, ad quem emolumentum hereditatis pervenerit, et fideicommissum praestare compellatur.
If another’s slave has been instituted heir, a fideicommiss can be left by his master. But the master ought to perform this fideicommiss only if he has become heir through the slave; whereas if, before the inheritance was entered upon by his order, the slave was manumitted and, by his own decision, entered upon the inheritance, the master will not be liable, because he did not become heir, nor the slave, because he was not requested. And so a useful action is available in this case, so that the person to whom the emolument of the inheritance has come is compelled also to perform the fideicommiss.
Si heres rem, legatam ignorans, in funus consumpsit, ad exhibendum actione non tenebitur, quia nec possidet nec dolo malo fecit quo minus possideret. sed per in factum actionem legatario consulitur, ut indemnitas ei ab herede praestetur.
If the heir, being ignorant that the thing had been bequeathed, consumed it on the funeral, he will not be held by the action ad exhibendum, because he neither possesses it nor did he act with dolus malus to the effect that he should not possess it. But aid is afforded to the legatee through an action in factum, so that indemnity may be rendered to him by the heir.
Cum proponebatur in scriptura fideicommissi, quod pluribus sub condicione fuerat relictum, per errorem omissam mutuam substitutionem, quam testator in secundis tabulis, cum eosdem substitueret, expressit: divi marcus et commodus imperatores rescripserunt voluntatem manifestam videri mutuae factae substitutionis. etenim in causa fideicommissi utcumque precaria voluntas quaereretur, coniectura potuit admitti.
When it was alleged in the writing of the fideicommiss, which had been left to several persons under a condition, that through error the mutual substitution had been omitted— which the testator expressed in the second tablets, when he substituted those same persons— the deified emperors Marcus and Commodus wrote back by rescript that a manifest intention appeared of a mutual substitution having been made. For indeed, in the case of a fideicommiss, since the will is in some measure precatory, it could be admitted by conjecture.
Peculium legatum augeri et minui potest, si res peculii postea esse incipiant aut desinant. idem in familia erit, sive universam familiam suam sive certam ( veluti urbanam aut rusticam) legaverit ac postea servorum officia vel ministeria mutaverit. eadem sunt lecticariis aut pedisequis legatis.
a bequeathed peculium can be increased or diminished, if the assets of the peculium afterwards begin to exist or cease. the same will be the case with the household, whether he has bequeathed his entire household or a certain one ( for example, the urban or the rustic), and afterwards has changed the duties or services of the slaves. the same rules apply where litter-bearers or foot-attendants are bequeathed.
Maevius fundum mihi ac titio sub condicione legavit, heres autem eius eundem sub eadem condicione mihi legavit. verendum esse iulianus ait, ne existente condicione pars eadem ex utroque testamento mihi debeatur. voluntatis tamen quaestio erit: nam incredibile videtur id egisse heredem, ut eadem portio bis eidem debeatur, sed verisimile est de altera parte eum cogitasse.
Maevius bequeathed an estate to me and to Titius under a condition, and his heir bequeathed the same to me under the same condition. Julian says there is reason to fear that, the condition occurring, the same share may be owed to me from both wills. However, it will be a question of intention: for it seems unbelievable that the heir did this so that the same portion should be owed twice to the same person, but it is likely that he was thinking about the other share.
indeed, the constitution of the princeps, by which it was decreed not to burden the heir with the legacy corpus repeatedly to the same person, pertains to one testament. but a debtor does not always bequeath by right what he owes—only thus, if there is something more in the species of the legacy: for if the same thing is left under the same condition, what emolument of the legacy will there be?
Duorum testamentis pars fundi, quae maevii est, titio legata est: non ineleganter probatum est ab uno herede soluta parte fundi, quae maevii fuit, ex alio testamento liberationem optingere, neque postea parte alienata revocari actionem semel extinctam.
By the testaments of two persons, the part of the landed estate which is maevii’s has been bequeathed to titio: it has been quite aptly approved that, when by one heir the part of the estate which was maevii’s has been discharged, he obtains liberation under the other testament as well; nor, after the part has been alienated, is an action once extinguished recalled.
Sed si pars fundi simpliciter, non quae maevii fuit, legetur, solutio prior non peremit alteram actionem, atque etiam hanc eandem partem aliquo modo suam factam poterit alter heres solvere: neque plures in uno fundo dominium iuris intellectu, non divisione corporis optinent.
But if a part of a farm is simply bequeathed, not that which was Maevius’s, the prior payment does not extinguish the other action, and even the other heir will be able to discharge this same part, having in some way made it his own: and several persons hold dominion in one farm by the understanding of law, not by division of the body.
Non idem respondetur, cum duobus testamentis generatim homo legatur: nam qui solvente altero legatarii factus est quamvis postea sit alienatus, ab altero herede idem solvi non poterit: eademque ratio stipulationis est. hominis enim legatum orationis compendio singulos homines continet utque ab initio non consistit in his qui legatarii fuerunt, ita frustra solvitur cuius dominium postea legatarius adeptus est, tametsi dominus esse desinit.
A different answer is given when in two testaments a “man” is bequeathed in general terms: for the one who, upon one heir making payment, has become the legatee’s property, although he is afterwards alienated, cannot be paid over again by the other heir; and the same reasoning applies to a stipulation. For a legacy “of a man,” by a shorthand of speech, embraces individual men; and just as from the outset it does not consist in those who were legatees, so too payment is made in vain in the case of one whose ownership the legatee has afterwards acquired, even though he ceases to be the owner.
In fundo legato si heres sepelierit, aestimatio referenda erit ad totum pretium fundi, quo potuit ante sepulturam aestimari: quare si fuerit solutus, actionem adhuc ex testamento propter locum alienatum durare rationis est.
In a bequeathed farm, if the heir has buried there, the estimation must be referred to the whole price of the farm, at which it could be appraised before the sepulture: wherefore, if payment has been made, it is reasonable that an action from the testament still endure on account of the place having been alienated.
Eum, qui ab uno ex heredibus, qui solus oneratus fuerat, litis aestimationem legatae rei abstulit, postea codicillis apertis ab omnibus heredibus eiusdem rei relictae dixi dominium non quaerere: eum enim, qui pluribus speciebus iuris uteretur, non saepius eandem rem eidem legare, sed loqui saepius.
I said that the one who had recovered from one of the heirs—who alone had been burdened—the litigation valuation of the legated thing, did not thereafter, when the codicils were opened and it appeared that the same thing had been left by all the heirs, seek dominion: for one who employs several species of right does not more often bequeath the same thing to the same person, but speaks more often.
Fundo legato si usus fructus alienus sit, nihilo minus petendus est ab herede: usus fructus enim etsi in iure, non in parte consistit, emolumentum tamen rei continet: enimvero fundo relicto ob reliquas praestationes, quae legatum sequuntur, agetur, verbi gratia si fundus pignori datus vel aliena possessio sit. non idem placuit de ceteris servitutibus. sin autem res mea legetur mihi, legatum propter istas causas non valebit.
If a farm has been bequeathed and the usufruct belongs to another, nonetheless it is to be demanded from the heir: for the usufruct, although it subsists in a right, not in a share, nevertheless contains the emolument of the thing: and indeed, with the farm having been left, action will be brought for the remaining prestations which follow the legacy, for example if the farm has been given in pledge or be in another’s possession. The same has not pleased regarding the other servitudes. But if a thing of mine is bequeathed to me, the legacy will not be valid for these reasons.
Unum ex familia propter fideicommissum a se cum moreretur relictum heres eligere debet: ei quem elegit frustra testamento suo legat quod, posteaquam electus est, ex alio testamento petere potest. utrum ergo non constitit quod datur, quasi creditori relictum, an, quamdiu potest mutari voluntas, non recte creditori comparabitur? sive tamen durat electio, fuisse videtur creditor, sive mutetur, ex neutro testamento petitio competit.
On account of a fideicommissum left by himself when he was dying, the heir ought to choose one from the familia: to him whom he has chosen he bequeaths in vain by his testament that which, after he has been elected, he can seek from another testament. Is it, therefore, that what is given has not become established, as if left to a creditor, or, so long as the will can be changed, will it not rightly be compared to a creditor? Whether, however, the electio endures, he seems to have been a creditor; or whether it is changed, a claim lies from neither testament.
Si de falcidia quaeratur, perinde omnia servabuntur ac si nominatim ei, qui postea electus est, primo testamento fideicommissum relictum fuisset: non enim facultas necessariae electionis propriae liberalitatis beneficium est: quid est enim, quod de suo videatur reliquisse, qui quod relinquit omnimodo reddere debuit?
If inquiry be made concerning the Falcidian portion, everything will be observed just as if a fideicommissum had been expressly left, in the first testament, to the one who was afterwards chosen: for the faculty of a necessary election is not a beneficium of one’s own liberality; for what, indeed, is there that he seems to have left of his own, who in any event was bound to restore what he leaves?
Sed si uno ex familia herede instituto ille fundus extraneo relictus est, perinde fideicommissum ex illo testamento petetur, ac si nemo de familia heredi heres exstitisset. verum is, qui heres scriptus est, ratione doli exceptionis ceteris fideicommissum petentibus facere partem intellegitur: nam quae ratio ceteros admittit, eadem tacitam inducit pensationem.
But if, with one of the family instituted as heir, that farm was left to an outsider, the fideicommiss will be sought under that testament just as if no one of the family had become heir to the heir. But the one who is written as heir is understood, by reason of the exceptio doli, to make a share for the others seeking the fideicommiss: for the rationale which admits the others brings in the same tacit compensation.
Si duos de familia non aequis portionibus heredes scripserit et partem forte quartam extero eiusdem fundi legaverit, pro his quidem portionibus, quas iure hereditario retinent, fideicommissum non petetur, non magis quam si alteri fundum praelegasset: pro altera vero parte, quae in exterum collata est, virilem qui sunt de familia petent admissa propter heredes virilium portionum pensatione.
If he has instituted two persons of the family as heirs in unequal portions and has bequeathed perhaps a fourth part of the same estate (fundus) to an outsider, then, as to those portions which they retain by hereditary right, the fideicommissum will not be demanded, no more than if he had pre-legacy the estate to the one; but as to the other part, which has been conferred upon an outsider, those who are of the family will claim the virile portion, with a set-off admitted, on account of the heirs, for the virile portions.
Sed et si fundum heres uni ex familia reliquerit eiusque fidei commiserit, ut eum extero restituat, quaesitum est, an hoc fideicommissum peti possit. dixi ita demum peti posse, si fundi pretium efficiat. sed si quidem ille prior testator ita fideicommissum reliquisset: " rogo fundum cui voles aut quibus voles ex familia relinquas", rem in expedito fore: quod si talia verba fuissent: " peto non fundus de familia exeat", heredis heredem propter sequens fideicommissum, quod in exterum collatum est, oneratum intellegi, petituris deinceps ceteris ex primo testamento fideicommissum post mortem videlicet eius qui primo electus est.
But also, if the heir has left an estate to one person from the household and has committed it to his good faith that he restore it to an outsider, the question has been raised whether this fideicommissum can be demanded. I said that it can only then be demanded if he produces the price of the estate. But if indeed the prior testator had left the fideicommissum thus: " rogo that you leave the estate to whom you will or to whatever persons you will from the household," the matter would be in readiness; but if the words had been such: " peto that the estate not go out from the household," the heir’s heir, on account of the subsequent fideicommissum which has been conferred upon an outsider, is to be understood as burdened, with the rest thereafter to demand the fideicommissum under the first testament after the death, namely, of him who was first chosen.
Et ideo si electo uno fideicommissum in exterum non conferatur, non alias ei qui electus est fideicommissum praestandum erit, quam interpositis cautionibus: " fundum, cum morietur, si non in familia cum effectu relinqueretur, restitui".
And therefore, if, one having been chosen, the fideicommissum is not conferred upon an outsider, the fideicommissum shall not otherwise be furnished to him who is chosen, except with cautions interposed: " fundus, when he shall die, if it should not be left within the family with effect, be restored".
"rogo, fundum cum morieris restituas ex libertis cui voles". quod ad verba attinet, ipsius erit electio nec petere quisquam poterit, quamdiu praeferri alius potest: defuncto eo prius quam eligat petent omnes. itaque eveniet, ut quod uni datum est vivis pluribus unus petere non possit, sed omnes petant quod non omnibus datum est, et ita demum petere possit unus, si solus moriente eo superfuit.
"I ask that, when you die, you restore the estate to whichever of the freedmen you wish." As to the words, the choice will be his, and no one will be able to petition so long as another can be preferred: if he dies before he elects, all will petition. Thus it will happen that what is given to one, while several are living, a single person cannot petition; but all petition for what was not given to all; and only then can one petition, if he alone survived when he died.
Si rem tuam, quam existimabam meam, te herede instituto titio legem, non est neratii prisci sententiae nec constitutioni locus, qua cavetur non cogendum praestare legatum heredem: nam succursum est heredibus, ne cogerentur redimere, quod testator suum existimans reliquit: sunt enim magis in legandis suis rebus quam in alienis comparandis et onerandis heredibus faciliores voluntates: quod in hac specie non evenit, cum dominium rei sit apud heredem.
If I bequeath to Titius a thing that is yours, which I supposed to be mine, you having been instituted as heir, there is no place for the opinion of Neratius Priscus nor for the constitution, by which it is provided that the heir is not to be compelled to render the legacy: for succor was afforded to heirs, lest they be compelled to redeem what the testator, thinking it his own, left: for men’s wills are more favorable in bequeathing their own things than in acquiring another’s and burdening their heirs: which does not occur in this case, since the dominion of the thing is with the heir.
Si omissa fideicommissi verba sint et cetera quae leguntur cum his, quae scribi debuerunt, congruant, recte datum et minus scriptum exemplo institutionis legatorumque intellegetur: quam sententiam optimus quoque imperator noster severus secutus est.
If the words of the fideicommiss have been omitted, and the rest that are read are congruent with those which ought to have been written, it will be understood as rightly given and as less written, by the example of an institution and of legacies: which opinion our most excellent emperor Severus also followed.
Item marcus imperator rescripsit verba, quibus testator ita caverat " non dubitare se, quodcumque uxor eius cepisset, liberis suis reddituram", pro fideicommisso accipienda. quod rescriptum summam habet utilitatem, ne scilicet honor bene transacti matrimonii, fides etiam communium liberorum decipiat patrem, qui melius de matre praesumpserat: et ideo princeps providentissimus et iuris religiosissimus cum fideicommissi verba cessare animadverteret, eum sermonem pro fideicommisso rescripsit accipiendum.
Likewise the emperor Marcus issued a rescript that the words by which the testator had thus provided, " not to doubt that, whatever his wife had taken, she would return to his children," are to be taken as a fideicommissum. Which rescript has the highest utility, namely lest the honor of a well-transacted matrimony and even the faith of the common children should deceive the father, who had presumed better of the mother: and therefore the most provident princeps and most reverent toward the law, when he observed the words of a fideicommissum to be lacking, by rescript directed that that form of speech be accepted as a fideicommissum.
Sequens quaestio est, an etiam quae vivus per donationem in uxorem contulit in fideicommissi petitionem veniant. respondi ea extra causam bonorum defuncti computari debere et propterea fideicommisso non contineri, quia ea habitura esset etiam alio herede exsistente. plane nominatim maritus uxoris fidei committere potest, ut et ea restituat.
The following question is, whether even those things which, while alive, he conferred upon his wife by donation come into the petition of the fideicommissum. I answered that these ought to be computed outside the case of the goods of the deceased and therefore are not contained in the fideicommissum, because she would have them even with another heir existing. Plainly, expressly, the husband can commit to the wife’s good faith, that she also restore them.
"peto, luci titi, contentus sis centum aureis". fideicommissum valere placuit idque rescriptum est. quid ergo si, cum heredem ex parte instituisset, ita locutus est: " peto pro parte tua contentus sis, luci titi, centum aureis?" petere poterunt coheredes partem hereditatis, retinente sive praecipiente quo contentum esse voluit defunctus. sine dubio facilius est hoc probare, quam probari potuit illud, cum ibi fideicommissum petatur ab his, cum quibus non est testator locutus.
"I ask, Lucius Titius, that you be content with one hundred aurei." It has been decided that the fideicommissum is valid, and this has been set out by rescript. What then if, when he had instituted him heir to a share, he spoke thus: "I ask, for your share, be content, Lucius Titius, with one hundred aurei?" The coheirs will be able to demand their part of the inheritance, the addressee retaining or pre-taking that with which the deceased wished him to be content. Without doubt this is easier to prove than that other case, since there the fideicommissum is sought by those with whom the testator did not speak.
Praedium, quod nomine familiae relinquitur, si non voluntaria facta sit alienatio, sed bona heredis veneant, tamdiu emptor retinere debet, quamdiu debitor haberet bonis non venditis, post mortem eius non habiturus quod exter heres praestare cogeretur.
The praedium which is left in the name of the family, if the alienation has not been made voluntarily, but the heir’s goods are sold, the purchaser ought to retain it for as long as the debtor would have had it with his goods not sold; after his death he would not have had that which an outside heir would be compelled to provide.
Mater filio impubere herede instituto tutorem eidem adscripsit eiusque fidei commisit, ut, si filius suus intra quattuordecim annos decessisset, restitueret hereditatem sempronio. non ideo minus fideicommissum recte datum intellegi debet, quia tutorem dare mater non potuit. nam et si pater non iure facto testamento tutoris fidei commiserit, aeque praestabitur, quemadmodum si iure testamentum factum fuisset: sufficit enim, ut ab impubere datum fideicommissum videatur, ab eo dari, quem is qui dabat tutorem dederat vel etiam tutorem fore arbitrabatur.
A mother, with her underage son instituted heir, appended a tutor to him and committed to his good faith that, if her son should die before fourteen years, he restore the inheritance to Sempronius. The fideicommissum ought not for that reason to be understood as any the less rightly given, because the mother could not appoint a tutor. For even if a father, with a will not lawfully made, had committed it to the good faith of a tutor, it will be equally performed, just as if the testament had been lawfully made: for it suffices that a fideicommissum, which is deemed to have been given by the underage person, be taken as given by him whom the one who was giving had appointed as tutor, or even had thought would be tutor.
The same must be held in the case of a curator of one under puberty or of a minor in years. Nor does it matter whether a tutor, rightly appointed, dies while the father is alive, or is excused by some privilege, or cannot be a tutor on account of age, to the person to whom a tutor had been given: in these cases assuredly the fideicommissum does not lapse, since it is seen as having been given by the pupil. Finally, on this reasoning it has been approved that by a tutor who has received nothing a fideicommissum cannot be left to the pupil, since what is left by him to an outsider is owed not by his own proper right, but by the pupil’s right.
Fratre herede instituto petit, ne domus alienaretur, sed ut in familia relinqueretur. si non paruerit heres voluntati, sed domum alienaverit vel extero herede instituto decesserit, omnes fideicommissum petent qui in familia fuerunt. quid ergo si non sint eiusdem gradus?
With his brother instituted as heir, he requests that the house not be alienated, but be left within the family. If the heir does not obey the will, but has alienated the house or has died with a stranger instituted as heir, all who were in the family will demand the fideicommissum. What then if they are not of the same degree?
thus the matter ought to be tempered, that each nearest kin seem invited in the first place. nor, however, ought the cause of those following therefore to be harmed for the future on account of the superiors; but each nearest is to be admitted on this condition, if he is prepared to give security that he will restore the house to the family. but if security shall not have been required from the one who was admitted in the first place, no condiction will indeed arise under that name; yet if the house should at any time come to an outsider, an action for the fideicommissum belongs to the family.
Imperator antoninus rescripsit legatarium, si nihil ex legato accepit, ei cui debet fideicommissum actionibus suis posse cedere nec id cogendum solvere. quid ergo si non totum, sed partem legati relicti restituere rogatus abstineat eo? utrum actionibus suis in totum cogetur cedere, an vero non nisi ad eam quantitatem, quae fideicommisso continetur? quod ratio suadet.
The Emperor Antoninus replied by rescript that a legatee, if he has received nothing from the legacy, can cede his actions to him to whom he owes the fideicommissum, and is not to be compelled to pay it. What then if, having been asked to restore not the whole, but a part of the legacy left, he abstains from it? Will he be compelled to cede his actions in total, or rather only up to that quantity which is contained in the fideicommissum? As reason counsels.
Si centum legatis duplum restituere rogatus sit, ad summam legati videbitur constituisse: si autem post tempus fideicommissum relictum sit, usurarum dumtaxat additamentum admittetur. nec mutanda sententia erit, quod forte legato percepto magnum emolumentum ex aliquo negotio consecutus est aut poenam stipulationis imminentem evasit. haec ita, si quantitas cum quantitate conferatur.
If, with one hundred having been bequeathed to the legatees, he is asked to restore the double, it will be deemed to have been fixed with respect to the sum of the legacy; but if the fideicommissum has been left after a term, only an increment of interest will be admitted. Nor will the opinion be changed by the fact that, the legacy having been received, he perhaps has obtained a great emolument from some business transaction or has escaped the penalty of an impending stipulation. These things are thus, if quantity is compared with quantity.
indeed, if, money having been received, he is asked to restore his own property, although it is of greater price, the legatee is not to be heard if, the legacy having been received, he wishes to compute it in set-off: for equity does not allow this to be approved, if the legatee offers what he has received under the name of legacies.
Cum quidam filio suo ex parte herede instituto patruum eius coheredem ei dedisset et ab eo petisset, ut filium suum pro virili portione filiis suis coheredem faceret: si quidem minus esset in virili portione, quam fratris hereditas habuit, nihil amplius peti posse, quod si plus, etiam fructuum, quos patruus percepit vel, cum percipere potuerit, dolo non cepit, habendam esse rationem responsum est, non secus quam si centum milibus legatis rogetur post tempus maiorem quantitatem restituere.
When a certain man, having instituted his son as heir to a share, had given his son’s paternal uncle as coheir to him and had asked of him that he make his son, for a virile portion, coheir with his own sons: if indeed there were less in the virile portion than the brother’s inheritance contained, nothing further can be asked; but if more, it has been answered that account must be taken also of the fruits which the paternal uncle received or, when he could have received them, by fraud did not take, not otherwise than if, a legacy of one hundred thousand having been left, he is requested after a time to restore a greater amount.
Si quod ex pamphila nascetur legatum mihi fuerit et ego pamphilam emam eaque apud me sit enixa, ratione summa responsum est non ex causa lucrativa partum intellegi meum factum ideoque petendum ex testamento, tamquam istum emissem, ut scilicet pretii contributione facta consequar tantum, quanti puerum deducta matris aestimatione constitisse mihi iudex in causa legati datus aestimaverit.
If whatever will be born from pamphila has been bequeathed to me, and I buy pamphila and she has given birth while with me, it has been answered, on the general principle, that the offspring is not understood to have become mine by a lucratory cause and therefore must be claimed under the testament, as though I had purchased him, so that, a contribution to the price being made, I may obtain as much as the judge assigned in the case of the legacy shall have assessed the boy to have cost me, the valuation of the mother having been deducted.
Miles ad sororem epistulam, quam post mortem suam aperiri mandavit, talem scripsit: " scire te volo donare me tibi aureos octingentos". fideicommissum deberi sorori constitit nec aliud probandum in cuiuslibet suprema voluntate: placet enim consistere fideicommissum et si defunctus cum eo loquatur, quem precario remuneratur.
A soldier wrote to his sister a letter, which he ordered to be opened after his death, of the following tenor: " I want you to know that I give to you eight hundred gold coins". It was established that a fideicommiss was owed to the sister, nor is anything else required to be proved in anyone’s last will: for it is approved that a fideicommiss stands even if the deceased speaks with the very person whom he remunerates as a favor.
Pro parte heres institutus, cui praeceptiones erant relictae, post diem legatorum cedentem ante aditam hereditatem vita decessit. partem hereditatis ad coheredes substitutos pertinere placuit, praeceptionum autem portiones, quae pro parte coheredum constiterunt, ad heredes eius transmitti.
An heir instituted for a share, to whom pre-takings (praeceptions) had been left, died after the day on which the legacies vested but before the inheritance was accepted. It was decided that the share of the inheritance belongs to the substitute coheirs, but that the portions of the pre-takings, which corresponded to the coheirs’ shares, are transmitted to his heirs.
Cum filius divisis tribunalibus actionem inofficiosi testamenti matris pertulisset atque ita variae sententiae iudicum exstitissent, heredem, qui filium vicerat, pro partibus, quas aliis coheredibus abstulit filius, non habiturum praeceptiones sibi datas, non magis quam ceteros legatarios actiones, constitit. sed libertates ex testamento competere placuit, cum pro parte filius de testamento matris litigasset. quod non erit trahendum ad servitutes, quae pro parte minui non possunt: plane petetur integra servitus ab eo qui filium vicit, partis autem aestimatio praestabitur: aut si paratus erit filius pretio accepto servitutem praebere, doli summovebitur exceptione legatarius, si non offerat partis aestimationem, exemplo scilicet legis falcidiae.
When the son, with the tribunals divided, had brought the action of an inofficious testament against his mother’s will, and thus diverse sentences of the judges had arisen, it was settled that the heir who had defeated the son would not, as to the shares which the son took away from the other coheirs, have the praeceptions (priority-takings) granted to him, any more than the other legatees would have actions. But it pleased that manumissions (liberties) under the testament stand, since the son had litigated about his mother’s testament only pro parte. This, however, is not to be drawn to servitudes, which cannot be diminished pro parte: plainly, the servitude in its entirety will be demanded from the one who defeated the son, but the valuation of the share will be furnished; or, if the son is prepared, upon receiving the price, to provide the servitude, the legatee will be removed by the exception of fraud if he does not tender the valuation of the share, after the example, of course, of the Lex Falcidia.
"lucio sempronio lego omnem hereditatem publii maevii". sempronius ea demum onera suscipiet, quae maevianae hereditatis fuerunt et in diem mortis eius, qui heres maevii exstitit, perseveraverunt, sicut vice mutua praestabuntur actiones, quae praestari potuerunt.
"I bequeath to lucius sempronius the entire inheritance of publius maevii." sempronius will assume only those burdens which belonged to the maevian inheritance and persisted up to the day of the death of the one who stood as maevius’s heir, just as, in mutual turn, such actions will be afforded as could have been afforded.
Dominus herede fructuario scripto fundum sub condicione legavit. voluntatis ratio non patitur, ut heres ex causa fructus emolumentum retineat: diversum in ceteris praediorum servitutibus, quas heres habuit, responsum est: quoniam fructus portionis instar optinet.
The owner bequeathed the farm under a condition, with the heir written down as usufructuary. The rationale of the will does not permit that the heir retain the emolument from the fruits on that account; a different answer has been given regarding the other servitudes of estates which the heir had, since the fruits hold the place of a share.
"heres meus titio dato, quod ex testamento sempronii debetur mihi". cum iure novationis, quam legatarius idemque testator ante fecerat, legatum ex testamento non debeatur, placuit falsam demonstrationem legatario non obesse, nec in totum falsum videri, quod veritatis primordio adiuvaretur.
"Let my heir give to Titius what is owed to me from Sempronius’s testament." Since, by the law of novation which the legatee, who is also the testator, had previously made, the legacy from the testament is not owed, it was decided that the false description does not prejudice the legatee, nor does that which is aided by a beginning of truth appear entirely false.
Servus pure manumissus, cui libertas propter impedimentum iuris post aditam hereditatem non competit, quod status eius extrinsecus suspenditur ( forte propter adulterii quaestionem), ex eodem testamento neque legata neque fideicommissa pure data sperare potest, quia dies inutiliter cedit.
A slave manumitted unconditionally, to whom liberty does not accrue on account of an impediment of law after the inheritance has been entered upon, because his status is suspended from outside (perhaps on account of an inquiry concerning adultery), from the same testament can hope for neither legacies nor fideicommissa given unconditionally, because the day accrues to no effect.
Pater cum filia pro semisse herede instituta sic testamento locutus fuerat: " peto, cum morieris, licet alios quoque filios susceperis, sempronio nepoti meo plus tribuas in honorem nominis mei". necessitas quidem restituendi nepotibus viriles partes praecedere videbatur, sed moderandae portionis, quam maiorem in unius nepotis personam conferri voluit, arbitrium filiae datum.
The father, with his daughter instituted as heir for a half-share, had thus spoken in his testament: " I ask that, when you die, even if you also have taken on other sons, you grant more to Sempronius, my grandson, in honor of my name." The necessity, indeed, of restoring to the grandsons the virile portions seemed to take precedence, but the discretion of moderating the portion—which he wished to be conferred in greater measure upon the person of one grandson—was given to the daughter.
Variis actionibus legatorum simul legatarius uti non potest, quia legatum datum in partes dividi non potest: non enim ea mente datum est legatariis pluribus actionibus uti, sed ut laxior eis agendi facultas sit, ex una, interim quae fuerat electa, legatum petere.
A legatee cannot at the same time employ various actions concerning legacies, because a legacy that has been given cannot be divided into parts: for it was not given with the intention that legatees employ multiple actions, but that a looser faculty of proceeding be available to them, to demand the legacy by one action, namely, for the time being, the one that had been chosen.
Cum pater filios eorumque matrem heredes instituisset, ita scripsit: " peto a te, filia, ut acceptis ex hereditate mea in portionem tuam centum aureis et praedio tusculano partem hereditatis restituas matri tuae". respondi praedium quidem hereditarium iudicio divisionis de communi filiam habituram, pecuniam autem de parte sua retenturam.
When a father had instituted the sons and their mother as heirs, he wrote thus: "I ask of you, daughter, that, upon receiving from my inheritance into your portion one hundred aurei and the Tusculan estate, you restore a part of the inheritance to your mother." I answered that the daughter would indeed have the hereditary estate by the suit of partition from the common property, but would retain the money from her own share.
Eorum, quibus mortis causa donatum est, fidei committi quoquo tempore potest: quod fideicommissum heredes salva falcidiae ratione, quam in his quoque donationibus exemplo legatorum locum habere placuit, praestabunt. si pars donationis fideicommisso teneatur, fideicommissum quoque munere falcidiae fungetur. si tamen alimenta praestari voluit, collationis totum onus in residuo donationis esse respondendum erit ex defuncti voluntate, qui de maiore pecunia praestari non dubie voluit integra.
Of those to whom a gift mortis causa has been made, it can be committed to their good faith at any time: and the heirs will discharge that fideicommissum with the Falcidian rule preserved, which, by the example of legacies, has been decided to have place in these donations also. If a part of the donation is bound by a fideicommissum, the fideicommissum too will be subject to the Falcidian benefit. If, however, he wished that maintenance (alimenta) be provided, it must be answered that the whole burden of the collation rests upon the residue of the donation, according to the will of the deceased, who without doubt wished it to be provided entire from the larger fund.
Mater filiis suis vulgo conceptis dotem suam mortis causa donando stipulari permisit: cum aliis heredibus institutis petisset a filiis viro dotem restitui, totum viro fideicommissum dotis deberi, si falcidiae ratio non intervenerit: ideo retentionem dotis virum habere placuit: alioquin falcidiae partem heredibus a filiis ex stipulatu cum viro agentibus ex dote esse per in factum actionem reddendam.
A mother allowed her sons, born out of wedlock, to stipulate by making a gift causa mortis of her dowry: when, other heirs having been instituted, she had sought from the sons that the dowry be restored to the husband, the whole fideicommissum of the dowry was held to be owed to the husband, if the computation of the Falcidian portion did not intervene: therefore it was decreed that the husband has the retention of the dowry; otherwise the Falcidian share must be restored to the heirs from the dowry, by an in factum action, by the sons proceeding ex stipulatu together with the husband.
Hereditatem filius cum moreretur filiis suis vel cui ex his voluisset restituere fuerat rogatus: quo interea in insulam deportato eligendi facultatem non esse poena peremptam placuit nec fideicommissi condicionem ante mortem filii heredis exsistere: viriles autem inter eos fieri, qui eo tempore vixerint, cum de aliis eligendi potestas non fuerit.
The son, when he was dying, had been asked to restore the inheritance to his sons or to whichever of them he should have wished: meanwhile, with him having been deported to an island, it was decided that the faculty of choosing was not destroyed by the punishment, nor does the condition of the fideicommissum arise before the death of the son, the heir; moreover, virile portions are to be made among those who were living at that time, since there was no power of choosing with respect to the others.
Qui dotale praedium contra legem iuliam vendidit, uxori legatum dedit et emptoris fidei commisit, ut amplius ei pretium restituat. emptorem fideicommissi non teneri constabat: si tamen accepto legato mulier venditionem irritam faceret, eam oblato pretio doli placuit exceptione summoveri.
He who sold a dotal estate contrary to the Julian law gave a legacy to his wife and committed to the buyer’s good faith that he restore to her a larger portion of the price. It was established that the buyer was not bound by the fideicommissum; if, however, after receiving the legacy the woman were to render the sale void, it was decided that, upon the price being tendered, she should be repelled by the exception of fraud.
Maevio debitori suo reus stipulandi mandavit, ut titio, cui mortis causa donabat, pecuniam debitam solveret. cum sciens dominum vita decessisse maevius pecuniam dedisset, non esse liberationem secutam constitit nec, si maevius solvendo non esset, in titium actionem solidi vel iure falcidiae dandam esse, quia mortis causa cepisse non videretur. diversum probandum foret, si maevius ignorans dominum vita decessisse pecuniam errore labsus ^ lapsus^ dedisset: tunc enim portio iure falcidiae revocaretur.
the stipulator gave a mandate to his debtor maevius, that he should pay to titius, to whom he was gifting mortis causa, the money owed. when maevius, knowing that the owner had departed life, had given the money, it was established that no liberation (discharge) had followed, nor, if maevius were not solvent, was an action against titius for the whole or by the law of the falcidia to be given, because he would not be seen to have taken mortis causa. a different result would have to be proved if maevius, ignorant that the owner had departed life, had given the money, slipping by error ^ lapsus^: for then the portion would be recalled by the law of the falcidia.
Cum pater fideicommissum praediorum ex testamento matris filiae deberet, eandem pro parte ita heredem instituit, ut hereditatem fideicommisso compensaret, eademque praedia filio exheredato dari voluit. quamquam filia patris hereditatem suscipere noluisset, fideicommissum tamen ab heredibus esse filio praestandum, ad quos hereditatis portio quam accepit filia redierat, placuit: quod si alium filiae substituisset, eum oportere filio fideicommissum reddere.
When a father owed a fideicommissum of estates to his daughter from the mother’s testament, he appointed that same daughter heir for a share in such a way as to compensate the inheritance by the fideicommissum, and he wished the same estates to be given to the disinherited son. Although the daughter was unwilling to assume the father’s inheritance, nevertheless it was decided that the fideicommissum must be furnished to the son by the heirs, to whom the portion of the inheritance which the daughter had received had reverted; and if he had substituted another in place of the daughter, it is proper that he render the fideicommissum to the son.
Evictis praediis, quae pater, qui se dominum esse crediderit, verbis fideicommissi filio reliquit, nulla cum fratribus et coheredibus actio erit: si tamen inter filios divisionem fecit, arbiter coniectura voluntatis non patietur eum partes coheredibus praelegatas restituere, nisi parati fuerint et ipsi patris iudicium fratri conservari.
Upon the eviction of the estates which the father, who had believed himself to be the owner, left to his son by words of a fideicommissum, there will be no action against the brothers and coheirs: if, however, he made a division among the sons, the arbiter, by conjecture of the will, will not allow him to restore to the coheirs the shares prelegated to them, unless they too are ready for the father’s judgment to be preserved to the brother.
Pater certam pecuniam exheredatae filiae verbis fideicommissi reliquit eamque nupturae dotis nomine dari voluit filio dotem stipulante. cum filius minorem dotem dedisset, superfluum esse filiae reddendum constabat. divortio quoque secuto fideicommissum filiam recte petituram, ut actio stipulationis sibi praestaretur, quoniam verisimile non erat patrem interponi stipulationem voluisse, quo filia post primas nuptias indotata constitueretur: ceterum si postea nuberet, ad secundas nuptias cautionem extendi non oportere.
A father left a fixed sum of money to his disinherited daughter by the words of a fideicommiss, and wished that it be given to her, when she was about to marry, in the name of a dowry, the son stipulating the dowry. When the son had given a smaller dowry, it was agreed that the superfluous amount had to be returned to the daughter. Upon a divorce ensuing as well, the daughter would rightly claim under the fideicommiss, so that the action on the stipulation be afforded to her, since it was not plausible that the father wished a stipulation to be interposed whereby the daughter would be left without a dowry after her first nuptials; but if she should marry thereafter, the security ought not to be extended to a second nuptials.
A filia pater petierat, ut cui vellet ex liberis suis praedia cum moreretur restitueret: uni ex liberis praedia fideicommissi viva donavit. non esse electionem propter incertum diem fideicommissi certae donationis videbatur: nam in eum destinatio dirigi potest, qui fideicommissum inter ceteros habiturus est remota matris electione.
From his daughter the father had requested that, when she should die, she restore the estates to whichever of her children she wished: to one of the children she, under the fideicommiss, made a gift while alive. It seemed that there was no election, on account of the fideicommiss’s uncertain day, the donation being a definite one: for the designation can be directed to him who, among the others, will have the fideicommiss, the mother’s election being set aside.
"fidei tuae committo, uxor, ut restituas filiae meae, cum morieris, quidquid ad te quoque nomine de bonis meis pervenerit". etiam ea, quae postea codicillis uxori dedit, fideicommisso continebuntur, nam ordo scripturae non impedit causam iuris ac voluntatis: sed dos praelegata retinebitur, quoniam reddi potius videtur quam dari.
"I commit to your good faith, wife, that you restore to my daughter, when you die, whatever of my goods shall have come to you likewise under any title." Also those things which afterwards he gave to the wife by codicils will be included in the fideicommissum, for the order of the writing does not impede the legal cause and the intention: but the prelegated dowry will be retained, since it is regarded as being returned rather than given.
Curatoris sui frustra fidei commisisse videbatur, ut heredi fratri negotiorum gestorum rationem redderet: quamquam igitur testamento cautum esset, ut, cum ad statum suum frater pervenisset, ei demum solveretur, tamen sub curatore alio fratrem agentem recte placuit actionem inferre, cum illis verbis fratri potius consultum videretur quam solutio quae iuste fieri potuit dilata.
He seemed to have, in vain, entrusted to the good faith of his curator that he should render to his heir, his brother, an account of the affairs managed: therefore, although it had been provided by the testament that, when the brother had arrived at his own status, then at last payment should be made to him, nevertheless, with the brother acting under another curator, it was rightly decided to bring an action, since by those words it seemed that provision was made rather for the brother than that payment, which could justly have been made, was deferred.
Ab instituto extraneo praedia libertis cum moreretur verbis fideicommissi reliquerat et petierat, ne ex nomine familiae alienarentur. substitutum ea praedia debere ex defuncti voluntate respondi, sed utrum confestim an sub eadem condicione, voluntatis esse quaestionem: sed coniectura ex voluntate testatoris capienda mors instituti exspectanda est.
From an outsider instituted as heir, he had left the estates to his freedmen, to be delivered when he (the instituted) should die, by words of a fideicommissum, and had requested that they not be alienated from the family name. I responded that the substitute is bound for those estates in accordance with the will of the deceased; but whether forthwith or under the same condition is a question of intention. Yet, by conjecture taken from the testator’s intention, the death of the instituted is to be awaited.
Pater filiae mancipia, quae nubenti dedit, verbis fideicommissi praestari voluit: partus susceptos, etsi matres ante testamentum mortuae fuissent, ex causa fideicommissi praestandos respondi. nec aliud in uxore confirmatis donationibus pridem observatum est.
A father wished the slaves which he had given to his daughter on her marrying to be furnished by the words of a fideicommiss: I answered that the issue born, even if their mothers had died before the testament, must be furnished by reason of the fideicommiss. Nor has anything else long been observed in the case of a wife, when the donations have been confirmed.
Hereditatem post mortem suam rogati restituere nominum periculo, quae per divisionem optigerunt inter coheredes interpositis delegationibus, non adstringuntur, non magis quam praediorum, cum permutatio rerum discernens communionem intervenit.
Those who have been asked to restore the inheritance after their own death are not constrained to the peril of the credits which, through division among the coheirs, with delegations interposed, have fallen to their share, any more than of the praedial estates, since a permutation (exchange) of things, discerning (separating) the communion, has intervened.
"dulcissimis fratribus meis, avunculis autem tuis quaecumque mihi supersunt in pamphylia lycia vel ubicumque de maternis bonis concedi volo, ne quam cum his controversiam habeas". omnia corpora maternae hereditatis, quae in eadem causa dominii manserunt, ad voluntatem fideicommissi pertinent: ex isdem igitur facultatibus percepta pecunia et in corpus proprii patrimonii versa, item iure divisionis res propriae factae non praestabuntur, cum discordiis propinquorum sedandis prospexerit, quas materia communionis solet excitare.
"to my sweetest brothers, but your maternal uncles, whatever of the maternal goods remains to me in Pamphylia, Lycia, or wherever, I wish to be conceded, so that you may have no controversy with them." all the corpora (assets) of the maternal inheritance, which have remained under the same title of dominion, pertain to the intention of the fideicommiss: therefore money received from those same resources and converted into the corpus of his own patrimony, likewise things that by the law of partition have become his own property, will not have to be made good, since he provided for the calming of the quarrels of kinsfolk, which the matter of co-ownership is wont to arouse.
Pater pluribus filiis heredibus institutis moriens claves et anulum custodiae causa maiori natu filiae tradidit et libertum eidem filiae, qui praesens erat, res quas sub cura sua habuit adsignare iussit. commune filiorum negotium gestum intellegebatur nec ob eam rem apud arbitrum divisionis praecipuam causam filiae fore.
A father, with several sons instituted as heirs, when dying handed over the keys and the ring for the sake of custody to his eldest daughter, and he ordered the freedman, who was present, to assign to the same daughter the things which he had had under his charge. It was understood that a common business of the sons had been transacted, and not on that account would the daughter have a preeminent claim before the arbiter of division.
Filius matrem heredem scripserat et fideicommissa tabulis data cum iurisiurandi religione praestari rogaverat. cum testamentum nullo iure factum esset, nihilo minus matrem legitimam heredem cogendam praestare fideicommissa respondi: nam enixae voluntatis preces ad omnem successionis speciem porrectae videbantur.
The son had written his mother as heir and had asked that the fideicommissa set down in the tablets be performed under the sanctity of an oath. Since the testament had been made with no legal validity, nonetheless I replied that the mother, as legitimate heir, must be compelled to perform the fideicommissa: for the petitions of an earnest will seemed to have been extended to every species of succession.
"mando filiae meae pro salute sollicitus ipsius, ut, quoad liberos tollat, testamentum non faciat: ita enim poterit sine periculo vivere". fideicommissariam hereditatem sorori coheredi non videri relictam apparuit, quod non de pecunia sua testari, sed optentu consilii derogare iuri testamentum fieri prohibendo voluit.
"I mandate to my daughter, being solicitous for her welfare, that, so long as she takes up children, she not make a testament: for thus she will be able to live without danger." It appeared that a fideicommissary inheritance was not left to the sister, the coheir, since he wished not to testate concerning his own money, but, under the pretext of counsel, to derogate from the law by forbidding a testament to be made.
"rogo, filia, bona tua quandoque distribuas liberis tuis, ut quisque de te meruerit". videtur omnibus liberis, etsi non aequaliter promeruerint, fideicommissum relictum, quibus matris electione cessante sufficiet, si non offenderint: eos autem, quos mater elegerit, fore potiores, si soli promeruissent, existimavi: quod si neminem elegerit, eos solos non admitti, qui offenderunt.
"I ask, daughter, that you at some time distribute your goods to your children, so that each receives as he shall have deserved from you." It seems that to all the children, even if they have not equally merited, a fideicommissum has been left, for whom, with the mother’s selection failing, it will suffice if they have not offended: but those whom the mother shall have chosen, I have judged will be preferred, if they alone have merited: but if she shall have chosen no one, those alone are not to be admitted who have offended.
Donationis praediorum epistulam ignorante filio mater in aede sacra verbis fideicommissi non subnixam deposuit et litteras tales ad aedituum misit: " instrumentum voluntatis meae post mortem meam filio meo tradi volo". cum pluribus heredibus intestato diem suum obisset, intellegi fideicommissum filio relictum respondi: non enim quaeri oportet, cum quo de supremis quis loquatur, sed in quem voluntatis intentio dirigatur.
The mother, her son being unaware, deposited in a sacred temple a letter of donation of the estates, not supported by the words of a fideicommiss, and sent such a letter to the temple-warden: " I wish the instrument of my will to be handed over to my son after my death." When she had met her day intestate, with several heirs, I replied that a fideicommiss was to be understood as left to the son: for it ought not to be asked with whom one speaks about last things, but toward whom the intention of the will is directed.
Libertis praedium reliquit ac petit, ne id alienarent utque in familia libertorum retinerent. si excepto uno ceteri partes suas vendiderint, qui non vendidit ceterorum partes, quibus non dedit alienandi voluntatem, integras petet: eos enim ad fideicommissum videtur invitasse, qui iudicio paruerunt: alioquin perabsurdum erit vice mutua petitionem induci, scilicet ut ab altero partem alienatam quis petat, cum partem suam alienando perdiderit. sed hoc ita procedere potest, si pariter alienaverint: ceterum prout quisque prior alienaverit, partem posterioribus non faciet: qui vero tardius vendidit, ei qui non vendidit in superiorum partibus fecisse partem intellegitur.
He left a landed estate to his freedmen and requests that they not alienate it and that they retain it within the family of the freedmen. If, one excepted, the rest have sold their shares, the one who did not sell will demand the shares of the others intact, since he did not give them the will (permission) to alienate; for he seems to have invited to the fideicommissum those who obeyed the injunction. Otherwise it will be very absurd for a claim to be introduced in reciprocal turn, namely that someone should demand from another the part alienated, when by alienating his own part he has lost it. But this can proceed thus, if they have alienated together; otherwise, as each one alienates earlier, he will not create a share for those later; whereas he who sold later is understood to have created a share for the one who did not sell in the shares of those earlier.
Cum existimaret ad solam consobrinam suam bona perventura, codicillis ab ea factis pluribus fideicommissa reliquerat. iure successionis ad duos eiusdem gradus possessione devoluta rationibus aequitatis et perpetui edicti exemplo pro parte dimidia mulierem relevandam respondi: sed libertates ab ea praestandas, quas intercidere damni causa durum videbatur.
Since he supposed that his goods would come to his cousin alone, he had, by codicils, left several fideicommissa to be effected by her. When, by right of succession, possession devolved upon two of the same degree, I answered that, on considerations of equity and by the example of the perpetual edict, the woman should be relieved for a half share; but that manumissions were to be furnished by her, for it seemed harsh that they should lapse to her detriment.
Pater, qui filio semissem dederat et sororibus eius impuberibus quadrantes, quibus fratrem tutorem dedit, ita fuerat locutus: " fili, contentus eris pro tuo semisse aureis ducentis et vos, filiae, pro vestris quadrantibus centenis aureis". vice mutua liberis fideicommissum hereditatis reliquisse non videbatur, sed aestimationem ( ut a parentibus frugi fieri solet) patrimonii sui fecisse, nec idcirco fratrem iudicio tutelae bonae fidei rationes quandoque praescriptione demonstratae quantitatis exclusurum.
A father, who had given to his son a moiety and to his underage sisters quadrants (quarter‑shares), to whom he appointed their brother as tutor, had spoken thus: “my son, you will be content for your moiety with two hundred aurei, and you, my daughters, for your quadrants with one hundred aurei.” He did not seem to have left to the children, by mutual substitution, a fideicommissum of the inheritance, but to have made a valuation (as frugal parents are wont to do) of his patrimony; and therefore the brother, in the guardianship action—a good‑faith action—will not exclude the accounts by a praescriptio of the amount once shown.
Titio fratri suo maevius hereditatem seii, a quo heres institutus erat, post mortem suam restituere rogatus eodem titio herede scripto petit, ut moriens titius tam suam quam seii hereditatem sempronio restitueret. cum ex fructibus medio tempore perceptis fideicommissi debitam quantitatem titius percepisset, aeris alieni loco non esse deducendum fideicommissum respondi, quoniam ratione compensationis percepisse debitum videbatur. plane si ea lege maevius titium heredem instituat, ne fideicommissum ex testamento seii retineat, falcidiam compensationi sufficere, sed iniquitate occurrere.
maevius, having been asked to restore after his own death to his brother titus the inheritance of seius, by whom he had been instituted heir, with that same titus written as heir seeks that, when dying, titus restore both his own inheritance and seius’s inheritance to sempronius. since titus had received, from the fruits perceived in the meantime, the amount owed of the fideicommissum, I replied that the fideicommissum was not to be deducted as a debt, because by the rationale of compensation he seemed to have received what was due. plainly, if under that condition maevius should institute titus as heir—that he not retain the fideicommissum from the testament of seius—the falcidian portion suffices for compensation, but an inequity arises.
Vicos civitati relictos, qui proprios fines habebant, ex causa fideicommissi non ideo minus deberi placuit, quod testator fines eorum significaturum et certaminis formam, quam celebrari singulis annis voluit, alia scriptura se declaraturum promisit ac postea morte praeventus non fecit.
It was decided that the villages left to the city, which had their own boundaries, are nonetheless due on the ground of a fideicommissum, not any the less because the testator promised that he would indicate their boundaries and that by another writing he would declare the form of the contest which he wished to be celebrated every year, and afterward, forestalled by death, did not do so.
Cum post mortem emptoris venditionem rei publicae praediorum optimus maximusque princeps noster severus augustus rescindi heredibus pretio restituto iussisset, de pecunia legatario, cui praedium emptor ex ea possessione legaverat, coniectura voluntatis pro modo aestimationis partem solvendam esse respondi.
When, after the buyer’s death, our best and greatest princeps Severus Augustus had ordered the sale of the State’s estates to be rescinded, with the price restored to the heirs, I replied that, from the money, a portion should be paid to the legatee—to whom the buyer had bequeathed an estate out of that holding—by conjecture of his intent, in proportion to the valuation.
Etiam res publica fideicommissi post moram usuras praestare cogitur, sed damnum, si quod ex ea re fuerit secutum, ab his sarciendum erit, qui post dictam sententiam iudicatum solvere supersederunt. nec aliud servabitur in litis sumptibus, si ratio litigandi non fuit: ignaviam etenim praetendentes audiri non oportere. quod in tutoribus quoque probatur.
Even the State, in the matter of a fideicommissum, is compelled after delay to pay interest; but the loss, if any has followed from that fact, must be made good by those who, after the sentence had been pronounced, refrained from satisfying the judgment. Nor will anything else be observed as to the costs of the suit, if there was no rationale for litigating: for it is not proper that those who put forward sloth as a pretext be heard. This is likewise approved in the case of guardians.
Praedium pater de familia liberorum alienari verbis fideicommissi prohibuit. supremus ex liberis, qui fideicommissum petere potuit, non idcirco minus actionem in bonis suis reliquisse visus est, quod heredem extrarium sine liberis decedens habuit.
By the words of a fideicommissum the paterfamilias forbade the estate to be alienated from his children. The last of the children, who could seek the fideicommissum, is not for that reason considered to have left any the less an action among his goods, because, dying without children, he had an extraneous heir.
Quae fideicommissa moriens libertis viri debuit, eorundem praediorum suis quoque libertis fructum reliquit: iuris ignoratione lapsi qui petere praedia ex mariti testamento debuerunt, secundum fideicommissum inter ceteros longo tempore perceperunt. non ideo peremptam videri petitionem prioris fideicommissi constitit.
She who, dying, owed fideicommissa to her husband’s freedmen left to her own freedmen as well the fruit (usufruct) of the same estates: through ignorance of the law those who ought to have sought the estates under the husband’s testament long received them under the second fideicommissum among the others. It was established that for that reason the claim of the prior fideicommissum did not appear to be extinguished.
Legatum ita dominium rei legatarii facit, ut hereditas heredis res singulas. quod eo pertinet, ut, si pure res relicta sit et legatarius non repudiavit defuncti voluntatem, recta via dominium, quod hereditatis fuit, ad legatarium transeat numquam factum heredis.
A legacy thus makes the ownership of the thing the legatee’s, just as an inheritance makes the individual things the heir’s. Which pertains to this: if the thing has been left purely (that is, unconditionally) and the legatee has not repudiated the will of the deceased, then directly, by the straight way, the ownership which belonged to the inheritance passes to the legatee, without ever having become the heir’s.
Si quis testamento facto a filiis suis, quos heredes instituisset, fideicommissa reliquisset non ut a legitimis heredibus, sed ut a scriptis, et testamentum aliquo casu irritum factum sit, filii ab intestato venientes fideicommissa ex testamento praestare compelli non possunt.
If someone, a testament having been made, had left fideicommissa to be carried out by his sons, whom he had instituted as heirs, not as by the legitimate heirs but as by the written ones, and the testament has in some contingency been rendered void, the sons coming ab intestato cannot be compelled to render the fideicommissa from the testament.
Debitor decem legavit creditori, quae ei post annum sub pignore debebat. non, ut quidam putant, medii temporis tantum commodum ex testamento debetur, sed tota decem peti possunt: nec tollitur petitio, si interim annus supervenerit: nam sufficit, quod utiliter dies cessit. quod si vivo testatore annus superveniat, dicendum erit inutile effici legatum, quamquam constiterit ab initio.
A debtor bequeathed ten to his creditor, which he owed him under pledge after a year. Not, as some think, is only the advantage of the intermediate time owed from the testament, but the whole ten can be demanded; nor is the claim removed if in the meantime the year has supervened: for it suffices that the term began to run usefully. But if the year should supervene while the testator is alive, it must be said that the legacy becomes ineffectual, although it had stood from the beginning.
thus also in the case of a dowry pre-legacy it has been held that the whole of it can be claimed from the testament. otherwise, according to that opinion, if only the interim interest is in the legacy, what shall we say if an estate has been bequeathed that is due from a fixed day? for neither can money be demanded which has not been bequeathed, nor would a part of the estate readily be found which could be claimed in lieu of the benefit.
Si primo et secundo et tertio heredibus institutis sic legata dentur: " si mihi primus heres non erit, secundus titio decem dato: si secundus mihi heres non erit, primus seio fundum tusculanum dato", utrisque omittentibus hereditatem primo et secundo quaerebatur, substituti, quos eis dederat, an et cui legata praestare debent? ab utroque substituto legata debentur.
If, with the first, second, and third appointed as heirs, legacies are given thus: "if the first will not be my heir, let the second give ten to titius; if the second will not be my heir, let the first give the Tusculan estate to seius," with both the first and the second renouncing the inheritance, the question was raised, as to the substitutes whom he had assigned to them, whether, and to whom, the legacies ought to be provided. The legacies are owed by both substitutes.
Servo alieno posse rem domini legari valens scribit: item id quod domino eius pure debetur. cum enim servo alieno aliquid in testamento damus, domini persona ad hoc tantum inspicitur, ut sit cum eo testamenti factio, ceterum ex persona servi constitit legatum. et ideo rectissime iulianus definit id demum servo alieno legari posse, quod ipse liber factus capere posset.
valens writes that a thing of the master can be bequeathed to another’s slave; likewise, that which is owed to his master outright. for when we give something in a testament to another’s slave, the person of the master is considered only to this extent, that there be testamentary capacity with him; but the legacy is constituted from the person of the slave. and therefore iulianus most rightly defines that only that can be bequeathed to another’s slave which he himself, once made free, could take.
for that note is calumnious, namely that a legacy can be bequeathed to a slave and for as long as he serves: for this legacy too receives its force from the persona of the slave. otherwise we would also be noting that there are certain slaves who, although they cannot attain liberty, nevertheless can acquire a legacy and an inheritance for their master. therefore from that precept, which we state as that in testaments the persona of the slave is considered, it has been said that a legacy can be bequeathed to the hereditary slave. thus it is not a wonder if the property of the master and what is owed to him can be bequeathed purely to his slave, although these things could not be usefully bequeathed to his master himself.
Latinus largus. proxime ex facto incidit species talis. libertinus patronum ex semisse heredem instituit et filiam suam ex alio semisse: fidei commisit filiae, ut quibusdam ancillis patroni restitueret, cum hae manumissae essent, et, si eadem filia heres non esset, substituit ei easdem ancillas.
Latinus largus. Close upon the facts, there falls out a case of the following sort. A freedman instituted his patron as heir for one half, and his daughter from another half: he committed to the good faith (fidei) of his daughter that she should restore to certain slave-girls of the patron, when these had been manumitted; and, if that same daughter should not be heir, he substituted for her those same slave-girls.
Since the daughter did not wish to arise as heir, the maidservants, by the order of the master, that is, the patron, entered upon the inheritance of the deceased. After some time, having been manumitted by him, they asked whether they could demand the fideicommissum from that same patron. I therefore ask that you write back what you think about this.
I replied that the fideicommissum does not seem to have been repeated in this case, but that one or the other was given, either the fideicommissum or the inheritance itself. But it is better to say that they seem to have been substituted in the same case in which they merited (became entitled to) the fideicommissum, and therefore they are called to the substitution. For when a fideicommissum has been given to a slave belonging to another by one of the heirs under the condition of liberty, and the same slave is substituted to that heir, although the substitution has been made purely (unconditionally), nevertheless he is considered to be substituted under the same condition under which he merited the fideicommissum.
Si quis servo suo fideicommissam libertatem reliquit et aliud quid adscripsit: quidam dicunt, quia placebat ab herede eum manumitti debere, futurum esse, ut non admittatur ad fideicommissum: sed hoc iniquum est. in huiusmodi enim persona utriusque quodammodo dies cessit et libertatis et pecuniae petendae, adeo ut putem, si mora fiat praestandae libertati, etiam fideicommisso moram videri factam et usurarum onus accedere: nam et cetera quae medio tempore adquisiit domino, dum moratur praestare libertatem, eidem restitui oportere rectissime responsum est.
If someone has left to his slave freedom by fideicommissum and has added something else: some say, because it was the established view that he ought to be manumitted by the heir, it will come about that he is not admitted to the fideicommissum; but this is inequitable. For in a person of this sort, in a certain way the day has fallen due for both—both for freedom and for claiming the money—so much so that I think, if delay is made in furnishing the freedom, a delay is also to be deemed to have been made in respect of the fideicommissum, and the burden of interest to accrue. For it has been most correctly answered that the other things also which in the meantime he acquired for his master, while he delays to provide the freedom, ought to be restored to that same person.
"gaius seius pronepos meus heres mihi esto ex semisse bonorum meorum excepta domu mea et paterna, in quibus habito, cum omnibus quae ibi sunt: quae omnia scias ad portionem hereditatis, quam tibi dedi, non pertinere". quaero, cum sit in his domibus argentum nomina debitorum supellex mancipia, an haec omnia, quae illic inveniuntur, ad alios heredes institutos debeant pertinere. paulus respondi nomina debitorum non contineri, sed omnium esse communia, in ceteris vero nullum pronepoti locum esse.
"Gaius Seius, my great‑grandson, shall be my heir from one‑half of my goods, excepting my own house and my paternal house, in which I live, with all the things that are there: all of which you are to know do not pertain to the portion of the inheritance which I have given to you." I ask, since in these houses there are silver, the names of debtors, furniture, and slaves, whether all these things which are found there ought to pertain to the other instituted heirs. Paulus: I answered that the names of the debtors are not included, but are common to all; but as to the rest, there is no place for the great‑grandson.
Titius cum fratris filio fundos et urbana praedia legaret, in his et fundum seianum legavit, quem ipse pater familias quoad viveret uno quidem nomine universum habuit, sed quo facilius conductorem inveniret, per duas partes locabat, ita ut ex qualitate loci superiorem partem seianum superiorem, inferiorem autem partem seianum inferiorem appellaret. quaero, an is fundus totus ad fratris filium pertineat. paulus respondit, si testator fundum seianum uno nomine universum possedit, quamvis eundem divisis partibus locaverat, universum eum ex causa fideicommissi praestari oportere, nisi si heres, de qua parte testator senserit, evidenter probaverit.
When Titius bequeathed farms and urban estates to his brother’s son, among these he also bequeathed the Seianus farm, which the paterfamilias, so long as he lived, held as a whole under one name; but, in order the more easily to find a conductor (lessee), he leased it in two parts, such that, according to the quality of the place, he called the upper part the Upper Seianus, and the lower part the Lower Seianus. I ask whether that farm in its entirety pertains to the brother’s son. Paul answered: if the testator possessed the Seianus farm under one name as a whole, although he had leased the same in divided parts, it ought to be furnished in its entirety on account of the fideicommissum, unless the heir shall have clearly proved what part the testator had in mind.
Titia seio tesseram frumentariam comparari voluit post diem trigesimum a morte ipsius. quaero, cum seius viva testatrice tesseram frumentariam ex causa lucrativa habere coepit nec possit id quod habet petere, an ei actio competat. paulus respondit ei, de quo quaeritur, pretium tesserae praestandum, quoniam tale fideicommissum magis in quantitate quam in corpore constitit.
Titia wished that a grain tessera be procured for Seius after the 30th day from her death. I ask, since Seius, while the testatrix was alive, began to have the grain tessera by a lucrative cause and cannot demand what he has, whether an action lies for him. Paulus replied that, for him about whom inquiry is made, the price of the tessera must be provided, since such a fideicommissum was constituted rather in the quantity than in the body.
Usuras fideicommissi post impletos annos viginti quinque puellae, ex quo mora facta est, deberi respondi. quamvis enim constitutum sit, ut minoribus viginti quinque annis usurae omnimodo praestentur, tamen non pro mora hoc habendum est, quam sufficit semel intervenisse, ut perpetuo debeantur.
I replied that the interest of the fideicommissum is owed to the girl, after the twenty-five years have been completed, from the point at which delay was incurred. For although it has been established that to those under twenty-five years interest is in every way to be provided, nevertheless this is not to be held as on account of delay, the occurrence of which once is sufficient for it to be owed perpetually.
Seia libertis suis fundum legavit fideique eorum ita commisit: " fidei autem vestrae, vere et sapide, committo, ne eum fundum vendatis eumque qui ex vobis ultimus decesserit, cum morietur, restituat symphoro liberto meo et successori et beryllo et sapido, quos infra manumisi, quive ex his tunc supervivent". quaero, cum nec in prima parte testamenti, qua fundum praelegavit, eos substitutit, in secunda tamen adiecerit verbum " qui ultimus decesserit", an pars unius defuncti ad alterum pertineret. paulus respondit testatricem videri in eo fideicommisso, de quo quaeritur, duos gradus substitutionis fecisse, unum ut is, qui ex duobus prior morietur, alteri restitueret, alterum ut novissimus his restitueret, quos nominatim postea enumeravit.
Seia bequeathed a farm to her freedmen and committed it to their good faith thus: "and to your trust, truly and wisely, I commit that you not sell that farm, and that the one of you who shall have died last, when he dies, shall restore it to symphorus, my freedman and successor, and to beryllus and sapidus, whom I have manumitted below, and to whoever of these shall then be surviving." I ask, since neither in the first part of the testament, in which she pre-legacy-bequeathed the farm, did she substitute them, yet in the second she added the phrase "whoever shall have died last," whether the share of one deceased would pertain to the other. Paulus responded that the testatrix seems, in that fideicommissum about which inquiry is made, to have made two grades of substitution: one, that he who of the two should die earlier should restore to the other; the second, that the last should restore to those whom she afterwards enumerated by name.
Imperator alexander augustus claudiano iuliano praefecto urbi. " si liquet tibi, iuliane carissime, aviam intervertendae inofficiosi querellae patrimonium suum donationibus in nepotem factis exinanisse, ratio deposcit id, quod donatum est, pro dimidia parte revocari".
Emperor Alexander Augustus to Claudianus Julianus, Prefect of the City. "If it is clear to you, dearest Julianus, that the grandmother, for the purpose of precluding the inofficious complaint, has emptied her patrimony by donations made to her grandson, reason demands that what was donated be revoked for a half share."
Lucius titius cum haberet quinque liberos, universos emancipavit et in unum filium gaium seium amplissimas facultates donationibus contulit et modicum sibi residuum servavit et universos liberos cum uxore scripsit heredes: in eodem testamento duas possessiones, quas retinuerat, eidem gaio seio praelegavit et ab eo petit, ut ex reditibus praediorum, quae vivus ei donaverat, maeviae filiae tot aureos daret, item alteri fratri alios tot: conventus a maevia sorore sua legem falcidiam implorat. quaero, cum sanctissimus imperator, ut supra scriptum est, contra voluntatem donantis ea quae donata sunt revocari praeceperit, an gaius seius compellendus sit secundum voluntatem patris ex donationibus fideicommissum praestare heredi sororis. paulus respondit post litteras imperatoris nostri dubitari non oportere, quin in hac quoque specie, de qua quaeritur, subveniendum sit liberis, quorum portio in unum filium donationibus collatis imminuta est, praesertim cum imperator noster contra voluntatem patris subvenerit, in proposita autem causa etiam voluntas patris pro his qui fideicommissum petunt intercedit.
lucius titius, when he had five children, emancipated them all and upon one son, gaius seius, he conferred by donations very ample resources, and he kept for himself a modest remainder, and he wrote all his children together with his wife as heirs: in the same testament he pre-legacy-ceded to that same gaius seius two properties which he had retained, and he asked of him that from the revenues of the estates which, while alive, he had donated to him, he give to his daughter maevia so many gold pieces, likewise to another brother so many others: being convened by his sister maevia, he implores the Falcidian law. I ask, since the most holy emperor, as is written above, has ordered that the things which were donated be revoked against the will of the donor, whether gaius seius should be compelled, according to the father’s will, to furnish from the donations the fideicommissum to the sister’s heir. paulus replied that, after the letters of our emperor, it ought not to be doubted that in this very case too, about which inquiry is made, aid must be given to the children whose share has been diminished by donations conferred upon one son, especially since our emperor has aided against the father’s will, and in the case proposed the will of the father also intercedes for those who seek the fideicommissum.
Lucius titius testamento ita cavit: " si quid cuique liberorum meorum dedi aut donavi aut in usum concessi aut sibi adquisiit aut ei ab aliquo datum aut relictum est, id sibi praecipiat sumat habeat". filii nomine kalendarium fecerat. postea sententia dicta est et placuit id, quod sub nomine ipsius filii in kalendario remanserat, ei deberi, non etiam id, quod exactum in rationes suas pater convertisset. quaero, si id, quod exegisset pater ex nominibus filii ante testamentum factum, iterum post testamentum factum in nomen filii convertisset, an ad filium secundum sententiam pertineret.
Lucius Titius in his testament thus provided: " if anything to any of my children I have given or donated or conceded for use, or he has acquired for himself, or has been given or bequeathed to him by someone, let him take it as a pre-legacy, take it, have it." He had made a kalendarium in the name of his son. Afterwards an opinion was pronounced and it was resolved that what had remained under the son’s name in the kalendarium was owed to him, but not also that which, having been exacted, the father had converted into his own accounts. I ask, if that which the father had exacted from the entries under the son’s name before the testament was made he again, after the testament was made, converted into the son’s name, whether it would pertain to the son according to the opinion.
"a te peto, titi, fideique tuae committo, uti curam condendi corporis mei suscipias, et pro hoc tot aureos e medio praecipito". quaero, an, si lucius titius minus quam decem aureos erogaverit, reliqua summa heredibus proficiat. respondi secundum ea quae proponerentur heredum commodo proficere.
"I ask of you, Titius, and commit it to your good faith, that you undertake the care of laying my body to rest, and for this I direct that so many gold pieces be taken in preemption out of the common fund." I inquire whether, if Lucius Titius has disbursed less than ten gold pieces, the remaining sum accrues to the heirs. I replied that, according to what was proposed, it accrues to the heirs’ advantage.
Quae marito heres exstiterat, ita testamento cavit: " maevi et semproni filii dulcissimi, praecipitote omne, quidquid ex hereditate bonisve titii domini mei, patris vestri ad me pervenit mortis eius tempore, ita tamen, ut omne onus eiusdem hereditatis tam in praeteritum quam in futurum, nec non etiam si quid post mortem titii domini mei, adgnoscatis". quaero, an si quid solvisset post mortem mariti, cum ipsa fructus cepisset dedisset, ad onus eorum pertineret. respondi secundum ea quae proponerentur ea dumtaxat onera legatariis imposuisse, quae superessent.
She who had come forth as heir to her husband thus provided in her testament: " Maevi and Semproni, sweetest sons, take in priority all, whatever from the inheritance or goods of Titius, my master, your father, came to me at the time of his death, provided, however, that you acknowledge all the burden of the same inheritance both for the past and for the future, and likewise also whatever there may be after the death of Titius, my master." I ask whether, if she had paid anything after the death of her husband, since she herself had taken and had given the fruits, it would pertain to their burden. I answered that, according to the matters proposed, she imposed upon the legatees only those burdens which remained outstanding.
"quisquis mihi heres heredesve erunt, hoc amplius lucius eutychus, quam quod eum heredem institui, e media hereditate sumito sibique habeto una cum pamphilo, quem liberum esse iubeo, instrumentum tabernae ferrariae, ita ut negotium exerceatis". lucius eutychus viva testatrice decessit, pars hereditatis eius ad coheredem pertinuit: quaero, an pamphilus eodem testamento manumissus ad petitionem partis instrumenti admitti possit, licet taberna, ut voluit testatrix, exerceri non possit. respondi admitti.
"whoever shall be my heir or heirs, this further: lucius eutychus, beyond the fact that I have instituted him as heir, is to take from the general inheritance and have for himself, together with pamphilus—whom I order to be free—the equipment (instrument) of the iron-shop (smithy), on condition that you conduct the business." lucius eutychus died while the testatrix was still alive, and a part of his inheritance pertained to the coheir: I ask whether pamphilus, manumitted by the same testament, can be admitted to the claim for a share of the equipment, although the shop, as the testatrix wished, cannot be operated. I answered that he is to be admitted.
Sempronia substituta heredi instituto legata accepit, si heres non esset: movit contra institutum actionem, quod dolo eius factum esse dicebat, quo minus testatrix volens primo loco scribere eam heredem testamentum mutaret, nec optinuit: quaero, an legati persecutionem salvam haberet. respondi secundum ea quae proponerentur salvam habere.
Sempronia, substituted to the instituted heir, was left legacies on condition that she should not be heir: she brought an action against the instituted heir, saying that it had been done by his fraud, whereby the testatrix, although willing to write her as heir in the first place, was prevented from changing the will, and she did not prevail: I ask whether she would have the pursuit of the legacy safe. I answered that, on the facts as proposed, she has it safe.
Testator legata ante quinquennium vetuit peti praestarique, sed heres quaedam sua sponte ante quinquennium solvit: quaesitum est, an eius, quod ante diem exsistentem solutum est, repraesentationem in reliqua solutione legati reputare possit. respondi non propterea minus relictum deberi, quod aliquid ante diem sit solutum.
The testator forbade the legacies to be demanded and rendered before five years, but a certain heiress of her own accord paid before five years: it was asked whether she can reckon the representation (advance payment) of that which was paid before the due date as a credit in the remaining payment of the legacy. I answered that on that account no less of what was left is owed, because something was paid before the due date.
Lucius titius testamento ita cavit: " praediolum meum dari volo libertis libertabusque meis et quos hoc testamento manumisi et seiae alumnae meae, ita ne de nomine familiae meae exeat, donec ad unum proprietas perveniat". quaero, an seia in communione cum libertis habeat portionem an vero sibi partem dimidiam eius praedioli vindicare possit. respondi perspicuam esse testantis voluntatem omnes ad viriles partes vocantis.
Lucius Titius thus provided by his testament: " I want my little estate to be given to my freedmen and freedwomen, and to those whom I have manumitted by this testament, and to Seia, my alumna, on this condition: that it not go out from the name of my family, until ownership comes to one person". I ask whether Seia has a portion in common with the freedmen, or rather can vindicate for herself a half share of that little estate. I replied that the testator’s will is clear, calling all to virile shares.
Impuberem filium heredem instituit: uxori dotem praelegavit, item ornamenta et servos et aureos decem: et si impubes decessisset, substituit, a quibus ita legavit: " quaecumque primis tabulis dedi, eadem omnia ab heredibus quoque heredis mei in duplum dari volo". quaeritur, an ex substitutione, impubere mortuo, dos quoque iterum debeatur. respondi non videri de dotis legato duplicando testatorem sensisse. item quaero, cum corpora legata etiam nunc ex lucrativa causa possideantur, an a substitutis peti possint.
He instituted his underage son as heir; to his wife he prelegated a dowry, likewise ornaments and slaves and ten aurei; and, if the underage one should have died, he appointed substitutes, from whom he thus bequeathed: "whatever things I gave in the first tablets, I wish these same things also to be given by the heirs of my heir in double." The question is asked whether, by reason of the substitution, with the underage one dead, the dowry also ought to be owed a second time. I answered that it does not seem that the testator intended the legacy of the dowry to be doubled. Likewise I ask, since the corporeal things bequeathed are even now possessed from a lucrative cause, whether they can be claimed from the substitutes.
"civibus meis do lego chirographum gaii seii": postea codicillis vetuit a seio exigi et ab herede petit, ut ex alterius debitoris debito, quem codicillis nominavit, eandem summam rei publicae daret. quaesitum est, si posterior idoneus non esset, an integram quantitatem heredes praestare debeant. respondi heredes rei publicae adversus eum dumtaxat debitorem, qui novissimus codicillis, ut proponitur, designatus est, actionem praestare debere.
"I give and bequeath to my fellow-citizens the chirograph of Gaius Seius": afterwards by codicils he forbade it to be exacted from Seius and requested from the heir that, from the debt of another debtor, whom he named in the codicils, he should give the same sum to the commonwealth. It was asked whether, if the later debtor were not suitable (solvent), the heirs ought to make good the entire amount. I replied that the heirs ought to furnish to the commonwealth an action against only that debtor who, as proposed, was last designated by the codicils.
Filiam ex asse instituit heredem eique substituit nepotem suum et ita cavit: " si, quod abominor, neque filia mea neque nepos meus heredes mei erunt, tunc portionem meam partis dimidiae fundi illius ad libertos meos pertinere volo". quaeritur, cum ante testatorem et filia et nepos decesserunt et intestati bona pertinuerunt ad pronepotem eius, an fideicommissum ad libertos pertineret. respondi secundum ea quae proponerentur, si nullus alius heres institutus substitutusque esset quam filia et nepos, videri legitimorum fidei commissum esse, ut praestaretur.
He instituted his daughter as heir to the whole, and to her he substituted his grandson, and thus he provided: "if, which I abhor, neither my daughter nor my grandson shall be my heirs, then I wish my share of the half part of that estate to pertain to my freedmen." The question is raised, since before the testator both the daughter and the grandson died, and, he being intestate, the goods pertained to his great-grandson, whether the fideicommissum would pertain to the freedmen. I answered, according to the matters proposed, that if no other heir had been instituted and substituted than the daughter and the grandson, it seems to be a fideicommissum of the legitimate heirs, to be furnished.
"quisquis mihi heres erit, sciat debere me demetrio patruo meo denaria tria et deposita apud me a seleuco patruo meo denaria tria, quae etiam protinus reddi et solvi eis iubeo": quaesitum est, an, si non deberentur, actio esset. respondi, si non deberentur, nullam quasi ex debito actionem esse, sed ex fideicommisso.
"whoever shall be my heir, let him know that I owe to Demetrius, my paternal uncle, three denarii, and that there have been deposited with me by Seleucus, my paternal uncle, three denarii, which also I order to be immediately returned and paid to them": it was asked whether, if they were not owed, there would be an action. I replied that, if they were not owed, there is no action as if from a debt, but from a fideicommissum.
Lucius titius damam et pamphilum libertos suos ante biennium mortis suae de domu dimisit et cibaria quae dabat praestare desiit: mox facto testamento ita legavit: " quisquis mihi heres erit, omnibus libertis meis, quos hoc testamento manumisi et quos ante habui quosque ut manumittantur petii, alimentorum nomine in menses singulos certam pecuniam dato". quaesitum est, an damae et pamphilo fideicommissum debeatur. respondi secundum ea quae proponerentur ita deberi, si hi qui petent manifeste docerent eo animo circa se patronum, cum testamentum faceret, esse coepisse, ut his quoque legatum dari vellet: alioquin nihil ipsis praestetur.
Lucius Titius, two years before his death, dismissed Dama and Pamphilus, his freedmen, from his household and ceased to furnish the food-rations which he had been giving; soon, after making a testament, he thus bequeathed: "whoever shall be my heir, to all my freedmen, whom I have manumitted by this testament and whom I previously had, and those whom I requested to be manumitted, let him give, under the name of aliments, in each month a fixed sum of money." It was asked whether the fideicommissum is owed to Dama and Pamphilus. I replied, according to the matters that were set forth, that it is owed thus, if those who seek it should clearly show that the patron, in regard to them, when he made the testament, had begun to be of such a mind as to wish that a legacy be given to them also; otherwise, let nothing be furnished to them.
Damae et pamphilo, quos testamento manumiserat, fundum dedit ita, ut post mortem suam filiis suis restituerent: eodem testamento petiit ab heredibus suis, ut pamphilam manumitterent, quae pamphila filia naturalis erat pamphili: idem pamphilus post diem legati sui cedentem testamento heredem instituit maevium eiusque fidei commisit, ut hereditatem suam, id est fundi supra scripti partem dimidiam, quam solam in bonis ex testamento patronae suae habebat, pamphilae filiae suae, cum primum libera fuisset, restitueret. quaero pamphila manumissa, utrum ex testamento superiore patris sui patronae eam partem petere possit, an vero ex testamento patris naturalis ex causa fideicommissi habita ratione legis falcidiae. respondi ex his quae proponerentur probari pamphilam dumtaxat ex testamento superiore fideicommissum petere posse.
To Dama and Pamphilus, whom she had manumitted by testament, she gave an estate on the condition that after her death they should restore it to her sons; by the same testament she asked of her heirs that they manumit Pamphila, and this Pamphila was the natural daughter of Pamphilus. The same Pamphilus, after the day when his legacy vested, by testament instituted Maevius as heir and entrusted it to his good faith (as a fideicommissum) to restore his inheritance—that is, the half part of the aforesaid estate, which alone he had among his assets from the testament of his patroness—to Pamphila his daughter, as soon as she had become free. I ask, Pamphila having been manumitted, whether she can claim that part under the earlier testament of her father’s patroness, or rather under the testament of her natural father by reason of the fideicommissum, account being taken of the Lex Falcidia. I answered that, from the matters proposed, it is shown that Pamphila can only claim the fideicommissum under the earlier testament.
Insulam libertis utriusque sexus legavit ita, ut ex reditu eius masculi duplum, feminae simplum percipiant, eamque alienari vetuit: ex consensu omnium ab herede venumdata est: quaero, an et ex pretio insulae duplum mares, simplum feminae caperent. respondi ob pretium nullam fideicommissi persecutionem esse, nisi ea mente venditioni consenserunt, ut similiter ex pretio mares quidem duplum, feminae autem simplum consequantur.
He bequeathed an island to the freedpersons of both sexes, in such a way that from its revenue the males should receive double and the females single, and he forbade it to be alienated: with the consent of all it was sold by the heir: I ask whether also from the price of the island the males would take double, the females single. I answered that on account of the price there is no pursuit of the fideicommissum, unless they consented to the sale with this intention, that likewise from the price the males indeed obtain double, but the females single.
Instituto filio herede et ex eo nepotibus emancipatis testator ita cavit: " boulomai de tas emas oikias my pwleisvai hupo twn klyronomwn mou myde daneizesvai kat' autwn, alla menein autas akeraias autois kai uhiois kai ekgonois eis ton hapanta xronon. ean de tis boulyvy autwn pwlysai to meros autou y daneisasvai kat' autou, ecousian exetw pwlysai tw sugklyronomw autou kai daneizesvai par'autou. ean de tis para tauta poiysy, estai to xrymatizomenon axryston kai akuron". quaeritur, cum filius defuncti mutuam pecuniam a flavia dionysia acceperit et locatis aedibus pro parte sua pensiones sibi debitas creditrici delegaverit, an condicio testamenti exstitisse videatur, ut filiis suis fideicommissi nomine teneatur.
With the son instituted as heir and, from him, the grandsons emancipated, the testator thus provided: "I wish that my houses be neither sold by my heirs nor that loans be taken against them, but that they remain intact for them and for their sons and descendants for all time. But if any one of them should wish to sell his share or to take a loan upon it, let him have leave to sell to his coheir and to borrow from him. And if anyone does contrary to these things, the transaction shall be useless and null." It is asked, since the deceased’s son received money on loan from Flavia Dionysia and, the houses having been leased, for his own share assigned to the creditor the rents owed to him, whether the condition of the testament appears to have arisen, so that he is held to his sons under the name of a fideicommissum.
Matre et uxore heredibus institutis ita cavit: " a te, uxor carissima, peto, ne quid post mortem tuam fratribus tuis relinquas: habes filios sororum tuarum, quibus relinquas. scis unum fratrem tuum filium nostrum occidisse, dum ei rapinam facit: sed et alius mihi deteriora fecit". quaero, cum uxor intestata decessit et legitima eius hereditas ad fratrem pertineat, an sororis filii fideicommissum ab eo petere possunt. respondi posse defendi fideicommissum deberi.
With the mother and the wife instituted as heirs, he thus provided: " from you, dearest wife, I ask that you leave nothing after your death to your brothers: you have the sons of your sisters, to whom you may leave it. you know that one brother of yours killed our son, while he was making a robbery upon him: but another also did worse things to me". quaero, since the wife died intestate and her legitimate inheritance pertains to the brother, whether the sister’s sons can demand the fideicommissum from him. I replied that it can be defended that the fideicommissum is owed.
"lucius titius hoc meum testamentum scripsi sine ullo iuris perito, rationem animi mei potius secutus quam nimiam et miseram diligentiam: et si minus aliquid legitime minusve perite fecero, pro iure legitimo haberi debet hominis sani voluntas": deinde heredes instituit. quaesitum est intestati eius bonorum possessione petita, an portiones adscriptae ex causa fideicommissi peti possunt. respondi secundum ea quae proponerentur posse.
"lucius titius I wrote this my testament without any expert in law, following rather the plan of my mind than excessive and wretched diligence: and if I have done anything in a less lawful or less skillful way, the will of a sane man ought to be held as lawful right": then he instituted heirs. It was asked, when possession of his goods as intestate was sought, whether the adscribed portions could be claimed on the ground of a fideicommissum. I replied that, according to the matters proposed, they could.
Testamento filium et uxorem suam heredes instituit: postea epistulam scripsisse dicitur, qua et quidquid in peculio habuit filius, ei donavit et adiecit praecipua haec eum suique iuris et post mortem suam habere velle. quaero, cum testamento significaverit, si quid obsignatum recepisset, id vice codicillorum valeret, epistula autem non sit obsignata, an quae epistula continentur ad filium pertineant. respondi, si fides epistulae relictae constaret, deberi, quae in ea dare se velle significavit.
By his testament he instituted his son and his wife as heirs: afterwards he is said to have written a letter, by which he also donated to the son whatever the son had in his peculium, and added that as praecipua he wished him to have these, and to be sui iuris after his death. I inquire, since in the testament he had signified that, if he should have received anything sealed, it would be valid in the stead of codicils, but the letter is not sealed, whether the things contained in the letter pertain to the son. I answered that, if the trustworthiness of the letter left behind were established, the things which he signified in it that he wished to give are owed.
Qui indivisam cum fratre suo rem habebat, filias suas heredes instituit et ita cavit: " propter res universas quae mihi cum illo fratre meo patruo vestro communes sunt, quas aestimationis constiterit esse universas duo milium aureorum, fidei vestrae committo, uti pro portione vestra mille aureos a lucretio pacato patruo vestro accipiatis": huic testamento quinquennio supervixit et abunde patrimonium reliquit: quaesitum est, an heredes lucretii pacati secundum verba supra scripta offerentes mille aureos fideicommissum consequantur. respondi secundum ea quae proponerentur non facere voluntatem, ut universa datis millenis aureis restituerentur, sed aestimationis, quae mortis tempore in rebus fuerat, oblationem debere fieri.
He who had an undivided property with his brother appointed his daughters as his heirs and thus provided: " with regard to all the things which are common to me with that brother of mine, your paternal uncle, which by valuation shall be established to be in all 2,000 aurei, I commit to your good faith, that, in proportion to your share, you receive 1,000 aurei from Lucretius Pacatus, your paternal uncle": he survived this testament by five years and left an abundant patrimony: it was asked whether the heirs of Lucretius Pacatus, by offering 1,000 aurei according to the words written above, obtain the fideicommissum. I answered that, according to what was proposed, the intention was not that the entirety be restored upon the giving of thousands of aurei, but that a tender should be made of the valuation which the things had at the time of death.
Seio, quem heredi substituerat, ita legavit: " seio, si mihi heres non erit, et uxori eius Marcellae argenti libras quindecim dari volo". quaero, cum seius heres exstiterit, an Marcellae legati dimidia portio debeatur. respondi secundum ea quae proponerentur deberi.
To Seius, whom he had substituted to the heir, he thus bequeathed: " Seius, if he will not be my heir, and to his wife Marcella, I wish fifteen pounds of silver to be given." I ask, since Seius turned out to be heir, whether to Marcella a half portion of the legacy is owed. I answered that, according to the matters that were proposed, it is owed.
Lucius titius intestato moriturus, cum haberet uxorem et ex ea filiam emancipatam, codicillis haec verba inseruit: " pertinent autem hi codicilli ad uxorem et filiam. primum autem rogo, sic inter vos agatis, ut me vivo egistis itaque rogo, ut quidquid aut ego reliquero aut quod vos ipsae habetis, commune vobis sit". filia intestati patris bonorum possessionem accepit: quaeritur, an aliqua pars hereditatis lucii titii ex causa fideicommissi a filia matri deberetur et quota. respondi secundum ea quae proponerentur dimidiam partem deberi, si modo uxor parata sit in commune bona sua conferre.
About to die intestate, Lucius Titius, when he had a wife and from her an emancipated daughter, inserted these words in codicils: "But these codicils pertain to my wife and daughter. First, I ask that you deal with one another just as you dealt while I was alive; and so I ask that whatever either I shall have left or what you yourselves have be common to you." The daughter accepted the possession of the goods of her intestate father: it is asked whether any part of the inheritance of Lucius Titius, on the ground of a fideicommissum, would be owed by the daughter to the mother, and what share. I answered, according to what was put forward, that a half share is owed, provided only that the wife is ready to contribute her own goods into common.
Quattuor filios aequis partibus instituit et fundum per praeceptionem singulis legavit: filii, cum universa bona patris obligata essent, mutua accepta pecunia hereditario creditori solverunt et posteriori obligaverunt, qui, cum ei debitum non solveretur, praedia universa lege pignoris uni ex heredibus vendidit: quaeritur, an, cum iste filius ex causa emptionis ea possideat, fratribus et coheredibus fideicommissi petitio esset an vero ea perempta esset, cum communiter universa sequenti creditori obligaverint. respondi actionem quidem fideicommissi in personam competentem omnibus invicem manere: non autem fideicommissum restituendum est, nisi prius debitum ab eis emptori eidemque coheredi persolveretur.
He instituted four sons in equal parts and by preemption bequeathed a farm to each individually. The sons, since all the father’s goods were obligated, having received money by loan, paid the hereditary creditor and hypothecated them to a later creditor, who, when the debt was not paid to him, sold all the estates under the law of pledge to one of the heirs. The question is whether, since this son possesses them by reason of purchase, there would be for the brothers and coheirs a petition for the fideicommissum, or indeed whether it was extinguished, since they had jointly obligated all things to the subsequent creditor. I answered that the in personam action for the fideicommissum, available to all mutually, remains; however, the fideicommissum is not to be restored unless the debt is first fully paid by them to the purchaser, who is likewise their coheir.
Filiae fidei commisit in haec verba: " peto a te, filia mea, ut dotalem cautionem post mortem meam mutes et ita renoves, ut fratres tui dotem stipularentur hoc casu, ut, si sine liberis uno pluribusve in matrimonio morieris, dos ad eos perveniat". post mortem patris decessit maritus, antequam renovaretur cautio dotalis, et postea alii nupta decessit nullo liberorum relicto, vivo adhuc titio uno ex fratribus. quaesitum est, an titius petitionem haberet rerum, quae in dotem fuerant. respondi posse fideicommissum ab heredibus sororis peti, si per eam stetit, quo minus dotem frater stipularetur.
He committed to his daughter a fideicommissum in these words: " I ask of you, my daughter, that after my death you change the dotal security and so renew it, that your brothers stipulate the dowry on this condition: that, if you die in marriage without children, one or more, the dowry shall come to them". after the father’s death the husband died, before the dotal security was renewed, and afterwards, married to another, she died leaving no children, with titius, one of the brothers, still alive. it was asked whether titius had a claim to the things which had been in dowry. I answered that the fideicommissum could be sought from the heirs of the sister, if it was by her doing that the brother did not stipulate the dowry.
Filium et filiam heredes instituit et libertis legata dedit eorumque fidei commisit in haec verba: " a vobis peto, ut quidquid vobis legavi, contenti sitis viventes, ut post vos filiis meis restituatis". defuncta testatricis filia maevia libertus decessit herede instituto patronae filio ex parte debita, ex altera extraneo: quaesitum est, an adita hereditate patronae filius a coherede suo partem eorum, quae ex testamento matris ad maevium libertum pervenerant, petere potest. respondi eius, quod ei deberetur, si hereditatem non adisset, partem a coherede petere posse.
He instituted his son and daughter as heirs and gave legacies to the freedmen, and entrusted them to their good faith in these words: " a vobis peto, ut quidquid vobis legavi, contenti sitis viventes, ut post vos filiis meis restituatis". with the testatrix’s daughter maevia deceased, the freedman died, his instituted heir being, as to the due portion, the son of his patroness, and as to the other portion, a stranger: it was asked whether, the inheritance having been entered upon, the son of the patroness can demand from his coheir a share of those things which from the mother’s testament had come to the freedman maevium. I responded that he can demand from his coheir the portion of that which would be owed to him if he had not entered upon the inheritance.
Maritus uxorem ex asse heredem instituit, cuius post mortem codicillos aperiri testator praecepit: praedium hereditarium uxor infructuosum rationi suae existimans vendidit: emptor quaerit, an retractari haec venditio possit post mortem mulieris ab his, quibus codicillis per fideicommissum hereditas data deprehenderetur an vero solum quantitas pretii ab herede uxoris fideicommissariis debeatur. respondi propter iustam ignorantiam tam mulieris quam emptoris heredem mulieris, ut fundus apud emptorem remaneat, fideicommissario pretium dare debere
The husband instituted his wife heir for the whole (ex asse), and the testator ordered that after her death the codicils be opened: the wife, deeming the hereditary estate (praedium) unprofitable to her economy, sold it: the purchaser asks whether this sale can be rescinded after the woman’s death by those in whose favor by the codicils the inheritance would be found to have been given by fideicommissum, or whether rather only the amount of the price is owed by the wife’s heir to the fideicommissaries. I answered that, on account of the just ignorance of both the woman and the purchaser, the wife’s heir, so that the farm (fundus) remain with the purchaser, ought to give the price to the fideicommissary