Justinian•DIGESTA
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Si incertus quis sit, captivus sit an a latrunculis obsessus, testamentum facere non potest. sed et si sui iuris sit ignarus putetque se per errorem, quia a latronibus captus est, servum esse velut hostium, vel legatus qui nihil se a captivo differre putat, non posse fideicommittere certum est, quia nec testari potest, qui, an liceat sibi testari, dubitat.
If someone is uncertain whether he is a captive or is beset by brigands, he cannot make a testament. But also, if he is unaware that he is sui iuris and thinks by mistake—because he has been seized by robbers—that he is a slave as though of enemies, or an envoy who thinks that he in no respect differs from a captive, it is certain that he cannot make a fideicommissum, because one who doubts whether it is permitted to him to make a will cannot even make a will.
Sed si filius familias vel servus fideicommissum reliquerit, non valet: si tamen manumissi decessisse proponantur, constanter dicemus fideicommissum relictum videri, quasi nunc datum, cum mors contingit, videlicet si duraverit voluntas post manumissionem. haec utique nemo credet in testamentis nos esse probaturos, quia nihil in testamento valet, quotiens ipsum testamentum non valet, sed si alias fideicommissum quis reliquerit.
But if a son under paternal power or a slave has left a fideicommissum, it is not valid: if, however, it is alleged that they died manumitted, we shall consistently say that the fideicommissum appears to have been left, as if now given when death occurs, namely if the intention has endured after manumission. these things, to be sure, no one will believe that we are going to approve in testaments, because nothing in a testament is valid whenever the testament itself is not valid, but if someone has otherwise left a fideicommissum.
Deportatos autem eos accipere debemus, quibus princeps insulas adnotavit vel de quibus deportandis scripsit: ceterum prius quam factum praesidis comprobet, nondum amisisse quis civitatem videtur. proinde si ante decessisset, civis decessisse videtur et fideicommissum, quod ante reliquerat, quam sententiam pateretur, valebit: sed et si post sententiam, antequam imperator comprobet, valebit quod factum est, quia certum statum usque adhuc habuit.
We ought to understand as deported those for whom the princeps has adnotated the islands or about whom he has written that they are to be deported: however, before he approves the act of the governor, one is not yet seen to have lost citizenship. Accordingly, if he had died earlier, he is considered to have died a citizen, and the fideicommissum which he had left before he underwent the sentence will be valid: but even if after the sentence, before the emperor approves, what has been done will be valid, because up to now he had a certain status.
A praefectis vero praetorio vel eo, qui vice praefectis ex mandatis principis cognoscet, item a praefecto urbis deportatos ( quia ei quoque epistula divi severi et imperatoris nostri ius deportandi datum est) statim amittere civitatem et ideo nec testamenti faciendi ius nec fideicommittendi constat habere.
Those deported by the Praetorian Prefects, or by him who, in the stead of the prefects, adjudicates by the mandates of the prince, and likewise by the Prefect of the City (because to him also, by an epistle of the deified Severus and of our emperor, the right of deporting has been given), immediately lose citizenship and therefore are understood to have neither the right of making a testament nor of fideicommitting.
Illud certe indubitate dicitur, si quis intestatus decedens ab eo, qui primo gradu ei succedere potuit, fideicommissum reliquerit, si illo repudiante ad sequentem gradum devoluta sit successio, eum fideicommissum non debere: et ita imperator noster rescripsit.
This, certainly, is said without doubt: if someone, dying intestate, has left a fideicommissum requested from the one who in the first degree could have succeeded to him, if that person repudiates and the succession devolves upon the next degree, he does not owe the fideicommissum; and thus our emperor has issued a rescript.
Si mulier dotem stipulata fuerit et accepto tulit marito in hoc dotem, ut fideicommissum det, dicendum est fideicommissum deberi: percepisse enim aliquid a muliere videtur. haec ita, si mortis causa donatura mulier marito fecit acceptum. sed et si mortis causa auxerit marito dotem vel in matrimonium eius mortis causa redierit, potest dici fideicommissum ab eo deberi.
If a woman has stipulated a dowry and, by acceptilation, has acknowledged the dowry as received to the husband for this purpose, that he give a fideicommissum, it must be said that the fideicommissum is owed; for he seems to have received something from the woman. This is so, if the woman, intending a donation mortis causa to her husband, effected the acceptilation. But even if, mortis causa, she has increased the dowry for her husband, or has returned into marriage with him mortis causa, it can be said that the fideicommissum is owed by him.
Si rem quis debeat ex stipulatu ei cui rem legaverit, fidei committere eius non poterit, licet ex legato commodum sentire videatur, quod dominium nanciscitur statim nec exspectat ex stipulatu actionem: fortassis quis dicat et sumptum ^ sumptus^ litis, quem sustineret, si ex stipulatione litigaret, eum lucrari. sed nequaquam dicendum est huius fidei committi posse.
If someone should owe a thing from a stipulation to him to whom he has bequeathed the thing, he will not be able to commit it to his trust, although he seems to feel a benefit from the legacy, because he acquires ownership at once and does not await an action from the stipulation: perhaps someone might say that he also gains the expense ^ expenses^ of litigation, which he would bear if he litigated from the stipulation. But by no means is it to be said that this can be committed to his trust.
Sed si habenti tibi proprietatem usum fructum mortis causa cessero, potest dici fideicommittere me posse. nec quemquam moveat, quod usus fructus solet morte exstingui: nam medii potius temporis, quo vivat qui donavit, commodum cogitemus.
But if I, mortis causa, cede the usufruct to you who hold the ownership, it can be said that I am able to create a fideicommissum. Nor should anyone be troubled by the fact that a usufruct is wont to be extinguished by death: for let us rather consider the advantage of the intermediate time, during which the giver lives.
Sic autem fideicommissum dari non poterit: " si stichus seii factus iussu eius hereditatem adierit, rogo det", quoniam qui fortuito, non iudicio testatoris consequitur hereditatem vel legatum, non debet onerari, nec recipiendum est, ut, cui nihil dederis, eum rogando obliges.
Thus, however, a fideicommissum cannot be given: "if stichus, having become seius’s, shall, by his order, enter upon the inheritance, I ask that he give," since he who obtains an inheritance or a legacy by fortune, not by the testator’s judgment, ought not to be burdened; nor is it to be accepted that, by asking, you bind one to whom you have given nothing.
Si legatarius, a quo fideicommissum datum est, petierit legatum, id tantum, quod per iudicem exegerit, praestare fideicommissario cogetur vel, si non exegerit, actione cedere: ad eum enim litis periculum spectare iniquum est, si non culpa legatarii lis perierit.
If the legatee, by whom the fideicommissum was given, shall have sought the legacy, he will be compelled to provide to the fideicommissary only so much as he has exacted through the judge, or, if he has not exacted it, to cede the action; for it is inequitable that the peril of the suit should fall upon him, if the suit has perished not through the fault of the legatee.
Cum ita petisset testator, ut, quidquid ex bonis eius ad patrem pervenisset, filiae suae ita restitueret, ut eo amplius haberet, quam ex bonis patris habitura esset, divus pius rescripsit manifestum esse de eo tempore sensisse testatorem, quod post mortem patris futurum esset.
When the testator had thus requested, that whatever from his goods should have come to the father he should restore to his daughter in such a way that by that she would have more than she would be going to have from the father’s goods, the deified Pius wrote in a rescript that it is manifest the testator had intended with reference to that time which would be after the father’s death.
Si ita fuerit fideicommissum relictum: " ad quemcumque ex testamento meo vel ab intestato" vel ita: " ad quemcumque quoquo iure bona mea perveniant": hac oratione et eius, qui postea natus erit inve familiam venerit et eius, qui postea cognatus esse coeperit, fidei commissum videtur: eius quoque, quae nondum nupta erit, sed postea eo casu, quo ex edicto ad uxorem bona mariti intestati solent pertinere.
If a fideicommiss has been left thus: "to whomever from my testament or on intestacy," or thus: "to whomever by whatever right my goods may come," by this wording a fideicommiss is deemed to extend also to him who shall afterwards be born or shall have come into the family, and to him who shall afterwards have begun to be a cognate; also to her who will not yet be married, but later, in that case in which by the edict the goods of an intestate husband are accustomed to pertain to the wife.
Cum esset quis rogatus restituere portionem accepta certa quantitate, responsum est ultro petere ipsum fideicommissum ab herede posse. sed utrum, si volet, praecipiet restituetque portionem, an vero et si noluerit, cogatur accepta quantitate portionem restituere, propriae est deliberationis. et sane cum quis rogatur accepta certa quantitate portionem restituere, duplex est fideicommissum, unum, ut possit petere quantitatem paratus portione cedere, aliud, ut et si non petet, tamen cogatur fideicommissario restituere parato praestare quantitatem.
When someone was asked to restore a portion upon receiving a fixed quantity, it was answered that he can, on his own initiative, demand the fideicommissum itself from the heir. But whether, if he wishes, he will take in preference and restore the portion, or indeed even if he does not wish, he will be compelled, upon receipt of the quantity, to restore the portion, is a matter for one’s own deliberation. And indeed, when someone is asked to restore a portion upon receipt of a certain fixed quantity, the fideicommissum is twofold: one form, that he may be able to seek the quantity, being prepared to cede the portion; the other, that even if he does not seek it, nevertheless he is compelled to restore to the fideicommissary, who is ready to furnish the quantity.
Hoc autem " cum voluerit" tractum habet, quamdiu vivat is, a quo fideicommissum relictum est: verum si antequam dederit, decesserit, heres eius praestat. sed et si fideicommissarius, antequam heres constituat, decesserit, ad heredem suum nihil transtulisse videtur: condicionale enim esse legatum nemini dubium est et pendente condicione legati videri decessisse fideicommissarium.
But this phrase " cum voluerit" has a prolongation, as long as the one by whom the fideicommissum was left is alive: however, if he dies before he has given it, his heir furnishes it. And likewise, if the fideicommissary dies before he appoints an heir, he is seen to have transferred nothing to his own heir: for that the legacy is conditional is doubtful to no one, and that, with the condition of the legacy pending, the fideicommissary is regarded to have died.
Quamquam autem fideicommissum ita relictum non debeatur " si volueris", tamen si ita adscriptum fuerit: " si fueris arbitratus" " si putaveris" " si aestimaveris" " si utile tibi fuerit visum" vel " videbitur", debebitur: non enim plenum arbitrium voluntatis heredi dedit, sed quasi viro bono commissum relictum.
Although a fideicommiss left in this way is not owed “ if you wish,” nevertheless if it has been appended thus: “ if you shall have adjudged,” “ if you shall have thought,” “ if you shall have assessed,” “ if it shall have seemed useful to you,” or “ as it shall seem,” it will be owed: for he did not give the heir full arbitrium of will, but left it as if committed to a good man.
Proinde si ita sit fideicommissum relictum: " illi, si te meruerit", omnimodo fideicommissum debebitur, si modo meritum quasi apud virum bonum collocare fideicommissarius potuit: et si ita sit " si te non offenderit", aeque debebitur: nec poterit heres causari non esse meritum, si alius vir bonus et non infestus meritum potuit admittere.
Accordingly, if a fideicommissum has been left thus: " to him, if he has deserved you", in every way the fideicommissum will be owed, provided that the fideicommissary was able, as it were, to place the question of his merit before a good man: and if it be thus " if he has not offended you", likewise it will be owed: nor will the heir be able to plead that there is no merit, if another good and non-hostile man could have admitted the merit.
Haec verba: " te, fili, rogo, ut praedia, quae ad te pervenerint, pro tua diligentia diligas et curam eorum agas, ut possint ad filios tuos pervenire", licet non satis exprimunt fideicommissum, sed magis consilium quam necessitatem relinquendi, tamen ea praedia in nepotibus post mortem patris eorum vim fideicommissi videntur continere.
These words: "I ask you, son, to cherish the estates which shall have come to you according to your diligence and to take their care, so that they may be able to come to your sons," although they do not sufficiently express a fideicommissum, but rather leave counsel than a necessity of leaving, nevertheless those estates in the grandsons, after their father’s death, seem to contain the force of a fideicommissum.
Si filio a patre herede instituto fideicommissum relictum fuerit, etsi verbis non sit ita relictum " cum pater moreretur", sed intellegi hoc possit, puta quia sic relictum est " ut relinquat filio" vel " volo eum habere" vel " volo ad eum pertinere", defendetur in id tempus fideicommissum relictum, quo sui iuris filius efficitur.
If, to a son appointed heir by his father, a fideicommissum has been left, even if it has not been left in such words as “when the father should die,” but this can be understood—say because it is left thus “that he leave it to the son” or “I wish him to have it” or “I wish it to pertain to him”—the fideicommissum will be upheld as left for that point in time when the son becomes sui iuris (of his own right).
Si cui ita fuerit fideicommissum relictum: " si morte patris sui iuris fuerit " effectus" et emancipatione sui iuris factus sit, non videri defecisse condicionem: sed et cum mors patri contingat quasi exstante condicione ad fideicommissum admittetur.
If to someone a fideicommissum has been left in this way: " if by the death of his father he shall have become sui iuris " effected" and by emancipation he has been made sui iuris, the condition is not seen to have failed: but also when death befalls the father, as the condition subsisting, he will be admitted to the fideicommissum.
Ergo et si nomen quis debitoris exegerit, quod per fideicommissum reliquit, non tamen hoc animo, quasi vellet extinguere fideicommissum, poterit dici deberi: nisi forte inter haec interest: hic enim extinguitur ipsa constantia debiti, ibi res durat, tametsi alienata sit. cum tamen quidam nomen debitoris exegisset et pro deposito pecuniam habuisset, putavi fideicommissi petitionem superesse, maxime quia non ipse exegerat, sed debitor ultro pecuniam optulerat, quam offerente ipso non potuit non accipere. paulatim igitur admittemus, etsi ex hac parte pecuniae rem comparaverit, quam non hoc animo exegit, ut fideicommissarium privaret fideicommisso, posse adhuc fideicommissi petitionem superesse.
Therefore, even if someone has exacted the debtor’s nomen, which he left by fideicommissum, yet not with this intention, as though he wished to extinguish the fideicommissum, it can be said to be still owed—unless perhaps there is a distinction between these cases: here, indeed, the very subsistence of the debt is extinguished; there, the thing endures, although it has been alienated. When, however, someone had exacted the debtor’s nomen and had the money as a deposit, I thought the petition of the fideicommissum still survived, especially because he had not himself exacted it, but the debtor of his own accord proffered the money, which, since he was the offeror, he could not but accept. Gradually, therefore, we shall admit that even if from this portion of the money he has acquired a thing, since he did not exact it with the intention to deprive the fideicommissary of the fideicommissum, the petition of the fideicommissum can still survive.
Si servo alieno militia relinquatur, an domino quaeratur legatum, quaeritur. et aut scit servum esse, et dico aestimationem deberi: aut ignoravit, et denegari fideicommissi persecutio debet, quia, si scisset servum, non reliquisset.
If a military service (commission) is left to another’s slave, the question is raised whether the legacy is to be sought by the master. And either he knows that he is a slave, and I say that the valuation is owed; or he was ignorant, and the pursuit of the fideicommissum ought to be denied, because, if he had known him to be a slave, he would not have left it.
Si quis decem alicui per fideicommissum reliquerit et, si perdidisset id quod testamento relictum est, rursus ei reliquerit, quaerebatur, an sequens fideicommissum valeat vel an exigere heres debeat cautionem salva fore decem, ne cogatur ad praestationem, et an, si saepius perdidisset, saepius ei sarciretur fideicommissum. divus pius rescripsit neque cautionem exigendam et non amplius quam semel, postquam perdidisset, praestandum: non enim onerandus est heres, ut in infinitum, quotiens perdiderit, restituere ei tantundem debeat, sed ut per fideicommissum posterius duplicata eius legata videantur nec amplius ad periculum heredis pertineat, si quid postea is consumpserit exsoluto et posteriore fideicommisso.
If someone has left ten to someone by fideicommiss, and, if he should lose that which is left by the testament, has left it to him again, the question was raised whether the following fideicommiss is valid, or whether the heir ought to demand security that the ten will be kept safe, lest he be compelled to the prestation, and whether, if he should lose it more often, the fideicommiss would be made good to him more often. The Deified Pius wrote in a rescript that neither is security to be demanded, and that it is to be rendered not more than once, after he has lost it: for the heir is not to be burdened so that to infinity, as often as he has lost it, he must restore to him as much again; rather, by the later fideicommiss his legacies seem doubled, and it no longer pertains to the peril of the heir, if he should spend anything thereafter, with the later fideicommiss paid out.
Item si quis certam quantitatem cui reliquerit et addiderit facilius hanc summam posse compensari, cum debitor sit fideicommissarius ex causa hereditatis gaii seii, nec velit ille hereditatem adire gaii seii, sed petat fideicommissum: imperator noster contra voluntatem eum testantis petere fideicommissum rescripsit, cum in fideicommissis praecipue spectanda servandaque sit testatoris voluntas.
Likewise, if someone has left a definite quantity to someone and has added that this sum can more easily be set off, since the fideicommissary is a debtor by reason of the inheritance of gaius seius, and that man does not wish to enter upon the inheritance of gaius seius, but demands the fideicommissum: our emperor rescripted that he is not to seek the fideicommissum against the will of the testator, since in fideicommissa the will of the testator is above all to be regarded and observed.
Sic evenit, ut interdum si pluribus testator honorem habere voluit et de pluribus sensit, quamvis unum legatum sit, tamen ad persecutionem eius plures admittantur. ut puta si decem fuerunt eiusdem rei stipulandi et heres vel fideicommissarius rogatus est, ut eis solveret: hic enim si omnium interest et de omnibus sensit testator, fideicommissum relictum omnes petere potuerunt. sed utrum in partem agent an in solidum, videamus: et credo, prout cuiusque interest, consequentur: unus igitur qui occupat agendo totum consequitur ita, ut caveat defensu iri adversus ceteros fideicommissarios eum qui solvit, sive socii sunt sive non.
Thus it comes about that sometimes, if the testator wished to show honor to several persons and had several in mind, although there is one legacy, nevertheless several are admitted to the pursuit of it. For example, if there were ten to stipulate for the same thing, and the heir or the fideicommissary was asked to pay them: for here, if it is in the interest of all and the testator had all in mind, the fideicommissum left could be sought by all. But whether they sue for a share or for the whole, let us consider: and I believe that, according to each one’s interest, they will obtain it; therefore the one who first seizes the initiative by suing obtains the whole, on condition that he give security that the one who pays will be defended against the other fideicommissaries, whether they are partners or not.
Interdum alterius nomen scribitur in testamento, alteri vero fideicommissi petitio vel legati competit, ut puta si fidei heredis committatur, ut ipse publicum pro titio praestet, fideicommissum hoc vel legatum non publicanus petit, licet ei sit adscriptum, sed ipse petere poterit, pro quo legatum relictum est. multum autem interesse arbitror, cui voluit prospectum cuiusque contemplatione testator fecerit. plerumque autem intellegendum est privati causa hoc fecisse, licet emolumentum publicano quaeratur.
Sometimes the name of one person is written in the testament, yet to another belongs the claim of a fideicommissum or of a legacy; for example, if it is committed to the heir’s good faith that he himself should provide the public tax on behalf of Titius, this fideicommissum or this legacy is not claimed by the publican, although it is ascribed to him, but he himself can demand it, the one for whom the legacy was left. I judge, moreover, that it makes much difference for whom he wished provision to be made, and in whose contemplation the testator acted. And for the most part it is to be understood that he did this for the sake of the private individual, although an emolument is sought for the publican.
Si in opere civitatis faciendo aliquid relictum sit, unumquemque heredem in solidum teneri divus marcus et lucius verus proculae rescripserunt: tempus tamen coheredi praestituerunt, intra quod mittat ad opus faciendum, post quod solam proculam voluerunt facere imputaturam coheredi sumptum pro parte eius.
If, in carrying out a municipal work, something has been left undone, each heir is held in solidum, as the deified Marcus and Lucius Verus wrote in a rescript to Procula: nevertheless, they appointed a time-limit for the coheir, within which he should send to have the work done, after which they wished Procula alone to proceed, charging to the coheir the expense for his share.
" stichus liber esto: et ut eum heres artificium doceat, unde se tueri possit, peto". pegasus inutile fideicommissum esse ait, quia genus artificii adiectum non esset: sed praetor aut arbiter ex voluntate defuncti et aetate et condicione et natura ingenioque eius, cui relictum erit, statuet, quod potissimum artificium heres docere eum sumptibus suis debeat.
" let Stichus be free: and I request that the heir teach him a craft, by which he can support himself." pegasus says the fideicommissum is useless, because the kind of craft was not specified: but the praetor or an arbiter, in accordance with the will of the deceased and the age and condition and the nature and talent of the one to whom it will have been left, will determine which craft, as the most fitting, the heir ought to teach him at his own expense.
Si iure testamento facto fideicommissum tibi reliquero, deinde postea aliud fecero non iure, in quo fideicommissum relictum tibi vel aliud quam quod priore testamento vel omnino non sit relictum, videndum est, mens mea haec fuerit facientis postea testamentum, ut nolim ratum tibi sit priore testamento relictum, quia nuda voluntate fideicommissa infirmarentur. sed vix id optinere potest, fortassis ideo, quod ita demum a priore testamento velim recedi, si posterius valiturum sit et nunc ex posteriore testamento fideicommissum ei non debetur, etiamsi idem heredes utroque testamento instituti ex priore exstiterunt.
If, by a will made in due form, I have left you a fideicommissum, and then afterward I have made another not in due form, in which either a fideicommissum is left to you different from that in the prior will, or none is left at all, the question is whether my intention, as the one making the later will, was this: that I do not wish what was left to you by the prior will to stand ratified, because by bare will alone fideicommissa would be invalidated. But this can scarcely prevail, perhaps for this reason: that I would wish to depart from the prior will only if the later would be valid; and now, under the later will, a fideicommissum is not owed to him, even if the same heirs, instituted under both wills, have taken under the prior.
Si tibi legatum est vel fideicommissum relictum, uti quid facias, etiamsi non interest heredis id fieri, negandam tibi actionem, si non caveas heredi futurum, quod defunctus voluit, nerva et atilicinus recte putaverunt.
If a legacy has been left to you, or a fideicommissum, for you to do something, even if it is not in the heir’s interest that it be done, Nerva and Atilicinus rightly thought that the action should be denied to you, unless you give security to the heir that what the deceased wished will be forthcoming.
Si quis in principio testamenti adscripserit: " cui bis legavero, semel deberi volo", postea eodem testamento vel codicillis sciens saepe eidem legaverit, suprema voluntas potior habetur: nemo enim eam sibi potest legem dicere, ut a priore ei recedere non liceat. sed hoc ita locum habebit, si specialiter dixerit prioris voluntatis sibi paenituisse et voluisse, ut legatarius plura legata accipiat.
If someone at the beginning of a testament has added: " to whom I have bequeathed twice, I will that it be owed once", and afterwards in the same testament or by codicils, knowingly, has often bequeathed to the same person, the final will is held the stronger: for no one can declare such a law for himself that it is not permitted to withdraw from the earlier. But this will have place thus, if he has specifically said that he repented of the prior intention and wished that the legatee receive multiple legacies.
Paula callinico ex parte herede instituto filiae eiusdem iuventianae, cum in familia nupsisset, decem testamento legavit: deinde post tempus codicillis factis centum eidem callinico reliquerat non adiecto " hoc amplius". pronuntiavit utramque summam deberi, maxime cum in codicillis filiae callinici nihil legatum fuisset.
Paula, to Callinicus—who had been instituted as heir in part by her daughter, the same Iuventiana—when that daughter had married under family power, bequeathed 10 by testament; then, after a time, with codicils made, she had left 100 to the same Callinicus, not adding “ hoc amplius”. He pronounced that both sums were owed, especially since in the codicils nothing had been bequeathed to Callinicus’s daughter.
Pompeius hermippus filium hermippum ex dodrante, filiam titianam ex quadrante heredes instituerat et praedia certa singulis praelegaverat: praeterea, si sine liberis hermippus moreretur, aliam possessionem filiae dari iusserat: post testamentum factis codicillis filiae certa praedia dederat eamque his contentam esse voluit pro omni hereditate et his, quae in testamento reliquerat: hermippi bona ad fiscum pervenerant: titiana soror fideicommissum petebat. quaerebatur, utrum pro hereditate tantum an et pro his, quae post mortem frater rogatus erat restituere, pater eam voluisset accipere ea quae codicillis reliquerat. mihi ab omni voluntate recessum videbatur.
Pompeius hermippus had instituted his son hermippus heir from a three-quarters share, his daughter titiana from a quarter, and had bequeathed certain estates to each; moreover, if hermippus should die without children, he had ordered another possession to be given to the daughter; after the testament, by codicils he had given certain estates to his daughter and wished her to be content with these in place of the whole inheritance and of the things which he had left in the testament: hermippus’s goods had come to the fisc: titiana the sister was claiming the fideicommissum. It was asked whether the father had wished her to receive, in place of the inheritance only, or also in place of those things which after death the brother had been requested to restore, the things which he had left by codicils. It seemed to me that there had been a departure from every intention.
Iulianus severus decedens institutis quibusdam heredibus alumno suo quinquaginta legaverat eaque a iulio mauro colono suo ex pensionibus fundi debitis ab eo praestari voluerat eidemque mauro quaedam legaverat: cum de hereditate fiscus quaestionem movisset, iussu procuratoris maurus pecuniam fisco solverat: postea heres scriptus optinuerat fiscum: alumno autem mortuo heres eius fideicommissum ab herede mauri petebat. placuit imperatori non videri eius fidei commissum, sed demonstratum, unde accipere posset: et ideo heres severi haec praestare debet.
Julianus Severus, at his decease, having instituted certain heirs, had bequeathed fifty to his alumnus, and he had wished these to be furnished by Julius Maurus, his colonus, out of the rents of the farm owed by him, and to that same Maurus he had bequeathed certain things. When the fisc had raised a question about the inheritance, by order of the procurator Maurus paid the money to the fisc. Afterwards the instituted heir prevailed against the fisc. But when the alumnus died, his heir was demanding the fideicommissum from the heir of Maurus. It pleased the emperor that this did not seem to be a fideicommissum in his favor, but a pointing-out of whence he could receive it; and therefore the heir of Severus must furnish these.
Qui concubinam habebat, ei vestem prioris concubinae utendam dederat, deinde ita legavit: " vestem, quae eius causa empta parata esset". cascellius trebatius negant ei deberi prioris concubinae causa parata, quia alia condicio esset in uxore. labeo id non probat, quia in eiusmodi legato non ius uxorium sequendum, sed verborum interpretatio esset facienda idemque vel in filia vel in qualibet alia persona iuris esset. labeonis sententia vera est.
He who had a concubine had given her for use the clothing of the former concubine, and then thus bequeathed: " the clothing which had been bought and prepared on her account." Cascellius and Trebatius say that what was prepared on account of the prior concubine is not owed to her, because the condition would be different in the case of a wife. Labeo does not approve this, because in a legacy of this kind one is not to follow marital law, but an interpretation of the words is to be made; and the same would be the law either in the case of a daughter or in that of any other person. Labeo’s opinion is true.
Cum ita legatum esset, ut titia uxor mea tantandem partem habeat quantulam unus heres, si non aequales partes essent heredum, quintus mucius et gallus putabant maximam partem legatam esse, quia in maiore minor quoque inesset, servius ofilius minimam, quia cum heres dare damnatus esset, in potestate eius esset, quam partem daret. labeo hoc probat idque verum est.
when it had been bequeathed thus, that titia, my wife, should have just such a share as that of one heir, if the shares of the heirs were not equal, quintus mucius and gallus thought that the greatest share had been bequeathed, because in the greater the lesser also would be contained; servius ofilius [thought] the smallest, because, since the heir was condemned to give, it was in his power which share he would give. labeo approves this, and this is true.
Cum ita legatum esset: " quanta pecunia ex hereditate titii ad me pervenit, tantam pecuniam heres meus seiae dato", id legatum putat labeo, quod acceptum in tabulis suis ex ea hereditate testator rettulisset: ceterum negat cavendum heredi a legatario, si quid forte postea eius hereditatis nomine heres damnatus esset. ego contra puto, quia non potest videri pervenisse ad heredem, quod eius hereditatis nomine praestaturus esset: idem alfenus varus servio placuisse scribit, quod et verum est.
When it had been so legated: " quanta pecunia ex hereditate titii ad me pervenit, tantam pecuniam heres meus seiae dato", labeo considers that to be the legacy which the testator had entered in his own tablets as received from that inheritance; moreover, he denies that the heir must require security from the legatee, if by chance afterward the heir were condemned in the name of that inheritance. I, on the contrary, think that it cannot be considered to have come to the heir, what he would be about to render under the title of that inheritance: the same alfenus varus writes that this pleased servius, which also is true.
Si heres tibi servo generaliter legato stichum tradiderit isque a te evictus fuisset, posse te ex testamento agere labeo scribit, quia non videtur heres dedisse, quod ita dederat, ut habere non possis: et hoc verum puto. sed hoc amplius ait debere te, priusquam iudicium accipiatur, denuntiare heredi: nam si aliter feceris, agenti ex testamento opponetur tibi doli mali exceptio.
If the heir, in the case of a slave bequeathed generally, has delivered to you stichus, and he were evicted from you, Labeo writes that you can proceed under the testament, because the heir is not considered to have given, since he gave in such a way that you cannot have it; and I think this true. But he says further that you ought, before the action is accepted, to give notice to the heir: for if you do otherwise, when proceeding under the testament the exceptio doli mali will be set up against you.
" si stichus et dama servi mei in potestate mea erunt cum moriar, tum stichus et dama liberi sunto et fundum illum sibi habento". si alterum ex his post testamentum factum dominus alienasset vel manumisisset, neutrum liberum futurum labeo putat: sed tubero eum, qui remansisset in potestate, liberum futurum et legatum habiturum putat. tuberonis sententiam voluntati defuncti magis puto convenire.
" if Stichus and Dama, my slaves, will be in my power when I die, then let Stichus and Dama be free and let them have that estate for themselves." If, after the will was made, the master had alienated or manumitted one of them, Labeo thinks that neither will be free; but Tubero thinks that the one who had remained in the power will be free and will have the legacy. I think Tubero’s opinion accords more with the will of the deceased.
Qui hortos publicos a re publica conductos habebat, eorum hortorum fructus usque ad lustrum, quo conducti essent, aufidio legaverat et heredem eam conductionem eorum hortorum ei dare damnaverat sinereque uti eum et frui. respondi heredem teneri sinere frui: hoc amplius heredem mercedem quoque hortorum rei publicae praestaturum.
He who had the public gardens leased from the commonwealth had bequeathed to Aufidius the fruits of those gardens up to the lustrum during which they had been leased, and had bound the heir to give that lease of those gardens to him and to allow him to use and enjoy. I replied that the heir is bound to allow the enjoyment; moreover, that the heir will also render the rent of the gardens to the commonwealth.
Cum testamento scriptum esset: " sticho servo meo heres quinque dato et, si stichus heredi meo biennium servierit, liber esto", post biennium legatum deberi existimo, quia in id tempus et libertas et legatum referri deberet: quod et trebatius respondit.
When it had been written in a testament: " Heir, give five to my slave stichus, and, if stichus shall have served my heir for two years, let him be free", I consider the legacy to be owed after the two-year period, because both the liberty and the legacy ought to be referred to that time: which trebatius also replied.
Qui fundum mandatu meo in societate mihi et sibi emerat, deinde eum finibus diviserat et priusquam mihi traderet, ita eum tibi legaverat " fundum meum illi do". negavi amplius partem deberi, quia verisimile non esset ita testatum esse patrem familias, ut mandati heres eius damnaretur.
One who, by my mandate, had bought an estate in partnership for me and for himself, then had divided it by boundaries, and before he delivered it to me had thus bequeathed it to you: " fundum meum illi do" (" I give that man my estate"). I denied that any further part was owed, because it would not be plausible that the paterfamilias had so made his will that his heir would be condemned in an action on mandate.
" uxori meae, dum cum filio meo capuae erit, heres meus ducenta dato": filius a matre migravit. si ambo capuae habitassent, legatum matri debitu iri putavi, quamvis una non habitassent: sin autem in aliud municipium transissent, unius anni tantummodo debitu iri, quo una habitassent quantolibet tempore: trebatius ait. videamus, an his verbis " dum cum filio capuae erit" non condicio significetur, sed ea scriptura pro supervacuo debet haberi: quod non probo.
"to my wife, while she will be with my son at Capua, let my heir give two hundred": the son has moved away from his mother. If both had lived at Capua, I thought the legacy would be owed to the mother, although they had not lived together; but if they had moved into another municipium, only one year would be owed, during which they had lived together, for however long a time: Trebatius says. Let us see whether by these words "while she will be with her son at Capua" no condition is signified, but that wording ought to be regarded as superfluous: which I do not approve.
Si aedes alienas ut dares damnatus sis neque eas ulla condicione emere possis, aestimare iudicem oportere ateius scribit, quanti aedes sint, ut pretio soluto heres liberetur. idemque iuris est et si potuisses emere, non emeres.
If you have been condemned to give premises belonging to another and cannot under any condition purchase them, Ateius writes that the judge ought to assess how much the premises are worth, so that, upon the price being paid, the heir is freed. And the same is the law even if you could have purchased them, but would not.
Si cui aedes legatae sint, is omne habebit id aedificium, quod solum earum aedium erit. paulus: hoc tunc demum falsum est, cum dominus aedium binarum aliquid conclave, quod supra concamarationem alterarum aedium esset, in usum alterarum convertit atque ita his usus fuerit: namque eo modo alteris aedibus id accedet, alteris decedet.
If houses have been bequeathed to someone, he will have every building that stands upon the ground-plot of those houses. paulus: This is then only false when the owner of two houses has converted some chamber, which was above the vaulting of one of the houses, to the use of the other and has so used it: for in that way it will accede to the one house and recede from the other.
Sextiam filiam ex quadrante, ex reliquis seium et marcium sororis filios scripsit heredes: sextiam substituit marcio et marcium sextiae, dedit autem per praeceptionem marcio certas species: marcius partem hereditatis, ex qua scriptus erat, omisit et eo intestato defuncto bona eius ad fratrem legitimum seium devoluta sunt. quaesitum est, an sextia ex substitutione etiam haec, quae praelegata marcio erant, iure substitutionis a legitimo herede defuncti sibi vindicare possit. respondit secundum ea quae proponerentur sextiam in legatis, quae marcio data sunt, substitutam non esse.
He wrote as heirs his daughter Sextia for a quarter, and from the remainder Seius and Marcius, the sons of his sister: he substituted Sextia to Marcius and Marcius to Sextia; moreover, he gave to Marcius, by way of prelegacy (per praeceptionem), certain specific items. Marcius omitted the portion of the inheritance under which he had been instituted, and when he died intestate his goods devolved upon his lawful brother Seius. The question was asked whether Sextia, by virtue of the substitution, could also claim for herself, by the right of substitution, from the lawful heir of the deceased, those things which had been pre-legacy to Marcius. He answered that, according to the facts proposed, Sextia was not substituted in the legacies that were given to Marcius.
Uxori suae inter cetera ita legavit: " et domus eam partem, in qua morari consuevimus". quaesitum est, cum tam testamenti faciundi tempore quam mortis totam domum in usu habuerit nec quicquam ex ea locatum, an ea tantummodo videtur legasse cubicula, in quibus dormire consueverat. respondit eam omnem partem, in qua morari cum familia sua consuevisset.
To his wife, among other things, he thus bequeathed: " and of the house that part in which we were accustomed to stay." It was asked, since both at the time of making the testament and at the time of his death he had had the whole house in use and no part of it rented out, whether he seems to have bequeathed only the bedchambers in which he had been accustomed to sleep. He replied: the whole part in which he had been accustomed to stay with his household.
Uxori suae inter cetera ita legavit: " uxori meae quidquid vivus dedi donavi usibusve eius comparavi, concedi volo": quaero, an quod post testamentum factum ei donatum est, id quoque concessum videatur. respondit verba quae proponerentur nihil pro futuro tempore significare.
To his wife, among other things, he bequeathed thus: " to my wife whatever I, while alive, have given, donated, or procured for her uses, I wish to be conceded": I ask whether what was given to her after the testament was made is likewise to be deemed conceded. He responded that the words which were proposed signify nothing for future time.
Cum seius pro uxore centum aureos creditori solverit et ornamentum pignori positum luerit, postea autem testamento facto uxori suae legavit, quidquid ad eum inve stipulatum eius concessit et hoc amplius vicenos aureos annuos: quaesitum est, an hos centum aureos heredes viri ab uxore vel ab heredibus eius repetant. respondit, si donationis causa creditori solvisset, teneri heredes ex causa fideicommissi, si repetant, atque etiam petentes exceptione summoveri: quod praesumptum esse debet, nisi contrarium ab herede approbetur.
When Seius, on behalf of his wife, paid one hundred aurei to a creditor and redeemed an ornament that had been placed in pledge, and afterwards, having made a testament, he bequeathed to his wife whatever had come to him and remitted whatever had been stipulated against her, and, in addition to this, twenty aurei annually: the question was asked whether the heirs of the husband may reclaim these one hundred aurei from the wife or from her heirs. He answered that, if he paid the creditor by reason of a donation (donationis causa), the heirs are bound on the ground of a fideicommissum if they pursue recovery, and furthermore that those suing are to be removed by an exception; which is to be presumed, unless the contrary is approved by the heir.
Nomen debitoris in haec verba legavit: " titio hoc amplius dari volo decem aureos, quos mihi heredes gaii seii debent, adversus quos ei actionem mandari volo eique eorundem pignora tradi". quaero, utrum heredes tantum decem dare debeant an in omne debitum, hoc est in usuras debeant mandare. respondit videri universam eius nominis obligationem legatam. item quaero, cum ignorante matre familias actores in provincia adiectis sorti usuris decem stipulati sint, an ex causa fideicommissi supra scripti etiam incrementum huius debiti ad titium pertineat.
He bequeathed the debtor’s account in these words: " I wish, in addition to this, ten aurei to be given to Titius, which the heirs of Gaius Seius owe me, against whom I wish an action to be mandated to him and the pledges of the same to be delivered to him." I ask whether the heirs ought to give only the ten, or to mandate for the entire debt—that is, for the interest. He responded that it seems the whole obligation of that account (nomen) was bequeathed. Likewise I ask, when, the materfamilias being ignorant, the agents in the province, with the interest added to the principal, have stipulated for ten, whether by reason of the aforesaid fideicommissum the increment of this debt also pertains to Titius.
Filio ex parte heredi scripto praeceptionem dedit inter cetera his verbis: " titio filio meo nomina ex calendario, quae elegerit filius meus sibi, viginti dare damnas sunto sine dolo malo": eidem filio vivus omnium rerum suarum administrationem permisit: qui post testamentum factum ante mortem patris annis decem, quibus procurabat patri, contra veterem consuetudinem patris, qua calendarium exercebatur, novos debitores amplarum pecuniarum fecit et in priores, quos pater exiguarum fortunarum habebat, maius creditum contulit ad hoc, ut viginti nominibus prope omnis substantia kalendarii esset. quaesitum est, an huic filio eorum nominum, quae ipse fecit, praeceptio permittenda est. respondit ex his electionem habere, quae testamenti tempore testator in kalendario habuit.
To a son written as heir in part he gave a praeception among other things with these words: " titio my son, let them be bound to give twenty nomina from the calendarium, which my son shall have chosen for himself, without malice or fraud": to the same son, while alive, he permitted the administration of all his affairs; and after the will was made, before the father's death, for ten years during which he acted as procurator for his father, contrary to the father's old custom by which the calendarium was conducted, he made new debtors of large sums and, as to the prior ones whom the father, men of slender means, had, he conferred greater credit, to this end: that in twenty nomina almost the whole substance of the calendarium would be. It was asked whether to this son a praeception should be permitted of those nomina which he himself created. He answered that he has the choice from those which the testator had in the calendarium at the time of the testament.
Uni ex heredibus per praeceptionem reliquit ea, quae ex patrimonio viri sui arethonis ei supererant, eiusque fidei commisit haec eadem restituere pronepoti, cum erit annis sedecim, in quibus haec verba adiecit: " item rogo, uti reliquum aes alienum, quod ex bonis arethonis debetur, omnibus creditoribus ex reditibus eorum bonorum solvas reddas satisque facias". quaesitum est, an, si probaverit heres non sufficere reditum bonorum ad totius debiti exsolutionem, nihilo minus tamen ipse debet adgnoscere onus aeris alieni. respondit manifeste proponi ex reditibus bonorum eorum iussum aes alienum exsolvere, non de proprio.
To one of the heirs he left, by preemption, those things which from the patrimony of her husband arethonis still remained to her, and he committed to her good faith to restore these same things to the great‑grandson when he shall be sixteen years old, in which he added these words: "likewise I ask that you pay, return, and give satisfaction for the remaining debt (aes alienum), which is owed from the goods of arethonis, to all the creditors from the revenues of those goods." It was asked whether, if the heir should prove that the revenue of the goods is not sufficient for the discharge of the whole debt, nevertheless he himself must acknowledge the burden of the debt. He answered that it is plainly set forth that he is ordered to discharge the debt from the revenues of those goods, not from his own (means).
Pater filio et filia heredibus institutis cum singulis certa praedia et kalendaria praelegasset, ita cavit: " a te autem, fili carissime, peto, quaecumque legavi, praestari volo, et si quid evenerit aeris alieni, si quod in tempus pro mutuo acceperam et debuero, a te solvi volo, ut quod sorori tuae reliqui, integrum ad eam pertineat". quaesitum est, an quod ex quacumque causa debuit pater, a filio sit praestandum. respondit posse filiam ex fideicommisso consequi ut levaretur, quo magis integrum, quod testator dedisset, ad eam pervenisset.
A father, having appointed his son and daughter as heirs, and having pre-legacy-granted to each certain estates and kalendaria (interest-accounts), thus provided: " and from you, dearest son, I ask this: whatever I have bequeathed, I wish to be furnished; and if anything of debt (aeris alieni) should arise, if anything which for a time I had taken by way of a mutuum and shall owe, I wish to be paid by you, so that what I left to your sister may belong to her entire." It was asked whether whatever the father owed from any cause was to be furnished by the son. He replied that the daughter could, by the fideicommissary request, obtain to be relieved, so that what the testator had given might come to her the more intact.
Patronus liberto statim tribum emi petierat: libertus diu moram ab herede patroni passus est et decedens heredem reliquit clarissimum virum: quaesitum est, an tribus aestimatio heredi eius debeatur. respondit deberi. idem quaesiit, an et commoda et principales liberalitates, quas libertus ex eadem tribu usque in diem mortis suae consecuturus fuisset, si ei ea tribus secundum voluntatem patroni sui tunc comparata esset, an vero usurae aestimationis heredi eius debeantur.
The patron had at once petitioned that a tribe be bought for the freedman: the freedman for a long time suffered delay from the patron’s heir, and, dying, left as heir a most illustrious man: it was asked whether the valuation of the tribe is owed to his heir. He responded that it is owed. The same asked whether both the advantages and the imperial liberalities, which the freedman would have been going to obtain from that same tribe up to the day of his death, if that tribe had then been procured for him according to the will of his patron, are owed to his heir, or rather whether the interest on the valuation is owed to his heir.
Sempronio ita legavit: " sempronius sumito praedia mea omnia, quae sunt usque ad praedium, quod vocatur gaas, finibus galatiae, sub cura vilici primi, ita ut haec omnia instructa sunt". quaesitum est, cum in eodem confinio praediorum unum sit praedium non galatiae, sed cappadociae finibus, sub cura tamen eiusdem vilici, an etiam id praedium cum ceteris ad sempronium pertineat. respondit et hoc deberi.
He bequeathed thus to Sempronius: "Let Sempronius take all my estates, which extend up to the estate that is called Gaas, within the boundaries of Galatia, under the care of the chief bailiff, just as all these are furnished." It was asked, since in the same border of the estates there is one estate not within the boundaries of Galatia, but within those of Cappadocia, yet under the care of the same bailiff, whether that estate also, along with the others, belongs to Sempronius. He replied that this too is due.
Libertis, quos nominaverat, ita legavit: " fundum trebatianum, qui est in regione atellata, item fundum satrianum, qui est in regione niphana, cum taberna dari volo". quaesitum est, cum inter fundos, quos supra legavit, sit quidem fundus vocabulo satrianus, in regione tamen niphana non sit, an ex causa fideicommissi libertis debeatur. respondit, si nullus esset satrianus in regione niphana et de eo sensisse testatorem certum sit, qui alibi esset, non idcirco minus deberi, quia in regione designanda lapsus esset.
To the freedmen whom he had named, he thus bequeathed: " I wish the Trebatian estate, which is in the Atellate region, likewise the Satrianus estate, which is in the Niphana region, together with the shop, to be given". It was asked, since among the estates which he bequeathed above there is indeed an estate by the name Satrianus, yet it is not in the Niphana region, whether on the ground of the fideicommissum it is owed to the freedmen. He replied that, if there were no Satrianus in the Niphana region and it is certain that the testator intended the one which was elsewhere, it is owed nonetheless, not the less because he had slipped in designating the region.
Codicillis confirmatis ita cavit: " tiburtibus municipibus meis amantissimisque scitis balineum iulianum iunctum domui meae, ita ut publice sumptu heredum meorum et diligentia decem mensibus totius anni praebeatur gratis". quaesitum est, an et sumptus refectionibus necessarios heredes praestare debeant. respondit secundum ea quae proponerentur videri testatorem super calefactionis et praebitionis onus de his quoque sensisse, qui ad cottidianam tutelam pertineant, quibus balineae aut instruuntur aut denique inter solitas cessationum vices parari purgarique, ut habiles ad lavandum fierent, sint solitae.
By his codicils, being confirmed, he thus provided: " Tiburtine municipes, my most loving, you know the Julian bath joined to my house, such that it be provided publicly, at the expense and diligence of my heirs, for ten months of the whole year, gratis." It was asked whether the heirs ought also to furnish the expenses necessary for refections. He responded that, according to what was set forth, it seems that the testator, concerning the burden of calefaction and provision, also had in mind those things which pertain to the daily tutelage, by which baths are either equipped or, finally, in the usual intervals of cessations, are accustomed to be prepared and cleansed, so that they might be made fit for washing.
Cum quis decedens seiae matri fundum, qui proprius matris erat, legaverat, ab ea petierat, ut eundem cum moreretur flaviae albinae coniugi suae restitueret. post mortem testatoris mater apud magistratum professa est nihil se adversus voluntatem filii sui facturam paratamque se fundum flaviae albinae tradere, si sibi annua bina praestarentur redituum nomine: sed neque possessionem tradidit neque annua bina accepit. quaesitum est, an iure fundum alii vendere possit.
When a man, at his decease, had bequeathed to his mother Seia an estate which was his mother’s own property, he had asked of her that, when she should die, she restore the same to his wife, Flavia Albina. After the testator’s death, the mother declared before the magistrate that she would do nothing against her son’s will and that she stood ready to deliver the estate to Flavia Albina, if two annual payments were furnished to her by way of revenues; but she neither delivered possession nor received the two annual payments. The question was asked whether she could lawfully sell the estate to another.
he answered that, if inquiry were being made about the right of legacy and the fideicommissum, according to the things set forth, neither had that been valid which was being bequeathed to the mother, since it was her own, nor had the burden of the fideicommissum taken effect, provided only that the mother had taken nothing besides.
Qui testamento heredem scripserat, maevio ducenta legavit et fidei eius commisit, ut centum daret glauce, tyche elpidi autem quinquaginta: postea maevius volente testatore litteras emisit ad eas secundum voluntatem testatoris restituturum: postea testator fecit codicillos, quibus et hoc praecepit, ut praeter hos codicillos si quid aliud prolatum esset, non valeat. quaesitum est, an maevius, qui ducenta accepit, quia mutavit voluntatem de ea epistula testator, a mulieribus conveniri ex causa fideicommissi possit. respondit secundum ea quae proponuntur frustra maevium conveniri, sive ducenta sive praedium pro his accepit.
He who had named an heir in his will bequeathed two hundred to maevius and entrusted it to his good faith, that he give one hundred to glauce, and fifty to tyche and to elpis. Later maevius, with the testator willing, sent letters to them that he would restore according to the will of the testator. Later the testator made codicils, in which he also prescribed that, apart from these codicils, if anything else were brought forward, it should not be valid. The question was asked whether maevius, who received the two hundred, because the testator changed his intention concerning that letter, could be sued by the women on the ground of the fideicommissum. He answered that, according to the matters proposed, maevius is sued in vain, whether he received the two hundred or a piece of land instead of them.
Seiam et maevium libertos suos aequis partibus heredes scripsit: maevio substituit sempronium pupillum suum: deinde codicillos per fideicommissum confirmavit, quibus ita cavit: " lucius titius seiae heredi suae, quam pro parte dimidia institui, salutem. maevium libertum meum, quem in testamento pro parte dimidia heredem institui, eam partem hereditatis veto accipere, cuius in locum partemve eius publium sempronium dominum meum heredem esse volo", et maevio, ad quem hereditatis portionem noluit pervenire, cum hoc elogio fideicommissum reliquit: " maevio liberto meo de me nihil merito dari volo lagynos vini vetusti centum quinquaginta". quaesitum est, cum voluntas testatoris haec fuerit, , ut omnimodo perveniat portio hereditatis ad sempronium pupillum, an fideicommissum ex verbis supra scriptis valere intellegatur et a quo sempronius petere possit, cum ad certam personam codicillos scripserit. respondit posse fideicommissum a maevio peti.
he wrote seia and maevio, his freedpersons, as heirs in equal parts: for maevio he appointed sempronius, his ward, as substitute: then he confirmed codicils by a fideicommissum, in which he provided thus: "lucius titius to seia, his heir, whom I have instituted for a half share, greetings. I forbid maevio, my freedman, whom in the testament I have instituted heir for a half share, to receive that part of the inheritance, and in its place or for a part of it I wish publius sempronius, my master, to be heir", and to maevio, to whom he did not wish the portion of the inheritance to come, he left a fideicommissum with this note: "to maevio my freedman, who has deserved nothing from me, I wish to be given one hundred and fifty flagons of old wine." the question was raised, since the will of the testator was this—that the portion of the inheritance should in any event come to sempronius the ward—whether the fideicommissum is understood to be valid from the words written above and from whom sempronius can claim it, since he wrote the codicils to a certain person. he replied that the fideicommissum can be demanded from maevio.
Pater emancipato filio bona sua universa exceptis duobus servis non mortis causa donavit et stipulatus est a filio in haec verba: " quae tibi mancipia quaeque praedia donationis causa tradidi cessi, per te non fieri dolove malo neque per eum ad quem ea res pertinebit, quo minus ea mancipia quaeque ex his adgnata erunt eaque praedia cum instrumento, cum ego volam vel cum morieris, quaequae eorum exstabunt neque dolo malo aut fraude factove tuo eiusque ad quem ea res pertinebit in rerum natura aut in potestate esse desissent, si vivam mihi aut cui ego volam reddantur restituantur, stipulatus est lucius titius pater, spopondit lucius titius filius". idem pater decedens epistulam fideicommissariam ad filium suum scripsit in haec verba: " lucio titio filio suo salutem. certus de tua pietate fidei tuae committo, uti des praestes illi et illi certam pecuniam: et lucrionem servum meum liberum esse volo". quaesitum est, cum filius patris nec bonorum possessionem acceperit nec ei heres exstiterit, an ex epistula fideicommissa et libertatem praestare debeat. respondit, etsi neque hereditatem adisset neque bonorum possessionem petisset et nihil ex hereditate possideret, tamen nihilo minus et ex stipulatu ab heredibus patris et fideicommisso ab his quorum interest quasi debitorem conveniri posse, maxime post constitutionem divi pii, quae hoc induxit.
A father, to his emancipated son, gave as a gift not causa mortis all his goods in their entirety, except for two slaves, and he stipulated from the son in these words: " the slaves and the estates which I have delivered and ceded to you for the sake of a donation are not to be made, by you or by the person to whom the matter shall pertain, by malicious deceit, such that those slaves, and whatever shall have been born from them, and those estates with their appurtenances, when I shall wish or when you will die, whatever of them shall be extant, and which shall not, by your malicious deceit or fraud or act and that of the person to whom the matter shall pertain, have ceased to be either in the nature of things or in one’s power, if I live, be returned and restored to me or to whomever I shall wish; Lucius Titius the father stipulated; Lucius Titius the son promised." The same father, at his decease, wrote a fideicommissary letter to his son in these words: " Lucius Titius to his son, greetings. Certain of your dutifulness, I commit to your good faith that you give and provide to So-and-so and So-and-so a certain sum of money; and I will that my slave Lucrio be free." It was asked, since the son neither accepted possession of the goods nor became his heir, whether, from the fideicommissary letter, he ought also to provide the freedom. He responded: even if he had neither entered upon the inheritance nor sought possession of the goods and possessed nothing from the inheritance, nevertheless, none the less, he can be proceeded against as if a debtor both on the stipulation by the father’s heirs and on the fideicommissum by those whose interest it is—especially after the constitution of the deified Pius, which introduced this.
Nuptura duobus filiis suis, quos ex priore marito habebat, mandavit, ut viginti, quae doti dabat, stipularentur in omnem casum, quo solvi posset matrimonium, ut etiam alterutri ex his tota dos solvatur: constante matrimonio uno ex filiis mortuo uxor per epistulam petit a superstite filio, uti quandoque partem dimidiam dumtaxat dotis exigeret et ea contentus erit, alteram autem partem apud maritum eius remanere concedat. quaesitum est postea in matrimonio muliere defuncta, an maritus, si de tota dote conveniatur a filio, doli mali exceptione se tueri possit et an ultro ex causa fideicommissi actio ei competit, ut de parte obligationis accepto ei feratur. respondit et exceptionem utilem fore et ultro ex fideicommisso peti posse.
A woman about to marry instructed her two sons, whom she had by a prior husband, to stipulate for the twenty which she was giving as dowry, in every contingency in which the marriage could be dissolved, to the effect that the whole dos be paid to either one of them. With the marriage still subsisting, one of the sons died; the wife, by letter, asked the surviving son that he should at some point demand only one-half of the dowry and be content with that, and allow the other half to remain with her husband. It was later asked, the woman having died with the marriage still standing, whether the husband, if he is sued for the whole dos by the son, can protect himself by the exceptio doli mali, and whether conversely an action lies to him on the ground of a fideicommissum, so that, as to part of the obligation, an entry of receipt (acceptum ferri) be made in his favor. He replied that both a useful exceptio would be available and that conversely it could be sought on the fideicommissum.
he likewise asks whether, concerning the remaining half part, a useful action of mandate would be available to the woman’s heirs against her son. he answered that, according to the matters proposed, especially after the letters written to the son, it would not be useful. claudius: since in these she expressed that he should be content with the half part of the dowry.
Codicillis ita scripsit: " boulomai panta ta hupotetagmena kuria einai. macimw tw kuriw mou dynaria muria pentakisxilia, hatina elabon parakatavykyn para tou veiou autou iouliou macimou, hina autw andrwventi apodwsw, ha ginontai sun tokw tris muria, apodovynai autw boulomai: houtw gar tw veiw autou wmosa". quaesitum est, an ad depositam pecuniam petendam sufficiant verba codicillorum, cum hanc solam nec aliam ullam probationem habeat. respondi: ex his quae proponerentur, scilicet cum iusiurandum dedisse super hoc testator adfirmavit, credenda est scriptura.
He wrote thus in codicils: "I wish all the things submitted to be valid. To Maximus, my lord, 15,000 denarii, which I received as a deposit from his uncle Julius Maximus, in order that I pay them back to him when he comes of age; which, together with interest, amount to 30,000, I wish to pay back to him: for thus I swore to his uncle." It was asked whether the words of the codicils are sufficient for seeking the deposited money, since he has this alone and no other proof. I responded: from the things that are set forth—namely, since the testator affirmed that he had given an oath concerning this—the writing is to be believed.
Titia honestissima femina cum negotiis suis opera callimachi semper uteretur, qui ex testamento capere non poterat, testamento facto manu sua ita cavit: " titia dievemyn kai boulomai dovynai kallimaxw misvou xarin dynaria muria": quaero, an haec pecunia ex causa mercedis ab heredibus titiae exigi possit. respondi non idcirco quod scriptum est exigi posse in fraudem legis relictum.
Titia, a most honorable woman, since in her affairs she always used the services of Callimachus, who could not take under a testament, with a testament made in her own hand thus provided: "i declared and i wish to give to callimachus, for the sake of hire, ten thousand denarii"; I ask whether this money, on the ground of remuneration, can be demanded from Titia’s heirs. I answered that not for that reason—because it is written—can it be demanded; it was left in fraud of the law.
Ex his verbis testamenti: " omnibus, quos quasve manumisi manumiserove sive his tabulis sive quibuscumque aliis, filios filiasve suos omnes concedi volo" quaesitum est, an his, quos vivus manumisisset, debeantur filii. respondit his quoque, quos quasve ante testamentum factum manumisisset, filios filiasve ex causa fideicommissi praestari oportere.
From these words of the testament: "to all, whomsoever, male or female, I have manumitted or shall manumit, whether by these tablets or by whatever others, I wish all their sons and daughters to be granted," it was asked whether, for those whom he had manumitted while alive, children are owed. he answered that for these also, whomsoever, male or female, he had manumitted before the testament was made, sons and daughters ought to be furnished by reason of a fideicommissum.
Pater filium heredem praedia alienare seu pignori ponere prohibuerat, sed conservari liberis ex iustis nuptiis et ceteris cognatis fideicommiserat: filius praedia, quae pater obligata reliquerat, dimisso hereditario creditore nummis novi creditoris, a priore in sequentem creditorem pignoris hypothecaeve nomine transtulit: quaesitum est, an pignus recte contractum esset. respondit secundum ea quae proponerentur recte contractum. idem quaesiit, cum filius praedia hereditaria, ut dimitteret hereditarios creditores, distraxisset, an emptores, qui fideicommissum ignoraverunt, bene emerint.
A father had prohibited his son, the heir, from alienating the estates or placing them in pledge, but had fideicommitted that they be preserved for children from lawful marriages and for the other cognates: the son, the estates which the father had left encumbered, having dismissed the hereditary creditor with the money of a new creditor, transferred from the former to the subsequent creditor, under the name of pledge or hypothec, the security upon them: it was asked whether the pledge had been rightly contracted. He answered that, according to the matters proposed, it had been rightly contracted. He likewise asked, when the son had sold off the hereditary estates in order to discharge the hereditary creditors, whether the purchasers, who were ignorant of the fideicommissum, bought well.
Duobus libertis sticho et erote heredibus institutis ita cavit: " fundum cornelianum de nomine meorum exire veto": unus ex heredibus stichus ancillam arescusam testamento liberam esse iussit eique partem suam fundi legavit: quaero, an eros et ceteri colliberti stichi ex causa fideicommissi eius fundi partem ab herede stichi petere possint. respondit non contineri.
With two freedmen, Stichus and Eros, instituted as heirs, he thus provided: “I forbid the Cornelian farm to pass out of the name of my people.” One of the heirs, Stichus, ordered by his testament that the maidservant Arescusa be free, and bequeathed to her his share of the farm. I ask whether Eros and the other fellow-freedmen of Stichus, by reason of the fideicommissum, can demand from the heir of Stichus a share of that farm. He replied that it is not covered.
Filiam suam heredem scripserat et ita caverat: " veto autem aedificium de nomine meo exire, sed ad vernas meos, quos hoc testamento nominavi, pertinere volo": quaesitum est, defuncta herede et legatariis vernis an ad unum libertum qui remansit totum fideicommissum pertineret. respondit ad eum, qui ex vernis superesset, secundum ea quae proponerentur virilem partem pertinere.
He had appointed his daughter as heir and had thus stipulated: "I forbid, moreover, the building to pass out of my name, but I wish it to pertain to my homeborn slaves (vernae), whom I have named in this testament"; the question was, with the heir deceased and the legatees, the vernae, also dead, whether the whole fideicommissum would pertain to the one freedman who remained. He responded that to him who survived from among the vernae there pertained, according to the matters proposed, the virile share.
Fundum a filio, quoad vixerit, vetuit venundari donari pignerari et haec verba adiecit: " quod si adversus voluntatem meam facere voluerit, fundum titianum ad fiscum pertinere: ita enim fiet, ut fundus titianus de nomine vestro numquam exeat". quaesitum est, cum vivus filius eum fundum secundum voluntatem patris retinuerit, an defuncto eo non ad heredes scriptos a filio, sed ad eos, qui de familia sunt, pertineat. respondit hoc ex voluntate defuncti colligi posse filium quoad viveret alienare vel pignerare non posse, testamenti autem factionem et in eo fundo in extraneos etiam heredes habiturum.
he forbade the estate to be sold, given, or pledged by his son for as long as he shall have lived, and he added these words: "but if he should wish to act against my will, let the titian estate pertain to the fisc: for thus it will come about that the titian estate will never go out from your name." it was asked, since while alive the son retained that estate according to the father’s will, whether, he having died, it pertains not to the heirs written (appointed) by the son, but to those who are of the family. he replied that from the will (voluntas) of the deceased it can be gathered that the son, so long as he lived, could not alienate or pledge, but that he would have testamentary capacity and, with respect to that estate, would have even outsiders as heirs.
Iulius agrippa primipilaris testamento suo cavit, ne ullo modo reliquias eius et praedium suburbanum aut domum maiorem heres eius pigneraret aut ullo modo alienaret: filia eius heres scripta heredem reliquit filiam suam neptem primipilaris, quae easdem res diu possedit et decedens extraneos instituit heredes. quaesitum est, an ea praedia extraneus heres haberet an vero ad iuliam domnam, quae habuit patruum maiorem iulium agrippam, pertinerent. respondi, cum hoc nudum praeceptum est, nihil proponi contra voluntatem defuncti factum, quo minus ad heredes pertinerent.
Julius Agrippa, a primipilaris, provided in his will that in no way should his heir pledge or in any way alienate his relics and the suburban estate or the principal house; his daughter, written as heir, left as her heir her own daughter, the granddaughter of the primipilaris, who possessed the same things for a long time and, dying, instituted strangers as heirs. It was asked whether the stranger heir would have those estates, or whether they would rather pertain to Julia Domna, who had Julius Agrippa as a great-uncle. I replied that, since this is a bare precept, nothing is put forward as having been done against the will of the deceased, whereby they should any the less pertain to the heirs.
Quindecim libertis, quos nominaverat, praediolum cum taberna legaverat et adiecerat haec verba: " sibique eos habere possidere volo ea lege et condicione, ne quis eorum partem suam vendere donareve aliudve quid facere alii velit: quod si adversus ea quid factum erit, tunc eas portiones praediumve cum taberna ad rem publicam tusculanorum pertinere volo". quidam ex his libertis vendiderunt partes suas duobus collibertis suis ex eodem corpore, emptores autem defuncti gaium seium extraneum heredem reliquerunt: quaesitum est, partes quae venierunt utrum ad gaium seium an ad superstites collibertos suos, qui partes suas non vendiderunt, pertinerent. respondit secundum ea quae proponerentur ad gaium seium pertinere. idem quaesiit, an partes venditae ad rem publicam tusculanorum pertinerent.
He had bequeathed to fifteen freedmen, whom he had named, a little estate with a shop, and had added these words: “and I wish that they have and possess them for themselves under this law and condition, that none of them should wish to sell, or to donate, or to do anything else with his share to another; but if anything shall be done contrary to these, then I wish those portions, or the estate with the shop, to pertain to the commonwealth of the Tusculans.” Some of these freedmen sold their shares to two fellow-freedmen of theirs from the same body; but the purchasers, having died, left Gaius Seius, a stranger, as heir. The question was asked whether the parts that were sold pertained to Gaius Seius or to their surviving fellow-freedmen who did not sell their shares. He answered that, according to what was set forth, they pertained to Gaius Seius. He likewise asked whether the parts sold pertained to the commonwealth of the Tusculans.
I answered that it did not pertain. Claudius: because it is not the person of the non-possessor, who is now an outsider, that must be regarded, but that of the purchasers, who, according to the will of the deceased woman, were among those to whom the testatrix had permitted it to be sold; nor did the condition arise of the fideicommissum given to the Tusculans.
Fidei commisit eius, cui duo milia legavit, in haec verba: " a te, petroni, peto, uti ea duo milia solidorum reddas collegio cuiusdam templi". quaesitum est, cum id collegium postea dissolutum sit, utrum legatum ad petronium pertineat an vero apud heredem remanere debeat. respondit petronium iure petere, utique si per eum non stetit parere defuncti voluntati.
He committed to the good faith of the one to whom he had bequeathed two thousand, in these words: " a te, Petronius, I ask, that you render those two thousand solidi to the collegium of a certain temple." The question was raised, since that collegium was afterward dissolved, whether the legacy pertains to Petronius or rather ought to remain with the heir. He answered that Petronius may lawfully demand it, particularly if it was not through him that compliance with the will of the deceased failed.
Mater filios heredes scripserat et adiecit: " praedia, quae ad eos ex bonis meis perventura sunt, nulla ex causa abalienent, sed conservent successioni suae deque ea re invicem sibi caverent": ex his verbis quaesitum est, an praedia per fideicommissum relicta videantur. respondit nihil de fideicommisso proponi.
A mother had appointed her sons as heirs and added: "let them on no account alienate the landed estates which are due to come to them from my goods, but preserve them for their own succession, and in regard to that matter let them provide mutual security to each other": from these words it was asked whether the estates seem to have been left by way of a fideicommissum. He answered that nothing concerning a fideicommissum is put forward.
Ex parte dimidia heredi instituto per praeceptionem fundum legavit et ab eo ita petit: " peto, uti velis coheredem tibi recipere in fundo iuliano meo, quem hoc amplius te praecipere iussi, clodium verum nepotem meum, cognatum tuum": quaesitum est, an pars fundi ex causa fideicommissi nepoti debeatur. respondit deberi.
From a half share he bequeathed an estate to the instituted heir by praeception, and from him he thus requested: "I ask that you be willing to admit as coheir with yourself, in my Julian estate, which moreover I ordered you to take by praeception, Clodius, truly my grandson, your kinsman": it was asked whether a part of the estate is owed to the grandson on the ground of the fideicommissum. He answered that it is owed.
" pamphilo liberto hoc amplius, quam codicillis reliqui, dari volo centum. scio omnia, quae tibi, pamphile, relinquo, ad filios meos perventura, cum affectionem tuam circa eos bene perspectam habeo". quaero, an verbis supra scriptis pamphili fideicommisit, ut post mortem filiis defuncti centum restituat. respondit secundum ea quae proponerentur non videri quidem, quantum ad verba testatoris pertinet, fidei commissum pamphili, ut centum restitueret: sed cum sententiam defuncti a liberto decipi satis inhumanum est, centum ei relictos filiis testatoris debere restitui, quia in simili specie et imperator noster divus marcus hoc constituit.
" to pamphilus the freedman I want one hundred to be given in addition to this, over and above what I have left in the codicils. I know that all the things which I leave to you, pamphilus, will come to my sons, since I have your affection toward them well observed." I ask whether by the above-written words he imposed upon pamphilus a fideicommissum, that after death he restore one hundred to the sons of the deceased. he answered that, according to the matters proposed, it does not seem, so far as the words of the testator are concerned, that a fideicommissum was laid upon pamphilus to restore one hundred; but since it is quite inhuman that the intention of the deceased be cheated by the freedman, the one hundred left to him ought to be restored to the testator’s sons, because in a similar case our emperor the deified marcus also established this.
Propositum est non habentem liberos nec cognatos in discrimine vitae constitutum per infirmitatem arcessitis amicis gaio seio contubernali dixisse, quod vellet ei relinquere praedia quae nominasset, eaque dicta in testationem gaium seium redegisse etiam ipso testatore interrogato, an ea dixisset, et responso eius tali malista inserto: quaesitum est, an praedia, quae destinata essent, ex causa fideicommissi ad gaium seium pertinerent. respondit super hoc nec dubitandum esse, quin fideicommissum valet.
It has been put forward that a man, having neither children nor cognates and placed in a crisis of life through infirmity, after his friends had been summoned, said to Gaius Seius, his contubernal companion, that he wished to leave to him the estates which he had named; and that Gaius Seius reduced those statements into a testation, the testator himself also having been asked whether he had said those things, and his response to that effect, in particular, having been inserted. It was asked whether the estates that had been designated would belong to Gaius Seius by reason of a fideicommissum. He answered on this that there is no room for doubt that the fideicommissum is valid.
Duas filias aequis ex partibus heredes fecerat: alteri fundum praelegaverat et ab ea petierat, ut sorori suae viginti daret: ab eadem filia petit, ut partem dimidiam fundi eidem sorori restitueret: quaesitum est, an viginti praestari non deberent. respondi non esse praestanda.
He had made two daughters heirs in equal shares: to one he had bequeathed by pre-legacy an estate and had requested from her that she give twenty to her sister: from that same daughter he asks that she restore a half part of the estate to the same sister: it was asked whether the twenty ought not to be rendered. I replied that they are not to be rendered.
Post emancipationem patris suscepta a patruo ut legitimo herede petierat, ut partem hereditatis avunculo suo daret et agros duos: ad utrumque autem ut proximum cognatum successio eius pertinuit per bonorum possessionem. quaesitum est, cum in parte hereditatis fideicommissum non constiterit, quam suo iure per bonorum possessionem avunculus habiturus est, an nihilo minus in partem agrorum consistat, ut titius partes agrorum duas, id est unam, quam suo iure per bonorum possessionem habeat, alteram vero partem ex causa fideicommissi petere debeat. respondit posse petere.
After emancipation by her father, she had requested of her paternal uncle, as the legitimate heir, that he give to her maternal uncle a share of the inheritance and two fields: moreover, as the nearest cognate, succession to her pertained to each through bonorum possessio. It was asked, since as to the share of the inheritance the fideicommissum has not been established, which the maternal uncle will have by his own right through bonorum possessio, whether nonetheless it holds as to a share of the fields, such that Titius should claim two shares of the fields, that is, one which he has by his own right through bonorum possessio, but the other share on the ground of the fideicommissum. He answered that he can claim.
Seiam ex dodrante, maevium ex quadrante instituit heredes, fidei seiae commisit in haec verba: " a te peto tuaeque fidei committo, quidquid ex hereditate mea ad te pervenerit, restituas filio tuo retentis tibi hortis meis". quaesitum est, cum generali capite fideicommisisset " quisquis heres esset" de omnibus, ut praestarent quod cuique legasset praestari fierive iussisset, an, cum dodrantem hereditatis restituerit, hortos in assem vindicare seia debet. respondit etiam coheredis fidei commissum videri, ut quadrantem, quem in his hortis haberet, seiae redderet.
He instituted Seia heir for three-quarters, Maevius for one-quarter, he committed to Seia’s good faith in these words: " a te peto tuaeque fidei committo, quidquid ex hereditate mea ad te pervenerit, restituas filio tuo retentis tibi hortis meis". It was asked, since by a general clause he had made a fideicommiss, "whoever should be heir," concerning everything, that they should render what to each he had bequeathed, having ordered it to be rendered or done, whether, when she has restored the three-quarters of the inheritance, Seia ought to vindicate the gardens in full. He responded that a fideicommiss also seems to be laid upon the co-heir, that he should return to Seia the quarter which he would have in these gardens.
Uxorem et filium communem heredes instituit et uxoris fidei commisit in haec verba: " peto a te, domina uxor, ne ex fundo titiano partem tibi vindices, cum scias me universam emptionem eius fundi fecisse, sed beneficio affectionis et pietatis, quam tibi debui, eandem emptionem, cum nummis meis comparassem, tecum communicasse": quaesitum est, an eum fundum in solidum filii esse voluerit. respondit eum, de quo quaereretur, perinde rationem in fundo haberi voluisse ac si universus hereditarius esset, ut pro dimidia parte et uxor et filius agrum ut hereditarium habeant.
He instituted his wife and their common son as heirs and entrusted to the wife’s fidelity in these words: "I ask of you, lady wife, not to claim for yourself a portion from the Titian farm, since you know that I made the entire purchase of that farm, but by the benefit of affection and piety, which I owed to you, when I had acquired it with my own moneys, I shared that same purchase with you": it was asked whether he wished that farm to belong in its entirety to the son. He answered that, as to the farm in question, he wished the reckoning to be had just as if it were wholly of the inheritance, so that, for a half share, both the wife and the son should hold the field as hereditary.
In testamento ita scriptum fuit: " domum meam cum horto applicito libertis meis concedi volo" et alio capite: " fortunio liberto meo ex domu mea, quam libertis dedi, diaetam, in qua habitabam, item cellarium iunctum eidem diaetae ab herede meo concedi volo". quaesitum est, an heres testatoris oneratus videatur in praestando legato fortunio, quamvis domus universa libertis sit praelegata. respondit non esse oneratum.
In the testament it was written thus: " my house with the garden appurtenant I wish to be granted to my freedmen" and in another head: " to Fortunio my freedman, from my house, which I gave to the freedmen, the apartment in which I was living, likewise the cellar joined to the same apartment, I wish to be granted by my heir". It was asked whether the testator’s heir seems burdened in furnishing the legacy to Fortunio, although the whole house has been pre-legate to the freedmen. He responded that he is not burdened.
Codicillis confirmatis ita cavit: " omnibus autem libertis meis et quos vivus et quos his codicillis manumissi vel postea manumisero, contubernales suas, item filios filias lego, nisi si quos quasve ad uxorem meam testamento pertinere volui vel ei nominatim legavi legavero". idem postea petiit ab heredibus suis, ut regionem umbriae tusciae piceno coheredes uxori suae restituerent cum omnibus, quae ibi erunt, et mancipiis rusticis vel urbanis et actoribus exceptis manumissis. quaesitum est, cum eros et stichus servi in diem vitae testatoris in umbria in piceno actum administraverint, sint autem damae, quem testator vivus manumiserat, filii naturales, utrum eidem damae ex verbis codicilli ab heredibus praestandi sint, an vero ad seiam uxorem ex verbis epistulae pertineant. respondit ex codicillis ad patrem eos naturalem pietatis intuitu pertinere.
With the codicils confirmed he provided thus: “Moreover, to all my freedmen, both those whom, while alive, and those whom by these codicils I have manumitted or shall hereafter manumit, I bequeath their contubernales, likewise sons and daughters, unless there are any whom I wished by my will to pertain to my wife or have bequeathed or shall have bequeathed to her by name.” The same man later requested from his heirs that, as coheirs, they restore to his wife the region of Umbria, Tuscia, Picenum with everything that will be there, and with the rural or urban slaves and stewards, the manumitted excepted. The question was asked, since Eros and Stichus, slaves, down to the day of the testator’s life had administered the business in Umbria, in Picenum, and yet they are the natural sons of Dama, whom the testator had manumitted while alive, whether they must be furnished to that same Dama from the words of the codicil by the heirs, or rather pertain to Seia the wife from the words of the letter. He answered that from the codicils they pertain to their natural father, by a regard for pietas.
Felicissimo et felicissimae, quibus libertatem dederat, fundum gargilianum legavit cum casa, et alio capite titio filio, quem ex parte quarta heredem scripserat, praelegaverat in haec verba: " titi fili, hoc amplius de medio sumito legata mea, quae mihi tam pater tuus praesens quam coelius iustus frater patris reliquerunt". quaesitum est, cum fundus gargilianus testatrici a marito eius, id est a patre titii filii legatus sit, cui fundus ex causa fideicommissi debeatur, utrum titio filio tantum an felicissimo et felicissimae an tribus. respondit non esse verisimile eam, quae nihil aliud felicissimo et felicissimae nisi haec quae specialiter legavit, ad filium, cui et hereditatis suae partem reliquit, legatum generali sermone transferre voluisse.
To Felicissimus and Felicissima, to whom she had given freedom, she bequeathed the Gargilian estate with the cottage; and in another clause to Titius the son, whom she had appointed heir as to a fourth part, she had made a pre-legacy in these words: “Son of Titius, take this besides out of the common fund—my legacies which both your father, present, and Coelius Justus, your father’s brother, left to me.” It was asked, since the Gargilian estate had been bequeathed to the testatrix by her husband, that is, by the father of Titius the son, to whom the estate, by reason of the fideicommissum, should be owed—whether to Titius the son only, or to Felicissimus and Felicissima, or to all three. He replied that it was not likely that she, who left nothing else to Felicissimus and Felicissima except those things which she specially bequeathed, would have wished by a general expression to transfer to her son, to whom also she left a part of her inheritance, the legacy.
Testamento pueros ita legaverat: " publio maevio dominulo meo ab heredibus meis dari volo pueros quinque ex meis dumtaxat intra annos septem": post annos complures, quam fecit testamentum, moritur. quaesitum est, cuius aetatis maevio mancipia debeantur, utrumne quae testamenti facti tempore intra septem annos fuerunt an quae mortis tempore intra eam aetatem inveniantur. respondit eam videri aetatem designatam, quae esset, cum a testatore relinquerentur.
By testament he had thus bequeathed the boys: " Publius Maevius, my little master, I wish five boys of mine to be given by my heirs, only such as are under seven years old": after many years from when he made the testament, he dies. It was asked of what age the slaves are owed to Maevius, whether those who at the time the testament was made were within seven years, or those who at the time of death are found within that age. He responded that that age seems to be designated which existed when they were left by the testator.
Concubinae inter cetera his verbis legaverat: " fundum in appia cum vilico suo et contubernali eius et filiis dari volo": quaesitum est, an nepotes quoque vilici et contubernalis eius testator ad concubinam pertinere voluit. respondit nihil proponi, cur non deberentur.
He had bequeathed to the concubine, among other things, in these words: "I wish the estate on the Appian Way to be given with its bailiff and his contubernalis and their sons": it was asked whether the testator also intended that the grandsons of the bailiff and his contubernalis should pertain to the concubine. He replied that nothing was set forth why they should not be owed.
Legaverat per fideicommissum maeviis ita: " et quidquid in patria gadibus possideo": quaesitum est, an, si quam suburbanam adiacentem possessionem haberet, haec quoque ex causa fideicommissi maeviis debeatur. respondit posse ad hanc quoque verborum significationem extendi. item quaesitum est, an, si calendarii, quod in patria sua vel intra fines eius defunctus exercuit, instrumenta in domo, quam in patria sua habebat, reliquit, an id quoque kalendarium propter verba supra scripta maeviis ex causa fideicommissi deberetur.
He had bequeathed by fideicommissum to the Maevii thus: " and whatever I possess in my native place at Gades": it was asked whether, if he had any suburban adjoining estate, this too ought to be owed to the Maevii by reason of the fideicommissum. He responded that the signification of the words can be extended to this as well. Likewise it was asked whether, if of the calendarium which the deceased conducted in his native place or within its borders he left the instruments in the house which he had in his native place, that calendarium also, on account of the words written above, would be owed to the Maevii by reason of the fideicommissum.
Testamento, quo filium et uxorem heredes instituerat, filiae per fideicommissum centum, cum in familia nuberet, legavit et adiecit ita: " fidei tuae, filia, committo, ut, cum in familia nubas et quotienscumque nubes, patiaris ex dote tua, quam dabis, partem dimidiam stipulari fratrem tuum et seiam matrem tuam pro partibus dimidiis dari sibi, si in matrimonio eius cui nubes sive divortio facto, priusquam dos tua reddatur eove nomine satisfactum erit, morieris nullo filio filiave ex eo relicto". pater virginem filiam nuptum collocavit eiusque nomine dotem dedit et post divortium eandem recepit et alii in matrimonium cum dote dedit et stipulatus est eam dotem sibi aut filiae suae reddi: manente filia in matrimonio secundo mortuus est eodem testamento relicto eique heredes exstiterunt filius et uxor: postea marito defuncto puella dote recepta nupsit alii praesentibus et consentientibus fratre et matre, quae etiam dotem eius auxit, et neuter eorum stipulati sunt dotem: mox matri filius et filia heredes exstiterunt: deinde in matrimonio filia decessit marito herede relicto. quaesitum est, cum puella non ex causa legati pecuniam in dotem ab heredibus patris acceperat, sed mortuo secundo marito mater familias facta dotem reciperaverat, an heres eius ex causa fideicommissi fratri defunctae teneatur in eam pecuniam, quam percipere posset, si dotem stipulatus esset. respondit secundum ea quae proponerentur non teneri.
By a testament, in which he had instituted his son and his wife as heirs, he bequeathed to his daughter by fideicommissum one hundred, when she should marry in-family, and added thus: "I commit to your good faith, daughter, that, when you marry in-family and whenever you marry, you allow your brother to stipulate from your dowry, which you will give, a half share, and Seia your mother to have half given to herself, if, while in the marriage of him to whom you marry, or a divorce having been made, before your dowry is returned or satisfaction will have been made on that account, you die with no son or daughter left from him." The father settled his virgin daughter in marriage and, in her name, gave a dowry, and after a divorce received the same back and gave her in marriage to another with a dowry, and stipulated that that dowry be returned to himself or to his daughter: while the daughter remained in the second marriage he died, leaving the same testament, and the son and the wife became his heirs: thereafter, the husband having died, the girl, the dowry having been received back, married another, with the brother and mother present and consenting, and the latter even increased her dowry, and neither of them stipulated the dowry: soon the son and the daughter became heirs to the mother: then, while married, the daughter died, leaving her husband as heir. It was asked, since the girl had not received from the father’s heirs the money for the dowry on account of the legacy, but, her second husband having died, having become materfamilias, had recovered the dowry, whether her heir is held under the fideicommissum to the deceased’s brother for that money which he could have taken, if he had stipulated the dowry. He responded that, according to the matters proposed, he is not held.
Eius heres vel legatarius rogatus est, ut quendam adoptet, his verbis adiectis: " si alias fecerit, exheres esto" vel " perdat legatum". quaesitum est, si non adoptaverit, an ei qui adoptatus non est actio quaedam ex fideicommisso competit. respondit fideicommissum, quo quis rogatur ut adoptet, ratum non esse.
His heir or legatee was requested to adopt a certain person, with these words added: "if he shall do otherwise, let him be disinherited," or "let him lose the legacy." It was asked, if he should not adopt, whether an action of some sort on the fideicommissum lies to him who was not adopted. He replied that a fideicommissum by which someone is requested to adopt is not valid.
" agri plagam, quae est in regione illa, maeviis publio et gaio transcribi volo, pretio facto viri boni arbitratu et hereditati illato, duplae evictione expromissa reliquis heredibus, ita ut sub poena centum promittant eam agri plagam partemve eius ad seium posterosve eius non perventuram quaqua ratione " . quaesitum est, an legatum valeat, cum publius emere velit, gaius nolit. respondit eum, qui fideicommissum praestari sibi velit, posse partem dimidiam eius agri qui legatus est petere, quamvis alter persequi nolit. item quaesitum est, cautio, quae interponi debeat, secundum voluntatem, pro quota parte cuique heredum praestanda sit.
" I wish the tract of land, which is in that region, to be transferred to the Maevii, Publius and Gaius, the price fixed at the discretion of an upright man and paid into the estate, with a promise of double for eviction given to the remaining heirs, on condition that, under a penalty of one hundred, they promise that that tract of land or any part of it shall not come to Seius or his descendants by any means whatsoever. " It was asked whether the legacy is valid when Publius wishes to buy, Gaius does not. He replied that the one who wishes to have the fideicommissum performed for himself can demand the half part of that land which has been bequeathed, although the other is unwilling to pursue it. Likewise it was asked what security, which ought to be interposed according to the will, should be furnished by each of the heirs proportionally to his share.
Sorori legavit homines quos nominavit testamento eiusque fidei commisit, ut eadem mancipia filiis suis cum obiret restitueret. quaesitum est, adgnata ex his an defuncti filii heredibus restituenda sint post mortem legatariae an remaneant apud heredes eius. respondit ea, quae postea adgnata essent, verbis fideicommissi non contineri.
He bequeathed to his sister the persons whom he named in his will and committed them to her good faith, that she should restore the same slaves to his sons when she passed away. It was asked whether those afterward born from these, are to be restored to the heirs of the deceased son after the death of the legatee, or whether they remain with her heirs. He responded that those which had been born later are not contained within the words of the fideicommissum.
Pater naturalis filiae suae ex testamento mariti eius fideicommissi debitor, cum ea mulier alii nuberet, non mandatu mulieris dotem marito eius dedit et sibi reddi eam stipulatus est, si sine liberis filia moreretur: mulier filiam suscepit: quaesitum est, an fideicommissum a patre exigere possit. respondit, si nec ratam habuisset dotem datam, superesse fideicommissi petitionem. idem quaesiit, an si pater accepto facere stipulationem velit, mulieri persecutio fideicommissorum deneganda sit.
The natural father of his daughter, debtor of a fideicommissum from the will of her husband, when that woman married another, without the woman’s mandate gave a dowry to her husband and stipulated that it be returned to himself, if the daughter should die without children: the woman bore a daughter: it was asked whether she can exact the fideicommissum from her father. He responded that, if she had not ratified the dowry given, the petition for the fideicommissum remains. He likewise asked whether, if the father wishes to extinguish the stipulation by acceptilation, the woman’s pursuit of the fideicommissum ought to be denied.
Seium maritum scripsit heredem eique substituit appiam alumnam fideique heredis commisit, ut post mortem suam hereditatem eidem alumnae restitueret aut, si quid ante contigisset alumnae, tunc valeriano fratris filio restitueret eandem hereditatem. quaesitum est, si seius vivus, quidquid ad eum ex hereditate pervenisset, alumnae restituisset, an secundum voluntatem defunctae id fecisse videretur: praesertim cum haec idem substituta esset. respondit, si vivo seio appia decessisset, non esse liberatum a fideicommisso valeriano relicto.
She wrote her husband Seius as heir and to him she substituted Appia the alumna, and she committed to the good faith of the heir (fideicommissum) that after his own death he should restore the inheritance to the same alumna, or, if anything had previously befallen the alumna, then he should restore the same inheritance to Valerianus, her brother’s son. The question was asked, if Seius, while alive, had restored to the alumna whatever had come to him from the inheritance, whether he would seem to have done this according to the will of the deceased woman—especially since this same woman had likewise been substituted. He answered: if, while Seius was alive, Appia had died, he would not be freed from the fideicommissum left to Valerianus.
Heredis scripti fidei commiserat, ut seiae uxori universam restitueret hereditatem et uxoris fidei commisit in haec verba: " a te, seia, peto, ut quidquid ad te ex hereditate mea pervenerit, exceptis his, si qua tibi supra legavi, reliquum omne reddas restituas maeviae infanti dulcissimae. a qua seia satis exigi veto, cum sciam eam potius rem aucturam quam detrimento futuram". quaesitum est, an statim maevia fideicommissum a seia petere possit. respondit nihil proponi, cur non possit.
He had entrusted to the faith of the instituted heir that he restore the entire inheritance to seia his wife, and he entrusted to the faith of his wife in these words: " a te, seia, I ask that whatever from my inheritance shall have come to you, except those things, if any, which I have above bequeathed to you, you give back and restore all the remainder to maevia, the sweetest infant. from whom I forbid that surety be exacted by seia, since I know that she will rather increase the estate than be to its detriment". it was asked whether maevia can at once demand the fideicommissum from seia. he answered that nothing is set forth why she cannot.
Titius heredes instituit seiam uxorem ex parte duodecima, maeviam ex reliquis partibus et de monumento quod sibi exstrui volebat, ita cavit: " corpus meum uxori meae volo tradi sepeliendum in fundo illo et monumentum exstrui usque ad quadringentos aureos". quaero, cum in duodecima parte non amplius quam centum quinquaginta aurei ex bonis mariti ad uxorem perveniant, an hac scriptura ab ea sola monumentum sibi testator exstrui voluerit. respondi ab utraque herede monumentum pro hereditariis portionibus instruendum.
Titius instituted as heirs Seia his wife for a twelfth share, and Maevia for the remaining shares; and concerning the monument which he wished to be built for himself, he thus provided: "I wish my body to be handed over to my wife to be buried on that estate, and that a monument be built up to 400 aurei." I ask, since in the twelfth part not more than 150 aurei from the husband's goods come to the wife, whether by this writing the testator wished the monument to be built for himself by her alone. I responded that the monument must be constructed by both heirs in proportion to their hereditary shares.
Si filiae pater dotem arbitratu tutorum dari iussisset, tubero perinde hoc habendum ait ac si viri boni arbitratu legatum sit. labeo quaerit, quemadmodum apparet, quantam dotem cuiusque filiae boni viri arbitratu constitui oportet: ait id non esse difficile ex dignitate, ex facultatibus, ex numero liberorum testamentum facientis aestimare.
If a father had ordered a dowry to be given to his daughter by the arbitration of the guardians, tubero says this must be held just as if it were a legacy by the arbitration of a good man. labeo inquires, as is apparent, how great a dowry for each daughter ought to be constituted by a good man’s arbitration: he says that it is not difficult to appraise this from the dignity, from the resources, from the number of children of the testator.
Hoc legatum " uxoris causa parata" generale est et continet tam vestem quam argentum aurum ornamenta ceteraque, quae uxoris gratia parantur. sed quae videantur uxoris causa parari? sabinus libris ad vitellium ita scripsit: quod in usu frequentissime versatur, ut in legatis uxoris adiciatur " quod eius causa parata sint", hanc interpretationem optinuit, quod magis uxoris causa quam communis promiscuique usus causa paratum foret.
This legacy "prepared for the sake of the wife" is general and contains both clothing and silver, gold, ornaments, and the rest which are procured for the wife's sake. But what things seem to be prepared for the wife's sake? Sabinus wrote thus in his books to Vitellius: because it very frequently occurs in practice that, in legacies to a wife, there is added "what has been prepared for her sake," this interpretation has prevailed: that it would be deemed prepared rather for the wife's sake than for the sake of common and promiscuous use.
Ea tamen adiectio legatum alias exiguius, alias plenius efficit. augetur, cum sic scriptum est: " quaeque eius causa parata sunt": id enim significat et si quid praeter ea quae dicta sunt eius causa paratum est: minuitur detracta coniunctione, quia ex omnibus supra comprehensis ea sola definiuntur, quae eius causa parata sunt.
Yet that addition makes the legacy sometimes more meager, sometimes fuller. It is increased, when it is written thus: " and whatever has been prepared for its sake": for this signifies that even if anything besides those things which have been stated has been prepared for its sake. It is diminished with the conjunction removed, because out of all the things comprised above only those are defined which have been prepared for its sake.
Si quid earum rerum ante comparavit quam uxorem duxit, si id ei ut uteretur tradidit, perinde est, quasi postea paravisset. ex eo autem legato ea pertinent ad uxorem, quae eius causa empta comparata quaeque retenta sunt: in quibus etiam quae prioris uxoris quaeque filiae neptis vel nurus fuerunt continentur.
If he procured any of those items before he took a wife, if he handed it to her for her to use, it is the same as if he had afterwards procured it. From that legacy, moreover, those things pertain to the wife which were bought or otherwise procured for her sake and which were retained: among which are contained also those which were of a former wife and those which were of a daughter, granddaughter, or daughter-in-law.
Inter emptum et paratum quid interest, quaeritur: et responsum est in empto paratum inesse, in parato non continuo emptum contineri: veluti si quis quae prioris uxoris causa emisset, posteriori uxori tradidisset, eas res eum posterioris uxoris causa paravisse, non emisse constat. ideoque quamvis maritus posterioris uxoris causa nihil emerit, tamen tradendo quae prior habuerit, eius causa parata sunt. etsi ei adsignata non sunt, legato cedunt: at quae prioris uxoris causa parata sunt, ita posteriori debentur, si ei adsignata sint, quia non est ita de posteriore uxore cogitatum, cum compararentur.
What is the difference between what is bought and what is prepared? It has been answered that in what is bought the prepared is included, but in what is prepared the bought is not necessarily included: for instance, if someone had bought things for the sake of his former wife and had delivered them to his later wife, it is agreed that he prepared those things for the sake of the later wife, not bought them. And so, although the husband bought nothing for the sake of the later wife, nevertheless by delivering what the former had possessed, they are prepared for her sake. And even if they have not been assigned to her, they pass to the legacy; but the things that were prepared for the sake of the former wife are owed to the later wife only if they have been assigned to her, because it was not the later wife that was in view when they were procured.
Item interest, ipsius causa parata sint ei legata an ipsius causa empta: paratis enim omnia continentur, quae ipsius usibus fuerunt destinata, empta vero ea sola, quae propter eam empta fecit maritus. unde non continebuntur emptis solis legatis, quae alia ratione pater familias adquisitia ei destinavit: utroque autem legato continebuntur et quae maritus emi mandaverat vel quae emerat, necdum autem ei adsignaverat, adsignaturus si vixisset.
Likewise, it makes a difference whether the legacies were prepared for her sake or purchased for her sake: by “prepared” are contained all things that were destined for her uses, whereas by “purchased” only those which the husband purchased on her account. Hence, under “purchased” legacies alone there will not be contained those which the pater familias, acquired by some other means, destined for her; but under either legacy there will be contained also those things which the husband had ordered to be bought or which he had bought, but had not yet assigned to her—he would have assigned them had he lived.
Cum filio familias ita legatur: " cum is in tutelam suam pervenerit", pubertatis tempus significatur. et sane si impuberi filio familias legatum sit, plerumque sentiendum est, quod sabinus ait, ut non et pater familias fiat, sed ut pubes. ceterum si mater, quae suspectam habuit mariti a quo divorterat vitam, filio suo quamvis impuberi leget, non videtur sensisse de eo tempore, quo pubes est, sed eo, quo et pubes et pater familias est ( nam et si pubes fuit, multo magis dicemus de patre familias eam sensisse), ac si dixisset " in suam tutelam et in suam potestatem".
When to a filius familias a legacy is thus left: " when he shall have come into his own tutelage", the time of puberty is signified. And indeed, if a legacy has been left to a filius familias who is underage, for the most part it must be understood, as Sabinus says, that it is not that he also become pater familias, but that he attain puberty. However, if a mother, who held suspect the life of the husband from whom she had divorced, makes a bequest to her son, although underage, she does not seem to have had in mind that time when he is of age, but that when he is both of age and pater familias ( for even if he was of age, we shall say much more that she had the pater familias in mind), as if she had said " into his own tutelage and into his own power".
Quod si quis patri familias impuberi leget, cum suae tutelae sit, de pubertate sensit, interdum et de viginti quinque annis, si mens testantis appareat. nam si iam puberi, minori tamen viginti quinque annis legavit, procul dubio anni viginti quinque erunt praestituti.
But if someone leaves a legacy to a paterfamilias who is impubes, since he is under guardianship, he had puberty in view, and sometimes even twenty-five years, if the testator’s intention appears. For if he left the legacy to one already pubes but still under twenty-five years, without doubt twenty-five years will be prescribed.
Sic autem haec scriptura varia est et voluntatis habet quaestionem, ut illa quoque, si quis ita scripserit " cum sui iuris fuerit factus" nam aliter alias accipiatur: et plerumque potestatis liberationem continet, plerumque pubertatem vel vicesimum quintum annum.
Thus, moreover, this wording is variable and raises a question of intention, as does that clause too, if someone has written thus, "when he shall have become sui juris"; for it is taken differently in different cases: and for the most part it contains liberation from power, at other times puberty, or the twenty-fifth year.
Librorum appellatione continentur omnia volumina, sive in charta sive in membrana sint sive in quavis alia materia: sed et si in philyra aut in tilia ( ut nonnulli conficiunt) aut in quo alio corio, idem erit dicendum. quod si in codicibus sint membraneis vel chartaceis vel etiam eboreis vel alterius materiae vel in ceratis codicillis, an debeantur, videamus. et gaius cassius scribit deberi et membranas libris legatis: consequenter igitur cetera quoque debebuntur, si non adversetur voluntas testatoris.
Under the appellation of “books” are contained all volumes, whether on paper or on parchment (membrane) or on any other material: but even if on philyra or on linden ( as some manufacture) or on some other leather, the same must be said. But if they are in codices of parchment or of paper or even of ivory or of some other material, or in waxed codicils, whether they ought to be owed, let us consider. And Gaius Cassius writes that parchments are owed when books are bequeathed: consequently, then, the other things also will be owed, unless the will of the testator is opposed.
Si cui centum libri sint legati, centum volumina ei dabimus, non centum, quae quis ingenio suo metitus est, qui ad libri scripturam sufficerent: ut puta cum haberet homerum totum in uno volumine, non quadraginta octo libros computamus, sed unum homeri volumen pro libro accipiendum est.
If a hundred books have been bequeathed to someone, we will give him a hundred volumes, not a hundred such as someone, by his own ingenuity, has measured out as would suffice for the writing of a book: for instance, when he had the whole of Homer in one volume, we do not compute forty-eight books, but one volume of Homer is to be accepted as a book.
Libris autem legatis bibliothecas non contineri sabinus scribit: idem et cassius: ait enim membranas quae scriptae sint contineri, deinde adiecit neque armaria neque scrinia neque cetera, in quibus libri conduntur, deberi.
But upon a bequest of books, Sabinus writes that libraries are not included; the same [opinion] also from Cassius: for he says that the parchment sheets which have been written on are included; then he added that neither cupboards (armaria) nor scrinia nor the other things in which books are stored are owed.
Quod tamen cassius de membranis puris scripsit, verum est: nam nec chartae purae debentur libris legatis nec chartis legatis libri debebuntur, nisi forte et hic nos urserit voluntas: ut puta si quis forte chartas sic reliquerit " chartas meas universas", qui nihil aliud quam libros habebat, studiosus studioso: nemo enim dubitabit libros deberi: nam et in usu plerique libros chartas appellant. quid ergo, si quis chartas legaverit puras? membranae non continebuntur neque ceterae ad scribendum materiae, sed nec coepti scribi libri.
Yet what Cassius wrote about blank parchments is true: for neither are blank sheets owed under books bequeathed, nor, if sheets are bequeathed, will books be owed, unless perhaps here too the intention presses us: as, for instance, if someone has thus left the sheets " all my sheets", who had nothing other than books, a studious man to a studious man: for no one will doubt that books are owed; for in common usage many call books “sheets.” What then, if someone has bequeathed blank sheets? Parchments will not be included, nor the other materials for writing, nor yet books that have begun to be written.
Unde non male quaeritur, si libri legati sint, an contineantur nondum perscripti. et non puto contineri, non magis quam vestis appellatione nondum detexta continetur. sed perscripti libri nondum malleati vel ornati continebuntur: proinde et nondum conglutinati vel emendati continebuntur: sed et membranae nondum consutae continebuntur.
Whence it is not a poor question, if books have been bequeathed, whether those not yet fully written are included. And I do not think they are included, no more than under the appellation “garment” something not yet woven off the loom is included. But books fully written, though not yet malleted or ornamented, will be included: accordingly, those not yet glued together or emended will be included; and parchment leaves not yet sewn will also be included.
Sed si bibliothecam legaverit, utrum armarium solum vel armaria continebuntur an vero libri quoque contineantur, quaeritur. et eleganter nerva ait interesse id quod testator senserit: nam et locum significari bibliothecam eo: alias armarium, sicuti dicimus " eboream bibliothecam emit": alias libros, sicuti dicimus " bibliothecam emisse".
But if he has bequeathed a bibliotheca, the question arises whether only the armarium or the armaria will be included, or indeed the books also are included. And Nerva elegantly says it depends on what the testator intended: for by that word a place is also signified by bibliotheca; at other times an armarium, just as we say " eboream bibliothecam emit" (" he bought an ivory bibliotheca"); at other times the books, just as we say " bibliothecam emisse" (" to have bought a bibliotheca").
Quod igitur scribit sabinus libros bibliothecam non sequi, non per omnia verum est: nam interdum armaria quoque debentur, quae plerique bibliothecas appellant. plane si mihi proponas adhaerentia esse membro armaria vel adfixa, sine dubio non debebuntur, cum aedificii portio sint.
Therefore, what Sabinus writes—that the books do not follow the library—is not true in all respects: for sometimes the cabinets (armaria) also are owed, which most people call libraries. Clearly, if you put it to me that the cabinets are adhering as a member or affixed, without doubt they will not be owed, since they are a portion of the building.
Quod in bibliotheca tractavimus, idem pomponius libro sexto ex sabino in dactyliotheca legata tractat: et ait anulos quoque contineri, non solum thecam, quae anulorum causa parata sit: hoc autem ex eo coniectat, quod ita proponitur quis legasse: " dactyliothecam meam et si quos praeterea ^ praeterae^ anulos habeo" et ita labeonem quoque existimasse ait.
What we treated in the matter of the library, Pomponius likewise, in the sixth book from Sabinus, treats concerning a dactyliotheca left as a legacy; and he says that the rings too are included, not only the theca, which was prepared for the sake of the rings. He infers this from the fact that it is put forward that someone bequeathed thus: " dactyliothecam meam et si quos praeterea ^ praeterae^ anulos habeo" and he says that Labeo also judged so.
Si pure tibi legavero, deinde postea scripsero ita: " hoc amplius si navis ex asia venerit, heres meus ei fundum dato", verius est eo verbo " amplius" superiora repeti, sicuti dicimus " lucius titius plebi quina milia dedit, hoc amplius seius viscerationem", quina quoque milia seium dedisse intellegimus et " titius accepit quinque, seius hoc amplius fundum", seium quinque quoque accepisse intellegimus.
If I have bequeathed to you unconditionally, and then afterwards have written thus: " besides this, if a ship shall have come from asia, let my heir give him an estate," it is more correct that by the word " in addition" the preceding items are repeated, just as we say " lucius titius gave to the plebs five thousand, besides this seius a visceration," we understand that seius also gave five thousand; and " titius received five, seius besides this an estate," we understand that seius also received five.
Ligni appellatio nomen generale est, sed sic separatur, ut sit aliquid materia, aliquid lignum. materia est, quae ad aedificandum fulciendum necessaria est, lignum, quidquid conburendi causa paratum est. sed utrum ita demum, si concisum sit an et si non sit?
The appellation of “wood” is a general name, but it is distinguished thus, that something is timber (materia), and something is firewood (lignum). Timber is that which is necessary for building and for shoring, wood is whatever has been prepared for the purpose of burning. But is it only so, if it has been cut up, or even if it has not?
and Quintus Mucius, in the second book, reports that, if wood had been bequeathed to someone which was on the estate, trees indeed cut for the sake of timber are not owed: nor did he add that, if they were cut not for the purpose of burning, they pertain to him; but it follows that it is to be understood thus.
Ofilius quoque libro quinto iuris partiti ita scripsit, cui ligna legata sunt, ad eum omnia ligna pertinere, quae alio nomine non appellantur, veluti virgae carbones nuclei olivarum, quibus ad nullam aliam rem nisi ad comburendum possit uti: sed et balani vel si qui alii nuclei.
Ofilius also wrote thus in the fifth book of the Law Partitioned: that, for the one to whom wood has been bequeathed, all wood pertains to him which is not called by another name, for example rods, charcoal, the kernels of olives, which can be used for no other purpose except burning; and also acorns, or if there are any other kernels.
Idem libro secundo negat arbores nondum concisas, nisi quae minutatim conciduntur, videri ei legatas, cui ligna legata sunt. ego autem arbitror hoc quoque ligni appellatione contineri, quod nondum minutatim fuit concisum, si iam concidendo fuit destinatum. proinde si silvam huic rei habebat destinatam, silva quidem non cedet, deiectae autem arbores lignorum appellatione continebuntur, nisi aliud testator sensit.
The same, in the second book, denies that trees not yet cut down—save for those that are cut up piece by piece—are deemed to have been bequeathed to him to whom wood has been bequeathed. I, however, think that under the appellation “wood” there is contained also that which has not yet been chopped into small pieces, if it has already been destined for cutting. Accordingly, if he had a woodland destined for this purpose, the woodland indeed will not pass, but the trees that have been felled will be contained under the appellation of “wood,” unless the testator meant otherwise.
Lignorum appellatione in quibusdam regionibus, ut in aegypto, ubi harundine pro ligno utuntur, et harundines et papyrum comburitur et herbulae quaedam vel spinae vel vepres continebuntur. quid mirum? cum culon hoc et naves culygas appellant, quae haec apo twn helwn deducunt.
Under the appellation of wood, in certain regions, as in Egypt, where they use reed in place of wood, there will be included both reeds and papyrus that are burned, and certain little herbs or thorns or brambles. What wonder? since they call this “culon” and the ships “culygas,” which bring these things down from the marshes.
Si lignum sit paratum ad carbones coquendas atque conficiendas, ait ofilius libro quinto iuris partiti carbonum appellatione huiusmodi materiam non contineri: sed an lignorum? et fortassis quis dicet nec lignorum: non enim lignorum gratia haec testator habuit. sed et titiones et alia ligna cocta ne fumum faciant utrum ligno an carboni an suo generi adnumerabimus?
If wood is prepared for cooking and producing coals, Ofilius in book 5 of the Law in Parts says that material of this sort is not contained under the appellation “coals.” But under “wood”? And perhaps someone will say, not under “wood” either: for the testator did not have these for the sake of wood. But as to firebrands and other cooked/burnt woods, so that they may not make smoke—shall we reckon them to wood, or to coal, or to their own genus?
Qui chirographum legat, non tantum de tabulis cogitat, sed etiam de actionibus, quarum probatio tabulis continetur: appellatione enim chirographi uti nos pro ipsis actionibus palam est, cum venditis chirographis intellegimus nomen venisse. quin etiam si nomen quis legaverit, id quod in actionibus est legatum intellegitur.
He who bequeaths a chirograph thinks not only of the tablets, but also of the actions, the proof of which is contained in the tablets: for it is plain that we use the appellation “chirograph” for the actions themselves, since, when chirographs are sold, we understand the claim (nomen) to have been sold. Nay further, if someone has bequeathed a claim (nomen), it is understood that that which is in the actions has been bequeathed.
Lana lino purpura uxori legatis, quae eius causa parata essent, cum multam lanam et omnis generis reliquisset, quaerebatur, an omnis deberetur. respondit, si nihil ex ea destinasset ad usum uxoris, sed omnis commixta esset, non dissimilem esse deliberationem, cum penus legata esset et multas res quae penus essent reliquisset, ex quibus pater familias vendere solitus esset. nam si vina diffudisset habiturus usioni ipse et heres eius, tamen omne in penu existimare.
With wool, flax, and purple having been bequeathed to the wife, which had been prepared on her account, since he had left much wool and of every kind, the question was asked whether all was due. He answered: if he had destined none of it for the wife’s use, but it had all been commingled, the deliberation is not unlike when the penus (household stores) had been bequeathed and he had left many things which were penus, from which the paterfamilias was accustomed to sell. For if he had decanted the wines to be had for use by himself and his heir, nevertheless to consider the whole as in the penus.
but when it was proved that the one who had made the testament was accustomed to sell part of the penus, it was established that, out of that which was needed for the year, the heirs should give to the legatee. Thus it pleases me that the same be done also in the case of the wool: out of it let her take what would be sufficient for the woman’s annual use; for it is not that, after deducting what was needed for the husband’s use, the remainder was bequeathed to the wife, but rather that which had been prepared for the wife’s sake.
Praediis legatis et quae eorum praediorum colendorum causa empta parataque essent, neque topiarium neque saltuarium legatum videri ait: topiarium enim ornandi, saltuarium autem tuendi et custodiendi fundi magis quam colendi paratum esse: asinum machinarium legatum videri: item oves, quae stercorandi fundi causa pararentur: item opilionem, si eius generis oves curaret.
He says that, when estates have been bequeathed, together with the things that were bought and prepared for the sake of cultivating those estates, neither a topiarius nor a saltuarius is seen to be bequeathed: for a topiarius is fitted for ornamenting, and a saltuarius for protecting and guarding the farm rather than for cultivating it: a machinery-ass is seen to be bequeathed: likewise sheep that are procured for the purpose of manuring the farm: likewise a sheep-herd, if he takes care of sheep of that kind.
Textoribus omnibus, qui sui essent cum moreretur, legatis quaesitum est, an et is, quem postea ex his ostiarium fecisset, legato contineretur. respondit contineri: non enim ad aliud artificium, sed ad alium usum transductum esse.
With a legacy to all the weavers who were his when he died having been left, the question was raised whether the one whom thereafter he had made a doorkeeper from among them was included in the legacy. He replied that he was included: for he had been transferred not to another art, but to another use.
Qui duos mulos habebat ita legavit: " mulos duos, qui mei erunt cum moriar, heres dato": idem nullos mulos, sed duas mulas reliquerat. respondit servius deberi legatum, quia mulorum appellatione etiam mulae continentur, quemadmodum appellatione servorum etiam servae plerumque continentur. id autem eo veniet, quod semper sexus masculinus etiam femininum sexum continet.
He who had two mules bequeathed thus: "two mules, which will be mine when I die, let the heir give": the same man had left no mules, but two she-mules. Servius responded that the legacy is owed, because under the appellation of mules she-mules also are contained, just as under the appellation of slaves female slaves are for the most part contained. And this will come from the fact that the masculine sex always also contains the feminine sex.
Qui filium et nepotem heredem instituerat, certa praedia quaeque in his mortis tempore sua essent nepoti per fideicommissum dederat excepto kalendario: mortis tempore in ea arca, in qua instrumenta et cautiones debitorum erant, pecunia numerata inventa est. plerisque videbatur vix verosimile esse, ut testator de pecunia numerata sensisset. ego autem illud dignum animadversione existimabam, cum quis kalendarium praestari alicui voluerit, utrumne nomina dumtaxat debitorum praestari voluisse intellegendus est an vero etiam pecuniam, si qua ab his exacta, eidem tamen kalendario destinata fuerit.
He who had appointed his son and his grandson as heir had given to the grandson by fideicommissum certain estates, and whatever within these at the time of death was his own, with the kalendarium excepted; at the time of death, in the chest in which the instruments and bonds of the debtors were, ready money was found. To most it seemed scarcely plausible that the testator had had the ready money in mind. But I considered this worthy of attention: when someone has wished that the kalendarium be made over to someone, whether he is to be understood to have wished that only the names of the debtors be made over, or indeed also the money, if any has been collected from them, yet had been earmarked for the same kalendarium.
and I rather think that, just as, if monies had been collected and then again invested, the permutation of the nomina would not extinguish or diminish the fideicommissum, so the monies themselves, if they were still destined for the kalendarium, that is for making the nomina, ought to cede to the same fideicommissum. Nay more, I also think this can be defended: that not only monies collected from debtors, but, for whatever cause, monies realized, yet destined for the same account, should likewise cede to the fideicommissum.
Legatis servis exceptis negotiatoribus labeo scripsit eos legato exceptos videri, qui praepositi essent negotii exercendi causa, veluti qui ad emendum locandum conducendum praepositi essent: cubicularios autem vel obsonatores vel eos, qui piscatoribus praepositi sunt, non videri negotiationis appellatione contineri: et puto veram esse labeonis sententiam.
As to slaves bequeathed, with traders excepted, Labeo wrote that those are considered to be excepted from the legacy who were put in charge for the purpose of exercising business, for example those who were put in charge for buying, letting, or hiring; but chamberlains, or purveyors, or those who are set over the fishermen, are not seen to be contained under the appellation of negotiation (commerce); and I think Labeo’s opinion is true.
Ornatricibus legatis celsus scripsit eas, quae duos tantum menses apud magistrum fuerunt, legato non cedere, alii et has cedere, ne necesse sit nullam cedere, cum omnes adhuc discere possint et omne artificium incrementum recipit: quod magis optinere debet, quia humanae naturae congruum est.
Concerning ornatrices bequeathed, Celsus wrote that those who were with a teacher for only two months do not fall under the legacy; others that even these do fall under it, lest it be necessary that none fall under it, since all can still learn and every art admits of increase: which ought rather to prevail, because it is congruent with human nature.
Pecoribus legatis cassius scripsit quadrupedes contineri, quae gregatim pascuntur. et sues autem pecorum appellatione continentur, quia et hi gregatim pascuntur: sic denique et homerus in odyssia ait, dyeis ton ge suessi parymenon: ahi de nemontai par korakos petry epi te kryny arevousy.
When "pecora" are bequeathed, cassius wrote that quadrupeds are included which pasture in herds. And swine too are contained under the appellation of pecora, because they also pasture in herds: thus, finally, even homer in the odyssey says, "two indeed remaining with the swine; but the others pasture by Korax’s Rock and at the spring Arethusa."
Qui saltum aestivum legavit et hoc amplius etiam eas res legaverit, quae ibi esse solent, non videtur de illis pecoribus sensisse, quae hieme in hibernis aut aestate in aestivis esse solent, sed de illis sensit, quae perpetuo ibi sunt.
He who has bequeathed a summer pasture, and, moreover, has also bequeathed those things which are wont to be there, does not seem to have intended those herds which are accustomed in winter to be in the winter-quarters or in summer in the summer-quarters, but he intended those which are perpetually there.
Titius codicillis suis ita cavit: " publio maevio omnes iuvenes, quos in ministerio habeo, dari volo": quaero, a qua aetate iuvenes et in quam intellegi debeant. Marcellus respondit, quos verbis quae proponerentur demonstrare voluerit testator, ad notionem eius, qui de ea re cogniturus esset, pertinere: non enim in causa testamentorum ad definitionem utique descendendum est, cum plerumque abusive loquantur nec propriis nominibus ac vocabulis semper utantur. ceterum existimari posset iuvenis is ^ ^ , qui adulescentis excessit aetatem, quoad incipiat inter seniores numerari.
titius in his codicils thus provided: " publio maevio I wish all the young men whom I have in my service to be given": I ask, from what age and up to what age should "young men" be understood. marcellus replied that those whom the testator wished to indicate by the words that were proposed are to be referred to the notion of the one who would take cognizance of the matter: for in the case of testaments one should not in all events descend to a strict definition, since for the most part they speak loosely and do not always use proper names and terms. furthermore, it could be thought that a "young man" is he ^ ^ , who has passed beyond the age of an adolescent, until he begins to be numbered among the seniors.
Versicoloribus videndum est. et constabat apud veteres lanae appellatione versicoloria non contineri, sed ea omnia videri legata, quae tincta sunt, et neta, quae neque detexta neque contexta sunt. proinde quaeritur, an purpura appellatione versicolorum contineatur.
As to versicolors, it must be considered. and it was settled among the ancients that under the appellation “wool” versicolors are not included, but that all things which are dyed are deemed bequeathed, and spun things, which are neither woven off nor woven together. accordingly the question is raised whether under the appellation “purple” versicolors are contained.
and I too judge that things which are not dyed are not to be reckoned among the varicolored, and therefore neither white nor naturally black nor of any other natural color are contained; but purple and scarlet, since they are of no native color, I judge to be contained, unless the testator sensed otherwise.
Purpurae autem appellatione omnis generis purpuram contineri puto: sed coccum non continebitur, fucinum et ianthinum continebitur. purpurae appellatione etiam subtemen factum contineri nemo dubitat: lana tinguendae purpurae causa destinata non continebitur.
By the appellation of purple I think purple of every kind is included: but coccum will not be included, the fucine and the ianthine will be included. by the appellation of purple even the weft already made is included, no one doubts: wool destined for the purpose of dyeing purple will not be included.
Proinde si quis servos habuit proprios, sed quorum operas locabat vel pistorias vel histrionicas vel alias similes, an servorum appellatione etiam hos legasse videatur? quod et praesumi oportet, nisi contraria voluntas testatoris appareat.
Accordingly, if someone had his own slaves, but was letting out their services, whether pistorial (bakery) or histrionic (theatrical) or other similar, does it seem that under the appellation of “slaves” he has bequeathed these as well? This too ought to be presumed, unless a contrary intention of the testator appears.
Eum, qui venaliciariam vitam exercebat, puto suorum numero non facile contineri velle eiusmodi mancipia, nisi evidens voluntas fuit etiam de his sentientis: nam quos quis ideo comparavit, ut ilico distraheret, mercis magis loco quam suorum habuisse credendus est.
I think that a person who practiced the slave‑dealer’s trade would not readily wish slaves of this sort to be included in the number of his own household, unless there was an evident intention on the part of the one taking thought also about these; for those whom someone purchased for the very purpose of selling them off at once, he is to be believed to have held in the category of merchandise rather than of his own.
Quaesitum est stichum servum ex eo fundo ante annum mortis testatoris abductum et disciplinae traditum, postea in eum fundum non reversum an deberetur. responsum est, si studendi causa misisset, non quo de fundo eum aliorsum transferret, deberi.
It was asked whether the slave Stichus, taken away from that estate a year before the testator’s death and delivered to instruction, and not afterwards returned to that estate, was owed. it was answered that, if he had sent him for the sake of studying, not in order to transfer him elsewhere from the estate, he was owed.
" maevi fili, quod iam tibi maximam partem facultatium dederim, contentus esse debes fundo semproniano cum suis inhabitantibus, id est familia, et quae ibi erunt". quaesitum est de nominibus debitorum et nummis. eadem epistulam talem emisit: " argentum omne et supellectilem, quodcumque habeo, tibi dono et quidquid in praedio semproniano habeo". an supellex, quae in aliis praediis vel domibus esset, ad maevium pertineret? et an servi, quos ex eo fundo aliis legavit?
"Maevius, my son, since I have already given to you the greatest part of my means, you ought to be content with the Sempronian estate with its inhabitants, that is, the household, and whatever will be there." Inquiry was made concerning the names of debtors and the coins. The same person sent a letter of this tenor: "All the silver and the furnishings, whatever I have, I gift to you, and whatever I have on the Sempronian estate." Would the furniture which was in other estates or houses pertain to Maevius? And whether the slaves, whom from that estate he had bequeathed to others?
It was answered that “names” (claims) and monies are not seen to be owed, unless the will of the deceased regarding the bequeathing of these also is clearly approved. Slaves given to others from those same estates diminished the son’s legacy. As to the silver and household furnishings that might be elsewhere, the person whose cognizance it is will make an assessment, so that that may be obtained which will be approved, by the legatee, to have pleased the testator.
Praedia quidam reliquit adiectis ^ his^ verbis: " uti a me possessa sunt et quaecumque ibi erunt cum moriar": quaesitum est de mancipiis, quae in his praediis morata fuerunt vel operis rustici causa vel alterius officii, ceterisque rebus, quae ibi fuerunt in diem mortis, an ad legatarium pertinerent. respondit ea omnia, de quibus quaereretur, legata videri.
A certain man left estates with ^ these^ words added: "as they have been possessed by me, and whatever will be there when I die": it was asked about the slaves who remained on these estates either for the sake of rustic work or for another office, and about the other things which were there on the day of death, whether they would pertain to the legatee. He answered that all those things about which inquiry was made are to be deemed bequeathed.
" peto, ut fundum meum campanianum genesiae alumnae meae adscribatis ducentorum aureorum ita uti est". quaeritur, an fundo et reliqua colonorum et mancipia, si qua mortis tempore in eo fuerint, debeantur. respondit reliqua quidem colonorum non legata: cetera vero videri illis verbis " ita uti est" data.
"I ask that you assign my Campanian estate to Genesia, my alumna, for two hundred aurei, just as it is." The question is raised whether, along with the estate, the arrears of the coloni (tenant-farmers) and the slaves, if any shall be in it at the time of death, are owed. He replied that the arrears of the coloni are not bequeathed; but that the other things seem to be conveyed by those words "just as it is."
Illud fortasse quaesiturus sit aliquis, cur argenti appellatione etiam factum argentum comprehendetur, cum, si marmor legatum esset, nihil praeter rudem materiam demonstratum videri posset. cuius haec ratio traditur, quippe ea, quae talis naturae sint, ut saepius in sua redigi possint initia, ea materiae potentia victa numquam vires eius effugiant.
Someone will perhaps be going to ask why under the appellation of “silver” wrought silver also is comprehended, whereas, if marble had been bequeathed, nothing beyond the raw material would seem able to be indicated. The following rationale is handed down for this: namely, those things which are of such a nature that they can more than once be reduced back to their beginnings, never, though overcome by the potency of the matter, escape its powers.
Cum vir ita legasset: " quae uxoris causa parata sunt, ei do lego", ego apud praetorem fideicommissarium petebam etiam res aestimatas, quarum pretium in dotem erat, nec optinui, quasi testator non sensisset de his rebus. atquin si in usum eius datae sint, nihil interest, ab ipsa an ab alio comparatae sunt. postea apud aburnium valentem inveni ita relatum: mulier res aestimatas in dotem dederat ac deinde maritus ei legaverat his verbis: " quae eius causa comparata emptaque essent". dixit emptorum paratorumque appellatione non contineri ea, quae in dotem data essent, nisi si maritus eas res, posteaquam ipsius factae essent, in uxoris usum convertisset.
When a man had thus bequeathed: "the things which have been procured for the wife's sake, I give and bequeath to her," I, before the fideicommissary praetor, was claiming also the appraised goods, whose price had gone into the dowry, and I did not prevail, as if the testator had not had those things in mind. And yet, if they were given for her use, it makes no difference whether they were acquired by herself or by another. Later I found it thus reported by Aburnius Valens: a woman had given appraised goods into the dowry, and thereafter the husband had bequeathed to her with these words: "the things which had been procured and bought for her sake." He said that under the appellation of things bought and procured there are not contained those which had been given into the dowry, unless the husband, after they had become his, had converted those things to the wife's use.
His verbis: " quae ibi mobilia mea erunt, do lego" nummos ibi repositos, ut mutui darentur, non esse legatos proculus ait: at eos quos praesidii causa repositos habet, ut quidam bellis civilibus factitassent, eos legato contineri. et audisse se rusticos senes ita dicentes pecuniam sine peculio fragilem esse, peculium appellantes, quod praesidii causa seponeretur.
With these words: " whatever movables of mine will be there, I give and bequeath" Proculus says that the coins deposited there so that they be given as a loan (mutuum) are not bequeathed: but those which he has deposited for the sake of protection, as certain people were wont to do in civil wars, are contained in the legacy. And he had heard rustic old men saying thus, that money without a peculium is fragile, calling peculium that which is set aside for the sake of protection.
Servis legatis etiam ancillas quidam deberi recte putant, quasi commune nomen utrumque sexum contineat: ancillis vero legatis masculos non deberi nemo dubitat. sed pueris legatis etiam puellae debentur: id non aeque in puellis pueros contineri dicendum est.
When slaves are bequeathed, some rightly think that maidservants also are due, as if the common name contains both sexes: but when maidservants are bequeathed, no one doubts that males are not due. But when boys are bequeathed, girls too are owed: it must be said that boys are not equally contained under girls.
Quod his verbis relictum est: " quidquid ex hereditate bonisve meis ad te pervenerit, cum morieris, restituas", fructus, quos heres vivus percepit, item quae fructuum vice sunt non venire placuisse: nec enim quicquam proponi, ex quo de his quoque restituendis testatricem rogasse probari potest.
As to what was left by these words: "whatever from the inheritance or my goods shall have come to you, when you die, restore," it has been held that the fruits which the heir, while alive, has taken, and likewise those that are in the place of fruits, do not come under it: for nothing is set forth from which it can be proved that the testatrix also asked for these to be restored.
Idem. testator, qui libertis fideicommissum relinquebat, substitutione inter eos facta expressit, ut post mortem extremi ad posteros eorum pertineret: quaero, cum nemo alius sit nisi libertus eius qui extremo mortuus est, an is ad fideicommissum admitti debeat. respondit: posterorum appellatione liberos tantummodo, non etiam libertos eorum, quibus fideicommissum relictum est, fideicommisso contineri nequaquam incertum est.
The same. a testator, who was leaving a fideicommissum to his freedmen, with a substitution made among them, expressed that after the death of the last it should pertain to their posterity: I ask, since there is no one else except the freedman of him who died last, whether he ought to be admitted to the fideicommissum. He responded: it is by no means uncertain that under the appellation “posterity” only their children, and not also the freedmen of those to whom the fideicommissum was left, are contained in the fideicommissum.
Nuper constitutum est a principe, ut et non adiecto hoc " meum" si quis corpus alicui leget et ita sentiat, ut ita demum praestetur, si suum sit, ita valere legatum, ut appareat magis sententiam legantis, non hoc verbum " meum" respiciendum esse. et ideo elegans est illa distinctio, ut, quotiens certum corpus legatur, ad praesens tempus adiectum hoc verbum " meum" non faciat condicionem, si vero incertum corpus legetur, veluti ita " vina mea" " vestem meam", videatur pro condicione hoc verbum esse " mea", ut ea demum, quae illius sint, videantur legata. quod non puto fortiter posse defendi, sed potius et hic vestem vel vinum, quod suorum numero habuerit, hoc legatum esse: sic enim responsum est etiam quod coacuerit vinum legato cedere, si id vini numero testator habuisset.
Recently it was constituted by the prince, that even without the addition of this “mine,” if someone bequeaths a corpus (a specific thing) to someone and so intends—that it be furnished only if it is his own—the legacy is valid in such a way that it is clearer the intention of the bequeather is to be regarded, not this word “mine.” And therefore that distinction is elegant, that whenever a certain (specific) corpus is bequeathed, as of the present the addition of this word “mine” does not make a condition; but if an uncertain corpus is bequeathed, as in “my wines,” “my clothing,” this word “mine” is seen to operate as a condition, so that only those things which are his appear to be legated. Which I do not think can be stoutly defended, but rather that here too the clothing or the wine which he had among the number of his own is what is bequeathed: for thus it has been answered that even wine which has thickened passes to the legacy, if the testator had held it in the category of wine.
plainly, when at the time of death this wording has been applied, " vestem, quae mea erit," I think it is without doubt to be taken as a condition: and I also think that " stichum qui meus erit" is to be taken as a condition, and that it is of no interest whether thus " qui meus erit" or thus " si meus erit": in both cases that it is a condition. nevertheless Labeo writes that even when referred to future time this wording " qui meus erit" is to be taken as a demonstration, but we use a different law.
Si ita legatum est " domum quaeque mea ibi erunt, cum moriar", nummos ad diem exactos a debitoribus, ut aliis nominibus collocarentur, non puto legatos esse et labeonis distinctionem valde probo, qui scripsit nec quod casu abesset, minus esse legatum nec quod casu ibi sit, magis esse legatum.
If a legacy is thus: " the house and whatever of mine will be there, when I die", I do not think that coins collected on that day from debtors, to be placed under other names, are bequeathed; and I very much approve Labeo’s distinction, who wrote that neither what is absent by chance is less a legacy, nor what is there by chance is more a legacy.
Re coniuncti videntur, non etiam verbis, cum duobus separatim eadem res legatur. item verbis, non etiam re: " titio et seio fundum aequis partibus do lego", quoniam semper partes habent legatarii. praefertur igitur omnimodo ceteris, qui et re et verbis coniunctus est.
They appear to be joined in the thing, though not also in words, when the same thing is bequeathed to two persons separately. Likewise, in words, though not also in the thing: " to Titius and Seius I give and bequeath the estate in equal parts," since legatees always have shares. Therefore, in every way, he who is joined both in the thing and in words is preferred to the others.
Praediis per praeceptionem filiae datis cum reliquis actorum et colonorum ea reliqua videntur legata, quae de reditu praediorum in eadem causa manserunt: alioquin pecuniam a colonis exactam et in kalendarium in eadem regione versam reliquis non contineri neque colonorum neque actorum facile constabit, tametsi nominatim actores ad filiam pertinere voluit.
When the estates have been given to the daughter by praeception, together with the remaining balances of the actores and the coloni, those remainders appear to be bequeathed which, from the revenue of the estates, remained in the same category; otherwise, it will be readily evident that the money exacted from the coloni and transferred into the kalendarium in the same region is not contained among the balances either of the coloni or of the actores, although he wished by name that the actores should pertain to the daughter.
Ex his verbis: " lucio titio praedia mea illa cum praetorio, sicut a me in diem mortis meae possessa sunt, do" instrumentum rusticum et omnia, quae ibi fuerunt, quo dominus fuisset instructior, deberi convenit: colonorum reliqua non debentur.
From these words: "to Lucius Titius I give those estates of mine with the praetorium, just as they have been possessed by me up to the day of my death," it is agreed that the rural instrument and all things which were there, whereby the owner would have been better furnished, are owed: the arrears of the tenant-farmers are not owed.
" titio seiana praedia, sicuti comparata sunt, do lego". cum essent gabiniana quoque simul uno pretio comparata, non sufficere solum argumentum emptionis respondi, sed inspiciendum, an litteris et rationibus appellatione seianorum gabiniana quoque continentur et utriusque possessionis confusi reditus titulo seianorum accepto lati essent.
"to Titius I give and bequeath the Seian estates, just as they were acquired." Since the Gabinian [estates] likewise had been acquired at the same time for a single price, I replied that the mere argument from the purchase did not suffice, but that it must be examined whether in the writings and accounts the Gabinian [estates] also are contained under the appellation of the Seian [estates], and whether the commingled revenues of the possession of both, entered as received under the title of the Seian [estates], had been carried.
Balneas legatae domus esse portionem constabat: quod si eas publice praebuit, ita domus esse portionem balneas, si per domum quoque intrinsecus adirentur et in usu patris familiae vel uxoris nonnumquam fuerunt et mercedes eius inter ceteras meritoriorum domus rationibus accepto ferebantur et uno pretio comparatae vel instructae communi coniunctu fuissent.
It was established that baths were a portion of the house left as a legacy: but if he provided them for public use, the baths were a portion of the house, provided they were also approached from within through the house, and had sometimes been in the use of the paterfamilias or the wife, and their rents were carried in the accounts among the other earnings of the revenue‑house, and they had been acquired at a single price or equipped with a common conjunction.
Qui domum possidebat, hortum vicinum aedibus comparavit ac postea domum legavit. si hortum domus causa comparavit, ut amoeniorem domum ac salubriorem possideret, aditumque in eum per domum habuit et aedium hortus additamentum fuit, domus legato continebitur.
He who possessed a house purchased a garden adjoining the house and afterwards bequeathed the house. If he purchased the garden for the sake of the house, so that he might possess a more pleasant and more healthful house, and had access to it through the house, and the garden was an additament to the house, it will be included in the legacy of the house.
" si mihi maevia et negidia filiae meae heredes erunt, tunc maevia e medio sumito praecipito sibique habeto fundos meos illum et illum cum casulis et custodibus omnium horum fundorum et cum his omnibus agris, qui ad coniunctionem cuiusque eorum fundorum emptione vel quolibet alio casu optigerint, item cum omnibus mancipiis pecoribus iumentis ceterisque universis speciebus, quae in isdem fundis quove eorum cum moriar erunt, uti optimi maximique sunt utique eos in diem mortis meae possedi et, ut plenius dicam, ita uti cluduntur". in fundo autem uno ex his, qui praelegati sunt, tabularium est, in quo sunt et complurium mancipiorum emptiones, sed et fundorum et variorum contractuum instrumenta, praeterea et nomina debitorum: quaero, an instrumenta communia sint. respondi secundum ea quae proponuntur instrumenta emptionum, item debitorum, quae in fundo praelegato remanserunt, non videri legato contineri.
" if Maevia and Negidia, my daughters, shall be my heirs, then let Maevia take out of the common stock by preemption and keep for herself my estates this one and that one, with the little cottages and the keepers of all these estates, and with all those fields which, for the appurtenance of each of those estates, shall have fallen by purchase or by any other event; likewise with all slaves, herds, beasts of burden, and all other universal kinds of property which will be on the same estates or on any of them when I die, as being of the best and greatest, assuredly as I possessed them on the day of my death, and, to speak more fully, just as they are enclosed." Moreover, on one of the estates among those that have been pre-legated there is a record-office, in which there are also deeds of purchase of several slaves, and likewise instruments of estates and of various contracts, and furthermore accounts of debtors: I ask whether the instruments are common. I replied that, according to the matters proposed, the instruments of purchases, likewise of debts, which remained on the pre-legacy estate, do not seem to be contained in the legacy.
His verbis domibus legatis: " fidei heredum meorum committo, uti sinant eum habere domus meas, in quibus habito, nullo omnino excepto cum omni instrumento et repositis omnibus" non videri testatorem de pecunia numerata aut instrumentis debitorum sensisse.
With houses bequeathed by these words: "I commit to the fidelity of my heirs, that they allow him to have my houses, in which I dwell, with nothing at all excepted, together with all the instrument and all things laid away," the testator is not considered to have had in mind counted money (cash) or the instruments of debts.
Lucius titius testamento suo cavit, ne ullo modo praedium suburbanum aut domum heres alienaret: filia eius heres scripta heredem reliquit filiam suam, quae easdem res diu possedit et decedens extraneos heredes instituit: quaesitum est, an praedia pertinerent ad iuliam, quae lucium titium testatorem patruum maiorem habuit. respondit nihil proponi contra voluntatem defuncti factum, quo minus ad heredem pertinerent, cum hoc nudum praeceptum est.
Lucius Titius in his testament provided that in no way should the heir alienate the suburban estate or the house: his daughter, instituted as heir, left as heir her own daughter, who possessed the same things for a long time and, when dying, appointed strangers as heirs: it was asked whether the estates belonged to Julia, who had Lucius Titius the testator as her great-uncle on the father’s side. He answered that nothing is presented as having been done contrary to the will of the deceased to prevent their pertaining to the heir, since this is a bare precept.
" semproniae mulieri meae reddi iubeo ab heredibus meis centum aureos, quos mutuos acceperam". quaesitum est, si hanc pecuniam ut debitam sempronia petens victa sit, an fideicommissum peti possit. respondit secundum ea quae proponerentur posse ex causa fideicommissi peti, quod apparuisset non fuisse ex alia causa debitum.
" I order that one hundred aurei, which I had received as a loan, be returned to my wife Sempronia by my heirs". it was asked, if Sempronia, seeking this money as owed, has been defeated, whether the fideicommissum can be sought. he replied that, according to the things that were put forward, it could be sought on the ground of a fideicommissum, because it had appeared that it was not owed from any other cause.
Quidam praedia legavit libertis adiectis his verbis: " uti a me possessa sunt et quaecumque ibi erunt, cum moriar": quaesitum est, an mancipia, quae in his praediis morata in diem mortis patris familias fuerunt operis rustici causa vel alterius officii, ceteraeque res, quae ibi fuerunt, ad legatarios pertineant. respondit pertinere.
A certain man bequeathed estates to his freedmen, with these words added: "as they have been possessed by me and whatever things will be there when I die": it was asked whether the slaves, who had remained on these estates up to the day of the paterfamilias’s death for the sake of rustic work or of some other duty, and the other things which were there, pertain to the legatees. He responded that they do pertain.
Collegio fabrorum fundum cum silvis, quae ei cedere solent, uti optimus maximusque esset, legavit. quaero, an ea quoque, quae in diem mortis ibi fuissent, id est faenum pabulum palea, item machina, vasa vinaria, id est cuppae et dolia, quae in cella defixa sunt, item granaria legata essent. respondit non recte peti, quod legatum non esset.
He bequeathed to the college of craftsmen (smiths) a farm with the woods that are accustomed to accede to it, that it be in the best and greatest condition. I ask whether those things also which had been there on the day of death—namely hay, fodder, chaff—likewise the machine, the wine-vessels, that is, tubs and jars, which are fixed in the cellar, and likewise the granaries—were bequeathed. He responded that it is not rightly sought, since it was not bequeathed.
Ex parte dimidia heredi instituto per praeceptionem fundum legavit et ab eo ita petit: " peto, uti velis coheredem tibi recipere in fundo iuliano meo, quem amplius te recipere iussi, clodium verum nepotem meum, cognatum tuum". quaero, an pars fundi ex causa fideicommissi nepoti deberetur. respondit deberi.
From the half share he bequeathed the farm to the instituted heir by preemption, and from him he thus asks: " I ask that you be willing to admit as your coheir, in respect of my Julian farm, which I ordered you to receive in addition, Clodius, truly my grandson, your kinsman." I ask whether a part of the farm would be owed to the grandson by reason of the fideicommissum. He answered that it is owed.
Is, qui complures libertos relinquebat, tribus ex his fundum legaverat et petierat, ut curarent, ne de nomine suo exiret. quaerebatur, ex tribus qui primus moriebatur utrum utrique vel alteri ex his, qui sibi in legato coniuncti essent, relinquere partem suam deberet, an possit vel alii colliberto suo eam relinquere. placuit, etsi voluntatis quaestio esset, satis illum facturum etsi alii reliquisset.
He, who was leaving several freedmen, had bequeathed an estate to three of them and had requested that they take care that it not pass out of his name. It was asked, as between the three, the one who died first, whether he ought to leave his share to both or to one of those who were conjoined with him in the legacy, or whether he could even leave it to another fellow‑freedman of his. It was decided that, although it was a question of intention, he would sufficiently comply even if he had left it to another.
" quisquis mihi heres erit, damnas esto dare fideique eius committo, uti det, quantas summas dictavero dedero". aristo res quoque corporales contineri ait, ut praedia mancipia vestem argentum, quia et hoc verbum " quantas" non ad numeratam dumtaxat pecuniam referri ex dotis relegatione et stipulationibus emptae hereditatis apparet et " summae" appellatio similiter accipi deberet, ut in his argumentis quae relata essent ostenditur. voluntatem praeterea defuncti, quae maxime in fideicommissis valeret, ei sententiae suffragari: neque enim post eam praefationem adiecturum testatorem fuisse res corporales, si dumtaxat pecuniam numeratam praestari voluisset.
" whoever shall be my heir, let him be bound to give, and I commit it to his good faith that he give, as many sums as I shall have dictated or given." Aristo says that corporeal things too are included, such as estates, slaves, clothing, silver, because this word " how many" is not referred only to counted money, as appears from the relegation of a dowry and from the stipulations of a purchased inheritance; and the appellation " sums" ought similarly to be taken, as is shown in those arguments that were adduced. Moreover, the intention of the deceased—which has the greatest force in fideicommissa—supports that view: for the testator would not, after that preface, have gone on to add corporeal things, if he had wished only counted money to be furnished.
Si titius ex parte heres rogatus sit maevio hereditatem restituere et rursus titio coheres eius rogatus sit partem suam aut partis partem restituere, an hanc quoque partem, quam a coherede ex fideicommisso recipit, titius restituere maevio debeat, divus antoninus consultus rescripsit non debere restituere, quia hereditatis appellatione neque legata neque fideicommissa continentur.
If Titius, an heir as to a share, has been asked to restitute the inheritance to Maev(i)us, and in turn Titius’s coheir has been asked to restitute his share or a part of the share to Titius, whether Titius must also restitute to Maev(i)us this part which he receives from the coheir by way of fideicommissum, the deified Antoninus, when consulted, rescripted that he need not restitute it, because under the appellation “inheritance” neither legacies nor fideicommissa are contained.
Hosidius quidam instituta filia valeriana herede actori suo antiocho data libertate praedia certa et peculium et reliqua relegaverat tam sua quam colonorum: legatarius proferebat manu patris familiae reliquatum et tam suo quam colonorum nomine: item in eadem scriptura adiectum in hunc modum: " item quorum rationem reddere debeat", scilicet quae in condito habuerat pater familias frumenti vini et ceterarum rerum: quae et ipsa libertus petebat et ex reliquis esse dicebat: et apud praesidem optinuerat. ex diverso cum diceretur reliqua colonorum ab eo non peti nec propria, diversam autem causam esse eorum, quae in condito essent, imperator interrogavit partem legatarii: " quaerendi causa pone", inquit, " in condito centiens aureorum esse, quae in usum sumi solerent: diceres totum, quod esset relictum in arca, deberi?" et placuit recte appellasse. a parte legatarii suggestum est quaedam a colonis post mortem patris familias exacta.
A certain Hosidius, with his daughter Valeriana instituted as heir, after granting freedom to his steward Antiochus, had bequeathed to him certain landed estates and a peculium and the outstanding balances, both his own and those of the tenant-farmers: the legatee produced, in the hand of the paterfamilias, an account of the balance due, both in his own name and in that of the tenant-farmers: likewise in the same writing there was added in this manner: "likewise those for which he ought to render an account," namely what the paterfamilias had in the storehouse of grain, wine, and the other things: and these also the freedman was demanding and said were among the arrears; and he had prevailed before the provincial governor. On the other side, since it was being said that the arrears of the tenant-farmers were not to be sought by him, nor those of his own, but that the case was different for the things which were in the storehouse, the emperor questioned the legatee’s party: "for the sake of inquiry, suppose," he said, "that there were 10,000,000 in gold pieces in the storehouse, which were wont to be taken for use: would you say that the whole amount that was left in the chest was owed?" And it was agreed that the appeal had been correctly taken. On the part of the legatee it was submitted that certain sums had been exacted from the tenant-farmers after the death of the paterfamilias.
Si plures gradus sint heredum et scriptum sit " heres meus dato", ad omnes gradus hic sermo pertinet, sicuti haec verba " quisquis mihi heres erit". itaque si quis velit non omnes heredes legatorum praestatione onerare, sed aliquos ex his, nominatim damnare debet.
If there are several degrees of heirs and it is written " my heir shall give", this wording pertains to all the degrees, just as these words " whoever shall be my heir". And so, if someone wishes not to burden all the heirs with the performance of legacies, but only some of them, he ought to charge them by name.
Servis urbanis legatis quidam urbana mancipia non loco, sed opere separant, ut, licet in praediis rusticis sint, tamen si opus rusticum non faciant, urbani videntur. dicendum autem est, quod urbani intellegendi sunt, quos pater familias inter urbanos adnumerare solitus sit: quod maxime ex libellis familiae, item cibariis deprehendi poterit.
When urban slaves are bequeathed, some separate urban slaves not by place but by work, so that, although they may be on rustic estates, nevertheless if they do not do rustic work, they seem urban. But it must be said that those are to be understood as urban whom the pater familias was accustomed to reckon among the urban: which can especially be detected from the family booklets, likewise from the ration accounts.
Si alii vernae, alii cursores legati sunt, si quidam et vernae et cursores sint, cursoribus cedent: semper enim species generi derogat. si in specie aut in genere utrique sint, plerumque communicabuntur.
If some are bequeathed as homeborn slaves and others as runners, and if certain ones are both homeborn slaves and runners, they will yield to the runners: for the species always derogates from the genus. If in the specific class or in the generic class they fall under both, for the most part they will be shared.
Duae statuae marmoreae cuidam nominatim, item omne marmor erat legatum: nullam statuam marmoream praeter duas cascellius putat deberi: ofilius trebatius contra. labeo cascellii sententiam probat, quod verum puto, quia duas statuas legando potest videri non putasse in marmore se statuas legare.
Two marble statues had been bequeathed to a certain person by name, and likewise all the marble: cascellius thinks that no marble statue beyond the two is owed: ofilius and trebatius, the contrary. labeo approves cascellius’s opinion, which I think true, because by bequeathing two statues he can be seen not to have thought that, under marble, he was bequeathing statues.
" uxori meae vestem, mundum muliebrem, ornamenta omnia, aurum argentum quod eius causa factum paratumque esset omne do lego". trebatius haec verba " quod eius causa factum paratumque est", ad aurum et argentum dumtaxat referri putat, proculus ad omnia, quod et verum est.
" to my wife clothing, the women’s toilet (mundus muliebris), all ornaments, all the gold and silver which had been made and prepared on her account, I give and bequeath." trebatius thinks that these words, " which has been made and prepared on her account," are to be referred only to the gold and silver; proculus to everything, which is indeed true.
Cui corinthia vasa legata essent, en baseis quoque eorum vasorum collocandorum causa paratas deberi trebatius respondit. labeo autem id non probat, si eas baseis testator numero vasorum habuit. proculus vero recte ait, si aeneae quidem sint, non autem corinviae, non deberi.
To whom Corinthian vessels had been bequeathed, Trebatius replied that the bases as well, prepared for the purpose of placing those vessels, are owed. But Labeo does not approve this, if the testator counted those bases in the number of the vessels. Proculus, however, rightly says that, if they are of bronze indeed, but not Corinthian, they are not owed.
Qui habebat in provincia, ex qua oriundus erat, propria praedia et alia pignori sibi data ob debita, codicillis ita scripsit: " ty glukutaty mou patridi boulomai eis ta mery autys dovynai aforizw auty xwria panta, hosa en suria kektymai, sun pasin tois enousin boskymasin doulois karpois apovetois kataskeuais pasais". quaesitum est, an etiam praedia, quae pignori habuit testator, patriae suae reliquisse videatur. respondit secundum ea quae proponerentur non videri relicta, si modo in proprium patrimonium ( quod fere cessante debitore fit) non sint redacta.
He who had in the province from which he was of origin his own estates, and others given to him in pledge on account of debts, wrote thus in his codicils: "To my sweetest fatherland I wish to give; I set apart for her all the estates that I possess in Syria, together with all things belonging to them—grazing-animals, slaves, fruits and revenues, and all constructions/improvements." It was asked whether he also seems to have bequeathed to his fatherland the estates which the testator held in pledge. He responded that, according to the matters proposed, they do not seem to have been left, provided only that they had not been reduced into his own patrimony (which generally happens upon the debtor’s default).
" peto fundum meum ita, uti est, alumnae meae dari". quaesitum est, an fundo et reliqua colonorum et mancipia, si qua mortis tempore in eo fundo fuerint, debeantur. respondit reliqua quidem colonorum non esse legata, cetera vero videri illis verbis " ita uti est" data.
" I ask that my estate, as it is, be given to my foster-daughter (alumna)". It was asked whether, along with the estate, the arrears of the tenant-farmers and the slaves, if any were on that estate at the time of death, are due. He replied that the arrears indeed of the tenant-farmers are not bequeathed, but that the rest seem to have been given by those words " as it is".
His verbis legavit: " uxori meae lateralia mea viatoria et quidquid in his conditum erit, quae membranulis mea manu scriptis continebuntur nec ea sint exacta cum moriar, licet in rationes meas translata sint et cautiones ad actorem meum transtulerim". hic chirographa debitorum et pecuniam, cum esset profecturus in urbem, in lateralibus condidit et chirographis exactis quam pecunia erogata reversus in patriam post biennium alia chirographa praediorum, quae postea comparaverat, et pecuniam in lateralia condidit. quaesitum est, an ea tantum videatur nomina ei legasse, quae postea reversus in hisdem ^ isdem^ lateralibus condidit. respondit secundum ea quae proponerentur non deberi quae mortis tempore in his lateralibus essent et membranis manu eius scriptis continerentur.
With these words he bequeathed: " to my wife my traveling side-cases (lateralia) and whatever shall be placed in them, which will be contained on little parchments written by my hand, and let these not be exacted when I die, although they have been transferred into my accounts and although I have transferred the bonds (cautiones) to my agent (actor)". Here, when he was about to set out to the city, he placed in the side-cases the chirographs of debtors and money; and, the chirographs having been collected and the money expended, when he returned to his homeland after two years he placed other chirographs of estates which he had afterward purchased, and money, into the side-cases. It was asked whether he seems to have bequeathed to her only the claims (nomina) which, after returning, he placed in the same hisdem ^ isdem^ side-cases. He answered that, according to what was proposed, there is not owed those which at the time of death were in these side-cases and were contained on parchments written by his hand.
he likewise asked whether, since he had placed the purchases of the estates in the same ^ the same ^ lateralia, the estates also cede under the legacy. he responded that it does not indeed manifestly appear what he had thought concerning the estates; but if he kept the purchases there with the intention that, these being given to the legatee, the proprietorship of the estates be furnished, it can be defended that the estates too are owed.
Pater familias ita legavit: " lances numero duas leves, quas de sigillaribus emi, dari volo": is de sigillaribus leves quidem non emerat, lances autem emptas habebat, et dictaverat testamentum ante triduum quam moreretur: quaesitum est, an hae lances, quas emptas de sigillaribus habuit, legato cederent, cum nullas alias de sigillaribus emerit nec legaverit. respondit secundum ea quae proponerentur deberi eas, quas de sigillaribus emisset.
The paterfamilias bequeathed thus: " two light platters in number, which I bought at the Sigillaria, I wish to be given": he had not, in fact, bought light ones at the Sigillaria, but he did have platters that had been purchased, and he had dictated the testament three days before he died: the question was asked whether those platters, which he had as purchased from the Sigillaria, would accrue to the legacy, since he had bought no other ones from the Sigillaria nor had he bequeathed any. He replied that, according to the matters proposed, those are owed which he had bought at the Sigillaria.
Alumno praecepit militiam his verbis: " sempronio alumno meo illud et illud: et, cum per aetatem licebit, militiam illam cum introitu comparari volo: huic quoque omnia integra". quaesitum est, si sempronius eam militiam sibi comparaverit, an pretium eius, sed et id, quod pro introitu erogari solet, ex causa fideicommissi ab heredibus consequi possit. respondit secundum ea quae proponerentur posse.
He enjoined a military post for his alumnus with these words: " sempronius, my alumnus, this and that: and, when by age it will be permitted, I want that military post to be procured with the entry-fee (introitus): for this one also everything intact". It was asked whether, if sempronius acquired that military post for himself, he could obtain from the heirs, on the ground of the fideicommissum, the price of it, and also that which is accustomed to be expended for the entrance-fee. He responded that, according to the things that were proposed, he could.
Idem testator liberto militiam his verbis legavit: " seio liberto meo militiam do lego illam", quam militiam et testator habuit: quaesitum est, an onera omnia et introitus militiae ab herede sint danda. respondit danda.
The same testator bequeathed to his freedman a military service with these words: "seio liberto meo militiam do lego illam", which military service the testator himself also had: it was asked whether all the burdens and the entry into the service ought to be provided by the heir. he answered: they are to be provided.
Si pater exheredato filio substituit heredem extraneum, deinde ille extraneus hunc filium heredem instituit et heres factus intra pubertatem decedat, puto a substituto ei filio omnino legata praestari non deberi, quia non directo, sed per successionem ad filium hereditas patris pervenit.
If a father, having disinherited his son, appoints a stranger as substitute heir, then that stranger institutes this son as heir and, having become heir, dies before puberty, I think that legacies are by no means owed to be furnished by the substitute to that son, because the father’s inheritance reached the son not directly, but through succession.
Plus ego in fratre, qui, cum heres exstitisset patri, exheredatum fratrem heredem instituit, accepi substitutum eius legatum non debere ac ne quidem si intestato fratri successerit, quia non principaliter, sed per successionem bona fratris ad eum pervenerunt.
Further, I, in the case of a brother who, when he had become heir to his father, appointed as heir his brother who had been disinherited, have held that his substitute does not owe the legacy, and not even if he has succeeded to his brother intestate, because the brother’s goods came to him not principally, but through succession.
Si filius ex uncia heres institutus sit et ab eo legata data sint, habeat et substitutum, deinde commisso edicto per alium filium accepit partis dimidiae bonorum possessionem: substitutus eius utrum ex uncia legata praestat an vero ex semisse? et verius est ex semisse sed ex uncia omnibus ex reliquis liberis et parentibus.
If a son has been instituted heir for a twelfth, and legacies have been given by him, and he also has a substitute, then, the edict having been put into effect, another son received possession of the goods (bonorum possessio) for a half share: does his substitute discharge the legacies from the twelfth or rather from the half? And the truer view is: from the half; but from the twelfth as against all the remaining children and the parents.
Contra quoque si ex dodrante institutus commisso edicto semissem acceperit bonorum possessionem, ex semisse tantum legata substitutus debebit: quo modo enim augentur ubi amplius est in bonorum possessione, sic et ubi minus est, deducitur.
Conversely also, if, though instituted for three-quarters, once the edict has been set in motion he has received possession of the goods for a half, he will owe the legacies only out of the half: for just as they are augmented where there is more in the possession of the goods, so too where there is less, it is deducted.