Justinian•DIGESTA
Abbo Floriacensis1 work
Abelard3 works
Addison9 works
Adso Dervensis1 work
Aelredus Rievallensis1 work
Alanus de Insulis2 works
Albert of Aix1 work
HISTORIA HIEROSOLYMITANAE EXPEDITIONIS12 sections
Albertano of Brescia5 works
DE AMORE ET DILECTIONE DEI4 sections
SERMONES4 sections
Alcuin9 works
Alfonsi1 work
Ambrose4 works
Ambrosius4 works
Ammianus1 work
Ampelius1 work
Andrea da Bergamo1 work
Andreas Capellanus1 work
DE AMORE LIBRI TRES3 sections
Annales Regni Francorum1 work
Annales Vedastini1 work
Annales Xantenses1 work
Anonymus Neveleti1 work
Anonymus Valesianus2 works
Apicius1 work
DE RE COQUINARIA5 sections
Appendix Vergiliana1 work
Apuleius2 works
METAMORPHOSES12 sections
DE DOGMATE PLATONIS6 sections
Aquinas6 works
Archipoeta1 work
Arnobius1 work
ADVERSVS NATIONES LIBRI VII7 sections
Arnulf of Lisieux1 work
Asconius1 work
Asserius1 work
Augustine5 works
CONFESSIONES13 sections
DE CIVITATE DEI23 sections
DE TRINITATE15 sections
CONTRA SECUNDAM IULIANI RESPONSIONEM2 sections
Augustus1 work
RES GESTAE DIVI AVGVSTI2 sections
Aurelius Victor1 work
LIBER ET INCERTORVM LIBRI3 sections
Ausonius2 works
Avianus1 work
Avienus2 works
Bacon3 works
HISTORIA REGNI HENRICI SEPTIMI REGIS ANGLIAE11 sections
Balde2 works
Baldo1 work
Bebel1 work
Bede2 works
HISTORIAM ECCLESIASTICAM GENTIS ANGLORUM7 sections
Benedict1 work
Berengar1 work
Bernard of Clairvaux1 work
Bernard of Cluny1 work
DE CONTEMPTU MUNDI LIBRI DUO2 sections
Biblia Sacra3 works
VETUS TESTAMENTUM49 sections
NOVUM TESTAMENTUM27 sections
Bigges1 work
Boethius de Dacia2 works
Bonaventure1 work
Breve Chronicon Northmannicum1 work
Buchanan1 work
Bultelius2 works
Caecilius Balbus1 work
Caesar3 works
COMMENTARIORUM LIBRI VII DE BELLO GALLICO CUM A. HIRTI SUPPLEMENTO8 sections
COMMENTARIORUM LIBRI III DE BELLO CIVILI3 sections
LIBRI INCERTORUM AUCTORUM3 sections
Calpurnius Flaccus1 work
Calpurnius Siculus1 work
Campion8 works
Carmen Arvale1 work
Carmen de Martyrio1 work
Carmen in Victoriam1 work
Carmen Saliare1 work
Carmina Burana1 work
Cassiodorus5 works
Catullus1 work
Censorinus1 work
Christian Creeds1 work
Cicero3 works
ORATORIA33 sections
PHILOSOPHIA21 sections
EPISTULAE4 sections
Cinna Helvius1 work
Claudian4 works
Claudii Oratio1 work
Claudius Caesar1 work
Columbus1 work
Columella2 works
Commodianus3 works
Conradus Celtis2 works
Constitutum Constantini1 work
Contemporary9 works
Cotta1 work
Dante4 works
Dares the Phrygian1 work
de Ave Phoenice1 work
De Expugnatione Terrae Sanctae per Saladinum1 work
Declaratio Arbroathis1 work
Decretum Gelasianum1 work
Descartes1 work
Dies Irae1 work
Disticha Catonis1 work
Egeria1 work
ITINERARIUM PEREGRINATIO2 sections
Einhard1 work
Ennius1 work
Epistolae Austrasicae1 work
Epistulae de Priapismo1 work
Erasmus7 works
Erchempert1 work
Eucherius1 work
Eugippius1 work
Eutropius1 work
BREVIARIVM HISTORIAE ROMANAE10 sections
Exurperantius1 work
Fabricius Montanus1 work
Falcandus1 work
Falcone di Benevento1 work
Ficino1 work
Fletcher1 work
Florus1 work
EPITOME DE T. LIVIO BELLORUM OMNIUM ANNORUM DCC LIBRI DUO2 sections
Foedus Aeternum1 work
Forsett2 works
Fredegarius1 work
Frodebertus & Importunus1 work
Frontinus3 works
STRATEGEMATA4 sections
DE AQUAEDUCTU URBIS ROMAE2 sections
OPUSCULA RERUM RUSTICARUM4 sections
Fulgentius3 works
MITOLOGIARUM LIBRI TRES3 sections
Gaius4 works
Galileo1 work
Garcilaso de la Vega1 work
Gaudeamus Igitur1 work
Gellius1 work
Germanicus1 work
Gesta Francorum10 works
Gesta Romanorum1 work
Gioacchino da Fiore1 work
Godfrey of Winchester2 works
Grattius1 work
Gregorii Mirabilia Urbis Romae1 work
Gregorius Magnus1 work
Gregory IX5 works
Gregory of Tours1 work
LIBRI HISTORIARUM10 sections
Gregory the Great1 work
Gregory VII1 work
Gwinne8 works
Henry of Settimello1 work
Henry VII1 work
Historia Apolloni1 work
Historia Augusta30 works
Historia Brittonum1 work
Holberg1 work
Horace3 works
SERMONES2 sections
CARMINA4 sections
EPISTULAE5 sections
Hugo of St. Victor2 works
Hydatius2 works
Hyginus3 works
Hymni1 work
Hymni et cantica1 work
Iacobus de Voragine1 work
LEGENDA AUREA24 sections
Ilias Latina1 work
Iordanes2 works
Isidore of Seville3 works
ETYMOLOGIARVM SIVE ORIGINVM LIBRI XX20 sections
SENTENTIAE LIBRI III3 sections
Iulius Obsequens1 work
Iulius Paris1 work
Ius Romanum4 works
Janus Secundus2 works
Johann H. Withof1 work
Johann P. L. Withof1 work
Johannes de Alta Silva1 work
Johannes de Plano Carpini1 work
John of Garland1 work
Jordanes2 works
Julius Obsequens1 work
Junillus1 work
Justin1 work
HISTORIARVM PHILIPPICARVM T. POMPEII TROGI LIBRI XLIV IN EPITOMEN REDACTI46 sections
Justinian3 works
INSTITVTIONES5 sections
CODEX12 sections
DIGESTA50 sections
Juvenal1 work
Kepler1 work
Landor4 works
Laurentius Corvinus2 works
Legenda Regis Stephani1 work
Leo of Naples1 work
HISTORIA DE PRELIIS ALEXANDRI MAGNI3 sections
Leo the Great1 work
SERMONES DE QUADRAGESIMA2 sections
Liber Kalilae et Dimnae1 work
Liber Pontificalis1 work
Livius Andronicus1 work
Livy1 work
AB VRBE CONDITA LIBRI37 sections
Lotichius1 work
Lucan1 work
DE BELLO CIVILI SIVE PHARSALIA10 sections
Lucretius1 work
DE RERVM NATVRA LIBRI SEX6 sections
Lupus Protospatarius Barensis1 work
Macarius of Alexandria1 work
Macarius the Great1 work
Magna Carta1 work
Maidstone1 work
Malaterra1 work
DE REBUS GESTIS ROGERII CALABRIAE ET SICILIAE COMITIS ET ROBERTI GUISCARDI DUCIS FRATRIS EIUS4 sections
Manilius1 work
ASTRONOMICON5 sections
Marbodus Redonensis1 work
Marcellinus Comes2 works
Martial1 work
Martin of Braga13 works
Marullo1 work
Marx1 work
Maximianus1 work
May1 work
SUPPLEMENTUM PHARSALIAE8 sections
Melanchthon4 works
Milton1 work
Minucius Felix1 work
Mirabilia Urbis Romae1 work
Mirandola1 work
CARMINA9 sections
Miscellanea Carminum42 works
Montanus1 work
Naevius1 work
Navagero1 work
Nemesianus1 work
ECLOGAE4 sections
Nepos3 works
LIBER DE EXCELLENTIBUS DVCIBUS EXTERARVM GENTIVM24 sections
Newton1 work
PHILOSOPHIÆ NATURALIS PRINCIPIA MATHEMATICA4 sections
Nithardus1 work
HISTORIARUM LIBRI QUATTUOR4 sections
Notitia Dignitatum2 works
Novatian1 work
Origo gentis Langobardorum1 work
Orosius1 work
HISTORIARUM ADVERSUM PAGANOS LIBRI VII7 sections
Otto of Freising1 work
GESTA FRIDERICI IMPERATORIS5 sections
Ovid7 works
METAMORPHOSES15 sections
AMORES3 sections
HEROIDES21 sections
ARS AMATORIA3 sections
TRISTIA5 sections
EX PONTO4 sections
Owen1 work
Papal Bulls4 works
Pascoli5 works
Passerat1 work
Passio Perpetuae1 work
Patricius1 work
Tome I: Panaugia2 sections
Paulinus Nolensis1 work
Paulus Diaconus4 works
Persius1 work
Pervigilium Veneris1 work
Petronius2 works
Petrus Blesensis1 work
Petrus de Ebulo1 work
Phaedrus2 works
FABVLARVM AESOPIARVM LIBRI QVINQVE5 sections
Phineas Fletcher1 work
Planctus destructionis1 work
Plautus21 works
Pliny the Younger2 works
EPISTVLARVM LIBRI DECEM10 sections
Poggio Bracciolini1 work
Pomponius Mela1 work
DE CHOROGRAPHIA3 sections
Pontano1 work
Poree1 work
Porphyrius1 work
Precatio Terrae1 work
Priapea1 work
Professio Contra Priscillianum1 work
Propertius1 work
ELEGIAE4 sections
Prosperus3 works
Prudentius2 works
Pseudoplatonica12 works
Publilius Syrus1 work
Quintilian2 works
INSTITUTIONES12 sections
Raoul of Caen1 work
Regula ad Monachos1 work
Reposianus1 work
Ricardi de Bury1 work
Richerus1 work
HISTORIARUM LIBRI QUATUOR4 sections
Rimbaud1 work
Ritchie's Fabulae Faciles1 work
Roman Epitaphs1 work
Roman Inscriptions1 work
Ruaeus1 work
Ruaeus' Aeneid1 work
Rutilius Lupus1 work
Rutilius Namatianus1 work
Sabinus1 work
EPISTULAE TRES AD OVIDIANAS EPISTULAS RESPONSORIAE3 sections
Sallust10 works
Sannazaro2 works
Scaliger1 work
Sedulius2 works
CARMEN PASCHALE5 sections
Seneca9 works
EPISTULAE MORALES AD LUCILIUM16 sections
QUAESTIONES NATURALES7 sections
DE CONSOLATIONE3 sections
DE IRA3 sections
DE BENEFICIIS3 sections
DIALOGI7 sections
FABULAE8 sections
Septem Sapientum1 work
Sidonius Apollinaris2 works
Sigebert of Gembloux3 works
Silius Italicus1 work
Solinus2 works
DE MIRABILIBUS MUNDI Mommsen 1st edition (1864)4 sections
DE MIRABILIBUS MUNDI C.L.F. Panckoucke edition (Paris 1847)4 sections
Spinoza1 work
Statius3 works
THEBAID12 sections
ACHILLEID2 sections
Stephanus de Varda1 work
Suetonius2 works
Sulpicia1 work
Sulpicius Severus2 works
CHRONICORUM LIBRI DUO2 sections
Syrus1 work
Tacitus5 works
Terence6 works
Tertullian32 works
Testamentum Porcelli1 work
Theodolus1 work
Theodosius16 works
Theophanes1 work
Thomas à Kempis1 work
DE IMITATIONE CHRISTI4 sections
Thomas of Edessa1 work
Tibullus1 work
TIBVLLI ALIORVMQUE CARMINVM LIBRI TRES3 sections
Tünger1 work
Valerius Flaccus1 work
Valerius Maximus1 work
FACTORVM ET DICTORVM MEMORABILIVM LIBRI NOVEM9 sections
Vallauri1 work
Varro2 works
RERVM RVSTICARVM DE AGRI CVLTURA3 sections
DE LINGVA LATINA7 sections
Vegetius1 work
EPITOMA REI MILITARIS LIBRI IIII4 sections
Velleius Paterculus1 work
HISTORIAE ROMANAE2 sections
Venantius Fortunatus1 work
Vico1 work
Vida1 work
Vincent of Lérins1 work
Virgil3 works
AENEID12 sections
ECLOGUES10 sections
GEORGICON4 sections
Vita Agnetis1 work
Vita Caroli IV1 work
Vita Sancti Columbae2 works
Vitruvius1 work
DE ARCHITECTVRA10 sections
Waardenburg1 work
Waltarius3 works
Walter Mapps2 works
Walter of Châtillon1 work
William of Apulia1 work
William of Conches2 works
William of Tyre1 work
HISTORIA RERUM IN PARTIBUS TRANSMARINIS GESTARUM24 sections
Xylander1 work
Zonaras1 work
Dig. 33.3.0. De servitute legata.
33.2.0. On use and on usufruct and income (rent) and habitation and work granted by legacy or by fideicommissum.
Dig. 33.3.0. On a servitude bequeathed.
Dig. 33.6.0. De tritico vino vel oleo legato.
33.5.0. On an option or election bequeathed.
Dig. 33.6.0. On wheat, wine, or oil bequeathed.
33.8.0. On the peculium bequeathed.
Dig. 33.9.0. On provisions bequeathed
Dig.
In annos singulos heres damnatus sinere me frui fundo si initio anni, quo colere deberem, moram fecerit, licet postea patiatur, quia cultura sim exclusus, tamen totius anni nomine mihi tenebitur: quemadmodum si diurnas operas stichi dare damnatus non a mane sed a sexta diei hora det, totius diei nomine tenetur.
For each several year, if an heir adjudged to allow me to enjoy the estate has made delay at the beginning of the year in which I ought to cultivate, although he later permits, yet because I have been excluded from cultivation, he will be held to me for the whole year’s account; just as, if one condemned to give the daylight labors of Stichus were to give them not from morning but from the sixth hour of the day, he is held for the whole day’s account.
Sed si adiectum " pensionibus inaequis", inaequales debebuntur: quae ergo debeantur, videamus. et puto eas deberi ( nisi specialiter testator electionem heredi dedit), quas vir bonus fuerit arbitratus, ut pro facultatibus defuncti et depositione patrimonii debeantur.
But if "with unequal installments" is added, unequal ones will be owed: what, then, should be owed, let us see. And I think those are owed (unless the testator specifically gave the choice to the heir) which a good man would have adjudged, so that they be owed in proportion to the means of the deceased and the disbursement of the estate.
Quid si ita " pensionibus, quas putaverit legatarius?" an totum ^ tostum^ petere possit, videamus. et puto totum non petendum simul, sicut et in heredis electione. fieri enim pensiones debere testator voluit, quantitates dumtaxat pensionum in arbitrio heredis aut legatarii contulit.
What if it is thus: " by installments, as the legatee shall think?" whether he can demand the whole ^ tostum^, let us see. And I think the whole is not to be demanded at once, just as also in the heir’s election. For the testator wished installments to be made, and he entrusted the quantities only of the installments to the discretion of the heir or of the legatee.
Si in singulos annos alicui legatum sit, sabinus, cuius sententia vera est, plura legata esse ait et primi anni purum, sequentium condicionale: videri enim hanc inesse condicionem " si vivat" et ideo mortuo eo ad heredem legatum non transire.
If a legacy be bequeathed to someone for each single year, Sabinus, whose opinion is true, says that there are several legacies, and that the first year’s is pure, those of the following years conditional: for this condition seems to be contained, “if he live,” and therefore, he having died, the legacy does not pass to the heir.
"a vobis quoque, ceteri heredes, peto, ut uxori meae praestetis, quoad viveret, annuos decem aureos". uxor supervixit marito quinquennio et quattuor mensibus: quaero, an heredibus eius sexti anni legatum integrum debeatur. modestinus respondit integri sexti anni legatum deberi.
"I also ask from you, the other heirs, that you provide to my wife, so long as she should live, ten aurei annually." The wife outlived the husband by five years and four months: I ask whether the legacy of the sixth year is owed in full to her heirs. modestinus replied that the legacy of the sixth year is owed in full.
Annuam pecuniam ad ludos civitati reliquit, quibus praesidere heredes voluit: successores heredum negant se debere, quasi testator tamdiu praestari voluisset, quamdiu praesiderent heredes: quaero igitur, an, cum praesidendi mentionem fecerit, ad tempus fideicommissum an perpetuo praestari voluerit. modestinus respondit fideicommissum quotannis in perpetuum rei publicae praestandum esse.
he left an annual sum of money to the city for the games, over which he wished the heirs to preside: the successors of the heirs deny that they are bound, as though the testator had wished it to be furnished only so long as the heirs should preside: I therefore ask whether, since he made mention of presiding, he wished the fideicommissum to be furnished for a time or in perpetuity. modestinus replied that the fideicommissum must be furnished yearly in perpetuity to the commonwealth.
Quintus mucius ait: si quis in testamento ita scripsit: "filii filiaeque meae ibi sunto, ubi eos mater sua esse volet, eisque heres meus in annos singulos inque pueros puellasque singulas damnas esto dare cibarii nomine aureos decem": si tutores eam pecuniam dare nolunt ei, apud quem pueri atque puellae sunt, nihil est, quod ex testamento agere possit: nam ea res eo pertinet, uti tutores sciant, quae voluntas testatoris fuit, uti possint eam pecuniam sine periculo dare. pomponius. in testamentis quaedam scribuntur, quae ad auctoritatem dumtaxat scribentis referuntur nec obligationem pariunt.
Quintus Mucius says: if someone wrote thus in a testament: "let my sons and daughters be where their mother will wish them to be, and let my heir be bound to give, in each year and to each boy and each girl, ten gold pieces by way of provisions": if the guardians are unwilling to give that money to him with whom the boys and girls are, there is nothing that he can bring an action for from the testament: for this matter pertains to this, that the guardians may know what the testator's will was, so that they can give that money without danger. pomponius. in testaments certain things are written which relate only to the authority of the writer and do not beget an obligation.
but these are of such a kind. if i appoint you sole heir and write that you are to make a monument for me with a fixed sum of money: for that writing admits no obligation, but for the sake of preserving my authority you can, if you wish, do it. it is otherwise than if, a coheir having been given to you, i had written thus: for whether i have imposed the charge upon you alone to make the monument, your coheir will be able to bring an action with you for dividing the inheritance (familiae herciscundae), that you do it, since it is of interest to him; indeed, even if both of you have been ordered to do this, you will have an action against one another.
to the authority of the writer this also pertains, when someone has ordered images to be set up in a municipality: for if he did this not for the sake of the honor of the municipality, but for his own, an action on that account lies to no one. and so this writing of Quintus Mucius: "let my children be there where their mother wishes them to be" produces no obligation, but will pertain to preserving the authority of the deceased, that they be where he has directed. nor, however, must his will or order always be preserved, for example, if the praetor has been informed that it is not expedient for the ward to remain where the father has ordered, on account of a defect which the father perhaps did not know to exist in those persons with whom he ordered him to stay.
but if, however, for their rations ten aurei have been left for each year, whether by this wording are designated those with whom the mother may have wished the wards to remain, or if we take this wording so that that legacy is owed to the sons themselves, it will be effective; for it is more likely that she appears to have done this out of provision for her sons. and in all matters where the authority of the testator alone is concerned, it is neither in every way to be spurned nor in every way to be observed. but by the intervention of a judge all these things ought, if they are not borne toward a shameful cause, to be brought to effect.
In singulos annos relictum legatum simile est usui fructui, cum morte finiatur. sane capitis deminutione non finitur, cum usus fructus finiatur: et usus fructus ita legari potest: "titio usum fructum fundi lego et quotiensque capite minutus erit, eundem usum fructum ei do". illud certe amplius est in hoc legato, quod in ingressu cuiuslibet anni si decesserit legatarius, eius anni legatum heredi suo relinquit: quod in usu fructu non ita est, cum fructuarius, etiamsi maturis fructibus, nondum tamen perceptis decesserit, heredi suo eos fructus non relinquet.
A legacy left for each individual year is similar to a usufruct, since it is terminated by death. Indeed, it is not terminated by capitis deminutio, whereas a usufruct is terminated; and a usufruct can be bequeathed thus: “I bequeath to Titius the usufruct of the estate, and whenever he shall suffer capitis deminutio, I give him the same usufruct.” There is certainly this further advantage in this legacy, that at the beginning of any year, if the legatee has died, he leaves to his heir the legacy of that year; which is not so in a usufruct, since the usufructuary, even if the fruits are ripe, yet if they have not been taken, does not leave those fruits to his heir upon his death.
Fundus, quem pater familias libertis legatorum nomine, quae in annos singulos relinquit, pignus esse voluit, ex causa fideicommissi rei servandae gratia recte petetur. paulus notat: hoc admittendum est et in aliis rebus hereditariis, ut et in eas legatarius mittatur.
The landed estate which the paterfamilias wished to be a pledge for his freedmen, in the name of the legacies which he leaves year by year, may properly be claimed, on the ground of a fideicommissum, for the sake of preserving the property. paulus notes: this is to be admitted also in other hereditary matters, so that the legatee too may be put into possession of them.
"seio amico fidelissimo, si voluerit, sicut meis negotiis interveniebat, eodem modo filiorum meorum intervenire, annuos senos aureos et habitationem qua utitur praestari volo". non ideo minus annua seio pro parte hereditaria viventis filiae deberi placuit, quod ex tribus filiis titiae duo aliis heredibus institutis vita decesserunt, cum tam labor quam pecunia divisionem reciperent.
"To Seius, my most faithful friend, if he should wish, just as he used to intervene in my affairs, to intervene in the same manner in the affairs of my sons, I will that six gold pieces yearly and the residence which he uses be furnished." It was decided that on that account the annual payments are not owed less to Seius for the hereditary share of the daughter who is alive, because out of Titia’s three sons two died, other heirs having been instituted, since both the labor and the money admit of division.
"libertis dari volo quae viva praestabam": et habitatio praestabitur: sumptus iumentorum non debebitur, quem actori domina praestare solita fuit utilitatis suae causa: ideo nec sumptum medicamentorum medicus libertus recte petet, quem ut patronam eiusque familiam curaret, acceptabat.
"I wish to be given to the freedmen what I, while alive, was furnishing": and habitation will be furnished: the expense of pack-animals will not be owed, which the mistress was accustomed to furnish to the steward for the sake of her own utility: therefore neither will the physician freedman rightly demand the expense of medicines, which he used to receive in order that he might care for the patroness and her household.
Gaius seius praedia diversis pagis maeviae et seiae legavit et ita cavit: "praestari autem volo ex praediis potitianis praediis lutatianis annua harundinis milia trecena et salicis mundae annua librarum singula milia": quaero, an id legatum defuncta legataria exstinctum sit. paulus respondit servitutem iure constitutam non videri neque in personam neque in rem: sed fideicommissi petitionem competisse ei, cui praedia lutatiana legata sunt, et ideo, cum annua legata fuerint, mortua legataria finitum legatum videri.
Gaius Seius bequeathed estates in diverse villages of Maevia and Seia and provided thus: "Moreover, I wish to be furnished from the Potitian estates for the Lutatian estates annually three hundred thousand reeds, and of clean willow annually a single thousand pounds": I ask whether that legacy has been extinguished with the legatee deceased. Paulus replied that it does not seem that a servitude was constituted by law, neither in personam nor in rem; but that a petition of fideicommissum belonged to him to whom the Lutatian estates were bequeathed; and therefore, since the legacies were annual, with the legatee dead the legacy is considered to have ended.
Maevia nepotem ex maevio puberem heredem instituit et lucio titio ita legavit: "lucio titio viro bono, cuius obsequio gratias ago, dari volo annuos quamdiu vivat aureos decem, si rebus nepotis mei interveniat omnemque administrationem rerum nepotis mei ad sollicitudinem suam revocaverit". quaero, cum lucius titius aliquo tempore maevii negotia gesserit et per eum non stet, quo minus gerat, publius autem maevius nollet eum administrare, an fideicommissum praestari debeat. respondi, si non propter fraudem aliamve quam iustam causam improbandae operae causa remotus esset a negotiis, quae administrare secundum defuncti voluntatem vellet, percepturum legatum.
maevia instituted as heir her grandson from maevius, of age (pubescent), and bequeathed to lucius titius thus: "to lucius titius, a good man, whose obsequium I give thanks for, I wish ten aurei to be given annually as long as he lives, if he shall intervene in the affairs of my grandson and shall have recalled the whole administration of my grandson’s affairs to his own solicitude." I ask, since lucius titius for some time managed maevius’s business and it was not through him that he failed to manage further, but publius maevius did not wish him to administer, whether the fideicommissum ought to be performed. I answered: if he was not removed from the business for the purpose of disapproving his services on account of fraud or some other just cause, which he was willing to administer according to the will of the deceased, he will take the legacy.
Uxore herede scripta ita cavit: "libertis meis omnibus alimentorum nomine singulis annuos denarios duodecim ab herede dari volo, si ab uxore mea non recesserint". quaero, cum pater familias sua voluntate de civitate difficile profectus sit, ea autem adsidue proficiscatur, an liberti cum ea proficisci debeant. respondi non posse absolute responderi, cum multa oriri possint, quae pro bono sint aestimanda: ideoque huiusmodi varietas viri boni arbitrio dirimenda est. item quaeritur, cum proficiscens eis nihil amplius optulerit ac per hoc eam secuti non sint, an legatum debeatur.
With his wife written as heir, he thus provided: "To all my freedmen, by way of maintenance, I wish twelve denarii annually to be given to each by the heir, if they shall not have withdrawn from my wife." I ask, since the paterfamilias of his own will scarcely ever departed from the city, but she travels continually, whether the freedmen ought to travel with her. I answered that it cannot be answered absolutely, since many things can arise which ought to be evaluated for the good; and therefore such a variety is to be resolved by the judgment of a good man. Likewise it is asked, since when departing she offered them nothing further and on this account they did not follow her, whether the legacy is owed.
Si cui annuum fuerit relictum sine adiectione summae, nihil videri huic adscriptum mela ait: sed est verior nervae sententia, quod testator praestare solitus fuerat, id videri relictum: si minus, ex dignitate personae statui oportebit.
If an annual payment has been left to someone without an addition of the amount, Mela says that nothing appears to have been assigned to him: but Nerva’s opinion is truer: what the testator had been accustomed to furnish, that is considered to have been left: if not, it ought to be determined according to the dignity of the person.
Iavolenus eum, qui rogatus post decem annos restituere pecuniam ante diem restituerat, respondit, si propter capientis personam, quod rem familiarem tueri non posset, in diem fideicommissum relictum probetur et perdituro ei id heres ante diem restituisset, nullo modo liberatum esse: quod si tempus heredis causa prorogatum esset, ut commodum medii temporis ipse sentiret, liberatum eum intellegi: nam et plus eum praestitisse quam debuisset.
Iavolenus responded, concerning one who, having been asked to restore the money after ten years, had restored it before the day, that if it is proven that the fideicommissum was left in diem on account of the person of the recipient (because he could not safeguard his patrimony), and the heir had restored it before the day to him who was going to lose it, he is in no way released; but if the time had been extended for the sake of the heir, so that he himself might feel the advantage of the intervening time, he is understood to be released: for he has also performed more than he ought to have.
Codicillis testamento confirmatis fundum libertis legavit eumque alienari vetuit, sed pertinere voluit et ad filios libertorum vel ex his natos: deinde haec verba adiecit: "a quibus praestari volo heredi ex reditu eius fundi decem per annos singulos usque ad annos triginta quinque a die mortis meae". quaesitum est, cum heres a titio institutus intra trigesimum quintum annum aetatis decesserit, an residui temporis fideicommissum ex verbis supra scriptis heredis quoque heredi debeatur. respondit deberi, nisi ostendatur a libertis testatorem ad heredis trigesimum quintum annum respexisse.
By codicils confirmed by will he bequeathed a farm to the freedmen and forbade it to be alienated, but he wished it to pertain also to the sons of the freedmen or to those born from them; then he added these words: "by whom I wish there to be rendered to the heir from the income of that farm ten each year, up to thirty-five years from the day of my death." It was asked, when the heir instituted by Titius died within his thirty-fifth year of age, whether the fideicommissum for the remaining time, from the words written above, is owed also to the heir of the heir. He responded that it is owed, unless it is shown by the freedmen that the testator had regard to the heir’s thirty-fifth year.
Sticho alumno suo centum et menstruos decem et annuos centum dari voluit et semproniam, quam heredem ex triente instituerat, rogavit in haec verba: "fidei tuae committo, sempronia soror, uti legata, quae alumnis meis reliqui, ex medio recipias et apud te habeas, quoad usque commendatos habeas". quaesitum est, cum sempronia, cuius fidei commissum sit, abstinuerat se hereditate antequam secundum voluntatem defuncti perciperet pecuniam alumnis relictam, an sticho de legatis actio etiam ante vicesimum quintum annum competat. respondit competere.
to Stichus, his alumnus, he wished that one hundred and ten monthly and one hundred yearly be given, and he asked Sempronia, whom he had instituted heir as to a third, in these words: "I commit to your good faith, sister Sempronia, that you take back the legacies which I have left to my alumni from the common fund and keep them with you, so long as you have those commended in your care." The question was raised, since Sempronia, to whose good faith it had been committed, had abstained from the inheritance before she received, according to the will of the deceased, the money left to the alumni, whether to Stichus an action de legatis also lay before the twenty-fifth year. He answered that it does lie.
Titia herede seia scripta usum fructum fundi maevio legavit eiusque fidei commisit in haec verba: "a te, maevi, ex reditu fundi speratiani praestari volo arrio pamphilo et arrio sticho ex die mortis meae annuos sescentos quotannis, quoad vivent". quaesitum est, cum maevius annua alimenta praestiterit, post mortem autem eius fundus ad heredem titiae pleno iure redierit, an alimenta ex fideicommisso pamphilo et sticho debeantur. respondi nihil proponi, cur debeant praestari ab heredibus titiae, cum ab usufructuario alimenta relicta sunt. idem quaesiit, an ab heredibus maevii legatarii praestanda sint.
Titia, Seia having been appointed heir, bequeathed the usufruct of the farm to Maevium and committed it to his good faith in these words: "From you, Maevii, out of the revenue of the Speratianus farm I wish there to be provided to Arrius Pamphilus and Arrius Stichus, from the day of my death, six hundred annually each year, as long as they live." The question was asked, since Maeviius had furnished the annual alimenta, but after his death the farm returned to Titia’s heir in full right, whether the alimenta from the fideicommissum are owed to Pamphilus and Stichus. I answered that nothing is presented why they ought to be furnished by Titia’s heirs, since the alimenta were left by the usufructuary. The same inquirer asked whether they should be furnished by the heirs of Maeviius the legatee.
Qui marco homini docto certa annua praestabat, testamento cavit: "domina sanctissima, scio te de amicis meis curaturam, ne quid his desit: verum tamen et marco dari octingenta": quaesitum est, an marcus praestitis sibi ex causa legati octingentis annua quoque consequi debeat. respondit nihil proponi, cur non secundum ea, quae in consultatione collata essent, debeantur.
He who used to provide Marcus, a learned man, with fixed annual payments, provided in his will: "Most holy lady, I know that you will take care of my friends, that nothing be lacking to them; but nevertheless that eight hundred be given to Marcus as well." It was asked whether Marcus, the eight hundred having been furnished to him by reason of the legacy, ought also to obtain the annual payments. He replied that nothing is put forward why they should not be owed in accordance with the things that had been brought together in the consultation.
"lucio titio auri pondo tria, quae viva praestabam". quaero, cum testatrix quadraginta titio, quoad viveret, salarii nomine certam summam et amplius festorum dierum nomine certum pondus argenti aut pro eo pretium praestiterit, an eadem ex causa legati vel fideicommissi ab heredibus eius titio praestari debeant. respondit nihil proponi, cur praestanda non sunt.
"to Lucius Titius three pounds by weight of gold, which I used to provide while alive." I inquire, since the testatrix provided forty to Titius, for as long as she lived, under the name of salary a fixed sum, and moreover under the name of feast-days a fixed weight of silver or the price in lieu thereof, whether the same, from the same cause, ought to be provided to Titius by her heirs by way of legacy or fideicommiss. He responded that nothing is set forth why they are not to be provided.
Annua his verbis legavit: "si morarentur cum matre mea, quam heredem ex parte institui": quaesitum est, an mortua matre condicio adposita defecisse videatur ac per hoc neque cibaria neque vestiaria his debeantur. respondit secundum ea quae proponerentur deberi.
He bequeathed annual provisions with these words: "if they should dwell with my mother, whom I instituted as heir in part": it was asked whether, the mother having died, the appended condition seems to have failed and through this neither food-allowance nor clothing-allowance are owed to them. He answered that, according to the matters proposed, they are owed.
Attia fideicommissum his verbis reliquit: "quisquis mihi heres erit, fidei eius committo, uti det ex reditu cenaculi mei et horrei post obitum sacerdoti et hierophylaco et libertis, qui in illo templo erunt, denaria decem die nundinarum, quas ibi posui". quaero, utrum his dumtaxat, qui eo tempore quo legabatur in rebus humanis et in eo officio fuerint, debitum sit, an etiam his qui in loco eorum successerunt. respondit secundum ea quae proponerentur ministerium nominatorum designatum, ceterum datum templo. item quaero, utrum uno dumtaxat anno decem fideicommissi nomine debeantur an etiam in perpetuum decem annua praestanda sint.
Attia left a fideicommissum in these words: "whoever shall be my heir, I commit to his good faith to give, from the revenue of my upper-story and my granary, after my death, to the priest and the hierophylax and the freedmen who will be in that temple, ten denarii on the market-day, which I have fixed there." I ask whether it is owed only to those who at the time when it was being bequeathed were alive and in that office, or also to those who succeeded in their place. He responded that, according to the matters proposed, the service of the persons named was designated, but the gift was given to the temple. Likewise I ask whether only in one year ten are owed by way of fideicommissum, or whether also in perpetuity ten annually are to be rendered.
Liberto suo ita legavit: "praestari volo philoni, usque dum vivet, quinquagesimam omnis reditus, quae praediis a colonis vel emptoribus fructus ex consuetudine domus meae praestantur". heredes praedia vendiderunt, ex quorum reditu quinquagesima relicta est: quaesitum est, an pretii usurae, quae ex consuetudine in provincia praestarentur, quinquagesima debeatur. respondit reditus dumtaxat quinquagesimas legatas, licet praedia vendita sunt.
He thus bequeathed to his freedman: "I wish that there be rendered to Philo, for as long as he shall live, the fiftieth of all revenues, which, from the estates, the fruits are rendered by tenants or purchasers according to the custom of my household." The heirs sold the estates, from the revenue of which the fiftieth had been left: it was asked whether the fiftieth is owed of the interest on the price, which by custom in the province was rendered. He replied that only the fiftieths of revenues were bequeathed, although the estates have been sold.
A liberto, cui fundum legaverat ferentem annua sexaginta, per fideicommissum dederat pamphilae annua dena: quaesitum est, si lex falcidia liberto legatum minuerit, an pamphilae quoque annuum fideicommissum minutum videatur, cum ex reditu legata sint, qui largitur, etiamsi falcidia partem dimidiam fundi abstulerit, annuam pamphilae praestationem. respondit secundum ea quae proponerentur non videri minutum, nisi si alia mens testatoris probaretur.
From a freedman, to whom he had bequeathed a farm yielding sixty per annum, he had, by fideicommissum, given to Pamphila ten per annum: the question was asked, if the Lex Falcidia had reduced the legacy to the freedman, whether the annual fideicommissum to Pamphila also should be seen as reduced, since they were bequeathed out of the revenue of the farm which provides it; and even if the Falcidian law has taken away one-half of the farm, the annual payment to Pamphila remains. He answered that, according to the matters proposed, it does not seem reduced, unless some other intention of the testator were proved.
Filium ex dodrante, uxorem ex quadrante instituit heredes et filii fidei commisit, ut novercae restitueret hereditatem: ab ea autem petit, ut infirmitatem filii commendatam haberet eique menstruos aureos denos praestaret, donec ad vicesimum quintum annum aetatis pervenerit, cum autem implesset eam aetatem, partem dimidiam hereditatis ei restitueret. filius deducta dodrantis parte quarta, ex qua institutus erat, novercae hereditatem restituit et postea implevit vicesimum quintum annum aetatis. quaesitum est, cum noverca universae hereditatis haberet dodrantem semunciam et sicilicum, an eius partem dimidiam privigno suo restitueret.
He appointed his son heir from a three-quarters share, and his wife from a quarter share, and he entrusted to the son’s good faith that he should restore the inheritance to his stepmother; moreover, he asked from her that she should have the son’s infirmity in her care and provide him ten gold pieces monthly, until he should have reached the twenty-fifth year of age, and when he had completed that age, that she should restore to him half of the inheritance. The son, a fourth part of the three-quarters share deducted, from which he had been instituted, restored the inheritance to his stepmother, and afterward completed the twenty-fifth year of age. The question was asked, when the stepmother had of the whole inheritance three-quarters, a one-twenty-fourth, and a one-forty-eighth, whether she should restore half of it to her stepson.
he replied that, according to the matters proposed, only so much must be restored as would make, together with that which the son had deducted under the name of the Falcidian portion, a half. the same man asked whether, since the father had wished to provide for the son’s infirmity, the stepmother ought also to restore to him the fruits (profits) of the intermediate time. he replied that, according to the matters proposed, she ought.
Lucius titius testamento patriae suae civitati sebastenorum centum legavit, uti alternis annis ex usuris eiusdem certamina sub nomine ipsius celebrarentur, et adiecit haec verba: "quod si condicione supra scripta recipere legatam sibi pecuniam civitas sebastenorum noluerit, nullo modo heredes meos obligatos ei esse volo, sed habere sibi pecuniam". postea praeses provinciae ex nominibus debitorum hereditariorum elegit idonea nomina et in causam legati rei publicae adiudicavit, post cuius sententiam res publica a plerisque adiudicatis sibi pecunias percepit. quaesitum est, an, si res publica condicionibus testamento adscriptis postea non paruerit, legatum ad filios heredes pertineat. respondit rem publicam voluntati testatoris parere compellendam ac, nisi faciat, in his quidem summis, quae per numerationem vel novationem solutae sunt, utili repetitione heredes adiuvandos: ab his vero nominibus, quae neque solverunt rei publicae neque novatione abscesserunt a pristina obligatione, non prohibendos, quo minus debitum petant.
Lucius Titius by his testament bequeathed 100 to the commonwealth of his native city of the Sebastenians, to the effect that in alternate years, from the interest of the same, contests should be celebrated under his own name; and he added these words: "But if, under the condition written above, the city of the Sebastenians is unwilling to receive the money bequeathed to it, I do not wish my heirs to be obligated to it in any way, but to have the money for themselves." Afterwards the provincial governor, from the accounts (notes) of the estate’s debtors, chose suitable accounts and adjudged them to the cause of the legacy of the commonwealth; after whose sentence the commonwealth received monies from many of those adjudicated to it. It was asked whether, if the commonwealth later has not obeyed the conditions added in the testament, the legacy pertains to the sons who are heirs. He replied that the commonwealth must be compelled to comply with the will of the testator and, unless it does, in those sums which have been paid by cash-payment or by novation, the heirs are to be aided by a useful action for recovery; but as to those accounts which neither have paid the commonwealth nor by novation have departed from their former obligation, they are not to be prevented from seeking the debt.
Largius eurippianus consuluit alumno certam pecuniam patronum testamento legasse deque ea re testamento ita cavisse: "pecuniam, quam titio liberto et alumno meo legavi, esse volo penes publium maevium usque ad annum vicesimum quintum aetatis eius proque ea computari cum eo usuras quadrantes: quantum autem in sumptum ei statuendum sit, tu, publi maevi, cum patris affectum ei praestare debeas, aestimabis". quaesitum est, an heredes a publio maevio satis accipere debuerint solventes eam pecuniam. respondit, cum testamento nulla exigendae satisdationis commemoratio fiat, satis habuisse heredes secundum voluntatem defuncti publio maevio pecuniam numerare: et ideo nec titius alumnus vel heredes eius audiri debeant adversus heredes patroni agentes, quod satis non exegerunt: ex ea enim numeratione etiam a titio ac proinde etiam ab heredibus eius liberatos esse supra scriptos heredes, nisi vivente testatore publius maevius solvendo esse desierit: tunc enim cautio ab eo exigenda est.
Largius eurippianus consulted that a patron had by testament bequeathed to an alumnus a definite sum of money and had thus provided in the testament concerning that matter: "the money which I have bequeathed to titius my freedman and alumnus, I wish to be in the hands of publius maevius up to the 25th year of his age, and for it interest at a quarter to be computed with him: but how much ought to be set for his expenditure, you, publius maevius, since you ought to exhibit toward him a father's affection, will assess." It was asked whether the heirs, when paying that money, ought to have taken security from publius maevius. He responded that, since in the testament no mention is made of requiring security, the heirs had done enough, according to the will of the deceased, in counting out the money to publius maevius: and therefore neither titius the alumnus nor his heirs ought to be heard when proceeding against the heirs of the patron on the ground that they did not exact security: for by that payment the aforesaid heirs have been released even as against titius and accordingly also as against his heirs, unless, while the testator was alive, publius maevius ceased to be solvent: for then security is to be required from him.
Pater duos filios aequis ex partibus instituit heredes, maiorem et minorem, qui etiam impubes erat, et in partem eius certa praedia reliquit et, cum quattuordecim annos impleverit, certam pecuniam ei legavit idque fratris eius fidei commisit, a quo petit in haec verba: "a te peto, sei, ut ab annis duodecim aetatis ad studia liberalia fratris tui inferas matri eius annua tot usque ad annos quattuordecim: eo amplius tributa fratris tui pro censu eius dependas, donec bona restituas: et ad te reditus praediorum illorum pertineant, quoad perveniat frater tuus ad annos quattuordecim". quaesitum est, defuncto maiore fratre herede alio relicto utrum omnis condicio percipiendi reditus fundorum, anniversaria praestetur alia, quae praestaturus esset, si viveret, seius, ad heredem eius transierint, an vero id omne protinus ad pupillum et tutores transferri debeat. respondit: secundum ea quae proponerentur intellegitur testator quasi cum tutore locutus, ut tempore, quo tutela restituenda est, haec, quae pro annuis praestari iussisset percipiendisque fructibus, finiantur: sed cum maior frater morte praeventus est, omnia, quae relicta sunt, ad pupillum et tutores eius confestim post mortem fratris transisse.
A father appointed two sons as heirs in equal shares, the elder and the younger, who was also under age, and he left to his share certain estates, and, when he should have completed fourteen years, he bequeathed to him a certain sum of money, and he committed this to the good faith of his brother, from whom he asked in these words: “I ask of you, Seius, that from the twelfth year of age you pay in to his mother annually so much for your brother’s liberal studies, up to fourteen years: moreover that you discharge your brother’s tributes according to his census, until you restore the goods: and that the revenues of those estates pertain to you until your brother reaches fourteen years.” It was asked, the elder brother having died, another heir having been left, whether the whole condition of receiving the revenues of the farms, the annual prestation also, which Seius would have rendered if he lived, passed to his heir, or whether rather all that ought forthwith to be transferred to the ward and his tutors. He answered: according to the things proposed the testator is understood as if he had spoken with a tutor, that at the time when the tutelage is to be restored these things which he had ordered to be provided annually and the fruits to be received should come to an end: but since the elder brother was anticipated by death, all the things that were left passed at once, after the brother’s death, to the ward and his tutors.
"filiae meae, quotienscumque vidua erit, in annos singulos centum heres meus dato": quaeritur, si filia minus annui temporis vidua fuisset, numquid minus ei centum deberentur. respondit sibi videri, tametsi totus annus nondum fuisset, tamen deberi.
"to my daughter, whenever she shall be a widow, my heir is to give one hundred for each single year": it is asked whether, if the daughter had been a widow for less than a year’s time, anything less than one hundred would be owed to her. he answered that it seemed to him that, although a full year had not yet elapsed, nevertheless it is owed.
Cum erat certa pecunia, id est centum, rei publicae sardianorum relicta per quadriennium certaminis chrysanthiani, divi severus et antoninus rescripserunt videri perpetuam pensitationem reliquisse testatorem per quadriennium, non in primum quadriennium.
When a fixed sum of money, that is one hundred, had been left to the republic of the Sardians for the quadrennium of the Chrysanthian contest, the deified Severus and Antoninus rescripted that the testator seemed to have left a perpetual pensitation for each quadrennium, not for the first quadrennium.
Nec usus nec usus fructus itineris actus viae aquaeductus ^ aequaeductus^ legari potest, quia servitus servitutis esse non potest: nec erit utile ex senatus consulto, quo cavetur, ut omnium quae in bonis sint usus fructus legari possit, quia id neque ex bonis neque extra bona sit. sed incerti actio erit cum herede, ut legatario, quamdiu vixerit, eundi agendi ducendi facultatem praestet aut ea servitus constituatur sub hac cautione, ut, si decesserit legatarius vel capite deminutus ex magna causa fuerit, restituatur.
Neither the use nor the usufruct of a right of way (iter), of a right of driving (actus), of a roadway (via), or of an aqueduct ^aequaeductus^ can be bequeathed, because a servitude cannot be the servitude of a servitude: nor will the senatorial decree be of use, which provides that the usufruct of all things that are in the patrimony may be bequeathed, because this is neither among the goods nor outside the goods. But there will be an actio incerti against the heir, to the effect that he provide the legatee, for so long as he lives, the faculty of going, driving, and leading (water), or that that servitude be established under this stipulation: that, if the legatee has died or has suffered capitis deminutio for a grave cause, it shall be restored.
Hominis operae legatae capitis deminutione vel non utendo non amittuntur. et quoniam ex operis mercedem percipere legatarius potest, etiam operas eius ipse locare poterit, quas si prohibeat heres capi, tenebitur. idem est et si servus se locaverit.
The services of a person bequeathed are not lost by capitis deminutio (diminution of legal status) or by not using them. And since the legatee can receive the wage from the work, he can also himself hire out his services; and if the heir forbids such services to be taken, he will be held liable. The same is so even if the slave has hired himself out.
Si usus fructus mihi in biennium continuum a morte testatoris legatus sit et per heredem steterit, quo minus eum mihi daret, praeterito biennio nihilo minus tenetur ( quemadmodum teneretur, si res legata in rerum natura esse desisset, quam quis deberet, moratusque esset in ea danda), ut peti quidem iam usus fructus qui legatus sit non possit, quia alius futurus sit quam qui legatus fuerit, sed aestimatio eius bima dumtaxat facienda sit.
If a ususfructus has been bequeathed to me for a continuous two-year period from the death of the testator, and it has been due to the heir that he did not give it to me, after the two years have passed he is nonetheless liable (just as he would be liable if the thing bequeathed, which someone owed, had ceased to exist in rerum natura, and he had been in delay in giving it), so that indeed the ususfructus that was bequeathed can no longer be claimed, because it would be other than the one that was bequeathed, but only an estimation of it for two years is to be made.
Operae testamento relictae quando cedere debeant, utrum ex quo petit eas legatarius an ex quo adita hereditas est? et cui pereant dies, quibus aeger servus fuit? et puto ex die petitionis eas cedere: quare si post petitas aeger esse servus coeperit, legatario peribunt.
Services (operae) left by testament: when ought they to vest, whether from the time the legatee demands them or from the time the inheritance has been entered upon? And to whom do the days perish, during which the slave was ill? And I think they vest from the day of demand; wherefore, if after they have been demanded the slave begins to be ill, the days will be lost to the legatee.
Si usus fructus municipibus legatus erit, quaeritur, quousque in eo usu fructu tuendi sint: nam si quis eos perpetuo tuetur, nulla utilitas erit nudae proprietatis semper abscedente usu fructu. unde centum annos observandos esse constat, qui finis vitae longissimus esset.
If a usufruct has been bequeathed to the municipes, the question arises how long they are to be maintained in that usufruct: for if one maintains them perpetually, there will be no utility for the naked ownership, the usufruct always remaining apart. Whence it is settled that one hundred years are to be observed, which would be the limit of the longest life.
Si ab eo, cui legatus esset usus fructus, fideicommissum fuerit relictum, licet usus fructus ad legatarium non pervenerit, heres tamen, penes quem usus fructus remanet, fideicommissum praestat. quod et in militis testamento erit dicendum, si legatarius, a quo fideicommissum relictum est, repudiaverit legatum vel vivo testatore decesserit.
If by the one to whom a usufruct had been bequeathed a fideicommissum has been left, although the usufruct has not come to the legatee, nevertheless the heir, in whose possession the usufruct remains, furnishes the fideicommissum. And the same must be said in the testament of a soldier, if the legatee by whom the fideicommissum was left has repudiated the legacy or has died while the testator was still alive.
Si titio fundus et eiusdem fundi usus fructus legatus fuerit, erit in potestate eius, fundum an usum fructum vindicare malit. et si fundum elegerit, necessario plenam proprietatem habebit, licet usum fructum a se reppulerit: si vero usum fructum habere maluerit et proprietatem fundi reppulerit, solum usum fructum habebit.
If to Titius a farm and the usufruct of the same farm has been bequeathed, it will be in his power whether he prefers to claim (vindicate) the farm or the usufruct. And if he chooses the farm, he will necessarily have full proprietorship, although he has rejected the usufruct for himself; but if he should prefer to have the usufruct and has repudiated the ownership of the farm, he will have only the usufruct.
Heres in fundo, cuius usus fructus legatus est, villam posuit: eam invito fructuario demolire non potest, nihilo magis quam si, quam arborem posuisset, ex fundo is evellere vellet: sed si antequam usufructuarius prohibuerit, demolierit, impune facturum.
The heir, on the estate whose usufruct has been bequeathed, has set up a villa: he cannot demolish it against the will of the usufructuary, no more than if he wished to tear up from the estate whatever tree he had planted: but if, before the usufructuary has forbidden it, he demolishes it, he will do so with impunity.
Duos separatim uti frui sinere damnatus heres communiter uti frui passus est: quaerebatur, an utrique ex testamento teneretur. dixi teneri, si testator utrumque solidum habere voluit: nam ipsius onus est, ut solidum singulis legatum praestaret: qua parte igitur alterum uti frui sineret heres, ea parte eum non sinere alterum uti frui, ideoque per aestimationem unicuique quod deest replere debet.
An heir condemned to allow two persons to use and enjoy separately allowed them to use and enjoy in common: it was asked whether he was bound to each under the testament. I said he is bound, if the testator wished each to have the solidum: for it is his burden to furnish to each legatee the solidum; therefore, to the extent that the heir allows the one to use and enjoy, to that extent he is not allowing the other to use and enjoy, and so by valuation he must make up to each what is lacking.
Qui duos fundos habebat, unum legavit et alterius fundi usum fructum alii legavit: quaero, si fructuarius ad fundum aliunde viam non habeat quam per illum fundum qui legatus est, an fructuario servitus debeatur. respondit, quemadmodum, si in hereditate esset fundus, per quem fructuario potest praestari via, secundum voluntatem defuncti videtur id exigere ab herede, ita et in hac specie non aliter concedendum esse legatario fundum vindicare, nisi prius ius transeundi usufructuario praestet, ut haec forma in agris servetur, quae vivo testatore optinuerit, sive donec usus fructus permanet sive dum ad suam proprietatem redierit.
Someone who had two farms bequeathed one, and to another he bequeathed the usufruct of the other farm: I ask, if the usufructuary has no road to the farm from elsewhere than through that farm which has been bequeathed, whether a servitude is owed to the usufructuary. He answered: just as, if there were in the inheritance a farm by which a way can be furnished to the usufructuary, then, according to the intention of the deceased, he seems to demand that from the heir, so also in this case it is not to be permitted that the legatee vindicate the farm otherwise, unless he first provides the right of passing to the usufructuary, so that the arrangement in the lands be preserved which had obtained while the testator was alive, whether as long as the usufruct endures or until it has reverted to its proper ownership.
Legatum civitati relictum est, ut ex reditibus quotannis in ea civitate memoriae conservandae defuncti gratia spectaculum celebretur, quod illic celebrari non licet: quaero, quid de legato existimes. respondit, cum testator spectaculum edi voluerit in civitate, sed tale, quod ibi celebrari non licet, iniquum esse hanc quantitatem, quam in spectaculum defunctus destinaverit, lucro heredum cedere: igitur adhibitis heredibus et primoribus civitatis dispiciendum est, in quam rem converti debeat fideicommissum, ut memoria testatoris alio et licito genere celebretur.
A legacy was left to the city, that from the revenues each year in that city, for the sake of preserving the memory of the deceased, a spectacle be celebrated—one which it is not permitted to celebrate there: I ask what you think about the legacy. He replied: since the testator wished a spectacle to be put on in the city, but of such a kind as is not permitted to be celebrated there, it is inequitable for this amount which the deceased destined for the spectacle to pass into the profit of the heirs; therefore, with the heirs and the leading men of the city called in, consideration must be given into what matter the fideicommissum ought to be converted, so that the memory of the testator may be celebrated in another and lawful manner.
Quidam praedia rei publicae legavit, de quorum reditu quotannis ludos edi voluit, et adiecit: "quae legata peto, decuriones, et rogo, ne in aliam speciem aut alios usus convertere velitis". res publica per quadriennium continuum ludos non edidit: quaero, an reditus, quos quadriennio res publica percepit, heredibus restituere debeat vel compensare in aliam speciem legati ex eodem testamento. respondit et invitis heredibus possessione adprehensa perceptos fructus restituendos esse et non erogatum secundum defuncti voluntatem in alia quae deberentur compensari.
A certain man bequeathed estates to the commonwealth, from whose revenue he wished games to be given every year, and he added: "These legacies I ask of you, Decurions, and I beg that you be not willing to convert them into another form or other uses." The commonwealth for a continuous four-year period did not present the games: I inquire whether the revenues which the commonwealth received in the four-year period it ought to restore to the heirs, or to set off in another form of the legacy under the same testament. He responded that, even with the heirs unwilling, once possession has been apprehended, the fruits received must be restored, and what was not disbursed according to the will of the deceased is to be compensated toward other things that would be owed.
Qui plures habebat libertos, testamento suo dixit se habitationem relinquere iis quos codicillis designasset: cum nullos postea designaverit, quaero, an omnes admitti debeant. respondit, si patronus, qui se designaturum personas libertorum pollicitus est, nullum postea designavit, legatum habitationis perfectum esse non videtur, non existente cui datum intellegi possit.
He who had several freedmen said in his testament that he would leave a habitation to those whom he should designate by codicils: since he later designated none, I ask whether all ought to be admitted. He answered, if the patron, who promised that he would designate the persons of the freedmen, later designated no one, the legacy of habitation does not seem to be perfected, there being no one existing to whom it can be understood to have been given.
Si alii fundum, alii usum fructum eiusdem fundi testator legaverit: si eo proposito fecit, ut alter nudam proprietatem haberet, errore labitur. nam detracto usu fructu proprietatem eum legare oportet eo modo: "titio fundum detracto usu fructu lego: vel seio eiusdem fundi usum fructum heres dato". quod nisi fecerit, usus fructus inter eos communicabitur, quod interdum plus valet scriptura quam peractum sit.
If a testator has bequeathed to one person the estate, and to another the usufruct of the same estate: if he did this with the purpose that the one should have the naked ownership, he falls into error. For he ought to bequeath him the ownership with the usufruct subtracted in this way: "to Titius I bequeath the estate, the usufruct subtracted; or let the heir give to Seius the usufruct of the same estate". But if he does not do this, the usufruct will be shared in common between them, since sometimes the writing has more force than what has been carried out.
Licet testatori repetere legatum usus fructus, ut etiam post capitis deminutionem deberetur et hoc nuper imperator antoninus ad libellum rescripsit. tunc tantum esse huic constitutioni locum, cum in annos singulos relegaretur.
It is permitted for a testator to repeat the bequest of a usufruct, so that it would be owed even after a diminution of status; and the emperor Antoninus recently replied by rescript to a petition to this effect. Only then does this constitution have application, when it is re‑bequeathed for each single year.
Uxori fructu bonorum legato faenus quoque sortium, quas defunctus collocavit, post impletam ex senatus consulto cautionem praestabitur. igitur usuras nominum in hereditate relictorum ante cautionem interpositam debitas velut sortes in cautionem deduci necesse est. non idem servabitur nominibus ab herede factis: tunc enim sortes dumtaxat legatario dabuntur aut, quod propter moram usuras quoque reddi placuit, super his non cavebitur.
To a wife to whom the usufruct of the goods has been bequeathed, the interest also of the principal sums which the deceased placed out will be provided after the security prescribed by senatus consultum has been fulfilled. Therefore the interest on the nomina left in the inheritance, which was due before the security was interposed, must be carried into the security as though principal sums. The same will not be observed for nomina made by the heir: then indeed only the principal sums will be given to the legatee; or, since on account of delay it has been decided that interest also be repaid, no security will be taken with respect to these.
Qui fructus praediorum uxori reliquit, post mortem eius praedia cum reditibus ad heredes suos redire voluit, imperitia lapsus. nullum fideicommissum dominus neque proprietatis neque fructus ad eos reverti dedit: etenim reditus futuri, non praeteriti temporis demonstrati videbantur.
He who left the fruits of the estates to his wife wished that, after her death, the estates with the revenues should return to his heirs, having slipped through inexperience. The owner gave no fideicommissum that either the ownership or the fruits should revert to them: for the revenues seemed to have been indicated as of the future, not of past time.
Sempronius attalus ab herede suo fundum in italiam gaio post decennium deducto usu fructu dari iussit: quaero, cum medio hoc decennii spatio heres vita functus sit, an post tempus decennii plenus fundus ad legatarium pertineat. movet enim me, quod dies legati huius sive fideicommissi cesserit ac per hoc et ad heredem legatarii pertinere potuerit, et ideo quasi circa debitum iam legatum mortuo herede usus fructus exstinctus sit nec ad heredem heredis pertinere possit. respondi: dies quidem fideicommissi vel legati cedit statim, cum post tempus certum heres dare rogatur sive iubetur: sed usus fructus nondum est heredis, nisi cum dominium deducto usu fructu praestitit, et ideo capitis deminutione vel morte perire non potest quod nondum habuit.
Sempronius attalus ordered that from his heir a farm in Italy, with the usufruct deducted, be given to Gaius after ten years: I ask, since in the middle of this ten-year period the heir has departed this life, whether after the ten years the farm in full pertains to the legatee. For what moves me is that the day (dies) of this legacy or fideicommissum has accrued, and through this it could pertain even to the heir of the legatee, and therefore, as if concerning a debt already due, with the heir having died, the usufruct has been extinguished and cannot pertain to the heir of the heir. I answered: indeed the day of the fideicommissum or legacy accrues at once, when the heir is asked or ordered to give after a fixed time; but the usufruct is not yet the heir’s, unless when he has furnished ownership with the usufruct deducted, and therefore by capitis deminutio or by death he cannot lose what he has not yet had.
the same happens, if the proprietorship, the usufruct being deducted, has been bequeathed under a condition and, while the condition is pending, the heir has died: for then the usufruct begins with the heir of the heir, and will be finished with his person. But in these cases one must inquire into the intention of the testator, who assuredly had in mind the detraction of that usufruct which would be conjoined to the person of the heir: once that is extinguished, he wished the solid (i.e., full) proprietorship to pertain to the legatee, and that no more be transmitted to his successor, who has not yet begun to have the usufruct, than if he had already begun to have it.
Si fundus duobus, alii usus fructus legatus sit, non trientes in usu fructu, sed semisses constituuntur: idemque est ex contrario, si duo sint fructuarii et alii proprietas legata est. et inter eos tantum adcrescendi ius est.
If an estate has been bequeathed to two persons, and to another the usufruct has been bequeathed, then in respect of the usufruct not thirds but halves are established; and the same holds conversely, if there are two usufructuaries and the ownership has been bequeathed to another. And the right of accretion is only between them.
Uxori maritus per fideicommissum usum fructum et alia et dotem praelegavit: heredes usum fructum ei concesserunt: post biennium illicitum matrimonium fuisse pronuntiatum est: quaesitum est, an id, quod praeterito tempore possedit, ab ea repeti possit. respondit id, quod fructus nomine percepisset, repeti posse.
To his wife the husband, by fideicommiss, pre-legacy, bequeathed the usufruct and other things and the dowry: the heirs conceded the usufruct to her: after a biennium it was pronounced that the marriage had been illicit: it was asked whether that which she had possessed in the time past could be reclaimed from her. He responded that that which she had received under the name of fruits could be reclaimed.
Quaero, si usus fructus fundi legatus est et eidem fundo indictiones temporariae indictae sint, quid iuris sit. paulus respondit idem iuris esse et in his speciebus quae postea indicuntur, quod in vectigalibus dependendis responsum est: ideoque hoc onus ad fructuarium pertinet.
I ask, if the usufruct of an estate has been bequeathed and temporary indictions have been imposed on that same estate, what the law is. Paulus replied that the same law applies also in those cases which are later imposed, as was answered concerning the payment of vectigalia (public taxes): and therefore this burden pertains to the usufructuary.
Si quis usum fructum legatum sibi alii restituere rogatus sit eumque in fundum induxerit fruendi causa: licet iure civili morte et capitis deminutione ex persona legatarii pereat usus fructus, quod huic ipso iure adquisitus est, tamen praetor iurisdictione sua id agere debet, ut idem servetur, quod futurum esset, si ei, cui ex fideicommisso restitutus esset, legati iure adquisitus fuisset.
If someone, having had a usufruct bequeathed to himself, has been asked to restore it to another and has put him into the land for the sake of enjoying it: although by civil law the usufruct perishes, upon the death or capitis deminutio of the legatee, since it was acquired to this person by the law itself, nevertheless the praetor, by his jurisdiction, ought to bring it about that the same is observed as would come to pass if, for him to whom it had been restored by fideicommissum, it had been acquired by the right of legacy.
Cui usus fructus legatus esset, donec ei totius dotis satisfieret, cum ei heres pro sua parte satis dedisset, quamvis reliqui satis non darent, tamen pro ea parte usum fructum desinere habere mulierem ait labeo: idem fieri et si per mulierem mora fieret, quo minus satis acciperet.
To whom a usufruct had been bequeathed, until the whole dowry should be satisfied for her: when the heir had given her security for his own share, although the others did not give security, nevertheless, for that share the woman ceases to have the usufruct, says Labeo; the same occurs if the delay arose through the woman, so as to prevent her from accepting security.
Is qui fundum tecum communem habebat usum fructum fundi uxori legaverat: post mortem eius tecum heres arbitrum communi dividundo petierat. blaesus ait trebatium respondisse, si arbiter certis regionibus fundum divisisset, eius partis, quae tibi optigerit, usum fructum mulieri nulla ex parte deberi, sed eius, quod heredi optigisset, totius usum fructum eam habituram. ego hoc falsum puto: nam cum ante arbitrum communi dividundo coniunctus pro indiviso ex parte dimidia totius fundi usus fructus mulieris fuisset, non potuisse arbitrum inter alios iudicando alterius ius mutare: quod et receptum est.
He who had a fundus in common with you had bequeathed the usufruct of the fundus to his wife; after his death, his heir together with you had requested an arbiter for communi dividundo. Blaesus says that Trebatius responded that, if the arbiter had divided the fundus into fixed regions, the usufruct of the part that fell to you would in no respect be owed to the woman, but that she would hold the usufruct of the whole of that which fell to the heir. I think this is false: for since before the arbiter communi dividundo, while joined pro indiviso, the woman’s usufruct had been, as to a half share, of the whole fundus, the arbiter could not, by judging between others, change another’s right; and this too is the received view.
Generali capite praeposito quidam in testamento suo ita adiecit: "felici, quem liberum esse iussi, usum fructum fundi vestigiani lego: cuius proprietatem puto te consecuturum, si non contenderis cum herede meo, sed potius concordaveris: sed et tu, heres, omnia fac, ut amici sitis: hoc enim vobis expedit": quaesitum est, an vivente herede exigere possit felix fundi proprietatem. respondit nihil proponi, cur felici proprietas fundi legata videretur.
With a general chapter prefixed, a certain man thus added in his testament: "To Felix, whom I ordered to be free, I bequeath the usufruct of the Vestigian estate: the ownership (proprietas) of which I think you will obtain, if you do not contend with my heir, but rather come to concord: but you too, heir, do everything so that you may be friends: for this is expedient for you both": the question was asked whether, with the heir living, Felix can demand the ownership of the estate. He responded that nothing is set forth why the ownership (proprietas) of the estate would seem to have been bequeathed to Felix.
Filios ex seio et filiam ex alio marito heredes instituit aequis portionibus et matri ita legaverat: "aeliae dorcadi matri meae dari volo, quoad vivat, usum fructum bonorum meorum, ita ut post obitum eius ad liberos meos aut ad eum, qui ex his vivet, pertineat". filii post aditam hereditatem decesserant: quaesitum est mortua matre superstite filia testatricis usus fructus utrum ad solam filiam an vero pro portione hereditatis pertineret. respondit ad eos redire, apud quos proprietas esset. claudius: non credidit ipsum usum fructum in vicem portionum hereditariarum post mortem aviae inter ipsos datum, eo magis, quod aequis partibus heredes erant scripti.
She instituted as heirs her sons by Seius and her daughter by another husband, in equal portions, and had thus bequeathed to her mother: "I will that there be given to Aelia Dorcas, my mother, for as long as she lives, the usufruct of my goods, such that after her death it shall pertain to my children, or to that one who among them survives." The sons, after the inheritance had been entered upon, had deceased: it was asked, the mother having died and the testatrix’s daughter surviving, whether the usufruct pertained to the daughter alone, or rather in proportion to the inheritance. He responded that it reverts to those with whom the ownership is. Claudius: he did not believe that the usufruct itself was given among them in lieu of hereditary portions after the death of the grandmother, all the more because the heirs were written in equal parts.
Uxori usum fructum domuum et omnium rerum, quae in his domibus erant, excepto argento legaverat, item usum fructum fundorum et salinarum: quaesitum est, an lanae cuiusque coloris mercis causa paratae, item purpurae, quae in domibus erat, usus fructus ei deberetur. respondit excepto argento et his, quae mercis causa comparata sunt, ceterorum omnium usum fructum legatariam habere.
He had bequeathed to his wife the usufruct of the houses and of all things which were in these houses, silver excepted, likewise the usufruct of the estates and of the saltworks: the question was asked whether the usufruct was owed to her of wools of every color prepared for the sake of merchandise, likewise of purple, which was in the houses. He replied that, except for the silver and for those things which are procured for the sake of merchandise, the legatee has the usufruct of all the rest.
Idem quaesiit, cum in salinis, quarum usus fructus legatus esset, salis inventus sit non minimus modus, an ad uxorem ex causa fideicommissi usus fructus pertineat. respondit de his legandis, quae venalia ibi essent, non sensisse testatorem.
The same man asked, when in the saltworks, the usufruct of which had been bequeathed, a not small measure of salt was found, whether, by reason of the fideicommissum, the usufruct pertains to the wife. He replied that, as to the bequeathing of those things which were vendible there, the testator did not have it in mind.
Idem quaesiit, cum eodem testamento ita caverit: "a te peto, uxor, uti ex usu fructu, quem tibi praestari volo in annum quintum decimum, contenta sis annuis quadringentis, quod amplius fuerit, rationibus heredis heredumve meorum inferatur", an recessum videatur a superiore capite ideoque uxor non amplius habeat ex usu fructu, quam annuos quadringentos. respondit satis id, quod quaereretur, aperte verba quae proponerentur declarare.
The same man asked, since in the same will he had thus provided: "I ask of you, wife, that from the usufruct, which I wish to be furnished to you until the 15th year, you be content with 400 annually; whatever shall be more, let it be entered into the accounts of my heir or heirs," whether a departure seems to have been made from the preceding clause and therefore the wife has no more from the usufruct than 400 annually. He answered that what was being asked the words set forth clearly declare sufficiently.
Lucius titius testamento suo publio maevio fundum tusculanum reliquit eiusque fidei commisit, uti eiusdem fundi partem dimidiam usus fructus titiae praestaret: publius maevius villam vetustate corruptam cogendis et conservandis fructibus necessariam aedificavit: quaero, an sumptus partem pro portione usus fructus titia adgnoscere debeat. respondit, si prius, quam usum fructum praestaret, necessario aedificavit, non alias cogendum restituere, quam eius sumptus ratio habeatur.
Lucius Titius by his testament left the Tusculan estate to Publius Maevius and committed it to his fide (trust), that he should furnish to Titia the usufruct of half of the same estate: Publius Maevius built a villa, ruined by age, necessary for gathering and conserving the fruits: I ask whether Titia ought to recognize a portion of the expenses in proportion to the usufruct. He responded: if before he furnished the usufruct he necessarily built, he is not otherwise to be compelled to make restitution than that account be taken of his expenses.
Duas filias et filium mente captum heredes scripsit, filii portionis mente capti datae usum fructum legavit in haec verba: "hoc amplius publia clementiana praecipiet sibi quartae partis hereditatis meae, ex qua iulium iustum filium meum heredem institui: petoque a te, publia clementiana, uti fratrem tuum iulium iustum alas tuearis dependas pro eo: pro quo tibi usum fructum portionis eius reliqui, donec mentis compos fiat et convalescat". quaesitum est, cum filius in eodem furore in diem mortis suae perseverans decesserit, an usus fructus interciderit. respondit verbis quae proponerentur perseverare legatum, nisi manifestissime probetur aliud testatorem sensisse.
He appointed two daughters and a son of unsound mind as heirs; he bequeathed the usufruct of the share given to the son of unsound mind in these words: "Moreover, Publia Clementiana shall take for herself in priority a fourth part of my inheritance, from which I have instituted my son Julius Justus as heir: and I ask of you, Publia Clementiana, that you nourish your brother Julius Justus, protect him, and make payments on his behalf—for whose sake I have left to you the usufruct of his portion—until he become of sound mind and recover." It was asked, since the son, persisting in the same madness until the day of his death, has died, whether the usufruct had lapsed. He answered that, on the words that were put forward, the legacy persists, unless it be most manifestly proved that the testator thought otherwise.
Heredis instituti fidei commisit filio suo annua decem praestare aut ea praedia emere et adsignare, ut usum fructum haberet, reditum efficientia annua decem: filius fundos sibi ab herede secundum matris voluntatem traditos locavit: et quaesitum est, defuncto eo reliqua colonorum utrumne ad heredem filii fructuarii an vero ad heredem seiae testatricis pertineant. respondit nihil proponi, cur ad heredem seiae pertineant.
She entrusted to the good faith of the instituted heir to provide her son ten per year, or to buy and assign those estates, so that he might have a usufruct, producing a return of ten per year: the son leased out the farms delivered to him by the heir according to his mother’s will: and the question was raised, upon his death, whether the arrears of the tenant-farmers belong to the heir of the son, the usufructuary, or rather to the heir of Seia the testatrix. He responded that nothing is set forth to show why they should pertain to Seia’s heir.
Usum fructum tertiae partis bonorum suorum uni ex heredibus legaverat: quaesitum est, an pecuniae, quae ex rebus divisis secundum aestimationem effecta est, tertia praestanda sit. respondit heredis esse electionem, utrum rerum an aestimationis usum fructum praestare vellet.
He had bequeathed the usufruct of a third part of his goods to one of the heirs: it was asked whether a third of the money, which was produced from the things divided according to the appraisal, should be furnished. he answered that the choice was the heir’s, whether he wished to furnish the usufruct of the things or of the appraisal.
Item quaesitum est, tributa praeterea, quae vel pro praediis aut moventibus deberi et reddi necesse est, an eximenda sint ex quantitate, ut reliquae dumtaxat pecuniae, si hoc heres elegerit, reddi debeat. respondit reliquae pecuniae tertiam praestandam.
Likewise it was asked, whether, moreover, the tributes, which must be owed and paid either for praedial estates or for movables, ought to be exempted from the quantity, so that only the remaining money, if the heir has chosen this, ought to be rendered. He answered that a third of the remaining money is to be furnished.
"sempronio ea, quae vivus praestabam, dari volo": is etiam habitabat in testatoris domo, quae uni ex heredibus praelegata erat: quaesitum est, an habitatio quoque debeatur. respondit nihil proponi, cur non debeatur.
"I wish that to Sempronius there be given the things which I, while alive, was furnishing": he too was living in the testator’s house, which had been pre-legacy bequeathed to one of the heirs: it was asked whether the right of habitation also is owed. He answered that nothing is put forward why it should not be owed.
Ex his verbis testamenti: "libertis meis, quibus nominatim nihil reliqui, quae vivus praestabam dari volo" quaesitum est, an libertis, qui cum patrono suo in diem mortis habitabant, etiam habitatio relicta videatur. respondit videri.
From these words of the testament: "to my freedmen, to whom I have left nothing by name, I wish to be given what I used to furnish while alive," it was asked whether to the freedmen who were living with their patron up to the day of his death a habitation also appears to have been left. He responded that it does appear so.
Codicillis ita scripsit: "negidium titium dionem libertos meos senes et infirmos peto in locis, in quibus nunc agunt, senescere patiamini": quaero, an ex hoc capite liberti supra scripti ex fideicommisso fructus locorum, quibus morantur, recipere debeant, cum alia, quae eis specialiter legata sunt, sine controversia consecuti sunt. respondit verbis quae proponerentur id petitum, ut ad eum modum paterentur heredes ibi eos esse, ad quem modum ipsa patiebatur.
He wrote thus in a codicil: "Negidius, Titius, Dion, my freedmen, old and infirm, I ask that you allow to grow old in the places in which they are now residing": I ask whether from this clause the aforesaid freedmen ought, out of the fideicommissum, to receive the fruits of the places in which they stay, since they have, without controversy, obtained the other things that are specifically bequeathed to them. He replied that by the words that were proposed this was requested: that the heirs should allow them to be there to the extent to which she herself was allowing.
Codicillis fideicommissa in haec verba dedit: "libertis libertabusque meis et quos in codicillis manumisi fundum, ubi me humari volui, dari volo, ut qui ab his decesserit, portio eius reliquis adcrescat, ita ut ad novissimum pertineat: post cuius novissimi decessum ad rem publicam arelatensium pertinere volo. hoc amplius libertis libertabusque meis habitationes in domo, quamdiu vivent: pactiae et trophimae diaetas omnes, quibus uti consuevit: habitet quam domum post mortem eorum ad rem publicam pertinere volo". quaesitum est, rei publicae fideicommissum utrum ab herede an a libertis datum sit. respondit secundum ea quae proponerentur posse ita verba accipi, ut eius legatarii, qui novissimus decederet, fidei commissum videatur.
By codicils he gave trusts in these words: "To my freedmen and freedwomen, and to those whom I manumitted in the codicils, I wish the estate where I wished to be buried to be given, in order that, whichever of them shall have died, his portion shall accrue to the rest, so that it shall belong to the last survivor: after the death of this last survivor I wish it to belong to the republic of the Arelatenses. In addition to this, to my freedmen and freedwomen I grant habitations in the house, as long as they live: to Pactia and Trophime all the suites which she was accustomed to use: the house which she inhabits I wish, after their death, to belong to the republic." The question was raised, whether the trust in favor of the republic was imposed by the heir or by the freedmen. He responded that, according to what was set forth, the words can be taken so that the trust appears to be that of the legatee who should die last.
Qui semproniam ex parte decima et maeviam ex parte decima, alumnum ex reliquis partibus instituerat heredes, curatorem alumno dedit, cum iure facere putaret: et curatoris fidei commisit, ne pateretur fundum venire, sed cum sempronia et maevia nutricibus suis frueretur reditu eius: et ima parte testamenti ita adiecit: "omnem voluntatem meam fidei heredum meorum committo". quaesitum est, an tertias partes usus fructus fundi nutrices ex fideicommisso petere possint, quamvis curator ei receptus sit, quem iure dare non poterit alumno. respondit secundum ea quae proponerentur utiliter fideicommisso voluntatem suam confirmasse: id igitur cuique dedisse, ut et nutrices una cum alumno reditu fundi uterentur.
He who had instituted sempronia from a tenth share and maevia from a tenth share as heirs, and the fosterling from the remaining shares, gave a curator to the fosterling, since he thought he could do so by right; and he committed to the curator’s good faith that he should not allow the fundus to be sold, but that sempronia and maevia, his nurses, should enjoy its revenue; and in the lowest part of the testament he added thus: "I commit all my will to the good faith of my heirs." It was asked whether the nurses can demand from the fideicommissum the third parts of the usufruct of the fundus, although a curator had been appointed for him, whom he could not lawfully give to the fosterling. He responded that, according to the matters set forth, he had usefully confirmed his will by a fideicommissum: therefore he gave to each this, that the nurses together with the fosterling should use the revenue of the fundus.
Uxori usum fructum villae legavit in quinquennium a die mortis suae, deinde haec verba adiecit: "et peracto quinquennio, cum eius usus fructus esse desierit, tunc eum fundum illi et illi libertis dari volo". quaesitum est, cum uxor intra quinquennium decesserit, an libertis proprietatis petitio iam an vero impleto quinquennio competat, quia " peracto quinquennio" testator proprietatem legaverat. respondit post completum quinquennium fundum ad libertos pertinere.
He bequeathed to his wife the usufruct of the villa for a five-year period from the day of his death; then he added these words: “and when the five-year period has been completed, when that usufruct has ceased to be, then I wish that estate to be given to such-and-such freedmen.” It was asked, since the wife died within the five-year period, whether a claim of ownership belonged to the freedmen already, or rather only when the five-year period had been completed, because the testator had bequeathed the ownership “when the five-year period has been completed.” He replied that after the five-year period was completed the estate belongs to the freedmen.
Sticho testamento manumisso fundi usus fructus erat legatus et, cum is uti fruique desisset, fidei heredum testator commisit, uti eum fundum darent lucio titio: sed stichus testamento suo eiusdem fundi proprietatem nepotibus suis legavit et heredes stichi ex testamento eius legatariis nepotibus eum fundum tradiderunt. quaesitum est, cum nepotes legatarii ignoraverint condicionem fundi supra scripti priore testamento datam et plus quam tempore statuto possederint, an eum fundum sibi adquisierint. respondit secundum ea quae proponerentur legatarios sibi adquisisse.
After Stichus had been manumitted by the testament, the usufruct of a farm had been bequeathed to him; and when he had ceased to use and enjoy it, the testator committed to the good faith of the heirs that they give that farm to Lucius Titius. But Stichus, by his own testament, bequeathed the ownership (proprietorship) of the same farm to his grandsons, and the heirs of Stichus, in accordance with his testament, delivered that farm to the legatees, his grandsons. The question was raised, since the grandsons, the legatees, were ignorant of the condition of the aforesaid farm imposed by the prior testament and possessed it for more than the prescribed time, whether they had acquired the farm for themselves. He responded that, according to the matters proposed, the legatees had acquired it for themselves.
Idem quaesiit, si aliquo casu legatariis auferri possit, an repetitionem ab heredibus stichi eius nepotes habere possint. respondit supra quidem de adquisitione responsum: verum si ex alia causa adquisitio cessasset, videri stichum, si post mortem eorum, quibus proprietas legata esset, testamentum fecisset, potius quod habere se crederet, quam quod onerare heredes vellet, legasse.
The same man asked, if in some case it could be taken away from the legatees, whether Stichus’s grandsons could have a repetition against the heirs. He answered that above indeed there had been an answer about acquisition; but if the acquisition had failed for another cause, it would seem that, if after the death of those to whom ownership had been bequeathed the testator had made a testament, he bequeathed Stichus rather as what he believed himself to have than as what he wished to burden the heirs with.
"uxori meae usum fructum lego bonorum meorum, usque dum filia mea annos impleat octodecim": quaesitum est, an praediorum tam rusticorum quam urbanorum et mancipiorum et supellectilis itemque calendarii usus fructus ad uxorem pertineat. respondit secundum ea quae proponerentur omnium pertinere.
"I bequeath to my wife the usufruct of my goods, until my daughter completes eighteen years": it was asked whether the usufruct of the estates both rustic and urban, and of the slaves and the household furnishings likewise, and also of the ledger of debts (calendarium), belongs to the wife. He responded that, according to the matters that were set forth, it all pertains to her.
"fundi aebutiani reditus uxori meae quoad vivat dari volo": quaero, an possit tutor heredis fundum vendere et legatario offerre quantitatem annuam, quam vivo patre familias ex locatione fundi redigere consueverat. respondit posse. item quaero, an habitare impune prohiberi possit.
"I wish the revenues of the Aebutian estate to be given to my wife as long as she lives": I ask whether the tutor (guardian) of the heir can sell the estate and offer to the legatee the annual amount which, while the paterfamilias was alive, he was accustomed to collect from the leasing of the estate. He answered that he can. Likewise I ask whether he can be forbidden to dwell there with impunity.
Filios heredes instituit, uxori vestem mundum muliebrem lanam linum et alias res legavit et adiecit: "proprietatem autem eorum, quae supra scripta sunt, reverti volo ad filias meas quaeve ex his tunc vivent": quaesitum est, utrum usus fructus an proprietas earum rerum data sit. respondit proprietatem legatam videri.
He appointed his sons as heirs; to his wife he bequeathed clothing, a woman’s finery (mundus muliebris), wool, linen, and other things, and he added: “but I wish the ownership (proprietas) of those things which are written above to revert to my daughters, whichever of them shall then be living.” It was asked whether a usufruct (usus fructus) or the ownership of those things was given. He replied that ownership appears to have been bequeathed.
In fructu id esse intellegitur, quod ad usum hominis inductum est: neque enim maturitas naturalis hic spectanda est, sed id tempus, quo magis colono dominove eum fructum tollere expedit. itaque cum olea immatura plus habeat reditus, quam si matura legatur, non potest videri, si immatura lecta est, in fructu non esse.
It is understood to be in the fruit, that which has been brought into human use: for natural ripeness is not to be regarded here, but that time at which it is more expedient for the tenant-farmer or the owner to take that fruit. And so, since the olive when unripe has more revenue than if it is gathered when ripe, it cannot seem, if it was gathered unripe, not to be among the fruits.
Nihil interest, utrum bonorum quis an rerum tertiae partis usum fructum legaverit: nam si bonorum usus fructus legabitur, etiam aes alienum ex bonis deducetur, et quod in actionibus erit, computabitur. at si certarum rerum usus fructus legatus erit, non idem observabitur.
It makes no difference whether someone has bequeathed the usufruct of the goods or of a third part of the things: for if the usufruct of the goods is bequeathed, even the debt will be deducted from the goods, and what is in actions (claims) will be computed. But if the usufruct of certain specific things is bequeathed, the same will not be observed.
Qui duas tabernas coniunctas habebat, eas singulas duobus legavit: quaesitum est, si quid ex superiore taberna in inferiorem inaedificatum esset, num inferior oneri ferundo in superioris tabernae loco contineretur. respondit servitutem impositam videri. iulianus notat: videamus, ne hoc ita verum sit, si aut nominatim haec servitus imposita est aut ita legatum datum est: "tabernam meam uti nunc est do lego".
He who had two adjoining shops bequeathed them separately to two persons: the question was raised, if something from the upper shop had been built into the lower, whether the lower would be held, for bearing the burden, in the place of the upper shop. He responded that a servitude seems to have been imposed. Julian notes: let us see whether this is true only if either this servitude has been imposed by name, or the legacy has been given thus: "I give and bequeath my shop as it now is."
Si fundum maevio et ad eum viam per alium fundum et eundem fundum sine via titio legasset, si uterque fundum vindicasset, sine via legato fundum cessurum, quia neque adquiri per partem servitus possit. et si prius maevius fundum vindicaret altero deliberante, posse dubitari, an, si postea titius omisisset, viae legatum salvum esset, et hoc magis videbatur: quamquam si sub condicione quis fundum legasset, viam pure, aut pro parte fundum pure, pro parte sub condicione et viam sine condicione, si pendente ea legati dies cessisset, interiturum fore viae legatum: ut responsum est, cum alteri ex vicinis, qui fundum communem habebant, viam sub condicione, alteri pure legasset et pendente condicione decessisset, quia alterius legatarii persona impedimento esset, quo minus solidus fundus cum via vindicaretur.
If he had bequeathed an estate to Maevius and, to it, a right of way through another estate, and the same estate without a way to Titius, if each had vindicated the estate, the estate would go to the legatee without the way, because a servitude cannot be acquired in part. And if Maevius were first to vindicate the estate while the other was deliberating, it can be doubted whether, if afterwards Titius had desisted, the legacy of the way would remain intact, and this seemed more likely: although if someone had bequeathed the estate under condition, the way purely, or as to a part the estate purely, as to a part under condition and the way without condition, if, while that was pending, the time for the legacy had accrued, the legacy of the way would be extinguished: as was answered when, to one of the neighbors who had a common estate, he had bequeathed a way under condition, to the other purely, and had died while the condition was pending, because the person of the other legatee was an impediment, so that the entire estate together with the way could not be vindicated.
Si is qui duas aedes habebat unas mihi, alteras tibi legavit et medius paries, qui utrasque aedes distinguat, intervenit, eo iure eum communem nobis esse existimo, quo, si paries tantum duobus nobis communiter esset legatus, ideoque neque me neque te agere posse ius non esse alteri ita immissas habere: nam quod communiter socius habet, et in iure eum habere constitit: itaque de ea re arbiter communi dividundo sumendus est.
If the man who had two houses bequeathed one to me and the other to you, and the middle wall, which distinguishes both houses, intervenes, I reckon that by that right it is common to us, just as if the wall alone had been bequeathed to the two of us in common; and therefore neither I nor you can bring an action alleging that it is not lawful for the other to have such insertions into it; for what a partner holds in common, it is established that he also holds in law: and so an arbiter for a division of common property must be appointed in this matter.
Etsi maxime testamenti factio cum servis alienis ex persona dominorum est, ea tamen quae servis relinquuntur ita valent, si liberis relicta possent valere: sic ad fundum domini via servo frustra legatur.
Although in the main testamentary capacity with another’s slaves is by the person of their masters, nevertheless the things that are left to slaves are valid only to the extent that, if left to free persons, they could be valid: thus a right of way to the master’s fundus is bequeathed to a slave in vain.
Pater filiae domum legavit eique per domus hereditarias ius transeundi praestari voluit. si filia domum suam habitet, viro quoque ius transeundi praestabitur: alioquin filiae praestari non videbitur. quod si quis non usum transeundi personae datum, sed legatum servitutis esse plenum intellegat, tantundem iuris ad heredem quoque transmittetur: quod hic nequaquam admittendum est, ne, quod affectu filiae datum est, hoc et ad exteros eius heredes transire videatur.
A father bequeathed a house to his daughter and wished that for her the right of passing through the hereditary houses be afforded. If the daughter should inhabit her own house, the right of passing through will be afforded to her husband as well; otherwise, it will not be seen to have been afforded to the daughter. But if someone should understand that not a personal use of passing through was given, but that there is a full legacy of a servitude, just as much right will be transmitted to her heir also: which here is by no means to be admitted, lest what was given out of affection for the daughter seem to pass also to her outside heirs.
Et ideo si inter virum et uxorem convenerat, ut morte viri soluto matrimonio filio communi interveniente dos apud mariti heredem remaneret, et maritus decedens dotem relegaverit, stari pacto non debet ob hoc quod dos relegata est. verum et citra relegationem hoc probari debet: nam quod est admissum posse deteriorem condicionem dotis fieri intervenientibus liberis, totiens locum habet, quotiens ipsa in matrimonio decedit vel divortium intervenit.
And therefore, if it had been agreed between husband and wife that, upon the marriage being dissolved by the husband’s death, a common son intervening, the dowry should remain with the husband’s heir, and the husband, when dying, has bequeathed the dowry, one ought not to abide by the pact on the ground that the dowry has been made a legacy. But even without any legacy this should be maintained: for the rule admitted—that the condition of the dowry can be made worse upon children intervening—applies only as often as she herself dies in marriage or a divorce occurs.
Sed et si dotem promiserit mulier neque dederit et decedens maritus uxori dotem praelegaverit, mulier nihil amplius quam liberationem habebit: nam et si quis ita legaverit " centum quae in arca habeo" aut " quae ille apud me deposuit", si nulla sint, nihil deberi constat, quia nulla corpora sint.
But also, if a woman has promised a dowry and has not given it, and the husband, dying, has bequeathed the dowry to his wife as a pre-legacy, the woman will have nothing more than a release: for even if someone has thus bequeathed, " centum which I have in the coffer" or " what that man deposited with me," if there are none, it is agreed that nothing is owed, because there are no bodies.
Celsus libro vicesimo digestorum scribit, si socer nurui dotem relegavit, si quidem ius actionis de dote voluit relegare, nullius momenti esse legatum, quippe nupta est: sed si voluit eam recipere dotalem pecuniam, inquit, utile erit legatum. si tamen haec dotem receperit, nihilo minus maritus dotis persecutionem habebit, sive heres institutus esset, familiae herciscundae iudicio, sive non, utili actione. ego puto, quoniam non hoc voluit socer, ut bis dotem heres praestet, mulierem agentem ex testamento cavere debere defensu iri heredem adversus maritum.
Celsus, in the twentieth book of the Digest, writes: if a father-in-law has bequeathed a dowry to his daughter-in-law, then, if indeed he wished to bequeath the right of action concerning the dowry, the legacy is of no moment, since she is a married woman; but if, he says, he wished her to receive the dowry money, the legacy will be effective. If, however, she has received the dowry, nonetheless the husband will have the pursuit of the dowry, whether he were instituted heir—by the action for partition of the family property (familiae herciscundae iudicium)—or, if not, by a useful action (actio utilis). I for my part think, since the father-in-law did not intend that the heir should furnish the dowry twice, that the woman suing under the testament ought to give security that the heir will be defended against the husband.
Per contrarium apud iulianum libro trigesimo septimo quaeritur, si socer filio suo exheredato dotem nurus legasset: et ait agi quidem cum marito exheredato de dote non posse, verumtamen ipsum dotem persecuturum ex causa legati: sed non alias eum legatum consecuturum, quam si caverit heredes adversus mulierem defensu iri. et differentiam facit inter eum, cui dos relegata est, et orcinum libertum, cui peculium legatum est: namque eum de peculio posse conveniri ait, heredem non posse, quia peculium desiit penes se habere: at dotis actio nihilo minus competit, etsi dotem desierit habere.
Conversely, in Julian, book thirty-seven, the question is raised, if a father-in-law, his son having been disinherited, had bequeathed the dowry of his daughter-in-law: and he says that suit indeed cannot be brought against the disinherited husband concerning the dowry; nevertheless he himself will pursue the dowry by reason of the legacy; but he will not otherwise obtain the legacy than if he has given security that the heirs will be defended against the woman. And he makes a distinction between the one to whom the dowry has been bequeathed and the testamentary (orcinus) freedman to whom the peculium has been left: for he says that the latter can be sued with respect to the peculium, but the heir cannot, because the peculium has ceased to be in his possession; whereas the action for dowry none the less lies, even if he has ceased to have the dowry.
Idem quaerit, si dos alii legata esset eamque rogatus sit mulieri restituere, an lex falcidia in legato locum haberet. et dicit habere: sed quod minus est in fideicommisso, mulierem dotis actione consecuturam. ego quaero, an commoda repraesentationis in hoc legato sic observentur atque si dos ipsi mulieri fuisset relegata.
He likewise asks, if a dowry had been bequeathed to another and he had been requested to restore it to the woman, whether the Lex Falcidia would have place in the legacy. And he says it does; but that, to the extent there is a shortfall in the fideicommissary bequest, the woman will obtain it by the action for dowry. I ask whether the advantages of representation in this legacy are thus observed just as if the dowry had been bequeathed to the woman herself.
Idem iulianus quaerit, si mulieri dos sit relegata eaque rogata dotem restituere, an falcidia locum habeat. et negat habere, quoniam fideicommissum quoque negat valere. quod si praeterea quid uxori legatum sit, putat ex residuo fideicommissum praestari: quod utique habita ratione falcidiae mulieri praestabitur.
The same Julianus asks whether, if a dowry has been left by legacy to a woman and she has been asked to restore the dowry, the falcidia has a place. And he says it does not, since he also says that the fideicommissum is not valid. But if, moreover, something has been bequeathed to the wife besides, he thinks the fideicommissum is to be rendered out of the residue; which in any case, account being taken of the falcidia, will be furnished to the woman.
but also, where the husband, appointed heir to a share, has had the dowry prelegated to him by his father-in-law, the legacy of the dowry will undergo the Falcidian reduction, namely because, with the marriage still subsisting, the dowry appears to have been bequeathed as something not owed; but what falls back by the Falcidia the husband will take by preemption in the action for dividing the family estate (familiae herciscundae), just as he would preempt the whole dowry if it had not been bequeathed.
Cum quis uxori suae dotem relegat fideique commissum ab ea relinquit, hoc fideicommissum ex commodo, quod ex relegatione mulier sentit, aestimabitur, et ita celsus quoque libro vicesimo digestorum scripsit. quod si necessariae fuerunt impensae, quae ipso iure dotem minuunt, amplius dici potest, si tanta quantitas dotis, quam maritus accepit, ei relegata est, oportere dici etiam eam quantitatem posse fideicommissum erogare, quae ipso iure dotem minuit: esse enim mulierem legatariam nemo est qui dubitet. sed et si non dos, sed pro dote aliquid uxori fuerit legatum, adhuc quasi dos relegata accipitur.
When someone leaves to his wife her dowry by legacy and imposes upon her a fideicommissum, this fideicommissum will be assessed out of the benefit which the woman derives from the legacy; and thus Celsus also wrote in the twentieth book of the Digest. But if there were necessary expenditures which, by operation of law, diminish the dowry, more can be said: if such an amount of the dowry as the husband received has been bequeathed to her, it ought to be said that even that amount which, by operation of law, diminishes the dowry can be expended to discharge the fideicommissum; for there is no one who doubts that the woman is a legatee. But even if not the dowry, but something in place of a dowry has been left to the wife by legacy, it is still taken as though a dowry were bequeathed.
julian wrote this further: even if it has not been added that the legacy is for a dowry, nevertheless, since it was left with this intention, it is still of that condition. therefore, if the wife is asked to restore either the dowry, or what has been bequeathed in lieu of a dowry, or what has been assigned to her in the stead of a dowry, she will not be compelled to restore except to the extent to which we have said; and therefore an heiress instituted and requested to restore the amount of the inheritance will restore only that which exceeds the amount of the dowry, and that which she realizes from the benefit of representation. for even if someone, after he had received a dowry from his daughter-in-law, should institute his son as his heir and request him to restore whatever from the inheritance had come to him, then, upon the death of his wife, the son has gained the dowry, he will not restore that which he received from the dowry, because he gained it by reason of marriage, not by his father’s decision.
Mulier dotem promisit quadringentorum et dedit fundos duos in ducenta, praeterea nomina debitorum in residua ducenta: mox maritus eius decedens pro dote fundos ei duos non eos, quos in dotem acceperat, reliquit et praeterea duos illos dotales, quos aestimatos acceperat, reliquit fideique eius commisit, ut, quidquid ad se ex hereditate eius pervenisset, id restitueret seio cum moreretur: quaerebatur, quantum esset in fideicommisso muliere defuncta. dicebam uxorem hanc, quae rogata est, quidquid ad se pervenerit ex testamento, restituere, in ea esse condicione, ut id demum restituere rogetur, quod deducta dotis quantitate ad eam pervenit: dotem enim recepisse eam magis quam accepisse, salvo eo, quod ex commodo repraesentationis ab ea fideicommitti potuit. proinde id quidem, quod pro dote maritus ei reliquit, non cogetur restituere, nisi plus fuit in eo quam in quantitate dotis: residuum vero, quod praeterea illi relictum est, cum fructibus cogetur restituere.
A woman promised a dowry of four hundred and gave two estates for two hundred, and, moreover, the names of debtors for the remaining two hundred: soon her husband, dying, left to her, in satisfaction of the dowry, two estates, not those which he had received as dowry; and in addition he left those two dotal ones which he had received as appraised, and committed to her good faith that whatever from his inheritance should come to her she should restore to Seius when she died: the question was asked how much there was in the fideicommissum upon the woman’s death. I said that this wife, who was requested to restore whatever had come to her from the will, is in this condition, that she is asked to restore only that which, the amount of the dowry having been deducted, came to her: for she is to be deemed to have recovered the dowry rather than to have received it, saving that which, from the advantage of representation, could have been made the subject of a fideicommissum by her. Accordingly, what the husband left her in lieu of the dowry she will not be compelled to restore, unless there was more in it than the amount of the dowry: but the residue, which besides was left to her, she will be compelled to restore with the fruits.
Dote relegata non est heres audiendus, si velit ob donationes in mulierem factas solutionem differre vel ob impensas alias, quam quae ipso iure dotem minuunt: aliud est enim minorem esse factam dotem, quod per necessarias impensas accidit, aliud pignoris nomine retineri dotem ob ea, quae mulierem invicem praestare aequum est.
When the dowry has been bequeathed by legacy, the heir is not to be heard if he wishes to defer payment on account of donations made to the woman or on account of expenses other than those which by the law itself diminish the dowry: for it is one thing that the dowry has been made smaller, which happens through necessary expenses; it is another that the dowry is retained by way of pledge on account of those things which it is equitable that the woman should in turn provide.
Cum scriptum esset: "quae pecunia propter uxorem meam ad me venit quinquaginta, tantundem pro ea dote heres meus dato", quamvis quadraginta dotis fuissent, tamen quinquaginta debere alfenus varus servium respondisse scribit, quia proposita summa quinquaginta adiecta sit.
When it had been written: "as for the money which has come to me on account of my wife—fifty—let my heir give just as much for her as dowry," although forty had been the dowry, nevertheless Alfenus Varus writes that Servius replied that fifty are owed, because the stated sum of fifty has been appended.
Item ei, quae dotem nullam habebat, vir sic legaverat: "quanta pecunia dotis nomine" et reliqua, " pro ea quinquaginta heres dato". deberi ei legatum ofilius cascellius, item et servii auditores rettulerunt: perinde habendum esse ac si servus alicui mortuus aut pro eo centum legata essent. quod verum est, quia his verbis non dos ipsa, sed pro dote pecunia legata videtur.
Likewise, to her who had no dowry, the husband had thus bequeathed: "as much money under the name of dowry" and the rest, " for that let the heir give fifty." Ofilius and Cascellius, and likewise the auditors of Servius, reported that a legacy was owed to her: it should be held just as if a slave belonging to someone had died, or as if one hundred had been bequeathed on his account. Which is true, because by these words not the dowry itself, but money in lieu of a dowry seems to have been bequeathed.
Sed si lex falcidia locum in legato dotis adversus filium exheredatum habuerit et mulier solutionem ratam fecerit, propter eam quantitatem, quam heres retinuerit, utilis actio dotis ei dabitur. quod si ratum non habeat, defendi quidem debebit heres a viro, qui se defensurum promisit: sed si totam litem vir solus subierit, actio iudicati, si cautum non erit, pro ea quantitate, quae iure falcidiae petenda est, adversus heredem dabitur.
But if the Falcidian law has place in a legacy of dowry against a disinherited son, and the woman has ratified the payment, then for that amount which the heir has retained a useful action for the dowry will be given to her. But if she does not ratify it, the heir ought indeed to be defended by the husband, who promised that he would conduct the defense; but if the husband alone has undertaken the whole lawsuit, the action on the judgment, if no security has been provided, will be given against the heir for that amount which, by the Falcidian right, is to be claimed.
Sed si, priusquam legatum filio solveretur, mulier divertit, quamquam ipsa nondum praecipere dotem possit, non ideo tamen actio filii differtur: quia tunc isdem diebus filio solvi dotem responsum est, cum patri pro parte heres exstitit et ad praeceptionem dotis soluto matrimonio, postquam heres exstitit, admissus est.
But if, before the legacy was paid to the son, the woman divorced, although she herself cannot yet pre-take the dowry, nevertheless the son’s action is not on that account deferred: because it has been ruled that then, on those same days, the dowry is to be paid to the son, when he has become heir to his father for a share, and, upon the marriage being dissolved, after he has become heir, he is admitted to the preemption of the dowry.
Si forte per errorem cautio defensionis omissa sit ex causa fideicommissi filius dotem acceperit, ut indebitum fideicommissum non repeteretur: cautiones enim praestandae necessitas solutionem moratur, non indebitum facit quod fuit debitum: sed non erit iniquum heredi subveniri.
If perchance through error a security of defense was omitted, and by reason of a fideicommissum the son received the dowry, in order that the not‑owed fideicommissum might not be reclaimed: for the necessity of furnishing securities delays the payment, it does not make not‑owed what was owed: but it will not be inequitable for the heir to be given relief.
"uxori meae fundum cornelianum et quae nuptura optulit aestimata in speciebus restitui volo". respondi non aestimatum praedium in dotem datum exceptum non videri, sed universa dote praelegata rerum aestimatarum pretium non relictum, verum ipsas res, quales invenirentur.
"I wish the Cornelian estate to be restored to my wife, and the things which, when about to marry, she offered, appraised, to be restored in kind." I responded that an estate not appraised when given in dowry does not appear to be excepted; but, with the entire dowry prelegated, what has been left is not the price of the appraised things, but the things themselves, such as they may be found.
Seia cum nuberet lucio titio, dedit dotis nomine centum aureos et adhibuit quintum mucium, qui nihil numeravit, sed dotem stipulatus est, si morte mulieris solutum fuerit matrimonium. seia moriens testamento suo ita cavit: "lucio titio marito meo, cui maximas gratias ago, dari volo super dotem, quam ei dedi, tot aureos". quaero, cum instituit lucium titium convenire quintus mucius ex stipulatu actione, an repellere eum maritus possit ex verbis testamenti. respondit, si quintus mucius mandante seia non donationis causa stipulatus est, heredibus mulieris eum teneri et ideo quintum mucium exceptione repellendum esse.
seia, when she was marrying lucius titus, gave in the name of dowry 100 gold pieces and brought in quintus mucius, who paid nothing, but stipulated the dowry if the marriage should be dissolved by the woman’s death. seia, dying, provided thus in her will: “to my husband lucius titus, to whom I give the greatest thanks, I wish to be given, over and above the dowry which I gave him, so many gold pieces.” I ask, when quintus mucius sets about to proceed against lucius titus by the action ex stipulatu, whether the husband can repel him by the words of the testament. he answered: if quintus mucius, at seia’s mandate, stipulated not for the sake of donation, he is held to the woman’s heirs, and therefore quintus mucius must be repelled by an exception.
Qui dotem in pecunia numerata et aestimatis rebus acceperat, uxori ita legavit: "seiae uxori meae, si omnes res, quae tabulis dotalibus contineantur, heredi meo exhibuerit et tradiderit, summam dotis, quam mihi pro ea pater eius intulit, dari volo: hoc amplius denarios decem". quaesitum est, cum res in dotem datae plures ipso usu finitae essent nec moriente marito fuerant, an quasi sub impossibili condicione legatum datum debeatur. respondi videri condicioni paritum, si quod ex rebus in dotem datis supererat, in potestatem heredis pervenit.
He who had received a dowry in counted money and appraised goods thus bequeathed to his wife: "to Seia my wife, if she shall have exhibited and delivered to my heir all the things which are contained in the dowry tablets, I will that the sum of the dowry which her father brought in to me on her account be given; in addition to this, ten denarii". It was asked, since many of the things given into dowry had by their very use been used up and were not in existence at the husband’s death, whether the legacy should be due as if under an impossible condition. I answered that the condition seems to have been complied with, if whatever remained of the things given into dowry came into the heir’s power.
Theopompus testamento facto duas filias et filium aequis partibus instituit heredes et codicillis ita cavit: " tyn vugatera mou krispinan, hyn yuxomyn ekdounai, hw an ohi filoi mou kai ohi suggeneis dokimaswsi, pronoysei ekdovynai pollianos eidws mou tyn gnwmyn epi tois isois, ef' ohis kai tyn adelfyn autys ecedwka". pollianus a marito puellae iuratus scripsit voluisse patrem eandem quantitatem in dotem accipere etiam minorem filiam, quam maior accepisset. quaero, an eandem summam dotis nomine coheredes extra partem hereditatis minori filiae praestare debeant. respondit eum cuius notio est aestimaturum, ut eadem quantitas ex communi praecipua minori filiae dotis nomine detur.
Theopompus, a testament having been made, instituted two daughters and a son as heirs in equal parts, and in codicils he thus provided: "my daughter Crispina, whom we are going to give in marriage, to whomever my friends and my relatives shall approve, Pollianus shall take care to give her in marriage, knowing my intention with respect to equal terms, on which terms I also gave her sister." Pollianus, having sworn at the instance of the girl’s husband, wrote that the father had wished that the younger daughter also receive the same quantity in dowry as the elder had received. I ask whether the coheirs ought to furnish, under the name of dowry, the same sum to the younger daughter outside their share of the inheritance. He replied that the official whose cognizance it is will assess that the same amount be given from the common fund as a praecipuum to the younger daughter under the name of dowry.
Licet placeat pigneratas res vel in publicum obligatas heredem, qui dare iussus est, liberare debere, tamen si is qui tales res in dotem accepit dotem praelegaverit, non cogetur heres liberare eas, nisi aliud specialiter testator dixerit.
Although it is accepted that the heir who has been ordered to give ought to liberate pledged things or those obligated to the public fisc, nevertheless, if he who received such things as dowry has pre-legated the dowry, the heir will not be compelled to liberate them, unless the testator has said something else specifically.
Qui dotem a matre uxoris acceperat et stipulanti ei promiserat, testamento uxori dotem legavit. cum quaesitum esset, an uxor dotis summam consequi posset, respondit scaevola non videri dari uxori, quod necesse sit matri reddi. alias sic respondit non videri, nisi manifeste uxor docuisset eam testantis voluntatem fuisse, ut onerare heredes duplici praestatione dotis vellet.
He who had received the dowry from his wife's mother and had promised it to her upon her stipulation, by his will bequeathed the dowry to his wife. When it was asked whether the wife could obtain the sum of the dowry, Scaevola replied that it does not seem to be given to the wife, because it must be returned to the mother. Elsewhere he answered thus: it is not deemed so, unless the wife had manifestly shown that this had been the testator's will, that he wished to burden the heirs with a double prestation of the dowry.
Uxori ita legavit: "uxor mea quidquid ei comparavi et quod mihi dedit e medio sibi sumat": quaero, an dos praelegata videatur. respondit verbis quae proponerentur videri et de dote legata loqui, nisi aliud testatorem voluisse probaretur.
He thus bequeathed to his wife: “let my wife take for herself, out of the common stock, whatever I acquired for her and what she gave to me”: I ask whether the dowry seems to have been prelegated. He responded that by the words set forth it appears to speak also of a dowry bequeathed, unless it were proved that the testator had wished otherwise.
Mancipiorum electio legata est. ne venditio, quandoque eligente legatario, interpelletur, decernere debet praetor, nisi intra tempus ab ipso praefinitum elegisset, actionem legatorum ei non competere. quid ergo si die praeterito, sed antequam venderet heres, vindicare legatarius velit?
A selection of slaves has been bequeathed. In order that the sale not be hindered whenever the legatee is choosing, the praetor ought to decree that, unless he has chosen within the time-limit set by himself, the action for legacies does not lie for him. What then if, the day having passed, but before the heir sells, the legatee wishes to bring a vindication?
Unius hominis mihi et tibi optio data est: cum ego optassem, si non mutassem voluntatem, deinde tu eundem optaveris, utriusque nostrum servum futurum: quod si ante decessissem vel furiosus factus essem, non futurum communem, quia non videor consentire, qui sentire non possim: humanius autem erit, ut et in hoc casu quasi semel electione facta fiat communis.
The option of one man has been given to me and to you: when I had chosen, if I had not changed my will, and then you had chosen the same man, he would be the slave of both of us; but if I had died beforehand or had become insane, he would not become common, because I do not seem to consent, I who cannot perceive: however, it will be more humane that even in this case he become common, as if by a single election once made.
Quaesitum est, si stichus sub condicione liber esse iussus sit et mihi optio servi data esset vel servus generaliter legatus esset, quid iuris esset. dixi commodius constitui eum, qui sub condicione libertatem sticho det et optionem servorum, non cogitare de sticho, sicuti constat non cogitare eum de eo, cui praesentem libertatem dederit: secundum quod si stichum optavero vel elegero, nihil agam et ex ceteris nihilo minus optabo.
It was asked, if Stichus has been ordered to be free under a condition and the option of a slave had been given to me, or a slave had been bequeathed generally, what the law would be. I said it is more expedient to establish that he who gives liberty to Stichus under a condition and (also) grants an option of slaves should not think about Stichus, just as it is agreed that he does not think about one to whom he has given present liberty: according to which, if I have opted for or chosen Stichus, I accomplish nothing, and I shall nonetheless opt from the others.
In eodem casu quaesitum est, si optione servorum data, antequam optarem, condicio statutae libertatis defecisset, an stichum optare possim. puto mucianae sententiae adsentiendum, qua placet ipsa libertate legatum peremi, non datione statutae libertatis: quare sive vivo testatore sive post mortem eius et ante aditam hereditatem condicio statutae libertatis defecerit, legatum erit utile: nam sicut pura libertas, ita statuta libertas aditae hereditatis tempore vires accipit. ideoque stichum optare possum.
In the same case it has been asked, if an option of slaves having been given, before I should choose, the condition of the stipulated liberty had failed, whether I can choose Stichus. I think one must assent to the Mucian opinion, by which it is held that the legacy is destroyed by the liberty itself, not by the granting of the stipulated liberty: wherefore, whether while the testator is alive or after his death and before the inheritance is entered upon, if the condition of the stipulated liberty has failed, the legacy will be effective; for just as pure liberty, so also stipulated liberty receives force at the time of the inheritance being entered upon. And therefore I can choose Stichus.
Si pamphilo servo lucii titii servus generaliter legatus sit, deinde dominus pamphili, postquam dies legati cesserit, eum manumisisset: si quidem titius servum vindicaverit, exstinguitur pamphili legatum, quia non esset in hereditate qui possit optari. si vero titius legatum a se repudiasset, pamphilum optare posse legatum constat: licet enim manumissione pamphili duae personae constituerentur titii et pamphili, unius tamen rei legatum inter eas vertitur et titio vindicante optio exstinguitur, repudiante pamphilus optare potest.
If the slave Pamphilus, a slave of Lucius Titius, has been bequeathed generally, and then Pamphilus’s master, after the day of the legacy has accrued, manumits him: if indeed Titius has vindicated the slave, Pamphilus’s legacy is extinguished, because there would not be in the inheritance one who could be opted for (that is, be the object of the option). But if Titius had repudiated the legacy as to himself, it is settled that Pamphilus can opt for the legacy: for although by Pamphilus’s manumission two personae would be constituted—Titius’s and Pamphilus’s—yet the legacy of one and the same thing is at issue between them, and when Titius vindicates, the option is extinguished; when he repudiates, Pamphilus can opt.
Si eros seio legatus sit et eroti fundus, deinde optio servi maevio data fuerit isque erotem optaverit, fundus ad solum seium pertinebit, quoniam aditae hereditatis tempore is solus erit, ad quem posset legatum pertinere. nam et cum servo communi alter ex sociis legat, idcirco ad solum socium totum legatum pertinet, quoniam die legati cedente solus est, qui per eum servum possit adquirere.
If Eros has been bequeathed to Seius and the farm to Eros, then if thereafter the option of the slave has been given to Maevius and he has opted for Eros, the farm will pertain to Seius alone, since at the time the inheritance is entered upon he will be the only one to whom the legacy could pertain. For also when, in the case of a common slave, one of the partners bequeaths, for that reason the whole legacy pertains to that partner alone, since on the day the legacy vests he alone is the one who can acquire through that slave.
Si optio servi data mihi fuerit et sticho aliquid testator sine libertate legasset, tunc sequens legatum consistit, cum tota familia ad unum, id est stichum recciderit, ut quasi pure legato utiliter sit legatum. nec adversatur catoniana, si voluntarius heres institutus sit, quia potest ante aditam hereditatem, etiamsi statim decesserit, familia minui: quod si necessarius heres institutus sit, sequens legatum propter catonianam inutile est.
If the option of a slave has been given to me and the testator has bequeathed something to Stichus without liberty, then the subsequent legacy stands, when the whole familia has devolved upon one person, that is, upon Stichus, so that it is validly bequeathed as though by a pure legacy. Nor does the Catonian rule oppose, if a voluntary heir has been instituted, because before the inheritance has been entered upon, even if he should die immediately, the familia can be diminished; but if a necessary heir has been instituted, the subsequent legacy is useless on account of the Catonian rule.
Pomponius scribit emptore hereditatis postulante, ut is, cui servi optio legata sit, optet, videndum esse, an praetor ut id faciat cogere debeat legatarium, quemadmodum si heres institutus id postularet, quia potest per heredem id emptor consequi: et quare non possit, non video.
Pomponius writes that, upon the purchaser of an inheritance petitioning that the one to whom an option of a slave has been bequeathed should make his choice, it must be considered whether the praetor ought to compel the legatee to do that, just as if the instituted heir were making that demand, because the purchaser can obtain it through the heir; and why he could not, I do not see.
Si, cum optio servi ex universa familia legata esset, heres aliquem priusquam optaretur manumisit, ad libertatem eum interim non perducit, servum tamen quem ita manumiserit amittit, quia is aut electus legato cedit aut relictus tunc liber ostenditur.
If, when an option of a slave out of the entire household had been bequeathed, the heir manumitted someone before a selection was made, he does not in the meantime bring him to freedom; nevertheless he loses the slave whom he has thus manumitted, because that person either, if chosen, cedes to the legatee under the legacy, or, if left unchosen, is then shown to be free.
Apud aufidium libro primo rescriptum est, cum ita legatum est: "vestimenta quae volet triclinaria sumito sibique habeto", si is dixisset quae vellet, deinde, antequam ea sumeret, alia se velle dixisset, mutare voluntatem eum non posse, ut alia sumeret, quia omne ius legati prima testatione, qua sumere se dixisset, consumpsit, quoniam res continuo eius fit, simul ac si dixerit eam sumere.
In Aufidius, Book One, it is written that, when a bequest is in these terms: “let him take the triclinal coverings which he shall wish and keep them for himself,” if the beneficiary had stated which ones he wished, and then, before he took them, said that he wished others, he cannot change his intention so as to take others, because he has exhausted the whole right of the legacy by the first attestation, in which he said that he would take; since the thing becomes his immediately, as soon as he has said that he takes it.
Filium et uxorem heredes scripsit, filiam exheredavit et ei legatum dedit, cum in familia nuberet, centum et, cum in familia nupserit, his verbis: "insuper arbitratu semproniae matris eius mancipia decem, quae confestim post aditam hereditatem meam a sempronia uxore mea eligi volo: quae mancipia, cum in familiam nupserit, dari volo. et si antequam nupserit, aliquod ex mancipiis decesserit, tunc in locum eius arbitratu semproniae matris eius dari volo, dum ad eam plenus numerus perveniat. quod si sempronia mater eius non elegerit, tunc ipsa sibi quae volet eligat". quaesitum est, cum mater elegerit, an ea, quae ex his mancipiis ante nuptias adgnata sunt, ad puellam supra numerum decem mancipiorum pertineant.
He appointed his son and his wife as heirs, disinherited his daughter, and gave her a legacy of 100 if she should marry in the family, and, when she shall have married in the family, in these words: "in addition, at the discretion of Sempronia, her mother, 10 slaves (mancipia), which I wish to be chosen at once after my inheritance has been entered upon by Sempronia, my wife: which slaves I wish to be given when she shall have married in the family. And if, before she marries, any one of the slaves should die, then in its place I wish one to be given at the discretion of Sempronia, her mother, until the full number reaches her. But if Sempronia, her mother, shall not choose, then let she herself choose for herself such as she wishes." The question was raised, when the mother has chosen, whether those who have been born from these slaves before the nuptials pertain to the girl over and above the number of 10 slaves.
he responded that, since the testator transferred the legacy of the slaves to the time of the marriage, that which the maidservants have borne in the meantime does not pertain to the daughter. the same man asked whether, before the marriage, the fruits and use of those same slaves pertain to Sempronia the mother. he responded that nothing is put forward to show why they should pertain to the mother for the whole (in solidum).
Si vinum legatum sit, videamus, an cum vasis debeatur. et celsus inquit vino legato, etiamsi non sit legatum cum vasis, vasa quoque legata videri, non quia pars sunt vini vasa, quemadmodum emblemata argenti ( scyphorum forte vel speculi), sed quia credibile est mentem testantis eam esse, ut voluerit accessioni esse vino amphoras: et sic, inquit, loquimur habere nos amphoras mille, ad mensuram vini referentes. in doliis non puto verum, ut vino legato et dolia debeantur, maxime si depressa in cella vinaria fuerint aut ea sunt, quae per magnitudinem difficile moventur.
If wine has been bequeathed, let us see whether it is owed along with the vessels. And Celsus says that, when wine is bequeathed, even if it has not been bequeathed together with the vessels, the vessels too are considered bequeathed, not because the vessels are a part of the wine, just as the emblems of silver (perhaps of cups or of a mirror), but because it is credible that the mind of the testator is such that he wished amphorae to be an accession to the wine: and thus, he says, we speak of having a thousand amphorae, referring to the measure of the wine. As to dolia, I do not think it true that, with wine bequeathed, the dolia also are owed, especially if they have been set down in the wine-cellar or are those which, on account of their size, are difficult to move.
Cum certum pondus olei non adiecta qualitate legatur, non solet quaeri, cuius generis oleo uti solitus fuerit testator aut cuius generis oleum istius regionis homines in usu habeant: et ideo liberum est heredi, cuius vellet generis oleum legatario solvere.
When a fixed weight of oil is bequeathed with no quality added, it is not customary to inquire what kind of oil the testator was accustomed to use, or what kind of oil the people of that region have in use; and therefore it is free for the heir to discharge to the legatee oil of whatever kind he may wish.
Cui vinum heres dare damnatus est, quod in amphoris et cadis diffusum est dari debet, etiamsi vasorum mentio facta non est. item quamvis cum vasis cadis legatum est, tamen id quoque, quod in doliis, legatum esse videtur, sicuti, si servos omnes cum peculio cuiusque eorum legasset, etiam eos, quibus peculii nihil esset, legasse videretur.
To the person to whom the heir has been condemned to give wine, that which has been poured out into amphorae and casks ought to be given, even if no mention of the vessels has been made. Likewise, although the wine has been bequeathed together with the vessels, the casks, nevertheless that also which is in the dolia is considered to have been bequeathed, just as, if he had bequeathed all the slaves together with the peculium of each of them, he would be deemed to have bequeathed even those for whom there was no peculium at all.
Quidam heredem damnaverat dare uxori suae vinum oleum frumentum acetum mella salsamenta. trebatius aiebat ex singulis rebus non amplius deberi, quam quantum heres mulieri dare voluisset, quoniam non adiectum esset, quantum ex quaque re daretur. ofilius cascellius tubero omne, quantum pater familias reliquisset, legatum putant: labeo id probat idque verum est.
A certain man had bound his heir to give to his wife wine, oil, grain, vinegar, honey, salted provisions. trebatius said that for each item no more was owed than as much as the heir had wished to give to the woman, since it had not been added how much of each thing should be given. ofilius cascellius tubero think that all, as much as the paterfamilias had left, was bequeathed: labeo approves this, and this is true.
Si heres damnatus sit dare vinum, quod in doliis esset, et per legatarium stetit, quo minus accipiat, periculose heredem facturum, si id vinum effundet: sed legatarium petentem vinum ab herede doli mali exceptione placuit summoveri, si non praestet id, quod propter moram eius damnum passus sit heres.
If an heir has been condemned to give wine which was in the vats, and it was by the legatee’s doing that he did not receive it, the heir would be acting at his peril if he were to pour out that wine; but it has been decided that a legatee demanding the wine from the heir is to be removed by the exception of dolus malus, unless he makes good that which the heir has suffered as damage on account of his delay.
Si quis vinum legaverit, omne continetur, quod ex vinea natum vinum permansit. sed si mulsum sit factum, vini appellatione non continebitur proprie, nisi forte pater familias etiam de hoc sensit. certe zythum, quod in quibusdam provinciis ex tritico vel ex hordeo vel ex pane conficitur, non continebitur: simili modo nec camum nec cervesia continebitur nec hydromeli.
If anyone has bequeathed wine, everything is contained that, produced from the vineyard, has remained wine. But if mulsum has been made, it will not be properly contained under the appellation of wine, unless perhaps the paterfamilias also had this in mind. Certainly zythum, which in certain provinces is prepared from wheat or from barley or from bread, will not be contained: in a similar manner neither camum nor cervesia will be contained nor hydromel.
all these things are then not included under the name of wine, only if they were not held in the number (category) of wine by the testator: otherwise Sabinus writes that everything is contained under the appellation of wine which the paterfamilias held in the number of wine: therefore even vinegar, which the paterfamilias held in the number of wine, and zythum and camum and the rest, which according to people’s inclination and use will be held in the number of wine. but if all the wine which the paterfamilias had has soured, the legacy is not extinguished.
Item si quis vinum quod habuit legavit, deinde hoc coacuit, licet postea in aceti locum translatum sit a patre familias, vino legato continebitur, quia id, quod testamenti facti tempore vinum fuit, demonstratum est: et est hoc verum, nisi voluntas adversetur.
Likewise, if someone bequeathed the wine which he had, and then it soured, although afterwards it has been transferred into the place/category of vinegar by the paterfamilias, it will be contained under the legacy of the wine, because that which at the time of the making of the testament was wine has been indicated: and this is true, unless intention is opposed.
"ex eo vino quod in illo fundo nascetur, heres meus amphoras decem quotannis in annos singulos dato". quo anno natum non fuisset, ex superiore anno eius fundi eum numerum amphorarum heredem daturum sabinus existimat. quae sententia, si voluntas non adversetur, mihi quoque placet.
"from that wine which will be produced on that estate, let my heir give ten amphoras each year, in each several year." In any year in which it should not have been produced, Sabinus thinks that the heir will give from the previous year of that estate that number of amphoras. Which opinion, if the intention does not oppose, pleases me as well.
Vinum cum vasis legavit. negat trebatius quod in doliis sit deberi et sensum testatoris alium putat esse, verborum alium: ceterum dolia in vasis vinariis non essent. ego et si dolia in vasis vinariis non sunt, tamen non concederem trebatio vinum quod in doliis esset, id est quod in vasis non esset, non esse legatum.
He bequeathed wine together with the vessels. Trebatius denies that what is in the casks is owed, and thinks the intention of the testator to be one thing, the words another; moreover, casks would not be among wine-vessels. I, even if casks are not wine-vessels, nevertheless would not concede to Trebatius that the wine which is in the casks—that is, which is not in the vessels—is not bequeathed.
I think this is true: for one to whom wine with the vessels has been bequeathed, amphoras and cadi—in which we keep wines poured off—are bequeathed; for we pour wine into amphoras and cadi with this intention, that it be in these until it is approved for use, and of course we sell it with these amphoras and cadi; but into dolia we put it with a different intention, namely that from these afterward we either decant into amphoras and cadi, or that it be sold without the dolia themselves.
Fundum instructum libertis patronus testamento legavit: postea codicillis petit, ut morientes partes suas fundi superstitibus restituerent, nec instructi mentionem habuit. talem in causam fideicommissi deductum videri placuit, qualis fuerat legatus, sed medii temporis augmenta fetuum et partuum, item detrimenta fatalium fideicommisso contineri.
The patron by his testament bequeathed to his freedmen a farm stocked and furnished; later, by codicils, he requested that those dying should restore their shares of the farm to the survivors, and he made no mention of the “stocked and furnished” state. It was decided that, brought into the category of a fideicommissum, it should be regarded as of the same character as the legacy had been; but that the intermediate-time augmentations from fetuses and births, likewise the diminutions through fatalities, are contained in the fideicommissum.
Minor viginti annis instructa praedia consobrinae suae dari voluit et quosdam servos praediorum vivus manumisit. non idcirco servi manumissi praestabuntur, quod ad libertatem pervenire non possunt. idem iuris est, cum ex quavis alia causa libertas non competit.
Being less than twenty years of age, he wished the equipped estates to be given to his female cousin, and while alive he manumitted certain slaves of the estates. The manumitted slaves will not on that account be made good, since they cannot attain liberty. The same law holds when, from any other cause, liberty does not accrue.
Cum quidam duos fundos iunctos haberet et ex altero boves, cum opus fecissent, in alterum reverterentur, utrumque fundum cum instrumento legaverat. labeo trebatius boves ei fundo cessuros putant, ubi opus fecissent, non ubi manere consuevissent: cascellius contra. labeonis sententiam probo.
When a certain man had two contiguous farms, and the oxen, after doing work, used to return from one into the other, he had bequeathed each farm with its equipment. Labeo and Trebatius think the oxen will accrue to that farm where they had done work, not where they had been accustomed to stay; Cascellius holds the contrary. I approve Labeo’s opinion.
Si cui fundum et instrumentum eius legare vis, nihil interest, quomodo leges " fundum cum instrumento " an " fundum et instrumentum " an " fundum instructum " . paulus. immo contra: nam inter ea legata hoc interest, quod, si fundo alienato mortuus fuerit qui ita legavit, ex hac scriptura " fundum cum instrumento " nihil erit legatum, ex ceteris poterit instrumentum esse legatum.
If you wish to bequeath to someone an estate and its equipment, it makes no difference how you bequeath: " estate with equipment " or " estate and equipment " or " estate equipped ". paulus. on the contrary: for between those legacies this difference exists, that, if the one who so made the bequest has died after alienating the estate, from this wording " estate with equipment " nothing will have been bequeathed, but from the others the equipment can be the subject of a legacy.
Nepoti legaverat quae certa regione praedia habuerat ut instructa sunt, cum vino grano calendario, et adiecerat haec verba: "quidquid erit cum moriar in illa regione, et quidquid in quacumque specie erit in illa regione, vel quod meum erit". viva testatrice unus ex debitoribus condemnatus vivente testatrice satis non fecit: quaesitum est, an quod ex sententia iudicis deberetur ad nepotem pertineret. respondit nihil proponi, cur non deberetur.
She had bequeathed to her grandson the estates which she had had in a certain region, as they are furnished, together with wine, grain, and the calendarium (ledger of debts), and she added these words: "whatever there will be when I die in that region, and whatever in whatever kind there will be in that region, or whatever will be mine." While the testatrix was alive, one of the debtors, having been condemned while the testatrix was living, did not make satisfaction: it was asked whether what was owed by the judge’s sentence would pertain to the grandson. He replied that nothing is set forth why it should not be owed.
Tabernam cum caenaculo pardulae manumisso testamento legaverat cum mercibus et instrumentis et suppellectili quae ibi esset, item horreum vinarium cum vino et vasis et instrumento et institoribus, quos secum habere consueverat. quaesitum est, cum vivo testatore insula, in qua caenaculum fuit quod ei legatum erat, exusta sit, et post biennium eodem loco constituta nova, et horreum, quod eidem legatum erat, a testatore venierit, vini autem venditio dilata sit, ut ex eo commodo venirent, an universa legata pardula consequi possit. respondit ea, in quibus voluntas mutata esset, non deberi.
He had by will bequeathed to Pardula the freedwoman a shop with an upper room, together with the wares, equipment, and furnishings that were there; likewise a wine-warehouse with the wine and vessels and equipment and the factors whom he was accustomed to have with him. The question was asked: since, while the testator was alive, the apartment-building in which was the upper room that had been bequeathed to her was burned down, and after two years a new one was erected on the same site; and the warehouse, which had been bequeathed to the same, was sold by the testator; but the sale of the wine was deferred, so that they might be sold to advantage—whether Pardula could obtain all the legacies in full. He replied that those things in which the intention had been changed were not owed.
In instrumento fundi ea esse, quae fructus quaerendi cogendi conservandi gratia parata sunt, sabinus libris ad vitellium evidenter enumerat. quaerendi, veluti homines qui agrum colunt, et qui eos exercent praepositive sunt is, quorum in numero sunt vilici et monitores: praeterea boves domiti, et pecora stercorandi causa parata, vasaque utilia culturae, quae sunt aratra ligones sarculi falces putatoriae bidentes et si qua similia dici possunt. cogendi, quemadmodum torcularia corbes falcesque messoriae falces fenariae quali vindemiatorii exceptoriique, in quibus uvae comportantur.
Sabinus, in the books to Vitellius, plainly enumerates that in the equipment of a farm are those things which are prepared for the sake of procuring, gathering, and conserving the produce. For procuring: such as the men who cultivate the field, and those who exercise/supervise them are set over them, among whom are stewards (vilici) and monitors; further, tamed oxen, and herds prepared for the purpose of manuring, and vessels useful for cultivation, which are ploughs, mattocks, hoes, sickles, pruning-knives, two‑toothed hoes (bidentes), and whatever similar things can be named. For gathering: for example, presses (torcularia), baskets (corbes), and reaping-sickles, hay-sickles, grape‑harvest baskets (qualī) of the vintage‑workers and the receivers, in which grapes are carried.
De grege ovium ita distinguendum est, ut, si ideo comparatus sit, ut ex eo fructus caperetur, non debeatur: si vero ideo, quia non aliter ex saltu fructus percipi poterit, contra erit, quia per greges fructus ex saltu percipiuntur.
Concerning a flock of sheep, the distinction is to be made thus: if it has been acquired for this reason, that fruits (profits) be taken from it, it is not owed; but if for this reason—because otherwise the fruits from the woodland-pasture could not be taken—the contrary will be the case, because through flocks the fruits from the woodland-pasture are taken.
Quaesitum est, an frumentum, quod cibariis cultorum paratum foret, instrumento cederet. et plurimis non placet, quia consumeretur: quippe instrumentum est apparatus rerum diutius mansurarum, sine quibus exerceri nequiret possessio: accedit eo, quod cibaria victus magis quam colendi causa pararentur. sed ego puto et frumentum et vinum ad cibaria paratum instrumento contineri: et ita servium respondisse auditores eius referunt.
It has been asked whether grain which was prepared for the provisions of the tillers would cede to the instrument. And it does not please very many, because it would be consumed: for instrument is the apparatus of things that will last longer, without which the possession could not be worked; to this is added that provisions are prepared more for sustenance (victual) than for the sake of cultivating. But I think that both grain and wine prepared for provisions are contained in the instrument; and thus, his auditors report, Servius replied.
Conservandi fructus causa, veluti granaria, quia in his fructus custodiuntur, urceos capsellas, in quibus fructus componuntur: sed et ea, quae exportandorum fructuum causa parantur, instrumenti esse constat, veluti iumenta et vehicula et naves et cuppae et culei.
For the sake of preserving the fruits, for example granaries, since in these the fruits are kept, pitchers and little boxes, in which the fruits are arranged: but also those things which are prepared for the purpose of exporting the fruits are agreed to be equipment, such as beasts of burden and vehicles and ships and tubs and vats.
Alfenus autem, si quosdam ex hominibus aliis legaverit, ceteros, qui in fundo fuerunt, non contineri instrumento ait, quia nihil animalis instrumenti esse opinabatur: quod non est verum: constat enim eos, qui agri gratia ibi sunt, instrumento contineri.
Alfenus, however, says that if he has bequeathed some from among the persons, the rest who were on the estate are not contained in the equipment, because he supposed there is nothing of animate equipment; which is not true: for it is agreed that those who are there for the sake of the field are contained in the equipment.
Trebatius amplius etiam pistorem et tonsorem, qui familiae rusticae causa parati sunt, putat contineri, item fabrum, qui villae reficiendae causa paratus sit, et mulieres quae panem coquant quaeque villam servent: item molitores, si ad usum rusticum parati sunt: item focariam et vilicam, si modo aliquo officio virum adiuvet: item lanificas quae familiam rusticam vestiunt, et quae pulmentaria rusticis coquant.
Trebatius further thinks that even the baker and the barber, who are provided for the sake of the rural household, are included, likewise a craftsman who is provided for the sake of repairing the villa, and women who bake bread and who keep the villa: likewise millers, if they are engaged for rustic use: likewise a hearth‑woman and a vilica, provided only that she assist the man by some duty: likewise wool‑workers who clothe the rural household, and those who cook pottages for the rustics.
Sed an instrumenti instrumentum legato instrumento continetur, quaeritur: haec enim, quae rusticorum causa parantur, lanificae et lanae et tonsores et fullones et focariae non agri sunt instrumentum, sed instrumenti. puto igitur etiam focariam ^ focarium^ contineri: sed et lanificas et ceteros, qui supra enumerati sunt: et ita servium respondisse auditores eius referunt.
But the question is whether the instrument of the instrument is contained in an instrument bequeathed by legacy: for these things which are prepared for the sake of the rustics—the wool-workers and the wools and the shearers and the fullers and the hearth-women—are not the farm’s instrument, but the instrument of the instrument. I think therefore that even the hearth-woman ^ the hearth-gear ^ is included: and also the wool-workers and the others who are enumerated above: and thus his auditors report that Servius responded.
Ea vero, quae solo continentur, instrumenti fundi non esse cassius scribit, veluti harundineta et salicta, antequam caesa sint, quia fundus fundi instrumentum esse non potest: sed si caesa sint, puto contineri, quia quaerendo fructui deserviunt. idem et in palis erit dicendum.
But those things, indeed, which are held by the soil, Cassius writes are not instruments of a farm, such as reed-beds and willow-groves, before they are cut, because a farm cannot be the instrument of a farm: but if they have been cut, I think they are included, because they serve the fruit in being gathered. The same must be said also about stakes.
Si quis eodem instrumento in plurimis agris utatur, cuius agri sit instrumentum, quaeritur. et ego arbitror, si quidem apparet voluntas patris familiae, cui potius agro destinaverat, eius esse instrumentum: ceteri enim agri ab hoc agro veluti mutuantur: si non appareat, nullius instrumento cedet: neque enim pro parte dividemus instrumentum.
If someone uses the same instrument on several fields, the question arises: to which field is the instrument to belong? And I am of the opinion that, if indeed the will of the paterfamilias appears, to which field he had rather destined it, it is the instrument of that field: for the other fields, as it were, borrow from this field. If it does not appear, it will be the instrument of no field: for we will not divide the instrument by parts.
Si domus sit instrumentum legatum, videndum quid contineatur. et pegasus ait instrumentum domus id esse, quod tempestatis arcendae aut incendii causa paratur, non quod voluptatis gratia: itaque neque specularia neque vela quae frigoris causa vel umbrae in domo sunt deberi. quae sententia cassii fuit, qui dicebat inter instrumentum et ornamentum multum interesse: instrumenti enim ea esse, quae ad tutelam domus pertinent, ornamenti, quae ad voluntatem, sicuti tabulas pictas.
If the instrument of a house has been bequeathed, it must be considered what is included. And Pegasus says that the instrument of a house is that which is provided for the sake of warding off weather or fire, not that which is for the sake of pleasure: accordingly, neither windowpanes nor awnings which are in the house for protection against cold or for shade are owed. This was the opinion of Cassius, who used to say that there is much difference between instrument and ornament: for the items of the instrument are those which pertain to the protection of the house, of the ornament, those which pertain to desire, such as painted panels.
Papinianus quoque libro septimo responsorum ait: sigilla et statuae adfixae instrumento domus non continentur, sed domus portio sunt: quae vero non sunt adfixa, instrumento non continentur, inquit: suppellectili enim adnumerantur, excepto horologio aereo, quod non est adfixum: nam et hoc instrumento domus putat contineri, sicut prothyrum domus, si velamen est, inquit, instrumento domus continetur.
Papinian also, in the seventh book of the Responses, says: little figures and statues that are affixed are not contained in the instrument of the house, but are a portion of the house; whereas those which are not affixed are not contained in the instrument, he says: for they are reckoned to the furnishings, except the bronze timepiece, which is not affixed: for he thinks that this too is contained in the instrument of the house, just as the prothyrum of the house, if it is a curtain, he says, is contained in the instrument of the house.
Specularia quoque adfixa magis puto domus esse partem: nam et in emptione domus et specularia et pegmata cedere, sive in aedificio sunt posita sive ad tempus detracta. sed si non sint, reposita ad hoc tamen sint, ut suppleantur, si qua desint: instrumento potius continebuntur.
Specularia too, when affixed, I think are rather a part of the house: for in the purchase of a house both the specularia and the pegmata pass, whether they are set in the building or have been taken down for a time. But if they are not present, yet have been put aside for this very purpose, so that, if any are lacking, they may be supplied, they will rather be included among the equipment (instrumentum).
Sed si fundus non sit cum instrumento legatus, sed ita ut instructus sit, quaesitum est, an plus contineatur, quam si cum instrumento legatus esset. et sabinus libris ad vitellium scribit fatendum esse plus esse, cum instructus fundus legetur, quam si cum instrumento: quam sententiam cottidie increscere et invalescere videmus. quanto igitur hoc legatum uberius est, videndum est.
But if an estate is not bequeathed with its equipment, but in such a way that it is equipped, the question has been raised whether more is included than if it had been bequeathed with its equipment. And Sabinus, in his books to Vitellius, writes that it must be admitted that there is more when an equipped estate is bequeathed than if it is with equipment: which opinion we see daily to increase and prevail. Therefore it must be considered how much more ample this legacy is.
And Sabinus defines, and Cassius notes in the work to Vitellius: all things that were placed there so that the paterfamilias might be more furnished will, he says, be contained under “as furnished”; that is, the things which he had there so that he might be more furnished. Therefore, by this legacy he seems to have left not the farm’s instrument, but his own proper instrument.
Proinde si fundus sit instructus legatus, et suppellex continebitur, quae illic fuit usus ipsius gratia, et vestis non solum stragula, sed et qua ibi uti solebat: mensae quoque eboreae vel si quae aliae, item vitrea et aurum et argentum: vina quoque, si qua ibi fuerint usus ipsius causa, continentur, et si quid aliud utensilium.
Accordingly, if a farm be bequeathed as equipped, the furniture will be included which was there for the sake of his own use, and clothing, not only bedding/coverlets, but also that which he was accustomed to use there: ivory tables too, or whatever other tables, likewise glassware and gold and silver: wines also, if any were there for his own use, are included, and whatever other utensils.
Neratius quoque libro quarto epistularum rufino respondit instructo fundo et suppellectilem et vina et mancipia non solum ad cultum custodiamve villae, sed etiam quae ut ipsi patri familias in ministerio ibi essent, legato cedere.
Neratius likewise, in the fourth book of Letters, answered Rufinus that, the estate being equipped, both the furnishings and the wines and the slaves, not only those for the cultivation or the guarding of the villa, but also those which would be there in service for the paterfamilias himself, yield to the legacy.
Idem respondit domo per fideicommissum relicta cum supellectili claudio hieronymiano clarissimo viro ab umbrio primo et mensas et ceteram suppellectilem, quam in hortis pater familias in proconsulatum profecturus contulerat, ut tutiore loco essent, contineri.
He likewise replied that, with the house left by way of a fideicommissum together with its furniture to Claudius Hieronymianus, a most distinguished man, by Umbrius Primus, both the tables and the rest of the furniture—which the paterfamilias, about to set out for his proconsulship, had transferred into the gardens so that they might be in a safer place—are included.
Idem respondit domo ita, ut instructa est, cum omni iure suo legata urbanam familiam, item artifices, quorum operae ceteris quoque praediis exhibebantur, legato non contineri: ostiarii autem, inquit, vel topiarii diaetarii aquarii domui tantum deservientes continebuntur. sed quod de artificibus ait, falsum est, si eius domus causa parati sunt, licet aliis quoque praediis commodabantur.
The same answered that, when a house is bequeathed “as it is furnished,” with all its own right, the urban household, likewise the artificers whose services were also rendered to other estates, are not contained in the legacy: however, he says, doorkeepers, or topiary-gardeners, apartment-attendants, water-men, serving the house only, will be included. But what he says about the artificers is false, if they were engaged for the sake of that house, although they were also lent to other estates.
Idem respondit domo instructa legata mensas eboreas et libros non contineri: sed et hoc falsum est: nam omne, quidquid in domo fuit, quo instructior ibi esset pater familias, continebitur, suppellectilem autem patris familiae instrumentum esse nemo dubitat. denique neratius libro quarto epistularum Marcello fratri suo respondit et vestem domus instructae legato contineri: maxime, inquit, in proposita specie: proponebatur enim, qui legaverat, argentum et rationes excepisse: nam qui haec, inquit, excepit, non potest non videri de ceteris rebus, quae in ea essent, sensisse. sed et ipse papinianus eodem libro responsorum ait patrem mercatorem ac faeneratorem, qui duos filios totidemque filias heredes instituerat, ita legasse: "filiis maribus domum meam instructam do lego darique iubeo", merces et pignora an contineantur, quaeri posse: sed facilem iudici voluntatis coniecturam fore ceteris patris facultatibus examinatis.
He likewise replied that, when a “house furnished” was bequeathed, ivory tables and books were not contained: but this too is false; for everything, whatever was in the house by which the pater familias was more “furnished” there, will be contained; moreover, no one doubts that the furniture (suppellex) is the equipment (instrumentum) of the pater familias. Finally, Neratius in the fourth book of his Letters replied to his brother Marcellus that clothing also is contained in a legacy of a furnished house—especially, he says, in the case proposed: for it was put forward that the testator had excepted the silver and the accounts; for he who has excepted these, he says, cannot but seem to have had in mind the other things which were in it. But Papinianus himself, in the same book of Responsa, says that a father, a merchant and money‑lender, who had instituted as heirs two sons and just as many daughters, had thus bequeathed: “to my male sons I give and bequeath my house furnished and I order it to be given,” and that it can be asked whether merchandise and pledges are contained; but that for the judge the conjecture of intention will be easy, once the other faculties (assets) of the father have been examined.
Papinianus quoque libro septimo responsorum uxori, cui vir omnia, quae in domo erant, ab herede filia praestari voluit, cautiones debitorum emptionesque servorum non videri legatas respondit, nisi, inquit, ex alia parte et de servis eum cogitasse apparuerit, scilicet ut eorum servorum ei legasse videatur emptiones, quos et ipsos voluit ad eam pertinere.
Papinian also, in the seventh book of his Responses, answered that, in the case of a wife to whom a husband wished that everything which was in the house be furnished by the heir, his daughter, the cautions (instruments) of debts and the emptions of slaves are not to be seen as legated—unless, he says, from another passage it appears that he had thought also about the slaves, namely, so that he may be seen to have legated to her the emptions of those slaves whom he likewise wished to pertain to her.
Si quis fundum ita ut instructus est legaverit et adiecerit cum supellectili vel mancipiis vel una aliqua re, quae nominatim expressa non erat, utrum minuit legatum adiciendo speciem an vero non, quaeritur. et papinianus respondit non videri minutum, sed potius ex abundanti adiectum.
If someone has bequeathed a farm as it is equipped, and has added “together with the furniture or the slaves or some single thing which had not been specified by name,” it is asked whether he diminishes the legacy by adding a specific item, or not. And Papinian replied that it does not seem to have been diminished, but rather that something was added out of abundance.
Idem papinianus libro septimo responsorum ait: instructis hortis filio legatis mater argentum muliebre filiae legaverat: respondit etiam id argentum muliebre, quod in hortis habuit, ut ibi esset instructior, ad filiam pertinere.
The same Papinian, in the seventh book of his Responses, says: the gardens, as equipped, having been bequeathed to the son, the mother had bequeathed women’s silver to the daughter; he replied that even that women’s silver which she had in the gardens, so that they might be better furnished there, pertains to the daughter.
Tabernae cauponiae instrumento legato etiam institores contineri neratius existimat: sed videndum, ne inter instrumentum tabernae cauponiae et instrumentum cauponae sit discrimen, ut tabernae non nisi loci instrumenta sint, ut dolia vasa ancones calices trullae, quae circa cenam solent traici, item urnae aereae et congiaria sextaria et similia: cauponae autem, cum negotiationis nomen sit, etiam institores.
When the equipment of a tavern-shop is left by legacy, Neratius considers that even the managers/agents (institores) are included; but it should be examined whether there is not a distinction between the equipment of a tavern-shop and the equipment of an inn (caupona): namely, that for the shop, only the equipment of the place be included—such as dolia (large jars), vessels, ancones (brackets), cups, ladles (trullae), which are wont to be passed around at dinner, likewise bronze urns and congius- and sextarius-measures, and the like; but for the inn, since it is the name of a business, the managers/agents (institores) as well.
Si ita testamento scriptum sit: "quae tabernarum exercendarum instruendarum pistrini cauponae causa facta parataque sunt, do lego", his verbis servius respondit et caballos, qui in pistrinis essent, et pistores, et in cauponio institores et focariam, mercesque, quae in his tabernis essent, legatas videri.
If it is written thus in a testament: "whatever things have been made and prepared for the purpose of operating and outfitting shops, a bakery, and a tavern, I give and bequeath," Servius replied that by these words the horses that were in the bakeries, and the bakers, and in the tavern the commercial agents and the hearth-maid, and the merchandise that was in these shops, are considered to be bequeathed.
Mulier villae custos perpetua fundo qui cum instrumento legatus esset aut instructo continebitur, sicuti saltuarius: par enim ratio est: nam desiderant tam villae quam agri custodiam, illic, ne quid vicini aut agri aut fructuum occupent, hic, ne quid ceterarum rerum quae in villa continentur: villa autem sine ulla dubitatione pars fundi habetur.
A woman who is the perpetual custodian of a villa will be included in a farm that has been bequeathed with its equipment or as equipped, just like a forester: for the rationale is the same: for both the villa and the field require a guard, there, lest the neighbors seize anything of the field or of the fruits, here, lest anything of the other things that are contained in the villa; moreover, the villa is held without any doubt to be a part of the farm.
Quidam uxori fundum, uti instructus esset, in quo ipse habitabat, legavit. consultus de mulieribus lanificis an instrumento continerentur, respondit non quidem esse instrumenti fundi, sed quoniam ipse pater familias, qui legasset, in eo fundo habitasset, dubitari non oportere, quin et ancillae et ceterae res, quibus pater familias in eo fundo esset instructus, omnes legatae viderentur.
A certain man bequeathed to his wife a farm, as furnished, in which he himself was living. When consulted about the women wool-workers, whether they were included in the equipment, he replied that they were not indeed part of the farm’s equipment; but since the paterfamilias himself, who had made the bequest, had lived on that farm, there ought to be no doubt that both the maidservants and the other things with which the paterfamilias was furnished on that farm should all be seen as bequeathed.
Instrumento balneatorio legato dictum est balneatorem sic instrumento contineri balneario, quomodo instrumento fundi saltuarium et topiarios, et instrumento cauponio institorem, cum balneae sine balneatoribus usum suum praebere non possint.
When the bathhouse equipment (instrument) is bequeathed, it has been said that the bathkeeper is thus included in the bathhouse instrument, just as in a farm’s instrument the forester (saltuarius) and the topiary-gardeners (topiarii), and in an inn’s instrument the manager (institor), since baths cannot furnish their proper use without bathkeepers.
Instrumento legato aliquando etiam personas legantium necesse est inspici. ut ecce pistorio instrumento legato ita ipsi pistores inesse videri possunt, si pater familias pistrinum exercuit: nam plurimum interest, instrumentum pistoribus an pistrino paratum sit.
When equipment is bequeathed, it is sometimes necessary also to inspect the persons of those bequeathing. For example, when baker’s equipment is bequeathed, the bakers themselves can thus be seen to be included, if the paterfamilias has operated a bakery; for it makes a very great difference whether the equipment was prepared for the bakers or for the bakery.
Item caccabos et patinas in instrumento fundi esse dicimus, quia sine his pulmentarium coqui non potest. nec multum refert inter caccabos et aenum, quod supra focum pendet: hic aqua ad potandum calefit, in illis pulmentarium coquitur. quod si aenum instrumento continetur, urcei quoque, quibus aqua in aenum infunditur, in idem genus rediguntur, ac deinceps in infinitum primis quibusque proxima copulata procedunt.
Likewise we say that kettles and pans are in the equipment of the estate, because without these a stew cannot be cooked. Nor is there much difference between kettles and the cauldron that hangs above the hearth: in this, water for drinking is heated; in those, the stew is cooked. But if the cauldron is included in the equipment, the pitchers too, by which water is poured into the cauldron, are brought into the same category; and thereafter, without limit, whatever things are next nearest to the primary items proceed as coupled to them.
Item cum fundus ita legatus esset: "maevio fundum seianum, ita ut optimus maximusque est, cum omni instrumento rustico et urbano et mancipiis quae ibi sunt" et quaereretur, an semina deberentur, respondit verius esse deberi, nisi aliud testatorem sensisse heres probaret. idem respondit de frumento reposito ad mancipiorum exhibitionem.
Likewise, when a farm had been bequeathed thus: "to Maevius the Seianus farm, just as it is best and greatest, with all rustic and urban instruments and the slaves that are there," and it was asked whether seeds were owed, he answered that more truly they are owed, unless the heir should prove that the testator thought otherwise. He gave the same answer concerning grain laid up for the provisioning of the slaves.
Cui fundum instructum legaverat, nominatim mancipia legavit: quaesitum est, an reliqua mancipia, quae non nominasset, instrumento cederent. cassius ait responsum esse, tametsi mancipia instructi fundi sint, tamen videri eos solos legatos esse, qui nominati essent, quod appareret non intellexisse patrem familias instrumento quoque servos adnumeratos esse.
To one to whom he had bequeathed a stocked farm, he bequeathed slaves by name: it was asked whether the remaining slaves, whom he had not named, would pass with the equipment (instrumentum). Cassius says that it was answered that, although slaves are part of the equipment of a stocked farm, nevertheless only those who had been named are deemed to have been bequeathed, because it appears that the paterfamilias had not understood that slaves too are counted among the equipment.
Sabinus. cui fundus quaeque ibi sint legata sunt, ei fundus et omnia, quae in eo solita sunt esse quaeque ibi maiore parte anni morari et hi, qui in eum manendi causa recipere se consueverunt, legati videntur: at si qua consulto in fundo congesta contractave sunt, quo legatum cumularetur, ea non videntur legata esse.
Sabinus. To the person to whom a farm and whatever are there have been bequeathed, the farm and all things which are wont to be in it, and those which are accustomed to remain there for the greater part of the year, and those who have been accustomed to betake themselves into it for the sake of staying, are considered to have been bequeathed: but if any things have been deliberately piled up or acquired on the farm, in order that the legacy might be augmented, they are not considered to be bequeathed.
Quidam cum ita legasset: "villam meam ita ut ipse possedi cum suppellectile mensis mancipiis, quae ibi deputabuntur, urbanis et rusticis, vinis, quae in diem mortis meae ibi erunt, et decem aureis", et quaereretur, cum in diem mortis ibi libros et vitreamina et vesticulam habuerit, an eadem omnia legato cederent, quoniam quaedam enumerasset: scaevola respondit specialiter expressa, quae legato cederent.
When a certain man had thus bequeathed: "my villa just as I myself have possessed it, with furniture, tables, slaves who shall be assigned there, urban and rural, the wines which shall be there on the day of my death, and ten gold pieces," and the question was asked, since up to the day of his death he had there books and glassware and a small piece of clothing, whether all these likewise would fall to the legacy, since he had enumerated certain items: Scaevola replied that those things would pass under the legacy which were specially expressed.
Si mancipia quae, post testamentum factum in fundum seiae relictum a testatore inducta, fundi colendi gratia in eodem fundo fuerint, ea quoque instrumento fundi contineri respondi: quamvis enim ea mancipia testator demonstrasset, quae tunc ibi essent cum legaret, tamen non minuendi legati, sed augendi causa mancipiorum quoque fecit mentionem. ceterum instrumento fundi mancipia quoque colendi agri causa inducta contineri non ambigitur.
If slaves who, after the will had been made, were brought in by the testator onto the estate left to Seia, were on the same estate for the sake of cultivating the estate, I replied that these too are contained in the instrument of the estate: for although the testator had pointed out those slaves who were then there when he made the legacy, nevertheless he made mention of the slaves also not for the purpose of diminishing the legacy, but of augmenting it. Moreover, it is not doubted that the instrument of an estate likewise contains slaves brought in for the purpose of cultivating the land.
Paulus respondit villae instrumento neque fructus repositos neque equitium contineri, suppellectile autem legato cedere: servum vero arte fabrica peritum, qui annuam mercedem praestabat, instrumento villae non contineri.
Paulus answered that in the equipment of a villa neither stored fruits (produce) nor the horse‑stud are contained, but they pass under a legacy of household furniture; and that a slave skilled in the art of fabrication (smithing), who rendered an annual fee, is not contained in the equipment of the villa.
Seiae ex parte heredi institutae, si heres erit, fundos per praeceptionem dederat instructos cum suis vilicis et reliquis colonorum et codicillis ita scripsit: "postea mihi venit in mentem: seiae fundos quos reliqui, ita ut sunt instructi rustico instrumento suppellectile pecore et vilicis cum reliquis colonorum et apotheca habere volo". quaesitum est, an etiam ea, quae patris familias usus cottidiani causa in fundis fuerunt, legato continerentur. respondit testamento quidem ut proponeretur seiae, insuper fundum, legatum, verum non amplius deberi, quam in codicillis ( quos sane post oblivionem testamentariae scripturae fecisset) instructi appellatione contineri velle se manifeste ostendisset.
To Seia, appointed heir in part, if she should be heir, he had given by preemption the estates, equipped with their bailiffs and the remaining [property] of the tenant-farmers; and in the codicils he wrote thus: "afterwards it came into my mind: I want Seia to have the estates which I have left, as they are equipped with rustic equipment, furniture, livestock, and bailiffs, together with the remaining [things] of the tenant-farmers and the storehouse." The question was asked whether also those things which the paterfamilias used for the sake of quotidian use on the estates were contained in the legacy. He answered that, under the testament as proposed, to Seia, besides the estate, a legacy had been given; but that no more was owed than what in the codicils (which indeed he had made after the forgetting of the testamentary writing) he had manifestly shown that he wished to be contained under the appellation "equipped."
Liberto suo quidam praedia legavit his verbis: "seio liberto meo fundos illum et illum do lego ita ut instructi sunt cum dotibus et reliquis colonorum et saltuariis cum contubernalibus suis et filiis et filiabus". quaesitum est, an stichus servus, qui praedium unum ex his coluit et reliquatus est amplam summam, ex causa fideicommissi seio debeatur. respondit, si non fide dominica, sed mercede, ut extranei coloni solent, fundum coluisset, non deberi.
A certain man bequeathed estates to his freedman with these words: "I give and bequeath to my freedman Seius this farm and that farm as they are furnished, with the appurtenances and other things of the tenant-farmers, and the foresters with their contubernals (common-law partners) and sons and daughters." It was asked whether Stichus, a slave who cultivated one of these estates and to whom a large sum has been left, is owed to Seius by reason of the fideicommissum. He responded that, if he had worked the farm not under the master's trust, but for wages, as outside coloni are accustomed, he is not owed.
"gaio seio alumno meo fundos meos illum et illum, ita ut instructi sunt, et domum superiorem dari volo": quaesitum est, an etiam domum instructam dari voluerit. respondit secundum ea quae proponerentur ita videri dedisse, nisi is, a quo peteretur, aliud testatorem sensisse manifeste doceret: at si habitationis, id est aedificii instrumentum legasset, non cedere servos operae aliive rei paratos.
"I want my estates, this one and that one, as they are equipped, and the upper house to be given to Gaius Seius, my alumnus": the question was raised whether he also wished the house to be given equipped. He replied that, on the basis of what was set forth, it appears he gave them so, unless the person from whom it was sought clearly showed that the testator had thought otherwise; but if he had bequeathed the instrumentum of the dwelling, that is, of the building, the work-slaves or those prepared for some other business do not pass.
Praedia ut instructa sunt cum dotibus et reliquis colonorum et vilicorum et mancipiis et pecore omni legavit et peculiis et cum actore: quaesitum est, an reliqua colonorum, qui finita conductione interposita cautione de colonia discesserant, ex verbis supra scriptis legato cedant. respondit non videri de his reliquis esse cogitatum.
He bequeathed the estates as they stood equipped, together with the endowments and the arrears of the coloni and of the bailiffs, and with the slaves and all the livestock, and the peculia, and with the agent: it was asked whether the arrears of those coloni who, their lease having ended, with security interposed, had departed from the colony, would, from the words written above, pass under the legacy. He replied that it did not seem that these arrears had been contemplated.
Idem quaesiit, cum testator facto testamento in provinciam sit profectus, an ea mancipia, quae post profectionem eius aut mortem sine cuiusquam auctoritate sponte sua ad parentes et notos sibi homines in fundos legatos transiere, legato cedant. respondit non legatos eos, qui forte veluti commeantes transissent.
The same asked, when the testator, after making a will, had set out into the province, whether those slaves who, after his departure or death, without anyone’s authority, of their own accord went over to his parents and to persons known to him on the estates bequeathed, cede to the legacy. He responded that they are not bequeathed—those who perchance had crossed over as if merely wayfaring.
"pamphilae libertae meae dari volo fundum titianum cum instrumento et his quae in eodem erunt cum moriar". quaesitum est, si stichus servus, ex eo fundo ante annum mortis testatoris abductus et in disciplinam traditus, postea in eum fundum non reversus sit, an debeatur. respondit, si studendi causa misisset, non quo a fundo eum aliorsum transferat, deberi.
"I wish the Titian estate to be given to my freedwoman Pamphila, with its instrument and with the things which will be on the same when I die." It was asked, if the slave Stichus, taken away from that estate before the year of the testator’s death and delivered into discipline, and afterwards not having returned to that estate, is owed. He responded that, if he had sent him for the sake of studying, not in order to transfer him elsewhere from the estate, he is owed.
"tyrannae sorori meae fundum meum graecianum cum stabulo et instrumento rustico omni relinquo". quaeritur, an fundi appellatione etiam pascua, quae ad eum simul cum fundo pervenerint et quae semper in usibus huius possessionis habuerat, legato cederent. respondit, si prata fundo graeciano ita coniunxisset, uti sub una fundi appellatione haberentur, ea quoque deberi.
"To my sister Tyranna I leave my Graecian farm with the stable and all rustic equipment." The question is raised whether, under the appellation of the farm, the pastures also—which had come to it together with the farm and which he had always had in the uses of this possession—would cede to the legacy. He answered that, if he had so conjoined the meadows to the Graecian farm that they were held under a single appellation of the farm, those too are owed.
Instructis domibus legatis crabattus argento inaurato tectus mortis titiae tempore in domibus non est repertus, sed in horreis tantisper conditus: quaero, an is quoque praestandus sit. respondit, si in domo esse soleret et quo tutiore loco haberetur, interim in horreo allatus esset, nihilo minus praestandum.
With the furnished houses having been bequeathed, a couch covered with gilded silver was not found in the houses at the time of titia’s death, but had been stored meantime in the granaries: I ask whether that too must be made good. He responded that, if it was wont to be in the house and, in order that it might be kept in a safer place, had meanwhile been brought into the granary, it is nonetheless to be made good.
Cum fundus sine instrumento legatus sit, dolia molae olivariae et praelum et quaecumque infixa inaedificataque sunt fundo legato continentur, nulla autem ex his rebus quae moveri possunt paucis exceptis fundi appellatione continentur. de molis tum quaeri solet, cum ita adfixae itave inaedificatae sint, ut partes aedificiorum esse videantur.
When a landed estate has been bequeathed without appurtenances, the vats, the stones of the olive-mill, the press, and whatever things are infixed and built-in are included in the legated estate; but none of those things which can be moved, a few excepted, are contained under the appellation of the estate. As to millstones, the question is usually raised when they are so affixed or so built in that they seem to be parts of the buildings.
Fundus, qui locatus erat, legatus est cum instrumento: instrumentum, quod colonus in eo habuit, legato cedit. paulus: an quod coloni fuit an tantum id quod testatoris fuit? et hoc magis dicendum est, nisi nullum domini fuit.
The farm, which had been leased, is bequeathed together with its equipment: the equipment which the tenant farmer had on it accedes to the legacy. paulus: whether that which belonged to the tenant, or only that which belonged to the testator? And this is rather to be said, unless none belonged to the owner.
Fundi instrumento legato id pecus cedere putabat tubero, quod is fundus sustinere potuisset: labeo contra. quid enim fiet, inquit, si, cum mille oves fundus sustinere potuisset, duo milia ovium in eo fundo fuerint? quas oves potissimum legato cessuras existimabimus?
When the equipment of a farm was left by legacy, Tubero thought that that herd would pass which that farm could have sustained: Labeo the contrary. “For what will happen,” he says, “if, although the farm could have sustained a thousand sheep, two thousand sheep have been on that farm? Which sheep shall we consider are to pass under the legacy by preference?”
Praedia maritima cum servis qui ibi erunt et omni instrumento et fructibus qui ibi erunt et reliquis colonorum nutritori suo legavit. quaesitum est, an servi piscatores, qui solebant in ministerio testatoris esse et ubicumque eum sequi et urbicis rationibus expungebantur nec mortis testatoris tempore in praediis legatis deprehensi fuerant, legati esse videantur. respondit secundum ea quae proponerentur non esse legatos.
He bequeathed the maritime estates, together with the slaves who would be there, and all the instrument and the fruits that would be there, and the arrears of the tenant-farmers, to his fosterer. It was asked whether the fisherman-slaves, who were accustomed to be in the testator’s service and to follow him wherever, and were carried on the urban accounts, and had not been found on the bequeathed estates at the time of the testator’s death, are to be considered bequeathed. He replied that, according to the matters proposed, they are not bequeathed.
Adfini suo ita legavit: "fundum cornelianum titio ita ut est instructus cum omnibus rebus et mancipiis et reliquis colonorum dari volo". haec testatrix romae litis causa ex africa veniens mancipia quaedam ex fundo supra scripto, quo citius per hiemem operam elegeret, secum abduxit: quaesitum est, an ea mancipia fideicommisso cedant, cum quaedam ex his rusticis officiis ad tempus peregrinationis abducta sunt relictis conservabus et filiis suis et quaedam matribus et patribus. respondit mancipia, de quibus quaereretur, secundum ea quae proponerentur ex causa fideicommissi deberi.
To his affine he thus bequeathed: "I wish the Cornelian estate to be given to Titius, just as it is equipped, with all things and slaves and the remaining property of the tenant-farmers." This testatrix, coming to Rome for the sake of a lawsuit from Africa, took with her certain slaves from the above-written estate, in order that during the winter she might more quickly avail herself of their service: the question was raised whether those slaves should pass under the fideicommissum, since some of them were taken away from rustic duties for the time of the journey, leaving behind their fellow slave-women and their sons, and some their mothers and fathers. He answered that the slaves about whom inquiry was made, according to what was set forth, are owed by reason of the fideicommissum.
Idem quaesiit, an fructus eiusdem fundi, qui ibi in diem mortis coacti manserint, fideicommisso cedant, cum plenissima testatoris erga adfinem voluntas ab eo quoque manifestetur, quo reliqua colonorum eiusdem possessionis ad eum pertinere voluerit. respondit in huiusmodi scriptura posse responderi hoc solum quaerendum, an manifeste appareat defuncta id, de quo quaereretur, dari noluisse.
The same asked whether the fruits of the same farm, which there had been gathered up to the day of death and had remained, fall to the fideicommissum, since the fullest will of the testator toward the affine is also made manifest by that whereby he wished the arrears of the tenant-farmers of the same holding to pertain to him. He answered that, in a writing of this kind, one can respond that this alone is to be inquired: whether it plainly appears that the deceased did not wish that which is being asked about to be given.
Liberto, quem heredem in parte rescripsit, fundum per praeceptionem dedit in haec verba: "pamphile liberte, praecipito tibique habeto fundum meum titianum et agellum sempronianum cum instrumento et his, quae in eodem erunt cum moriar, familiaque, quae in eo fundo moratur, exceptis quos manumisero". quaesitum est, cum testator in eo fundo aliquantum vini in doliis habuerit, quod vivus totum vendiderat et partem tertiam pretii pro eo acceperat, an vinum in doliis remanens ad libertum ex causa praeceptionis pertineat. respondit verbis quae proponerentur contineri, nisi manifeste contrariam voluntatem coheredes approbant. in eo fundo instrumenta calendarii et nummos reliquit.
To a freedman, whom he wrote in as heir in part, he gave an estate by preemption in these words: "Pamphilus, my freedman, I preempt for you, and do you have for yourself my Titian estate and the Sempronian little field with the equipment, and with the things which will be in the same when I die, and the household that dwells on that estate, except those whom I shall have manumitted." It was asked, since the testator had on that estate some quantity of wine in vats, which, while alive, he had sold in its entirety and had received a third part of the price for it, whether the wine remaining in the vats pertains to the freedman by reason of preemption. He replied that the things proposed are contained in the words, unless the coheirs manifestly approve a contrary intention. On that estate he left the documents of the ledger (calendarium) and coins.
Ita legatum est: "septiciae sorori meae fundi paterni mei seiani partem dari volo sic ut est, et alteram partem ita, ut in diem mortis fuerit": quaesitum est, an ex verbis supra scriptis aggeres et praela iam posita parataque, ut immittantur aedificio, item instrumentum urbanum et rusticum cum mancipiis, quae fundi causa erant, ad legatarios pertineant. respondit: potest haec verba " sic ut est" ad instructum referri.
Thus it was bequeathed: "to Septicia, my sister, I wish a share of my paternal farm Seianus to be given as it is, and the other share in such a way as it shall be on the day of death": it was asked whether from the above-written words the embankments and the presses already set up and prepared to be installed into the building, likewise the urban and rustic equipment with the slaves, which were for the sake of the farm, belong to the legatees. he replied: these words " sic ut est" can be referred to the equipment (instructum).
Fundos legavit in haec verba: "sempronio fratri meo hoc amplius fundos meos ita, ut instructi sunt, cassianum nonianum cum suis salictis et silvis". quaesitum est, cum silvae et salicta non in fundis supra scriptis, sed in adiectis agellis et quos simul testator comparavit nec sine his fundi coli possint, an legato cederent. respondit id tantum cedere legato, quod verbis comprehendisset.
He bequeathed the estates in these words: "to Sempronius, my brother, this in addition: my estates, as they are furnished, the Cassianum Nonianum, with their willow-groves and woods." It was asked, since the woods and willow-groves are not on the above-written estates, but on adjoining little fields which the testator purchased at the same time, and without which the estates cannot be cultivated, whether they would pass under the legacy. He responded that only that passes under the legacy which he had comprehended by his words.
Lucius titius fundum, uti erat instructus, legaverat. quaesitum est, fundus instructus quemadmodum dari debeat, utrum sic ut instructus fuit mortis patris familiae tempore, ut quae medio tempore adgnata aut in fundum illata sunt heredis sint? an vero instructus fundus eo tempore inspici debeat, quo factum est testamentum?
Lucius Titius had bequeathed a farm, as it was stocked. The question was raised how a farm “stocked” ought to be delivered: whether as it was stocked at the time of the death of the paterfamilias, so that things which in the meantime have accreted or have been brought onto the farm belong to the heir; or rather should the stocked farm be examined as of the time when the testament was made?
or rather at the time when the farm begins to be claimed, so that whatever instrument (equipment) is discovered at that time may benefit the legatee? He responded that those things with which the farm is equipped, according to the words of the legacy, which are on the same footing, when the day of the legacy falls due, are contained under “instrumentum.”
Si navem cum instrumento emisti, praestari tibi debet scapha navis. paulus: immo contra. etenim scapha navis non est instrumentum navis: etenim mediocritate, non genere ab ea differt, instrumentum autem cuiusque rei necesse est alterius generis esse atque ea quaequae sit: quod pomponio libro septimo epistularum placuit.
If you bought a ship with its equipment, the ship’s skiff ought to be provided to you. paulus: rather, the contrary. For indeed the ship’s skiff is not equipment of the ship: for it differs from it in size, not in kind, whereas the equipment of any thing must needs be of a different kind than the thing itself, whatever it may be: which was the view that pleased Pomponius in the seventh book of his Epistles.
Si peculium legetur et sit in corporibus, puta fundi vel aedes, si quidem nihil sit, quod servus domino vel conservis liberisve domini debeat, integra corpora vindicabuntur: sin vero sit, quod domino vel supra scriptis personis debeatur, deminui singula corpora pro rata debebunt. et ita et iulianus et celsus putant.
If a peculium is bequeathed and it consists in corporeal things, for example estates or houses, then if there is nothing that the slave owes to the master or to the fellow-slaves or to the master’s children, the things will be claimable intact; but if there is something owed to the master or to the aforesaid persons, each individual thing ought to be reduced pro rata. And thus both iulianus and celsus think.
Et si fuerit legatum peculium non deducto aere alieno, verendum, ne inutile legatum sit, quia quod adicitur contra naturam legati sit. sed puto verum hanc adiectionem non vitiare legatum, sed nihil ei adicere: nec enim potest crescere vindicatio peculii per hanc adiectionem. plane si proponas legatarium nactum possessionem rerum, exceptione doli adversus heredem vindicantem uti potest: habet enim in solidis rebus voluntatem aeris alieni non deducendi.
And if a peculium has been bequeathed with the alien debt not deducted, it is to be feared lest the legacy be ineffectual, because what is added is against the nature of a legacy. But I think it true that this addition does not vitiate the legacy, but adds nothing to it: for the vindication of the peculium cannot be enlarged by this addition. Clearly, if you suppose the legatee to have obtained possession of the things, he can employ the exceptio doli against an heir bringing a vindication: for, as regards the solid assets, he has the intention that the debt not be deducted.
Si servus et vicarius eius liberi esse iussi sint eisque peculia sua legata sint, verba secundum voluntatem testatoris exaudienda, tamquam de duobus separatisque peculiis testatore locuto: et secundum haec vicarius vicarii non communicabitur, nisi haec mens fuit testantis.
If a slave and his vicarius have been ordered to be free, and their own peculia have been bequeathed to them, the words are to be construed according to the will of the testator, as though the testator spoke of two separate peculia; and according to this, the vicarius of the vicarius will not be made common, unless this was the intention of the testator.
Sicut autem aes alienum, hoc est quod debetur domino, minuit legatum peculium, ita per contrarium id quod dominus debet servo augere debet. sed huic sententiae adversatur rescriptum imperatoris nostri et patris eius, quod ita est: "cum peculium servo legatur, non etiam id conceditur, ut petitionem habeat pecuniae, quam se in rationem domini impendisse dicit". quid tamen si haec voluntas fuit testatoris? cur non possit consequi?
Just as, moreover, a debt, that is, what is owed to the master, diminishes the legacy of the peculium, so conversely that which the master owes to the slave ought to increase it. But a rescript of our emperor and of his father is adverse to this opinion, which is as follows: "When a peculium is bequeathed to a slave, it is not also granted that he have a claim to the money which he says he has expended on the master's account." Yet what if this was the testator's will? Why should he not be able to obtain it?
Certainly what he expended ought to be compensated by set-off against that which is owed to the master. Or would even what the master had written down that he owed to the slave cede to the bequeathed peculium? Pegasus denies; Nerva the same. And when Gnaeus Domitius had bequeathed to his daughter the peculium which was hers, and for a biennium had not given the annual stipend which he was accustomed to give her, but had entered in his accounts that he owed his daughter fifty, Atilicinus judged that it did not cede to the legacy—which is true, because it accords with the rescript.
Item quaeritur, si servo libertas data sit, si decem dedisset heredi, peculiumque ei legatum sit, an decem, quae dedisset heredi, debeant de peculio decedere. et est verum quod sabino placuit, hoc minus esse in peculio legato.
Likewise it is asked, if liberty has been given to a slave, if he has given 10 to the heir, and the peculium has been bequeathed to him, whether the 10 which he gave to the heir ought to be deducted from the peculium. And what pleased Sabinus is true: by this amount there is less in the bequeathed peculium.
His consequenter quaeritur, si servus cum domino de libertate pactus fuerit et partem pecuniae dederit et ante quam residuum dederit dominus decesserit liberumque esse testamento iusserit cum peculio legato, an quod domino dederit in peculio sit imputandum. et ait labeo de peculio decedere. plane si nondum dederat, sed, donec totum traderet, pro deposito apud eum fuerit, id in peculio esse placuit.
Consequently, it is asked: if a slave has pacted with his master about liberty and has given part of the money, and before he gives the remainder the master has died and has ordered by will that he be free with the peculium bequeathed, whether what he gave to the master is to be imputed to the peculium. And Labeo says it is to be deducted from the peculium. Clearly, if he had not yet given it, but, until he should hand over the whole, it had been with the master as on deposit, it has been decided that that is in the peculium.
Interdum etsi non sit legatum peculium, velut legatum sic accipitur, id est in huiusmodi specie: quidam servo libertatem, si rationes reddidisset, dederat, et si heredibus centum intulisset. imperator igitur noster cum patre rescripsit, peculium quidem non nisi legatum deberi: "verum", inquit, " si condicionibus praescriptis paruit servus, testatorem voluisse eum retinere peculium interpretamur": videlicet ex eo, quod ex peculio eum iusserat centum inferre.
Sometimes even if the peculium is not a legacy, it is nevertheless taken as if it were a legacy, that is, in a case of this kind: a certain man had given a slave liberty, if he should render accounts, and if he should have paid in a hundred to the heirs. therefore our emperor, together with his father, wrote back that the peculium is owed only if it has been bequeathed as a legacy: "but," he says, "if the slave complied with the prescribed conditions, we interpret that the testator wished him to retain the peculium": namely from this, that he had ordered him to bring in a hundred out of the peculium.
Utrum autem id demum peculium accipimus, quod mortis tempore fuit, an vero et quod postea accessit applicamus vel quod decessit detrahimus? et iulianus alias accipiendum legatum peculii ait, si ipsi servo legetur, alias, si alii: nam si ipsi, id tempus in legato spectandum, quo dies legati cedit: si vero extraneo, mortis tempus, sic tamen, ut incrementa ex rebus peculiaribus ad eum perveniant, ut puta partus ancillarum vel fetus pecorum: quod autem ex operis suis vel ex alia re accedit, id, si alii quam ipsi legetur peculium, non debebitur. hoc utrumque iulianus secundum voluntatem testatoris scribit: cum enim ipsi suum peculium legatur, verisimile est eum omne augmentum ad ipsum pertinere voluisse, cui patrimonium manumisso futurum est, cum alii, non: sic tamen, ut, si in alterius persona hoc eum sensisse appareat, idem dicas.
Whether, moreover, we take as the peculium only that which existed at the time of death, or indeed do we also apply what afterwards acceded, or subtract what has decreased? And Julianus says that sometimes the legacy of the peculium is to be received if it is bequeathed to the slave himself, sometimes if to another: for if to himself, the time to be regarded in the legacy is that at which the day of the legacy falls due; but if to a stranger, the time of death—yet so that increments from things belonging to the peculium come to him, as for instance the births of maidservants or the offspring of cattle; but what accedes from his own works or from some other thing, that, if the peculium is bequeathed to someone other than himself, will not be owed. Julianus writes both points according to the will of the testator: for when his own peculium is bequeathed to himself, it is likely that he wished every augmentation to pertain to him to whom the patrimony will belong upon manumission, whereas to another, not; yet so, that, if it appears that in the case of some other person he held this view, you should say the same.
Si conservum suum vulneraverit servus et viliorem fecerit, Marcellus non esse dubitandum deduci ex peculio, quod domino interesset ( nam quid interest, conservum vulneret an scindat aliquid vel frangat an subripiat? quo casu sine dubio minuitur peculium), sed non ultra simplum.
If a slave has wounded his fellow-slave and made him of lower value, Marcellus [holds] that there should be no doubt that there be deducted from the peculium the amount of the master’s interest (for what difference does it make, whether he wounds a fellow-slave or tears something or breaks it or steals it? in which case without doubt the peculium is diminished), but not beyond the single value.
Quidam in testamento ita scripserat: "pamphilus servus meus peculium suum cum moriar sibi habeto liberque esto". consulebatur, rectene pamphilo peculium legatum videretur, quod prius quam liber esset peculium sibi habere iussus esset. respondit in coniunctionibus ordinem nullum esse neque quicquam interesse, utrum eorum primum diceretur aut scriberetur: quare recte peculium legatum videri, ac si prius liber esse, deinde peculium sibi habere iussus est.
A certain man had written thus in his testament: “Pamphilus, my slave, is to have his peculium for himself when I die, and let him be free.” The question was put whether it seemed that the peculium had been rightly bequeathed to Pamphilus, because he was ordered to have the peculium for himself before he was free. He responded that in conjunctions there is no order, and that it makes no difference which of them is said or written first: wherefore it seems that the peculium was rightly bequeathed, just as if he were first ordered to be free, then to have the peculium for himself.
Stichus habet in peculio pamphilum: hunc dominus noxali iudicio defendit et damnatus litis aestimationem solvit: deinde stichum testamento manumisit eique peculium legavit: quaesitum est, an quod pamphili nomine praestitum sit, ex peculio vel ipsius pamphili vel stichi deducendum sit. respondit pamphili quidem de peculio utique deducendum, quantacumque ea summa esset, id est etiam si eum noxae dedere expedisset: quidquid enim pro capite servi praestitum sit, in eo debitorem eum domini constitui. quod si pamphili peculium non sufficiat, tunc ex peculio stichi non ultra pretium pamphili deduci debere.
Stichus has Pamphilus in his peculium: the master defended him in a noxal judgment and, having been condemned, paid the valuation of the suit: thereafter he manumitted Stichus by testament and bequeathed the peculium to him: the question was asked, whether what was paid in the name of Pamphilus ought to be deducted from the peculium either of Pamphilus himself or of Stichus. He answered that as to Pamphilus, indeed, it must surely be deducted from his peculium, whatever the amount was, that is, even if it would have been expedient to surrender him noxae; for whatever has been paid on account of a slave’s person, in that the master is constituted his debtor. But if Pamphilus’s peculium is not sufficient, then from the peculium of Stichus there ought to be deducted no more than Pamphilus’s price.
Quaesitum est, si ex alia qua causa pamphilus pecuniam domino debuisset nec ea ex peculio eius servari posset, an usque ad pretium eius ex peculio stichi possit deducere. negavit: neque enim simile id superiori esse. ibi enim propterea pretium vicarii deducendum, quod eo nomine ipse stichus ob defensionem vicarii sui domino debitor constituatur, at in proposito quia stichus nihil debeat, ex eius peculio nihil esse deducendum, sed ex pamphili dumtaxat, qui certe ipse in suo peculio esse intellegi non potest.
It was asked, if from some other cause Pamphilus had owed money to the master and that could not be made good out of his peculium, whether up to his price it could be deducted from the peculium of Stichus. He denied it: for this is not similar to the previous case. There, indeed, for that reason the price of the vicarius is to be deducted, because under that title Stichus himself, on account of the defense of his vicarius, is constituted a debtor to the master; but in the case proposed, since Stichus owes nothing, nothing is to be deducted from his peculium, but only from that of Pamphilus, who certainly cannot be understood to be in his own peculium.
Filius familias, cui pater peculium legavit, servum peculii vivo patre manumisit: servus communis omnium heredum est exemptus peculio propter filii destinationem, quia id peculium ad legatarium pertinet, quod in ea causa moriente patre inveniatur:
A son of the household, to whom the father had bequeathed the peculium, manumitted a slave of the peculium while the father was alive: the slave is common to all the heirs, removed from the peculium on account of the son’s designation, because that peculium pertains to the legatee only in such condition as it is found at the father’s death.
Dominus servum, qui cum eo vicarium communem habebat, testamento manumiserat et peculium ei legaverat, deinde ipsum vicarium, qui communis erat, nominatim et ipsi et libertae suae legaverat. respondi partem quartam libertae, reliquam partem quartam liberti futuram: quod et trebatius.
The master had manumitted by testament a slave who had with him a vicarius held in common, and had bequeathed to him his peculium; then he bequeathed that same vicarius, who was common, by name both to him and to his freedwoman. I replied that a fourth part would be the freedwoman’s, the remaining fourth part the (future) freedman’s; and so also Trebatius.
Dominus sticho servo suo, qui bona liberti eius gessit, cui pro parte dimidia testamento heres exstiterat, in quibus negotiis gestis et kalendaria fuerunt, testamento suo libertatem dederat, si rationem reddidisset, eique peculium suum per fideicommissum dedit: stichus summas, quibus reliquatus erat tam ex kalendario quam ex variis causis, reddidit manentibus debitoribus, pro quibus ipse pecuniam heredibus patroni refuderat, libertatemque adeptus decessit. quaesitum est, an heredibus stichi adversus nomina debitorum, pro quibus stichus pecuniam heredibus patroni intulit, heredes patroni ex causa fideicommissi compellendi sint actiones praestare, cum nihil aliud a sticho patrono debitum fuerit. respondit praestandum.
The master had given liberty in his testament to his slave Stichus—who had managed the goods of his freedman, to whom by will he had become heir for a half share, and in which managed affairs there were also kalendaria—provided he rendered an account; and to him he gave his peculium by fideicommissum. Stichus paid the sums with which he had been charged, both from the kalendarium and from various causes, the debtors remaining liable, on whose behalf he himself had reimbursed the money to the patron’s heirs; and, having obtained liberty, he died. The question was asked whether, in favor of Stichus’s heirs and against the entries (nomina) of the debtors for whom Stichus paid money to the patron’s heirs, the heirs of the patron ought, by reason of the fideicommissum, to be compelled to furnish (assign) the actions, since nothing else had been owed by Stichus to the patron. He replied that it must be furnished.
Testamento codicillisve servos manumisit et peculia legavit et de sticho ita cavit: "stichum servum meum liberum esse volo eique volo dari decem aureos et quidquid ex ratione loculorum meorum habet: rationes autem heredibus meis dari volo. his omnibus, quos hoc testamento manumisi, peculia sua concedi volo". quaesitum est, an, quod amplius rationi loculorum in diem mortis erogavit stichus ex peculio suo, ab heredibus recipere debeat, cum ex consuetudine domus esset, ut quidquid amplius ex suo in ratione loculorum erogasset, dominica ratio ei deberet atque exsolveret. respondit secundum ea, quae propter consuetudinem proponerentur, id quoque peculio legato contineri, quod et dominica ratio deberet et solita erat reddere.
By will or by codicils he manumitted his slaves and bequeathed their peculia, and about Stichus he provided thus: “I wish my slave Stichus to be free, and I wish ten aurei to be given to him, and whatever he has from the account of my coffers; but I wish the accounts to be delivered to my heirs. To all those whom I have manumitted by this testament I wish their peculia to be granted.” It was asked whether what Stichus, up to the day of death, expended beyond the account of the coffers out of his own peculium ought to be recovered from the heirs, since it was the custom of the household that whatever more he had spent of his own in the account of the coffers, the master’s account owed to him and used to pay. He replied that, according to the points put forward on account of the custom, that too is contained in the legacy of the peculium which the master’s account both would owe and was accustomed to render.
Servis libertates legataque dederat et condicionem ita scripserat: " hosous katelipon eleuverous kai ta lygata autois, toutous boulomai einai anecetastous". quaesitum est, an peculia quoque legata his videbuntur. respondit secundum ea quae proponerentur non videri legata.
He had given the slaves liberties and legacies, and had written the condition thus: "as many as I left free, and the legacies for them, I wish these to be unexamined." It was asked whether the peculia also would seem to have been left to them as legacies. He replied that, according to what was put forward, they do not seem to have been left as legacies.
"titi fili, e medio praecipito sumito tibique habeto domum illam, item aureos centum": alio deinde capite peculia filiis praelegavit. quaesitum est, an peculio praelegato et centum aurei et usurae eorum debentur, cum rationibus breviariis in aere alieno et sortem et usuras inter ceteros creditores complexus sit. respondit, si id faenus nomine filii exercuisset et usuras ita, ut proponeretur, filio adscripsisset, id quoque peculio legato deberi.
"Titus, my son, take out beforehand from the common fund and keep for yourself that house, likewise one hundred aurei": then under another head he pre-legacy’d peculia to his sons. It was asked whether, the peculium having been pre-legacy’d, both the one hundred aurei and their interest are owed, since in brief accounts of indebtedness he had included both principal and interest among the other creditors. He answered that, if he had conducted that loan in the name of the son and had credited the interest to the son as proposed, that too is owed under the legacy of the peculium.
Uxori suae in annos singulos penoris aliquid heres dare iussus est, si non dedisset, nummos dare damnatus est: quaeritur, an penus legata peti possit an vero solummodo sit in praestatione et, si non praestetur, tunc quantitas petatur. et si quidem semel penus sit legata, non per singulos annos, certo iure utimur, ut et Marcellus libro trigesimo nono digestorum apud iulianum notat, in praestatione esse dumtaxat penum, quantitatem vero et peti posse. habebit igitur heres oblationem tamdiu, quamdiu lis cum eo de pecunia contestetur, nisi forte aliud tempus vel mente vel verbis testator praestituit.
The heir was ordered to give his wife each year some amount of provisions, and if he should not have given it, he was condemned to give coins: the question is raised whether the bequeathed provisions can be sought, or rather are only in prestation and, if they are not performed, then the amount be demanded. And if indeed the provisions were bequeathed once, not for each year, we use settled law, as Marcellus also notes in the thirty-ninth book of the Digest at Julian, that the provisions are only for prestation, but that the amount too can be sought. The heir will therefore have the right of tender so long as the suit concerning the money is pending with him, unless perhaps the testator appointed another time either by intention or by words.
But if the store of provisions (penus) has been bequeathed for each single year, the penus can still be furnished year by year; if not, sums will be demanded for each year. What then, if a single sum has been bequeathed and at the outset the penus was not furnished? It can be doubted whether the whole sum is owed, as if the entire bequest of the penus had been converted, or whether only the amount of the valuation for the first year alone has been transferred.
Qui penum legat quid legato complectatur, videamus. et quintus mucius scribit libro secundo iuris civilis penu legata contineri, quae esui potuique sunt. idem sabinus libris ad vitellium scribit: quae harum, inquit, patris familiae uxoris liberorumve eius vel familiae, quae circa eos esse solet, item iumentorum, quae dominici usus causa parata sunt.
Let us see, when someone bequeaths the pantry (store of provisions), what the legacy embraces. And Quintus Mucius writes in the second book of Civil Law that, in a legacy of the pantry, there are contained things for eating and drinking. The same Sabinus, in his books to Vitellius, writes: “Of these,” he says, “those among them for the use of the paterfamilias, his wife or his children, or the household that is wont to be about them, and likewise of the beasts of burden which have been procured for the master’s domestic use.”
Plane, inquit, si penus esculenta legetur, labeo libro nono posteriorum scribit nihil eorum cedere, quia non haec esse, sed per ea solemus. trebatius in melle contra scribit, merito, quia mel esse solemus. sed proculus omnia haec contineri recte scribit, nisi contraria mens testatoris appareat.
Plainly, he says, if an esculent penus (store of provisions for eating) is bequeathed, Labeo in the ninth book of the Later Books writes that none of these things pass, because these are not those things themselves, but we are accustomed to subsist by means of them. Trebatius, in the matter of honey, writes the contrary—rightly—since we are accustomed to subsist on honey. But Proculus rightly writes that all these things are contained, unless a contrary intention of the testator appears.
Esculenta, utrum ea quae esse, an et ea per quae esse solemus, legaverit? et ea quoque legato contineri credendum, nisi contraria mens patris familias doceatur. mella certe semper esculentae penui cedere, lacertas quoque cum muria sua contineri nec labeo negavit.
“Esculents”: has he bequeathed those things which we eat, or also those by which we are accustomed to eat? it is to be believed that those too are contained in the legacy, unless a contrary intention of the paterfamilias is shown. honey, certainly, always falls to the esculent penus (provision‑store), and Labeo did not deny that “lacertae” too, with their own brine, are included.
Sed quod diximus " usus sui gratia paratum" accipiendum erit et amicorum eius et clientium et universorum, quos circa se habet, non etiam eius familiae, quam neque circa se neque circa suos habet: puta si qui sunt in villis deputati. quos quintus mucius sic definiebat, ut eorum cibaria contineri putet, qui opus non facerent: sed materiam praebuit servio notandi, ut textorum et textricum cibaria diceret contineri: sed mucius eos voluit significare, qui circa patrem familias sunt.
But what we said, " usus sui gratia paratum," must be understood also of his friends and clients and of all whom he has about him, but not also of that household which he has neither about himself nor about his own: for instance, if there are any who are assigned to the villas. These Quintus Mucius defined thus, so that he thought the rations of those who were not doing work to be included; but he furnished Servius with material for remarking, so that he said that the rations of weavers and women-weavers were included; but Mucius intended to signify those who are around the paterfamilias.
Ligna et carbones ceteraque, per quae penus conficeretur, an penori legato contineantur, quaeritur. et quintus mucius et ofilius negaverunt: non magis quam molae, inquiunt, continentur. idem et tus et ceras contineri negaverunt.
It is asked whether wood and coals and the other things by which the store of provisions (penus) is made up are contained in a legacy of penus. And Quintus Mucius and Ofilius denied it: “No more than millstones,” they say, “are contained.” Likewise they denied that frankincense and wax are contained.
Vasa quoque penuaria quin contineantur, nulla dubitatio est. aristo autem scribit dolia non contineri, et est verum secundum illam distinctionem, quam supra in vino fecimus. nec frumenti nec leguminum thecae ( arculae forte vel sportae) vel si qua alia sunt, quae horrei penuarii vel cellae penuariae instruendae gratia habentur, non continebuntur, sed ea sola continentur, sine quibus penus haberi non recte potest.
That pantry vessels too are included, there is no doubt. but aristo writes that large jars are not included, and this is true according to that distinction which we made above in regard to wine. nor will the cases of grain or of legumes ( arculae perhaps or baskets), or whatever other things there are which are kept for the sake of equipping a provision-granary or a provision-cellar, be included; but only those things are included, without which a pantry cannot properly be had.
Nam quod liquidae materiae sit quia per se esse non potest, rapit secum in accessionis locum id sine quo esse non potest: vasa autem accessio legatae penus, non legata sunt: denique penu consumpta vasa non debentur. sed et si penum cum vasis specialiter sit legatum, vasa non debebuntur vel consumpta penu vel adempta.
For whatever is of liquid matter, because it cannot exist by itself, drags along with itself, into the place of an accession, that without which it cannot exist; but the vessels are an accession of the bequeathed penus (store of provisions), not themselves bequeathed: accordingly, the penus having been consumed, the vessels are not owed. But even if the penus with the vessels has been bequeathed specifically, the vessels will not be owed either if the penus has been consumed or if it has been taken away.
Item si quis solitus fructus suos vendere penum legaverit, non omnia, quae et promercii causa habuit, legasse videtur, sed ea sola, quae in penum sibi separabat. quod si promiscue uti solebat, tunc quantum ad annuum usum ei sufficeret familiaeque eius ceterorumque, qui circa eum sunt, legato cedet: quod fere, inquit sabinus, evenit in personis mercatorum aut quotiens cella est olei et vini, quae venire solebant, in hereditate relicta.
Likewise, if someone who was accustomed to sell his produce has bequeathed the penus (provision-store), he is not considered to have bequeathed all the things which he also held for purposes of commerce, but only those which he used to set apart for himself into the penus. But if he was accustomed to use them promiscuously, then as much as would suffice for his annual use and for his household and for the others who are around him will pass under the legacy: which, says Sabinus, generally happens in the case of merchants, or whenever a cellar of oil and wine—which used to be sold—has been left in the inheritance.
Si ita legetur " penum, quae romae sit", utrum quae est intra continentia, legata videtur an vero ea sola, quae est intra murum? et quidem urbes fere omnes muro tenus finiri, romam continentibus, et urbem romam aeque continentibus.
If it is read thus, "the provisions, which are at Rome," whether that which is within the contiguous buildings seems to be bequeathed, or in truth only that which is within the wall? And indeed almost all cities are bounded up to the wall, Rome by the contiguous buildings, and the city Rome equally by the contiguous buildings.
Quod si urbana penus sit legata, omnem, quae ubique est, legatam videri labeo ait, etiam si in villis agrisve sit, si illa sit urbico usui destinata, sicuti urbica ministeria dicimus et quae extra urbem nobis ministrare consueverunt. si autem extra urbem, romae tamen sit, sed et si in hortis sit urbi iunctis, idem erit dicendum.
But if an urban penus has been bequeathed, Labeo says that all of it, wherever it is, is to be deemed bequeathed, even if it is in country houses or in fields, provided it is destined for urban use—just as we call “urban services” even those which outside the city have been accustomed to minister to us. If, however, it is outside the city, yet at Rome, and likewise if it is in gardens joined to the city, the same must be said.
Si cui penus legata sit praeter vinum, omnis penus legata videtur excepto vino: sed si ita scriptum sit " omnem penum praeter vinum quod romae erit", sola penus quae romae est legata videtur: et ita et pomponius libro sexto ad sabinum scribit.
if a store of provisions be left as a legacy to someone, except the wine, all the provisions are considered bequeathed, the wine excepted: but if it be written " omnem penum praeter vinum which will be at Rome," only the provisions which are at Rome are considered bequeathed: and so also Pomponius writes in the sixth book on Sabinus.
Non omne quod bibetur in penu habetur: alioqui necesse est, ut omnia medicamenta quae biberentur contineantur. itaque ea demum penoris esse, quae alendi causa biberentur, quo in numero antidotum non est. et sane vere cassius sensit.
Not everything that is drunk is held to be in the penus; otherwise it would be necessary that all medicaments which are drunk be included. Accordingly, only those things belong to the penus which are drunk for the sake of nourishment, among which an antidote is not. And indeed, Cassius judged truly.
"penum meam omnem ad matrem liberosque meos, qui cum matre sunt, pertinere volo". quaero, si tutores pupilli eam solummodo penum deberi, quae in caenaculo esset, dicant, sint autem et in horreis anphorae ^ amphorae^, an hae quoque deberentur. respondit, quidquid penoris usus causa ubicumque habuisset, deberi.
"I wish all my penus to pertain to my mother and to my children, who are with their mother." I ask whether, if the tutors of the ward say that only that penus is owed which was in the upper room, but there are also in the granaries anphorae ^ amphorae^, these too should be owed. He responded that whatever of penus, for the sake of use, he had had wherever, is owed.
Praeterea capsae, armaria. sed sunt qui recte putant capsas et armaria, si librorum aut vestium aut armamentorum gratia parata sint, non esse in suppellectili, quia ne hae quidem ipsae res, quibus adtributae essent, suppellectilis instrumento cederent.
Moreover, chests, armoires. But there are those who rightly think that chests and armoires, if prepared for the sake of books or clothes or armaments, are not in the household furnishings, because not even those very things themselves, to which they were assigned, would fall under the equipment of the household furnishings.
Vitrea escaria et potoria in supellectili sunt sic ut fictilia, nec solum vulgaria, sed etiam quae in pretio magno sunt: nam et pelves argenteas et aquiminalia argentae et mensas et lectos inargentatos vel inauratos atque gemmatos in supellectili esse non dubitatur, usque adeo, ut idem iuris sit et si tota argentea vel aurea sint.
Glass tableware and drinkware are in the furnishings just as fictile ware, and not only the common kinds, but even those which are of great price: for silver basins and silver water-vessels and tables and couches silvered or gilded and gemmed are without doubt in the furnishings, to such an extent that the same rule of law applies even if they are wholly of silver or gold.
Nec interest, cuius materiae sunt res, quae sunt in suppellectili. sed craterem argenteum non esse in supellectili nec ullum vas argenteum secundum saeculi severitatem nondum admittentis supellectilem argenteam hodie, propter usum imperitorum si in argento relatum sit candelabrum argenteum, argenti esse videtur, et error ius facit.
Nor does it matter what the material is of the things that are in the household furnishings. But a silver krater is not among the household furnishings, nor any silver vessel, in keeping with the austerity of an age which even today does not yet admit silver furnishings; yet, because of the usage of the unskilled, if a silver candelabrum is entered under “silver,” it is deemed to belong to the silver, and error makes law.
De tapetis quaeri potest, subsellia cathedraria quibus insterni solent utrum in veste sint, sicut stragula, an in suppellectili, sicut toralia, quae propria stragulorum non sunt. et hoc magis placuit ea supellectili contineri.
Concerning tapestries, it can be asked, as to the chair-seats on which they are accustomed to be spread, whether they belong among vesture, like coverlets (stragula), or among household furniture, like couch-hangings (toralia), which are not proper to coverlets. And the view more approved was that they are included in household furniture.
De tapetis autem vel linteis, quibus insternuntur vehicula, dubitari potest, an sint in suppellectili. sed dicendum est potius instrumenti viatorii ea esse, sicut pelles, quibus involvuntur vestimenta, lora quoque, quibus hae pelles constringi solent.
Concerning tapestries, moreover, or linens with which vehicles are overlaid, it can be doubted whether they are among the household furnishings. But it ought rather to be said that they are instruments of travel, like the hides in which garments are wrapped, and also the straps by which these hides are accustomed to be bound.
Tubero hoc modo demonstrare supellectilem temptat: instrumentum quoddam patris familiae rerum ad cottidianum usum paratarum, quod in aliam speciem non caderet, ut verbi gratia penum argentum vestem ornamenta instrumenta agri aut domus. nec mirum est moribus civitatis et usu rerum appellationem eius mutatam esse: nam fictili aut lignea aut vitrea aut aerea denique supellectili utebantur, nunc ex ebore atque testudine et argento, iam ex auro etiam atque gemmis supellectili utuntur. quare speciem potius rerum, quam materiam intueri oportet, suppellectilis potius an argenti, an vestis sint.
Tubero attempts to define “furnishings” in this way: a certain equipment of the paterfamilias, consisting of things prepared for quotidian use, which would not fall into another species, for example the pantry, silver, clothing, ornaments, implements of field or of house. Nor is it a wonder that, by the customs of the commonwealth and the usage of things, its appellation has been changed: for they used to employ furnishings of earthenware or wood or glass or, finally, bronze; now they use furnishings of ivory and tortoise-shell and silver, and now even of gold and gems. Wherefore one ought to look rather to the species of the things than to the material, whether they are to be classed rather as furnishings, or as silverware, or as clothing.
Servius fatetur sententiam eius qui legaverit aspici oportere, in quam rationem ea solitus sit referre: verum si ea, de quibus non ambigeretur, quin in alieno genere essent, ut puta escarium argentum aut paenulas et togas, supellectili quis adscribere solitus sit, non idcirco existimari oportere supellectili legata ea quoque contineri: non enim ex opinionibus singulorum, sed ex communi usu nomina exaudiri debere. id tubero parum sibi liquere ait: nam quorsum nomina, inquit, nisi ut demonstrarent voluntatem dicentis? equidem non arbitror quemquam dicere, quod non sentiret, ut maxime nomine usus sit, quo id appellari solet: nam vocis ministerio utimur: ceterum nemo existimandus est dixisse, quod non mente agitaverit.
Servius admits that the intention of him who has made the legacy must be looked at, in what manner he was accustomed to refer those items; but if things about which there would be no dispute that they belong to a different class—say table silver or traveling cloaks and togas—someone was accustomed to ascribe to “household furnishings,” it ought not on that account to be thought that, when household furnishings are bequeathed, those also are included: for names ought to be understood not from the opinions of individuals, but from common usage. Tubero says that this is not sufficiently clear to him: for to what end are names, he says, unless to demonstrate the will of the speaker? For my part I do not suppose anyone to say what he does not mean, even though he has used the very name by which the thing is wont to be called: for we use the ministry of the voice; moreover, no one ought to be considered to have said what he has not revolved in his mind.
but even if Tuberon’s reasoning and authority move me greatly, nevertheless I do not disagree with Servius that no one is seen to have spoken of something whose own name he has not used. for although the mind of the speaker is prior and more potent than the voice, nevertheless no one is considered to have spoken without a voice—unless perhaps we also think that those who cannot speak, by the very attempt itself and by a certain sound and an inarticulate voice, are to be thought to speak.
Cum quidam uxori suae legaverat domum cum iure suo omni et instrumento et supellectili, quaerebatur, an videretur et argentum escale et potorium legato contineri. respondit, si quid in supellectili argentum est, deberi, escale autem vel potorium argentum non deberi, nisi hoc quoque testatorem sensisse legatarius doceat.
When a certain man had bequeathed to his wife a house with all its rights and with its equipment and household furniture, the question was raised whether the legacy seemed to include silver for eating and for drinking. He responded that, if there is any silver among the household furniture, it is owed; but table silver or drinking silver is not owed, unless the legatee also shows that the testator intended this as well.
Legata supellectili cum species ex abundanti per imperitiam enumerentur, generali legato non derogatur: si tamen species certi numeri demonstratae fuerint, modus generi datus in his speciebus intellegitur. idem servabitur instructo praedio legato, si quaedam species numerum certum acceperint.
When a legacy of household furnishings is made, and items are enumerated ex abundanti through inexperience, the general legacy is not derogated; nevertheless, if items of a fixed number have been specified, a limit given to the genus is understood in these items. The same will be observed when a stocked estate is bequeathed, if certain items have received a fixed number.
Supellectilis mensas esse cuiuscumque materiae, scilicet vel argenteas vel argento inclusas placet: nam et argenteos lectos, item argentea candelabra supellectili cedere posterior aetas recepit: cum et ulixem ex auro et argento lectum viventis arboris truncis aedificatum ornasse, quem penelopa recognoscendi viri signum accepit, ut voluit homerus.
It is held that tables, of whatever material—namely, either silver ones or those inlaid with silver—belong to the household furniture; for even silver couches, likewise silver candelabra, a later age has accepted as yielding to (i.e., being counted under) the furniture: since even Ulysses adorned a bed built from the trunks of a living tree with gold and silver, which Penelope took as a sign for recognizing her husband, as Homer willed.
Supellectili sua omni legata acceptum argentum pignori non continebitur, quia supellectilem suam legavit, utique si non in usu creditoris id argentum voluntate debitoris fuit, sed propositum propter contractus fidem ac restituendae rei vinculum.
With all his household furnishings bequeathed, silver received as a pledge will not be included, because he bequeathed his own household furnishings—certainly if that silver was not in the creditor’s use by the debtor’s will, but was set forth for the faith of the contract and as a bond for the restoration of the thing.
Qui vestem omnem et res plurium generum supellectilis expenso ferre solitus erat, is uxori supellectilem legaverat. recte negabant vestem legato cessuram labeo ofilius cascellius, quia non posset videri vestis appellatione supellectilis contineri.
He who was accustomed to bear at his own expense all clothing and the items of several kinds of household furnishings had bequeathed the household furnishings to his wife. recte Labeo, Ofilius, and Cascellius denied that clothing would pass under the legacy, because clothing could not be seen to be contained under the appellation of household furnishings.
Vasa aenea salientis aquae posita, item si quid aliud magis deliciarum quam usus causa paratum esset, non esse supellectilis labeo trebatius putant. murrea autem vasa et vitrea, quae ad usum, edendi et bibendi causa, parata essent, in supellectili dicuntur esse.
Bronze vessels set for spouting water, likewise if anything else had been prepared more for luxury than for use, Labeo and Trebatius think are not part of household furniture. But murrhine vessels and glass ones, which were prepared for use, for the purpose of eating and drinking, are said to be in household furniture.
Quemadmodum urbanus servus et rusticus distinguitur non loco, sed genere usus, ita urbana penus et supellex ad usum urbanum, non ad locum urbanum aut peregrinum dirigenda est, multumque interest, penus et supellex ea quae in urbe sit an urbana legetur vel promittatur.
Just as an urban slave and a rustic slave are distinguished not by place, but by the kind of use, so urban provisions (penus) and furnishings (supellex) are to be directed to urban use, not to an urban or a foreign place; and it makes much difference whether provisions and furnishings that are in the city are bequeathed or promised as urban.
Fundo legato instrumentum eius non aliter legato cedit, nisi specialiter id expressum sit: nam et domo legata neque instrumentum eius neque supellex aliter legato cedit, quam si id ipsum nominatim expressum a testatore fuerit.
When a farm (fundus) is bequeathed, its equipment (instrumentum) does not otherwise pass under the legacy unless that has been specially expressed; for even when a house (domus) is bequeathed, neither its equipment (instrumentum) nor its furniture (supellex) passes under the legacy, except if that very thing has been expressly named by the testator.