Justinian•DIGESTA
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Dig. 34.3.0. De liberatione legata.
34.2.0. On gold, silver, toilet articles, ornaments, unguents, clothing or garments, and bequeathed statues.
Dig. 34.3.0. On liberation bequeathed.
Dig. 34.6.0. De his quae poenae causa relinquuntur.
34.5.0. On doubtful matters.
Dig. 34.6.0. On those things which are left as a penalty.
Dig. 34.9.0. De his quae ut indignis auferuntur.
34.8.0. On those things which are held as though unwritten.
Dig. 34.9.0. On those things which are taken away as from the unworthy.
Solent iudices ex causa alimentorum libertos dividere, quotiens plures sunt heredes, ne a singulis heredibus minutatim alimenta petentes distringantur: quam divisionem perinde tueri oportet atque si pater familias ipse libertos divisisset. solent et unum eligere, per quem alimenta praestentur, aut ex voluntate defuncti aut arbitrio suo, ut rescripta subiecta ostendunt: " exemplum libelli dati mihi a libertis silii misi vobis, sciens ad exemplum istam rem pertinere, quia multi testamentis suis praestari libertis iubent necessaria, quae quia minimi aeris sunt, ad nihilum perducuntur, cum plures heredes coeperunt per successiones existere. qua de causa puto vos recte facturos, si convocatis favillae heredibus procuratoribusve eorum constitueritis, cui a ceteris dari debeat pecunia, ex cuius usuris alimenta praestentur.
Judges are accustomed, on account of the cause of alimenta, to divide the freedmen whenever there are several heirs, lest, seeking alimenta bit by bit from individual heirs, they be distrained: and such a division ought to be maintained just as if the pater familias himself had divided the freedmen. They are also wont to choose one, through whom the alimenta may be furnished, either by the will of the deceased or by their own discretion, as the subjoined rescripts show: " a copy of the petition given to me by the freedmen of Silius I have sent to you, knowing that this matter pertains as a precedent, because many in their wills order the necessaries to be furnished to their freedmen, which, because they are of the smallest coin, are brought to nothing when several heirs have begun to arise through successions. For which cause I think you will act rightly, if, having called together the heirs of Favilla and their procurators, you shall determine to whom the money ought to be given by the rest, from the interest of which the alimenta may be furnished.
he who will receive must, moreover, give security to those who will pay that he will return it, that, as each of the freedmen shall have died or in some other way has ceased to be in the civitas, so much from the principal as the computation will determine according to the portion". the deified Pius wrote back to a certain Rubrius Telesphorus: " the consuls, having summoned those by whom it shall have been established that maintenance is owed to you on account of a fideicommissum, will decree whether you are to receive all from one, or, a pro rata distribution having been made, who and from whom you are to receive. for the fisc, if under that name anything were owed to you by him, will follow the example. know now that the shares of those who have ceased to be solvent do not pertain to the burden of the remaining heirs".
Tois te apeleuverois tais te apeleuverais mou, ohus zwsa en te ty diavyky en te tw kwdikillw yleuverwsa ye eleuverwsw, dovynai boulomai ta en xiois mou xwria, epi tw kai hosa zwsys mou elambanon stoixeisvai autois kibariou kai bestiariou onomati. quaero, quam habeant significationem, utrum ut ex praediis alimenta ipsi capiant an vero ut praeter praedia et cibaria et vestiaria ab herede percipiant? et utrum proprietas an usus fructus relictus est?
To my freedmen and freedwomen, whom, while alive, I have freed in my will and in my codicil, and shall free, I wish to give the estates of mine on Chios, on condition that also whatever during my lifetime they received be entered for them under the name of “cibarium” and “vestiarium.” I ask what meaning they have: whether that they themselves should take sustenance from the estates, or rather that, besides the estates, they should receive food- and clothing-allowances from the heir; and whether ownership or usufruct was left?
and if ownership has been left, yet something superfluous be found in the revenues beyond the quantity of rations and clothing-allowances, does it pertain to the heir of the patroness? and if some of the freedmen have died, does their share pertain to the surviving fideicommissaries? and, the day of the fideicommissum accruing, do the portions of the dying freedmen devolve to their heirs or to the testator?
Modestinus responded: It seems to me that the estates themselves were left to the freedmen, so that they may have these in full dominion and not by usufruct alone; and therefore, if there is anything superfluous in the revenues beyond the rations, this pertains to the freedmen. But also, if a fideicommissary should die before the day when the fideicommiss falls due, his share pertains to the other fideicommissaries; but after the day has fallen due, if any have died, these pass to their own heirs.
Lucius titius testamento suo libertis libertabusque cibaria et vestiaria a liberis suis eisdemque heredibus praestari iussit nulla condicione addita: quaero, an, si sine patroni liberis idem liberti agant, cibaria et vestiaria accipere possint. modestinus respondit nihil proponi, propter quod petitio eorum, quae testamento pure legata sunt, non competat.
Lucius Titius, in his testament, ordered that food-allowance and clothing-allowance be furnished to his freedmen and freedwomen by his children, who are likewise his heirs, with no condition added: I ask whether, if the same freedmen proceed without the patron’s children, they can receive the food-allowance and clothing-allowance. Modestinus replied that nothing is set forth on account of which the claim for those things which are purely bequeathed by the testament would not lie.
Verba testamenti: " omnibus libertis nostris cibaria praestabitis pro arbitrio vestro, non ignorantes, quot ex his caros habuerim". item alio loco: " prothymum polychronium hypatium commendo: ut et vobiscum sint et cibaria praestetis, peto". quaero, an omnibus cibaria debent dari an his quos commendavit et cum heredibus esse iussit? modestinus respondit omnibus libertis cibaria relicta proponi, quorum modum viri boni arbitrio statuendum esse.
Words of the testament: "you shall furnish provisions to all our freedmen at your discretion, not being unaware how many of these I have held dear." Likewise in another place: "I commend Prothymus, Polychronius, Hypatius: I ask that they also be with you and that you furnish provisions." I ask whether provisions ought to be given to all, or to those whom he commended and ordered to be with the heirs? Modestinus responded that provisions left to all the freedmen are to be provided, the amount of which is to be set by the arbitration of a good man.
Pecuniae sortem alimentis libertorum destinatam unum ex heredibus secundum voluntatem defuncti praecipientem cavere non esse cogendum ex persona deficientium partes coheredibus restitui placuit: ob eam igitur speciem post mortem omnium libertorum indebiti non competit actio nec utilis dabitur. diversa causa est eius, cui legatorum divisio mandatur: nam ea res praesentem ac momentariam curam iniungit, alimentorum vero praebendorum necessitas oneribus menstruis atque annuis verecundiam quoque pulsantibus adstringitur.
It has been decided that, for a portion of money destined for the maintenance of freedmen, one of the heirs, who according to the will of the deceased is to preempt it, is not to be compelled to give security that, upon the failure of the persons, the shares be restored to the coheirs: therefore, in that case, after the death of all the freedmen, an action for the undue (payment) does not lie, nor will a useful action be granted. A different case is that of the one to whom the division of legacies is mandated: for that matter imposes a present and momentary care, whereas the necessity of furnishing maintenance is bound by monthly and annual burdens, which also assail modesty.
Alio herede instituto ita scripsit: " a te peto, gai sei, quidquid ex hereditate mea redegeris, illis alumnis meis des singulis denos aureos eandemque summam penes te esse volo, cuius ex incremento eos alere te volo: reliquum restitues numerio colliberto nostro". respondi, quamvis distrahere bona gaius seius alio scripto herede non possit, tamen eum, alumnis relictam pecuniam ut servet ac restituat, intra falcidiam recte petiturum: quod de superfluo probari non potest.
With another heir instituted, he wrote thus: " a request from you, Gaius Seius: whatever you shall have realized from my inheritance, give to those my foster-children ten aurei apiece, and I wish the same sum to be in your keeping, from the increase of which I want you to support them; you will restore the remainder to Numerius, our fellow-freedman." I answered: although Gaius Seius, another heir having been appointed in writing, cannot sell off the goods, nevertheless he will rightly demand, within the Falcidian allowance, that—as to the money left to the foster-children—he keep it and restore it; which cannot be approved as to the excess.
Cum unus ex heredibus certam pecuniam praecipere iussus esset, de cuius sorte libertis alimenta praestaret, heredem quoque heredis ad praeceptionem admitti placuit. si tamen plures heredes heres haberet, intentionem quidem defuncti prima facie refragari, sed aliud probari non oportere: quid enim, si ceteros heredes suos evitavit et quietam ac verecundam atque etiam idoneam, libertis consulens, domum sequi maluit? et ideo ab omnibus heredibus heredis alimenta praestabuntur.
When one of the heirs had been ordered to pre-take a certain sum of money, from whose share he should provide alimentary support to the freedmen, it was decided that the heir of that heir also be admitted to the pre-taking. If, however, the heir should have several heirs, the intention of the deceased would at first sight seem to be gainsaid, but it ought not to be proved otherwise: for what if he avoided his other heirs and, considering the freedmen, preferred that they follow a household that was quiet, modest, and even suitable? And therefore alimentary support will be furnished by all the heirs of the heir.
Verbis fideicommissi pure manumisso praeteriti quoque temporis alimenta reddenda sunt, quamvis tardius libertatem reciperaverit nec heres moram libertati fecerit: tunc enim explorari moram oportet, cum de usuris fideicommissi quaeritur, non de ipsis fideicommissis.
By the terms of the fideicommiss, to one manumitted purely (unconditionally), the maintenance for time already past must also be rendered, although he has recovered his freedom later and the heir has not caused delay to the freedom: for it is then that delay must be examined, when the question is about the interest (usury) of the fideicommiss, not about the fideicommissa themselves.
Alimentis viri boni arbitratu filiae relictis ab herede filio pro modo legatae dotis, quam solam pater exheredatae filiae nubenti dari voluit, atque pro incrementis aetatis eam exhibendam esse respondi, non pro viribus hereditatis.
With maintenance, at the arbitration of a good man, having been left to the daughter by the son-heir in proportion to the measure of the bequeathed dowry—which alone the father wished to be given to his disinherited daughter upon marrying—I replied that it must be furnished according to the increments of age, not according to the resources of the inheritance.
Lucius titius libertis suis cibaria et vestiaria annua certorum nummorum reliquit et posteriore parte testamenti ita cavit: " obligatos eis ob causam fideicommissi fundos meos illum et illum, ut ex reditu eorum alimenta supra scripta percipiant". quaesitum est, an, si quando minores reditus pervenerint, quam est quantitas cibariorum et vestiariorum, heredes ad supplendam eam onerari non debeant, vel, si alio anno excesserint, an supplendum sit, quod superiore anno minus perceperint. paulus respondit cibaria et vestiaria libertis defuncti integra deberi, neque ex eo, quod postea praedia his pignoris iure testator obligare voluit, ut ex reditu eorum alimenta perciperent, minuisse eum vel auxisse ea quae reliquerat videri.
Lucius Titius left to his freedmen annual food-rations and clothing allowances of fixed sums of money, and in the later part of the testament he provided thus: "my estates, such-and-such, bound to them on account of the cause of the fideicommissum, so that from their revenue they may receive the aforesaid aliments." It was asked whether, if at any time revenues have come in smaller than the amount of the food and clothing, the heirs ought not to be burdened to supply the deficiency; or, if in another year they exceed, whether what in the previous year they received less should be made up. Paulus replied that the food and clothing are owed entire to the deceased’s freedmen, and that from the fact that afterwards the testator wished to bind the estates to these by the right of pledge, so that from their revenues they might receive the sustenance, he is not to be seen to have diminished or increased what he had left.
Gaio seio trecentos aureos legavit, ut ex usuris eius summae libertis cibaria et vestiaria praestaret, quae statuerat: codicillis autem eandem summam vetuit dari gaio seio, sed dari publio maevio voluit: quaero, an libertis fideicommissum debeat maevius. respondi maevium, nisi aliud, de quo non deliberaretur, doceat sibi a testatore iniunctum, videri secundum voluntatem testatoris recepisse ea onera, quae adscripta erant ei summae, quae in eum codicillis transferebatur.
to gaius seius he bequeathed three hundred aurei, so that from the interest of that sum he should furnish to the freedmen rations and clothing-allowances, which he had stipulated: but by codicils he forbade that the same sum be given to gaius seius, and wished it to be given to publius maevius: I ask whether maevius ought to owe the fideicommissum to the freedmen. I answered that maevius, unless he shows something else—about which there is no question—to have been enjoined upon him by the testator, is considered, according to the will of the testator, to have accepted those burdens which were appended to that sum which by the codicils was being transferred to him.
Imperator antoninus pius libertis sextiae basiliae. " quamvis verba testamenti ita se habeant, ut, quoad cum claudio iusto morati essetis, alimenta et vestiarium legata sint, tamen hanc fuisse defunctae cogitationem interpretor, ut et post mortem iusti eadem vobis praestari voluerit". respondit eiusmodi scripturam ita accipi, ut necessitas alimentis praestandis perpetuo maneat.
the emperor antoninus pius to the freedmen of sextia basilia. " although the words of the will are such that, so long as you were staying with claudius justus, maintenance (alimenta) and a clothing-allowance (vestiarium) were bequeathed, nevertheless I interpret this to have been the intention of the deceased: that even after the death of justus she wished the same to be furnished to you". he replied that a writing of this sort is to be taken thus, that the obligation of furnishing maintenance (alimenta) remains perpetual.
Item consultus de tali scriptura " et tecum sint semper volo": quaero, cum manumissi ab herede cum eo morati diu sint, sed ob graviorem servitutem ab eo discesserint, an alimenta his debeantur, quae negat se praestare, nisi vice servitutis is uteretur. respondit secundum ea quae proponerentur deberi.
Likewise, being consulted about a clause of this sort, " and I want them to be always with you": I ask, since persons manumitted by the heir have stayed with him for a long time, but have departed from him on account of a heavier servitude, whether alimentary support is owed to them— which he says he will not furnish unless he might employ them in the capacity of servitude. He replied that, according to the matters proposed, it is owed.
Certe si usque ad pubertatem alimenta relinquantur, si quis exemplum alimentorum, quae dudum pueris et puellis dabantur, velit sequi, sciat hadrianum constituisse, ut pueri usque ad decimum octavum, puellae usque ad quartum decimum annum alantur, et hanc formam ab hadriano datam observandam esse imperator noster rescripsit. sed etsi generaliter pubertas non sic definitur, tamen pietatis intuitu in sola specie alimentorum hoc tempus aetatis esse observandum non est incivile.
Certainly, if alimenta are left up to puberty, if anyone wishes to follow the precedent of the alimenta which formerly were given to boys and girls, let him know that Hadrian established that boys are to be supported up to the eighteenth year, girls up to the fourteenth, and our emperor has written in a rescript that this form given by Hadrian is to be observed. But although in general puberty is not thus defined, nevertheless, in view of piety, in the single matter of alimenta it is not uncivil to observe this period of age.
Sed si alimenta, quae vivus praestabat, reliquerit, ea demum praestabuntur, quae mortis tempore praestare solitus erat: quare si forte varie praestiterit, eius tamen temporis praestatio spectabitur, quod proximum mortis eius fuit. quid ergo, si, cum testaretur, minus praestabat, plus mortis tempore, vel contra? adhuc erit dicendum eam praestationem sequendam, quae novissima fuit.
But if he has left the aliments which he was furnishing while alive, then at length those will be furnished which he was accustomed to furnish at the time of death: wherefore, if perchance he furnished them variously, nevertheless the prestation of that time will be regarded which was nearest to his death. What then, if, when he was making his will, he was furnishing less, and more at the time of death, or the contrary? It must still be said that the prestation is to be followed which was the most recent.
Quidam libertis suis ut alimenta, ita aquam quoque per fideicommissum reliquerat: consulebar de fideicommisso. cum in ea regione africae vel forte aegypti res agi proponebatur, ubi aqua venalis est, dicebam igitur esse emolumentum fideicommissi, sive quis habens cisternas id reliquerit sive non, ut sit in fideicommisso, quanto quis aquam sibi esset comparaturus. nec videri inutile esse fideicommissum quasi servitute praedii non possessori vicinae possessionis relicta: nam et haustus aquae ut pecoris ad aquam adpulsus est servitus personae, tamen ei, qui vicinus non est, inutiliter relinquitur: in eadem causa erunt gestandi vel in tuo uvas premendi vel areae tuae ad frumenta ceteraque legumina exprimenda utendi.
Someone had left to his freedmen, as provisions, so also water by fideicommissum: I was being consulted about the fideicommissum. Since it was being proposed that the matter was taking place in that region of africa, or perhaps of egypt, where water is for sale, I said therefore that there is an emolument of the fideicommissum, whether a person having cisterns had left that or not, namely that there be in the fideicommissum as much as one would procure water for himself for. Nor does the fideicommissum seem to be useless, as though a servitude of a praedium had been left to one who is not the possessor of a neighboring holding: for even the drawing of water, like the driving of cattle to water, is a servitude of the person, yet it is ineffectually left to one who is not a neighbor; in the same case will be the rights of carrying off, or of pressing grapes on your property, or of using your threshing-floor for expressing grain and other legumes.
A filio herede codicillis seiae decem reliquit et alumno his verbis: " maevio infanti alumno meo quadringenta dari volo, quae peto a te, seia, suscipias et usuras ei quincunces in annum usque vicesimum aetatis praestes eumque suscipias et tuearis". quaesitum est, an seia, postquam legatum suum acceperit, si nolit pecuniam alumno relictam suscipere vel in suscipienda ea cessaverit, onus alimentorum ex die mortis testatoris compellenda sit adgnoscere. respondit secundum ea quae proponerentur compellendam praestare, cum fideicommissum sit. idem quaesiit, an heres quoque seiae in annos viginti alimenta praestare debeat.
By codicils made by the son, the heir, he left to Seia ten, and to the alumnus in these words: " maevio, an infant, my alumnus, I wish four hundred to be given, which I ask you, seia, to assume, and to pay him interest at the rate of a quincunx per year up to the twentieth year of age, and that you take him up and protect him". The question was asked whether Seia, after she has received her legacy, if she is unwilling to assume the money left to the alumnus or has delayed in assuming it, should be compelled to acknowledge the burden of maintenance from the day of the testator’s death. He responded that, according to the matters proposed, she is to be compelled to provide it, since it is a fideicommissum. The same inquirer asked whether Seia’s heir also must provide maintenance for twenty years.
Testator concubinae mancipia rustica numero octo legavit et his cibaria praestari iussit in haec verba: " eisque mancipiis, quae supra legavi, cibarii nomine ab heredibus meis praestari volo, quae me vivo accipiebant". quaesitum est, cum vivo testatore semper mancipia rustica tempore messium et arearum delegata fuerint et eo tempore cibaria ex ratione domini sui numquam acceperint excepto custode praedii, an heres eius quoque temporis, id est messis et arearum, et cibaria concubinae pro mancipiis rusticis praestare deberet. respondit eum, cuius notio est, aestimaturum. claudius: merito: nam si eodem modo, quo apud testatorem fuerunt, et apud concubinam futura legavit, non debebantur eius temporis, de quo quaesitum est, cibaria: verum si velut in ministerium urbanum ab his transferentur, debebuntur.
The testator bequeathed to his concubine rural slaves to the number of eight and ordered that rations be furnished to them in these words: " and to those slaves, which I have bequeathed above, I wish, under the name of rations, to be furnished by my heirs the rations which they used to receive while I was alive". It was asked, since while the testator was alive the rural slaves had always been assigned out during the time of harvests and of the threshing-floors and at that time had never received rations at their master’s expense, except for the custodian of the estate, whether the heir ought also for that time, that is, of harvest and of the threshing-floors, to furnish to the concubine rations for the rural slaves. He responded that he whose cognizance it is will assess. Claudius: rightly: for if he bequeathed that with the concubine they would be in the same manner in which they were with the testator, the rations of that time, about which the question was asked, were not owed: but if, as it were, they are transferred from these into urban service, they will be owed.
Titia decedens testamento ita cavit: " omnibus libertis libertabusque meis cibaria et vestiaria, quae viva praestabam, dari praestarique volo": quaesitum est, cum tribus solis eo tempore, quo ea vixit, sicut rationibus continebatur, cibaria et vestiaria praestiterit, an heres eius a ceteris quoque libertis conveniri possit, an vero tribus tantum sit obnoxius, qui rationibus ipsius cibaria et vestiaria accepisse reperiuntur? respondit ab omnibus.
Titia, at her decease, thus provided in her testament: " to all my freedmen and freedwomen I want food-allowances and clothing-allowances, which I used to provide while alive, to be given and furnished": the question was raised, since to three only, in the period during which she lived, as the accounts recorded, she had provided the food- and clothing-allowances, whether her heir can also be proceeded against by the other freedmen, or indeed is he liable only to the three who are found from her accounts to have received the food- and clothing-allowances? he answered: by all.
Alimenta et vestiaria libertis suis dedit: quaesitum est, an, quia nominatim a moderato uno ex heredibus dari iussit testator, solus moderatus debeat, non etiam post mortem moderati heredes eius. respondit et heredes teneri.
He gave alimenta and clothing-allowances to his freedmen: it was asked whether, because the testator ordered it to be given by name by Moderatus, one of the heirs, Moderatus alone ought to be liable, and not also, after the death of Moderatus, his heirs. He responded that the heirs also are held liable.
Libertis libertabusque, item quos quasque testamento codicillisve manumiserat, alimenta commoda, quae viva praestabat, dari iusserat: item omnibus libertis libertabusque fundos: quaesitum est, an ad ea legata admitteretur liberti paterni libertus, cui scribere solebat ita: apo hroufinys hymeterw apeleuverw: epistula etiam emissa ad ordinem civitatis, unde oriunda erat, petierat, uti publice ( quod medicus erat) salaria ei praestarentur, manifestando litteris suis eum suum esse libertum. respondit eum, cuius notio est, aestimaturum, ut, si quidem viva ea et ei praestabat, nihilo minus ad fideicommissum admitteretur, aliter vero non.
To the freedmen and freedwomen, likewise to those whom he had manumitted by testament or by codicils, he had ordered the alimentary allowances, suitable, which he used to provide while alive, to be given: likewise to all the freedmen and freedwomen, estates: it was asked whether to these legacies there should be admitted the freedman of the paternal freedman, to whom she used to write thus: apo hroufinys hymeterw apeleuverw: a letter too, sent to the order of the city whence she originated, had requested that publicly ( since he was a physician) salaries be provided to him, by making manifest in her letters that he was her freedman. He replied that the person who has cognizance will assess, so that, if indeed while she was alive she also used to provide them to him, nonetheless he should be admitted to the fideicommissum; otherwise, not.
Basilice libertae decem dedit, quam apud epictetum et callistum libertos esse voluit, ut, cum fuerit basilice annorum viginti quinque, cum usuris quincuncibus restituerentur ita, ut ex usuris aleretur, prout aetatem ampliaverit: quaesitum est, an ex alio capite, quo generaliter libertis libertabusque cibaria et vestiaria et habitationem reliquit, etiam basilice deberentur. respondit secundum ea quae proponerentur non deberi, nisi hoc quoque ei datum probaretur. claudius: quia destinaverat alimentis eius usuras pecuniae, quas specialiter ei praelegaverat.
He gave ten to the freedwoman Basilice, whom he wished to be with the freedmen epictetus and callistus, to the effect that, when Basilice should be twenty-five years old, they be restored with quincunx interest, in such a way that from the interest she be supported, according as she advanced in age: it was asked whether, from another head, by which he left generally to the freedmen and freedwomen victuals and clothing and habitation, these also were owed to Basilice. He answered that, according to the things proposed, they were not owed, unless it were also proved that this likewise had been given to her. claudius: because he had destined the interest of the money, which he had specially pre-legacy bequeathed to her, for her maintenance.
Qui societatem omnium bonorum suorum cum uxore sua per annos amplius quadraginta habuit, testamento eandem uxorem et nepotem ex filio aequis partibus heredes reliquit et ita cavit: " item libertis meis, quos vivus manumisi, ea quae praestabam". quaesitum est, an et qui eo tempore, quo societas inter eos permansit, manumissi ab utrisque et communes liberti facti sunt, ea quae a vivente percipiebant solida ex fideicommisso petere possint. respondit non amplius, quam quod vir pro sua parte praestabat, deberi.
He who had a partnership of all his goods with his wife for more than forty years, by testament left as heirs in equal shares the same wife and a grandson through his son, and thus provided: "likewise to my freedmen, whom I manumitted while alive, those things which I was furnishing." It was asked whether also those who, at the time when the partnership remained between them, were manumitted by both and made common freedmen, could demand in solidum from the fideicommissum the things which they were receiving from him while alive. He responded that no more was owed than what the husband was furnishing for his own share.
Servos ad custodiam templi reliquerat et his ab herede legaverat his verbis: " peto fideique tuae committo, ut des praestes in memoriam meam pedisequis meis, quos ad curam templi reliqui, singulis menstrua cibaria et annua vestiaria certa". quaesitum est, cum templum nondum esset extructum, ex die mortis an vero ex eo tempore, quo templum explicitum fuerit, percipere servi debeant legatum. respondit officio iudicis heredem compellendum servis relicta praestare, donec templum exstrueretur.
He had left slaves for the custody of the temple and had laid upon the heir a legacy for them in these words: "I ask and commit to your good faith, that you give and provide, in my memory, to my attendants, whom I have left for the care of the temple, for each a fixed monthly ration of food and a fixed yearly clothing allowance." It was asked, since the temple had not yet been erected, whether the slaves ought to receive the legacy from the day of death, or rather from the time when the temple should have been completed. He answered that, by the office of the judge, the heir must be compelled to furnish to the slaves the things bequeathed, until the temple was built.
Libertis, quos testamento manumiserat, alimentorum nomine menstruos decem legaverat, deinde codicillis generaliter omnibus libertis menstruos septem et annuos vestiarii nomine denos legavit: quaesitum est, an et ex testamento et ex codicillis libertis fideicommissum heredes praestare debeant. respondit nihil proponi, cur non ea, quae codicillis data proponerentur, praestari deberent: nam ab his, quae testamento cibariorum nomine legata essent, recessum est propter ea, quae codicillis relicta sunt.
To the freedmen whom he had manumitted by testament, he had bequeathed ten per month under the name of alimenta; then by codicils he generally bequeathed to all the freedmen seven per month and, under the name of vestiary, ten per year: it was asked whether the heirs ought to provide the fideicommissum to the freedmen both from the testament and from the codicils. He responded that nothing is put forward for why the things that were given by codicils should not be provided; for there was a departure from those that had been bequeathed by the testament under the name of rations on account of the things left by the codicils.
Manumissis testamento cibaria annua, si cum matre morabuntur, per fideicommissum dedit: mater filio triennio supervixit neque cibaria neque vestiaria eis praestitit, cum in petitione fideicommissi liberti cessarent: sed et filia posteaquam matri heres exstitit, quoad vixit annis quattuordecim interpellata de isdem solvendis non est. quaesitum est, an post mortem filiae a novissimo herede petere possint et tam praeteriti temporis quam futuri id, quod cibariorum nomine et vestiarii relictum est. respondit, si condicio exstitisset, nihil proponi, cur non possent.
He gave to the manumitted, by testament, annual rations, if they should dwell with the mother, through a fideicommissum: the mother survived the son by three years and provided them neither rations nor vestiary (clothing allowance), since the freedmen were remiss in petitioning for the fideicommissum; but also the daughter, after she became heir to the mother, for as long as she lived—fourteen years—was not interpellated about paying the same. It was asked whether, after the daughter’s death, they can seek from the last heir both for time past and time to come that which was left under the name of rations and vestiary. He responded that, if the condition had come to pass, nothing is set forth why they could not.
Ab heredibus stichum manumitti voluit eique, si cum seio moraretur, cibaria et vestiaria praestari a seio: deinde haec verba adiecit: " te autem, sei, peto, ut, cum ad annum vicesimum quintum perveneris, militiam ei compares, si tamen te ante non reliquerit". quaesitum est, sticho statim libertatem consecuto, prius autem defuncto seio quam ad annum vicesimum quintum perveniret, an ab his, ad quos bona seii pervenerunt, militia sticho comparari debet? et si placet deberi, utrum statim militia comparanda sit an eo tempore, quo seius annum vicesimum quintum expleturus fuisset, si supervixisset? respondit, cum placeat comparandam, non ante deberi, quam id tempus cessisset.
He wished for Stichus to be manumitted by the heirs, and that, if he should stay with Seius, food-rations and clothing-allowances be furnished by Seius; then he added these words: "but you, Sei, I ask that, when you have reached your twenty-fifth year, you procure military service for him, provided that he has not left you beforehand." It was asked, Stichus having at once attained freedom, but Seius having died before he reached his twenty-fifth year, whether by those to whom Seius’s goods have come military service ought to be procured for Stichus? And if it is held to be owed, whether military service ought to be procured immediately, or at that time at which Seius would have completed his twenty-fifth year, if he had survived? He answered that, since it is approved that it must be procured, it is not owed before that time would have arrived.
Postumis heredibus institutis et patre et matre, et substitutione facta actores manumisit et peculia eis legavit et annua et certis libertis suis legata et aliis exteris plura: deinde post testamentum factum nata filia codicillis ita cavit: " si quid testamento, quod ante hoc tempus feci, legavi cui dari volui, peto ab his, uti tertiam partem petinae ^ paetinae^ filiae meae reddant": secundis autem tabulis facta pupillari substitutione impuberibus libertis, quibus a parentibus libertates dedit, eo amplius alterum tantum, quantum in nummo praeter cibaria et vestiaria dari voluit. quaesitum est, cum supervixisset filia testamento aperto et codicillis, postea autem decesserit et fideicommissum datum ei de restituenda parte tertia ad heredes suos transmiserat, an etiam cibariorum et vestiariorum tertiae partes ei per fideicommissum datae esse videantur. respondit non videri.
With posthumous heirs instituted, and his father and mother, and a substitution having been made, he manumitted his stewards and bequeathed to them their peculia and annuities, and to certain of his own freedmen bequests, and to other outsiders several more: then, after the testament was made, a daughter having been born, by codicils he thus provided: "if in the testament which I made before this time I have bequeathed anything to anyone to whom I wished it to be given, I ask of them that they restore a third part of the money to my daughter": and in second tablets, having made a pupillary substitution, he wished that to the underage freedmen, to whom he had granted liberty at the instance of their parents, there should be given, in addition, another amount equal to that in cash, besides food-allowances and clothing-allowances. It was asked, since the daughter survived the opening of the will and the codicils, but afterwards died, and had transmitted to her own heirs the fideicommissum given to her for the restoration of the third part, whether the third parts also of the food-allowances and clothing-allowances appear to have been given to her by fideicommissum. He answered that it does not appear so.
Idem quaesiit, an eorum, quae codicillis per fideicommissum relicta sunt, tertiae partes ad filiam pertinere deberent. respondit non deberi. idem quaesiit, an alterum tantum a substitutione legatum deducta tertia parte quantitatis legatorum testamento datorum computari debeat, ut duae partes quantitatis debeantur, praeter codicillos, quibus tertiam partem codicillis legatorum ad filiam suam pertinere voluit.
The same man asked whether the third parts of those things which were left by codicils through a fideicommissum ought to pertain to the daughter. He replied that they are not owed. The same man asked whether a legacy of an equal amount again under the substitution should be computed, with one third of the total amount of the legacies given by the will deducted, so that two parts of the amount are owed, apart from the codicils, in which he wished a third part of the legacies by codicils to pertain to his daughter.
Cibaria et vestiaria per fideicommissum dederat et ita adiecerat: " quos libertos meos, ubi corpus meum positum fuerit, ibi eos morari iubeo, ut per absentiam filiarum mearum ad sarcofagum meum memoriam meam quotannis celebrent". quaesitum est, uni ex libertis, qui a die mortis neque ad heredes accesserit neque ad sepulchrum morari voluerit, an alimenta praestanda sint. respondit non praestanda.
He had given rations and clothing-allowances through a fideicommissum and had added thus: "those freedmen of mine, when my body shall have been placed, I order them to remain there, so that, during the absence of my daughters, at my sarcophagus they may celebrate my memory every year." It was asked whether, to one of the freedmen who from the day of death had neither approached the heirs nor wished to remain at the sepulchre, the aliments were to be provided. He replied: not to be provided.
Testamento ita cautum fuit: " libertis meis cibaria quaeque alia praestabam ab heredibus meis praestari volo": unus ex libertis ex voluntate patroni negotii sui gratia quadriennio ante diem mortis afuit: ex hac causa cibaria, quae ante acceperat, mortis tempore non accepit: cui tamen liberto eodem testamento patronus, sicut et aliis, quos vivus manumiserat, legatum quinque dederat. quaesitum est, an isti quoque cibaria et reliqua, quae ceteris libertis legata sunt, debeantur. respondit: cur non?
By testament it was thus provided: " to my freedmen I want the rations and whatever other things I was furnishing to be furnished by my heirs": one of the freedmen, in accordance with the will of the patron, was absent for the sake of his own business for four years before the day of death: for this cause he did not receive at the time of death the rations which he had previously received: yet to that same freedman by the same testament the patron, just as to the others whom he had manumitted while alive, had given a legacy of five. It was asked whether to this man also the rations and the remaining things which were bequeathed to the other freedmen are owed. He responded: why not?
" stichus nutricis meae nepos liber esto: cui decem aureos annuos dari volo". qui deinde interpositis nominibus eidem sticho contubernalem eius et liberos legavit hisque, quae vivus praestabat: deinde alio capite libertis omnibus quae vivus praestabat dari iussit. quaero, an stichus praeter suum legatum et alimenta percipere possit. respondit secundum ea quae proponerentur non posse.
" let stichus, the grandson of my nurse, be free: to whom I wish ten gold pieces yearly to be given". he then, with names interposed, bequeathed to the same stichus his contubernalis and their children, and to them the things which he used to furnish while alive: then, in another head, he ordered that to all the freedmen the things which he used to furnish while alive be given. i ask whether stichus can receive, besides his own legacy and alimenta, these allowances. he responded that, according to what was set forth, he cannot.
Item cum alimenta libertis utriusque sexus reliquerit a re publica et ex praediis, quae ei legavit, dari voluisset, quaero, stichi contubernali et liberis utrum ab herede instituto an a re publica diaria et vestiaria, quae vivus dabat, praestari deberent. respondit posse benigna voluntatis interpretatione dici his quoque a re publica praestanda.
Likewise, since he had left alimenta to freedmen of both sexes, to be given by the commonwealth and out of the estates which he bequeathed to it, I ask whether, for the contubernalis of Stichus and the children, the per diems and clothing-allowances which he used to give while alive ought to be furnished by the instituted heir or by the commonwealth. He replied that, by a benign interpretation of the will, it can be said that these also are to be furnished by the commonwealth.
Titia usum fructum fundi legavit maevio eiusque fidei commisit, ut ex reditu fundi praestaret pamphilae et sticho annuos centenos nummos quoad vivent: quaero, an mortuo maevio heres alimenta debeat. respondit nihil proponi, cur debeant praestari ab herede titiae: sed nec ab herede legatarii, nisi id testator manifeste probetur voluisse etiam finito usu fructu praestari, si modo id, quod ex usu fructu receptum esset, ei rei praestandae sufficeret.
Titia bequeathed the usufruct of the estate to maevio and committed it to his good faith, that from the income of the estate he should provide to pamphila and stichus an annual hundred coins each, so long as they live: I ask whether, maevio having died, the heir owes the maintenance. He responded that nothing is set forth why it ought to be provided by the heir of titia; nor yet by the heir of the legatee, unless it is manifestly proved that the testator wished this to be provided even after the usufruct had ended, provided only that what had been received from the usufruct sufficed for providing that.
Mater filio herede instituto per fideicommissum libertatem pamphilo servo dedit: eidem cibariorum nomine legavit quinos aureos et vestiarii in singulos annos quinquagenos, si cum filio eius moretur: quaero, filio defuncto an alimenta debentur. respondit, si condicioni paruisset, deberi et post mortem.
The mother, with her son instituted as heir, by fideicommiss granted liberty to the slave Pamphilus: to the same she bequeathed, under the name of provisions, five aurei, and for a vestiary (clothing-allowance) fifty each year, if he should stay with her son: I ask whether, the son having died, the alimenta are owed. He responded that, if he had complied with the condition, they are owed even after death.
Cum alimenta per fideicommissum relicta sunt non adiecta quantitate, ante omnia inspiciendum est, quae defunctus solitus fuerat ei praestare, deinde quid ceteris eiusdem ordinis reliquerit: si neutrum apparuerit, tum ex facultatibus defuncti et caritate eius, cui fideicommissum datum erit, modus statui debebit.
When alimenta (maintenance) have been left by fideicommiss with no quantity specified, before all one must look at what the deceased had been accustomed to furnish to him; then, what he has left to the others of the same order; if neither should appear, then from the means of the deceased and from his affection toward the one to whom the fideicommiss will have been given, a measure ought to be fixed.
Qui fratris sui libertis alimenta debebat, his testamento vineas cum hac adiectione reliquerat " ut habeant, unde se pascant". si pro alimentis vineas reliquisset, non aliter eis ex fideicommissi causa eas praestari debere, quam si testamenti obligatione heredes liberassent: aut, si id omissum fuisset et postea ex testamento agerent, doli mali exceptione tutum heredem futurum, scilicet si non minus valent vineae quam alimentorum aestimatio. illam autem adiectionem " ut habeant unde se pascant" magis ad causam praelegandi quam ad usum fructum constituendum pertinere.
A man who owed maintenance to his brother’s freedmen had by his testament left them vineyards with this addition, “that they may have whence to feed themselves.” If he had left the vineyards in place of the maintenance, they ought to be furnished to them by reason of the fideicommiss no otherwise than if they had released the heirs from the obligation of the testament; or, if that had been omitted and afterwards they were to proceed under the testament, the heir would be protected by the exception of dolus malus, namely if the vineyards are not worth less than the valuation of the maintenance. Moreover, that addition, “that they may have whence to feed themselves,” pertains rather to the case of pre-legacy than to the establishment of a usufruct.
Si alii vestimenta, alii vestis muliebris separatim legata sit, detractis muliebribus et ei adsignatis, cui specialiter legata sunt, reliquum alteri debetur. idem est, cum alteri mundus muliebris, alteri argentum omne legatum esset, de argento quod in mundo esset. item si duae statuae marmoreae tibi et deinde omne marmor legatum esset, praeter duas nulla statua marmorea legata est tibi.
If to one person garments, to another women’s clothing has been bequeathed separately, the women’s items are subtracted and assigned to the one to whom they were specifically bequeathed, and the remainder is owed to the other. The same holds, when to one the women’s adornment (mundus muliebris), to the other all the silver had been bequeathed, as regards the silver that was in the adornment. Likewise, if two marble statues had been bequeathed to you and then all the marble was bequeathed, apart from the two no marble statue is bequeathed to you.
Qui tibi mandaverat, ut ornamenta in usum uxoris suae emeres, eidem uxori uti adsolet legavit quae eius causa parata erunt: tu deinde post mortem mandatoris ignorans eum decessisse emisti. non debebuntur mulieri, quoniam ea verba ad mortis tempus referuntur. at si vivente testatore, muliere autem mortua emeris, non ineleganter dicetur inefficax hoc legatum esse, quando non possit vere dici eius causa paratum videri, quae prius decessit.
He who had given you a mandate to buy ornaments for the use of his wife bequeathed to that same wife, as is customary, whatever shall have been prepared on her account: then you, after the death of the mandator, not knowing that he had died, made the purchase. They will not be owed to the woman, since those words refer to the time of death. But if, while the testator was alive, the woman, however, having died, you made the purchase, it will not inelegantly be said that this legacy is ineffectual, since it cannot truly be said to seem prepared on account of her who predeceased.
Apud fufidium quaestionum libro secundo ita scriptum est: si mulier mandaverit tibi, ut sibi uniones usus sui causa emeres, si tu post mortem eius, cum putares eam vivere, emeris, atilicinus negat esse legatos ei, cui mulier ita legaverit: " ornamenta, quae mea causa parata sunt eruntve": non enim eius causa videri parata esse, quae iam mortua ea empta fuerint.
In Fufidius’s Questions, in the second book, it is written thus: if a woman has instructed you to buy pearls for herself for the sake of her own use, and you, after her death, while you supposed her to be alive, bought them, Atilicinus denies that they are legacies to him to whom the woman has thus bequeathed: "ornaments which have been or will be procured on my account"; for things that were bought after she was already dead are not regarded as having been procured on her account.
Seia ab herede publio maevio ita legavit: " antoniae tertullae lego auri pondo tot et unionem cum hyacinthis": postea unionem solvit neque ullum mortis tempore inter ornamenta sua unionem reliquit. quaero, an heres ex causa fideicommissi aestimationem rei, quae in hereditate non est, praestare debeat. Marcellus respondit non debere.
Seia charged her heir Publius Maevius in this way: " Antonia Tertulla I bequeath so many pounds weight of gold and a pearl with hyacinths": afterwards she disposed of the pearl, and at the time of death left no pearl among her ornaments. I ask whether the heir, on the ground of the fideicommissum, ought to provide the valuation of a thing which is not in the inheritance. Marcellus responded that he ought not.
Item quaero, si probari possit seiam uniones et hyacinthos quosdam in aliam speciem ornamenti, quod postea pretiosius fecit additis aliis gemmis et margaritis, convertisse, an hos uniones vel hyacinthos petere possit et heres compellatur ornamento posteriori eximere et praestare. Marcellus respondit petere non posse: nam quid fieri potest, ut legatum vel fideicommissum durare existimetur, cum id, quod testamento dabatur, in sua specie non permanserit, nam quodammodo extinctum sit? ut interim omittam, quod etiam dissolutione ac permutatione tali voluntas quoque videatur mutata.
Likewise I ask, if it can be proven that he has already converted certain pearls and hyacinths into another species of ornament, which he afterwards made more precious by the adding of other gems and pearls, whether he can claim those pearls or hyacinths and the heir be compelled to remove them from the later ornament and deliver them. Marcellus answered that he cannot claim them: for how can it be thought that the legacy or the fideicommissum endures, when that which was being given by the testament has not remained in its own species—for it is in a certain manner extinguished? to say nothing, for the moment, that by such a dissolution and permutation the will (intention) also seems to have been changed.
Lucius titius testamento scripsit: " heredem meum volo fideique eius committo, ut in patriam meam faciat porticum publicam, in qua poni volo imagines argenteas, item marmoreas": quaero, an legatum valeat. Marcellus respondit valere et operis ceterorumque, quae ibi testator poni voluerit, legatum ad patriam pertinere intellegi: enim potuit aliquod civitati accedere ornamentum.
Lucius titius wrote in his testament: " I appoint my heir and commit to his good faith, that he make in my native city a public portico, in which I wish silver images, likewise marble ones, to be placed": I inquire whether the legacy is valid. Marcellus responded that it is valid and that the legacy of the work and of the other things which the testator wished to be placed there is understood to pertain to the native city: for some ornament could accrue to the city.
Si ita esset legatum: " vestem meam, argentum meum damnas esto dare", id legatum videtur, quod testamenti tempore fuisset, quia praesens tempus semper intellegeretur, si aliud comprehensum non esset: nam cum dicit " vestem meam", " argentum meum", hac demonstratione " meum" praesens, non futurum tempus ostendit. idem est et si quis ita legaverit " servos meos".
If the legacy were thus: " be under obligation to give my clothing, my silver", that is deemed a legacy of what existed at the time of the will, because the present time would always be understood, if nothing else were comprised: for when he says " my clothing", " my silver", by this demonstration " my" he indicates the present, not the future, time. The same is so even if someone has thus bequeathed " my slaves".
Plautius: mulier ita legavit: " quisquis mihi heres erit, titiae vestem meam mundum ornamentaque muliebria damnas esto dare". cassius ait, si non appareret quid sensisset, omnem vestem secundum verba testamenti legatam videri. paulus. idem iavolenus scribit, quia verisimile est, inquit, testatricem tantum ornamentorum universitati derogasse, quibus significationem muliebrium accommodasset: accedere eo, quod illa demonstratio " muliebria" neque vesti neque mundo applicari salva ratione recti sermonis potest.
Plautius: a woman bequeathed thus: " whoever shall be my heir, let him be under obligation to give to Titia my clothing, my mundus, and feminine ornaments". cassius says that, if it did not appear what she had meant, all clothing, according to the words of the testament, is to be seen as bequeathed. paulus. the same iavolenus writes, because it is likely, says he, that the testatrix had derogated only from the universality of the ornaments, to which she had accommodated the signification “feminine”: add to this, that that designation " muliebria" can, with the rule of correct speech preserved, be applied neither to clothing nor to the mundus.
Quintus mucius ait: si pater familias uxori vas aut vestimentum aut quippiam aliud ita legavit " quod eius causa emptum paratumve esset", id videtur legasse, quod magis illius quam communis usus causa paratum esset. pomponius: sed hoc verum est non solum, si ipsius viri et uxoris communis usus, sed etiam si liberorum eius aut alterius alicuius communis usus fuerit: id enim videtur demonstrasse, quod proprio usui uxoris comparatum sit. sed quod quintus mucius demonstrat " vas aut vestimentum aut quid aliud", efficit, ut falsa sint quae subiecimus: multum enim interest, generaliter an specialiter legentur haec.
Quintus mucius says: if a paterfamilias bequeathed to his wife a vessel or a garment or anything else thus, " which had been bought or prepared for her sake," he seems to have bequeathed that which had been provided more for her use than for common use. pomponius: but this is true not only if it be for the common use of the man himself and the wife, but also if it be for the common use of his children or of any other person: for he seems to have indicated that which has been procured for the wife’s own proper use. but because Quintus mucius specifies " vessel or garment or anything else," it makes what we have subjoined false: for it matters much whether these are read generally or specifically.
for if, generally, as thus “things which have been procured for the sake of the wife,” his definition is true; but if it has been written thus “that purple garment,” so as to designate a certain specific thing, although there has been added “which were bought or provided for her sake,” although it was neither bought nor provided nor given into use to her, the legacy is nevertheless in every way valid, because, with a specific thing bequeathed, a false description inserted does not extinguish the legacy. for example, if it is written thus: “Stichus, whom I bought from Titius’s sale”: for if he neither bought him, or bought him from another sale, the legacy is nonetheless valid. plainly, if it has been bequeathed thus “a vessel or garments, or things which have been provided for the sake of the wife,” then equally the opinion of Quintus Mucius will be true: in which case it must be known that, even if these things belonged to another, which the testator supposed were his own, the heir is bound to deliver them.
Uxori quis legavit his verbis: " mundum muliebrem omnem, ornamenta et quidquid vivus dedi donavi eius causa comparavi confeci, id omne dari volo": quaesitum est, an carrucha dormitoria cum mulis, cum semper uxor usa sit, ei debeatur. respondit, si eius usus causa habita esset, deberi. idem quaesiit, an ex eadem clausula vestis, quam ancillis vel lecticariis eiusdem uxoris suae comparaverat vel fecerat, praestanda esset.
Someone bequeathed to his wife in these words: " all the feminine outfit, all ornaments, and whatever while alive I gave, donated, acquired, or made for her sake, I will that all that be given": it was asked whether a sleeping carriage with mules, since the wife had always used it, is owed to her. He answered that, if it had been kept for the purpose of her use, it is owed. He likewise asked whether from the same clause clothing which he had acquired or made for the handmaids or the litter-bearers of that same wife should be furnished.
Species auri et argenti seiae legavit et ab ea petit in haec verba: " a te, seia, peto, ut quidquid tibi specialiter in auro argento legavi, id cum morieris reddas restituas illi et illi vernis meis: quarum rerum usus fructus dum vives tibi sufficiet": quaesitum est, an usus fructus auri et argenti solus legatariae debeatur. respondit verbis quae proponerentur proprietatem legatam addito onere fideicommissi.
he bequeathed items of gold and silver to seia and asked from her in these words: " from you, seia, I ask that whatever I have specially bequeathed to you in gold and silver, that, when you die, you give back and restore to so-and-so and so-and-so, my homeborn slaves: the use and fruits of which things, while you live, shall suffice for you": it was asked whether the usufruct of the gold and silver alone is owed to the legatee. he answered that by the words which were proposed the ownership was bequeathed, with the burden of a fideicommissum added.
Filiam in potestate patris manentem mater scripsit heredem eique patrem maevium substituit et ita scripsit: " quisquis mihi heres erit, fidei eius committo, uti ornamenta mea omnia aurum argentum vestimenta, quibus ego usa sum, ne veneant et filiae meae reserventur": quaesitum est, cum filia recusante pater ex substitutione heres exstitisset et intestato decessisset, filia autem bonis eius abstinuerat, an fideicommissum petere possit. respondit secundum ea quae proponerentur videri patris utiliter fidei commissum. claudius: quoniam verbo servandi, quod scriptum est, videri in id tempus dilatum fideicommissum, quo sui iuris futurus esset is cui dabatur.
The mother appointed as heir her daughter remaining in the power of her father, and for her she substituted the father maevium, and thus she wrote: " whoever shall be my heir, I commit to his good faith, that all my ornaments—gold, silver, garments—which I have used, not be sold and be reserved for my daughter": the question was asked, when, the daughter refusing, the father had become heir by the substitution and had died intestate, but the daughter had abstained from his goods, whether she could demand the fideicommissum. He responded that, according to the matters proposed, it seems that the fideicommissum was usefully committed to the father. claudius: since, by the word “of keeping” (servandi), which is written, the fideicommissum seems to have been deferred to that time when the person to whom it was given would be sui iuris.
Qui uxori suae legaverat bonorum suorum decimam et mancipia et species argenti quas expresserat, eidem anulos et vestem reddi ab heredibus petit, quasi propria uxoris fuissent: quaesitum est, si uxoris non fuerint, an praestari ex causa legati deberent. respondit legandi animo dedisse ea videri, nisi contrarium ab herede approbetur.
A man who had bequeathed to his wife a tenth of his goods, and slaves, and the silver items which he had specified, asks that rings and clothing be returned to the same by the heirs, as though they had been the wife’s own property: it was asked, if they were not the wife’s, whether they ought to be furnished on the ground of the legacy. He replied that they are considered to have been given with the intention of bequeathing, unless the contrary is approved by the heir.
Idem testator fidei commisit uxoris, ut quidquid ad eam ex testamento eius pervenisset, alumno communi restitueret: quaesitum est, an etiam eas res, quas proprias uxoris suae fuisse testator sciat eique reddi praecepit, alumno praestare debeat. respondit, si propriae fuissent, non debere, si legato adquirerentur, debere.
The same testator committed to the trust of his wife that whatever should come to her from his testament she should restore to their common ward: it was asked whether she ought also to provide to the ward those things which the testator knows to have been his wife’s own property and ordered to be returned to her. He responded: if they were her own, she need not; if they were acquired by legacy, she must.
Mulier testamento et postea codicillis multas species vestis argenti, quas vel ipsa se confecisse vel habere significavit, specialiter per fideicommissum reliquit: quaesitum est, an non aliae legatariis cederent, quam quae in hereditate inventae essent. respondit eas cedere, quae inventae essent.
A woman by testament and afterwards by codicils left, specifically by fideicommissum, many specific items of clothing and of silver, which she indicated that she herself had either made or possessed: the question was asked whether any others would pass to the legatees than those which were found in the inheritance. He responded that those would pass which were found.
Sed si argenti facti pondo centum sint legata, ex facto argento debebitur legatum. unde est quaesitum apud celsum, an et vascula possit separare: et scripsit vascula non separaturum, licet ei optio fuerit relicta.
But if one hundred pounds by weight of wrought silver be bequeathed, the legacy will be owed out of the wrought silver. Whence the question was put to Celsus, whether he could also separate the little vessels; and he wrote that he would not separate the little vessels, although a choice had been left to him.
Idem celsus libro nono decimo quaestionum quaerit, si centum pondo argenti fuerint relicta, an replumbari debeant, ut sic appendantur. et proculus et celsus aiunt exempto plumbo appendi debere: nam et emptoribus replumbatae adsignantur et in rationes argenti pondus sic defertur: quae sententia habet rationem.
The same Celsus, in the nineteenth book of the Questions, asks whether, if one hundred pounds in weight of silver have been left, they ought to be re-plumbed (sealed with lead), so that they are weighed thus. And Proculus and Celsus say that they ought to be weighed with the lead removed: for both to purchasers they are assigned re-plumbed, and in the accounts the weight of the silver is entered thus: which opinion has a rationale.
Simili modo quaeritur, si cui argentum legetur, an emblemata aurea quae in eo sunt eum sequantur. et pomponius libro quinto ex sabino distinguit multum interesse, certum pondus ei argenti facti legetur an vero argentum factum: si pondus, non contineri, si argentum factum, contineri, quoniam argento cedit, quod ad speciem argenti iunctum est, quemadmodum clavi aurei et purpurae pars sunt vestimentorum. idem pomponius libris epistularum, etsi non sunt clavi vestimentis consuti, tamen veste legata contineri.
In a similar way it is asked, if silver is bequeathed to someone, whether the golden embellishments (emblemata) which are on it follow him. And Pomponius in the fifth book from Sabinus distinguishes that it makes much difference whether a certain weight of wrought silver is bequeathed to him, or rather silverware: if it is a weight, they are not included; if it is silverware, they are included, since that which is joined to the appearance of the silver yields to the silver, just as golden clavi and purple are part of garments. The same Pomponius, in the books of Letters, [says that] even if the clavi are not sewn to the garments, nevertheless, with a garment bequeathed, they are included.
Lectum plane argenteum vel si qua alia supellex argentea fuit, argenti appellatione non continetur, si numero argenti habita non est, ut in iunctura argentea scio me dixisse, quod non in argentario pater familias reponebat. sed nec candelabra nec lucernae argenteae vel sigilla, quae in domo reposita sunt, vel imagines argenteae argenti appellatione continebuntur, nec speculum vel parieti adfixum vel etiam quod mulier mundi causa habuit, si modo non in argenti numero habita sunt.
A bedstead plainly of silver, or if there was any other silver furniture, is not contained under the appellation of silver, if it has not been held in the number of silver; as in the matter of silver fittings I know I have said that the pater familias did not put it in the silver-chest. But neither candelabra nor silver lamps, nor little figures that have been set up in the house, nor silver images will be contained under the appellation of silver, nor a mirror, whether affixed to the wall or even one which a woman had for the sake of adornment, provided only that they have not been held in the number of silver.
Sed cui vasa sint legata, non solum ea continentur, quae aliquid in se recipiant edendi bibendique causa paratum, sed et quae aliquid sustineant: et ideo scutellas vel promulsidaria contineri. repositoria quoque continebuntur: nam vasorum appellatio generalis est, dicimus vasa vinaria et navalia.
But to one to whom vessels are bequeathed, not only are those things included which receive something in themselves prepared for the purpose of eating and drinking, but also those which support something: and therefore little dishes or appetizer-dishes are included. Sideboards too will be included: for the appellation of vessels is general; we say wine-vessels and naval implements.
certainly, if it had already been made, but was being chased (caelated), it will be contained under the appellation of “made.” Or will that which has begun to be chased (caelated) be contained also under “chased”? And I think it is contained, if perchance silver that is chased (caelated) has been bequeathed to someone.
Si cui escarium argentum legatum sit, id solum debebitur, quod ad epulandum in ministerio habuit, id est ad esum et potum. unde de aquiminario dubitatum est: et puto contineri, nam et hoc propter escam paratur. certe si caccabos argenteos habebat vel miliarium argenteum vel sartaginem vel aliud vas ad coquendum, dubitari poterit, an escario contineatur.
If table silver has been bequeathed to someone, only that will be owed which he had in service for banqueting, that is, for eating and drinking. Whence there has been doubt about the aquiminarium; and I think it is included, for this too is prepared on account of food. Certainly, if he had silver cauldrons or a silver miliarium or a frying-pan or another vessel for cooking, it can be doubted whether such items are included in the table silver.
Perveniamus et ad gemmas inclusas argento auroque. et ait sabinus auro argentove cedere: ei enim cedit, cuius maior est species. quod recte expressit: semper enim cum quaerimus, quid cui cedat, illud spectamus, quid cuius rei ornandae causa adhibetur, ut accessio cedat principali.
Let us also come to gems set in silver and gold. and Sabinus says that gold or silver yield: for it yields to that whose appearance is greater. which he expressed rightly: for whenever we inquire what yields to what, we look to that which is employed for the purpose of adorning a thing, so that the accessory yields to the principal.
Gemmae autem sunt perlucidae materiae, quas, ut refert sabinus libris ad vitellium, servius a lapillis eo distinguebat, quod gemmae essent perlucidae materiae, velut smaragdi chrysolithi amethysti, lapilli autem contrariae superioribus naturae, ut obsidiani, veientani.
Gems, moreover, are of transparent material; and, as Sabinus reports in the books to Vitellius, Servius distinguished them from pebbles by this: that gems are of transparent material, such as emeralds, chrysolites, amethysts; but pebbles are of a nature contrary to the foregoing, such as obsidian and Veientine stones.
Auro legato vasa aurea continentur et gemmis gemmea vasa. secundum haec sive gemmae sint in aureis vasis sive in argenteis, auro argentove cedent, quoniam hoc spectamus, quae res cuius rei ornandae causa fuerit adhibita, non quae sit pretiosior.
By a legacy of gold, golden vessels are included, and by gems, gemmed vessels. Following this, whether the gems are in gold vessels or in silver, they will yield to the gold or to the silver, since we regard this: which thing has been employed for the purpose of adorning which thing, not which is more precious.
Unguentis legatis non tantum ea legata videntur, quibus unguimur voluptatis causa, sed et valetudinis, qualia sunt commagena glaucina crina rosa muracolum nardum purum: hoc quidem etiam quo elegantiores sint et mundiores, unguuntur feminae.
Under a bequest of unguents, not only are those considered bequeathed with which we are anointed for the sake of pleasure, but also those for health, such as commagenum, glaucinum, crinum, rose, muracolum, pure nard: with this, indeed, women also anoint themselves so that they may be more elegant and more clean.
Vestimentum id est quod detextum est, etsi desectum non sit, id est si sit consummatum. quod in tela est nondum pertextum vel detextum, contextum appellatur. quisquis igitur vestem legaverit, neque stamen neque subtemen legato continebitur.
A garment is that which has been woven off the loom, even if it has not been cut off, that is, if it is consummated. That which is on the loom, not yet fully woven or woven off, is called a woven fabric. Whoever, therefore, shall have bequeathed a garment, neither the warp nor the weft will be contained in the legacy.
Vestimentorum sunt omnia lanea lineaque vel serica vel bombycina, quae induendi praecingendi amiciendi insternendi iniciendi incubandive causa parata sunt et quae his accessionis vice cedunt, quae sunt insitae picturae clavique qui vestibus insuuntur.
Clothing comprises all things of wool, linen, or seric or bombycine, which are prepared for the purpose of donning, girding, cloaking, covering, casting over, or lying upon; and also those things which, in the capacity of accession, attach to these, namely the inwoven pictures and the clavi that are sewn onto garments.
Vestimenta omnia aut virilia sunt aut puerilia aut muliebria aut communia aut familiarica. virilia sunt, quae ipsius patris familiae causa parata sunt, veluti togae tunicae palliola vestimenta stragula amfitapa et saga reliquaque similia. puerilia sunt, quae ad nullum alium usum pertinent nisi puerilem, veluti togae praetextae aliculae chlamydes pallia quae filiis nostris comparamus.
All vestments are either virile or puerile or muliebral or common or familiaric. virile are those which are prepared for the paterfamilias himself, for example togas, tunics, palliola, stragular garments, amphitapa, and saga and the remaining similar things. puerile are those which pertain to no other use except puerile, for example bordered togas (praetextae), little coats (aliculae), chlamyses, cloaks (pallia) which we procure for our sons.
women’s are those which are procured for the sake of the mother of the household (materfamilias), which a man cannot easily use without vituperation, for example stolas, cloaks, tunics, head-coverings, girdles, mitrae (which are procured more for covering the head than for adorning), little mantles, rain-cloaks. common are those which a woman uses in common with a man, for example if a rain-cloak or a pallium is of such a kind, and the rest of this sort, which either the husband or the wife may use without reprehension. familial are those which are prepared for clothing the household, such as saga, tunics, rain-cloaks, linens, coverlets, and similar things.
Ornamenta muliebria sunt, quibus mulier ornatur, veluti inaures armillae viriolae anuli praeter signatorios et omnia, quae ad aliam rem nullam parantur, nisi corporis ornandi causa: quo ex numero etiam haec sunt: aurum gemmae lapilli, quia aliam nullam in se utilitatem habent. mundus mulieris est, quo mulier mundior fit: continentur eo specula matulae unguenta vasa unguentaria et si qua similia dici possunt, veluti lavatio riscus. ornamentorum haec: vittae mitrae semimitrae calautica acus cum margarita, quam mulieres habere solent, reticula crocyfantia.
Women’s ornaments are those with which a woman is adorned, for example earrings, bracelets, bangles (viriolae), rings, except signet-rings, and all things which are prepared for no other purpose than the adorning of the body: of which number are also these: gold, gems, small stones (lapilli), because they have no other utility in themselves. The woman’s toilette (mundus mulieris) is that by which a woman becomes more well-groomed: it includes mirrors, chamber-pots (matulae), unguents, unguent vessels, and whatever similar things can be named, as for example bathing and the riscus. These are among ornaments: fillets (vittae), mitrae, half-mitrae (semimitrae), the calautica, a pin with a pearl, which women are accustomed to have, hairnets (reticula), saffron-dyed (crocyfantia).
Margarita si non soluta sunt vel qui alii lapides ( si quidem exemptiles sint), dicendum est ornamentorum loco haberi: sed et si in hoc sint resoluti ut componantur, ornamentorum loco sunt. quod si adhuc sint rudes lapilli vel margaritae vel gemmae, ornamentorum loco non erunt, nisi alia mens fuit testantis, qui haec quoque, quae ad ornamenta paraverat, ornamentorum loco et appellatione comprehendi voluit.
If pearls are not unstrung, or other stones ( if indeed they are detachable), it must be said they are regarded in the place of ornaments; but even if they are taken apart to be set together, they are in the category of ornaments. But if they are still raw pebbles or pearls or gems, they will not be in the place of ornaments, unless the testator had a different intention, who wished that these too, which he had prepared for ornaments, be included under the category and appellation of ornaments.
Quamvis quaedam ex veste magis ornatus gratia, quam quo corpus tegant, comparentur, tamen quod eo nomine sint reperta, potius habenda esse vestis numero quam ornamentorum. similiter ornamentorum esse constat, quibus uti mulieres venustatis et ornatus causa coeperunt, neque referre, si quaedam eorum alium quoque usum praebeant, sicuti mitrae et anademata: quamvis enim corpus tegant, tamen ornamentorum, non vestis esse.
Although certain items among clothing are procured more for the sake of adornment than for covering the body, nevertheless, because they have been found under that designation, they are to be accounted in the number of clothing rather than of ornaments. Similarly, those things are understood to be ornaments which women began to use for the sake of venusty and adornment; nor does it matter if some of them also provide another use, such as headbands and fillets: for although they cover the body, nevertheless they belong to ornaments, not to clothing.
An cui argentum omne legatum est, ei nummi quoque legati esse videantur, quaeritur. et ego puto non contineri: non facile enim quisquam argenti numero nummos computat. item argento facto legato puto, nisi evidenter contra sensisse testatorem appareat, nummos non contineri.
Whether, when all the silver has been bequeathed to someone, the coins too are to be seen as bequeathed to him is asked. And I think they are not included: for not easily does anyone compute coins under the heading of silver. Likewise, when wrought silver has been bequeathed, I think—unless it evidently appears that the testator felt the contrary—that coins are not included.
Cui aurum vel argentum factum legatum est, si fractum aut collisum sit, non continetur: servius enim existimat aurum vel argentum factum id videri, quo commode uti possumus, argentum autem fractum et collisum non incidere in eam definitionem, sed infecto contineri.
To whom wrought gold or silver has been left as a legacy, if it is broken or dented, it is not contained: for Servius considers that “wrought gold or silver” is to be deemed that which we can use conveniently, but broken and dented silver does not fall under that definition, but is contained under “unwrought.”
Cui legatum est aurum omne, quod suum esset cum moreretur, eius omne aurum fiet, quod tunc pater familias, cum moreretur, vindicare potuit suum esse. sed si qua distributio eius rei facta est, tunc interest, quomodo sit legatum. si factum aurum legatum est, omne ad eum pertinet cui legatum est ex quo auro aliquid est effectum, sive id suae sive alterius usionis causa paratum esset, veluti vasa aurea emblemata signa aurum muliebre et cetera, quae his rebus sunt similia.
To the person to whom all the gold has been bequeathed, which would be his when he should die, there will go all the gold which at that time the paterfamilias, when he died, could vindicate as his own. But if any distribution of that matter has been made, then it matters how it has been bequeathed. If wrought gold has been bequeathed, everything pertains to the one to whom it has been bequeathed from whatever gold something has been made, whether it was prepared for his own or for another’s use, for example golden vessels, embossed or inlaid emblems, figures, women’s gold, and the rest which are similar to these.
but if the UNWROUGHT has been bequeathed, that is deemed to be bequeathed which of it is so made that you cannot use that which was procured for the purpose without refection, and what by that paterfamilias had been in the number of the unwrought. but if, however, stamped gold or silver has been bequeathed, the paterfamilias is considered to have bequeathed by testament that of it which has some form expressed, for example those which are Philippi and likewise nomismata and the like.
Cum in testamento alicui argentum, quod usus sui causa paratum esset, legaretur, itemque vestis aut supellex, quaesitum est, quid cuiusque usus causa videretur paratum esse, utrumne id argentum, quod victus sui causa paratum pater familias ad cotidianum usum parasset an et si eas mensas argenteas et eius generis argentum haberet, quo ipse non temere uteretur, sed commodare ad ludos et ad ceteras apparationes soleret. et magis placet, quod victus sui causa paratum est, tantum contineri.
When in a will silver that had been prepared for his own use was bequeathed to someone, and likewise clothing or furnishings, the question was raised what was to be regarded as prepared for use in each case—whether it was only that silver which the paterfamilias had procured for his sustenance, for daily use, or also if he had those silver tables and silver of that sort which he himself did not readily employ, but was accustomed to lend out for games and for other set-piece preparations. And the more approved view is that only what has been prepared for his sustenance is included.
Si quis ita legaverit: " uxori meae mundum ornamenta seu quae eius causa paravi, do lego", placet omnia deberi, sicuti cum ita legatur: " titio vina, quae in urbe habeo seu in portu, do lego", omnia deberi: hoc enim verbum " seu" ampliandi legati gratia positum est.
If anyone has thus bequeathed: " to my wife the feminine ornaments, or whatever I prepared for her sake, I give and bequeath," it is the opinion that all are owed, just as when it is read thus: " to Titius the wines which I have in the city or in the harbor, I give and bequeath," all are owed: for this word " seu" is set for the sake of amplifying the legacy.
Auro facto adnumerantur gemmae anulis inclusae, quippe anulorum sunt, cymbia argentea crustis aureis illigata. margaritae, quae ita ornamentis muliebribus contextae sunt, ut in his aspectus auri potentior sit, auro facto adnumerantur. aurea emblemata, quae in lapidibus apsidibus argenteis essent et replumbari possent, deberi gallus ait: sed labeo improbat.
To gold in wrought form are counted gems enclosed in rings, since they belong to the rings, and silver cups fastened with golden crusts. pearls, which are so woven into women’s ornaments that in them the aspect of the gold is more potent, are counted to wrought gold. golden emblems, which were in stones, in silver bezels, and could be re-leaded, Gallus says are owed; but Labeo disapproves.
Idem, cum quaereretur de tali legato: " hoc amplius filia mea dulcissima e medio sumito tibique habeto ornamentum omne meum muliebre cum auro et si qua alia muliebria apparuerint", cum testatrix negotiatrix fuerit, an non solum argentum, quod in domo vel intra horreum usibus eius fuit, legato cedit, sed etiam quod in basilica fuit muliebre: respondit, si testatrix habuit proprium argentum ad usum suum paratum, non videri id legatum, quod negotiandi causa venale proponi soleret, nisi de eo quoque sensisse is qui petat probet.
The same, when it was asked about such a legacy: "besides this, my sweetest daughter, take from the common stock and have for yourself all my women’s adornment together with the gold, and if any other women’s items shall appear," since the testatrix was a trader, whether not only the silver which was in the house or within the warehouse for her uses falls to the legacy, but also the women’s goods which were in the basilica: he answered that, if the testatrix had her own silver made ready for her personal use, that which was accustomed to be set out for sale for the purpose of trading does not seem to be bequeathed, unless the one who claims it proves that she had meant that as well.
Neratius proculum refert ita respondisse vasis electrinis legatis nihil interesse, quantum ea vasa, de quibus quaeritur, argenti aut electri habebant, sed utrum argentum electro an electrum argento cedat? id ex aspectu vasorum facilius intellegi posse: quod si in obscuro sit, inspiciendum est, in utro numero ea vasa is, qui testamentum fecit, habuerit.
Neratius reports that Proculus answered thus, with respect to vessels of electrum bequeathed: that it makes no difference how much those vessels, about which the question is raised, had of silver or of electrum, but rather whether the silver yields to the electrum or the electrum yields to the silver. This can be more easily understood from the appearance of the vessels; but if that is obscure, one must examine in which category the one who made the testament had those vessels.
Labeo testamento suo neratiae uxori suae nominatim legavit " vestem mundum muliebrem omnem ornamentaque muliebria omnia lanam linum purpuram versicoloria facta infectaque omnia" et cetera. sed non mutat substantiam rerum non necessaria verborum multiplicatio, quia labeo testamento lanam ac deinde versicoloria scripsit, quasi desit lana tincta lana esse, detractoque verbo " versicolorio" nihilo minus etiam versicoloria debebuntur, si non appareat aliam defuncti voluntatem fuisse.
Labeo, in his testament, expressly bequeathed to his wife Neratia “ clothing, the entire women’s wardrobe, and all women’s ornaments, wool, linen, purple, parti-colored items, all made and unmade,” and so forth. But an unnecessary multiplication of words does not change the substance of the things, because Labeo wrote in the will “wool” and then “parti-colored items,” as if dyed wool ceased to be wool; and with the word “ parti-colored” removed, nonetheless the parti-colored items will likewise be owed, if it does not appear that the deceased had a different intention.
Titia mundum muliebrem septiciae legavit: ea putabat sibi legata et ornamenta et monilia, in quibus gemmae et margaritae insunt, et anulos et vestem tam coloriam: quaesitum est, an haec omnia mundo continentur. scaevola respondit ex his quae proponerentur dumtaxat argentum balneare mundo muliebri contineri.
Titia bequeathed the women’s mundus to Septicia: she thought that there had been left to her both ornaments and necklaces, in which gems and pearls are set, and rings, and clothing, even colored clothing: it was asked whether all these are contained in the mundus. Scaevola replied that, of the things that were proposed, only bath silver is contained in the women’s mundus.
Item cum inaures, in quibus duae margaritae elenchi et smaragdi duo, legasset et postea elenchos eisdem detraxisset et quaereretur, an nihilo minus detractis elenchis inaures deberentur: respondit deberi, si maneant inaures, quamvis margarita eis detracta sint.
Likewise, when he had bequeathed earrings, in which there were two pearl pendants (elenchi) and two emeralds, and afterwards had removed the pendants from the same, and it was asked whether nonetheless, with the pendants removed, the earrings were owed: he replied that they are owed, if the earrings remain, although the pearls have been removed from them.
Inter vestem virilem et vestimenta virilia nihil interest: sed difficultatem facit mens legantis, si et ipse solitus fuerit uti quadam veste, quae etiam mulieribus conveniens est. itaque ante omnia dicendum est eam legatam esse, de qua senserit testator, non quae re vera aut muliebris aut virilis sit. nam et quintus titius ait scire se quendam senatorem muliebribus cenatoriis uti solitum, qui si legaret muliebrem vestem, non videretur de ea sensisse, qua ipse quasi virili utebatur.
Between a male garment and male garments there is no difference: but the mind of the legator creates difficulty, if he himself too was accustomed to use a certain garment which is also suitable to women. Therefore, before all, it must be said that that is bequeathed which the testator intended, not that which in reality is either feminine or masculine. For even quintus titius says that he knows a certain senator to have been accustomed to use women’s dinner-attire, who, if he should bequeath a women’s garment, would not seem to have had in mind that one which he himself was using as if it were male.
For as to that which is owed, without doubt: suppose he shall have stipulated pounds of gold; this gold which was owed to him from the stipulation does not pertain to the wife, since it has not yet been made his; for he bequeathed that which was his own, not that which he had in an action. As to the goldsmith, it is false, if he gave gold in such a way that something be made for him from that gold: for then, although the gold is with the goldsmith, ownership nevertheless has not changed; it still remains that of the one who gave it, and he only seems about to provide a fee for the goldsmith’s work; through which we are led to this, that nonetheless it is owed to the wife. But if he gave gold to the goldsmith, so that from that gold, however, no little object should be made for him, but from other, then, insofar as ownership of that gold passes to the goldsmith (since he seems to have made, as it were, a permutation/exchange), this gold too will not pass to the wife.
Item scribit quintus mucius, si maritus uxori, cum haberet quinque pondo auri, legasset ita: " aurum quodcumque uxoris causa paratum esset, uti heres uxori daret", etiamsi libra auri inde venisset et mortis tempore amplius quam quattuor librae non deprehendentur, in totis quinque libris heredem esse obligatum, quoniam articulus est praesentis temporis demonstrationem in se continens. quod ipsum quantum ad ipsam iuris obligationem pertineat, recte dicetur, id est ut ipso iure heres sit obligatus. verum sciendum, si in hoc alienaverit testator inde libram, quod deminuere vellet ex legato uxoris suae, tunc mutata voluntas defuncti locum faciet doli mali exceptioni, ut, si perseveraverit mulier in petendis quinque libris, exceptione doli mali submoveatur.
Likewise Quintus Mucius writes: if a husband, when he had five pounds of gold, had bequeathed thus: " whatever gold had been prepared for the wife’s sake, that the heir should give to the wife," then even if a pound of gold had been sold off from it and at the time of death more than four pounds were not found, the heir is obligated for the full five pounds, since the clause contains within itself an indication of the present time. As far as the obligation of law itself is concerned, this will be rightly said, that is, that by the law itself the heir is obligated. But it should be known that, if in this matter the testator alienated a pound from it because he wished to diminish from his wife’s legacy, then the changed intention of the deceased will give place to the exception of fraud, so that, if the woman persists in demanding five pounds, she is removed by the exception of fraud.
Quod si ita legasset uxori " aurum quod eius causa paratum erit", tunc rectissime scribit quintus mucius, ut haec scriptura habeat in se et demonstrationem legati et argumentum: ideoque ipso iure alienata libra auri amplius quattuor pondo non remanebunt in obligatione, nec erit utendum distinctione, qua ex causa alienaverit testator.
But if he had thus bequeathed to his wife " aurum quod eius causa paratum erit" ("the gold which shall have been prepared on account of her"), then Quintus Mucius writes most correctly that this wording contains in itself both a demonstration of the legacy and an argument: and therefore, with a pound of gold having been alienated ipso iure, more than four pounds by weight will not remain under obligation, nor will there be any need to use the distinction as to for what cause the testator alienated it.
" titiae amicae meae, cum qua sine mendacio vixi, auri pondo quinque dari volo": quaero, an heredes ad praestationem integrae materiae auri an ad pretium et quantum praestandum compellendi sint. paulus respondit aut aurum ei, de qua quaeritur, praestari oportere, aut pretium auri, quanti comparari potest.
" to titia, my friend, with whom I lived without falsehood, I wish five pounds by weight of gold to be given": I ask whether the heirs are to be compelled to the prestation of whole material gold or to the price, and how much is to be furnished. paulus responded that either the gold itself, about which inquiry is made, ought to be supplied to her, or the price of the gold, for as much as it can be procured.
Item quaero, si lite contestata praetor ita pronuntiavit, ut materia praestetur, an tutores audiendi sint ab hac sententia pupillum, adversus quem pronuntiatum est, apud successorem eius in integrum restituere volentes. paulus respondit praetorem, qui auro legato certi ponderis materiam praestari iussit, recte pronuntiasse videri.
Likewise I ask: if, suit having been joined, the praetor so pronounced that the material be provided, whether the tutors ought to be heard, wishing on behalf of the ward against whom it was pronounced to restore him in integrum before his successor. Paulus replied that the praetor who, gold of a certain weight having been bequeathed, ordered that the material be furnished, seems to have pronounced rightly.
" seiae dulcissimae poculum aureum quod elegerit fidei heredum committo ut darent". quaero, cum in hereditate non sint nisi truellae scyphi modioli phialae, an seia de his speciebus eligere possit. respondit, cum omnia potui parata pocula dicuntur, posse eam ex his eligere.
" to dearest seia I entrust to the faith of the heirs that they give the golden drinking-cup which she shall choose". I ask, since in the inheritance there are only ladles, cups, measures, and phials, whether seia can choose from these kinds. He answered that, since all vessels prepared for drinking are called drinking-cups, she can choose from these.
Titia testamento, item codicillis multas species tam argenti quam vestis specialiter per fideicommissum reliquit: quaero an non aliae species legato cedant, quam quae in hereditate inventae essent. respondit eas cedere, quae inventae essent: de ceteris cavendum, ut, si inventae essent, praestentur.
Titia by testament, and likewise by codicils, specifically left many items of both silver and clothing by fideicommissary trust: I ask whether any items other than those which were found in the inheritance pass to the legacy. He responded that those which were found do pass; as to the rest, precaution must be taken, so that, if they are found, they shall be delivered.
" semproniae piae hoc amplius coopertoria taviana et tunicas tres cum palliolis quae elegerit dari volo": quaero an ex universa veste, id est an ex synthesi tunicas singulas et palliola sempronia eligere possit. respondit, si essent tunicae singulares cum palliolis relictae, ex his dumtaxat eligi posse: quod si non est, heredem vel tunicas et palliola set ex synthesi praestaturum vel veram aestimationem earum.
"To pious Sempronia I wish this further to be given: Tavian coverlets and three tunics with little mantles (palliola), which she shall have chosen." I ask whether, from the entire wardrobe, that is, from a set (synthesis), Sempronia can choose individual tunics and little mantles. He replied: if single tunics with little mantles had been left, then only from these can selection be made; but if that is not the case, the heir must either provide tunics and little mantles out of a set (synthesis) or their true valuation.
Seia testamento ita cavit: " si mihi per condicionem humanam contigerit, ipsa faciam: sin autem, ab heredibus meis fieri volo: iubeoque signum dei ex libris centum in illa sacra aede et in patria statui subscriptione nominis mei". quaesitum est: cum in eo templo non nisi aut aerea aut argentea tantum sint dona, heredes seiae utrum ex argento an ex auro signum ponere compellendi sunt an aereum? respondit secundum ea quae proponerentur argenteum ponendum.
Seia in her testament thus provided: " if it shall befall me by the human condition, I will do it myself; but if not, I wish it to be done by my heirs; and I order that an image of the god of one hundred pounds be set up in that sacred temple and in my homeland, with the subscription of my name". It was asked: since in that temple there are only gifts either of bronze or only of silver, are Seia’s heirs to be compelled to place a statue of silver or of gold, or a bronze one? He responded that, according to the matters proposed, a silver one must be placed.
Si uxori mundus muliebris legatus esset, ea tantummodo deberi ofilius labeo responderunt, quae ex his tradita utendi causa uxori viro fuissent: aliter enim interpretantibus summam fore captionem, si vascularius aut faber argentarius uxori ita legasset.
If a mundus muliebris were bequeathed to a wife, only those items are owed, Ofilius and Labeo answered, which from these had been delivered to the wife by the husband for the purpose of use: for interpreting it otherwise there would be the greatest seizure, if a dealer in vessels or a silversmith had thus bequeathed to his wife.
Cum ita legatum esset: " argentum, quod domo mea erit cum moriar", ofilius nec quod depositum a se nec quod commodatum reliquisset argentum legatum videri respondit. idem cascellius de commodato. labeo, quod depositum esset, ita deberi, si praesentis custodiae causa, non perpetuae veluti thensauro depositum esset, quia illa verba " quod domo mea erit" sic accipi debere " esse solebat": et hoc probo.
When it had been bequeathed thus: "the silver which will be in my house when I die," Ofilius responded that neither the silver which he had left on deposit nor that which he had left on commodatum (loan-for-use) was to be seen as bequeathed. The same, Cascellius, concerning the commodatum. Labeo [holds] that what had been deposited would be owed in this way—if it had been deposited for the sake of present custody, not for perpetual custody, as if a thesaurus (treasure-hoard) had been deposited—because those words "which will be in my house" ought to be taken thus, "was wont to be (there)"; and I approve this.
Ateius servium respondisse scribit, cui argentum, quod in tusculano fundo cum moreretur habuisset, legatum esset, et quod antequam moreretur ex urbe in tusculanum iussu testatoris translatum esset, deberi: contra fore, si iniussu translatum esset.
Ateius writes that Servius responded that, where silver had been bequeathed to a person—namely the silver which the testator had had on his Tusculan estate while he was dying—it was owed; and that silver which, before he died, had been transferred from the city to the Tusculan estate by the testator’s order was likewise owed: the contrary would hold if it had been transferred without his order.
Medico suo contubernali et communium expeditionum comiti inter cetera ita legaverat: " argentum viatorium meum dari volo". quaesitum est, cum pater familias in diversis temporibus rei publicae causa afuerat, quod viatorium argentum hoc legato comprehensum esse videtur. respondit, quod habuisset argentum viatorium eo tempore cum testamentum faciebat, deberi.
He had bequeathed to his own physician, his contubernal and companion in common expeditions, among other things thus: "I wish my viatic silver to be given." It was asked, since the paterfamilias had been absent at different times for the sake of the republic, what viatic silver seems to be included by this legacy. He replied that the viatic silver which he had at the time when he was making the testament is owed.
Mulier decedens ornamenta legaverat ita: " seiae amicae meae ornamenta universa dari volo". eodem testamento ita scripserat: " funerari me arbitrio viri mei volo et inferri mihi quaecumque sepulturae meae causa feram ex ornamentis lineas duas ex margaritis et viriolas ex smaragdis": sed neque heredes neque maritus, cum humi corpus daret, ea ornamenta, quae corpori iussus erat adici, dederunt: quaesitum est, utrum ad eam, cui ornamenta universa reliquerat, pertineant an ad heredes. respondit non ad heredes, sed ad legatariam pertinere.
A woman at her death had bequeathed the ornaments thus: " I wish all my ornaments to be given to Seia, my friend". In the same testament she had written thus: " I wish to be buried at the discretion of my husband, and that whatever for the sake of my burial I shall bear from my ornaments—two strings from pearls and little bracelets from emeralds—be borne in with me": but neither the heirs nor the husband, when he was giving the body to the ground, gave those ornaments which he had been ordered to add to the body: the question was raised whether they pertain to her to whom she had left all the ornaments, or to the heirs. He responded that they pertain not to the heirs, but to the legatee.
Iulianus scripsit, si res pignori data legetur debitori a creditore, valere legatum habereque eum actionem, ut pignus recipiat, priusquam pecuniam solvat. sic autem loquitur iulianus, quasi debitum non debeat lucrari: sed si alia testantis voluntas fuit, et ad hoc pervenietur exemplo luitionis.
Julian wrote that, if a thing given in pledge is bequeathed to the debtor by the creditor, the legacy is valid and he has an action to recover the pledge before he pays the money. Julian, however, speaks thus as though he ought not to profit from the debt; but if the testator’s intention was otherwise, even to this result one will come by the example of redemption.
Iulianus etiam libro quadragesimo digestorum scripsit: si quis decedens chirographum seii titio dederit, ut post mortem suam seio det aut, si convaluisset, sibi redderet, deinde titius defuncto donatore seio dederit et heres eius petat debitum, seius doli exceptionem habet.
Julian also wrote in the fortieth book of the Digest: if someone, when dying, has given to Titius a chirograph of Seius, to the effect that after his own death he should deliver it to Seius, or, if he recovered, return it to himself; then, after the donor has died, if Titius has given it to Seius and his heir demands the debt, Seius has the exceptio doli.
Nunc de effectu legati videamus. et si quidem mihi liberatio sit relicta, cum solus sim debitor, sive a me petatur, exceptione uti possum, sive non petatur, possum agere, ut liberer per acceptilationem. sed et si cum alio sim debitor, puta duo rei fuimus promittendi, et mihi soli testator consultum voluit, agendo consequar, non ut accepto liberer, ne etiam conreus meus liberetur contra testatoris voluntatem, sed pacto liberabor.
Now let us examine the effect of a legacy. And if indeed a release has been left to me when I alone am the debtor, whether it is demanded from me or not, I can, if it is demanded, use an exception, and if it is not demanded, I can bring an action to be released by acceptilation. But even if I am debtor together with another—suppose we were two joint promisors—and the testator wished to provide for me alone, by suing I shall obtain, not that I be released by acceptilation (lest my co-obligor also be freed against the testator’s will), but that I be released by a pact.
but what if we were partners? let us see whether I ought to be freed by acceptilation; otherwise, while demand is made upon my co-reus, I am disturbed. and thus Julian wrote in the thirty-second book of the Digest, that if indeed we are not partners, I ought to be freed by pact; if partners, by acceptilation.
Consequenter quaeritur, an et ille socius pro legatario habeatur, cuius nomen in testamento scriptum non est, licet commodum ex testamento ad utrumque pertineat, si socii sunt. et est verum non solum eum, cuius nomen in testamento scriptum est, legatarium habendum, verum eum quoque, qui non est scriptus, si et eius contemplatione liberatio relicta esset.
Consequently it is inquired whether also that partner is to be held as a legatee, whose name is not written in the testament, although the benefit from the testament pertains to both, if they are partners. And it is true that not only he whose name is written in the testament is to be regarded a legatee, but also he who is not written, if the release had been left in contemplation of him as well.
Utrique autem legatarii habentur et in hoc casu. nam et si quod ego debeo titio sit ei legatum mei gratia, ut ego liberer, nemo me negabit legatarium, ut et iulianus eodem libro scribit. et Marcellus notat utriusque legatum esse tam meum quam creditoris mei, etsi solvendo fuero: interesse enim creditoris duos reos habere.
Both are held to be legatees also in this case. For even if what I owe to Titius be bequeathed to him for my sake, in order that I be discharged, no one will deny that I am a legatee, as Julian also writes in the same book. And Marcellus notes that the legacy is of both, as much mine as my creditor’s, even if I should be solvent; for it is in the creditor’s interest to have two debtors.
Quid ergo est, cum agere poterit creditor ex testamento? non aliter heres condemnari debebit, quam si caveatur ei adversus debitorem defensu iri. item agente debitore nihil amplius heres praestare debet, quam ut eum adversus creditorem defendat.
What, then, is the case, when the creditor can bring an action under the testament? The heir ought not to be condemned otherwise than if security be given to him that he will be defended against the debtor. Likewise, when the debtor is the one suing, the heir ought to provide nothing more than to defend him against the creditor.
Si quis reum habeat et fideiussorem et reo liberationem leget, iulianus ibidem scripsit reum per acceptilationem liberandum: alioquin si fideiussorem coeperit convenire, alia ratione reus convenitur. quid tamen, si donationis causa fideiussor intervenit nec habet adversus reum regressum? vel quid si ad fideiussorem pecunia pervenerit et ipse reum dederit vice sua ipseque fideiusserit?
If someone has a debtor and a fideiussor, and bequeaths a release to the debtor, Julian wrote in the same place that the debtor is to be freed by acceptilation; otherwise, if he has begun to sue the fideiussor, the debtor is sued on another ground. What, however, if the fideiussor intervened by way of donation and has no regress against the debtor? Or what if the money has come to the fideiussor, and he himself has furnished a debtor in his own stead and has himself become fideiussor?
Idem iulianus eodem libro scripsit, si filius familias debitor fuerit et patri eius fuerit liberatio relicta, patrem pacto liberandum esse, ne etiam filius liberetur. et parvi, inquit, refert, si sit aliquid in peculio die legati cedente necne: securitatem enim pater per hoc legatum consequitur: maxime, inquit, cum rei iudicandae tempus circa peculium spectetur. huic patri similem facit iulianus maritum, cui uxor post divortium liberationem dotis legavit: nam et hunc, licet die legati cedente solvendo non sit, legatarium esse: et utrumque ait solutum repetere non posse.
The same Julian wrote in the same book that, if a son in paternal power should be a debtor and a release has been left to his father, the father is to be released by the pact, lest the son also be released. And it matters little, he says, whether there is anything in the peculium on the day the legacy falls due or not: for the father obtains security through this legacy—especially, he says, since, in matters concerning the peculium, the time for adjudicating the case is looked to. Julian likens to this father a husband to whom his wife, after divorce, bequeathed a release of the dowry: for he too, although on the day the legacy falls due he is not solvent, is a legatee; and he says that neither of them can recover what has been paid.
but truer is what Marcellus notes: that the father can claim ( for he was not yet a debtor when he paid), but the husband cannot, because he paid a debt. For even if someone should consider the father a debtor, nevertheless he is in the position of a conditional debtor, about whom it is not doubted that, having paid, he can recover what was paid.
Sed si damnatus sit heres filium liberare, non adicit iulianus, utrum acceptilatione filius an pacto sit liberandus: sed videtur hoc sentire, quasi acceptilatione debeat liberari, quae res patri quoque proderit. quod optinendum est, nisi evidenter approbetur contrarium sensisse testatorem, id est ne filius inquietetur, non ne pater: tunc enim acceptilatione eum non liberandum, sed pacto.
But if the heir has been condemned to liberate the son, Julian does not add whether the son is to be liberated by acceptilation or by a pact: but he seems to think this, as though he ought to be liberated by acceptilation, a thing which will also benefit the father. This is to be maintained, unless it is clearly approved that the testator had a contrary intention, that is, that the son not be troubled, not the father: for then he is not to be liberated by acceptilation, but by a pact.
Idem iulianus scripsit, si pro filio pater fideiusserit eique liberatio sit legata, eum pacto liberandum quasi fideiussorem, non quasi patrem, et ideo de peculio posse conveniri. hoc ita demum putat, si dumtaxat quasi fideiussorem eum voluit testator liberari: ceterum si et quasi patrem, et de peculio erit liberandus.
The same Julian wrote: if a father has stood surety for his son and a release has been bequeathed to him, he is to be released by the pact as a surety, not as a father, and therefore he can be proceeded against de peculio. He thinks this only provided that the testator wished him to be released merely as a surety; but if also as a father, he must also be released with respect to the peculium.
Post emancipationem vero filii eatenus pater actionem habebit, quatenus aliquid ex peculio aut in rem verso praestaturus est: id enim legatorum nomine ad patrem pertinebit, quod eius intererit.
After the emancipation of the son, however, the father will have an action only so far as he will be bound to render something out of the peculium or from what has been turned to his account (in rem versum): for that, under the title of legacies, will pertain to the father, to the extent of his interest.
Illud quaeri potest, an eo quoque nomine pater ex testamento agere possit, ut etiam filius actione liberetur. quibusdam eo usque extendi actionem placebat, quia patris interesse videatur, si peculium filio post emancipationem concessisset, integrum ius eius permanere. ego contra sentio: nihil quicquam amplius patri praestandum ex eiusmodi scriptura testamenti puto, quam ut nihil ex eo, quod praestaturus heredi fuerit, praestet.
It can be asked whether the father can also proceed from the testament under this head, so that the son too may be released from the action. Some were pleased to extend the action to that point, because it seems to be in the father’s interest, if he had granted a peculium to his son after emancipation, that his right remain entire. I am of the contrary opinion: I think that nothing at all more is to be afforded to the father from a testamentary writing of this sort than that he render nothing of that which he would have been about to render to the heir.
Si is qui stipulatus stichum aut decem damnaverit heredem stichum non petere, legatum valere constat: sed quid contineat, videamus. et iulianus scribit actionem ex testamento in hoc esse videri, ut debitor accepto liberetur: quae res utique debitorem et in decem liberabit, quia acceptilatio solutioni comparatur, et quemadmodum, si stichum solvisset, debitor liberaretur, ita et acceptilatione stichi liberari.
If he who has stipulated for Stichus or ten has bound the heir not to seek Stichus, it is agreed that the legacy is valid: but let us see what it contains. And Julian writes that the action from the testament is to be understood to this effect, that the debtor be released by acceptilation; which matter will of course also free the debtor as to the ten, because acceptilation is compared to payment, and just as, if he had paid Stichus, the debtor would be released, so too by acceptilation of Stichus he is released.
Unde quaerit iulianus, si ab impuberis substituto sit liberatio relicta, deinde impubes exegerit quod debetur, an evanescat legatum. et cum constet pupillum in his, quae a substituto relinquuntur, personam sustinere eius a quo sub condicione legatur, consequens est substitutum actione ex testamento teneri, si pupillus a debitore exegerit.
Whence Julian asks, if a release has been left by the substitute of an impubes (a minor), and then the impubes has exacted what is owed, whether the legacy evanesces. And since it is agreed that the pupillus, in those things which are left by the substitute, sustains the person of him by whom it is bequeathed under a condition, it follows that the substitute is held by an action ex testamento, if the pupillus has exacted from the debtor.
Tale legatum: " heres meus a solo lucio titio ne petito" ad heredem lucii titii non transit, si nihil vivo lucio titio adversus testamentum ab herede, eo quod ab eo exigere debitum temptavit, sit commissum: quotiens enim cohaeret personae id quod legatur, veluti personalis servitus, ad heredem eius non transit, si non cohaeret, transit.
Such a legacy: "let my heir not seek from Lucius Titius alone" does not pass to the heir of Lucius Titius, if, while Lucius Titius lived, nothing was incurred against the testament by the heir on the ground that he attempted to exact a debt from him: for whenever that which is bequeathed coheres to the person, as a personal servitude, it does not pass to his heir; if it does not cohere, it passes.
Si heres vetitus sit agere cum eo, qui negotia defuncti gesserit, non videtur obligatio ei praelegata, quae dolo vel ex fraude eius qui negotia gesserit commissa sit, et testator id videtur sensisse. ideo si heres negotiorum gestorum egisset, agens procurator ex testamento incerti doli mali exceptione excludi potest.
If the heir has been forbidden to litigate with him who has managed the deceased’s affairs, the obligation bequeathed to him is not regarded as comprising that which was incurred through the dolus or from the fraud of the one who managed the affairs; and the testator seems to have intended this. Therefore, if the heir should bring the action of negotiorum gestorum, the procurator suing ex testamento for an incertum can be excluded by the exceptio doli mali.
Si quis rationes exigere vetetur, ut est saepissime rescriptum, non impeditur reliquas exigere, quas quis se reliquavit, et si quid dolo fecit qui rationes gessit. quod si quis et haec velit remittere, ita debet legare: " damnas esto heres meus, quidquid ab eo exegerit illa vel illa actione, id ei restituere" vel " actionem ei remittere".
If anyone is forbidden to demand accounts, as has most frequently been rescripted, he is not hindered from demanding the remaining balances which one has left owing by himself, and from demanding whatever the one who managed the accounts did by fraud. But if someone would also wish to remit these, thus he ought to bequeath: " let my heir be bound, to restore to him whatever he shall have exacted from him by that or that action" or " to remit the action to him".
Si damnatus heres fuerit a fideiussore quidem non petere, quod autem reus debet, titio dare, pacisci debet, ne a fideiussore petat, et adversus reum actiones suas praestare legatario: quemadmodum damnatus heres, ne a reo petat, et damnatus dare quod fideiussor debet, et reo acceptum facere et legatario litis aestimationem sufferre cogatur.
If the heir has been condemned, he ought to agree not to seek from the surety, but to give to Titius what the defendant owes, to pact that he will not seek from the surety, and to furnish to the legatee his actions against the defendant: just as a condemned heir is compelled not to seek from the defendant, and, being condemned, to give what the surety owes, and to acquit the defendant and to bear to the legatee the assessment of the lawsuit.
Si debitor fideiussorem suum ab herede suo liberari iusserit, an fideiussor liberari debeat? respondit debere. item quaesitum est, an, quia mandati actione heredes tenerentur, inutile legatum esset, quemadmodum inutile legatum est quod debitor creditori suo legat.
If a debtor has ordered that his surety be released by his heir, must the surety be released? He answered that he must. Likewise it was asked whether, because the heirs would be liable by the action on mandate, the legacy would be invalid, just as the legacy is invalid which a debtor bequeaths to his creditor.
he answered ^ I answered^, that whenever a debtor should bequeath to his creditor, the legacy is thus useless, if it made no difference to the creditor to proceed under the testament rather than under the prior obligation. For even if Titius has mandated Maevius to promise money, then has ordered that he be released by the stipulator, it is manifest how much it matters for the promissor to be released rather than to perform under the stipulatio, and then to bring an action of mandate.
Lucius titius cum erotem actorem haberet, codicillis ita cavit: " erotem liberum esse volo: quem rationes reddere volo eius temporis, quod erit post novissimam meam subscriptionem". postea vivus erotem manumisit in eodem actu habuit rationesque subscripsit usque in eum diem, qui fuit ante paucissimos dies quam moreretur. heredes lucii titii dicunt quasdam summas et servum adhuc erotem et postea liberum accepisse neque in eas rationes, quae a lucio titio subscriptae sunt, intulisse: quaero, an heredes ab erote nihil exigere debent eius temporis, quo lucius titius subscripsit. respondi erotem ex ea causa quae proponeretur liberationem petere non posse, nisi et hoc specialiter ei remissum est.
When Lucius Titius had Eros as his steward (actor), he provided thus in a codicil: “I want Eros to be free; and I want him to render accounts for that period which will be after my latest subscription.” Afterwards, while alive, he manumitted Eros, and in the same act he took the accounts and subscribed them up to that day, which was a very few days before he died. The heirs of Lucius Titius say that Eros, both while still a slave and afterwards when free, received certain sums, and that he did not enter them into those accounts which were subscribed by Lucius Titius. I inquire whether the heirs ought to exact nothing from Eros for that period for which Lucius Titius subscribed. I answered that Eros, on the basis of the case proposed, cannot seek a liberation (release from liability), unless this too has been specially remitted to him.
Ei cui fundum in quinquennium locaveram legavi quidquid eum mihi dare facere oportet oportebitve ut sineret heres sibi habere. nerva atilicinus, si heres prohiberet eum frui, ex conducto, si iure locationis quid retineret, ex testamento fore obligatum aiunt, quia nihil interesset, peteretur an retineret: totam enim locationem legatam videri,
To the person to whom I had leased a farm for a five-year term I bequeathed that whatever it is or shall be proper for him to give or do to me, the heir should allow him to have for himself. Nerva Atilicinus says that, if the heir were to prevent him from enjoying, he would be liable under the action ex conducto; and, if the heir were to retain anything by the right of the letting (locatio), he would be bound under the testament—because it makes no difference whether it be demanded or retained; for the entire lease is seen to have been bequeathed,
Cum ita testemur: " heres meus damnas esto liberare illum, quod is negotia mea gessit, et si quid eum mihi dare facere oportet, ab eo non exigere", damnatur heres nec creditas ab eo quoque pecunias exiget. in simili autem legato vix est, ut de eo quoque legando pater familias senserit, quod servis eius peculii nomine debetur.
When we make a testament thus: "let my heir be bound to discharge that man, because he has transacted my business, and, if anything he ought to give or do to me, not to exact it from him," the heir is charged and will not exact from him the moneys credited (loaned) either. But in a similar legacy it is scarcely the case that the paterfamilias intended also, by bequeathing, that which is owed to his slaves under the name of their peculium.
" aurelio sempronio fratri meo. neminem molestari volo nomine debiti neque exigere aliquid ab eo, quamdiu viveret, neque de sorte aut usurae nomine debiti: et absolvo ei et libero ex pignoribus eius domum et possessionem caperlatam". modestinus respondit ipsum debitorem, si conveniatur, exceptione tutum esse: diversum in persona heredis eius.
" to aurelius sempronius, my brother. I do not wish anyone to be molested under the name of a debt nor to exact anything from him, as long as he lives, nor concerning the principal or interest under the name of the debt: and I absolve him and free from his pledges his house and the Caperlata holding". modestinus responded that the debtor himself, if he is sued, is safe by an exception; it is different in the person of his heir.
Gaius seius cum adolevisset, accepit curatores publium maevium et lucium sempronium. sed enim idem gaius seius intra legitimam aetatem constitutus cum in fatum concederet, testamento suo de curatoribus suis ita cavit: " quaestionem curatoribus meis nemo faciat: rem enim ipse tractavi". quaero, an rationem curae heredes adulti a curatoribus petere possint, cum defunctus, ut ex verbis testamenti apparet, confessus sit se omnem rem suam administrasse. modestinus respondit, si quid dolo curatores fecerunt aut si quae res testatoris penes eos sunt, eo nomine conveniri eos posse.
Gaius Seius, when he had grown up, accepted as curators Publius Maevius and Lucius Sempronius. But indeed the same Gaius Seius, being placed within the lawful age, when he departed to fate, provided thus in his testament concerning his curators: "Let no one make an inquiry against my curators: for I myself handled the matter." I ask whether the adult heirs can demand an account of the curatorship from the curators, since the deceased, as appears from the words of the will, confessed that he himself administered all his own affairs. Modestinus replied that, if the curators did anything by fraud, or if any things of the testator are in their possession, on that ground they can be sued.
Sed si sub condicione dato legato heres praeoccupaverit et exegerit debitum, aliud dici oportet, quia in arbitrio heredis esse non debet, ut quandoque condicione existente neque ipsi legatario debeatur legatum, si tum vivat et capere possit, neque ei, ad quem hoc commodum pervenit, si legatarius capere non possit.
But if, when the legacy has been given under a condition, the heir has forestalled and exacted the debt, a different thing ought to be said, because it ought not to be in the heir’s discretion that, whenever the condition comes to exist, the legacy be owed neither to the legatee himself, if then he lives and can take, nor to him to whom this advantage has accrued, if the legatee cannot take.
Cum heres rogatur debitorem suum liberare, de eo tantum cogitatum videtur, quod in obligatione manserit: itaque si quid ante tabulas apertas fuerit solutum, ad causam fideicommissi non pertinebit. quod autem post tabulas apertas ante aditam hereditatem ab eo, qui voluntatem defuncti non ignoravit, fuerit exactum, dolo proximum erit ideoque repeti potest.
When an heir is requested to release his own debtor, only that is considered which has remained under the obligation; and so, if anything was paid before the tablets were opened, it will not pertain to the cause of the fideicommiss. But what, after the tablets were opened and before the inheritance was entered upon, was exacted by one who was not ignorant of the deceased’s will, will be next to fraud and therefore can be reclaimed.
Legavi titio quod mihi debetur vel adiecta certa quantitate sive specie vel non adiecta, aut ex contrario aeque cum distinctione, veluti " titio quod ei debeo" vel ita " titio centum quae ei debeo": quaero, an per omnia requirendum putes, an debitum sit. et plenius rogo quae ad haec spectant attingas: cottidiana enim sunt. respondi: si is, cui titius debebat, debitum ei remittere voluit, nihil interest, heredem suum iussit ut eum liberaret an prohibeat eum exigere: utroque enim modo liberandus est debitor et utroque casu competit ultro ad liberandum debitori actio.
I have bequeathed to Titius what is owed to me, either with a definite quantity or kind added, or with none added; or, conversely, likewise with a distinction, as “ titio what I owe him” or thus “ titio one hundred which I owe him”: I ask whether you think it must in every respect be inquired whether it is a debt. And more fully I ask that you touch on the matters that pertain to these, for they are everyday. I answered: if the person to whom Titius owed wished to remit the debt to him, it makes no difference whether he ordered his heir to free him or forbids him to exact it: in either way the debtor is to be released, and in either case an action lies to the debtor, of his own initiative, for securing his release.
But if he also made mention of a debt of one hundred aurei or of a farm, then, if he is proven to have been a debtor, he must be released; but if he owes nothing, it can be said that, as if with a false demonstration added, even what is comprised can be sought. But this can be said if he thus bequeathed: " one hundred aurei, which he owes me" or " Stichus, whom he owes, let my heir be bound not to demand." But if he said thus: " my heir shall be bound to give him one hundred aurei, which Titius owes me," even this might be attempted, that he may be able to seek it as if with an added false demonstration: which by no means pleases me, since the testator is thought to have referred the word of giving to the debt. Conversely, if a debtor bequeaths to a creditor, I see no utility, if he bequeaths without a quantity.
but also, if he demonstrates that which he confesses himself to owe, there is no utility except in those species in which the emolument of the debt is enlarged. But if he bequeathed one hundred aurei which he said that he owed, if indeed he does owe, the legacy is useless; but if he was not a debtor, it has pleased (has been held) that the legacy is useful: for a definite quantity of coins is similar to a bequest of Stichus with a false demonstration: and this too the deified Pius decreed by rescript, in the case of a definite sum of money bequeathed under the name of a dowry received.
Tutor decedens aliis heredibus scriptis pupillo suo, cuius tutelam gessit, tertiam partem bonorum dari voluit, si heredibus suis tutelae causa controversiam non fecerit, sed eo nomine omnes liberaverit: pupillus legatum praetulit et postea nihilo minus petit quidquid ex distractione aliave causa ad tutorem suum ex tutela pervenerit: quaero, an verbis testamenti ab his exactionibus excludatur. respondit, si prius, quam condicioni pareret, fideicommissum percepisset et pergeret petere id, in quo contra condicionem faceret, doli mali exceptionem obstaturam: nisi paratus esset, quod ex causa fideicommissi percepisset, reddere: quod ei aetatis beneficio indulgendum est.
A tutor, dying with other heirs instituted, wished that a third part of the goods be given to his ward, whose tutelage he had exercised, if he should not make a controversy on account of the tutelage against his heirs, but should release all in that regard: the ward preferred the legacy and afterwards nonetheless demands whatever from a sale (distraction) or other cause had come to his tutor from the tutelage: I ask whether by the words of the testament he is excluded from these exactions. He answered that, if before he complied with the condition he had received the fideicommissum and went on to seek that in which he would be acting contrary to the condition, the exception of dolus malus would bar him: unless he were ready to restore what he had received by reason of the fideicommissum: which indulgence is to be granted to him by the benefit of his age.
Videamus, si ei, cum quo de peculio actio erit, liberatio testamento legata sit, an, si die, quo legata cedere solent, nihil in peculio sit, legatarii loco habetur? atquin nondum debitor fuit, nec procedit, ut emolumentum aliquid ex legato ad eum perveniat nisi propter spem futuri peculii. numquid ergo in pendenti sit, an legatarius fuerit, perinde atque si qua alia causa spem legati dubiam faceret?
Let us see: if to the one against whom an action concerning the peculium will lie a release has been bequeathed by testament, then, if on the day on which legacies are wont to vest there is nothing in the peculium, is he held in the place of a legatee? And yet he was not yet a debtor, nor does it follow that any emolument from the legacy reaches him except by reason of the hope of a future peculium. Therefore, is it in suspense whether he was a legatee, just as if some other cause made the hope of the legacy doubtful?
Aurelius symphorus fideiusserat pro tutore quodam et decedens eisdem pupillis legavit in haec verba: " arellio latino et arellio felici singulis quina, cum quis eorum quattuordecim annorum fuerit: ad quod tempus praestari eis volo singulis alimentorum nomine menstruos denarios senos et vestiarii nomine annuos denarios viginti quinque. quo legato contenti esse debetis, quando tutela vestra non minimo damno rationem meam adflixerit. a vobis autem, heredes mei, peto, ne quid ex ratione tutelae ab his exigere vel ab hoc legato eorum retinere velitis". quaesitum est, si heres eius ex causa fideiussionis aliquid praestiterit, an herede filiorum eius, pro quo fideiusserat, repetere possit.
Aurelius symphorus had stood as fidejussor (surety) for a certain tutor, and on dying he bequeathed to the same wards in these words: “to arellius latinus and arellius felix five apiece, when each of them shall be fourteen years old: until that time I wish to be paid to them, under the name of alimenta, six denarii monthly apiece, and under the name of clothing-money, twenty-five denarii annually. With which legacy you ought to be content, since your tutela has afflicted my account with no small loss. And from you, my heirs, I ask that you be willing to exact nothing from them on the account of the tutela, nor to retain anything from this their legacy.” It was asked, if his heir has paid something by reason of the fideiussion, whether he can recover it from the heir of his sons, of him for whom he had stood surety.
Testamento facto debitoribus liberationem reliquerat, post inciso lino et recognito testamento aliud testamentum fecit, in quo repetit legatum his verbis: " quibusque legata in eo testamento quod incideram dedi, omnia rata esse et quaequae scripta sunt volo". quaesitum est, adita ex sequenti testamento hereditate an debitores, quibus priori testamento liberatio relicta erat, consequi possint, ut etiam eius quantitatis nomine, quam post prius testamentum debere coeperant, liberarentur, et si ab his heredes petere coeperint, an doli mali exceptione summoverentur. respondit non liberari.
After making a testament he had left a liberation to his debtors; afterward, the linen cord having been cut and the testament reviewed, he made another testament, in which he repeated the legacy with these words: "and to whomsoever I gave legacies in that testament which I had cut open, I will that all be ratified, and whatever things are written." It was asked, the inheritance having been entered upon under the subsequent testament, whether the debtors, to whom a release had been left by the prior testament, could obtain that they be released also in respect of the amount which they began to owe after the earlier testament; and, if the heirs should begin to demand from them, whether they would be warded off by the exceptio doli mali. He answered that they are not released.
Titius seio debitori suo ita legavit: " do lego seio denarios decem: item dono illi, quidquid sortis et usurarum nomine mihi debebat". praeterea generaliter damnavit heredes fideique eorum commisit, uti darent restituerent unicuique, quidquid ei legasset. postea seius aliam praeterea pecuniam a titio mutuatus est. quaero, an haec quoque pecunia, quae post testamentum factum data esset seio, legata intellegitur.
Titius thus bequeathed to Seius, his debtor: "I give and bequeath to Seius ten denarii: likewise I give to him whatever he owed me under the name of principal and interest." moreover, he generally charged his heirs and entrusted to their good faith, that they should give and restore to each person whatever he had bequeathed to him. afterwards Seius borrowed another sum of money besides from Titius. I ask whether this money also, which was given to Seius after the testament was made, is understood as bequeathed.
Titius testamento facto et filiis heredibus institutis de patre tutore suo quondam facto ita locutus est: " seium patrem meum liberatum esse volo ab actione tutelae". quaero, haec verba quatenus accipi debent, id est an pecunias, quas vel ex venditionibus rerum factis aut ex nominibus exactis in suos usus convertit vel nomine suo faeneravit, filiis et heredibus testatoris nepotibus suis debeat reddere. respondit eum, cuius notio est, aestimaturum. praesumptio enim propter naturalem affectum facit omnia patri videri concessa, nisi aliud sensisse testatorem ab heredibus eius approbetur.
Titius, a testament having been made and his sons instituted as heirs, spoke thus about his father, once made his tutor: " I wish my father Seius to be freed from the action of guardianship." I inquire how far these words ought to be taken, that is, whether the monies which he either converted to his own uses from sales of things effected or from claims collected, or put out at interest in his own name, he ought to restore to the sons and heirs of the testator, his own grandsons. He replied that the one whose cognizance it is will assess it. For presumption, on account of natural affection, makes all things seem to have been conceded to the father, unless it be approved by his heirs that the testator had thought otherwise.
Maevia testamento suo alterum ex heredibus suis actione tutelae voluit liberari his verbis: " rationem tutelae, quam egit iulius paulus cum antistio cicerone, posci ab eo nolo eoque nomine causa omni liberatum esse volo": quaero, an, si qua pecunia ex tutela apud eum remansit, peti ab eo possit. respondit nihil proponi, cur pecunia, quae pupillae est et apud tutorem posita maneret, legata videretur.
Maevia, by her testament, wished one of her heirs to be freed from the action of tutelage by these words: "I do not want the account of the tutelage, which Julius Paulus transacted with Antistius Cicero, to be demanded from him, and under that head I wish him to be released from every cause": I ask whether, if any money from the tutelage has remained with him, it can be sought from him. He responded that nothing is put forward why the money, which is the girl-ward’s and had been placed with the guardian, should seem to have been bequeathed.
Testamento ita scripserat: " titio adfini meo, quidquid mihi quacumque ex causa debebat, remitti volo eoque amplius decem do": codicillis ita scripsit: " titio hoc amplius adfini et debitori meo usuram pecuniae, quam mihi debet, ab herede meo donec advivet: quod si exigere ultra voluntatem meam putaverit, eius sortis usuram eidem titio ab heredibus meis donec vivit praestari volo". quaesitum est, cum augendi potius quam minuendi testator voluntatem habuerit, an heredes ex causa fideicommissi titio teneantur, ut eum omni debito liberent. respondit secundum ea quae proponerentur videri minutum legatum, quod primo dederat.
He had written thus in his testament: " to my in-law titio, whatever he owed me from whatever cause, I wish to be remitted, and in addition to that I give ten": in the codicils he wrote thus: " to titio moreover, my in-law and my debtor, the interest (usury) of the money which he owes me, by my heir so long as he shall live: but if he shall think to exact beyond my will, I wish the interest of that principal to be furnished to the same titio by my heirs so long as he lives." It was asked, since the testator had a will of augmenting rather than diminishing, whether the heirs, on the ground of a fideicommissum, are bound to titio to free him from every debt. He answered that, according to the things proposed, the legacy which he had first given seemed to be diminished.
Legatum est testamento hoc modo: " seio concedi volo, quidquid mihi ab eo debitum est vel fidem meam pro eo obligavi": quaero, utrum id solum, quod testamenti facti tempore debebatur, legatum sit, an etiam, si quid ex ea summa usurarum nomine postea accessit, legato cedat. respondit videri omnem obligationem eius debiti per fideicommissum solvi voluisse.
A legacy is in the testament in this manner: "I wish it to be granted to Seius, whatever is owed to me by him, or for which I have bound my credit on his behalf": I ask whether only that which was owed at the time the testament was made is bequeathed, or also, if anything afterwards has accrued to that sum under the name of interest, it cedes to the legacy. He responded that it seems he wished every obligation of that debt to be discharged through the fideicommissum.
Sticho testamento manumisso fundum instructum et alia legavit et haec verba adiecit: " quem rationem reddere veto, quia instrumenta penes se habet": quaesitum est, an stichus reliqua, quae ex administratione actus debuerat, reddere debuerit. respondi stichum eo nomine non teneri. claudius: nemo enim ex servitutis actu post libertatem tenetur et consultatio ad ius debiti relata fuerat: retineri ergo reliqua possunt cum peculio aut ex eo deduci, si legatum est.
After Stichus had been manumitted by the will, he bequeathed to him an equipped estate and other things and added these words: "I forbid him to render an account, because he has the documents in his possession": it was asked whether Stichus ought to render the remainder which he had owed from the administration of transactions. I answered that Stichus is not held liable on that ground. claudius: for no one is held, after freedom, on account of an act done in servitude, and the consultation had been referred to the law of debt: therefore the remainder can be retained together with the peculium or deducted from it, if it has been bequeathed.
" centum, quae apud apronianum deposita habeo, apud ipsum esse volo, donec filius meus ad annos viginti pervenerit, eiusque pecuniae usuram exigi veto". quaesitum est, an ex causa fideicommissi apronianus consequi possit, ne ante tempus a testatore praescriptum ea summa ab eo exigatur. respondit secundum ea quae proponerentur consequi posse.
"the hundred, which I have deposited with apronianus, I wish to remain with him until my son has reached twenty years, and I forbid the interest of that money to be exacted." it was asked whether, on the ground of the fideicommissum, apronianus can obtain that that sum not be demanded from him before the time prescribed by the testator. he replied that, according to what was proposed, he can obtain it.
Filias heredes scripserat, quarum fidei commisit in haec verba: " ne a gaio seio rationes actus rei meae, quae per mensam eius sive extra mensam in diem mortis meae gesta est, exigatis eoque nomine eum liberetis". quaesitum est, cum universas rationes in diem mortis iste administraverit et per mensam suam et quae extra administrabantur, an ad rationes reddendas heredibus teneatur. respondit liberationem quidem secundum ea quae proponerentur legatam esse, sed quatenus praestanda sit, ex qualitate disceptationis iudicem aestimaturum.
He had appointed his daughters as heirs, to whose trust he committed in these words: "that you not exact from Gaius Seius the accounts of the conduct of my affair, which up to the day of my death was transacted either through his mensa or outside the mensa, and that under that head you release him." It was asked, since this man had administered all the accounts up to the day of death both through his own mensa and those which were administered outside, whether he is bound to render accounts to the heirs. He replied that a release, indeed, according to what was set forth, was bequeathed; but how far it must be provided, the judge will assess from the quality of the dispute.
Eum, qui tutelam ipsius administraverat, et fratrem suum et alios quosdam scripsit heredes et tutori legavit, quae impenderat in se et fratrem ipsius, decem: quaesitum est, an utile esset in persona eius fideicommissum. respondit, si id dederit per fideicommissum quod debebatur, peti non posse.
He appointed as heirs the one who had administered his guardianship, his brother, and certain others, and he legated to the tutor, for what he had expended upon himself and his brother, ten: it was asked whether the fideicommissum would be effective against his person. He responded that, if he has given by fideicommissum what was owed, it cannot be sought.
Idem quaesiit, si tutor amplecteretur fideicommissum ita, ut quibusdam stari vellet verbis testamenti, in quibusdam autem recedat, quod minorem quantitatem sumptuum dicat fideicommisso contineri quam ipse erogaverat, an audiri deberet. respondit non impediri eum scriptura testamenti, quo minus omne, quod sibi deberi probasset, petere posset.
The same asked, if a tutor should embrace the fideicommissum in such a way that he would wish to stand by certain words of the testament, but in certain others to depart, because he says that a lesser quantity of expenses is contained in the fideicommissum than he had disbursed, whether he ought to be heard. responded that he is not impeded by the writing of the testament from seeking everything which he had proved to be owed to him.
Quidam ita legavit: " semproniae uxori meae reddi iubeo ab heredibus meis quinquaginta ea, quae mutua acceperam chirographo particulatim in negotia mea " : quaesitum est, an, si vere uxoris debitor fuerit, fideicommissum constiterit. respondit, si debita fuissent, nullum esse fideicommissum.
A certain man thus bequeathed: " I order that there be returned to my wife Sempronia by my heirs the fifty which I had received on mutuum loan by chirograph, item by item, for my business affairs " : it was asked whether, if he had truly been a debtor of his wife, the fideicommiss had stood. He responded that, if they had been debts, there is no fideicommiss.
Idem quaesiit, an, si hanc pecuniam ut debitam apud iudicem petierit et victa fuerit, an fideicommissum peti possit. respondit secundum ea quae proponuntur posse ex causa fideicommissi peti, quod apparuisset non fuisse ex alia causa debitum.
The same asked whether, if she had sought this money before a judge as due and had been defeated, the fideicommissum could be sought. responded that, according to what is set forth, it can be sought on the ground of the fideicommissum, since it had appeared that it had not been owed on another ground.
Si is, qui duos reos promittendi habet, damnaverit heredem, ut utrosque liberet, si alter ex his capere non possit nec socii sint, delegari debebit is qui nihil capit ei cui hoc commodum lege competit: cuius petitione utrumque accidit, ut et hoc commodum ad eum perveniat et is qui capit liberetur. quod si socii sint, propter eum qui capax est et ille capit per consequentias liberato illo per acceptilationem: id enim eveniret, etiamsi solum capacem liberare iussus esset.
If a man who has two stipulatory promisors has bound his heir to release both, then, if one of them cannot take and they are not partners, the one who takes nothing ought to be delegated to him to whom this benefit belongs by law; at whose suit both results occur, namely, that this benefit comes to him and that the one who does take is released. But if they are partners, on account of the one who is capable, the other also takes by consequence, once that one has been released by acceptilation; for the same would come about even if he had been ordered to release only the capable one.
Petitor vel possessor damnavit heredem suum, ne centumvirale iudicium exerceat: de effectu legati quaeritur. et dictum ita demum utile videri legatum esse, si malam causam adversarius testatoris habuit, ut litigante herede vinci debuerit: tunc enim non tantum litis emolumentum, sed etiam sumptus heres legatario praestare cogitur. nam in bona causa nihil videtur esse in legato nec propter sumptus, quod quidam existimaverunt.
A claimant or a possessor has charged his heir not to conduct the centumviral proceeding: the effect of the legacy is in question. And it has been said that the legacy seems useful only if the adversary of the testator had a bad case, such that, with the heir litigating, he ought to have been defeated: for then the heir is compelled to provide to the legatee not only the emolument of the suit, but also the expenses. For in a good case nothing seems to be in the legacy, not even on account of the costs, which some have thought.
Creditor debitori legavit ita: " gaio seio, quidquid mihi sub pignore hortorum suorum debuit, ab heredibus meis dari volo": quaero, cum testator vivus a seio aliquid recepit, an id ex causa legati peti possit. respondit secundum ea quae proponerentur non posse. idem repetiit et ait item testatorem ante factos codicillos, quibus legavit, paene omnem pecuniam sortis et usurarum recepisse, ita ut modicum sortis et usurarum debeatur, et quaesiit, an ei repetitio competeret propter verba ad praeteritum relata " quidquid mihi debuit". respondit: prius quidem secundum ea quae proponerentur recte responsum est, verum posterius propter ea, quae in tempore adderentur, ita ab iudice aestimandum, ut inspiceret, oblivione pecuniae solutae, aut quod eo inscio numerata esset, id fecisset, an consulto, quod quantitatem quondam debitam, non ius liberationis dare voluisset.
A creditor bequeathed to his debtor thus: " to Gaius Seius, whatever he owed me under the pledge of his gardens, I wish to be given by my heirs": I ask, since the testator while alive received something from Seius, whether that can be sought on the ground of the legacy. He responded that, according to the facts proposed, it cannot. He repeated the same and said likewise that the testator, before the codicils by which he bequeathed were made, had received almost all the money of principal and interest, so that a small amount of principal and interest is owed; and he asked whether an action for recovery would lie for him on account of the words referred to the past " whatever he owed me." He responded: in the first case indeed, according to what was proposed, the answer was correct; but in the latter, on account of the matters that would be added in time, it is to be assessed by the judge thus, that he should examine whether he had done that through forgetfulness of the money paid, or because it had been paid without his knowledge, or deliberately, because he had wished to give the amount once owed, not the right of release.
Inter cetera liberto ita legavit: " et si quid me vivo gessit, rationes ab eo exigi veto". quaeritur, an chartas, in quibus rationes conscriptae sunt, item reliquas secundum accepta et expensa heredibus reddere debeat. respondit ea de quibus quaereretur posse heredem vindicare, id autem, quod conservis, qui remanent in hereditate, crediderit et in rem domini versum esset, desisse in reliquis esse.
Among other things he thus bequeathed to the freedman: " and if he did anything while I was alive, I forbid accounts to be demanded from him". It is asked whether he ought to hand over to the heirs the papers in which the accounts have been written, likewise the remaining items according to receipts and expenditures. He answered that the heir can vindicate those things about which inquiry was made; but that what he had credited to the fellow-slaves who remain in the inheritance, and which had been turned to the master’s account, had ceased to be among the outstanding items.
Titia, quae duos tutores habuerat, ita cavit: " rationem tutelae meae, quam egit publius maevius cum lucio titio, reposci ab eo nolo": quaeritur, an, si qua pecunia apud eum ex tutela remansit, peti ab eo possit. respondit nihil proponi, cur pecunia, quae pupillae esset et apud tutorem remaneret, legata videretur.
titia, who had had two guardians, thus provided: " the account of my guardianship, which publius maevius conducted with lucius titius, i do not wish to be demanded back from him": it is asked whether, if any money has remained with him from the guardianship, it can be claimed from him. he responded that nothing is put forward why money which was the ward’s and remained with the guardian should seem to have been bequeathed.
" gaio seio optime merito hoc amplius lego concedique volo neque ab eo peti neque ab heredibus eius, quidquid mihi aut chirographis aut rationibus debitor est vel quidquid a me mutuum accepit vel fidem meam pro eo obligavi". quaero, utrum id solum, quod eo tempore, quo testamentum fiebat, debebatur, legatum sit an et si quid ex ea summa usurarum nomine postea accessit legato cedat. respondit secundum ea quae proponerentur videri omnem obligationem seio eius debiti per fideicommissum solvi voluisse.
" to gaius seius, most well-deserving, I bequeath this further and wish it to be conceded, and that it be neither demanded from him nor from his heirs: whatever he is indebted to me either by chirographs or by accounts, or whatever he received from me as a mutuum, or in which I bound my credit as surety on his behalf." I ask whether only that which at the time when the testament was being made was owed has been bequeathed, or whether also whatever afterwards accrued to that sum in the name of interest falls to the legacy. He responded that, according to the matters proposed, it appears he wished by the fideicommissum to release to Seius all obligation on that debt.
Item quaeritur, si postea novatione facta et ampliata summa coeperit debere, an id, quod ex vetere contractu debebatur, nihilo minus in causa legati duret et an vero novatione facta quasi novus debitor ampliatae summae possit conveniri. respondit id dumtaxat legatum videri quod tunc debuisset, si tamen mansit in ea voluntate testator, quae tunc fuisset.
Likewise it is asked, if afterward, a novation having been made and the sum enlarged, he began to owe, whether that which was owed from the old contract nonetheless endures for the purpose of the legacy, and whether indeed, the novation having been made, he can be proceeded against as a quasi new debtor for the increased sum. He responded that only that is seen as bequeathed which he would then have owed, provided, however, that the testator remained in the same intention as he then had.
Si quis ita legaverit: " titio fundum do lego: si titius decesserit, seio heres meus dare damnas esto", recte translatum legatum videtur. sed et si iam mortuo eo, cui legatum erat, easdem res transtulerit, sempronio debetur.
If someone has thus bequeathed: " I give and bequeath the estate to Titius: if Titius has died, let my heir be bound to give to Seius", the legacy seems rightly transferred. But even if, with the one to whom the legacy had been left already dead, he has transferred the same things, it is owed to Sempronius.
Si quis titio legaverit sic: " titio dato aut, si titius ante decesserit quam accipiat, sempronio dato", secundum meram suptilitatem utrique obligatum videri heredem, id est et sempronio et heredi titii. sed si quidem mora titio ab herede facta est, ad heredes eius legati exactio transmittitur sempronio repellendo: sin autem nulla mora intercesserit, tunc sempronius legatum accipit, et non titii heredes. sed si ante diem legati cedentem decesserit titius, soli sempronio debetur legatum.
If someone has bequeathed to titio thus: " give to titio, or, if titius shall have died before he receives, give to sempronio," according to mere subtlety the heir seems bound to both, that is, to sempronio and to the heir of titii. But if indeed delay to titio has been caused by the heir, the exaction of the legacy is transmitted to his heirs, with sempronio being repelled; but if no delay has intervened, then sempronio receives the legacy, and not the heirs of titii. But if titius has died before the day on which the legacy vests, the legacy is owed to sempronio alone.
Idem dicendum est et fideicommissa hereditate puero data aut, si ante restitutam decessisset, matri eius relicta: ut, si puer ante diem legati cedentem decessisset, matri debeatur, si postea, ad pupilli heredes fideicommissum transmittatur utpote re ipsa mora subsecuta.
The same must be said also where a fideicommissary inheritance was given to a boy, or, if he had died before it was restored, was left to his mother: namely, that if the boy died before the day on which the legacy would vest, it is owed to the mother; but if after, the fideicommissum is transmitted to the ward’s heirs, inasmuch as delay, in the thing itself, has supervened.
Si quis ita legaverit: " heres meus titio fundum dato et si titius eum fundum alienaverit, heres meus eundem fundum seio dato", oneratus est heres: non enim a titio fideicommissum relictum est, si alienasset fundum, sed ab herede ei legatum est. heres igitur debebit doli exceptione posita prospicere sibi cautione a titio de fundo non alienando.
if someone has so bequeathed: "let my heir give the estate to titius, and if titius shall have alienated that estate, let my heir give the same estate to seius," the heir is burdened: for it is not that a fideicommissum was left by titius if he should have alienated the estate, but that a legacy was left to him by the heir. therefore the heir ought, with the exception for fraud interposed, to provide for himself by a security from titius for not alienating the estate.
Si titio fundus pure eidemque sub condicione legatus sit, deinde postea ademptum sit sic: " titio fundum, quem sub condicione legavi, heres meus ne dato", ex nulla datione debetur, nisi specialiter dixerit pure eum legatum velle accipere.
If to Titius a farm has been bequeathed purely, and to the same man also under a condition, and then afterwards it has been taken away thus: "to Titius the farm, which I bequeathed under a condition, let my heir not give," it is owed on no account, unless he has specifically said that he wishes to accept it as bequeathed purely.
Condicio legati an adimi possit vel hereditatis vel statuliberi, videndum. et iulianus scribit in statulibero detractam condicionem non repraesentare libertatem. papinianus quoque libro septimo decimo quaestionum scribit generaliter condicionem adimi non posse: nec enim datur, inquit, condicio, sed adscribitur: quod autem adscribitur, non potest adimi, sed quod datur.
Whether the condition of a legacy, or of an inheritance, or of a statuliber, can be taken away, must be considered. And Julianus writes that, in the case of a statuliber, a condition that has been detracted does not bring liberty into effect. Papinianus also, in the seventeenth book of the Questions, writes generally that a condition cannot be taken away: for, he says, a condition is not given, but ascribed; and what is ascribed cannot be taken away, but what is given.
Non solum autem legata, sed et fideicommissa adimi possunt et quidem nuda voluntate. unde quaeritur, an etiam inimicitiis interpositis fideicommissum non debeatur: et si quidem capitales vel gravissimae inimicitiae intercesserint, ademptum videri quod relictum est: sin autem levis offensa, manet fideicommissum. secundum haec et in legato tractamus doli exceptione opposita.
Not only legacies, but also fideicommissa can be taken away, indeed by naked will. Whence the question arises whether, with enmities interposed, the fideicommissum is also not owed: and if capital or most very grave enmities have intervened, what was left is seen as revoked; but if a slight offense, the fideicommissum remains. According to these points we also treat the same in the case of a legacy, with the exceptio doli opposed.
Translatio legati fit quattuor modis: aut enim a persona in personam transfertur: aut ab eo qui dare iussus est transfertur, ut alius det: aut cum res pro re datur, ut pro fundo decem aurei: aut quod pure datum est, transfertur sub condicione.
The transfer of a legacy is effected in four ways: either it is transferred from person to person; or it is transferred from the one who was ordered to give, so that another may give; or when a thing is given for a thing, as ten aurei in place of a farm; or what was given purely (unconditionally) is transferred under a condition.
Sed si id, quod a titio dedi, a maevio dem, quamvis soleant esse duo eiusdem rei debitores, tamen verius est hoc casu ademptum esse legatum: nam cum dico: " quod titium dare damnavi, seius damnas esto dare", videor dicere, ne titius det.
But if, as to that which I gave from titius, I give it from maevius, although it is customary for there to be two debtors of the same thing, nevertheless the truer view is that in this case the legacy has been adeemed: for when I say: " quod titius dare damnavi, seius damnas esto dare", I seem to be saying that titius is not to give.
Quod si alii legetur sub condicione, quod alii pure datum est, non plene recessum videtur a primo, sed ita demum, si condicio sequentis exstiterit: ceterum si hoc animo fuerit testator, ut omnimodo recessum a primo putaverit, dicendum erit a primo ademptum legatum.
But if that which has been given purely to one is bequeathed to another under a condition, there does not appear to have been a complete recession from the first, but only then, if the condition of the subsequent should be fulfilled; however, if the testator was of this mind, that in every way he thought there had been a recession from the first, it must be said that the legacy has been adempted from the first.
Cum centum, quae quis pure reliquit, condicione adiecta iterum eidem legavit, si quidem quasi aliam hanc summam esse voluit, et quod pure relictum est statim debebitur et quod sub condicione adscriptum est, si condicio exstiterit. quod si eandem summam mutata voluntate sub condicione reliquit, pura datio condicionalis effecta videbitur. quare si in eodem testamento, in quo centum adscripserat, postea quinquaginta reliquerit, si quidem alia voluit esse haec quinquaginta, centum quinquaginta debebuntur, sin vero quinquaginta tantum deberi voluit, quinquaginta tantum debebuntur.
When, having added a condition, he again bequeathed the hundred which he had left purely, if indeed he wished this sum to be as if another, both what was left purely will be owed at once and what was set down under condition, if the condition comes to pass. But if, with his intention changed, he left the same sum under condition, the pure grant will be seen to have been made conditional. Therefore, if in the same testament, in which he had set down one hundred, he later left fifty, then—if he wished these fifty to be another sum—one hundred and fifty will be owed; but if he wished that only fifty be owed, only fifty will be owed.
Si legatum pure datum titio adimatur sub condicione et pendente condicione titius decesserit, quamvis condicio defecerit, ad heredem titii legatum non pertinebit: nam legatum cum sub condicione adimitur, perinde est, ac si sub contraria condicione datum fuisset.
If a legacy given purely to Titius is taken away under a condition, and, while the condition is pending, Titius dies, although the condition has failed, the legacy will not pertain to Titius’s heir: for when a legacy is taken away under a condition, it is the same as if it had been given under the contrary condition.
Legata inutiliter data ademptione non confirmantur, veluti si domino herede instituto, servo pure legatum sub condicione adimatur: nam pure legatum si sub condicione adimatur, sub contraria condicione datum intellegitur et ideo confirmatur. ademptio autem, quo minus, non quo magis legatum debeatur, intervenit.
Legacies ineffectually given are not confirmed by an ademption, as for instance if, with the master instituted as heir, a legacy given purely to a slave is taken away under a condition: for if a pure legacy is taken away under a condition, it is understood as given under the contrary condition and therefore is confirmed. Moreover, an ademption intervenes so that the legacy is owed less, not more.
Rem legatam si testator vivus alii donaverit, omnimodo exstinguitur legatum. nec distinguimus, utrum propter necessitatem rei familiaris an mera voluntate donaverit, ut, si necessitate donaverit, legatum debeatur, si nuda voluntate, non debeatur: haec enim distinctio in donantis munificentiam non cadit, cum nemo in necessitatibus liberalis exsistat.
If the testator, while alive, has donated the bequeathed thing to another, the legacy is in every way extinguished. Nor do we distinguish whether he donated on account of the necessity of household estate or by mere volition, so that, if he donated from necessity, the legacy should be owed, if from bare will, it should not be owed: for this distinction does not fall within the donor’s munificence, since no one proves liberal in necessities.
Ex parte heres institutus etiam legatum acceperat: eum testator inimicitiis gravissimis persecutus, cum testamentum aliud facere instituisset neque perficere potuisset, praeteriit. hereditariae quidem actiones ei non denegabuntur, sed legatum si petat, exceptione doli mali submovebitur.
A person instituted as heir for a share had also received a legacy: the testator, pursuing him with most grievous enmities, when he had set about making another testament and had not been able to complete it, passed him over. Hereditary actions indeed will not be denied to him; but if he seeks the legacy, he will be repelled by the exception of dolus malus.
Pater inter filios facultatibus divisis filiam ex ratione primipili commodorum trecentos aureos accipere voluit ac postea de pecunia commodorum possessionem paravit. nihilo minus fratres et coheredes sorori fideicommissum praestabunt: non enim absumptum videtur, quod in corpus patrimonii versum est. cum autem inter filios diviso patrimonio res indivisas ad omnes coheredes pertinere voluisset, ita possessionem ex commodis comparatam dividi placuit, ut in eam superflui pretii filia portionem hereditariam accipiat: hoc enim eveniret in bonis pecunia relicta.
With the means divided among the sons, the father wished the daughter to receive three hundred aurei from the account of the primipilus’s emoluments, and afterwards he procured a possession with the money of the emoluments. Nonetheless the brothers and coheirs will perform the fideicommissum for their sister: for what has been turned into the corpus of the patrimony is not regarded as consumed. And since, with the patrimony divided among the sons, he had wished the undivided things to pertain to all the coheirs, it has been resolved that the possession purchased from the emoluments be divided in such a way that, in it, the daughter receive an hereditary share of the surplus of the price: for this is what would occur, in the goods, if money had been left.
Legatum sub condicione datum cum transfertur, sub eadem condicione transferri videtur, si non condicio priori personae cohaereat: nam si quis uxori sublatis liberis legaverit, repetita condicio non videbitur, quae fuit in persona mulieris necessaria.
A legacy given under a condition, when it is transferred, is seen as transferred under the same condition, if the condition does not adhere to the prior person; for if someone has bequeathed to his wife “with the children taken away,” the condition will not be regarded as repeated, which was necessary in the person of the woman.
Pater hortos instructos filiae legavit: postea quaedam ex mancipiis hortorum uxori donavit. sive donationes confirmavit sive non confirmavit, posterior voluntas filiae legato potior erit: sed etsi non valeat donatio, tamen minuisse filiae legatum pater intellegitur.
The father bequeathed furnished gardens to his daughter: afterwards he donated some of the slaves of the gardens to his wife. Whether he confirmed the donations or did not confirm them, the later intention will be stronger than the legacy to the daughter: but even if the donation is not valid, nevertheless the father is understood to have diminished the daughter’s legacy.
Alteri ex heredibus praeceptionem praedii dedit: mox alteri praestari adversus debitorem actiones ad eum finem mandavit, quo praedium fuerat comparatum. cum postea praedio distracto citra ullam offensam eius, qui praeceptionem acceperat, pretium in corpus patrimonii redisset, non esse praestandas actiones coheredi respondi.
He gave to one of the heirs a preemption of the estate; soon after he mandated that actions be furnished to the other against the debtor, to that end for which the estate had been purchased. When later, the estate having been sold, without any offense to him who had received the preemption, the price had returned into the corpus of the patrimony, I replied that the actions were not to be furnished to the coheir.
Si, servo cum libertate dato legato, et alienato adimatur libertas, quamvis alieno inutiliter adimatur, tamen legatum ad emptorem non perventurum: et merito: constitit enim ademptio, quia possit redimi, sicut datio, cum in eum confertur, qui testamenti faciendi tempore fuit testatoris, deinde alienato codicillis libertas datur.
If, a legacy having been given of a slave together with liberty, and after he has been alienated liberty is taken away, although, once he belongs to another, it is ineffectually taken away, nevertheless the legacy will not come through to the purchaser; and deservedly: for the ademption stands, since he can be redeemed—just as a grant, when it is conferred upon one who at the time of making the testament was the testator’s, then, after he has been alienated, liberty is given by codicils.
Servo legato et inter vivos manumisso si legatum adimatur, nullius momenti ademptio est: igitur legatum, quod ipsi datum est, capiet. nam etsi rursus in servitutem ceciderit, non tamen legatum eius resuscitabitur: novus enim videtur homo esse.
A legacy having been left to a slave, and he having been manumitted inter vivos, if the legacy is adempted, the ademption is of no effect: therefore he will take the legacy that was given to himself. For even if he should fall back into slavery, nevertheless his legacy will not be resuscitated: for he is regarded as a new man.
Si tibi certam rem legavero et rogavero te, ut eam titio restitueres, deinde eandem rem tibi fideicommisero nec rogavero te, ut alii eam praestares, quaeritur, an in tua potestate sit ex causa fideicommissi eligere, ut fideicommissum non praestes. et magis posteriorem scripturam testamenti placuit spectari.
If I shall have bequeathed to you a determinate thing and shall have requested you to restore it to Titius, and then shall have committed the same thing to you in fideicommissum and shall not have requested you to deliver it to another, the question is raised whether it is in your power, on the ground of the fideicommissum, to choose not to perform the fideicommissum. And it has been the more approved view that the later writing of the testament is to be regarded.
Alumnae suae plura legaverat: quaedam ex his abstulit, quaedam ut praestarentur, ab herede suo petit, in quibus et viginti dari voluit his verbis: " hoc amplius do lego darique volo viginti auri libras" et adiecit: " fideique tuae, atti, committo, ut in primis semproniam sororem tuam pro tua pietate et regere et tueri velis, et, si putaveris eam ad bonam vitae consuetudinem reversam, ita viginti auri libras ei reddere, cum morieris. interim tamen reditus eius, id est usuras semisses ei praestes". postea codicillis ad maevium legatarium easdem viginti libras auri transtulit et fidei eius commisit in haec verba: " viginti libras auri, quas testamento semproniae alumnae meae reliqui, eas dari volo maevio cautionibus interpositis, ut ex ea summa eidem semproniae, quamdiu advixerit, praestet menstruos denarios quinque et vestiarii nomine denarios centenos vicenos quinos, idque fidei vestrae committo: certa sum autem te, maevi, pro tua pietate petiturum ab herede tuo, ut voluntas mea in persona alumnae meae duret". quaesitum est, an maevius legatarius cogendus sit post mortem suam viginti libras auri semproniae restituere, sicut rogatus fuerat attius heres. respondit secundum ea quae proponerentur viginti quidem auri libras non cogendum praestare, sed alia, quae ab eo alumnae relicta sunt, deberi et a maevio et ab herede eius, donec vivit alumna.
He had bequeathed several things to his alumna; some of these he took away, some he asked to be furnished by his heir, among which he also wished twenty to be given in these words: "In addition to this I give, bequeath, and wish to be given twenty pounds of gold," and he added: "and I commit to your good faith, Attius, that, first of all, you should wish, in accordance with your piety, both to govern and to protect Sempronia your sister, and, if you shall have thought her to have returned to a good habit of life, thus to restore to her twenty pounds of gold when you will die. Meanwhile, however, furnish her its returns, that is, interest at the half-rate." Afterwards by codicils he transferred to Maevius, the legatee, the same twenty pounds of gold and committed it to his fidelity in these words: "The twenty pounds of gold which by my testament I left to Sempronia, my alumna, I wish these to be given to Maevius, securities interposed, so that out of that sum he provide to that same Sempronia, as long as she shall live, five denarii monthly, and, under the name of clothing-allowance, one hundred twenty-five denarii; and I commit that to your good faith: I am certain, moreover, that you, Maevius, out of your piety will ask of your heir that my will endure in the person of my alumna." The question was raised whether Maevius the legatee must be compelled, after his death, to restore twenty pounds of gold to Sempronia, just as Attius the heir had been charged. He answered that, according to the matters proposed, he is not to be compelled to furnish the twenty pounds of gold, but the other things which were left by him to the alumna are owed both by Maevius and by his heir, as long as the alumna lives.
Titia testamento seiam libertam eandemque collactaneam ex parte duodecima heredem instituerat, pamphilo liberto suo praedia per fideicommissum dedit, in quibus et sugktysin praediorum quae appellabatur circa colonen: eidem liberto postea per epistulam alias etiam res donavit, in quibus de seia et pamphilo ita est locuta: " titia tois klyronomois mou xairein. boulomai bebaia einai ta hypotetagmena, hosa efvasa eis to onoma to pamfilou pepoiykenai. ean seia hy suntrofos mou klyronomos my genytai, ec ohu gegrafa autyn merous, boulomai auty dovynai tyn sugktysin tyn peri kolwnyn". quaesitum est, cum seia liberta omissa parte hereditatis ei testamento adscripta ex codicillis fideicommissum, id est sugktysin circa colonen, eligat, an, si pamphilus ex causa fideicommissi eadem praedia vindicet, doli mali exceptione summoveri debeat.
Titia by her testament had instituted Seia, her freedwoman and likewise milk-sister, heir to a one-twelfth share; to Pamphilus, her freedman, she gave estates by a fideicommiss, among which also the “sugktysis” of the estates which was called “around Colonen.” To the same freedman afterwards by an epistle she donated other things as well, in which, about Seia and Pamphilus, she spoke thus: “Titia to my heirs, greeting. I wish the things subjoined to be firm, as many as I declared to have been done in the name of Pamphilus. If Seia, my foster-sister, should not become heir, from the share which I have written for her, I wish to give to her the sugktysis around Colonen.” The question was raised, since Seia the freedwoman, passing over the share of the inheritance assigned to her by the will, chooses from the codicils the fideicommiss—that is, the sugktysis around Colonen—whether, if Pamphilus claims the same estates by reason of the fideicommiss, he ought to be repelled by the exception of dolus malus.
Ab heredibus petierat, ut, si in provincia decessisset, sexaginta lucio titio darentur, ut is corpus eius curaret in patriam reportari, et adiecerat haec verba: " cui concedi volo, si quid ex ea pecunia supererit". eadem die codicillos ad heredes suos ita scripserat: " peto a vobis, ut, sive in provincia sive in via aliquid mihi humanitus acciderit, corpus meum curetis et in campania et in monumentum filiorum meorum reportare". quaesitum est, an id, quod superfuerit ex sexaginta, a lucio titio tacite ademerit. respondit ademptum videri.
He had requested from the heirs that, if he should die in the province, sixty be given to lucius titius, so that he might take care that his body be carried back to his fatherland, and he had added these words: " to whom I wish it to be granted, if anything from that money remains." On the same day he had thus written codicils to his heirs: " I ask from you, that, whether in the province or on the road something should befall me in mortal wise, you take care that my body be carried back both into campania and into the monument of my sons". It was asked whether that which should remain from the sixty he had tacitly taken away from lucius titius. He replied that it appears to have been revoked.
Qui filias ex disparibus portionibus testamento heredes instituerat, paene omnium bonorum suorum eodem testamento divisionem fecit, deinde haec verba adiecit: " ta de loipa panta twn huparxontwn mou, homoiws kai ta tys klyronomias bary estai monwn twn duo mou vugaterwn primys kai sekoundys y tys ec autwn periousys". postea codicillis longe aliam divisionem fecit bonorum inter easdem, inter quas et testamento diviserat, quaedam tamen nulli nominatim dedit. quaesitum est, an prima et secunda filiae ex verbis testamenti consequi possint, ut solae habeant ea, quae nominatim nulli relicta sunt in divisione, quae novissima a patre facta est. respondit non a tota voluntate recessisse videri, sed his tantum rebus quas reformasset.
He who had appointed his daughters heirs in unequal portions by his testament made, by the same testament, a division of almost all his goods; then he added these words: "and as for the rest of all my possessions, likewise the burdens of the inheritance shall be upon only my two daughters, the first and the second, and the surplus arising from them." Afterwards, by codicils he made a far different division of the goods among these same [daughters], among whom he had also divided by the testament; yet he left certain things to no one by name. It was asked whether the first and second daughters, from the words of the testament, can obtain that they alone should have those things which were left to no one by name in the division which was most recent made by the father. He answered that he does not seem to have departed from his whole intention, but only in those things which he had reformed.
Cum post apertas tabulas testamenti priscillianus vixerit, de cuius legato portioneque hereditatis mater epistula ita caverat: " quoniam cognovi priscillianum filium meum in extremis esse, iustissimum et piissimum duxi portionem eius hereditatis, quam ei testamento dederam, legare mariano fratri meo et ianuario marito meo aequis portionibus: et si quid ei amplius legaveram, ut si quid ei humanitus contigerit, do lego darique eis volo": postea ex eadem infirmitate priscillianus decessit. quaesitum est, an legatum quoque eius ad ianuarium et marianum ex causa fideicommissi pertineat. respondit posse videri, si decessisset ex ea infirmitate, omnimodo et legatum ad eos de quibus quaereretur transtulisse.
Since, after the testamentary tablets were opened, priscillianus lived, concerning whose legacy and portion of the inheritance the mother had thus provided by letter: " since I have learned that my son priscillianus is at the point of death, I judged it most just and most pious to bequeath to marianus my brother and to ianuarius my husband, in equal portions, the portion of his inheritance which I had given to him by will; and if I had bequeathed anything further to him, so that if anything should befall him in the course of human events, I give, bequeath, and wish that it be given to them": afterwards from the same infirmity priscillianus died. It was asked whether his legacy also pertains to ianuarius and marianus on the ground of a fideicommissum. He answered that it can seem that, if he had died from that infirmity, in every way he also transferred the legacy to those about whom the inquiry was made.
Filio ex parte heredi instituto duos fundos cum mancipiis et instrumento omni legavit: idem uxori plura legata et servos stichum et damam legavit: sed cum in altero ex fundis filio praelegatis cognovisset vilicum non esse, stichum misit et tam rei rusticae quam rationibus fundi praefecit: quaesitum est, stichus utrum ad uxorem an ad filium pertineret. respondit, cum memor erat eorum, quae testamento cavisset, stichum his praediis, in quae translatus est, actorem cedere nec uxorem posse stichum ex fideicommissi causa petere.
A son having been instituted as heir in part, he bequeathed to him two estates with slaves and all equipment; likewise to his wife he bequeathed more legacies and the slaves Stichus and Dama. But when, in one of the estates pre‑legated to the son, he learned that there was no bailiff, he sent Stichus and put him in charge both of agriculture and of the estate’s accounts: the question was asked whether Stichus belonged to the wife or to the son. He answered: since he was mindful of those things which he had provided for in the testament, Stichus passes as actor (steward) to those landed estates into which he was transferred, and the wife cannot demand Stichus by reason of a fideicommissum.
Matri suae heredi ex parte institutae quattuor praedia legavit et fidei eius commisit, ut ex his duo socero restitueret: deinde codicillis socero ademit fideicommissum: quaesitum est, an nihilo minus ex praelegatione ad matrem pertineret. respondi nihil proponi, cur ad matrem pertinerent.
He bequeathed four estates to his mother, who had been instituted heir as to a part, and committed to her good faith that from these she should restore two to his father-in-law: then by codicils he took away from the father-in-law the fideicommissum: the question was asked whether nonetheless by way of pre-legacy it would pertain to the mother. I replied that nothing is set forth to show why they should pertain to the mother.
Seia testamento suo legavit auri pondo quinque: titius accusavit eam, quod patrem suum mandasset interficiendum: seia post institutam accusationem codicillos confecit nec ademit titio privigno legatum et ante finem accusationis decessit: acta causa pronuntiatum est patrem titii scelere seiae non interceptum. quaero, cum codicillis legatum, quod testamento titio dederat, non ademerit, an ab heredibus seiae titio debeatur. respondit secundum ea quae proponerentur non deberi.
Seia by her testament bequeathed five pounds of gold: Titius accused her, on the ground that she had ordered his father to be killed. After the accusation had been instituted, Seia drew up codicils and did not take away from Titius, her stepson, the legacy; and before the end of the accusation she died. The case having been heard, it was pronounced that Titius’s father had not been intercepted (killed) by Seia’s crime. I ask, since by the codicils she did not revoke the legacy which she had given to Titius by the testament, whether it is owed by Seia’s heirs to Titius. He responded that, according to the matters proposed, it is not owed.
Filiae, quam in potestate habebat, inter cetera legavit peculium: idem post factum testamentum pecuniam a debitore filiae exegit et in suam rationem convertit: quaero, an filia eo nomine cum heredibus patris agere possit. respondit, si probaret non adimendi animo factum, agere posse.
To his daughter, whom he had in his power, he bequeathed, among other things, the peculium: the same man, after the will had been made, exacted money from the daughter’s debtor and converted it to his own account: I ask whether the daughter can on that ground bring an action against the father’s heirs. He responded that, if she should prove that it was not done with the intention of taking away, she could bring the action.
Fundum maevianum aut seianum titio legaverat, cum universa possessio plurium praediorum sub appellatione fundi maeviani rationibus demonstraretur. respondi non videri cetera praedia legato voluisse defunctum cedere, si fundi seiani pretium a fundi maeviani pretio non magna pecunia distingueretur.
He had bequeathed to Titius the Maevian estate or the Seian estate, when the entire possession of several estates was shown in the accounts under the appellation of the Maevian estate. I responded that the deceased did not seem to have wished the other estates to pass by the legacy, if the price of the Seian estate was not distinguished from the price of the Maevian estate by a large sum of money.
Quidam relegatus facto testamento post heredis institutionem et post legata quibusdam data ita subiecit: " si quis ex heredibus ceterisve amicis, quorum hoc testamento mentionem habui, sive quis alius restitutionem mihi impetraverit ab imperatore et ante decessero, quam ei gratias agerem: volo dari ei qui id egerit a ceteris heredibus aureos tot". unus ex his, quos heredes scripserat, impetravit ei restitutionem et antequam id sciret, decessit. cum de fideicommisso quaereretur, an deberetur, consultus iulianus respondit deberi: sed etiam si non heres vel legatarius, sed alius ex amicis curavit eum restitui, et ei fideicommissum praestari.
A certain person, having been relegated, after making a testament, after the institution of the heir and after legacies given to certain persons, thus subjoined: " if any one of the heirs or of the other friends, of whom I have made mention in this testament, or if anyone else, shall obtain for me restitution from the emperor, and I shall have died before I gave him thanks: I wish so many gold pieces to be given to him who shall have done it by the other heirs". One of those whom he had written as heirs obtained for him restitution, and before he knew it, he died. When it was asked concerning the fideicommissum whether it was owed, Julian, when consulted, responded that it was owed; but also, even if not an heir or a legatee, but another of the friends took care that he be restored, the fideicommissum is to be provided to him as well.
Utrum ita postumus partem faciat, si natus sit, an et si natus non sit, quaeritur. ego commodius dici puto, si quidem natus non est, minime eum partem facere, sed totum ad te pertinere, quasi ab initio tibi solido relicto: sin autem natus fuerit, utrosque accipere quantum cuique relictum est, ut uno nato pars tibi dimidia debeatur, duobus natis tertia tibi debeatur, tribus natis, quia trigemini quoque nascuntur, quarta debeatur. et nostra quidem aetate serapias alexandrina mulier ad divum hadrianum perducta est cum quinque liberis, quos uno fetu enixa est.
The question is whether a posthumous child makes a share if he is born, or also if he is not born. I think it is more fitting to say that, if indeed he is not born, he in no way makes a share, but the whole pertains to you, as if from the beginning an entire (solid) portion had been left to you; but if he is born, then both parties receive as much as is left to each, so that, with one born, a half share is owed to you; with two born, a third is owed to you; with three born—for triplets too are born—a fourth is owed. And in our own age Serapias, an Alexandrian woman, was brought before the divine Hadrian with five children, whom she had borne in a single delivery.
Cum quidam pluribus heredibus institutis unius fidei commisisset, ut, cum moreretur, uni ex coheredibus, cui ipse vellet, restitueret eam partem hereditatis, quae ad eum pervenisset: verissimum est utile esse fideicommissum: nec enim in arbitrio eius qui rogatus est positum est, an omnino velit restituere, sed cui potius restituat: plurimum enim interest, utrum in potestate eius, quem testator obligari cogitat, faciat, si velit dare, an post necessitatem dandi solius distribuendi liberum arbitrium concedat.
When someone, with several heirs appointed, had committed to the faith of a single person that, when he should die, he should restore to one of the coheirs, whichever he himself should wish, that part of the inheritance which had come to him: it is most true that the fideicommissum is useful and operative: for it does not lie in the discretion of the one who has been asked whether he will restore at all, but rather to whom he will restore: for it makes a very great difference whether he causes it to depend on the power of the person whom the testator intends to be bound—to give if he pleases—or, after imposing the necessity of giving, he grants only the free discretion of distributing.
Quaesitum est, si coheredes ex disparibus partibus scripti sunt, utrum partem suam in viriles partes restituere singulis debeat an pro portionibus hereditariis, ex quibus heredes scripti sint. et placuit, si testator ita restitui iussisset partem, si aliquam pecuniam dedissent, si quidem aequas partes iussi fuerint dare, conveniens videri esse etiam ex fideicommisso aequas partes eis restitui oportere: si vero dispares in ea pecunia distribuenda significavit testator, ut videantur hereditariis portionibus congruere, consentaneum esse etiam fideicommissum pro hereditariis partibus eis restitui debere.
It has been asked, if coheirs have been instituted for unequal shares, whether he ought to restore his share to each in virile (equal per‑capita) shares, or according to the hereditary portions for which the heirs were instituted. And it has been decided that, if the testator ordered the share to be restored on this condition—if they should give some money—then, if they were ordered to give equal parts, it seems fitting that from the fideicommissum as well equal parts ought to be restored to them; but if the testator signified unequal shares in the distribution of that money, so that they appear to align with the hereditary portions, it is consistent that the fideicommissum also ought to be restored to them according to the hereditary shares.
Si inter virum et uxorem donatio facta fuerit, priore defuncto cui donatum est ad eum res redit qui donaverat: quod si simul tam is cui donatum est quam is qui donaverit, quaestionis decidendae gratia magis placuit valere donationem, eo maxime, quod donator non supervivat, qui rem condicere possit.
If a donation has been made between husband and wife, and the first to die is the one to whom it was donated, the thing returns to him who donated: but if both the one to whom it was donated and the one who donated die at the same time, for the purpose of settling the question it has been preferred that the donation be valid, especially since the donator does not survive, who could bring a condictio to reclaim the thing.
Qui duos impuberes filios habebat, ei qui supremus moritur titium substituit: duo impuberes simul in nave perierunt: quaesitum est, an substituto et cuius hereditas deferatur. dixi, si ordine vita decessissent, priori mortuo frater ab intestato heres erit, posteriori substitutus: in ea tamen hereditate etiam ante defuncti filii habebit hereditatem. in proposita autem quaestione ubi simul perierunt, quia, cum neutri frater superstes fuit, quasi utrique ultimi decessisse sibi videantur?
One who had two minor sons appointed Titius as substitute for him who should die last: the two minors perished together on a ship: it was asked whether the inheritance is deferred to the substitute, and whose inheritance is deferred. I said that, if life had departed in order, with the earlier dead the brother would be heir by intestate succession, for the later the substitute; in that inheritance, however, he will also have the inheritance of the son who died before. In the proposed question, however, where they perished together, since neither had a brother surviving, do they seem as if each had died last?
or indeed to neither, because the comparison of the later-decedent is taken from the fact of the prior deceased? But the earlier opinion is rather to be admitted, that the substitute be heir to each: for even he who has an only son, if he has substituted for the one dying last, does not seem to have substituted to no purpose; and the nearest agnate is understood also as one who is sole and who precedes no one; and here, to each, because to neither of them was the other a survivor, they died both as the last and as the first.
Si lucius titius cum filio pubere, quem solum testamento scriptum heredem habebat, perierit, intellegitur supervixisse filius patri et ex testamento heres fuisse, et filii hereditas successoribus eius defertur, nisi contrarium approbetur. quod si impubes cum patre filius perierit, creditur pater supervixisse, nisi et hic contrarium approbetur.
If lucius titius has perished together with his son of full age, whom alone he had instituted as heir in his testament, it is understood that the son survived the father and was heir under the testament, and the son’s inheritance is devolved upon his successors, unless the contrary be proven. But if an under‑age son has perished with the father, the father is believed to have survived, unless here too the contrary be proven.
Si fuerit legatum relictum ex cognatis meis qui primus capitolium ascenderit, si simul duo venisse dicantur nec apparet, quis prior venerit, an impedietur legatum? vel ei qui monumentum fecerit, et plures fecerint? vel ei qui maximus natu est, et duo pares aetate sint?
If a legacy has been left among my cognates to the one who first shall have ascended the Capitol, if two are said to have come at the same time and it does not appear who came first, will the legacy be impeded? Or [if it is left] to him who shall have made the monument, and several have made it? Or to him who is eldest in years, and two are equal in age?
But also, if a legacy has been left to Sempronius, a friend, and there are two who are linked by equal affection? And also, if a legacy has been left to two men of the same name, say to the Sempronii, and thereafter it is adempted “to Sempronius,” and it does not appear to whom it was adempted: it can be asked whether the giving is infringed in the person of each, or the ademption is null. Likewise, if out of several slaves of the same name liberty has been left to one or to certain ones.
Plane si ita libertatem acceperit ancilla: " si primum marem pepererit, libera esto" et haec uno utero marem et feminam peperisset: si quidem certum est, quid prius edidisset, non debet ^ decet^ de ipsius statu ambigi, utrum libera esset nec ne, sed nec filiae: nam si postea edita est, erit ingenua. sin autem hoc incertum est nec potest nec per suptilitatem iudicialem manifestari, in ambiguis rebus humaniorem sententiam sequi oportet, ut tam ipsa libertatem consequatur quam filia eius ingenuitatem, quasi per praesumptionem priore masculo edito.
Clearly, if a maidservant has thus received liberty: "if she shall have borne a male first, let her be free," and she from one womb has borne a male and a female: if indeed it is certain which she delivered first, one ought not ^ it is fitting^ to doubt about her status, whether she was free or not, nor about the daughter; for if she was born afterwards, she will be freeborn. But if this is uncertain and cannot be made manifest even through judicial subtlety, in ambiguous matters one ought to follow the more humane opinion, so that both she may obtain liberty and her daughter freeborn status, as though by a presumption that the male was delivered first.
Si is qui ducenta deposuit ita leget: " seio cum ducentis quae apud eum deposui trecenta lego", singulae summae separate quidem certam habent demonstrationem, coniunctione vero tali incidunt in ambiguitatem. sed dicendum est non trecenta, sed quingenta deberi, quia duae summae iunguntur.
If one who deposited two hundred should bequeath thus: "to seio, together with the two hundred which I deposited with him, I bequeath three hundred," the individual sums separately indeed have a definite designation, but by such a conjunction they fall into ambiguity. But it must be said that not three hundred, but five hundred are owed, because the two sums are joined.
Si quis leget: " fundum seianum heres meus attio cum dione maevii servo dato", dubitatur quidem, dioni quoque fundus legatus sit an dio cum fundo legatus sit. sed magis dicendum est non solum fundum, sed etiam servum dionem esse legatum, maxime si nullas iustas causas habuit dioni legandi.
If someone bequeaths: "let my heir give the seianum estate to attius together with dion, the slave of maevii," there is indeed a doubt whether the estate is also bequeathed to dion, or whether dion is bequeathed together with the estate. But it should rather be said that not only the estate, but also the slave dion, is bequeathed, especially if he had no just causes for bequeathing to dion.
Cum ita stipulationem concipimus: " si hominem aut fundum non dederis, centum dari spondes?" utrumque est faciendum, ne stipulatio committatur, id est sive alterum sive neutrum factum sit, tenebit stipulatio. idemque est evidenter, cum propositis specialiter pluribus rebus, quas fieri volumus, ita stipulamur: " si quid eorum factum non erit": veluti " stichum et damam et erotem sisti? si quis eorum non steterit, decem dari?" necesse est enim omnes esse sistendos, ut stipulationi satisfiat.
When we frame a stipulation thus: " if you shall not have delivered a slave or an estate, do you promise that 100 will be given?" both must be done, lest the stipulation be incurred; that is, whether only one or neither has been done, the stipulation will bind. And the same is evident when, several things being specifically proposed which we want to be done, we stipulate thus: " if any of those shall not have been done": for example, " Stichus and Dama and Eros to be produced? if any of them shall not have appeared, 10 to be given?" for it is necessary that all be produced, so that the stipulation may be satisfied.
Utrum ita concipias stipulationem " si illud aut illud factum non erit" an hoc modo " si quid eorum factum non erit, quae ut fierent, comprehensa sunt", hoc interest, quod, quamvis altero facto verum sit hoc aut illud vere factum esse, non ideo tamen verum erit hoc aut illud factum non esse. nam simul ea possunt esse vera, quamvis inter se contraria sunt, quia cum significatio non ex universo, sed ex aliquo sumitur, si veri aliquid inde sit, veram efficit totam orationem: sicut e contrario duae orationes pugnantia continentes simul falsae sunt, veluti si qui liberorum partim puberes, partim impuberes decesserint, nam et hoc falsum erit omnes impuberes decessisse et illud omnes puberes decessisse. id accidit, quia significatio sumitur ex universo, in quo si aliquid falsum est, totam orationem falsam efficit.
Whether you frame the stipulation thus, “if this or that shall not have been done,” or in this way, “if anything among those things shall not have been done which were comprehended to be done,” the difference is this: although, one of them having been done, it is true that “either this or that has truly been done,” nevertheless it will not for that reason be true that “either this or that has not been done.” For these can at the same time be true, although they are contrary to one another, because when the signification is taken not from the whole, but from some part, if anything from there is true, it renders the entire utterance true: just as, conversely, two utterances containing things in conflict are at the same time false, for example if some of the children have died, some of full age and some under age; for both this will be false, “all the under‑age have died,” and that, “all the full‑age have died.” This happens because the signification is taken from the whole; in which, if anything is false, it makes the entire utterance false.
it must therefore be observed what the matter is about which inquiry is made. For when I thus conceive: "if this or that has not been [done]," it ought to be inquired whether something has not been done: the effect of the former is this, that neither be done, but of the latter, that both be done; nor in the former does it profit to have not done something, if something has been done, nor in the latter to have done something, if something has not been done.
Item si pater familias in testamento ita scripserit: " si quis mihi filius aut filia genitur, heres mihi esto: " si mihi filius aut filia heres non erit, seius heres esto", non satis voluntatem suam declaravit, si non aliter extraneum heredem esse volet, quam si neque filius neque filia heres sit: hoc enim modo concipi oportet: " si mihi neque filius neque filia heres erit". potest autem interdum superior scriptura esse necessaria, si quis, cum filium et filiam habeat, utrumque heredem instituere velit, sed sive alter heres futurus sit, extraneum miscere, sive neuter, extraneum substituere. sed proclivior est sententia testatoris sic esse interpretanda, ut, sive filius sive filia nati ei fuerint, extraneus non admittatur, nisi specialiter hoc testator expresserit.
Likewise, if a paterfamilias has written thus in his testament: " if any son or daughter is begotten to me, let him or her be my heir: " if a son or daughter will not be my heir, let seius be heir", he has not sufficiently declared his will, if he wishes the extraneous person to be heir only in the case that neither son nor daughter is heir: for in this way it ought to be framed: " if neither a son nor a daughter will be my heir". However, the former wording can sometimes be necessary, if someone, when he has a son and a daughter, wishes to institute both as heirs, but, whether the one is going to be heir, to mix in an extraneous person, or, if neither, to substitute an extraneous person. But the more inclined opinion is that the testator’s intention should be interpreted thus, that, whether a son or a daughter shall have been born to him, the extraneous person is not to be admitted, unless the testator has expressly stated this specially.
Quaedam sunt, in quibus res dubia est, sed ex post facto retro ducitur et apparet, quid actum est. ut ecce si res legata fuerit et deliberante legatario eam rem heres alii tradiderit: nam si quidem voluerit legatarius habere legatum, traditio nulla est, si vero repudiaverit, valet. tantundem est et si pecuniam hereditariam legatam crediderit heres: nam si quidem non repudiaverit legatarius, alienam pecuniam credidit, si vero repudiaverit, suam pecuniam credidisse videtur.
There are certain cases in which the matter is doubtful, but from an ex post facto event it is drawn back retroactively and it becomes clear what was done. For example, if a thing has been bequeathed and, while the legatee is deliberating, the heir has delivered that thing to another: for if indeed the legatee wished to have the legacy, the delivery is no delivery; but if he repudiated it, it is valid. The same holds if the heir has lent money of the inheritance that was left by legacy: for if the legatee did not repudiate, he lent another’s money; but if he repudiated, he is deemed to have lent his own money.
Quod de pariter mortuis tractamus, et in aliis agitatum est. ut ecce si mater stipulata est dotem a marito mortua filia in matrimonio sibi reddi et simul cum filia perit, an ad heredem matris actio ex stipulatu competere? et divus pius rescripsit non esse commissam stipulationem, quia mater filiae non supervixit.
What we treat concerning those who died together has also been discussed elsewhere. For example: if a mother has stipulated that the dowry be returned to herself by the husband upon the daughter’s death in matrimony, and she perishes together with the daughter, does an action ex stipulatu accrue to the mother’s heir? And the deified Pius rescripted that the stipulation had not been committed, because the mother did not survive her daughter.
Sed et in illo quaeritur, si pariter pupillus et qui ei substitutus erat frater necessarius decesserit, an frater fratri exsistat heres an contra: vel si duo invicem necessarii substituti sunt et una perierint, an heredes exstitisse videantur: vel alter alteri ( hoc est si invicem) hereditatem rogati fuerint restituere. in quibus casibus si pariter decesserint nec appareat, quis ante spiritum emisit, non videtur alter alteri supervixisse.
But also in that case it is asked, if at the same time a ward and his brother, a necessary heir, who had been substituted to him, has died, whether the brother becomes heir to the brother or the contrary: or if two necessary heirs have been substituted to one another and have perished in one [calamity], whether they seem to have come into existence as heirs: or [if] the one to the other ( hoc est si invicem) they have been asked to restore the inheritance. In which cases, if they have died together and it does not appear who breathed out first, the one is not seen to have survived the other.
Si cognatis legatum sit et hi cognati quidem esse desierunt, in civitate autem maneant, dicendum deberi legatum: cognati enim testamenti facti tempore fuerunt. certe si quis testamenti facti tempore cognatus non fuit, mortis tempore factus est per adrogationem, facilius legatum consequitur.
If a legacy has been left to cognates, and these cognates indeed have ceased to be such, but remain in the citizenship, it must be said that the legacy is owed: for they were cognates at the time the testament was made. Certainly, if someone was not a cognate at the time the testament was made, but at the time of death became one through adrogation, he more easily obtains the legacy.
Cum senatus temporibus divi marci permiserit collegiis legare, nulla dubitatio est, quod, si corpori cui licet coire legatum sit, debeatur: cui autem non licet si legetur, non valebit, nisi singulis legetur: hi enim non quasi collegium, sed quasi certi homines admittentur ad legatum.
Since in the times of the deified Marcus the Senate permitted bequests to collegia, there is no doubt that, if a legacy has been left to a corporate body to which it is permitted to assemble, it is owed; but if it is left to one to which it is not permitted, it will not be valid, unless it is left to the individuals: for these will be admitted to the legacy not as a collegium, but as certain determinate persons.
Qui habebat flaccum fullonem et philonicum pistorem, uxori flaccum pistorem legaverat: qui eorum et num uterque deberetur? placuit primo eum legatum esse, quem testator legare sensisset. quod si non appareret, primum inspiciendum esse, an nomina servorum dominus nota habuisset: quod si habuisset, eum deberi, qui nominatus esset, tametsi in artificio erratum esset.
He who had flaccus the fuller and philonicus the baker had bequeathed to his wife “flaccus the baker”: which of them, and whether both, would be owed? It was decided first that the one is bequeathed whom the testator had intended to bequeath. But if that did not appear, first it must be examined whether the master had the names of the slaves known; and if he had, that the one who was named is owed, although there had been an error in the trade.
Plures testamento manumiserat, in quibus sabinam et cyprogeniam, cum quisque eorum ad trigesimum annum aetatis pervenisset et cum liber quisque eorum esset, certam summam dari voluerat. et coniuncta scriptura ita caverat: " sabinae et cyprogeniae dari volo, cum ad statutam aetatem pervenerint, singulis decem et hoc amplius alimentorum nomine in annos singulos quoad vivent singulis decem". quaesitum est, utrum omnibus manumissis alimenta debeantur an vero sabinae et cyprogeniae solis. respondit secundum ea quae proponerentur videri omnibus alimenta legata.
He had manumitted several by testament, among whom Sabina and Cyprogenia; and he had wished that, when each of them had reached the thirtieth year of age and when each of them was free, a certain sum be given. And a conjoined writing had thus provided: " sabinae et cyprogeniae dari volo, cum ad statutam aetatem pervenerint, singulis decem et hoc amplius alimentorum nomine in annos singulos quoad vivent singulis decem". It was asked whether aliments were owed to all the manumitted, or indeed to Sabina and Cyprogenia alone. He responded that, according to the matters proposed, it seemed that aliments had been bequeathed to all.
Filio familias vel servo herede instituto etiam si in patris dominive poenam illicite vel probrose datum est, nullius momenti legatum esse respondit: non enim id solum, quod in heredes, sed omne, quod in cuiusque lucrum aliquid ex ultima voluntate sentientis talem poenam in testamento scriptum sit, nullius momenti habendum.
He responded that, if a son-in-power or a slave has been instituted heir, even if it has been given illicitly or disgracefully to the penalty of the father or master, the legacy is of no moment: for not only that which is against the heirs, but everything by which anyone would derive profit from the last will of one who would be feeling such a penalty written in the testament, is to be held of no moment.
Si quis hereditatem vel legatum sibi adscripserit, quaeritur, an hereditas vel legatum pro non scripto habeatur. et quid, si substitutum habeat huiusmodi institutio? respondit: pars hereditatis, de qua me consuluisti, ad substitutum pertinet: nam senatus cum poenas legis corneliae constitueret adversus eum, qui sibi hereditatem vel legatum scripsisset, eodem modo improbasse videtur, quo improbatae sunt illae: " qua ex parte me titius heredem scriptum in tabulis suis recitaverit, ex ea parte heres esto", ut perinde haberentur, ac si insertae testamento non fuissent.
If anyone has written down an inheritance or a legacy for himself, the question arises whether the inheritance or the legacy is to be held as not written. And what, if an institution of this kind has a substitute? He replied: the part of the inheritance about which you consulted me pertains to the substitute. For when the senate was establishing the penalties of the Lex Cornelia against the man who had written an inheritance or a legacy for himself, it seems to have disapproved it in the same way as those were disapproved: “in whatever part Titus shall have recited me as heir written in his tablets, from that part be heir,” so that they be regarded just as if they had not been inserted into the testament.
Divi severus et antoninus rescripserunt quasi indignum carere legato seu fideicommisso libertum, quae ei testamento patroni relicta erant, cum patronum suum post mortem eius quasi illicitae mercis negotiatorem detulerat, quamvis et praemium meruit.
The deified Severus and Antoninus issued a rescript that, as unworthy, the freedman is to be deprived of the legacy or fideicommissum which had been left to him by the patron’s testament, since he had denounced his patron, after his death, as a dealer in illicit merchandise, although he even earned a reward.
Item si quis contra mandata duxerit uxorem ex ea provincia, in qua officium aliquid gerit, quod ei ex testamento uxoris adquisitum est divi severus et antoninus rescripserunt retinere eum non posse, tamquam si tutor pupillam contra decretum amplissimi ordinis in domum suam duxisset. utroque ergo casu etsi ex asse heres institutus adierit hereditatem, fisco locus fit: nam quasi indigno ei aufertur hereditas.
Likewise, if anyone, contrary to the mandates, has taken a wife from that province in which he holds some office, the deified Severus and Antoninus rescripted that he cannot retain what was acquired for him from his wife’s testament, just as if a tutor had led a female ward into his own house contrary to the decree of the most distinguished order. Therefore in either case, even if, instituted heir for the whole, he has entered upon the inheritance, there is room for the Fiscus: for the inheritance is taken from him as from one unworthy.
Ille, qui non iure factum contendit nec optinuit, non repellitur ab eo quod meruit: ergo qui legatum secutus postea falsum dixit, amittere debebit quod consecutus est. de eo vero qui legatum accepit, si neget iure factum esse testamentum, divus pius ita rescripsit: " cognati sophronis licet ab herede instituto acceperant legata, tamen, si is eius condicionis fuerit visus, ut optinere hereditatem non possit, et iure intestati ad eos cognatos pertinet, petere hereditatem ipso iure poterunt. prohibendi autem sint an non, ex cuiusque persona condicione aetate cognita causa a iudice constituendum erit".
He who contends that it was not done by law and did not obtain [his claim] is not repelled from that which he merited: therefore he who, having pursued the legacy, afterwards said it was false, ought to lose what he has obtained. But concerning him who received a legacy, if he denies that the testament was made by law, the deified Pius thus rescripted: "Although the cognates of Sophron had received legacies from the instituted heir, nevertheless, if he has seemed to be of such a condition that he cannot obtain the inheritance, and by the law of intestacy it pertains to those cognates, they will be able by the law itself to seek the inheritance. Whether they are to be prohibited or not must be established by the judge, the case being known, from the persona, condition, and age of each."
Amittere id quod testamento meruit et eum placuit, qui tutor datus excusavit se a tutela: sed si consecutus fuerit, non admittitur ad excusationem. diversum puto in eo, qui legatum tantum meruit et a matre pupilli tutor petitus excusare se maluit: hic enim nihil contra iudicium defuncti fecit. sed hoc legatum, quod tutori denegatur, non ad fiscum transfertur, sed filio relinquitur, cuius utilitates desertae sunt.
It has been decided that he loses that which he merited by the testament, namely the one who, having been appointed as tutor, excused himself from the tutelage: but if he has undertaken it, he is not admitted to an excuse. I think it is otherwise in the case of one who only merited a legacy and, when sought by the mother of the ward as tutor, preferred to excuse himself: for he did nothing against the judgment of the deceased. But this legacy, which is denied to the tutor, is not transferred to the fisc, but is left to the son, whose interests have been deserted.
Si servum suum rogatus sit manumittere qui legatum meruit vel etiam ipsi servo utrumque datum sit, dicendum est non debere obesse servo factum domini, sed a fisco redimendum, ut manumittatur, si tamen velit servum vendere ( quia non potest cogi) qui iudicium sprevit defuncti.
If someone has been asked to manumit his slave who has merited a legacy, or even if both have been given to the slave himself (i.e., legacy and freedom), it must be said that the act of the master ought not to be prejudicial to the slave, but that he is to be redeemed by the fisc, so that he may be manumitted, if, however, he who spurned the judgment of the deceased is willing to sell the slave (since he cannot be compelled).
Qui principale testamentum arguit, et a secundis tabulis repellendus est: item a codicillis ad testamentum factis licet non confirmatis. non idem sequendum est, si secundas tabulas vel codicillos coarguit, quia non utrumque hoc casu improbasse videtur.
He who challenges the principal testament is also to be repelled from the second tablets: likewise from codicils made to the testament, even if not confirmed. the same is not to be followed, if he convicts the second tablets or the codicils, because in this case he does not seem to have disapproved both.
Rescriptum est a principe heredem rei quam amovisset quartam non retinere. et ideo si is qui quadringenta habebat universa quadringenta legavit et heres centum subtraxisset, trecentorum quartam retinebit, septuaginta quinque scilicet, et ducenta viginti quinque dabit legatariis: ex centum quae subripuit, legatariis quidem dabit septuaginta quinque, reliqua, id est viginti quinque, ad fiscum venient.
By rescript of the princeps it has been declared that an heir is not to retain the quarter of the thing which he had removed. And therefore, if one who had 400 bequeathed the whole 400 and the heir had subtracted 100, he will retain the quarter of 300—namely, 75—and he will give 225 to the legatees: from the 100 which he pilfered, he will indeed give 75 to the legatees; the remainder, that is, 25, will come to the fisc.
Sed et si palam et aperte testatori maledixerit et infaustas voces adversus eum iactaverit, idem erit dicendum. si autem status eius controversiam movit, denegatur eius quod testamento accepit persecutio: ex qua specie statim fisco deferetur.
But also if he has openly and overtly uttered malediction against the testator and has cast ill-omened utterances against him, the same must be said. But if he has stirred a controversy about his status, the prosecution of what he received by the testament is denied to him: from which kind of case it is immediately referred to the fiscus.
Si quis ei qui capere possit rogatus fuerit restituere et is mortis tempore prohibetur legibus hoc capere, non dubito quin, etsi deficit fideicommissum, apud eum tamen, qui rogatus est restituere, manere debet, quia nulla fraus eius intervenisse videtur, nisi si in futurum casum fidem accommodavit, id est ut, licet capere legibus prohiberi coeperit, restituat.
If someone has been asked to restore to a person who is able to take, and that person at the time of death is prohibited by the laws from taking this, I do not doubt that, even if the fideicommissum fails, nevertheless it ought to remain with him who was asked to restore, because no fraud of his appears to have intervened—unless he pledged his good faith for a future contingency, that is, that he restore, although he has begun to be prohibited by the laws from taking.
Heres, qui tacitam fidem contra leges accommodavit, in ea parte, quae fraudem adhibuit, falcidia non utitur: et ita senatus censuit. sed si maior modus institutionis quam fraudis fuerit, quod ad falcidiam attinet, de superfluo quarta retinebitur.
An heir who has accommodated a tacit trust contrary to the laws does not make use of the Falcidian portion in that part in which he employed fraud: and thus the senate decreed. But if the measure of the institution has been greater than that of the fraud, so far as the Falcidian portion is concerned, from the surplus a fourth will be retained.
Cum quidam scripsisset heredes quos instituere non potuerat, quamvis institutio non valeret neque superius testamentum ruptum esset, heredibus tamen ut indignis, qui non habuerunt supremam voluntatem, abstulit iam pridem senatus hereditatem. quod divus marcus in eius persona iudicavit, cuius nomen peracto testamento testator induxerat: causam enim ad praefectos aerarii misit: verum ab eo legata relicta salva manserunt. de praeceptionibus eidem datis voluntatis erit quaestio: et legatum ei non denegabitur, nisi hoc evidenter testatorem voluisse appareat.
When someone had written down heirs whom he could not institute, although the institution was not valid and the prior testament was not broken, nevertheless the Senate long ago took away the inheritance from the heirs as unworthy, who did not have the supreme will. This the deified Marcus judged in the case of the person whose name the testator had inserted after the testament had been completed: for he sent the cause to the prefects of the treasury; but the legacies left by him remained intact. About the praeceptions (pre-takings) given to the same person there will be a question of intention; and a legacy to him will not be denied, unless it should appear that the testator clearly wished this.
Claudius seleucus papiniano suo salutem. maevius in adulterio semproniae damnatus eandem semproniam non damnatam duxit uxorem: qui moriens heredem eam reliquit: quaero, an iustum matrimonium fuerit et an mulier ad hereditatem admittatur. respondi neque tale matrimonium stare neque hereditatis lucrum ad mulierem pertinere, sed quod relictum est ad fiscum pervenire.
Claudius seleucus sends greetings to his Papinian. maevius, condemned for adultery with sempronia, took as wife the same sempronia, who had not been condemned: and, when dying, he left her as heir: I ask whether it was a lawful marriage and whether the woman is to be admitted to the inheritance. I replied that neither does such a marriage stand nor does the gain of the inheritance pertain to the woman, but that what has been left comes to the fisc.
Mulierem, quae stupro cognita in contubernio militis fuit, etsi sacramento miles solutus intra annum mortem obierit, non admitti ad testamentum iure militiae factum et id quod relictum est ad fiscum pertinere proxime tibi respondi.
I most recently answered you that a woman who was known by illicit intercourse (stuprum) in a soldier’s contubernium, even if the soldier, released from the oath, should die within a year, is not admitted to a testament made by the right of military service, and that what has been left pertains to the fiscus.
Heredi, qui falsos codicillos esse dixit neque optinuit, hereditas non aufertur: si tamen aliquid a coherede codicillis acceperit, eius actio denegabitur. itaque si bonorum inter heredes divisionem defunctus codicillis fecerit, partes quidem hereditarias, in quibus legatum consistere non potuit, tenebit, sed falcidiae beneficio non utetur, si tantum in amissis portionibus erit, quod falcidiam aequitate compensationis recusaret.
To an heir who said that the codicils were false and did not prevail, the inheritance is not taken away: however, if he has accepted something from a coheir by the codicils, his action will be denied. And so, if the deceased has made by codicils a division of the goods among the heirs, he will indeed hold the hereditary shares, in which a legacy could not subsist, but he will not use the Falcidian benefit, if there is so much in the portions he has lost that equity by way of compensation would refuse the Falcidian.
Cum tabulis secundis pater impuberi filio fratris filios coheredibus datis substituisset ac substituti fratris filii post mortem pueri matrem eius partus subiecti ream postulassent, ut hereditatem patrui legitimam optinerent: victis auferendam esse partem hereditatis ex causa substitutionis respondi, quia ex testamento sententiam secundum se dictam non haberent.
When, the second tablets having been drawn up, a father had substituted the brother’s sons as coheirs to his underage son, and the brother’s sons so substituted, after the boy’s death, had accused his mother as a defendant for child‑substitution, in order to obtain the legitimate inheritance of their paternal uncle: I answered that, they having been defeated, their share of the inheritance must be taken away by reason of the substitution, because they would not have a judgment pronounced from the testament in their favor.
Quoniam stuprum in ea contrahi non placuit, quae se non patroni concubinam esse patitur, eius, qui concubinam habuit, quod testamento relictum est, actio non denegabitur. idque in testamento coccei cassiani clarissimi viri, qui rufinam ingenuam honore pleno dilexerat, optimi maximique principes nostri iudicaverunt: cuius filiam, quam alumnam testamento cassianus nepti coheredem datam appellaverat, vulgo quaesitam apparuit.
Since it has not been approved that stuprum be contracted with her who does not allow herself to be the concubine of her patron, the action for what was left by the testament of one who had a concubine will not be denied. And this our best and greatest princes judged in the testament of Cocceius Cassianus, a most illustrious man, who had loved Rufina, a freeborn woman, with full honor: whose daughter, whom Cassianus had called a foster-daughter in his testament, having been given as coheir to his granddaughter, appeared to have been born vulgo (out of wedlock).
Cum heredis nomen mutata voluntate pater familias incisis tabulis induxisset atque ideo fisco portionis emolumentum adiudicatum fuisset, eam rem legatariis non obesse, qui retinuerant voluntatem, divo marco placuit, et ideo cum suo onere fiscum succedere.
When the paterfamilias, his will having changed, after cutting the tablets had entered the name of an heir, and therefore the emolument of a portion had been adjudged to the fisc, it pleased the deified Marcus that this should not prejudice the legatees, who had retained the intention; and therefore the fisc succeeds with its own burden.
Heredem, qui sciens defuncti vindictam insuper habuit, fructus omnes restituere cogendum existimavi nec probe desideraturum actionem confusam restitui: deceptum autem ignoratione facti bonae fidei possessoris defensionem habiturum ante motam scilicet controversiam, si ratio fructuum subducatur, nec improbe confusam actionem reddi postulaturum.
I have thought that an heir who, knowingly, held the deceased’s redress in contempt should be compelled to restore all the fruits, nor would he properly desire that the merged (confused) action be restored. But one deceived through ignorance of the fact will have the defense of a possessor in good faith, before the controversy has of course been set in motion, if an account of the fruits is deducted; nor will he improperly demand that the merged (confused) action be given back.
Eum, qui tacitum fideicommissum in fraudem legis suscepit, eos quoque fructus, quos ante litem motam percepit, restituere cogendum respondi, quod bonae fidei possessor fuisse non videtur exemplo bonorum fisco vindicatorum. post motam de tacito fideicommisso controversiam ante pretia fructuum percepta cum usuris esse restituenda respondi, sed omnium fructuum quorum pretia percepta fuerant: quod si fructus in usu habuit, eorum pretia tantum restitui satis erit. sed divus severus bonorum tacite relictorum citra distinctionem temporis fructus dumtaxat deberi, non etiam usuras eorum benigne decrevit: quo iure utimur.
I replied that one who has undertaken a tacit fideicommissum in evasion of the law must be compelled to restore also those fruits which he received before litigation was initiated, because he does not seem to have been a possessor in good faith, by the example of goods vindicated to the fisc. After a controversy about the tacit fideicommissum has been set in motion, I replied that the prices of the fruits previously received must be restored with interest—but of all the fruits whose prices had been received; but if he had the fruits in use, it will be enough that only their prices be restored. But the deified Severus graciously decreed that, for goods left tacitly, the fruits only are owed without distinction of time, and not also their interest: which rule we use.
Bonis universis ex causa taciti fideicommissi fisco restitutis heredem onus aeris alieni non spectare convenit: nec aliud servatur morte non defensa. si quid tamen ob aditam hereditatem actionibus aut servitutibus confusis amiserit, auxilio restitutionis non merebitur.
With all the goods, by reason of a tacit fideicommiss, having been restored to the fisc, it is agreed that the burden of debt does not concern the heir; nor is anything else observed where the death has not been defended. If, however, on account of having entered upon the inheritance he has lost something, with actions or servitudes having been merged, he will not merit the aid of restitution.
Pro parte heres institutus praedii legatum acceperat et in hereditate non capienti restituendi tacitum ministerium susceperat. quamquam legatum pro ipsius parte non constitisset ideoque portionem istam pro herede possideret, tamen ei praedium integrum esse relinquendum respondi: neque enim rationem iuris ac possessionis varietatem inducere divisionem voluntatis.
A person instituted heir for a share had received a legacy of a praedium and had undertaken the tacit duty of restoring it to one who could not take under the inheritance. Although the legacy had not been constituted for his share and therefore he possessed that portion as heir, nevertheless I replied that the praedium had to be left to him entire: for the distinction between right and possession does not introduce a division of the will.
Tutorem, qui pupilli sui nomine falsum vel inofficiosum testamentum dixit, non perdere sua legata, si non optinuerit, optima ratione defenditur et, si libertum patris pupilli sui nomine capitis accusaverit, non repelli a bonorum possessione contra tabulas, quia officii necessitas et tutoris fides excusata esse debet. nec quisquam iudicum calumnia notabit tutorem, qui non suis simultatibus accusationem sub nomine pupilli instituit, sed cogente forte matre pupilli vel libertis patris instantibus. et si tutor reum aliquem postulaverit pupilli nomine et ideo non sit exsecutus, quod interim ad pubertatem pupillus pervenerit, non oportet dici in turpillianum eum senatus consultum incidisse.
It is defended on the best reasoning that a guardian who, in the name of his ward, has alleged a forged or inofficious testament does not lose his own legacies if he does not prevail; and that, if he has, in the name of his ward, accused on a capital charge the freedman of the ward’s father, he is not to be repelled from possession of the goods against the will (contra tabulas), because the necessity of duty and the guardian’s good faith ought to be excused. Nor will any of the judges mark the guardian with calumny, who did not institute the accusation under the ward’s name out of his own enmities, but perhaps with the mother of the ward compelling or the freedmen of the father pressing. And if the guardian has demanded a defendant in the ward’s name and for that reason has not carried it through, because in the meantime the ward has reached puberty, it ought not to be said that he has fallen under the Turpillian senatorial decree.
for the rights are distinct, although several have devolved upon the same person—one thing for the tutor (guardian), another for the legatee; and since he has brought the accusation not by the right of his own person, but of the ward, he ought not to merit a proper (personal) penalty. finally, the things left to the ward in that testament perish, unless they are conserved by the emperor: thus he is the accuser, he the defender, and as it were a patron. the same also Sabinus wrote in his books to Vitellius.
Si quilibet heres ex cuiuscumque testamento tacite rogatus fuerit, ut quadrantem, quem legis falcidiae beneficio retinuit, non capienti restituat, aeque locus erit senatus consulto: neque enim multum intererit inter tale fideicommissum et cum quis id, quod ad se ex hereditate pervenerit, restituere rogatus sit.
If any heir, from whatever testament, shall have been tacitly requested to restore to one not capable of taking the quarter which he retained by benefit of the Lex Falcidia, the senatus-consultum will apply equally; for there will not be much difference between such a fideicommissum and when someone has been asked to restore that which has come to him from the inheritance.