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Dig. 35.3.0. Si cui plus, quam per legem falcidiam licuerit, legatum esse dicetur.
35.2.0. On the Falcidian law.
Dig. 35.3.0. If it is said that more has been bequeathed to someone than is allowed by the Falcidian law.
Dies autem incertus est, cum ita scribitur " heres meus cum morietur, decem dato": nam diem incertum mors habet eius. et ideo si legatarius ante decesserit, ad heredem eius legatum non transit, quia non cessit dies vivo eo ^ ea^, quamvis certum fuerit moriturum heredem.
However, the day is uncertain, when it is written thus " my heir, when he shall die, give ten": for the day of his death is uncertain. And therefore, if the legatee has died earlier, the legacy does not pass to his heir, because the day had not fallen due while he ^ she^ was alive, although it was certain that the heir would die.
Condicionum quaedam sunt, quae quandoque impleri possunt etiam vivo testatore, ut puta " si navis ex asia venerit", nam quandoque venerit navis, condicioni paritum videtur: quaedam, quae non nisi post mortem testatoris " si decem dederit" " si capitolium ascenderit": nam ut paruisse quis condicioni videatur, etiam scire debet hanc condicionem insertam: nam si fato fecerit, non videtur obtemperasse voluntati.
Some conditions are such that they can sometimes be fulfilled even while the testator is alive, for instance, " if a ship has come from Asia"; for whenever the ship has come, it is deemed that the condition has been complied with: others are such as cannot be fulfilled except after the death of the testator, " if he shall have given ten," " if he shall have ascended the Capitol": for, in order that someone may seem to have obeyed the condition, he must also know that this condition has been inserted; for if he has done it by chance, he is not regarded as having obeyed the intention.
Si servos certos quis manumisisset, heres esse iussus erat. quibusdam ex his ante mortuis neratius respondit defici eum condicione nec aestimabat, parere posset condicioni nec ne. sed servius respondit, cum ita esset scriptum " si filia et mater mea vivent" altera iam mortua, non defici condicione. idem est et apud labeonem scriptum.
If someone had manumitted certain slaves, he was ordered to be heir. With some of these having died beforehand, Neratius responded that he failed the condition, nor did he reckon whether he could comply with the condition or not. But Servius responded that, when it had been written thus, “if my daughter and my mother shall live,” with one of them already dead, the condition is not considered to fail. The same is written also by Labeo.
Mucianae cautionis utilitas consistit in condicionibus, quae in non faciendo sunt conceptae, ut puta " si in capitolium non ascenderit" " si stichum non manumiserit" et in similibus: et ita aristoni et neratio et iuliano visum est: quae sententia et constitutione divi pii comprobata est. nec solum in legatis placuit, verum in hereditatibus quoque idem remedium admissum est.
The utility of the Mucian caution consists in conditions that are conceived in not-doing, for instance, "if he shall not ascend the Capitol," "if he shall not manumit Stichus," and the like: and thus it seemed to Ariston and Neratius and Julian; which opinion was also approved by the constitution of the deified Pius. Nor has it been settled only in legacies, but the same remedy has also been admitted in inheritances.
Unde si uxor maritum suum, cui dotem promiserat, ita heredem scripserit ex parte: " si dotem, quam ei promisi, neque petierit neque exegerit", denuntiare eum posse coheredi paratum se accepto facere dotem vel cavere et ita adire posse hereditatem. sed si ex asse sit institutus maritus sub ea condicione, quoniam non est cui caveat, non impediri eum, quo minus adeat hereditatem: nam iure ipso videtur impleta condicio eo, quod non est, quem possit de dote convenire ipse adeundo hereditatem.
Whence, if a wife has written her husband, to whom she had promised a dowry, as heir in part in this way: "if the dowry which I promised him he neither shall demand nor exact," he can give notice to the coheir that he is ready to treat the dowry as paid by acceptilation or to give security, and thus can enter upon the inheritance. But if the husband has been instituted for the whole (ex asse) under that condition, since there is no one to whom he might give security, he is not hindered from entering upon the inheritance: for by the law itself the condition seems fulfilled, on the ground that, by his entering upon the inheritance, there is no one whom he could sue concerning the dowry.
Si quis ita legaverit: " dum uxor mea cum filio erit, heres meus ei tantum dato", si ea latitans patronum de medio discessit, ut tamen consilium retineret habendi secum liberos, deberi ei legatum trebatius et labeo aiunt, quia non omne momentum exigendum sit ut cum liberis sit, sed si eam mentem et id propositum habeat, ne filium a semet dimittat neve per eam stet, quo minus cum ea filius educetur.
If someone has bequeathed thus: "so long as my wife shall be with the son, let my heir give to her only," if she, lying low, withdrew out of the way from her patron, yet so as to retain the plan of having the children with her, Trebatius and Labeo say that the legacy is owed to her, because it is not to be required that she be with the children at every moment, but that she have that mind and that purpose, not to send the son away from herself, nor that it be through her that the son be any the less reared with her.
Haec condicio " filiae meae cum nupserit" talis est, ut qui testatus est impleri solummodo condicionem voluerit, non satis egerit quando: et ideo et si vivo testatore nupserit post testamentum factum, inpleta condicio videtur, praesertim cum condicio haec talis est, ut semel impleri debeat. sed enim non omnes coniunctiones implent condicionem: puta enim nondum nubilis aetatis in domum mariti deducta non paruit condicioni. sed et si ei coniuncta sit, cuius nuptiis ei interdictum sit, idem dicemus.
This condition " my daughter when she marries" is such that the one who has made a will wanted only the condition to be fulfilled, and did not sufficiently provide when; and therefore, even if, while the testator is alive, she marries after the testament has been made, the condition is seen as fulfilled, especially since this condition is such that it ought to be fulfilled only once. But not all conjunctions fulfill the condition: for example, if she, not yet of marriageable age, is led into a husband’s house, she has not complied with the condition. And likewise, if she is joined to one whose nuptials are interdicted to her, we will say the same.
But whether, by marrying afterwards, she can comply with the condition, as if she had not married, can be doubted: and if the testator had in mind the first nuptial yoke, I think the condition has failed; yet, in a liberal spirit, it should be said that a condition not yet fulfilled is to be treated as not failed.
Si sic legatum sit " si navis ex asia venerit" et ignorante testatore navis venerit testamenti facti tempore, dicendum pro impleta haberi. et si cui sic legatum est " cum pubes erit", simili modo hoc erit dicendum.
If a legacy has been thus bequeathed " if a ship has come from Asia" and, the testator being unaware, the ship had come at the time the testament was made, it must be said to be held as fulfilled. and if to someone a legacy is thus bequeathed " when he will be of age", in a similar way this will be said.
Item sciendum est promiscuas condiciones post mortem impleri oportere, si in hoc fiant, ut testamento pareatur, veluti " si capitolium ascenderit" et similia, non promiscuas etiam vivo testatore existere posse, veluti " si titius consul factus fuerit".
Likewise it should be known that promiscuous conditions ought to be fulfilled after death, if they are made for this purpose, that the testament be obeyed, for example " si he shall have ascended the Capitol" and the like; non-promiscuous can also come to pass while the testator is alive, for example " si Titius shall have been made consul".
Si ita legatum sit: " quoniam filius maior ex arca mea decem sustulit, heres minor filius decem e medio sumito", debetur legatum, quia idcirco relictum est, ut condicio filiorum exaequaretur. et sane haec causa est: nam causa in praeteritum, poena in futurum confertur.
If a legacy be thus bequeathed: " since the elder son has taken ten from my chest, let the heir, the younger son, take ten from the common stock", the legacy is owed, because it was for this reason left, that the condition of the sons might be equalized. And indeed this is the cause: for cause is referred to the past, penalty to the future.
Demonstratio falsa est, veluti si ita scriptum sit: " servum stichum, quem de titio emi" " fundum tusculanum, qui mihi a seio donatus est". nam si constat, de quo homine, de quo fundo senserit testator, ad rem non pertinet, si is, quem emisse significavit, donatus esset, aut quem donatum sibi esse significaverat, emerit.
The description is false, for example if it is written thus: " servum stichum, quem de titio emi" " fundum tusculanum, qui mihi a seio donatus est". For if it is clear which person, which estate the testator had in mind, it is irrelevant if the one whom he indicated he had bought had in fact been given, or the one whom he had indicated had been given to him, he had bought.
Igitur et si ita servus legatus sit: " stichum cocum", " stichum sutorem titio lego", licet neque cocus neque sutor sit, ad legatarium pertinebit, si de eo sensisse testatorem conveniat: nam et si in persona legatarii designanda aliquid erratum fuerit, constat autem, cui legare voluerit, perinde valet legatum ac si nullus error interveniret.
Therefore, even if a slave has been bequeathed thus: " Stichus the cook", " Stichus the shoemaker I bequeath to Titius", although he is neither a cook nor a shoemaker, it will pertain to the legatee, if it is agreed that the testator had him in mind: for even if, in designating the person of the legatee, something was in error, yet if it is established to whom he wished to bequeath, the legacy is valid just as if no error had intervened.
Quod autem iuris est in falsa demonstratione, hoc vel magis est in falsa causa, veluti ita " titio fundum do, quia negotia mea curavit", item " fundum titius filius meus praecipito, quia frater eius ipse ex arca tot aureos sumpsit": licet enim frater huius pecuniam ex arca non sumpsit, utile legatum est.
But what the law is in the case of a false description, this is even more so in the case of a false cause, as for example thus: " to Titius I give the estate, because he managed my affairs," likewise " the estate I assign by preemption to Titius my son, because his brother himself took from the chest so many gold coins": for although this man’s brother did not take the money from the chest, the legacy is effective.
At si condicionaliter concepta sit causa, veluti hoc modo: " titio, si negotia mea curavit, fundum do": " titius filius meus, si frater eius centum ex arca sumpsit, fundum praecipito", ita utile erit legatum, si et ille negotia curavit et huius frater centum ex arca sumpsit.
But if the cause has been conceived conditionally, for example in this manner: " titio, if he has managed my affairs, I give the farm": " titius my son, if his brother has taken one hundred from the chest, I direct him to take the farm as a pre-legacy", thus the legacy will be valid, if both he has managed the affairs and this man’s brother has taken one hundred from the chest.
Quod si cui in hoc legatum sit, ut ex eo aliquid faceret, veluti monumentum testatori vel opus aut epulum municipibus faceret, vel ex eo ut partem alii restitueret: sub modo legatum videtur.
But if to someone a legacy has been made on this basis, that from it he should do something—for instance, make a monument for the testator, or a work, or a banquet for the municipal citizens—or from it that he should restore a part to another: the legacy is considered to be subject to a mode (charge).
In condicionibus primum locum voluntas defuncti optinet eaque regit condiciones. denique et in ea condicione " si filia mea cum titio nupta erit" placuit non semper mortis tempus observari, sed voluntate patrocinante tardius produci.
In conditions the will of the deceased obtains the first place, and by it the conditions are governed. denique even in that condition ' if my daughter shall be married to Titius' it has been decided that the time of death is not always to be observed, but, with his intention advocating, it may be carried forward later.
Haec scriptura " si primus heres erit, damnas esto dare" pro condicione non est accipienda: magis enim demonstravit testator, quando legatum debeatur, quam condicionem inseruit: nisi forte hoc animo fuerat testator, ut faceret condicionem. proinde nec illud dicendum erit facere condicionem: " quidquid mihi ephesi oportet dari, hoc do lego". sed si sic leget: " si primus mihi heres non erit, damnas esto secundus dare" et primus heres exstitit, legatum non debebitur: si primus adierit cum secundo, non exstitisse condicionem nequaquam ambigendum est.
This wording " if the first will be heir, let him be under obligation to give" is not to be taken as a condition: for the testator rather demonstrated when the legacy should be owed than inserted a condition—unless perhaps the testator had this intention, to make a condition. Accordingly, neither will that be said to make a condition: " whatever ought to be given to me at Ephesus, this I give and bequeath". But if he bequeaths thus: " if the first will not be my heir, let the second be under obligation to give" and the first heir has come into being, the legacy will not be owed: if the first has entered upon the inheritance together with the second, it is by no means to be doubted that the condition has not existed.
Si a primo ita legatum est " si secundus heres non erit, viginti titio dato " , simili modo a secundo eidem titio ita legatum est: " si primus heres non erit " et ambo heredes exstiterint, legati condicio deficiet: si alter heres exstitit, alter heres non exstitit, legatum debebitur.
If from the first (heir) a legacy has been left thus, " si secundus heres non erit, viginti titio dato ", and in like manner from the second to the same Titius a legacy has been left thus: " si primus heres non erit " and both heirs have become heirs, the condition of the legacy will fail; if one heir has become heir and the other has not, the legacy will be owed.
Multum interest, condicio facti an iuris esset: nam huiusmodi condiciones " si navis ex asia venerit" " si titius consul factus erit", quamvis impletae essent, impedient heredem circa adeundam hereditatem, quamdiu ignoraret eas impletas esse: quae vero ex iure venient, in his nihil amplius exigendum, quam ut impletae sint. veluti si quis se filium familias existimat, cum sit pater familias, poterit adquirere hereditatem: quare et ex parte heres scriptus, qui ignorat, an tabulae testamenti apertae sint, adire hereditatem poterit.
Much matters whether the condition be of fact or of law: for conditions of this sort, " if a ship shall have come from Asia" " if Titius shall have been made consul", although they were fulfilled, will hinder the heir in entering upon the inheritance, so long as he is unaware that they have been fulfilled: but those that come from law, in these nothing further is to be required than that they be fulfilled. For example, if someone supposes himself to be a filius familias, whereas he is a paterfamilias, he will be able to acquire the inheritance: wherefore even an heir appointed as to a share, who does not know whether the testamentary tablets have been opened, will be able to enter upon the inheritance.
Quotiens sub condicione mulieri legatur " si non nupserit" et eiusdem fidei commissum sit, ut titio restituat, si nubat, commode statuitur et si nupserit, legatum eam petere posse et non esse cogendam fideicommissum praestare.
Whenever a legacy is bequeathed to a woman under the condition “if she does not marry,” and a fideicommissum of the same is imposed that she restore it to titio if she does marry, it is suitably established that even if she marries, she can claim the legacy and is not to be compelled to furnish the fideicommissum.
Qui duobus heredibus decem dare iussus est et fundum sibi habere, verius est, ut condicionem scindere non possit, ne etiam legatum scindatur. igitur quamvis alteri quinque dederit, nullam partem fundi vindicabit, nisi alteri quoque adeunti hereditatem reliqua quinque numeraverit aut illo omittente hereditatem ei, qui solus adierit hereditatem, tota decem dederit.
He who has been ordered to give ten to two heirs and to have the farm for himself, it is more correct that he cannot sever the condition, lest the legacy also be severed. Therefore, although he has given five to one of them, he will claim no part of the farm, unless he also pays out the remaining five to the other who enters upon the inheritance, or, if that one renounces the inheritance, he gives the whole ten to the one who alone has entered upon the inheritance.
Iure civili receptum est, quotiens per eum, cuius interest condicionem impleri, fit, quo minus impleatur, ut perinde habeatur, ac si impleta condicio fuisset: quod plerique et ad legata et ad heredum institutiones perduxerunt. quibus exemplis stipulationes quoque committi quidam recte putaverunt, cum per promissorem factum esset, quo minus stipulator condicioni pareret.
It is a received rule in the civil law, that whenever through the act of the one whose interest it is that the condition be fulfilled it comes about that it is not fulfilled, it shall be held in the same way as if the condition had been fulfilled; and most have extended this both to legacies and to institutions of heirs. By these examples some have rightly thought that stipulations too are thereby committed (i.e., become operative), when it was by the promisor’s doing that the stipulator did not comply with the condition.
Cum vir uxori, quandoque liberos habebit, fundum legat, si mulier divortio facto liberos ex alio procreaverit, deinde soluto secundo matrimonio ad priorem maritum redierit, non intellegitur expleta condicio, quod testatorem verisimile non est de his liberis sensisse, qui se vivo ex alio suscepti fuissent.
When a husband bequeaths an estate to his wife, on condition that she will at some time have children, if the woman, after a divorce, has procreated children by another, and then, the second marriage having been dissolved, has returned to her former husband, the condition is not understood to be fulfilled; for it is not likely that the testator had in mind those children who would have been conceived by another during his lifetime.
Haec scriptura " si viginti dederit aut iuraverit se aliquid facturum" unam condicionem exprimit habentem duas partes: quare si quicumque heres scriptus erit sub condicione " si iuraverit se decem daturum" aut " monumentum facturum", quamvis verbis edicti ad hereditatem vel legatum admittatur, tamen compellitur facere id quod facturum se iurare iussus est solo iureiurando remisso.
This wording "if he has given twenty or has sworn that he will do something" expresses a single condition having two parts: wherefore, if anyone has been instituted heir under the condition "if he has sworn that he will give ten" or "will make a monument," although by the words of the edict he is admitted to the inheritance or the legacy, nevertheless he is compelled to do that which he was ordered to swear that he would do, with only the oath being remitted.
Cum eadem res alteri pure, alteri sub condicione legatur aut cum alter pure, alter sub condicione heres scriptus est, pars legati vel hereditatis deficiente condicione adcrescit etiam heredi eius, cui pure legatum vel hereditas data est, si tamen hereditas eius adita fuerit.
When the same thing is bequeathed to one party purely and to another under a condition, or when one is written as heir purely and another under a condition, the share of the legacy or of the inheritance, the condition failing, accrues also to his heir, namely of the one to whom the legacy or inheritance was given purely, provided, however, that his inheritance has been entered upon.
In testamento quidam scripserat, ut sibi monumentum ad exemplum eius, quod in via salaria esset publii septimii demetrii, fieret: nisi factum esset, heredes magna pecunia multare et cum id monumentum publii septimii demetrii nullum repperiebatur, sed publii septimii damae erat, ad quod exemplum suspicabatur eum qui testamentum fecerat monumentum sibi fieri voluisse, quaerebant heredes, cuiusmodi monumentum se facere oporteret et, si ob eam rem nullum monumentum fecissent, quia non repperirent, ad quod exemplum facerent, num poena tenerentur. respondit, si intellegeretur, quod monumentum demonstrare voluisset is qui testamentum fecisset, tametsi in scriptura mendum esset, tamen ad id, quod ille se demonstrare animo sensisset, fieri debere: sin autem voluntas eius ignoraretur, poenam quidem nullam vim habere, quoniam ad quod exemplum fieri iussisset, id nusquam exstaret, monumentum tamen omnimodo secundum substantiam et dignitatem defuncti exstruere debere.
in his testament a certain man had written that a monument should be made for himself after the exemplar of that which was on the salarian way, of publius septimius demetrius; if it were not made, to mulct the heirs in a great sum of money; and when no monument of publius septimius demetrius was found, but there was one of publius septimius dama, after the exemplar of which the maker of the testament was suspected to have wished a monument to be made for himself, the heirs asked what sort of monument they ought to make, and whether, if for that reason they made no monument, because they did not find after what exemplar they should make it, they would be held to the penalty. he replied that, if it were understood what monument the testator had wished to demonstrate, although there was an error in the writing, nevertheless it ought to be made according to that which he had felt in mind that he was demonstrating; but if his will were unknown, the penalty indeed would have no force, since that after the exemplar of which he had ordered it to be made existed nowhere; nevertheless in any case a monument ought to be constructed according to the substance and dignity of the deceased.
" attia uxor mea optato philargyrum puerum, agatheam ancillam, qui mei erunt cum moriar": is qui testamentum fecit agatheam, quam testamenti tempore habuit, vendidit et postea ancillas emit, ex his uni agatheae nomen imposuit: quaesitum est, an haec legata videretur. respondit legatam videri.
" attia, my wife, by way of option, Philargyrus, a boy, [and] Agathea, a maidservant, who will be mine when I die": the one who made the testament sold Agathea, whom he had at the time of the testament, and afterwards bought maidservants; to one of these he imposed the name Agathea. It was asked whether this one should be seen as bequeathed. He responded that she is to be considered bequeathed.
Si separatim mihi totus fundus pure, tibi sub condicione legatus fuerit et tu decesseris, antequam condicio exstiterit: non habebo necessitatem implere condicionem, utpote cum, etiamsi condicio defecerit, pars quam vindicaturus eras mihi adcrescat.
If, separately, the whole estate has been bequeathed to me purely, and to you under a condition, and you have died before the condition has come into existence: I shall have no necessity to fulfill the condition, inasmuch as, even if the condition should fail, the share which you were going to vindicate accrues to me.
In testamento ita erat scriptum: " stichus et pamphila liberi sunto et si in matrimonium coierint, heres meus his centum dare damnas esto": stichus ante apertas tabulas decessit. respondit partem stichi defectam esse: sed et pamphilam defectam condicione videri ideoque partem eius apud heredem remansuram. sed et si uterque viveret et stichus nollet eam uxorem ducere, cum mulier parata esset nubere, illi quidem legatum deberetur, stichi autem portio inutilis fiebat.
In the testament it was written thus: " stichus and pamphila shall be free, and if they have come together in matrimony, my heir shall be bound to give them 100": stichus died before the tablets were opened. He responded that the share of stichus had lapsed; but also that pamphila was to be regarded as having failed the condition, and therefore her share would remain with the heir. But also, if both were alive and stichus were unwilling to take her as wife, while the woman was ready to marry, to her indeed the legacy would be owed, but the portion of stichus became inoperative.
for when a legacy has been left to one person thus: " titio, if he takes seia as wife, my heir is to give one hundred", if indeed seia dies, it is understood as a failure by reason of the condition; but if he himself dies, he transmits nothing to his own heir, because by his death the condition is understood to have failed; but with both alive, if indeed he is unwilling to marry, since by his own act the condition fails, he obtains nothing from the legacy; however, if the woman is unwilling to marry, while he himself was ready, the legacy is owed to him.
Quamvis rationes reddere nihil aliud sit quam reliqua solvere, tamen si et statuliberi et heredis culpa, sine fraude tamen servi minus solutum sit et bona fide redditas esse rationes existimatum fuerit, liberum fore: et nisi ita observetur, neminem, qui sub condicione ita manumissus esset, umquam ad libertatem perventurum, si per imprudentiam minus solutum esset. haec ita accipienda ait, si quando is, qui rationes reddere iussus sit, per aliquem errorem sine dolo malo ita rationes ediderit, ut dominus quoque circa computationem erraret.
Although to render accounts is nothing other than to settle the balance, nevertheless, if by the fault both of the statuliber and of the heir, yet without fraud on the part of the slave, less has been paid, and it has been judged that the accounts were rendered in good faith, he will be free; and unless this is so observed, no one who had been manumitted under such a condition would ever attain to liberty, if through imprudence less had been paid. He says these things are to be taken thus, whenever the one who has been ordered to render accounts, through some error and without dolus malus, has produced the accounts in such a way that the master also erred in the computation.
Sed si cui quasi liberto, id est inter libertos legatum fuerit, non idcirco legatum amittit, quia postea anulos ab imperatore acceperit: nam honor eius auctus est, non condicio mutata: et ita divi severus et antoninus rescripserunt.
But if a legacy has been left to someone as if to a freedman—that is, among the freedmen—he does not on that account lose the legacy because afterwards he has received rings from the emperor: for his honor has been augmented, not his condition changed: and thus the deified Severus and Antoninus wrote in a rescript.
Quid ergo, si quis ita scripserit: " stichum et pamphilum titio do lego, si mei erunt cum moriar" et unum ex his alienaverit, an vel alter possit a legatario vindicari? placet vindicari, nam hunc sermonem, licet pluralis sit, pro eo oportet accipi, atque si separatim dixisset: " stichum, si meus erit cum moriar".
What then, if someone has written thus: " Stichus and Pamphilus I give and bequeath to Titius, if they will be mine when I die," and he has alienated one of these—can even the other be vindicated by the legatee? It is held that it can be vindicated; for this wording, although it is plural, ought to be taken as if he had said separately: " Stichus, if he will be mine when I die."
Nominatim alicui legatur ita " lucio titio" an per demonstrationem corporis vel artificii vel officii vel necessitudinis vel adfinitatis, nihil interest: nam demonstratio plerumque vice nominis fungitur. nec interest, falsa an vera sit, si certum sit, quem testator demonstraverit.
Whether something is bequeathed to someone by name, as thus, " Lucius Titius," or by a description of body, or craft, or office, or relationship (necessitudo), or affinity, it makes no difference: for a description very often serves in the stead of a name. Nor does it matter whether it is false or true, if it is certain whom the testator has indicated.
Publius maevius testamento suo ita cavit: " quisquis mihi heres heredesve erunt, do lego fideique eorum committo, uti dent gaio seio sororis meae filio in honorem consulatus quadringenta": vivo maevio seius consul designatus est et munus edidit: deinde ex calendis ianuariis consulatum ingressus est atque ita maevius decessit: quaero, an quadringenta seio debeantur. Marcellus respondit deberi,
Publius Maevius in his will provided thus: "whoever shall be my heir or heirs, I give, bequeath, and commit to their good faith, that they give to Gaius Seius, my sister’s son, in honor of the consulship, four hundred thousand": while Maevius was alive, Seius was consul-designate and put on the show: then from the Kalends of January he entered upon the consulship, and so Maevius died: I ask whether the four hundred thousand are owed to Seius. Marcellus answered that they are owed,
Titia codicillis de praediis, quae testamento septiciae reliquerat, ita cavit: " a te peto, septicia, ut filio meo, cum annorum sedecim esset, eadem praedia restitueres: quod si filius meus sedecim annos non impleverit, peto uti reddas ea restituas publio maevio et gaio cornelio". quaero, cum septicia decesserit, deinde filius quintum decimum annum agens defunctus sit, an repraesentetur fideicommissum quinto decimo anno impleto et heredes septiciae restituere id publio maevio et gaio cornelio debeant. Marcellus respondit septiciam ius, quod in his praediis habuisset, heredi suo reliquisse: etenim videri contra voluntatem testatricis repraesentationem fideicommissi desiderari, ut amplius ad substitutos perveniat, quam ad puerum pervenire vel a septicia vel ab heredibus potuisset. et verba quidem videntur repraesentare fideicommissum, sed non est verisimile, ut maturius voluerit testatrix ad substitutos id transferre.
Titia by codicils made provision thus about the estates which she had left by testament to Septicia: " I ask of you, Septicia, that you restore the same estates to my son when he is sixteen years old: but if my son shall not have completed sixteen years, I ask that you give back, that you restore them to Publius Maevius and Gaius Cornelius." I ask, when Septicia has died, then the son, while in his fifteenth year, has died, whether the fideicommissum is to be "represented" (anticipated) with the fifteenth year completed, and the heirs of Septicia ought to restore it to Publius Maevius and Gaius Cornelius. Marcellus responded that Septicia had left to her own heir the right which she had had in these estates: for indeed it seems that, contrary to the will of the testatrix, anticipation of the fideicommissum is being sought, so that more should reach the substitutes than could have reached the boy either from Septicia or from her heirs. And indeed the words seem to "represent" (anticipate) the fideicommissum, but it is not likely that the testatrix wished to transfer it earlier to the substitutes.
Si quis eum, quem ipse manumittere non poterat, legaverit ita, ut eum legatarius manumitteret, etsi a legato non repellatur, non est compellendus, ut manumittat, quoniam totiens secundum voluntatem testatoris facere compellitur, quotiens contra legem nihil sit futurum. idque neratius scripsit, et tamen a legato non esse eum repellendum, quoniam magis legatarium aliquid commodum testator in hoc servo quam heredem habere voluisset.
If someone has bequeathed a person whom he himself could not manumit, on the condition that the legatee should manumit him, although he is not debarred from the legacy, he is not to be compelled to manumit, because one is compelled to do according to the will of the testator only insofar as nothing will be contrary to law. And Neratius wrote this, and yet that he is not to be repelled from the legacy, since the testator would have wished the legatee rather than the heir to have some advantage in this slave.
Si ita scripsero: " quantum codicillis titio legavero", licet codicillis legatum explicetur, tamen ex testamento valet solaque quantitas in codicillo delata est. nam et apud veteres legata talia fuere: " quantum ei per epistulam scripsero": " quantum ex illa actione detraxero, heres dato".
If I write thus: " whatever amount I shall have bequeathed to Titius by codicils", although the legacy is set forth in the codicils, nevertheless it is valid from the testament and only the amount has been conveyed in the codicil. For even among the ancients there were such legacies as: " as much as I shall have written to him by epistle"; " as much as I shall have deducted from that action, let the heir give."
Quae condicio ad genus personarum, non ad certas et notas personas pertineat, cum existimamus totius esse testamenti et ad omnes heredes institutos pertinere: at quae condicio ad certas personas accommodata fuerit, eam referre debemus ad eum dumtaxat gradum, quo hae personae institutae fuerunt.
A condition that pertains to a genus of persons, not to certain and known persons, we consider to be of the whole testament and to pertain to all heirs instituted; but a condition that has been accommodated to certain persons we ought to refer only to that grade (order) in which those persons were instituted.
Cum ita in testamento scriptum erat " ut aliquid in foro fiat" neque adscriptum erat in quo foro, labeo ait, si non appareat, quid mortuus senserit, in eius municipii foro faciendum, in quo is qui testamentum fecerit domicilium habuerit: quam sententiam ego quoque probo.
When it was written thus in the testament “that something be done in the forum,” and it was not appended in which forum, Labeo says that, if it does not appear what the deceased intended, it must be done in the forum of that municipium in which the one who made the testament had his domicile: which opinion I also approve.
Quidam ita legaverat: " si publius cornelius impensam, quam in fundum seianum feci, heredi meo dederit, tum heres meus publio cornelio fundum seianum dato". cascellius aiebat etiam pretium fundi dari debere, ofilius impensae verbo negat pretium significari, sed eos dumtaxat sumptus, quos in eum posteaquam emptus esset fecit. idem cinna scribit adiecto eo, quod non deductis fructibus impensarum ratio haberi debeat: et hoc magis verum puto.
someone had thus bequeathed: " if publius cornelius shall have given to my heir the expense which i incurred on the seianus estate, then let my heir give publius cornelius the seianus estate". cascellius said that even the price of the estate ought to be given; ofilius denies that by the word "expense" the price is signified, but only those outlays which he made upon it after it had been bought. the same cinna writes, adding this, that the reckoning of expenses ought to be had without the fruits being deducted: and this i think more true.
Quidam titio centum legaverat, deinde infra ita iusserat: " quas pecunias cuique legavi, eas heres meus, si mater mea moritur, dato": mortuo patre familias titius vixerat et viva matre familias decesserat. mortua matre heredibus titii legatum deberi ofilius respondit, quoniam non sub condicione esset legatum, sed ante legatum pure, deinde dies solvendi adiecta. videamus, inquit labeo, ne id falsum sit, quia nihil intersit, utrum ita scribatur: " quas pecunias cuique legavi, eas heres meus, si mater mea moritur, dato" an ita: " nisi mater mea moritur, ne dato": utrubique enim sub condicione vel datum vel ademptum esse legatum.
A certain man had bequeathed a hundred to Titius, and then below he had ordered thus: "the monies which I have bequeathed to each, let my heir, if my mother dies, give." After the paterfamilias had died, Titius lived on and, while the materfamilias was still alive, he died. Ofilius replied that, after the mother died, the legacy was owed to Titius’s heirs, since the legacy was not under a condition, but first was pure, and thereafter a day of payment was added. Let us see, says Labeo, that this is not false, because it makes no difference whether it is written thus: "the monies which I have bequeathed to each, let my heir, if my mother dies, give" or thus: "unless my mother dies, let him not give": in both cases the legacy is under a condition, either granted or taken away.
Dominus servo aureos quinque eius ^ ^ legaverat: " heres meus sticho servo meo, quem testamento liberum esse iussi, aureos quinque, quos in tabulis debeo, dato". nihil servo legatum esse namusa servium respondisse scribit, quia dominus servo nihil debere potuisset: ego puto secundum mentem testatoris naturale magis quam civile debitum spectandum esse, et eo iure utimur.
the master had bequeathed to his slave five gold pieces of his ^ ^: " let my heir give to Sticho, my slave, whom I ordered by testament to be free, five gold pieces which I owe on the tablets." Namusa writes that Servius replied that nothing had been bequeathed to the slave, because a master could have owed nothing to his slave; I think that, according to the testator’s intention, a natural rather than a civil debt ought to be regarded, and we use that law.
Qui dotalem fundum nullum habebat, ita legaverat: " fundum cornelianum, quem illa mihi doti dedit, ei heres dato". labeo ofilius trebatius responderunt fundum nihilo minus legatum esse, quia, cum fundus cornelianus in rerum natura sit, demonstratio falsa legatum non peremit.
He who had no dotal estate had thus bequeathed: " fundus Cornelianus, which she gave me as a dowry, let the heir give to him". labeo ofilius trebatius answered that the estate was nonetheless bequeathed, because, since the Cornelian estate exists in the nature of things, a false demonstration does not extinguish the legacy.
Thermus minor quorum arbitratu monumentum sibi fieri vellet testamento scripserat, deinde ita legaverat: " luciis publiis corneliis ad monumentum meum aedificandum mille heres meus dato". trebatius respondit pro eo ^ ea^ habendum ac si ita legatum esset, si satisdedissent se ita id monumentum ex ea pecunia facturos. labeo trebatii sententiam probat, quia haec mens testantis fuisset, ut ea pecunia in monumentum consumeretur: idem et ego et proculus probamus.
Thermus the younger had written in his testament by whose arbitration he would wish a monument to be made for himself; then he had bequeathed thus: " luciis publiis corneliis for constructing my monument, let my heir give a thousand". Trebatius responded that, in place of eo, ^ ea^ is to be taken, and that it is to be regarded as if it had been bequeathed thus, provided they gave surety that they would thus make that monument from that money. Labeo approves Trebatius’s opinion, because this would have been the mind of the testator, that that money be consumed on the monument: the same both I and Proculus approve.
Filio familias legatum est sub hac condicione " si in potestate patris mansisset": magis patri legatum videri ait et patrem suo nomine legatum petere. idem iuris esse et si servo similiter legetur: argumentum rei est, quod et si cibaria servis titii legentur, procul dubio domini est, non servorum legatum.
A legacy was bequeathed to a son in the family under this condition, "if he had remained under the power of his father": he says it seems rather to have been left to the father, and that the father seeks the legacy in his own name. The same law holds even if it is similarly bequeathed to a slave: the proof of the matter is that even if rations are bequeathed to the slaves of Titius, beyond doubt it is the master’s legacy, not the slaves’.
Plautius. rogatus est heres a liberto testatore, ut perceptis sibi decem totam hereditatem revenderet: postea patronus defuncti bonorum possessionem contra tabulas petierat et partem hereditatis, quae debebatur, abstulerat. proculus cassius fideicommissarium pro rata quod solvit repetere debere aiunt.
Plautius. the heir was asked by the freedman testator to re-sell the whole inheritance, after taking ten for himself: afterwards the patron of the deceased had sought bonorum possession against the will and had carried off the share of the inheritance that was due. proculus and cassius say that the fideicommissary ought to recover, pro rata, what he paid.
Item scinditur ius dandi, si is cui legatum est non potest partem hereditatis sibi relictam totam capere: nam verius est partem eum praestare debere, partem illos, qui auferunt ab eo, quod plus relictum est, quam a lege conceditur.
Likewise the right of giving is split, if the person to whom the legacy has been left cannot take the whole of the share of the inheritance left to him: for the truer view is that he ought to furnish a part, and a part those should furnish who take away from him that which has been left in excess of what is conceded by the law.
Neratius libro primo responsorum scribit, ex duobus scriptis heredibus si unus rogatus sit tibi hereditatem restituere, tu titio certam summam dare, et beneficio legis falcidiae in restituendo heres utatur, quanto minus tibi praestiterit, tanto minus te titio praestare non esse iniquum.
Neratius in the first book of his Responses writes that, where out of two heirs instituted by will one has been asked to restore the inheritance to you, and you to give Titius a certain sum, and the heir, in restoring, avails himself of the benefit of the Lex Falcidia, the less he has rendered to you, by so much the less it is not inequitable that you render to Titius.
Qui heredi dare iussus est, servo alieno instituto non domino dare debet. nam et si alio herede instituto iussus est servo titii dare, ipsi servo datur, quia quae facti sunt, non transeunt ad dominum, quemadmodum, si mihi aut servo titii stipulatus sim, non titio, sed servo eius dari potest: et haec vera sunt.
He who has been ordered to give to an heir, if an alien slave has been instituted, ought not to give to the owner. For even if, with another heir having been instituted, he has been ordered to give to Titius’s slave, it is given to the slave himself, because things of fact do not pass to the owner; just as, if I have stipulated for myself or for Titius’s slave, it can be given not to Titius but to his slave: and these things are true.
Plautius. uni ex heredibus fundum legavi, si centum heredibus dedisset: deducet suam partem hereditariam et reliquam summam heredibus pro portione eorum dabit. at si heres ex parte ita institutus esset, si heredibus decem dedisset, non aliter esset heres, quam si tota decem coheredibus dedisset, quia non ante ad hereditatem admitteretur, quam si omnem summam dedisset.
Plautius. I bequeathed a farm to one of the heirs, on condition that he give a hundred to the heirs: he will deduct his own hereditary share and will give the remaining sum to the heirs in proportion to their shares. But if an heir had been instituted as to a part on this condition, that he give ten to the heirs, he would be heir no otherwise than if he had given the whole ten to the coheirs, because he would not be admitted to the inheritance before he had given the entire sum.
Iulianus ait, si heredi legatarius, cui sub condicione legatum erat " si heredi decem dederit" id, quod ei deberet heres, accepto tulisset, non quidem videri condicioni paruisse, quasi dederit: sed quasi per heredem stet, quo minus pareat, posse petere legatum, quasi exstiterit condicio.
Julian says that if, to the heir, a legatee—whose legacy was under the condition “if he gives ten to the heir”—has entered as received (by way of receipt) that which the heir owed to him, he is indeed not considered to have complied with the condition, as though he had given; but since it stands by the heir that he does not comply, he can demand the legacy, as if the condition had come to pass.
Si in diem exempli gratia centensimum imperatum est statulibero, ut pecuniam solveret, neque initium temporis eius quod futurum esset, adscriptum est, adita hereditate cedere dies incipit, quia absurdum visum est ante diem praeterire, quam is existeret, quem oportet accipere. et hoc in omnibus, qui heredi dare iussi sunt, dicendum est: igitur et legatario ex adita hereditate ad parendum condicioni tempus computabitur.
If, for example, a statuliber has been ordered for the hundredth day to pay money, and the beginning of the period that was to be has not been written in, the days begin to run upon the inheritance being entered, because it seemed absurd that a day should pass before there existed the one who ought to receive it. And this must be said in all cases of those who have been ordered to give to the heir: therefore even for a legatee the time for complying with the condition will be computed from the acceptance of the inheritance.
Servo libertatem ita dedit: " ille, si meus erit, liber esto": legatum vel hereditatem sine condicione ei dedit: deinde eum alienavit. debebitur domino eius legatum vel hereditas et iussu eius adiri poterit: nam id expressit " si meus erit" in libertate danda, quo futurum erat ut impediretur libertas, etiamsi expressum non esset. saepenumero tamen mutatur rei effectus, quamquam id expresserit testator, quod et si non fecisset, inesset tamen.
He gave freedom to a slave thus: " that man, if he shall be mine, let him be free": he gave to him a legacy or an inheritance without condition: then he alienated him. The legacy or inheritance will be owed to his master, and at his order it can be entered upon: for he expressed " if he shall be mine" in the granting of liberty, whereby it would have come about that the liberty was impeded, even if it had not been expressed. Very often, however, the effect of the matter is changed, although the testator expressed that which, even if he had not done so, would nevertheless have been inherent.
Si cui libertas data sit directo sub hac condicione " si rationes reddidisset", arbitrum a consulibus divus pius dari permisit his verbis: " aditi a vobis amplissimi consules arbitrum dabunt, qui excussis rationibus non tantum quae reliqua sunt epaphroditi constituent, verum etiam quas rationes quaeque instrumenta tradere aut exhibere dominis suis debeat: cuius sententiae cum fuerit satisfactum, non impedietur epaphroditi libertas".
If to someone freedom has been given directly under this condition "if he should render accounts," the deified Pius permitted that an arbiter be given by the consuls with these words: "When approached by you, the most distinguished consuls will appoint an arbiter, who, the accounts having been examined, will determine not only what balances of Epaphroditus remain, but also what accounts and what instruments he ought to hand over or exhibit to his masters; and when there has been satisfaction of that decision, the freedom of Epaphroditus will not be impeded."
Nonnumquam contingit, ut quaedam nominatim expressa officiant, quamvis omissa tacite intellegi potuissent nec essent offutura. quod evenit, si alicui ita legatur: " titio decem do lego, si maevius capitolium ascenderit". nam quamvis in arbitrio maevii sit, an capitolium ascendat et velit efficere, ut titio legatum debeatur, non tamen poterit aliis verbis utiliter legari: " si maevius voluerit, titio decem do": nam in alienam voluntatem conferri legatum non potest. inde dictum est: expressa nocent, non expressa non nocent.
Sometimes it happens that certain things, expressly specified by name, do harm, although, if omitted, they could have been understood tacitly and would not have been harmful. This occurs if a legacy is thus left to someone: " titio I give and bequeath ten, if maevius shall have ascended the Capitol." For although it is in maevius’s discretion whether he ascends the Capitol and is willing to bring it about that a legacy be owed to titio, nevertheless it cannot be validly bequeathed in other words: " if maevius shall have wished, I give ten to titio": for a legacy cannot be referred into another’s will. Hence it has been said: expressed things harm; unexpressed do not harm.
Si quis legata, quibus dies adposita non esset, annua bima trima die dari iussit et alicui, cum pubes esset, pecuniam legavit, id quoque legatum annua bima trima die post pubertatem praestandum esse in commentariis gaii scriptum est, quia magis condicio quam dies legato adiecta esset. contra ego sentio, quia fere dies ponitur ad proroganda ea, quae ad praesens tempus, non etiam quae in futurum legata sunt, diesque pubertatis habet aliquam temporis demonstrationem.
If someone ordered legacies, to which no date had been added, to be given in a year, in two years, or in three years, and bequeathed money to someone when he should be of age, it is written in the Commentaries of Gaius that that legacy too must be furnished in a year, in two years, or in three years after puberty, because rather a condition than a date had been added to the legacy. I think the contrary, because for the most part a date is set for prorogating those things which are bequeathed for the present time, not also those which are for the future, and the day of puberty has some demonstration of time.
Maevius, cui fundus legatus est, si callimacho, cum quo testamenti factionem non habebat, ducenta dedisset: condicioni parere debet et ducenta dare, ut ad eum legatus fundus pertineat, licet nummos non faciat accipientis: quid enim interest, utrum tali personae dare iubeatur an aliquo loco ponere vel in mare deicere? neque enim illud, quod ad talem personam perventurum est, testamenti nomine, sed mortis causa capitur.
Maevius, to whom an estate has been bequeathed, if he should have given two hundred to Callimachus, with whom he did not have testamentary capacity, must obey the condition and give the two hundred, so that the bequeathed estate may pertain to him, although it does not make it the money of the recipient: for what difference is there whether he is ordered to give to such a person, or to put it in some place, or to throw it into the sea? For that which is going to reach such a person is not taken under the name of a testament, but on account of death.
Cui fundus legatus est, si decem dederit, partem fundi consequi non potest, nisi totam pecuniam numerasset. dissimilis est causa, cum duobus eadem res sub condicione legata est: in hac enim quaestione statim a testamento, quo pluribus condicio adposita est, divisa quoque in singulas personas videri potest, et ideo singuli pro sua parte et condicioni parere et legatum capere possunt: nam quamvis summa universe condicionis sit adscripta, enumeratione personarum potest videri esse divisa. in eo vero, quod uni sub condicione legatum est, scindi ex accidenti condicio non debet, et omnis numerus eorum, qui in locum eius substituuntur, pro singulari persona est habendus.
He to whom a landed estate has been bequeathed, if he has given ten, cannot obtain a part of the estate unless he has counted out the whole money. The case is dissimilar when the same thing has been bequeathed under a condition to two: for in this question, straightway from the testament in which a condition has been appended to several, it can also be seen as divided among the individual persons, and therefore each, for his own share, can both comply with the condition and take the legacy; for although the sum of the condition has been written as a whole, by the enumeration of the persons it can be seen to be divided. But in that which has been bequeathed under a condition to one, the condition ought not to be split by an accidental circumstance, and whatever number of those who are substituted in his place is to be regarded as a single person.
Quaesitum est, an, si iussus fuerit servus quinque operas extraneo dare, ut liber sit, condicio talis sit recipienda, ut, quemadmodum circa pecuniae dationem dicitur, ita et circa praestationem operarum dicamus. sed hoc iure utimur, ut, quemadmodum dictum est, si pecuniam ex peculio suo det extraneo, admitti eum ad libertatem, ita et, si operam praestiterit, necesse sit eum admitti ad libertatem. itaque et in proposito sapienter faciet heres, si impedierit eum, quo minus praestet operas: hac enim ratione servus perveniet quidem ad libertatem, sed operis eius extraneus non utetur.
It has been asked whether, if a slave were ordered to give five services to a stranger, so that he may be free, such a condition should be accepted, so that, just as is said concerning the giving of money, so also we should speak concerning the prestation of services. But we use this law, that, as has been said, if he gives money out of his peculium to a stranger, he is admitted to liberty, so also, if he shall have rendered the service, it is necessary that he be admitted to liberty. And so also in the case proposed the heir will act wisely, if he prevents him from rendering the services: for by this method the slave will indeed attain to liberty, but the stranger will not make use of his work.
In facto consistentes condiciones varietatem habent et quasi tripertitam recipiunt divisionem, ut quid detur, ut quid fiat, ut quid optingat, vel retro ne detur, ne fiat, ne optingat. ex his dandi faciendique condiciones in personas collocantur aut ipsorum, quibus quid relinquitur, aut aliorum: tertia species in eventu ponetur.
Conditions consisting in a fact have variety and admit, as it were, a tripartite division: that something be given, that something be done, that something happen, or in reverse that it not be given, not be done, not happen. Of these, the conditions of giving and of doing are placed upon persons, either those themselves to whom something is left, or others: the third species will be set in an event.
Si vir uxori ad tempus liberorum legaverit, dubitari potest, an de his dumtaxat filiis sensisset testator qui post mortem eius nati fuissent an et de his, qui vivo eo ab eo suscepti fuissent post testamentum factum, cum manente matrimonio decessisset: verum aequum est proficere, sive vivo marito sive post mortem nascatur.
If a husband has bequeathed to his wife for the time until children, it can be doubted whether the testator meant only those children who would have been born after his death, or also those who, while he was alive, had been accepted by him after the testament was made, he having died with the marriage continuing: but it is equitable that it should take effect, whether the child is born with the husband alive or after his death.
Cuidam non solidum capienti amplius lege concessae portionis relicta est, si heredi aliquid dedisset: quaeritur, an id, quod condicionis implendae causa dederat, consequi ex causa legati possit ( quasi non capiat id quod eroget) an vero id extra sit nec ideo magis ex bonis testatoris amplius capiat, quam capturus esset, si sine condicione legatum esset. et iulianus rectissime scribit tanto amplius eum capturum, quantum condicionis implendae causa dare eum oportet, nec interesse, heredi an extraneo dare iussus sit, quia computatione facta, quae semper in persona eius introduceretur, non amplius lege concessae portionis ad eum subsideret.
To a certain person not taking in solidum more than the portion conceded by law was left, on condition that he give something to the heir: the question is, whether he can obtain, by reason of the legacy, that which he had given for the sake of fulfilling the condition (as if he does not take that which he disburses), or rather whether that is outside, and he does not therefore take more out of the testator’s goods than he would be going to take if the legacy were without condition. And Julian most correctly writes that he will take more by just so much as it behooves him to give for the sake of fulfilling the condition, and that it makes no difference whether he is ordered to give to the heir or to an extraneous person, because, once the computation is made, which would always be introduced in his person, not more than the portion conceded by law would remain to him.
Cum vir uxori " si a liberis ne nupserit" in annos singulos aliquid legavit, quid iuris sit? iulianus respondit posse mulierem nubere et legatum capere. quod si ita scriptum esset " si a liberis impuberibus ne nupserit", legem locum non habere, quia magis cura liberorum quam viduitas iniungeretur.
When a husband has bequeathed to his wife something in each single year, " if she should not marry away from the children," what is the law? Julian responded that the woman can marry and take the legacy. But if it had been written thus, " if she should not marry away from underage children," the statute would have no application, because rather the care of the children than widowhood would be enjoined.
Cum ita legatum sit " si titio non nupserit" vel ita " si neque titio neque seio neque maevio nupserit" et denique si plures personae comprehensae fuerint, magis placuit, cuilibet eorum si nupserit, amissuram legatum, nec videri tali condicione viduitatem iniunctam, cum alii cuilibet satis commode possit nubere.
When a legacy has been left thus, ' if she shall not have married titio,' or thus, ' if she shall have married neither titio nor seio nor maevio,' and, finally, if several persons have been comprised, the better-approved view is that, if she marries any one of them, she will forfeit the legacy; nor is it considered that by such a condition widowhood is imposed, since she can quite suitably marry anyone else.
Videamus et si ita legatum sit " si titio nupserit". et quidem si honeste titio possit nubere, dubium non erit, quin, nisi paruerit condicioni, excludatur a legato: si vero indignus sit nuptiis eius iste titius, dicendum est posse eam beneficio legis cuilibet nubere. quae enim titio nubere iubetur, ceteris omnibus nubere prohibetur: itaque si titius indignus sit, tale est, quale si generaliter scriptum esset " si non nupserit". immo si verum amamus, durior haec condicio est quam illa " si non nupserit": nam et ceteris omnibus nubere prohibetur et titio, cui inhoneste nuptura sit, nubere iubetur.
Let us also see whether a legacy has been left thus: " if she marries titius". And indeed, if she can marry titius honorably, there will be no doubt that, unless she complies with the condition, she is excluded from the legacy; but if that titius is unworthy of her nuptials, it must be said that by the benefit of the law she may marry anyone. For she who is ordered to marry titius is forbidden to marry all others; and so, if titius is unworthy, it is as if it had been written in general " if she does not marry". Nay rather, if we love the truth, this condition is harsher than that " if she does not marry": for she is both forbidden to marry all others and ordered to marry titius, to whom she would be marrying dishonorably.
Quod si ita scriptum esset " si ariciae non nupserit", interesse, an fraus legi facta esset: nam si ea esset, quae aliubi nuptias non facile possit invenire, interpretandum ipso iure rescindi, quod fraudandae legis gratia esset adscriptum: legem enim utilem rei publicae, subolis scilicet procreandae causa latam, adiuvandam interpretatione.
But if it had been written thus " if she does not marry at Aricia", it would matter whether fraud had been committed upon the law: for if she were such a one as could not easily find nuptials elsewhere, it must be interpreted that, by the law itself, what had been added for the sake of defrauding the law is rescinded: for a law useful to the commonwealth, namely enacted for the sake of procreating offspring, is to be aided by interpretation.
Heres statuliberum, cui in eventum condicionis fideicommissum restituere rogatus erat, manumisit: quaero, an fideicommissum ei praestare debeat. herennius modestinus respondit, quamquam statuliberum heres manumiserit, tamen fideicommissum, quod sub iisdem condicionibus relictum ei debet, ita praestare cogitur, si condiciones impletas esse praestabit aut per eum stetit, quo minus impleantur.
The heir manumitted a statuliber, to whom he had been asked to restore a fideicommissum upon the event of the condition: I ask whether he ought to render the fideicommissum to him. herennius modestinus replied that, although the heir has manumitted the statuliber, nevertheless he is compelled thus to perform the fideicommissum, which, having been left to him under the same conditions, he owes: if he will establish that the conditions have been fulfilled, or that it was through him that they were not fulfilled.
Cum sub hac condicione fundus alicui legatus esset " si servum non manumiserit" et, si manumiserit, legatum fundi ad maevium translatum esset, legatarius de non liberando satisdedit et legatum accepit et postea liberavit: quaero, an aliquid maevio detur. respondit, si cui ita legatum erit " si servum non manumiserit", satisdatione interposita accipere ab herede legatum poterit et, si postea servum manumiserit, commissa stipulatione heredi vel fundum vel quanti ea res est restituet eoque casu heres ei, cui ex sequenti condicione legatum debuerit, restituet.
When under this condition an estate was bequeathed to someone " if he shall not manumit the slave," and, if he should manumit, the legacy of the estate was transferred to maevium, the legatee gave surety for not freeing and accepted the legacy, and afterwards freed him: I ask whether anything is to be given to maevio. He replied: if a legacy is thus left to someone " if he shall not manumit the slave," upon the interposition of surety he will be able to receive the legacy from the heir; and if afterwards he manumits the slave, the stipulation being forfeited, he will restore to the heir either the estate or as much as the thing is worth, and in that case the heir will restore to him to whom, under the subsequent condition, he owed the legacy.
Duos mater filios sub condicione emancipationis ex partibus heredes instituit eisque plurium rerum praeceptiones pure dedit: hereditatem adierunt. patrem a legatorum commodo illa quoque ratio debet summovere, quod emancipando filios obsecutus voluntati supremum iudicium uxoris suae custodiri voluit.
A mother instituted her two sons as heirs in shares under the condition of emancipation and gave them preemptions of several things purely; they entered upon the inheritance. The father ought also to be removed from the benefit of the legacies by this consideration, that by emancipating the sons, in obedience to her will, he wished the supreme judgment (last will) of his wife to be preserved.
Titio centum ita, ut fundum emat, legata sunt: non esse cogendum titium cavere sextus caecilius existimat, quoniam ad ipsum dumtaxat emolumentum legati rediret. sed si filio fratri alumno minus industrio prospectum esse voluit, interesse heredis credendum est atque ideo cautionem interponendam, ut et fundus comparetur ac postea non alienaretur.
One hundred have been bequeathed to Titius, on this condition: that he buy an estate (fundus). Sextus Caecilius is of the opinion that Titius should not be compelled to give security, since the emolument of the legacy would revert to himself alone. But if he wished provision to be made for a son, brother, or an alumnus (foster-child) who is less industrious, it is to be believed that the heir has an interest, and therefore security must be interposed, to the effect that both the estate be purchased and that it not thereafter be alienated.
Titio centum relicta sunt ita, ut maeviam uxorem quae vidua est ducat: condicio non remittetur et ideo nec cautio remittenda est. huic sententiae non refragatur, quod, si quis pecuniam promittat, si maeviam uxorem non ducat, praetor actionem denegat: aliud est enim eligendi matrimonii poenae metu libertatem auferri, aliud ad testamentum certa lege invitari.
to titius a hundred have been left thus, that he take as wife maevia, who is a widow: the condition is not to be remitted, and therefore the security is not to be released. this opinion is not gainsaid by the fact that, if someone promises money on not taking maevia as wife, the praetor denies the action: for it is one thing that the freedom of choosing marriage be taken away under fear of a penalty, another to be invited to the testament by a specific term.
" titio genero meo heres meus dotis seiae filiae meae nomine centum dato". legati quidem emolumentum ad seiam, quae dotem habere incipit, pertinebit, sed quia non tantum mulieri, sed titio quoque, cui pecuniam legavit, consultum videtur, prope est, ut ipse legatarius intellegatur et legatum petere debeat. si post divortium genero pecuniam heres solverit, aeque liberabitur, quoniam in dotem solutio convertitur. constante autem matrimonio etiam prohibente muliere titio recte solvetur: hoc enim et mulieris interest, ut incipiat esse dotata.
" To Titius, my son-in-law, let my heir give 100 in the name of the dowry of Seia, my daughter." The emolument of the legacy will indeed pertain to Seia, who begins to have a dowry; but since provision seems to have been made not only for the woman, but for Titius also, to whom he bequeathed the money, it is nearly the case that he himself is understood as the legatee and ought to claim the legacy. If, after a divorce, the heir should pay the money to the son-in-law, he will be equally discharged, since the payment is converted into dowry. But while the marriage stands, even with the woman forbidding, it will be rightly paid to Titius: for this too is in the woman’s interest, that she begin to be endowed with a dowry.
for even if someone should reply that she herself also has the petition, and by that petition demands the money and does not wish it to be made a dowry, without doubt such a one will be removed by the exception of dolus. before the nuptials, however, if Titius or the woman has died, the legacy remains with the heir. but if he is unwilling to take her as wife, the ground of the legacy, so far as it pertains to the woman’s person, will be considered satisfied; yet the exception of dolus will prejudice Titius when he seeks the legacy.
sabinus, however, was of the opinion that, the woman having been married, the legacy was owed to titio without a security, since the money would be made money of the dowry; but since before the marriage, because it is a pure legacy, it can be sought, a security “ mulieri pecuniam reddi” will be necessary. But if the husband, by his own fault, should cause the case to fail and is not solvent, should help perhaps be afforded against the heir for the woman, who has done nothing wrong, on account of that money which had been destined for the dowry? But since both had the claim of the legacy, the woman will have her action preserved, the money not having been paid to the husband.
Cum tale legatum esset relictum titiae " si a liberis non discesserit", negaverunt eam recte cavere, quia vel mortuis liberis legati condicio possit exsistere. sed displicuit sententia: non enim voto matris opponi tam ominosa non interponendae cautionis interpretatio debuit.
Since such a legacy had been left to Titia, "if she shall not depart from her children," they denied that she could properly furnish security, because the condition of the legacy might come to exist even with the children dead. But that opinion was disapproved: for so ominous an interpretation—namely, that no caution be interposed—ought not to be set in opposition to the mother’s wish.
Et cum patronus liberto certam pecuniam legasset, si a liberis eius non discessisset, permisit imperator velut mucianam cautionem offerri: fuit enim periculosum ac triste libertum coniunctum patroni liberis eorundem mortem exspectare.
And when a patron had bequeathed to his freedman a certain sum of money, on condition that he should not depart from his (the patron’s) children, the emperor permitted, as it were, a Mucian cautio to be offered: for it was dangerous and sad for a freedman, joined to the patron’s children, to await their death.
Titius heredem institutum rogavit post mortem suam hereditatem restituere, si fideicommissi cautio non fuisset petita. mucianae cautionis exemplum ante constitutionem remissae cautionis locum habere non potuit, quoniam vivo eo, cui relictum est, impleri condicio potuit.
Titius asked the instituted heir to restore the inheritance after his death, if the security of the fideicommissum had not been demanded. The exemplar of the Mucian caution could not have had effect before the constitution remitting the security, since, with the person to whom it was left alive, the condition could be fulfilled.
Quid ergo, si ita scriptum sit: " peto, post mortem tuam restituas hereditatem ita, ne satis fideicommissi petatur neve ratio exigatur". sine dubio per huiusmodi verba non interponendae quidem cautionis condicio videbitur adscripta, rationi vero non exigendae modus adhibitus, scilicet ut culpa, non etiam dolus remissus intellegatur: idque in eius persona, qui negotia gessit cuique rationis reddendae necessitas fuerat testamento remissa, rescriptum est.
What then, if it be written thus: " I request that, after your death, you restore the inheritance on this condition, that no surety for the fideicommissum be demanded and that no account be exacted". Without doubt, by words of this kind the condition will appear to have been appended of not interposing security, but a limitation applied that an account not be exacted—namely, that negligence (culpa), but not also fraud (dolus), is understood to be remitted; and this has been determined by rescript in the case of one who managed affairs and to whom the necessity of rendering an account had been remitted by the testament.
" si arbitratu titii seia nupserit, heres meus ei fundum dato". vivo titio etiam sine arbitrio titii eam nubentem legatum accipere respondendum est eamque legis sententiam videri, ne quod omnino nuptiis impedimentum inferatur. sed si titius vivo testatore decedat, licet condicio deficit, quia tamen suspensa quoque pro nihilo foret, mulieri succurretur.
" if, at the discretion of titius, seia shall have married, let my heir give her the farm." with titius alive, it must be answered that even without the decision of titius, she, marrying, may receive the legacy; and this is seen to be the meaning of the law, that no impediment at all be brought upon marriage. but if titius should die while the testator is alive, although the condition fails, yet because even if it were suspended it would be as nothing, aid will be given to the woman.
Falsam condicionem cassius et caelius sabinus impossibilem esse dixerunt, veluti: " pamphilus, si quod titio debeo solverit, liber esto", si modo nihil titio fuit debitum: quod si post testamentum factum testator pecuniam exsolvit, defecisse condicionem intellegi.
Cassius and Caelius Sabinus said that a false condition is impossible, for example: "Pamphilus, if he shall have paid what I owe to Titius, let him be free," provided that nothing was owed to Titius; but if, after the testament was made, the testator paid out the money, the condition is understood to have failed.
Falsam legati demonstrationem non facere legatum sabinus respondit ( veluti si quis, cum titio nihil legasset, ita scriptum reliquerit: " ex centum, quae titio legavi, quinquaginta heres seio dato") idque sumpsit ex defuncti voluntate, quia non animo legandi, sed deminuendi legatum, quod falso datum existimaret, ita scriberet. propter falsam tamen demonstrationem legati non plus seius adsequetur, quam si vere demonstratum fuisset.
Sabinus answered that a false demonstration of a legacy does not create a legacy (for example, if someone, when he had bequeathed nothing to Titius, left the following written: "from the hundred which I have bequeathed to Titius, heir, give fifty to Seius"); and he derived this from the intention of the deceased, because he would write thus not with the intent of bequeathing, but of diminishing the legacy which he supposed had been falsely given. Nevertheless, on account of the false demonstration of the legacy, Seius will not obtain more than if it had been truly demonstrated.
Titio fundus, si in asiam non venerit, idem, si pervenerit, sempronio legatus est. cum in omnibus condicionibus, quae morte legatariorum finiuntur, receptum est, ut muciana cautio interponatur, heres cautionem a titio accepit et fundum ei dedit. si postea in asiam pervenerit, sempronio heres, quod ex stipulatu cautionis interpositae consequi potest, utili actione praestare cogitur.
A fundus (estate) was bequeathed to Titius, if he should not come into Asia; likewise, if he should arrive there, to Sempronius. Since in all conditions that are terminated by the death of legatees it is the accepted practice that a Mucian caution be interposed, the heir received the caution from Titius and delivered the estate to him. If afterwards he comes to Asia, the heir is compelled, by a useful action, to render to Sempronius what he can obtain ex stipulatu from the interposed caution.
but if in the meantime the security, which had been scrupulously exacted, should fail, the heir will not make payment out of his own, but, since nothing can be imputed to him, it will suffice that the actions be furnished. if, however, when titius had come into Asia, sempronius should die before he receives the legacy, there would be owed to his heir what the deceased could have claimed.
Mulieri et titio usus fructus, si non nupserit mulier, relictus est. si mulier nupserit, quamdiu titius et vivit et in eodem statu erit, partem usus fructus habebit: tantum enim beneficio legis ex legato concessum esse mulieri intellegendum est, quantum haberet, si condicioni paruisset. nec si titius, qui condicione defectus est, legatum repudiet, ea res mulieri proderit.
A usufruct was left to the woman and to Titius, if the woman should not marry. If the woman does marry, so long as Titius both lives and remains in the same status, he will have a share of the usufruct: for it is to be understood that only so much, by the benefit of the law, from the legacy has been conceded to the woman as she would have had if she had complied with the condition. Nor, if Titius, who has failed the condition, should repudiate the legacy, will that circumstance benefit the woman.
Avia, quae nepotem sub condicione emancipationis pro parte heredem instituerat, ita postea codicillis scripsit: " hoc amplius nepoti meo, quam quod eum heredem institui, lego praedia illa". condicionem emancipationis repetitam videri placet, quamvis avia nullam in legatis, ut in hereditate, substitutionem fecisset. nam et cum servus pure quidem liber, heres autem sub condicione scriptus et, si heres non exstiterit, legatum accipere iussus est, in legato repetitam videri libertatem divus pius rescripsit.
A grandmother, who had instituted her grandson as heir for a portion under the condition of emancipation, later wrote thus in codicils: "this further to my grandson, beyond that I appointed him heir, I bequeath those estates". It is held that the condition of emancipation is to be deemed repeated, although the grandmother had made no substitution in the legacies, as in the inheritance. For also when a slave was indeed to be free purely, but the heir was instituted under a condition, and, if the heir did not come into being, the slave was ordered to receive the legacy, the deified Pius rescripted that the freedom is to be deemed repeated in the legacy.
" titio, si mulier non nupserit, heres centum dato": quam pecuniam eidem mulieri titius restituere rogatus est. si nupserit mulier die legati cedente, fideicommissum petet: remoto autem fideicommisso legatarius exemplum mucianae cautionis non habebit.
"to titio, if the woman has not married, let the heir give one hundred": which money titius was asked to restore to the same woman. If the woman shall have married on the day the legacy vests, she will claim the fideicommissum: but with the fideicommissum removed, the legatee will not have the model of Mucian caution.
Pater exheredatae filiae tutores dedit eosque, si mater eius, impubere filia constituta, vita decessisset, ad rem gerendam accedere iussit, cum uxori mandatum esset, ut moriens filiae communi decies restitueret. non sub condicione tutores videbuntur dati nec, si quid aliud interea puella quaesisset, eius administratione prohiberi, cautio vero fideicommissi matri remissa. quocumque indicio voluntatis cautio legatorum vel fideicommissorum remitti potest.
A father gave tutors to his disinherited daughter and ordered them, if her mother should depart this life while the daughter was under age, to enter upon the management, since a mandate had been given to his wife that, when dying, she should restore to their common daughter 1,000,000 sesterces. The tutors will not be seen as appointed under a condition, nor, if in the meantime the girl had acquired anything else, are they to be prohibited from its administration; but the security for the fideicommiss was remitted to the mother. By whatever indication of intention, the security for legacies or for fideicommissa can be remitted.
therefore, if a condition of not demanding security (cautio) is prescribed to a legacy or fideicommissum, that will not make it a condition: for the disposition will not fail, if someone should desire that security be furnished, even though the burden of the security does not ensue, since today by public law it cannot be exacted against one unwilling, after it has been decided that the security can be remitted.
" heres meus, cum ipse morietur, centum titio dato". legatum sub condicione relictum est: quamvis enim heredem moriturum certum sit, tamen incertum est, an legatario vivo. dies legati non cedit et non est certum ad eum legatum perventurum.
"my heir, when he himself shall die, give one hundred to Titius." the legacy is left under a condition: although it is certain that the heir will die, nevertheless it is uncertain whether the legatee will be alive. the day of the legacy does not accrue, and it is not certain that the legacy will come to him.
Eas causas, quae protinus agentem repellunt, in fideicommissis non pro condicionalibus observari oportet: eas vero, quae habent moram cum sumptu, admittemus cautione oblata: nec enim parem dicemus eum, cui ita datum sit, si monumentum fecerit, et eum, cui datum est, ut monumentum faciat.
Those causes which forthwith repel the plaintiff are not to be observed as conditional in fideicommissa; but those which have delay with expense we will admit upon a caution (security) being tendered: for we shall not call equal the one to whom it has been given thus, “if he shall have made a monument,” and the one to whom it has been given “that he make a monument.”
Iulius paulus nymphidio. quaesisti, si ita in testamento cautum esset: " stichus si rationes reddiderit, cum contubernali sua liber esto eisque decem heres dato", an sticho mortuo antequam rationes redderet, vel pariatore vel reliqua habente, libera esset mulier? et an de legato idem accipiamus.
Julius Paulus to Nymphidius. You asked, if it were thus stipulated in a testament: " if Stichus shall have rendered accounts, let him be free with his contubernalis, and let the heir give them ten," whether, Stichus having died before he rendered the accounts, either with a payer (pariator) or with a balance in hand, the woman would be free? and whether we should take the same regarding the legacy.
With freedom having been granted on condition that he render accounts, we take this condition of rendering accounts to mean that he is to be regarded as ordered to hand over whatever remainder he has, with good faith as to his management. And if there is no remainder, they will be seen to have received freedom unconditionally; and if, after the inheritance has been entered upon, he has died, freedom taking effect, the legacy also has followed them. But if he died while he still had outstandings, then both his contubernalis is deemed to have received freedom under the same condition, and the condition will be considered to have failed.
Cum servus ita liber esse iussus sit " si rationes reddiderit" eique fundum heres dare damnas sit, videamus, utrum condicio libertati praeposita sit an vero et legato. et quidem si libertati soli accipiamus praepositam, nullus tractatus amplius superest: nam legatum purum invenitur et ideo inutile fit: quod si condicio etiam legato insita sit, quod quidam recte putant, simul cum libertate dies quoque legati utiliter cedit. quid ergo continetur his verbis " si rationes reddiderit?" quidam hoc aiunt " si reliqua reddiderit", quasi nihil intersit, utrum sub hac condicione " si reliqua" vel hac " si rationes reddiderit". sed nos neque condicionem meram putamus esse, quae in datione exsistit, neque meram condicionem, quae in facto sit, sed eam condicionem, quae ex mixtura quadam consistit.
When a slave has been ordered to be free in this way, "if he shall have rendered accounts," and the heir is put under a charge to give him an estate, let us see whether the condition has been prefixed to the liberty, or indeed also to the legacy. And indeed, if we should take it as prefixed to liberty alone, no further discussion remains: for the legacy is found to be pure, and therefore becomes useless. But if the condition is also inserted in the legacy, which some rightly think, then together with the liberty the time for the legacy too usefully begins to run. What, then, is contained in these words, "if he shall have rendered accounts"? Some say this means, "if he shall have returned the balance," as though it makes no difference whether under this condition, "if the balance," or this, "if he shall have rendered accounts." But we think it is neither a mere condition which consists in a giving, nor a mere condition which is in a deed, but a condition which consists of a certain mixture.
for assuredly, not if he has proffered the balances in a bag will he be free: for the testator did not mean this, but that he render accounts, in the way a slave is accustomed to render them, that is, to present the accounts to be read first, then to be computed/audited, so that it may be explored whether the imputations are reported properly or improperly, whether the receipts are entered correctly or not correctly: for thus the matter indeed begins from an act, but comes through to money. In these words there is also that the heirs be equipped with knowledge of the accounts, so that they may know what is written in each account. For what he himself while alive would have done, he is understood to have ordered to be done by his heirs: moreover, he certainly was not accustomed, when his slave showed the balances, to subscribe the accounts on that basis, but to read, examine, and take extracts.
Lucius titius ita testamentum fecit: " aurelius claudius natus ex illa muliere, si filium meum se esse iudici probaverit, heres mihi esto". paulus respondit filium de quo quaereretur non sub ea condicione institutum videri, quae in potestate eius est, et ideo testamentum nullius esse momenti.
Lucius titius made a will as follows: " aurelius claudius, born from that woman, if he shall have proved to the judge that he is my son, let him be my heir." paulus replied that the son about whom inquiry was being made does not seem to have been appointed under that condition which is in his power, and therefore the testament is of no effect.
" illis libertis alimentorum nomine, si cum filio meo morati fuerint, menstruos denarios centenos et vestiaria dari volo". liberti in obsequio fuerunt, quamdiu adulescens ad militiam promoveretur: qua causa effectum est, ut quibusdam romae relictis proficisceretur, et apud castra defunctus est: quaesitum est, an ab heredibus eius alimenta debeantur. paulus respondit condicionem quidem in persona libertorum, qui cum filio defuncti morati sunt aut per eos non stetit, quo minus morarentur, mortuo filio testatoris defecisse non videri. sed si testator propter filii utilitatem his, qui cum eo morati fuissent, alimenta praestari voluit, contra voluntatem defuncti petentes audiri non oportere.
" to those freedmen, under the name of alimenta, if they shall have stayed with my son, I wish one hundred denarii monthly and clothing-allowances to be given." the freedmen were in attendance, as long as the youth was being promoted to military service: for which cause it came about that, some being left at rome, he set out, and he died at the camp: it was asked whether the alimenta are owed by his heirs. paulus answered that the condition, indeed, in the person of the freedmen who stayed with the son of the deceased, or it was not through them that they did not stay, does not seem to have failed upon the testator’s son having died. but if the testator, for the utility of his son, willed that alimenta be furnished to those who had stayed with him, those demanding contrary to the intention of the deceased ought not to be heard.
Titia heredis instituti liberos habentis filii fidei commisit, uti rem eius universam restitueret filiis eius liberisve eorum, cum ipsi petissent, sine ulla iuris cavillatione: quaero, an his verbis " cum illi a te petierint" condicio fideicommisso adscripta videatur. respondit non videri.
Titia made a fideicommissum to the son of the instituted heir, who has children, that he should restore his entire property to his sons or to their children, when they themselves had asked, without any cavillation of law: I ask whether by these words " cum illi a te petierint" a condition seems to have been added to the fideicommissum. He responded that it does not seem so.
Iulianus noster eum, qui decem dare et ita liber esse iussus esset, si a vivente manumissus esset, non aliter legatum, quod ei cum libertate datum esset, habiturum, quam si condicioni libertatis paruisset: item in emptorem, si alienatus esset. sed id tunc locum habet, cum omnimodo simul cum libertate legatum adquiri potuit, licet legato imposito non sit, veluti cum in tempus libertatis legatum collatum esset.
Our Julian held that a person who had been ordered to pay ten and thus to be free, if he were manumitted by the testator while living, would have the legacy, which had been given to him together with liberty, only if he complied with the condition of liberty; likewise against the purchaser, if he had been alienated. But that holds good then when in every way the legacy could be acquired at the same time as liberty, although it has not been imposed upon the legacy, as when the legacy had been conferred for the time of liberty.
Cum vero libertas sub condicione, legatum autem praesenti die datum est, in hoc quaestio est, an constiterit legatum: etenim nec catonianae sententiae locum in proposito esse, quia etsi statim testator decessisset, non tamen omnimodo inutile esset legatum, cum posset condicio libertatis ante aditam hereditatem impleri et legatum manumisso deberi, nisi forte necessarius heres exstitisset: tunc enim omnimodo inutile erit legatum iure ipso, quia sub condicione acceperit libertatem.
When, however, freedom is under a condition, but the legacy has been granted for the present day, the question is whether the legacy has taken effect: for the Catonian opinion has no place in the case proposed, because even if the testator had died immediately, nevertheless the legacy would not be in every respect void, since the condition of freedom could be fulfilled before the inheritance is entered upon and the legacy be owed to the manumitted person—unless perhaps a necessary heir had existed: for then the legacy will be altogether void by the law itself, because he received his freedom under a condition.
Non ad ea dumtaxat pertinet, quae saepius sub diversis condicionibus, sed etiam quae primo pure, deinde sub condicione dantur. itaque quod heres pure dare iussus est quodve pure legatum est, cum id ex intervallo sub condicione legatum est, posterius valet: si prius sub condicione, deinde pure legatum est, praesens debetur. quod si pure legatum ex continenti heres sub condicione damnatus aut rogatus est dare, perinde est, ac si iuncta subiecta scriptura idem legatum esset, vel ut praesens vindicari, si hoc voluerit legatarius, vel, cum condicio exstiterit, ab herede peti possit, nisi commemoratione superioris legati posterius scriptum fuerit, velut: " stichum, quem illi legavi, heres meus ei, si illud factum erit, dato": tunc enim revocandi animo praesens legatum et sub condicione dandi ita scripsisse videbitur: et si ante condicionem rem vindicet, doli exceptio locum habere poterit.
It pertains not only to those things which are more often given under different conditions, but also to those which are first given purely, then under a condition. And so, if what the heir was ordered to give purely, or what was bequeathed purely, is afterward bequeathed under a condition, the later provision prevails; if it was first bequeathed under a condition, then purely, the present (outright) one is owed. But if, a pure legacy having been made, the heir is immediately afterward charged or requested to give it under a condition, it is just as if, by a joined subjoined writing, the same legacy had been made, either so that, as present, it may be vindicated, if the legatee should wish this, or, when the condition has arisen, it may be demanded from the heir—unless with a mention of the prior legacy it has been written later, for example: " stichus, whom I bequeathed to him, let my heir give to him, if that shall have been done": for then he will seem to have written thus with the intent of revoking the present legacy and of giving it under a condition; and if he should vindicate the thing before the condition, the exceptio of fraud could have place.
Condicionum, quae in futurum conferuntur, triplex natura est, ut quaedam ad id tempus, quo testator vivat, quaedam ad id, quod post mortem eius futurum sit, quaedam ad alterutrum pertineant, tempus autem vel certum vel infinitum comprehendatur: quae omnia non minus in fideicommissis quam in institutionibus ac legatis incidere solent: ut haec condicio " titiae, si mihi nupserit" non dubie nisi vivente testatore, illa autem " si ad exsequias funeris mei venerit" nisi post mortem impleri non possit, illa vero " si filio meo nupserit" vel vivente vel mortuo testatore impleri possit. et prima quidem ac tertia ex relatis condicionibus infinitum tempus habent: quandoque enim nupserit, impletur condicio: secunda ad certum tempus adscripta est.
Of conditions which are conferred for the future, the nature is threefold, namely that some pertain to the time during which the testator lives, some to that which will be after his death, some pertain to either one, and the time is comprised as either certain or unlimited: all of which are wont to occur no less in fideicommissa than in institutions and legacies: as, for instance, this condition " titiae, si mihi nupserit" not doubtfully otherwise than with the testator living, but that " si ad exsequias funeris mei venerit" cannot be fulfilled except after death, while that " si filio meo nupserit" can be fulfilled either with the testator living or dead. And indeed the first and the third of the recited conditions have an unlimited time: for whenever she shall marry, the condition is fulfilled: the second is assigned to a definite time.
Si cui legatum fuerit relictum isque rogatus sit liberos suos emancipare, an cogi debeat manumittere? et retineo me dixisse defici eos a petitione fideicommissi: neque enim praetor fideicommissarius eos ad libertatem tuetur ut servos. papinianum quoque libro nono responsorum scribere referebam non esse cogendum emancipare filios suos.
If a legacy has been left to someone and he has been asked to emancipate his children, should he be compelled to manumit? And I maintain that I have said that they fail in a petition for the fideicommissum: for the fideicommissary praetor does not protect them to liberty as he does slaves. I was also reporting that Papinian, in the ninth book of his Responsa, wrote that one is not to be compelled to emancipate his sons.
I judge, however, that by extraordinary procedure there ought to be decreed that he who has acknowledged that what was left to him was left with this contemplation, namely that he should emancipate his children, be compelled to emancipate them: for the will of testators ought not to be circumvented. Thus, then, this is to be understood just as if a legacy had been left to him under the condition of emancipating his children, or so left that he should emancipate them. Consequent to this is what the deified Severus rescripted. For when a certain woman had instituted her grandsons as heirs, and had given their own father as coheir with his sons, and had substituted them reciprocally, and had requested the son to emancipate his sons, but had not requested that he restore the inheritance to them, by the authority of the deified Severus he was compelled to emancipate them and to restore the inheritance to them.
Mater filio suo coheredes sine ulla condicione filias ipsius dedit ac petit, ut filias suas emanciparet, ita ut curatores a praetore acciperent. filii videri fidei commisisse placuit, ut eas sui iuris constitutas ad hereditatem aviae pervenire pateretur, nec ad rem pertinere, si portionem filiarum iure substitutionis quaesisset.
The mother gave as coheirs to her son his daughters without any condition and asks that he emancipate his daughters, so that they might receive curators from the praetor. It was decided that the son appears to have been entrusted by a fideicommissum to allow them, once constituted sui iuris, to reach the grandmother’s inheritance; nor does it pertain to the matter if he had acquired the daughters’ portion by right of substitution.
Cum ita datur libertas: " si titio" ( qui non est heres) " decem dederit", certa persona demonstratur ac propterea in personam eius tantum condicio impleri potest. sane si cum cesserit dies pecuniam condicioni comprehensam statuliber habuerit, iure constituto nulli dando consequitur libertatem. diversa causa est legatarii, in cuius persona placuit condicionem deficere, si, antequam dederit legatarius pecuniam, titius moriatur.
When liberty is thus given: " if Titius" ( who is not an heir) " shall have given ten", a definite person is indicated, and therefore the condition can be fulfilled only in his person. Indeed, if, when the term has fallen due, the statuliber has had the money included in the condition, under the law as established he attains freedom by giving it to no one. The case is different for the legatee, in whose person it has been decided that the condition fails, if, before the legatee gives the money, Titius should die.
Ex his verbis " si heredi" vel " si heredi titio decem dederit, liber esto", non tantum heredi, sed etiam heredis heredi dando pervenit ad libertatem: at si nullus heredi successerit, iure constituto nulli dando ad libertatem perveniet.
From these words "if to the heir" or "if he shall have given ten to the heir Titius, let him be free," freedom is attained not only by giving to the heir, but also by giving to the heir’s heir; but if no one has succeeded to the heir, by the rule established, by giving to no one he will not attain freedom.
Pater severianam proculam aelio philippo cognato nuptiis testamento designavit: eidem filiae praedium, si aelio philippo nupsisset, verbis fideicommissi reliquit: quod si non nupsisset, idem praedium philippo dari voluit: nondum viripotens puella diem suum obiit. respondi, cum in condicionibus testamentorum voluntatem potius quam verba considerari oporteat, aelio philippo fideicommissum ita datum videri, si ei procula defuncti filia nubere noluisset: quare cum ea prius, quam viripotens fieret, vita decesserit, condicionem exstitisse non videri.
The father designated severiana procula for marriage to his kinsman aelius philippus by will: to that same daughter he left an estate, if she should have married aelius philippus, by words of a fideicommiss; but if she should not have married, he wished the same estate to be given to philippus: the girl, not yet of marriageable age, met her day. I responded that, since in the conditions of testaments the will rather than the words ought to be considered, the fideicommiss appears to have been thus given to aelius philippus, if procula, the deceased’s daughter, had been unwilling to marry him; wherefore, since she departed life before she became of marriageable age, the condition does not seem to have arisen.
Condicionum verba, quae testamento praescribuntur, pro voluntate considerantur: et ideo cum tutores testamento dati, quoniam interea puer adoleverat, id egerint, ut curatores ipsi constituerentur, condicio fideicommissi talis praescripta: " si tutelam in annum octavum decimum gesserint" defecisse non videbitur.
The words of conditions that are prescribed in a testament are considered according to intention: and therefore, when guardians given by testament, because in the meantime the boy had grown up, took steps that curators themselves be appointed, the condition of the fideicommissum prescribed as follows: "if they shall have administered the guardianship up to the eighteenth year" will not be seen to have failed.
Socrus nurui fideicommissum ita reliquerat: " si cum filio meo in matrimonio perseveraverit": divortio sine culpa viri post mortem socrus facto defecisse condicionem respondi. nec ante diem fideicommissi cedere, quam mori coeperit nupta vel maritus, et ideo nec mucianam cautionem locum habere, quia morte viri condicio possit exsistere.
The mother-in-law had left a trust-bequest to her daughter-in-law on these terms: "if she shall have persevered in marriage with my son": I replied that, a divorce having been effected after the death of the mother-in-law, without fault of the husband, the condition had failed. Nor does the fideicommissum vest before either the wife or the husband has begun to die; and therefore the Mucian caution has no place, because by the death of the husband the condition can come to exist.
Fideicommissa menstrua et annua sub ea condicione liberto relicta " quamdiu res patroni filiae gesserit" etsi praestari necesse est filia prohibente res suas administrari, tamen voluntatem filia mutante condicionem resumunt, quoniam plura sunt.
Monthly and annual fideicommissary payments left to a freedman under the condition “so long as he shall have managed the affairs of the patron’s daughter,” even if they must be rendered when the daughter forbids her affairs to be administered, nevertheless, with the daughter changing her intention, resume the condition, because they are multiple (installments).
Cum avus filium ac nepotem ex altero filio heredes instituisset, a nepote petit, ut, si intra annum trigesimum moreretur, hereditatem patruo suo restitueret: nepos liberis relictis intra aetatem supra scriptam vita decessit. fideicommissi condicionem coniectura pietatis respondi defecisse, quod minus scriptum, quam dictum fuerat, inveniretur.
When a grandfather had instituted as heirs his son and his grandson from another son, he requested of the grandson that, if he should die within his thirtieth year, he should restore the inheritance to his paternal uncle: the grandson, leaving children, departed life within the age written above. By a conjecture of pietas I answered that the condition of the fideicommissum had failed, because it was found that less had been written than had been spoken.
Si fundum a testatore sub condicione legatum heres alii pendente condicione legavit, post exsistentem ^ existentem^ condicionem, quae priori testamento praeposita fuerat, neque proprietas a priore legatario recedit nec locum religiosum in eo fundo heres facere nec servitutem imponere poterit: sed et imposita servitus finietur exsistente condicione.
If an estate was bequeathed by the testator under a condition, and the heir bequeathed it to another while the condition was pending, then, after the condition has come into existence ^has come into existence^, which had been prefixed to the prior testament, neither does proprietorship depart from the earlier legatee, nor will the heir be able to make a religious place (a burial-place) on that land or to impose a servitude: but even a servitude that has been imposed will terminate upon the condition’s coming into effect.
Aliquando accidit, ut sub condicione datum legatum purum intellegatur, veluti quod sub eadem condicione relictum est, sub qua etiam heres alius institutus est, item quod sub hac condicione relictum est " si hereditatem adierit". ex diverso quoque purum datum legatum condicionale videtur, veluti quod sub condicione ademptum est, quia sub contraria condicione datum intellegitur.
Sometimes it happens that a legacy given under a condition is understood as pure, for instance one that is left under the same condition under which another heir is also instituted, likewise one that is left under this condition, "if he enters upon the inheritance." Conversely also a legacy given pure appears conditional, for instance one that is taken away under a condition, because it is understood to have been given under the contrary condition.
Libertis omnibus legavit domum et haec verba adiecit: " ut in ea habitent liberti, ne de nomine exeat et ut ad unum, qui novissimus exstiterit, perveniat: et eo amplius eisdem libertis meis dari volo fundum sosianum " . quaesitum est, an condicio adposita, ne de nomine exiret, ad sequens quoque legatum pertineret. respondit pertinere.
He bequeathed to all his freedmen a house and added these words: " ut in ea habitent liberti, ne de nomine exeat et ut ad unum, qui novissimus exstiterit, perveniat: et eo amplius eisdem libertis meis dari volo fundum sosianum " . It was asked whether the condition appended, ne de nomine exeat, would pertain also to the following legacy. He answered that it does pertain.
A testatore rogatus, ut acceptis centum nummis restitueret hereditatem titiae coheredi suae, adita hereditate decessit: similiter et titia, antequam daret centum: quaesitum est, an heres titiae offerendo centum fideicommisso partem hereditatis consequi possit. respondit heredem condicioni parere non posse. claudius.
Asked by the testator, that upon receiving one hundred coins he should restore the inheritance to his coheir Titia, after assuming the inheritance he died: likewise Titia, before she gave the hundred: it was asked whether Titia’s heir, by offering the hundred, could obtain a share of the inheritance by the fideicommissum. he replied that the heir could not comply with the condition. claudius.
Qui sub condicione rationum reddendarum liber esse iussus est, docere debet constare fidem omnibus, quae ab eo gesta sunt, ut neque subtraxerit quid ex his quae acceperit neque expensum rationibus praescripserit quod non dederat: sed et quod reliquum per contextum scriptum est remanere apud eum, solvere debet: neque enim aliter liber esse potest, quam si hoc modo condicioni, sub quam data est libertas, satisfecerit. ceterum debitores, cum quibus ipse contraxit, non utique in diem mortis domini sui fuisse idoneos praestare cogendus est, sed eo tempore, quo his creditum est, eius condicionis fuisse, ut diligens pater familias his crediturus fuerit.
He who has been ordered to be free under the condition of rendering accounts ought to show and establish the credibility for all the things that have been transacted by him, namely that he has neither subtracted anything from those things which he received nor entered as expended in the accounts what he had not given; and also he must pay what, by the written account, is stated to remain with him: for he cannot otherwise be free than if in this way he shall have satisfied the condition under which liberty was granted. Moreover, as to the debtors with whom he himself contracted, he is not to be compelled to warrant that they were solvent up to the day of his master’s death, but that at the time when credit was given to them they were of such a condition that a diligent paterfamilias would have been about to give them credit.
Item: " si symphoro et ianuario centum titius praestiterit, fundum ei lego". symphoro mortuo an legatum perisset? sed hoc quoque sic puto interpretandum ut si, dum quisque eorum vivet, praestitisset. sed benigna interpretatione dicendum, si non post moram titii symphorus decessit, debere partem dimidiam ianuario dantem partem fundi dimidiam legatarium esse consecuturum.
Likewise: "if Titius shall have rendered one hundred to symphorus and ianuarius, I bequeath him the estate." With symphorus dead, would the legacy have perished? But I think this too must be interpreted thus: that he should have rendered it while each of them is alive. Yet by a benign interpretation it should be said that, if symphorus did not die after Titius’s delay, the legatee will obtain half the estate, giving ianuarius a half (i.e., fifty).
De illo quoque quaeritur: fundus quibusdam legatus est, si pecuniam certam in funus impensamque perferendi corporis in aliam regionem dedissent. nam nisi uterque dederit, neutri est legatum, quoniam condicio nisi per utrumque expleri non potest. sed haec humanius interpretari solemus, ut, cum duobus fundus legatus sit, si decem dedissent, et alteri dando partem legatum quoque debeatur.
There is also inquiry about this: an estate has been bequeathed to certain persons, if they should give a certain sum of money for the funeral and for the expense of carrying the body into another region. For unless each has given, the legacy is to neither, since the condition cannot be fulfilled except through both. But we are accustomed to interpret these matters more humanely, so that, when an estate has been bequeathed to two, if they have given the ten, then, upon the other giving his share, the legacy is owed to him as well.
Priscus respondit statuliberum non utique ibi ubi pater familias decessit aut ubi ipse relictus sit aut ubi velit, rationes reddere debere, sed interim proficisci ad eum, cui reddere debeat, utique si is rei publicae causa aberit: verissimum est autem, ut alias aliud ex persona locoque sit aestimandum.
Priscus replied that a statuliber ought by no means to render accounts precisely there where the paterfamilias has died, or where he himself has been left, or where he wishes, but meanwhile to proceed to him to whom he ought to render them, especially if that person is absent on account of public business: however, it is most true that at other times another course is to be assessed from the person and the place.
Lex falcidia lata est, quae primo capite liberam legandi facultatem dedit usque ad dodrantem his verbis: " qui cives romani sunt, qui eorum post hanc legem rogatam testamentum facere volet, ut eam pecuniam easque res quibusque dare legare volet, ius potestasque esto, ut hac lege sequenti licebit". secundo capite modum legatorum constituit his verbis: " quicumque civis romanus post hanc legem rogatam testamentum faciet, is quantam cuique civi romano pecuniam iure publico dare legare volet, ius potestasque esto, dum ita detur legatum, ne minus quam partem quartam hereditatis eo testamento heredes capiant, eis, quibus quid ita datum legatumve erit, eam pecuniam sine fraude sua capere liceto isque heres, qui eam pecuniam dare iussus damnatus erit, eam pecuniam debeto dare, quam damnatus est".
The Falcidian Law was enacted, which in the first chapter granted a free faculty of bequeathing up to three-quarters with these words: " who are Roman citizens, whoever of them after this law has been enacted will wish to make a testament, that money and those things to whomsoever he will wish to give or bequeath, let right and power be, as by the following law it shall be permitted." In the second chapter it established the limit of legacies with these words: " whoever is a Roman citizen who after this law has been enacted shall make a testament, as much money as he will wish by public law to give or bequeath to any Roman citizen, let there be right and power, provided that the legacy be thus given, that the heirs by that testament take not less than the fourth part of the inheritance; to those to whom anything shall thus have been given or bequeathed, let it be permitted to take that money without their own fraud; and that heir who shall have been ordered and condemned to give that money shall be bound to give the money for which he has been condemned."
Item si ita legatum sit: " heres meus seio penum dato: si non dederit, decem dato", quidam putant omnimodo in legato decem esse, penum autem mortis causa capi nec in falcidiam imputare id heredem posse. ego autem didici, si in continenti heres penum solverit, videri hoc legatum esse et in legem falcidiam imputari posse: et quod dixi " in continenti" ita accipiendum cum aliquo spatio. quod si iam mora facta solverit heres penum, tunc nec legatum eum accepisse nec in falcidiam imputari posse: iam enim transfusum legatum esse et decem deberi.
likewise, if a legacy is thus left: "my heir, give Seius the penus; if he does not give it, give ten," some think that in every way there is ten in the legacy, but that the penus is taken mortis causa and that the heir cannot impute that to the Falcidian law. but I have learned that, if the heir in continenti delivers the penus, this is seen to be the legacy and can be imputed under the Lex Falcidia; and what I said "in continenti" is to be taken as allowing some interval. but if the heir, delay having already occurred, delivers the penus, then neither has he received the legacy nor can it be imputed to the Falcidia: for by now the legacy has been transferred over and the ten are owed.
Si usus fructus legatus sit ( qui et dividi potest, non sicut ceterae servitutes individuae sunt), veteres quidem aestimandum totum usum fructum putabant et ita constituendum, quantum sit in legato. sed aristo a veterum opinione recessit: ait enim posse quartam partem ex eo sic ut ex corporibus retineri idque iulianus recte probat. sed operis servi legatis cum neque usus neque usus fructus in eo legato esse videtur, necessaria est veterum sententia, ut sciamus quantum est in legato, quia necessario ex omnibus, quae sint facti, pars decedere debet, nec pars operae intellegi potest.
If a usufruct be bequeathed (which also can be divided, not as the other servitudes are indivisible), the ancients indeed thought that the whole usufruct must be appraised and thus determined, how much there is in the legacy. But aristo departed from the opinion of the ancients: for he says that a fourth part can be retained from it just as from corporeal things, and iulianus rightly approves this. But in legacies of a slave’s services, since neither use nor usufruct seems to be in that legacy, the opinion of the ancients is necessary, so that we may know how much is in the legacy, because necessarily from all things which are matters of fact a portion must be deducted, and a part of the services cannot be understood.
Interdum omnimodo necessarium est solidum solvi legatario interposita stipulatione " quanto amplius, quam per legem falcidiam ceperit, reddi": veluti si quae a pupillo legata sint non excedant modum legis falcidiae, veremur autem, ne impubere eo mortuo alia legata inveniantur, quae contributione facta excedant dodrantem. idem dicitur et si principali testamento quaedam sub condicione legata sunt, quae an debeantur incertum est. et ideo, si heres sine iudice solvere paratus sit, prospiciet sibi per hanc stipulationem.
Sometimes it is in every way necessary that the full amount be paid to the legatee, with an interposed stipulation, "that whatever more than he has taken under the Lex Falcidia be returned": for example, if the legacies made by a pupil do not exceed the measure of the Lex Falcidia, yet we fear that, he dying before puberty, other legacies may be found which, once contribution has been made, would exceed three-quarters. The same is said also if in the principal testament certain things are left under a condition, as to which it is uncertain whether they are owed. And therefore, if the heir is ready to pay without a judge, he will look to his own protection through this stipulation.
Id, quod ex substitutione coheredis ad coheredem pervenit, proficit legatariis: is enim similis est heres ex parte pure, ex parte sub condicione heredi instituto. sed ea, quae ab eo legata sunt, si omiserit hereditatem, non augebuntur, scilicet si ab eo nominatim data sunt, non " quisquis mihi heres erit".
That which, from the substitution of a coheir, comes to a coheir, profits the legatees: for he is like an heir instituted in part purely, in part under condition. But the things which have been bequeathed by him, if he omits the inheritance, will not be increased, namely if they were given by him by name, not " quisquis mihi heres erit".
Si coheredis mei portio exhausta sit, mea integra et illam vindicavero, cassius confundendas esse partes existimat, proculus contra: in qua specie et iulianus proculo adsensit, quam sententiam probabiliorem esse puto. sed et divus antoninus iudicasse dicitur commiscendas esse utrasque partes in computatione legis falcidiae.
if the portion of my coheir has been exhausted, mine being intact, and i shall have claimed that as well, cassius considers that the shares ought to be confounded (merged), proculus the contrary: in which case julian also assented to proculus, which opinion i think the more probable. but also the deified antoninus is said to have judged that both parts are to be commingled in the computation of the lex falcidia.
Id, quod natura hereditati debetur et peti quidem non potest, solutum vero non repetitur, non esse computandum in hereditate quidam putant. sed iulianus et haec ex eventu augere patrimonium aut non augere existimat et hereditario iure id quoque capi ideoque et in restitutionem hereditatis venturum.
That which by nature is owed to the inheritance and indeed cannot be claimed, yet if paid is not reclaimed, some think is not to be computed in the inheritance. But julianus considers that even these, according to the event, either augment the patrimony or do not augment it, and that by hereditary right that too is taken, and therefore will also come into the restitution of the inheritance.
De impensa monumenti nomine facta quaeritur, an deduci debeat. et sabinus ita deducendum putat, si necessarium fuerit monumentum extruere. Marcellus consultus, an funeris monumentique impensa, quantum testator fieri iussit, in aere alieno deduci debeat, respondit non amplius eo nomine, quam quod funeris causa consumptum est, deducendum.
Concerning an expense made under the name of a monument, it is asked whether it ought to be deducted. And Sabinus thinks it should be deducted, if it was necessary to erect a monument. Marcellus, when consulted whether the expense of the funeral and of the monument, to the extent that the testator ordered it to be done, ought to be deducted in the liabilities (debt), replied that under that head no more is to be deducted than what was consumed for the sake of the funeral.
Si heres institutus eam hereditatem quae solvendo non est vendiderit, vix quidem poterit persuaderi non fuisse eam hereditatem solvendo, quae emptorem invenerit: vera autem ratione nihil legatariis debebitur, quia magis ex stultitia emptoris habere videtur heres institutus quam ex bonis defuncti. nam et e contrario si male vendiderit res hereditarias, non erit hoc legatariorum detrimentum: ita ergo commodum debet esse heredis, si bene res administraverit.
If the instituted heir should sell that estate which is not solvent, it can scarcely indeed be persuaded that an estate which has found a buyer was not solvent; but in true reasoning nothing will be owed to the legatees, because the instituted heir seems to have rather from the buyer’s foolishness than from the goods of the deceased. For also conversely, if he should sell the hereditary property badly, this will not be a detriment of the legatees: thus therefore the benefit ought to be the heir’s, if he has administered the affairs well.
Sed et si is qui solvendo non est legaverit et heres cum creditoribus deciderit, ne solidum solveret, et ob eam decisionem factum sit, ut aliquid retineret, nihil tamen legatariis debiturum, quia eam pecuniam non ex hereditate, sed ex decisione habet.
But also, if one who is not solvent has made a legacy, and the heir has settled with the creditors, so that he should not pay the whole, and by that settlement it has come about that he retained something, nevertheless nothing will be owed to the legatees, because he has that money not from the inheritance, but from the settlement.
Fundo legato mihi sub condicione pendente legati condicione heres me heredem instituit ac postea legati condicio exstitit. in falcidiae ratione fundus non iure hereditario, sed legati meus esse intellegitur.
A farm having been bequeathed to me under a condition, while the condition of the legacy was pending the heir appointed me heir, and afterward the condition of the legacy came to pass. In the reckoning of the Falcidian portion, the farm is understood to be mine not by hereditary right, but by legacy.
Verbis legati vel fideicommissi non necessarie civitati relinquitur, quod ex causa pollicitationis praestari necesse est. itaque si debiti modum testamento dominus excessit, superfluum dumtaxat falcidia minuetur. quare nec fidei committi legatarii poterit.
By the words of a legacy or of a fideicommissum, there is not necessarily left to the city that which must be provided by reason of a pollicitation. And so, if the testator has exceeded in the testament the measure of what is owed, only the superfluous part will be reduced by the Falcidian deduction. Wherefore it cannot be committed to the faith of the legatee either.
Si servus sub condicione libertate data vita decessit, si quidem impleta condicio quandoque fuerit, heredi non videbitur perisse: quod si defecerit, in contrarium ratio trahit, sed quanti statuliber moriens fuisse videbitur.
If a slave, freedom having been granted under a condition, has departed life, then if the condition shall at any time have been fulfilled, he will not be seen to have been lost to the heir: but if it has failed, the reasoning draws to the contrary, yet only to the amount at which the statuliber, dying, will be judged to have been worth.
Cum quidam parte dimidia bonorum adempta fuisset relegatus idemque provocatione interposita testamento postea facto obisset atque post mortem eius non iuste appellatum esset pronuntiatum: quaesitum est, utrum aeris alieni loco pars dimidia abscederet, ut residua sola videretur fuisse in bonis, an vero succurri heredi necessarium esse videbitur. sed videtur succurri debere, cum animus litigantis et optinendi votum hanc opinionem admittit.
Since a certain man, with half of his goods taken away, had been relegated, and the same man, an appeal having been interposed, afterwards having made a testament, died; and after his death it was pronounced that the appeal had not been rightly made: the question was raised whether the half-part would be deducted in the place of a debt, so that the residue alone would seem to have been in his estate, or rather whether it would appear necessary to succor the heir. But it seems that succor ought to be afforded, since the mind of the litigant and the wish of prevailing admit this opinion.
Si servus testamento manumissus ante aditam hereditatem decedat, heredi quidem perisse intellegitur: sed cuius pretii erit, qui, si viveret, non aestimaretur? nam et eos, qui moriente domino ea valetudine affecti fuerant, ut eos non posse vivere certum esset, tamen, si postea moriantur, hereditati perisse responsum est. nec aliud in his, qui sub eodem tecto fuerunt, cum dominus a familia necaretur.
If a slave manumitted by testament dies before the inheritance is entered upon, he is indeed understood to have perished to the heir; but of what price will he be, who, if he were living, would not be appraised? For even those who, when their master was dying, had been affected by such an illness that it was certain they could not live, nevertheless, if they afterwards die, it has been answered that they have perished to the inheritance. Nor is it otherwise in the case of those who were under the same roof, when the master was being killed by the household.
Quod vulgo dicitur in tabulis patris et filii unam falcidiam servari quam potestatem habeat, videndum est: quamvis enim substitutus quae a pupillo relicta sunt, cum filius heres exstitit, ut aes alienum quodlibet debeat, tamen propter ea, quae data sunt tabulis secundis, contributioni locus est. secundum quae poterit evenire, ne substitutus quicquam retineat vel ut longe plus habeat quartae paternae hereditatis. quid ergo, si non sufficiat pupilli hereditas legatis, cum patris suffecisset?
What is commonly said—that in the tablets of father and son one Falcidian portion is preserved—what operative effect it has must be examined: for although the substitute, with respect to what has been left by the ward, when the son has become heir, is liable for any debt whatsoever, nevertheless, on account of the things that are given by the second tablets, there is room for contribution. According to this it can come about either that the substitute retains nothing, or that he has far more than a quarter of the paternal inheritance. What then, if the ward’s inheritance does not suffice for the legacies, whereas the father’s would have sufficed?
the substitute will give from his own (namely, a quarter), since the father bequeathed from his own: nor does it pertain to the matter that under no testament is anything performed beyond the powers of the patrimony, since in this part of the law the legacies which are left in the second tablets are understood as though left in the first under a condition.
Si filio suo duos substituerit et alterius portionem oneraverit, tractari solet, an ex persona sua falcidiam possit inducere substitutus, quam pupillus non haberet vel unus pupilli substitutus. et facile quis dixerit consequenter prioribus, quae de patrimonii ratione dicta sunt, non esse falcidiae locum et ultra vires portionis conveniendum alterum substitutum. sed verior est diversa sententia perinde huic quartam relinquendam existimantium atque ita si patri heres extitisset: ut enim opes patris et contributio legatorum inde capiunt et formam et originem, ita plures substituti subducta persona pupilli revocandi sunt ad intellectum institutionis.
If he has appointed two substitutes for his son and has burdened the portion of one of them, it is usually debated whether the substitute can, from his own person, introduce the Falcidian portion, which the pupil would not have, nor would a sole substitute of the pupil. And one might easily say, in consequence of the earlier points that were spoken concerning the account of the patrimony, that there is no place for the Falcidian [deduction], and that the other substitute must be proceeded against beyond the powers of his portion. But the truer view is a different one, of those who consider that a quarter must be left to this man just as if he had become heir to his father: for just as the father’s resources and the contribution of legacies take from that source both their form and their origin, so, with the person of the pupil subtracted, multiple substitutes are to be recalled to the understanding of the institution.
What, however, shall we say of the other substitute, who is not burdened? If perchance the ward has not yet paid the legacies left by himself, and there is in the aggregate something beyond the dodrans (three-quarters), will he too have the Falcidian deduction? And yet he has the quarter, nor does the comparison with the instituted heir permit the same.
again, if we deny it, something else is answered openly than what is commonly approved. and so a varietas will arise, such that he indeed who is burdened in his own name, as though instituted, should desire the fourth; but the other, who is not burdened, as a substitute, although his portio may bestow it, is not proceeded against in solidum on account of the confusion of the reckoning. consequent to this is that, if provision about the Falcidia was made for the ward, the stipulatio is committed to two, namely for that quantitas which each would have been able to retain for himself.
Quaesitum est, si quis pupillo coheredem substituisset, quemadmodum legis falcidiae ratio inquiri debeat? et quale est, quod volgo diceretur, legatorum rationem separandam? dixi, quantum ad legata, quae pater a filio, item a substituto reliquit, nullam fieri posse separationem, cum communi calculo subiciantur et invicem inducant contributionem.
It was asked, if someone had appointed a coheir as substitute to a ward, how the reckoning of the Falcidian law ought to be investigated? and what of that which was commonly said, that the account of the legacies should be separated? I said that, as regards the legacies which the father laid upon the son, and likewise upon the substitute, no separation can be made, since they are subjected to a common calculation and induce contribution to each other.
but the legacies which were given by an instituted outsider are not to be mixed with the others: and therefore the substitute is to have the quarter of the portion given to the ward, although he has his own portion as an instituted [heir]: and the case is different for one who would be written heir from various portions: for there the reckoning of legacies is to be confounded no less than if he had once been nominated from that portion which is composed from several, nor does it matter whether he has been instituted heir purely or often under diverse conditions.
Si quis exheredato filio substituit heredem institutum et ab eo tabulis quoque secundis legaverit, necessario ratio confundetur, cum ideo legata valere dixerit iulianus a substituto relicta, quod idem patri heres exstiterit.
If anyone, with his son disinherited, appoints a substitute to the instituted heir and has also, as from him, made bequests in second tablets, the rationale is necessarily thrown into confusion, since Julian said that the legacies left by the substitute are valid, because the same person has become heir to the father.
Pater filiam, quae a viro diverterat, heredem pro parte instituit et ab ea petit, ut fratri et coheredi suo portionem hereditatis acceptam deducta sexta restitueret, admissa compensatione dotis in falcidiae ratione. si pater dotem consentiente filia non petisset, falcidiam quidem iure hereditario, dotem autem iure proprio filiam habituram respondi, quia dos in hereditate patris non inveniretur.
The father instituted as heir for a share his daughter, who had separated from her husband, and from her he asks that she restore to her brother and coheir the portion of the inheritance received, a sixth having been deducted, with the compensation (set-off) of the dowry admitted in the Falcidian reckoning. If the father had not sought the dowry with the daughter’s consent, I answered that the daughter would have the Falcidian allowance by hereditary right, but the dowry by her own right, because the dowry would not be found in the father’s inheritance.
Avia nepotibus heredibus institutis fideicommisit, ut omissa retentione, quae per legem falcidiam ex alio testamento competebat, solida legata fratribus et coheredibus solverent. recte datum fideicommissum respondi, sed huius quoque onus in contributionem venire.
The grandmother, having instituted her grandsons as heirs, laid a fideicommissum that, waiving the retention which under the Lex Falcidia was competent from another testament, they should pay the legacies in full to the brothers and coheirs. rightly given was the fideicommissum, I replied, but the burden of this too comes into contribution.
Quod si frater fratri legitimus heres exstitit et impuberi supremo substitutus, portio quidem paternorum bonorum, quam intestatus puer accepit, rationi falcidiae non confundetur, sed quartam eius tantum portionem substitutus retinebit, quam inpubes accepit qui substitutum habuit.
Now, if a brother has become the legitimate heir to his brother and has been appointed as substitute in the last place for an underage person, the portion of the paternal goods which the boy, dying intestate, received will not be merged into the Falcidian reckoning; but the substitute will retain only a fourth of that portion which the underage person, who had a substitute, received.
Frater cum heredem sororem scriberet, alium ab ea cui donatum volebat stipulari curavit, ne falcidia uteretur et ut certam pecuniam, si contra fecisset, praestaret. privatorum cautione legibus non esse refragandum constitit et ideo sororem iure publico retentionem habituram et actionem ex stipulatu denegandam.
When a brother, as he wrote his sister as heir, took care that another should stipulate from her—on behalf of the one to whom he wished a donation to be made—that she would not use the Falcidian quarter and that, if she acted contrary, she would render a fixed sum of money. It is settled that by the caution of private persons the laws are not to be gainsaid; and therefore the sister will have the retention under public law, and the action ex stipulatu is to be denied.
Quod avus ex causa tutelae nepoti debuit, cum avo nepos solus heres exstitisset, ratio falcidiae si poneretur, in aere alieno bonis deducendum respondi. nec ad rem pertinere, quod heredem avus idemque tutor rogaverat, ut, si sine liberis ante certam aetatem decederet, tam hereditaria quam propria bona restitueret: non enim ex hoc hereditatem debito compensatam videri, cum vel ideo maxime declaretur non esse compensationem factam, quoniam heredem suum habere propria bona defunctus ostendit. plane si condicio fideicommissi fuerit impleta, fructus hereditatis post mortem avi percepti pari pecunia debito tutelae compensabuntur, sed quartam heres nepotis de bonis dumtaxat, quae moriens avus reliquit, retinebit.
What the grandfather owed to his grandson by reason of tutelage, when the grandson had become the grandfather’s sole heir, I answered is, if the Falcidian reckoning be set, to be deducted from the assets as a liability. Nor does it matter that the grandfather, who was also the tutor, had requested the heir (by a fideicommissary charge) that, if he should die without children before a certain age, he restore both the hereditary goods and his own goods: for from this it does not appear that the inheritance was set off against the debt, since for this very reason it is most clearly declared that no set-off was made, because the deceased shows that his own goods have their own heir. Clearly, if the condition of the fideicommissum has been fulfilled, the fruits of the inheritance received after the grandfather’s death will be set off by an equal sum of money against the guardianship debt; but the heir of the grandson will retain the fourth only from the goods which the grandfather left when dying.
Cum fideicommissum, ex voluntate matris a patre moriente debitum, filio pater hereditate sua, quam in filium conferebat, compensari voluit: quod filio debetur, si ratio falcidiae poni coeperit, fini quadrantis, quem ex bonis patris cum effectu percepit, compensabitur atque ita superfluum aeris alieni dodranti tantum detrahetur.
When a fideicommissum, owed by the father at his death according to the will of the mother, the father wished to be offset to the son against his own inheritance, which he was transferring to the son: what is owed to the son, if the reckoning of the Falcidian portion begins to be set out, will be offset up to the limit of a quarter, which he actually received from the father’s goods; and thus the surplus of the debt will be deducted only to the extent of three-quarters.
Fructus praediorum sub condicione verbis fideicommissi relictorum in causam fideicommissi non deductos heres in ratione falcidiae sic accepto facere sibi cogitur, ut quartam, et quartae fructus ex die mortis, bonorum quae mortis tempore fuerunt habeat. nec ad rem pertinet, quando falcidia lex admissa sit: nam etsi maxime post impletam condicionem fideicommissorum locum habere coepit, tamen ex die mortis fructus quadrantis apud heredem relinqui necesse est.
The fruits of estates, left under a conditional fideicommissum by words and not brought into the account of the fideicommissum, the heir is compelled, for the reckoning of the Falcidian law, to enter to his own credit in such a way that he have the fourth, and the fruits of the fourth from the day of death, of the goods that existed at the time of death. Nor does it pertain to the matter when the Falcidian law was admitted; for although it especially began to have place after the condition of the fideicommissum was fulfilled, nevertheless from the day of death it is necessary that the fruits of the quarter remain with the heir.
Si post missionem faciat codicillos miles et intra annum decedat, ex testamento, quod in militia iure militari fecit, plena legata, ex codicillis habita falcidiae ratione praestari debere dicitur. sed res ita expedietur: si, cum quadringenta haberet, testamento quadringenta, codicillis centum legaverit, ex quinta parte, id est octoginta, quae ad legatarium ex codicillis pervenirent, si falcidiam non pateretur, quartam, id est viginti heres retinebit.
If, after discharge, a soldier makes codicils and dies within a year, it is said that from the testament which he made while in service by military law the legacies are to be furnished in full, but from the codicils they are to be furnished with the Falcidian reckoning observed. But the matter will be settled thus: if, when he had 400, he has bequeathed 400 by the testament and 100 by the codicils, from the fifth part, that is 80, which would come to the legatee from the codicils if it did not suffer the Falcidia, the heir will retain a fourth, that is 20.
Filius familias qui militaverat decedens patris sui fidei commisit codicillis, ut peculium suum castrense titio post mortem restitueret: quaerebatur, an ut heres quartam deducere possit. dixi legem falcidiam inductam esse a divo pio etiam in intestatorum successionibus propter fideicommissa: sed in proposito nec hereditatem esse, quamvis placeret mihi extraneo herede instituto fieri hereditatem aditione eius: nam cum apud patrem remanet, ius pristinum durat et peculium est. nec huic contrarium est, quod in testamento eius qui apud hostes decessit exercetur falcidia: nam fictio legis corneliae et hereditatem et heredem facit.
A son under paternal power, who had served as a soldier, when dying entrusted by codicils to the good faith of his father that his military peculium be restored to Titius after death. The question was asked whether he can, as heir, deduct the Falcidian quarter. I said that the Lex Falcidia was introduced by the deified Pius even in intestate successions on account of fideicommissa; but in the case proposed there is not even an inheritance, although it pleases me that, if an outsider has been instituted heir, an inheritance comes into being upon his acceptance: for since the thing remains with the father, the former law endures and it is a peculium. Nor is it contrary to this that in the testament of one who died among the enemy the Falcidian is applied: for the fiction of the Lex Cornelia makes both an inheritance and an heir.
but I do not doubt that the beneficium of the law ought to be indulged in this as well, since he is compelled to restore the goods as if of a paterfamilias, and the instituted heir, with the acceptance (aditio) from the testament omitted, will be proceeded against, on the model of the Edict, under the title of legacies.
Si pupillus, cui sine tutore auctore decem mutua data sunt, legatum a creditore meruerit sub hac condicione, si decem quae acceperit heredi reddiderit, una numeratione et implet condicionem et liberatur naturali obligatione, ut etiam in falcidia heredi imputentur, quamvis non imputarentur, si tantum condicionis implendae causa data fuissent. adeo autem et solvere videtur, ut repudiato legato vel sticho qui legatus est mortuo nihil repetere possit.
If a ward, to whom ten were given as a loan without a tutor as authorizer, has deserved a legacy from the creditor under this condition—if he shall have returned to the heir the ten which he received—by a single payment he both fulfills the condition and is freed from the natural obligation, so that they are even imputed to the heir in the Falcidian calculation, although they would not be imputed if they had been given solely for the sake of fulfilling the condition. So much so is he also deemed to have paid, that, upon repudiating the legacy, or if Stichus who was bequeathed has died, he can recover nothing.
Si ego et servus meus heredes instituti simus ex diversis partibus nec a servo erogatus dodrans, his quibus a me legatum est contra falcidiam proderit quod ex portione servi ad me pervenit supra falcidiam eius portionis. ex contrario si servo meo servus et mihi decem legata fuerint, servi falcidia ex ^ et^ decem mihi legatis non tenetur exemplo eodem falcidiae: nam quartam retineo ex persona servi, quamvis de mea portione nihil exhaustum sit.
If I and my slave have been instituted heirs from different portions, and the dodrans has not been disbursed by the slave, it will benefit, against the Falcidian law, those to whom a legacy has been left by me, that from the slave’s portion there has come to me over and above the Falcidian allowance of his portion. Conversely, if a slave has been bequeathed to my slave and to me ten have been left, the slave’s Falcidia is not charged upon the ^and^ ten left to me by the same application of the Falcidia: for I retain a fourth in the person of the slave, although nothing of my own portion has been exhausted.
Nesennius apollinaris iulio paulo. ex facto, domine, species eiusmodi incidit. titia filias suas tres numero aequis ex partibus scripsit heredes et a singulis legata invicem dedit, ab una tamen ita legavit tam coheredibus eius quam extraneis, ut falcidiae sit locus.
nesennius apollinaris to iulius paulus. From the deed, sir, a case of this kind has arisen. titia instituted her daughters—three in number—as heirs in equal shares and gave legacies from each to the others in turn; from one, however, she thus bequeathed, both to her coheirs and to outsiders, that there is room for the Falcidian deduction.
I ask whether, against her coheirs—from whom she herself also received legacies—she can avail herself of the Falcidian, and, if she cannot or if a defense of fraud is to be interposed, how the computation of the Falcidian can be entered against strangers. I answered: that, indeed, which is received from a coheir under the name of legacies does not usually redound to the benefit of legatees so that they do not undergo the Falcidian deduction; but when the person who is going to perform the legacy claims something from that same person under the will, he is not to be heard who desires to use the benefit of the Falcidian against him, if by what he is going to receive, according to the testator’s will, he makes up what he wishes to deduct. Clearly, as to the other legatees, he will not impute the whole of what he renders to the coheir, but as much as he would have given if he were receiving nothing from him.
Servo herede instituto si a domino fideicommissa, a servo legata data sunt, prius ratio legatorum habenda est, deinde ex eo quod superest fideicommissorum. dominus enim ideo tenetur, quod ad eum pervenit: pervenit autem, quod deductis legatis superest. plane falcidiam exercet.
If a slave has been instituted as heir, and fideicommissa have been imposed by the master while legacies have been given by the slave, first account must be taken of the legacies, and then, from what remains, of the fideicommissa. For the master is liable only to the extent of what has come to him; and what has come to him is that which remains after the legacies have been deducted. Clearly, he exercises the Falcidian portion.
Si debitori liberatio legata sit, quamvis solvendo non sit, totum legatum computetur, licet nomen hoc non augeat hereditatem nisi ex eventu. igitur si falcidia locum habeat, hoc plus videbitur legatum, quod huic legatum esset: cetera quoque minuentur legata per hoc et ipsum hoc per alia; capere enim videtur eo, quod liberatur.
If a release is bequeathed to a debtor, although he is not solvent, the whole legacy is to be reckoned, although this claim (nomen) does not augment the inheritance except by the outcome. therefore, if the Falcidian deduction has place, this will be considered a larger legacy than one that would have been bequeathed to him: the other legacies too will be diminished by this, and this very one by the others; for he is deemed to take in that he is released.
Si fundus mihi legetur et via, in falcidiae ratione, si tantum sit in via, quantum amplius est in falcidia, integer fundus capietur et via perit. sed si via legetur nec solvendo sit hereditas, non debebitur. videndum etiam, si fundo et via legato minus ex utroque desideret quam sit viae pretium.
If a farm is bequeathed to me and a way, then in the Falcidian calculation, if there is in the way just as much as the excess over the Falcidian [portion], the farm will be taken entire and the way lapses. But if a way is bequeathed and the inheritance is not solvent, it will not be owed. It must also be considered, if, with a farm and a way bequeathed, the shortfall from both together is less than the value of the way.
it can, by a constrained reasoning, be said not only that the estate is taken entire, but also that the exception of fraud makes good only as much as is lacking, lest he have more than the Falcidian deduction requires: so that only then does the way/right‑of‑way lapse, whenever the Falcidian deduction requires more than the price of the way.
Maritum suum et filium communem aequis partibus heredes instituit: quaesitum est, an in ratione legis falcidiae imputandum sit marito, quod ad eum ex eadem hereditate per filium pervenit. respondit, si ex institutione filii tantum retineat, quantum ad falcidiam satis sit, nihil quartae nomine deducendum.
She instituted her husband and their common son as heirs in equal parts: it was asked whether, in the reckoning of the Lex Falcidia, there should be imputed to the husband what came to him from the same inheritance through the son. He responded: if from the son’s institution he retains only so much as suffices for the Falcidian quarter, nothing is to be deducted under the name of the quarter.
A liberto, cui fundum legaverat, per fideicommissum seiae annua decem dedit: quaesitum est, si lex falcidia liberti legatum minuerit, an seiae quoque annuum fideicommissum minutum videatur, cum reditus largiatur annuam praestationem. respondit secundum ea quae proponerentur non videri minutum, nisi alia mens testatoris probetur.
From a freedman, to whom he had bequeathed a farm, he gave to Seia, through a fideicommissum, ten annually: it was asked, if the Falcidian law has diminished the freedman’s legacy, whether the annual fideicommissum for Seia also appears diminished, since the revenue bestows the annual payment. He replied that, on the basis of what was presented, it does not seem diminished, unless a different intention of the testator is proved.
Lineam margaritorum triginta quinque legavit, quae linea apud legatarium fuerat mortis tempore: quaero, an ea linea heredi restitui deberet propter legem falcidiam. respondit posse heredem consequi, ut ei restituatur, ac, si malit, posse vindicare partem in ea linea, quae propter legis falcidiae rationem deberet remanere.
He bequeathed a strand of pearls, thirty-five in number, which strand was with the legatee at the time of death: I ask whether that strand ought to be restored to the heir on account of the Lex Falcidia. He responded that the heir can obtain that it be restored to him, and, if he prefers, he can vindicate a part in that strand which, by reason of the reckoning of the Lex Falcidia, ought to remain.
" seius et agerius si intra diem trigesimum mortis meae rei publicae nostrae caverint contentos se futuros tot aureis legis falcidiae beneficio omisso, heredes mihi sunto. quos invicem substituto. quod si voluntati meae non consenserint, exheredes sunto". quaesitum est, an heredes instituti hereditatem adire possint, si condicioni parere nolunt, cum habeant substitutos eadem condicione praescripta.
"Seius and Agerius, if within the thirtieth day from my death they shall have given security to our commonwealth that they will be content with so many aurei, with the benefit of the Lex Falcidia waived, let them be my heirs. I substitute them for one another. But if they shall not have consented to my will, let them be disinherited." It was asked whether the instituted heirs can enter upon the inheritance if they are unwilling to comply with the condition, since they have substitutes prescribed under the same condition.
In ratione legis falcidiae mortes servorum ceterorumque animalium, furta, rapinae, incendia, ruinae, naufragia, vis hostium praedonum latronum, debitorum facta peiora nomina, in summa quodcumque damnum, si modo culpa legatarii careant, heredi pereunt: quemadmodum ad heredis lucrum pertinent fructus, partus ancillarum et quae per servos adquisita sunt, ut stipulationes, rerum traditiones, legata hereditatesve his datae, ceterae donationes, item servitutes, quibus liberata praedia pretiosiora fierent, actionesque adquisitae, ut furti damni iniuriae similesque, quorum nihil in rationem legis falcidiae cadit.
In the reckoning under the Falcidian Law, the deaths of slaves and of other animals, thefts, rapines, fires, collapses, shipwrecks, the violence of enemies, pirates, and bandits, debtor-names made worse (debt-claims deteriorated), in sum whatever loss, provided only that the legatees are free from fault, fall upon the heir; just as to the heir’s profit pertain the fruits, the offspring of maidservants, and the things acquired through slaves, such as stipulations, traditions (deliveries) of things, legacies or inheritances given to them, other donations, likewise servitudes, by the release of which estates, being freed, became more valuable, and actions acquired, such as for theft, for wrongful damage, and the like—of none of which does anything fall into the account under the Falcidian Law.
Vendere autem vel emere iussus certo pretio fundum aliamve quampiam rem in legis falcidiae ratione, cum quantum sit legatum requiratur, tantum eo nomine inducetur, quanto pluris minorisve sit res ea quantitate, quam quo pretio testator accipi darive iussit, sed ut ei quidem portioni, quae legatis deductis facienda erit, amplius deducetur: quippe non nostri causa capi id pretium, sed eo deducto pretium reliquum legatum esse intellectum est.
However, where one is ordered to sell or to buy at a fixed price a farm or some other thing, in the reckoning under the Falcidian law, when the quantum of the legacy is inquired, there will be brought in under that head only so much as the thing is worth more or less than that amount at which the testator ordered it to be accepted or to be given; but with the result that from that portion which, with the legacies deducted, will have to be made up, there will be a further deduction: for that price is not taken for our sake, but, that being deducted, the remaining value is understood to be the legacy.
Prorsus diligenter animadvertendum est, ne quod dicitur damna post mortem testatoris illata ad solum heredem respicere usque quaque et sine ulla distinctione recipiatur. quod enim remota lege falcidia in totum iuris foret, hoc idem fore in ea parte, quae lege falcidia constitueretur: hoc enim attinet damna postea facta non deduci, ne amota portio legatis fideive commissis detrahatur.
It must be observed very diligently, lest the statement that losses inflicted after the testator’s death look only to the heir be received everywhere and without any distinction. For what, with the Falcidian law set aside, would be entirely a matter of right, this same will be in that portion which is established by the Falcidian law: for the point is that losses afterward incurred are not to be deducted, lest the portion withdrawn be subtracted from legacies and fideicommissary bequests.
Certis vero corporibus et his ipsis ita relictis: " pecuniam, quam in illa arca", " vinum, quod in illis doleis", " pondus argenti, quod in illis horreis habeo", si sine culpa heredis deperierunt vel deteriora sunt facta, procul dubio aut nihil debebitur aut eorum quae exstabunt qualia erunt ea portio debebitur, quae per legem falcidiam efficiatur ex aestimatione bonorum, quae mortis testatoris tempore fuerint.
But in the case of specific corporeal items, and these themselves left in this way: " the money which is in that chest", " the wine which is in those casks", " the weight of silver which I have in those storehouses", if they have perished without the heir’s fault or have been made worse, without doubt either nothing will be owed, or, of those that will be extant, in whatever condition they will be, that portion will be owed which, under the Falcidian law, is effected from the valuation of the assets as they were at the time of the testator’s death.
Incertae autem res relictae distinctionem recipiunt: nam si ex suis rebus incertam rem testator reliquisset, veluti " argentum quod elegerit", et omne argentum testatoris interisset sine culpa heredis, nihil deberetur: sin vero argenti pondus pure relictum esset, quamvis omne argentum testatoris deperisset, admissa lege falcidia portio eius quantitatis sumetur, quae fuit in bonis eo tempore quo testator decessit, nec ad imminuendam eam quicquam damna postea incidentia proficient.
Uncertain things left by bequest receive a distinction: for if from his own goods the testator had left an uncertain thing, for instance, " argentum quod he shall have chosen", and all the testator’s silver had perished without the heir’s fault, nothing would be owed: but if a weight of silver had been left purely (unconditionally), although all the testator’s silver had perished, subject to the Lex Falcidia a portion of that quantity will be taken which was in the estate at the time when the testator died, nor will losses occurring afterwards avail to diminish it.
Tametsi autem legis falcidiae ratione, quae condicionis implendae causa heredi sunt data, in quartam non computantur, tamen id, quod non figura condicionis accipere iussus est ab eo, cui hereditatem restituere rogatus est, celso et iuliano nostro placuit computari, quemadmodum si ea summa heres vendere eas res iussus esset, quia non condicionis implendae causa, sed quodammodo pro pretio inferre sunt iussi. quo loco amplius quaesitum est, an fideicommissarius quoque invitus cogatur dare eam summam et recipere hereditatem, quasi et ipsius fidei commissum esset: sed et verisimile non est, cum talis oratio magis ipsius causa, quam contra ipsum posita videatur.
Although, however, by the reckoning of the Lex Falcidia, things that are given to the heir for the purpose of fulfilling a condition are not computed in the quarter, nevertheless that which he was ordered to accept not under the guise of a condition from the one to whom he was asked to restore the inheritance, Celsus and our Julian held should be computed, just as if the heir had been ordered to sell those things for that sum, because they were ordered to bring it in not for the purpose of fulfilling a condition, but in a certain manner as a price. At this point it was further asked whether the fideicommissary also, though unwilling, is compelled to give that sum and to receive the inheritance, as if the trust were his as well; but this is not even likely, since such a form of words seems to have been set more for his sake than against him.
Cum lex falcidia intervenit, non veniunt in contributionem, quae ipsi heredi a semetipso vel servo eius legata fideive commissa sunt. alia causa est eorum, quae in die certa dantur: nam si libertatis dies coepit cedere, ei debebuntur et in contributionem veniunt. ac ne ea quidem, quae quis servis suis inutiliter sine libertate legavit fideive commisit, in computationem eius legis cedunt.
When the lex Falcidia intervenes, those things do not come into contribution which have been left as legacies or fideicommissary bequests to the heir himself by himself or by his slave. Another case is that of things given on a fixed day: for if the day of liberty has begun to accrue, they will be owed to him and they come into contribution. And not even those things which someone has ineffectually, without liberty, bequeathed or committed by fideicommissum to his own slaves fall into the computation of that law.
Is cui fideicommissum solvitur sicut is cui legatum est satisdare debet, quod amplius ceperit, quam per legem falcidiam ei licuerit, reddi: veluti cum propter condicionem aliorum fideicommissorum vel legatorum legis falcidiae causa pendebit. sed et secundum cassii et veterum opinionem, si a pupillo fideicommissa capiuntur, propter ea, quae a substituto erunt relicta, cavere debebit is cui solvatur. nam quamvis repetitio sit eorum, quae fideicommissi nomine non debita solventur, tamen satisdato cautum debet esse ei, a quo pecunia proficisceretur, ne damnum sentiat deficiente eo, cui solutum erit.
He to whom a fideicommissum is paid, just as he to whom a legacy is given, ought to furnish surety that whatever he has taken beyond what the Falcidian Law permitted him shall be returned: for instance, when because of the condition of other fideicommissa or legacies the application of the Falcidian Law will be pending. But also, according to the opinion of Cassius and the ancients, if fideicommissa are taken from a ward (pupillus), on account of those things which will be left by the substitute, the person to whom it is paid must give security. For although a repetition (recovery) lies for things which are paid under the name of fideicommissum though not owed, nevertheless by a surety it ought to be provided for him from whom the money proceeds, lest he suffer loss if the one to whom it will have been paid defaults.
Poenales actiones sive legitimae sive honorariae exceptis popularibus in bonis actoris non ideo minus computandae sunt, quia morte reorum intercidere possunt. e contrario autem eaedem actiones nihil bonis rei defuncto eo detrahunt. sed ne in actoris quidem bonis defuncto eo iniuriarum actio poterit computari, quia et ipsa simul cum eo intercidit, ut usus fructus et id quod in dies menses annosve singulos alicui quoad vivat debeatur.
penal actions, whether statutory or honorary, popular ones excepted, are none the less to be reckoned among the plaintiff’s assets, not because they may lapse by the death of the defendants. conversely, however, these same actions take nothing from the defendant’s assets upon his decease. but not even in the plaintiff’s assets, upon his decease, can the action for injuries (insult) be reckoned, because it too perishes together with him, as do a usufruct and that which is owed to someone from day to day, month by month, or year by year, so long as he lives.
for indeed only that obligation finally furnishes a diminution of the defendant’s goods which passes to the heir. nor is it contrary that, while the defendant was living, it was accounted the less among his goods: for even if he had so stipulated that someone would begin to owe to him when he should die, nevertheless his goods would be augmented; just as, if he himself had promised under the same condition, he being deceased his goods would be diminished.
Iulianus scribit, si utriusque heredis pars exhausta est legatis et alter ex heredibus cautionem praetoriam accepit a legatariis, non aequaliter, sed pro suo modo legis falcidiae rationem et actionem ex stipulatu habiturum. omnes enim praetorias stipulationes eiusdem interpretationis esse: nam constare ex iudicatum solvi stipulatione, sive a parte actoris sive a rei plures heredes exstitissent, non omnibus nec adversus omnes actionem contingere, sed dumtaxat his qui vicissent et adversus victos, hisque, adversus quos res defensa non esset, adversus eos, qui rem non defendissent.
Julian writes: if the share of each heir has been exhausted by legacies and one of the heirs has received a praetorian caution from the legatees, he will have, not equally, but in proportion to his own measure, the reckoning of the Lex Falcidia and an action ex stipulatu. For all praetorian stipulations are of the same interpretation: for it is established with the iudicatum solvi stipulation that, whether on the plaintiff’s side or on the defendant’s there have been several heirs, the action does not accrue to all nor against all, but only to those who have won and against those who have been defeated, and likewise, on the side against which the matter has not been defended, against those who have not defended the matter.
Si titio viginti legatis portio per legem falcidiam detracta esset, cum ipse quoque quinque seio rogatus esset restituere, vindius noster tantum seio pro portione ex quinque detrahendum ait, quantum titio ex viginti detractum esset. quae sententia et aequitatem et rationem magis habet, quia exemplo heredis legatarius ad fideicommissa praestanda obligabitur: nec quia ex sua persona legatarius inducere legem falcidiam non possit, idcirco quod passus esset non imputaturum: nisi forte testator ita fidei eius commisisset ^ commisisset^, ut totum, quidquid ex testamento cepisset, restitueret.
If, from the twenty bequeathed to titio, a portion had been deducted under the Falcidian law, since he himself also had been asked to restore five to seio, our vindius says that only so much should be deducted for seio proportionally from the five as had been deducted for titio from the twenty. Which opinion has equity and reason more on its side, because, by the precedent of the heir, the legatee will be obligated to provide the fideicommissa; nor, because the legatee cannot invoke the Falcidian law in his own person, will he on that account not impute what he has suffered; unless perhaps the testator had so committed it to his good faith ^ commisisset^, that he should restore the whole of whatever he had taken under the testament.
Plane si quid sit praeterea legatum ipsi servo, falcidiae locum fore senatus declaravit. unde scaevola ait in eo, quod praeterea servo legatum est, ita falcidiam admittendam, ut inde et quod pro servo praestandum est sumatur.
Plainly, if anything has besides been bequeathed to the slave himself, the senate declared that there would be room for the Falcidian deduction. Whence Scaevola says that, in that which has moreover been bequeathed to the slave, the Falcidian deduction is to be admitted in such a way that from it also that which must be furnished on behalf of the slave is taken.
Si solus servus legatus et fideicommissa libertate donatus fuerit, licet falcidia interveniente totus vindicari petive potest. sed et si aliud praeterea capiat legatarius, adhuc servus totus peti potest: quartam autem utriusque ex legato retinendam, ne impediatur libertas.
If a single slave has been bequeathed and has been endowed with freedom by fideicommissum, then, although the Falcidian deduction intervenes, he may be claimed or demanded in his entirety. And even if the legatee also takes something else besides, still the slave may be demanded whole; but a fourth of each legacy is to be retained, lest freedom be impeded.
Si incertum sit, an libertas praestari debeat, veluti quod sub condicione vel post tempus data sit, numquid incerto eo an praestetur, cum possit aut servus mori aut condicio deficere, interim falcidia admittenda est, deinde cum libertas competere vel deberi coeperit, tum legatarius illam partem recipiat, quam falcidia detraxit? caecilio placebat, si quid ex operis eius medio tempore consecutus fuerit heres, id in pretium eius erogare eum debere propter legis falcidiae rationem.
If it is uncertain whether liberty ought to be furnished, as where it has been given under a condition or after a term, is it perhaps, since it is uncertain whether it will be furnished—seeing that either the slave may die or the condition may fail—that in the interim the Falcidia should be admitted, and then, when liberty begins to accrue or to be owed, the legatee should receive that part which the Falcidia deducted? Caecilius approved that, if the heir has obtained anything from his services in the meantime, he ought to expend it toward his price on account of the ratio of the Lex Falcidia.
In his legatis, quae sub condicione relicta sunt, proculus putabat, cum quaeritur de lege falcidia, tantum esse in legato, quanti venire possunt: quod si est, et deductio sic potest fieri, ut tantum videatur vi deberi, quanti nomen venire potest. sed haec sententia non probatur: cautionibus ergo melius res temperabitur.
In the case of those legacies which have been left under condition, Proculus thought, when inquiry is made concerning the Lex Falcidia, that there is only so much in the legacy as they can be sold for: if that is so, the deduction likewise can be made in such a way that only so much appears, in effect, to be owed as the claim (nomen) can be sold for. But this opinion is not approved: therefore the matter will be better regulated by securities.
Lex falcidia si interveniat, in omnibus pensionibus locum habet: sed hoc ex post facto apparebit. ut puta in annos singulos legatum relictum est: quamdiu falcidia nondum locum habet, integrae pensiones annuae dabuntur: sed enim si annus venerit, quo fit, ut contra legem falcidiam ultra dodrantem aliquid debeatur, eveniet, ut retro omnia legata singulorum annorum imminuantur.
If the Lex Falcidia should intervene, it has application in all installments; but this will appear from a subsequent event. Suppose a legacy is left for each several year: so long as the Falcidia has not yet taken effect, the full annual installments will be paid; but if a year arrives in which it comes about that, contrary to the Falcidian law, something is owed beyond the three-quarters, it will ensue that retroactively all the legacies of the several years are cut down.
Cum emptor venditori vel contra heres exstitit, evicto homine utrum duplum in aes alienum deducere vel computare debeat an simplum? duplum enim esset, si alius heres exstitisset. et benignius est eodem herede existente simplum ei imputari.
When the buyer has become heir to the seller, or conversely, with the man (slave) evicted, ought he to deduct or to compute against the outstanding debt the double, or the single? For it would be the double, if some other heir had arisen. And it is more benign that, the same heir existing, the single be imputed to him.
Plautius. servo, quem tibi legaveram, fundum legavi. atilicinus nerva sabinus primum in servo rationem legis falcidiae habendam et quota pars ex eo decederet, eam partem in fundo legato inutilem futuram, deinde ex reliquis partibus fundi legis falcidiae portionem decessuram, sicut ex omnibus legatis.
Plautius. To the slave whom I had bequeathed to you, I bequeathed a farm. Atilicinus, Nerva, Sabinus say first that, in regard to the slave, account must be taken of the Lex Falcidia, and whatever portion would be cut off from it, that portion would be ineffectual in the bequest of the farm; then, from the remaining parts of the farm, a portion under the Lex Falcidia will be deducted, as from all legacies.
cassius, because by the Falcidian law a portion is deducted from the slave, says that the slave begins to become common to the heir and the legatee; and when a legacy has been left to a common slave, the whole pertains to the partner, because the legacy can stand (vest) in that person: by which reasoning, the portion of the Falcidian law will be deducted once from the farm. paulus. we use cassius’s opinion: for the deified Pius also rescripted that a fideicommissum given to a common slave pertains in its entirety to the partner.
Interdum evenit, ut propter rationem legis falcidiae sequens legatum exstinguatur, veluti si fundus et ad eum via legata sit per alium fundum: nam si pars fundi remanserit in hereditate, non potest procedere viae legatum, quia per partem servitus adquiri non potest.
Sometimes it happens that, by reason of the Falcidian law, a subsequent legacy is extinguished, for example if an estate and, to it, a right of way has been bequeathed through another estate: for if a part of the estate has remained in the inheritance, the legacy of the way cannot proceed, because a servitude cannot be acquired over a part.
Ex asse patronum heredem instituit libertus, cum ducentos aureos in bonis haberet, et legavit filio centum viginti, extraneo reliqua: deminutio legati, quod extraneo praestat legatum, proficit filio ad consequenda solida, quae ei legata sunt.
A freedman appointed his patron heir of the whole share, when he had two hundred aurei in his assets, and he bequeathed to his son one hundred and twenty, to a stranger the remainder: the abatement of the legacy—in that the legacy to the stranger is made to yield—benefits the son toward obtaining in full the sums that have been bequeathed to him.
Pater filium, ex quo tres habebat nepotes, heredem instituit fideique eius commisit, ne fundum alienaret et ut in familia eum relinqueret: filius decedens tres filios scripsit heredes. quaerendum est, an omnino quasi creditores unusquisque in ratione legis falcidiae aliquid possit deducere, quia in potestate sua habuit pater, cui ex his potius relinqueret. sed hac ratione nemo in falcidiae ratione quicquam deducet.
A father appointed his son—by whom he had three grandsons—as heir, and entrusted to his faith not to alienate the estate and to leave it within the family; the son, dying, appointed his three sons as heirs. It is to be inquired whether, altogether, as if they were creditors, each one can deduct something in the computation under the Lex Falcidia, because the father had it in his power to which of these he would rather leave it. But on this reasoning no one will deduct anything in the Falcidian computation.
Cum titio in annos singulos dena legata sunt et iudex legis falcidiae rationem inter heredem et alios legatarios habeat, vivo quidem titio tanti litem aestimare debeat, quanti venire id legatum potest, in incerto posito, quamdiu victurus sit titius: mortuo autem titio non aliud spectari debet, quam quid heres ex ea causa debuerit.
When an annual legacy of ten has been bequeathed to Titius, and the judge is to reckon the account of the Lex Falcidia between the heir and the other legatees, while Titius is alive he ought to assess the suit at as much as that legacy can fetch if sold, it being uncertain how long Titius will live; but once Titius has died, nothing else should be regarded except what the heir owed on that account.
Cum quo de peculio agi poterat, heres creditori exstitit: quaeris, cuius temporis peculium computari oporteat in falcidia lege. plerique putant, quod tunc in peculio fuerit, cum adiretur hereditas, inspiciendum. ego dubito, quoniam mortis tempus in ratione legis falcidiae ineunda placuit observari: quid enim interest, peculium servi post mortem creditoris deminutum sit an debitor pauperior factus sit?
He, with whom suit about the peculium could be brought, has become heir to the creditor: you ask at what time the peculium ought to be computed under the Falcidian law. Most think that what was then in the peculium, when the inheritance was entered upon, should be considered. I am in doubt, since it has been approved that the time of death is to be observed in entering upon the reckoning of the lex Falcidia: for what difference does it make whether the slave’s peculium was diminished after the creditor’s death, or the debtor became poorer?
Aliquis dicet: quid ex contrario, si ante aditam hereditatem adquisierit servus? et ego quaeram, si debitoris, qui tunc non erat solvendo, ampliatae facultates fuerunt? et cum in isto placuerit ex post facto uberiorem videri fuisse hereditatem, sicuti cum condicio crediti exstitit post mortem, ita etiam peculii incrementum pleniorem faciet hereditatem.
Someone will say: what, conversely, if the slave acquired it before the inheritance was entered upon? And I will ask: what if the debtor—who at that time was not solvent—afterwards had his means enlarged? And since in that case it has been decided that the inheritance is to be regarded as having been more abundant by reason of the after-occurring fact, just as when the condition of the credit arose after death, so too an increase of the peculium will make the inheritance fuller.
Is, qui in bonis unum dumtaxat servum habebat, legavit eum titio et fidei eius commisit, ut post triennium manumitteret: debet ex eo, quod interim ex operis servi ad titium pervenire potest, quarta apud heredem remanere, quemadmodum si directo post triennium servo libertatem dedisset eiusque usum fructum ei legasset, aut ei proprietatem per fideicommissum relinquit.
He, who had among his goods only one slave, bequeathed him to titio and committed it to his faith, that he should manumit him after three years: of that which in the meantime can come to titio from the slave’s works, a quarter ought to remain with the heir, just as if he had directly given the slave liberty after three years and had bequeathed to him the usufruct, or leaves to him the ownership through a fideicommiss.
Saepius evenit, ne emolumentum eius legis heres consequatur: nam si centum aureorum dominus viginti quinque alicui dedisset et eum instituerit heredem et dodrantem legaverit, nihil aliud sub occasione legis falcidiae intervenire potest, quia vivus videtur heredi futuro providere.
It more often happens that the heir does not obtain the emolument of that law: for if the owner of one hundred aurei had given twenty-five to someone and has instituted him as heir and has bequeathed three-quarters, nothing else can intervene under the pretext of the Lex Falcidia, because he seems, while alive, to be providing for his future heir.
Legato petito cum in litem iuratum est, ratio legis falcidiae non eius summae, in quam legatarius iuravit, haberi debet, sed eius, quanti re vera id fuit quod petitum est: nam id quod poenae causa adcrevit in legem falcidiam non incidit.
When, the legacy having been sought, an in‑litem oath has been sworn, the calculation of the Lex Falcidia ought not to be made by that sum for which the legatee swore, but by that amount which in truth the thing claimed was worth: for that which accrued by way of penalty does not fall under the Lex Falcidia.
Alienus fundus tibi legatus est: hunc heres cum emere nisi infinito pretio non posset, emit multo pluris, quam quanti erat, qua emptione effectum est, ut legatarii ad legem falcidiam revocarentur. quaero, cum, si fundus tanti, quanti re vera, emptus esset, legata non fuerant excessura ius legis falcidiae, an hoc ipso heres institutus partem revocandi a legatariis ius habeat, quod ex voluntate defuncti pluris emerit fundum, quam quanti erat. respondit: quod amplius heres quam pretium fundi legatario solvit, id lege falcidia imputari non potest, quia neglegentia eius nocere legatariis non debet, utpote cum is confitendo veram aestimationem praestare poterat.
An alien plot has been bequeathed to you: since the heir could not buy this except at an infinite price, he bought it for much more than it was worth, and by that purchase it came about that the legatees were recalled under the Lex Falcidia. I ask, since, if the plot had been bought for as much as it truly was worth, the legacies would not have exceeded the right of the Lex Falcidia, whether on that very account the instituted heir has the right of recalling a portion from the legatees, because, in accordance with the testator’s will, he bought the plot for more than it was worth. He replied: that which the heir paid to the legatee beyond the price of the plot cannot be imputed under the Lex Falcidia, because his negligence ought not to harm the legatees, inasmuch as by confessing the true valuation he could have rendered satisfaction.
In lege falcidia hoc esse servandum iulianus ait, ut, si duo rei promittendi fuerint vel duo rei stipulandi, si quidem socii sint in ea re, dividi inter eos debere obligationem, atque si singuli partem pecuniae stipulati essent vel promisissent: quod si societas inter eos nulla fuisset, in pendenti esse, in utrius bonis computari oporteat id quod debetur vel ex cuius bonis detrahi.
Julian says that under the Falcidian law this must be observed: if there are two co-promisors or two co-stipulators, then, if indeed they are partners in that matter, the obligation ought to be divided between them, just as if each had stipulated for or promised a part of the money; but if there was no partnership between them, it remains in suspense in which of the two’s goods what is owed ought to be computed, or from whose goods it should be deducted.
Pretia rerum non ex affectu nec utilitate singulorum, sed communiter funguntur. nec enim qui filium naturalem possidet tanto locupletior est, quod eum, si alius possideret, plurimo redempturus fuisset. sed nec ille, qui filium alienum possidet, tantum habet, quanti eum patri vendere potest, nec exspectandum est, dum vendat, sed in praesentia, non qua filius alicuius, sed qua homo aestimatur.
The prices of things are governed not by the affection nor the utility of individuals, but commonly. For neither is he who possesses his natural son any wealthier on the ground that, if someone else possessed him, he would redeem him for a very great price. But nor does he who possesses another’s son have as much as the amount for which he can sell him to the father; nor is it to be waited for until he sells, but at the present he is appraised, not as someone’s son, but as a human being.
The same case holds for a slave who has committed a noxal offense: for by delinquency no one becomes more valuable. But nor, as Pedius writes, is a slave instituted as heir after the testator’s death worth so much the more, by as much as he can fetch a higher price. For it is absurd that I myself, instituted heir, am not more wealthy before I accept, but if a slave has been instituted heir, that I am straightway made more wealthy, since for many reasons it can happen that he does not enter upon it at our order. He certainly acquires for us when he has entered; but it is preposterous that we should be said to be wealthy before we have acquired.
Nonnullam tamen pretio varietatem loca temporaque adferunt: nec enim tantidem romae et in hispania oleum aestimabitur nec continuis sterilitatibus tantidem, quanti secundis fructibus, dum hic quoque non ex momentis temporum nec ex ea quae raro accidat caritate pretia constituantur.
Nevertheless, places and times do bring some variation to price: for oil will not be appraised at the same amount in Rome and in Spain, nor, in continuous sterilities, at the same as when harvests are favorable, provided that here too prices are not established from the moments of the times nor from a dearness that rarely occurs.
Si fundus legatus sit quinquaginta dignus sub hac condicione, si quinquaginta heredi dedisset, plerique putant utile esse legatum, quia condicionis implendae causa datur: nam constat etiam falcidiam eum pati posse. sed si quinquaginta aurei legati sint, si quinquaginta dedisset, dicendum inutile esse legatum et magis ridiculum esse.
If a piece of land bequeathed, worth fifty, is under this condition—if he should give fifty to the heir—most think the legacy is effective, because it is given for the sake of fulfilling the condition; for it is agreed that he can even suffer the Falcidian deduction. But if fifty aurei are bequeathed—if he should give fifty—it must be said the legacy is useless, and is rather ridiculous.
Circa legem falcidiam in eo, quod sub condicione vel in diem alicui relictum est, hoc observandum est: si decem sub condicione alicui fuerint relicta eaque condicio post decennium forte exstiterit, non videntur decem huic legata, sed minus decem, quia intervallum temporis et interusurium huius spatii minorem facit quantitatem decem.
Concerning the Falcidian law, in the matter of what is left to someone under a condition or for a term, this must be observed: if ten have been left to someone under a condition and that condition should happen to occur after ten years, it is not deemed that ten were bequeathed to him, but less than ten, because the interval of time and the interest accruing during this span make the quantity of ten smaller.
Quotiens cuidam amplius legatum sit, quam ei capere liceret, et lex falcidia locum haberet, prius falcidiae ratio habenda est, scilicet ut subducto eo, quod lex falcidia exceperit, reliquum, si non excedat statutam lege portionem, debeatur.
Whenever more has been bequeathed to someone than it is permitted for him to take, and the Falcidian Law has place, the reckoning of the Falcidia must first be made, namely that, with that amount subtracted which the Falcidian Law has excepted, the remainder, if it does not exceed the portion fixed by law, is owed.
Computationi in alimentis faciendae hanc formam esse ulpianus scribit, ut a prima aetate usque ad annum vicesimum quantitas alimentorum triginta annorum computetur eiusque quantitatis falcidia praestetur, ab annis vero viginti usque ad annum vicesimum quintum annorum viginti octo, ab annis viginti quinque usque ad annos triginta annorum viginti quinque, ab annis triginta usque ad annos triginta quinque annorum viginti duo, ab annis triginta quinque usque ad annos quadraginta annorum viginti. ab annis quadraginta usque ad annos quinquaginta tot annorum computatio fit, quot aetati eius ad annum sexagesimum deerit remisso uno anno: ab anno vero quinquagesimo usque ad annum quinquagesimum quintum annorum novem, ab annis quinquaginta quinque usque ad annum sexagesimum annorum septem, ab annis sexaginta, cuiuscumque aetatis sit, annorum quinque. eoque nos iure uti ulpianus ait et circa computationem usus fructus faciendam.
Ulpian writes that this is the form to be used for computation in maintenance: that from the earliest age up to the twentieth year the quantity of maintenance for 30 years be computed, and the Falcidian portion of that amount be provided; but from 20 years up to the twenty-fifth year, 28 years; from 25 years up to 30 years, 25 years; from 30 years up to 35 years, 22 years; from 35 years up to 40 years, 20 years. From 40 years up to 50 years, the computation is made for as many years as his age will lack to the sixtieth year, with one year remitted; but from the fiftieth year up to the fifty-fifth year, 9 years; from 55 years up to the sixtieth year, 7 years; from 60 years, whatever the age may be, 5 years. And Ulpian says that we use the same law also for making the computation of usufruct.
It is nevertheless customary that from the first age up to the thirtieth year a computation of thirty years is made; but from thirty years one enters a computation of as many years as seem to be lacking to the sixtieth year. Therefore a computation of more than thirty years is never undertaken. Thus, finally, even if a usufruct to the Republic is bequeathed, whether simply or for the games, a computation of thirty years is made.
Si quis ex heredibus rem propriam esse contendat, deinde hereditariam esse convincatur, quidam putant eius quoque falcidiam non posse retineri, quia nihil intersit, subtraxerit an hereditariam esse negaverit: quod ulpianus recte improbat.
If anyone among the heirs should contend that a thing is his own property, and then it is proved to be hereditary, some think that even his Falcidian portion cannot be retained, because it makes no difference whether he has subtracted it or has denied it to be hereditary; which Ulpian rightly disapproves.
In quantitate patrimonii exquirenda visum est mortis tempus spectari. qua de causa si quis centum in bonis habuerit et tota ea legaverit, nihil legatariis prodest, si ante aditam hereditatem per servos hereditarios aut ex partu ancillarum hereditariarum aut ex fetu pecorum tantum accesserit hereditati, ut centum legatorum nomine erogatis habiturus sit heres quartam partem, sed necesse est, ut nihilo minus quarta pars legatis detrahatur. et ex diverso, si ex centum septuaginta quinque legaverit et ante aditam hereditatem in tantum decreverint bona, incendiis forte aut naufragiis aut morte servorum, ut non plus quam septuaginta quinque vel etiam minus relinquatur, solida legata debentur.
In determining the quantity of the patrimony it has been deemed that the time of death is to be looked to. For which cause, if someone had 100 among his goods and bequeathed all of them, it profits the legatees nothing if, before the inheritance is entered upon, there has accrued to the inheritance through hereditary slaves or from the birth of hereditary maidservants or from the offspring of the herds so much that, with 100 disbursed under the name of legacies, the heir would be going to have a fourth part; rather it is necessary that nonetheless a fourth part be deducted from the legacies. And conversely, if out of 100 he has bequeathed 75 and before the inheritance is entered upon the goods have decreased to such an extent—by fires perhaps or shipwrecks or the death of slaves—that no more than 75 or even less is left, the legacies are owed entire.
Magna dubitatio fuit de his, quorum condicio mortis tempore pendet, id est an quod sub condicione debetur in stipulatoris bonis adnumeretur et promissoris bonis detrahatur. sed hoc iure utimur, ut, quanti ea spes obligationis venire possit, tantum stipulatoris quidem bonis accedere videatur, promissoris vero decedere. aut cautionibus res explicari potest, ut duorum alterum fiat, aut ita ratio habeatur, tamquam pure debeatur, aut ita, tamquam nihil debeatur, deinde heredes et legatarii inter se caveant, ut exsistente condicione aut heres reddat, quanto minus solverit, aut legatarii restituant, quanto plus consecuti sint.
There was great doubt concerning those whose condition depends on the time of death, that is, whether that which is owed under a condition should be counted into the goods of the stipulator and deducted from the goods of the promissor. But we use this law, that, by as much as that expectation of the obligation could come for sale—that is, be valued—by so much it appears to be added to the stipulator’s goods, and conversely to be subtracted from the promissor’s. Or the matter can be set out by cautions (securities), so that one of two things be done: either the reckoning be had as though it were owed purely (unconditionally), or as though nothing were owed; then let the heirs and legatees give cautions among themselves, so that, with the condition existing, either the heir pay back the amount by which he has paid less, or the legatees restore the amount by which they have obtained more.
Sed et si legata quaedam pure, quaedam sub condicione relicta efficiant, ut exsistente condicione lex falcidia locum habeat, pure legata cum cautione redduntur. quo casu magis in usu est solvi quidem pure legata perinde ac si nulla alia sub condicione legata fuissent, cavere autem legatarios debere ex eventu condicionis quod amplius accepissent redditu iri.
But also, if certain legacies are left purely and certain others under a condition, in such a way that, when the condition comes to pass, the Falcidian law has place, the pure legacies are paid with security. In which case it is more the practice that the pure legacies are indeed discharged just as if no other legacies had been left under a condition, but that the legatees must give security that, according to the event of the condition, whatever they have received in excess will be returned.
In diem relicta legata alterius esse iuris palam est, cum ea omnimodo tam ipsi legatario quam heredibus eius deberi certum est: sed tanto minus erogari ex bonis intellegendum est, quantum interea donec dies optingit, heres lucraturus est ex fructibus vel usuris.
It is clear that legacies left for a fixed day are of a different law, since it is certain that in any case they are owed both to the legatee himself and to his heirs; but it must be understood that so much the less is to be disbursed from the goods, as in the meantime, until the day comes, the heir is going to profit from the fruits or interest.
Ergo optimum quidem est statim ab initio ita testatorem distribuere legata, ne ultra dodrantem relinquantur. quod si excesserit quis dodrantem, pro rata portione per legem ipso iure minuuntur: verbi gratia si is, qui quadringenta in bonis habuit, tota ea quadringenta erogaverit, quarta pars legatariis detrahitur: si trecenta quinquaginta legaverit, octava. quod si quingenta legaverit habens quadringenta, initio quinta, deinde quarta pars detrahi debet: ante enim detrahendum est, quod extra bonorum quantitatem est, deinde quod ex bonis apud heredem remanere oportet.
Therefore, indeed, it is best that the testator from the very beginning so distribute the legacies that they not be left beyond three-quarters. But if someone has exceeded the three-quarters, they are diminished pro rata by the law, ipso iure: for example, if a man who had 400 in his goods has expended all those 400, a fourth part is taken away from the legatees; if he has bequeathed 350, an eighth. But if he has bequeathed 500 while having 400, at the outset a fifth, then a fourth part ought to be deducted: for first there must be deducted what is beyond the amount of the goods, and then what ought to remain from the goods with the heir.
Quod autem dicitur, si ex iudicio defuncti quartam habeat heres, solida praestanda esse legata, ita accipere debemus, si hereditario iure habeat: itaque quod quis legatorum nomine a coherede accepit, in quadrantem ei non imputatur.
However, as for what is said, that if by the judgment of the deceased the heir has a fourth, the legacies are to be provided in solidum, we ought to take it thus: if he has it by hereditary right; and so what someone has received from a coheir under the name of legacies is not imputed to his quarter.
Id autem, quod condicionis implendae causa vel a coherede vel a legatario vel a statulibero datur, in falcidia non imputatur, quia mortis causa capitur. sane si a statulibero peculiares nummos accipiat, pro sua parte quadranti eos imputare debet, quia pro ea parte non mortis causa capere, sed hereditario iure eos habere intellegitur.
However, that which, for the sake of fulfilling a condition, is given either by a coheir, or by a legatee, or by a statuliber, is not charged to the Falcidian portion, because it is taken mortis causa. Yet if he receives peculium money from the statuliber, he ought to impute it to the quarter for his own share, because as to that share he is understood not to take it mortis causa, but to hold it by hereditary right.
Qua ratione placuit legata, quae legatarii non capiunt, cum apud heredes subsederint, hereditario iure apud eos remanere intellegi et ideo quadranti imputanda, nec quicquam interesse, utrum statim ab initio legatum non sit an quod legatum est remanserit.
For this reason it has been decided that legacies which the legatees do not take, when they have settled with the heirs, are understood to remain with them by hereditary right and therefore are to be imputed to the quarter; nor does it make any difference whether from the very beginning there was no legacy, or whether what was bequeathed has remained.
In singulis heredibus rationem legis falcidiae componendam esse non dubitatur. et ideo si titio et seio heredibus institutis semis hereditatis titii exhaustus est, seio autem quadrans totorum bonorum relictus sit, competit titio beneficium legis falcidiae.
There is no doubt that, for each individual heir, the computation of the Lex Falcidia is to be made. And therefore, if, with titio and seio appointed as heirs, titio’s half-share of the inheritance has been exhausted, but for seio a quarter of all the goods remains, the benefit of the Lex Falcidia accrues to titio.
Quod si alterutro eorum deficiente alter heres solus exstiterit, utrum perinde ratio legis falcidiae habenda sit, ac si statim ab initio is solus heres institutus esset, an singularum portionum separatim causae spectandae sunt? et placet, si eius pars legatis exhausta sit, qui heres exstiterit, adiuvari legatarios per deficientem partem, quia ea non est legatis onerata, quia et legata quae apud heredem remanent efficiunt, ut ceteris legatariis aut nihil aut minus detrahatur: si vero defecta pars fuerit exhausta, perinde in ea ponendam rationem legis falcidiae, atque si ad eum ipsum pertineret, a quo defecta fieret.
But if, with either of them failing, the other has become sole heir, is the account of the Falcidian law to be made just as if from the very beginning he alone had been instituted heir, or are the causes of the several portions to be considered separately? And it is held that, if the share of him who has become heir has been exhausted by legacies, the legatees are aided out of the failing share, because that share is not burdened with legacies; for the legacies which remain with the heir bring it about that from the other legatees either nothing or less is deducted. But if the failed share has been exhausted, the account of the Falcidian law is to be applied to it just as if it pertained to that very person by whom the failure occurred.
In duplicibus testamentis sive de patrimonio quaeramus, ea sola substantia spectatur, quam pater cum moreretur habuerit, nec ad rem pertinet, si post mortem patris filius vel adquisierit aliquid vel deminuerit: sive de legatis quaeramus, tam ea quae in primis quam ea quae in secundis tabulis relicta sunt in unum contribuuntur, tamquam si et ea, quae a filii herede reliquisset testator, a suo herede sub alia condicione legasset.
In duplicate testaments, whether we inquire concerning the patrimony, only that substance is regarded which the father had when he was dying, and it does not pertain to the matter if after the father’s death the son either acquired something or diminished it; whether we inquire concerning legacies, both those which were left in the first tablets and those which were left in the second tablets are brought together into one, as though even those things which the testator had directed to be given by the son’s heir he had bequeathed to be given by his own heir under another condition.
Si is, qui quadringenta in patrimonio habebit, filio impubere herede instituto ducenta legaverit eique titium et seium heredes substituerit et a titio centum legaverit, videamus, quid iuris sit. si nondum solutis legatis pupillus decesserit et ob id ea legata utrique debent, solus heres titius utetur lege falcidia: cum enim ducenta ex hereditate pupilli ad eum pertineant, ducenta legatorum nomine debet, centum ex ducentis quae pupillus debebat, centum quae ipse dare iussus est: itaque ex utraque quantitate quarta deducta habebit quinquaginta. in persona vero seii lex falcidia non intervenit, cum ad eum ex hereditate pupilli ducenta pertineant et debeat legatorum nomine centum ex ducentis, quae a pupillo relicta sunt.
If a man, who will have four hundred in his patrimony, has instituted as heir his underage son and has bequeathed two hundred, and has substituted Titius and Seius as heirs for him, and has bequeathed one hundred to be given by Titius, let us see what the law is. If the pupil dies before the legacies are paid, and on that account those legacies are owed by each of them, only the heir Titius will make use of the Law of Falcidia: for since two hundred from the inheritance of the pupil pertain to him, he owes two hundred in the name of legacies—one hundred out of the two hundred which the pupil owed, and one hundred which he himself is ordered to give. And so, a fourth being deducted from each amount, he will have fifty. But in the case of Seius the Law of Falcidia does not intervene, since to him two hundred from the inheritance of the pupil pertain and he owes, in the name of legacies, one hundred out of the two hundred which were left by the pupil.
Quaedam legata divisionem non recipiunt, ut ecce legatum viae itineris actusve: ad nullum enim ea res pro parte potest pertinere. sed et si opus municipibus heres facere iussus est, individuum videtur legatum: neque enim ullum balineum aut ullum theatrum aut stadium fecisse intellegitur, qui ei propriam formam, quae ex consummatione contingit, non dederit: quorum omnium legatorum nomine, etsi plures heredes sint, singuli in solidum tenentur. haec itaque legata, quae dividuitatem non recipiunt, tota ad legatarium pertinent.
Certain legacies do not admit division, as, for example, a legacy of a road, of a path, or of a driving-right: for that thing can pertain to no one in part. And if the heir is ordered to make a work for the municipes, the legacy seems indivisible as well: for he is not understood to have made any bathhouse or any theater or stadium who has not given it its proper form, which comes from consummation. Under the name of all these legacies, even if there are several heirs, each is held for the whole (in solidum). Therefore these legacies, which do not receive divisibility, pertain in their entirety to the legatee.
Quaerebatur, cum is qui solum in nomine quadringenta in bonis habebat ipsi debitori liberationem, seio autem quadringenta legaverit, si debitor vel solvendo non sit vel centum facere possit, quantum quisque habeat interventu legis falcidiae. dicebam legem falcidiam ex eo quod refici ex hereditate potest quartam heredi tribuere, residuum dodrantem inter legatarios distribuere. quare cum nomen minus solvendo est in hereditate, eius quod exigi potest pro rata fit distributio, residui venditio facienda est, ut id demum in hereditate computetur, quanti nomen distrahi potest.
It was asked, since a man who had only a “nomen” (claim) of four hundred among his assets had bequeathed to the debtor himself a release, but to Seius four hundred, if the debtor is either not solvent or can make one hundred, how much each should have by the intervention of the Lex Falcidia. I used to say that the Lex Falcidia assigns to the heir a quarter from what can be made good out of the inheritance, and distributes the remainder, the three-quarters (dodrans), among the legatees. Therefore, since the claim (nomen) in the inheritance is less than solvent, a pro rata distribution is made of that which can be exacted, and a sale of the residue must be effected, so that there is reckoned in the inheritance only so much as the claim can be sold for.
but when a release is left to the debtor, he appears solvent to himself and, so far as concerns himself, rich: for if there is entered to his credit as “acceptum” on account of death that which he owes, he will be seen to have taken 400, although he can do nothing; for he is deemed to have felt full release, although he can do nothing. if the release has been left to him alone, then, with the Falcidian law intervening, 300 must be carried to him as “acceptum”; the remaining 100 will endure in the obligation, and if indeed he begins to be able to perform, they will be exacted from him only up to 100. and the same must be said even if 400 are carried to him mortis causa as “acceptum”.
whence it is elegantly said that the acceptilation will be in suspense, so that, if at the time of death the whole 400 are found, the acceptilation shall be valid for 300; but if, in addition, something is found which makes up the quarter for the heir, the acceptilation will take effect for 400. but if this debtor of 400 can make only 100, since he is solvent to himself, he will be obliged to refund 100. therefore, since the debtor is self‑solvent, it will come about that, if with some heir appointed a release is left to the debtor himself and 400 are bequeathed to another, then, if the debtor is solvent, he retains 150 out of the 300, another 150 are provided to the legatee, the heir has 100; but if he can make only 100, a fourth from the refilled amount must be kept for the heir: thus it will come about that the 100 which can be rendered are divided into four parts, the legatees take three parts, the heir has 25, and the debtor, who is not solvent, sets off 150 to himself.
as to the remaining 150, which cannot be exacted, a sale of the claim (nomen) will be made, and this is realized as though it alone were in the assets. but if the debtor can do nothing, he is likewise to be released, by the acceptum, in the amount of 150; as to the residue, neratius says that a sale of the claim is to be made, which we also approve.
Repperitur casus, quo heres agere potest, quamvis testator agere non potuerit: veluti si tutor, cum solveret legata, non interposuerit stipulationem, quanto plus quam per legem falcidiam capi licuerit solutum fuerit, reddi: pupillus quidem eo nomine tutelae non agit, sed heredi eius hoc quoque nomine tutor obligatus erit.
A case is found in which the heir can bring an action, although the testator could not have brought one: for instance, if a tutor, when paying legacies, did not interpose a stipulation that whatever had been paid beyond what it was permitted to take under the Lex Falcidia be returned; the ward indeed does not sue on guardianship on that account, but the tutor will be obligated to his heir on this ground as well.
Si dos socero data est et solus filius heres patri exstitisset, dotem confestim in computatione hereditatis et falcidiae ratione in aere alieno deducet: aliter enim videbitur indotatam uxorem habere. quod si filius extraneum coheredem habeat, ipse quidem semper pro qua parte patri heres erit dotem in aere alieno deducet, et coheres eius, antequam dos a filio praecipiatur.
If a dowry has been given to the father-in-law, and the son alone has become heir to his father, he will immediately, in the computation of the inheritance and by the Falcidian reckoning, deduct the dowry as debt; for otherwise he will seem to have a wife without dowry. But if the son has an outsider as coheir, he himself, to be sure, will always, according to the share for which he is heir to his father, deduct the dowry as debt, and so will his coheir, before the dowry is preempted by the son.
Titia testamento suo titium fratrem suum ex parte tertia heredem instituit fideique eius commisit, ut hereditatem retenta quarta parte secundae et proculae restituat: eadem fratri quaedam praedia praelegavit: quaero, an titius ea quae praelegata sunt etiam pro ea parte hereditatis, quam rogatus est ut ^ ^ restitueret ^ ^ , restituere an integra retinere debeat. respondi titium legata integra retinere debere, sed in partem quartam imputari oportere duodecimam partem praediorum. sed si non esset adiectum, ut pars quarta deduceretur, totum trientem praediorum legi falcidiae imputari oportere, quoniam contra sententiam matris familiae lex falcidia induceretur.
Titia by her testament instituted her brother titium as heir from a third part, and committed to his good faith that, the fourth part retained, he restore the inheritance to secunda and procula: to the same brother she prelegated certain estates: I ask whether titius must restore the things that were prelegated also for that part of the inheritance which he was asked to ^ ^ restore ^ ^, or ought to retain them intact. I answered that titius ought to retain the legacies intact, but that into the fourth part a twelfth part of the estates ought to be imputed. But if it had not been added that the fourth part be deducted, the whole third of the estates ought to be imputed to the Lex Falcidia, since contrary to the intention of the materfamilias the Lex Falcidia would be introduced.
Item is, qui duos fundos in bonis centum haberet, si me et titium heredes instituisset et damnasset me, ut titio fundum cornelianum quinquaginta venderem et contra titium damnasset, ut mihi fundum seianum quinquaginta venderet: non animadverto, quemadmodum lex falcidia locum habere possit, cum uterque heredum unius fundi partem dimidiam hereditario iure habiturus sit, in qua pars dimidia hereditatis est: nam certe qui damnatus est fundum cornelianum vendere, seiani fundi partem hereditario iure habet, item qui damnatus est seianum fundum vendere, partem corneliani fundi hereditario iure retinet.
Likewise, if someone who had two estates among assets of one hundred had instituted me and Titius as heirs and had charged me to sell to Titius the Cornelian estate for fifty, and conversely had charged Titius to sell to me the Seian estate for fifty: I do not perceive how the Lex Falcidia could have a place, since each of the heirs will have by hereditary right one half of one estate, in which is one half of the inheritance; for certainly he who is charged to sell the Cornelian estate has by hereditary right a share of the Seian estate, and likewise he who is charged to sell the Seian estate retains by hereditary right a share of the Cornelian estate.
Si tu ex parte quarta, titius ex parte quarta heredes scripti fueritis, deinde tu ex parte dimidia heres institutus fueris sub condicione, et legata, item libertates datae fuerint: pendente condicione libertates competent, legata tota praestabuntur, quia sive condicio exstiterit, te herede exsistente utraque valent, sive condicio defecerit, tu et titius heredes eritis. de lege falcidia, si hoc quaeris, an exsistente condicione miscetur quadrans tuus et semis atque ita pro dodrante ratio ponenda est cum his, quibus a te pure herede legatum est, respondebimus misceri duas partes.
If you and Titius have been written as heirs, you to a fourth part and Titius to a fourth part, and then you have been instituted heir to a half under a condition, and legacies and likewise manumissions have been given: while the condition is pending, the manumissions will accrue, the legacies will be provided in full, because whether the condition is fulfilled, with you being heir both are valid, or whether the condition fails, you and Titius will be heirs. As to the Lex Falcidia, if you ask this—whether, the condition existing, your quarter (quadrans) and the half (semis) are mingled, and thus the reckoning is to be set at three-quarters (dodrans) with those to whom a legacy has been left by you as heir without condition—we will answer that the two portions are mingled.
Qui filium suum impuberem et titium aequis partibus heredes instituerat, a filio totum semissem legaverat, a titio nihil et titium filio substituerat. quaesitum est, cum titius ex institutione adisset et impubere filio mortuo ex substitutione heres exstitisset, quantum legatorum nomine praestare deberet. et placuit solida legata eum praestare debere: nam confusi duo semisses efficerent, ut circa legem falcidiam totius assis ratio haberetur et solida legata praestarentur.
One who had instituted his own underage son and Titius as heirs in equal parts had charged the son with a legacy of the whole half, had charged Titius with nothing, and had substituted Titius to the son. The question was asked, when Titius had entered upon the inheritance under the institution and, the underage son having died, had become heir under the substitution, how much he ought to render by way of legacies. And it was decided that he ought to render the legacies in solidum: for the two halves, being merged, would bring it about that, with respect to the Lex Falcidia, reckoning is had of the whole as, and the legacies are rendered in full.
but this is true in this way if the son had died before he became heir to his father. if, however, he was heir to his father, the substitute does not owe legacies larger than those by which the pupillus had been bound, because he is bound not in his own name, but in that of the deceased pupillus, who had necessity to render nothing more than three-quarters of the half.
Quod si extranei heredis semis totus legatus fuerit isque pupillo, a quo nihil legatum erat, ex substitutione heres exstiterit, poterit dici augeri legata et perinde agendum, ac si cuilibet coheredi substitutus fuisset eoque omittente hereditatem ex asse heres exstitisset, quia semper substitutus rationem legis falcidiae ex quantitate bonorum, quae pater reliquerit, ponet.
But if the half share of an extraneous heir has been wholly bequeathed, and that person has become heir to a pupil by substitution, from whom nothing had been bequeathed, it can be said that the legacies are augmented; and one must proceed just as if he had been substituted to any coheir and, that one omitting the inheritance, he had become heir to the whole, because a substitute will always set the reckoning of the Lex Falcidia according to the quantity of the goods which the father shall have left.
Qui filios impuberes duos habebat, alterum heredem instituit, alterum exheredavit, deinde exheredatum instituto substituit ac postea exheredato maevium et ab eo legavit: et exheredatus fratri impuberi exstitit heres, deinde impubes decessit. cum iudicio patris facultates paternae per causam hereditariam ex substitutione ad eum perveniant, potest dici legata ab eo relicta praestanda esse habita ratione legis falcidiae in his bonis, quae pater mortis tempore reliquerit. nec huic contrarium est, quod, cum exheredato pater legatum dederit, nihilo magis substitutus legatis obligabitur, quia eo casu non hereditatis paternae portio, sed legatum ad eum pervenit.
He who had two underage sons appointed one as heir, disinherited the other, then substituted the disinherited one to the instituted, and afterward he substituted Maevius to the disinherited and charged legacies upon him; and the disinherited became heir to his underage brother, then the minor died. Since by the father’s disposition the paternal assets, by hereditary cause through the substitution, come to him, it can be said that the legacies left by him are to be provided, with regard had to the Falcidian Law, out of those goods which the father left at the time of death. Nor is it contrary to this that, when the father gave a legacy to the disinherited, the substitute will be by no means bound by the legacies, because in that case not a portion of the paternal inheritance, but a legacy, came to him.
Someone will say: what then, if the disinherited son did not become heir to his brother by substitution, but either by law or through an interposed person, and thus the underage boy died? Is the substitute also to be considered to owe the legacies in this case? By no means: for how much it makes a difference whether the disinherited son becomes heir to his brother by substitution or in some other way appears even from this, that in some cases the father could bequeath from him, in other cases he could not.
Coheres pupillo datus si pro parte sua legata, habita legis falcidiae ratione, praestiterit, deinde impubere mortuo ex substitutione heres exstiterit et semis pupilli legatis exhaustus esset, ex integro legis falcidiae ratio ponenda erit, ut contributis legatis, quae ab ipso et quae a pupillo data fuerant, pars quarta bonorum apud eum remaneat. licet enim pupillo heres exsistat, tamen circa legem falcidiam perinde ratio habetur ac si patri heres exstitisset. nec aliter augebuntur legata, quae ab ipso ultra dodrantem data fuerant, quam augentur, cum ex parte heres institutus et coheredi suo substitutus deliberante coherede legata, habita ratione legis falcidiae, solvit, deinde ex substitutione alteram quoque partem hereditatis adquirat.
If a coheir appointed together with a ward has, for his own share, paid the legacies, regard being had to the Falcidian Law, and then, the underage person having died, has become heir by substitution, and the half has been exhausted by the ward’s legacies, the computation under the Falcidian Law must be set up anew, so that, with the legacies pooled—those that had been given by himself and those given by the ward—a fourth part of the goods remains with him. For although he becomes heir to the ward, nevertheless, as regards the Falcidian Law, account is taken just as if he had become heir to the father. Nor will the legacies which had been given by him beyond the dodrans (three-quarters) be augmented otherwise than they are augmented when a person, instituted heir for a part and substituted to his coheir, with the coheir deliberating, pays the legacies, regard being had to the Falcidian Law, and then from the substitution also acquires the other part of the inheritance.
Qui quadringenta habebat, trecenta legavit: deinde fundum tibi dignum centum aureis sub hac condicione legavit, si legi falcidiae in testamento suo locus non esset: quaeritur, quid iuris est. dixi twn aporwn hanc quaestionem esse, qui tractatus apud dialecticos tou qeudomenou dicitur. etenim quidquid constituerimus verum esse, falsum repperietur.
A man who had four hundred bequeathed three hundred; then he bequeathed to you a farm worth one hundred gold pieces (aurei) under this condition: if there were no place in his will for the Falcidian law. The question is asked, what is the law. I said that this question is among the aporiae, the treatment among the dialecticians called of the pseudomenos (the “Liar”); for whatever we establish to be true will be found false.
for indeed if we say that the legacy given to you is to be valid, there will be room for the Falcidian Law and therefore, the condition failing, it will not be owed. again, if, because the condition fails, the legacy is not to be valid, there will be no room for the Falcidian Law: furthermore, if there is no room for the law, the condition existing, the legacy will be owed to you. since, however, it appears that the intention of the testator was this—that, on account of your legacy, he did not wish the legacies of the others to be diminished—it is rather that we ought to determine that the condition of your legacy has failed.
Quid ergo dicemus, si ducenta legavit et tibi similiter sub eadem condicione ducenta legata esse proponantur? nam aut exstitisse aut defecisse legati tui condicionem, ut aut totum aut nihil tibi debeatur, et iniquum et contra voluntatem testatoris existimabitur: rursus partem deberi rationi non congruit, quando necesse est totius legati condicionem vel exstitisse vel defecisse. ergo per exceptionem doli mali tota ea res temperanda erit.
What then shall we say, if he bequeathed two hundred and it is put forward that to you likewise, under the same condition, two hundred were bequeathed? For it will be judged both inequitable and contrary to the will of the testator that the condition of your legacy either has come to pass or has failed, so that either the whole is owed to you or nothing; again, that a part be owed does not accord with reason, since it is necessary that the condition of the whole legacy either have come to pass or have failed. Therefore the whole matter must be tempered by the exception of bad faith (exceptio doli mali).
Quare cum quis tale quid consequi velit, sic consequetur: " si quo amplius legavi vel legavero, quam per legem falcidiam licebit, tum quantum ad supplendum quadrantem deduci oportet, ex eo legato quod titio dedi heres meus damnas esto dare".
Therefore, when someone wishes to obtain such a thing, he will obtain it thus: " if I have bequeathed or shall bequeath anything more than will be permitted by the Falcidian law, then, as much as ought to be deducted to make up the quarter, out of that legacy which I gave to Titius, let my heir be bound to give".
Qui ducenta in bonis relinquebat, legavit mihi centum praesenti die, tibi aeque centum sub condicione: post aliquantum temporis exstitit condicio, ita tamen, ut ex reditu eius summae, quae tibi relicta est, non amplius quam viginti quinque reciperet. legis falcidiae ratio ita habenda erit heredi, ut viginti quinque conferre ei debeamus et amplius fructus quinquaginta medii temporis, qui verbi gratia efficient quinque. cum igitur triginta sint conferenda, quidam putant quina dena ab utroque nostrum conferenda esse, quod minime verum est: licet enim eandem quantitatem acceperimus, manifestum tamen est aliquanto uberius esse meum legatum.
He who was leaving two hundred in his goods bequeathed to me one hundred on the present day, to you likewise one hundred under a condition: after some time the condition came to pass, yet in such a way that from the returns of that sum which is left to you he would recover no more than twenty‑five. The reckoning of the Falcidian law will have to be made by the heir thus, that we ought to contribute to him twenty‑five and, moreover, the fruits on fifty for the intervening time, which, for example, amount to five. Since therefore thirty are to be contributed, some think that fifteen apiece are to be contributed by each of us, which is by no means true: for although we received the same quantity, it is nevertheless manifest that my legacy is somewhat more abundant.
wherefore it must be decreed that there is so much less in your legacy as the heir has received from its fruits. according to which, in the case proposed, the computation ought to be entered thus: that out of seven parts I contribute four, you three, since indeed there is a fourth part more in my legacy than in your legacy.
Si heres, cuius fidei commissum est, ut accepta certa pecunia hereditatem restituat, a voluntate eius qui testamentum fecit discedat et postea legis falcidiae beneficio uti volet: etsi non detur ei, quo accepto hereditatem restituere rogatus est, tamen fideicommissum restituere cogi debet, quoniam quod ei pater familiae dari voluit legis falcidiae commodum praestat.
If an heir, to whose good faith it has been committed that, upon receiving a certain sum of money, he should restore the inheritance, departs from the intention of him who made the testament and afterwards wishes to use the benefit of the Lex Falcidia: even if there is not given to him that which, upon receiving, he was asked to restore the inheritance, nevertheless he ought to be compelled to restore the fideicommissum, since the advantage of the Lex Falcidia provides what the paterfamilias wished to be given to him.
In quartam hereditatis, quam per legem falcidiam heres habere debet, imputantur res, quas iure hereditario capit, non quas iure legati vel fideicommissi vel implendae condicionis causa accipit: nam haec in quartam non imputantur. sed in fideicommissaria hereditate restituenda sive legatum vel fideicommissum datum sit heredi sive praecipere vel deducere vel retinere iussus est, in quartam id ei imputatur: pro ea vero parte, quam accepit a coherede extra quartam id est, quod a coherede accipitur. sed et si accepta pecunia hereditatem restituere rogatus sit, id quod accipit in quartam ei imputatur, ut divus pius constituit.
Into the fourth of the inheritance, which by the Falcidian law the heir ought to have, there are imputed the things which he takes by hereditary right, not those which he receives by the right of a legacy or of a fideicommiss, or for the sake of fulfilling a condition: for these are not imputed to the fourth. But in the restoration of a fideicommissary inheritance, whether a legacy or a fideicommiss has been given to the heir, or he has been ordered to take in precedence or to deduct or to retain, this is imputed to him toward the fourth; and as to that portion which he has received from a coheir beyond the fourth—that is, what is received from a coheir—this too is imputed toward the fourth. But also if, money having been received, he is asked to restore the inheritance, what he receives is imputed to his fourth, as the deified Pius established.
if, however, for the sake of fulfilling a condition the heir receives anything from the legatees, it does not avail in the computation of the Falcidian portion; and therefore, if the deceased has bequeathed an estate of 100, and the legatee has given 50 to the heir, the computation for the legacies is to be made at 100, and the 50 are to be regarded as outside the inheritance, so that they are not imputed to his fourth.
Si miles testamento facto partem dimidiam hereditatis suae tibi restitui iusserit, deinde post missionem factis codicillis alteram partem titio restitui rogaverit: si quidem post annum missionis suae decesserit, et tibi et titio heres partem quartam retinebit, quia eo tempore testator decessit, quo testamentum eius ad beneficium principale pertinere desierat: si vero intra annum missionis decesserit, solus titius deductionem partis quartae patietur, quia eo tempore fideicommissum ei relictum est, quo testator iure militari testari non potuit.
If a soldier, having made a testament, has ordered that one half of his inheritance be restored to you, and then after his discharge, by codicils made, has requested that the other half be restored to Titius: if indeed he has died after a year from his discharge, the heir will retain a fourth part both as against you and as against Titius, because the testator died at a time when his testament had ceased to pertain to the principal beneficium; but if he has died within a year of his discharge, Titius alone will suffer the deduction of the fourth part, because at that time the fideicommissum was left to him when the testator could not testate by military right.
Acceptis a maevio centum hereditatem maevio restituere pecuniamque post mortem suam titio dare rogatus est. quamquam haec centum quartam bonorum efficiant, tamen propter fideicommissum sequens quartae retentioni locus erit: tunc enim ex constitutione divi hadriani falcidiae satisfacit ea quantitas, cum apud heredem remanet. sed falcidiam patietur solus cui hereditas relicta est: nam in centum, quae mortis causa capiuntur, admitti falcidia non potest.
Having received one hundred from Maevio, he was asked to restore the inheritance to Maevio and to give the money, after his own death, to Titius. Although these one hundred make up a fourth of the estate, nevertheless, on account of the fideicommissum, there will be room for retaining the fourth thereafter: for then, by the constitution of the deified Hadrian, that quantity satisfies the Falcidian allowance, since it remains with the heir. But the Falcidian deduction will be borne only by the one to whom the inheritance has been left: for, with respect to the one hundred, which are taken causa mortis, the Falcidia cannot be admitted.
Filio et filia scriptis heredibus singulis certa praelegavit, sed longe minus filiae, cui etiam domum obligatam praelegavit cum instrumentis et quicquid ibi fuerit et adiecit haec verba: " sed ea condicione lego, ut quidquid aeris alieni in ea domo erit, titius libertus filii mei exsolvat et sit eis utrisque domus communis". quaesitum est, si filia legis falcidiae beneficio uti volet ad quartam retinendam, an ex hereditate, quae ei relicta est, deducto aere alieno eius quod superfuerit quartam consequi debeat. respondit iure quidem id postulaturam, verum non alias ea, quae ei data sunt, accepturam, si modo ea quartam suppleant, quam voluntati defuncti solvendum praestando pareret.
To the son and the daughter, written in as heirs singly, he pre‑legated certain things, but far less to the daughter, to whom he also pre‑legated a house under mortgage with the documents and whatever might be there, and he added these words: "but on this condition I bequeath, that whatever debt shall be on that house, Titius, the freedman of my son, shall pay off, and let the house be common to them both." It was asked, if the daughter should wish to use the benefit of the Lex Falcidia to retain a fourth, whether from the inheritance which has been left to her, after the debt has been deducted, she ought to obtain a fourth of what remains. He answered that in law indeed she would be demanding that, but that she would receive the things which have been given to her on no other terms—provided only that they make up the fourth—than that she comply with the will of the deceased by furnishing the payment to be made.
Maritus uxoris res extra dotem constitutas administravit eaque decedens ante rationem sibi redditam administrationis ex asse eundem maritum heredem reliquit eiusque fidei commisit, ut decem uncias filio communi cum moreretur restitueret, duas autem uncias nepoti. quaesitum est, an id quoque, quod ex administratione rerum apud maritum resedisse constiterit, cum ceteris bonis pro rata decem unciarum filio restitui debeat. respondit id, quod debuisset hereditati, in rationem venire debere.
The husband administered the wife’s property established outside the dowry, and she, dying before an account of the administration had been rendered to her, left the same husband heir as to the whole, and committed to his trust that he, when he should die, restore ten ounces to their common son, and two ounces to the grandson. It was asked whether that also which is established to have remained with the husband from the administration of the property ought to be restored to the son, together with the other goods, in proportion to the ten ounces. He responded that that which should have been owed to the inheritance ought to come into the reckoning.
Filiae, quam mater rogaverat, si impubes decessisset, restituere hereditatem titio, patruus legitimus heres exstitit: in ratione legis falcidiae ponenda desiderat deduci sortes, ex quarum usuris alimenta impubes defuncta ex persona testatricis suae pluribus debita praestitit: quaesitum est, an, si eas deduxerit, cavere debeat defunctorum alimentariorum portiones pro modo sortium se restituturum. respondit debere cavere.
A paternal uncle, the legitimate heir, appeared in the case of a daughter whom her mother had requested, if she should die under age, to restore the inheritance to Titius. In setting the account under the Lex Falcidia he desires that the principal sums (sortes) be deducted, from the interest of which the deceased minor, in the person of her own testatrix, furnished the alimenta owed to several persons. It was asked whether, if he deducts them, he ought to give security that he will restore, as the alimentary beneficiaries die, the portions according to the measure of the principals. He answered that he ought to give security.
Post aditam hereditatem triennio exacto legatariis heres legem falcidiam opponit idcirco, quod administravit tutelas testator, quarum ratio nondum reddita sit et quod neget tantum redigi ex nominibus posse, quantum in cautione deductum est. quaesitum est, an rationes defuncti et omnium instrumentorum hereditatiorum et pupillarium rationum legatariis desiderantibus heres describendi potestatem facere debeat, ne in potestate eius sit proferre quod velit et per hoc in fraudem legatarii inducantur. respondit ad iudicis officium pertinere explorare ea, per quae probetur, quanti sit in bonis.
After the inheritance was entered upon and three years had elapsed, the heir opposes the Falcidian law to the legatees, on the ground that the testator administered tutelages (guardianships), the accounts of which have not yet been rendered, and because he denies that as much can be recovered from the claims (nomina) as was deducted in the bond (cautio). It was asked whether the heir ought, at the request of the legatees, to give them the power of copying out the accounts of the deceased and all the instruments of the inheritance and the pupillary accounts, lest it be in his power to produce what he wishes and thereby the legatee be led into fraud. He responded that it pertains to the judge’s office to investigate those things by which it may be proved how much there is in the assets (how great the value of the estate is).
Si cui plus quam licuerit legetur et dubitari iuste possit, utrum lex falcidia locum habitura est nec ne, subvenit praetor heredi, ut ei legatarius satisdet, ut, si apparuerit eum amplius legatorum nomine cepisse quam e lege falcidia capere licebit, quanti ea res erit, tantam pecuniam det dolusque malus ab eo afuturus sit.
If to someone there is bequeathed more than was permitted, and it can be justly doubted whether the Falcidian law will have place or not, the praetor comes to the aid of the heir, so that the legatee furnish security to him, namely, that if it shall appear that he has taken under the title of legacies more than it will be permitted to take by the Falcidian law, for whatever amount that matter shall be assessed, he shall pay so much money, and that fraud shall be absent on his part.
Neque interest, utrum in primis tabulis hoc fiat an in pupillaribus an in utrisque: etenim legem falcidiam semel esse admittendam, etiamsi duplex sit testamentum, iam convenit, contributis legatis tam his, quae ab ipso pupillo quam his, quae a substituto impuberi relicta sunt.
Nor does it matter whether this is done in the primary tablets, or in the pupillary ones, or in both: for it is now agreed that the Falcidian law is to be admitted once only, even if the testament is double, the legacies being contributed together, both those which were left by the pupil himself and those which were left by the substitute for the underage.
Si non fuisset interposita stipulatio ex persona pupilli, tutelae actio heredi pupilli adversus tutorem competit. sed ut pomponius ait, et ipsi pupillo et heredi eius poterit committi stipulatio, ipsi quo casu vivo eo falcidia incipit locum habere. de tutelae quoque actione idem scribit.
If no stipulation had been interposed in the person of the ward, the action of guardianship belongs to the ward’s heir against the guardian. But, as Pomponius says, the stipulation can be committed both to the ward himself and to his heir— to the former, in which case, while he is alive, the Falcidian begins to have place. He writes the same also concerning the action of guardianship.
Marcellus ait: qui quadringenta in bonis habebat, inpuberem filium heredem instituit eique substituit titium et seium: nihil a pupillo testator legavit, sed a titio trecenta: utrum ducenta, inquit, praestabuntur an centum quinquaginta? nam trecenta nullo modo eum praestare. mihi videtur verius non amplius eum parte sua erogare compelli, certe nec minus: secundum quod eveniret, ut non soli committatur stipulatio, sed omnibus heredibus interponenda est, sed causa cognita.
Marcellus says: a man who had 400 in his goods instituted his underage son as heir and appointed Titius and Seius as substitutes for him: the testator left nothing as a legacy from the ward, but 300 from Titius: are 200, he says, to be provided, or 150? for in no way can he provide 300. It seems to me truer that he not be compelled to disburse more than his share, certainly not less: according to what would ensue, the stipulation is not to be committed to him alone, but must be interposed to all the heirs, however with the case examined.
Falcidiam locum habere et legatorum modus facit et aeris alieni onus. et si quidem evidens aes alienum est vel certum, facilis est computatio: si autem adhuc incertum est, quia forte vel condicio eius pendet vel creditor litem contestatus est et necdum lis finita est, dubitabitur, quantum legatariis debeatur propter incertum.
Both the measure of the legacies and the burden of the debt make the Falcidia have place. And if indeed the debt is evident or certain, the computation is easy; but if it is still uncertain, because perhaps either its condition is pending or the creditor has contested the suit and the litigation is not yet finished, it will be doubtful how much is owed to the legatees on account of the uncertainty.
Cum dicitur lex falcidia locum habere, arbiter dari solet ad ineundam quantitatem bonorum, tametsi unus aliquid modicum fideicommissum persequatur: quae computatio praeiudicare non debet ceteris, qui ad arbitrum missi non sunt. solet tamen ab herede etiam ceteris denuntiari fideicommissariis, ut veniant ad arbitrum ibique causam suam agant, plerumque et creditoribus, ut de aere alieno probent. habet tamen rationem in legatariis, item in fideicommissariis, ut, si offerat integrum quod relictum est heres desiderans cavere sibi hac stipulatione, audiatur.
When it is said that the Lex Falcidia has place, an arbiter is usually appointed to ascertain the amount of the estate, even if a single person is pursuing a small fideicommissum: this computation ought not to prejudice the others who have not been sent to the arbiter. Yet it is customary for the heir to give notice also to the other fideicommissaries to come before the arbiter and there plead their case, and generally also to the creditors, that they may prove the indebtedness. Nevertheless there is a rationale in the case of legatees, likewise in the case of fideicommissaries, that, if the heir should offer in full what has been left, wishing to secure himself by this stipulation, he should be heard.
Si legata quaedam praesenti die relicta sint, quaedam sub condicione, interponenda erit ista stipulatio propter legata condicionalia, dummodo ea legata, quae praesenti sint, integra solvantur. iulianus denique scribit, si pure et sub condicione legata fuerint ne exsistente condicione lex falcidia locum habeat, non aliter legatorum, quae pure data sunt, actionem dari debere, quam si cautum fuerit heredi " quanto amplius, quam per legem falcidiam licuerit, ceperit".
If certain legacies have been left for immediate payment on the present day, and certain others under a condition, this stipulation must be interposed on account of the conditional legacies, provided that those legacies which are presently due are paid in full. Julianus, finally, writes that if legacies have been given purely and under a condition, so that, when the condition comes to pass, the Lex Falcidia may not have scope, the action for the legacies that were given purely ought not to be granted otherwise than if security has been taken for the heir, “for however much more than is permitted by the Lex Falcidia he shall have taken.”
Haec verba stipulationis " quod amplius legatorum nomine ceperis, quam e lege falcidia capere licebit" non tantum eum comprehendunt, qui amplius accepit, quam ei falcidia permisit, ut reddat partem, habeat partem, verum etiam eum qui totum debet restituere. etenim sciendum est legem falcidiam interdum partem eius quod datum est, interdum totum revocare. cum enim habita ratione aeris alieni falcidia ineatur, plerumque evenit, ut emergente debito vel condicione aeris alieni exsistente totum quod legatum est exhauriatur.
These words of the stipulation, "whatever you shall have taken under the title of legacies in excess of what it will be permitted to take by the Falcidian law," embrace not only the person who has received more than the Falcidia allowed him, so that he must return a part and keep a part, but also the one who must restore the whole. For one must know that the Falcidian law sometimes recalls a part of what has been given, sometimes the whole. For when, account being taken of indebtedness, the Falcidia is calculated, it very often happens that, with a debt emerging or a condition of indebtedness subsisting, the whole that has been bequeathed is exhausted.
In quibusdam autem testamentis falcidia quidem locum non habet, verumtamen ita observatur, ut, licet quadrantem heres non retineat, tamen hactenus legata debeantur, quatenus patrimonii vires sufficiunt, utique deducto aere alieno, item deductis pretiis eorum, qui libertatem in testamento vel directam vel fideicommissariam acceperunt.
In certain testaments, however, the Falcidian indeed has no place; nevertheless it is thus observed, that, although the heir does not retain a quarter, yet legacies are owed only so far as the powers of the patrimony suffice, with debt deducted, and likewise with the prices of those deducted who have received liberty in the testament, whether direct or fideicommissary.
Interdum non legis falcidiae, sed etiam alterius legis in hac stipulatione ratio facienda est, ut puta si patronus ex asse heres institutus sit et pure quincunx legatus sit et sub condicione aliquid supra debitam patrono partem: nam in hunc casum ratio facienda est illius legis, quae patronos vocat, non legis falcidiae.
Sometimes not the Falcidian law, but also the reckoning of another law must be made in this stipulation, for instance if a patron has been instituted heir to the whole, and a quincunx has been bequeathed outright, and under a condition something beyond the portion due to the patron: for in this case consideration must be given to that law which calls the patrons, not to the Falcidian law.
Si in plures dies pecunia legata est, cum certum sit legem falcidiam locum habere, non stipulationi, sed computationi locum esse pedius ait, ut aestimetur, quanti sit quod in diem legatum est et tantum credatur esse legatum, quantum efficit aestimatio, ut pro modo eius ex omnibus legatis statim legis falcidiae ratio habeatur.
If money has been bequeathed for several days, since it is certain that the Falcidian law has place, Pedius says that there is room not for stipulation but for computation, so that there be an appraisal of how much that is which is bequeathed for the day, and the legacy be deemed to be only as much as the appraisal effects, so that, in proportion to it, account of the Falcidian law be taken at once with respect to all the legacies.
Quotiens futurum est, ut palam sit et ante diem venientem iam falcidiam locum habere, totiens computatio eius fit. nam si condicio in mora est, exspectabimus condicionem, quoad exsistat: si autem dies superest, iam hic intercapedinis temporis habita ratione atque aestimatione sic de falcidia disputabimus et committi stipulationem dicemus.
As often as it is going to be that it is plain that even before the arriving day the Falcidian has place, so often the computation of it is made. For if the condition is in delay, we shall await the condition until it comes into existence; but if the day still remains, then, an account and an estimation having been made of this interval of time, thus we shall argue concerning the Falcidian and we shall say that the stipulation is committed.
Quamvis autem omnes legatarii et fideicommissarii necesse habeant hac stipulatione cavere, tamen quibusdam remitti divi fratres rescripserunt, ut puta his, quibus minuta alimenta sunt relicta. pompeiae enim faustinae rescripserunt sic: " non eandem causam esse decem aureorum, quos annuos tibi testamento pompeiae crispianae patronae tuae relictos proponis, atque fuit alimentorum et vestiarii libertis relictorum, quibus propterea cautionis onus remittendum existimavimus".
Although, moreover, all legatees and fideicommissary beneficiaries must furnish security by this stipulation, nevertheless the deified brothers wrote that it be remitted for certain persons, for instance to those to whom small alimentary allowances have been left. for they wrote thus to pompeia faustina: " not the same ground exists in the case of the ten aurei which you propose have been left to you annually by the testament of pompeia crispiana, your patroness, as existed in the case of the alimenta and the clothing-fund left to the freedmen, for whom, for that reason, we judged the burden of a caution (security) should be remitted".
Item sciendum est fiscum hanc cautionem non pati, sed perinde conveniri posse, ac si cavisset. ceteros autem, cuiuscumque dignitatis sint, licet iam legata perceperint, compelli debere ad cavendum divus pius rescripsit: ex quo rescripto etiam illud accipimus, quod etiam post soluta legata voluit stipulationem interponi.
Likewise it must be known that the fisc does not allow this security, but can nevertheless be sued just as if it had given security. but the rest, of whatever dignity they may be, although they have already received the legacies, the deified Pius wrote by rescript that they must be compelled to give security: from which rescript we also gather this, that he wished the stipulation to be interposed even after the legacies had been paid.
Si legatarius heredi, qui controversiam hereditatis patitur iam vel sperat, de restituendo legato sibi praestito caverit et evicta hereditas sit, sed neglegentia vel dolo eius qui legatum praestitit, dicemus non committi stipulationem propter viri boni arbitrium, quod inest huic stipulationi.
If a legatee has given security to the heir, who is already undergoing or anticipates a controversy concerning the inheritance, for restoring the legacy furnished to him, and the inheritance is evicted, but through the negligence or fraud of the one who furnished the legacy, we shall say that the forfeiture of the stipulation is not incurred, by reason of the arbitrament of a good man that is inherent in this stipulation.
Item si ipse, qui praestitit legatum, ex alia causa sibi evicerit, ut puta quia invenitur sequenti testamento heres scriptus, in quo legatum iste legatarius non acceperat, dicemus committi stipulationem propter viri boni arbitrium.
Likewise, if the very one who furnished the legacy has, on another ground, established it for himself—for example, because he is found written as heir in a subsequent testament, in which this legatee did not receive the legacy—we say the stipulation is committed, with the amount to be according to the judgment of a good man.
Si legatum fuerit praestitum ante interpositam hanc stipulationem, an condici possit, ut cautio ista interponatur? movet quaestionem, quod ea, quae per errorem omissa vel soluta sunt, condici possunt et hic ergo quasi plus solutum videtur ex eo, quod cautio intermissa est. et ait pomponius condictionem interponendae satisdationis gratia competere et puto hoc probandum quod pomponius, utilitatis gratia.
If a legacy has been rendered before this stipulation was interposed, can it be reclaimed by a condictio, in order that this security be interposed? The question is moved by the fact that those things which through error have been omitted or paid can be reclaimed by condictio; and here, therefore, it seems as though more has been paid, from the fact that the security was omitted. And pomponius says that a condictio is competent for the sake of interposing satisdation, and I think this which pomponius says is to be approved, for the sake of utility.
Haec autem satisdatio locum habet, si iusta causa esse videbitur: nam iniquum erat omnimodo caveri nondum illata controversia litis, cum possint ei lusoriae minae fieri: ideoque eam rem praetor ad cognitionem suam revocat.
This surety, however, has a place if a just cause shall seem to exist: for it would be inequitable to require security across the board when the controversy of the suit has not yet been brought, since lusory (frivolous) threats could be made against him; and therefore the praetor refers that matter to his own cognizance.
Haec cautio utique necessaria est, si quis pecuniam suam solvat vel rem tradat: si vero pecuniam hereditariam solvat vel rem tradat, quidam non putant cavendum, quia nec teneri potest eo nomine victus, cum non possideat vel dolo fecerit, quo minus possideat. hoc si ante motam controversiam solvat: quod si postea, tenebitur culpae nomine.
This security is certainly necessary, if someone pays his own money or delivers a thing: but if he pays money of an inheritance or delivers a thing, some think that security need not be required, because, even if defeated, he cannot be held on that account, since he does not possess or has acted by fraud so that he does not possess. This is so if he pays before a controversy has been set in motion; but if afterwards, he will be liable under the head of fault.
Sed cum de nomine inter duos quaestio est, numquid non sit cavendum ei, qui hereditariam rem tradat, quia omnimodo unus liberatur: quemadmodum si aes alienum hereditarium solvatur? sed si petitor suam pecuniam solvet aut rem suam tradat, non habet unde retineat et ideo necessaria est ei cautio.
But when there is a dispute between two about a claim (nomen), ought not security to be taken for him who delivers a thing of the inheritance, because in any case only one is discharged—just as when a hereditary debt is paid? But if the claimant pays his own money or delivers his own thing, he has no ground for retention, and therefore a security is necessary for him.
Videamus, an stipulatio " qua amplius per falcidiam ceperis licuerit dari" adversus eum non sufficiat, qui legatum alii restituere ex fideicommissi causa debet. sufficiet autem dici nihil eius fidei commissum esse: cavebit scilicet legatario et is, qui fideicommissum accipiet, nisi forte malet legatarius circuitu sublato heredi caveri. sed et legatario praeterea cavendum est, si ( ut plerumque aequum est) pro rata ex fideicommisso retinere ei concedendum est, quamvis tantum ex legato apud eum erit remansurum, ut sufficere possit ad praestandum fideicommissum.
Let us see whether the stipulation, “that whatever more you shall have taken by the Falcidia it shall be permitted to be given,” is not sufficient against him who must restore a legacy to another by reason of a fideicommissum. But it will suffice to say that nothing of this has been bequeathed as a fideicommissum: he will, of course, give security to the legatee, and likewise he who will receive the fideicommissum—unless perhaps the legatee prefers, with circuity removed, that security be given to the heir. But security must also, moreover, be given to the legatee, if (as is for the most part equitable) it is to be conceded to him to retain pro rata out of the fideicommissum, although only so much from the legacy will remain with him as may suffice for the performance of the fideicommissum.
Cum non facile satisdationem offerre legatarius vel fideicommissarius possit et futurum sit, ut propter hoc a petitione liberalitatis ex testamento submoveantur, numquid onus satisdationis eis remittendum erit? quod videtur adiuvari rescripto divi commodi in haec verba: " is, cuius de ea re notio est, aditus si compererit ideo cautionem a te exigi, ut a fideicommissi petitione avertaris, onus satisdationis tibi remitti curabit".
Since a legatee or a fideicommissary cannot easily offer satisdation (security) and it will come about that on account of this they are removed from the petition of liberality from a testament, should the burden of satisdation be remitted to them? This seems to be supported by a rescript of the deified Commodus in these words: "He whose cognizance of that matter it is, when approached, if he learns that security (cautio) is being demanded from you for this reason, that you be turned away from the petition of the fideicommissum, will take care that the burden of satisdation be remitted to you."
Si heres partem bonorum vel etiam universa bona delata ad fiscum diceret, constaret autem de fideicommisso, decretum est, ut petitori caventi " evicta hereditate restitutu iri" solveretur.
If the heir were to say that a part of the goods, or even all the goods, had been conveyed to the fisc, and yet it were established as to the fideicommissum, it was decreed that payment should be made to the petitioner upon his giving security that “if the inheritance is evicted, it will be restored.”
Si non in controversia sit proprietas, sed usus fructus ( potest enim rei, cuius proprietas titio legata est, usus fructus alii legari), tunc de eo restituendo non heredi, sed titio caveri debeat. interdum et si ab herede legetur usus fructus, titio cavendum est: veluti si detracto usu fructu proprietas ei legetur, usus fructus seio: quid enim attinebit hoc casu heredi caveri, ad quem emolumentum intercidentis usus fructus non sit spectandum? verum si usu fructu seio legato proprietas titio ita legetur, ut, cum ad seium pertinere desierit, habeat proprietatem, tunc heredi caveri oportebit a fructuario, ab herede autem titio, quia non sit certum usu fructu intercepto ad titium proprietatem reversuram.
If ownership is not in controversy, but the usufruct is (for it is possible that the usufruct of a thing, the ownership of which has been bequeathed to titio, be bequeathed to another), then for its restoration security must be given, not to the heir, but to titio. Sometimes even if the usufruct is bequeathed by the heir, security must be given to titio: for instance, if with the usufruct subtracted the ownership is bequeathed to him, and the usufruct to seio; for what point would there be in this case to give security to the heir, for whom the benefit from the extinguishing of the usufruct is not to be regarded? But if, with the usufruct bequeathed to seio, the ownership is so bequeathed to titio that, when it ceases to belong to seio, he shall have the ownership, then security ought to be given to the heir by the usufructuary, and by the heir to titio, because it is not certain that, once the usufruct is extinguished, the ownership will revert to titio.