Justinian•DIGESTA
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Dig. 36.3.0. Ut legatorum seu fideicommissorum servandorum causa caveatur.
36.2.0. When the day for legacies or fideicommissa accrues.
Dig. 36.3.0. That security be taken for the preservation of legacies or fideicommissa.
" cum esset aequissimum in omnibus fideicommissariis hereditatibus, si qua de his bonis iudicia penderent, ex his eos subire, in quos ius fructusque transferretur, potius quam cuique periculosum esse fidem suam: placet, ut actiones, quae in heredem heredibusque dari solent, eas neque in eos neque his dari, qui fidei suae commissum sic, uti rogati essent, restituissent, sed his et in eos, quibus ex testamento fideicommissum restitutum fuisset, quo magis in reliquum confirmentur supremae defunctorum voluntates".
" since it is most equitable, in all fideicommissary inheritances, that, if any suits concerning these goods are pending, they be undertaken by those to whom the right and the usufruct are transferred, rather than that each person’s good faith be put in peril: it is decided that the actions which are wont to be given against the heir and heirs be given neither against nor to those who have restored what had been committed to their faith just as they had been asked, but to and against those to whom, from the testament, the fideicommiss has been restored, so that the last wills of the deceased may be the more confirmed for the future".
Quamquam autem senatus subventum voluit heredibus, subvenit tamen et fideicommissario: nam in eo, quod heredes, si conveniantur, exceptione uti possunt, heredibus subventum est: in eo vero, quod, si agant heredes, repelluntur per exceptionem quodque agendi facultas fideicommissariis competit, procul dubio consultum est fideicommissariis.
Although the senate wished aid to be afforded to the heirs, it nevertheless also aided the fideicommissary: for in this respect—that the heirs, if they are sued, can make use of an exception—aid has been afforded to the heirs; but in this respect—that, if the heirs bring an action, they are repelled by an exception, and that the faculty of bringing suit belongs to the fideicommissaries—without doubt provision has been made for the fideicommissaries.
De illo quaeritur, an is, cui ex causa fideicommissi restituta est hereditas ex trebelliano senatus consulto, ipse quoque restituendo ex eodem senatus consulto transferat actiones: et iulianus scribit etiam ipsum transferre actiones, quod et maecianus probat et nobis placet.
A question is raised about this, whether he to whom, on the ground of a fideicommissum, the inheritance has been restored under the Trebellian senatus consultum, in restoring likewise under the same senatus consultum also transfers the actions; and Julianus writes that he too transfers the actions, which Maecianus also approves, and this pleases us as well.
Sed et quotiens quis rogatus duobus restituere hereditatem, alteri pure vel in diem, alteri sub condicione, suspectam dicit: ei, cui erat rogatus pure vel in diem restituere, interim universam hereditatem restitui senatus censuit, cum autem exstiterit condicio, si velit alius fideicommissarius partem suam suscipere, transire ad eum ipso iure actiones.
But also whenever someone, having been asked to restore the inheritance to two persons— to one purely or for a day, to the other under a condition— declares it suspect: the senate decreed that in the meantime the entire inheritance be restored to him to whom he had been asked to restore it purely or for a day; but when the condition has come to pass, if the other fideicommissary wishes to take up his share, the actions pass to him by operation of law.
Fuit quaesitum, si ipsi tutori rogatus sit restituere pupillus, an ipso auctore restitutionem facere possit? et est decretum a divo severo non posse tutori se auctore restituere hereditatem, quia in rem suam auctor esse non potest.
It was asked whether, if the ward was requested to restore to the tutor himself, he could make the restitution with that very tutor as authorizer; and it was decreed by the deified Severus that it is not possible to restore the inheritance to the tutor with himself as author, because he cannot be an auctor in his own interest.
Si heres praecepto fundo rogatus sit hereditatem restituere, ex trebelliano senatus consulto restituet hereditatem. nec multum facit, si fundus pignori datus est: neque enim aeris alieni personalis actio fundum sequitur, sed eum, cui hereditas ex trebelliano senatus consulto restituta est. sed cavendum est heredi a fideicommissario, ut, si forte fundus fuerit evictus a creditore, habeat heres cautum.
If the heir, with the land pre-taken, has been asked to restore the inheritance, he will restore the inheritance under the Trebellian senatus consultum. Nor does it make much difference if the land has been given in pledge: for the personal action for indebtedness does not follow the land, but the person to whom the inheritance has been restored under the Trebellian senatus consultum. But the heir must take security from the fideicommissary, so that, if by chance the land should be evicted by a creditor, the heir may have a guarantee.
Julian, however, does not think that a caution should be required, but that the farm should be appraised at how much it is worth without this caution—that is, at how much it can be sold for without a caution; and if it can be sold, without a caution being interposed, for as much as makes a fourth part of the estate, the actions will pass by virtue of the Trebellian senatus consultum; if for less, with what is lacking being retained, likewise restitution is to be made under the Trebellian: which opinion resolves many questions.
Si is, qui quadringenta in bonis habeat, trecenta legaverit et deductis ducentis rogaverit heredem seio restituere hereditatem, an trecentorum onus fideicommissarius subeat an vero hactenus, quatenus ad eum ex hereditate pervenit? iulianus ait competere quidem adversus eum trecentorum petitionem, non autem amplius quam in ducentis actionem adversus fideicommissarium daturum, in heredem autem centum. et mihi videtur vera esse iuliani sententia, ne damnum fideicommissarius sentiat ultra, quam ad eum ex hereditate quid pervenit: neminem enim oportere plus legati nomine praestare, quam ad eum ex hereditate pervenit, quamvis falcidia cesset, ut rescripto divi pii continetur.
If one who has 400 in assets has bequeathed 300, and, 200 having been deducted, has requested the heir to restore the inheritance to seio, does the fideicommissary undergo the burden of the 300, or only to this extent, in so far as something from the inheritance has come to him? Julian says that indeed a petition for 300 is competent against him, but that he will give an action against the fideicommissary for not more than 200, and against the heir for 100. And it seems to me that Julian’s opinion is true, lest the fideicommissary suffer loss beyond what from the inheritance has come to him: for no one ought to furnish more in the name of a legacy than has come to him from the inheritance, although the Falcidian portion ceases, as is contained in the rescript of the deified Pius.
Inde neratius scribit, si heres rogatus restituere totam hereditatem non deducta falcidia rogato et ipsi, ut alii restituat, non utique debere eum detrahere fideicommissario secundo quartam, nisi liberalitatem tantum ad priorem fideicommissarium heres voluit pertinere.
From this Neratius writes that, if an heir is asked to restore the entire inheritance, the Falcidian deduction not made, to the person so requested, and that person himself is asked to restore it to another, he ought by no means to deduct the fourth from the second fideicommissary, unless the heir wished the liberality to pertain only to the prior fideicommissary.
Sed si quadringenta habens ducenta legaverit titio et partem dimidiam hereditatis sempronio restituere rogaverit, ex trebelliano restitutionem faciendam iulianus ait et legatorum petitionem scindi sic, ut centum quidem petantur ab herede, centum vero alia legatarius a fideicommissario petat. quod idcirco dicit iulianus, quoniam secundum hanc rationem integram quartam habet, id est centum integra.
But if, having 400, he has bequeathed 200 to Titius and has asked that half the inheritance be restored to Sempronius, Julian says that the restitution must be made under the Trebellianic [senatusconsult], and that the petition of the legacies is to be split thus: that 100 indeed be sought from the heir, and another 100 the legatee should seek from the fideicommissary. Julian says this for the reason that, according to this reckoning, he has the entire fourth intact, that is, a full 100.
Idem iulianus scribit, si is, qui quadringenta in bonis habeat, trecenta legasset et deductis centum rogasset heredem, ut hereditatem sempronio restituat, debere dici deductis centum restituta hereditate legatorum actionem in fideicommissarium dari.
Julianus likewise writes that, if someone who has four hundred in his goods had bequeathed three hundred, and, one hundred being deducted, had requested the heir to restore the inheritance to Sempronius, it ought to be said that, the one hundred deducted and the inheritance restored, the action for legacies is given against the fideicommissary.
Qui quadringenta reliquit, titio trecenta legavit, heredis fidei commisit, ut tibi hereditatem restitueret, isque suspectam iussu praetoris adiit et restituit: quaerebatur, quid legatario dare deberes. dicendum est, quia praesumptum est voluisse testatorem cum onere legatorum fideicommissum restitui, tota trecenta te dare titio debere: nam heres hoc rogatus intellegi debet, ut te suo loco constituat et quod heres perfunctus omnibus hereditariis muneribus, id est post legatorum dationem, reliquum habiturus foret, si non esset rogatus et tibi restitueret hereditatem, id tibi restituat. quantum ergo haberet?
He left four hundred, he bequeathed three hundred to Titius, he committed it to the heir’s faith to restore the inheritance to you, and he, being under suspicion, by the praetor’s order entered upon it and restored it: the question was raised, what you ought to give the legatee. It must be said that, because it is presumed the testator wished the fideicommiss to be restored with the burden of the legacies, you must give the whole three hundred to Titius: for the heir should be understood as having been requested thus, that he put you in his own place, and that what the heir, after having discharged all hereditary duties, that is, after the giving of the legacies, would have had remaining, if he had not been asked and had restored the inheritance to you, that he restore that to you. How much, then, would he have had?
namely one hundred: he was asked to give these to you. Therefore the computation under the Lex Falcidia must be undertaken thus, as if the heir were condemned to give 300 to Titius and condemned to give 100 to you: whence it results that, if he had entered upon the inheritance of his own accord, he would give to Titius 225, to you 75. Therefore no more is owed to Titius than if the inheritance had been entered upon without the praetor’s order.
Marcellus autem apud iulianum in hac specie ita scribit: si ad heredis onus esse testator legata dixerit et heres sponte adiit hereditatem, ita debere computationem falcidiae iniri, ac si quadringenta per fideicommissum essent relicta, trecenta vero legata, ut in septem partes trecenta dividantur et ferat quattuor partes fideicommissarius, tres partes legatarius. quod si suspecta dicta sit hereditas et non sponte heres adiit et restituit, centum quidem de quadringentis, quae habiturus esset heres, resident apud fideicommissarium, in reliquis autem trecentis eadem distributio fiet, ut ex his quattuor partes habeat fideicommissarius, reliquas tres legatarius: nam iniquissimum est plus ferre legatarium ideo, quia suspecta dicta est hereditas, quam laturus esset, si sponte adita fuisset.
Marcellus, moreover, with Julian, in this case writes thus: if the testator has said that the legacies are to be at the heir’s burden and the heir voluntarily has entered upon the inheritance, then the computation of the Falcidian is to be initiated as if 400 had been left by fideicommissum and 300 as legacies, so that the 300 be divided into seven parts and the fideicommissary take four parts, the legatee three parts. But if the inheritance has been declared “suspect” and the heir did not enter voluntarily and has restored it, 100 out of the 400, which the heir would have had, remain with the fideicommissary; but in the remaining 300 the same distribution will be made, so that out of these the fideicommissary has four parts, the legatee the remaining three: for it is most inequitable that the legatee should take more for this reason—that the inheritance was said to be “suspect”—than he would have taken if it had been entered upon voluntarily.
Item pomponius scribit, si deductis legatis restituere quis hereditatem rogatur, quaesitum est, utrum solida legata praestanda sint et quartam ex solo fideicommisso detrahere possit, an vero et ex legatis et ex fideicommisso quartam detrahere possit? et refert aristonem respondisse ex omnibus detrahendam, hoc est ex legatis et fideicommisso.
Likewise Pomponius writes that, if someone is asked to restore the inheritance with the legacies deducted, the question was raised whether the legacies must be furnished in full and he may subtract a fourth from the fideicommissum alone, or indeed whether he may subtract a fourth both from the legacies and from the fideicommissum? And he reports that Aristo answered that it should be subtracted from all, that is, from the legacies and from the fideicommissum.
Quidam liberis suis, ex disparibus partibus institutis, datis praeceptionibus, ut ipse maximam partem patrimonii inter liberos ita divisisset, rogavit eum, qui sine liberis decederet, portionem suam fratribus restituere. imperator noster rescripsit praeceptiones quoque fideicommisso contineri, quia non portionem hereditariam testator commemoravit, sed simpliciter portionem: in portionem autem et praeceptiones videri cecidisse.
A certain man, his children having been instituted from unequal shares, with praeceptions granted, so that he had thus divided the greatest part of the patrimony among the children, asked that the one who should die without children restore his portion to his brothers. Our emperor issued a rescript that the praeceptions too are contained in the fideicommissum, because the testator did not mention the hereditary portion, but simply “portion”: and the praeceptions are seen to have fallen under “portion.”
Si is, qui rogatus fuerit hereditatem restituere, ante quaestionem de familia habitam vel tabulas aperuerit vel hereditatem adierit vel quid eorum quae senatus consulto prohibentur fecerit ac per hoc publicata fuerit hereditas, fiscus cum suis oneribus hereditatem adquirit. quare commodum quartae, quod erat habiturus heres institutus, id ad fiscum pertinet et ex trebelliano actiones transeunt. sed et si prohibuerit testamentarium introducere vel testes convenire vel mortem testatoris non defendit vel ex alia causa hereditas fisco vindicata est, aeque quartae quidem commodum ad fiscum pertinebit, dodrans vero fideicommissario restitueretur.
If the person who was asked to restore the inheritance, before an inquiry about the family has been held, either has opened the tablets or has entered upon the inheritance or has done any of those things which are prohibited by senatorial decree, and through this the inheritance has been made public, the fisc acquires the inheritance with its burdens. Wherefore the benefit of the fourth, which the instituted heir would have had, pertains to the fisc, and under the Trebellianum the actions pass. But even if he has prevented the executor from being brought in or the witnesses from being convened, or does not affirm the testator’s death, or if for another cause the inheritance has been claimed for the fisc, likewise the benefit of the fourth will pertain to the fisc, but the three-quarters would be restored to the fideicommissary.
Quia poterat fieri, ut heres institutus nolit adire hereditatem veritus, ne damno adficeretur, prospectum est, ut, si fideicommissarius diceret suo periculo adire et restitui sibi velle, cogatur heres institutus a praetore adire et restituere hereditatem. quod si fuerit factum, transeunt actiones ex trebelliano nec quartae commodo heres in restitutione utetur: nam cum alieno periculo adierit hereditatem, merito omni commodo arcebitur. nec interest, solvendo sit hereditas nec ne: sufficit enim recusari ab herede instituto.
Because it could happen that the instituted heir might not wish to enter upon the inheritance, fearing lest he be affected by loss, provision was made that, if the fideicommissary should say that he is willing to enter at his own risk and to have it restored to himself, the instituted heir is to be compelled by the praetor to enter and to restore the inheritance. And if this has been done, the actions pass under the Trebellian [senatus consult], and in the restoration the heir will not use the benefit of the quarter: for since he has entered upon the inheritance at another’s risk, he will deservedly be barred from every benefit. Nor does it matter whether the inheritance is solvent or not: for it suffices that it is refused by the instituted heir.
nor is that inquired into, whether the inheritance is solvent or is not. For the opinion, or fear, or pretext of the one who did not wish to enter upon the inheritance is regarded, not the substance of the inheritance, and not without reason: the instituted heir ought not to have it prescribed to him why he should fear to enter upon the inheritance or why he should be unwilling, since the wills of men are various: some fear business affairs, some harassment, some the accumulation of debt, although the inheritance may seem wealthy, some the offenses or envy of others; some wish to gratify those to whom the inheritance has been left, yet without their own burden.
Meminisse autem oportebit de herede instituto senatum loqui: ideoque tractatum est apud iulianum, ad intestatos locum habeat. sed est verius eoque iure utimur, ut hoc senatus consultum ad intestatos quoque pertineat, sive legitimi sive honorarii sint successores.
It will have to be remembered, however, that the senate is speaking of an instituted heir; and therefore it has been discussed by Julian whether it should have place with respect to intestates. But it is more correct, and we use the law thus, that this senatus consultum also pertains to intestates, whether the successors be legitimate or honorary.
Sed et ad filium qui in potestate est hoc senatus consultum locum habet et in ceteris necessariis, ut a praetore compellantur miscere se hereditati, sic deinde restituere: quod si fecerint, transtulisse videbuntur actiones.
But this senatorial decree also has place with respect to a son who is in paternal power and to the other necessary heirs, that they be compelled by the praetor to mix themselves with the inheritance, and then to restore it: and if they shall do this, they will be deemed to have transferred the actions.
Titius heres institutus sempronio substituto rogatus est ipsi sempronio hereditatem restituere: institutus suspectam dicebat hereditatem: quaeritur, an cogendus est adire et restituere hereditatem. et deliberari potest: sed verius est cogendum eum, quia interesse sempronii potest ex institutione quam ex substitutione hereditatem habere, vel legatis vel libertatibus onerata substitutione: nam et si legitimus heres fuerit is, cui fideicommissaria hereditas relicta est, idem dicitur.
Titius, instituted as heir with Sempronius substituted, was asked to restore the inheritance to Sempronius himself; the instituted heir said the inheritance was suspect. The question is asked whether he is to be compelled to enter upon and restore the inheritance. It can be deliberated; but the truer view is that he must be compelled, because it may be in Sempronius’s interest to have the inheritance by institution rather than by substitution, the substitution being burdened either with legacies or with manumissions. For even if the person to whom the fideicommissary inheritance has been left is a legitimate heir, the same is said.
Sed sciendum est inpendiorum quoque, quae ad iter explicandum necessaria essent, rationem haberi debere: nam si ita institutus esset " si titio decem dedisset", non aliter cogeretur, quam si ei pecunia offeratur. sed et salutis ac dignitatis ratio habenda erit: quid enim si morbo applicitus alexandriae iussus fuit adire vel nomen vispellionis testatoris ferre?
But it must be known that account must also be taken of the expenses which would be necessary to carry out the journey: for if he had been instituted on this condition, " si titio decem dedisset", he would not be compelled otherwise than if money were tendered to him. But account will also have to be taken of safety and dignity: for what if, being afflicted by illness, he was ordered to go to Alexandria, or to bear the designation of the testator’s corpse-bearer?
Plane si quis petierit ad deliberationem tempus et impetraverit, deinde post tempus deliberationis adierit et restituerit hereditatem, non videtur coactus hoc fecisse: nec enim suspectam coactus adit, sed sponte post deliberationem.
Clearly, if someone has asked for time for deliberation and has obtained it, then after the period of deliberation has entered upon it and has restored the inheritance, he is not seen to have done this under coercion: for he does not enter upon a “suspect” inheritance under coercion, but voluntarily after deliberation.
Sed et si ante diem vel ante condicionem restituta sit hereditas, non transferuntur actiones, quia non ita restituitur hereditas, ut testator rogavit. plane posteaquam exstiterit condicio vel dies venerit si ratam habeat restitutionem hereditatis, benignius est intellegi tunc translatas videri actiones.
But also, if the inheritance has been restituted before the day or before the condition, the actions are not transferred, because the inheritance is not restituted in the way the testator asked. Plainly, after the condition has come into existence or the day has arrived, if he holds the restitution of the inheritance as ratified, it is more benign to understand that then the actions are seen to have been transferred.
Apud iulianum relatum est, si legatum fuit heredi instituto relictum " si heres non erit" et ob hoc suspectam dicat hereditatem ne perdat legatum, offerri ei oportere quantitatem legati a fideicommissario, deinde cogendum. nec illud admittit iulianus, ut, quasi hereditatem non adisset, sic legatum a coherede petat ( adiit enim), sed magis arbitratur a fideicommissario ei praestandum. sed et si quid aliud sua interesse dicet, non cogitur adire, nisi ei damnum vel lucrum a fideicommissario sarciatur vel a praetore onus remittatur, quod recusat.
It is reported by Julian that, if a legacy was left to an instituted heir “if he shall not be heir,” and for this reason he calls the inheritance suspect lest he lose the legacy, the quantum of the legacy ought to be tendered to him by the fideicommissary, and then he is to be compelled. Nor does Julian admit this, that, as if he had not entered upon the inheritance, he should claim the legacy from his coheir (for he did enter); rather he thinks it must be furnished to him by the fideicommissary. But even if he says that something else is to his interest, he is not compelled to enter, unless his loss or gain is made good by the fideicommissary, or the praetor remits the burden which he refuses.
Idem iulianus ait, si duo fuerint a patre instituti cum filio eius impubere et idem substituti filio, sufficere ei, qui fideicommissum in secundis tabulis accepit, unum ex heredibus institutis cogere adire patris hereditatem: hoc enim facto confirmatisque patris tabulis poterunt ex substitutione ambo cogi adire et restituere hereditatem.
The same Julian says that, if two have been instituted by the father together with his underage son, and the same men have been substituted to the son, it suffices for the one who received the fideicommissum in the second tablets to compel one of the instituted heirs to enter upon the father’s inheritance; for, this having been done and the father’s tablets having been confirmed, both can, by virtue of the substitution, be compelled to enter upon and restore the inheritance.
Utrum autem praesenti an etiam absenti restitui possit procuratore adeunte praetorem, videndum est. ego puto absenti quoque fideicommissario cogi posse heredem institutum adire et restituere nec vereri heredem oportere, ne forte in damno moretur: potest enim ei per praetorem succurri, sive cautum ei fiat, sive non et ante decesserit fideicommissarius, quam ei restituatur hereditas. est enim huius rei exemplum capere ex rescripto divi pii in specie huiusmodi.
Whether, moreover, it can be restored to one present, or even to one absent, with a procurator approaching the praetor, must be considered. I think that even when the fideicommissary is absent, the instituted heir can be compelled to enter upon the inheritance and restore it, nor ought the heir fear lest perhaps he remain at a loss: for relief can be afforded him by the praetor, whether security be furnished to him or not, and if the fideicommissary has died before the inheritance is restored to him. For one may take an example of this matter from a rescript of the deified Pius in a case of this kind.
Antistia, at her decease, instituted Titius as heir and gave Albina direct liberty, and to her she left her daughter by fideicommiss, and she asked that she manumit the daughter; but she also asked Titius to restore the inheritance to Albina once Albina had manumitted the daughter. Therefore, when Titius said the inheritance was suspect, it was rescripted by the deified Pius that he be compelled to enter upon the inheritance: upon his entering, liberty would accrue to Albina, and the daughter be handed over to her and be manumitted by her, and a tutor be given to the daughter when manumitted, by whose authority the daughter’s inheritance be restored immediately, although he had been asked to restore it to her thus, when she had completed marriageable age. But since, he says, it can happen that she to whom fideicommissary liberty and the inheritance have been left may die beforehand, and it is not proper that he who, having been asked, enters upon the inheritance be affected with loss, he gave a remedy, that, if any of these things should occur, the goods of Antistia be permitted to be sold just as if no heir had existed for her.
since therefore the deified Pius has shown that succor is afforded to the instituted heir who, being compelled, enters, it can be said that in other cases also this example is to be followed, wherever it shall occur: let the fideicommissary inheritance be restored to him who compelled the heir to enter and to restore the inheritance to himself.
Sed cum ab herede pro parte instituto fideicommissa hereditas sub condicione relicta esset, imperator titus antoninus rescripsit non esse locum constitutioni suae neque pupillum extra ordinem iuvandum, praesertim si novum beneficium cum alterius iniuria postularetur.
But when a fideicommissary inheritance had been left under a condition by an heir instituted for a part, the emperor Titus Antoninus issued a rescript that his constitution had no application, nor was the pupil to be assisted by extraordinary procedure, especially if a new beneficium were being demanded with injury to another.
Si de testamento aliquid quaeratur, heres non debet audiri, si suspectam sibi hereditatem dicat: nam et si maxime dicatur vel ius testandi non habuisse eum qui testatus est vel de viribus testamenti vel de sua condicione, non erit audiendus.
If anything is inquired concerning the testament, the heir ought not to be heard if he says the inheritance is suspect to him; for even if it be most emphatically alleged either that he who made the testament did not have the ius testandi, or concerning the forces (validity) of the testament, or concerning his own condition, he shall not be heard.
Quid ergo si de viribus fideicommissi tractetur? haec quaestio praetori praetermittenda non erit. sed quid si qui fideicommissarius dicat: " adeat prius et sic de hoc quaeratur?" credo interdum audiendum fideicommissarium, si cognitio prolixiorem tractatum habeat: finge enim verba fideicommissi de longinquo petenda et iustam deliberationem de quantitate fideicommissi incidere: dicendum erit compellendum eum adire, ne prius heres decedens fideicommissarium decipiat.
What then if the matter is handled concerning the force of the fideicommissum? This question is not to be passed over by the praetor. But what if some fideicommissary should say: " let him first enter upon it, and thus let inquiry be made about this?" I think the fideicommissary is sometimes to be heard, if the cognition would have a more protracted treatment: for imagine that the words of the fideicommissum must be sought from afar, and that a just deliberation arises about the quantity of the fideicommissum: it will have to be said that he is to be compelled to enter upon it, lest the heir, dying first, deceive the fideicommissary.
Tempestivum est requirere, per quem quis cogatur adire et restituere hereditatem: veluti si praetor aut consul fuerit heres institutus suspectamque hereditatem dicat, an cogi possit adire et restituere ? et dicendum est praetorem quidem in praetorem vel consulem in consulem nullum imperium habere: sed si iurisdictioni se subiciant, solet praetor in eos ius dicere. sed et si ipse praetor heres institutus suspectam dicat, ipse se cogere non poterit, quia triplici officio fungi non potest et suspectam dicentis et coacti et cogentis. sed in his omnibus casibus atque similibus principale auxilium implorandum est.
It is timely to inquire through whom someone is compelled to enter upon and restore the inheritance: for example, if a praetor or a consul has been instituted heir and declares the inheritance suspect, whether he can be compelled to enter and restore ? And it must be said that a praetor has no imperium over a praetor, nor a consul over a consul: but if they submit themselves to jurisdiction, the praetor is accustomed to pronounce law against them. But also, if the praetor himself, instituted as heir, calls it suspect, he will not be able to compel himself, because he cannot discharge a triple office—both of the one declaring it suspect, and of the one compelled, and of the one compelling. But in all these cases and the like, the aid of the Emperor must be implored.
Si quis compulsus adierit hereditatem ex testamento, quod secundas tabulas habebat, quaesitum est, an per aditionem et tabulae secundae firmarentur, quod videbantur evanuisse non adita patris hereditate. et iulianus libro quinto decimo scribit et sequentes tabulas confirmari: quae sententia verissima est: nemo enim dubitat etiam legata praestari et libertates competere et cetera, quaecumque sint in testamento, perinde valere, ac si sua sponte heres hereditatem adisset.
If someone, being compelled, has entered upon an inheritance under a testament that had second tablets, the question was raised whether by the entry both the second tablets would likewise be made firm, since they seemed to have vanished because the father’s inheritance had not been entered. And Julian, in the fifteenth book, writes that the following tablets too are confirmed; which opinion is most true: for no one doubts that even legacies are to be rendered, and manumissions (liberties) pertain, and the rest, whatever things are in the testament, are valid in the same way as if the heir had of his own accord entered upon the inheritance.
Non omnis autem suspectam hereditatem repudiatione amissam cogere potest adiri et sibi restitui, sed is demum, ad quem actiones transire possunt: neque enim aequum est ad hoc quem compelli adire hereditatem, ut emolumentum quidem hereditatis refundat, ipse vero oneribus hereditatis obstrictus relinquatur.
However, not everyone can compel that a suspect inheritance lost by repudiation be entered upon and restored to himself, but only he to whom the actions can pass; for it is not equitable that someone be compelled to enter upon the inheritance for this purpose, that he refund the emolument of the inheritance, while he himself be left bound by the burdens of the inheritance.
Cogi poterit: hoc idem et si " patrimonium" fuerit rogatus et si " facultates" et si " quidquid habeo" et si " censum meum" et si " fortunas meas" et si " substantiam meam". et si " peculium meum" testator dixerit, quia plerique hupokoristikws patrimonium suum peculium dicunt, cogendus erit: de successione enim sua et hic rogavit. nec ignoro in quibusdam ex his maecianum dubitare et voluntatis esse dicere quaestionem, utrum de pecunia tantum an et de successione testator sensit. in ambiguo tamen magis de successione sensum dico, ne intercidat fideicommissum.
He can be compelled: the same also if he was asked for " patrimony" and if for " means" and if for " whatever I have" and if for " my census" and if for " my fortunes" and if for " my substance". And if the testator said " my peculium," since many, hypokoristically, call their patrimony "peculium," he will have to be compelled: for here too he requested with respect to his own succession. Nor am I unaware that in some of these Maecianus is in doubt and says it is a question of intent, whether the testator meant money only or also the succession. In case of ambiguity, however, I say that he more likely meant the succession, lest the fideicommissum lapse.
Sed et si quis ita rogaverit: " quidquid ad te ex hereditate bonisve meis pervenerit, rogo restituas", cogi poterit adire et restituere hereditatem ex trebelliano senatus consulto, quamquam pervenire proprie dicatur quod deductis oneribus ad aliquem pervenit.
But also, if someone has requested thus: "whatever has come to you from the inheritance or from my goods, I ask that you restore it," he can be compelled to enter upon and restore the inheritance by the Trebellian senatus consultum, although "to come" is properly said of that which, with the burdens deducted, comes to someone.
Et generaliter autem potest dici ita demum quem non posse cogi adire et restituere hereditatem, si de re vel quantitate fuerit rogatus: ceterum si de universitate sensisse testatorem appareat, nulla quaestio est, quin, sive suspectam dicat, cogi possit, sive sponte adit, ex trebelliano transeant actiones.
And, generally, however, it can be said that only then can someone not be compelled to enter upon and restore the inheritance, if he has been asked concerning a thing or a quantity: but if it appears that the testator had conceived with respect to the universality, there is no question that, whether he declares it suspect, he can be compelled, or, if he enters of his own accord, the actions pass over under the Trebellian senatusconsult.
Inde quaeritur, si quis hereditatem rogatus sit restituere deducto aere alieno vel deductis legatis, an suspectam dicens cogi possit adire et restituere hereditatem, quia vi ipsa magis id, quod superest ex hereditate, quam ipsam hereditatem restituere sit rogatus. et sunt qui putent, ut maecianus, inutilem esse hanc deductionem: nec enim posse ex iure deduci quantitatem, non magis quam si fundum quis deducto aere alieno vel deductis legatis restituere sit rogatus: neque enim recipit fundus aeris alieni vel legati minutionem. sed iulianum existimare refert trebelliano senatus consulto locum esse et, ne dupliciter fideicommissarius oneretur, et cum heres aes alienum vel legatum deducit et cum convenitur a creditoribus et legatariis, restituta sibi ex trebelliano hereditate debere aut deductionem eum non pati ab herede aut cavere illi heredem defensum iri eum adversus legatarios ceterosque.
Thence the question is raised, if someone has been asked to restore an inheritance with the alien money (debt) deducted or with the legacies deducted, whether, saying it is suspect, he can be compelled to enter upon and restore the inheritance, because by its very terms he has been asked rather to restore what remains from the inheritance than the inheritance itself. And there are those who think, as Maecianus, that this deduction is useless: for it is not possible by law to deduct a mere quantity, any more than if someone were asked to restore a farm (fundus) with the debt or with the legacies deducted; for a farm does not admit a diminution by debt or by a legacy. But it is reported that Julian holds that the Trebellian Senatus Consultum applies, and, lest the fideicommissary be burdened doubly—both when the heir deducts the debt or a legacy and when he is sued by creditors and legatees—once the inheritance has been restored to him under the Trebellian, either he ought not to suffer the deduction by the heir, or the heir should give security to him that he will be defended against the legatees and the others.
Si quis heres institutus rogatus fuerit hereditatem non totam, sed partem restituere, vel si duobus restituere sit rogatus et alter ex his velit sibi restitui hereditatem, alter recuset: senatus censuit utroque casu exonerari eum, qui suspectam hereditatem dicit, totamque hereditatem transire ad eum, qui adire cogit.
If anyone instituted as heir has been asked to restore the inheritance not in its entirety, but a part, or if he has been asked to restore it to two persons and one of these wishes the inheritance to be restored to himself, the other refuses: the senate decreed that in either case he who says the inheritance is suspect is discharged, and that the whole inheritance passes to him who compels an entry upon it (to accept it).
Sed et si quis non hereditatis suae partem dimidiam rogavit heredem suum restituere, sed hereditatem seiae, quae ad eum pervenerat, vel totam vel partem eius, heresque institutus suspectam dicat, cum placeat illud quod papinianus ait ex trebelliano transire actiones, dici poterit, si suspecta dicatur hereditas, cogendum heredem institutum adire et restituere hereditatem totamque hereditatem ad eum cui restituitur pertinere.
But also, if someone did not ask his heir to restore one half of his own inheritance, but the inheritance itself, which had come to him, either the whole or a part of it, and the instituted heir says it is suspect, since that opinion of Papinian is approved, that from the Trebellianum the actions pass, it can be said that, if the inheritance is called suspect, the instituted heir is to be compelled to enter upon and to restore the inheritance, and that the whole inheritance pertains to him to whom it is restored.
Sed et si miles rogaverit quem res italicas restituere vel res provinciales, dicendum est suspectam dicentem cogi adire et restituere: nam, ut eleganter maecianus libro sexto fideicommissorum ait, qua ratione ex certa re miles heredem instituere potest actionesque ei dabuntur, pari ratione etiam ex trebelliano transibunt actiones: et quamvis placeat, cum quis hereditatem bonaque, quae sibi ab aliquo obvenerunt vel quae in aliqua regione habet, restituere rogat, ex trebelliano non transeant actiones, tamen contra responderi in militis testamento ait: nam sicuti concessum est, inquit, militibus circa institutionem separare species bonorum, ita et, si per fideicommissum ab institutis heredibus id fecerit, admitteretur trebellianum senatus consultum.
But also, if a soldier has requested someone to restore Italian assets or provincial assets, it must be said that one alleging that it is suspect is to be compelled to enter upon it and restore: for, as Maecianus elegantly says in the sixth book On Fideicommissa, in whatever manner a soldier can institute an heir from a specific thing and actions will be granted to him, by equal reasoning the actions will also pass by the Trebellianum; and although it is settled that, when someone asks to have the inheritance and the goods which have come to him from someone or which he has in some region restored, the actions do not pass by the Trebellianum, nevertheless he says that the contrary is to be answered in the testament of a soldier: for just as, he says, it has been granted to soldiers, in the matter of institution, to separate kinds of goods, so also, if he has done that by fideicommissum from the instituted heirs, the Trebellianum senatus consultum would be admitted.
Cum quidam duos heredes instituerit eosque invicem substituerit et ab his petierit, sive uterque sive alter heres esset, ut hereditas sua ex parte dimidia restitueretur alicui post quinquennium, et scripti suspectam sibi hereditatem dicant, fideicommissarius autem desideret suo periculo adiri hereditatem: censuit senatus ambos heredes alterumve cogi adire hereditatem et fideicommissario eam restituere ita, ut fideicommissario et adversus eum actiones competant quasi ex trebelliano restituta hereditate.
When a certain person has instituted two heirs and has substituted them for each other in turn, and has requested from them—whether both or only one should be heir—that his estate, as to a half share, be restored to someone after five years, and the instituted (written) heirs say the inheritance is suspect to them, but the fideicommissary desires that the inheritance be entered upon at his own peril: the Senate decreed that both heirs, or one of them, be compelled to enter upon the inheritance and to restore it to the fideicommissary, in such a way that actions lie to the fideicommissary and also against him as if, under the Trebellianic decree, the inheritance had been restored.
Maecianus scribit: cum quis ex fideicommissariis abesset et praesentes desiderent suo periculo adire hereditatem translatisque in solidum actionibus in eum qui coegit absentes, si velint fideicommissum suscipere, a praesente petent: consequenter ait nec quartam eum retenturum adversus fideicommissarios suos, quia nec heres potuit.
Maecianus writes: when one of the fideicommissaries was absent and those present desire, at their own peril, to enter upon the inheritance, and the actions are transferred for the whole (in solidum) against the one who compelled the absentees, if they wish to undertake the fideicommissum, they will demand it from one who is present; consequently, he says that he will not retain the fourth against his own fideicommissaries, because not even the heir could.
Idem maecianus quaerit, an is, qui duobus vel pluribus rogatus est restituere hereditatem, cogente aliquo adire possit et in horum, qui id non desideraverunt, portionibus falcidiae beneficio uti, sive ipsi quoque desiderent sibi restitui sive alius in locum eorum successerit. et cum hodie hoc iure utimur, ut totum transeat ad eum qui coegit, consequens erit dicere quartae retentionem amisisse eum qui coactus est, quia in solidum actiones transierint in eum qui coegit. plane si proponas fideicommissarium non ita coegisse, ut tota hereditas in se transferatur: cum coeperint ceteri desiderare sibi restitui hereditatem, dicendum falcidia eum uti posse.
The same Maecianus asks whether one who has been asked by two or more persons to restore the inheritance, if someone compels him to enter upon it, can use the benefit of the Falcidian portion in the shares of those who did not desire this—whether they themselves also desire to have it restored to them or another has succeeded in their place. And since today we use this rule of law, that the whole passes to the one who compelled, it will be consequent to say that the person who was compelled has lost the retention of the fourth, because the actions have passed in solidum to him who compelled. Clearly, if you suppose that the fideicommissary did not compel in such a way that the whole inheritance is transferred to himself, when the others begin to desire the inheritance to be restored to them, it must be said that he can use the Falcidia.
Therefore Maecianus rightly says that it makes much difference whether the fideicommissary has desired that the whole inheritance be restored to himself, or only his own part. For if only a part is transferred, in the residue there will be room for the Falcidian benefit; if the whole inheritance has been transferred, the benefit of this law ceases.
Si servo duorum rogatus quis sit restituere hereditatem et alter cogere velit suspectam dicentem, alter restituere sibi recuset, hoc erit dicendum, quod in duobus, quorum alter suscipere voluit hereditatem, alter non.
If a slave belonging to two masters has been asked to whom he should restore the inheritance, and the one wishes to compel him, he saying it is suspect, while the other refuses to have it restored to himself, this will be what must be said: as in the case of two, of whom the one wished to accept the inheritance, the other not.
Sed et si id fideicommissum ad castrense peculium spectaturum est et filius familias is fuit, qui munus militiae sustinebat aliove quo officio praeerat, multo magis dicendum erit posse eum postulare, ut pater suus cogatur adire et restituere hereditatem, quamvis contra obsequium patri debitum videtur id desideraturus.
But also, if that fideicommissum is to be regarded as pertaining to the castrense peculium, and the son under paternal power was one who bore the duty of military service or presided over some other office, much more must it be said that he can petition that his father be compelled to enter upon and restore the inheritance, although he would seem to be seeking this contrary to the obedience owed to a father.
Sed si servo suo rogatus sit cum libertate quis hereditatem restituere, sive directa data sit libertas sive fideicommissaria, dici poterit eum a servo suo non posse cogi adire hereditatem, quamvis, si sponte adisset, cogeretur praestare fideicommissariam libertatem et hereditatem: idque maecianus libro septimo de fideicommissis scribit.
But if someone has been asked to restore an inheritance to his own slave together with liberty, whether the liberty has been granted directly or fideicommissarily, it can be said that he cannot be compelled by his slave to enter upon the inheritance, although, if he had entered of his own accord, he would be compelled to furnish the fideicommissary liberty and the inheritance: and Maecianus writes this in the seventh book On Fideicommissa.
Idem quaerit, si quis paratus sit domino cavere de indemnitate, an possit cogi adire hereditatem, maxime et si pretium servi offeratur. et recte ait non oportere sub incerto cautionis committere se aditioni hereditatis.
The same man asks whether, if someone is prepared to give the master a caution for indemnity, he can be compelled to enter upon the inheritance, especially also if the price of the slave is offered. And he rightly says that one ought not, under the uncertainty of the caution, to commit oneself to the adition of the inheritance.
Si ego heres institutus et rogatus sim stichum manumittere vel alius legatarius, fidei autem meae commissum sit, ut titio hereditatem restituam, deinde titii fidei commisit, ut sticho eandem redderet: stichus cogere me possit adire et restituere hereditatem.
If I, instituted as heir, am asked to manumit stichus, or another legatee is so asked, and it has been committed to my faith (by fideicommissum) that I restore the inheritance to titio, and then it has been committed to the faith of titius that he return the same to stichus: stichus can compel me to enter upon and restore the inheritance.
Talis quoque casus a divo pio terminatus est: nam servo uni ex heredibus legato per fideicommissum erat ab eo libertas data et ab altero hereditas. divus etenim pius rescripsit cassio dextro in haec verba: " hermias si mosco theodoto ex parte heredi instituto a pamphilo testatore legatus est eumque theodotus, postquam adierit hereditatem, prius quam a coherede eiusdem pamphili adiretur hereditas, ad iustam libertatem perduxit et ob hoc in eum casum res perducta est, ut is qui legavit intestatus esse non possit, hermia postulante mihi id euarestus compellendus est periculo eius adire et ex causa fideicommissi hereditatem restituere".
Such a case too was terminated by the deified Pius: for a slave bequeathed to one of the heirs had, by a fideicommiss, been given freedom by that one, and by the other the inheritance. For indeed the deified Pius rescripted to Cassius Dexter in these words: "If Hermias was bequeathed by Pamphilus the testator to Moschus, with Theodotus instituted as heir to a share, and Theodotus, after he had entered upon the inheritance, before the inheritance was entered upon by the coheir of that same Pamphilus, brought him to just (lawful) freedom, and on this account the matter has been brought to such a pass that he who made the legacy cannot be intestate, then, upon Hermias petitioning me, Euarestus must be compelled, at his peril, to enter upon it and, on the ground of the fideicommiss, to restore the inheritance."
Ex facto tractatum est, an per fideicommissum rogari quis possit, ut aliquem heredem faciat. et senatus censuit rogari quidem quemquam, ut aliquem heredem faciat, non posse: verum videri per hoc rogasse, ut hereditatem suam ei restituat, id est quidquid ex hereditate sua consecutus est ut ei restitueret.
From the facts it was discussed whether someone can be asked by fideicommissum to make someone an heir. and the senate decreed that indeed it is not possible for anyone to be asked to make someone an heir; but that by this he seemed to have requested that he restore his inheritance to him, that is, that he restore to him whatever he had obtained from his inheritance.
Si quis rogatus fuerit, ut, si sine liberis decesserit, restituat hereditatem, papinianus libro octavo responsorum scribit etiam naturalem filium efficere, ut deficiat condicio: et in libertino eodem colliberto hoc scribit. mihi autem, quod ad naturales liberos attinet, voluntatis quaestio videbitur esse, de qualibus liberis testator senserit: sed hoc ex dignitate et ex voluntate et ex condicione eius qui fideicommisit accipiendum erit.
If someone has been asked that, if he should die without children, he restore the inheritance, Papinian in the eighth book of the Responsa writes that even a natural son brings it about that the condition fails; and in the case of a freedman he writes the same regarding a fellow‑freedman. But to me, so far as concerns natural children, it will seem to be a question of will (intention), namely what sort of children the testator meant: yet this must be taken from the dignity, the will, and the condition (circumstances) of him who made the fideicommissum.
Ex facto tractatum memini: rogaverat quaedam mulier filium suum, ut, si sine liberis decessisset, restitueret hereditatem fratri suo: is postea deportatus in insula liberos susceperat: quaerebatur igitur, an fideicommissi condicio defecisset. nos igitur hoc dicemus conceptos quidem ante deportationem, licet postea edantur, efficere, ut condicio deficiat, post deportationem vero susceptos quasi ab alio non prodesse, maxime cum etiam bona cum sua quodammodo ^ quodommodo^ causa fisco sint vindicanda.
I recall this being dealt with from an actual case: a certain woman had asked her son that, if he should die without children, he should restore the inheritance to her brother; thereafter he, having been deported to an island, had taken/acknowledged children. The question was, therefore, whether the condition of the fideicommissum had failed. We will accordingly say this: those conceived before deportation, although they are born afterwards, bring it about that the condition fails; but those begotten after deportation, as if by another, do not avail—especially since even his goods, together with himself, as it were ^ quodommodo^, are to be vindicated to the fisc.
Si quis rogatus fuerit filiis suis vel cui ex his voluerit restituere hereditatem, papinianus libro octavo responsorum etiam deportato ei tribuit eligendi facultatem, cui liber factus fideicommissum restitui velit. sed si servus poenae fuerit constitutus, nullo ante concepto filio iam parere condicioni non poterit decessisseque sine liberis videtur. sed cum decedit, electionem illam, quam papinianus deportato dedit, huic dari non oportet.
If anyone has been asked to restore the inheritance to his sons, or to whichever of them he may wish, Papinian, in the eighth book of the Responses, grants even to one who has been deported the faculty of choosing to which of them, once made free, he wishes the fideicommissum to be restored. But if he has been constituted a slave by way of punishment, with no son conceived beforehand, he will no longer be able to satisfy the condition and is considered to have died without children. But when he dies, that choice which Papinian gave to the deported man ought not to be given to this man.
Si quis autem susceperit quidem filium, verum vivus amiserit, videbitur sine liberis decessisse. sed si naufragio vel ruina vel adgressu vel quo alio modo simul cum patre perierit, an condicio defecerit, videamus. et magis non defecisse arbitror, quia non est verum filium eius supervixisse.
But if someone has indeed taken up a son, yet has lost him in his lifetime, he will be deemed to have died without children. But if by shipwreck or by a ruin or by an attack or in some other way he perished together with his father, let us consider whether the condition has failed. And I rather judge that it has not failed, because it is not true that his son survived him.
Si quis ita fideicommissum reliquerit: " fidei tuae, fili, committo, ut, si alieno herede moriaris, restituas seio hereditatem", videri eum de liberis sensisse divus pius rescripsit: et ideo, cum quidam sine liberis decederet, avunculum ab intestato bonorum possessorem habens, extitisse condicionem fideicommissi rescripsit.
If anyone has left a fideicommissum thus: “I commit to your good faith, my son, that, if you should die with someone else as heir, you are to restore the inheritance to Seius,” the Deified Pius wrote in a rescript that he seemed to have meant “children”; and therefore, when a certain man died without children, having his maternal uncle as bonorum possessor ab intestato, he wrote back that the condition of the fideicommissum had arisen.
" te rogo, luci titi, hereditatem meam cum attio partiaris". ex senatus consulto trebelliano in eum, cui restituta est hereditas, actiones competere aristo ait, quia pro hoc accipiendum sit " rogo hereditatem illam restituas": nec verba spectantur senatus consulti, sed sententia quibuscumque verbis, dum testator senserit, ut hereditas sua restituatur.
" I ask you, Lucius Titius, to share my inheritance with Attius." By the senatus consultum Trebellianum, Aristo says that the actions lie to him to whom the inheritance has been restored, because for this it should be taken as " I ask that you restore that inheritance": nor are the words of the senatus consultum regarded, but the intent, in whatever words, provided that the testator has meant that his inheritance be restored.
Heres cum debuerat quartam retinere, totam hereditatem restituit nec cavit sibi stipulatione proposita. similem eum esse aristo ait illis, qui retentiones, quas solas habent, omittunt: sed posse eum rerum hereditariarum possessionem vel repetere vel nancisci et adversus agentem doli mali exceptione uti posse eum et debitoribus denuntiare, ne solveretur.
The heir, when he ought to have retained a fourth, restored the whole inheritance and did not secure himself by the stipulation that had been proposed. Aristo says that he is similar to those who omit the retentions, which are the only thing they have: but that he can either recover or obtain possession of the hereditary things, and that he can employ the exception of dolus malus against the one suing, and give notice to the debtors not to pay.
Mulier, quae duobus filiis in potestate patris relictis alii nupserat, posteriorem maritum heredem instituit eumque rogavit liberis suis post mortem patris eorum hereditatem suam restituere vel ei qui eorum superesset: eisdem emancipatis a patre suo vitricus restituisse hereditatem dicebatur, mox alter ex filiis vivo patre decessisse: quaerebatur, an is, qui supererat ex filiis, partem fratri suo restitutam petere possit quasi praemature datam. scaevola divum marcum in auditorio de huiusmodi specie iudicasse refert: brasidas quidam lacedaemonius vir praetorius, cum filiis suis ab uxore divortio separata, si morte patris sui iuris fuissent effecti, fideicommissum relictum esset, eos emancipaverat: post emancipationem fideicommissum petebant. decrevisse igitur divum marcum refert fideicommissum eis repraestandum intellecta matris voluntate, quae quia non crediderat patrem eos emancipaturum, distulerat in mortem eius fideicommissum non dilatura id in mortalitatem, si eum emancipaturum sperasset.
A woman, who, her two sons having been left under the power of their father, had married another, instituted the later husband as her heir and asked him to restore her estate to her children after the death of their father, or to the one of them who survived: after the same had been emancipated by their father, the stepfather was said to have restored the inheritance, and soon one of the sons died while the father was still alive; it was asked whether the one of the sons who survived could claim the share restored to his brother as having been given prematurely. Scaevola reports that the deified Marcus judged in the auditorium concerning a case of this sort: a certain Brasidas, a Lacedaemonian, a man of praetorian rank, being separated by divorce from his wife together with his sons, if by the death of their father they had been made sui iuris and a fideicommissum had been left, emancipated them; after emancipation they were demanding the fideicommissum. He reports, therefore, that the deified Marcus decreed that the fideicommissum must be rendered to them, the mother’s will having been understood: since she had not believed that their father would emancipate them, she had deferred the fideicommissum to his death, nor would she have deferred it into his mortality, if she had hoped he would emancipate them.
Non est dubitatum cogi posse heredem institutum adire et restituere hereditatem servis, sive directa sive fideicommissaria libertas eis data fuisset, cum aspernari heres non deberet personam cogentis: habet enim hic quoque aditum, ut, qui nondum petere fideicommissariam libertatem possit nec directam sibi vindicare, propter spem tamen libertatis et hereditatis aditum ad praetorem et per se habeat.
It has not been doubted that the instituted heir can be compelled to enter upon the inheritance and to restore the inheritance to the slaves, whether direct or fideicommissary liberty had been given to them, since the heir ought not to spurn the person of the one compelling: for he too has access, so that he who cannot yet seek fideicommissary liberty nor vindicate direct liberty for himself, nevertheless, by reason of the hope of liberty and of the inheritance, has access to the praetor and on his own behalf.
Si heres post multum temporis restituat, cum praesenti die fidei commissum sit, deducta quarta restituet: fructus enim qui percepti sunt neglegentia petentis, non iudicio defuncti percepti videntur. alia causa est, si sub condicione vel in diem rogatus fuerit: tunc enim quod percipitur summovet falcidiam, si tantum fuerit, quantum quarta facit et quartae fructus: nam fructus, qui medio tempore percepti sunt, ex iudicio testantis percepti videntur.
If the heir restores after a long time, when the fideicommissum is for the present day, he will restore with the fourth deducted: for the fruits that have been collected are deemed collected through the negligence of the petitioner, not to have been collected by the judgment of the deceased. It is another case if he was asked under a condition or for a fixed day: for then what is collected removes the Falcidia, if it is as much as what the fourth amounts to and the fruits of the fourth; for the fruits that are collected in the meantime are deemed to have been collected by the judgment of the testator.
Sed enim si quis rogetur restituere hereditatem et vel servi decesserint vel aliae res perierint, placet non cogi eum reddere quod non habet: culpae plane reddere rationem, sed eius quae dolo proxima est. et ita neratius libro primo responsorum scribit. sed et si, cum distrahere deberet, non fecit lata culpa, non levi et rebus suis consueta neglegentia, huiusmodi rei rationem reddet.
But indeed, if someone is asked to restore the inheritance and either slaves have died or other things have perished, it is settled that he is not to be compelled to return what he does not have: plainly, he must render an account for fault (culpa), but for that which is nearest to deceit (dolus). And thus Neratius writes in the first book of his Responses. But also, if, when he ought to sell off the property, he did not do so through gross fault (lata culpa)—not through slight negligence, such as is customary in his own affairs—he will render an account in a matter of this kind.
Cum proponeretur quidam filiam suam heredem instituisse et rogasse eam, ut, si sine liberis decessisset, hereditatem titio restitueret, eaque dotem marito dedisse certae quantitatis, mox decedens sine liberis heredem instituisse maritum suum, et quaereretur, an dos detrahi possit, dixi non posse dici in eversionem fideicommissi factum, quod et mulieris pudicitiae et patris voto congruebat. quare dicendum est dotem decedere, ac si quod superfuisset rogata esset restituere. quod si tantos fructus ex hereditate mulier percepit, ut inde poterit doti satisfieri, dicendum est potius fructibus hoc expensum ferendum quam fideicommisso.
Since it was proposed that a certain man had instituted his daughter as heir and had requested her that, if she should die without children, she restore the inheritance to Titius, and that she had given to her husband a dowry of a fixed amount, and soon thereafter, dying without children, had instituted her husband as heir, and it was asked whether the dowry could be deducted, I said it cannot be said to have been done in subversion of the fideicommissum, because it accorded both with the woman’s chastity and with the father’s vow. Therefore it must be said that the dowry is to be deducted, as if she had been asked to restore what had remained. But if the woman received such great fruits from the inheritance that from that source the dowry could be satisfied, it must be said that this expense should rather be charged to the fruits than to the fideicommissum.
Ut trebelliano locus esset, non sufficit de hereditate rogatum esse, sed quasi heredem rogari oportet. denique si cui portio hereditatis fuerit legata ( legari enim posse etiam portionem hereditatis placet nobis) rogatusque fuerit hanc partem restituere, dubio procul non fiet restitutio ex senatus consulto ideoque nec quarta retinetur.
that the trebellianum may have place, it is not sufficient to have been asked concerning the inheritance, but one ought to be asked as if heir. finally, if a portion of the inheritance has been bequeathed to someone ( for it pleases us that even a portion of the inheritance can be bequeathed) and he has been asked to restore this part, beyond doubt there will not be restitution under the senatorial decree and therefore neither is the fourth retained.
Quotiens pater familias unum vel duos heredes coheredibus suis restituere hereditatem iubet, intellegitur easdem partes in fideicommissis facere, quas in hereditate distribuenda fecerit. sed si iubeantur hi, quibus fideicommissum datur, pecuniam numerare atque ita fideicommissa recipere, ex quantitate pecuniae, quam dare iubentur, voluntas colligenda est patris familias. nam si ex disparibus partibus heredes scripti aequas partes dare iubentur, propius est, ut viriles recipere debeant: si vero summa pecuniae dandae congruit portionibus, hereditarias portiones accipere debebunt.
Whenever a pater familias orders one or two heirs to restore the inheritance to his coheirs, it is understood that they are to make the same shares in the fideicommissa as he made in distributing the inheritance. But if those to whom the fideicommissum is given are ordered to pay money and thus to receive the fideicommissa, the intention of the pater familias must be gathered from the quantity of money they are ordered to give. For if heirs instituted in unequal portions are ordered to give equal shares, it is nearer that they ought to receive virile shares; but if the total of the money to be given accords with the portions, they ought to receive hereditary portions.
Quidam ita testamento scripserat: " a te, heres, peto fideique tuae committo, ut quidquid ex hereditate mea ad te pervenerit, filio meo prima quaque die aut, si prius quid ei acciderit, matri eius des reddas". quaeritur, cum antequam adeatur hereditas puer decesserit, an fideicommissum matri debeatur. respondi, si puer, antequam dies fideicommissi cedat, decessisset, fideicommissum translatum esse ad matrem, postea autem quam dies fideicommissi cedit ^ cessit^ si decesserit, ad heredem pueri fideicommissum pertinere. sed an ea voluntas fuit patris familias, ut, si ante restitutum fideicommissum puer decessisset, matri potius quam heredibus praestaretur, praetor aestimabit ex persona matris et ex persona heredis pueri.
A certain man had thus written in his testament: " from you, heir, I ask and commit to your good faith, that whatever from my inheritance shall have come to you, you give and restore to my son on the very first day, or, if something should befall him earlier, to his mother." It is asked, since before the inheritance is entered upon the boy has died, whether the fideicommissum is owed to the mother. I answered: if the boy had died before the day of the fideicommissum falls due, the fideicommissum has been transferred to the mother; but after the day of the fideicommissum falls due ^ fell due^, if he has died, the fideicommissum pertains to the boy’s heir. But whether that was the intention of the paterfamilias, that, if before the fideicommissum was restored the boy had died, it should be rendered to the mother rather than to the heirs, the praetor will assess from the person of the mother and from the person of the boy’s heir.
Si quis filium suum ex asse heredem instituit et codicillis, quos post mortem filii aperiri iussit, fidei eius commisit, ut, si sine liberis decesserit, hereditatem suam sorori suae restitueret, et filius cum sciret, quod in codicillis scriptum esset, stichum servum hereditarium testamento suo liberum esse iussit: heredes filii pretium eius servi sorori defuncti praestare debent libertate favore sui servata. hoc amplius et si ignorasset filius codicillos a patre factos, nihilo minus heredes eius pretium praestare debebunt, ne factum cuiusquam alteri damnum adferat.
If someone has instituted his son as heir to the whole share, and by codicils, which he ordered to be opened after the son’s death, has entrusted to his good faith that, if he should die without children, he should restore his estate to his own sister, and the son, knowing what had been written in the codicils, by his own testament ordered Stichus, a slave of the inheritance, to be free: the son’s heirs must pay to the deceased’s sister the price of that slave, his liberty being preserved by the favor shown to freedom. Moreover, even if the son had been ignorant of the codicils made by his father, nonetheless his heirs will have to pay the price, lest the act of one bring loss to another.
Sed et si servus iste a sempronio heres institutus sit eamque hereditatem, posteaquam ex testamento fratris ad libertatem pervenerat, adierit, hereditatis quoque aestimationem heredes fratris sorori eius praestare debent, quia, si manumissus non esset, iussu mulieris adire eam potuisset. si vero vivente filio sempronius decesserit, hereditas in causa fideicommissi non deduceretur: quippe ab ipso filio adire iussus hereditatem ei adquireret.
But also, if this slave has been instituted heir by Sempronius and, after he had come to freedom by the testament of the brother, he entered upon that inheritance, the heirs of the brother must likewise provide to his sister the appraisal of the inheritance, because, if he had not been manumitted, he could have entered it at the woman’s order. If, however, Sempronius has died while the son was alive, the inheritance would not be deducted in the matter of the fideicommissum; for, being ordered by the son himself to enter, he would acquire the inheritance for him.
Omnibus civitatibus, quae sub imperio populi romani sunt, restitui debere et posse hereditatem fideicommissam apronianum senatus consultum iubet. sed et actiones in eas placuit ex trebelliano transferri: sed municipes ad eas admittuntur.
For all civic communities that are under the imperium of the Roman people, the Apronian senatus‑consultum orders that a fideicommissary inheritance be restored and may be restored. But it has also been decided that the actions in respect to them be transferred ex Trebelliano; and the municipes are admitted to them.
Si servum hereditarium heres, qui coactus adierit, iussisset adire hereditatem ab alio eidem servo relictam et tunc hereditatem, quam suspectam sibi esse dixerat, restituerit, an etiam eam hereditatem, quae per servum adquisita esset, restituere deberet, quaesitum est. dixi non magis hanc hereditatem in restitutionem venire, quam quod servus hereditarius post aditam hereditatem stipulatus fuisset aut per traditionem accepisset aut fructus, qui ex rebus hereditariis percepti fuissent, utique si nulla mora fideicommisso facta fuisset. sed si quid ante aditam hereditatem servus stipulatus fuisset aut per traditionem accepisset, id restitui debebit, sicut fructus ante aditam hereditatem in restitutionem venient.
If an heir, who had entered under compulsion, had ordered a hereditary slave to enter upon an inheritance left by another to that same slave, and then restored the inheritance which he had said was suspect to him, the question was raised whether he ought also to restore that inheritance which had been acquired through the slave. I said that this inheritance no more comes into restitution than what the hereditary slave, after the inheritance had been entered upon, had stipulated, or had received by delivery (tradition), or the fruits which had been taken from the hereditary property—certainly provided that no delay had been caused to the fideicommissum. But if the slave had stipulated anything, or had received by delivery, before the inheritance was entered upon, that must be restored, just as the fruits before the inheritance was entered upon will come into restitution.
Qui suspectam sibi hereditatem dicit, nullum commodum ex testamento consequetur, quod habiturus non esset, si heres institutus non fuisset aut non adisset. et ideo si pupillo substitutus fuerit itaque: " quisquis mihi heres erit, idem filio meo heres esto", hereditatem, quae ex substitutione ad eum pervenerit, restituere cogendus erit. si vero detracto hoc articulo " quisquis mihi heres erit" substitutus ita fuerit: " titius filio meo heres esto", tum, si solus patri heres extiterit, nihilo minus cogendus erit hereditatem pupilli restituere, si vero coheredem habuerit, retinebit pupilli hereditatem, quia potuit coherede adeunte, quamvis ipse patris omisisset hereditatem, ex substitutione adire.
He who declares an inheritance suspect to himself will obtain no benefit from the testament which he would not have had if he had not been instituted heir or had not entered upon it. And therefore, if he has been substituted to a ward thus: " whoever shall be my heir, let the same be heir to my son," he will be compelled to restore the inheritance which shall have come to him from the substitution. But if, with this clause removed " whoever shall be my heir" he has been substituted thus: " titius, be heir to my son," then, if he alone has become heir to the father, nonetheless he will be compelled to restore the ward’s inheritance; but if he has had a coheir, he will retain the ward’s inheritance, because he could, with the coheir entering upon it, although he himself had omitted the father’s inheritance, enter upon the substitution.
Si pater filium, quem in potestate habebat, heredem scripserit et ab eo petierit, ut hereditatem sempronio restitueret, isque suspectam sibi esse dicet, poterit ex trebelliano senatus consulto hereditas restitui. quare et si non immiscuerit se hereditati, nihilo minus actiones, quae ei et in eum competebant, ad sempronium transferentur.
If a father has appointed as heir a son whom he had in his power, and has asked of him that he restore the inheritance to Sempronius, and he says that the inheritance is suspect to him, the inheritance can be restored under the Trebellianian senatorial decree. therefore, even if he has not involved himself in the inheritance, nonetheless the actions which lay for him and against him will be transferred to Sempronius.
A patre heres scriptus et exheredato filio substitutus si rogatus fuerit hereditatem, quae ad eum ex substitutione pervenerit, titio restituere, cogendus non est vivo pupillo patris hereditatem adire, primum quia sub condicione fideicommissum datum est, deinde quia non probe de hereditate viventis pueri aget: mortuo autem pupillo compelli debet hereditatem patris adire.
One instituted as heir by the father and substituted in place of a disinherited son, if he has been asked to restore to Titius the inheritance which shall come to him by the substitution, is not to be compelled, while the ward is alive, to enter upon the father’s inheritance—first, because the fideicommissum has been given under a condition; then, because he will not properly be acting concerning the inheritance of a living boy: but when the ward has died, he ought to be compelled to enter upon the father’s inheritance.
Quod si duo heredes a patre instituti fuerint et utriusque fidei commissum sit, ut exheredati filii hereditatem restituerent, satis erit vel unum cogi adire: hoc enim facto etiam is, qui patris hereditatem non adit, filii hereditatem adire et restituere cogetur.
But if two heirs have been instituted by the father and a fideicommissum has been laid upon each, that they should restitute the inheritance of the disinherited son, it will be enough that even one be compelled to enter upon it: for with this done, even he who does not enter upon the father’s inheritance will be compelled to enter upon and restitute the son’s inheritance.
Quotiens filius emancipatus bonorum possessionem contra tabulas accipit, nulla ratio est compellendi heredis ad restituendam hereditatem et sicut neque legata neque fideicommissa cetera praestare cogitur, ita ne ad restitutionem quidem hereditatis compelli debet. Marcellus: plane non est compellendus adire, si iam filius bonorum possessionem, ne intercidat fideicommissum mortuo herede instituto et omissa a filio bonorum possessione.
Whenever an emancipated son takes possession of the estate (bonorum possessio) against the tablets (i.e., contrary to the will), there is no ground for compelling the heir to restore the inheritance; and just as he is not forced to render either legacies or the other fideicommissa, so neither ought he to be compelled even to the restitution of the inheritance. Marcellus: plainly he is not to be compelled to enter upon it, if already the son has taken bonorum possessio, lest the fideicommissum lapse, the instituted heir having died and bonorum possessio having been omitted by the son.
Qui ex trebelliano senatus consulto hereditatem restituit, sive petat a debitoribus hereditariis sive ab eo petatur, exceptione restitutae hereditatis adiuvari vel summoveri potest. actiones autem fideicommissario competunt, quas habuit heres eo tempore, quo fideicommissum restituebat. Marcellus: sed eas quoque actiones, quae sub condicione erant et quarum dies eo tempore non cesserat, fideicommissario competere placet.
Whoever, from the Trebellian senatorial decree, restores an inheritance, whether he demands from the debtors of the inheritance or it is demanded from him, can be aided or barred by the exception of the restored inheritance. But the actions belong to the fideicommissary which the heir had at the time when he was restoring the fideicommissum. Marcellus: but it is also approved that those actions as well which were under a condition and whose day had not yet fallen due at that time, belong to the fideicommissary.
Quare si maevius te heredem instituerit et rogaverit, ut hereditatem titii restituas, a quo esses heres institutus, et tu hereditatem maevii adieris, perinde a te fideicommissum petetur, ac si fundum, qui tibi a titio legatus esset, restituere rogatus fuisses: ideoque et si suspectam maevii hereditatem dixeris, cogi te non oportet eam adire.
Wherefore, if maevius has instituted you heir and has requested that you restore the inheritance of titius, by whom you had been instituted heir, and you have entered upon maevius’s inheritance, the fideicommissum will be sought from you just as if you had been asked to restore the farm that had been bequeathed to you by titius: and therefore, even if you declare maevius’s inheritance suspect, you ought not to be compelled to enter upon it.
Quod si maevius te rogaverit et suam hereditatem et titianam restituere tuque sponte adieris hereditatem, uteris legis falcidiae commodo et partem quartam maevianae hereditatis retinebis, dimidiam et quartam ex fideicommisso restitues, nec intererit, eidem utramque hereditatem an alii maevianam, alii titianam rogatus fueris restituere. sed si suspectam maevianam hereditatem dixeris, cogeris eam adire et restituere ei, cui rogatus fueris: is autem, cui titianam hereditatem restituere rogatus fueris, non poterit te compellere ad adeundum.
But if Maevius has requested you to restore both his own inheritance and Titian’s, and you have of your own accord entered upon the inheritance, you will use the benefit of the Falcidian law and will retain the fourth part of the Maevian inheritance; you will restore a half and a fourth under the fideicommissum; nor will it matter whether you were requested to restore both inheritances to the same person, or the Maevian to one and the Titian to another. But if you have declared the Maevian inheritance suspect, you will be compelled to enter upon it and to restore it to him to whom you were requested; whereas the person to whom you were requested to restore the Titian inheritance will not be able to compel you to enter upon it.
Si ex trebelliano hereditatem restituit heres et fructus praediorum retinet vel ipsa praedia, sive etiam debitor eius qui testamentum fecit fuerit, necessarium est actionem adversus eum fideicommissario dari. Marcellus: hoc idem necessario faciendum est, cum parte hereditatis restituta familiae erciscundae iudicium inter eum qui restituit hereditatem et qui receperit accipietur.
If under the Trebellianum the heir restores the inheritance and retains the fruits of the estates or the estates themselves, or even has been a debtor of the one who made the testament, it is necessary that an action be granted to the fideicommissary against him. Marcellus: this same thing must necessarily be done, when, a part of the inheritance having been restored, the iudicium familiae erciscundae is taken between the one who restored the inheritance and the one who received it.
Si patronus ex parte debita heres institutus et rogatus restituere hereditatem suspectam sibi esse dicat, puto rectius facturum praetorem, si coegerit eum adire hereditatem et restituere, quamvis possit mutata voluntate eam partem hereditatis retinere.
If a patron, instituted heir as to the due part, and asked to restore the inheritance, says that it is suspect to him, I think the praetor would act more rightly if he compelled him to enter upon the inheritance and restore it, although, his will having been changed, he can retain that part of the inheritance.
Sed si eidem legatum esset sub hac condicione " si heres non esset" et suspectam sibi hereditatem dicat, non aliter cogendus est adire, quam ut legata, quae sub condicione " si heres non esset" data erant, restituantur, non quidem a coheredibus, ne onerentur, sed ab eo cui restituta fuerit hereditas. nam sicut explendae fidei gratia cogendus est adire hereditatem, ita ob id ipsum damno adfici non debebit.
But if to that same person a legacy had been left under this condition " si heres non esset" and he declares the inheritance suspect to himself, he is not to be compelled to enter upon it otherwise than on the terms that the legacies which had been given under the condition " si heres non esset" be restored, not indeed by the coheirs, lest they be burdened, but by the person to whom the inheritance has been restored. For just as for the sake of fulfilling good faith he is compelled to enter upon the inheritance, so for that very reason he ought not to be afflicted with loss.
Heres ex asse erat instituta consobrina mea et eius fidei commissum, ut partem dimidiam hereditatis statim publio maevio restitueret, alteram partem, cum ipsa moreretur, eidem publio maevio: praeterea alia aliis legata data sunt. maevius partem dimidiam hereditatis statim percepit et cavit, quod amplius quam per legem falcidiam liceret cepisset, redditu iri: sed et ceteri legata solida acceperant et similiter de restituendo quod amplius percepissent caverunt. mortua consobrina mea publius maevius desiderat sibi alteram partem hereditatis cum fructibus restitui.
my cousin was instituted heir for the whole (ex asse), and a fideicommiss was laid upon her, that she should immediately restore one half of the inheritance to publius maevius, the other half, when she herself should die, to the same publius maevius; besides, other legacies were given to others. maevius immediately took one half of the inheritance and gave security that, if he had taken more than it was permitted by the lex falcidia, it would be returned; but the rest likewise had received their legacies in full and similarly gave security for restoring what they had received in excess. my cousin having died, publius maevius desires that the other half of the inheritance be restored to him with the fruits.
likewise I ask, if what I shall have received from these by stipulation and what remained with my cousin beyond the quarter will not make up the half of the inheritance, whether I ought to supply to him from the increment and the fruits of that sum which remained with my cousin beyond the quarter, provided only that the amount to be restored does not exceed the half part of the inheritance? Or truly, as Publius Maevius desires, must whatever, the quarter of the goods and the fruits of that quarter being set aside, has been received, be restored to him? I answered: what remained beyond the quarter in the possession of your cousin, if, with the fruits added, it will not diminish the amount of the half part of the inheritance as it was at the time of death, must be restored in full to Publius Maevius; nor can anything be reclaimed by stipulation from those to whom the legacies have been paid.
But if the fruits exceed the amount of the half share, the excess will accrue to your quarter and its fruits. If, however, the fruits of that portion which, beyond the quarter, had remained with your cousin do not make up the amount of the half share of the estate, an action may be brought on the stipulation. In sum, the rule is to be set thus: that you in every way retain the quarter and its fruits; moreover, if the fruits of that which exceeds the quarter have grown to such an extent that they surpass the amount of the half share of the estate, you also retain what has exceeded.
Ex asse heres institutus partem hereditatis mihi pure, tibi sub condicione restituere rogatus cum suspectam diceret, postulante me adit et mihi totam ex senatus consulto restituit: quandoque condicio extiterit, an fructus partis tuae restituere tibi debeam, non immerito dubitabatur. et plerisque placet non esse eos praestandos, quia nec ab herede praestarentur, si sua sponte adisset, sufficiat autem ius tuum tibi integrum conservari, non etiam meliorem condicionem tuam fieri.
An heir instituted for the whole was asked to restore a part of the inheritance to me purely, to you under a condition; since he declared it suspect, at my demand he entered on it and, in accordance with the senatus consultum, restored the whole to me. Whenever the condition shall have arisen, whether I ought to restore to you the fruits of your share was not without reason doubted. And it pleases most that they are not to be furnished, since they would not be furnished by the heir either, if he had entered of his own accord; it is sufficient, moreover, that your right be preserved to you intact, not also that your condition be made better.
Idem tamen existimabant, si ex asse heres institutus mihi quadrantem pure, tibi aeque quadrantem sub condicione restituere rogatus sit et, cum suspectam hereditatem diceret, cogente me adit, quandoque condicio exstiterit, semissem tibi esse restituendum.
They nevertheless thought the same: that if an heir instituted as to the whole has been asked to restore a quarter to me purely, and to you likewise a quarter under a condition, and, when he declares the inheritance suspect, he enters upon it under my compulsion, then whenever the condition has arisen, a half must be restored to you.
Si quis priore facto testamento posterius fecerit testamentum, etiamsi ex certis rebus in posteriores tabulas heredes instituit, superius tamen testamentum sublatum est, ut divi quoque severus et antoninus rescripserunt, cuius constitutionis verba rettuli, cum alia quoque praeterea in constitutione expressa sunt. " imperatores severus et antoninus cocceio campano. testamentum secundo loco factum, licet in eo certarum rerum heres scriptus sit, iure valere, perinde ac si rerum mentio facta non esset, sed teneri heredem scriptum, ut contentus rebus sibi datis aut suppleta quarta ex lege falcidia hereditatem restituat his, qui priore testamento scripti fuerant, propter inserta fideicommissaria verba, quibus ut valeret prius testamentum expressum est, dubitari non oportet". et hoc ita intellegendum est, si non aliquid specialiter contrarium in secundo testamento fuerit scriptum.
if anyone, having previously made a testament, shall have made a later testament, even if in the later tablets he appointed heirs with respect to certain things, nevertheless the earlier testament is set aside, as the deified severus and antoninus also wrote back in a rescript, the words of which constitution I have reported, although other things besides are also expressed in that constitution. " the emperors severus and antoninus to cocceius campanus. a testament made in the second place, although in it an heir is written for certain things, ought in law to be valid, just as if mention of the things had not been made; but the written heir is held, so that, content with the things given to him, or with the fourth supplemented under the falcidian law, he restore the inheritance to those who had been written in the prior testament, on account of the inserted fideicommissary words, by which it was expressed that the earlier testament should be valid—there ought not to be any doubt." and this is to be understood thus, if something specifically contrary has not been written in the second testament.
Si legatus suspectam hereditatem dicat, et legationis tempore compellendus est accipere iudicium, quia hic non multum officio occupatur: et licet deliberare se dicat an adeat, cogendus est adire, sed non ut statim restituat, sed ut reversus domum, si putaverit sibi expedire, commodo falcidiae vel testamenti utatur vel, si non putaverit, restituat totam hereditatem, ne onera patiatur.
If a legate says the inheritance is suspect, even during the time of the legation he is to be compelled to accept the action, because here he is not much occupied with duty; and although he may say that he must deliberate whether to enter upon it, he is to be compelled to enter, but not so as to restore at once, rather that when he has returned home, if he deems it expedient for himself, he may avail himself of the benefit of the Falcidian portion or of the testament; or, if he does not so deem, let him restore the whole inheritance, lest he undergo the burdens.
Si autem ei, qui in diem libertatem accepit, hereditas per fideicommissum relicta fuerit, suspectam eam interim non posse adiri divus pius cassio hadriano rescripsit, cum non potest nondum libero hereditas restitui: nec rursus contra voluntatem defuncti libertatem esse praestandam.
But if to one who has received liberty for a future day an inheritance has been left by way of fideicommissum, the deified Pius wrote back to Cassius Hadrianus that, as suspect, it cannot meanwhile be entered upon, since an inheritance cannot be restored to one not yet free: nor, on the other hand, is liberty to be furnished against the will of the deceased.
Si sub condicione heres institutus rogatusque hereditatem restituere non vult condicioni parere et adire hereditatem, si facti est condicio, debet parere et adire et restituere vel, si in dando sit, offerente fideicommissario. recusante autem herede factum adimplere licentia dabitur fideicommissario secundum imitationem dationis factum implere, et tunc necessitas imponitur heredi adire hereditatem. ceterae condiciones, quae non sunt in potestate heredis, ad officium praetoris non pertinent.
If an heir instituted under a condition and asked to restore the inheritance does not wish to comply with the condition and to enter upon the inheritance, then, if the condition is one of fact, he ought to comply and to enter and to restore, or, if it is one of giving, upon the fideicommissary making a tender. But if the heir refuses to fulfill the act, leave will be given to the fideicommissary, by way of an imitation (analogy) of a dation, to perform the act; and then a necessity is imposed on the heir to enter upon the inheritance. The other conditions, which are not in the power of the heir, do not pertain to the office of the praetor.
Ballista filium familias heredem instituit ita: " rebellianus si caverit coloniae philippensium, si sine liberis morietur, quantacumque pecunia ex hereditate deve bonis meis ad eum pervenit, eam pecuniam omnem ad coloniam philippensium perventuram " . respondi: ex his verbis quae proponis, id est " pecuniam", existimo etiam fructus, quos ex hereditate percepit, restituere eum debere, perinde quasi specialiter hoc testator expressisset.
Ballista instituted a son under paternal power as heir thus: " rebellianus, if he shall furnish security to the colony of the Philippians, if he shall die without children, whatever money from the inheritance or from my goods shall come to him, all that money shall come to the colony of the Philippians " . I replied: from these words which you propose, that is " pecuniam", I think that he must also restore the fruits (profits) which he has received from the inheritance, just as if the testator had expressed this specially.
Scribit celsus libro vicensimo digestorum, si qui quadringenta in bonis habebat petit ab herede suo, ut, si sine liberis moreretur, quanta pecunia ex hereditate sua ad eum pervenisset, maevio restitueretur: si ex fructibus medio tempore quadringenta perceperit et sine liberis decesserit, heredem eius maevio quadringenta debiturum. et cum diu multumque tractavit, an, cum augmentum heres sensit, et periculum sustineat an per contrarium, novissime ait iniquum esse ad fideicommissarium damnum pertinere, ad quem augmentum non pertinet: et an ad supplendum, inquit, quodcumque ex quadringentis defuerit, etiam augmentum ad eum pertinebit, hoc est ut usque ad summam quadringentorum damni et fructus computentur: quod verius esse arbitror.
Writes celsus in the twentieth book of the Digests, if someone who had four hundred among his goods asks of his heir that, if he should die without children, as much money as from his own inheritance would have come to him be restored to maevio: if in the meantime from the fruits he has received four hundred and has died without children, his heir will owe maevio four hundred. And although he long and much considered whether, when the heir has experienced an augment, he also should bear the peril, or the contrary, at last he says it is inequitable that loss should pertain to the fideicommissary, to whom the augment does not pertain; and, he says, whether, for making up whatever of the four hundred was lacking, even the augment will pertain to him—this is, that up to the sum of four hundred loss and fruits be computed: which I judge to be truer.
Si eius, qui novissimus ex filiis mortuus est, partem hereditatis propinquo voluit pater restitui et simul fratres diem suum obissent: propinquum, si non ostenderit quis novissimus obisset, ad partem hereditatis non admitti, sed matrem ex tertulliano senatus consulto ad utriusque hereditatem admitti constat.
If the father wished the share of the inheritance of him who was the last to die among the sons to be restored to a kinsman, and the brothers had died at the same time: the kinsman, if he does not show who died last, is not admitted to the share of the inheritance; but it is agreed that the mother, by the Tertullian senatorial decree, is admitted to the inheritance of both.
Cum hereditas ex fideicommissi causa restituta est, si ante cum herede compromissum est, puto fideicommissarium cavere debere heredi, sicut cum heres multa antequam restitueret administravit. nam quod dicitur retinere eum oportere, non est perpetuum. quid enim si nihil est, quod retineat?
When an inheritance has been restored by reason of a fideicommissum, if previously a compromissum was entered into with the heir, I think the fideicommissary ought to give security to the heir, just as when the heir has administered many matters before he restored. For the statement that he ought to retain is not of perpetual application; for what if there is nothing that he may retain?
as, for instance, when everything is in claims (nomina) or in corporeal things which he does not possess? plainly, the one to whom it has been restored pursues everything, and yet the heir will remain bound by the actions in which he has been sued, or by the stipulations which he had necessity to promise. therefore he will not be compelled to restore except upon security being given to him.
Restituta hereditas videtur aut re ipsa, si forte passus est heres possideri res hereditarias vel totas vel aliquas earum hac mente, ut vellet restitueret ille suscipere, non si ex alia causa putavit te possidere. sed et si postea ratum habuit, idem erit dicendum. sed et si verbo dixit se restituere, vel per epistulam vel per nuntium restituat, audietur.
An inheritance is considered to have been restored even by the thing itself, if by chance the heir has allowed the hereditary assets, either all of them or some, to be possessed with this intention, that he wished that that man take them up as restored, not if he thought you were possessing for some other cause. But even if he afterward ratified it, the same is to be said. And even if he said in words that he is restoring, or if he restores by epistle or by messenger, he will be heard.
Pupillus autem ipse debet restituere tutore auctore, non tutor sine pupillo, nisi infans est, quia nec mandare actiones tutor pupilli sui potest. ne se quidem auctore pupillum restituere potuisse hereditatem divus severus in persona arri honorati pupilli decrevit, qui arrio antonino patruo et tutori suo restituerat.
but the ward himself ought to restore with the tutor as authorizer, not the tutor without the ward, unless he is an infant, because the tutor cannot even mandate the actions of his own ward. not even with himself as authorizer could a ward restore an inheritance, the deified severus decreed in the case of arrius honoratus, a ward, who had restored to arrius antoninus, his paternal uncle and tutor.
Persona autem heredis instituti trebelliano continetur: verum hoc iure utimur, ut et successor heredis recte ex trebelliano restituat, veluti heres bonorumve possessor, vel pater dominusve, quibus adquisita est hereditas: omnes enim quod iuris habent, ex trebelliano senatus consulto restituere debent, nec interest, is qui institutus est an pater dominusve rogatus est restituere.
But the persona of the instituted heir is encompassed by the Trebellianum: indeed we use this law, that the successor of the heir also may properly make restitution under the Trebellianum, such as an heir or a bonorum possessor, or a father or a master, to whom the inheritance has been acquired; for all ought to restore, to the extent of the right they have, under the senatus consultum Trebellianum, nor does it matter whether he who was instituted or the father or the master was asked to restore.
Papinianus tractat, si quis heres institutus ex semisse rogatus sit restituere hereditatem et eam suspectam dicens compulsus adit, deinde fideicommissarius gnarus sit adcrevisse portionem hereditatis post restitutionem scripto heredi, an opus sit ei alia actione. et ait securum esse eum posse de illo: plane de hoc solo quaerendum ait, an ei opus sit nova restitutione, posteaquam portio adcrevit: sed ne hanc quidem necessariam esse.
Papinian discusses this: if someone instituted as heir as to a half-share has been asked to restore the inheritance, and, calling it suspect, is compelled to enter upon it; then the fideicommissary becomes aware that a portion of the inheritance has accrued to the instituted heir after the restitution—whether he needs another action. And he says that, as to that, he is on secure ground: plainly, he says the only question is whether a new restitution is needed after the portion has accrued; but that not even this is necessary.
Postulante sticho, qui eodem testamento libertatem et fideicommissam hereditatem acceperat, heres suspectam adiit: mox stichus, antequam moram in recipienda hereditate faceret, decessit relicto herede titio. quaero, an in titium, si nolit recipere fideicommissam hereditatem, actiones ex senatus consulto competant. respondi: quoniam fere is, qui compulsus est adire hereditatem, confestim ei restituet, de manumisso dumtaxat senatus consulto comprehensum est nec heredis facta est mentio.
At the petition of Stichus, who by the same testament had received freedom and the fideicommissary inheritance, the heir entered upon it as suspect: soon Stichus, before he caused delay in receiving the inheritance, died, leaving Titius as heir. I ask whether actions under the senatus consultum lie against Titius, if he is unwilling to receive the fideicommissary inheritance. I answered: since generally he who has been compelled to enter upon the inheritance will immediately restore it to him, the senatus consultum included only the manumitted person, and no mention was made of the heir.
Nevertheless, it can happen that the heir has deferred the restitution, for example if the deceased owed him money, which he preferred to retain rather than to demand. Moreover, I think the same must be established in his heir as was established in him: for why should he refuse what he, whose inheritance he has assumed, could not refuse? But if perchance the freedman has died without an heir before the restitution of the inheritance, it must be permitted to sell his goods to the hereditary creditors, just as if he had died after the inheritance had been restored.
Set in huiusmodi quaestione rogo respondeas, an recte senserim. rogata est filia ex asse heres restituere hereditatis partem dimidiam deductis legatis minimis et aere alieno non magno, ut legi falcidiae locus non sit: mora facta non est restitutioni fideicommissi. desidero verbo tenus mihi restitui hereditatem, ut ex trebelliano senatus consulto agenti et ex eo competentibus actionibus etiam usuras debitas ex mortis die in tempus restitutionis persequar: item quaero et de pensionibus, quia locationum obligatio in hereditate fuit.
But in a question of this kind I ask you to respond whether I have judged rightly. The daughter, heir to the whole share, was requested to restore one half of the inheritance, the very small legacies and not great debt deducted, so that there be no place for the Lex Falcidia: no delay was made in the restitution of the fideicommissum. I desire that the inheritance be restored to me in word only (verbo tenus), so that, proceeding under the Trebellian senatus consultum, and by the actions competent from it, I may also pursue the interest owed from the day of death up to the time of restitution: likewise I inquire about the rents/instalments (pensiones), because an obligation of lettings (locationes) was in the inheritance.
I seek no fruits from the heir, but she desires either to reimburse me or to concede to me the actions for interest and rents: I cannot be persuaded that under the appellation of “inheritance,” which she was asked to restore to me, this stipulation for interest also pertains to me. I answered: all these things are contained under the appellation of “inheritance”; for, so far as this is concerned, there is no difference between these and other things which are promised under a condition or for each year or by months. Indeed, in place of the fruit of a thing which is contained in the inheritance, these accrue; nor do the fruits follow the fideicommissary, if delay has not intervened.
but because she does not demand that the heir, so to speak, make up the fideicommissum, but desires that the inheritance be restored to her such as it now is, by no means ought the heir refuse this: for the senate also wished, in a certain way, that the fideicommissary be received into a share of the inheritance and be held in the place of an heir, for that share in respect of which the inheritance had been restored to him. but when he has put out hereditary monies at interest or has taken fruits from the estates, he furnishes nothing on that account to the one to whom the inheritance has been left by fideicommissum, if no delay has intervened—namely because he lent at his own risk, or spent effort in cultivating the estate or in getting in the fruits: nor was it equitable that he be constituted, so to speak, the other’s procurator. however, no expense or labor of the heir intervenes, when by the modes about which the question has been asked the inheritance has received an increment.
Qui totam hereditatem restituere rogatus quartam retinere non vult fidumque obsequium defuncti precibus praebere desiderat, sua sponte adire debebit hereditatem, quasi ex trebelliano eam restiturus. suaserim tamen, suspectam potius dicat hereditatem coactusque a praetore restituat: hoc enim casu ex ipso trebelliano restituere videtur expositoque hereditario metu universas actiones in eum transfert, qui recepit hereditatem.
He who, having been asked to restore the whole inheritance, does not wish to retain the fourth and desires to offer faithful compliance to the prayers of the deceased, ought of his own accord to enter upon the inheritance, as though he were going to restore it under the Trebellian. Yet I would advise that he rather declare the inheritance suspect and, being compelled by the praetor, restore it: for in this case he is considered to restore under the Trebellian itself, and, the hereditary peril having been set forth, he transfers all actions to the one who received the inheritance.
Seius saturninus archigubernus ex classe britannica testamento fiduciarium reliquit heredem valerium maximum trierarchum, a quo petit, ut filio suo seio oceano, cum ad annos sedecim pervenisset, hereditatem restitueret. seius oceanus antequam impleret annos, defunctus est: nunc mallius seneca, qui se avunculum seii oceani dicit, proximitatis nomine haec bona petit, maximus autem trierarchus sibi ea vindicat ideo, quia defunctus est is cui restituere iussus erat. quaero ergo utrum haec bona ad valerium maximum trierarchum heredem fiduciarium pertineant an ad mallium senecam, qui se pueri defuncti avunculum esse dicit.
Seius Saturninus, chief helmsman from the British fleet, by his will left as fiduciary heir Valerius Maximus, a trierarch, from whom he requests that he restore the inheritance to his son Seius Oceanus when he had reached sixteen years. Seius Oceanus, before he completed the years, died. Now Mallius Seneca, who says that he is the uncle of Seius Oceanus, claims these goods by the title of proximity, but Maximus the trierarch claims them for himself on the ground that the person to whom he had been ordered to restore them has died. I therefore inquire whether these goods pertain to Valerius Maximus the trierarch, the fiduciary heir, or to Mallius Seneca, who says that he is the uncle of the deceased boy.
I answered: If Seius Oceanus— to whom the fideicommissary inheritance, out of the testament of Seius Saturninus, ought to be restored by Valerius Maximus, the fiduciary heir, when he had reached sixteen years— died before he fulfilled the pre-defined time of age, the fiduciary inheritance pertains to him to whom the other goods of Oceanus have pertained, since the day of the fideicommissum accrued while Oceanus was alive; namely, if by prorogating the time of payment he appears to have permitted tutelage rather to the fiduciary heir than to have established an uncertain day for the fideicommissum.
Imperator hadrianus, cum vivius cerealis filio suo vivio simonidi, si in potestate sua esse desisset, hereditatem restituere rogatus esset ac multa in fraudem fideicommissi fieri probaretur, restitui hereditatem filio iussit ita, ne quid ea pecunia, quamdiu filius eius viveret, iuris haberet. nam quia cautiones non poterant interponi conservata patria potestate, damnum condicionis propter fraudem inflixit. post decreti autem auctoritatem in ea hereditate filio militi comparari debuit, si res a possessoribus peti vel etiam cum debitoribus agi oporteret.
Emperor Hadrian, when Vibius Cerealis had been asked to restore the inheritance to his son Vibius Simonides, if he had ceased to be under his power, and it was proven that many things were being done in fraud of the fideicommissum, ordered the inheritance to be restored to the son in such a way that, as long as his son lived, he should have no right in that money. For since securities could not be interposed with paternal power preserved, he inflicted a detriment of condition on account of the fraud. But after the authority of the decree, in that inheritance a procurator had to be procured for the son, a soldier, if it were necessary to demand property from possessors or even to proceed against debtors.
Cum heres deductis legatis hereditatem per fideicommissum restituere rogatur, non placet ea legata deduci, quae peti non poterant. sed cum uxori pro parte heredi scriptae dos praelegetur eaque deductis legatis hereditatem restituere rogatur: etiamsi quarta, quam per legem falcidiam retinet, tantum efficiat, quantum in dote est, tamen pro sua portione dotis praelegatae partem deducit. cum enim utrumque consequitur, nihil interest inter hanc mulierem et quemvis alium creditorem heredem institutum et hereditatem restituere rogatum.
When an heir, with the legacies deducted, is asked to restore the inheritance by fideicommissum, it is not approved that those legacies be deducted which could not be demanded. But when a dowry is prelegated to a wife who has been appointed heir for a share, and she is asked, with the legacies deducted, to restore the inheritance: even if the fourth, which she retains by the Lex Falcidia, amounts only to as much as is in the dowry, nevertheless she deducts, in proportion to her share, a part of the prelegated dowry. For since she obtains both, there is no difference between this woman and any other creditor who has been instituted heir and asked to restore the inheritance.
Si res aliena titio legata fuerit isque domino rei herede instituto petierit, ut hereditatem maevio restituat, maevius legatum inutiliter petet: non enim poterit consequi, quod ad institutum, id est rei dominum pervenire non poterat.
If another’s property has been bequeathed to Titius, and he, the owner of the thing having been instituted as heir, has petitioned that the inheritance be restored to Maevius, Maevius will claim the legacy ineffectually: for he will not be able to obtain what could not come to the instituted heir, that is, the owner of the thing.
Servus ab altero ex heredibus libertatem, ab altero fideicommissum hereditatis accepit. si neuter adire velit, nullae praetoris partes erunt, quia neque propter solam libertatem compellitur adire neque is, a quo libertas data non est, propter eum, qui nondum liber est, ut adeat, compellitur: et senatus consulto locus est, cum ab omnibus directa, vel fideicommissa libertas ab eo datur a quo hereditas quoque relinquitur. sed si forte is, a quo libertas data est, portionem suam repudiavit vel condicione exclusus est, cum portio eius ad alterum pervenerit, defendi poterit adire cogendum: quid enim interest, quo iure debitor libertatis et hereditatis idem esse coeperit?
A slave received liberty from one of the heirs, and from the other a fideicommiss of the inheritance. If neither is willing to enter upon the inheritance, there will be no role for the praetor, because one is not compelled to enter for the sake of liberty alone, nor is he by whom liberty was not given compelled to enter on account of him who is not yet free; and there is room for the senatorial decree when liberty, whether direct from them all or fideicommissary, is given by him who also leaves the inheritance. But if perchance the one by whom liberty was given repudiated his share or was excluded by a condition, when his share has come over to the other, it can be maintained that he be compelled to enter: for what does it matter by what right the same person has begun to be debtor of liberty and of the inheritance?
Non est cogendus heres suspectam adire hereditatem ab eo, cui libertas a legatario, hereditas ab herede relicta est, cum status hominis ex legato pendeat et nemo se cogatur adstringere hereditariis actionibus propter legatum. quid enim, si inter moras non manumittente legatario servus decesserit? si autem vivo testatore legatarius decesserit, benigne respondetur cogendum adire, cum in ipsius sit potestate manumisso restituere hereditatem.
An heir is not to be compelled to enter upon a suspect inheritance at the instance of one to whom liberty has been left by the legatee and the inheritance by the heir, since a man’s status depends on a legacy and no one is compelled to bind himself with hereditary actions on account of a legacy. For what, if in the meantime, the legatee not manumitting, the slave should have died? But if, while the testator is alive, the legatee has died, it is answered benignly that he should be compelled to enter, since it is in his own power, after manumitting, to restore the inheritance.
Titius rogatus est, quod ex hereditate superfuisset, maevio restituere. quod medio tempore alienatum vel deminutum est, ita quandoque peti non poterit, si non interveniendi ^ intervertendi^ fideicommissi gratia tale aliquid factum probetur: verbis enim fideicommissi bonam fidem inesse constat. divus autem marcus cum de fideicommissaria hereditate cognosceret, his verbis: " quidquid ex hereditate mea superfuerit, rogo restituas" et viri boni arbitrium inesse credidit: iudicavit enim erogationes, quae ex hereditate factae dicebantur, non ad solam fideicommissi deminutionem pertinere, sed pro rata patrimonii, quod heres proprium habuit, distribui oportere.
Titius was asked to restore to Maevius whatever had remained from the inheritance. What in the meantime has been alienated or diminished cannot thereafter be sought in that way, unless it be proved that something of this sort was done for the sake of interverting the fideicommissum: for it is agreed that good faith is inherent in the words of a fideicommissum. Moreover, when the deified Marcus was adjudicating about a fideicommissary inheritance, upon these words, “whatever shall have remained from my inheritance, I ask you to restore,” he also believed that the discretion of a good man was present: for he judged that the disbursements which were said to have been made out of the inheritance did not pertain solely to the diminution of the fideicommissum, but ought to be distributed pro rata with the patrimony which the heir had as his own.
which seems to me to have been done not only by a consideration of equity, but also moved by precedent. For when it was asked about the collating of goods with brothers by an emancipated son, and it was pleasing that the praecipuum—that which had been acquired in the camp by the soldier—be left to him, the emperor, when consulted, established that the expenses which the soldier had incurred ought to be deducted not from that patrimony alone which had to bear the burden of collation, but also pro rata from the camp-money. Because of discussions of this sort, Maevius ought to demand a security in the name of the fideicommiss: which has this purport, not that there be sought from a stipulation what cannot be sought from the fideicommiss, but that he have sureties for that amount which he could have sought from the fideicommiss.
Si patroni filius extrario restituerit ex trebelliano hereditatem, operarum actio, quae transferri non potuit, apud heredem manebit, nec ei nocebit exceptio, cum eadem prodesse non posset ei qui fideicommissum accepit. et generatim ita respondendum est non summoveri heredem neque liberari ex his causis, quae non pertinent ad restitutionem.
If the patron’s son shall have restored the inheritance to a stranger under the Trebellianum, the action for services (operarum), which could not be transferred, will remain with the heir, nor will an exception harm him, since the same could not profit the one who received the fideicommissum. And generally it is to be answered thus: that the heir is not removed nor released from those causes which do not pertain to the restitution.
Qui fideicommissam hereditatem ex trebelliano, cum suspecta diceretur, totam recepit, si ipse quoque rogatus sit alii restituere, totum restituere cogetur. et erit in hac quoque restitutione trebelliano locus: quartam enim falcidiae iure fideicommissarius retinere non potuit. nec ad rem pertinet, quod, nisi prior, ut adiretur hereditas, desiderasset, fideicommissum secundo loco datum intercidisset: cum enim semel adita est hereditas, omnis defuncti voluntas rata constituitur.
He who has received the whole fideicommissary inheritance under the Trebellianum, when it was said to be suspect, if he himself also was asked to restore it to another, will be compelled to restore the whole. And in this restoration too there will be room for the Trebellianum: for by the right of the Falcidia the fideicommissary could not retain the fourth. Nor does it pertain to the matter that, unless the first had desired that the inheritance be entered upon, the fideicommissum given in the second place would have lapsed: for when once the inheritance has been entered upon, the entire will of the deceased is established as valid.
It is not inconsistent that he discharges the other legacies to no more than a dodrans (three-quarters): for it is one thing to be convened in the person of the heir, another to be bound in one’s own name by the prayers of the deceased. According to which it can be said that the instituted heir is not to be compelled to enter merely because the first petitioner desires it, where no portion would remain with him, especially if he has been asked to restore it either immediately or after a time with the fruits; but even if he has been asked to restore it without the fruits, the quantity will not be adequate to impose the necessity of entering. Nor will it be to the point if the first has also received liberty: for just as the having received money is not enough, so neither is the having received liberty, to compel the instituted heir.
Quid ergo, si non alii, sed ipsi heredi rogatus sit restituere? quia non debet eidem quandoque quarta reddi quam perdidit, propter huius portionis retentionem erit audiendus. sed nec illud translaticie omittendum est instituto, qui coactus est adire, fideicommissi petitionem denegandam esse: cur enim non videatur indignus, ut qui destituit supremas defuncti preces consequatur aliquid ex voluntate?
What then, if the person asked to restore is not another, but the heir himself? Since the fourth that he has lost ought not at some point to be paid back to that same person, he is to be heard as to the retention of this portion. Nor should this stock point be omitted: that, for the instituted (heir) who was compelled to enter upon the inheritance, the petition of the fideicommissum is to be denied; for why should he not be seen as unworthy—he who has disappointed the deceased’s last prayers—to obtain anything from the will?
which will be more strongly approved if, after the condition has been fulfilled, he was compelled to enter upon the inheritance. For if while the condition is pending, it will be hard to prove the same, since by repenting he could also have introduced the Falcidian portion; nor am I unaware that it can be said that in no way should the petition of the fideicommissum be denied to one who is pursuing the acquisition of rights of sepulchers, so much did the Senate wish to leave nothing with him from that share which he abandons, that neither can he exercise the Falcidian portion nor is a taking in advance (praeceptio) left with him, nor would a substitution of the second tablets made thus, “whoever shall be my heir, be heir to my son,” be granted to the same person.
Actiones temporariae trebelliani solent esse evicta hereditate ab eo, qui, posteaquam fideicommissam restituit hereditatem, victus est, scilicet ante restitutionem lite cum eo contestata: potestas enim evictionis tollit intellectum restitutionis indebito fideicommisso constituto. plane si fideicommissum ab eo quoque qui postea vicit relictum est: quia possessor in ratione reddendae hereditatis partem, quam fideicommissario restituit, heredi reputat, defendi potest actiones trebelliani durare.
The temporary actions of the Trebellian are wont to be available upon eviction of the inheritance from him who, after he restored the inheritance as a fideicommissum, was later defeated, namely the suit having been joined with him before the restoration: for the power (possibility) of eviction removes the conception of a restitution where the fideicommissum was constituted as not owed. Clearly, if the fideicommissum was also left by him who afterwards prevailed: because the possessor, in rendering the account of the inheritance, reckons to the heir the portion which he restored to the fideicommissary, it can be maintained that the actions of the Trebellian endure.
Filiam fratribus certis rebus acceptis hereditatem restituere pater voluit: ante restitutam hereditatem in possessionem hereditatis filiam quoque mitti placuit. cum autem interea filii res bonorum in solidum distraxissent, item alias pignori dedissent, hereditate postea restituta constitit ex eo facto ceterarum quoque portionum venditiones, item pignora confirmari.
The father wished the daughter, upon certain things having been received, to restore the inheritance to her brothers: before the inheritance was restored, it was decided that the daughter also be put into possession of the inheritance. But when in the meantime the sons had sold off the goods of the estate in solidum, and likewise had given others in pledge, after the inheritance was later restored it was established that by that act the sales of the other portions as well, and likewise the pledges, were confirmed.
" heredes mei quidquid ad eos ex hereditate bonisve meis pervenerit, id omne post mortem suam restituant patriae meae coloniae beneventanorum": nihil de fructibus pendente condicione perceptis petitum videri constitit.
"my heirs, whatever shall have come to them from the inheritance or from my goods, let them restore all that, after their death, to my fatherland, the colony of the Beneventans": it has been established that nothing is deemed to have been claimed with respect to the fruits received while the condition was pending.
Cum ita fuerat scriptum: " fidei filiorum meorum committo, ut, si quis eorum sine liberis prior diem suum obierit, partem suam superstiti fratri restituat: quod si uterque sine liberis diem suum obierit, omnem hereditatem ad neptem meam claudiam pervenire volo": defuncto altero superstite filio, novissimo autem sine liberis neptis prima quidem facie propter condicionis verba non admitti videbatur: sed cum in fideicommissis voluntatem spectari conveniat, absurdum esse respondi cessante prima substitutione partis nepti petitionem denegari, quam totum habere voluit avus, si novissimus fratris quoque portionem suscepisset.
Since it had been written thus: "I entrust to the good faith of my sons that, if any of them should first depart this life without children, he shall restore his share to the surviving brother: but if both should depart this life without children, I wish the whole inheritance to come to my granddaughter Claudia": after one had died with the other surviving, and when the last, however, died without children, the granddaughter at first sight seemed not to be admitted on account of the words of the condition: but since in fideicommissa it is agreed that the intention be regarded, I answered that it would be absurd, with the first substitution ceasing, to deny to the granddaughter the petition for the share, she whom the grandfather wished to have the whole, if the last had also received his brother’s portion.
" peto de te, uxor carissima, uti cum morieris hereditatem meam restituas filiis meis vel uni eorum vel nepotibus meis vel cui volueris vel cognatis meis si cui voles ex tota cognatione mea". inter filios respondi substitutionem fideicommissi factam videri, circa nepotes autem et ceteros cognatos facultatem eligendi datam: ex ceteris autem cognatis, si nepotes superessent, non recte mulierem electuram propter gradus fideicommissi praescriptos: deficiente vero gradu nepotem ex cognatis quam velit personam eligi posse.
"I ask of you, dearest wife, that, when you die, you restore my inheritance to my sons, or to one of them, or to my grandsons, or to whomever you wish, or to my cognates, if you wish to anyone from my whole cognation." Among the sons I answered that a substitution of a fideicommissum seems to have been made; but with respect to the grandsons and the other cognates, a faculty of choosing has been given: yet from the other cognates, if grandsons survived, the woman would not choose rightly, on account of the prescribed degrees of the fideicommissum; but if that degree is lacking, from the cognates whatever person she wishes can be chosen.
Deducta parte quarta restituere rogatus hereditatem, prius quam restitueret, hereditario debitori heres exstitit. quoniam actio eo confusa per trebellianum redintegrari non potest, pecuniae quoque debitae dodrans ex causa fideicommissi petetur. sed in eum diem, quo actio confusa est, usurae praeteriti temporis, quae in obligatione vel in officio iudicis fuerunt, computabuntur: posterioris ita demum, si mora fideicommisso facta sit.
With a fourth part deducted, having been asked to restore the inheritance, before he restored it he turned out to be heir to the hereditary debtor. Since the action, thus merged by confusio, cannot be reinstated by the Trebellianum, the dodrans (three-quarters) of the money also owed will be sought on the ground of the fideicommissum. But as to the day on which the action was merged, interest of the time already past, which was either in the obligation or in the office of the judge, will be computed; of later interest only if delay has been caused to the fideicommissum.
Qui post tempus hereditatem restituere rogatur, usuras a debitoribus hereditariis perceptas, quarum dies post mortem creditoris cessit, restituere non cogitur: quibus non exactis omnium usurarum actio ( nam hereditaria stipulatio fuit) ex trebelliano transferetur, et ideo nec indebiti repetitio erit. ac similiter hereditario creditori si medii temporis non solvantur usurae, fideicommissarium in his quoque trebellianum tenebit nec ideo querellae locus erit, quod de fructibus heres, quos iure suo percipiebat, faenus non solverit. quod si faenus heres medii temporis solverit, eo nomine non erit retentio, cum proprium negotium gessit, quippe sortem reddere creditori coactus fideicommissario nihil usurarum medii temporis imputabit.
He who is asked to restore an inheritance after a term is not compelled to restore the interest received from the hereditary debtors, whose due date fell after the creditor’s death: for, if these are not exacted, the action for all the interest (for there was an hereditary stipulation) will be transferred by the Trebellianum, and therefore there will not be a recovery of the undue. And likewise, if to the hereditary creditor the interest for the intermediate time is not paid, the Trebellianum will bind the fideicommissary in these matters too, nor will there be room for complaint on the ground that, out of the fruits which the heir was receiving by his own right, he did not pay interest. But if the heir has paid the interest of the intermediate time, there will be no retention on that account, since he managed his own business; for, being compelled to return the principal to the creditor, he will charge the fideicommissary with nothing of the interest of the intermediate time.
Acceptis centum hereditatem rogatus restituere totam pecuniam iure falcidiae percipere videtur, et ita divi hadriani rescriptum intellectum est, tamquam si ex bonis nummos retenturus fuisset. quod tunc quoque respondendum est, cum pro parte hereditatem coheredi suo restituere rogatur. diversa causa est praediorum pro hereditaria parte retentorum: quippe pecunia omnis de portione retineri potest, praediorum autem alia portio non nisi a coherede, qui dominium habet, accipitur.
Having received a hundred, being asked to restore the inheritance, he seems to take all the money by the right of the Falcidian law; and thus the rescript of the deified Hadrian has been understood, as though he were going to retain cash from the estate. The same answer is to be given also when he is asked to restore the inheritance in part to his coheir. The case is different for landed estates retained for the hereditary share: for all money can be retained out of the portion, but another portion of the estates is received only from the coheir who has ownership.
Cum autem post mortem suam rogatus hereditatem restituere res hereditarias distrahere non cogatur heres, sortium, quae de pretiis earum redigi potuerunt, usurae propter usum medii temporis perceptae non videbuntur: denique nec periculum mancipiorum aut urbanorum praediorum praestare cogitur: sed nihilo minus usus et casus eorum quadrantem quoque deminuit.
However, when the heir, having been asked to restore the inheritance after his own death, is not compelled to sell off the hereditary things, the interest on the principal sums, which could have been realized from their prices, shall not be considered as having been received on account of the use of the intermediate time: finally, nor is he compelled to make good the risk of slaves or of urban estates: but nonetheless their use and casualties diminish even the quarter.
Debitor sub pignore creditorem heredem instituit eumque rogavit restituere hereditatem filiae suae, id est testatoris: cum nollet adire ut suspectam, coactus iussu praetoris adit et restituit: cum emptorem pignoris non inveniret, desiderabat permitti sibi iure dominii id possidere. respondi: aditione quidem hereditatis confusa obligatio est: videamus autem, ne et pignus liberatum sit sublata naturali obligatione. atquin sive possidet creditor actor idemque heres rem sive non possidet, videamus de effectu rei.
A debtor, under a pledge, appointed his creditor as heir and asked him to restore the inheritance to his daughter, that is, to the testator’s daughter. Since he was unwilling to enter upon it as suspect, he was compelled by order of the praetor to enter and to restore. When he could not find a buyer of the pledge, he desired that it be permitted to him to possess it by right of ownership. I responded: by the entry upon the inheritance the obligation is indeed merged; let us see, however, whether the pledge too has been released, the natural obligation having been taken away. And in fact, whether the creditor—the plaintiff and likewise the heir—possesses the thing or does not possess it, let us consider the effect of the matter.
and if he possesses, he cannot be convened by the fideicommissary by any action, neither by a pignoratitious action, since the action is hereditary, nor will the fideicommissum be rightly demanded as though he had restored less: which would occur if no pledge had intervened; for he possesses that thing as a creditor, so to speak. But even if the fideicommissary holds the thing, here too the Servian action will lie: for it is true that the money has not been paid, just as we say when an action is lost on account of an exception. Therefore not only retention, but also a claim for the pledge in that capacity is available, and what has been paid will not be reclaimed.
therefore, on account of the pledge, the natural obligation remains. But while the matter is intact, I would not think he should be compelled to enter upon the inheritance, unless first security had been given to him for indemnity or the money had been paid: for even when an heir has been appointed for profit, what he would perhaps have received as a legacy if he had not become heir, it has been answered that he is not to be compelled to enter unless the legacy is furnished. In which case indeed it could be said that the heir ought not to be compelled to enter, as it were against the will of the deceased, who by bequeathing to the heir, if he should not enter, placed the entering in his own will; but since the testator gave one or the other, we provide both to him.
Ea quae dotem dabat pacta erat cum marito, ut mortua se in matrimonio dotis pars matri eius redderetur, nec eo nomine stipulatio a matre interposita est: moriens deinde matrem et maritum suum heredem fecerat et a matre petierat, ut hereditatem titio restitueret: iudex addictus de hereditate dividenda partem dotis quasi ex utili pacto pro parte matri adiudicaverat: quaerebatur, an et ea portio ex causa fideicommissi praestanda sit. quam non esse restituendam puto, quia non quasi heres, sed quasi mater ex pacto accepit nec occasione hereditatis, sed errore ex pacto eam habuit.
She who was giving a dowry had pacted with her husband that, if she died while in the marriage, a part of the dowry would be returned to her mother, and on that account no stipulation was interposed by the mother. Then, when dying, she made her mother and her husband her heir, and asked of her mother that she restore the inheritance to Titius. A judge assigned for dividing the inheritance adjudicated to the mother a part of the dowry, as though from a useful pact, in proportion to her share. It was asked whether that portion also must be furnished by reason of the fideicommissum. I think it is not to be restored, because she received it not as heir, but as mother under the pact, and she held it not on the occasion of the inheritance, but by mistake under the pact.
Paulus respondit his verbis: " semproni, heredem te non scripsi festinans per infirmitatem: ideoque ei dari volo tantum, quantum pro uncia hereditatis competeret" videri quidem magis quantitatem, quam portionem hereditatis relictam, sed sic accipiendum, uti videatur de uncia etiam restituenda sensisse.
Paulus answered in these words: " semproni, I did not write you down as heir, hastening because of infirmity: and therefore I wish to be given to him only as much as would be appropriate for an ounce of the inheritance"—it seems indeed that rather a quantity than a portion of the inheritance was left, but it must be taken thus, that he seems to have thought that even the ounce was to be restored.
A filia petit, ut, si liberis superstitibus moreretur, partem eius quod ad eam ex bonis patris pervenisset, quod si sine liberis, universum fratri restitueret: quaeritur, defuncta ea in matrimonio superstite filia, an heres eius cum parte hereditatis eius quoque quod dotis nomine datum erat partem restituere debeat. respondit id, quod in dotem fuisset, non contineri in partem hereditatis quae restituenda est: sed et si ex promissione dotis aliquid debitum fuit, aeris alieni loco habendum.
He asks of his daughter that, if she should die with children surviving, she restore a part of that which had come to her from her father’s estate, but if without children, she restore the whole to her brother: it is asked, she having died in marriage with a daughter surviving, whether her heir, together with a part of the inheritance, ought also to restore a part of that which had been given in the name of a dowry. He answered that what had been in dowry is not included in the share of the inheritance that is to be restored; but also, if anything was owed from a promise of dowry, it must be treated as a debt.
Alumno certam pecuniam legavit et eam recipi a sempronio mandavit et certas usuras alumno praestari, donec ad vicensimum annum pervenerit: deinde alumni fidei commisit, ut, si sine liberis decederet, partem restitueret sempronio, partem septiciae. quaesitum est defuncto alumno intra annum vicensimum, an substituti fideicommissum petere possint an vero in id tempus sustinere, quo, si viveret, alumnus vicensimum annum impleret. respondi secundum ea quae proponerentur posse.
He bequeathed a definite sum of money to a foster child and instructed that it be received from Sempronius, and that fixed interest be paid to the foster child until he should reach his twentieth year: then he entrusted to the foster child’s good faith (fideicommissum) that, if he should die without children, he would restore part to Sempronius, part to Septicia. The question was raised, the foster child having died within his twentieth year, whether the substitutes could demand the fideicommissum, or rather must wait until the time at which, if he were living, the foster child would complete his twentieth year. I answered that, according to the matters proposed, they could.
Si is qui hereditatem sibi reddi ab herede stipulatus sit eique ex stipulatu agenti restituta fuerit hereditas, constat nihilo minus transferri actiones. hoc ita est, si is cum quo actum sit restituat hereditatem: si vero ob id quod non restituerit aestimatione hereditatis condemnatus fuerit, remanent actiones hereditariae apud eum qui condemnatus sit, actor autem quantitatem consequitur.
If a person who has stipulated from the heir that the inheritance be returned to himself, and, suing ex stipulatu, the inheritance has been restored to him, it is agreed nonetheless that the actions are transferred. This holds if the one with whom the matter was litigated restores the inheritance; but if, because he did not restore it, he has been condemned in the estimation (valuation) of the inheritance, the hereditary actions remain with him who has been condemned, while the actor (plaintiff) obtains the amount.
Si quis maiorem partem restituerit quam rogatus est, in eam partem quae excedit non transferuntur actiones. sed cum praecepta aliqua re aut summa rogatus sit heres restituere et omissa retentione totam hereditatem restituerit, recte dicitur transferri actiones.
If anyone has restored a greater part than he was asked, the actions are not transferred with respect to the part that exceeds. But when the heir was asked to restore, with some thing or sum having been pre-taken, and, the retention being omitted, he has restored the whole inheritance, it is rightly said that the actions are transferred.
Si heres ante restitutam hereditatem servum hereditarium heredem ab aliquo institutum iusserit adire hereditatem, negat iulianus debere hanc hereditatem restitui, quia de ea rogatus non esset: et hoc est fatendum. requirendum tamen et illud est, num cum incremento restituere heres rogatus sit hereditatem: si enim hoc fuerit subsecutum, etiam eam hereditatem restituere cogitur, nisi evidentissimis probationibus fuerit ab herede adprobatum contemplatione sui servum esse heredem institutum.
If the heir, before the inheritance has been restored, has ordered a hereditary slave—who has been instituted as heir by someone—to enter upon the inheritance, Julian denies that this inheritance ought to be restored, because he had not been asked concerning it; and this must be conceded. Yet inquiry must also be made whether the heir was asked to restore the inheritance with increment: for if this has followed, he is compelled to restore that inheritance as well, unless by the most evident proofs it has been approved by the heir that the slave was instituted heir in contemplation of himself.
Rescripto divi antonini significatur, ut, si quis accepta a titio pecunia, quae quartam hereditatis continet, rogatus sit ei restituere hereditatem, licet tardius detur pecunia, sine usuris eam dari debere, quia quanto tardius quisque pecuniam dat, tanto tardius ad fideicommissum pervenit et medii temporis fructus perdit. quamobrem si ante datam pecuniam tenuerit hereditatem, fructus quos percepit restituere heredi eum oportere.
By a rescript of the deified Antoninus it is signified that, if someone, having received from Titius money which comprises the fourth of the inheritance, has been asked to restore the inheritance to him, although the money is given later, it ought to be given without interest, because the later anyone gives the money, the later he attains the fideicommissum, and he loses the fruits of the intermediate time. Wherefore, if he has held the inheritance before the money was given, he ought to restore to the heir the fruits which he has collected.
Si sub condicione heres institutus sit qui suspectam sibi hereditatem esse dicit, si neque difficultatem neque turpitudinem ullam habet condicio nec impendium aliquid, iubendus est parere condicioni et adire et ita restituere: si vero turpis aut difficilis sit condicio, aperte iniquum est cogi eum explere eam alterius gratia. sed et remitti eam ab initio visum est: plus enim tribui a praetore ei qui fideicommissum petit, quam testator voluit, absurdum est: utique autem testator, nisi expleta sit condicio, neque scriptum heredem ad hereditatem vocavit neque per hunc illi voluit restitui hereditatem.
If an heir has been instituted under a condition, who says that the inheritance is suspect to him, if the condition has neither any difficulty nor any turpitude nor any outlay, he is to be ordered to obey the condition and to enter upon it and thus to restore it: but if the condition is base or difficult, it is plainly inequitable that he be compelled to fulfill it for another’s sake. But it has also seemed that it should be remitted from the beginning: for it is absurd that more be granted by the praetor to him who seeks the fideicommissum than the testator wished: and in any case the testator, unless the condition is fulfilled, neither called the written heir to the inheritance nor wished the inheritance to be restored to that man through him.
Quod si condicio adscripta est et ea est, quam praetor remittit, sufficit edictum, ut iulianus ait: hactenus iubendus est, ut constituat praetoris actionibus uti aut petat bonorum possessionem secundum tabulas, ut ita nanctus actiones tunc restituta hereditate transferat eas ex senatus consulto.
But if a condition has been adscribed and it is one which the praetor remits, the edict suffices, as Julianus says: he must be ordered thus far, that he determine to use the praetor’s actions or to seek possession of the goods according to the tablets, so that, having in this way obtained the actions, then, once the inheritance has been restored, he may transfer them under the senatus consultum.
Si vero nominis ferendi condicio est, quam praetor exigit, recte quidem facturus videtur, si eam expleverit: nihil enim male est honesti hominis nomen adsumere, nec enim in famosis et turpibus nominibus hanc condicionem exigit praetor. sed tamen si recuset nomen ferre, remittenda est ei condicio, ut iulianus ait, et permittendae utiles actiones, aut bonorum possessio secundum tabulas danda est, uti nanctus actiones transferat eas ex senatus consulto.
If indeed the condition of bearing a name is what the praetor requires, he would seem to be acting rightly if he fulfills it: for there is nothing amiss in assuming the name of an honorable man, nor does the praetor exact this condition in infamous and base names. But nevertheless, if he refuses to bear the name, the condition must be remitted to him, as Julian says, and the useful actions must be permitted, or possession of the estate according to the will must be given, so that, having obtained the actions, he may transfer them by the senatus consultum.
Si cum suspectam videret, hereditatem postulante me iussu praetoris adieris et restitueris mihi, ita utar legis falcidiae beneficio adversus legatarios, si tu quoque ea lege uti poteras et quatenus uti poteras: nam si quid praeterea a me alicui per fideicommissum relictum sit, id quasi a legatario relictum non venit in computationem eius legis, sed extrinsecus numeratur.
If, because he regarded it as suspect, you, upon my petition, shall have entered upon the inheritance by order of the praetor and have restored it to me, thus I shall use the benefit of the Falcidian law against the legatees, if you too could have used that law and to the extent that you could have used it: for if anything besides has been left by me to anyone by fideicommissum, that, as if left by a legatee, does not come into the computation of that law, but is counted extrinsically.
Si quis bonorum possessoris fidei commiserit de hereditate restituenda et is passus fuerit diem bonorum possessionis adgnoscendae transire aut per hoc tempus, quo is, cui restitui debebit hereditas, aliqua ex causa non potuit adire praetorem et postulare, ut petita bonorum possessione restituatur sibi hereditas, succurri ei debet, id est ut restituatur tempus bonorum possessionis admittendae exhibendi fideicommissi gratia.
If someone has committed to the good faith of the bonorum possessor the matter of restoring an inheritance, and he has allowed the day for acknowledging (claiming) bonorum possessio to pass, or during that period in which the person to whom the inheritance ought to be restored was for some reason not able to approach the praetor and request that, bonorum possessio having been petitioned, the inheritance be restored to him, he ought to be given relief—that is, that the time for admitting bonorum possessio be restored for the sake of exhibiting the fideicommiss.
Admonendi autem sumus, si is, qui solvendo non sit, titio herede instituto servum liberum esse iusserit et rogaverit titium hereditatem eidem restituere, vix esse, ut titius recusans adire hereditatem cogatur. nam licet desiderante servo titius adierit hereditatem, non tamen potest libertas servo competere quasi in fraudem creditorum data, licet titius locuples sit: qua de causa nec hereditas ei restitui potest. sed ex sententia legis dicendum est perinde habendum, ac si is servus solus liber et heres scriptus esset nec titius heres esset.
We must be admonished, however, that if someone who is not solvent, with Titius instituted as heir, has ordered a slave to be free and has requested Titius to restore the inheritance to that same person, it is scarcely the case that Titius, refusing, can be compelled to enter upon the inheritance. For although, at the slave’s desire, Titius should have entered upon the inheritance, nevertheless liberty cannot accrue to the slave as if granted in fraud of the creditors, although Titius is wealthy; for which cause neither can the inheritance be restored to him. But according to the sense of the law it must be said that it is to be held just as if that slave alone had been written as free and heir and Titius were not heir.
Si eius pupilli, cui sine tutoris auctoritate pecunia credita erat, restituta ex eo senatus consulto mihi fuerit hereditas, si solvam creditori, non repetam: adquin heres si post restitutionem solvat, repetet: non ob aliud, quam quod ab eo in me naturalis obligatio translata intellegitur. et si eius mihi restituta sit hereditas, qui pupillo sine tutoris auctoritate crediderit, si solverit mihi pupillus, non repetet: at si heredi solverit, repetet, non repetiturus, si ante restitutionem solvisset.
If the inheritance of that ward, to whom money had been credited without the tutor’s authority, shall have been restored to me by virtue of that senatus‑consult, if I pay the creditor, I shall not recover: indeed, if the heir pays after the restitution, he will recover: for no other reason than that the natural obligation is understood to have been transferred from him to me. And if the inheritance of him who has credited a ward without the tutor’s authority has been restored to me, if the ward shall pay me, he will not recover: but if he shall pay the heir, he will recover, not about to recover if he had paid before the restitution.
Si necessarii heredes sub condicione quamvis levissima heredes sint instituti, cui parere solent, dicendum est cogi restituere hereditatem desiderantibus his, quibus restituere rogati sunt, quia etiam necessari heredes fideicommissae hereditatis restituendae gratia condicioni parere erunt compellendi.
If necessary heirs have been instituted as heirs under a condition, however slight, which they are accustomed to obey, it must be said that they are compelled to restore the inheritance to those who desire it, to whom they have been asked to restore it, since even necessary heirs, for the sake of restoring the fideicommissary inheritance, will be compelled to obey the condition.
Si quis rogatus restituere hereditatem decessit, antequam eam restituat, heres eius poterit hereditatem restituere et ex trebelliano senatus consulto transeunt actiones. sed si duo ei heredes extitissent, uti quisque restituisset, pro ea parte transituras actiones: nam et si ipse partem restituisset, pro parte interim transituras verius est. sed et si plures heredes extiterunt ei, qui rogatus est restituere hereditatem, si quidam interim restituerint, vel cum ei, cui restitui debuit, plures heredes extiterint: ut cui restituta erit, is pro ea parte ex hoc senatus consulto habebit actiones.
If someone who was asked to restore an inheritance dies before he restores it, his heir can restore the inheritance, and under the Trebellian senatorial decree the actions pass. But if two heirs should have arisen to him, then as each shall have restored, the actions will pass for that share; for even if he himself had restored a part, it is truer that in the meantime they will pass for the part. And likewise, if several heirs have arisen to the one who was asked to restore the inheritance, if some have in the meantime restored, or when several heirs have arisen to the one to whom it ought to have been restored: the one to whom it will have been restored will have the actions for that share under this senatorial decree.
Si patronus ex parte debita heres institutus rogatus fuerit eam liberis exheredatis defuncti liberti restituere, si sua sponte adierit, erit falcidiae locus, si coactus, in solidum transibunt actiones ex hoc senatus consulto.
If a patron, instituted heir for the owed share, shall have been asked to restore it to the disinherited children of the deceased freedman, if he has entered upon it of his own accord, there will be room for the Falcidian allowance; if compelled, the actions under this senatus-consultum will pass in solidum.
Servo invito domino vel ignorante non recte restituetur hereditas: sed si postea ratum habuerit, confirmabitur restitutio, verum ipsi domino adquirentur actiones. nec quia hereditatis adquisitionis similis est haec restitutio, iussum praecedere oportet, sed ut dictum est, etiam ratihabitio subsequi poterit exemplo bonorum possessionis. neque interest, quod ad propositum attinet, ipsi domino an servo quis rogetur restituere hereditatem, nec in ea re consensu aut opera servi opus est: atquin in bonorum possessione vel in adeunda hereditate consensus eius necessarius est.
An inheritance will not be rightly restored by a slave, the master being unwilling or unaware; but if afterward he shall have ratified it, the restitution will be confirmed, yet the actions will accrue to the master himself. Nor, because this restitution is similar to the acquisition of an inheritance, must a command precede; but, as has been said, even ratification can follow, on the example of bonorum possessio. Nor does it matter, as far as the point proposed is concerned, whether the master himself or the slave is asked to restore the inheritance; nor in this matter is the slave’s consent or assistance required: but indeed in bonorum possessio or in entering upon an inheritance his consent is necessary.
Si testator rogasset heredem, ut restituat hereditatem mulieri, si non nupsisset, dicendum erit compellendum heredem, si suspectam dicat hereditatem, adire et restituere eam mulieri, etiamsi nupsisset. idem in ceteris quoque condicionibus iulianus noster probat, quae similiter nisi fine vitae expleri non possent. secundum quam sententiam cautione praestita his, quorum interest, ab his, quibus restitui sub isdem condicionibus heres rogatus esset, restituet hereditatem.
If the testator had requested the heir to restore the inheritance to a woman, if she should not have married, it will have to be said that the heir is to be compelled—if he declares the inheritance suspect—to enter upon it and to restore it to the woman, even if she had married. The same, too, in other conditions our Julian approves, which likewise could not be fulfilled except at the end of life. According to which opinion, security having been provided by those whose interest it concerns, by those to whom the heir had been asked to restore under the same conditions, he will restore the inheritance.
Si pupillo infanti restituere hereditatem quis rogatus sit, si sponte adierit, etiam servo eius et ipsi pupillo tutore auctore restituetur hereditas: si quidem eo, quod fari non potest, non magis ea res impedietur, quam in muto pubere volente sibi restitui hereditatem. si autem heres recuset adire hereditatem, quemadmodum res expediri possit, difficile est, quia neque tutore desiderante periculo pupilli adiri hereditatem trebelliano senatus consulto locus sit futurus neque pupillus ipse id desiderare possit, cum fari non possit. quod aliquatenus circa mutos expediri potest, nam si auditus capaces sunt vel interrogati nutu possint significare velle se periculo suo hereditatem adire, quomodo absentes per nuntium.
If someone has been asked to restore the inheritance to a ward who is an infant, if he has entered upon it of his own accord, the inheritance will be restored even to his slave, and to the ward himself with the tutor as authorizer: for by the fact that he cannot speak, the matter will be no more impeded than in the case of a mute of full age who wishes to have the inheritance restored to himself. But if the heir refuses to enter upon the inheritance, how the matter can be set right is difficult, because neither, with the tutor desiring it, will there be room for the Trebellian senatus consultum for the inheritance to be entered upon at the risk of the ward, nor can the ward himself desire it, since he cannot speak. This can be resolved to some extent in regard to mutes, for if they are capable of hearing or, when questioned, can by a nod signify that they wish to enter upon the inheritance at their own risk, in the same way as absentees through a messenger.
but also for an infant I do not doubt that in every way aid must be afforded, and that this is to be established by analogy with civil or honorary (i.e., praetorian) law: for whether he had been instituted heir, he appears without doubt able to act as heir with the tutor (guardian) authorizing; or if it were a matter of bonorum possessio, it could be sought for him through the tutor. and therefore the heir too can be compelled through the tutor to enter upon and to restore the inheritance. by this example, a mute person, who can understand nothing, is likewise aided through a curator.
Si singulae res ab herede traditae sunt iussu meo ei cui eas vendiderim, non dubitabimus mihi intellegi factam restitutionem. idem erit, et si iussu meo tradantur, cui ego ex fideicommisso aliave qua causa eas praestare debuerim vel in creditum ire vel donare voluerim.
If individual items have been delivered by the heir, at my order, to him to whom I have sold them, we shall not hesitate to understand that restitution has been made to me. The same will hold if, at my order, they are delivered to the person to whom I ought to have furnished them by reason of a fideicommissum or some other cause, or to whom I wished them to go on credit, or to make a donation.
Etiam absentis procuratori, si desideraret, posse restitui hereditatem ex hoc senatus consulto iulianus scripsit, si tamen caveat de rato habendo, si non evidens absentis voluntas esset. sed dicendum est, ut heres, qui suspectam dicat, non sit compellendus adire, si incertum sit, an mandaverit, quamvis ei caveatur, propter fragilitatem cautionis. quod si sponte adierit hereditatem, non magna captio est: sed actiones, si non mandavit, transibunt eo tempore, quo ratum habuerit.
Julianus wrote that, by this senatus consultum, the inheritance can also be restored to the procurator of an absentee, if he should desire, provided, however, that he gives security de rato habendo, if the absentee’s will were not evident. But it must be said that the heir who says the inheritance is suspect is not to be compelled to enter upon it, if it is uncertain whether he has given a mandate, although security is given to him, on account of the fragility of the caution. But if he has of his own accord entered upon the inheritance, the loss is not great; but the actions, if he did not mandate, will pass over at the time when he shall have ratified it.
An ubi defunctus conveniri debuit, et fideicommissarius debeat? videndum, si sua sponte heres adit et restituit hereditatem, an tribus locis fideicommissarius defendi debeat: ubi defunctus et ubi heres et ubi ipse domicilium habeat. oportet itaque ibi fideicommissarium conveniri, ubi vel domicilium habet vel maior pars restitutae hereditatis habetur.
Whether, where the deceased ought to have been convened, the fideicommissary ought to be as well? It must be considered, if the heir of his own accord enters upon and restores the inheritance, whether the fideicommissary ought to be defended in three places: where the deceased, and where the heir, and where he himself has his domicile. Therefore it is proper that the fideicommissary be convened there where either he has his domicile or the greater part of the restored inheritance is held.
Si postulante me suspectam hereditatem ex decreto praetoris adieris nec ego postea eam mihi restitui velim nec bonis me immiscere, hoc fieri debet, ut ( quod octaveno non ineleganter videbatur) a praetore perinde actiones in me dentur, ac si hereditatem recepissem, quod est iustius.
If, at my petition, you should enter upon a suspect inheritance by decree of the praetor, and afterwards I should not wish that it be restored to me nor to intermeddle with the goods, this ought to be done: that ( as it seemed not inelegantly to Octavenus) actions be granted by the praetor against me just as if I had received the inheritance, which is more just.
Etiam eo tempore, quo creditorum fraudandorum consilium inieris, citra periculum interdicti fraudatorii hereditatem suspectam adibis et restitues mihi, quia et remoto fideicommisso liberum tibi fuerat nolenti adire hereditatem creditores tuos tali commodo fraudare, et ego nihil turpiter faciam recipiendo eam hereditatem, quam remota postulatione mea creditores compellere te ut adires non potuerint.
Even at that time when you will have entered upon a plan of defrauding creditors, you will, without peril of the interdict against fraud, enter upon the suspect inheritance and restore it to me, because even with the fideicommiss set aside it had been free to you, if unwilling, not to enter upon the inheritance and to defraud your creditors of such a benefit; and I shall do nothing dishonorably in receiving that inheritance, which, with my demand removed, the creditors could not have compelled you to enter upon.
Sed et filius suus heres patri rogatus sit a patre hereditatem mihi restituere, cum suorum creditorum fraudandorum consilium inisset, tamquam suspectam ex decreto praetoris restituerit mihi, vix fraudatorio interdicto locus erit, quia bonis patris eius venditis nihil proprium creditores eius ex ea hereditate ferre potuerint: nisi forte proprii creditores filii audiri debeant, si postulent, ut dimissis patris eius bona vendere sibi permittatur.
But also, if his son, his heir, has been asked by the father to restore the inheritance to me, and when he had entered upon a plan for defrauding his own creditors he restored it to me as suspect by decree of the praetor, there will scarcely be room for the interdict of fraud, because, his father’s goods having been sold, his creditors could have carried nothing of his own out of that inheritance; unless perhaps the son’s own creditors ought to be heard, if they demand that, with his father set aside, it be permitted to them to sell the goods.
Si heres, ab eo qui cum moreretur solvendo non fuit rogatus hereditatem restituere, suspectam sibi dicit, dubium non est, quin hodie coactus ex trebelliano senatus consulto restituere possit. sed et si sua sponte adierit, ex eodem senatus consulto restituturus est, quamvis, cum summa aut certum corpus per fideicommissum ab eo qui solvendo non fuit datum est, perinde non debeatur atque si legatum esset: eo enim casu legatarii, superiore heredis vice fungi eum, cui fideicommissum relictum est.
If an heir, having been asked by one who at the time of his death was not solvent to restore the inheritance, declares it suspect to him, there is no doubt that today he can be compelled, under the Trebellian senatus consultum, to restore. But even if he has entered of his own accord, he will restore under the same senatus consultum, although, when a sum or a specific corpus has been given by fideicommissum by one who was not solvent, it is not owed in the same way as if it were a legacy; for in that case, as to legatees, the person to whom the fideicommissum has been left is to function in the superior place of the heir.
Si totam hereditatem rogatus restituere tu sponte adieris et, sine deductione quartae partis restitueris, difficile quidem crederis per ignorantiam magis, non explendi fideicommissi causa hoc fecisse: sed si probaveris per errorem te quartam non retinuisse, reciperare eam poteris.
If, being asked to restore the whole inheritance, you have entered upon it of your own accord and have restored it without deduction of the fourth part, you will indeed be believed with difficulty to have done this through ignorance rather than for the purpose of not fulfilling the fideicommissum; but if you prove that you did not retain the fourth through error, you will be able to recover it.
Si heres antequam fideicommissam hereditatem restitueret, alienaverit quid ex hereditate aut servum hereditarium manumiserit aut ruperit quid vel fregerit vel usserit, non competit in eum ulla civilis actio restituta postea hereditate ex trebelliano senatus consulto, sed ex fideicommissi causa erit hoc quod deperierit persequendum. sin vero post restitutam hereditatem horum quid admiserit heres, dicendum est lege aquilia cum eo agi posse, si servum forte hereditarium aut vulneraverit aut occiderit.
If the heir, before he restored the fideicommissary inheritance, has alienated anything from the inheritance, or has manumitted an inheritance-slave, or has torn something, or broken it, or burned it, no civil action lies against him, the inheritance having afterwards been restored under the senatus consultum Trebellianum; but what has perished must be pursued on the ground of the fideicommissum. But if indeed, after the inheritance has been restored, the heir has committed any of these things, it must be said that action can be brought against him under the Lex Aquilia, if perchance he has either wounded or killed a slave of the inheritance.
Omnes qui de hereditate deliberant desiderante eo, qui suo periculo velit adiri hereditatem, coguntur adire, sed non statim restituere, sed ut completo tempore deliberationis, si expedire sibi compererint hereditatem, sentiant commodum testamenti eo iure, quo si sponte adissent, sin vero contra onerosam crediderint, restituta ea exonerentur actionibus hereditariis.
All who deliberate about an inheritance, when there is someone desiring that the inheritance be entered upon at his own peril, are compelled to enter upon it, yet not to restitute it at once, but so that, when the time for deliberation has been completed, if they have found the inheritance to be expedient for themselves, they may enjoy the benefit of the testament by the same law as if they had entered upon it of their own accord; but if, on the contrary, they have judged it onerous, it being restored, they are exonerated from hereditary actions.
Heres praecepto fundo rogatus erat hereditatem restituere: fundus alienus erat. aristo aiebat videndum, utrum omnimodo penes heredem fundum esse voluit testator an ita demum, si ipsius est: sed sibi superius placere: ideoque aestimatio eius retinenda est.
The heir had been asked to restore the inheritance, with a preception of the farm; the farm was another’s. aristo said it must be considered whether the testator wished the farm to be in the heir’s hands in any event, or only if it was his own; but he himself preferred the former; and therefore its appraisal is to be retained.
Si heres pecuniam hereditariam crediderit et in eam causam pignora acceperit, actiones non competunt ei, cui restituta fuerit hereditas, adversus ipsa pignora. sed aliqua dubitatio remanebit, si in eum contractum, qui ex defuncto fuerit, interpositus heres, antequam restitueret hereditatem, pignus acceperit. sed nec sic quidem ipse admitteretur: ex fideicommisso tamen habet adversus heredem actionem, ut ei cedat pro pignoris commodo actionem.
If the heir has credited the hereditary money and for that cause has received pledges, actions do not lie to him to whom the inheritance has been restored, against the pledges themselves. But some doubt will remain, if, in that contract which was from the defunct, the heir, being interposed, before he restored the inheritance, received a pledge. But not even thus would he himself be admitted; nevertheless, from the fideicommissum he has an action against the heir, that the heir cede to him the action for the advantage of the pledge.
Qui filium et filiam habebat, testamentum fecit et ita de filia sua caverat: entellomai soi my diativesvai, prin tekna soi genesvai. pronuntiavit imperator fideicommissum ex hac scriptura deberi, quasi per hoc, quod prohibuisset eam testari, petisset, ut fratrem suum heredem faceret: sic enim accipiendam eam scripturam, ac si hereditatem suam rogasset eam restituere.
He who had a son and a daughter made a testament and thus had provided concerning his daughter: “I enjoin you not to make a testament before children are born to you.” The emperor pronounced that a fideicommissum was owed from this writing, as though by this fact—that he had prohibited her to make a testament—he had sought that she make her brother her heir: for thus that writing is to be received, as if he had asked her to restore his inheritance.
Fabius antoninus impuberem filium antoninum et filiam honoratam relinquens exheredatis his matrem eorum iuniam valerianam heredem instituit et ab ea trecenta et quasdam res filiae reliquit, reliquam omnem hereditatem filio antonino, cum ad annum vicensimum aetatis pervenisset, voluit restitui: quod si ante annum vicensimum decessisset filius, eam hereditatem honoratae restitui praecepit. mater intestata decessit utrisque liberis legitimis heredibus relictis. postea filius annum agens plenum nonum decimum et ingressus vicensimum necdum tamen eo expleto decessit filia herede fabia valeriana sua relicta, a qua amita fideicommissum et ex testamento patris portionem hereditatis petebat: et apud praesidem optinuerat.
Fabius antoninus, leaving an under-age son antoninus and a daughter honorata, with these disinherited, appointed their mother iunia valeriana as heir, and from her he left three hundred and certain items to the daughter; he wished all the remaining inheritance to be restored to the son antoninus when he had reached the twentieth year of age; but if the son should have died before the twentieth year, he ordered that inheritance to be restored to honorata. The mother died intestate, both children being left as legitimate heirs. Afterwards the son, being in his full nineteenth year and having entered upon the twentieth, yet with it not completed, died; the daughter, with her own heir fabia valeriana left, from whom the amita sought the fideicommissum and, from the father’s testament, a portion of the inheritance; and she had prevailed before the provincial governor.
the tutors of Valeriana, daughter of Antoninus, were alleging her indigence and were reciting a constitution of the deified Hadrian, in which, so far as concerned municipal munera, he had ordered that the year which someone had entered be counted as completed. but our emperor, moved both by the equity of the matter and by the words of the testament " si ad annum vicensimum aetatis ", although he said that he knew from the deified Marcus that one who had entered the seventieth year of age was not excused from tutela, with us bringing forward arguments from the Lex Aelia Sentia and certain other points, pronounced against the petitioner.
Epistulam ad heredem suum in haec verba scripsit: " titius cornelio heredi suo salutem. a te peto, corneli, quoniam ad te devoluta est pars matris meae, item pars sempronii curatoris quondam mei contraria fortuna usi et per hoc totus as meus apud te esse speratur, uti reddas restituas gaio seio uncias quattuor". quaesitum est, cum sempronius in integrum restitutus sit ab imperatore, a quo fuerat deportatus et adierit hereditatem, an is quoque rogatus sit, ut ex sua portione restituat hereditatem. respondit sempronium quidem non proponi rogatum, cornelium autem heredem debere pro rata portione maternarum defuncti rerum restitutionem seio facere.
he wrote a letter to his heir in these words: " titius to cornelius his heir, greetings. i ask of you, cornelius, since the share of my mother has devolved to you, likewise the share of sempronius, formerly my curator, having had contrary fortune, and through this my whole as is expected to be with you, that you render and restore to gaius seius four unciae." it was asked, since sempronius has been restored in full by the emperor by whom he had been deported and has entered upon the inheritance, whether he too was requested to restore the inheritance out of his own portion. he responded that sempronius indeed is not set forth as having been requested, but that cornelius the heir ought to make to seius, in a pro rata portion, restitution of the deceased’s maternal goods.
Mulier heredis instituti fidei commisit, ut retenta parte quarta reliquam partem restitueret nurui quondam suae, cuius fidei commisit in haec verba: " rogo te, ut id, quod ad te ex bonis meis pervenerit, facias pervenire ad filium tuum": quaesitum est, quando hoc fideicommissum restituere debeat, utrumne post mortem suam an iam nunc. respondit ad tempus, quo nurus moreretur, fideicommissum aptandum esse.
A woman entrusted to the faith of the instituted heir that, with a fourth part retained, he restore the remaining part to her former daughter-in-law, upon whose faith she entrusted in these words: " I ask you, that what from my goods has come to you, you make come to your son": it was asked when she ought to restore this fideicommiss, whether after her death or already now. He answered that the fideicommiss must be fitted to the time at which the daughter-in-law should die.
Scaevola respondit, si pater filium suum impuberem ex asse scripserit heredem eique codicillis substituerit, deinde filius impubes decesserit, licet substitutio inutilis sit, quia codicillis hereditas neque dari neque adimi potest, tamen benigna interpretatione placet, ut mater, quae ab intestato pupillo successit, substitutis fideicommisso obligetur: quod si invicem fuerunt substituti, et in fideicommisso substitutionem valere: unoque eorum mortuo qui supersunt totum accipiunt.
Scaevola responded, if a father has written his underage son as heir for the whole (ex asse) and has substituted someone for him by codicils, then the underage son has died, although the substitution is useless, because by codicils an inheritance can neither be given nor taken away, nevertheless by a benign interpretation it is approved that the mother, who succeeded to the ward intestate, be bound by a fideicommissum to the substitutes: but if they were substituted for one another, then the substitution is valid also in the fideicommissum: and with one of them dead, those who survive receive the whole.
Heredibus institutis filiis utriusque sexus singulos rogavit, ut qui sine liberis decederet partem suam hereditatis sorori fratrive restitueret aut, si frater sororve non esset, matri suae et haec verba adiecit: " vosque, liberi carissimi, hoc fideicommisso teneri invicem volo, donec binos liberos educaveritis". quaesitum est, si quis ex liberis duos filios procreaverit, quamvis superstites non reliquerit, an heredes eius fideicommissum debeant. respondit secundum ea quae proponerentur videri fideicommissi onere liberatos.
With heirs appointed, he asked each of the children of either sex that whoever should die without children should restore his or her share of the inheritance to the sister or brother, or, if there were no brother or sister, to his or her mother; and he added these words: "and you too, dearest children, I wish to be held mutually bound by this fideicommissum, until you have brought up two children apiece." It was asked whether, if one of the children had begotten two sons, although he left them not surviving, his heirs ought to owe the fideicommissum. He replied that, according to the facts proposed, they appear to be freed from the burden of the fideicommissum.
Titius nepotes ex filia et furiosam filiam suam heredes instituit et fidei commisit filiae, ut, si sine liberis decessisset, pars ei data perveniret ad coheredes: eam furiosam ipse titius in matrimonio collocavit et enixa est filiam post mortem patris. quaesitum est, defuncta furiosa superstite ex eiusmodi coniunctione parta filia, an fideicommissum ad coheredes pertineret. respondit, cum filiam reliquisse proponeretur, fideicommissum non deberi.
Titius instituted as heirs his grandsons through his daughter and his own insane daughter, and he entrusted to the faith of the daughter that, if she should die without children, the share given to her should pass to the coheirs. Titius himself settled that insane woman in marriage, and she bore a daughter after the death of her father. The question was raised, the insane woman having died, with a daughter surviving born from such a union, whether the fideicommissum pertained to the coheirs. He responded that, since it was alleged that she had left a daughter, the fideicommissum was not owed.
Lucius titius intestato moriturus, cum haberet uxorem et ex ea filiam emancipatam, codicillis haec verba inseruit: " pertinent autem hi codicilli ad uxorem et filiam. itaque rogo, quidquid aut ego reliquero aut vos ipsae habeatis, commune vobis sit: quod si non ego rogarem, vos pro vestra pietate faceretis". filia intestati patris bonorum possessionem accepit: quaesitum est, an aliqua pars hereditatis lucii titii ex causa fideicommissi a filia matri debeatur. respondit secundum ea quae proponerentur ^ proponeretur^ dimidiam partem deberi, si etiam uxor parata sit in commune bona sua conferre.
Lucius titius, about to die intestate, since he had a wife and by her an emancipated daughter, inserted these words in his codicils: “And these codicils pertain to the wife and the daughter. And so I ask that whatever either I shall have left or you yourselves may have be common to you: and if I were not to ask this, you would, in accordance with your pietas, do it.” The daughter accepted bonorum possessio of her father who died intestate: it was asked whether some part of the inheritance of Lucius titius is owed by the daughter to the mother by reason of a fideicommissum. He responded that, according to the matters that were being put forward ^ might be put forward^, a half part is owed, if the wife also is prepared to contribute her own goods into the common stock.
Maevia duos filios heredes reliquerat et eodem testamento ita cavit: " fidei autem heredum ^ heredem^ meorum committo, uti omnis substantia mea sit pro deposito sine usuris apud gaium seium et lucium titium, quos etiam, si licuisset, curatores substantiae meae dedissem remotis aliis, ut hi restituant nepotibus meis, prout quis eorum ad annos viginti quinque pervenerit, pro portione, vel si unus, ei omnem". quaesitum est, an fideicommissum praestari a scriptis heredibus lucio titio et gaio seio debeat. respondit secundum ea quae proponerentur lucium titium, item gaium seium fideicommissum petere non posse.
Maevia had left two sons as heirs, and in the same testament thus provided: "and I commit to the good faith of my heirs ^heir^, that all my estate be as a deposit, without interest, with Gaius Seius and Lucius Titius, whom also, if it had been permitted, I would have appointed curators of my estate, others being removed, that these restore it to my grandchildren, as each of them reaches twenty‑five years, according to his portion; or, if there is only one, to him the whole." It was asked whether the fideicommissum ought to be furnished by the instituted heirs to Lucius Titius and Gaius Seius. He responded that, according to the matters proposed, Lucius Titius, likewise Gaius Seius, cannot seek the fideicommissum.
Tres heredes scripsit maevium fratrem suum ex dodrante, seium ex sextante, stichum eiusdem seii servum, filium autem naturalem maevii ex uncia et fidei commisit seii, uti stichum manumitteret, in haec verba: " a te peto, sei, uti tu stichum manumitteres: dedi unde faceres". sed et codicillis ita cavit: " unciam, ex qua feci stichum heredem, si quam seius controversiam moveret, ad maevium fratrem meum reverti volo. tu, frater, secundum fidem et pietatem tuam, quidquid ad te pervenerit ex hereditate mea sticho filio tuo restitues: quod ut facias, fidei tuae committo". quaesitum est, cum seius adierit hereditatem et propter hoc compulsus stichum manumiserit, an unciam hereditatis, ex qua stichus heres institutus est, sticho manumisso restituere debeat. respondit non proponi seium rogatum unciam ei restituere.
He wrote three heirs: his brother maevius from three-fourths, seius from one-sixth, stichus, the slave of that same seius, but the natural son of maevius, from one-twelfth; and he entrusted to the good faith of seius that he should manumit stichus, in these words: " a te peto, sei, uti tu stichum manumitteres: dedi unde faceres". But also in codicils he provided thus: " unciam, ex qua feci stichum heredem, si quam seius controversiam moveret, ad maevium fratrem meum reverti volo. tu, frater, secundum fidem et pietatem tuam, quidquid ad te pervenerit ex hereditate mea sticho filio tuo restitues: quod ut facias, fidei tuae committo". The question was raised, when seius has entered upon the inheritance and on this account was compelled to manumit stichus, whether he ought to restore to stichus, once manumitted, the one-twelfth of the inheritance from which stichus was instituted heir. He answered that it is not set forth that seius was asked to restore the one-twelfth to him.
Idem quaesiit, an, si aliquam controversiam seius de uncia hac, ex qua stichus institutus est, facere velit et maevius unciam ex causa fideicommissi a seio fuerit consecutus, utrum hanc solam unciam, ex qua stichus institutus est, an vero et dodrantem, ex quo ipse maevius institutus est, eidem sticho restituere debeat. respondit de omni restituendo, quod ad maevium quoquo modo pervenit, testatricem sensisse.
He likewise asked whether, if seius should wish to raise some controversy about this uncia (one-twelfth share), from which stichus was instituted, and maevius had obtained an uncia on the ground of a trust-bequest (fideicommissum) from seius, whether he ought to restore to the same stichus only this uncia, from which stichus was instituted, or indeed also the dodrans (three-quarters), from which he, maevius, was himself instituted. He replied that the testatrix intended the restoration of everything whatsoever that had in any way come to maevius.
Pater puerum et puellam heredes instituit eosque invicem substituit et, si neuter heres esset, eis plures substituit substitutosque invicem substituit his verbis: " substitutos heredes invicem substituo": eorundem filiorum fidei commisit, ut, qui eorum vita superasset et sine liberis intra annum trigensimum moreretur, hereditatem his, quos heredes substituerat, restituat. filius vita sororem superavit et intra trigensimum annum sine liberis decessit: quaesitum est, ex substitutis uno defuncto ante filium, pars eius, quae ad ceteros substitutos qui superviverent pertinet, utrum pro virilibus an pro hereditariis portionibus, quibus sunt substituti, pertineat. respondit consequens esse pro his partibus, quibus substituti essent, fideicommissum pertinere.
A father instituted the boy and the girl as heirs and substituted them for one another, and, if neither should be heir, he appointed several substitutes for them and substituted the substitutes for one another with these words: " I substitute the substitute-heirs in turn"; he committed by fideicommissum to those same children that whoever of them outlived the other and died without children within the thirtieth year should restore the inheritance to those whom he had appointed as substitute heirs. The son outlived his sister and died within the thirtieth year without children: it was asked, one of the substitutes having died before the son, whether his share—which pertains to the other substitutes who survive—belongs per capita or according to the hereditary portions for which they were substituted. He answered that it is consistent that the fideicommissum should belong according to those portions for which they were substituted.
Maevia filium heredem instituit ex quincunce, titiam filiam ex quadrante, septicium filium ex triente, cuius fidei commisit in haec verba: " te rogo, fili septici, si intra vicensimum annum sine liberis morieris, quidquid ex hereditate mea ad te pervenerit, hoc fratribus tuis restituas". quaesitum est, an septicio filio defuncto intra vicensimum annum sine liberis hoc fideicommissum utrum pro portionibus hereditariis ad fratrem et sororem eius pertineat an vero aequaliter. respondit pro parte hereditaria.
Maevia instituted her son as heir from a quincunx (five-twelfths), her daughter Titia from a quadrans (one-quarter), her son Septicius from a triens (one-third), to whose fidelity she committed by way of fideicommissum in these words: "I ask you, my son Septicius, if within the twentieth year you should die without children, that whatever from my inheritance has come to you, this you restore to your brothers." It was asked whether, Septicius the son having died within the twentieth year without children, this fideicommissum pertains to his brother and sister according to the hereditary portions or rather equally. He replied: according to the hereditary share.
Titia ex asse heres scripta partem dimidiam hereditatis maeviae rogata restituerat: fundum a testatore obligatum luere noluit, sed eum vendente creditore mandavit redimendum seiae: quaesitum est, an titia ex causa fideicommissi maeviae teneatur. respondit, cum rogata hereditatem restituere proponatur, nihil proponi, cur non teneatur. claudius: subest enim praestari oportere id, quanto pluris fundus fuit, quam ad creditorem pervenire oportuit.
Titia, written as heir to the whole (ex asse), had, upon being asked, restored one half of the inheritance to Maevia: she did not wish to redeem a farm pledged by the testator, but, when the creditor was selling it, she instructed Seia to redeem it: it was asked whether Titia is held to Maevia by reason of the fideicommissum. He answered: since it is put forward that she was asked to restore the inheritance, nothing is alleged why she should not be held. Claudius: for it is implied that there ought to be made good that amount by which the farm was worth more than it ought to have come to the creditor.
Gaio seio ex semisse, titia ex quadrante et aliis ex reliquis portionibus heredibus institutis ita cavit: " fidei autem vestrae mando, gai sei et lucia titia, uti post obitum vestrum reddatis restituatis titio et sempronio semissem patrimonii et portionis eius, quam vobis dedi". quaesitum est, cum utrique adierint hereditatem et postea gaius seius defunctus sit lucia titia herede instituta, an haec lucia titia partem dimidiam semissis, quam rogatus erat gaius seius restituere, protinus debeat? an vero post suam demum mortem universum fideicommissum tam ex sua persona quam ex gaii seii datum restituere debeat? respondit luciam titiam statim teneri, ut partem dimidiam semissis ex persona seii restituat.
With heirs instituted—Gaius Seius for a half-share, Titia for a quarter, and the others for the remaining portions—he thus provided: “and to your trust I commit, gai sei and lucia titia, that after your death you should deliver and restore to Titius and Sempronius a half of the patrimony and of that portion which I have given to you.” The question was raised, when both had entered upon the inheritance and afterward Gaius Seius had died with Lucia Titia instituted as heir, whether this Lucia Titia ought immediately to owe the half part of the half (that is, a quarter) which Gaius Seius had been asked to restore; or truly whether only upon her own death must she restore the entire fideicommissum, both from her own person and from that of Gaius Seius. He answered that Lucia Titia is held at once to restore the half-part of the half from the person of Seius.
Filiam suam heredem scripsit et nepotem, quem ex ea habebat, ei substituit et ita cavit: " lucio titio fratris mei filio genero meo ducentos aureos relinquo. quo legato scio illum contentum esse, quoniam scripsi universam rem meam, eo quod filiam meam et nepotem meum heredes scripsi, universam substantiam eis communicasse. quos invicem commendo". filia adita patris hereditate divertit a marito: quaesitum est, an titius quondam eius maritus suo vel filii sui nomine ex fideicommisso communionem bonorum consequi possit viva quondam uxore sua vel post mortem eius.
He wrote his daughter as heir and, as substitute to her, his grandson whom he had from her, and thus he provided: " lucio titio, my brother’s son, my son-in-law, I bequeath two hundred aurei. With this legacy I know him to be content, since I have set down my entire estate, in that I have written my daughter and my grandson as heirs, to have made the whole substance common to them. I commend them to one another." The daughter, after entering upon her father’s inheritance, separated from her husband: it was asked whether titius, formerly her husband, could obtain from the fideicommissum a community of goods, either in his own name or in the name of his son, while his former wife is alive or after her death.
Idem quaesiit eandem uxorem marito herede scripto fideicommisisse, ut, cum moreretur, filio communi omne, quod ad eum ex hereditate sua pervenisset, restitueret: an illae quoque res et possessiones, quae in dotem datae et post divortium restitutae mulieri fuerant, fideicommisso contineantur. respondit, quod mulier in bonis suis reliquisset, id fideicommisso contineri. claudius: et alias de eodem facto consultus ita respondit, sive restitutae sint res, secundum id quod supra responsum est in bonis mulieris computari, sive non sint restitutae, quia ex stipulatione de dote reddenda interposita restituendae sint, eo auctiorem hereditatem computari.
The same asked whether that same wife had entrusted by fideicommissum to her husband, appointed heir, that, when she should die, he should restore to their common son everything which had come to him from her estate: whether those things also and the possessions which had been given in dowry and, after divorce, had been restored to the woman, are contained in the fideicommissum. He replied that what the woman had left among her goods is contained in the fideicommissum. claudius: and at another time, having been consulted about the same matter, he replied thus: whether the things have been restored, they are to be reckoned among the woman’s goods according to what was answered above; or whether they have not been restored, because by the stipulation for returning the dowry that was interposed they must be restored, the inheritance is to be reckoned the greater by that amount.
Quae habebat filium et ex eo nepotem utrosque in mariti potestate, maritum ex asse scripsit heredem eiusque fidei commisit in haec verba: " si titius maritus meus mihi heres erit, peto fideique eius committo, quidquid ex hereditate mea ad eum pervenerit, cum mori coeperit, det restituat gaio filio nostro, ita tamen, ut decem quidem uncias gaius habeat, duas autem uncias seius nepos habeat: quod ut fiat, fidei eius titi heredis mei committo". pater emancipavit filium, nepotem amisit et superstite filio decessit. quaesitum est, an priore parte scripturae universa hereditas patris ex causa fideicommissi filio debeatur et illa sequentia verba " ita tamen, ut decem uncias filius, duas autem nepos habeat" ex voluntate defunctae ita demum locum haberent, si die fideicommissi cedente filius et nepos eorum in natura essent, cum autem non supervixit ad diem fideicommissi nepos, sequens scriptura cesset. respondit ea quae proponerentur ostendere decem dumtaxat uncias filio datas.
She, who had a son and from him a grandson, both under the husband’s power, wrote her husband as heir to the whole, and committed to his good faith in these words: "If Titius my husband shall be my heir, I ask and commit to his good faith that, whatever from my inheritance shall have come to him, when he begins to die, he give and restore it to Gaius our son; yet on this condition, that Gaius indeed have ten ounces, but Seius our grandson have two ounces: in order that this be done, I commit it to the good faith of Titius my heir." The father emancipated the son, lost the grandson from his power, and died with the son surviving. The question was raised whether by the earlier part of the writing the whole inheritance of the father is owed to the son by reason of the fideicommissum, and whether those following words, "yet on this condition, that the son have ten ounces, but the grandson two ounces," would take effect only if, on the day the fideicommissum fell due, the son and the grandson were in being; and since the grandson did not survive to the day of the fideicommissum, the subsequent clause should cease. He replied that the matters proposed show that only ten ounces were given to the son.
Heres institutus uxori rogatus totam hereditatem restituere restituit detracta quarta: quaesitum est, cum uxor quartam partem hereditatis praesenti die et reliquam post tempus alii rogata a testatore fuisset restituere, an id, quod heres ei detraxisset quartae nomine, in restituendo fideicommisso imputare possit. respondit, quatenus cepisset, fideicommisso obstrictam.
The instituted heir, having been asked to restore the whole inheritance to the wife, restored it with the fourth detracted. The question was raised, since the wife had been asked by the testator to restore a fourth part of the inheritance on the present day and the remainder after a time to another, whether, in restoring the fideicommissum, she can impute what the heir had deducted from her in the name of the fourth. He answered that, to the extent she had taken, she was bound by the fideicommissum.
Heredum fidei commisit, ut, quidquid ex parte tertia hereditatis pervenerit ad eos, id redderent gaio maevio alumno testatoris, cum fuerit annis quindecim, et subiunxit haec verba: " interim ex refectu paupertatis, qui ad vos pervenerit, alatis eum ex usuris pro quantitate nummorum redactis. hoc amplius eidem alumno meo hominem caletanum et vernam sutorem, qui eum artificio suo mercede data alere poterit". quaesitum est, cum alimenta multo minora praestiterint heredes scripti, quam usurae summae redactae competebant, an et residuas praestare compelli debeant totius temporis an ex die, quo quintum decimum explesset? et cum servi legati ei specialiter, ut ex mercedibus aleretur, statim venierint, utrum mercedes an usuras petere debeat?
He committed to the faith (trust) of the heirs that whatever from the third part of the inheritance should come to them, they should render that to Gaius Maevius, the testator’s alumnus, when he shall have been fifteen years old, and he subjoined these words: “in the meantime, from the relief of poverty that shall have come to you, you are to support him out of the interest, computed according to the quantity of the money. In addition to this, to that same alumnus of mine, a Caletan slave and a home-born cobbler, who will be able to maintain him by his craft with wages paid.” It was asked, since the instituted heirs furnished alimenta much smaller than what the sum of interest, once computed, entitled, whether they ought to be compelled to furnish also the arrears for the whole time, or only from the day on which he completed his fifteenth year; and, since the slaves bequeathed to him specifically, so that he might be supported from their wages, were immediately sold, whether he ought to seek the wages or the interest?
Pluribus heredibus institutis, in quibus et libertis tribus ex dodrante, eisdem fundos per praeceptionem dedit et ab his petit, ne eos alienarent et ut, qui vita superasset, solidos eosdem fundos optineret: deinde unius ex his libertis otacilii fidei commisit, uti quidquid ad eum ex hereditate bonisve pervenisset, deducto pro ea parte aere alieno et legatis et sibi viginti aureis restituat titio: quaesitum est, an etiam partes tertias fundorum, praelegatorum cum collibertis eidem, deducere deberet. respondit secundum ea quae proponerentur non debere restituere praeceptionem, cum ipse testator et legata excipi voluisset.
With several heirs instituted, among whom were also three freedmen to the extent of three-quarters, he gave to these same men the estates by preemption and asked of them that they not alienate them and that the one who survived in life should hold those same estates entire: then he committed to the good faith of one of these freedmen, Otacilius, that whatever had come to him from the inheritance or the goods, after deducting, for that share, the debt and the legacies, and twenty aurei for himself, he should restore to Titius. It was asked whether he ought also to deduct the third parts of the estates, prelegated to the same man together with his fellow-freedmen. He answered that, according to the matters proposed, he ought not to restore the preemption, since the testator himself had wished even the legacies to be excepted.
Maritus uxore instituta herede ex parte tertia et pluribus ei fideicommissis datis dotem quoque praelegavit his verbis: " seiae uxori meae dari volo a filiis meis summam dotis eius, quae mihi pro ea illata est" eiusdemque uxoris fidei commisit, ut partem hereditatis et quaecumque ei legasset post mortem suam titio filio communi restitueret. quaesitum est, an summam quoque dotis inter cetera legata ex causa fideicommissi filio suo restituere debeat. respondit non alias, nisi manifestum esset de dote quoque restituenda testatorem sensisse: atque etiamsi sensisset et hoc fuerit adprobatum, ita eius quoque petitionem fore, si non minus in quantitate, quae falcidiae nomine remaneret, foret quam in quantitate dotis.
A husband, his wife having been instituted heir as to a third part and several fideicommisses having been given to her, also pre‑legated the dowry with these words: “I will that my sons give to my wife Seia the sum of her dowry, which was brought in to me on her account”; and he committed to the good faith of the same wife that, after his death, she should restore to Titius, the common son, a part of the inheritance and whatever he had bequeathed to her. It was asked whether she ought also to restore the sum of the dowry, among the other legacies, to her son by reason of the fideicommiss. He answered: not otherwise, unless it were manifest that the testator also intended the dowry to be restored; and even if he had intended this and it had been approved, then there would be a petition for it as well only if the amount which would remain under the name of the Falcidian (allowance) were not less in quantity than the amount of the dowry.
Rogatus hereditatem restituere septicio, cum erit annis viginti, interea fundos, quos defunctus pignori acceperat, vendidit et propterea pigneraticia iudicio a debitore conventus decessit herede relicto sempronio et iudicio nondum finito restituit hereditatem septicio. quaesitum est, an iudicio nihilo minus ipse condemnari debeat, cum potuerit retinere ( vel caveri sibi) id, quod ex causa iudicati praestaturus esset. respondit iudicii exsecutionem nihilo minus adversus heredem et post restitutam hereditatem mansisse.
Asked to restore the inheritance to Septicius when he will be twenty years old, in the meantime he sold the estates which the deceased had received in pledge, and therefore, having been sued by the debtor by a pignoratitious action, he died, leaving Sempronius as heir; and, the action not yet finished, the inheritance was restored to Septicius. The question was asked whether he himself ought nonetheless to be condemned in the action, since he could have retained (or had security given to himself) that which he would be going to render on the ground of the judgment. He replied that the execution of the judgment had nonetheless remained in force against the heir, and even after the inheritance was restored.
Heres eius, qui post mortem suam rogatus erat universam hereditatem restituere, minimam quantitatem, quam solam in bonis fuisse dicebat, his quibus fideicommissum debebatur restituit: postea repertis instrumentis apparuit quadruplo amplius hereditate fuisse: quaesitum est, an in reliquum fideicommissi nomine conveniri possit. respondit secundum ea quae proponerentur, si non transactum esset, posse.
The heir of the man who, after his death, had been asked to restore the entire inheritance, restored to those to whom the fideicommissum was owed the least quantity, which he said alone had been among the assets; afterwards, with instruments discovered, it appeared that the inheritance had been quadruple more: the question was asked whether he could be sued for the remainder under the name of the fideicommissum. He answered, according to what was proposed, that, if there had not been a settlement, he could.
Si pupillus parenti suo heres extitit et fideicommissam hereditatis partem restituit, mox abstinetur paterna hereditate: optio deferenda est fideicommissario, ut aut portionem quoque pupilli adgnoscat aut toto discedat. aut omnimodo bona vendenda sunt, ut id quod superfluum est pupillo servetur, et, si in solidum bona venire non possunt, omnimodo actiones fideicommissario denegandae erunt: erat enim in potestate illius universum suscipere et si quid plus erit, pupillo servare.
If a ward has become heir to his parent and has restored the fideicommissary portion of the inheritance, then he abstains from the paternal inheritance: the option must be tendered to the fideicommissary, that either he also acknowledge the ward’s portion or withdraw from the whole. Or, in any case, the goods must be sold, so that that which is superfluous is preserved for the ward; and, if the goods cannot be sold in their entirety, in any case the actions must be denied to the fideicommissary: for it was in his power to assume the entirety and, if there should be anything more, to preserve it for the ward.
Matrem et avunculum eosdemque creditores suos heredes scripsit lucius titius et eorum fidei commisit, ut post mortem restituerent, quod ex re familiari testatoris superfuerit, septicio. heredes non modicam partem bonorum testatoris consumpserunt et multos heredes reliquerunt, quibus scientibus multa corpora, quae remanserant ex bonis lucii titii, septicius possedit. quaesitum est, an id, quod lucius titius debuit matri et avunculo, heredes eorum a septicio petere possint.
lucius titius wrote his mother and his maternal uncle, and likewise his own creditors, as his heirs, and committed to their good faith (fideicommissum), that after his death they should restore to septicius whatever from the testator’s family estate should remain. the heirs consumed no small part of the testator’s goods and left many heirs; with the knowledge of these, septicius possessed many tangible things which had remained from the goods of lucius titius. the question was raised whether the heirs of the mother and the uncle can demand from septicius what lucius titius owed to the mother and the uncle.
Iulius foebus testamento facto, cum tres liberos heredes institueret, foebum et heracliam ex eadem matre, polycraten ex alia aequis portionibus, petit a polycrate minore fratre, ut accepto certo praedio hereditatem fratribus concederet: et invicem eos, qui ex eadem matre erant, si qui eorum heres non fuisset, substituerat. polycrati, si intra pubertatem decessisset, secundas tabulas fecit, quas matri eius commendavit aperiendas, si impubes obisset. deinde petit a prioribus, ut, si quis eorum sine liberis decederet, portionem suam exceptis bonis maternis eorum et avitis ei vel eis qui superessent restitueret.
julius phoebus, with a testament made, when he was instituting three children as heirs—phoebus and heraclia from the same mother, polycrates from another—in equal portions, asks of polycrates, the younger brother, that, upon receiving a certain estate, he should concede the inheritance to his brothers; and in turn he had substituted those who were from the same mother, if any of them had not become heir. for polycrates, if he should have died before puberty, he made a second set of tablets, which he entrusted to his mother to be opened if he died underage. then he asks of the former, that, if any of them should die without children, he should restore his share—excepting their maternal and ancestral goods—to him or to the one(s) who survived.
heraclia the sister, having died without children, appointed her brother foebus as heir: polycrates had requested and had obtained the fideicommissum before aurelius proculus, proconsul of achaia: an appeal having been made, when foebus alone had pleaded monomerws, he was defeated, because the words " ei vel eis" encompassed both brothers. and yet he had reciprocally substituted only those two: but this too seemed to be the father’s will, who had excepted their maternal goods, because polycrates had a different mother, and indeed one still surviving, to whose good faith it was also committed by fideicommissum that, when dying, she should restore to polycrates his son the legacies which he had given to her in the testament. . . . . . . .
. . . . . . . . . . si quis eum, quem debere sibi dicit eo negante, heredem scripserit eumque rogaverit, ut hereditatem restituat alii, videamus de iure debiti ^ non convenitur propter debitum fideicommissi petitione, si paratus est debiti actionem suscipere^.
. . . . . . . . . . if someone has written as heir the one whom he says owes him, that man denying it, and has requested him to restore the inheritance to another, let us consider the law concerning the debt ^ he is not proceeded against for the debt by a fideicommissum petition, if he is prepared to undertake the action for the debt^.
Itaque si purum legatum sit, ex die mortis dies eius cedit: si vero post diem sint legata relicta, simili modo atque in puris dies cedit, nisi forte id fuit legatum, quod ad heredem non transit: nam huius dies non ante cedit, ut puta si usus fructus sit post annum relictus: hanc enim sententiam probamus.
And so, if the legacy is pure, its day accrues from the day of death; but if the legacies were left after a term, the day accrues in a similar manner as in pure legacies, unless perhaps it was a legacy which does not pass to the heir: for the day of such a one does not accrue earlier—say, if a usufruct was left after a year; for we approve this opinion.
Item si qua condicio sit, quae per legatarium non stat quo minus impleatur, sed aut per heredem aut per eius personam, in cuius persona iussus est parere condicioni, dies legati cedit, quoniam pro impleta habetur: ut puta si iussus sim heredi decem dare et ille accipere nolit. sed et si ita mihi legatum sit, si seiam uxorem duxero, nec ea velit nubere, dicendum erit diem legati cedere, quod per me non stat, quo minus paream condicioni, sed per alium stat, quo minus impleatur condicio.
Likewise, if there is any condition which does not depend on the legatee so as to prevent its being fulfilled, but either on the heir or on the person, in whose person he was ordered to obey the condition, the day of the legacy accrues, since it is held as fulfilled: for example, if I have been ordered to give ten to the heir and he is unwilling to accept. But also if a legacy has been left to me thus, if I shall have taken Seia as wife, and she is not willing to marry, it must be said that the day of the legacy accrues, because it does not depend on me whether I comply with the condition, but on another that the condition is not fulfilled.
Si, cum dies legati cedere inciperet, alieni quis iuris est, deberi his legatum, quorum iuri fuit subiectus. et ideo si purum legatum fuerit et post diem legati cedentem liber factus est, apud dominum legatum relinquet: sed si usus fructus fuerit legatus, licet post mortem testatoris, ante aditam tamen hereditatem sui iuris efficiatur, sibi legatum adquirit.
If, when the day for the legacy began to vest, someone was under another’s legal power (alieni iuris), the legacy is owed to those whose power he was subject to. And therefore, if the legacy was pure (unconditional) and, after the day of the legacy’s vesting, he was made free, the legacy will remain with the master. But if a usufruct (usus fructus) was bequeathed, although after the testator’s death he becomes sui iuris before the inheritance is entered upon, he acquires the legacy for himself.
At si extrinsecus suspendatur legatum, non ex ipso testamento: licet ante decedat legatarius, ad heredem transmisisse legatum dicimus: veluti si rem dotalem maritus legaverit extero et uxori aliquam pro dotali re pecuniam, deinde deliberante uxore de electione dotis decesserit legatarius atque legatum elegerit mulier, ad heredem transire legatum dictum est. idque et iulianus respondit: magis enim mora quam condicio legato iniecta videtur.
But if a legacy is suspended from without, not by the testament itself: even if the legatee dies beforehand, we say the legacy has been transmitted to his heir: for instance, if a husband has bequeathed a dotal thing to an outsider and to his wife some money in lieu of the dotal thing, then, while the wife is deliberating about the election of the dowry the legatee dies, and the woman has chosen the legacy, it is said that the legacy passes to the heir. And Julian also responded this: for rather a delay than a condition seems to have been imposed upon the legacy.
Tractari tamen potest, si impuberi substitutus damnatus sit, si intra pubertatem filius decesserit, seio centum dare, an vivo pupillo defunctus seius ad heredem transferat, quasi ea condicio sit expressa, quae inerat. et magis est ad heredem legatarii transire.
It can nevertheless be discussed: if a substitute appointed for an impubes has been made liable, “to give Seius one hundred, if the son dies before puberty,” whether, with the ward still alive and Seius having died, it transfers to his heir, as if the condition that was inherent had been expressed. And the better view is that it passes to the heir of the legatee.
Interdum aditio heredis legatis moram facit, ut puta si forte servo manumisso vel ei cui servus legatus est et ideo servo aliquid legatum sit: nam servo legati relicti ante aditam hereditatem dies non cedit.
Sometimes the entry of the heir causes delay for legacies, for instance if perchance to a manumitted slave or to the person to whom the slave is bequeathed, and therefore something is bequeathed to the slave: for, in the case of a slave, if a legacy is left before the inheritance has been entered, the day does not accrue (i.e., the right does not vest).
Nam cum libertas non prius competat quam adita hereditate, aequissimum visum est nec legati diem ante cedere: alioquin inutile fieret legatum, si dies eius cessisset antequam libertas competeret. quod evenit, si servo pure legetur et liber esse sub condicione iubeatur et pendens condicio inveniatur et post aditam hereditatem.
For since liberty does not accrue before the inheritance has been entered upon, it seemed most equitable that the day of the legacy likewise should not fall due earlier: otherwise the legacy would become useless, if its day should have fallen due before liberty accrued. This happens if a pure (unconditional) legacy is left to a slave and he is ordered to be free under a condition, and the condition is found pending even after the inheritance has been entered upon.
Si habitatio filio familias vel servo legata sit, puto non adquiri domino vel patri legatum, si ante aditam hereditatem filius vel servus decesserit: nam cum personae cohaereat, recte dicitur ante aditam hereditatem diem non cedere.
If a habitation has been bequeathed to a son-in-power or to a slave, I think the legacy is not acquired by the master or by the father, if before the inheritance is entered upon the son or the slave has died; for since it coheres to the person, it is rightly said that before the inheritance is entered upon, the day does not fall due.
Sed et si quotannis sit legatum, mihi videtur etiam in hoc initium cuiusque anni spectandum, nisi forte evidens sit voluntas testatoris in annuas pensiones ideo dividentis, quoniam non legatario consultum, sed heredi prospectum voluit, ne urgueretur ad solutionem.
But even if the legacy is by the year, it seems to me that here too the beginning of each year must be regarded, unless perhaps the testator’s will is evident in dividing it into annual pensions for this reason: that he wished not to consult the legatee, but to provide for the heir, lest he be pressed for payment.
Novissime pomponius scribit nihil interesse, utrum " in annos singulos" vel " quotannis" an " in singulos menses" vel " quot mensibus" an " in singulos dies" vel " quot diebus" legetur. ipse quoque huic sententiae accedo: proinde et si " annui" legentur tot aurei, idem erit dicendum.
Most recently Pomponius writes that it makes no difference whether "in annos singulos" or "quotannis" or "in singulos menses" or "quot mensibus" or "in singulos dies" or "quot diebus" is read. i myself also accede to this opinion: accordingly, even if "annui" is read, that so many aurei, the same must be said.
Huiusmodi legatum: " sive illud factum fuerit sive non fuerit, illi do lego", ad heredem non transit, nisi alter casus vivo legatario exstiterit, quoniam causa, ex qua debeatur, praecedere semper debet. nec, quia certum est alterutrum futurum, omnimodo debebitur: nam tale legatum: " cum morietur, heres dato" certum est debitum iri et tamen ad heredem legatarii non transit, si vivo herede decedat.
A legacy of this kind: "whether that shall have been done or shall not have been done, I give, I bequeath it to him," does not pass to the heir, unless one or the other case has arisen while the legatee is alive, since the cause from which it is owed must always precede. Nor, because it is certain that the one or the other will occur, will it in every way be owed: for a legacy of this tenor, "when he dies, let the heir give," is certain to become owed, and yet it does not pass to the legatee’s heir, if he dies while the heir is alive.
Si usus fructus aut decem, utrum legatarius voluerit, sint legata, utrumque spectandum et mortem testatoris et aditionem hereditatis, mortem propter decem, aditionem propter usum fructum: quamvis enim electio sit legatarii, tamen nondum electioni locus esse potest, cum proponatur aut nondum testatorem decessisse aut eo mortuo hereditas nondum adita.
If a usufruct or ten, whichever the legatee shall have wished, be bequeathed, both things must be considered—the death of the testator and the entry upon the inheritance: the death with respect to the ten, the entry with respect to the usufruct. For although the choice is the legatee’s, nevertheless there can as yet be no place for the choice, since it may be supposed either that the testator has not yet died, or that, though he has died, the inheritance has not yet been entered upon.
Inde quaerit iulianus, si post mortem testatoris legatarius decedat, an ad heredem transferat decem legatum, et libro trigensimo septimo digestorum scribit posse dici decem transtulisse, quia mortuo legatario dies legati cedit. argumentum iulianus pro sententia sua adfert tale: " seiae decem aut, si pepererit, fundum heres meus dato": nam si, antequam pariat, inquit, decesserit, ad heredem suum decem transmittet.
Thence Julian asks, if after the death of the testator the legatee should die, whether he transfers the legacy of ten to his heir; and in book 37 of the Digest he writes that it can be said that he has transferred the ten, because when the legatee is dead the day of the legacy vests. Julian brings forward an argument for his view of this sort: "Give Seia ten, or, if she bears a child, let my heir give her the farm"; for if, he says, before she gives birth she should die, she will transmit the ten to her own heir.
Si ita quis legaverit filio familias, ut ipsi solvatur, potest procedere legatum nec imputari heredi, cur non patri, sed potius filio solvat: finge enim hoc nominatim expressum " ita ut filio solvat": certe si pater petat, exceptione erit repellendus.
If someone has bequeathed in this way to a son under paternal power, that it be paid to him himself, the legacy can proceed, nor is it to be imputed to the heir why he pays not to the father but rather to the son: suppose, in fact, this is expressly set out by name, "thus, that he pay to the son": certainly, if the father should sue for it, he will be repelled by an exception.
Si dies legati cesserit, deinde legatarius in ius alienum pervenit, ipsi potius debetur legatum, in cuius ipse ius pervenit: transeunt enim cum eo, quae ei debebantur. sed si sub condicione fuerit legatum, non transit, sed exspectabit condicionem eique adquiretur, cuius iuris erit condicionis existentis tempore: quod si sui iuris fuerit eo tempore, sibi potius adquiret.
If the day of the legacy has fallen due, and then the legatee comes into another’s right, the legacy is rather owed to the person into whose right he has come; for the things that were owed to him pass along with him. But if the legacy was under a condition, it does not pass, but will await the condition and will be acquired for the one whose right it will be at the time when the condition comes to exist; and if he is of his own right (sui iuris) at that time, he will acquire it for himself.
Si ita esset liberis fideicommissum relictum, si morte patris sui iuris essent effecti, nec mortalitate patris, sed emancipatione patres familiarum constituti sint, deberi eis fideicommissum nemo dubitaverit diemque eius emancipatione cessisse, qui morte patris cederet.
If a fideicommiss were left to the children on this tenor, namely that by the death of their father they should be made sui iuris, and they have been constituted fathers of families not by the mortality of the father, but by emancipation, no one would doubt that the fideicommiss is owed to them, and that its day has accrued by emancipation, which would have accrued by the death of the father.
Cum servo legato, antequam hereditas eius qui legaverat adiretur, usus fructus ab alio legatus fuerit et prior hereditas eius, qui usum fructum legaverit, adita fuerit: nulla ratio est, cur diem legati cedere existimemus, antequam ea quoque hereditas, ex qua servus legatus erat, adeatur, cum neque in praesentia ullum emolumentum hereditati adquiratur et, si interim servus mortuus fuerit, legatum extinguatur. quare adita hereditate existimandum est usum fructum ad eum, cuius servus legatus esset, pertinere.
When a slave has been legated, before the inheritance of him who had legated is entered upon, a usufruct has been legated by another, and the prior inheritance of him who legated the usufruct has been entered: there is no reason why we should think the day of the legacy accrues before that inheritance also, from which the slave was legated, is entered upon, since at present no emolument is acquired to the inheritance, and, if in the meantime the slave should have died, the legacy is extinguished. Wherefore, upon the inheritance being entered upon, it is to be considered that the usufruct pertains to him whose slave had been legated.
Cum legato servo aliquid legatur, dies eius legati quod servo datur non mortis tempore, sed aditae hereditatis cedit: et ideo impedimento non est regula iuris, quo minus manumisso legatum debeatur, quia etsi confestim pater familias moreretur, non in eiusdem personam et emolumentum legati et obligatio iuris concurreret. perinde igitur est hoc, de quo quaeritur, ac si filio herede instituto patri legatum esset: quod consistere intellegitur eo, quod, quamvis statim pater familias moriatur, potest emancipatus adire hereditatem, ut patri legatum debeat.
When, with a slave left by legacy, something is bequeathed, the day (dies) of that legacy which is given to the slave accrues not at the time of death, but at the acceptance of the inheritance: and therefore the rule of law is no impediment to the legacy being owed to him upon manumission, because even if the paterfamilias were to die immediately, both the emolument of the legacy and the obligation of law would not converge in the same person. Accordingly, the matter here inquired about is just as if, the son having been instituted heir, a legacy had been left to the father: which is understood to hold for this reason, that, although the paterfamilias dies at once, the emancipated son can enter upon the inheritance, so that the legacy is owed to the father.
Cum sine praefinitione temporis legatum ita datum fuerit: " uxori meae penum heres dato: si non dederit, centum dato", unum legatum intellegitur centum et statim peti potest, penoris autem causa eo tantum pertinet, ut ante litem contestatam tradita peno heres liberetur.
When, without a predefinition of time, a legacy has been given thus: "Heir, give my wife the penus (household stores); if he does not give it, give 100," one legacy is understood—the 100—and it can be demanded at once; but the matter of the penus pertains only to this extent: that, if the penus has been delivered before the suit is joined (litis contestatio), the heir is released.
Quod si ita scriptum sit " si penum intra kalendas non dederit, centum dato", non efficitur, ut duo legata sint, sed ut centum legata sub condicione videantur: idcirco si uxor ante kalendas decesserit, heredi suo neque penum relinquet, quia legata non est, neque centum, quia dies legati cesserit necesse est legataria viva.
But if it is written thus, " if she does not give the household stores within the Kalends, give 100," it does not result that there are two legacies, but that the 100 appears to be bequeathed under a condition: therefore, if the wife has died before the Kalends, she will leave to her heir neither the household stores, because it is not a legacy, nor the 100, because for the day of the legacy to accrue it is necessary that the legatee be alive.
Si cum praefinitione annorum legatum fuerit, veluti " titio dena usque ad annos decem", iulianus libro trigensimo digestorum scribit interesse: et si quidem alimentorum nomine legatum fuerit, plura esse legata et futurorum annorum legatum legatarium mortuum ad heredem non transmittere: si vero non pro alimentis legavit, sed in plures pensiones divisit exonerandi heredis gratia, hoc casu ait omnium annorum unum esse legatum et intra decennium decedentem legatarium etiam futurorum annorum legatum ad heredem suum transmittere: quae sententia vera est.
If a legacy has been made with a predefinition of years, as, " Titius ten apiece up to ten years," Julian, in the thirtieth book of the Digest, writes that it makes a difference: and if indeed the legacy has been made under the name of alimentary support, more things are bequeathed, and the legacy of future years is not transmitted by a deceased legatee to his heir; but if he did not bequeath for alimony, but divided it into several pensions to relieve the heir, in this case he says there is one legacy for all the years, and that a legatee dying within the decade also transmits the legacy of the future years to his own heir; which opinion is true.
Si dies adposita legato non est, praesens debetur aut confestim ad eum pertinet cui datum est: adiecta quamvis longa sit, si certa est, veluti kalendis ianuariis centesimis, dies quidem legati statim cedit, sed ante diem peti non potest: at si incerta, quasi " cum pubes erit" " cum in familiam nupserit" " cum magistratum inierit" cum aliquid demum, quod scribenti comprehendere sit commodum, fecerit: nisi tempus condiciove optigit, neque res pertinere neque dies legati cedere potest.
If a day is not appended to the legacy, it is owed presently or forthwith pertains to him to whom it is given: even if an added day be long, if it is certain, for example, on the hundredth Kalends of January, indeed the day of the legacy accrues at once, but it cannot be demanded before the day: but if it is uncertain, as " when he reaches puberty" " when she marries into a household" " when he enters upon a magistracy" when at last he does something which it is convenient for the writer to comprehend: unless the time or the condition occurs, neither can the thing pertain nor can the day of the legacy accrue.
Si sub condicione, qua te heredem institui, sub ea condicione titio legatum sit, pomponius putat perinde huius legati diem cedere atque si pure relictum esset, quoniam certum esset herede existente debitum iri: neque enim per condicionem heredum fieri incerta legata nec multum interesse tale legatum ab hoc " si heres erit, dato".
If, under the condition under which I instituted you as heir, a legacy is left to Titius under that same condition, Pomponius thinks that the time for this legacy to vest accrues just as if it had been left purely (unconditionally), since it is certain that, the heir existing, it will be owed: for legacies do not become uncertain by reason of a condition attached to the heir, nor does such a legacy differ much from this: 'if there will be an heir, give.'
Si titio, " cum is annorum quattuordecim esset factus", legatum fuerit et is ante quartum decimum annum decesserit, verum est ad heredem eius legatum non transire, quoniam non solum diem, sed et condicionem hoc legatum in se continet " si effectus esset annorum quattuordecim", qui autem in rerum natura non esset, annorum quattuordecim esse non intellegeretur. nec interest, utrum scribatur " si annorum quattuordecim factus erit" an ita cum priore scriptura per condicionem tempus demonstratur, sequenti per tempus condicio, utrubique tamen eadem condicio est.
If to Titius, " when he shall have become fourteen years of age", a legacy has been left, and he dies before the fourteenth year, it is true that the legacy does not pass to his heir, since this legacy contains in itself not only a day (term) but also a condition, " if he had become fourteen years of age"; and one who was not in being would not be understood to be fourteen years of age. Nor does it matter whether it is written " if he shall have become fourteen years of age" or thus: with the former wording time is shown through a condition, with the latter a condition through time; in both cases, however, the same condition obtains.
Quaedam autem condiciones etiam supervacuae sunt, veluti si ita scribat: " titius heres esto. si titius hereditatem meam adierit, maevio decem dato": nam pro non scripto ea condicio erit, ut omnimodo ad heredem maevii legatum transeat, etiamsi maevius ante aditam hereditatem decesserit. et idem, si ita fuerit scriptum: " si titius hereditatem meam adierit, intra dies centum maevio decem dato": nam hoc legatum in diem erit, non sub condicione, quia definitio labeonis probanda est dicentis id demum legatum ad heredem legatarii transire, quod certum sit debitum iri, si adeatur hereditas.
But certain conditions are even superfluous, for example if he should write thus: " titius be heir. if titius shall have entered upon my inheritance, give maevius ten": for as not written that condition will be, so that in every way the legacy to maevius passes to maevius’s heir, even if maevius has died before the inheritance was entered upon. And the same, if it has been written thus: " if titius shall have entered upon my inheritance, within one hundred days give maevius ten": for this legacy will be for a day (in diem), not under a condition, because the definition of Labeo is to be approved, saying that only that legacy passes to the heir of the legatee which is certain to be owed, if the inheritance is entered upon.
Si tamen duos heredes instituam et, si alter ex his adeat hereditatem, alicui legem ab omnibus heredibus: non erit pro supervacuo ea condicio, sed in portionem quidem coheredis valebit, in ipsius autem, cuius persona in condicione comprehensa est, supervacua erit, perinde atque si solo eo herede instituto eo modo legatum esset.
If, however, I institute two heirs, and, if one of them should enter upon the inheritance, I bequeath a legacy to someone by all the heirs: that condition will not be treated as superfluous, but it will be valid as to the portion of the coheir; as to the very one whose person is encompassed in the condition, it will be superfluous, just as if, with only that heir instituted, the legacy had been left in that way.
Si penum heres dare damnatus sit vel fundum et, si non dedisset, decem, ego accepi et penum legatam et translatam esse in decem, si noluerit penum heres dare, et tunc pecuniam deberi, cum interpellatus fundum non dedisset, et, si interea decesserit legatarius, tunc heredi eius non nisi fundum deberi. namque cum dictum est: " at publicius fundum dato", perfectum est legatum et cum dicit: " si non dederit, centum dato", sub condicione fundi legatum ademptum videri eo casu, quo centum deberi coeperint. quorum quia condicio vivo legatario non exstiterit, forte quia interpellatus heres non sit, evenit, ut ademptio nihil egerit fundique legatum duraverit.
If the heir has been condemned to give the pantry or the farm, and, if he should not give it, ten, I take it both that the pantry has been bequeathed and that it is translated into ten if the heir is unwilling to give the pantry, and that then money is owed when, after being interpellated, he has not given the farm; and, if in the meantime the legatee has died, then to his heir nothing is owed except the farm. For when it has been said: " But, Publicius, give the farm", the legacy is perfected; and when it says: " if he does not give it, give a hundred", the legacy of the farm is seen as taken away under the condition in the case in which the hundred have begun to be owed. Since that condition did not arise while the legatee was alive—perhaps because the heir was not interpellated—it comes about that the ademption effected nothing and the legacy of the farm has endured.
Cum illud aut illud legetur, enumeratio plurium rerum disiunctivo modo comprehensa plura legata non facit. nec aliud probari poterit, si pure fundum alterum vel alterum sub condicione legaverit: nam pendente condicione non erit electio nec, si moriatur, ad heredem transisse legatum videbitur.
When “this or that” is bequeathed, an enumeration of several things embraced in a disjunctive mode does not make multiple legacies. Nor can anything else be established if, either outright or under a condition, he has bequeathed the one estate or the other: for while the condition is pending there will be no election, nor, if he dies, will the legacy be deemed to have passed to his heir.
" heres meus titio dato quod mihi seius debet". si seius pupillus sine tutoris auctoritate nummos accepit nec locupletior factus est et creditor ad praesens debitum verba rettulit, quia nihil seius debet, nullius momenti legatum erit: quod si verbo debiti naturalem obligationem et futuram solutionem cogitavit, interim nihil titius petet, quasi tacite condicio inserta sit, non secus ac si ita dixisset: " titio dato, quod pupillus solverit" vel si legasset " quod ex arethusa natum erit" vel " fructus, qui in illo fundo nascentur". contrarium non est, quod, si medio tempore legatarius moriatur et postea partus edatur, fructus perveniant, pecuniam pupillus exsolvat, heres legatarii petitionem habet: namque dies legati, cui condicio non adscribitur, quamvis extrinsecus exspectanda sit, cedit.
"Give to Titius what Seius owes me." If Seius, being a ward, received coins without the authority of a tutor and has not been made more wealthy (enriched), and the creditor referred the words to the present debt, since Seius owes nothing, the legacy will be of no moment: but if by the word “debt” he had in mind the natural obligation and the future payment, in the meantime Titius will demand nothing, as if a condition had been tacitly inserted, just as if he had said: "Give to Titius what the ward shall have paid," or if he had bequeathed "what shall be born from Arethusa," or "the fruits which shall be produced on that estate." It is not contrary that, if in the meantime the legatee should die and afterward the offspring be brought forth, the fruits come in, and the ward pays the money, the heir of the legatee has an action: for the day of the legacy, to which no condition is adscribed, although it must be awaited from without, vests.
" firmio heliodoro fratri meo dari volo quinquaginta ex reditu praediorum meorum futuri anni postea". non videri condicionem additam, sed tempus solvendae pecuniae prolatum videri respondi: fructibus fini relictae pecuniae non perceptis ubertatem esse necessariam anni secundi.
"i wish fifty to be given to firmius heliodorus, my brother, from the revenue of my estates of the year to come thereafter." i replied that it did not seem that a condition had been added, but that the time for paying the money seemed to have been deferred: since the money was left from the fruits, if at the end the fruits have not been taken, the abundance of the second year is necessary.
Cum ab heredibus alumno centum dari voluisset testator et eam pecuniam ad alium transferri, ut in annum vicensimum quintum trientes usuras eius summae perciperet alumnus ac post eam aetatem sortem ipsam: intra vicensimum quintum annum eo defuncto transmissum ad heredem pueri fideicommissum respondi: nam certam aetatem sorti solvendae praestitutam videri, non pure fideicommisso relicto condicionem insertam. cum autem fideicommissum ab eo peti non posset, penes quem voluit pecuniam collocari, propter haec verba " eamque alumno meo post aetatem supra scriptam curabis reddere" fideicommissum ab heredibus petendum, qui pecuniam dari stipulari debuerunt: sed fideiussores ab eo non petendos, cuius fidem sequi defunctus maluit.
When the testator had wished that a hundred be given by the heirs to his alumnus and that that money be transferred to another, so that up to the twenty-fifth year the alumnus should receive one‑third interest on that sum and after that age the principal itself: he having died within the twenty‑fifth year, I replied that the fideicommissum is transmitted to the boy’s heir; for it seems that a fixed age was prescribed for the payment of the principal, not that, the fideicommissum having been left purely, a condition was inserted. And since the fideicommissum could not be demanded from the person with whom he wished the money to be placed, on account of these words, “and you will take care to return it to my alumnus after the above‑written age,” the fideicommissum must be demanded from the heirs, who ought to have stipulated that the money be given; but sureties are not to be demanded from him whose good faith the deceased preferred to follow.
Pater annua tot ex fructu bonorum, quem uxori legavit, accessura filii patrimonio praeter exhibitionem, quam aeque matri mandavit, ad annum aetatis eius vicensimum quintum ab uxore praestari voluit. non plura, sed unum esse fideicommissum certis pensionibus divisum apparuit et ideo filio intra aetatem supra scriptam diem functo residui temporis ad heredem fideicommissum eius transmitti, sed non initio cuiusque anni peti pecuniam oportere, quod ex fructibus uxori datis pater filio praeberi voluit. ceterum si pecuniam annuam pater alimentis filii destinasset, non dubie persona deficiente causa praestandi videtur extincta.
The father wished that so many annual payments from the fruits of the goods which he bequeathed to his wife—payments that would accrue to the son’s patrimony, besides the maintenance which he likewise entrusted to the mother—be furnished by the wife until the son’s 25th year of age. It appeared not to be several, but one fideicommissum divided into fixed installments; and therefore, if the son died before the age written above, the fideicommissum for the remaining time is transmitted to his heir. But the money ought not to be demanded at the beginning of each year, because the father wished it to be supplied to the son from the fruits given to the wife. Moreover, if the father had destined the annual money for the son’s maintenance (alimenta), without doubt, the person failing, the cause for furnishing is regarded as extinguished.
Filium familias ex parte pure instituit heredem eique fideicommissum dedit et eodem testamento ita cavit: " quod ego lucium titium heredem institui, ita eum adire hereditatem volo, si is patria potestate liberatus fuerit": quaesitum est, an a coheredibus eius adita hereditate legati filio familias dati dies cesserit. respondit, si pure sit datum, a coherede filii pro hereditaria parte fideicommissum peti posse.
He appointed a filius familias heir as to a part, unconditionally, and gave to him a fideicommissum, and in the same testament provided thus: "inasmuch as I have instituted Lucius Titius as heir, I wish him thus to enter upon the inheritance, if he shall have been freed from paternal power": it was asked whether, after his coheirs had entered upon the inheritance, the day for the legacy given to the filius familias had accrued. He replied that, if it was given purely, the fideicommissum can be claimed from the son’s coheir for the hereditary share.
Menstruos denarios denos manumissis legavit: quaesitum est, cum absentibus heredibus ex senatus consulto libertatem sunt consecuti, ex quo tempore eis cibaria debeantur. respondit secundum ea quae proponerentur ex eo tempore his cibaria debeantur, quo liberi esse coeperint.
He bequeathed ten denarii monthly to the manumitted; it was asked, since with the heirs absent they obtained freedom by a senatus-consultum, from what time provisions are owed to them. He responded that, according to what was proposed, provisions are owed to them from the time they began to be free.
Si fundus instructus relictus erit, quaeritur, quemadmodum dari debeat, utrum sicut instructus fuit mortis tempore an eo tempore quo facti sunt codicilli an quo peti coepit. respondit ea quibus instructus sit fundus, cum dies legati cedat, deberi.
If an estate equipped has been left, the question is how it ought to be given, whether as it was equipped at the time of death, or at the time when the codicils were made, or when it began to be claimed. he answered that the things with which the estate is equipped are owed when the day of the legacy accrues.
Uxori ex parte sextante heredi institutae substituit et heredem fidei commisit, si uxor heres non erit, dotem ei et alia quaedam dari: post mortem mariti uxor ante condicionem et priusquam adeat hereditatem decessit. quaesitum est, an dies fideicommissi cum moritur cessisse videatur ideoque heredibus eius debeatur. respondi, si uxor prius decessit, quam hereditatem adiret, videri diem fideicommissi cessisse.
He instituted his wife as heir for a sixth part, appointed a substitute, and bound the heir by fideicommissum that, if the wife should not be heir, the dowry be given to her and certain other things: after the husband’s death the wife died before the condition and before she might enter upon the inheritance. It was asked whether the day of the fideicommissum is to be seen as having fallen due when she dies and therefore to be owed to her heirs. I answered: if the wife died before she entered upon the inheritance, the day of the fideicommissum is deemed to have fallen due.
Nec sine ratione hoc praetori visum est, sicuti heres incumbit possessioni bonorum, ita legatarios quoque carere non debere bonis defuncti: sed aut satisdabitur eis aut, si satis non datur, in possessionem bonorum venire praetor voluit.
Nor did this seem to the praetor without reason, that just as the heir enters upon the possession of the goods, so the legatees too ought not to be without the goods of the deceased: but either security will be furnished to them or, if security is not given, the praetor wished them to come into possession of the goods.
Si cui ita sit legatum vel fideicommissum relictum et si id perdidisset, rursus relictum, videamus, an satis sequentis legati sive fideicommissi petere possit. movet quaestionem, an fideicommissum hoc sive legatum debeatur et quotiens debeatur et an ipse legatarius cavere debeat se non perditurum. de his omnibus extat rescriptum divi pii ad iunium mauricum tale: " clodio fructulo secundum ea, quae epistula continentur, legata sive fideicommissa ex testamento clodii felicis praestari debent citra necessitatem cavendi nihil ex is deminuturum se. nam quod fidei heredis ab eodem testatore commissum est, ut, si fructulus perdidisset quod ei in testamento relictum est, rursus heres ei id restitueret, non eo pertinet, ut aut fructulo priorum legatorum nomine satisdatio iniungenda aut onerandus sit heres in infinito, ut, quotiens is perdiderit, restituere ei tantumdem debeat, sed ut per fideicommissum posterius duplicata legata eius videantur nec amplius ad periculum heredis pertineat, si quid postea is consumpsit exsoluto ei posteriore fideicommisso". rescripto ergo ostensum legatarium heredi non debere cavere se non perditurum.
If to someone a legacy or fideicommissum has been left in such a way that, if he should have lost it, it is left again, let us see whether he can demand surety for the subsequent legacy or fideicommissum. The question arises whether this fideicommissum or legacy is owed, and how often it is owed, and whether the legatee himself ought to give security that he will not lose it. On all these points there exists a rescript of the deified Pius to Junius Mauricus as follows: "To Clodius Fructulus, according to the matters contained in the letter, the legacies or fideicommissa from the testament of Clodius Felix ought to be rendered without the necessity of giving security that he will diminish nothing of them. For as to that which was committed to the good faith of the heir by the same testator, namely that, if Fructulus should lose what was left to him in the testament, again the heir should restore it to him, this does not mean that either a requirement of giving surety should be imposed on Fructulus with respect to the earlier legacies, or that the heir should be burdened without limit, so that as often as he loses it he must restore to him the same amount; but that through the later fideicommissum his legacies seem doubled, nor does it further pertain to the peril of the heir, if afterwards he has consumed anything after the later fideicommissum has been paid out to him." Therefore by the rescript it is shown that the legatee ought not to give security to the heir that he will not lose it.
Conversely, it is asked whether the heir ought to give surety with respect to the subsequent legacy or fideicommissum. And I think that surety ought not to be given to him, since it lies in his own discretion not to lose what has been left to him, although, if someone should consider that it has been left under a condition, he ought to say that surety is to be exacted.
Si quis sub condicione legatum stipulatus pendente condicione decesserit, stipulatio evanescit, quia nec legatum transmittitur. huic stipulationi easdem causas et condiciones inesse sciendum est: proinde si qua sit exceptio, quae petenti legatum opponi solet, eandem ex stipulatu quoque agenti opponendam esse placet.
If someone, having stipulated for a legacy under a condition, should die while the condition is pending, the stipulation evanesces, because the legacy is not transmitted either. It must be known that the same causes and conditions inhere in this stipulation: accordingly, if there is any exception which is accustomed to be opposed to one seeking the legacy, it is held that the same is to be opposed also to one suing ex stipulatu.
Si decem quae in arca erant mihi legata sint, tibi eorum usus fructus legatus sit, si pure utrique legatum sit relictum, is cui proprietas legata est ipso iure decem vindicabit, fructuarium autem ex senatus consulto acturum et quinque usum fructum petiturum constat. sed cum decem vindicat proprietarius, per exceptionem doli repelli, qua fructuarius de restituendis quinque heredi cavit. plane si decem aureorum possessionem legatarius habeat, Marcellus ait dandam vel heredi vel fructuario utilem actionem in legatarium, si modo ei caveatur.
If the 10 which were in the chest have been bequeathed to me, and to you the usufruct of them has been bequeathed, if the legacy has been left purely to each, he to whom the ownership (proprietas) has been left will, by the law itself, vindicate the 10; but it is agreed that the usufructuary, under the Senate’s decree, will bring an action and will claim the usufruct of 5. But when the proprietor vindicates the 10, he is repelled through the exception of fraud (exceptio doli), by which the usufructuary gave security to the heir for restoring the 5. Clearly, if the legatee has possession of the 10 gold pieces, Marcellus says that either the heir or the usufructuary is to be given a useful action against the legatee, provided that security be given to him.
but if the ten have been bequeathed to him under a condition, the usufructuary, security having been tendered, will in the meantime have the ten, while to the legatee to whom the ownership (proprietas) has been left, in the meantime the stipulation of the legacies is to be furnished. but if he has omitted the stipulation, once the condition exists Marcellus says that he can bring the action ad exhibendum. but if the heir, being ignorant, gave the legacy of ten to the usufructuary, it is clear that he is not bound ad exhibendum: nevertheless, Marcellus says that aid must be afforded to the legatee against the usufructuary.
Qui minorem partem hereditatis possidet, cum ex maiore parte heres sit, si quidem ipso iure minuatur portio hereditatis, securior erit heres: neque enim ex maiore parte ex stipulatu tenetur legatariis, quam ex qua heres est: si vero nomen quidem heredis apud eos integrum maneat, verumtamen effectu minus habeant hereditatis et caverint legatorum nomine, videntur onerari, quia ipso iure pro ea parte legata debent, pro qua heredes sint. sed enim aequissimum est non maiorem partem legatariis solvere, quam cuius habent emolumentum. hoc autem evenit, cum hereditas pro aliqua parte ex trebelliano restituitur: nam pro rata exonerandi sunt heredes eius partis nomine, cuius emolumentum sibi ablatum est.
He who possesses the smaller part of the inheritance, while he is heir from the larger part, if indeed the portion of the inheritance is diminished ipso iure, will be safer as heir: for he is not held on the stipulation to the legatees from a greater part than that from which he is heir. But if the heir’s title (nomen) remains intact with them, yet in effect they have less of the inheritance, and they have furnished security in the name of the legacies, they seem to be burdened, because ipso iure they owe the legacies for that part for which they are heirs. But it is most equitable not to pay the legatees a greater part than that of which they have the emolument. And this happens when the inheritance is restored for some part under the Trebellian: for the heirs are to be exonerated pro rata in respect of that part whose emolument has been taken from them.
Si ei, qui in alterius potestate erit, incerta die legatum fuerit, cavebitur ei, qui habet eum in potestate, non praecise, sed sub condicione " si, cum eius legati dies cedit, in potestate sit". ceterum si sui iuris inveniatur, iniquum esse visum est patri cautum esse, cum alii legatum debeatur, quamquam etsi sine hac adiectione caveretur, verum tamen exceptione patrem vel dominum submoveremus, si existentis condicionis tempore non haberent eos in potestate. evenit tamen secundum hoc, ut in casum non sit de legato cautum: nam si existentis condicionis tempore sui iuris sunt, non erit cautum.
If a legacy has been left to someone who will be in another’s power, on an uncertain day, security will be taken from the one who has him in his power, not peremptorily, but under the condition, “if, when the day of that legacy accrues, he is in his power.” Moreover, if he is found to be sui iuris, it has seemed inequitable that security should have been taken from the father, when the legacy is owed to another; although even if security were taken without this addition, nevertheless by an exception we would remove the father or the master, if at the time when the condition exists they did not have them in their power. Yet it follows from this that security is not taken about the legacy for the contingency: for if at the time when the condition exists they are sui iuris, there will be no security.
Postquam heres ab hostibus captus est, condicio legati, cuius nomine proposita stipulatione cautum fuerat, extitit: fideiussores interim teneri negavi, quia neque ius neque persona esset, ad quam verba stipulationis derigi possint.
After the heir was captured by the enemy, the condition of the legacy, in whose name provision had been made by a stipulation proposed, came into existence; I denied that the sureties were meanwhile bound, because there was neither a right nor a person to whom the words of the stipulation could be directed.
Imperator marcus antoninus ^ antonius^ iulio balbo rescripsit eum, a quo res fideicommissae petebantur, cum appellasset, cavere vel, si caveat adversarius, ad adversarium transferri possessionem debere. recte placuit principi post provocationem quoque fideicommissi cautionem interponi: quod enim ante sententiam, si petitionis dies moraretur, fieri debuit, amitti post victoriam dilata petitione non oportuit. sed quare non caverat de fideicommisso qui provocaverit, si caveret adversarius, ad eum possessionem esse transferendam rescripsit, cum alia sit edicti condicio?
Emperor Marcus Antoninus ^ Antonius^ wrote back to Julius Balbus that the one from whom fideicommissary things were being sought, when he had appealed, ought to give a caution, or, if the adversary should give a caution, possession ought to be transferred to the adversary. It rightly pleased the princeps that after a provocation as well a fideicommissum-caution be interposed: for that which, before sentence, if the day of the petition were delayed, ought to have been done, ought not to be lost after victory with the petition deferred. But why did he write back that, because the one who had appealed had not given a caution about the fideicommissum, if the adversary should give a caution, possession is to be transferred to him, since the condition of the edict is otherwise?
For security is not demanded from the legatee in a reciprocal capacity, but possession is granted as a substitute for the sake of custody, and the one who has prevailed is introduced into possession by the praetor or by the governor. The praetor, indeed, allows possession of all the things which in every way remain in the hereditary cause, for the sake of preserving the fideicommissum; but the emperor, in the name of those things about which there had been judgment, admitted reciprocal securities. Thus, when it is a matter of a son contributing his own goods, he, having received possession, cannot give security, because we deny him actions; the condition of giving security is transferred to the brothers by the form of jurisdiction, to the effect that what they have obtained from their brother’s portion they will restore when he begins to contribute his own property. But if they too cannot give security, it has been usefully approved that a vir bonus be chosen by both parties, with whom, as a sequester, the fruits be deposited, and who shall exercise the useful actions granted by the praetor.
However, possession under the rescript set out above is not transferred to him who seeks the fideicommissum otherwise than if he has given security, even though the adversary refused to give security not through indigence but through contumacy: but if he who has prevailed cannot give security, either the thing must be deposited or the jurisdiction must be restored.
Si dies aut condicio legati fidei commissi petitionem actionemve differre dicatur et ideo satisdatio desideretur, heres autem per calumniam postulari contendat et relictum neget, non aliter audiendus erit qui cavere postulat, quam si scripturam, qua relictum adfirmet, exhibuerit.
If the day or condition of a legacy or fideicommissum is said to defer the petition or the action, and therefore a furnishing of surety is desired, but the heir contends that it is being demanded out of calumny and denies that the bequest was left, he who asks that security be given shall be heard only if he produces the writing by which he affirms that it was left.
Cum quaerebatur, ubi fideicommissi servandi causa caveri oporteat, imperator titus antoninus rescripsit, si domicilium romae non haberet heres et omnis hereditas in provincia esset, ad satisdationem fideicommissi nomine in provinciam fideicommissarium remittendum esse. quare si heres in eum locum cavendi gratia remitti desideret, ubi domicilium habet, legatarius autem ibi caveri postulet, ubi est hereditas, non erit heres remittendus. idque imperator titus antoninus rescripsit.
When it was asked where, for the sake of preserving a fideicommissum, security ought to be given, the emperor Titus Antoninus wrote in reply that, if the heir did not have a domicile at Rome and the whole inheritance was in a province, the fideicommissary should be sent to the province to furnish security in the name of the fideicommissum. Therefore, if the heir desires, for the sake of giving security, to be sent to the place where he has his domicile, but the legatee demands that security be given where the inheritance is, the heir is not to be sent. And this the emperor Titus Antoninus wrote in reply.
Filio vel servo sub condicione a patre dominove herede instituto legatum est. huius legati satis petere non possunt: sed pendente condicione emancipatus vel manumissus si satis petant, quaeritur, an audiendi sint, ne beneficium patris dominive ipsis onerosum sit, an sibi imputare deberent, qui dederunt eis postulandi adversus se facultatem. sed melius est per mediocritatem causam dirimere, ut cautioni tantum cum hypotheca suarum rerum committantur.
A legacy has been left to a son or a slave under a condition by a father or master who has been instituted heir. They cannot demand security (satis) for this legacy; but if, while the condition is pending, they have been emancipated or manumitted and seek security, the question is whether they should be heard—lest the beneficium of the father or master be burdensome to them—or whether they ought to impute it to themselves, who have given them the facultas of making a demand against themselves. But it is better to resolve the case by a middle course: that they be confined to a cautio only, with a hypothec on his own goods.
Si a te herede legatum mihi sit sub condicione tuque, postquam adieris hereditatem, satisdederis legatorum et post mortem tuam ante aditam tuam hereditatem condicio legati extiterit, sabinus ait fideicommissores mihi teneri, quia omnimodo dari oportet legatum et in rem esset concepta stipulatio.
If a legacy has been left to me by you, the heir, under a condition, and you, after you have entered upon the inheritance, have given security for the legacies, and after your death, before your inheritance has been entered upon, the condition of the legacy has arisen, Sabinus says that the fideicommissors are bound to me, because in every way the legacy ought to be given and the stipulation would have been conceived in rem.
Si legatariis, qui adversus me in possessionem legatorum servandorum causa missi sunt, procurator vel quis alius meo nomine caverit, perinde mihi praetor accommodat interdictum, quo iubeantur discedere legatarii possessione, ac si ego cavissem.
If, as to the legatees who have been sent against me into possession for the sake of preserving the legacies, a procurator or some other person in my name has given security, the praetor affords me an interdict by which the legatees are ordered to withdraw from possession, just as if I myself had given security.
Licet, ut non petatur cautio, condicio testamento scripta fuerit, non videtur condicio: et ideo licet desideraverit quis caveri sibi, non videtur condicione defectus, quia postquam remitti talem cautionem iure publico placuit, nec onus cautionis sequitur nec quidem condicio intellegitur.
Even if, in the testament, a condition has been written that no caution (security) be demanded, it is not regarded as a condition; and therefore, even if someone desired that a caution be furnished to him, he is not seen as failing the condition, because after it has pleased, by public law, that such a caution be remitted, neither does the burden of the caution attach nor indeed is the condition understood.
Ei quoque, cui legatorum actio datur in eum, qui praetermissa institutione ab intestato possidet hereditatem, legatorum satisdatur et, nisi satisdabitur, in possessionem legatorum servandorum causa mittitur: nam haec quoque praetor perinde salva esse vult atque ea quae iure civili debentur. idem aristoni placet.
To him also, to whom an action for legacies is given against one who, the institution having been omitted, possesses the inheritance ab intestato, security is furnished for the legacies; and, unless security is furnished, he is sent into possession for the purpose of preserving the legacies: for the praetor wishes these likewise to be kept safe just as those which are owed by civil law. The same pleases Aristo.
Si et ab herede instituto legatorum satis acceperit legatarius et a trebelliano fideicommissario, utraque quidem stipulatio committetur, sed exceptione se tuebitur heres, quia cavere non debuerit. sed si pars hereditatis restituta sit, ab utroque cavendum est.
If both from the instituted heir and from the Trebellian fideicommissary the legatee has received security for the legacies, indeed both stipulations will be incurred; but the heir will defend himself by an exception, because he ought not to have given security. But if a part of the inheritance has been restored, security must be provided by both.
Quae filium legitimum relinquebat, patrem eundemque collibertum ex asse scripsit heredem fideique eius commisit, ut, quidquid ad eum ex hereditate eius pervenisset, cum moreretur, restitueret filio testatricis nepoti suo, et haec verba adiecit: " satis a seio patre meo exigi veto". quaesitum est, cum iste seius substantiam suam dissipat et veretur pater fideicommissarii, ne inane fideicommissum constituatur, an ad satisdationem fideicommissi nomine patrem defunctae compellere possit. respondit secundum ea quae proponerentur non compellendum cavere.
She, who was leaving a legitimate son, appointed as heir for the whole share her father—who was also her co‑libertus—and entrusted to his good faith that whatever from her estate had come to him, he should, when he died, restore to the testatrix’s son, his own grandson; and she added these words: "I forbid that surety be exacted from Seius, my father." It was asked, since this Seius is dissipating his substance and the father of the fideicommissary fears lest the fideicommissum be constituted in vain, whether he can compel the deceased’s father to provide security in the name of the fideicommissum. He responded that, according to the matters proposed, he is not to be compelled to give a guarantee.
Idem quaesiit: testatricem apud maritum suum, ex quo filium reliquerat, res deposuisse non exacta cautione depositionis: an ea res patri heredi restitui debeat? an vero quoniam emolumentum totius hereditatis ad filium defunctae reverti deberet, apud maritum remaneret, apud quem dos remansisset? respondit, quod mulieris mansisset nec in dote fuisset, restituendum esse heredi.
The same asked: that a testatrix had deposited property with her own husband, by whom she had left a son surviving, without exacting a security for the deposit: whether that property ought to be restored to the father, the heir? Or rather, since the emolument of the whole inheritance ought to revert to the son of the deceased, should it remain with the husband, with whom the dowry would have remained? He answered that, because it had remained the woman’s and had not been in the dowry, it must be restored to the heir.
Si quis, cum vetitus esset satis accipere, acceperit, an repeti satisdatio ista possit, ut heres condicat liberationem? et quidem si sciens heres indebitum cavit, repetere non potest. quid deinde, si ignoravit remissam sibi satisdationem?
If someone, when he had been forbidden to accept a satisdation, nevertheless accepted it, can that satisdation be reclaimed, so that the heir may bring a condictio for liberation? And indeed, if the heir knowingly provided security for a thing not owed, he cannot recover. What then, if he was ignorant that the satisdation had been remitted to him?
Non exigit praetor, ut per heredem stet, quo minus caveat, sed contentus fuit per legatarium vel fideicommissarium non stare, quo minus ei caveatur. quare si non fuerit, qui interpelletur cautionis nomine, hoc est is a quo legatum fideive commissum relictum est, omnimodo poterit legatarius et fideicommissarius in possessionem ex hoc edicto mitti, quia verum est per eum, cui caveri oportebit, non fieri, quo minus caveatur. non tamen et satisdatio debet offerri legatario, sed sufficit, sive desideravit et non cavetur, sive non habeat, a quo satis desideret.
The praetor does not demand that it be owing to the heir that he fails to give security, but was content that it not be owing to the legatee or fideicommissary that security is not furnished to him. Therefore, if there is no one who can be pressed in the name of the caution—that is, the person by whom the legacy or fideicommissum was left—the legatee and the fideicommissary may in any case be sent into possession under this edict, because it is true that through the person to whom security ought to be given it is not brought about that security is not given. However, the offering of surety need not also be made to the legatee; it suffices either that he has desired it and security is not given, or that he has no one of whom to demand surety.
Tunc ante aditam hereditatem satisdandum de legatis est, cum adhuc dubium est, an hereditas adeatur. ceterum si certum sit repudiatam vel omissam hereditatem vel abstentos necessarios heredes, frustra hoc edictum imploratur, cum certum sit legatum vel fideicommissum non deberi.
Then, before the inheritance is entered upon, security must be furnished concerning legacies, while it is still doubtful whether the inheritance will be entered upon. But if it is certain that the inheritance has been repudiated or omitted, or that necessary heirs have abstained, this edict is invoked in vain, since it is certain that the legacy or fideicommissum is not owed.
Nec non illa cognitio imploranda erit ab herede, si forte dicatur per calumniam satis peti: hoc enim commune est omnium satisdationum. divus enim pius rescripsit eum, apud quem satis petitur, debere explorare, num per calumniam satis petatur: de qua re summatim debet cognoscere.
And likewise that inquiry will have to be invoked by the heir, if perhaps it is said that security is being sought through calumny; for this is common to all demands for security. For the deified Pius issued a rescript that he, before whom security is sought, ought to explore whether security is being sought through calumny; concerning which matter he ought to inquire summarily.
Si semel fuerit satisdatum, quaesitum est, an etiam rursus cavendum sit, si forte dicatur egenos fideiussores esse datos. et magis est, ut caveri non debeat: hoc enim divus pius rescripsit pacuviae licinianae: ipsam enim facilitati suae expensum ferre debere, quae minus fideiussores idoneos accepit: neque enim oportet per singula momenta onerari eum, a quo satis petitur.
If once security has been given, the question has arisen whether one should also be required to furnish it again, if perchance it is said that needy sureties were provided. And the sounder view is that it ought not to be required: for the deified Pius wrote this in a rescript to Pacuvia Liciniana—that she must bear the expense for her own facility, she who accepted sureties less than idoneous; for it is not proper that at every instant the one from whom security is demanded be burdened.
Is cui legatorum fideive commissorum nomine non cavetur missus in possessionem nunquam pro domino esse incipit. nec tam possessio rerum ei quam custodia datur: neque enim expellendi heredem ius habet, sed simul cum eo possidere iubetur, ut saltem taedio perpetuae custodiae extorqueat heredi cautionem.
He to whom, in the name of legacies or trust-bequests, security is not furnished, though sent into possession, never begins to be as an owner. And not so much possession of the things is given to him as custody: for he does not have the right to expel the heir, but is ordered to possess together with him, so that at least, by the tedium of perpetual custody, he may wring a security from the heir.
Si alius damni infecti nomine missus sit in possessionem, alius legatorum servandorum causa, posse eum, qui legatorum servandorum causa in possessionem missus est, etiam damni infecti satisdare: qui si satisdederit, non aliter decedere possessione debebit, quam ei cautum fuerit etiam eo nomine, quod se damni infecti obligavit.
If one person has been put into possession under the head of damnum infectum, another for the sake of preserving legacies, the one who has been put into possession for the preserving of legacies can also give surety for damnum infectum; and if he has given surety, he ought not to depart from possession otherwise than when security has been provided to him also under that title, in respect of which he bound himself for damnum infectum.
Si plures legatarii mitti in possessionem desideraverint, omnes venire debent in possessionem: is enim qui ex causa legatorum possidet sibi, non alii possidet. alia est causa, cum creditores rei servandae causa mittuntur in possessionem: nam is qui possidet non sibi, sed omnibus possidet.
If several legatees have desired to be sent into possession, all ought to come into possession: for he who possesses by reason of legacies possesses for himself, not for another. It is a different case when creditors are sent into possession for the sake of preserving the thing: for he who possesses does not possess for himself, but for all.
Qui in possessionem legatorum servandorum causa mittitur, in possessionem quidem rerum hereditariarum omnimodo veniet, hoc est earum quae in causa hereditaria manent: earum autem, quae in causa hereditaria non erunt, non alias mittitur, quam si dolo malo in ea causa esse desierint, nec semper, sed causa cognita.
He who is sent into possession for the sake of preserving legacies will in any event come into possession of the hereditary things, that is, of those which remain in the hereditary cause; but as to those which will not be in the hereditary cause, he is not sent except if by malicious fraud they have ceased to be in that cause—and not always even then, but after the cause has been inquired into.
Si ex duobus heredibus alter satisdare sit paratus, alter non, in partem eius missio locum utique habere debet. missi itaque legatarii impedient etiam eum, qui satisdedit, rei administratione: quare suadendum erit heredi, ut in assem satisdet, ne administratio eius impediatur.
If, out of two heirs, one is prepared to give security, the other not, entry into possession ought certainly to have place as to the share of the latter. The legatees, therefore, once put in, will hinder even him who has given security in the administration of the estate: wherefore it will be advisable for the heir to give security for the whole, lest his administration be impeded.
Si ab impuberis substituto legata sint relicta et impubes decesserit, missio non solum in ea bona, quae testatoris fuerunt, verum ad ea quoque, quae impubes adquisiit, locum habebit: nam haec quoque hereditaria sunt: vivo autem impubere neque missio neque satisdatio locum habet.
If legacies have been left by the substitute of an impubes and the impubes has died, entry into possession will have place not only with respect to those goods which were the testator’s, but also with respect to those which the impubes acquired; for these too are hereditary: but while the impubes is alive, neither entry into possession nor the furnishing of security has place.
Imperator antoninus augustus rescripsit certis ex causis etiam in propria bona heredis legatarios et fideicommissarios esse mittendos, si post sex menses, quam aditi pro tribunali fuerint hi quorum de ea re notio est, in satisfactione cessatum est, inde fructus percepturos, quoad voluntati defunctorum satisfiat. quod remedium servaretur et adversus eos, qui ex qua causa fideicommisso moram faciunt.
Emperor Antoninus Augustus rescripted that, for certain causes, even into the heir’s own goods the legatees and fideicommissaries are to be put in possession, if, after six months from the time when those who have cognizance of that matter have been approached at the tribunal, there has been delay in making satisfaction; from then they are to take the fruits, until satisfaction is made to the will of the deceased. This remedy was to be observed also against those who, on whatever cause, cause delay in the fideicommissum.
Cessatum non accipimus, si pupillus tutorem non habeat nec curatorem furiosus vel adulescens: nam frustratio non debet huiusmodi personis nocere, quae sunt indefensae. certe si hereditas iacuerit aliquo tempore, hoc tempus de medio detrahendum est.
We do not take there to have been default, if a ward does not have a guardian, nor a madman or a youth a curator: for frustration ought not to harm persons of this kind, who are undefended. Certainly, if the inheritance has lain unclaimed for some time, this time must be deducted from the reckoning.
Quaeri poterit, an in vicem usurarum hi fructus cedant, quae in fideicommissis debentur. et cum exemplum pignorum sequimur, id quod ex fructibus percipitur primum in usuras, mox, si quid superfluum est, in sortem debet imputari: quin immo et si amplius quam sibi debetur perceperit legatarius, exemplo pigneraticiae actionis etiam utilis actio ad id refundendum dari debebit. sed pignora quidem quis et distrahere potest, hic autem frui tantum ei constitutio permisit, ut festinetur ad sententiam.
It can be asked whether these fruits go in lieu of interest which are owed in fideicommissa. And since we follow the example of pledges, that which is taken from the fruits ought first to be credited to interest, then, if anything is superfluous, to the principal; indeed, nay even, if the legatee has received more than is owed to him, by the example of the pignoratitious action a useful action ought also to be given for refunding that. But pledges indeed one can also sell off, whereas here the constitution permitted him only to enjoy, so that there may be haste toward the judgment.
Qui legatorum servandorum causa in possessionem mittitur, et fructus custodire et cetera debebit. et pati quidem heredem colere agros et fructus redigere, sed custodire legatarium fructus oportebit, ne ab herede consumantur: quod si heres fructus nolit cogere, permittendum erit legatario cogere fructus et coactos servare. quin immo si tales sint fructus, quos primo quoque tempore venire expediat, vendere quoque legatario permittendum est et pretium servare.
He who is sent into possession for the sake of preserving the legacies must also guard the fruits and the other things. And he should indeed allow the heir to cultivate the fields and to bring in the fruits, but it will be proper for the legatee to safeguard the fruits, lest they be consumed by the heir: and if the heir is unwilling to collect the fruits, it will be permitted to the legatee to collect the fruits and to keep those collected. Nay rather, if the fruits are such that it is expedient for them to be sold at the earliest possible time, the legatee also must be permitted to sell and to preserve the price.
in the other hereditary matters as well, this will be the duty of one sent into possession: that he gather together all the hereditary things and keep them there where the deceased had his domicile; and, if there be no house, he should hire a habitation or some storehouse, in which the collected things may be kept. And I think that the legatee ought to guard the hereditary things in such a way that they are neither taken away from the heir nor perish or become worse.
Si titio pure legatum fuerit et eius fidei commissum sub condicione, ut sempronio restitueret, non inique praetorem statuturum iulianus scripsit, si, antequam legatum consequatur legatarius, fideicommissi condicionalis satis non det, ut magis sempronio det legati persecutionem, ut is legatario satisdet deficiente condicione reddi decem. sed et si acceperit titius ab herede decem, aequum esse iulianus ait cogi eum invicem satisdare aut ipsa decem tradere et sempronium titio cavere: et hoc iure utimur, id enim et Marcellus ait.
If a legacy has been left to Titius outright, and a fideicommissum has been committed to his trust under the condition that he restore it to Sempronius, Julian wrote that it would not be inequitable for the praetor to order, if before the legatee obtains the legacy he does not give security for the conditional fideicommissum, that rather he grant to Sempronius the action for the legacy, so that he give security to the legatee that, if the condition fails, the ten be returned. But also, if Titius has received ten from the heir, Julian says it is equitable that he be compelled in turn either to give security, or to hand over the ten themselves, and that Sempronius give security to Titius; and we use this rule, for Marcellus says this as well.
Quid ergo, si et legatum sub condicione sit relictum et fideicommissum, neque fideicommissi satisdetur? aequissimum erit fideicommissarium nomine legati satis accipere ab herede, si ei legatarius non caveat, scilicet ut et ipse legatario caveat. quod si iam accepit legatarius ab herede satis, decernendum erit ex ea satisdatione magis fideicommissario quam legatario dandam actionem, in eum scilicet casum, quod fideicommissi eius condicio extitit: ipsius etiam legati persecutio danda erit fideicommissario, si nondum solutum est et condicio eius extitit, scilicet si fuerit fideicommissarius paratus cavere legatario.
What then, if both a legacy has been left under a condition and a fideicommissum, and no security is furnished for the fideicommissum? It will be most equitable that the fideicommissary, in the name of the legacy, receive security from the heir, if the legatee does not give him security—namely, on the understanding that he himself also give security to the legatee. But if the legatee has already received security from the heir, it must be decreed that out of that suretyship an action is to be given rather to the fideicommissary than to the legatee, in that case, to wit, that the condition of his fideicommissum has come to pass. The pursuit of the legacy itself is also to be given to the fideicommissary, if it has not yet been paid and its condition has come to pass, namely provided that the fideicommissary is ready to give security to the legatee.
Si pecuniae numeratae usus fructus legatus esset et in testamento cautum, ne eo nomine satis daretur, proprietas non est legata, sed legatario permittendum satisdare et usum fructum pecuniae habere: et propemodum in hac propositione nullae praetoris erunt partes, quia, nisi satisdetur, agi cum herede non poterit.
If the usufruct of counted money were bequeathed, and it were provided in the testament that under that title no surety be given, the ownership is not bequeathed, but the legatee must be permitted to give surety and to have the usufruct of the money: and well‑nigh in this case there will be no part for the praetor, because, unless surety is given, action cannot be brought against the heir.
Qui fideicommissi servandi causa in possessionem missus est, non prius de possessione decedere debet, quam ei fideicommissum solutum aut eo nomine satisdatum fuerit: nam quod si integra re fieret, in possessionem non mitteretur, id cum offeretur, discedere a possessione debet.
He who has been put into possession for the purpose of preserving a fideicommissum ought not to depart from possession before the fideicommissum has been paid to him or security given on that account: for if this could be done with the matter still intact, he would not be put into possession; when that is offered, he ought to withdraw from possession.
Si fideicommissorum vel legatorum servandorum causa missus in possessionem eam rem teneas, quae mihi per fideicommissum relicta esset, aequius est me eam habere, cui ea ipsa relicta est, quam te, qui alterius fideicommissi nomine ingressus in eam esses. nam et si mihi sub condicione legatum est et tu medio tempore in possessionem eius factus fueris legatorum servandorum causa, deinde condicio impleta esset, non denegabitur mihi eius rei integra persecutio. sic enim et si statuliberum ex eadem causa possidere coepisset, impleta condicione iustam libertatem eius impedire non potest.
If for the sake of preserving fideicommissa or legacies you have been sent into possession and you hold that thing which had been left to me by a fideicommissum, it is more equitable that I, to whom that very thing was left, should have it, rather than you, who had entered upon it in the name of another’s fideicommissum. For also if a legacy has been bequeathed to me under a condition, and you in the meantime have been put into possession of it for the sake of preserving legacies, then when the condition has been fulfilled, an unimpaired pursuit of that thing will not be denied to me. For thus also, if a statuliber (a slave to be free on condition) had begun to possess from the same cause, the fulfillment of the condition cannot impede his just freedom.
Municipiis fideicommissum relinqui posse dubium non est. sed si non caveatur, adversus municipes quidem non dubitavimus ex hoc edicto iri in possessionem posse: ipsos vero municipes, si his non caveatur, non idem adsecuturos: sed extraordinario remedio opus erit, videlicet ut decreto praetoris actor eorum in possessionem mittatur.
That a fideicommiss may be left to municipalities is not in doubt. But if security is not furnished, we have not hesitated to hold that under this edict it is possible to be put into possession against the municipal citizens; the municipal citizens themselves, however, if security is not furnished to them, will not achieve the same, but an extraordinary remedy will be needed—namely, that by decree of the praetor their actor be sent into possession.
Quamvis minima res legata sit vel per fideicommissum relicta, tamen, si non solvatur ab herede vel eo nomine caveatur, cum caveri oporteat, in possessionem omnium bonorum, quae ex ea hereditate sunt, legatarium sive fideicommissarium praetor legatorum servandorum causa mittit.
Although even the smallest thing may have been bequeathed or left by fideicommissum, nevertheless, if it is not discharged by the heir or security under that head is not furnished, when security ought to be furnished, the praetor, for the sake of preserving legacies, puts the legatee or the fideicommissary into possession of all the goods which are from that estate.
Interdum licet dolo malo fecerit heres, quo minus res in causa hereditaria maneant, non poterit in possessionem earum legatarius mitti, veluti si locum religiosum fecerit aut quid publice consecraverit permissu scilicet imperatoris aut aliquem non in fraudem creditoris manumiserit.
Sometimes, although the heir has acted with malicious deceit, so that the things do not remain in the hereditary estate, the legatee cannot be sent into possession of them; for example, if he has made a place religious, or has publicly consecrated something by the emperor’s permission, or has manumitted someone not in fraud of a creditor.
. . . . . . . . . . si filio qui in potestate est a patre herede instituto legata data sunt, ad satisdationem pater a filio compelli non potest: sed si male administrat, curator constituendus est rerum filio relictarum ita, ut reditus earum utrique praestet: aut si pecuniae summa legata est, princeps adeundus est.
. . . . . . . . . . if legacies have been given to a son who is in paternal power, by a father instituted as heir, the father cannot be compelled by the son to provide security (satisdation): but if he administers badly, a curator must be appointed for the things left to the son, in such a way that he render their revenues to both: or, if a sum of money has been bequeathed, the emperor must be approached.