[SCAEUOLA libro primo responsorum. ] §10.2.39.prEx parte heres institutus causam de totis bonis, quam omnes heredes patiebantur ob inultam mortem, suscepit et optinuit: coheres ab eo partem suam petebat nec partem sumptuum factorum in litem praestare uolebat: quaesitum est, an doli exceptio noceret.
[SCAEUOLA, from the first book of Responses.] A person appointed heir to a share undertook and won a lawsuit concerning the whole estate, which all the heirs were facing because the death had remained unavenged. A co-heir demanded his own share from him, but refused to pay his portion of the expenses incurred in the litigation. It was asked whether the plea of fraud would bar his claim.
respondi, si idcirco amplius erogatum esset, quod ipsius quoque causa defensa esset, habendam rationem sumptuum.
I answered that, if a larger sum had been expended because the co-heir's interest was also defended, account should be taken of the expenses.
sed et si omiserit doli exceptionem, agere potest de recipienda portione sumptuum.
But even if he should omit the plea of fraud, he can bring an action to recover his portion of the expenses.
§10.2.39.1Intestato moriens codicillis praedia sua omnia et patrimonium inter liberos diuisit ita, ut longe amplius filio quam filiae relinqueret: quaesitum est, an soror fratri dotem conferre deberet.
A person dying intestate divided by codicil all his estates and patrimony among his children in such a way that he left far more to his son than to his daughter. It was asked whether the sister ought to hotchpot (collate) her dowry for her brother.
respondi secundum ea quae proponerentur, si nihil indiuisum reliquisset, rectius dici ex uoluntate defuncti collationem dotis cessare.
I answered that, according to the facts presented, if he left nothing undivided, it is more correct to say that the collation of the dowry ceases in accordance with the will of the deceased.
§10.2.39.2Seruo libertatem dedit qui erat annorum quindecim, 'cum erit annorum triginta', eidem ex die mortis suae quoad uiueret cibariorum nomine denarios denos, uestiarii denarios uiginti quinque praestari se uelle significauit: quaesitum est, an utile esset cibariorum et uestiariorum legatum, cum Stichus ante libertatis tempus decesserit, et an, si non est utile, heres qui praestiterat a coherede repetere possit, apud quem morabatur.
A person granted freedom to a slave who was fifteen years old 'when he shall be thirty years old', and indicated that he wished ten denarii on account of provisions and twenty-five denarii for clothing to be paid to him from the day of his death as long as he lived. It was asked whether the legacy of provisions and clothing was valid, since Stichus died before the time of his freedom, and if it was not valid, whether the heir who had paid it could recover it from the co-heir with whom the slave was staying.
respondi non quidem debita fuisse, sed si id, quod datum est, in alimenta consumptum sit, repeti non posse.
I answered that, although indeed these were not due, if what was given has been consumed in maintenance, it cannot be recovered.
§10.2.39.3Filius rei publicae debita, quae post mortem patris contraxit, fratri suo pro parte hereditaria reputare non potest, si non in omnibus socii essent, licet hereditatem paternam communem haberent et pater pro altero filio in patria magistratu functus decessit.
A son cannot charge to his brother, in proportion to his hereditary share, debts contracted to the state after the death of his father, if they were not partners in all things, even though they held the paternal inheritance in common, and their father died after having filled a magistracy in his native city on behalf of the other son.
§10.2.39.4Duos filios scripsit heredes et certos homines unicuique eorum praelegauit, in quibus uni Stephanum cum peculio: is uiuo testatore manumissus decessit, deinde pater: quaesitum est, an id, quod in peculio habuit Stephanus priusquam manumitteretur, ad utrosque filios pertineat an uero ad eum solum, cui cum peculio praelegatus fuerat.
A testator appointed his two sons as heirs and pre-legated certain slaves to each of them, among whom he pre-legated Stephanus with his peculium to one of them. This slave, having been manumitted, died during the lifetime of the testator, and then the father died. It was asked whether what Stephanus had in his peculium before he was manumitted belongs to both sons, or rather to him alone to whom he had been pre-legated with his peculium.
respondi secundum ea quae proponerentur ad utrosque.
I answered that, according to the facts presented, it belongs to both.
§10.2.39.5Pater inter filios diuisit bona et eam diuisionem testamento confirmauit et cauit, ut aes alienum, quod unusquisque eorum habet siue habebit, solus sustineret: postea unus ex filiis cum pecuniam mutuaretur, interuenit pater eiusque consensu praedia quae filio adsignauerat pignori data sunt: post mortem patris eadem praedia idem filius possedit, usuras soluit: quaero, an familiae erciscundae iudicio, si praedia pignori data distrahat creditor, aliquid ei a coherede praestandum sit.
A father divided his property among his sons, confirmed that division by his will, and provided that each of them should alone sustain the debts which he had or should have. Afterwards, when one of the sons was borrowing money, the father intervened, and with his consent the estates which he had assigned to the son were given in pledge. After the death of the father, the same son possessed the same estates and paid interest. I ask whether, if the creditor should sell the pledged estates, any compensation must be made to him by his co-heir in the action for the partition of an inheritance.
respondi secundum ea quae proponerentur non esse praestandum.
I answered that, according to the facts presented, no compensation should be made.