[ULPIANUS libro quarto disputationum. ] §28.5.35.prEx facto proponebatur: quidam duos heredes scripsisset, unum rerum prouincialium, alterum rerum Italicarum, et, cum merces in Italiam deuehere soleret, pecuniam misisset in prouinciam ad merces comparandas, quae comparatae sunt uel uiuo eo uel post mortem, nondum tamen in Italiam deuectae, quaerebatur, merces utrum ad eum pertineant, qui rerum Italicarum heres scriptus erat an uero ad eum, qui prouincialium.
[ULPIANUS, in the fourth book of disputations.] A case was proposed from the facts: a certain person had appointed two heirs, one for provincial property, the other for Italian property, and, since he was accustomed to transport merchandise to Italy, he had sent money to the province to purchase merchandise, which was purchased either during his lifetime or after his death, but not yet transported to Italy; it was asked whether the merchandise belonged to him who was appointed heir for the Italian property or to him who was appointed for the provincial property.
dicebam receptum esse rerum heredem institui posse nec esse inutilem institutionem, sed ita, ut officio iudicis familiae herciscundae cognoscentis contineatur nihil amplius eum, qui ex re institutus est, quam rem, ex qua heres scriptus est, consequi.
I said that it is accepted that an heir can be appointed for specific property and that the appointment is not invalid, but in such a way that it is included in the duty of the judge deciding the action for partition of an inheritance that he who was appointed from a specific thing should obtain nothing more than the thing for which he was appointed heir.
ita igitur res accipietur.
Thus, therefore, the matter will be understood.
uerbi gratia pone duos esse heredes institutos, unum ex fundo Corneliano, alterum ex fundo Liuiano, et fundorum alterum quidem facere dodrantem bonorum, alterum quadrantem: erunt quidem heredes ex aequis partibus, quasi sine partibus instituti, ueruntamen officio iudicis tenebuntur, ut unicuique eorum fundus qui relictus est adiudicetur uel adtribuatur.
For example, suppose two heirs are appointed, one from the Cornelian estate, the other from the Livian estate, and indeed one of the estates constitutes three-quarters of the assets, the other one-quarter: they will indeed be heirs in equal shares, as if appointed without shares; nevertheless, they will be bound by the duty of the judge, so that to each of them the estate which was left to him may be adjudicated or assigned.
§28.5.35.1Unde scio quaesitum, aeris alieni onus pro qua parte adgnosci debeat.
Hence, I know it was asked in what share the burden of the debt ought to be acknowledged.
et refert Papinianus, cuius sententiam ipse quoque probaui, pro hereditariis partibus eos adgnoscere aes alienum debere, hoc est pro semisse: fundos etenim uice praeceptionis accipiendos.
And Papinian reports—whose opinion I myself also approved—that they ought to acknowledge the debt in proportion to their hereditary shares, that is, for a half share; for the estates are to be accepted in place of a pre-legacy.
quare si forte tantum sit aes alienum, ut nihil detracto eo superesse possit, consequenter dicemus institutiones istas ex re factas nullius esse momenti: et si forte Falcidia interueniens recisionem esset legatorum factura, sic officio iudicis recidit praeceptiones istas, ut non plus quisque eorum habeat quam esset habiturus, si legatum accepisset uel aliud uel etiam praeceptiones.
Therefore, if by chance the debt is so great that nothing can remain after it is deducted, we shall consequently say that those appointments made from a specific thing are of no moment; and if by chance the Falcidian law, intervening, were to make a reduction of legacies, the duty of the judge likewise reduces those pre-legacies, so that neither of them has more than he would have had if he had received a legacy, either another one or even the pre-legacies.
quod si fuerit incertum, an Falcidia interuentura sit, rectissime probatur officio iudicis cautiones esse interponendas.
But if it is uncertain whether the Falcidian law will intervene, it is most correctly approved that security ought to be provided by the duty of the judge.
§28.5.35.2Cum haec ita sint, haec etiam institutio, de qua quaeritur, non est repellenda, si alius rerum prouincialium, alius rerum Italicarum heres fuerit scriptus, officioque iudicis adtribuentur singulis res quae adscriptae sunt, erunt tamen heredes ex aequis partibus, quia nulla pars adscripta est.
Since these things are so, this appointment also, about which there is a question, is not to be rejected, if one person has been appointed heir for provincial property and another for Italian property; and by the duty of the judge, the individual things that were assigned will be attributed to each, yet they will be heirs in equal shares, because no share was assigned.
quae res facit, ut, si forte in aliis facultatibus plus sit (in Italicis forte quam in prouincialibus), in aliis minus et aeris alieni ratio urguet, debeat dici imminutionem eandem fieri quam supra ostendimus: proinde et si aliis fuerint legata relicta, contributio admittenda erit.
This fact results in this: if by chance there is more in some resources (by chance in the Italian than in the provincial) and less in others, and the calculation of the debt presses, it must be said that the same reduction occurs as we showed above; accordingly, even if legacies have been left to others, contribution must be admitted.
§28.5.35.3Rerum autem Italicarum uel prouincialium significatione quae res accipiendae sint, uidendum est.
But what things are to be accepted by the term "Italian" or "provincial property" must be seen.
et facit quidem totum uoluntas defuncti: nam quid senserit, spectandum est.
And indeed, the intention of the deceased does everything, for what he meant must be regarded.
ueruntamen hoc intellegendum erit rerum Italicarum significatione eas contineri, quas perpetuo quis ibi habuerit atque ita disposuit, ut perpetuo haberet: ceteroquin si tempore in quo transtulit in alium locum, non ut ibi haberet, sed ut denuo ad pristinum locum reuocaret, neque augebit quo transtulit neque minuet unde transtulit: ut puta de Italico patrimonio quosdam seruos miserat in prouinciam, forte Galliam, ad exigendum debitum uel ad merces comparandas, recursuros, si comparassent: dubium non est, quin debeat dici ad Italicum patrimonium eos pertinere debere.
Nevertheless, it must be understood that by the term "Italian property" those things are contained which anyone permanently had there and so disposed of that he should permanently have them; otherwise, if at the time in which he transferred it to another place, not so that he should have it there, but so that he should recall it again to its pristine place, he will neither increase the place to which he transferred it nor diminish the place from which he transferred it. For instance, from the Italian patrimony he had sent certain slaves to a province, say Gaul, to collect a debt or to purchase merchandise, intending to return if they had purchased them; there is no doubt that it ought to be said that they ought to belong to the Italian patrimony.
ut est apud Mucium relatum, cum fundus erat legatus uel cum instrumento uel cum his quae ibi sunt: agasonem enim missum in uillam a patre familias non pertinere ad fundi legatum Mucius ait, quia non idcirco illo erat missus, ut ibi esset.
As is reported in Mucius, when an estate was bequeathed either with its equipment or with those things which are there: for Mucius says that a groom sent to the villa by the father of the family does not belong to the bequest of the estate, because he was not sent there for the purpose of being there.
proinde si seruus fuerit missus in uillam interim illic futurus, quia dominum offenderat, quasi ad tempus relegatus, responsum est eum ad uillae legatum non pertinere.
Likewise, if a slave was sent to the villa to be there in the meantime because he had offended his master, as if relegated for a time, it was answered that he does not belong to the bequest of the villa.
quare ne serui quidem, qui operari in agro consuerunt, qui in alios agros reuertebantur, et quasi ab alio commodati in ea sunt condicione, ut ad legatum pertineant, quia non ita in agro fuerant, ut ei agro uiderentur destinati.
Therefore, not even those slaves who were accustomed to work in the field, who returned to other fields, and were in such a condition as if lent by another, belong to the bequest, because they had not been in the field in such a way as to seem destined for that field.
quae res in proposito quoque suggerit, ut Italicarum rerum esse credantur hae res, quas in Italia esse testator uoluit.
This matter also suggests in the present case that those things are believed to belong to Italian property which the testator wished to be in Italy.
§28.5.35.4Proinde et si pecuniam misit in prouinciam ad merces comparandas et necdum comparatae sint, dico pecuniam, quae idcirco missa est, ut per eam merces in Italiam adueherentur, in Italico patrimonio adiungendam: nam et si dedisset in prouincia de pecuniis, quas in Italia exercebat, ituras et redituras, dicendum est hanc quoque Italici patrimonii esse.
Accordingly, even if he sent money to the province to purchase merchandise and it is not yet purchased, I say that the money, which was sent for the purpose that merchandise might be transported to Italy by means of it, is to be joined to the Italian patrimony; for even if he had given in the province from the money which he employed in Italy, to go and return, it must be said that this also belongs to the Italian patrimony.
§28.5.35.5Rationem igitur efficere dici, ut merces quoque istae, quae comparatae sunt ut Romam ueherentur, siue prouectae sunt eo uiuo siue nondum, et siue scit siue ignorauit, ad eum heredem pertinere, cui Italicae res sunt adscriptae.
Reason therefore brings about that it is said that those merchandises also, which were purchased to be carried to Rome, whether they were carried during his lifetime or not yet, and whether he knew or was ignorant of it, belong to that heir to whom the Italian property was assigned.