[AFRICANUS libro secundo quaestionum. ] §28.5.47.prQuidam cum filium familias heredem instituere uellet, ne ad patrem eius ex ea hereditate quicquam perueniret, uoluntatem suam exposuit filio: filius cum patris offensam uereretur, petit a testatore, ne sub condicione 'si a patre emancipatus esset' heredem eum institueret et impetrauit ab eo, ut amicum suum heredem institueret: atque ita testamento amicus filii ignotus testatori heres institutus est nec quicquam ab eo petitum est.
[AFRICANUS, in the second book of Questions.] A certain person, wishing to appoint a son under paternal power as his heir, in order that nothing from that inheritance should reach his father, explained his intention to the son. The son, fearing to offend his father, begged the testator not to appoint him heir under the condition "if he should be emancipated by his father," and prevailed upon him to appoint a friend of his as heir; and thus, a friend of the son, who was unknown to the testator, was appointed heir in the will, and nothing was requested of him.
quaerebatur, si ille amicus aut adire nollet aut aditam nollet restituere hereditatem, an fideicommissum ab eo peti possit aut aliqua actio aduersus eum esset et utrum patri an filio competeret.
It was asked whether, if that friend should be unwilling to enter upon the inheritance, or, having entered, should be unwilling to restore it, a fideicommissum could be claimed from him, or whether there was any action against him, and whether it belonged to the father or the son.
respondit, etiamsi manifestum sit scriptum heredem fidem suam interposuisse, non tamen aliter ab eo fideicommissum peti posse quam si et ipsum testatorem fidem eius secutum esse probaretur.
He replied that, even if it were clear that the appointed heir had pledged his faith, a fideicommissum could nevertheless not be claimed from him otherwise than if it were proved that the testator himself had also relied on his faith.
si tamen, cum a filio familias rogaretur, amicus et aditurum se hereditatem recepisset et restituturum patri familias facto, non absurde dici possit mandati actionem futuram: et eam actionem patri inutilem fore, quia non sit ex bona fide id ei restitui, quod testator ad eum peruenire noluerit: sed nec filio uulgarem competituram, uerum utilem, sicuti dare placeret ei, qui, cum filius familias esset, pro aliquo fideiussisset ac pater familias factus soluisset.
If, however, when requested by the son, the friend had undertaken both that he would enter upon the inheritance and that he would restore it when the son became a paterfamilias, it could not absurdly be said that an action of mandate would lie; and that this action would be ineffective for the father, because it is not in accordance with good faith that that should be restored to him which the testator did not wish to reach him; but neither would the ordinary action belong to the son, but rather an analogous action, just as it was agreed to grant it to one who, when he was a son under power, had become surety for someone and, having become a paterfamilias, had paid.