[CELSUS libro sexto decimo digestorum. ] §28.5.60.prLiber homo cum tibi seruiret, heres institutus iussu tuo adiit.
[CELSUS, from the sixteenth book of the Digests.] When a free man, while serving you as a slave, was instituted heir, he accepted the inheritance by your order.
Trebatius esse eum heredem: Labeo tunc non esse heredem, si necessitate id fecerit, non quod alioquin uellet obligari.
Trebatius holds that he is the heir; Labeo holds that he is not the heir in that case, if he did it out of necessity, and not because he otherwise wished to be bound.
§28.5.60.1Si quis ita heredem instituerit: 'Titius qua ex parte mihi socius est in uectigali salinarum, pro ea parte mihi heres esto', quidam putant, si asse descripto id adiectum sit, ut maxime socius fuerit Titius, non esse heredem, sed si qua pars uacua relicta fuerit, ex ea heredem esse.
If anyone has instituted an heir as follows: "Let Titius be my heir for that share in which he is my partner in the salt-tax," some think that if this was added after the whole estate (as) had been fully apportioned, Titius, however much he was a partner, is not the heir, but if any part was left vacant, he is the heir for that part.
quod totum et ineptum et uitiosum est: quid enim uetat asse descripto utiliter Titium ex parte forte quarta, ex qua socius erat, heredem institutum esse? '
But all of this is both foolish and erroneous; for what prevents Titius, even if the whole estate has been apportioned, from being validly instituted heir for, say, a fourth share, in which he was a partner?
§28.5.60.2Titius heres esto: Seius et Maeuius heredes sunto'. uerum est quod Proculo placet duos semisses esse, quorum alter coniunctim duobus datur.
"Let Titius be heir; let Seius and Maevius be heirs." It is true, as Proculus pleases, that there are two halves (semisses), one of which is given jointly to the two.
§28.5.60.3Cum quis ex institutis, qui non cum aliquo coniunctim institutus sit, heres non est, pars eius omnibus pro portionibus hereditariis adcrescit, neque refert, primo loco quis institutus an alicui substitutus heres sit.
When one of those instituted, who was not instituted jointly with anyone, does not become heir, his share accrues to all the others in proportion to their hereditary shares; and it makes no difference whether someone was instituted in the first place or as a substitute for another.
§28.5.60.4Si heres institutus scribendi testamenti tempore ciuis Romanus fuit, deinde ei aqua et igni interdictum est, heres fit, si intra illud tempus quo testator decessit redierit aut, si sub condicione heres institutus est, quo tempore condicio exsistit.
If an instituted heir was a Roman citizen at the time the will was written, and was subsequently interdicted from water and fire, he becomes heir if he returns within the time the testator dies, or, if he was instituted under a condition, at the time the condition is fulfilled.
idem et in legatis et in bonorum possessionibus. '
The same applies to legacies and to the possessions of goods.
§28.5.60.5Titius ex semisse heres esto: Seius ex quadrante heres esto: Titius si in Capitolium ascenderit, ex alio quadrante heres esto'. antequam Capitolium ascendat si pro herede gerat, ex semisse heres erit, si Capitolium ascenderit, et ex quadrante heres erit nec erit ei necesse pro herede gerere quippe iam heredi.
"Let Titius be heir to a half; let Seius be heir to a quarter; if Titius ascends the Capitol, let him be heir to another quarter." If, before he ascends the Capitol, he acts as heir, he will be heir to a half; if he ascends the Capitol, he will also be heir to the other quarter, and it will not be necessary for him to act as heir again, since he is already an heir.
§28.5.60.6Si ita scriptum fuerit: 'Titius ex parte tertia, Maeuius ex parte tertia heredes sunto: Titius, si intra tertias kalendas nauis ex Asia uenerit, ex reliqua parte heres esto': uideamus, ne Titius statim ex semisse heres sit: nam duo heredes instituti sunt, sed Titius aut ex semisse aut ex besse: ita sextans utique erit in pendenti et, si condicio exstiterit, ex besse heres erit, si non exstiterit, ille sextans Maeuiio adcrescet.
If it was written as follows: "Let Titius be heir to a third part, and let Maevius be heir to a third part; let Titius, if a ship from Asia arrives within the third Kalends, be heir to the remaining part." Let us consider whether Titius is not immediately heir to a half; for two heirs were instituted, but Titius will be heir either to a half or to two-thirds. Thus, a sixth will certainly be in suspense, and if the condition is fulfilled, he will be heir to two-thirds; if it is not fulfilled, that sixth will accrue to Maevius.
sed si decesserit Titius, antequam condicio exsistat, deinde condicio exstiterit, tamen ille sextans non Titii heredi, sed Maeuiio adcrescet: nam cum adhuc dubium esset, Titio an Maeuiio is sextans datus esset, Titius decessit nec potest intellegi datus ei qui tempore dandi in rerum natura non fuit.
But if Titius dies before the condition is fulfilled, and the condition is subsequently fulfilled, nevertheless that sixth will accrue not to Titius's heir, but to Maevius; for while it was still doubtful whether that sixth had been given to Titius or to Maevius, Titius died, and it cannot be understood as given to someone who, at the time of giving, was not in existence.
§28.5.60.7Si Attius Titium et Maeuiium et Seium aequis partibus heredes instituit, Titius interim solus adiit hereditatem et Seium heredem instituit, poterit Seius Titii adire hereditatem, Attii uel adire uel omittere: sed Attio, antequam adeat uel omittat eius hereditatem, ex semisse heres erit.
If Attius instituted Titius, Maevius, and Seius heirs in equal shares, and Titius meanwhile alone accepted the inheritance and instituted Seius his heir, Seius will be able to accept Titius's inheritance and either accept or omit Attius's inheritance; but before he accepts or omits his inheritance, he will be heir to Attius for a half.
si adierit Seius Attii hereditatem, Titius ex triente dumtaxat heres erit et per hereditatem Titii triens dumtaxat ad Seium perueniet, alterum trientem ex sua institutione habebit.
If Seius accepts Attius's inheritance, Titius will be heir only to a third, and through Titius's inheritance only a third will come to Seius, and he will have another third from his own institution.
quid ergo si ab Attio Titius et Seius heredes instituti sunt, Titius adierit hereditatem, Titio Seius heres exstiterit? potestne Attii hereditatem omittere an necessario ei ex asse heres est? quippe cum alius nemo heres institutus est, quam is ipse qui ex aliqua parte iam heres est, perinde est, quasi unus heres per Titium institutus sit.
What then if Titius and Seius were instituted heirs by Attius, Titius accepted the inheritance, and Seius became Titius's heir? Can he omit Attius's inheritance, or is he necessarily heir to him for the whole (ex asse)? Indeed, since no other person is instituted heir than he himself who is already heir for some part, it is just as if a single heir had been instituted through Titius.