[PAULUS libro uicesimo tertio quaestionum. ] §28.5.85.prSi seruo fideicommissa data sit libertas, heres hunc eundem seruum cum libertate heredem reliquisset, quaesitum est, an necessarius fiat heres.
[PAULUS, in the twenty-third book of Questions.] If a trust-bequest of freedom had been given to a slave, and the heir had left this same slave as heir along with freedom, it was asked whether he becomes a necessary heir.
et humanius est et magis aequitatis ratione subnixum non fieri necessarium: qui enim etiam inuito defuncto poterat libertatem extorquere, is liber esse iussus non magnum uidetur beneficium a defuncto consequi, immo nihil commodi sensisse, sed magis debitam sibi accepisse libertatem.
And it is both more humane and more supported by the principle of equity that he does not become a necessary heir; for he who could have extorted his freedom even against the will of the deceased is not considered to obtain a great benefit from the deceased by being ordered to be free, but rather to have felt no advantage, but to have received the freedom due to him.
§28.5.85.1Idem probandum erit et in illo seruo, quem testator ea lege emerat, ut manumitteret, si heres fuerit institutus: nam et hic seposito beneficio testatoris proprio iure poterit ad libertatem peruenire ex constitutione diui Marci.
The same must be approved also in the case of that slave whom the testator had bought under the condition that he should manumit him, if he has been appointed heir; for he too, setting aside the benefit of the testator, will be able to attain freedom by his own right under the constitution of the deified Marcus.
§28.5.85.2Idem et in eo, qui propria sua data pecunia emptus est ab aliquo: nam et hic poterit ab ipso testatore libertatem extorquere.
The same also applies to him who was bought from someone with his own money paid; for he too will be able to extort freedom from the testator himself.