[ULPIANUS libro quarto disputationum. ] §29.1.19.prQuaerebatur, si miles, qui habebat iam factum testamentum, aliud fecisset et in eo comprehendisset se fidei heredis committere, ut priores tabulae ualerent, quid iuris esset.
[ULPIANUS, in his fourth book of Discussions.] The question was raised, what the law would be if a soldier, who had already made a will, had made another, and had included in it a provision that he committed it to the good faith of his heir that the former tablets should remain valid.
dicebam: militi licet plura testamenta facere, sed siue simul fecerit siue separatim, utique ualebunt, si hoc specialiter expresserit, nec superius per inferius rumpetur, cum et ex parte heredem instituere possit, hoc est ex parte testato, ex parte intestato decedere.
I used to say: a soldier is permitted to make several wills, and whether he does so at the same time or separately, they will certainly be valid if he has specially expressed this, nor will a prior one be revoked by a subsequent one, since he can also appoint an heir in part, that is, die partly testate and partly intestate.
quin immo et si codicillos ante fecerat, poterit eos per testamentum sequens cauendo in potestatem institutionis redigere et efficere directam institutionem, quae erat precaria.
Nay, even if he had previously made codicils, he will be able, by making provision in a subsequent will, to reduce them to the power of an institution and to effect a direct institution of what had been precatory.
secundum haec in proposito referebam, si hoc animo fuerit miles, ut ualeret prius factum testamentum, id quod cauit ualere oportere ac per hoc effici, ut duo testamenta sint.
In accordance with these principles, I reported in the case proposed that, if the soldier had this intention, that the previously made will should be valid, what he provided ought to be valid, and thereby it is effected that there are two wills.
sed in proposito cum fidei heredis committatur, ut ualeat prius testamentum, apparet eum non ipso iure ualere uoluisse, sed magis per fideicommissum, id est in causam fideicommissi et codicillorum uim prioris testamenti conuertisse.
But in the case proposed, since it is committed to the good faith of the heir that the prior will should be valid, it appears that he did not wish it to be valid by operation of law, but rather by way of trust, that is, he converted the force of the prior will into the status of a trust and of codicils.
§29.1.19.1Utrum autem totum testamentum in eam causam conuersum sit, hoc est et heredis institutio, an uero legata tantum et fideicommissa et libertates, quaeritur.
However, it is asked whether the entire will was converted into that status, that is, even the institution of the heir, or only the legacies, trusts, and grants of freedom.
sed mihi uidetur non solum cetera praeter institutionem heredis, sed et ipsam institutionem in causam fideicommissi uertisse, nisi aliud testatorem scripsisse probetur.
But it seems to me that he converted into the status of a trust not only the other provisions besides the institution of the heir, but also the institution itself, unless it is proved that the testator wrote otherwise.
§29.1.19.2Si quis a milite heres ad tempus scriptus esset et alius ex tempore, quaeritur, an posterior heres a priore relicta legata debet.
If someone was appointed heir by a soldier up to a certain time, and another from that time, it is asked whether the subsequent heir is liable for the legacies left by the prior one.
et arbitror hunc non debere, nisi alia uoluntas militis probetur.
And I am of the opinion that he is not liable, unless a different intention of the soldier is proved.