[IDEM libro octauo institutionum. ] §30.1.114.11Diui Seuerus et Antoninus rescripserunt eum, qui rogatus est sub condicione fratris sui filiis restituere, ante diem fideicommissi cedentem ne quidem ex uoluntate eorum posse restituere his in potestate patris agentibus, cum possit die fideicommissi cedente sui iuris constitutis ipsis debere restitui vel, si aliquis ex his ante decesserit, non omnibus.
The Divine Severus and Antoninus rescripserunt that he who has been requested under a condition to restore to the sons of his brother cannot, before the day when the right to the fideicommissum vests, restore to them even with their consent, while they are under the power of their father; since it may happen that on the vesting day of the fideicommissum, they having become sui iuris, the property ought to be restored to themselves, or, if any of them should die before that time, not to all of them.
§30.1.114.12Idem principes rescripserunt filiis ante diem fideicommissi uenientem restitui hereditatem maternam necesse non esse, sed praestare heredem posse uolgarem cautionem aut, si praestare eam non poterit, mitti liberos in possessionem fideicommissi seruandi causa, ut pro pignore, non ut pro dominis possideant uel alienandi ius, sed ut pignus habeant, ut filius per patrem fructus consequatur et seruus per dominum.
The same emperors rescripserunt that it is not necessary for a maternal inheritance to be restored to children before the arrival of the day of the fideicommissum, but the heir can provide the usual security; or, if he cannot provide it, the children are to be placed in possession for the purpose of preserving the fideicommissum, so that they may possess it as a pledge, not as owners, nor with the right of alienation, but so that they may have a pledge, in order that a son may obtain the fruits through his father, and a slave through his master.
§30.1.114.13Cum erit rogatus, si sine liberis decesserit, per fideicommissum restituere, condicio defecisse uidebitur, si patri superuixerint liberi, nec quaeritur, an heredes exstiterint.
When one has been requested to restore by way of fideicommissum "if he should die without children," the condition will be deemed to have failed if the children survive their father, and it is not asked whether they became his heirs.
§30.1.114.14Diui Seuerus et Antoninus rescripserunt eos, qui testamento uetant quid alienari nec causam exprimunt, propter quam id fieri uelint, nisi inuenitur persona, cuius respectu hoc a testatore dispositum est, nullius esse momenti scripturam, quasi nudum praeceptum reliquerint, quia talem legem testamento non possunt dicere: quod si liberis aut posteris aut libertis aut heredibus aut aliis quibusdam personis consulentes eiusmodi uoluntatem significarent, eam seruandam esse, sed haec neque creditoribus neque fisco fraudi esse: nam si heredis propter testatoris creditores bona uenierunt, fortunam communem fideicommissarii quoque sequuntur.
The Divine Severus and Antoninus rescripserunt that where testators forbid anything to be alienated in a will and do not express the reason for which they wish this to be done, unless a person is found in respect of whom this provision was made by the testator, the writing is of no effect, as if they had left a bare precept, because they cannot lay down such a law in a will; but if, in providing for their children, descendants, freedmen, heirs, or any other certain persons, they should indicate such a wish, it must be observed, but this does not prejudice either creditors or the treasury; for if the property of the heir is sold on account of the creditors of the testator, the beneficiaries of the fideicommissum also follow the common fortune.
§30.1.114.15Cum pater filio herede instituto, ex quo tres habuerat nepotes, fideicommisit, ne fundum alienaret et ut in familia relinqueret, et filius decedens duos heredes instituit, tertium exheredauit, eum fundum extraneo legauit, diui Seuerus et Antoninus rescripserunt uerum esse non paruisse uoluntati defuncti filium.
When a father, having appointed as heir his son from whom he had three grandsons, charged him with a fideicommissum not to alienate a tract of land and to leave it in the family, and the son, on dying, appointed two heirs, disinherited the third, and bequeathed the land to a stranger, the Divine Severus and Antoninus rescripserunt that it was true that the son had not complied with the will of the deceased.
§30.1.114.16Sed et si, cum duos exheredauit, unum heredem instituit, fundum extraneo legauit, ut putat Marcellus posse exheredatos petere fideicommissum.
But also if, while disinheriting two, he appointed one as heir, and bequeathed the land to a stranger, Marcellus thinks that those disinherited can claim the fideicommissum.
quod euenit et si uiuus filios emancipasset et postea fundum alienasset.
This also happens if he had emancipated his sons during his lifetime and afterwards had alienated the land.
§30.1.114.17Sed si omnes filii heredes instituti sint ex disparibus partibus, non possunt petere fideicommissum ex minore parte scripti, ut uiriles, non hereditarias partes in eo habeant: uerum est enim in familia reliquisse, licet uni reliquisset.
But if all the sons have been appointed heirs in unequal shares, those appointed to the smaller shares cannot claim the fideicommissum in order to have equal, rather than hereditary, shares in it; for it is true that he left it in the family, even though he left it to only one.
§30.1.114.18Item si unum heredem instituisset nec quicquam legasset, exheredati nihil interim, quamdiu in familia res est, petere possunt.
Likewise, if he had appointed only one as heir and had not bequeathed anything, those disinherited can claim nothing in the meantime, so long as the property remains in the family.
§30.1.114.19Interdum etiam cum lucro heredis moritur seruus legatus uel per fideicommissum relictus, ueluti si alienus uel licet proprius, pluribus tamen separatim ita relictus, ut unusquisque in solidum capit, scilicet si sine culpa heredis mortuus sit.
Sometimes also a slave bequeathed or left by way of fideicommissum dies to the profit of the heir, as, for example, if he belongs to another, or even if he is the testator's own, yet has been left to several persons separately in such a way that each takes the whole, provided, of course, that he died without fault of the heir.