[IDEM libro octauo institutionum. ] §30.1.114.prFilius familias miles uel ueteranus licet sine testamento decedat, potest fideicommittere a patre, quia etiam testamentum facere potest.
[THE SAME, in the eighth book of Institutes.] A soldier or veteran who is a filius familias, although he dies intestate, can charge his father with a fideicommissum, because he is also able to make a will.
§30.1.114.1Si libertus ab intestato decesserit, a patrono potest usque ad partem debitam fideicommissum relinquere, quia, si testamentum faceret, licebat ei partem debitam solam relinquere.
If a freedman dies intestate, he can leave a fideicommissum charged upon his patron up to the due share, because, if he were to make a will, he would be permitted to leave only the due share.
§30.1.114.2Qui intestato decedit et scit bona sua ad fiscum peruentura uacantia, fidei fisci committere potest.
Anyone who dies intestate and knows that his property will go to the treasury as unclaimed property can charge the treasury with a fideicommissum.
§30.1.114.3Apud Marcellum libro duodecimo digestorum talis quaestio agitatur.
In Marcellus, in the twelfth book of the Digests, the following question is discussed.
quidam ab eo cui fundum legauerat fideicommisserat, ut eum fundum post mortem suam restitueret Sempronio: eiusdem legatarii fidei commisserat, ut Titio daret centum: quaeritur quid iuris sit.
A certain person had charged a legatee, to whom he had bequeathed a tract of land, with a fideicommissum to restore that land to Sempronius after his death; and he had also charged the same legatee with a fideicommissum to give one hundred to Titius. It is asked what the law is.
et ait Marcellus, si Titio testator centum ex fructibus, quos uiuus legatarius perceperit, reliquerit et legatarius post tantum temporis decessisset, ut ex fructibus centum fierent, Titium centum accepturum: si post acceptum legatum confestim decessisset legatarius, Titii fideicommissum extingui, quia placet non plus posse rogari quem restituere quam quantum ei relictum est.
And Marcellus says: if the testator bequeathed the one hundred to Titius out of the fruits which the legatee gathered while alive, and the legatee died after so much time that one hundred was produced from the fruits, Titius will receive the hundred; but if the legatee died immediately after receiving the legacy, the fideicommissum of Titius is extinguished, because it is accepted that no one can be requested to restore more than what was left to him.
§30.1.114.4Sed si Titii fideicommissum non est in tempus mortis legatarii collatum, ait Marcellus confestim fideicommissum Titio dandum, sed cautione exacta quanto amplius ceperit reddi: quam cautionem ita committi, si prius legatarius decesserit, quam ex fructibus centum perciperet.
But if the fideicommissum of Titius was not deferred to the time of the legatee's death, Marcellus says that the fideicommissum must be given to Titius immediately, but only after exacting security that whatever he receives in excess of what was left will be returned; which security is forfeited if the legatee dies before he can collect one hundred from the fruits.
sed uix est, ut legatarium ex reditibus uoluit ante dare, quam fructus legatarius percepisset: certe erit legatarius audiendus, si uelit totum fundum praestare, si de restituendo cauetur: absurdum enim est de suo eum praestare centum, maxime si fundus centum uel non multo pluris est: quo iure utimur.
But it is hardly likely that the testator wished the legatee to pay out of the revenues before the legatee had actually gathered the fruits. Certainly, the legatee must be heard if he wishes to surrender the entire land, provided that security is given for its restoration; for it is absurd that he should pay one hundred out of his own pocket, especially if the land is worth one hundred or not much more; and this is the law which we observe.
§30.1.114.5Si quid alicui licite fuerit relictum uel ius aliud, quod ipse quidem propter corporis sui uitium uel propter qualitatem relicti uel aliam quamcumque probabilem causam habere non potuit, alius tamen hoc habere potuit: quanti solet comparari, tantam aestimationem accipiet.
If anything or any other right has been lawfully left to someone, which he himself could not hold on account of a physical defect, or on account of the quality of what was left, or for any other plausible reason, but which another person could hold, he shall receive its estimated value, namely, for how much it is usually purchased.
§30.1.114.6Ut quis heredem instituat aliquem, rogari non potest: plane senatus censuit perinde habendum, atque si rogasset hereditatem restitui.
No one can be requested to appoint someone as his heir; however, the senate resolved that it should be treated exactly as if he had requested the inheritance to be restored.
§30.1.114.7Quid ergo, si heres post mortem suam rogatus fuerit hereditatis suae partem quartam restituere? uerius esse existimo, quod et Scaeuola notat et Papirius Fronto scribit, ualere fideicommissum, atque si de hereditate sua restituenda rogatus esset: et eatenus restituenda est, quatenus hereditas testatoris patitur, secundum uolgarem formam iuris.
What then, if an heir has been requested to restore a fourth part of his inheritance after his death? I think it is more correct, as Scaevola notes and Papirius Fronto writes, that the fideicommissum is valid, just as if he had been requested to restore his inheritance; and it is to be restored to such an extent as the inheritance of the testator allows, according to the common form of law.
§30.1.114.8Sed si liberos suos emancipare rogatus fuerit, non cogitur hoc facere: potestas enim patria inaestimabilis est.
But if he has been requested to emancipate his children, he is not compelled to do this; for paternal power is beyond estimation.
§30.1.114.9Aedes destruendae neque legari neque per fideicommissum relinqui possunt: et ita senatus censuit.
Buildings which are to be demolished can neither be bequeathed nor left by way of fideicommissum; and the senate so resolved.
§30.1.114.10Si fideicommissum relictum fuerit seruo alieno sine libertate et ad libertatem peruenerit, dicendum est posse eum admitti ad capiendum.
If a fideicommissum has been left to another's slave without the gift of freedom, and he subsequently attains freedom, it must be held that he can be admitted to receive it.