[MARCELLUS libro singulari responsorum. ] §30.1.123.prLucius Titius cum duos filios heredes relinqueret, testamento ita cauit: 'quisquis mihi liberorum meorum heres erit, eius fidei committo, ut si quis ex is sine liberis decedat, hereditatis meae bessem cum morietur fratribus suis restituat': frater decedens fratrem suum ex dodrante fecit heredem: quaero, an fideicommisso satisfecerit.
[MARCELLUS, Responsa, Single Book] When Lucius Titius was leaving his two sons as heirs, he provided as follows in his testament: "Whoever of my children shall be my heir, I commit to his trust that, if any of them should die without children, he shall, when he dies, restore eight-twelfths of my inheritance to his brothers." The brother, upon dying, made his brother heir to the extent of nine-twelfths. I ask whether he has satisfied the trust.
Marcellus respondit id, quod ex testamento Lucii Titii fratri testator debuisset, pro ea parte, qua alius heres exstitisset, peti posse, nisi diuersum sensisse eum probaretur: nam paruum inter hanc speciem interest et cum alias creditor debitori suo exstitit heres.
Marcellus answered that what the testator owed to his brother under the testament of Lucius Titius can be claimed in proportion to the share for which another person became heir, unless it were proved that he had intended otherwise; for there is little difference between this case and when on other occasions a creditor becomes heir to his debtor.
sed plane audiendus erit coheres, si probare possit ea mente testatorem heredem instituisse fratrem suum, ut contentus institutione fideicommisso abstinere deberet.
But clearly the co-heir must be heard if he can prove that the testator appointed his brother as heir with the intention that, being content with the appointment, he ought to abstain from the trust.
§30.1.123.1In testamento ita scriptum est: 'Gaio Seio illud et illud heres meus dato.
In a testament it was written as follows: "Let my heir give such-and-such to Gaius Seius.
et te rogo, Sei, fideique tuae mando, uti ea omnia quae supra scripta sunt reddas sine ulla mora ei redderes ipse'. quaero, an tacitum fideicommissum sit, cum personam testator, cui restitui uellet, testamento non significauerit.
And I ask you, Seius, and commit to your trust, that you restore all those things which are written above without any delay, and that you yourself return them to him." I ask whether this is a tacit trust, since the testator did not indicate in the testament the person to whom he wished the property to be restored.
Marcellus respondit: si in fraudem legum tacitam fidem Seius accommodasset, nihil ei prodesse potest, si his uerbis pater familias cum eo locutus esset: non enim ideo circumuenisse minus leges existimandus est, cum perinde incertum sit cui prospectum uoluerit.
Marcellus answered: if Seius had lent his tacit trust in fraud of the laws, it can be of no benefit to him even if the head of the family had spoken to him in these words; for he is not on that account to be thought any the less to have circumvented the laws, since it is equally uncertain for whose benefit he wished to provide.