[ULPIANUS libro uicesimo secundo ad Sabinum. ] §30.1.47.prCum res legata est, si quidem propria fuit testatoris et copiam eius habet, heres moram facere non debet, sed eam praestare.
[ULPIANUS, Book 22 on Sabinus.] When a thing has been bequeathed, if indeed it was the testator's own and the heir has possession of it, the heir must not make delay, but must perform it.
sed si res alibi sit quam ubi petitur, primum quidem constat ibi esse praestandam, ubi relicta est, nisi alibi testator uoluit: nam si alibi uoluit, ibi praestanda est, ubi testator uoluit uel ubi uerisimile est eum uoluisse: et ita Iulianus scripsit tam in propriis quam in alienis legatis.
But if the thing is elsewhere than where it is demanded, it is first of all established that it must be performed where it was left, unless the testator wished otherwise; for if he wished otherwise, it must be performed where the testator wished or where it is probable that he wished; and Julian wrote thus both in legacies of one's own things and in those of other people's.
sed si alibi relicta est, alibi autem ab herede translata est dolo malo eius: nisi ibi praestetur ubi petitur, heres condemnabitur doli sui nomine: ceterum si sine dolo, ibi praestabitur, quo transtulit.
But if it was left in one place, but was transferred elsewhere by the bad malice of the heir: unless it is performed where it is demanded, the heir will be condemned on account of his malice; but if without malice, it will be performed where he transferred it.
§30.1.47.1Sed si id petatur quod pondere numero mensura continetur, si quidem certum corpus legatum est, ueluti frumentum ex illo horreo uel uinum ex apotheca illa, ibi praestabitur ubi relictum est, nisi alia mens fuit testantis: sin uero non fuit certa species, ibi erit praestaudum ubi petitur.
But if that is demanded which is contained by weight, number, or measure, if indeed a specific body was bequeathed, such as grain from that granary or wine from that cellar, it shall be performed where it was left, unless there was a different mind of the testator; but if indeed there was no specific species, it must be performed where it is demanded.
§30.1.47.2Itaque si Stichus sit legatus et culpa heredis non pareat, debebit aestimationem eius praestare: sed si culpa nulla interuenit, cauere heres debet de restitutione serui, non aestimationem praestare.
Therefore, if Stichus is bequeathed and by the fault of the heir he does not appear, he must perform his valuation; but if no fault intervened, the heir must give security for the return of the slave, not perform his valuation.
sed et si alienus seruus in fuga sit sine culpa heredis, idem dici potest: nam et in alieno culpa admitti potest: cauebit autem sic, ut, si fuerit adprehensus, aut ipse aut aestimatio praestetur: quod et in seruo ab hostibus capto constat.
But even if another's slave is in flight without the fault of the heir, the same can be said; for even in another's thing, fault can be admitted; moreover, he will give security in such a way that, if he is captured, either the slave himself or his valuation shall be performed, which is also established in the case of a slave captured by enemies.
§30.1.47.3Sed si Stichus aut Pamphilus legetur et alter ex his uel in fuga sit uel apud hostes, dicendum erit praesentem praestari aut absentis aestimationem: totiens enim electio est heredi committenda, quotiens moram non est facturus legatario.
But if Stichus or Pamphilus is bequeathed and one of them is either in flight or with the enemies, it must be said that either the one present must be performed or the valuation of the absent one; for the choice is to be committed to the heir only so often as he is not going to make delay for the legatee.
qua ratione placuit et, si alter decesserit, alterum omnimodo praestandum, fortassis uel mortui pretium.
For which reason it has also been accepted that, if one has died, the other must by all means be performed, or perhaps even the price of the dead one.
sed si ambo sint in fuga, non ita cauendum, ut, 'si in potestate ambo redirent', sed 'si uel alter', et 'uel ipsum uel absentis aestimationem praestandam'. §30.1.47.4Item si res aliena uel hereditaria sine culpa heredis perierit uel non compareat, nihil amplius quam cauere eum oportebit: sed si culpa heredis res perit, statim damnandus est.
But if both are in flight, security is not to be given in such a way as "if both should return to power," but "if even either one," and "either the slave himself or the valuation of the absent one is to be performed." Likewise, if another's thing or a thing belonging to the inheritance has perished or does not appear without the fault of the heir, it will be necessary for him to do nothing more than give security; but if the thing perishes by the fault of the heir, he must be condemned immediately.
§30.1.47.5Culpa autem qualiter sit aestimanda, uideamus, an non solum ea quae dolo proxima sit, uerum etiam quae leuis est? an numquid et diligentia quoque exigenda est ab herede? quod uerius est.
Let us see, however, how fault is to be estimated: whether not only that which is closest to malice, but also that which is light? Or is even diligence also to be required from the heir? Which is more true.
§30.1.47.6Item si fundus chasmate perierit, Labeo ait utique aestimationem non deberi: quod ita uerum est, si non post moram factam id euenerit: potuit enim eum acceptum legatarius uendere.
Likewise, if land has perished by a chasm, Labeo says that certainly its valuation is not owed; which is true only if this did not happen after delay had been made; for the legatee, having received it, could have sold it.