[ULPIANUS libro trigesimo tertio ad Sabinum. ] §30.1.57.prSi res obligata per fideicommissum fuerit relicta, si quidem scit eam testator obligatam, ab herede luenda est, nisi si animo alio fuerit: si nesciat, a fideicommissario (nisi si uel hanc uel aliam rem relicturus fuisset, si scisset obligatam), uel potest aliquid esse superfluum exsoluto aere alieno.
[ULPIAN, Book 33 on Sabinus.]\n If a thing that is pledged has been left by way of a fideicommissum, if indeed the testator knew that it was pledged, it must be redeemed by the heir, unless he had a different intention; but if he did not know, it must be redeemed by the fideicommissary (unless the testator would have left either this or another thing if he had known it was pledged), or there may be some surplus after the debt has been paid.
quod si testator eo animo fuit, ut, quamquam liberandorum praediorum onus ad heredes suos pertinere noluerit, non tamen aperte utique de his liberandis senserit, poterit fideicommissarius per doli exceptionem a creditoribus, qui hypothecaria secum agerent, consequi, ut actiones sibi exhiberentur: quod quamquam suo tempore non fecerit, tamen per iurisdictionem praesidis prouinciae id ei praestabitur.
But if the testator's intention was such that, although he did not want the burden of freeing the estates to fall upon his heirs, he nevertheless did not clearly intend that they should not be freed at all, the fideicommissary will be able, by means of an exception of doli (bad faith), to obtain from the creditors who bring a hypothecary action against him that their actions be assigned to him; and even if he did not do this at the proper time, this will nevertheless be granted to him through the jurisdiction of the governor of the province.