[IULIANUS libro trigesimo sexto digestorum. ]
[JULIANUS, Digests, book 36.] It was asked, if a son-in-power who had a son had been instituted as heir, when both were under the power of another, whether a legacy could be bequeathed by him to his son.
§30.1.91.prQuaesitum est, si filius familias, qui filium habebat, heres institutus fuisset, cum esset uterque in potestate aliena, an ab eo filio eius legari possit.
I replied, since a legacy can be bequeathed by a son to his father, it is consistent that a legacy may be bequeathed either to his own brother, or to his son, or even to a slave of his father.
respondi, cum possit a filio patri legari, consequens est, ut uel fratri ipsius uel filio uel etiam seruo patris sui legetur.
To a slave who has been granted freedom to take effect immediately, a legacy can be given either unconditionally or under a condition.
§30.1.91.1Praesenti quidem die data libertate seruo legari uel pure uel sub condicione poterit: cum uero libertas sub condicione data fuerit, alias utiliter, alias inutiliter pure legabitur.
However, when freedom has been granted under a condition, an unconditional legacy will be valid in some cases and invalid in others. For if the condition of freedom is of such a kind that, upon the immediate death of the father of the family, the condition can be fulfilled before the inheritance is accepted—for example: "Stichus if he gives ten to Titius" (or "climbs the Capitol"), "let him be free"—the legacy is valid.
nam si ea condicio libertatis fuerit, ut patre familias statim mortuo possit ante aditam hereditatem exsistere condicio, ueluti: 'Stichus si decem Titio dederit' (uel 'Capitolium ascenderit'), 'liber esto', utile legatum est: huiusmodi autem condiciones: 'si heredi decem dederit', 'si post aditam hereditatem Capitolium ascenderit', inutile legatum efficient.
But conditions of this kind: "if he gives ten to the heir," "if he climbs the Capitol after the inheritance has been accepted," will render the legacy invalid.
necessario autem ex asse herede scripto etiam hae condiciones, quae ante aditam hereditatem impleri possunt, inutile legatum efficient.
However, if a necessary heir is appointed to the whole inheritance, even those conditions which can be fulfilled before the inheritance is accepted will render the legacy invalid.
§30.1.91.2Duobus heredibus institutis alteri Stichum legauerat et eidem Sticho decem.
Two heirs having been appointed, the testator had bequeathed Stichus to one of them, and ten to the same Stichus.
cum Stichus uiuo testatore ad libertatem peruenisset, totum legatum ei debebitur: nam in solidum constitisse causam legati in eius persona hoc quoque argumento est, quod, si heres, cui legatus fuerat, hereditatem non adisset, solidum ab altero herede consequi possit.
If Stichus obtained his freedom during the lifetime of the testator, the whole legacy will be due to him; for that the ground of the legacy stood in his person for the whole is proved also by this argument, that if the heir to whom he had been bequeathed had not accepted the inheritance, he could have recovered the whole from the other heir.
§30.1.91.3Seruo legato legatum datum est: si alienatus a testatore fuisset, legatum ad emptorem pertinebit.
A legacy was given to a slave who had been bequeathed. If he had been alienated by the testator, the legacy will belong to the buyer.
§30.1.91.4Cum seruus Titio et eidem seruo aliquid legatur, fideicommitti potest, ut aut seruum alicui restituat uel ea quae seruo legata sunt: hoc amplius etiam ipsi seruo, cum liber erit, fideicommissum a Titio dari potest.
When a slave is bequeathed to Titius, and something is bequeathed to the same slave, a trust can be imposed to restore either the slave to someone or the things that were bequeathed to the slave; furthermore, a trust can also be given from Titius to the slave himself when he becomes free.
§30.1.91.5Si quis Stichum legauerit et eundem alienauerit uel manumiserit, deinde codicillis eidem legatum dederit, legatum uel manumisso uel emptori debebitur.
If anyone has bequeathed Stichus and has alienated or manumitted him, and then in a codicil has given a legacy to the same Stichus, the legacy will be due either to the manumitted person or to the buyer.
§30.1.91.6Si mihi seruus a te herede legatus fuerit et eidem seruo aliquis legauerit et uiuo eo qui mihi seruum legauerat dies legati seruo dati cesserit, confestim id legatum hereditati adquiritur: et ideo, quamuis postea moritur is qui seruum mihi legauerat, ad me id quod seruo legatum est non pertinebit.
If a slave has been bequeathed to me by you as heir, and someone has bequeathed something to the same slave, and while the person who had bequeathed the slave to me was still living, the right to the legacy given to the slave vested, that legacy is immediately acquired for his inheritance; and therefore, although the person who had bequeathed the slave to me dies afterwards, what was bequeathed to the slave will not belong to me.
§30.1.91.7Cum homo ex testamento petitus est, causa eius temporis, quo lis contestabatur, repraesentari debet actori et, sicut partus ancillarum, sicut fructus fundorum interim percepti in hoc iudicium deducuntur, ita quod seruo legatorum uel hereditatis nomine interim obuenerit praestandum est petitori.
When a slave is claimed under a will, his condition at the time when joinder of issue took place must be restored to the plaintiff; and just as the offspring of female slaves and the fruits of estates gathered in the meantime are brought into this judgment, so whatever has in the meantime accrued to the slave by way of legacy or inheritance must be made good to the claimant.