[ULPIANUS libro secundo fideicommissorum. ] §31.0.24.prCum quidam ita fideicommissum reliquisset: 'rogo restituas libertis meis, quibus uoles', Marcellus putauit posse heredem et indignum praeferre.
[ULPIANUS, in the second book on trusts.] When someone had left a trust in this way: 'I ask that you restore [it] to my freedmen, to whichever ones you wish', Marcellus thought that the heir can prefer even one who is unworthy.
at si ita: 'his quos dignos putaueris', petere posse ait eos qui non offenderint.
But if in this way: 'to those whom you consider worthy', he says that those who have not offended can claim [it].
idem ait, si neminem eligat, omnes ad petitionem fideicommissi admitti uideri quasi iam praesenti die datum, cum sic relinquitur 'quibus uoles' nec ulli offerat.
He also says that, if he chooses no one, when it is left in this way 'to whichever ones you wish' and he offers it to no one, all seem to be admitted to the claim of the trust as if it had already been given on the present day.
plane si ceteri defuncti sunt, superstiti dandum uel heredi eius, si prius quam peteret decessit.
Clearly, if the others are deceased, it must be given to the survivor, or to his heir, if he died before he could claim.
Scaeuola autem notat: si omnes petere potuerunt, cum nulli offertur, cur non et qui decesserunt ad heredem transmiserunt, utique si uno petente iam eligere non potest, cui det? uidetur enim Marcellus, cum fideicommissum ita relinquitur 'ex libertis cui uolueris', arbitrari, nisi offerat cui heres uelit et statim offerat sine aliquo scilicet interuallo, statim competere omnibus petitionem: cum igitur omnibus competat, merito notatus est, cur superstiti soli putet dandum, nisi forte antequam instum tempus praetereat, quo potuit eligere cui potius offerat, ceteri decesserint.
Scaevola, however, notes: if all were able to claim when it is offered to no one, why did those who died not also transmit [the claim] to their heir, especially if, when one claims, he [the heir] can no longer choose to whom he should give? For Marcellus seems to judge, when a trust is left in this way 'to whichever of the freedmen you wish', that unless the heir offers to whom he wishes and offers it immediately without any delay, the claim immediately accrues to all: since, therefore, it accrues to all, he is deservedly noted (criticized) as to why he thinks it should be given to the survivor alone, unless perhaps the others died before the reasonable time passed during which he was able to choose to whom he should rather offer it.