[IDEM libro decimo responsorum. ] §31.0.34.4Si ea condicione liberto fideicommissum relictum est, ne a filiis eius recederet, et per tutores factum est, quo minus condicionem impleret, iniquum est eum, cum sit inculpatus, emolumento fideicommissi carere.
If a trust was left to a freedman under the condition that he should not depart from the testator's children, and it was brought about through the guardians that he did not fulfill the condition, it is unjust that he, since he is blameless, should be deprived of the benefit of the trust.
§31.0.34.5Qui inuita filia de dote egerat, decessit eadem illa exheredata, filio herede instituto et ab eo fideicommissum filiae dotis nomine reliquit: quaero, quantum a fratre mulier consequi debeat.
A father, who against his daughter's will had brought an action concerning her dowry, died having disinherited that same daughter and appointed his son as heir, and left from him a trust to the daughter under the name of her dowry. I ask how much the woman ought to obtain from her brother.
Modestinus respondit: quod in primis est non esse consumptam de dote actionem mulieri, cum patri suo non consenserit, utique non ignoras.
Modestinus replied: In the first place, you are certainly not ignorant of the fact that the action concerning the dowry is not exhausted for the woman, since she did not consent to her father.
sic enim res explicatur, ut, si quidem maior quantitas in dote fuit, illius petitione sit tantummodo mulier contenta: quod si in summa dotis, nomine legata amplius sit quam in dote principali, compensatio fiat usque ad eandem summam quae concurrit et id tantummodo, quod excedit in sequenti summa, ex testamento consequatur: non est enim uerisimile patrem duplici praestatione dotis filium eundemque heredem onerare uoluisse, praeterea cum putauerit se efficaciter licet non consentiente filia instituisse aduersus generum de dote actionem.
For the matter is resolved in this way: if indeed there was a larger amount in the dowry, the woman should be content with the claim for that alone; but if the amount bequeathed under the name of dowry is more than the principal dowry, let a set-off be made up to the same concurrent sum, and let her obtain from the testament only that which exceeds in the latter sum. For it is not probable that the father wished to burden his son, who was also his heir, with a double provision of the dowry, especially since he thought that he had effectively, though without his daughter's consent, brought the action concerning the dowry against his son-in-law.
§31.0.34.6Lucius Titius relictis duobus filiis suis heredibus diuersi sexus institutis addidit caput generale, uti legata et libertates ab his heredibus suis praestarentur: quadam tamen parte testamenti a filio petit, ut omne onus legatorum in se sustineret, in hunc modum: 'ea quaecumque in legatis reliqui uel dari praecepi, ab Attiano filio meo et herede dari praestarique iubebo', deinde subiecit in praeceptione relinquenda filiae suae haec uerba: 'Paulinae filiae meae dulcissimae si quid me uiuo dedi comparaui, sibi habere iubeo: cuius rei quaestionem fieri neto.
Lucius Titius, having appointed his two children of different sexes as heirs and left them, added a general clause that legacies and manumissions should be provided by these heirs of his. However, in a certain part of the testament, he requested his son to bear the entire burden of the legacies on himself, in this manner: "Whatever things I have left in legacies or ordered to be given, I shall order to be given and provided by my son and heir Attianus." Then he added the following words in the preferred legacy to be left to his daughter: "To Paulina, my sweetest daughter, if I have given or acquired anything during my lifetime, I order her to have it for herself; and I forbid any question to be raised about this.
et peto a te, filia carissima, ne uelis irasci, quod ampliorem substantiam fratri tuo reliquerim, quem scis magna onera sustentaturum et legata quae supra feci praestaturum'. quaero, an ex his extremis uerbis, quibus cum filia sua in testamento pater locutus est, effectum uideatur, ut hereditariis actionibus id est omnibus filium suum onerauerit, an uero iam solum propter onus legatorum locutus esse uideatur, petitiones autem hereditariae in utrumque heredem creditoribus dari debeant.
And I ask you, my dearest daughter, not to be angry that I have left a larger estate to your brother, whom you know will bear great burdens and provide the legacies that I have made above." I ask whether, from these final words with which the father spoke to his daughter in the testament, it seems to have had the effect that he burdened his son with hereditary actions, that is, with all of them, or whether he seems to have spoken now only because of the burden of the legacies, and hereditary claims ought to be given to creditors against both heirs.
Modestinus respondit, ut actiones creditorum filius solus excipiat, iussisse testatorem non proponi.
Modestinus replied that it is not shown that the testator ordered that the son alone should face the actions of the creditors.
§31.0.34.7Titia cum nuberet Gaio Seio, dedit in dotem praedia et quasdam alias res, postea decedens codicillis ita cauit:Γάιον Σείον τὸν ἄνδρα μου παρακατατίθεμαί σοι, ὦ θύγατερ.
Titia, when she married Gaius Seius, gave lands and certain other things as dowry, and afterwards, when dying, provided thus in her codicils: "I commend to you my husband Gaius Seius, my daughter.
ῷ βούλομαι δοθῆναι εἰς βίου χρῆσιν καὶ ἐπικαρπίαν μετοχὴν κώμης Νακλίνων, ἣν ἔφθασα δεδωκυῖα εἰς προῖκα, σὺν σώμασι τοῖς ἐμφερομένοις τῇ προικί, καὶ κατὰ μηδὲν ἐνοχλῆσθαι αὐτὸν περὶ τῆς προικός· ἔσται γὰρ μετὰ τὴν τελευτὴν αὐτοῦ καὶ τῶν τέκνων σου': praeterea alia multa huic eidem marito legauit, ut quamdiu uiueret haberet.
I wish there to be given to him, for his lifetime use and enjoyment, the share of the village of Nacline which I had already given as dowry, together with the slaves contained in the dowry, and that he be disturbed in no respect concerning the dowry; for after his death it shall belong to you and your children." In addition, she bequeathed many other things to this same husband, to have as long as he lived.
quaero, an propter haec, quae codicillis ei extra dotem relicta sunt, possit post mortem Gaii Seii ex causa fideicommissi petitio filiae et heredi Titiae competere et earum rerum nomine, quas in dotem Gaius Seius accepit.
I ask whether, because of these things which were left to him in the codicils outside the dowry, a claim on the ground of trust can belong to Titia's daughter and heir after the death of Gaius Seius, also in the name of those things which Gaius Seius received as dowry.
Modestinus respondit: licet non ea uerba proponuntur, ex quibus filia testatricis fideicommissum a Gaio Seio, postquam praestiterit quae testamento legata sunt, petere possit, tamen nihil prohibet propter uoluntatem testatricis post mortem Gaii Seii fideicommissum peti.
Modestinus replied: Although those words are not set forth from which the daughter of the testatrix could claim the trust from Gaius Seius after he has provided what was bequeathed in the testament, yet nothing prevents the trust from being claimed after the death of Gaius Seius because of the intention of the testatrix.