[IDEM libro decimo responsorum. ] §31.0.34.prTitia cum testamento facto decederet heredibus institutis Maeuia et Sempronio filiis suis ex aequis partibus, petit a Maeuia, ut Stichum seruum suum manumitteret, in haec uerba: 'a te autem, Maeuia filia carissima, peto, ut Stichum seruum tuum manumittas, cum in ministerio tuo tot capita seruorum tibi his codicillis legauero', nec legauit.
[THE SAME, from the Tenth Book of Responses.] Titia, when dying with a testament made, having appointed her children Maeuia and Sempronius as heirs in equal shares, requested Maeuia to manumit her slave Stichus, in these words: "But from you, Maeuia, my dearest daughter, I request that you manumit your slave Stichus, when I shall have bequeathed to you by these codicils so many head of slaves for your service," but she did not bequeath them.
quaero, quid his uerbis relictum uideatur, cum, ut supra cautum est, duobus heredibus institutis defunctam testatricem et mancipia hereditaria duarum personarum fuisse, et codicillis nihil relictum sit de praestandis mancipiis nec possit utile fideicommissum putari, quod datum non sit, cum legasse se dixerit nec adiecerit legati speciem nec ab herede uti praestarentur mancipia petierit.
I ask what seems to have been left by these words, since, as is provided above, when two heirs were appointed, the deceased testatrix and the hereditary slaves belonged to two persons, and nothing was left in the codicils regarding the provision of the slaves, nor can a valid trust be thought to exist, which was not given, since she said she had bequeathed them but did not add the specific type of legacy, nor did she request from the heir that the slaves be provided.
Modestinus respondit ex uerbis consultationi insertis Macuiam neque legati neque fideicommissi petitionem habere neque libertatem seruo suo dare compelli.
Modestinus replied that, from the words inserted in the consultation, Maeuia has no petition for either a legacy or a trust, nor is she compelled to give freedom to her slave.
§31.0.34.1Lucius Titius in testamento suo ita cauit: ‘Ὀκταβιάνῃ Στρατονίκῃ τῇ γλυκυτάτῃ μου θυγατρὶ χαίρειν.
Lucius Titius in his testament provided thus: "To Octaviana Stratonice, my sweetest daughter, greeting.
Βούλομαι αὐτὴν παρ' ἑαυτῆς λαβεῖν χωρίον Γάζαν σὺν ταῖς ἐνθήκαις αὐτοῦ πάσαις.
I wish her to receive from herself the land of Gaza with all its inventory.
Ὀκταβιανῷ Ἀλεξάνδρῳ τῷ γλυκυτάτῳ μου υἱῷ.
To Octavianus Alexander, my sweetest son.
Ἐξαίρετον βούλομαι αὐτὸν παρ' ἑαυτοῦ λαβεῖν σύγκτησιν ἀγωνόφορον Κομιάνην σὺν αἷς ἔχει ἐνθήκαις πάσαις'. quaero, an huiusmodi scriptura integrum praedium singulis datum esse uideatur an uero partem hereditariam dumtaxat contineat, cum inutiliter a semet ipso quemque eorum quam habebat partem accipere uoluit.
I wish him to receive as a preferred legacy from himself the revenue-producing shared property of Comiane with all the inventory it has." I ask whether by this writing the entire estate seems to have been given to each, or whether it contains only their hereditary share, since he wished each of them to receive from himself, which is ineffective, the share they already had.
Modestinus respondit non sic interpretandam scripturam de qua quaeritur, ut fideicommissum inutile fiat.
Modestinus replied that the writing in question is not to be interpreted in such a way that the trust becomes ineffective.
item quaero, si integrum praedium relictum esse uideatur, an pretium portionis fratri et coheredi soluendum sit, ut hoc ipso, quod a semet ipso accipere praecepit, pretio illato integrum habere eum uoluerit.
I also ask, if the entire estate seems to have been left, whether the price of the share must be paid to the brother and co-heir, as if by this very fact, that he ordered them to receive from themselves, he wished them to have the whole upon payment of the price.
item respondit ad solutionem pretii fideicommissarium minime compellendum.
He also replied that the beneficiary of the trust is by no means to be compelled to pay the price.
§31.0.34.2Lucia Titia intestata moriens a filiis suis per fideicommissum alieno seruo domum reliquit: post mortem filii eius idem qui heredes cum diuiserunt hereditatem matris, diuiserunt etiam domum, in qua diuisione dominus serui fideicommissarii quasi testis adfuit: quaero, an fideicommissi persecutionem adquisitam sibi per seruum eo, quod interfuit diuisioni, amisisse uideatur.
Lucia Titia, dying intestate, left a house to another person's slave by a trust through her sons. After the death of her son, the same persons who were heirs, when they divided the inheritance of their mother, also divided the house, in which division the owner of the slave who was the beneficiary of the trust was present as a witness. I ask whether he seems to have lost the right to pursue the trust, acquired for him through the slave, by the fact that he was present at the division.
Modestinus respondit fideicommissum ipso iure amissum non esse, quod ne repudiari quidem potest: sed nec per doli exceptionem summouetur, nisi euidenter apparuerit omittendi fideicommissi causa hoc eum fecisse.
Modestinus replied that the trust was not lost by operation of law, which cannot even be repudiated; nor is it barred by the exception of fraud, unless it clearly appears that he did this for the purpose of abandoning the trust.
§31.0.34.3Gaius Seius cum domum suam haberet et in praetorio uxoris suae transtulisset, quasdam res de domo sua in eodem praetorio transtulit ibique post multos dies decedens testamento uxorem suam heredem et alios complures reliquit.
Gaius Seius, since he had his own house and had moved to the residence of his wife, moved certain things from his house to the same residence and, dying there many days later, left his wife and several others as heirs in his testament.
quo testamento significauit uerba, quae infra scripta sunt: in primis sciant heredes mei nullam pecuniam esse penes uxorem meam, 'sed nec aliud quicquam: ideoque hoc nomine eam inquietari nolo'. quaero, an ea, quae uiuo eo in praetorio uxoris eius translata sunt, communi hereditati uindicari possint et an secundum uerba testamenti praescribi coheredibus possit a parte uxoris defuncti.
In this testament he indicated the words which are written below: "First of all, let my heirs know that there is no money in the possession of my wife, nor anything else; and therefore I do not wish her to be disturbed on this account." I ask whether those things which were moved during his lifetime to the residence of his wife can be claimed for the common inheritance, and whether, according to the words of the testament, a defense can be set up against the co-heirs on the part of the deceased's wife.
Modestinus respondit, si ea, quae in domum seu praetorium uxoris defunctus transtulit, praecipua ad eam pertinere uoluit, nihil proponi, cur uoluntate ipsius standum non sit, necesse igitur habet mulier talem noluntatem fuisse testatoris ostendere.
Modestinus replied that if the deceased wished those things which he moved to his wife's house or residence to belong to her as preferred property, no reason is shown why his will should not stand; therefore the woman must show that such was the intention of the testator.
quod nisi fecerit, in hereditate mariti et haec remanere oportet.
Unless she does this, these things also ought to remain in the husband's inheritance.