[IDEM libro nono decimo quaestionum. ] §31.0.67.prUnum ex familia propter fideicommissum a se cum moreretur relictum heres eligere debet: ei quem elegit frustra testamento suo legat quod, posteaquam electus est, ex alio testamento petere potest.
[THE SAME in the nineteenth book of Questions.] An heir must choose one person from the family because of a fideicommissum left by the deceased when dying; it is in vain for him to bequeath by his own testament to the person he has chosen what, after being chosen, that person can claim under the other testament.
utrum ergo non constitit quod datur, quasi creditori relictum, an, quamdiu potest mutari uoluntas, non recte creditori comparabitur? siue tamen durat electio, fuisse uidetur creditor, siue mutetur, ex neutro testamento petitio competit.
Does, then, what is given not stand, as if left to a creditor, or, as long as the will can be changed, will it not be correctly compared to a creditor? However, if the choice stands, he seems to have been a creditor; if it is changed, no claim lies under either testament.
§31.0.67.1Si de Falcidia quaeratur, perinde omnia seruabuntur ac si nominatim ei, qui postea electus est, primo testamento fideicommissum relictum fuisset: non enim facultas necessariae electionis propriae liberalitatis beneficium est: quid est enim, quod de suo uideatur reliquisse, qui quod relinquit omnimodo reddere debuit?
If there is a question about the Falcidian law, everything will be preserved just as if the fideicommissum had been left in the first testament by name to the person who was afterwards chosen; for the power of compulsory choice is not a benefit of one's own liberality; for what is there that he can be seen to have left of his own, who was obliged in any case to restore what he left?
§31.0.67.2Itaque si, cum forte tres ex familia essent eius, qui fideicommissum reliquit, eodem uel dispari gradu, satis erit uni reliquisse: nam postquam paritum est uoluntati, ceteri condicione deficiunt.
Therefore, if there happen to be three of the family of him who left the fideicommissum, of the same or different degree, it will be sufficient to have left it to one; for after the intention has been complied with, the others fail of the condition.
§31.0.67.3Sed si uno ex familia herede instituto ille fundus extraneo relictus est, perinde fideicommissum ex illo testamento petetur, ac si nemo de familia heredi heres exstitisset.
But if, one of the family being instituted heir, that tract of land is left to an outsider, the fideicommissum under that testament will be claimed just as if no one of the family had become heir to the heir.
uerum is, qui heres scriptus est, ratione doli exceptionis ceteris fideicommissum petentibus facere partem intellegitur: nam quae ratio ceteros admittit, eadem tacitam inducit pensationem.
Yet, he who was written heir is understood to make a share when the others claim the fideicommissum, by reason of the exception of duress or fraud; for the same reason that admits the others induces a tacit compensation.
§31.0.67.4Si duos de familia non aequis portionibus heredes scribserit et partem forte quartam extero eiusdem fundi legauerit, pro his quidem portionibus, quas iure hereditario retinent, fideicommissum non petetur, non magis quam si alteri fundum praelegasset: pro altera uero parte, quae in exterum collata est, uirilem qui sunt de familia petent admissa propter heredes uirilium portionum pensatione.
If he has written two of the family as heirs with unequal shares, and should bequeath, say, a fourth share of the same land to an outsider, no fideicommissum will be claimed for those shares which they retain by hereditary right, any more than if he had pre-bequeathed the land to one of them; but for the other share, which was bestowed upon the outsider, those who are of the family will claim a virile share, with the compensation of the virile shares of the heirs being admitted.
§31.0.67.5Sed et si fundum heres uni ex familia reliquerit eiusque fidei commisserit, ut eum extero restituat, quaesitum est, an hoc fideicommissum peti possit.
But also if the heir has left a tract of land to one of the family and has committed it to his faith to restore it to an outsider, it was asked whether this fideicommissum can be claimed.
dixi ita demum peti posse, si fundi pretium efficiat.
I said that it can only be claimed if the price of the land covers it.
sed si quidem ille prior testator ita fideicommissum reliquisset: 'rogo fundum cui uoles aut quibus uoles ex familia relinquas', rem in expedito fore: quod si talia uerba fuissent: 'peto non fundus de familia exeat', heredis heredem propter sequens fideicommissum, quod in exterum collatum est, oneratum intellegi, petituris deinceps ceteris ex primo testamento fideicommissum post mortem uidelicet eius qui primo electus est.
But if the prior testator had left the fideicommissum thus: "I request that you leave the land to whom you wish or to those you wish from the family," the matter would be simple; but if the words had been: "I request that the land does not leave the family," the heir of the heir is understood to be burdened on account of the subsequent fideicommissum, which was bestowed upon the outsider, with the others in turn about to claim the fideicommissum under the first testament after the death, naturally, of the one who was first chosen.
§31.0.67.6Et ideo si electo uno fideicommissum in exterum non conferatur, non alias ei qui electus est fideicommissum praestandum erit, quam interpositis cautionibus: 'fundum, cum morietur, si non in familia cum effectu relinqueretur, restitui'. §31.0.67.7'Rogo, fundum cum morieris restituas ex libertis cui uoles'. quod ad uerba attinet, ipsius erit electio nec petere quisquam poterit, quamdiu praeferri alius potest: defuncto eo prius quam eligat petent omnes.
And therefore, if, one having been chosen, the fideicommissum is not bestowed upon an outsider, the fideicommissum is not to be performed to him who was chosen otherwise than upon security being given: "that the land, when he dies, if it should not be left in the family with effect, be restored." "I request that, when you die, you restore the land to whichever of the freedmen you wish." As far as the words are concerned, the choice will be his own, nor can anyone claim as long as another can be preferred; but if he dies before he chooses, all will claim.
itaque eueniet, ut quod uni datum est uiuis pluribus unus petere non possit, sed omnes petant quod non omnibus datum est, et ita demum petere possit unus, si solus moriente eo superfuit.
Thus it will happen that what was given to one cannot be claimed by one while several are alive, but all claim what was not given to all, and thus at last one can claim if he alone survived at the other's death.
§31.0.67.8Si rem tuam, quam existimabam meam, te herede instituto Titio legem, non est Neratii Prisol sententiae nec constitutioni locus, qua cauetur non cogendum praestare legatum heredem: nam succursum est heredibus, ne cogerentur redimere, quod testator suum existimans reliquit: sunt enim magis in legandis suis rebus quam in alienis comparandis et onerandis heredibus faciliores uoluntates: quod in hac specie non euenit, cum dominium rei sit apud heredem.
If I should bequeath your property, which I believed to be mine, to Titius, having instituted you as heir, there is no place for the opinion of Neratius Priscus nor for the constitution by which it is provided that the heir is not to be compelled to perform the legacy; for the heirs were relieved lest they should be compelled to buy what the testator left thinking it was his own; for intentions are readier in bequeathing one's own things than in acquiring those of others and burdening the heirs; which does not happen in this case, since the ownership of the thing is with the heir.
§31.0.67.9Si omissa fideicommissi uerba sint et cetera quae leguntur cum his, quae scribi debuerunt, congruant, recte datum et minus scriptum exemplo institutionis legatorumque intellegetur: quam sententiam optimus quoque imperator noster Seuerus secutus est.
If the words of a fideicommissum should be omitted, and the other things that are read agree with those which ought to have been written, it will be understood, by the example of institution and legacies, that it was correctly given and too little was written; which opinion our most excellent Emperor Severus also followed.
§31.0.67.10Item Marcus imperator rescripsit uerba, quibus testator ita cauerat 'non dubitare se, quodcumque uxor eius cepisset, liberis suis reddituram', pro fideicommisso accipienda.
Likewise, the Emperor Marcus replied by rescript that the words by which a testator had provided: "that he does not doubt that whatever his wife received, she would restore to their children," are to be accepted as a fideicommissum.
quod rescriptum summam habet utilitatem, ne scilicet honor bene transacti matrimonii, fides etiam communium liberorum decipiat patrem, qui melius de matre praesumpserat: et ideo princeps prouidentissimus et iuris religiosissimus cum fideicommissi uerba cessare animaduerteret, eum sermonem pro fideicommisso rescripsit accipiendum.
Which rescript is of the highest utility, namely, lest the honor of a well-spent marriage, and also the trust in their common children, should deceive the father, who had presumed better of the mother; and therefore the most provident and most law-reverencing prince, when he noticed that the words of a fideicommissum were absent, replied by rescript that this speech is to be accepted as a fideicommissum.