[PAPINIANUS libro nono decimo quaestionum. ] §31.0.69.pr'Peto, Luci Titi, contentus sis centum aureis'. fideicommissum ualere placuit idque rescriptum est.
'I request, Lucius Titius, that you be content with a hundred aurei.' It was held that the fideicommissum is valid, and this was rescribed.
quid ergo si, cum heredem ex parte instituisset, ita locutus est: 'peto pro parte tua contentus sis, Luci Titi, centum aureis'? petere poterunt coheredes partem hereditatis, retinente siue praecipiente quo contentum esse uoluit defunctus.
What if, therefore, when he had appointed him heir for a part, he spoke thus: 'I request, Lucius Titius, that you be content with a hundred aurei in place of your share'? The co-heirs will be able to claim the share of the inheritance, while he, whom the deceased wished to be content, retains or takes beforehand what was willed.
sine dubio facilius est hoc probare, quam probari potuit illud, cum ibi fideicommissum petatur ab his, cum quibus non est testator locutus.
Without doubt, it is easier to approve this than it was possible to approve the former, since in that case the fideicommissum is claimed by those with whom the testator did not speak.
idem dicemus, si, cum ex asse scripsisset heredem, eius gratia, qui legitimus heres futurus esset, ita loquatur: 'peto pro hereditate, quam tibi reliqui, quae ad fratrem meum iure legitimo rediret, contentus sis centum aureis'. §31.0.69.1Praedium, quod nomine familiae relinquitur, si non uoluntaria facta sit alienatio, sed bona heredis ueneant, tamdiu emptor retinere debet, quamdiu debitor haberet bonis non uenditis, post mortem eius non habiturus quod exter heres praestare cogeretur.
We shall say the same if, when he had written him heir for the whole, he spoke thus for the sake of him who would have been the legitimate heir: 'I request, in place of the inheritance which I have left to you, which would return to my brother by legitimate right, that you be content with a hundred aurei.' An estate which is left under the name of the family, if an alienation has not been made voluntarily but the goods of the heir are sold, the buyer ought to retain it for as long as the debtor would have held it if the goods had not been sold, but after his death the buyer will not hold it, because an outside heir would be compelled to provide it.
§31.0.69.2Mater filio impubere herede instituto tutorem eidem adscripsit eiusque fidei commissit, ut, si filius suus intra quattuordecim annos decessisset, restitueret hereditatem Sempronio.
A mother, having appointed her impuberate son as heir, appointed a tutor for him and committed to his faith that, if her son should die within fourteen years, he should restore the inheritance to Sempronius.
non ideo minus fideicommissum recte datum intellegi debet, quia tutorem dare mater non potuit.
It ought not to be understood that the fideicommissum was given any less rightly for the reason that the mother could not appoint a tutor.
nam et si pater non iure facto testamento tutoris fidei commisserit, aeque praestabitur, quemadmodum si iure testamentum factum fuisset: sufficit enim, ut ab impubere datum fideicommissum uideatur, ab eo dari, quem is qui dabat tutorem dederat uel etiam tutorem fore arbitrabatur.
For even if a father, in a testament not made according to law, has committed to the faith of a tutor, it will be performed equally as if the testament had been made according to law: for it is sufficient, in order for the fideicommissum to be seen as given by the impuber, that it be given by him whom the person giving had appointed as tutor or even thought would be tutor.
idem in curatore impuberis uel minoris annis debet probari.
The same ought to be approved in the case of a curator of an impuber or a minor.
nec interest, tutor recte datus uiuo patre moriatur uel aliquo priuilegio excusetur uel tutor esse non possit propter aetatem, cui tutor fuerat datus: quibus certe casibus fideicommissum non intercidit, quod a pupillo datum uidetur.
Nor does it matter whether a tutor rightly appointed dies during the lifetime of the father, or is excused by some privilege, or cannot be a tutor because of age, to whom he had been appointed as tutor: in which cases indeed the fideicommissum does not perish, because it is seen as given by the pupil.
hac denique ratione placuit a tutore, qui nihil accepit, fideicommissum pupillo relinqui non posse, quoniam quod ab eo relinquitur extero, non ipsius proprio, sed pupilli iure debeatur.
Finally, for this reason it was held that a fideicommissum cannot be left to a pupil by a tutor who has received nothing, since what is left by him to an outsider is due not by his own right, but by the right of the pupil.
§31.0.69.3Fratre herede instituto petit, ne domus alienaretur, sed ut in familia relinqueretur.
Having appointed his brother as heir, he requests that the house not be alienated, but be left in the family.
si non paruerit heres uoluntati, sed domum alienauerit uel extero herede instituto decesserit, omnes fideicommissum petent qui in familia fuerunt.
If the heir does not obey the will, but alienates the house or dies having appointed an outside heir, all who were in the family will claim the fideicommissum.
quid ergo si non sint eiusdem gradus? ita res temperari debet, ut proximus quisque primo loco uideatur inuitatus.
What if, therefore, they are not of the same degree? The matter ought to be so tempered that the nearest in degree is seen as invited in the first place.
nec tamen ideo sequentium causa propter superiores in posterum laedi debet, sed ita proximus quisque admittendus est, si paratus sit cauere se familiae domum restituturum.
Nor, however, should the cause of the subsequent ones be harmed for the future because of the superiors, but each nearest is to be admitted in this way, if he is prepared to give security that he will restore the house to the family.
quod si cautio non fuerit ab eo, qui primo loco admissus est, desiderata, nulla quidem eo nomine nascetur condictio, sed si domus ad exterum quandoque peruenerit, fideicommissi petitio familiae competit.
But if security was not demanded from him who was admitted in the first place, indeed no condictio will arise on that account, but if the house should at some time come to an outsider, the claim of the fideicommissum belongs to the family.
cautionem autem ratione doli mali exceptionis puto iuste desiderari, quamuis nemo alius ulterior ex familia supersit.
I think, however, that security is justly demanded by reason of the exception of doli mali, even though no other more remote person survives from the family.
§31.0.69.4Si quidam sint postea emancipati, tractari potest, an hi quoque recte fideicommissum petant.
If some should afterwards be emancipated, it can be discussed whether these also rightly claim the fideicommissum.
et puto recte petituros, quoniam familiae appellatione personae quoque hae demonstratae intelleguntur.
And I think they will rightly claim, since by the term 'family' these persons also are understood to be indicated.