[IDEM libro uicesimo quaestionum. ] §31.0.70.prImperator Antoninus rescripsit legatarium, si nihil ex legato accepit, ei cui debet fideicommissum actionibus suis posse cedere nec id cogendum soluere.
[BY THE SAME AUTHOR, in the twentieth book of Questions.] The Emperor Antoninus rescribed that a legatee, if he has received nothing from the legacy, can cede his actions to the person to whom he owes the fideicommissum, and is not to be compelled to pay it.
quid ergo si non totum, sed partem legati relicti restituere rogatus abstineat eo? utrum actionibus suis in totum cogetur cedere, an uero non nisi ad eam quantitatem, quae fideicommisso continetur? quod ratio suadet.
What if, therefore, being requested to restore not the whole but a part of the legacy left, he abstains from it? Will he be compelled to cede his actions in full, or indeed only up to that quantity which is contained in the fideicommissum? Reason persuades the latter.
sed et si legatum perceperit, non amplius ex causa fideicommissi cogendus erit soluere, quam recepit.
But even if he has received the legacy, he will not be compelled to pay under the cause of the fideicommissum more than he received.
§31.0.70.1Si centum legatis duplum restituere rogatus sit, ad summam legati uidebitur constituisse: si autem post tempus fideicommissum relictum sit, usurarum dumtaxat additamentum admittetur.
If, when a hundred has been legacyed, he is requested to restore double, he will be seen to have established it up to the sum of the legacy; but if the fideicommissum is left after a period of time, at most the addition of interest will be admitted.
nec mutanda sententia erit, quod forte legato percepto magnum emolumentum ex aliquo negotio consecutus est aut poenam stipulationis imminentem euasit.
Nor will the opinion have to be changed because he happened to obtain a great advantage from some transaction upon receiving the legacy, or escaped an imminent penalty of a stipulation.
haec ita, si quantitas cum quantitate conferatur.
These things are so, if quantity is compared with quantity.
enimuero si pecunia accepta rogatus sit rem propriam, quamquam maioris pretii est, restituere, non est audiendus legatarius, legato percepto si uelit computare: non enim aequitas hoc probare patitur, si quod legatorum nomine perceperit legatarius offerat.
But indeed, if upon receiving money he is requested to restore his own property, although it is of greater value, the legatee is not to be heard if, having received the legacy, he wishes to reckon it; for equity does not allow this to be approved, if the legatee offers what he received under the name of legacies.
§31.0.70.2Cum quidam filio suo ex parte herede instituto patruum eius coheredem ei dedisset et ab eo petisset, ut filium suum pro uirili portione filiis suis coheredem faceret: si quidem minus esset in uirili portione, quam fratris hereditas habuit, nihil amplius peti posse, quod si plus, etiam fructuum, quos patruus percepit uel, cum percipere potuerit, dolo non cepit, habendam esse rationem responsum est, non secus quam si centum milibus legatis rogetur post tempus maiorem quantitatem restituere.
When a certain person, having appointed his son as heir for a part, had given his paternal uncle as a co-heir to him, and had requested of him that he make his son a co-heir with his own children for a virile portion: it was answered that, if indeed there was less in the virile portion than the brother's inheritance had, nothing more can be claimed, but if more, account must also be taken of the fruits which the uncle received or, when he could have received them, did not take through malice; not otherwise than if, when a hundred thousand has been legacyed, he is requested after a period of time to restore a greater quantity.
§31.0.70.3Cum autem rogatus, quidquid ex hereditate supererit, post mortem suam restituere de pretio rerum uenditarum alias comparat, deminuisse quae uendidit non uidetur,
But when, being requested to restore whatever remains of the inheritance after his death, he purchases other things from the price of the things sold, he is not seen to have diminished what he sold,