[IDEM libro octauo responsorum. ] §31.0.77.11'Fidei heredum meorum committo, ne fundum Tusculanum alienent et ne de familia nominis mei exeat'. secundum uoluntatem eos quoque inuitatos intellegendum est, quibus heredes extranei fideicommissam libertatem reddiderunt.
[BY THE SAME AUTHOR, from the eighth book of responsa.] 'I commit to the faith of my heirs that they do not alienate the Tusculan estate and that it does not go out of the family of my name.' According to the intention, it must be understood that those to whom extraneous heirs have restored the trust-bequeathed freedom are also invited.
§31.0.77.12'Fidei tuae committo, uxor, ut restituas filiae meae, cum morieris, quidquid ad te quoquo nomine de bonis meis peruenerit'. etiam ea, quae postea codicillis uxori dedit, fideicommisso continebuntur, nam ordo scripturae non impedit causam iuris ac uoluntatis: sed dos praelegata retinebitur, quoniam reddi potius uidetur, quam dari.
'I commit to your faith, my wife, that when you die, you restore to my daughter whatever shall have come to you from my property under any title.' Even those things which he afterwards gave to his wife by codicils will be contained in the trust, for the order of writing does not block the cause of law and intention; but the pre-bequeathed dowry will be retained, since it is seen as being restored rather than given.
§31.0.77.13'Uolo praedia dari libertis meis: quod si quis eorum sine liberis uita decesserit, partes eorum ad reliquos pertinere uolo'. collibertum patris eundemque filium ex uoluntate substitutionem excludere placuit.
'I wish estates to be given to my freedmen; but if any of them dies without children, I wish their shares to belong to the rest.' It was decided that one who was a co-freedman of his father and at the same time his son, according to the intention, excludes the substitution.
§31.0.77.14Curatoris sui frustra fidei commisisse uidebatur, ut heredi fratri negotiorum gestorum rationem redderet: quamquam igitur testamento cautum esset, ut, cum ad statum suum frater peruenisset, ei demum solueretur, tamen sub curatore alio fratrem agentem recte placuit actionem inferre, cum illis uerbis fratri potius consultum uideretur quam solutio quae iuste fieri potuit dilata.
It seemed that a person had in vain charged the faith of his curator that he should render an account of the management of affairs to his brother who was the heir. Although, therefore, it was provided in the testament that payment should only be made to the brother when he had reached his status, nevertheless it was rightly decided that the brother, acting under another curator, could bring an action, since by those words it seemed that the brother’s interest was consulted rather than that a payment which could justly be made was delayed.
§31.0.77.15Ab instituto extraneo praedia libertis cum moreretur uerbis fideicommissi reliquerat et petierat, ne ex nomine familiae alienarentur.
He had left estates to his freedmen from an appointed extraneous heir by words of trust when he died, and had requested that they should not be alienated out of the family name.
substitutum ea praedia debere ex defuncti uoluntate respondi, sed utrum confestim an sub eadem condicione, uoluntatis esse quaestionem: sed coniectura ex uoluntate testatoris capienda mors instituti exspectanda est.
I replied that the substitute owed those estates in accordance with the intention of the deceased, but whether immediately or under the same condition was a question of intention; but, a conjecture being taken from the intention of the testator, the death of the appointed heir must be awaited.
§31.0.77.16Mensae negotium ex causa fideicommissi cum indemnitate heredum per cautionem susceptum emptioni simile uidetur et ideo non erit quaerendum, an plus in aere alieno sit quam in quaestu.
The business of a bank undertaken from a cause of trust with indemnity of the heirs through security seems similar to a purchase, and therefore it will not be necessary to inquire whether there is more in debt than in profit.
§31.0.77.17Pater filiae mancipia, quae nubenti dedit, uerbis fideicommissi praestari uoluit: partus susceptos, etsi matres ante testamentum mortuae fuissent, ex causa fideicommissi praestandos respondi.
A father wished slaves, whom he gave to his daughter upon her marriage, to be provided by words of trust. I replied that the offspring born, even if their mothers had died before the testament, must be provided from the cause of trust.
nec aliud in uxore confirmatis donationibus pridem obseruatum est.
Nor has anything different been observed long since in the case of donations confirmed to a wife.
§31.0.77.18Hereditatem post mortem suam rogati restituere nominum periculo, quae per diuisionem optigerunt inter coheredes interpositis delegationibus, non adstringuntur, non magis quam praediorum, cum permutatio rerum discernens communionem interuenit.
Those requested to restore the inheritance after their death are not bound by the risk of claims which fell to them through division among the co-heirs with delegations interposed, any more than of estates when an exchange of things dissolving the co-ownership has intervened.
§31.0.77.19'Filia mea praecipiat sibique habeat uolo rem matris suae'. fructus, quos medio tempore pater percipiet nec in separato habuit, sed absumpsit uel in suum patrimonium conuertit, non uidentur filiae relicti.
'I wish my daughter to take beforehand and hold for herself the property of her mother.' Fruits which the father shall receive in the meantime and did not keep separate, but consumed or converted into his own patrimony, do not seem to have been left to the daughter.
§31.0.77.20'Dulcissimis fratribus meis, auunculis autem tuis quaecumque mihi supersunt in Pamphylia Lycia uel ubicumque de maternis bonis concedi uolo, ne quam cum his controuersiam habeas'. omnia corpora maternae hereditatis, quae in eadem causa dominii manserunt, ad uoluntatem fideicommissi pertinent: ex isdem igitur facultatibus percepta pecunia et in corpus proprii patrimonii uersa, item iure diuisionis res propriae factae non praestabuntur, cum discordiis propinquorum sedandis prospexerit, quas materia communionis solet excitare.
'I wish to be conceded to my sweetest brothers, who are your uncles, whatever remains to me of my mother's property in Pamphylia, Lycia, or anywhere, so that you may not have any dispute with them.' All tangible objects of the maternal inheritance which remained in the same state of ownership pertain to the intention of the trust; therefore, money received from those same assets and converted into the body of his own patrimony, likewise things made his own by right of division, will not be provided, since he made provision for settling the disputes of relatives, which the matter of co-ownership is accustomed to arouse.
§31.0.77.21Pater pluribus filiis heredibus institutis moriens claues et anulum custodiae causa maiori natu filiae tradidit et libertum eidem filiae, qui praesens erat, res quas sub cura sua habuit adsignare iussit.
A father, having appointed several sons as heirs, when dying delivered the keys and a ring to his eldest daughter for the sake of custody, and ordered a freedman, who was present, to assign to the same daughter the things which he had under his care.
commune filiorum negotium gestum intellegebatur nec ob eam rem apud arbitrum diuisionis praecipuam causam filiae fore.
It was understood that a common business of the sons was managed, and that for this reason the daughter would not have a preferred case before the arbitrator of division.
§31.0.77.22Cum inperfecta scriptura inuenitur, ita demum uerbum legati uel fideicommissi, quod praecedit uel sequitur, ad communionem adsumitur, si dicto scriptum congruat.
When an incomplete writing is found, a word of legacy or trust which precedes or follows is only taken into common application if the written matches what was said.
§31.0.77.23Filius matrem heredem scripserat et fideicommissa tabulis data cum iurisiurandi religione praestari rogauerat.
A son had written his mother as heir and had requested that the trusts given in the tablets be performed with the religious obligation of an oath.
cum testamentum nullo iure factum esset, nihilo minus matrem legitimam heredem cogendam praestare fideicommissa respondi: nam enixae uoluntatis preces ad omnem successionis speciem porrectae uidebantur.
Although the testament had been made with no legal validity, I replied that the mother, as intestate heir, must nevertheless be compelled to perform the trusts; for the prayers of an earnest intention seemed to extend to every species of succession.
§31.0.77.24'Mando filiae meae pro salute sollicitus ipsius, ut, quoad liberos tollat, testamentum non faciat: ita enim poterit sine periculo uiuere'. fideicommissariam hereditatem sorori coheredi non uideri relictam apparuit, quod non de pecunia sua testari, sed optentu consilii derogare iuri testamentum fieri prohibendo uoluit.
'I command my daughter, being anxious for her safety, that until she raises children, she does not make a testament; for thus she will be able to live without danger.' It appeared that the trust inheritance was not left to her sister and co-heir, because he did not wish to make a testament regarding his own money, but, under the pretext of advice, to derogate from the law by prohibiting a testament from being made.