[IDEM libro octauo responsorum. ] §31.0.77.25'Rogo, filia, bona tua quandoque distribuas liberis tuis, ut quisque de te meruerit'. uidetur omnibus liberis, etsi non aequaliter promeruerint, fideicommissum relictum, quibus matris electione cessante sufficiet, si non offenderint: eos autem, quos mater elegerit, fore potiores, si soli promeruissent, existimaui: quod si neminem elegerit, eos solos non admitti, qui offenderunt.
[BY THE SAME AUTHOR, from the eighth book of responsa.] 'I ask you, my daughter, that you distribute your property at some time to your children, as each shall have deserved of you.' It seems that a trust-bequest was left to all the children, even if they have not deserved equally, for whom, in the absence of the mother's choice, it will be sufficient if they have not offended; but I estimated that those whom the mother shall have chosen would be preferred, if they alone had deserved; but if she chose no one, only those who offended are not admitted.
§31.0.77.26Donationis praediorum epistulam ignorante filio mater in aede sacra uerbis fideicommissi non subnixam deposuit et litteras tales ad aedituum misit: 'instrumentum uoluntatis meae post mortem meam filio meo tradi uolo'. cum pluribus heredibus intestato diem suum obisset, intellegi fideicommissum filio relictum respondi: non enim quaeri oportet, cum quo de supremis quis loquatur, sed in quem uoluntatis intentio dirigatur.
A mother deposited a letter of donation of estates in a sacred temple without the support of words of trust, without her son's knowledge, and sent such a letter to the temple keeper: 'I wish the instrument of my will to be delivered to my son after my death.' When she died intestate with several heirs, I replied that a trust-bequest must be understood to have been left to the son; for we ought not to inquire with whom someone speaks concerning their last wishes, but at whom the intention of the will is directed.
§31.0.77.27Libertis praedium reliquit ac petit, ne id alienarent utque in familia libertorum retinerent.
He left an estate to his freedmen and requested that they do not alienate it and that they retain it within the family of the freedmen.
si excepto uno ceteri partes suas uendiderint, qui non uendidit ceterorum partes, quibus non dedit alienandi uoluntatem, integras petet: eos enim ad fideicommissum uidetur inuitasse, qui iudicio paruerunt: alioquin perabsurdum erit uice mutua petitionem induci, scilicet ut ab altero partem alienatam quis petat, cum partem suam alienando perdiderit.
If, except for one, all the others have sold their shares, the one who did not sell will claim the intact shares of the others, to whom he did not give the will of alienating; for he seems to have invited to the trust-bequest those who complied with the judgment; otherwise, it will be utterly absurd for a petition to be introduced mutually, namely, that someone should claim from another a share that has been alienated, when they have lost their own share by alienating it.
sed hoc ita procedere potest, si pariter alienauerint: ceterum prout quisque prior alienauerit, partem posterioribus non faciet: qui uero tardius uendidit, ei qui non uendidit in superiorum partibus fecisse partem intellegitur.
But this can proceed in this way if they have alienated simultaneously; otherwise, according as each has alienated first, they will not create a share for those who come after; but one who sold later is understood to have created a share for the one who did not sell in the shares of the prior ones.
at si nemo uendiderit et nouissimus sine liberis uita decesserit, fideicommissi petitio non supererit.
But if no one has sold and the last one dies without children, a petition for the trust-bequest will not survive.
§31.0.77.28Cum inter libertos ad praedii legatum liberta quoque fuisset admissa, quod patronus petit, ut de nomine familiae non exiret, heredem libertae filium partem praedii, quam mater accepit, retinere uisum est.
When, among the freedmen, a freedwoman had also been admitted to the legacy of the estate, and the patron requested that it should not go out of the name of the family, it seemed that the son, who was the heir of the freedwoman, retained the share of the estate which his mother had received.
§31.0.77.29Cum existimaret ad solam consobrinam suam bona peruentura, codicillis ab ea factis pluribus fideicommissa reliquerat.
When he thought that his property would come to his female cousin alone, he had left trust-bequests to several persons by codicils made to be performed by her.
iure successionis ad duos eiusdem gradus possessione deuoluta rationibus aequitatis et perpetui edicti exemplo pro parte dimidia mulierem releuandam respondi: sed libertates ab ea praestandas, quas intercidere damni causa durum uidebatur.
When the possession devolved by right of succession on two persons of the same degree, I replied that, by reasons of equity and the example of the perpetual edict, the woman should be relieved of one half; but that the freedoms must be provided by her, which it seemed harsh to fail for the sake of loss.
§31.0.77.30Pater, qui filio semissem dederat et sororibus eius impuberibus quadrantes, quibus fratrem tutorem dedit, ita fuerat locutus: 'fili, contentus eris pro tuo semisse aureis ducentis et uos, filiae, pro uestris quadrantibus centenis aureis'. uice mutua liberis fideicommissum hereditatis reliquisse non uidebatur, sed aestimationem (ut a parentibus frugi fieri solet) patrimonii sui fecisse, nec idcirco fratrem iudicio tutelae bonae fidei rationes quandoque praescriptione demonstratae quantitatis exclusurum.
A father, who had given a half share to his son and quarter shares to his underage sisters, for whom he appointed the brother as tutor, had spoken thus: 'My son, you will be content with two hundred aurei for your half, and you, my daughters, with one hundred aurei each for your quarters.' He did not seem to have left a mutual trust-bequest of the inheritance to the children, but to have made an valuation of his patrimony (as frugal parents are accustomed to do), and therefore the brother will not some day exclude the accounts of the good faith guardianship in the trial by the defense of the indicated amount.
§31.0.77.31Titio fratri suo Maeuius hereditatem Seii, a quo heres institutus erat, post mortem suam restituere rogatus eodem Titio herede scripto petit, ut moriens Titius tam suam quam Seii hereditatem Sempronio restitueret.
Maevius, requested to restore to his brother Titius after his death the inheritance of Seius, by whom he had been appointed heir, having written the same Titius as heir, requested that Titius when dying should restore both his own inheritance and that of Seius to Sempronius.
cum ex fructibus medio tempore perceptis fideicommissi debitam quantitatem Titius percepisset, aeris alieni loco non esse deducendum fideicommissum respondi, quoniam ratione conpensationis percepisse debitum uidebatur.
Since Titius had received the due amount of the trust-bequest from the fruits gathered in the meantime, I replied that the trust-bequest must not be deducted as a debt, since he seemed to have received the due by reason of set-off.
plane si ea lege Maeuius Titium heredem instituat, ne fideicommissum ex testamento Seii retineat, Falcidiam compensationi sufficere, sed iniquitate occurrere.
Clearly, if Maevius should appoint Titius as heir on the condition that he does not retain the trust-bequest from the testament of Seius, the Falcidian deduction is sufficient for set-off, but it meets with inequity.
prudentius autem fecerit, si ex testamento fratris hereditatem repudiauerit et intestati possessionem acceperit: nec uidebitur dolo fecisse, cum fraudem excluserit.
But he will have acted more prudently if he shall have repudiated the inheritance under his brother's testament and accepted possession as intestate; nor will he be seen to have acted with malice, since he has excluded fraud.
§31.0.77.32'A te peto, marite, si quid liberorum habueris, illis praedia relinquas uel, si non habueris, tuis siue meis propinquis aut etiam libertis nostris'. non esse datam electionem, sed ordinem scripturae factam substitutioni respondi.
'I ask of you, husband, if you have any children, that you leave the estates to them, or, if you do not have any, to your or my relatives, or even to our freedmen.' I replied that an election was not given, but the order of writing was made for substitution.
§31.0.77.33Uicos ciuitati relictos, qui proprios fines habebant, ex causa fideicommissi non ideo minus deberi placuit, quod testator fines eorum significaturum et certaminis formam, quam celebrari singulis annis uoluit, alia scriptura se declaraturum promisit ac postea morte praeuentus non fecit.
It was decided that villages left to a city, which had their own boundaries, were not for that reason any less owed from the cause of trust, because the testator promised that he would indicate their boundaries and declare the form of the contest, which he wished to be celebrated every year, in another writing, and afterwards, being prevented by death, did not do so.