[IDEM libro octauo responsorum. ] §31.0.77.prCum pater filios eorumque matrem heredes instituisset, ita scripsit: 'peto a te, filia, ut acceptis ex hereditate mea in portionem tuam centum aureis et praedio Tusculano partem hereditatis restituas matri tuae'. respondi praedium quidem hereditarium iudicio diuisionis de communi filiam habituram, pecuniam autem de parte sua retenturam.
[BY THE SAME AUTHOR, from the eighth book of responsa.] When a father had appointed his sons and their mother as heirs, he wrote as follows: 'I request of you, my daughter, that after receiving one hundred gold pieces and the Tusculan estate from my inheritance into your share, you restore your share of the inheritance to your mother.' I replied that the daughter would indeed have the hereditary estate from the common pool in the division lawsuit, but she would retain the money from her own share.
§31.0.77.1Eorum, quibus mortis causa donatum est, fidei committi quoquo tempore potest: quod fideicommissum heredes salua Falcidiae ratione, quam in his quoque donationibus exemplo legatorum locum habere placuit, praestabunt.
A trust can be charged at any time upon the faith of those to whom a gift on account of death has been made; which trust the heirs will perform, saving the calculation of the Falcidian law, which it was decided has a place in these donations also, following the example of legacies.
si pars donationis fideicommisso teneatur, fideicommissum quoque munere Falcidiae fungetur.
If a part of the donation is bound by a trust, the trust also will share the burden of the Falcidian law.
si tamen alimenta praestari uoluit, collationis totum onus in residuo donationis esse respondendum erit ex defuncti uoluntate, qui de maiore pecunia praestari non dubie uoluit integra.
If, however, he wished alimony to be provided, it must be answered that, in accordance with the will of the deceased—who undoubtedly wished it to be provided in full out of the larger sum of money—the entire burden of contribution will fall upon the remainder of the donation.
§31.0.77.2Mater filiis suis uulgo conceptis dotem suam mortis causa donando stipulari permisit: cum aliis heredibus institutis petisset a filiis uiro dotem restitui, totum uiro fideicommissum dotis deberi, si Falcidiae ratio non interuenerit: ideo retentionem dotis uirum habere placuit: alioquin Falcidiae partem heredibus a filiis ex stipulatu cum uiro agentibus ex dote esse per in factum actionem reddendam.
A mother permitted her sons born out of wedlock to stipulate for her dowry by way of a gift on account of death. When, other heirs having been appointed, she requested the sons to restore the dowry to her husband, it was decided that the entire trust of the dowry was owed to the husband, provided that the calculation of the Falcidian law did not intervene, and therefore the husband had the retention of the dowry; otherwise, the Falcidian portion must be returned to the heirs out of the dowry by an action on the facts, by the sons who proceed on the stipulation against the husband.
§31.0.77.3Surdo et muto, qui legatum accipit, ut cum morietur restituat, recte mandatur: nam et ignorantes adstringuntur fideicommisso, quibus ignorantibus emolumentum ex testamento quaeritur.
A charge is rightly laid upon a deaf and dumb person who receives a legacy, that he restore it when he dies; for even those who are ignorant are bound by a trust, when, without their knowledge, an advantage is acquired for them under a testament.
§31.0.77.4Hereditatem filius cum moreretur filiis suis uel cui ex his uoluisset restituere fuerat rogatus: quo interea in insulam deportato eligendi facultatem non esse poena peremptam placuit nec fideicommissi condicionem ante mortem filii heredis exsistere: uiriles autem inter eos fieri, qui eo tempore uixerint, cum de aliis eligendi potestas non fuerit.
A son had been requested, when he died, to restore the inheritance to his sons or to whichever of them he wished. He having in the meantime been deported to an island, it was decided that the power of choosing was not extinguished by the punishment, and that the condition of the trust did not arise before the death of the son who was the heir; but that equal shares are made among those who are alive at that time, when there was no power of choosing from among others.
§31.0.77.5Qui dotale praedium contra legem Iuliam uendidit, uxori legatum dedit et emptoris fidei commissit, ut amplius ei pretium restituat.
A person who, contrary to the Julian law, sold a dotal estate, gave a legacy to his wife and charged a trust upon the buyer to restore the price to her.
emptorem fideicommissi non teneri constabat: si tamen accepto legato mulier uenditionem irritam faceret, eam oblato pretio doli placuit exceptione summoueri.
It was established that the buyer was not bound by the trust; however, if the woman, having accepted the legacy, should render the sale void, it was decided that, upon the price being offered, she would be barred by the defense of fraud.
§31.0.77.6Maeuio debitori suo reus stipulandi mandauit, ut Titio, cui mortis causa donabat, pecuniam debitam solueret.
A creditor ordered his debtor Maevius to pay the debt to Titius, to whom he was making a gift on account of death.
cum sciens dominum uita decessisse Maeuius pecuniam dedisset, non esse liberationem secutam constitit nec, si Maeuius soluendo non esset, in Titium actionem solidi uel iure Falcidiae dandam esse, quia mortis causa cepisse non uideretur.
When Maevius, knowing that his creditor had departed this life, paid the money, it was established that discharge did not follow, nor, if Maevius was insolvent, should an action for the whole or under the Falcidian law be granted against Titius, because he did not seem to have received it on account of death.
diuersum probandum foret, si Maeuius ignorans dominum uita decessisse pecuniam errore labsus dedisset: tunc enim portio iure Falcidiae reuocaretur.
The contrary would have to be approved if Maevius, ignorant that his creditor had departed this life, had paid the money, falling into error; for then the portion would be recalled under the Falcidian law.
§31.0.77.7Cum pater fideicommissum praediorum ex testamento matris filiae deberet, eandem pro parte ita heredem instituit, ut hereditatem fideicommisso conpensaret, eademque praedia filio exheredato dari uoluit.
When a father owed his daughter a trust of estates under the mother's testament, he appointed her as heir for a share in such a way that she should compensate the inheritance with the trust, and he wished the same estates to be given to his disinherited son.
quamquam filia patris hereditatem suscipere noluisset, fideicommissum tamen ab heredibus esse filio praestandum, ad quos hereditatis portio quam accepit filia redierat, placuit: quod si alium filiae substituisset, eum oportere filio fideicommissum reddere.
Although the daughter had refused to accept the father's inheritance, it was decided that the trust must nevertheless be performed for the son by the heirs to whom the portion of the inheritance which the daughter would have received had reverted; but if he had substituted another for the daughter, that substitute ought to restore the trust to the son.
§31.0.77.8Euictis praediis, quae pater, qui se dominum esse crediderit, uerbis fideicommissi filio reliquit, nulla cum fratribus et coheredibus actio erit: si tamen inter filios diuisionem fecit, arbiter coniectura uoluntatis non patietur eum partes coheredibus praelegatas restituere, nisi parati fuerint et ipsi patris iudicium fratri conseruari.
If the estates which a father, believing himself to be the owner, left to his son by words of trust are evicted, there will be no action against the brothers and co-heirs; if, however, he made a division among his sons, the arbitrator, by conjecturing the intention, will not allow him to restore the shares pre-bequeathed to the co-heirs, unless they themselves are also prepared to preserve the father's judgment for their brother.
§31.0.77.9Pater certam pecuniam exheredatae filiae uerbis fideicommissi reliquit eamque nupturae dotis nomine dari uoluit filio dotem stipulante.
A father left a certain sum of money to his disinherited daughter by words of trust, and wished it to be given as a dowry upon her marriage, with his son stipulating for the dowry.
cum filius minorem dotem dedisset, superfluum esse filiae reddendum constabat.
When the son had given a smaller dowry, it was established that the surplus must be returned to the daughter.
diuortio quoque secuto fideicommissum filiam recte petituram, ut actio stipulationis sibi praestaretur, quoniam uerisimile non erat patrem interponi stipulationem uoluisse, quo filia post primas nuptias indotata constitueretur: ceterum si postea nuberet, ad secundas nuptias cautionem extendi non oportere.
Also, if a divorce followed, the daughter would rightly claim the trust, so that the action on the stipulation should be ceded to her, since it was not likely that the father wished the stipulation to be interposed so that the daughter, after her first marriage, should be left undowered; but if she should marry afterwards, the security ought not to be extended to the second marriage.
§31.0.77.10A filia pater petierat, ut cui uellet ex liberis suis praedia cum moreretur restitueret: uni ex liberis praedia fideicommissi uiua donauit.
A father had requested his daughter that when she died, she restore the estates to whichever of her children she wished. During her lifetime, she donated the estates subject to the trust to one of her children.
non esse electionem propter incertum diem fideicommissi certae donationis uidebatur: nam in eum destinatio dirigi potest, qui fideicommissum inter ceteros habiturus est remota matris electione.
It seemed that this was not an election, because of the uncertain day of the trust and the certainty of the donation; for the designation can be directed to him who would have the trust among the others, the mother's election being removed.