[IDEM libro nono responsorum. ] §31.0.78.prQui solidum fideicommissum frustra petebat herede Falcidiam obiciente, si partem interim solui sibi desiderauerit neque acceperit, in eam moram passus intellegitur.
[BY THE SAME AUTHOR, from the ninth book of responsa.] A person who was in vain claiming the whole of a trust-bequest while the heir raised the defense of the Falcidian portion, if in the meantime he desired a part to be paid to him and did not receive it, is understood to have suffered default in respect of that part.
§31.0.78.1Cum post mortem emptoris uenditionem rei publicae praediorum optimus maximusque princeps noster Seuerus Augustus rescindi heredibus pretio restituto iussisset, de pecunia legatario, cui praedium emptor ex ea possessione legauerat, coniectura uoluntatis pro modo aestimationis partem soluendam esse respondi.
When, after the death of the buyer, our most excellent and greatest emperor Severus Augustus ordered the sale of the public estates to be rescinded, the price being restored to the heirs, I replied that, based on a conjecture of the testator's will, a part should be paid from that money to the legatee to whom the buyer had bequeathed the estate out of that possession, in proportion to the valuation.
§31.0.78.2Etiam res publica fideicommissi post moram usuras praestare cogitur, sed damnum, si quod ex ea re fuerit secutum, ab his sarciendum erit, qui post dictam sententiam iudicatum soluere supersederunt.
Even a municipality (public body) is compelled to pay interest on a trust-bequest after default, but the damage, if any should have followed from that matter, must be repaired by those who, after the judgment was pronounced, delayed to pay what was adjudged.
nec aliud seruabitur in litis sumptibus, si ratio litigandi non fuit: ignauiam etenim praetendentes audiri non oportere.
Nor shall it be observed otherwise in the expenses of the lawsuit, if there was no reasonable ground for litigating; for those who plead their own negligence ought not to be heard.
quod in tutoribus quoque probatur.
This is also approved in the case of tutors.
§31.0.78.3Praedium pater de familia liberorum alienari uerbis fideicommissi prohibuit.
A father prohibited an estate from being alienated from the family of his children by the words of a trust-bequest.
supremus ex liberis, qui fideicommissum petere potuit, non idcirco minus actionem in bonis suis reliquisse uisus est, quod heredem extrarium sine liberis decedens habuit.
The last of the children, who was able to claim the trust-bequest, is not for that reason deemed any less to have left the action in his estate, because he died without children having an external heir.
§31.0.78.4Si creditor ab eo qui testamentum fecit domum acceptam iure pignoris uendidit, contra emptorem fideicommissi causa, tametsi uoluntatem defuncti non ignorauit, nihil decernetur.
If a creditor sold a house received from the person who made the testament by right of pledge, nothing will be decreed against the buyer on account of the trust-bequest, even though he was not ignorant of the deceased's will.