[SCAEUOLA libro tertio responsorum. ] §31.0.88.prLucius Titius testamento ita cauit: 'si quid cuique liberorum meorum dedi aut donaui aut in usum concessi aut sibi adquisiit aut ei ab aliquo datum aut relictum est, id sibi praecipiat sumat habeat'. filii nomine kalendarium fecerat.
[SCAEUOLA, from the third book of responses.] Lucius Titius provided as follows in his testament: 'If I have given, donated, or granted for use anything to any of my children, or if they have acquired it for themselves, or if it was given or bequeathed to them by anyone, let each pre-bequeath, take, and hold it for themselves.' He had kept a ledger in the name of his son.
postea sententia dicta est et placuit id, quod sub nomine ipsius filii in kalendario remanserat, ei deberi, non etiam id, quod exactum in rationes suas pater conuertisset.
Afterwards, a judgment was rendered, and it was held that what had remained in the ledger under the name of the son himself was due to him, but not also what the father had collected and converted into his own accounts.
quaero, si id, quod exegisset pater ex nominibus filii ante testamentum factum, iterum post testamentum factum in nomen filii conuertisset, an ad filium secundum sententiam pertineret.
I ask, if the father, before making the testament, had collected certain amounts from the son's claims, and after making the testament, had again converted them into the son's name, whether they would belong to the son according to the judgment.
respondi id, quod ex eadem causa exactum in eandem causam redisset, deberi.
I replied that what had been collected from the same cause and had returned to the same cause was due.
§31.0.88.1'A te peto, Titi, fideique tuae committo, uti curam condendi corporis mei suscipias, et pro hoc tot aureos e medio praecipito'. quaero, an, si Lucius Titius minus quam decem aureos erogauerit, reliqua summa heredibus proficiat.
'I request of you, Titius, and entrust to your faith, that you undertake the care of burying my body, and for this, pre-bequeath so many gold pieces from the midst of the estate.' I ask, if Lucius Titius has expended less than ten gold pieces, whether the remaining sum profits the heirs.
respondi secundum ea quae proponerentur heredum commodo proficere.
I replied that, according to the facts proposed, it profits the convenience of the heirs.
§31.0.88.2Quae marito heres exstiterat, ita testamento cauit: 'Maeui et Semproni filii dulcissimi, praecipitote omne, quidquid ex hereditato bonisue Titii domini mei, patris nestri ad me peruenit mortis eius tempore, ita tamen, ut omne onus eiusdem hereditatis tam in praeteritum quam in futurum, nec non etiam si quid post mortem Titii domini mei, adgnoscatis'. quaero, an si quid soluisset post mortem mariti, cum ipsa fructus cepisset dedisset, ad onus eorum pertineret.
A woman who had become the heir to her husband provided as follows in her testament: 'My sweetest sons, Maevius and Sempronius, pre-bequeath everything, whatever came to me at the time of his death from the inheritance or goods of Titius my master, your father; provided, however, that you acknowledge every burden of the same inheritance, both past and future, and also anything that arose after the death of Titius my master.' I ask, if she had paid any debts after the death of her husband, while she herself had received the fruits and made disbursements, whether this would belong to their burden.
respondi secundum ea quae proponerentur ea dumtaxat onera legatariis imposuisse, quae superessent.
I replied that, according to the facts proposed, she imposed upon the legatees only those burdens which remained outstanding.
§31.0.88.3Quisquis 'mihi heres heredesue erunt, hoc amplius Lucius Eutychus, quam quod eum heredem institui, e media hereditate sumito sibique habeto una cum Pamphilo, quem liberum esse iubeo, instrumentum tabernae ferrariae, ita ut negotium exerceatis'. Lucius Eutychus uiua testatrice decessit, pars hereditatis eius ad coheredem pertinuit: quaero, an Pamphilus eodem testamento manumissus ad petitionem partis instrumenti admitti possit, licet taberna, ut uoluit testatrix, exerceri non possit.
'Whoever shall be my heir or heirs, let Lucius Eutychus take and have for himself from the midst of the estate, in addition to what I have appointed him as heir, together with Pamphilus, whom I order to be free, the equipment of the ironworks shop, so that you may carry on the business.' Lucius Eutychus died during the lifetime of the testatrix, and his share of the inheritance belonged to his co-heir. I ask whether Pamphilus, manumitted by the same testament, can be admitted to claim a share of the equipment, even though the shop cannot be carried on as the testatrix wished.
respondi admitti.
I replied that he can be admitted.
§31.0.88.4Sempronia substituta heredi instituto legata accepit, si heres non esset: mouit contra institutum actionem, quod dolo eius factum esse dicebat, quo minus testatrix uolens primo loco scribere eam heredem testamentum mutaret, nec optinuit: quaero, an legati persecutionem saluam haberet, respondi secundum ea quae proponerentur saluam habere.
Sempronia, substituted to the instituted heir, was to receive legacies if he were not the heir. She brought an action against the instituted heir, alleging that it was due to his fraud that the testatrix, who wished to write her as heir in the first place, did not alter her testament, but she did not succeed. I ask whether she kept her claim for the legacies intact. I replied that, according to the facts proposed, she kept it intact.
§31.0.88.5Testator legata ante quinquennium uetuit peti praestarique, sed heres quaedam sua sponte ante quinquennium soluit: quaesitum est, an eius, quod ante diem exsistentem solutum est, repraesentationem in reliqua solutione legati reputare possit.
A testator forbade legacies to be claimed or paid before five years, but the heir of his own accord paid some before the five years had elapsed. The question was raised whether he could take into account the prepayment of what was paid before the day of payment in the remaining payment of the legacy.
respondi non propterea minus relictum deberi, quod aliquid ante diem sit solutum.
I replied that a legacy is not due in any less amount because something was paid before the day of payment.