[IDEM libro quarto responsorum. ] §31.0.89.prTestamento filium et uxorem suam heredes instituit: postea epistulam scripsisse dicitur, qua et quidquid in peculio habuit filius, ei donauit et adiecit praecipua haec eum suique iuris et post mortem suam habere uelle.
[THE SAME, in the fourth book of Responses.] By testament, he appointed his son and his wife as heirs; afterwards he is said to have written a letter in which he donated to his son whatever he had in his peculium, and added that he wished him to have these things preferentially, as of his own right, even after his death.
quaero, cum testamento significauerit, si quid obsignatum recepisset, id uice codicillorum ualeret, epistula autem non sit obsignata, an quae epistula continentur ad filium pertineant.
I ask, since he had indicated in the testament that if he should have received anything sealed, that should be valid in place of codicils, and the letter was not sealed, whether the contents of the letter belong to the son.
respondi, si fides epistulae relictae constaret, deberi, quae in ea dare se uelle significauit.
I replied that, if the authenticity of the letter left behind were established, the things which he indicated in it that he wished to give are due.
§31.0.89.1Qui indiuisam cum fratre suo rem habebat, filias suas heredes instituit et ita cauit: 'propter res uniuersas quae mihi cum illo fratre meo patruo uestro communes sunt, quas aestimationis constiterit esse uniuersas duo milium aureorum, fidei uestrae committo, uti pro portione uestra mille aureos a Lucretio Pacato patruo uestro accipiatis': huic testamento quinquennio superuixit eta abunde patrimonium reliquit: quaesitum est, an heredes Lucretii Pacati secundum uerba supra scripta offerentes mille aureos fideicommissum consequantur.
One who had an undivided property in common with his brother appointed his daughters as heirs and provided as follows: "Concerning all the properties which are common to me and that brother of mine, your uncle, the whole of which it is established is valued at two thousand aurei, I commit to your faith that, in proportion to your share, you receive one thousand aurei from your uncle Lucretius Pacatus." He survived this testament by five years and left an abundant estate. It was asked whether the heirs of Lucretius Pacatus, by offering one thousand aurei according to the words written above, obtain the trust.
respondi secundum ea quae proponerentur non facere uoluntatem, ut uniuersa datis millenis aureis restituerentur, sed aestimationis, quae mortis tempore in rebus fuerat, oblationem debere fieri.
I replied that, according to the facts proposed, the intention was not made that all the property should be restored upon the payment of one thousand aurei each, but that an offer of the valuation which had been in the things at the time of death must be made.
§31.0.89.2Seio, quem heredi substituerat, ita legauit: 'Seio, si mihi heres non erit, et uxori eius Marcellae argenti libras quindecim dari uolo'. quaero, cum Seius heres exstiterit, an Marcellae legati dimidia portio debeatur.
To Seius, whom he had substituted for his heir, he bequeathed as follows: "To Seius, if he is not my heir, and to his wife Marcella, I wish fifteen pounds of silver to be given." I ask, when Seius became heir, whether half the share of the legacy is due to Marcella.
respondi secundum ea quae proponerentur deberi.
I replied that, according to the facts proposed, it is due.
§31.0.89.3Lucius Titius intestato moriturus, cum haberet uxorem et ex ea filiam emancipatam, codicillis haec uerba inseruit: 'pertinent autem hi codicilli ad uxorem et filiam.
Lucius Titius, about to die intestate, having a wife and an emancipated daughter by her, inserted these words in codicils: "Moreover, these codicils pertain to my wife and daughter.
primum autem rogo, sic inter uos agatis, ut me uiuo egistis itaque rogo, ut quidquid aut ego reliquero aut quod uos ipsae habetis, commune uobis sit'. filia intestati patris bonorum possessionem accepit: quaeritur, an aliqua pars hereditatis Lucii Titii ex causa fideicommissi a filia matri deberetur et quota.
First, however, I ask that you act towards each other just as you acted while I was alive; and so I ask that whatever I leave, or what you yourselves have, shall be common to you." The daughter accepted possession of the goods of the intestate father. It is asked whether any part of the inheritance of Lucius Titius is due from the daughter to the mother on the ground of a trust, and how much.
respondi secundum ea quae proponerentur dimidiam partem deberi, si modo uxor parata sit in commune bona sua conferre.
I replied that, according to the facts proposed, a half share is due, provided that the wife is prepared to bring her own goods into the common pool.
§31.0.89.4Quattuor filios aequis partibus instituit et fundum per praeceptionem singulis legauit: filii, cum uniuersa bona patris obligata essent, mutua accepta pecunia hereditario creditori soluerunt et posteriori obligauerunt, qui, cum ei debitum non solueretur, praedia uniuersa lege pignoris uni ex heredibus uendidit: quaeritur, an, cum iste filius ex causa emptionis ea possideat, fratribus et coheredibus fideicommissi petitio esset an uero ea perempta esset, cum communiter uniuersa sequenti creditori obligauerint.
He appointed his four sons as heirs in equal shares and bequeathed an estate to each of them by preception. Since all the property of the father was encumbered, the sons, having received a loan of money, paid the hereditary creditor and encumbered it to a subsequent creditor. Since the debt was not paid to him, the subsequent creditor sold all the estates by the law of pledge to one of the heirs. It is asked, when this son possesses them on the ground of purchase, whether his brothers and coheirs have a claim for the trust, or indeed whether it was extinguished since they commonly encumbered everything to the subsequent creditor.
respondi actionem quidem fideicommissi in personam competentem omnibus inuicem manere: non autem fideicommissum restituendum est, nisi prius debitum ab eis emptori eidemque coheredi persolueretur.
I replied that the personal action for the trust indeed remains for all of them mutually; but the trust does not have to be restored unless the debt is first paid by them to the same purchaser and coheir.
§31.0.89.5Filiae fidei commissit in haec uerba: 'peto a te, filia mea, ut dotalem cautionem post mortem meam mutes et ita renoues, ut fratres tui dotem stipularentur hoc casu, ut, si sine liberis uno pluribusue in matrimonio morieris, dos ad eos perueniat. post mortem patris decessit maritus, antequam renouaretur cautio dotalis, et postea alii nupta decessit nullo liberorum relicto, uiuo adhuc Titio uno ex fratribus.
He entrusted to his daughter's faith in these words: "I ask of you, my daughter, that after my death you change the dowry agreement and renew it so that your brothers should stipulate for the dowry in this event: that if you die in marriage without children, one or more, the dowry should come to them." After the father's death, the husband died before the dowry agreement was renewed, and afterwards she died having married another, leaving no children, while Titius, one of her brothers, was still living.
quaesitum est, an Titius petitionem haberet rerum, quae in dotem fuerant.
It was asked whether Titius has a claim for the things which had been in the dowry.
respondi posse fideicommissum ab heredibus sororis peti, si per eam stetit, quo minus dotem frater stipularetur.
I replied that the trust can be claimed from the heirs of the sister, if it was due to her that the brother did not stipulate for the dowry.
§31.0.89.6Filium et filiam heredes instituit et libertis legata dedit eorumque fidei commisit in haec uerba: 'a uobis peto, ut quidquid uobis legaui, contenti sitis uiuentes, ut post uos filiis meis restituatis'. defuncta testatricis filia Maeuia libertus decessit herede instituto patronae filio ex parte debita, ex altera extraneo: quaesitum est, an adita hereditate patronae filius a coherede suo partem eorum, quae ex testamento matris ad Maeuium libertum peruenerant, petere potest.
She appointed her son and daughter as heirs and gave legacies to her freedmen and entrusted to their faith in these words: "I ask of you that, whatever I have bequeathed to you, you be content with it while living, so that after you, you restore it to my children." After the death of the testatrix's daughter, the freedman Maevius died, having appointed the patroness's son as heir for his due share, and a stranger for the other share. It was asked whether, upon entering the inheritance, the patroness's son can claim from his coheir the share of those things which had come to the freedman Maevius from the mother's testament.
respondi eius, quod ei deberetur, si hereditatem non adisset, partem a coherede petere posse.
I replied that he can claim from the coheir the share of what would have been due to him if he had not entered the inheritance.
§31.0.89.7Maritus uxorem ex asse heredem instituit, cuius post mortem codicillos aperiri testator praecepit: praedium hereditarium uxor infructuosum rationi suae existimans uendidit: emptor quaerit, an retractari haec uenditio possit post mortem mulieris ab his, quibus codicillis per fideicommissum hereditas data deprehenderetur an uero solum quantitas pretii ab herede uxoris fideicommissariis debeatur.
A husband appointed his wife as sole heir, after whose death the testator ordered codicils to be opened. The wife, thinking the hereditary estate unprofitable to her account, sold it. The purchaser asks whether this sale can be rescinded after the death of the woman by those to whom the inheritance was found to be given by codicils through a trust, or indeed whether only the amount of the price is due from the heir of the wife to the beneficiaries of the trust.
respondi propter iustam ignorantiam tam mulieris quam emptoris heredem mulieris, ut fundus apud emptorem remaneat, fideicommissario pretium dare debere.
I replied that, because of the justifiable ignorance of both the woman and the purchaser, the heir of the woman ought to give the price to the beneficiary of the trust so that the estate remains with the purchaser.