[ULPIANUS libro primo fideicommissorum. ] §32.0.1.prSi incertus quis sit, captiuus sit an a latrunculis obsessus, testamentum facere non potest.
If it is uncertain who someone is, whether he is a captive or besieged by brigands, he cannot make a will.
sed et si sui iuris sit ignarus putetque se per errorem, quia a latronibus captus est, seruum esse uelut hostium, uel legatus qui nihil se a captiuo differre putat, non posse fideicommittere certum est, quia nec testari potest, qui, an liceat sibi testari, dubitat.
But also, if he is ignorant of being independent and thinks by mistake that because he was captured by robbers he is a slave, as if of the enemy, or if he is an envoy who thinks he does not differ at all from a captive, it is certain that he cannot leave a trust, because he who doubts whether it is permitted for him to make a will cannot make a will either.
§32.0.1.1Sed si filius familias uel seruus fideicommissum reliquerit, non ualet: si tamen manumissi decessisse proponantur, constanter dicemus fideicommissum relictum uideri, quasi nunc datum, cum mors contingit, uidelicet si durauerit uoluntas post manumissionem.
But if a son-in-power or a slave leaves a trust, it is not valid; however, if they are proposed to have died after being manumitted, we shall consistently say that the trust is seen to have been left, as if given now when death occurs, provided of course that the intention persisted after manumission.
haec utique nemo credet in testamentis nos esse probaturos, quia nihil in testamento ualet, quotiens ipsum testamentum non ualet, sed si alias fideicommissum quis reliquerit.
Surely no one will believe that we would approve this in wills, because nothing in a will is valid whenever the will itself is not valid, but if someone left a trust otherwise.
§32.0.1.2Hi, quibus aqua et igni interdictum est, item deportati fideicommissum relinquere non possunt, quia nec testamenti faciendi ius habent, cum sint ἀπόλιδες.
Those who have been interdicted from water and fire, as well as the deported, cannot leave a trust, because they do not even have the right to make a will, since they are without citizenship.
§32.0.1.3Deportatos autem eos accipere debemus, quibus princeps insulas adnotauit uel de quibus deportandis scripsit: ceterum prius quam factum praesidis comprobet, nondum amississe quis ciuitatem uidetur.
Moreover, we must understand as deported those to whom the emperor has assigned islands or concerning whose deportation he has written; but before he confirms the governor's action, a person does not yet seem to have lost citizenship.
proinde si ante decessisset, ciuis decessisse uidetur et fideicommissum, quod ante reliquerat, quam sententiam pateretur, ualebit: sed et si post sententiam, antequam imperator comprobet, ualebit quod factum est, quia certum statum usque adhuc habuit.
Accordingly, if he died before, he is seen to have died as a citizen, and the trust which he had left before he suffered the sentence will be valid; but even if after the sentence, before the emperor confirms, what was done will be valid, because he had a certain status up to that time.
§32.0.1.4A praefectis uero praetorio uel eo, qui uice praefectis ex mandatis principis cognoscet, item a praefecto urbis deportatos (quia ei quoque epistula diui Seueri et imperatoris nostri ius deportandi datum est) statim amittere ciuitatem et ideo nec testamenti faciendi ius nec fideicommittendi constat habere.
But those deported by the praetorian prefects or by him who hears cases in place of the prefects by mandate of the emperor, as well as by the prefect of the city (since the right of deporting was also given to him by a letter of the deified Severus and our emperor), are established to lose citizenship immediately and therefore to have neither the right to make a will nor to leave a trust.
§32.0.1.5Si quis plane in insulam deportatus codicillos ibi fecerit et indulgentia imperatoris restitutus isdem codicillis durantibus decesserit, potest defendi fideicommissum ualere, si modo in eadem uoluntate durauit.
Plainly, if someone deported to an island has made codicils there, and being restored by the clemency of the emperor dies while the same codicils still exist, it can be defended that the trust is valid, provided only that he persisted in the same intention.
§32.0.1.6Sciendum est autem eorum fidei committi quem posse, ad quos aliquid peruenturum est morte eius, uel dum eis datur uel dum eis non adimitur.
Furthermore, it must be known that a trust can be committed to the faith of those to whom something will come by his death, whether when it is given to them or when it is not taken away from them.
§32.0.1.7Nec tantum proximi bonorum possessoris, uerum inferioris quoque fidei committere possumus.
And we can commit a trust not only to the faith of the immediate possessor of goods, but also to that of an inferior one.
§32.0.1.8Sed et eius, qui nondum natus est, fidei committi posse, si modo natus nobis successurus sit.
But also to the faith of one who is not yet born, provided that, when born, he will succeed us.
§32.0.1.9Illud certe indubitate dicitur, si quis intestatus decedens ab eo, qui primo gradu ei succedere potuit, fideicommissum reliquerit, si illo repudiante ad sequentem gradum deuoluta sit successio, eum fideicommissum non debere: et ita imperator noster rescripsit.
This is certainly said without doubt, that if someone dying intestate leaves a trust from him who could succeed him in the first degree, and if, upon his rejection, the succession devolves to the next degree, he does not owe the trust; and our emperor has so replied.
§32.0.1.10Sed et si a patrono sit relictum et aliquis ex liberis eius mortuo eo admissus sit ad bonorum possessionem, idem erit dicendum.
But even if it was left by a patron, and some of his children, upon his death, are admitted to the possession of goods, the same will have to be said.