[ULPIANUS libro secundo fideicommissorum. ] §32.0.11.14Si quis illicite aedificasset, id est hoc quod dirui constitutiones iubent, an fideicommissum relinquere ex eo quid possit, uideamus.
[ULPIAN from the second book on Trusts.] If someone had built illegally, that is, this which the imperial constitutions order to be demolished, let us see whether he can leave any trust from it.
et puto posse: cum enim dirui necesse sit, nulla dubitatio est, quin senatus consultum impedimento non sit.
And I think he can; for although it must be demolished, there is no doubt that the senatusconsult is not an impediment.
§32.0.11.15Si heres rogatus sit certam summam usuris certis faenori dare, utile est fideicommissum: sed Maecianus putat non alias cogendum credere, quam idonee ei caueatur: sed ego procliuior sum, ut putem cautionem non exigendam.
If an heir has been requested to lend a certain sum at certain interest, the trust is valid; but Maecianus thinks that he should not be compelled to lend otherwise than if suitable security is given to him; but I am more inclined to think that security should not be demanded.
§32.0.11.16Si seruo alieno militia relinquatur, an domino quaeratur legatum, quaeritur.
If military service is bequeathed to another's slave, it is asked whether the legacy is acquired for the master.
et aut scit seruum esse, et dico aestimationem deberi: aut ignorauit, et denegari fideicommissi persecutio debet, quia, si scisset seruum, non reliquisset.
And either he knows that he is a slave, and I say that the valuation is owed; or he was ignorant, and the pursuit of the trust ought to be denied, because if he had known he was a slave, he would not have left it.
§32.0.11.17Ex his apparet, cum per fideicommissum aliquid relinquitur, ipsum praestandum quod relictum est: cum uero ipsum praestari non potest, aestimationem esse praestandam.
From these things it appears that when something is left through a trust, that very thing which was left must be performed; but when that very thing cannot be performed, the valuation must be performed.
§32.0.11.18Si quis decem alicui per fideicommissum reliquerit et, si perdidisset id quod testamento relictum est, rursus ei reliquerit, quaerebatur, an sequens fideicommissum ualeat uel an exigere heres debeat cautionem salua fore decem, ne cogatur ad praestationem, et an, si saepius perdidisset, saepius ei sarciretur fideicommissum.
If someone left ten to someone through a trust and, if he should lose what was left in the will, left it to him again, it was asked whether the subsequent trust is valid, or whether the heir ought to demand security that the ten will be safe, lest he be compelled to perform it, and whether, if he should lose it more often, the trust should be made good to him more often.
diuus Pius rescripsit neque cautionem exigendam et non amplius quam semel, postquam perdidisset, praestandum: non enim onerandus est heres, ut in infinitum, quotiens perdiderit, restituere ei tantundem debeat, sed ut per fideicommissum posterius duplicata eius legata uideantur nec amplius ad periculum heredis pertineat, si quid postea is consumpserit exsoluto et posteriore fideicommisso.
The deified Pius replied by rescript that neither security should be demanded nor should it be performed more than once after he had lost it; for the heir is not to be burdened so that he must restore the same amount to him infinitely as often as he loses it, but rather that by the subsequent trust his legacies seem to be doubled, and it no longer pertains to the risk of the heir if he should consume anything afterwards, once the subsequent trust also has been paid.
§32.0.11.19Item si quis certam quantitatem cui reliquerit et addiderit facilius hanc summam posse compensari, cum debitor sit fideicommissarius ex causa hereditatis Gaii Seii, nec uelit ille hereditatem adire Gaii Seii, sed petat fideicommissum: imperator noster contra uoluntatem eum testantis petere fideicommissum rescripsit, cum in fideicommissis praecipue spectanda seruandaque sit testatoris uoluntas.
Likewise, if someone left a certain quantity to someone and added that this sum could more easily be compensated since the beneficiary is a debtor on account of the estate of Gaius Seius, and he does not wish to enter upon the estate of Gaius Seius but claims the trust, our Emperor replied by rescript that he claims the trust contrary to the will of the testator, since in trusts the will of the testator must be especially regarded and preserved.
§32.0.11.20Plerumque euenit multorum interesse id quod relinquitur, uerum testatorem uni uoluisse honorem habitum, et est haec sententia Marcelli uerissima.
It often happens that what is left is of interest to many, but that the testator wished honor to be shown to one only, and this opinion of Marcellus is most true.
§32.0.11.21Sic euenit, ut interdum si pluribus testator honorem habere uoluit et de pluribus sensit, quamuis unum legatum sit, tamen ad persecutionem eius plures admittantur.
Thus it happens that sometimes, if the testator wished to show honor to several and had several in mind, although there is only one legacy, nevertheless several are admitted to its pursuit.
ut puta si decem fuerunt eiusdem rei stipulandi et heres uel fideicommissarius rogatus est, ut eis solueret: hic enim si omnium interest et de omnibus sensit testator, fideicommissum relictum omnes petere potuerunt.
For example, if there were ten stipulating for the same thing and the heir or the person charged with the trust was requested to pay them; for here, if it is of interest to all and the testator had all in mind, all could claim the trust that was left.
sed utrum in partem agent an in solidum, uideamus: et credo, prout cuiusque interest, consequentur: unus igitur qui occupat agendo totum consequitur ita, ut caueat defensu iri aduersus ceteros fideicommissarios eum qui soluit, siue socii sunt siue non.
But let us see whether they shall sue for a share or for the whole; and I believe they will obtain according to each one's interest; therefore, one who is first in bringing the action obtains the whole, on the condition that he gives security that the one who paid will be defended against the other beneficiaries, whether they are partners or not.
§32.0.11.22Interdum alterius nomen scribitur in testamento, alteri uero fideicommissi petitio uel legati competit, ut puta si fidei heredis committatur, ut ipse publicum pro Titio praestet, fideicommissum hoc uel legatum non publicanus petit, licet ei sit adscriptum, sed ipse petere poterit, pro quo legatum relictum est.
Sometimes the name of one person is written in the will, but the claim for the trust or legacy belongs to another.
multum autem interesse arbitror, cui uoluit prospectum cuiusque contemplatione testator fecerit.
For example, if it is entrusted to the faith of the heir to pay the public tax for Titius; the tax collector does not claim this trust or legacy, even though it is written down for him, but he for whom the legacy was left can claim it himself.
plerumque autem intellegendum est priuati causa hoc fecisse, licet emolumentum publicano quaeratur.
But I think it matters a great deal for whose benefit the testator wished to provide, and in contemplation of whom he did so; and generally it must be understood that he did this for the sake of the private individual, even though the advantage is acquired for the tax collector.
§32.0.11.23Si in opere ciuitatis faciendo aliquid relictum sit, unumquemque heredem in solidum teneri diuus Marcus et Lucius Uerus Proculae rescripserunt: tempus tamen coheredi praestituerunt, intra quod mittat ad opus faciendum, post quod solam Proculam uoluerunt facere imputaturam coheredi sumptum pro parte eius.
If something has been left for the construction of a public work of a city, the deified Marcus and Lucius Verus replied by rescript to Procula that each heir is bound for the whole; however, they prescribed a time for the co-heir within which he should send men to perform the work, after which they wished Procula alone to do it, charging the co-heir with the expense in proportion to his share.
§32.0.11.24Ergo et in statua et in seruitute ceterisque, quae diuisionem non recipiunt, idem diuus Marcus rescripsit.
Therefore, the same deified Marcus replied by rescript also concerning a statue, a servitude, and other things which do not admit of division.
§32.0.11.25Si quis opus facere iussus paratus sit pecuniam dare rei publicae, ut ipsa faciat, cum testator per ipsum id fieri uoluerit, non audietur: et ita diuus Marcus rescripsit.
If someone ordered to perform a work is ready to give money to the state so that it may do it itself, when the testator wished it to be done by him, he shall not be heard; and the deified Marcus replied by rescript to this effect.