[ULPIANUS libro secundo fideicommissorum. ] §32.0.11.prFideicommissa quocumque sermone relinqui possunt, non solum Latina uel Graeca, sed etiam Punica uel Gallicana uel alterius cuiuscumque gentis.
[ULPIAN from the second book on Trusts.] Trusts can be left in any language whatsoever, not only Latin or Greek, but also Punic or Gallic, or that of any other nation whatsoever.
§32.0.11.1Quotiens quis exemplum testamenti praeparat et prius decedat quam testetur, non ualent quasi ex codicillis quae in exemplo scripta sunt, licet uerba fideicommissi scriptura habeat: et ita diuum Pium decreuisse Maecianus scribit.
Whenever someone prepares a draft of a will and dies before making the will, the things written in the draft are not valid as if from a codicil, even though the writing contains the words of a trust; and Maecianus writes that the deified Pius decreed thus.
§32.0.11.2Si ita quis scripserit: 'illum tibi commendo', diuus Pius rescripsit fideicommissum non deberi: aliud est enim personam commendare, aliud uoluntatem suam fideicommittentis heredibus insinuare.
If someone writes as follows: "I commend him to you," the deified Pius replied by rescript that a trust is not owed; for it is one thing to commend a person, and another to convey one's will as a trustor to the heirs.
§32.0.11.3Cum esset quis rogatus restituere portionem accepta certa quantitate, responsum est ultro petere ipsum fideicommissum ab herede posse.
When someone has been requested to restore a portion upon receiving a certain sum, it was answered that he can of his own accord claim the trust itself from the heir.
sed utrum, si uolet, praecipiet restituetque portionem, an uero et si noluerit, cogatur accepta quantitate portionem restituere, propriae est deliberationis.
But whether, if he wishes, he shall take the sum beforehand and restore the portion, or indeed even if he does not wish, he is compelled to restore the portion upon receiving the sum, is a matter of his own choice.
et sane cum quis rogatur accepta certa quantitate portionem restituere, duplex est fideicommissum, unum, ut possit petere quantitatem paratus portione cedere, aliud, ut et si non petet, tamen cogatur fideicommissario restituere parato praestare quantitatem.
And indeed, when someone is requested to restore a portion upon receiving a certain sum, the trust is twofold: one, that he can claim the sum, being ready to yield the portion; the other, that even if he does not claim it, he is nevertheless compelled to restore the portion to the beneficiary who is ready to provide the sum.
§32.0.11.4Si quis ita scripserit: 'sufficiunt tibi uineae uel fundus', fideicommissum est, quoniam et illud fideicommissum esse arbitramur: 'contentus esto illa re'. §32.0.11.5Sic fideicommissum relictum: 'nisi heres meus noluerit, illi decem dari uolo' quasi condicionale fideicommissum est et primam uoluntatem exigit: ideoque post primam uoluntatem non erit arbitrium heredis dicendi noluisse.
If someone writes as follows: "The vineyards or the estate are sufficient for you," it is a trust, since we judge that this also is a trust: "Be content with that thing." A trust left as follows: "Unless my heir is unwilling, I wish ten to be given to him," is as it were a conditional trust and requires the initial expression of will; and therefore after the initial expression of will, the heir will have no discretion to say that he was unwilling.
§32.0.11.6Hoc autem 'cum uoluerit' tractum habet, quamdiu uiuat is, a quo fideicommissum relictum est: uerum si antequam dederit, decesserit, heres eius praestat.
However, this expression "when he wishes" has duration as long as he lives from whom the trust was left; but if he dies before he has given it, his heir performs it.
sed et si fideicommissarius, antequam heres constituat, decesserit, ad heredem suum nihil transtulisse uidetur: condicionale enim esse legatum nemini dubium est et pendente condicione legati uideri decessisse fideicommissarium.
But also, if the beneficiary dies before the heir decides, he is deemed to have transferred nothing to his own heir; for no one doubts that the legacy is conditional, and that the beneficiary is deemed to have died while the condition of the legacy was pending.
§32.0.11.7Quamquam autem fideicommissum ita relictum non debeatur 'si uolueris', tamen si ita adscriptum fuerit: 'si fueris 'arbitratus' 'si putaueris' 'si aestimaueris' 'si utile tibi fuerit uisum' uel 'uidebitur', debebitur: non enim plenum arbitrium uoluntatis heredi dedit, sed quasi uiro bono commissum relictum.
Although, however, a trust left in this way: "if you wish," is not owed, nevertheless if it is added as follows: "if you judge," "if you think," "if you estimate," "if it seems useful to you," or "shall seem," it will be owed; for the testator did not give full discretion of will to the heir, but the trust was left as if entrusted to an honorable man.
§32.0.11.8Proinde si ita sit fideicommissum relictum: 'illi, si te meruerit', omnimodo fideicommissum debebitur, si modo meritum quasi apud uirum bonum collocare fideicommissarius potuit: et si ita sit 'si te non offenderit', aeque debebitur: nec poterit heres causari non esse meritum, si alius uir bonus et non infestus meritum potuit admittere.
Accordingly, if a trust is left as follows: "to him, if he deserves well of you," the trust will be owed in every way, provided that the beneficiary could establish his merit as if before an honorable man; and if it is as follows: "if he does not offend you," it will equally be owed; nor will the heir be able to allege that there was no merit, if another honorable and non-hostile man could have acknowledged the merit.
§32.0.11.9Haec uerba: 'te, fili, rogo, ut praedia, quae ad te peruenerint, pro tua-diligentia diligas et curam eorum agas, ut possint ad filios tuos peruenire', licet non satis exprimunt fideicommissum, sed magis consilium quam necessitatem relinquendi, tamen es praedia in nepotibus post mortem patris eorum uim fideicommissi uidentur continere.
These words: "I ask you, son, to love the estates which shall come to you, in accordance with your diligence, and to take care of them, so that they can come to your sons," although they do not sufficiently express a trust, but rather a counsel than a necessity of leaving them, nevertheless those estates are deemed to contain the force of a trust in favor of the grandchildren after the death of their father.
§32.0.11.10Si filio a patre herede instituto fideicommissum relictum fuerit, etsi uerbis non sit ita relictum 'cum pater moreretur', sed intellegi hoc possit, puta quia sic relictum est 'ut relinquat filio' uel 'uolo eum habere' uel 'uolo ad eum pertinere', defendetur in id tempus fideicommissum relictum, quo sui iuris filius efficitur.
If a trust is left to a son by a father who has been instituted as heir, even if it is not in words left "when the father should die," but this can be understood, for instance because it is left in this way: "that he leave it to his son," or "I wish him to have it," or "I wish it to belong to him," it will be maintained that the trust was left for that time when the son becomes independent.
§32.0.11.11Si cui ita fuerit fideicommissum relictum: 'si morte patris sui iuris fuerit effectus' et emancipatione sui iuris factus sit, non uideri defecisse condicionem: sed et cum mors patri contingat, quasi exstante condicione ad fideicommissum admittetur.
If a trust has been left to someone as follows: "if he becomes independent by the death of his father," and he has become independent by emancipation, the condition is not deemed to have failed; but also when death happens to the father, he will be admitted to the trust as if the condition were fulfilled.
§32.0.11.12Si rem suam testator legauerit eamque necessitate urguente alienauerit, fideicommissum peti posse, nisi probetur adimere ei testatorem uoluisse: probationem autem mutatae uoluntatis ab heredibus exigendam.
If a testator has bequeathed his own property and has alienated it under pressing necessity, the trust can be claimed unless it is proved that the testator wished to revoke it from him; and the proof of the changed will must be demanded from the heirs.
§32.0.11.13Ergo et si nomen quis debitoris exegerit, quod per fideicommissum reliquit, non tamen hoc animo, quasi uellet extinguere fideicommissum, poterit dici deberi: nisi forte inter haec interest: hic enim extinguitur ipsa constantia debiti, ibi res durat, tametsi alienata sit.
Therefore, even if someone has collected the debt of a debtor which he left through a trust, but not with the intention as if he wished to extinguish the trust, it can be said that it is owed; unless perhaps there is a difference between these cases: for here the very existence of the debt is extinguished, while there the thing endures, even if it has been alienated.
cum tamen quidam nomen debitoris exegisset et pro deposito pecuniam habuisset, putaui fideicommissi petitionem superesse, maxime quia non ipse exegerat, sed debitor ultro pecuniam optulerat, quam offerente ipso non potuit non accipere.
However, when a certain person had collected a debtor's debt and held the money as a deposit, I thought that the claim for the trust survived, especially because he himself had not demanded it, but the debtor had offered the money of his own accord, which he could not but accept when it was offered.
paulatim igitur admittemus, etsi ex hac parte pecuniae rem comparauerit, quam non hoc animo exegit, ut fideicommissarium priuaret fideicommisso, posse adhuc fideicommissi petitionem superesse.
Gradually, therefore, we shall admit that, even if he has purchased a thing from this part of the money, which he did not collect with the intention of depriving the beneficiary of the trust, the claim for the trust can still survive.