[LABEO libro secundo posteriorum a IAUOLENO epitomatorum. ] §32.0.29.prQui concubinam habebat, ei uestem prioris concubinae utendam dederat, deinde ita legauit: 'uestem, quae eius causa empta parata esset'.
[LABEO, in the second book of his Posthumous Works epitomized by JAVOLENUS.] A man who kept a concubine had given her the clothing of his former concubine to use, and then bequeathed as follows: "The clothing which has been bought and prepared for her." Cascellius and Trebatius deny that the things prepared for the former concubine are due to her, because the condition in the case of a wife would be different.
Cascellius Trebatins negant ei deberi prioris concubinae causa parata, quia alia condicio esset in uxore. Labeo id non probat, quia in eiusmodi legato non ius uxorium sequendum, sed uerborum interpretatio esset facienda idemque uel in filia uel in qualibet alia persona iuris esset.
Labeo does not approve of this, because in a bequest of this kind, the law concerning a wife should not be followed, but an interpretation of the words must be made, and the same rule of law would apply either in the case of a daughter or of any other person.
Labeonis sententia uera est.
Labeo's opinion is correct.
§32.0.29.1Cum ita legatum esset, ut Titia uxor mea tantandem partem habeat quantulam unus heres, si non aequales partes essent heredum, Quintus Mucius et Gallus putabant maximam partem legatam esse, quia in maiore minor quoque inesset, Seruius Ofilius minimam, quia cum heres dare damnatus esset, in potestate eius esset, quam partem daret.
When it had been bequeathed as follows: "Let my wife Titia have just as large a share as a single heir," if the shares of the heirs were not equal, Quintus Mucius and Gallus thought that the largest share was bequeathed, because the smaller is also included in the larger; Servius and Ofilius, the smallest, because when an heir was condemned to give, it would be in his power to decide which share to give.
Labeo hoc probat idque uerum est.
Labeo approves of this, and it is correct.
§32.0.29.2Cum ita legatum esset: 'quanta pecunia ex hereditate Titii ad me peruenit, tantam pecuniam heres meus Seiae dato', id legatum putat Labeo, quod acceptum in tabulis suis ex ea hereditate testator rettulisset: ceterum negat cauendum heredi a legatario, si quid forte postea eius hereditatis nomine heres damnatus esset.
When it had been bequeathed as follows: "Whatever money from the inheritance of Titius came to me, let my heir give that amount of money to Seia," Labeo thinks that what the testator had entered in his books as received from that inheritance is bequeathed; but he denies that the heir must be secured by the legatee if by chance the heir should afterwards be condemned under the name of that inheritance.
ego contra puto, quia non potest uideri peruenisse ad heredem, quod eius hereditatis nomine praestaturus esset: idem Alfenus Uarus Seruio placuisse scribit, quod et uerum est.
I think the contrary, because that which he would have to pay under the name of that inheritance cannot be deemed to have come to the heir; Alfenus Varus writes that Servius was of the same opinion, which is also correct.
§32.0.29.3Si heres tibi seruo generaliter legato Stichum tradiderit isque a te euictus fuisset, posse te ex testamento agere Labeo scribit, quia non uidetur heres dedisse, quod ita dederat, ut habere non possis: et hoc uerum puto.
If the heir delivers Stichus to you on account of a slave bequeathed to you generally, and he has been evicted from you, Labeo writes that you can sue on the testament, because the heir is not deemed to have given what he gave in such a way that you cannot hold it; and I think this is correct.
sed hoc amplius ait debere te, priusquam iudicium accipiatur, denuntiare heredi: nam si aliter feceris, agenti ex testamento opponetur tibi doli mali exceptio.
But he says furthermore that you ought, before the joinder of issue, to give notice to the heir; for if you do otherwise, the exception of fraud will be opposed to you when you sue on the testament.
§32.0.29.4'Si Stichus et Dama serui mei in potestate mea erunt cum moriar, tum Stichus et Dama liberi sunto et fundum illum sibi habento'. si alterum ex his post testamentum factum dominus alienasset uel manumississet, neutrum liberum futurum Labeo putat: sed Tubero eum, qui remansisset in potestate, liberum futurum et legatum habiturum putat.
"If my slaves Stichus and Dama are in my power when I die, then let Stichus and Dama be free and have that land for themselves." If the owner, after making the testament, had alienated or manumitted one of these, Labeo thinks that neither will be free; but Tubero thinks that the one who remained in his power will be free and will have the bequest.
Tuberonis sententiam uoluntati defuncti magis puto conuenire.
I think Tubero's opinion is more in accordance with the intention of the deceased.