[IDEM libro nono decimo digestorum. ] §32.0.38.prPater filium heredem praedia alienare seu pignori ponere prohibuerat, sed conseruari liberis ex iustis nuptiis et ceteris cognatis fideicommiserat: filius praedia, quae pater obligata reliquerat, dimisso hereditario creditore nummis noui creditoris, a priore in sequentem creditorem pignoris hypothecaeue nomine transtulit: quaesitum est, an pignus recte contractum esset.
A father had prohibited his son, whom he had appointed heir, from alienating or pledging estates, but had left them under a trust to be preserved for his children from a lawful marriage and his other cognates. The son, having discharged the hereditary creditor with money from a new creditor, transferred the estates, which the father had left encumbered, from the prior to the subsequent creditor under the title of pledge or mortgage. It was asked whether the pledge was validly contracted.
respondit secundum ea quae proponerentur recte contractum.
He answered that according to the facts presented, it was validly contracted.
idem quaesiit, cum filius praedia hereditaria, ut dimitteret hereditarios creditores, distraxisset, an emptores, qui fideicommissum ignorauerunt, bene emerint.
The same person asked, since the son had sold hereditary estates in order to discharge the hereditary creditors, whether the buyers, who were ignorant of the trust, had purchased validly.
respondi secundum ea quae proponerentur recte contractum, si non erat aliud in hereditate, unde debitum exsoluisset.
He answered that according to the facts presented, it was validly contracted, if there was nothing else in the inheritance from which he could have discharged the debt.
§32.0.38.1Duobus libertis Sticho et Erote heredibus institutis ita cauit: 'fundum Cornelianum de nomine meorum exire ueto': unus ex heredibus Stichus ancillam Arescusam testamento liberam esse iussit eique partem suam fundi legauit: quaero, an Eros et ceteri conliberti Stichi ex causa fideicommissi eius fundi partem ab herede Stichi petere possint.
Having appointed two freedmen, Stichus and Eros, as heirs, he provided as follows: "I forbid the Cornelian estate to leave the name of my people." One of the heirs, Stichus, ordered his female slave Arescusa to be free in his testament, and bequeathed to her his share of the estate. I ask whether Eros and the other fellow freedmen of Stichus can, on the ground of the trust, claim that part of the estate from the heir of Stichus.
respondit non contineri.
He answered that it was not included.
§32.0.38.2Filiam suam heredem scripserat et ita cauerat: 'ueto autem aedificium de nomine meo exire, sed ad uernas meos, quos hoc testamento 'nominaui, pertinere uolo': quaesitum est, defuncta herede et legatariis uernis an ad unum libertum qui remansit totum fideicommissum pertineret.
He had written his daughter as heir and had provided as follows: "However, I forbid the building to leave my name, but I wish it to belong to my home-born slaves whom I have named in this testament." It was asked, upon the death of the heir and of the home-born slaves who were legatees, whether the entire trust belonged to the one freedman who remained.
respondit ad eum, qui ex uernis superesset, secundum ea quae proponerentur uirilem partem pertinere.
He answered that according to the facts presented, a virile share belonged to him who survived from the home-born slaves.
§32.0.38.3Fundum a filio, quoad uixerit, uetuit uenundari donari pignerari et haec uerba adiecit: 'quod si aduersus uoluntatem meam facere uoluerit, fundum Titianum ad fiscum pertinere: ita enim fiet, ut 'fundus Titianus de nomine uestro numquam exeat'. quaesitum est, cum uiuus filius eum fundum secundum uoluntatem patris retinuerit, an defuncto eo non ad heredes scriptos a filio, sed ad eos, qui de familia sunt, pertineat.
He prohibited the estate from being sold, donated, or pledged by his son as long as he lived, and added these words: "But if he should wish to act against my will, the Titian estate shall belong to the treasury; for in this way it will come about that the Titian estate will never leave your name." It was asked, when the son during his lifetime had retained the estate according to his father's will, whether upon his death it belonged not to the heirs appointed by the son, but to those who are of the family.
respondit hoc ex uoluntate defuncti colligi posse filium quoad uiueret alienare uel pignerare non posse, testamenti autem factionem et in eo fundo in extraneos etiam heredes habiturum.
He answered that it could be gathered from the will of the deceased that the son could not alienate or pledge it as long as he lived, but that he would have the power of testation even regarding that estate, even in favor of outside heirs.
§32.0.38.4Iulius Agrippa primipilaris testamento suo cauit, ne ullo modo reliquias eius et praedium suburbanum aut domum maiorem heres eius pigneraret aut ullo modo alienaret: filia eius heres scripta heredem reliquit filiam suam neptem primipilaris, quae easdem res diu possedit et decedens extraneos instituit heredes.
Julius Agrippa, a primipilaris, provided in his testament that his heir should not in any way pledge or alienate his remains, his suburban estate, or his larger house. His daughter, having been appointed heir, left as her heir her own daughter, the granddaughter of the primipilaris, who possessed the same things for a long time and, upon dying, appointed outside heirs.
quaesitum est, an ea praedia extraneus heres haberet an uero ad Iuliam Domnam, quae habuit patruum maiorem Iulium Agrippam, pertinerent.
It was asked whether the outside heir should have those estates, or whether they belonged to Julia Domna, who had Julius Agrippa as a great-uncle.
respondi, cum hoc nudum praeceptum est, nihil proponi contra uoluntatem defuncti factum, quo minus ad heredes pertinerent.
He answered that since this was a mere naked precept, nothing was presented as done against the will of the deceased to prevent them from belonging to the heirs.
§32.0.38.5Quindecim libertis, quos nominauerat, praediolum cum taberna legauerat et adiecerat haec uerba: 'sibique eos habere possidere uolo ea lege et condicione, ne quis eorum partem suam uendere donareue aliudue quid facere alii uelit: quod si aduersus ea quid factum erit, tunc eas portiones praediumue cum taberna ad rem publicam Tusculanorum pertinere uolo'. quidam ex his libertis uendiderunt partes suas duobus conlibertis suis ex eodem corpore, emptores autem defuncti Gaium Seium extraneum heredem reliquerunt: quaesitum est, partes quae uenierunt utrum ad Gaium Seitum an ad superstites collibertos suos, qui partes suas non uendiderunt, pertinerent.
He had bequeathed a small estate with a tavern to fifteen freedmen whom he had named, and had added these words: "And I wish them to hold and possess these under this law and condition, that none of them shall wish to sell or donate his share, or do anything else with it to another. But if anything should be done against these terms, then I wish those shares, or the estate with the tavern, to belong to the municipality of the Tusculans." Certain of these freedmen sold their shares to two of their fellow freedmen from the same body, and the buyers, having died, left Gaius Seius, an outsider, as heir. It was asked whether the shares that were sold belonged to Gaius Seius, or to their surviving fellow freedmen who did not sell their shares.
respondit secundum ea quae proponerentur ad Gaium Seium pertinere.
He answered that according to the facts presented, they belonged to Gaius Seius.
idem quaesiit, an partes uenditae ad rem publicam Tusculanorum pertinerent.
The same person asked whether the sold shares belonged to the municipality of the Tusculans.
respondi non pertinere.
He answered that they did not.
CLAUDIUS: quia non possidentis persona, qui nunc extraneus est, respicienda est, sed emptorum, qui secundum uoluntatem defunctae ex illis fuerunt, quibus permiserat testatrix uenundari, nec condicio exstitit dati fideicommissi Tusculanis.
CLAUDIUS: Because regard is to be had not to the person of the possessor, who is now an outsider, but to that of the buyers, who according to the will of the deceased were among those to whom the testatrix had permitted alienation, nor did the condition of the trust given to the Tusculans exist.
§32.0.38.6Fidei commissit eius, cui duo milia legauit, in haec uerba: 'a te, Petroni, peto, uti ea duo milia solidorum reddas collegio cuiusdam templi'. quaesitum est, cum id collegium postea dissolutum sit, utrum legatum ad Petronium pertineat an uero apud heredem remanere debeat.
He entrusted a trust to the one to whom he had bequeathed two thousand, in these words: "I ask of you, Petronius, that you return those two thousand solidi to the association of a certain temple." It was asked, since that association was subsequently dissolved, whether the legacy belonged to Petronius, or whether it ought to remain with the heir.
respondit Petronium iure petere, utique si per eum non stetit parere defuncti uoluntati.
He answered that Petronius could lawfully claim it, provided at least that it was not through him that the will of the deceased was not complied with.
§32.0.38.7Mater filios heredes scripserat et adiecit: 'praedia, quae ad eos ex bonis meis peruentura sunt, nulla ex causa abalienent, sed conseruent successioni suae deque ea re inuicem sibi cauerent': ex his uerbis quaesitum est, an praedia per fideicommissum relicta uideantur.
A mother had written her sons as heirs and added: "They shall not alienate for any reason the estates that are to come to them from my property, but shall preserve them for their own succession and shall give mutual security to each other regarding this matter." From these words it was asked whether the estates seemed to have been left under a trust.
respondit nihil de fideicommisso proponi.
He answered that nothing was presented concerning a trust.
§32.0.38.8Ex parte dimidia heredi instituto per praeceptionem fundum legauit et ab eo ita petit: 'peto, uti uelis coheredem tibi recipere in fundo Iuliano meo, quem hoc amplius te praecipere iussi, Clodium Uerum nepotem meum, cognatum tuum': quaesitum est, an pars fundi ex causa fideicommissi nepoti debeatur.
He bequeathed an estate by preception to an heir appointed for a half share, and requested of him as follows: "I ask that you be willing to admit as a co-heir to my Julian estate, which I have ordered you to take additionally by preception, Clodius Verus, my grandson and your relative." It was asked whether a share of the estate was due to the grandson on the ground of the trust.
respondit deberi.
He answered that it was due.