[IDEM libro uicesimo digestorum. ] §32.0.39.pr'Pamphilo liberto hoc amplius, quam codicillis reliqui, dari uolo centum.
"I wish one hundred to be given to my freedman Pamphilus, additionally to what I left in my codicils.
scio omnia, quae tibi, Pamphile, relinquo, ad filios meos peruentura, cum affectionem tuam circa eos bene perspectam habeo'. quaero, an uerbis supra scriptis Pamphili fidei commissit, ut post mortem filiis defuncti centum restituat.
I know, Pamphilus, that everything I leave to you will come to my children, since I have your affection towards them well-proven." I ask whether, by the words written above, it was entrusted to the trust of Pamphilus to restore the hundred to the children of the deceased after his death.
respondit secundum ea quae proponerentur non uideri quidem, quantum ad uerba testatoris pertinet, fidei commissum Pamphili, ut centum restitueret: sed cum sententiam defuncti a liberto decipi satis inhumanum est, centum ei relictos filiis testatoris debere restitui, quia in simili specie et imperator noster diuus Marcus hoc constituit.
He answered that according to the facts presented, as far as the words of the testator are concerned, there indeed does not seem to be a trust imposed on Pamphilus to restore the hundred; but since it is highly inhuman that the intention of the deceased should be cheated by his freedman, the hundred left to him ought to be restored to the children of the testator, because in a similar case our emperor, the divine Marcus, also decided this.
§32.0.39.1Propositum est non habentem liberos nec cognatos in discrimine uitae constitutum per infirmitatem arcessitis amicis Gaio Seio contubernali dixisse, quod uellet ei relinquere praedia quae nominasset, eaque dicta in testationem Gaium Seium redegisse etiam ipso testatore interrogato, an ea dixisset, et responso eius tali μάλιστα inserto: quaesitum est, an praedia, quae destinata essent, ex causa fideicommissi ad Gaium Seium pertinerent.
It was presented as a fact that a person who had neither children nor cognates, being in danger of his life through illness, summoned his friends and said to his companion Gaius Seius that he wished to leave to him the estates he had named, and that Gaius Seius reduced these spoken words into a written attestation, with the testator himself also being asked whether he had said those things, and his response of such a "by all means (μάλιστα)" being inserted: it was asked whether the estates that had been designated belonged to Gaius Seius on the ground of the trust.
respondit super hoc nec dubitandum esse, quin fideicommissum ualet.
He answered that on this matter there was no doubt that the trust is valid.
§32.0.39.2Duas filias aequis ex partibus heredes fecerat: alteri fundum praelegauerat et ab ea petierat, ut sorori suae uiginti daret: ab eadem filia petit, ut partem dimidiam fundi eidem sorori restitueret: quaesitum est, an uiginti praestari non deberent.
He had made his two daughters heirs in equal shares: he had pre-bequeathed an estate to one of them and had requested of her that she give twenty to her sister; from the same daughter he requested that she restore a half share of the estate to the same sister: it was asked whether the twenty ought not to be paid.
respondi non esse praestanda.
He answered that they are not to be paid.