[IDEM libro uicesimo primo digestorum. ] §32.0.40.prPost emancipationem patris suscepta a patruo ut legitimo herede petierat, ut partem hereditatis auunculo suo daret et agros duos: ad utrumque autem ut proximum cognatum successio eius pertinuit per bonorum possessionem.
[THE SAME, from the twenty-first book of the Digests.] A daughter born after her father's emancipation had requested of her paternal uncle, as her statutory heir, to give a portion of her inheritance and two fields to her maternal uncle; however, her succession devolved upon both of them through the possession of goods as the next of kin.
quaesitum est, cum in parte hereditatis fideicommissum non constiterit, quam suo iure per bonorum possessionem auunculus habiturus est, an nihilo minus in partem agrorum consistat, ut Titius partes agrorum duas, id est unam, quam suo iure per bonorum possessionem habeat, alteram uero partem ex causa fideicommissi petere debeat.
Since the trust did not take effect with respect to that portion of the inheritance which the maternal uncle was to have by his own right through the possession of goods, it was asked whether it nevertheless remains valid with respect to the portion of the fields, so that Titius must claim two portions of the fields, that is, one which he has by his own right through the possession of goods, and the other by virtue of the trust.
respondit posse petere.
He answered that he can so claim.
idem quaesiit, si ab eodem patruo fideicommissum aliis quoque dederit, utrum in solidum, an uero pro parte ab eo praestanda sint.
The same person asked: if she had also charged trusts for others on the same paternal uncle, whether they ought to be discharged by him in full or in proportion to his share.
respondit in solidum praestari.
He answered that they must be discharged in full.
§32.0.40.1Seiam ex dodrante, Maeuium ex quadrante instituit heredes, fidei Seiae commisit in haec uerba: 'a te peto tuaeque fidei committo, quidquid ex hereditate mea ad te peruenerit, restituas filio tuo retentis tibi hortis meis'. quaesitum est, cum generali capite fideicommississet 'quisquis heres esset de omnibus, ut praestarent quod cuique legasset praestari fieriue iussisset, an, cum dodrantem hereditatis restituerit, hortos in assem uindicare Seia debet.
He appointed Seia as heir to three-quarters, and Maevius to one-quarter, and entrusted to the trust of Seia in these words: "I ask of you and commit to your trust that whatever of my inheritance shall come to you, you restore to your son, retaining for yourself my gardens." Since he had charged a trust by a general clause: "whoever is heir, let them perform concerning all things what he had bequeathed or ordered to be performed or done for anyone," it was asked whether, when she has restored three-quarters of the inheritance, Seia ought to claim the gardens in their entirety.
respondit etiam coheredis fidei commissum uideri, ut quadrantem, quem in his hortis haberet, Seiae redderet.
He answered that a trust seems to have been imposed also on the co-heir, that he should restore to Seia the quarter share which he had in these gardens.