[IDEM libro uicesimo secundo digestorum. ] §32.0.41.prUxorem et filium communem heredes instituit et uxoris fidei commisit in haec uerba: 'peto a te, domina uxor, ne ex fundo Titiano partem tibi uindices, cum scias me uniuersam emptionem eius fundi fecisse, sed beneficio affectionis et pietatis, quam tibi debui, eandem emptionem, cum nummis meis comparassem, tecum communicasse': quaesitum est, an eum fundum in solidum filii esse uoluerit.
[THE SAME, from the twenty-second book of the Digests.] He appointed his wife and their common son as heirs, and committed to the trust of his wife in these words: 'I ask of you, my lady wife, not to claim a share for yourself from the Titian estate, since you know that I made the entire purchase of that estate, but out of the favor of affection and devotion which I owed to you, I shared that same purchase with you, although I had bought it with my own money.' It was asked whether he wished that estate to belong to his son in full.
respondit eum, de quo quaereretur, perinde rationem in fundo haberi uoluisse ac si uniuersus hereditarius esset, ut pro dimidia parte et uxor et filius agrum ut hereditarium habeant. §32.0.41.1In testamento ita scriptum fuit: 'domum meam cum horto applicito libertis meis concedi uolo' et alio capite: 'Fortunio liberto meo ex domu mea, quam libertis dedi, diaetam, in qua habitabam, item cellarium iunctum eidem diaetae ab herede meo concedi uolo'.
He answered that he wished the estate in question to be treated in the same manner as if it were entirely part of the inheritance, so that both the wife and the son should have the land as part of the inheritance for a half share each. In a will it was written as follows: 'I wish my house with the adjoining garden to be granted to my freedmen'; and in another clause: 'I wish that to my freedman Fortunius, from my house which I gave to my freedmen, the suite of rooms in which I used to live, and also the storeroom joined to the same suite, be granted by my heir.' It was asked whether the heir of the testator appears to be burdened with performing the legacy to Fortunius, although the entire house was pre-bequeathed to the freedmen.
quaesitum est, an heres testatoris oneratus uideatur in praestando legato Fortunio, quamuis domus uniuersa libertis sit praelegata. respondit non esse oneratum. §32.0.41.2Codicillis confirmatis ita cauit: 'omnibus autem libertis meis et quos uiuus et quos his codicillis manumissi uel postea manumisero, contubernales suas, item filios filias lego, nisi si quos quasue ad uxorem meam testamento pertinere uolui uel ei nominatim legaui legauero'. idem postea petiit ab heredibus suis, ut regionem Umbriae Tusciae Piceno coheredes uxori suae restituerent cum omnibus, quae ibi erunt, et mancipiis rusticis uel urbanis et actoribus exceptis manumissis.
He answered that the heir was not burdened. In his confirmed codicils he provided as follows: 'To all my freedmen, both those whom I have manumitted during my lifetime, and those whom I have manumitted by these codicils or shall manumit hereafter, I bequeath their female companions, as well as their sons and daughters, except any whom I wished by my will to belong to my wife, or whom I have bequeathed or shall bequeath to her by name.' The same man afterwards requested of his heirs that the co-heirs should restore to his wife the region of Umbria, Etruria, and Picenum, with all things that should be there, both rustic and urban slaves, and managers, except those manumitted.
quaesitum est, cum Eros et Stichus serui in diem uitae testatoris in Umbria in Piceno actum administrauerint, sint autem Damae, quem testator uiuus manumiserat, filii naturales, utrum eidem Damae ex uerbis codicilli ab heredibus praestandi sint, an uero ad Seiam uxorem ex uerbis epistulae pertineant.
It was asked, since the slaves Eros and Stichus had administered the management in Umbria and Picenum up to the last day of the testator's life, and were the natural sons of Damas, whom the testator had manumitted during his lifetime, whether they ought to be delivered to the same Damas from the words of the codicil by the heirs, or whether they belong to his wife Seia from the words of the letter.
respondit ex codicillis ad patrem eos naturalem pietatis intuitu pertinere. §32.0.41.3Felicissimo et Felicissimae, quibus libertatem dederat, fundum Gargilianum legauit cum casa, et alio capite Titio filio, quem ex parte quarta heredem scripserat, praelegauerat in haec uerba: 'Titi fili, hoc amplius de medio sumito legata mea, quae mihi tam pater tuus Praesens quam Coelius Iustus frater patris reliquerunt'. quaesitum est, cum fundus Gargilianus testatrici a marito eius, id est a patre Titii filii legatus sit, cui fundus ex causa fideicommissi debeatur, utrum Titio filio tantum an Felicissimo et Felicissimae an tribus.
He answered that by virtue of the codicils they belong to their natural father out of regard for natural affection. She bequeathed the Gargilian estate with a cottage to Felicissimus and Felicissima, to whom she had given freedom; and in another clause, she had pre-bequeathed to her son Titius, whom she had appointed heir to a quarter share, in these words: 'My son Titius, take in addition from the common fund my legacies which both your father Praesens and Coelius Justus, your father's brother, left to me.' It was asked, since the Gargilian estate had been bequeathed to the testatrix by her husband (that is, by the father of her son Titius), to whom the estate is due by virtue of the trust: to the son Titius alone, or to Felicissimus and Felicissima, or to all three?
respondit non esse uerisimile `eam, quae nihil aliud Felicissimo et Felicissimae nisi haec quae specialiter legauit, ad filium, cui et hereditatis suae partem reliquit, legatum generali sermone transferre uoluisse. §32.0.41.4Testamento pueros ita legauerat: 'Publio Maeuio dominulo meo ab heredibus meis dari uolo pueros quinque ex meis dumtaxat intra annos septem': post annos complures, quam fecit testamentum, moritur.
He answered that it is not probable that she, who bequeathed nothing else to Felicissimus and Felicissima except these things which she specially bequeathed, wished to transfer the legacy by general language to her son, to whom she also left a share of her inheritance. In her will she had bequeathed boys as follows: 'I wish that five boys from among mine who are at least under seven years of age be given by my heirs to my young master Publius Maevius.' She died several years after she made the will.
quaesitum est, cuius aetatis Maeuio mancipia debeantur, utrumne quae testamenti facti tempore intra septem annos fuerunt an quae mortis tempore intra eam aetatem inueniantur.
It was asked, of what age the slaves ought to be delivered to Maevius: whether those who were under seven years at the time the will was made, or those who are found to be under that age at the time of her death.
respondit eam uideri aetatem designatam, quae esset, cum a testatore relinquerentur.
He answered that that age seems to have been designated which they would be when they were left by the testator.