[IDEM libro uicesimo secundo digestorum. ] §33.1.21.prLiberto suo ita legauit: 'praestari uolo Philoni, usque dum uiuet, quinquagesimam omnis reditus, quae praediis a colonis uel emptoribus fructus ex consuetudine domus meae praestantur’. heredes praedia uendiderunt, ex quorum reditu quinquagesima relicta est: quaesitum est, an pretii usurae, quae ex consuetudine in prouincia praestarentur, quinquagesima debeatur.
[The same, in the twenty-second book of his Digests.] He bequeathed to his freedman as follows: "I desire that there be paid to Philon, as long as he lives, a fiftieth part of all income which is paid as fruits from the estates by the tenants or buyers according to the custom of my house." The heirs sold the estates from the income of which the fiftieth had been left: it was asked whether a fiftieth of the interest on the price, which was customarily paid in the province, was due.
respondit reditus dumtaxat quinquagesimas legatas, licet praedia uendita sunt.
He answered that only the fiftieths of the income had been bequeathed, even though the estates had been sold.
§33.1.21.1A liberto, cui fundum legauerat ferentem annua sexaginta, per fideicommissum dederat Pamphilae annua dena: quaesitum est, si lex Falcidia liberto legatum minuerit, an Pamphilae quoque annuum fideicommissum minutum uideatur, cum ex reditu legata sint, qui largitur, etiamsi Falcidia partem dimidiam fundi abstulerit, annuam Pamphilae praestationem.
From a freedman, to whom he had bequeathed land yielding sixty annually, he had given by fideicommissum ten annually to Pamphila: it was asked, if the Lex Falcidia should reduce the legacy to the freedman, whether the annual fideicommissum to Pamphila would also appear to be reduced, since it was bequeathed from the income, which is sufficient to provide the annual payment to Pamphila even if the Lex Falcidia should take away half of the land.
respondit secundum ea quae proponerentur non uideri minutum, nisi si alia mens testatoris probaretur.
He answered that, according to the facts submitted, it did not appear to be reduced, unless a different intention of the testator were proved.
§33.1.21.2Filium ex dodrante, uxorem ex quadrante instituit heredes et filii fidei commisit, ut nouercae restitueret hereditatem: ab ea autem petit, ut infirmitatem filii commendatam haberet eique menstruos aureos denos praestaret, donec ad uicesimum quintum annum aetatis peruenerit, cum autem implesset eam aetatem, partem dimidiam hereditatis ei restitueret.
He appointed his son heir to three-quarters and his wife to one-quarter, and committed to his son's good faith to restore the inheritance to his stepmother; but from her he requested that she have the infirmity of the son recommended to her care, and pay him ten gold pieces monthly until he reached his twenty-fifth year of age, and when he fulfilled that age, she should restore to him a half share of the inheritance.
filius deducta dodrantis parte quarta, ex qua institutus erat, nouercae hereditatem restituit et postea impleuit uicesimum quintum annum aetatis.
The son, having deducted a fourth part of the three-quarters of which he had been appointed heir, restored the inheritance to his stepmother, and afterwards completed his twenty-fifth year of age.
quaesitum est, cum nouerca uniuersae hereditatis haberet dodrantem semunciam et sicilicum, an eius partem dimidiam priuigno suo restitueret.
It was asked, since the stepmother held nine-twelfths, a twenty-fourth, and a forty-eighth of the entire inheritance, whether she should restore half of it to her stepson.
respondit secundum ea quae proponerentur tantum restituendum, quantum cum eo, quod Falcidiae nomine filius deduxisset, semissem faceret.
He answered that, according to the facts submitted, only so much was to be restored as would, together with that which the son had deducted under the Lex Falcidia, make up a half.
idem quaesiit, an, quod infirmitati filii pater consulere uoluerit, fructus quoque medii temporis nouerca ei restituere deberet.
The same person asked whether, because the father wished to provide for the infirmity of his son, the stepmother ought also to restore to him the fruits of the intermediate time.
respondit secundum ea quae proponerentur debere.
He answered that, according to the facts submitted, she ought to do so.
§33.1.21.3Lucius Titius testamento patriae suae ciuitati Sebastenorum centum legauit, uti alternis annis ex usuris eiusdem certamina sub nomine ipsius celebrarentur, et adiecit haec uerba: 'quod si condicione supra scripta recipere legatam sibi pecuniam ciuitas Sebastenorum noluerit, nullomodo heredes meos obligatos ei esse uolo, sed habere sibi pecuniam'. postea praeses prouinciae ex nominibus debitorum hereditariorum elegit idonea nomina et in causam legati rei publicae adiudicauit, post cuius sententiam res publica a plerisque adiudicatis sibi pecunias percepit.
Lucius Titius bequeathed by testament one hundred to his native city of the Sebastenians, so that every other year contests should be celebrated under his name from the interest of the same, and he added these words: "But if the city of the Sebastenians should not wish to receive the money bequeathed to it under the condition written above, I do not wish my heirs to be bound to it in any way, but to keep the money for themselves." Afterwards, the governor of the province chose suitable names from the roster of the inheritance debtors and adjudged them to the municipality for the purpose of the legacy; after his decree, the municipality received the monies from most of those adjudged.
quaesitum est, an, si res publica condicionibus testamento adscriptis postea non paruerit, legatum ad filios heredes pertineat.
It was asked whether, if the municipality did not subsequently comply with the conditions attached to the testament, the legacy would belong to the sons who were heirs.
respondit rem publicam uoluntati testatoris parere compellendam ac, nisi faciat, in his quidem summis, quae per numerationem uel nouationem solutae sunt, utili repetitione heredes adiuuandos: ab his uero nominibus, quae neque soluerunt rei publicae neque nouatione abscesserunt a pristina obligatione, non prohibendos, quo minus debitum petant.
He answered that the municipality must be compelled to comply with the will of the testator, and, if it should fail to do so, then indeed with respect to those sums which were paid by cash payment or novation, the heirs should be aided by a useful action for recovery; but as to those names which neither paid the municipality nor departed from their former obligation by novation, the heirs should not be prohibited from suing for the debt.
§33.1.21.4Largius Eurippianus consuluit alumno certam pecuniam patronum testamento legasse deque ea re testamento ita cauisse: 'pecuniam, quam Titio liberto et alumno meo legaui, esse uolo penes Publium Maeuium usque ad annum uicesimum quintum aetatis eius proque ea computari cum eo usuras quadrantes: quantum autem in sumptum ei statuendum sit, tu, Publi Maeui, cum patris affectum ei praestare debeas, aestimabis'. quaesitum est, an heredes a Publio Maeuio satis accipere debuerint soluentes eam pecuniam.
Largius Eurippianus gave advice that a patron had bequeathed a certain sum of money to his foster child by testament, and had provided in his testament regarding this matter as follows: "The money which I have bequeathed to Titius, my freedman and foster child, I wish to remain in the hands of Publium Maevius until his twenty-fifth year of age, and that interest at three percent be calculated with him for it; but as to how much should be established for his expenses, you, Publius Maevius, since you ought to show him a father's affection, shall determine." It was asked whether the heirs, when paying that money, ought to have received security from Publius Maevius.
respondit, cum testamento nulla exigendae satisdationis commemoratio fiat, satis habuisse heredes secundum uoluntatem defuncti Publio Maeuio pecuniam numerare: et ideo nec Titius alumnus uel heredes eius audiri debeant aduersus heredes patroni agentes, quod satis non exegerunt: ex ea enim numeratione etiam a Titio ac proinde etiam ab heredibus eius liberatos esse supra scriptos heredes, nisi uiuente testatore Publius Maeuius soluendo esse desierit: tunc enim cautio ab eo exigenda est.
He answered that, since no mention was made in the testament of demanding security, it was sufficient for the heirs to pay the money to Publius Maevius in accordance with the will of the deceased; and therefore neither Titius the foster child nor his heirs ought to be heard if they bring an action against the heirs of the patron on the ground that they did not demand security; for by that payment the above-mentioned heirs were released both from Titius and consequently also from his heirs, unless Publius Maevius had ceased to be solvent during the lifetime of the testator, in which case security must be demanded from him.
§33.1.21.5Pater duos filios aequis ex partibus instituit heredes, maiorem et minorem, qui etiam impubes erat, et in partem eius certa praedia reliquit et, cum quattuordecim annos impleuerit, certam pecuniam ei legauit idque fratris eius fidei commisit, a quo petit in haec uerba: 'a te peto, Sei, ut ab annis duodecim aetatis ad studia liberalia fratris tui inferas matri eius annua tot usque ad annos quattuordecim: eo amplius tributa fratris tui pro censu eius dependas, donec bona restituas: et ad te reditus praediorum illorum pertineant, quoad perueniat frater tuus ad annos quattuordecim'. quaesitum est, defuncto maiore fratre herede alio relicto utrum omnis condicio percipiendi reditus fundorum, anniuersaria praestetur alia, quae praestaturus esset, si uiueret, Seius, ad heredem eius transierint, an uero id omne protinus ad pupillum et tutores transferri debeat.
A father appointed his two sons, the elder and the younger (who was also under puberty), as heirs in equal shares, and left certain estates as part of the younger's share, and bequeathed to him a certain sum of money when he should reach his fourteenth year, committing this to the good faith of his brother, from whom he requested in these words: "I request of you, Seius, that from his twelfth year of age you pay to his mother so much annually for your brother's liberal studies until his fourteenth year; furthermore, that you pay the taxes of your brother according to his census rating until you restore the property; and that the income of those estates belong to you until your brother reaches his fourteenth year." It was asked, upon the death of the elder brother leaving another heir, whether the entire condition of receiving the income of the lands and paying the annual and other provisions which Seius would have paid if he were alive passed to his heir, or whether indeed all of this ought to be transferred immediately to the ward and his tutors.
respondit: secundum ea quae proponerentur intellegitur testator quasi cum tutore locutus, ut tempore, quo tutela restituenda est, haec, quae pro annuis praestari iussisset percipiendisque fructibus, finiantur: sed cum maior frater morte praeuentus est, omnia, quae relicta sunt, ad pupillum et tutores eius confestim post mortem fratris transisse.
He answered that, according to the facts submitted, the testator is understood as if he had spoken with a tutor, so that at the time when the tutelage is to be restored, these things which he had ordered to be paid annually and the collection of fruits should end; but since the elder brother was anticipated by death, all things which were left passed immediately after the death of the brother to the ward and his tutors.