[SCAEUOLA libro quinto decimo digestorum. ] §33.2.32.prGenerali capite praeposito quidam in testamento suo ita adiecit: 'Felici, quem liberum esse iussi, usum fructum fundi Uestigiani lego: cuius proprietatem puto te consecuturum, si non contenderis cum herede meo, sed potius concordaueris: sed et tu, heres, omnia fac, ut amici sitis: hoc enim uobis expedit': quaesitum est, an uiuente herede exigere possit Felix fundi proprietatem.
[SCAEUOLA, From the Fifteenth Book of his Digests.] With a general clause prefixed, a certain person added this in his testament: 'To Felix, whom I have ordered to be free, I bequeath the usufruct of the Vestigian land: whose ownership I think you will obtain, if you do not dispute with my heir, but rather live in harmony; but you also, heir, do everything so that you may be friends, for this is expedient for you.' It was asked whether Felix, while the heir was living, could demand the ownership of the land.
respondit nihil proponi, cur Felici proprietas fundi legata uideretur.
He answered that nothing was presented to show why the ownership of the land should be deemed bequeathed to Felix.
§33.2.32.1Filios ex Seio et filiam ex alio marito heredes instituit aequis portionibus et matri ita legauerat: 'Aeliae Dorcadi matri meae dari uolo, quoad uiuat, usum fructum bonorum meorum, ita ut post obitum eius ad liberos meos aut ad eum, qui ex his uiuet, pertineat'.
She appointed her sons by Seius and her daughter by another husband as heirs in equal shares, and had bequeathed to her mother as follows: 'I wish my mother Aelia Dorcas to be given, as long as she lives, the usufruct of my property, in such a way that after her death it shall belong to my children, or to whoever among them shall survive.' The sons died after accepting the inheritance.
filii post aditam hereditatem decesserant: quaesitum est mortua matre superstite filia testatricis usus fructus utrum ad solam filiam an uero pro portione hereditatis pertineret.
It was asked, upon the death of the mother, while the daughter of the testatrix was surviving, whether the usufruct belonged to the daughter alone, or indeed in proportion to her share of the inheritance.
respondit ad eos redire, apud quos proprietas esset.
He answered that it returned to those who held the ownership.
CLAUDIUS: non credidit ipsum usum fructum in uicem portionum hereditariarum post mortem auiae inter ipsos datum, eo magis, quod aequis partibus heredes erant scripti.
CLAUDIUS: He did not believe that the usufruct itself was given among themselves in place of the hereditary shares after the death of the grandmother, the more so because they had been written as heirs in equal shares.
§33.2.32.2Uxori usum fructum domuum et omnium rerum, quae in his domibus erant, excepto argento legauerat, item usum fructum fundorum et salinarum: quaesitum est, an lanae cuiusque coloris mercis causa paratae, item purpurae, quae in domibus erat, usus fructus ei deberetur.
He had bequeathed to his wife the usufruct of the houses and of all things that were in those houses, except for the silver, and likewise the usufruct of the lands and saltworks. It was asked whether the usufruct of wool of any color prepared for the purpose of trade, and likewise of purple dye which was in the houses, was due to her.
respondit excepto argento et his, quae mercis causa comparata sunt, ceterorum omnium usum fructum legatariam habere.
He answered that, except for the silver and those things prepared for the purpose of trade, the legatee had the usufruct of all other things.
§33.2.32.3Idem quaesiit, cum in salinis, quarum usus fructus legatus esset, salis inuentus sit non minimus modus, an ad uxorem ex causa fideicommissi usus fructus pertineat.
The same person asked, when in the saltworks, the usufruct of which had been bequeathed, a non-minimal quantity of salt was found, whether the usufruct belonged to the wife by reason of the trust.
respondit de his legandis, quae uenalia ibi essent, non sensisse testatorem.
He answered that the testator had not intended to bequeath those things which were there for sale.
§33.2.32.4Idem quaesiit, cum eodem testamento ita cauerit: 'a te peto, uxor, uti ex usu fructu, quem tibi praestari uolo in annum quintum decimum, contenta sis annuis quadringentis, quod amplius fuerit, rationibus heredis heredumue meorum inferatur', an recessum uideatur a superiore capite ideoque uxor non amplius habeat ex usu fructu, quam annuos quadringentos.
The same person asked, when in the same testament he had provided as follows: 'a te peto, uxor, uti ex usu fructu, quem tibi praestari uolo in annum quintum decimum, contenta sis annuis quadringentis, quod amplius fuerit, rationibus heredis heredumue meorum inferatur', whether this seemed to depart from the previous clause and therefore the wife should have no more from the usufruct than four hundred annually.
respondit satis id, quod quaereretur, aperte uerba quae proponerentur declarare.
He answered that the words proposed declared clearly enough what was being asked.
§33.2.32.5Lucius Titius testamento suo Publio Maeuio fundum Tusculanum reliquit eiusque fidei commisit, uti eiusdem fundi partem dimidiam usus fructus Titiae praestaret: Publius Maeuius uillam uetustate corruptam cogendis et conseruandis fructibus necessariam aedificauit: quaero, an sumptus partem pro portione usus fructus Titia adgnoscere debeat.
Lucius Titius by his testament left the Tusculan land to Publius Maevius and entrusted to his good faith to provide half the usufruct of the same land to Titia. Publius Maevius rebuilt a villa decayed by age, which was necessary for gathering and preserving the fruits. I ask whether Titia ought to acknowledge a part of the expense in proportion to her share of the usufruct.
respondit, si prius, quam usum fructum praestaret, necessario aedificauit, non alias cogendum restituere, quam eius sumptus ratio habeatur.
He answered that if, before providing the usufruct, he rebuilt it out of necessity, he should not otherwise be compelled to deliver it than if an account of his expense were taken.
§33.2.32.6Duas filias et filium mente captum heredes scripsit, filii portionis mente capti datae usum fructum legauit in haec uerba: 'hoc amplius Publia Clementiana praecipiet sibi quartae partis hereditatis meae, ex qua Iulium Iustum filium meum heredem institui: petoque a te, Publia Clementiana, uti fratrem tuum Iulium Iustum alas tuearis dependas pro eo: pro quo tibi usum fructum portionis eius reliqui, donec mentis compos fiat et conualescat'. quaesitum est, cum filius in eodem furore in diem mortis suae perseuerans decesserit, an usus fructus interciderit.
He wrote two daughters and a mentally disabled son as heirs, and bequeathed the usufruct of the share given to the mentally disabled son in these words: 'In addition to this, Publia Clementiana shall take in advance for herself a fourth part of my inheritance, from which I have appointed my son Julius Justus as heir; and I ask of you, Publia Clementiana, to feed, protect, and make payments for your brother Julius Justus, in return for which I have left to you the usufruct of his share until he becomes of sound mind and recovers.' It was asked, when the son died persisting in the same madness until the day of his death, whether the usufruct had lapsed.
respondit uerbis quae proponerentur perseuerare legatum, nisi manifestissime probetur aliud testatorem sensisse.
He answered that according to the words proposed, the legacy persisted, unless it were most clearly proved that the testator had intended otherwise.
§33.2.32.7Heredis instituti fidei commisit filio suo annua decem praestare aut ea praedia emere et adsignare, ut usum fructum haberet, reditum efficientia annua decem: filius fundos sibi ab herede secundum matris uoluntatem traditos locauit: et quaesitum est, defuncto eo reliqua colonorum utrumne ad heredem filii fructuarii an uero ad heredem Seiae testatricis pertineant.
He entrusted to the good faith of the appointed heir to provide ten annually to his son, or to buy and assign those estates so that he might have the usufruct, producing an annual return of ten. The son leased the lands delivered to him by the heir according to the mother's will; and it was asked, upon his death, whether the arrears of the tenants belonged to the heir of the usufructuary son, or indeed to the heir of the testatrix Seia.
respondit nihil proponi, cur ad heredem Seiae pertineant.
He answered that nothing was presented to show why they should belong to the heir of Seia.
§33.2.32.8Usum fructum tertiae partis bonorum suorum uni ex here-dibus legauerat: quaesitum est, an pecuniae, quae ex rebus diuisis secundum aestimationem effecta est, tertia praestanda sit.
He had bequeathed the usufruct of a third part of his goods to one of the heirs. It was asked whether a third of the money, which was realized from the divided things according to valuation, ought to be provided.
respondit heredis esse electionem, utrum rerum an aestimationis usum fructum praestare uellet.
He answered that the choice was the heir's, whether he wished to provide the usufruct of the things or of the valuation.
§33.2.32.9Item quaesitum est, tributa praeterea, quae uel pro praediis aut mouentibus deberi et reddi necesse est, an eximenda sint ex quantitate, ut reliquae dumtaxat pecuniae, si hoc heres elegerit, reddi debeat.
The same person asked, whether furthermore taxes, which must be owed and paid either for estates or movables, ought to be exempted from the total quantity, so that only the remaining money, if the heir chose this, should be paid.
respondit reliquae pecuniae tertiam praestandam.
He answered that a third of the remaining money ought to be provided.