[IDEM libro octauo decimo digestorum. ] §33.2.34.prCodicillis fideicommissa in haec uerba dedit: 'libertis libertabusque meis et quos in codicillis manumisi fundum, ubi me humari 'uolui, dari uolo, ut qui abs his decesserit, portio eius reliquis adcrescat, ita ut ad nouissimum pertineat: post cuius nouissimi decessum ad rem publicam Arelatensium pertinere uolo.
[THE SAME, From the Eighteenth Book of his Digests.] In a codicil, he gave trusts in these words: 'I wish the land where I wanted to be buried to be given to my male and female freedmen, and to those whom I have manumitted in the codicil, so that the portion of whoever of them dies shall accrue to the remaining ones, so that it belongs to the last survivor; after the death of which last survivor, I wish it to belong to the municipality of Arles.
hoc amplius libertis libertabusque meis habitationes in domo, quamdiu uiuent: Pactiae et Trophimae diaetas omnes, quibus uti consueuit: habitet quam domum post mortem 'eorum ad rem publicam pertinere uolo'. quaesitum est, rei publicae fideicommissum utrum ab herede an a libertis datum sit.
Furthermore, to my male and female freedmen, habitations in the house, as long as they live: to Pactia and Trophima all the rooms which she was accustomed to use: let them inhabit them. Which house, after their death, I wish to belong to the municipality.' It was asked whether the trust for the municipality was given by the heir or by the freedmen.
respondit secundum ea quae proponerentur posse ita uerba accipi, ut eius legatarii, qui nouissimus decederet, fidei commissum uideatur.
He answered that according to the facts proposed, the words could be so understood that the trust would seem to be imposed on that legatee who died last.
idem quaesiit defunctis quibusdam ex libertis, quibus habitatio relicta erat, an portiones domus, in quibus hi habitauerant, iam ad rem publicam pertineant.
The same person asked, some of the freedmen to whom the right of habitation was left having died, whether the portions of the house in which they had lived already belonged to the municipality.
respondit, quoad aliquis eorum uiuat, fideicommissum rei publicae non deberi.
He answered that as long as any of them lived, the trust was not due to the municipality.
§33.2.34.1Qui Semproniam ex parte decima et Maeuiam ex parte decima, alumnum ex reliquis partibus instituerat heredes, curatorem alumno dedit, cum iure facere putaret: et curatoris fidei commisit, ne pateretur fundum uenire, sed cum Sempronia et Maeuia nutricibus suis frueretur reditu eius: et ima parte testamenti ita adiecit: 'omnem uoluntatem meam fidei heredum meorum committo'. quaesitum est, an tertias partes usus fructus fundi nutrices ex fideicommisso petere possint, quamuis curator ei receptus sit, quem iure dare non poterit alumno.
A man who had appointed Sempronia as heir to a tenth part, Maevia to a tenth part, and his foster-child to the remaining parts, appointed a curator for the foster-child, thinking that he could do so by law; and he committed to the faith of the curator not to allow the land to be sold, but that the foster-child, together with his nurses Sempronia and Maevia, should enjoy its income; and at the end of the testament he added as follows: 'I commit my entire will to the faith of my heirs.' It was asked whether the nurses could claim third parts of the usufruct of the land by virtue of the trust, although a curator had been accepted for him whom he could not legally appoint for the foster-child.
respondit secundum ea quae proponerentur utiliter fideicommisso uoluntatem suam confirmasse: id igitur cuique dedisse, ut et nutrices una cum alumno reditu fundi uterentur.
He answered that according to the facts proposed, he had effectively confirmed his will by a trust; therefore, he had given this to each of them, so that the nurses also, together with the foster-child, might use the income of the land.