[IDEM libro quinto uicesimo digestorum. ] §33.2.36.prSticho testamento manumisso fundi usus fructus erat legatus et, cum is uti fruique desisset, fidei heredum testator commisit, uti eum fundum darent Lucio Titio: sed Stichus testamento suo eiusdem fundi proprietatem nepotibus suis legauit et heredes Stichi ex testamento eius legatariis nepotibus eum fundum tradiderunt.
[THE SAME, From the Twenty-Fifth Book of his Digests.] The usufruct of a tract of land had been bequeathed by will to Stichus, a manumitted slave, and the testator had entrusted to the good faith of his heirs that, when Stichus ceased to use and enjoy it, they should give the said land to Lucius Titius. However, Stichus in his own will bequeathed the ownership of the same land to his grandsons, and the heirs of Stichus, in accordance with his will, delivered the land to the legatee grandsons.
quaesitum est, cum nepotes legatarii ignorauerint condicionem fundi supra scripti priore testamento datam et plus quam tempore statuto possederint, an eum fundum sibi adquisierint.
It was asked whether, since the legatee grandsons were ignorant of the condition imposed on the aforementioned land by the prior will and had possessed it for longer than the statutory period, they had acquired the land for themselves by usucapio.
respondit secundum ea quae proponerentur legatarios sibi adquisisse.
He answered that, according to the facts proposed, the legatees had acquired it for themselves.
§33.2.36.1Idem quaesiit, si aliquo casu legatariis auferri possit, an repetitionem ab heredibus Stichi eius nepotes habere possint.
The same person asked whether, if by some chance the land could be taken away from the legatees, his grandsons could have a claim for recovery against the heirs of Stichus.
respondit supra quidem de adquisitione responsum: uerum si ex alia causa adquisitio cessasset, uideri Stichum, si post mortem eorum, quibus proprietas legata esset, testamentum fecisset, potius quod habere se crederet, quam quod onerare heredes uellet, legasse.
He answered that indeed a response had already been given above concerning acquisition; but if acquisition had failed for some other reason, it would seem that Stichus—if he had made his will after the death of those to whom the ownership had been bequeathed—had bequeathed what he believed he held, rather than wishing to burden his heirs.