[SCAEUOLA libro sexto digestorum. ] §33.7.27.prPraedia maritima cum seruis qui ibi erunt et omni instrumento et fructibus qui ibi erunt et reliquis colonorum nutritori suo legauit.
[SCAEVOLA, from the sixth book of the Digests.] A testator bequeathed coastal estates to his foster-father, along with the slaves who should be there, and all the equipment and fruits which should be there, and the arrears of the tenants.
quaesitum est, an serui piscatores, qui solebant in ministerio testatoris esse et ubicumque eum sequi et urbicis rationibus expungebantur nec mortis testatoris tempore in praediis legatis deprehensi fuerant, legati esse uideantur.
The question was raised whether fisher-slaves, who were accustomed to be in the service of the testator and to follow him wherever he went, and whose names were recorded in the city accounts, and who were not found on the bequeathed estates at the time of the testator's death, are considered to have been bequeathed.
respondit secundum ea quae proponerentur non esse legatos.
He answered that, according to the facts presented, they were not bequeathed.
§33.7.27.1Adfini suo ita legauit: 'fundum Cornelianum Titio ita ut est instructus cum omnibus rebus et mancipiis et reliquis colonorum dari uolo'. haec testatrix Romae litis causa ex Africa ueniens mancipia quaedam ex fundo supra scripto, quo citius per hiemem operam elegeret, secum abduxit: quaesitum est, an ea mancipia fideicommisso cedant, cum quaedam ex his rusticis officiis ad tempus peregrinationis abducta sunt relictis conseruabus et filiis suis et quaedam matribus et patribus.
She bequeathed to her relative by marriage in these terms: 'I wish the Cornelian estate to be given to Titius just as it is equipped, with all things and slaves and the arrears of the tenants.' This testatrix, coming from Africa to Rome on account of a lawsuit, took with her certain slaves from the above-mentioned estate, so that she might more quickly select their services during the winter: the question was raised whether these slaves are included in the trust, since some of them had been taken away from their rustic duties for the duration of the journey, leaving behind their fellow female slaves and their children, and others leaving behind their mothers and fathers.
respondit mancipia, de quibus quaereretur, secundum ea quae proponerentur ex causa fideicommissi deberi.
He answered that the slaves in question, according to the facts presented, were due under the trust.
§33.7.27.2Idem quaesiit, an fructus eiusdem fundi, qui ibi in diem mortis coacti manserint, fideicommisso cedant, cum plenissima testatoris erga adfinem uoluntas ab eo quoque manifestetur, quo reliqua colonorum eiusdem possessionis ad eum pertinere uoluerit.
The same inquirer asked whether the fruits of the same estate, which had been gathered and remained there until the day of death, pass under the trust, since the very full intention of the testatrix towards her relative is also manifested by this, that she wished the arrears of the tenants of the same property to belong to him.
respondit in huiusmodi scriptura posse responderi hoc solum quaerendum, an manifeste appareat defuncta id, de quo quaereretur, dari noluisse.
He answered that, in a writing of this kind, the response can be that the only question to be asked is whether it clearly appears that the deceased did not wish that which is in question to be given.
§33.7.27.3Liberto, quem heredem in parte rescripsit, fundum per praeceptionem dedit in haec uerba: 'Pamphile liberte, praecipito tibique habeto fundum meum Titianum et agellum Sempronianum cum instrumento et his, quae in eodem erunt cum moriar, familiaque, quae in eo fundo moratur, exceptis quos manumisero'. quaesitum est, cum testator in eo fundo aliquantum uini in doliis habuerit, quod uiuus totum uendiderat et partem tertiam pretii pro eo acceperat, an uinum in doliis remanens ad libertum ex causa praeceptionis pertineat.
To a freedman, whom he designated as heir to a share, he gave an estate by way of pre-legacy in these words: 'Pamphilus, my freedman, take beforehand and keep for yourself my Titian estate and the Sempronian field, with the equipment and those things which shall be on the same when I die, and the household of slaves that resides on that estate, except those whom I shall have manumitted.' The question was raised: since the testator had on that estate a certain amount of wine in jars, all of which he had sold during his lifetime and had received a third part of the price for it, whether the wine remaining in the jars belongs to the freedman by virtue of the pre-legacy.
respondit uerbis quae proponerentur contineri, nisi manifeste contrariam uoluntatem coheredes approbant.
He answered that it was included in the words presented, unless the co-heirs clearly prove a contrary intention.
in eo fundo instrumenta calendarii et nummos reliquit.
On that estate he left debt ledgers and money.
responsum est de nummis quoque, ut supra responsum.
It was answered that concerning the money also, the same answer as above applies.
§33.7.27.4Ita legatum est: 'Septiciae sorori meae fundi paterni mei Seiani partem dari uolo sic ut est, et alteram partem ita, ut in diem mortis fuerit': quaesitum est, an ex uerbis supra scriptis aggeres et praela iam posita parataque, ut immittantur aedificio, item instrumentum urbanum et rusticum cum mancipiis, quae fundi causa erant, ad legatarios pertineant.
A bequest was made as follows: 'I wish a part of my paternal Seian estate to be given to my sister Septicia just as it is, and the other part just as it shall be on the day of my death': the question was raised whether, from the above-mentioned words, embankments and presses already placed and prepared to be installed in the building, as well as urban and rustic equipment with the slaves who were there for the sake of the estate, belong to the legatees.
respondit: potest haec uerba 'sic ut est' ad instructum referri.
He answered: these words 'just as it is' can be referred to the equipment.
§33.7.27.5Fundos legauit in haec uerba: 'Sempronio fratri meo hoc amplius fundos meos ita, ut instructi sunt, Cassianum Nonianum cum suis salictis et siluis'. quaesitum est, cum siluae et salicta non in fundis supra scriptis¹, sed in adiectis agellis et quos simul testator comparauit nec sine his fundi coli possint, an legato cederent.
He bequeathed estates in these words: 'To my brother Sempronius, in addition, my estates, just as they are equipped, the Cassian and Nonian estates with their willow-groves and woods.' The question was raised: since the woods and willow-groves were not on the above-mentioned estates¹, but on adjacent small fields which the testator bought at the same time, and without which the estates could not be cultivated, whether they passed under the legacy.
respondit id tantum cedere legato, quod uerbis comprehendisset.
He answered that only that which he had included in the words passed under the legacy.