[SCAEUOLA libro sexto decimo digestorum. ] §34.3.28.prAurelius Symphorus fideiusserat pro tutore quodam et decedens cisdem pupillis legauit in haec ucrba: 'Arellio Latino et Arellio Felici singulis quina, cum quis eorum quattuordecim annorum fuerit: ad quod tempus praestari eis uolo singulis alimentorum nomine menstruos denarios senos et uestiarii nomine annuos denarios uiginti quinque.
[SCAEVOLA in the sixteenth book of Digests.] Aurelius Symphorus had stood surety for a certain tutor, and on his death bequeathed to the same wards in these words: "To Arellius Latinus and Arellius Felix, five thousand each, when either of them reaches fourteen years of age; until which time, I wish to be provided to each of them under the name of maintenance six denarii monthly, and under the name of clothing twenty-five denarii annually.
quo legato contenti esse debetis, quando tutela uestra non minimo damno rationem meam adflixerit.
With which legacy you ought to be content, since your guardianship has afflicted my account with no small loss.
a uobis autem, heredes mei, peto, ne quid ex ratione tutelae ab his exigere uel ab hoc legato eorum retinere uelitis'. quaesitum est, si heres eius ex causa fideiussionis aliquid praestiterit, an herede filiorum eius, pro quo fideiusserat, repetere possit.
And from you, my heirs, I request that you do not wish to demand anything from them on account of the guardianship, or to withhold anything from this legacy of theirs." The question was asked whether, if his heir paid anything on account of the suretyship, he could recover it from the heir of the sons of him for whom he had stood surety.
respondit uerbis quae proponerentur id solum uideri heredum fidei commissum, ne exigerent, quod ex ratione tutelae, quam ipse Symphorus administrauerat, ab Arelliis sibi deberetur.
He answered that by the words which were set forth, only this seemed to be a trust committed to the heirs, namely, that they should not demand what was owed to them by the Arellii on account of the guardianship which Symphorus himself had administered.
§34.3.28.1Testamento facto debitoribus liberationem reliquerat, post inciso lino et recognito testamento aliud testamentum fecit, in quo repetit legatum his uerbis: 'quibusque legata in eo testamento quod incideram dedi, omnia rata esse et quaequae scripta sunt uolo'. quaesitum est, adita ex sequenti testamento hereditate an debitores, quibus priori testamento liberatio relicta erat, consequi possint, ut etiam eius quantitatis nomine, quam post prius testamentum debere coeperant, liberarentur, et si ab his heredes petere coeperint, an doli mali exceptione summouerentur.
Having made a will, he had left a release to his debtors; afterwards, having cut the thread and revised the will, he made another will, in which he repeated the legacy in these words: "And to whomever I gave legacies in that will which I had cut, I wish all to be valid and whatever was written there to be valid." The question was asked: when the inheritance under the subsequent will was accepted, could the debtors to whom release had been left in the prior will obtain that they should also be released from the amount which they had begun to owe after the prior will, and if the heirs began to sue them, whether they could be barred by the defense of bad faith?
respondit non liberari.
He answered that they were not released.
§34.3.28.2Titius Seio debitori suo ita legauit: 'do lego Seio denarios decem: item dono illi, quidquid sortis et usurarum nomine mihi debebat'. praeterea generaliter damnauit heredes fideique eorum commisit, uti darent restituerent unicuique, quidquid ei legasset.
Titius bequeathed to Seius, his debtor, as follows: "I give and bequeath to Seius ten denarii; likewise, I give to him whatever he owed me under the heading of principal and interest." Furthermore, he generally charged his heirs and committed to their good faith to give and restore to each one whatever he had bequeathed to him.
postea Seius aliam praeterea pecuniam a Titio mutuatus est.
Afterward, Seius borrowed other money besides from Titius.
quaero, an haec quoque pecunia, quae post testamentum factum data esset Seio, legata intellegitur.
I ask whether this money too, which was lent to Seius after the will was made, is understood to be bequeathed.
respondit, cum in praeteritum tempus uerba collata proponerentur, non esse posterius credendum legatum.
He answered that since the words set forth were referred to the past tense, the subsequent loan is not to be believed to have been bequeathed.
§34.3.28.3Titius testamento facto et filiis heredibus institutis de patre tutore suo quondam facto ita locutus est: 'Seium patrem meum liberatum esse uolo ab actione tutelae'. quaero, haec uerba quatenus accipi debent, id est an pecunias, quas uel ex uenditionibus rerum factis aut ex nominibus exactis in suos usus conuertit uel nomine suo faenerauit, filiis et heredibus testatoris nepotibus suis debeat reddere.
Titius, having made a will and appointed his sons as heirs, spoke as follows concerning his father, who had formerly been his tutor: "I wish Seius, my father, to be released from the action of guardianship." I ask to what extent these words should be understood, that is, whether he must restore to the sons and heirs of the testator, who are his own grandsons, the moneys which he converted to his own use either from sales of things made or from claims collected, or which he lent out in his own name.
respondit eum, cuius notio est, aestimaturum.
He answered that the one who has jurisdiction will determine this.
praesumptio enim propter naturalem affectum facit omnia patri uideri concessa, nisi aliud sensisse testatorem ab heredibus eius approbetur.
For, because of natural affection, there is a presumption that all things are seen to have been granted to the father, unless it is proved by the heirs that the testator intended otherwise.
§34.3.28.4Maeuia testamento suo alterum ex heredibus suis actione tutelae uoluit liberari his uerbis: 'rationem tutelae, quam egit Iulius Paulus cum Antistio Cicerone, posci ab eo nolo eoque nomine causa omni liberatum esse uolo': quaero, an, si qua pecunia ex tutela apud eum remansit, peti ab eo possit.
Maevia by her will wished one of her heirs to be released from the action of guardianship in these words: "I do not want the account of the guardianship which Julius Paulus conducted with Antistius Cicero to be demanded from him, and on that account I wish him to be released from all liability." I ask whether, if any money from the guardianship remained with him, it can be demanded from him.
respondit nihil proponi, cur pecunia, quae pupillae est et apud tutorem posita maneret, legata uideretur.
He answered that nothing was set forth to show why money which belongs to the ward and remained deposited with the tutor should be seen as bequeathed.
§34.3.28.5Testamento ita scripserat: 'Titio adfini meo, quidquid mihi quacumque ex causa debebat, remitti uolo eoque amplius decem do': codicillis ita scripsit: 'Titio hoc amplius adfini et debitori meo usuram pecuniae, quam mihi debet, ab herede meo donec aduiuet: quod si exigere ultra uoluntatem meam putauerit, eius sortis usuram eidem Titio ab heredibus meis donec uiuit praestari uolo'. quaesitum est, cum augendi potius quam minuendi testator uoluntatem habuerit, an heredes ex causa fideicommissi Titio teneantur, ut eum omni debito liberent.
In his will he had written as follows: "To Titius, my relative by marriage, I wish whatever he owed me from any cause to be remitted, and in addition I give him ten." In his codicil he wrote as follows: "To Titius, my relative by marriage and debtor, in addition to this, the interest on the money he owes me to be provided by my heir as long as he lives; but if my heir thinks to demand the principal contrary to my will, I wish the interest on that principal to be paid to the same Titius by my heirs as long as he lives." The question was asked whether, since the testator seemed to have the intention of increasing rather than decreasing the legacy, the heirs are bound to Titius on account of the trust to release him from all debt.
respondit secundum ea quae proponerentur uideri minutum legatum, quod primo dederat.
He answered that according to the facts set forth, the legacy which he had first given seemed to have been reduced.