[SCAEUOLA libro tertio responsorum. ] §34.3.31.prCreditor debitori legauit ita: 'Gaio Seio, quidquid mihi sub pignore hortorum suorum debuit, ab heredibus meis dari uolo': quaero, cum testator uiuus a Seio aliquid recepit, an id ex causa legati peti possit.
[SCAEVOLA in the third book of Responses.] A creditor bequeathed to his debtor as follows: "To Gaius Seius, whatever he owed to me under the pledge of his gardens, I wish to be given by my heirs." I ask: when the testator while alive received something from Seius, whether that can be claimed under the legacy.
respondit secundum ea quae proponerentur non posse.
He answered that, according to the facts proposed, it cannot be claimed.
idem repetiit et ait item testatorem ante factos codicillos, quibus legauit, paene omnem pecuniam sortis et usurarum recepisse, ita ut modicum sortis et usurarum debeatur, et quaesiit, an ei repetitio competeret propter uerba ad praeteritum relata 'quidquid mihi debuit'. respondit: prius quidem secundum ea quae proponerentur recte responsum est, uerum posterius propter ea, quae in tempore adderentur, ita ab iudice aestimandum, ut inspiceret, obliuione pecuniae solutae, aut quod eo inscio numerata esset, id fecisset, an consulto, quod quantitatem quondam debitam, non ius liberationis dare uoluisset.
The same inquirer repeated the question and added that the testator, before making the codicils by which he made the legacy, had received almost all the money of the principal and interest, so that only a small amount of the principal and interest is owed, and asked whether a claim for recovery (repetitio) would lie for him on account of the words referred to the past "whatever he owed me." He answered: to the first question indeed, according to the facts proposed, the answer was correctly given; but the latter question, on account of the circumstances of time that were added, must be evaluated by the judge in such a way that he should inspect whether the testator had done this out of forgetfulness of the paid money, or because it had been paid without his knowledge, or deliberately, because he wished to give the quantity formerly owed, and not just a right of release.
§34.3.31.1Inter cetera liberto ita legauit: 'et si quid me uiuo gessit, rationes ab eo exigi ueto'. quaeritur, an chartas, in quibus rationes conscriptae sunt, item reliquas secundum accepta et expensa heredibus reddere debeat.
Among other things, he bequeathed to his freedman as follows: "and if he conducted any business during my lifetime, I forbid accounts to be demanded from him." It is asked whether he must return to the heirs the papers in which the accounts are written, as well as the remaining documents according to receipts and expenses.
respondit ea de quibus quaereretur posse heredem uindicare, id autem, quod conseruis, qui remanent in hereditate, crediderit et in rem domini uersum esset, desisse in reliquis esse.
He answered that the heir can claim the things concerning which inquiry was made, but that what he had lent to fellow slaves who remain in the inheritance, and which was turned to the master's use, has ceased to be in the arrears (reliquae).
§34.3.31.2Titia, quae duos tutores habuerat, ita cauit: 'rationem tutelae meae, quam egit Publius Maeuius cum Lucio Titio, reposci ab eo nolo': quaeritur, an, si qua pecunia apud eum ex tutela remansit, peti ab eo possit.
Titia, who had had two tutors, made the following provision: "I do not wish the account of my tutelage, which Publius Maevius conducted with Lucius Titius, to be demanded back from him." It is asked whether, if any money from the tutelage remained with him, it can be claimed from him.
respondit nihil proponi, cur pecunia, quae pupillae esset et apud tutorem remaneret, legata uideretur.
He answered that nothing is proposed why the money which belonged to the ward and remained with the tutor should be seen as bequeathed.
§34.3.31.3Item quaeritur, an contutor liberatus uideretur.
Likewise it is asked whether the co-tutor is seen as released.
respondit contutorem non liberari.
He answered that the co-tutor is not released.
§34.3.31.4'Gaio Seio optime merito hoc amplius lego concedique uolo neque ab eo peti neque ab heredibus eius, quidquid mihi aut chirographis aut rationibus debitor est uel quidquid a me mutuum accepit uel fidem meam pro eo obligaui'. quaero, utrum id solum, quod eo tempore, quo testamentum fiebat, debebatur, legatum sit an et si quid ex ea summa usurarum nomine postea accessit legato cedat.
"To Gaius Seius, who is most well-deserving, I leave this in addition and wish it to be granted, that neither from him nor from his heirs should there be claimed whatever he is debtor to me either by handwritten notes or accounts, or whatever he received from me as a loan, or for which I bound my credit on his behalf." I ask whether only that which was owed at the time the will was made is bequeathed, or if anything that accrued later from that sum in the name of interest also goes to the legacy.
respondit secundum ea quae proponerentur uideri omnem obligationem Seio eius debiti per fideicommissum solui uoluisse.
He answered that according to the facts proposed, it appears that the testator wished every obligation of that debt to be released to Seius by fideicommissum.
§34.3.31.5Item quaeritur, si postea nouatione facta et ampliata summa coeperit debere, an id, quod ex uetere contractu debebatur, nihilo minus in causa legati duret et an uero nouatione facta quasi nouus debitor ampliatae summae possit conueniri.
Likewise it is asked, if afterwards, a novation having been made and the sum increased, he began to owe more, whether that which was owed under the old contract nevertheless persists in the status of the legacy, and whether indeed, the novation having been made, he can be sued as if a new debtor for the increased sum.
respondit id dumtaxat legatum uideri quod tunc debuisset, si tamen mansit in ea uoluntate testator, quae tunc fuisset.
He answered that only that seems to be bequeathed which he owed at that time, provided however that the testator remained in that intention which he had had at that time.