[SCAEUOLA libro nicesimo digestorum. ] §34.4.30.prAlumnae suae plura legauerat: quaedam ex his abstulit, quaedam ut praestarentur, ab herede suo petit, in quibus et uiginti dari uoluit his uerbis: 'hoc amplius do lego darique uolo uiginti auri libras' et adiecit: 'fideique tuae, Atti, committo, ut in primis Semproniam sororem tuam pro tua pietate et regere et tueri uelis, et, si putaueris eam ad bonam uitae consuetudinem reuersam, ita uiginti auri libras ei reddere, cum morieris.
[SCAEUOLA in the twentieth book of the Digests.] A testator had bequeathed several things to his female foster-child (alumna): some of these he took away, and some he requested his heir to provide, among which he also wished twenty to be given in these words: 'Over and above this, I give, bequeath, and wish to be given twenty pounds of gold,' and he added: 'And I commit to your trust, Attius, that you will particularly be pleased, out of your affection, to direct and protect your sister Sempronia, and if you think that she has returned to a good way of life, then to restore the twenty pounds of gold to her when you die.
interim tamen reditus eius, id est usuras semisses ei praestes'. postea codicillis ad Maeuium legatarium easdem uiginti libras auri transtulit et fidei eius commisit in haec uerba: 'uiginti libras auri, quas testamento Semproniae alumnae meae reliqui, eas dari uolo Maeuio cautionibus interpositis, ut ex ea summa eidem Semproniae, quamdiu aduixerit, praestet menstruos denarios quinque et uestiarii nomine denarios centenos uicenos quinos, idque fidci uestrae committo: certa sum autem te, Maeui, pro tua pietate petiturum ab herede tuo, ut uoluntas mea in persona alumnae meae duret'.
In the meantime, however, you shall pay her the income thereof, that is, interest at six percent.' Afterwards, by a codicil, he transferred the same twenty pounds of gold to Maeuius, the legatee, and committed it to his trust in these words: 'The twenty pounds of gold, which by my will I left to my foster-child Sempronia, I wish to be given to Maeuius, security being provided, so that from that sum he may pay to the same Sempronia, as long as she lives, five denarii monthly, and one hundred and twenty-five denarii annually under the name of clothing money, and this I commit to your trust; and I am certain, Maeuius, that you, out of your affection, will request from your heir that my will regarding my foster-child should endure.' The question was raised whether Maeuius, the legatee, should be compelled after his death to restore the twenty pounds of gold to Sempronia, just as Attius the heir had been requested.
quaesitum est, an Maeuius legatarius cogendus sit post mortem suam uiginti libras auri Semproniae restituere, sicut rogatus fuerat Attius heres. respondit secundum ea quae proponerentur uiginti quidem auri libras non cogendum praestare, sed alia, quae ab eo alumnae relicta sunt, deberi et a Macuio et ab herede eius, donec uiuit alumna.
He answered that according to the facts proposed, Maeuius should indeed not be compelled to pay the twenty pounds of gold, but that the other things left by him to the foster-child were owed both by Maeuius and by his heir, as long as the foster-child lives.
§34.4.30.1Titia testamento Seiam libertam eandemque collactaneam ex parte duodecima heredem instituerat, Pamphilo liberto suo praedia per fideicommissum dedit, in quibus et σύγκτησιν praediorum quae appellabatur circa Colonen: eidem liberto postea per epistulam alias etiam res donauit, in quibus de Seia et Pamphilo ita est locuta: 'Τιτία τοῖς κληρονόμοις μου χαίρειν.
Titia had by her will appointed her freedwoman Seia, who was also her foster-sister, heir to a twelfth share, and had given to her freedman Pamphilus certain estates by a trust, among which was also a co-ownership (σύγκτησις) of the estates called around Colone: afterwards, by a letter, she also donated other things to the same freedman, in which she spoke thus concerning Seia and Pamphilus: 'Titia to my heirs, greeting.
βούλομαι βέβαια είναι τά υποτεταγμένα, ὅσα ἔφθασα εἰς τὸ ὄνομα το Παμφίλου πεποιηκέναι.
I wish the matters appended below, as many as I have already executed in the name of Pamphilus, to be secure.
ἐάν Σεΐα ἡ σύντροφος μου κληρόνομος μή γένηται, ἐξ οὖ γέγραφα αὐτὴν μέρους, βούλομαι αὐτῇ δοθῆναι τὴν σύγκτησιν τὴν περί Κολώνην'. quaesitum est, cum Seia liberta omissa parte hereditatis ei testamento adscripta ex codicillis fideicommissum, id est σύγκτησιν Circa Colonen, eligat, an, si Pamphilus ex causa fideicommissi eadem praedia uindicet, doli mali exceptione summoueri debeat.
If my foster-sister Seia does not become heir to the share for which I have appointed her, I wish the co-ownership around Colone to be given to her.' The question was raised, since the freedwoman Seia, having omitted the share of the inheritance assigned to her by the will, chooses the trust based on the codicil, that is, the co-ownership around Colone, whether, if Pamphilus claims the same estates by virtue of the trust, he should be barred by an exception of fraud (exceptio doli mali).
respondit translatum uideri fideicommissum praediorum, id est σύγκτησιν quae est circa Colonen, in Seiam libertam.
He answered that the trust of the estates, that is, the co-ownership around Colone, appeared to have been transferred to the freedwoman Seia.
§34.4.30.2Ab heredibus petierat, ut, si in prouincia decessisset, sexaginta Lucio Titio darentur, ut is corpus eius curaret in patriam reportari, et adiecerat haec uerba: 'cui concedi uolo, si quid ex ea pecunia supererit. eadem die codicillos ad heredes suos ita scripserat: 'peto a uobis, ut, siue in prouincia siue in uia aliquid mihi humanitus acciderit, corpus meum curetis et in Campania et in monumentum filiorum meorum reportare'. quaesitum est, an id, quod superfuerit ex sexaginta, a Lucio Titio tacite ademerit.
A testator had requested of his heirs that, if he should die in the province, sixty should be given to Lucius Titius, so that he might take care to have his body brought back to his homeland, and he had added these words: 'to whom I wish to be granted whatever remains of that money.' On the same day, he had written a codicil to his heirs as follows: 'I request of you that, if anything human should happen to me either in the province or on the journey, you take care to bring my body back to Campania and to the monument of my children.' The question was raised whether he had tacitly revoked from Lucius Titius that which would remain of the sixty.
respondit ademptum uideri.
He answered that it appeared to have been revoked.
§34.4.30.3Qui filias ex disparibus portionibus testamento heredes instituerat, paene omnium bonorum suorum eodem testamento diuisionem fecit, deinde haec uerba adiecit: 'τὰ δὲ λοιπά πάντα τῶν ὑπαρχόντων μου, ὁμοίως καὶ τὰ τῆς κληρονομίας βάρη ἔσται μόνων τῶν δύο μου θυγατέρων Πρίμης καὶ Σεκούνδης ἢ τῆς ἐξ αὐτῶν περιούσης'. postea codicillis longe aliam diuisionem fecit bonorum inter easdem, inter quas et testamento diuiserat, quaedam tamen nulli nominatim dedit.
A testator who had appointed his daughters heirs in unequal shares by his will made a division of almost all his property in the same will, and then added these words: 'And all the rest of my property, likewise the charges of the inheritance, shall belong solely to my two daughters Prima and Secunda, or to the survivor of them.' Afterwards, by a codicil, he made a very different division of the property among the same daughters, among whom he had also divided it by the will, but he gave some things to no one by name.
quaesitum est, an Prima et Secunda filiae ex uerbis testamenti consequi possint, ut solae habeant ea, quae nominatim nulli relicta sunt in diuisione, quae nouissima a patre facta est.
The question was raised whether the daughters Prima and Secunda could, by the words of the will, obtain that they alone should have those things which were left to no one by name in the division that was last made by their father.
respondit non a tota uoluntate recessisse uideri, sed his tantum rebus quas reformasset.
He answered that the father did not appear to have departed from his entire intention, but only regarding those things which he had altered.
§34.4.30.4Cum post apertas tabulas testamenti Priscillianus uixerit, de cuius legato portioneque hereditatis mater epistula ita cauerat: 'quoniam cognoui Priscillianum filium meum in extremis esse, iustissimum et piissimum duxi portionem eius hereditatis, quam ei testamento dederam, legare Mariano fratri meo et Ianuario marito meo aequis portionibus: et si quid ei amplius legaueram, ut si quid ei humanitus contigerit, do lego darique eis uolo': postea ex eadem infirmitate Priscillianus decessit.
Since after the opening of the will Priscillianus lived, concerning whose legacy and share of the inheritance his mother had provided in a letter as follows: 'Since I have learned that my son Priscillianus is at the point of death, I have thought it most just and dutiful to bequeath his share of the inheritance, which I had given him by my will, to my brother Marianus and my husband Ianuarius in equal shares; and if I had bequeathed anything more to him, in case anything human should happen to him, I give, bequeath, and wish it to be given to them': afterwards, Priscillianus died of the same illness.
quaesitum est, an legatum quoque eius ad Ianuarium et Marianum ex causa fideicommissi pertineat.
The question was raised whether his legacy also belongs to Ianuarius and Marianus by virtue of the trust.
respondit posse uideri, si decessisset ex ea infirmitate, omnimodo et legatum ad eos de quibus quaereretur transtulisse.
He answered that it could appear, if he had died of that illness, that she had in every way transferred the legacy also to those concerning whom the question was raised.