[GAIUS libro primo fideicommissorum. ] §34.5.7.prutrum ita postumus partem faciat, si natus sit, an et si natus non sit, quaeritur.
[GAIUS, in the first book on Fideicommissa.] It is asked whether the posthumous child makes a share only if he is born, or also if he is not born.
ego commodius dici puto, si quidem natus non est, minime eum partem facere, sed totum ad te pertinere, quasi ab initio tibi solido relicto: sin autem natus fuerit, utrosque accipere quantum cuique relictum so est, ut uno nato pars tibi dimidia debeatur, duobus natis tertia tibi debeatur, tribus natis, quia trigemini quoque nascuntur, quarta debeatur.
I think it is more appropriate to say that, if indeed he is not born, he makes no share at all, but the whole belongs to you, as if the whole had been left to you from the beginning; but if he is born, both receive as much as was left to each, so that if one is born, a half share is owed to you; if two are born, a third is owed to you; if three are born—since triplets are also born—a fourth is owed.
et nostra quidem aetate Serapias Alexandrina mulier ad diuum Hadrianum perducta est cum quinque liberis, quos uno fetu enixa est. sed tamen quod ultra tres nascitur, fere portentosum uidetur.
And indeed, in our age, Serapias, an Alexandrian woman, was brought before the divine Hadrian with five children whom she had brought forth in a single birth; but nevertheless, whatever is born beyond three is generally regarded as portentous.
§34.5.7.1Cum quidam pluribus heredibus institutis unius fidei commississet, ut, cum moreretur, uni ex coheredibus, cui ipse uellet, restitueret eam partem hereditatis, quae ad eum peruenisset: uerissimum est utile esse fideicommissum: nec enim in arbitrio eius qui rogatus est positum est, an omnino uelit restituere, sed cui potius restituat: plurimum enim interest, utrum in potestate eius, quem testator obligari cogitat, faciat, si uelit dare, an post necessitatem dandi solius distribuendi liberum arbitrium concedat.
When a certain person, having appointed several heirs, charged the good faith of one of them that, when he should die, he should restore to one of his co-heirs, whomsoever he himself wished, that part of the inheritance which had come to him, it is most true that the fideicommissum is valid; for it is not left to the discretion of him who was requested whether he wishes to restore at all, but to whom he should preferably restore; for it makes a very great difference whether the testator makes it within the power of him whom he intends to obligate, if he should wish to give, or whether, after the necessity of giving, he concedes the free discretion of distribution alone.
§34.5.7.2Quaesitum est, si coheredes ex disparibus partibus scripti sint, utrum partem suam in uiriles partes restituere singulis debeat an pro portionibus hereditariis, ex quibus heredes scripti sint.
It was asked, if the co-heirs were designated with unequal shares, whether he ought to restore his own part to each in equal shares or in proportion to the hereditary shares in which they were designated as heirs.
et placuit, si testator ita restitui iussisset partem, si aliquam pecuniam dedissent, si quidem aequas partes iussi fuerint dare, conueniens uideri esse etiam ex fideicommisso aequas partes eis restitui oportere: si uero dispares in ea pecunia distribuenda significauit testator, ut uideantur hereditariis portionibus congruere, consentaneum esse etiam fideicommissum pro hereditariis partibus eis restitui debere.
And it was held that if the testator had ordered the part to be restored in this way, in the event that they gave a certain sum of money, if indeed they were ordered to give equal shares, it seems agreeable that equal shares ought to be restored to them also under the fideicommissum; but if the testator indicated unequal amounts in distributing that money, so that they appear to correspond to the hereditary shares, it is consistent that the fideicommissum also ought to be restored to them in proportion to their hereditary shares.