[IDEM libro octauo responsorum. ] §35.1.101.prPater Seuerianam Proculam Aelio Philippo cognato nuptiis testamento designauit: eidem filiae praedium, si Aelio Philippo nubsisset, uerbis fideicommissi reliquit: quod si non nubsisset, idem praedium Philippo dari uoluit: nondum uiripotens puella diem suum obiit.
[THE SAME in the eighth book of Responses.] A father designated in his will his daughter Severiana Procula for marriage with his kinsman Aelius Philippus; he left a tract of land to the same daughter by words of trust (fideicommissum) if she should marry Aelius Philippus; but if she should not marry him, he willed that the same land be given to Philippus. The girl died before she was of marriageable age.
respondi, cum in condicionibus testamentorum uoluntatem potius quam uerba considerari oporteat, Aelio Philippo fideicommissum ita datum uideri, si ei Procula defuncti filia nubere noluisset: quare cum ea prius, quam uiripotens fieret, uita decesserit, condicionem exstitisse non uideri.
I answered that, since in the conditions of wills intention rather than words ought to be considered, the trust seems to have been given to Aelius Philippus only if Procula, the deceased's daughter, had refused to marry him; therefore, since she died before she became of marriageable age, the condition does not seem to have been fulfilled.
§35.1.101.1Ita fideicommisso dato: 'uolo restituas, si sine liberis decedas' condicio deficit ex uoluntate uel uno filio superstite relicto.
When a trust is given in this way: 'I wish you to restore it if you die without children,' the condition fails, according to the intention of the testator, even if only one surviving child is left.
§35.1.101.2Condicionum uerba, quae testamento praescribuntur, pro uoluntate considerantur: et ideo cum tutores testamento dati, quoniam interea puer adoleuerat, id egerint, ut curatores ipsi constituerentur, condicio fideicommissi talis praescripta: 'si tutelam in annum octauum decimum gesserint’ defecisse non uidebitur.
The words of conditions prescribed in a will are considered in accordance with the intention of the testator; and therefore, when tutors appointed by will, because the boy had in the meantime grown up, managed to have themselves appointed as curators, such a condition of a trust as: 'if they should perform the tutelage until the eighteenth year,' will not seem to have failed.
§35.1.101.3Socrus nurui fideicommissum ita reliquerat: 'si cum filio meo in matrimonio perseuerauerit': diuortio sine culpa uiri post mortem socrus facto defecisse condicionem respondi.
A mother-in-law had left a trust to her daughter-in-law in this way: 'if she should persevere in marriage with my son.' I answered that, a divorce having taken place after the death of the mother-in-law without the husband's fault, the condition failed.
nec ante diem fideicommissi cedere, quam mori coeperit nupta uel maritus, et ideo nec Mucianam cautionem locum habere, quia morte uiri condicio possit exsistere.
And the right to the trust does not vest before either the wife or the husband begins to die, and therefore there is no room even for the Mucian guarantee, because the condition can be fulfilled by the death of the husband.
§35.1.101.4Fideicommissa menstrua et annua sub ea condicione liberto relicta 'quamdiu res patroni filiae gesserit' etsi praestari necesse est filia prohibente res suas administrari, tamen uoluntatem filia mutante condicionem resumunt, quoniam plura sunt.
Monthly and annual trusts left to a freedman under the condition 'so long as he manages the affairs of the patron's daughter,' even if they must be paid when the daughter prevents her affairs from being managed, nevertheless resume their condition if the daughter changes her mind, because they are multiple.