[ALFENUS UARUS libro quinto digestorum. ] §35.1.27.prIn testamento quidam scribserat, ut sibi monumentum ad exemplum eius, quod in uia Salaria esset Publii Septimii Demetrii, fieret: nisi factum esset, heredes magna pecunia multare et cum id monumentum Publii Septimii Demetrii nullum repperiebatur, sed Publii Septimii Damae erat, ad quod exemplum suspicabatur eum qui testamentum fecerat monumentum sibi fieri noluisse, quaerebant heredes, cuiusmodi monumentum se facere oporteret et, si ob eam rem nullum monumentum fecissent, quia non repperirent, ad quod exemplum facerent, num poena tenerentur.
[ALFENUS VARUS, in the fifth book of his Digests.] In a will a certain person had written that a monument should be made for himself according to the model of that of Publius Septimius Demetrius which was on the Salarian Way; and that unless it were made, the heirs should be fined a large sum of money. And when no such monument of Publius Septimius Demetrius was found, but there was one of Publius Septimius Dama, under which model it was suspected that he who had made the will did not wish a monument to be made for himself, the heirs asked what kind of monument they ought to make, and whether, if they made no monument for that reason, because they could not find the model according to which they were to make it, they would be liable to the penalty.
respondit, si intellegeretur, quod monumentum demonstrare uoluisset is qui testamentum fecisset, tametsi in scriptura mendum esset, tamen ad id, quod ille se demonstrare animo sensisset, fieri debere: sin autem uoluntas eius ignoraretur, poenam quidem nullam uim habere, quoniam ad quod exemplum fieri iussisset, id nusquam exstaret, monumentum tamen omnimodo secundum substantiam et dignitatem defuncti exstruere debere.
He replied that if it could be understood which monument the person who had made the will had wished to point out, although there was an error in the writing, it ought nevertheless to be made according to that which he had intended in his mind to point out; but if, on the other hand, his intention was unknown, the penalty indeed had no force, since that according to whose model he had ordered it to be made existed nowhere, but they ought nevertheless in any case to erect a monument in accordance with the estate and dignity of the deceased.