[IDEM libro secundo ex posterioribus Labeonis. ] §35.1.40.prQuibus diebus uicinus tuus te uia publica, cum ad parendum condicioni ire uelles, ire prohibuerit nec per te staret, quo minus agendo ob calumnias eum summoueas, hi dies condicioni non imputabuntur.
[IDEM libro secundo ex posterioribus Labeonis.] During whatever days your neighbor has prohibited you from traveling by the public road when you wished to go to comply with a condition, and it was not through your fault that you did not remove him by legal action on account of chicanery, these days shall not be counted against the condition.
§35.1.40.1Quidam ita legauerat: 'si Publius Cornelius impensam, quam in fundum Seianum feci, heredi meo dederit, tum heres meus Publio Cornelio fundum Seianum dato'. Cascellius aiebat etiam pretium fundi dari debere, Ofilius impensae uerbo negat pretium significari, sed eos dumtaxat sumptus, quos in eum posteaquam emptus esset fecit.
A certain person had bequeathed as follows: "If Publius Cornelius gives to my heir the expense which I incurred on the Seian estate, then let my heir give the Seian estate to Publius Cornelius." Cascellius said that the price of the estate also ought to be given; Ofilius denies that the price is signified by the word "expense," but only those costs which he incurred on it after it was bought.
idem Cinna scribit adiecto eo, quod non deductis fructibus impensarum ratio haberi debeat: et hoc magis uerum puto.
Cinna writes the same thing, with the addition that the account of the expenses ought to be made without deducting the fruits; and this I think to be more true.
§35.1.40.2Quidam Titio centum legauerat, deinde infra ita iusserat: 'quas pecunias cuique legaui, eas heres meus, si mater mea moritur, dato': mortuo patre familias Titius uixerat et uiua matre familias decesserat.
A certain person had bequeathed one hundred to Titius, and then below had ordered as follows: "Whatever money I have bequeathed to anyone, let my heir give it if my mother dies." After the death of the father of the family, Titius survived, and died while the mother of the family was still living.
mortua matre heredibus Titii legatum deberi Ofilius respondit, quoniam non sub condicione esset legatum, sed ante legatum pure, deinde dies soluendi adiecta.
Ofilius answered that upon the death of the mother, the legacy was owed to the heirs of Titius, because the legacy was not under a condition, but had been previously bequeathed unconditionally, and then a day for payment was added.
uideamus, inquit Labeo, ne id falsum sit, quia nihil intersit, utrum ita scribatur: 'quas pecunias cuique legaui, eas heres meus, si mater mea moritur, dato' an ita: 'nisi mater mea moritur, ne dato': utrubique enim sub condicione uel datum uel ademptum esse legatum. Labeonis responsum probo.
Labeo says: "Let us see whether this is not false, because there is no difference whether it is written thus: 'Whatever money I have bequeathed to anyone, let my heir give it if my mother dies,' or thus: 'Unless my mother dies, do not give it'; for in both cases the legacy was either given or taken away under a condition." I approve Labeo's answer.
§35.1.40.3Dominus seruo aureos quinque eius legauerat: 'heres meus Sticho seruo meo, quem testamento liberum esse iussi, aureos quinque, quos in tabulis debeo, dato'. nihil seruo legatum esse Namusa Seruium respondisse scribit, quia dominus seruo nihil debere potuisset: ego puto secundum mentem testatoris naturale magis quam ciuile debitum spectandum esse, et eo iure utimur.
A master had bequeathed five gold pieces to his slave: "Let my heir give to my slave Stichus, whom I have ordered to be free in my will, five gold pieces which I owe him on my books." Namusa writes that Servius answered that nothing was bequeathed to the slave, because a master could not owe anything to his slave; I think that, according to the intention of the testator, a natural rather than a civil debt is to be regarded, and we follow this rule of law.
§35.1.40.4Qui dotalem fundum nullum habebat, ita legauerat: 'fundum Cornelianum, quem illa mihi doti dedit, ei heres dato'. Labeo Ofilius Trebatius responderunt fundum nihilo minus legatum esse, quia, cum fundus Cornelianus in rerum natura sit, demonstratio falsa legatum non peremit.
A person who had no dotal land had bequeathed as follows: "Let my heir give her the Cornelian estate which she gave me as a dowry." Labeo, Ofilius, and Trebatius answered that the estate was nevertheless bequeathed, because, since the Cornelian estate exists in the nature of things, a false description does not destroy a legacy.
§35.1.40.5Thermus minor quorum arbitratu monumentum sibi fieri uellet testamento scribserat, deinde ita legauerat: 'Luciis Publiis Corneliis ad monumentum meum aedificandum mille heres meus dato'. Trebatius respondit pro eo habendum ac si ita legatum esset, si satisdedissent se ita id monumentum ex ea pecunia facturos.
Thermus the younger had written in his will by whose arbitration he wished a monument to be made for him, and then had bequeathed as follows: "Let my heir give one thousand to Lucius and Publius Cornelius for the purpose of building my monument." Trebatius answered that it should be held as if it had been so bequeathed, if they had given security that they would construct the monument in that manner from that money.
Labeo Trebatii sententiam probat, quia haec mens testantis fuisset, ut ea pecunia iu monumentum consumeretur: idem et ego et Proculus probamus.
Labeo approves Trebatius's opinion, because this had been the intention of the testator, that the money should be spent on the monument; the same is approved by me and by Proculus.