[ULPIANUS libro quinto fideicommissorum. ] §35.1.92.prSi cui legatum fuerit relictum isque rogatus sit liberos suos emancipare, an cogi debeat manumittere? et retineo me dixisse defici eos a petitione fideicommissi: neque enim praetor fideicommissarius eos ad libertatem tuetur ut seruos.
[ULPIANUS libro quinto fideicommissorum.] If a legacy has been left to someone and he has been requested to emancipate his children, should he be compelled to release them? And I remember that I said that they are excluded from the petition for a trust; for the praetor for trusts does not protect them toward freedom as he does slaves.
Papinianum quoque libro nono responsorum scribere referebam non esse cogendum emancipare filios suos.
I also used to mention that Papinian writes in his ninth book of Opinions that a person should not be compelled to emancipate his sons.
arbitror tamen extra ordinem debere constitui eum qui adgnouit id, quod sibi relictum est hac contemplatione, ut liberos suos emanciparet, cogendum emancipare: neque enim debet circumueniri testantium uoluntas: sic deinde hoc accipiendum, quemadmodum si sub condicione liberorum emancipandorum ei fuisset legatum uel ita relictum, ut eos emanciparet.
I think, however, that it ought to be determined extraordinarily that he who has acknowledged what was left to him with this contemplation, that he should emancipate his children, should be compelled to emancipate them; for the will of testators ought not to be circumvented. Thus, then, this should be accepted in the same manner as if a legacy had been left to him under the condition of emancipating the children, or left in such a way that he should emancipate them.
cui rei consequens est, quod diuus Seuerus rescripsit.
Consistent with this matter is what the divine Severus replied in a rescript.
nam cum quaedam mulier nepotes suos heredes instituisset et ipsum filium coheredem filiis suis dedisset eosque inuicem substituisset rogassetque filium, ut filios emanciparet, non autem rogasset, ut hereditatem eis restitueret: ex auctoritate diui Seueri emancipare eos compulsus est hisque restituere hereditatem.
For when a certain woman had appointed her grandsons as heirs and had given her son himself as a co-heir to his own children, and had substituted them to one another, and had requested her son to emancipate his children, but had not requested him to restore the inheritance to them: by the authority of the divine Severus he was compelled to emancipate them and to restore the inheritance to them.
et adiectum est, ut, si tardius id faceret, quasi ex mora usuras praestaturum: uideri enim eum, qui moram faceret emancipationi, moram restitutioni fideicommissi eam facere.
And it was added that, if he should do this too late, he would pay interest as if from delay; for he who causes delay to emancipation is considered to cause delay to the restoration of the trust.