[IDEM libro uicesimo nono quaestionum. ] §35.2.11.prIn ratione legis Falcidiae retentiones omnis temporis heredi in quadrantem imputantur.
[THE SAME, from his twenty-ninth book of Questions.] In the calculation of the Lex Falcidia, deductions of all time are imputed to the heir towards his fourth part.
§35.2.11.1Si seruus sub condicione libertate data uita decessit, si quidem impleta condicio quandoque fuerit, heredi non uidebitur perisse: quod si defecerit, in contrarium ratio trahit, sed quanti statuliber moriens fuisse uidebitur.
If a slave to whom freedom was given under a condition has died, if indeed the condition has at some time been fulfilled, he will not be deemed to have perished to the loss of the heir; but if it has failed, the calculation is drawn in the contrary direction, but only to the extent of how much the statuliber will be deemed to have been worth at the time of his death.
§35.2.11.2Imperator Marcus Antoninus decreuit heredes, quibus pars bonorum ablata est, non in ampliorem partem quam pro ea parte quae relicta est legatorum nomine teneri.
The Emperor Marcus Antoninus decreed that heirs from whom a part of the property has been taken away are not liable under the name of legacies for any larger part than in proportion to that part which has been left to them.
§35.2.11.3Cum quidam parte dimidia bonorum adempta fuisset relegatus idemque prouocatione interposita testamento postea facto obisset atque post mortem eius non iuste appellatum esset pronuntiatum: quaesitum est, utrum aeris alieni loco pars dimidia abscederet, ut residua sola uideretur fuisse in bonis, an uero succurri heredi necessarium esse uidebitur.
When a certain person, after a half part of his property had been confiscated, had been relegated, and the same person, having interposed an appeal, died after subsequently making a will, and after his death it was pronounced that the appeal was not justified; it was asked whether the half part should be deducted in the place of a debt, so that the residue alone would be deemed to have been in his estate, or whether indeed it would seem necessary that the heir be succored.
sed uidetur succurri debere, cum animus litigantis et optinendi uotum hanc opinionem admittit.
But it seems that he ought to be succored, since the intention of the litigant and his desire to win admits this opinion.
§35.2.11.4Si seruus testamento manumissus ante aditam hereditatem decedat, heredi quidem perisse intellegitur: sed cuius pretii erit, qui, si uiueret, non aestimaretur? nam et eos, qui moriente domino ea ualetudine affecti fuerant, ut eos non posse uiuere certum esset, tamen, si postea moriantur, hereditati perisse responsum est.
If a slave manumitted by a will dies before the inheritance is entered upon, he is indeed understood to have perished to the loss of the heir; but of what value will he be, who, if he were alive, would not be valued? For it has been answered that those also who, at the death of their master, had been afflicted with such illness that it was certain they could not live, yet, if they die afterwards, have perished to the loss of the inheritance.
nec aliud in his, qui sub eodem tecto fuerunt, cum dominus a familia necaretur.
Nor is it otherwise in the case of those who were under the same roof when the master was killed by his household.
§35.2.11.5Quod uulgo dicitur in tabulis patris et filii unam Falcidiam seruari quam potestatem habeat, uidendum est: quamuis enim substitutus quae a pupillo relicta sunt, cum filius heres exstitit, ut aes alienum quodlibet debeat, tamen propter ea, quae data sunt tabulis secundis, contributioni locus est.
It must be considered what force that which is commonly said has, namely, that in the tablets of a father and a son a single Falcidia is preserved; for although the substitute heir owes what was left by the pupillus, when the son stood as heir, as he would any debt whatsoever, yet, on account of those things which were given by the secondary tablets, there is room for contribution.
secundum quae poterit euenire, ne substitutus quicquam retineat uel ut longe plus habeat quartae paternae hereditatis.
According to which it can happen that the substitute retains nothing, or that he has far more than a fourth of the paternal inheritance.
quid ergo, si non sufficiat pupilli hereditas legatis, cum patris suffecisset? de suo (quadrante nimirum) dabit substitutus, quoniam pater legauit de suo: nec ad rem pertinet, quod ex nullo testamento praestatur ultra uires patrimonii, cum in hac parte iuris legata, quae tabulis secundis relinquuntur, quasi primis sub condicione relicta intelleguntur.
What then, if the inheritance of the pupillus is not sufficient for the legacies, when that of the father would have been sufficient? The substitute will give from his own (namely, from his fourth part), since the father bequeathed from his own; nor does it matter that from no will is performance made beyond the resources of the estate, since in this part of the law legacies which are left by secondary tablets are understood as if they had been left under a condition by the primary tablets.
§35.2.11.6Si filio suo duos substituerit et alterius portionem onerauerit, tractari solet, an ex persona sua Falcidiam possit inducere substitutus, quam pupillus non haberet uel unus pupilli substitutus.
If a father has substituted two persons for his son and has burdened the share of one of them, it is commonly discussed whether the substitute can, from his own person, introduce the Falcidian retention, which the pupillus would not have had, nor a single substitute of the pupillus.
et facile quis dixerit consequenter prioribus, quae de patrimonii ratione dicta sunt, non esse Falcidiae locum et ultra uires portionis conueniendum alterum substitutum.
And one might easily say, in consequence of what was said before concerning the calculation of the estate, that there is no room for the Falcidia, and that the other substitute must be sued beyond the resources of his share.
sed uerior est diuersa sententia perinde huic quartam relinquendam existimantium atque ita si patri heres extitisset: ut enim opes patris et contributio legatorum inde capiunt et formam et originem, ita plures substituti subducta persona pupilli reuocandi sunt ad intellectum institutionis.
But the contrary opinion is truer, of those who think that a fourth part must be left to this person just as if he had stood as heir to the father; for as the resources of the father and the contribution of legacies take both their form and origin from that source, so multiple substitutes, the person of the pupillus being withdrawn, must be referred back to the meaning of the institution.
quid tamen dicemus de altero substituto, qui non est oneratus? si forte nondum legata pupillus a se relicta soluit et aliquid ultra dodrantem sit in omnibus, et ipsum Falcidiam habiturum? atquin quartam habet neque idem patiatur instituti comparatio.
What, however, shall we say of the other substitute who is not burdened? If by chance the pupillus has not yet paid the legacies left by himself, and there is something beyond three-fourths in all, will he too have the Falcidia? Yet he has a fourth, nor does the comparison with an instituted heir allow him to suffer the same.
rursus si negemus, aliud aperte, quam quod uolgo probatum est, respondetur.
On the other hand, if we deny it, an answer is given which is openly other than what is commonly approved.
itaque uarietas exsistet, ut is quidem, qui proprio nomine oneratus est, uelut institutus desideret quartam, alter autem, qui non est oneratus, ut substitutus, licet portio largiatur eius, non in solidum conueniatur propter calculi confusionem.
Therefore, a difference will arise, so that he indeed who is burdened in his own name demands a fourth as if he were an instituted heir; while the other, who is not burdened, as a substitute, although his share is generous, is not sued for the whole amount on account of the confusion of the calculation.
huic consequens est, ut, si pupillo de Falcidia cautum fuit, duobus committatur stipulatio, uidelicet in eam quantitatem, quam unusquisque sibi retinere potuisset.
Consistent with this is that, if security concerning the Falcidia was given to the pupillus, the stipulation is committed to the two, namely, for that amount which each one could have retained for himself.
§35.2.11.7Quaesitum est, si quis pupillo coheredem substituisset, quemadmodum legis Falcidiae ratio inquiri debeat? et quale est, quod uolgo diceretur, legatorum rationem separandam? dixi, quantum ad legata, quae pater a filio, item a substituto reliquit, nullam fieri posse separationem, cum communi calculo subiciantur et inuicem inducant contributionem.
It was asked, if someone had substituted a co-heir for the pupillus, in what manner the calculation of the Lex Falcidia ought to be investigated? And what is the meaning of what is commonly said, that the calculation of the legacies is to be separated? I said that, as far as concerns the legacies which the father left from the son, and likewise from the substitute, no separation can be made, since they are subjected to a common calculation and mutually bring about contribution.
sed legata, quae ab instituto extero data sunt, permisceri ceteris non oportere: ideoque quartam pupillo datae portionis habere substitutum, quamuis suam portionem habeat ut institutus: et aliam causam esse eius, qui ex uariis portionibus heres scriberetur: ibi enim legatorum confundi rationem non minus, quam si semel fuisset nuncupatus ex ea portione, quae conficeretur ex pluribus, neque referre, pure saepe an sub diuersis condicionibus sit heres institutus.
But the legacies which were given by an external instituted heir ought not to be mixed with the others; and therefore the substitute has a fourth of the share given to the pupillus, although he has his own share as an instituted heir; and that the case of him who is written as heir from various shares is different; for there the calculation of the legacies is confused no less than if he had been named once from that share which was made up of several, nor does it matter whether he was instituted heir unconditionally or under various conditions.
§35.2.11.8Si quis exheredato filio substituit heredem institutum et ab eo tabulis quoque secundis legauerit, necessario ratio confundetur, cum ideo legata ualere dixerit Iulianus a substituto relicta, quod idem patri heres exstiterit.
If someone substitutes an instituted heir for a disinherited son, and has also bequeathed from him by secondary tablets, the calculation will necessarily be confused, since Iulianus said that the legacies left by a substitute are valid for the very reason that the same person stood as heir to the father.