[IDEM libro tertio decimo responsorum. ] §35.2.15.prQuod bonis iure Falcidiae contribuendum est a debitore, cui mortis causa pacto debitum remissum est, in factum concepta replicatione retinebitur.
[THE SAME, from his thirteenth book of Opinions.] What must be contributed to the assets under the Lex Falcidia by a debtor whose debt has been remitted by an agreement mortis causa will be retained by means of a replication shaped on the facts.
§35.2.15.1Frater cum heredem sororem scriberet, alium ab ea cui donatum uolebat stipulari curauit, ne Falcidia uteretur et ut certam pecuniam, si contra fecisset, praestaret.
A brother, when he appointed his sister as heir, arranged for another person, to whom he wished to make a donation, to stipulate from her that she would not use the Lex Falcidia, and that she would pay a certain sum of money if she did otherwise.
priuatorum cautione legibus non esse refragandum constitit et ideo sororem iure publico retentionem habituram et actionem ex stipulatu denegandam.
It was established that the laws should not be frustrated by a guarantee of private individuals, and therefore the sister would have her retention under public law, and the action based on the stipulation must be denied.
§35.2.15.2Non idcirco minus Falcidiae rationem in ceteris annuis legatis admitti uisum est, quod primo ac secundo anno sine ulla detractione fuissent legatario soluta.
It did not seem that the calculation of the Lex Falcidia was admitted any less in the remaining annual legacies because they had been paid to the legatee in the first and second years without any deduction.
§35.2.15.3Quod auus ex causa tutelae nepoti debuit, cum auo nepos solus heres exstitisset, ratio Falcidiae si poneretur, in aere alieno bonis deducendum respondi.
I replied that what a grandfather owed to his grandson on account of guardianship, when the grandson had become the sole heir to the grandfather, if the calculation of the Lex Falcidia were applied, must be deducted from the assets as a debt.
nec ad rem pertinere, quod heredem auus idemque tutor rogauerat, ut, si sine liberis ante certam aetatem decederet, tam hereditaria quam propria bona restitueret: non enim ex hoc hereditatem debito compensatam uideri, cum uel ideo maxime declaretur non esse compensationem factam, quoniam heredem suum habere propria bona defunctus ostendit.
Nor does it matter that the grandfather, who was also the guardian, had requested the heir that, if he should die without children before a certain age, he should restore both the inherited and his own property; for the inheritance is not deemed to have been set off against the debt by this, since indeed it is most clearly declared that no set-off was made by the very fact that the deceased showed that his heir had his own property.
plane si condicio fideicommissi fuerit impleta, fructus hereditatis post mortem aui percepti pari pecunia debito tutelae compensabuntur, sed quartam heres nepotis de bonis dumtaxat, quae moriens auus reliquit, retinebit.
Obviously, if the condition of the fideicommissum is fulfilled, the fruits of the inheritance gathered after the death of the grandfather will be set off against the guardianship debt by an equal sum of money, but the heir of the grandson will retain the fourth only from the assets which the grandfather left at his death.
§35.2.15.4Cum fideicommissum, ex uoluntate matris a patre moriente debitum, filio pater hereditate sua, quam in filium conferebat, compensari uoluit: quod filio debetur, si ratio Falcidiae poni coeperit, fini quadrantis, quem ex bonis patris cum effectu percepit, compensabitur atque ita superfluum aeris alieni dodranti tantum detrahetur.
When a father wished that a fideicommissum, due to his son from the dying father in accordance with the will of the mother, should be set off by his own inheritance which he was conferring upon his son: what is owed to the son, if the calculation of the Lex Falcidia begins to be applied, will be set off to the limit of the fourth which he actually received from the father's assets, and thus the excess of the debt will be deducted only from the three-fourths.
§35.2.15.5Ex donationibus in uxorem collatis quod heres eius reddere uiro cogitur, in bonis mulieris non erit.
What her heir is compelled to return to the husband from the donations conferred upon the wife will not be in the wife's assets.
nam ita fit locupletior, ut tanto pauperior esse uideatur: quod autem heres inde minuit, uiro non perit.
For she thus becomes richer in such a way that she is deemed to be poorer by the same amount; but what the heir diminishes therefrom is not lost to the husband.
§35.2.15.6Fructus praediorum sub condicione uerbis fideicommissi relictorum in causam fideicommissi nou deductos heres in ratione Falcidiae sic accepto facere sibi cogitur, ut quartam, et quartae fructus ex die mortis, bonorum quae mortis tempore fuerunt habeat.
The fruits of estates left conditionally under the words of a fideicommissum, if they are not deducted for the purpose of the fideicommissum, the heir is compelled in the calculation of the Lex Falcidia to credit to himself in such a way that he has the fourth of the assets that existed at the time of death, and the fruits of the fourth from the day of death.
nec ad rem pertinet, quando Falcidia lex admissa sit: nam etsi maxime post impletam condicionem fideicommissorum locum habere coepit, tamen ex die mortis fructus quadrantis apud heredem relinqui necesse est.
Nor does it matter when the Lex Falcidia was admitted; for even if it began to apply especially after the fulfillment of the condition of the fideicommissa, nevertheless it is necessary that the fruits of the fourth from the day of death remain with the heir.
§35.2.15.7Fideicommissum portionis supplendae gratia, pro qua matrem filius heredem instituit, eidem matri datum ratione Falcidiae minuitur et eam pecuniam mater supra quartam portionis suae percipiet.
A fideicommissum given to the same mother for the sake of supplementing the share for which the son had appointed his mother as heir is diminished by the calculation of the Lex Falcidia, and the mother will receive that money in addition to the fourth of her share.
§35.2.15.8Quarta, quae per legem Falcidiam retinetur, aestimatione quam testator fecit non magis minui potest, quam auferri.
The fourth, which is retained under the Lex Falcidia, can no more be diminished by the valuation made by the testator than it can be taken away.