[MAECIANUS libro nono fideicommissorum. ] §35.2.32.prPoenales actiones siue legitimae siue honorariae exceptis popularibus in bonis actoris non ideo minus computandae sunt, quia morte reorum intercidere possunt.
[MAECIANUS, in his ninth book on Trusts.] Penal actions, whether statutory or praetorian, with the exception of popular actions, are not to be calculated any the less as part of the plaintiff's assets because they can be extinguished by the death of the defendants.
e contrario autem eaedem actiones nihil bonis rei defuncto eo detrahunt.
On the contrary, however, these same actions deduct nothing from the assets of the defendant upon his death.
sed ne in actoris quidem bonis defuncto eo iniuriarum actio poterit computari, quia et ipsa simul cum eo intercidit, ut usus fructus et id quod in dies menses annosue singulos alicui quoad uiuat debeatur.
But not even the action for injuries can be calculated in the assets of the plaintiff upon his death, because it also is extinguished together with him, just like a usufruct and that which is owed to someone as long as he lives, day by day, month by month, or year by year.
etenim ea demum obligatio rei bonis deminutionem praestat, quae in heredem transit.
Indeed, only that obligation which passes to the heir brings about a decrease in the defendant's assets.
nec contrarium est, quod uiuente reo eo minus in bonis eius intellegebatur: nam et si ita stipulatus esset, ut cum moreretur debere inciperet, tamen augerentur bona eius, quemadmodum, si ipse sub cadem condicione promississet, defuncto eo minuerentur.
Nor is it contradictory that, during the lifetime of the defendant, his assets were understood to be less by that amount; for even if he had made a stipulation in such a way that the debt should begin when he died, nevertheless his assets would be increased, just as, if he himself had promised under the same condition, they would be decreased upon his death.
§35.2.32.1Honorariae quoque actiones, quae intra certum tempus a praetore promittuntur, cum bonis actoris defuncto eo augmentum rei decessionemue, si tales erunt, ut in heredem quoque transeant, praestabunt.
Honorary actions also, which are promised by the praetor within a certain time, will, upon the death of the plaintiff, provide an increase or a decrease in his assets, if they are of such a nature that they also pass to the heir.
§35.2.32.2Iulianus scribit, si utriusque heredis pars exhausta est legatis et alter ex heredibus cautionem praetoriam accepit a legatariis, non aequaliter, sed pro suo modo legis Falcidiae rationem et actionem ex stipulatu habiturum.
Julian writes that if the share of each heir has been exhausted by legacies, and one of the heirs has received a praetorian security from the legatees, he will have the calculation of the Lex Falcidia and the action based on the stipulation not equally, but in proportion to his share.
omnes enim praetorias stipulationes eiusdem interpretationis esse: nam constare ex iudicatum solui stipulatione, siue a parte actoris siue a rei plures heredes exstitissent, non omnibus nec aduersus omnes actionem contingere, sed dumtaxat his qui uicissent et aduersus uictos, hisque, aduersus quos res defensa non esset, aduersus eos, qui rem non defendissent.
For all praetorian stipulations are subject to the same interpretation; for it is established from the stipulation for the payment of a judgment that, whether several heirs have appeared on the part of the plaintiff or on that of the defendant, the action does not fall to all or against all, but only to those who have won and against those who have been defeated, and to those against whom the case was not defended, against those who did not defend the case.
§35.2.32.3Annua bima trima die aureis centenis legatis ex omnibus summis non tantum ex posterioribus portionem legis Falcidiae detrahi placuit.
When a legacy of one hundred aurei is left payable in one, two, and three years, it was held that the share under the Lex Falcidia is to be deducted from all the sums, and not only from the later ones.
§35.2.32.4Si Titio uiginti legatis portio per legem Falcidiam detracta esset, cum ipse quoque quinque Seio rogatus esset restituere, Uindius noster tantum Seio pro portione ex quinque detrahendum ait, quantum Titio ex uiginti detractum esset.
If, twenty having been bequeathed to Titius, a portion was deducted through the Lex Falcidia, while he himself also was requested to restore five to Seius, our friend Vindius says that only so much is to be deducted from the five for Seius in proportion as was deducted from the twenty for Titius.
quae sententia et aequitatem et rationem magis habet, quia exemplo heredis legatarius ad fideicommissa praestanda obligabitur: nec quia ex sua persona legatarius inducere legem Falcidiam non possit, idcirco quod passus esset non imputaturum: nisi forte testator ita fidei eius commississet, ut totum, quidquid ex testamento cepisset, restitueret.
This opinion has both more equity and reason, because, after the example of the heir, the legatee will be bound to perform the trusts; nor, because the legatee cannot introduce the Lex Falcidia on his own person, will he therefore not impute what he had suffered, unless by chance the testator had so entrusted to his good faith that he should restore the whole of whatever he had received under the will.
§35.2.32.5Si autem manumittere seruum uel suum uel alienum rogatus sit, omnimodo praestare debebit libertatem, nec hoc contrarium est superiori, quia fauor libertatis saepe et alias benigniores sententias exprimit.
If, however, he has been requested to manumit a slave, whether his own or another's, he must perform the manumission in any event; and this is not contrary to the above, because favor towards liberty often expresses more benign opinions elsewhere as well.