[MARCELLUS libro quinto decimo digestorum. ] §35.2.54.prPater filium, ex quo tres habebat nepotes, heredem instituit fideique eius commisit, ne fundum alienaret et ut in familia eum relinqueret: filius decedens tres filios scribsit heredes.
[MARCELLUS in the fifteenth book of his Digests.] A father appointed his son, from whom he had three grandsons, as his heir, and entrusted to his good faith not to alienate the tract of land and to leave it in the family. The son, upon his death, designated his three sons as heirs.
quaerendum est, an omnino quasi creditores unusquisque in ratione legis Falcidiae aliquid possit deducere, quia in potestate sua habuit pater, cui ex his potius relinqueret.
The question is whether each of them, altogether as if they were creditors, can deduct something in the calculation of the Lex Falcidia, because the father had it in his power to whom of them he should rather leave it.
sed hac ratione nemo in Falcidiae ratione quicquam deducet.
But by this reasoning, no one will deduct anything in the calculation of the Falcidia.
quod uidendum, ne dure constituatur: utique enim in alieno aere habuit fundum, necessitate quippe obstrictus fuisset filiis eum relinquendi.
This must be seen to, lest it be established too harshly; for in any case he held the tract of land under debt, since indeed he had been bound by the necessity of leaving it to his sons.