[IDEM libro uicesimo secundo digestorum. ] §35.2.56.prCum quo de peculio agi poterat, heres creditori exstitit: quaeris, cuius temporis peculium computari oporteat in Falcidia lege.
[THE SAME in the twenty-second book of his Digests.] A person against whom an action on the peculium could be brought has become the heir to the creditor. You ask at what time the peculium ought to be computed under the Lex Falcidia.
plerique putant, quod tunc in peculio fuerit, cum adiretur hereditas, inspiciendum.
Most people think that what was in the peculium at the time when the inheritance was entered upon should be looked at.
ego dubito, quoniam mortis tempus in ratione legis Falcidiae ineunda placuit obseruari: quid enim interest, peculium serui post mortem creditoris deminutum sit an debitor pauperior factus sit?
I am in doubt, since it has been decided that the time of death is to be observed in entering upon the calculation of the Lex Falcidia; for what difference does it make whether the peculium of the slave was diminished after the death of the creditor or the debtor became poorer?
§35.2.56.1Aliquis dicet: quid ex contrario, si ante aditam hereditatem adquisierit seruus? et ego quaeram, si debitoris, qui tunc non erat soluendo, ampliatae facultates fuerunt? et cum in isto placuerit ex post facto uberiorem uideri fuisse hereditatem, sicuti cum condicio crediti exstitit post mortem, ita etiam peculii incrementum pleniorem faciet hereditatem.
Someone will say: "What on the contrary if the slave acquired something before the inheritance was entered upon?" And I will ask: "If the resources of a debtor, who at that time was not solvent, were increased?" And since in the latter case it has been decided that the inheritance is seen to have been richer from a post-facto event, just as when the condition of a debt is fulfilled after death, so also an increase in the peculium will make the inheritance fuller.
§35.2.56.2SCAEUOLA notat: quid ergo, si idem seruus defuncto et alii dena debuit et una decem habuit? augetur scilicet et his hereditas, decem, quae defuncto naturaliter debebantur, in hereditate manentibus.
SCAEUOLA notes: What then if the same slave owed ten to the deceased and ten to another, and had only ten? Of course, the inheritance is increased also by these, since the ten which were naturally owed to the deceased remain in the inheritance.
§35.2.56.3Is, qui in bonis unum dumtaxat seruum habebat, legauit eum Titio et fidei eius commisit, ut post triennium manumitteret: debet ex eo, quod interim ex operis serui ad Titium peruenire potest, quarta apud heredem remanere, quem- admodum si directo post triennium seruo libertatem dedisset eiusque usum fructum ei legasset, aut ei proprietatem per fideicommissum relinquit.
He who had only one slave in his property bequeathed him to Titius and entrusted to his good faith to manumit him after three years: a fourth part must remain with the heir from what in the meantime can come to Titius from the services of the slave, just as if he had directly given freedom to the slave after three years and bequeathed his usufruct to Titius, or had left him the ownership through a fideicommissum.
§35.2.56.4Stichum tibi, seruo tuo decem legauit uel contra tibi decem, seruo tuo Stichum, libertatemque Stichi fidei eius commisit.
He bequeathed Stichus to you and ten to your slave, or on the contrary ten to you and Stichus to your slave, and entrusted the freedom of Stichus to his good faith.
lex Falcidia minuit legata: redimere ab herede partem debes, quemadmodum si tibi utrum que legasset.
The Lex Falcidia reduces the legacies: you must redeem the part from the heir, just as if he had bequeathed both to you.
§35.2.56.5Saepius euenit, ne emolumentum eius legis heres consequatur: nam si centum aureorum dominus uiginti quinque alicui dedisset et eum instituerit heredem et dodrantem legauerit, nihil aliud sub occasione legis Falcidiae interuenire potest, quia uiuus uidetur heredi futuro prouidere.
It quite often happens that the heir does not obtain the benefit of that law; for if the owner of a hundred aurei had given twenty-five to someone and appointed him heir and bequeathed three-quarters, nothing else can intervene on the occasion of the Lex Falcidia, because he is seen while alive to provide for his future heir.