[IDEM libro sexagesimo primo digestorum. ] §35.2.87.prQui fundum solum in bonis centum relinquebat, si heredem suum damnauerit, ut eum quinquaginta Titio uenderet, non est existimandus amplius quam quinquaginta legasse, ideoque lex Falcidia locum non habet.
[The same, from the sixty-first book of digests.] A person who left only a tract of land among assets worth a hundred, if he charged his heir to sell it to Titius for fifty, must not be deemed to have bequeathed more than fifty, and therefore the Falcidian law has no application.
§35.2.87.1Item is, qui duos fundos in bonis centum haberet, si me et Titium heredes instituisset et damnasset me, ut Titio fundum Cornelianum quinquaginta uenderem et contra Titium damnasset, ut mihi fundum Seianum quinquaginta uenderet: non animaduerto, quemadmodum lex Falcidia locum habere possit, cum uterque heredum unius fundi partem dimidiam hereditario iure habiturus sit, in qua pars dimidia hereditatis est: nam certe qui damnatus est fundum Cornelianum uendere, Seiani fundi partem hereditario iure habet, item qui damnatus est Seianum fundum uendere, partem Corneliani fundi hereditario iure retinet.
Likewise, a person who had two tracts of land among assets worth a hundred, if he appointed me and Titius as heirs and charged me to sell the Cornelian estate to Titius for fifty, and conversely charged Titius to sell the Seian estate to me for fifty: I do not see how the Falcidian law can apply, since each of the heirs will hold, by hereditary right, a half part of one estate, in which there is a half part of the inheritance. For certainly, he who is charged to sell the Cornelian estate holds a part of the Seian estate by hereditary right, and likewise, he who is charged to sell the Seian estate retains a part of the Cornelian estate by hereditary right.
§35.2.87.2Si quis heredem instituerit eum, cui rogatus fuerat post mortem suam centum restituere, in ratione legis Falcidiae centum deducere debet, quia, si alius quilibet heres exstitisset, haec centum in aere alieno ponerentur.
If anyone appoints as heir a person whom he had been asked to restore a hundred after his death, he must deduct the hundred in the calculation of the Falcidian law, because if any other heir had existed, this hundred would have been placed among the debts.
§35.2.87.3Si tu ex parte quarta, Titius ex parte quarta heredes scripti fueritis, deinde tu ex parte dimidia heres institutus fueris sub condicione, et legata, item libertates datae fuerint: pendente condicione libertates competent, legata tota praestabuntur, quia siue condicio exstiterit, te herede exsistente utraque ualent, siue condicio defecerit, tu et Titius heredes eritis.
If you are designated as heir to a fourth part and Titius to a fourth part, and then you are appointed heir to a half part under a condition, and legacies as well as grants of freedom are given: while the condition is pending, the grants of freedom will take effect and the legacies will be paid in full, because whether the condition is fulfilled, you being the heir, both are valid, or whether the condition fails, you and Titius will be the heirs.
de lege Falcidia, si hoc quaeris, an exsistente condicione miscetur quadrans tuus et semis atque ita pro dodrante ratio ponenda est cum his, quibus a te pure herede legatum est, respondebimus misceri duas partes.
Regarding the Falcidian law, if you ask whether, upon the fulfillment of the condition, your fourth part and your half part are mixed, and thus the calculation must be made for three-fourths with those to whom a legacy was given by you as an unconditional heir, we shall reply that the two parts are mixed.
§35.2.87.4Qui filium suum impuberem et Titium aequis partibus heredes instituerat, a filio totum semissem legauerat, a Titio nihil et Titium filio substituerat.
A man had appointed his impubertal son and Titius as heirs in equal parts, had bequeathed the whole half part from the son, nothing from Titius, and had substituted Titius for the son.
quaesitum est, cum Titius ex institutione adisset et impubere filio mortuo ex substitutione heres exstitisset, quantum legatorum nomine praestare deberet.
It was asked, when Titius had entered upon the inheritance under the institution and, the impubertal son having died, had become heir under the substitution, how much he ought to pay in the name of legacies.
et placuit solida legata eum praestare debere: nam confusi duo semisses efficerent, ut circa legem Falcidiam totius assis ratio haberetur et solida legata praestarentur.
And it was held that he ought to pay the legacies in full; for the two half parts, being merged, would cause the calculation regarding the Falcidian law to be made on the basis of the entire estate, and the legacies to be paid in full.
sed hoc ita uerum est, si filius antequam patri heres exsisteret decessisset.
But this is true only if the son died before he became heir to his father.
si uero patri heres fuit, non ampliora legata debet substitutus, quam quibus pupillus obligatus fuerat, quia non suo nomine obligatur, sed defuncti pupilli, qui nihil amplius quam semissis dodrantem praestare necesse habuit.
If, however, he had been heir to his father, the substitute does not owe more in legacies than those for which the pupillus had been bound, because he is bound not in his own name, but in that of the deceased pupillus, who was not obliged to pay more than three-fourths of his half.
§35.2.87.5Quod si extranei heredis semis totus legatus fuerit isque pupillo, a quo nihil legatum erat, ex substitutione heres exstiterit, poterit dici augeri legata et perinde agendum, ac si cuilibet coheredi substitutus fuisset eoque omittente hereditatem ex asse heres exstitisset, quia semper substitutus rationem legis Falcidiae ex quantitate bonorum, quae pater reliquerit, ponet.
But if the entire half of an outside heir had been bequeathed, and he became heir under the substitution to the pupillus from whom nothing had been bequeathed, it can be said that the legacies are increased and that one must proceed just as if he had been substituted to any co-heir and, upon the latter's omitting the inheritance, had become heir to the whole estate, because a substitute will always calculate the Falcidian law on the basis of the quantity of assets left by the father.
§35.2.87.6Eadem dicenda sunt et si pater duos impuberes heredes instituerit et eosdem inuicem substituerit, deinde iure substitutionis ad alterum hereditas recciderit et legis Falcidiae ratio habenda sit.
The same must be said even if a father has appointed two impubertal children as heirs and has substituted them for each other, and then by the right of substitution the inheritance has fallen to one of them, and the calculation of the Falcidian law must be made.
§35.2.87.7Qui filios impuberes duos habebat, alterum heredem instituit, alterum exheredauit, deinde exheredatum instituto substituit ac postea exheredato Maeuium et ab eo legauit: et exheredatus fratri impuberi exstitit heres, deinde impubes decessit.
A man who had two impubertal sons appointed one of them as heir and disinherited the other; then he substituted the disinherited son for the instituted one, and afterwards substituted Maevius for the disinherited one and charged him with legacies; and the disinherited son became heir to his impubertal brother, and then he, being impubertal, died.
cum iudicio patris facultates paternae per causam hereditariam ex substitutione ad eum perueniant, potest dici legata ab eo relicta praestanda esse habita ratione legis Falcidiae in his bonis, quae pater mortis tempore reliquerit.
Since by the judgment of the father the paternal property comes to him through the cause of the inheritance from the substitution, it can be said that the legacies left from him must be paid, taking into account the Falcidian law, in respect of those assets which the father left at the time of his death.
nec huic contrarium est, quod, cum exheredato pater legatum dederit, nihilo magis substitutus legatis obligabitur, quia eo casu non hereditatis paternae portio, sed legatum ad eum peruenit.
Nor is it contrary to this that, when the father gave a legacy to the disinherited son, the substitute is no more bound by the legacies, because in that case not a portion of the paternal inheritance, but a legacy came to him.
dicet aliquis: quid ergo, si exheredatus filius non ex substitutione fratri suo heres exstiterit, sed aut lege aut per interpositam personam atque Ita impubes decesserit? sic quoque existimandus erit substitutus legata debere? minime: nam quantum intersit, exheredatus filius ex substitutione fratri suo heres exsistat an alio modo, uel ex eo apparet, quod alias ab eo legare pater potuit, alias non potuit.
Someone will say: what then, if the disinherited son became heir to his brother not from the substitution, but either by law or through an interposed person, and thus died being impubertal? Shall the substitute also be deemed to owe the legacies? By no means: for how much it matters whether the disinherited son becomes heir to his brother from the substitution or in some other way is apparent even from this, that in the former case the father could charge him with legacies, but in the latter case he could not.
est igitur rationi congruens, ne plus iuris circa personam substituti testator habeat, quam habuerat in eo, cui eum substituebat.
It is therefore agreeable to reason that the testator should not have more right concerning the person of the substitute than he had in him for whom he substituted him.
§35.2.87.8Coheres pupillo datus si pro parte sua legata, habita legis Falcidiae ratione, praestiterit, deinde impubere mortuo ex substitutione heres exstiterit et semis pupilli legatis exhaustus esset, ex integro legis Falcidiae ratio ponenda erit, ut contributis legatis, quae ab ipso et quae a pupillo data fuerant, pars quarta bonorum apud eum remaneat.
If a person who was appointed as co-heir with a pupillus has paid the legacies for his own part, taking into account the Falcidian law, and then upon the death of the impubertal pupillus has become heir under the substitution, and the half-share of the pupillus had been exhausted by legacies, the calculation of the Falcidian law must be made afresh, so that, after combining the legacies given by himself and those given by the pupillus, a fourth part of the assets may remain with him.
licet enim pupillo heres exsistat, tamen circa legem Falcidiam perinde ratio habetur ac si patri heres exstitisset.
For although he becomes heir to the pupillus, nevertheless, as regards the Falcidian law, the calculation is made just as if he had become heir to the father.
nec aliter augebuntur legata, quae ab ipso ultra dodrantem data fuerant, quam augentur, cum ex parte heres institutus et coheredi suo substitutus deliberante coherede legata, habita ratione legis Falcidiae, soluit, deinde ex substitutione alteram quoque partem hereditatis adquirat.
Nor will the legacies which had been given by him beyond three-fourths be increased in any other way than they are increased when a person appointed heir to a part and substituted to his co-heir pays the legacies, taking into account the Falcidian law, while the co-heir is deliberating, and then acquires the other part of the inheritance also under the substitution.