[ULPIANUS libro quarto fideicommissorum. ] §36.1.11.prApud Iulianum relatum est, si legatum fuit heredi instituto relictum 'si heres non erit' et ob hoc suspectam dicat hereditatem ne perdat legatum, offerri ei oportere quantitatem legati a fideicommissario, deinde cogendum.
[ULPIAN from the fourth book on Trusts.] It is reported in Julian's work that if a legacy has been left to an appointed heir "if he is not the heir," and on this account he declares the inheritance to be suspect so that he does not lose the legacy, the amount of the legacy ought to be offered to him by the beneficiary of the trust, and then he should be compelled to enter.
nec illud admittit Iulianus, ut, quasi hereditatem non adisset, sic legatum a coherede petat (adiit enim), sed magis arbitratur a fideicommissario ei praestandum.
Nor does Julian allow this: that he should claim the legacy from his co-heir as if he had not entered upon the inheritance (for he did enter), but rather he thinks that it must be paid to him by the beneficiary of the trust.
sed et si quid aliud sua interesse dicet, non cogitur adire, nisi ei damnum uel lucrum a fideicommissario sarciatur uel a praetore onus remittatur, quod recusat.
But even if he says that he has some other interest, he is not compelled to enter unless his loss or gain is made good to him by the beneficiary of the trust, or the burden which he refuses is remitted by the praetor.
§36.1.11.1Idem Iulianus ait, si duo fuerint a patre instituti cum filio eius impubere et idem substituti filio, sufficere ei, qui fideicommissum in secundis tabulis accepit, unum ex heredibus institutis cogere adire patris hereditatem: hoc enim facto confirmatisque patris tabulis poterunt ex substitutione ambo cogi adire et restituere hereditatem.
The same Julian says that if two persons have been appointed by a father along with his impubertal son, and the same persons have been substituted to the son, it is sufficient for the person who received a trust in the second tablets to compel one of the appointed heirs to enter upon the father's inheritance; for once this is done and the father's tablets are confirmed, both can be compelled under the substitution to enter and restore the inheritance.
§36.1.11.2Utrum autem praesenti an etiam absenti restitui possit procuratore adeunte praetorem, uidendum est.
Moreover, it must be considered whether restitution can be made to a person who is present, or also to one who is absent, by a representative approaching the praetor.
ego puto absenti quoque fideicommissario cogi posse heredem institutum adire et restituere nec uereri heredem oportere, ne forte in damno moretur: potest enim ei per praetorem succurri, siue cautum ei fiat, siue non et ante decesserit fideicommissarius, quam ei restituatur hereditas.
I think that even to an absent beneficiary of a trust, the appointed heir can be compelled to enter and restore, and the heir ought not to fear lest he should perhaps remain in loss; for he can be relieved by the praetor, whether security is given to him, or if it is not and the beneficiary of the trust should die before the inheritance is restored to him.
est enim huius rei exemplum capere ex rescripto diui Pii in specie huiusmodi.
For an example of this matter can be taken from a rescript of the deified Pius in a case of this kind.
Antistia decedens Titium heredem instituit et libertatem dedit Albinae directam eique filiam per fideicommissum reliquit rogauitque, ut filiam manumitteret: sed et Titium rogauit, ut manumissae Albinae filiae restitueret hereditatem.
Antistia, on passing away, appointed Titius as heir and gave direct freedom to Albina, and left her daughter to her by way of trust, asking her to manumit the daughter; but she also asked Titius to restore the inheritance to the manumitted daughter of Albina.
cum igitur Titius suspectam diceret hereditatem, rescriptum est a diuo Pio compellendum eum adire hereditatem: quo adeunte Albinae competituram libertatem eique filiam tradendam et ab ea manuunittendam tutoremque filiae manumissae dandum, quo auctore restituatur hereditas filiae statim, quamuis sic fuisset ei rogatus restituere, cum nubilem aetatem complesset.
Therefore, when Titius declared the inheritance to be suspect, a rescript was issued by the deified Pius that he must be compelled to enter upon the inheritance; upon his entering, freedom would accrue to Albina, and her daughter should be delivered to her and manumitted by her, and a guardian should be given to the manumitted daughter, with whose authority the inheritance should be restored to the daughter immediately, even though he had been requested to restore it to her in this way when she completed her marriageable age.
cum autem possit, inquit, euenire, ut ante decedat ea, cui fideicommissaria libertas et hereditas relicta est, nec oporteat damno adfici eum, qui rogatus adit hereditatem, remedium dedit, ut, si quid horum contigerit, perinde permittatur uenumdari bona Antistiae, ac si heres ei non exstitisset.
"But since," he said, "it can happen that she to whom the trust-freedom and inheritance were left should die before, and he who enters upon the inheritance as requested ought not to suffer loss," he provided a remedy: that if any of these things should happen, the goods of Antistia should be permitted to be sold in the same manner as if an heir had not existed for her.
cum igitur demonstrauerit diuus Pius succurri heredi instituto, qui compulsus adit, dici potest etiam in ceteris causis exemplum hoc sequendum, sicubi euenerit, restituatur fideicommissaria hereditas ei, qui compulit adire et restituere sibi hereditatem.
Therefore, since the deified Pius showed that relief is given to an appointed heir who enters under compulsion, it can be said that this example should be followed in other cases as well: wherever it happens, the trust inheritance should be restored to the person who compelled him to enter and restore the inheritance to him.