[ULPIANUS libro quarto fideicommissorum. ] §36.1.17.8Maecianus scribit: cum quis ex fideicommissariis abesset et praesentes desiderent suo periculo adire hereditatem translatisque in solidum actionibus in eum qui coegit absentes, si uelint fideicommissum suscipere, a praesente petent: consequenter ait nec quartam eum retenturum aduersus fideicommissarios suos, quia nec heres potuit. §36.1.17.9Idem Maecianus quaerit, an is, qui duobus uel pluribus rogatus est restituere hereditatem, cogente aliquo adire possit et in horum, qui id non desiderauerunt, portionibus Falcidiae beneficio uti, siue ipsi quoque desiderent sibi restitui siue alius in locum eorum successerit.
writes: when some of the beneficiaries are absent, and those present desire the inheritance to be entered upon at their own risk, and the actions are transferred in solidum to the one who compelled, the absent ones, if they wish to undertake the trust, shall claim from the present one; consequently he says that he [the present beneficiary] will not retain the fourth against his own co-beneficiaries, since the heir also could not. same Maecianus asks whether he who has been requested to restore the inheritance to two or more, can, upon being compelled by someone to enter, use the benefit of the Falcidian law in the portions of those who did not desire it, whether they too later desire it to be restored to them or another succeeds to their place.
et cum hodie hoc iure utimur, ut totum transeat ad eum qui coegit, consequeus erit dicere quartae retentionem amisisse eum qui coactus est, quia in solidum actiones transierint in eum qui coegit.
And since today we use this law, that the whole passes to the one who compelled, it will be consequent to say that he who was compelled has lost the retention of the fourth, because the actions have passed in solidum to the one who compelled.
plane si proponas fideicommissarium non ita coegisse, ut tota hereditas in se transferatur: cum coeperint ceteri desiderare sibi restitui hereditatem, dicendum Falcidia cum uti posse.
Clearly, if you suppose that the beneficiary did not compel in such a way that the whole inheritance is transferred to himself: when the others begin to desire the inheritance to be restored to them, it must be said that he can use the Falcidian law.
recte igitur Maecianus ait multum interesse, utrum totam restitui hereditatem sibi fideicommissarius desiderauerit an suam tantummodo partem.
Correctly, therefore, Maecianus says that it makes a great difference whether the beneficiary desired the whole inheritance to be restored to himself or only his own part.
nam si sola pars transfertur, in residuo Falcidiae erit locus: si tota hereditas translata sit, cessat huius legis beneficium. §36.1.17.10Si seruo duorum rogatus quis sit restituere hereditatem et alter cogere uelit suspectam dicentem, alter restituere sibi recuset, hoc erit dicendum, quod in duobus, quorum alter suscipere uoluit hereditatem, alter non.
For if only a part is transferred, in the remainder there will be room for the Falcidian law; if the whole inheritance has been transferred, the benefit of this law ceases. someone is requested to restore an inheritance to a slave of two owners, and one owner wishes to compel him when he says it is suspect, and the other refuses to have it restored to himself, this must be said: the same as in the case of two persons, of whom one wished to undertake the inheritance, and the other did not. a father is requested to restore an inheritance to his son whom he has in his power, can the son compel his father if he says the inheritance is suspect?
§36.1.17.11Si pater filio, quem in potestate habet, rogetur restituere hereditatem, an filius patrem suum, si suspectam dicat hereditatem, cogere possit? et non est dubium patrem a filio per praetorem cogi posse. §36.1.17.12Sed et si id fideicommissum ad castrense peculium spectaturum est et filius familias is fuit, qui munus militiae sustinebat alioue quo officio praeerat, multo magis dicendum erit posse eum postulare, ut pater suus cogatur adire et restituere hereditatem, quamuis contra obsequium patri debitum uidetur id desideraturus. §36.1.17.13Sed si seruo suo rogatus sit cum libertate quis hereditatem restituere, siue directa data sit libertas siue fideicommissaria, dici poterit eum a seruo suo non posse cogi adire hereditatem, quamuis, si sponte adisset, cogeretur praestare fideicommissariam libertatem et hereditatem: idque Maecianus libro septimo de fideicommissis scribit. §36.1.17.14Idem quaerit, si quis paratus sit domino cauere de indemnitate, an possit cogi adire hereditatem, maxime et si pretium serui offeratur.
And there is no doubt that the father can be compelled by the son through the praetor. even if that trust is to belong to the military peculium, and the son of the family was one who performed military service or presided over some other office, much more must it be said that he can demand that his father be compelled to enter and restore the inheritance, although he seems to desire this contrary to the respect owed to a father. if someone has been requested to restore an inheritance to his own slave with freedom, whether the freedom was given directly or by trust, it can be said that he cannot be compelled by his own slave to enter upon the inheritance, although, if he had entered voluntarily, he would be compelled to provide the trust freedom and the inheritance; and Maecianus writes this in the seventh book on trusts. same asks, if someone is ready to give security to the master against loss, whether he can be compelled to enter upon the inheritance, especially even if the price of the slave is offered.
et recte ait non oportere sub incerto cautionis committere se aditioni hereditatis. §36.1.17.15Hi qui solidum capere non possunt, ex asse heredes instituti et rogati restituere solidum, adire hereditatem et restituere cogentur, cum nihil oneris apud eos remansurum. §36.1.17.16Si ego heres institutus et rogatus sim Stichum manumittere uel alius legatarius, fidei autem meae commissum sit, ut Titio hereditatem restituam, deinde Titii fidei commissit, ut Sticho eandem redderet: Stichus cogere me possit adire et restituere hereditatem. §36.1.17.17Talis quoque casus a diuo Pio terminatus est: nam seruo uni ex heredibus legato per fideicommissum erat ab eo libertas data et ab altero hereditas.
And he correctly says that he ought not, under the uncertainty of a security, to commit himself to the entry upon the inheritance. who cannot take the whole, having been appointed heirs to the whole estate and requested to restore the whole, will be compelled to enter upon the inheritance and restore it, since no burden will remain with them. I, having been appointed heir, and requested to manumit Stichus, or another legatee, and it has been entrusted to my faith to restore the inheritance to Titius, and then he entrusted to Titius's faith to restore the same to Stichus: Stichus can compel me to enter and restore the inheritance. a case was also decided by the divine Pius: for to a slave bequeathed to one of the heirs, freedom had been given by him through trust, and the inheritance by another.
diuus etenim Pius rescripsit Cassio Dextro in haec uerba: 'Hermias si Mosco Theodoto ex parte heredi instituto a Pamphilo testatore legatus est eumque Theodotus, postquam adierit hereditatem, prius quam a coherede eiusdem Pamphili adiretur hereditas, iustam libertatem perduxit et ob hoc in eum casum res perducta est, ut is qui legauit intestatus esse non possit, Hermia postulante mihi id Euarestus compellendus est periculo eius adire et ex causa fideicommissi hereditatem restituere'.
For the divine Pius wrote back to Cassius Dexter in these words: 'If Hermias was bequeathed by the testator Pamphilus to Moschus Theodotus, who was appointed heir in part, and Theodotus, after he entered upon the inheritance, before the inheritance was entered upon by the co-heir of the same Pamphilus, brought him to legal freedom, and on this account the matter was brought to such a case that he who bequeathed cannot be intestate, upon Hermias requesting this of me, Evarestus must be compelled at his risk to enter and restore the inheritance by reason of the trust.'