[IDEM libro secundo fideicommissorum. ] §36.1.18.prEx facto tractatum est, an per fideicommissum rogari quis possit, ut aliquem heredem faciat.
[The same, in the second book on trusts.] Based on an actual case, it was discussed whether anyone can be requested by trust to make someone his heir.
et senatus censuit rogari quidem quemquam, ut aliquem heredem faciat, non posse: uerum uideri per hoc rogasse, ut hereditatem suam ei restituat, id est quidquid ex hereditate sua consecutus est ut ei restitueret.
And the senate resolved that no one indeed can be requested to make someone his heir, but that by this he is deemed to have requested that he restore his inheritance to him, that is, that he should restore to him whatever he has obtained from his own inheritance.
§36.1.18.1Iulianus quoque libro quadragensimo digestorum fideicommissum tale ualere ait: 'fidei tuae committo, ut hereditatem Titii restituas', cum esset is qui rogatus est a Titio heres institutus.
Julian also, in the fortieth book of the Digests, says that such a trust is valid: 'I commit to your faith that you restore the inheritance of Titius,' when he who was requested had been appointed heir by Titius.
§36.1.18.2Non tantum autem si heredem quem scripsero, potero rogare, ut heredem faciat aliquem, uerum etiam si legatum illi uel quid aliud reliquero: nam hactenus erunt obligati, quatenus quid ad eos peruenit.
Moreover, I shall be able to request not only if I have appointed someone as heir that he make someone his heir, but also if I have left him a legacy or anything else; for they will be obligated to this extent, in so far as anything comes to them.
§36.1.18.3Si quis cauerit 'peto ut illi des' aut 'illi fideicommissum relinquas' aut 'illi libertatem adscribas', admittenda sunt: nam cum in heredum institutione senatus censuit utile, de ceteris quoque idem erit accipiendum.
If anyone has provided: 'I ask that you give to him' or 'that you leave a trust to him' or 'that you assign freedom to him', these are to be admitted; for since the senate resolved that this is valid in the case of the institution of heirs, the same must be accepted in respect of other things as well.
§36.1.18.4Si quis rogatus fuerit, ut, si sine liberis decesserit, restituat hereditatem, Papinianus libro octauo responsorum scribit etiam naturalem filium efficere, ut deficiat condicio: et in libertino eodem colliberto hoc scribit.
If anyone has been requested that, if he dies without children, he restore the inheritance, Papinian writes in the eighth book of Opinions that even a natural son causes the condition to fail; and he writes this in the case of a freedman concerning his fellow freedman.
mihi autem, quod ad naturales liberos attinet, uoluntatis quaestio uidebitur esse, de qualibus liberis testator senserit: sed hoc ex dignitate et ex uoluntate et ex condicione eius qui fideicommisit accipiendum erit.
To me, however, as far as natural children are concerned, it will seem to be a question of intention, what kind of children the testator meant; but this must be understood from the status, the intention, and the condition of him who created the trust.
§36.1.18.5Ex facto tractatum memini: rogauerat quaedam mulier filium suum, ut, si sine liberis decessisset, restitueret hereditatem fratri suo: is postea deportatus in insula liberos susceperat: quaerebatur igitur, an fideicommissi condicio defecisset.
I remember that a discussion took place based on an actual case: a certain woman had requested her son that, if he died without children, he should restore the inheritance to his brother. He was afterwards deported to an island and had begotten children there; it was therefore asked whether the condition of the trust had failed.
nos igitur hoc dicemus conceptos quidem ante deportationem, licet postea edantur, efficere, ut condicio deficiat, post deportationem uero susceptos quasi ab alio non prodesse, maxime cum etiam bona cum sua quodammodo causa fisco sint uindicanda.
We, therefore, shall say this: that those conceived indeed before deportation, although they are born afterwards, cause the condition to fail, but those begotten after deportation, being as if from another, do not help, especially since the property also, with its own status as it were, is to be claimed by the treasury.
§36.1.18.6Si quis rogatus fuerit filiis suis uel cui ex his uoluerit restituere hereditatem, Papinianus libro octauo responsorum etiam deportato ei tribuit eligendi facultatem, cui liber factus fideicommissum restitui uelit.
If anyone has been requested to restore the inheritance to his children or to whichever of them he wishes, Papinian in the eighth book of Opinions grants even to him who has been deported the power of choosing to whom he, having been made free, wishes the trust to be restored.
sed si seruus poenae fuerit constitutus, nullo ante concepto filio iam parere condicioni non poterit decessisseque sine liberis uidetur.
But if he has been made a slave of punishment, with no child having been previously conceived, he can no longer satisfy the condition and is deemed to have died without children.
sed cum decedit, electionem illam, quam Papinianus deportato dedit, huic dari non oportet.
And when he dies, that choice which Papinian gave to the deported person ought not to be given to this man.
§36.1.18.7Si quis autem susceperit quidem filium, uerum uiuus amiserit, uidebitur sine liberis decessisse.
If anyone indeed had a son, but lost him during his lifetime, he will be deemed to have died without children.
sed si naufragio uel ruina uel adgressu uel quo alio modo simul cum patre perierit, an condicio defecerit, uideamus.
But if he perished together with his father in a shipwreck, or collapse of a building, or an attack, or in any other way, let us see whether the condition has failed.
et magis non defecisse arbitror, quia non est uerum filium eius superuixisse.
And I rather think that it has not failed, because it is not true that his son survived.
aut igitur filius superuixit patri et extinxit condicionem fideicommissi, aut non superuixit et extitit condicio: cum autem, quis ante et quis postea decesserit, non apparet, extitisse condicionem fideicommissi magis dicendum est.
For either the son survived the father and extinguished the condition of the trust, or he did not survive and the condition arose; and since it is not apparent who died before and who after, it must rather be said that the condition of the trust arose.
§36.1.18.8Si quis ita fideicommissum reliquerit: 'fidei tuae, fili, committo, ut, si alieno herede moriaris, restituas Seio hereditatem', uideri eum de liberis sensisse diuus Pius rescripsit: et ideo, cum quidam sine liberis decederet, auun- culum ab intestato bonorum possessorem habens, extitisse condicionem fideicommissi rescripsit.
If anyone has left a trust in this way: 'My son, I commit to your faith that, if you die leaving an outside heir, you restore the inheritance to Seius', the divine Pius wrote back that he is deemed to have meant his children; and therefore, when a certain man died without children, having his maternal uncle as the possessor of goods on intestacy, he wrote back that the condition of the trust had arisen.