[ULPIANUS libro quinto disputationum. ] §36.1.23.prMulier, quae duobus filiis in potestate patris relictis alii nupserat, posteriorem maritum heredem instituit eumque rogauit liberis suis post mortem patris eorum hereditatem suam restituere uel ei qui eorum superesset: eisdem emancipatis a patre suo uitricus restituisse hereditatem dicebatur, mox alter ex filiis uiuo patre decessisse: quaerebatur, an is, qui supererat ex filiis, partem fratri suo restitutam petere possit quasi praemature datam.
[ULPIANUS in the fifth book of Disputations.] A woman, who had married another husband after leaving two sons under the power of their father, appointed her later husband as heir and requested him to restore her inheritance to her children after the death of their father, or to the one of them who should survive; when these same children were emancipated by their father, the stepfather was said to have restored the inheritance, and soon after, one of the sons died during the lifetime of the father: it was asked whether the son who survived could claim the part restored to his brother as having been given prematurely.
Scaeuola diuum Marcum in auditorio de huiusmodi specie iudicasse refert: Brasidas quidam Lacedaemonius uir practorius, cum filiis suis ab uxore diuortio separata, si morte patris sui iuris fuissent effecti, fideicommissum relictum esset, eos emancipauerat: post emancipationem fideicommissum petebant.
Scaevola reports that the divine Marcus judged a case of this kind in his council: a certain Brasidas, a Spartan of praetorian rank, had emancipated his sons, to whom a trust had been left by their mother from whom he was divorced, if they should become independent by the death of their father; after their emancipation, they claimed the trust.
decreuisse igitur diuum Marcum refert fideicommissum eis repraestandum intellecta matris uoluntate, quae quia non crediderat patrem eos emancipaturum, distulerat in mortem eius fideicommissum non dilatura id in mortalitatem, si eum emancipaturum sperasset.
He reports that the divine Marcus decreed that the trust should be paid to them, having understood the intention of the mother, who, because she had not believed that the father would emancipate them, had postponed the trust until his death, whereas she would not have postponed it until his death if she had hoped that he would emancipate them.
secundum haec dicebam et in proposita quaestione decretum diui Marci esse trahendum et recte fideicommissum utrisque solutum.
In accordance with this, I argued that the decree of the divine Marcus should be extended to the proposed question as well, and that the trust had been rightly paid to both.
§36.1.23.1Non est dubitatum cogi posse heredem institutum adire et restituere hereditatem seruis, siue directa siue fideicommissaria libertas eis data fuisset, cum aspernari heres non deberet personam cogentis: habet enim hic quoque aditum, ut, qui nondum petere fideicommissariam libertatem possit nec directam sibi uindicare, propter spem tamen libertatis et hereditatis aditum ad praetorem et per se habeat.
There has been no doubt that the instituted heir can be compelled to enter upon and restore the inheritance to slaves, whether direct or fideicommissary liberty has been given to them, since the heir ought not to look down upon the person of the one compelling him; for here also he has access, so that he who cannot yet claim fideicommissary liberty nor vindicate direct liberty for himself, nevertheless, on account of the hope of liberty and the inheritance, has access to the praetor even by himself.
§36.1.23.2Si heres post multum temporis restituat, cum praesenti die fidei commissum sit, deducta quarta restituet: fructus enim qui percepti sunt neglegentia petentis, non iudicio defuncti percepti uidentur.
If the heir restores after a long time, when the trust is due immediately, he shall restore it after deducting the fourth part; for the fruits which have been gathered through the negligence of the claimant are not deemed to have been gathered by the decision of the deceased.
alia causa est, si sub condicione uel in diem rogatus fuerit: tunc enim quod percipitur summouet Falcidiam, si tantum fuerit, quantum quarta facit et quartae fructus: nam fructus, qui medio tempore percepti sunt, ex iudicio testantis percepti uidentur.
The case is different if he was requested to restore under a condition or at a future day; for then what is gathered excludes the Falcidian deduction, if it is as much as the fourth and the fruits of the fourth amount to; for the fruits which have been gathered in the meantime are deemed to have been gathered from the intention of the testator.
§36.1.23.3Sed enim si quis rogetur restituere hereditatem et uel serui decesserint uel aliae res perierint, placet non cogi eum reddere quod non habet: culpae plane reddere rationem, sed eius quae dolo proxima est.
But indeed, if someone is requested to restore an inheritance and either the slaves have died or other things have perished, it is held that he is not compelled to restore what he does not have; clearly, he must render an account for fault, but only for that which is closest to fraud.
et ita Neratius libro primo responsorum scribit.
And Neratius writes thus in the first book of Opinions.
sed et si, cum distrahere deberet, non fecit lata culpa, non leui et rebus suis consueta neglegentia, huiusmodi rei rationem reddet.
But also if, when he ought to have sold them, he failed to do so through gross negligence (not light negligence, but the negligence accustomed to his own affairs), he shall render an account for this matter.
sed et si aedes ustae sunt culpa eius, reddet rationem.
And also if the buildings were burned through his fault, he shall render an account.
praeterea si qui partus extant et partuum partus, quia in fructibus hi non habentur.
Furthermore, if any offspring of slave-women survive, and the offspring of those offspring, since these are not counted among fruits, he must restore them.
sed et ipse si quem sumptum fecit in res hereditarias, detrahet.
But also, if he himself has made any expenditure on the hereditary property, he shall deduct it.
quod si sine facto eius prolixitate temporis aedes usu adquisitae sint, aequissimum erit nihil cum praestare, cum culpa careat.
If, however, without any act of his, by the length of time the buildings have been acquired by usucapion, it will be most equitable that he perform nothing, since he is free from fault.
§36.1.23.4Cum proponeretur quidam filiam suam heredem instituisse et rogasse eam, ut, si sine liberis decessisset, hereditatem Titio restitueret, eaque dotem marito dedisse certae quantitatis, mox decedens sine liberis heredem instituisse maritum suum, et quaereretur, an dos detrahi possit, dixi non posse dici in euersionem fideicommissi factum, quod et mulieris pudicitiae et patris uoto congruebat.
When a case was proposed in which someone had appointed his daughter as heir and requested her, if she died without children, to restore the inheritance to Titius, and she had given a dowry of a certain amount to her husband, and soon after, dying without children, she had appointed her husband as heir; and it was asked whether the dowry could be deducted, I said that what was consistent both with the woman's modesty and the father's wish could not be said to have been done to the destruction of the trust.
quare dicendum est dotem decedere, ac si quod superfuisset rogata esset restituere.
Therefore, it must be said that the dowry is subtracted, just as if she had been requested to restore whatever should remain.
quod si tantos fructus ex hereditate mulier percepit, ut inde poterit doti satisfieri, dicendum est potius fructibus hoc expensum ferendum quam fideicommisso.
But if the woman gathered such great fruits from the inheritance that the dowry could be satisfied therefrom, it must be said that this expense should be charged to the fruits rather than to the trust.
§36.1.23.5Ut Trebelliano locus esset, non sufficit de hereditate rogatum esse, sed quasi heredem rogari oportet.
In order for the Trebellian decree of the Senate to apply, it is not sufficient that one is requested concerning an inheritance, but he must be requested as heir.
denique si cui portio hereditatis fuerit legata (legari enim posse etiam portionem hereditatis placet nobis) rogatusque fuerit hanc partem restituere, dubio procul non fiet restitutio ex senatus consulto ideoque nec quarta retinetur.
Finally, if a portion of an inheritance has been legacy-bequeathed to someone (for we hold that even a portion of an inheritance can be bequeathed), and he has been requested to restore this part, without doubt the restoration will not take place under the decree of the Senate, and therefore the fourth part is not retained either.