[IULIANUS libro trigensimo nono digestorum. ] §36.1.26.prQuidam ita testamento scripserat: 'a te, heres, peto fideique tuae committo, ut quidquid ex hereditate mea ad te peruenerit, filio meo prima quaque die aut, si prius quid ei acciderit, matri eius reddas'.
[JULIANUS in the thirty-ninth book of the Digests.] A certain person had written thus in his will: 'I ask of you, heir, and commit to your good faith, that whatever of my inheritance shall come to you, you deliver it to my son on the first possible day, or, if anything should happen to him before that, to his mother.' The question is, since the boy died before the inheritance was entered upon, whether the trust is due to the mother.
quaeritur, cum antequam adeatur hereditas puer decesserit, an fideicommissum matri debeatur. respondi, si puer, antequam dies fideicommissi cedat, decessisset, fideicommissum translatum esse ad matrem, postea autem quam dies fideicommissi cedit si decesserit, ad heredem pueri fideicommissum pertinere.
I replied that if the boy had died before the day of the trust ceded, the trust was transferred to the mother; but if he died after the day of the trust ceded, the trust belonged to the heir of the boy.
sed an ea uoluntas fuit patris familias, ut, si ante restitutum fideicommissum puer decessisset, matri potius quam heredibus praestaretur, praetor aestimabit ex persona matris et ex persona heredis pueri.
But whether it was the intention of the father of the family that, if the boy died before the trust was restored, it should be paid to the mother rather than to his heirs, the praetor will judge from the person of the mother and the person of the boy's heir.
MARCELLUS: sed testatoris uoluntati congruum est, quandocumque puer decesserit, siue antequam dies fideicommissi cedit siue postea, ad matrem transferri fideicommissum, si non iam puer hoc acceperit, eoque iure utimur.
MARCELLUS: But it is in accordance with the testator's intention that, whenever the boy dies, whether before the day of the trust cedes or afterwards, the trust is transferred to the mother, if the boy has not already received it; and this is the rule of law we follow.
§36.1.26.1Si seruo herede scripto dominus rogatus est eidem seruo restituere hereditatem, cum liber esset, utile fideicommissum est.
If, a slave having been appointed heir, his master is requested to restore the inheritance to the same slave when he should be free, the trust is valid.
§36.1.26.2Si quis filium suum ex asse heredem instituit et codicillis, quos post mortem filii aperiri iussit, fidei eius commisit, ut, si sine liberis decesserit, hereditatem suam sorori suae restitueret, et filius cum sciret, quod in codicillis scriptum esset, Stichum seruum hereditarium testamento suo liberum esse iussit: heredes filii pretium eius serui sorori defuncti praestare debent libertate fauore sui seruata.
If anyone appointed his son as sole heir and, by a codicil which he ordered to be opened after the death of the son, committed to his good faith that, if he should die without children, he should restore his inheritance to his own sister; and the son, knowing what was written in the codicil, ordered by his own will that the hereditary slave Stichus should be free: the heirs of the son must pay the price of that slave to the sister of the deceased, the freedom having been preserved out of favor for the slave.
hoc amplius et si ignorasset filius codicillos a patre factos, nihilo minus heredes eius pretium praestare debebunt, ne factum cuiusquam alteri damnum adferat.
Furthermore, even if the son had been ignorant of the codicil made by his father, his heirs will nevertheless be obliged to pay the price, so that no one's act may bring loss to another.
§36.1.26.3Sed et si seruus iste a Sempronio heres institutus sit eamque hereditatem, posteaquam ex testamento fratris ad libertatem peruenerat, adierit, hereditatis quoque aestimationem heredes fratris sorori eius praestare debent, quia, si manumissus non esset, iussu mulieris adire eam potuisset.
But also, if that slave had been appointed heir by Sempronius and, after he had attained freedom under the will of the brother, had entered upon that inheritance, the heirs of the brother must also pay the valuation of that inheritance to his sister, because, if he had not been manumitted, he could have entered upon it by the order of the woman.
si uero uiuente filio Sempronius decesserit, hereditas in causa fideicommissi non deduceretur: quippe ab ipso filio adire iussus hereditatem ei adquireret.
If, however, Sempronius had died while the son was still living, the inheritance would not be brought into the account of the trust; for indeed, being ordered to enter by the son himself, he would have acquired the inheritance for him.