[IULIANUS libro quadragensimo digestorum. ] §36.1.28.prita tamen, ut hi quibus restituetur hereditas actorem eligant et ad agendum et ad excipiendas actiones.
Provided, however, that those to whom the inheritance is to be restored elect an agent both for bringing actions and for defending against them.
§36.1.28.1Si seruum hereditarium heres, qui coactus adierit, iussisset adire hereditatem ab alio eidem seruo relictam et tunc hereditatem, quam suspectam sibi esse dixerat, restituerit, an etiam eam hereditatem, quae per seruum adquisita esset, restituere deberet, quaesitum est.
If an heir, who has entered upon an inheritance under compulsion, has ordered a slave belonging to the inheritance to enter upon another inheritance left to the same slave by someone else, and then restores the inheritance which he had declared to be suspect to himself, the question was raised whether he ought also to restore that other inheritance which was acquired through the slave.
dixi non magis hanc hereditatem in restitutionem uenire, quam quod seruus hereditarius post aditam hereditatem stipulatus fuisset aut per traditionem accepisset aut fructus, qui ex rebus hereditariis percepti fuissent, utique si nulla mora fideicommisso facta fuisset.
I said that this inheritance no more comes into the restoration than what the slave belonging to the inheritance had stipulated for or received by delivery after the inheritance was entered upon, or the fruits which had been gathered from the property of the inheritance, at least if no delay had been made in respect of the trust.
sed si quid ante aditam hereditatem seruus stipulatus fuisset aut per traditionem accepisset, id restitui debebit, sicut fructus ante aditam hereditatem in restitutionem uenient.
But if the slave had stipulated for or received anything by delivery before the inheritance was entered upon, this must be restored, just as the fruits gathered before the inheritance was entered upon will come into the restoration.
§36.1.28.2Qui suspectam sibi hereditatem dicit, nullum commodum ex testamento consequetur, quod habiturus non esset, si heres institutus non fuisset aut non adisset.
He who declares an inheritance to be suspect to himself shall obtain no benefit from the will which he would not have had if he had not been appointed heir or had not entered upon the inheritance.
et ideo si pupillo substitutus fuerit itaque: 'quisquis mihi heres erit, idem filio meo heres esto', hereditatem, quae ex substitutione ad eum peruenerit, restituere cogendus erit.
And therefore, if he has been substituted to a ward in this manner: "Whoever shall be my heir, let the same person be the heir to my son," he will be compelled to restore the inheritance which came to him from the substitution.
si uero detracto hoc articulo 'quisquis mihi heres erit' substitutus ita fuerit: 'Titius filio meo heres esto', tum, si solus patri heres extiterit, nihilo minus cogendus erit hereditatem pupilli restituere, si uero coheredem habuerit, retinebit pupilli hereditatem, quia potuit coherede adeunte, quamuis ipse patris omisisset hereditatem, ex substitutione adire.
But if, with this clause "whoever shall be my heir" removed, he was substituted in this way: "Let Titius be the heir to my son," then, if he stood as the sole heir to the father, he will nonetheless be compelled to restore the inheritance of the ward; but if he had a co-heir, he will retain the inheritance of the ward, because, if the co-heir entered, although he himself had omitted the father's inheritance, he could have entered from the substitution.
§36.1.28.3Si pater filium, quem in potestate habebat, heredem scripserit et ab eo petierit, ut hereditatem Sempronio restitueret, isque suspectam sibi esse dicet, poterit ex Trebelliano senatus consulto hereditas restitui.
If a father has appointed a son whom he had under his power as heir, and has requested him to restore the inheritance to Sempronius, and the son says that it is suspect to himself, the inheritance can be restored based on the Trebellian Senate Consult.
quare et si non inmiscuerit se hereditati, nihilo minus actiones, quae ei et in eum competebant, ad Sempronium transferentur.
Therefore, even if he has not meddled with the inheritance, the actions which lay in his favor and against him will nonetheless be transferred to Sempronius.
§36.1.28.4A patre heres scriptus et exheredato filio substitutus si rogatus fuerit hereditatem, quae ad eum ex substitutione peruenerit, Titio restituere, cogendus non est uiuo pupillo patris hereditatem adire, primum quia sub condicione fideicommissum datum est, deinde quia non probe de hereditate uiuentis pueri aget: mortuo autem pupillo compelli debet hereditatem patris adire.
If a person, appointed heir by a father and substituted to a disinherited son, has been requested to restore the inheritance which should come to him from the substitution to Titius, he is not to be compelled to enter upon the father's inheritance while the ward is alive; first, because the trust was given under a condition, and second, because it is not proper to deal with the inheritance of a living child. But once the ward is dead, he ought to be compelled to enter upon the father's inheritance.
§36.1.28.5Quod si duo heredes a patre instituti fuerint et utriusque fidei commissum sit, ut exheredati filii hereditatem restituerent, satis erit uel unum cogi adire: hoc enim facto etiam is, qui patris hereditatem non adit, filii hereditatem adire et restituere cogetur.
But if two heirs have been appointed by the father and it has been entrusted to the good faith of both to restore the inheritance of the disinherited son, it will be sufficient for even just one to be compelled to enter. For once this is done, even the one who does not enter upon the father's inheritance will be compelled to enter upon and restore the son's inheritance.
§36.1.28.6Quotiens filius emancipatus bonorum possessionem contra tabulas accipit, nulla ratio est compellendi heredis ad restituendam hereditatem et sicut neque legata neque fideicommissa cetera praestare cogitur, ita ne ad restitutionem quidem hereditatis compelli debet.
Whenever an emancipated son receives possession of goods contrary to the will, there is no reason to compel the heir to restore the inheritance; and just as he is compelled to pay neither legacies nor other trusts, so he ought not to be compelled even to the restoration of the inheritance.
MARCELLUS: plane non est compellendus adire, si iam filius bonorum possessionem, ne intercidat fideicommissum mortuo herede instituto et omissa a filio bonorum possessione.
MARCELLUS: Clearly, he is not to be compelled to enter if the son has already obtained possession of the goods, lest the trust should fail if the appointed heir dies and the possession of goods is omitted by the son.
§36.1.28.7Qui ex Trebelliano senatus consulto hereditatem restituit, siue petat a debitoribus hereditariis siue ab eo petatur, exceptione restitutae hereditatis adiuuari uel summoueri potest. actiones autem fideicommissario competunt, quas habuit heres eo tempore, quo fideicommissum restituebat.
A person who has restored an inheritance based on the Trebellian Senate Consult, whether he sues the debtors of the inheritance or is sued by them, can be assisted or barred by the "plea of restored inheritance." On the other hand, the actions which the heir had at the time when he was restoring the trust belong to the beneficiary of the trust.
MARCELLUS: sed eas quoque actiones, quae sub condicione erant et quarum dies eo tempore non cesserat, fideicommissario competere placet.
MARCELLUS: But it is also settled that those actions which were under a condition, and whose time had not yet come at that period, also belong to the beneficiary of the trust.
sed antequam restitueretur hereditas, exceptione aliqua heres adiuuandus non est: cum hoc minus ex causa fideicommissi sit restituturus.
But before the inheritance is restored, the heir is not to be assisted by any plea, since he would restore so much less on account of the trust.
§36.1.28.8Trebellianum senatus consultum locum habet, quotiens quis suam hereditatem uel totam uel pro parte fidei heredis committit.
The Trebellian Senate Consult applies whenever someone entrusts his inheritance, either as a whole or in part, to the good faith of his heir.
§36.1.28.9Quare si Maeuius te heredem instituerit et rogauerit, ut hereditatem Titii restituas, a quo esses heres institutus, et tu hereditatem Maeuii adieris, perinde a te fideicommissum petetur, ac si fundum, qui tibi a Titio legatus esset, restituere rogatus fuisses: ideoque et si suspectam Maeuii hereditatem dixeris, cogi te non oportet eam adire.
Therefore, if Maevius has appointed you as heir and requested you to restore the inheritance of Titius, by whom you had been appointed heir, and you enter upon Maevius's inheritance, the trust will be claimed from you just as if you had been requested to restore land which had been bequeathed to you by Titius. And for this reason, even if you declare Maevius's inheritance to be suspect to yourself, you ought not to be compelled to enter upon it.