[MARCELLUS libro quinto decimo digestorum. ] §36.1.46.prPostulante Sticho, qui eodem testamento libertatem et fideicommissam hereditatem acceperat, heres suspectam adiit: mox Stichus, antequam moram in recipienda hereditate faceret, decessit relicto herede Titio.
[MARCELLUS, Digest, Book XV] At the request of Stichus, who had received his freedom and a fideicommissum of the inheritance in the same will, the heir entered upon the inheritance as suspect. Shortly afterwards, before he could be in delay in receiving the inheritance, Stichus died, leaving Titius as his heir.
quaero, an in Titium, si nolit recipere fideicommissam hereditatem, actiones ex senatus consulto competant.
I ask whether, if Titius is unwilling to receive the fideicommissum of the inheritance, actions under the senate's decree are available against him.
respondi: quoniam fere is, qui compulsus est adire hereditatem, confestim ei restituet, de manumisso dumtaxat senatus consulto comprehensum est nec heredis facta est mentio.
I answered: since almost anyone who is compelled to enter upon an inheritance restores it to him immediately, the senate's decree only mentions the manumitted slave, and no mention is made of his heir.
potest tamen euenire, ut restitutionem distulerit heres, ueluti si pecuniam ei debuerit defunctus, quam retinere maluit quam petere.
It can, however, happen that the heir has delayed the restoration, for instance, if the deceased owed him money, which he preferred to retain rather than to seek.
ceterum existimo idem in herede eius constituendum, quod in illo constitutum est: cur enim recusaret, quam recusare non potuit is, cuius hereditatem suscepit? quod si forte ante hereditatis restitutionem sine herede decesserit libertus, perinde bona cius creditoribus hereditariis uendere permittendum est, ac si restituta hereditate decessit.
Nevertheless, I think that the same rule should be established for his heir as was established for him: for why should he refuse what he, whose inheritance he accepted, could not refuse? But if by chance the freedman should die without an heir before the restoration of the inheritance, his goods should be allowed to be sold to the inheritance creditors just as if he had died after the inheritance had been restored.
§36.1.46.1Set in huiusmodi quaestione rogo respondeas, au recte senserim.
But in a question of this kind, I ask you to answer whether I have understood correctly.
rogata est filia ex asse heres restituere hereditatis partem dimidiam deductis legatis minimis et aere alieno non magno, ut legi Falcidiae locus non sit: mora facta non est restitutioni fideicommissi.
A daughter, who was appointed heir to the whole estate, was requested to restore half of the inheritance after deducting very small legacies and a debt that was not large, so that there was no room for the Falcidian Law: no delay has occurred in the restoration of the fideicommissum.
desidero uerbo tenus mihi restitui hereditatem, ut ex Trebelliano senatus consulto agenti et ex eo competentibus actionibus etiam usuras debitas ex mortis die in tempus restitutionis persequar: item quaero et de pensionibus, quia locationum obligatio in hereditate fuit.
I desire the inheritance to be restored to me in words only, so that, suing under the Trebellian senate's decree and from the actions available thereunder, I may also pursue the interest due from the day of death until the time of restoration; I also ask about the rents, because the obligation of leases was in the inheritance.
ab herede fructus nullos peto, sed illa desiderat refundere me aut concedere ci actiones usurarum et pensionum: non possum persuadere hereditatis appellatione, quam rogata erat mihi restituere, etiam hanc stipulationem usurarum ad me pertinere.
I seek no fruits from the heir, but she desires to refund me or to grant her the actions for interest and rents: I cannot persuade her that by the name of 'inheritance' which she was requested to restore to me, this stipulation for interest also belongs to me.
respondi: omnia hace hereditatis appellatione continentur: quantum enim quod ad hoc refert, inter haec ceteraque, quae sub condicione sunt promissa aut in annos singulos uel menses, nihil interest.
I answered: all these things are contained under the name of 'inheritance': for as far as this is concerned, there is no difference between these and other things which are promised under a condition or annually or monthly.
sane pro fructu rei, quae hereditate continetur, haec cedunt, nec fructus fideicommissarium sequitur, si mora non intercessit.
To be sure, these take the place of the fruits of the property contained in the inheritance, and the fruit does not follow the beneficiary of the fideicommissum if there has been no delay.
sed quia non ut heres fidcicommissum, ut sic dixerim, suppleat postulet, set qualis nunc est hereditas, desideret restitui sibi, nequaquam id debet heres recusare: nam et quodammodo in partem hereditatis senatus recipi uoluit fideicommissarium et haberi heredis loco, pro qua parte ei restituta esset hereditas.
But because he does not demand that the heir should make up the fideicommissum, so to speak, but desires that the inheritance be restored to him as it now is, the heir should by no means refuse this: for the senate wished the beneficiary of the fideicommissum to be admitted in a way to a part of the inheritance and to be held in the place of an heir, for that part for which the inheritance had been restored to him.
sed cum hereditarios nummos faenerauit aut ex fundis fructus percepit, nihil eo nomine praestat ei, cui hereditas per fideicommissum relicta est, si non intercessit mora, scilicet quia suo periculo faenerauit colendoue fundo uel in cogendis fructibus insumpsit operam: nec aequum erat alterius, ut sic dixerim, procuratorem constitui.
But when the heir has lent out inheritance money at interest or gathered fruits from the estates, he renders nothing on that account to him to whom the inheritance was left by fideicommissum if there has been no delay, namely because he lent it at his own risk or spent effort in cultivating the land or in gathering the fruits; nor was it fair that he should be appointed, so to speak, as another's agent.
nullum autem impendium uel opera intercedit heredis, cum his modis, de quibus est quaesitum, augmentum hereditas recepit.
But no expense or effort of the heir is involved when the inheritance has received an increase in those ways about which the inquiry is made.