[IDEM libro nono decimo quaestionum. ] §36.1.56.prTitius rogatus est, quod ex hereditate superfuisset, Maeuio restituere.
[THE SAME, Questions, Book 19] Titius was requested to restore to Maevius whatever should remain from the inheritance.
quod medio tempore alienatum uel deminutum est, ita quandoque peti non poterit, si non interueniendi fideicommissi gratia tale aliquid factum probetur: uerbis enim fideicommissi bonam fidem inesse constat.
What was alienated or diminished in the meantime cannot be claimed at any later time, unless it is proved that something of this kind was done for the purpose of frustrating the trust; for it is clear that good faith is inherent in the words of a trust.
diuus autem Marcus cum de fideicommissaria hereditate cognosceret, his uerbis: 'quidquid ex hereditate mea superfuerit, rogo restituas' et uiri boni arbitrium inesse credidit: iudicauit enim erogationes, quae ex hereditate factae dicebantur, non ad solam fideicommissi deminutionem pertinere, sed pro rata patrimonii, quod heres proprium habuit, distribui oportere.
Moreover, when the divine Marcus was investigating a case concerning a trust inheritance with these words: "whatever shall remain from my inheritance, I request you to restore," he believed that the judgment of a good man was inherent in them; for he judged that expenditures which were said to have been made from the inheritance did not pertain solely to the reduction of the trust, but ought to be distributed in proportion to the estate which the heir held as his own.
quod mihi uidetur non tantum aequitatis ratione, uerum exemplo quoque motus fecisse.
It seems to me that he did this not only by reason of equity, but also moved by an example.
cum enim de conferendis bonis fratribus ab emancipato filio quaereretur, praecipuum autem, quod in castris fuerat adquisitum militi, relinqui placeret, consultus imperator sumptus, quos miles fecerat, non ex eo tantummodo patrimonio, quod munus collationis pati debuit, sed pro rata etiam castrensis pecuniae decedere oportere constituit.
For when a question was raised concerning the collation of property to his brothers by an emancipated son, and on the other hand it was agreed that the special property which had been acquired by the soldier in the camp should be left to him, the emperor, having been consulted, decided that the expenses which the soldier had incurred ought to be deducted not only from that estate which had to undergo the burden of collation, but also in proportion to the military property.
propter huiusmodi tractatus Maeuius fideicommissi nomine cautionem exigere debet: quod eo pertinet, non ut ex stipulatione petatur, quod ex fideicommisso peti non poterit, sed ut habeat fideiussores eius quantitatis, quam ex fideicommisso petere potuit.
On account of discussions of this kind, Maevius ought to demand security in the name of the trust; the purpose of which is not that there should be claimed on the basis of a stipulation what cannot be claimed under the trust, but that he may have guarantors for that amount which he was able to claim under the trust.