[PAULUS libro quarto quaestionum. ] §36.1.61.prDebitor sub pignore creditorem heredem instituit eumque rogauit restituere hereditatem filiae suae, id est testatoris: cum nollet adire ut suspectam, coactus iussu praetoris adit et restituit: cum emptorem pignoris non inueniret, desiderabat permitti sibi iure dominii id possidere.
[PAULUS, Questions, Book 4] A debtor appointed his creditor as heir under pledge and requested him to restore the inheritance to his own daughter, that is, the testator's. Since he was unwilling to enter upon it as being suspect, he entered upon and restored it, compelled by the order of the praetor. Since he could not find a buyer for the pledge, he desired to be permitted to possess it by right of ownership.
respondi: aditione quidem hereditatis confusa obligatio est: uideamus autem, ne et pignus liberatum sit sublata naturali obligatione.
I answered: by the entry upon the inheritance, indeed, the obligation is extinguished by confusion; but let us see whether the pledge is also released, the natural obligation being extinguished.
atquin siue possidet creditor actor idemque heres rem siue non possidet, uideamus de effectu rei.
Yet, whether the creditor, who is the plaintiff and the same person as the heir, possesses the thing or does not possess it, let us see concerning the effect of the matter.
et si possidet, nulla actione a fideicommissario conueniri potest, neque pigneraticia, quoniam hereditaria est actio, neque fideicommissum, quasi minus restituerit, recte petetur: quod eueniret, si nullum pignus intercessisset: possidet enim eam rem quasi creditor.
And if he possesses it, he cannot be sued by the beneficiary of the trust by any action, nor by a pledge action, since it is a hereditary action, nor will the trust-bequest be rightly claimed as if he had restored less: which would happen if no pledge had intervened: for he possesses that thing as a creditor.
sed et si fideicommissarius rem teneat, et hic Seruiana actio tenebit: uerum est enim non esse solutam pecuniam, quemadmodum dicimus, cum amissa est actio propter exceptionem.
But even if the beneficiary of the trust holds the thing, here too the Servian action will hold: for it is true that the money has not been paid, just as we say when an action is lost because of an exception.
igitur non tantum retentio, sed etiam petitio pignoris nomine competit et solutum non repetetur.
Therefore, not only retention but also petition is competent on the ground of the pledge, and what is paid will not be recovered.
remanet ergo propter pignus naturalis obligatio.
The natural obligation, therefore, remains on account of the pledge.
in re autem integra non putarem compellendum adire, nisi prius de indemnitate esset ei cautum uel soluta pecunia esset: nam et cum de lucro heres scriptus a sit, quod forte legatum accepit, si heres non extitisset, responsum est non esse cogendum adire nisi legato praestito.
But when the matter is entire, I should not think that he ought to be compelled to enter upon it, unless security were first given to him for indemnity or the money were paid: for even when an heir is appointed for gain, such as if he received a legacy which he would have taken if he had not become heir, it was answered that he is not to be compelled to enter unless the legacy is provided.
ubi quidem potuit dici nec cogendum esse heredem adire quodammodo contra uoluntatem defuncti, qui legando heredi, si non adisset, in ipsius uoluntate posuit aditionem: sed cum testator alterutrum dederit, nos utrumque ei praestamus.
Where indeed it could be said that the heir ought not to be compelled to enter in a way contrary to the will of the deceased, who by leaving a legacy to the heir if he did not enter, placed the entry in his own will: but when the testator has given either of the two, we provide both to him.
§36.1.61.1Ea quae dotem dabat pacta erat cum marito, ut mortua se in matrimonio dotis pars matri eius redderetur, nec eo nomine stipulatio a matre interposita est: moriens deinde matrem et maritum suum heredem fecerat et a matre petierat, ut hereditatem Titio restitueret: iudex addictus de hereditate diuidenda partem dotis quasi ex utili pacto pro parte matri adiudicauerat: quaerebatur, an et ea portio ex causa fideicommissi praestanda sit.
A woman who was giving a dowry had agreed with her husband that, if she died during the marriage, a part of the dowry should be returned to her mother, and no stipulation had been interposed by the mother on that account. Then, dying, she had made her mother and her husband her heirs and had requested her mother to restore the inheritance to Titius. The judge appointed for dividing the inheritance had awarded a part of the dowry to the mother in proportion to her share, as if on the ground of an equitable agreement. It was asked whether that portion also is to be provided on the ground of the trust-bequest.
quam non esse restituendam puto, quia non quasi heres, sed quasi mater ex pacto accepit nec occasione hereditatis, sed errore ex pacto eam habuit.
I think that it is not to be restored, because she received it not as heir, but as mother on the ground of the agreement, and did not have it on the occasion of the inheritance, but by mistake on the ground of the agreement.