[GAIUS libro secundo fideicommissorum. ] §36.1.65.prFacta in fideicommissarium restitutione statim omnes res in bonis fiunt eius, cui restituta est hereditas, etsi nondum earum nactus fuerit possessionem.
[GAIUS, On Trusts, Book 2] Once the restoration has been made to the beneficiary of a trust, all the property immediately becomes part of the estate of the person to whom the inheritance has been restored, even if he has not yet acquired possession of them.
§36.1.65.1Si is qui hereditatem sibi reddi ab herede stipulatus sit eique ex stipulatu agenti restituta fuerit hereditas, constat nihilo minus transferri actiones.
If a person has stipulated for the inheritance to be restored to him by the heir, and the inheritance has been restored to him while he was bringing an action on the stipulation, it is well established that the actions are nevertheless transferred.
hoc ita est, si is cum quo actum sit restituat hereditatem: si uero ob id quod non restituerit aestimatione hereditatis condemnatus fuerit, remanent actiones hereditariae apud eum qui condemnatus sit, actor autem quantitatem consequitur.
This is so if the person against whom the action is brought restores the inheritance; but if, because he did not restore it, he is condemned to the value of the inheritance, the hereditary actions remain with the person who has been condemned, and the plaintiff recovers the sum of money.
§36.1.65.2Si heres scriptus restituerit hereditatem et postea de hereditate controuersiam passus uictus sit aut lite cesserit, durare actiones constitit in fideicommissarium semel translatas.
If the appointed heir has restored the inheritance and subsequently, having faced a dispute over the inheritance, has been defeated or has surrendered the lawsuit, it is well established that the actions once transferred to the beneficiary of the trust continue to exist.
§36.1.65.3Si quis maiorem partem restituerit quam rogatus est, in eam partem quae excedit non transferuntur actiones.
If anyone has restored a larger share than he was requested to do, the actions are not transferred in respect of that part which exceeds the limit.
sed cum praecepta aliqua re aut summa rogatus sit heres restituere et omissa retentione totam hereditatem restituerit, recte dicitur transferri actiones.
But when the heir has been requested to restore the inheritance after deducting a certain thing or sum, and he has restored the entire inheritance, omitting the retention, it is rightly said that the actions are transferred.
§36.1.65.4Si heres ante restitutam hereditatem seruum hereditarium heredem ab aliquo institutum iusserit adire hereditatem, negat Iulianus debere hanc hereditatem restitui, quia de ea rogatus non esset: et hoc est fatendum.
If, before restoring the inheritance, the heir has ordered a slave belonging to the inheritance, who has been appointed heir by someone else, to enter upon that inheritance, Julian denies that this other inheritance ought to be restored, because he had not been requested to restore it; and this must be admitted.
requirendum tamen et illud est, num cum incremento restituere heres rogatus sit hereditatem: si enim hoc fuerit subsecutum, etiam eam hereditatem restituere cogitur, nisi euidentissimis probationibus fuerit ab herede adprobatum contemplatione sui seruum esse heredem institutum.
However, we must also ask whether the heir was requested to restore the inheritance 'along with its increase'; for if this was added, he is compelled to restore that inheritance as well, unless it is proved by the heir with the clearest evidence that the slave had been appointed heir out of consideration for the heir himself.
§36.1.65.5Rescripto diui Antonini significatur, ut, si quis accepta a Titio pecunia, quae quartam hereditatis continet, rogatus sit ei restituere hereditatem, licet tardius detur pecunia, sine usuris eam dari debere, quia quanto tardius quisque pecuniam dat, tanto tardius ad fideicommissum peruenit et medii temporis fructus perdit.
By a rescript of the deified Antoninus, it is indicated that if anyone has been requested to restore an inheritance to Titius upon receiving from him a sum of money which amounts to a fourth part of the inheritance, even though the money is paid late, it ought to be paid without interest; because the later anyone pays the money, the later he arrives at the trust and the more he loses the fruits of the intervening time.
quamobrem si ante datam pecuniam tenuerit hereditatem, fructus quos percepit restituere heredi eum oportere.
Therefore, if he held the inheritance before the money was paid, he must restore to the heir the fruits he has collected.
§36.1.65.6Idem iuris est et si quis ita heredis fidei commisserit: 'rogo, si Titius tibi centum dederit, restituas ei hereditatem meam'. §36.1.65.7Si sub condicione heres institutus sit qui suspectam sibi hereditatem esse dicit, si neque difficultatem neque turpitudinem ullam habet condicio nec impendium aliquid, iubendus est parere condicioni et adire et ita restituere: si uero turpis aut difficilis sit condicio, aperte iniquum est cogi eum explere eam alterius gratia.
The same rule of law applies if anyone has charged the faith of his heir as follows: 'I request that, if Titius gives you one hundred, you restore my inheritance to him.' If a person who has been appointed heir under a condition says that the inheritance is suspect to him, and the condition involves no difficulty, disgrace, or expense, he should be ordered to comply with the condition, enter upon the inheritance, and so restore it. But if the condition is disgraceful or difficult, it is clearly unjust to compel him to fulfill it for the sake of another.
sed et remitti eam ab initio uisum est: plus enim tribui a praetore ei qui fideicommissum petit, quam testator uoluit, absurdum est: utique autem testator, nisi expleta sit condicio, neque scriptum heredem ad hereditatem uocauit neque per hunc illi uoluit restitui hereditatem.
Moreover, it has been held that the condition is remitted from the beginning; for it is absurd that more should be granted by the praetor to the person claiming the trust than the testator intended. For in any case, unless the condition is fulfilled, the testator neither called the appointed heir to the inheritance nor wished the inheritance to be restored to the beneficiary through him.