[PAULUS libro secundo fideicommissorum. ] §36.1.68.prQui ita institutus esset 'si coheres eius adisset, uti potest lege Falcidia, etsi coheres eius coactus adisset, modo si ipse non coactus adierit hereditatem.
[PAULUS, On Trusts, Book 2] He who was appointed under the condition "if his co-heir should enter upon the inheritance" can avail himself of the Lex Falcidia, even if his co-heir entered under compulsion, provided that he himself entered upon the inheritance without compulsion.
§36.1.68.1Etiam absentis procuratori, si desideraret, posse restitui hereditatem ex hoc senatus consulto Iulianus scripsit, si tamen caueat de rato habendo, si non euidens absentis voluntas esset.
Julian wrote that an inheritance can be restored also to an agent of an absent person, if he should request it, under this senatusconsult, provided, however, that he gives security for ratification, if the will of the absent person is not clear.
sed dicendum est, ut heres, qui suspectam dicat, non sit compellendus adire, si incertum sit, an mandauerit, quamuis ei caueatur, propter fragilitatem cautionis.
But it must be said that an heir who declares the inheritance suspect should not be compelled to enter upon it if it is uncertain whether the absent person gave a mandate, even though security is given to him, because of the weakness of the security.
quod si sponte adierit hereditatem, non magna captio est: sed actiones, si non mandauit, transibunt eo tempore, quo ratum habuerit.
But if the heir enters upon the inheritance voluntarily, there is no great disadvantage; however, if the absent person did not give a mandate, the actions will transfer at the time when he ratifies it.
§36.1.68.2Si damnum in seruo hereditario datum sit, licet per seruum hereditarium heredi competere actio coepit, non tamen transit legis Aquiliae actio ad fideicommissarium: hae enim actiones transeunt, quae ex bonis defuncti pendent.
If damage has been done to a slave belonging to the inheritance, even though an action began to accrue to the heir through the slave of the inheritance, the action under the Lex Aquilia nevertheless does not pass to the beneficiary of the trust; for only those actions pass which depend on the property of the deceased.
§36.1.68.3Si legatus Romae compulsus adierit hereditatem et restituerit, cogetur Romae actiones pati fideicommissarius, quamuis heres non cogetur.
If an envoy, having been compelled at Rome, has entered upon and restored the inheritance, the beneficiary of the trust will be compelled to submit to actions at Rome, although the heir himself will not be compelled.
§36.1.68.4An ubi defunctus conueniri debuit, et fideicommissarius debeat? uidendum, si sua sponte heres adit et restituit hereditatem, an tribus locis fideicommissarius defendi debeat: ubi defunctus et ubi heres et ubi ipse domicilium habeat.
Should the beneficiary of the trust also be sued where the deceased ought to have been sued? It must be considered, if the heir enters upon and restores the inheritance of his own accord, whether the beneficiary of the trust ought to defend himself in three places: where the deceased had his domicile, where the heir has his, and where he himself has his.
oportet itaque ibi fideicommissarium conueniri, ubi uel domicilium habet uel maior pars restitutae hereditatis habetur.
Therefore, the beneficiary of the trust ought to be sued where he either has his domicile or where the greater part of the restored inheritance is situated.