[IDEM libro uicensimo primo digestorum. ] §36.1.80.11Heres institutus uxori rogatus totam hereditatem restituere restituit detracta quarta: quaesitum est, cum uxor quartam partem hereditatis praesenti die et reliquam post tempus alii rogata a testatore sic fere fuit: quoniam et ipsi uniuersam rem meam eo, quod filiam meam et nepotem meum heredes scripsi uniuersae substantiae, uideor communicasse fuisset restituere, an id, quod heres ei detraxisset quartae nomine, in restituendo fideicommisso imputare possit.
An appointed heir, requested to restore the entire inheritance to the wife, restored it with the deduction of a fourth. The question was asked, when the wife had been requested by the testator to restore a fourth part of the inheritance immediately and the remainder after a period of time to another (as it was almost thus: "since I also seem to have shared my entire estate by the fact that I appointed my daughter and my grandson as heirs to the whole substance"), whether she can credit in restoring the trust that which the heir had deducted from her under the name of the fourth.
respondit, quatenus cepisset, fideicommisso obstrictam.
He answered that she was bound by the trust to the extent that she had received.
§36.1.80.12Heredum fidei commisit, ut, quidquid ex parte tertia hereditatis peruenerit ad eos, id redderent Gaio Maeuio alumno testatoris, cum fuerit annis quindecim, et subiunxit haec uerba: 'interim ex refectu paupertatis, qui ad uos peruenerit, alatis eum ex usuris pro quantitate nummorum redactis.
He committed to the faith of the heirs that, whatever should come to them from a third share of the inheritance, they should restore it to Gaius Maevius, the ward of the testator, when he should be fifteen years of age, and added these words: "In the meantime, from the revenue of the share which shall come to you, support him from the interest received in proportion to the amount of money.
hoc amplius eidem alumno meo hominem Caletanum et uernam sutorem, qui eum artificio suo mercede data alere poterit'.
In addition to this, to the same ward of mine, the slave Caletanus and the home-born shoemaker slave, who by his trade will be able to support him with the wages paid." The question was asked, when the appointed heirs provided support much less than the interest of the sum received was equivalent to, whether they ought to be compelled to pay also the remainder for the whole time, or only from the day on which he completed his fifteenth year?
quaesitum est, cum alimenta multo minora praestiterint heredes scripti, quam usurae summae redactae competebant, an et residuas praestare compelli debeant totius temporis an ex die, quo quintum decimum explesset? et cum serui legati ei specialiter, ut ex mercedibus aleretur, statim uenierint, utrum mercedes an usuras petere debeat? respondit secundum ea quae proponerentur testatorem uideri de omni reditu et mercede seruorum restituenda sensisse.
And when the slaves bequeathed to him specifically so that he might be supported from their wages immediately came to him, whether he ought to demand the wages or the interest? He answered that, according to the facts proposed, the testator seemed to have intended that all the revenue and the wages of the slaves should be restored.
§36.1.80.13Pluribus heredibus institutis, in quibus et libertis tribus ex dodrante, eisdem fundos per praeceptionem dedit et ab his petit, ne eos alienarent et ut, qui uita superasset, solidos eosdem fundos optineret: deinde unius ex his libertis Otacilii fidei commisit, uti quidquid ad eum ex hereditate bonisue peruenisset, deducto pro ea parte aere alieno et legatis et sibi uiginti aureis restituat Titio: quaesitum est, an etiam partes tertias fundorum, praelegatorum cum conlibertis eidem, deducere deberet.
Several heirs being appointed, among whom were three freedmen for a three-quarter share, he gave them certain lands by pre-legacy and requested them not to alienate them, and that the survivor should obtain the same lands in their entirety. Then he committed to the faith of Otacilius, one of these freedmen, that whatever should come to him from the inheritance or the goods, after deducting the debt in proportion to that share, the legacies, and twenty aurei for himself, he should restore to Titius. The question was asked whether he ought also to deduct (that is, not restore) the third shares of the lands pre-bequeathed to him together with his fellow freedmen.
respondit secundum ea quae proponerentur non debere restituere praeceptionem, cum ipse testator et legata excipi uoluisset.
He answered that, according to the facts proposed, he did not have to restore the pre-legacy, since the testator himself had wished the legacies to be excepted.
§36.1.80.14Maritus uxore instituta herede ex parte tertia et pluribus ei fideicommissis datis dotem quoque praelegauit his uerbis: 'Seiae uxori meae dari uolo a filiis meis summam dotis eius, quae mihi pro ea illata est' eiusdemque uxoris fidei commisit, ut partem hereditatis et quaecumque ei legasset post mortem suam Titio filio communi restitueret.
A husband, having appointed his wife as heir to a third share and having given her several trusts, also pre-bequeathed her dowry in these words: "I wish to be given to Seia my wife by my sons the sum of her dowry which was brought to me on her behalf," and committed to the faith of the same wife that after her death she should restore the share of the inheritance and whatever he had bequeathed to her to Titius, their common son.
quaesitum est, an summam quoque dotis inter cetera legata ex causa fideicommissi filio suo restituere debeat.
The question was asked whether she ought also to restore the sum of the dowry to her son under the trust along with the other legacies.
respondit non alias, nisi manifestum esset de dote quoque restituenda testatorem sensisse: atque etiamsi sensisset et hoc fuerit adprobatum, ita eius quoque petitionem fore, si non minus in quantitate, quae Falcidiae nomine remaneret, foret quam in quantitate dotis.
He answered that she ought not, unless it was manifest that the testator had intended that the dowry also should be restored; and even if he had so intended and this was proved, the petition for it would only lie if the quantity remaining under the Falcidian law were not less than the amount of the dowry.
§36.1.80.15Rogatus hereditatem restituere Septicio, cum erit annis uiginti, interea fundos, quos defunctus pignori acceperat, uendidit et propterea pigneraticia iudicio a debitore conuentus decessit herede relicto Sempronio et iudicio nondum finito restituit hereditatem Septicio.
An heir requested to restore the inheritance to Septicius when he should be twenty years of age sold in the meantime lands which the deceased had received as a pledge, and having been sued on that account by the debtor in a pledge action, died, leaving Sempronius as his heir; and before the lawsuit was finished, Sempronius restored the inheritance to Septicius.
quaesitum est, an iudicio nihilo minus ipse condemnari debeat, cum potucrit retinere (uel caueri sibi) id, quod ex causa iudicati praestaturus esset.
The question was asked whether Sempronius himself ought nevertheless to be condemned in the lawsuit, since he could have retained (or demanded security for) that which he would have to pay by virtue of the judgment.
respondit iudicii exsecutionem nihilo minus aduersus heredem et post restitutam hereditatem mansisse.
He answered that the prosecution of the lawsuit nevertheless remained against the heir even after the inheritance had been restored.
§36.1.80.16Heres eius, qui post mortem suam rogatus erat uniuersam hereditatem restituere, minimam quantitatem, quam solam in bonis fuisse dicebat, his quibus fideicommissum debebatur restituit: postea repertis instrumentis apparuit quadruplo amplius hereditate fuisse: quaesitum est, an in reliquum fideicommissi nomine conueniri possit.
The heir of one who had been requested to restore the entire inheritance after his death restored a very small amount, which alone he claimed was in the estate, to those to whom the trust was due. Afterwards, upon the discovery of documents, it appeared that the inheritance was more than four times greater. The question was asked whether he could be sued for the remainder under the trust.
respondit secundum ea quae proponerentur, si non transactum esset, posse.
He answered that, according to the facts proposed, if no settlement had been made, he could be.