[IDEM libro uicensimo primo digestorum. ] §36.1.80.prTitius intestato moriturus, cum haberet uxorem et ex ea filiam emancipatam, codicillis haec uerba inseruit: 'pertinent autem hi codicilli ad uxorem et filiam.
[THE SAME, Digest, Book 21] Titius, who was about to die intestate, since he had a wife and an emancipated daughter by her, inserted these words in codicils: "Moreover, these codicils pertain to my wife and daughter.
itaque rogo, quidquid aut ego reliquero aut uos ipsae habeatis, commune uobis sit: quod si non ego rogarem, uos pro uestra pietate faceretis'.
Therefore, I request that whatever I leave, or you yourselves have, shall be common to you; and even if I did not request this, you would do it out of your affection." The daughter accepted the possession of the goods of her intestate father.
filia intestati patris bonorum possessionem accepit: quaesitum est, an aliqua pars hereditatis Lucii Titii ex causa fideicommissi a filia matri debeatur.
The question was asked whether any part of the inheritance of Lucius Titius was owed by the daughter to the mother by virtue of a trust.
respondit secundum ea quae proponerentur dimidiam partem deberi, si etiam uxor parata sit in commune bona sua conferre.
He answered that, according to the facts proposed, a half share was owed, provided that the wife is also prepared to bring her own goods into the common stock.
§36.1.80.1Maeuia duos filios heredes (Scaeu. ) reliquerat et eodem testamento ita cauit: 'fidei autem heredum meorum committo, uti omnis substantia mea sit pro deposito sine usuris apud Gaium Seium et Lucium Titium, quos etiam, si licuisset, curatores substantiae meae dedissem remotis aliis, ut hi restituant nepotibus meis, prout quis eorum ad annos uiginti quinque peruenerit, pro portione, uel si unus, ei omnem'. quaesitum est, an fideicommissum praestari a scriptis heredibus Lucio Titio et Gaio Seio debeat.
Maevia had left two sons as heirs and in the same testament provided as follows: "And I commit to the faith of my heirs that all my estate shall be as a deposit without interest with Gaius Seius and Lucius Titius, whom also, if it had been permitted, I would have appointed as curators of my estate, excluding others, so that they may restore it to my grandchildren, according as each of them reaches twenty-five years of age, in proportion, or if only one, all of it to him." The question was asked whether the trust ought to be performed by the appointed heirs to Lucius Titius and Gaius Seius.
respondit secundum ea quae proponerentur Lucium Titium, item Gaium Seium fideicommissum petere non posse.
He answered that, according to the facts proposed, Lucius Titius and Gaius Seius likewise could not claim the trust.
§36.1.80.2Tres heredes scripsit Maeuium fratrem suum ex dodrante, Seium ex sextante, Stichum eiusdem Seii seruum, filium autem naturalem Maeuii ex uncia et fidei commisit Seii, uti Stichum manumitteret, in haec uerba: 'a te peto, Sei, uti tu Stichum manumitteres: dedi unde faceres'. sed et codicillis ita cauit: 'unciam, ex qua feci Stichum heredem, si quam Seius controuersiam moueret, ad Maeuium fratrem meum reuerti uolo.
She appointed three heirs: her brother Maevius for nine-twelfths, Seius for two-twelfths, and Stichus, the slave of the same Seius and natural son of Maevius, for one-twelfth; and she committed to the faith of Seius to manumit Stichus, in these words: "I ask of you, Seius, that you manumit Stichus: I have given you the means wherewith to do so." But she also provided in codicils as follows: "The one-twelfth share, from which I made Stichus heir, if Seius should raise any controversy, I wish to revert to my brother Maevius.
tu, frater, secundum fidem et pietatem tuam, quidquid ad te peruenerit ex hereditate mea Sticho filio tuo restitues: quod ut facias, fidei tuae committo'. quaesitum est, cum Seius adierit hereditatem et propter hoc compulsus Stichum manumiserit, an unciam hereditatis, ex qua Stichus heres institutus est, Sticho manumisso restituere debeat.
You, my brother, according to your faith and affection, shall restore whatever comes to you from my inheritance to your son Stichus; and that you do this, I commit to your faith." The question was asked, since Seius entered upon the inheritance and was compelled thereby to manumit Stichus, whether he ought to restore the one-twelfth share of the inheritance, from which Stichus was appointed heir, to the manumitted Stichus.
respondit non proponi Seium rogatum unciam ei restituere.
He answered that it was not proposed that Seius had been requested to restore the one-twelfth share to him.
§36.1.80.3Idem quaesiit, an, si aliquam controuersiam Seius de uncia hac, ex qua Stichus institutus est, facere uelit et Maeuius unciam ex causa fideicommissi a Seio fuerit consecutus, utrum hanc solam unciam, ex qua Stichus institutus est, an uero et dodrantem, ex quo ipse Maeuius institutus est, eidem Sticho restituere debeat.
The same person asked whether, if Seius wished to raise some controversy concerning this one-twelfth share from which Stichus was appointed, and Maevius obtained the one-twelfth from Seius by virtue of the trust, he ought to restore to the same Stichus only this one-twelfth from which Stichus was appointed, or also the nine-twelfths from which Maevius himself was appointed.
respondit de omni restituendo, quod ad Maeuium quoquo modo peruenit, testatricem sensisse.
He answered that the testatrix intended that everything which came to Maevius in any manner should be restored.
§36.1.80.4Pater puerum et puellam heredes instituit eosque inuicem substituit et, si neuter heres esset, cis plures substituit substitutosque inuicem substituit his uerbis: 'substitutos heredes inuicem substituo': eorundem filiorum fidei commisit, ut, qui eorum uita superasset et sine liberis intra annum trigensimum moreretur, hereditatem his, quos heredes substituerat, restituat.
A father appointed a boy and a girl as heirs and substituted them reciprocally; and, if neither should be heir, he substituted several persons for them, and substituted those substitutes reciprocally in these words: "I substitute the substituted heirs reciprocally." He committed to the faith of the same children that, whichever of them survived and died without children within his or her thirtieth year, should restore the inheritance to those whom he had substituted as heirs.
filius uita sororem superauit et intra trigensimum annum sine liberis decessit: quaesitum est, ex substitutis uno defuncto ante filium, pars eius, quae ad ceteros substitutos qui superuiuerent pertinet, utrum pro uirilibus an pro hereditariis portionibus, quibus sunt substituti, pertineat.
The son survived the sister and died without children within his thirtieth year. The question was asked, one of the substitutes having died before the son, whether the share of that substitute, which pertained to the other surviving substitutes, pertained to them in equal shares or in proportion to the hereditary shares in which they were substituted.
respondit consequens esse pro his partibus, quibus substituti essent, fideicommissum pertinere.
He answered that it was consistent that the trust pertained in proportion to those shares in which they had been substituted.
§36.1.80.5Maeuia filium heredem instituit ex quincunce, Titian filiam ex quadrante, Septicium filium ex triente, cuius fidei commisit in haec uerba: 'te rogo, fili Septici, si intra uicensimum annum sine liberis morieris, quidquid ex hereditate mea ad te peruenerit, hoc fratribus tuis restituas'. quaesitum est, an Septicio filio defuncto intra uicensimum annum sine liberis hoc fideicommissum utrum pro portionibus hereditariis ad fratrem et sororem eius pertineat an uero aequaliter.
Maevia appointed her son as heir for five-twelfths, her daughter Titia for three-twelfths, and her son Septicius for four-twelfths, to whose faith she committed in these words: "I request you, my son Septicius, if you die without children within your twentieth year, to restore whatever comes to you from my inheritance to your brothers and sisters." The question was asked, upon the death of the son Septicius without children within his twentieth year, whether this trust pertained to his brother and sister in proportion to their hereditary shares, or indeed equally.
respondit pro parte hereditaria.
He answered: in proportion to the hereditary shares.