[SCAEUOLA libro uicensimo quarto digestorum. ] §40.7.40.prSticho libertas data est: 'ab heredibus meis peto fideique eorum committo, ut rationibus redditis Stichum manumittant'. quaesitum est, cum ampla pecunia exacta post mortem testatoris sibi commissa reliquetur et quasdam summas a colonis exactis rationibus non intulerit hereditatemque spoliauerit apertis clam horreis sublatisque supellectili et ueste et apothecis exhaustis: an non prius ei fideicommissa libertas debeatur, quam ea, quae mala ratione reliquatus est quae furatus est, reposuerit.
[SCAEUOLA, from the twenty-fourth book of the Digests.] Freedom was given to Stichus: "I ask of my heirs and commit to their trust that they manumit Stichus after he has rendered his accounts." A question was asked: when a large sum of money collected after the testator's death was left in his charge, and he did not enter into the accounts certain sums collected from the tenants, and plundered the inheritance by secretly opening the storehouses and carrying off the furniture and clothing, and exhausting the wine-cellars—whether the trust-freedom is not owed to him before he has paid back what he has kept back by bad accounting and what he has stolen.
respondit non prius ei fideicommissam libertatem praestandam, quam et reliqua et omnia, quae per eum abessent, restituisset.
He replied that the trust-freedom should not be granted to him before he had restored both the remaining balance and everything that was missing through his fault.
'Pamphilus liber esto peculio suo heredibus uere dato'. quaesitum est, cum plus domino debeat quam in peculio habeat et omnes res, quas in peculio habebat, bona fide heredibus dederat, an libertas ex testamento competat.
"Let Pamphilus be free, provided his peculium is truly given to the heirs." A question was asked: since he owed his master more than he had in his peculium, and he had given all the things he had in his peculium in good faith to the heirs, whether freedom under the will is competent.
respondit nihil proponi, cur non competeret.
He replied that nothing is put forward as to why it should not be competent.
§40.7.40.1Pamphilo liberto, quem heredem ex parte instituerat, Stichum seruum praelegauerat et ei libertatem his uerbis dederat: 'ita ut, si tibi ex die mortis meae per annos continuos quinque menstruos sexagenos dederit, tunc eum manumittas'. §40.7.40.2Pamphilus ante quinquennium moriens heredibus institutis filio et uxore de eodem Sticho ita cauit: 'Stichus seruus, qui mihi testamento patroni mei certa condicione relictus est, iubeo det praestet filio et uxori meae sine ulla controuersia et eum tempore peracto manumittant'. quaesitum est, si Stichus sexagenos nummos menstruos non praestiterit, an impleto quinquennio fideicommissa libertas ei debeatur.
He had pre-bequeathed the slave Stichus to the freedman Pamphilus, whom he had appointed heir to a part, and had given him freedom in these words: "on the condition that, if he gives you sixty sesterces monthly for five continuous years from the day of my death, then you shall manumit him." Pamphilus, dying before the five years had passed, having appointed his son and wife as heirs, made the following provision concerning the same Stichus: "I order that the slave Stichus, who was left to me under a certain condition by the will of my patron, give and perform to my son and wife without any dispute, and they shall manumit him when the time has expired." A question was asked: if Stichus did not perform the sixty sesterces monthly, whether the trust-freedom is owed to him when the five years are completed.
respondit, nisi praestitisset, fideicommissam libertatem non deberi.
He replied that unless he had performed it, the trust-freedom was not owed.
§40.7.40.3Seruus testamento ita manumissus est: 'Stichus seruus meus actor si rationem omnem actus sui heredi meo reddiderit eoque nomine satisfecerit, liber esto eique, cum liber erit, dari uolo uiginti et peculium suum'. quaesitum est, an, si rationes, quas egit per multos annos sine subscriptione testatoris, heredi reddere paratus sit, liber ex testamento fiat, cum propter grauem ualetudinem testator non potuerit rationibus subscribere, testamento tamen subscripserit.
A slave was manumitted by will as follows: "If my manager, the slave Stichus, renders all accounts of his administration to my heir and gives satisfaction on that account, let him be free, and when he is free, I wish twenty sesterces and his peculium to be given to him." A question was asked: if he is ready to render to the heir the accounts which he managed for many years without the signature of the testator, whether he becomes free under the will, since due to severe illness the testator could not sign the accounts, although he did sign the will.
respondit, si ex fide ratio redderetur reliquaque inferantur, liberum fore.
He replied that if the account were rendered in good faith and the remaining balances were paid, he would be free.
§40.7.40.4Item quaero, an ea, quae exacta sunt per adiutores eius neque kalendario illata sunt aut fraudulenter acta, huic adscribi possint, cum esset praepositus.
I also ask whether those things which were collected by his assistants and not entered into the ledger, or were fraudulently managed, can be imputed to him since he was the overseer.
respondit, si id esset, quod culpae eius deberet imputari, spectare ad rationis reddendae necessitatem.
He replied that if it was something that ought to be imputed to his fault, it pertained to the necessity of rendering accounts.
§40.7.40.5Item quaero, an eorum quoque nomine ratio haberi debeat, quod neque a conductoribus praediorum neque a uilicis pensiones exegerit et insuper etiam promutuum eis dederit.
I also ask whether an account must also be taken on the ground that he did not collect rent from the tenants of the estates or from the bailiffs, and moreover even gave them loans.
respondit supra responsum est.
He replied: it has been answered above.
§40.7.40.6Item quaero, an eo nomine teneatur, quod omnem rem suam, id est peculium, exportauerit, antequam rationes redderet.
I also ask whether he is held liable on the ground that he exported his entire property, that is, his peculium, before he rendered the accounts.
respondit nihil eam rem impedire condicionem, si modo ratio redderetur.
He replied that this circumstance did not hinder the condition, provided only that the account was rendered.
§40.7.40.7Titius testamento seruos actores singulos diuersis personis legauit cum adiectione 'si rationes heredi reddiderint': deinde proprio capite ita scripsit: 'omnes actores, quos legaui uel manumisero, intra quartum mensem mortis meae rationes reddere uolo et dominis, quibus a me legati sint, reddi'. infra deinde alios actores liberos esse iussit aeque cum hac adiectione 'si rationes heredi reddiderint'. quaero, cum per heredem fiat, quo minus reddantur, utrum statuliberi esse desinant an nihilo minus quandoque possint reddita ratione et reliquis illatis libertatem ex testamento consequi.
Titius by will bequeathed individual manager-slaves to different persons with the addition "if they render accounts to the heir"; then in a specific clause he wrote as follows: "I wish all managers, whom I have bequeathed or shall have manumitted, to render accounts within the fourth month of my death, and to be delivered to the masters to whom they were bequeathed by me." Below this, he then ordered other managers to be free, likewise with this addition "if they render accounts to the heir." I ask: when it is due to the heir that they are not rendered, whether they cease to be conditionally free, or whether they can nevertheless obtain freedom under the will whenever the account has been rendered and the remaining balances paid.
respondit legata quidem et libertates non alias competere, quam rationes redditae essent aut per heredem staret, quo minus redderentur: uerum iudicaturo aestimandum, utrum tempus condicioni legatorum libertatiumque additum uideatur an, libero tempore reddere uolentibus reliqua, heredibus quattuor menses appositi sint, sollicito testatore cunctationi et moram eorum proscribente.
He replied that indeed the legacies and freedoms do not compete unless the accounts have been rendered or it was due to the heir that they were not rendered; but the one who is to judge must estimate whether the time seems to be added to the condition of the legacies and freedoms, or whether, for those wishing to render the remaining balances in an unrestricted time, the four months were set for the heirs, with the anxious testator proscribing their procrastination and delay.
melius autem est praesumptionem pro statuliberis esse.
It is better, however, for the presumption to be in favor of the conditionally free.
§40.7.40.8Argentarius coactor cum paene totam fortunam in nominibus haberet, seruis actoribus libertatem ita dedit: 'quisquis mihi heres erit, si Dama seruus meus actus sui, qui agitur nomine eius et Pamphili conserui sui, heredi meo rationes reddiderit pariaque fecerit a die mortis meae intra mensem sextum, liber esto'. quaesitum est, an haec uerba 'pariaque fecit' ad omnia nomina pertineant exceptis perditis, ut hoc significent 'si omnem pecuniam 'ab omnibus exegerint et heredi soluerint uel eo nomine satisfecerint' et, si in exactione nominum cessauerint intra sex menses, libertas illis non competat.
A banker-collector, since he had almost his entire fortune in outstanding claims, gave freedom to his manager-slaves as follows: "Whoever shall be my heir, if my slave Dama renders to my heir accounts of his administration, which is conducted in his name and that of his fellow slave Pamphilus, and balances accounts within the sixth month from the day of my death, let him be free." A question was asked: whether these words "and balances accounts" apply to all outstanding claims except for lost ones, so as to mean "if they collect all the money from everyone and pay it to the heir or give satisfaction on that account," and if they are negligent in collecting the claims within six months, freedom is not competent to them.
respondit manifestam esse condicionem uerbis testamenti supra scriptis positam: igitur ita demum liberos fore, si aut ei pareant aut per heredem stet, quo minus pareant.
He replied that the condition set by the words of the will written above is clear: therefore they will only be free if they either comply with it or if it is due to the heir that they do not comply.