[PAULUS libro uicensimo secundo quaestionum. ] §48.10.14.prFilius emancipatus cum scriberet patris testamentum, iussu patris seruo communi Titii et suo legatum adscripsit: quaero quis exitus quaestionis sit.
[PAULUS, Questions, Book XXII] When an emancipated son was writing his father's will, by his father's order he wrote in a legacy to a slave owned in common by Titius and himself: I ask what is the outcome of this question.
respondit: plures quaestiones coniunxisti.
He answered: You have combined several questions.
et quidem quantum ad senatus consultum, quo prohibemur nobis uel his, quos in potestate habemus, adscribere legatum, emancipatus quoque filius eadem poena tenebitur, licet iussu patris scripserit: excusatus enim is uidetur qui in potestate est sic ut seruus, si tamen iussum ex subscriptione testatoris appareat: sic enim inueni senatum censuisse.
Indeed, as far as the senate decree is concerned, by which we are forbidden to write in a legacy for ourselves or for those whom we have under our power, even an emancipated son will be held under the same penalty, although he wrote by his father's order. For only he who is under power like a slave is deemed excused, provided, however, that the order appears from the subscription of the testator: for I have found that the senate so decreed.
§48.10.14.1Sequens quaestio est, an, quoniam placet id quod illicite scriptum est pro non scripto esse, quod seruo communi scribentis et alterius adscriptum est, utrum in totum pro non scripto sit an quantum ad eum tantum qui adscripsit, ceterum socio totum debeatur.
The next question is whether, since it is accepted that what is unlawfully written is treated as unwritten, that which was written in for a slave owned in common by the writer and another is treated as unwritten in its entirety, or only as far as concerns the one who wrote it in, while the whole is due to the co-owner.
et inueni Marcellum apud Iulianum adnotasse.
And I found that Marcellus noted in Julian.
nam cum Iulianus scripsisset, si sibi et Titio scripsisset aut seruo communi, cum pro non scripto sit, facillime quaeri posse, quantum Titio et socio adquiratur ita: adicit iste Marcellus: quemadmodum socio debebitur, si quasi falsum nomen serui subducitur? quod et in praesenti quaestione obseruandum est.
For when Julian had written that if someone had written a legacy to himself and Titius, or to a common slave, since it is treated as unwritten, it can very easily be asked how much is acquired for Titius and the co-owner; the famous Marcellus adds: "How will it be due to the co-owner, if the name of the slave is removed as if it were false?" This must also be observed in the present question.
§48.10.14.2Maritus seruum dotalem manumisit et in testamento eius legatum sibi adscripsit.
A husband manumitted a dotal slave and in his [the freedman's] will wrote in a legacy to himself.
quaesitum est, quid mulier ex lege Iulia consequi possit.
The question was asked, what the wife can obtain under the Julian law.
respondi: et patronum incidere in poenam edicti diui Claudii dicendum est et filium emancipatum, licet praeteriti possint petere possessionem bonorum.
I answered: It must be said that both the patron falls under the penalty of the edict of the divine Claudius and the emancipated son, even though those who have been passed over can petition for possession of the goods.
ergo si nihil habet patronus ex bonis liberti, non tenebitur mulieri.
Therefore, if the patron has nothing from the goods of the freedman, he will not be liable to the wife.
an ideo teneri potest, quod adiectum est in lege 'aut dolo fecit, quo minus ad eum perueniat'? sed nihil fecit in fraudem mulieris: non enim aduersus illam hoc excogitauit.
Or can he be held liable because it is added in the law: "or did so with malice, so that it should not come to her"? But he did nothing to defraud the wife; for he did not devise this against her.
an ideo non denegamus huic actiones, quoniam alii restituturus est? adquin cum is, qui sibi iussu testatoris legatum adscripsit, etiam si fidei suae, similiter iubente testatore, commisisset, ut id alii restitueret, senatus iussit eum nihilo minus legato abstinere idque apud heredem remanere cum onere fideicommissi.
Or do we not deny actions to this man because he is going to restore it to another? But indeed, when someone who, by order of the testator, wrote in a legacy to himself, even if he had been entrusted to his good faith, likewise by the testator's command, to restore it to another, the senate ordered that he nevertheless abstain from the legacy and that it remain with the heir along with the burden of the trust.