[CALLISTRATUS libro primo quaestionum. ] §48.10.15.prDiuus Claudius edicto praecepit adiciendum legi Corneliae, ut, si quis, cum alterius testamentum uel codicillos scriberet, legatum sibi sua manu scripserit, proinde teneatur ac si commisisset in legem Corneliam, et ne uel is uenia detur, qui se ignorasse edicti seueritatem praetendant.
[CALLISTRATUS, Questions, Book I] The divine Claudius by an edict ordered that there be added to the Cornelian law a provision that if anyone, while writing another's will or codicil, has written a legacy to himself with his own hand, he shall be held just as if he had violated the Cornelian law, and that no pardon shall be given even to those who pretend that they did not know the severity of the edict.
scribere autem sibi legatum uideri non solum eum qui manu sua id facit, sed etiam qui per seruum suum uel filium, quem in potestatem habet, dictante testatore legato honoratur.
Moreover, not only he who does this with his own hand is deemed to write a legacy to himself, but also he who, by the dictation of the testator, is honored with a legacy through his slave or son whom he has under his power.
§48.10.15.1Plane constitutionibus principalibus cauetur, ut, si testator specialiter subscriptione sua declarauerit dictasse seruo alicuius, ut domino eius legatum ab heredibus suis daretur, id ualere, nec generalem subscriptionem testatoris ualere aduersus senatus consulti auctoritatem et ideo legatum pro non scripto habendum et seruo, qui etiam sibi legatum adscripsit, ueniam dari.
To be sure, it is provided by imperial constitutions that if a testator has specifically declared in his subscription that he dictated to someone's slave so that a legacy should be given to the slave's master by his heirs, this is valid; and that a general subscription of the testator is not valid against the authority of the senate decree, and therefore the legacy is to be held as unwritten, and pardon is given to the slave who also wrote in a legacy for himself.
ego tutius esse puto ueniam petendam ab imperatore, scilicet eo quod relictum est abstinentibus.
I think it is safer that pardon should be petitioned from the emperor, namely, by those who abstain from what was left.
§48.10.15.2Item senatus censuit, ut, si seruus domini sui iussu testamento codicillisue libertatem sibi adscripserit, ob eam rem, quod ipsius manu adscriptum est, minus liber sit: sed libertas ei ex fideicommissi causa praestatur: si modo post eam scripturam manu sua testator testamento codicillisue subscripserit.
Likewise, the senate decreed that if a slave, by order of his master, wrote in freedom for himself in a will or codicil, he is less free on that account, because it was written by his own hand; but freedom is granted to him on the ground of a trust, provided, however, that after that writing the testator subscribed the will or codicil with his own hand.
§48.10.15.3Et quatenus de sola specie fideicommissae libertatis hoc senatus consulto continebatur, diuus Pius rescripsit sententiam magis sequendam esse huius senatus consulti quam scripturam: nam seruos, cum dominis suis parent, necessitate potestatis excusari, si tamen accedat domini auctoritas subscribentis se ea dictasse et recognouisse: uideri enim ait ipsius domini manu scripta, cuius uoluntate ea scripta sunt.
And since only the single case of trust-bequeathed freedom was contained in this senate decree, the divine Pius replied by rescript that the spirit of this senate decree should be followed rather than its wording; for slaves, when they obey their masters, are excused by the necessity of power, provided, however, that there is added the authority of the master subscribing that he dictated and acknowledged it; for he says that they are deemed to have been written by the hand of the master himself, by whose will they were written.
'Quod tamen', inquit, 'ad liberas personas, in quas nullum ius testator habuerit, extendi non debet: quaeri tamen debet, an aeque subsequendi necessitas et honesta excusatio est non facientibus, quod non sit concessum'. §48.10.15.4Matri quoque, cui per seruum suum dictante filio legatum scriptum esset, ueniam tribuendam legis Corneliae placuit.
"This, however," he says, "should not be extended to free persons over whom the testator had no right; yet it must be asked whether those who do not do what is not permitted have an equal necessity of following and a honorable excuse." It was also decided that pardon under the Cornelian law should be granted to a mother for whom, by the dictation of her son, a legacy had been written through her own slave.
§48.10.15.5Idem in filiam, quae dictante matre sua per ignorantiam iuris legatum sibi scripserat, senatus censuit.
The senate decreed the same in the case of a daughter who, by her mother's dictation and through ignorance of the law, had written a legacy to herself.
§48.10.15.6Si quis duobus heredibus institutis adiecerit, ut, si alteruter heres sine liberis decessisset, ei qui superesset et liberos haberet hereditas redderetur uel, si uterque sine liberis decessisset, hereditas (deinde alia manu) scriptori testamenti restituetur: placet testamentario poenam legis Corneliae remitti.
If someone, having appointed two heirs, added that if either of the heirs should die without children, the inheritance should be restored to the survivor who has children, or if both should die without children, the inheritance should be restored (thereupon written in another hand) to the writer of the will: it is decided that the penalty of the Cornelian law is remitted for the writer of the will.
sed benignius est, ut etiam ea, quae supra scripta sunt, simili modo consequatur.
But it is more favorable that he should also acquire what was written above in a similar manner.