[PAULUS libro uicensimo primo quaestionum. ] §49.14.40.prIta fidei heredis commisit: 'rogo fundum 'Titio des, de quo te rogaui'. si Titius capere non possit, non euitabit heres poenam taciti fideicommissi: non enim est palam relinquere, quod ex testamento sciri non potest, cum recitatum est.
[PAULUS, Questions, Book XXI.] He entrusted to the good faith of his heir as follows: "I ask that you give to Titius the estate concerning which I have asked you." If Titius cannot take it, the heir will not avoid the penalty for a tacit trust; for it is not leaving openly when what is left cannot be known from the will when it is read aloud.
quemadmodum nec ille palam dat, qui ita scribit: 'rogo uos, heredes, in eo, quod a uobis peti, fidem praestetis'. immo in priore specie maiorem fraudem excogitasse uidetur, qui non tantum legem circumuenire uoluit, sed etiam interpretationem legis, quae circa tacitum fideicommissum habetur: quamuis enim fundum nominauerit, non tamen cognosci potest, de quo sit rogatus heres, cum diuersitas rerum obscurum faciat legatum.
Just as he does not give openly who writes as follows: "I ask you, heirs, to discharge your faith in that which I have requested of you." Indeed, in the former case, he seems to have devised a greater fraud, who wished not only to circumvent the law but also the interpretation of the law which is held concerning tacit trusts; for although he named an estate, it cannot, however, be known which estate the heir was asked about, since the diversity of things makes the legacy obscure.
§49.14.40.1Patronus si tacite in fidem suam recipiat, ut ex portione sua praestet, cessare fraudem dicitur, quia de suo largitur.
If a patron tacitly takes it upon his good faith to perform this from his own share, it is said that fraud is absent, because he makes a gift from his own property.