[IDEM libro secundo decretorum. ] §49.14.48.prStatius Florus testamento scripto heredis sui Pompeii tacitae fidei commiserat, ut non capienti fundum et certam pecuniae quantitatem daret, et eo nomine cautionem a Pompeio exigi curauerat se restituturum ea, quae ei per praeceptionem dederat.
[THE SAME, Book II of the Decrees.] Statius Florus, in a written testament, had committed to the silent good faith of his heir Pompeius that he should give a tract of land and a certain quantity of money to a person who was incapable of taking; and under this head he had taken care that a security be demanded from Pompeius that he would restore those things which he had given to him by pre-legacy.
postea idem Florus facto secundo testamento et eodem Pompeio et Faustino heredibus institutis nullas praeceptiones Pompeio dederat.
Afterwards, the same Florus, having made a second testament and appointed the same Pompeius and Faustinus as his heirs, had given no pre-legacies to Pompeius.
haec persona, quae capere non poterat, se detulerat.
This person, who was incapable of taking, reported himself.
consulti imperatores a procuratoribus rescripserant, si non probaretur mutatam uoluntatem esse, praestandum fideicommissum: atque ita Pompeius condemnatus desiderabat onus esse id hereditatis oportere, quia praeceptiones non acceperat, nec posse uideri pro parte in prima uoluntate testatorem perseuerasse, sed in uniuerso.
The emperors, having been consulted by the procurators, replied by rescript that, unless it were proved that the intention had been changed, the trust must be performed. And so Pompeius, having been condemned, claimed that this ought to be a burden on the inheritance, because he had not received the pre-legacies, and that it could not seem that the testator had persevered in his first intention in part, but as a whole.
pronuntiauit nec testamentum prius exstare nec, si dedisset in primo testamento, ex posteriore peti potuisse, nisi petitum esset.
The Emperor pronounced that neither did the prior testament exist, nor, if he had given pre-legacies in the first testament, could they have been claimed under the later one, unless they had been requested.
placuit, quia non probabat sibi datas praeceptiones ex sola sua cautione, solum fideicommissum praestare debere.
It was held that, because he did not prove that the pre-legacies had been given to him solely on the basis of his own security, he alone ought to perform the trust.
§49.14.48.1Cornelio Felici mater scripta heres rogata erat restituere hereditatem post mortem suam.
Cornelius Felix’s mother, who had been appointed heir, was requested to restore the inheritance to him after her death.
cum heres scripta condemnata esset a fisco et omnia bona mulieris occuparentur, dicebat Felix se ante poenam esse (hoc enim constitutum est).
When the appointed heir had been condemned by the treasury and all the woman’s property was being seized, Felix said that he took precedence over the penalty (for this has been established).
sed si nondum dies fideicommissi uenisset, quia posset prius ipse mori uel etiam mater alias res adquirere, repulsus est interim a petitione.
But if the day for the performance of the trust had not yet come, because he himself might die first, or even the mother might acquire other property, he was in the meantime rejected from his petition.