[TRYPHONINUS libro octauo decimo disputationum. ] §49.17.19.prDe hereditate ab adgnato commilitone data Scaeuola noster dubitabat, quia potuit et ante notus et amicus dare, potuit et non dare, nisi commilitium caritatem auxisset.
[TRYPHONINUS in his eighteenth book of Disputations.] Our friend Scaevola was in doubt concerning an inheritance given by a fellow-soldier who was an agnate, because he could have given it even as a previously known person and friend, and could also not have given it, unless fellow-service had increased his affection.
nobis ita uidetur, si ante commilitium factum sit testamentum, non esse peculii castrensis eam hereditatem, si postea, contra.
To us it seems that if the testament was made before the fellow-service, that inheritance does not belong to the castrense peculium, but if afterwards, the contrary.
§49.17.19.1Sed si seruus peculii castrensis a quocumque sit heres scriptus, iussu militis adire debebit hereditatem eaque fiet bonorum castrensis peculii.
But if a slave of the castrense peculium has been appointed heir by anyone, he must enter upon the inheritance by order of the soldier, and it will become part of the property of the castrense peculium.
§49.17.19.2Filius familias paganus de peculio castrensi fecit testamentum et, dum ignorat patri se suum heredem extitisse, decessit.
A son-of-a-family who became a civilian made a testament concerning his castrense peculium, and died while ignorant that he had become his father's self-successor.
non potest uideri pro castrensibus bonis testatus, pro paternis intestatus decessisse, quamuis id in milite etiamnunc rescriptum sit, quia miles ab initio pro parte testatus, pro parte intestatus potuerat mori, quod ius iste non habuerit, non magis quam sine obseruatione legum facere testamentum.
He cannot be regarded as having died testate as to his military property and intestate as to his paternal property, although this is indeed allowed by rescript in the case of a soldier, because a soldier could from the beginning die testate for a part and intestate for a part, a right which this man did not have, any more than he had the right to make a testament without observing the laws.
necessario ergo castrensis peculii heres scriptus uniuersa bona habebit, perinde ac si pauperrimus facto testamento decessisset ignorans se locupletatum per seruos alio loco agentes.
Therefore, of necessity, the heir appointed to the castrense peculium will have the entire property, just as if a very poor man, having made a testament, had died ignorant that he had been enriched through slaves acting in another place.
§49.17.19.3Pater peculii castrensis filii seruum testamento liberum esse iussit: intestato defuncto filio familias, mox patre quaeritur, an libertas seruo competat.
A father ordered by testament that a slave of his son's castrense peculium should be free. The son-of-a-family having died intestate, and soon after the father, it is asked whether freedom belongs to the slave.
occurrebat enim non posse dominium apud duos pro solido fuisse: denique filium posse manumittere talis peculii seruum Hadrianus constituit: et si testamento tam filii quam patris idem seruus accepisset libertatem et utrique pariter decessissent, non dubitaretur ex testamento filii liberum eum esse.
For it occurred to the mind that a complete ownership could not have resided in two persons; and indeed Hadrian ruled that the son can manumit a slave of such peculium. And if the same slave had received freedom by the testament of both the son and the father, and both had died at the same time, there would be no doubt that he was free under the testament of the son.
sed in superiore casu pro libertate a patre data illa dici possunt, numquid, quoad utatur iure concesso filius in castrensi peculio, eousque ius patris cessauerit, quod si intestatus decesserit filius, postliminii cuiusdam similitudine pater antiquo iure habeat peculium retroque uideatur habuisse rerum dominia.
But in the former case, to support the freedom given by the father, the following things can be said: whether, as long as the son uses the right granted to him in the castrense peculium, so far the right of the father was suspended; but if the son dies intestate, the father, by a sort of resemblance to postliminium, holds the peculium by his ancient right, and is deemed retroactively to have had the ownership of the property.
§49.17.19.4Non tamen ut heres uiuo filio uindictam seruo imposuit, dicatur eum post mortem intestati filii ex illa manumissione liberum factum esse.
However, it cannot be said that if, while the son was living, the father laid the rod upon the slave as if he were the owner, the slave became free from that manumission after the death of the intestate son.
§49.17.19.5Quid autem, si testamentum fecerit filius et non sit eius adita hereditas? non tam facile est dicere continuatum patri post mortem filii rerum peculii dominium, cum medium tempus, quo deliberant instituti heredes, imaginem successionis praestiterit.
But what if the son made a testament and his inheritance was not entered upon? It is not so easy to say that the ownership of the peculium property was continued to the father after the death of the son, since the intervening time, during which the appointed heirs are deliberating, presents an image of succession.
alioquin et si adita sit ab instituto hereditas filii, dicetur a patre ad eum transisse proprietatem, quod absurdum est.
Otherwise, even if the inheritance of the son is entered upon by the appointed heir, the ownership would be said to have passed from the father to him, which is absurd.
si in pendenti, ut in aliis, et in hac specie habeamus dominia, ut ex facto retro fuisse aut non fuisse patris credamus? secundum quod difficile erit expedire, si, dum deliberant heredes, dies cesserit legati seruo dati istius peculii testamento eius, ex quo pater nihil capere potuisset, an id ad ipsum pertineat, cum utique ad heredem filii pertineret.
Or should we hold the ownership in suspense in this case, as in others, so that we believe it to have belonged or not to have belonged to the father retroactively from the event? According to which it will be difficult to settle if, while the heirs are deliberating, the right to a legacy given to a slave of that peculium by the testament of someone from whom the father could have taken nothing has vested, whether it belongs to him, since it would certainly belong to the heir of the son.
facilior tamen de libertate serui deliberatio est in specie, in qua intestatus filius decessisse proponitur.
Yet the deliberation concerning the freedom of the slave is easier in the case where the son is supposed to have died intestate.
non est ergo ratio respondendi competere libertatem eo tempore datam, quo non fuit in dominio patris? fauorabilem tamen sententiam contrariam in utroque casu non negamus.
Is there therefore no reason for deciding that freedom given at a time when he was not in the ownership of the father should belong to him? Nevertheless, we do not deny the contrary favorable opinion in both cases.