[ULPIANUS libro quinto decimo ad edictum. ] §5.3.25.12Si quis re sua lautius usus sit contemplatione delatae sibi hereditatis, Marcellus libro quinto digestorum putat nihil eum ex hereditate deducturum, si eam non attigit.
If anyone, in expectation of the inheritance deferred to him, has used his own property more luxuriously, Marcellus in the fifth book of the Digests thinks that he will deduct nothing from the inheritance, if he did not touch it.
§5.3.25.13Simili modo et si mutuam pecuniam accepit, quasi diues se deceperit.
In a similar way, also if he has taken a loan, he has deceived himself as if he were rich.
§5.3.25.14Si tamen pignori res hereditarias dedit, uidendum, an uel sic attingatur hereditas: quod est difficile, cum ipse sit obligatus.
If, however, he has given hereditary things in pledge, it must be seen whether the inheritance is touched even in this way; which is difficult, since he himself is obligated.
§5.3.25.15Adeo autem qui locupletior factus non est non tenetur, ut si quis putans se ex asse heredem partem dimidiam hereditatis sine dolo malo consumpserit, Marcellus libro quarto digestorum tractat, num non teneatur, quasi id quod erogauerit ex eo fuerit, quod ad eum non pertinebat, sed ad coheredes: nam et si is qui heres non erat totum, quidquid apud se fuit, consumpsisset, sine dubio non tenetur, quasi locupletior non factus.
Moreover, he who has not been made richer is so far from being held liable that, if anyone, thinking himself sole heir, has without fraud consumed half of the inheritance, Marcellus in the fourth book of the Digests discusses whether he might not be held liable, as if what he expended was from that which did not belong to him, but to his co-heirs. For indeed, if he who was not heir had consumed all that was with him, without doubt he is not held liable, as not having been made richer.
sed in proposita quaestione tribus uisionibus relatis, una prima: deinde alia posse dici totum quod superest restituere eum debere, quasi suam partem consumpserit: tertia utrique quod consumptum est decedere: ait utique nonnihil restituendum, de illo dubitat, utrum totum an partem restituendam dicat: puto tamen residuum integrum non esse restituendum, sed partem eius dimidiam.
But in the proposed question, three views having been reported: first [that he is not liable]; next, another that it can be said that he ought to restore all that remains, as if he had consumed his own share; a third, that what was consumed is deducted from both. He says that at all events something must be restored, but he doubts about that, whether he should say the whole or a part is to be restored. Yet I think that the remaining whole is not to be restored, but a half part of it.
§5.3.25.16quod autem quis ex hereditate erogauit, utrum totum decedat an uero pro rata patrimonii eius? ut puta penum hereditarium ebibit: utrum totum hereditati expensum feratur an aliquid et patrimonio eius? ut in id factus locupletior uideatur, quod solebat ipse erogare ante delatam hereditatem: ut si quid lautius contemplatione hereditatis impendit, in hoc non uideatur factus locupletior, in statutis uero suis sumptibus uideatur factus locupletior: utique enim etsi non tam laute erogasset, aliquid tamen ad uictum cottidianum erogasset.
But as to what someone has expended from the inheritance, does it all deduct from the inheritance, or indeed in proportion to his patrimony? For instance, he drank up the hereditary provisions: is it all to be charged to the inheritance, or also something to his own patrimony? So that he may be deemed to have been made richer in that which he was accustomed to expend before the inheritance was deferred. Thus, if he spent anything more luxuriously in expectation of the inheritance, in this he is not deemed to have been made richer, but in his regular expenses he is deemed to have been made richer; for surely, even if he had not spent so luxuriously, he would still have spent something for his daily sustenance.
nam et diuus Marcus in causa Pythodori, qui rogatus erat quod sibi superfuisset ex hereditate reddere, decreuit ea, quae alienata erant non minuendi fideicommissi nec pretium in corpus patrimonii Pythodori redisse, et ex proprio Pythodori patrimonio et ex hereditate decedere, non tantum ex hereditate.
For indeed, the deified Marcus, in the case of Pythodorus, who was asked to restore what remained to him from the inheritance, decreed that those things which had been alienated without the intention of diminishing the trust, and whose price had not gone into Pythodorus's own patrimony, should deduct both from Pythodorus's own patrimony and from the inheritance, not only from the inheritance.
et nunc igitur statuti sumptus utrum ex hereditate decedent exemplo rescripti diui Marci an ex solo patrimonio, uidendum erit: et uerius est, ut ex suo patrimonio decedant ea quae et si non heres fuisset erogasset.
And now, therefore, it must be seen whether the regular expenses will deduct from the inheritance following the example of the rescript of the deified Marcus, or from the patrimony alone; and it is more correct that those things which he would have expended even if he had not been the heir should deduct from his own patrimony.
§5.3.25.17Item si rem distraxit bonae fidei possessor nec pretio factus sit locupletior, an singulas res, si nondum usucaptae sint, uindicare petitor ab emptore possit? et si uindicet, an exceptione non repellatur 'quod praeiudicium hereditati non fiat inter actorem et eum qui uenum dedit', quia non uidetur uenire in petitionem hereditatis pretium earum, quamquam uicti emptores reuersuri sunt ad eum qui distraxit? et puto posse res uindicari, nisi emptores regressum ad bonae fidei possessorem habent.
Likewise, if a bona fide possessor has sold a thing and has not been made richer by the price, can the claimant recover the individual things from the buyer if they have not yet been acquired by usucapion? And if he recovers them, is he not repelled by the exception 'that a prejudicial decision concerning the inheritance should not be made between the plaintiff and the seller,' because the price of those things does not seem to come into the petition for inheritance, even though the defeated buyers are going to recur against the seller? And I think that the things can be recovered, unless the buyers have recourse against the bona fide possessor.
quid tamen si is qui uendidit paratus sit ita defendere hereditatem, ut perinde atque si possideret conueniatur? incipit exceptio locum habere ex persona emptorum.
But what if he who sold is prepared to defend the inheritance in such a way that he is sued just as if he possessed? The exception begins to take place on the part of the buyers.
certe si minori pretio res uenierint et pretium quodcumque illud actor sit consecutus, multo magis poterit dici exceptione eum summoueri.
Certainly, if the things were sold at a lower price and the claimant has obtained whatever price that was, much more can it be said that he is barred by the exception.
nam et si id quod a debitoribus exegit possessor petitori hereditatis soluit, liberari debitores Iulianus libro quarto digestorum scribit, siue bonae fidei possessor siue praedo fuit qui debitum ab his exegerat, et ipso iure eos liberari.
For indeed, if the possessor has paid what he collected from the debtors to the claimant of the inheritance, Julian writes in the fourth book of the Digests that the debtors are released, whether it was a bona fide possessor or a plunderer who had collected the debt from them, and they are released by operation of law.
§5.3.25.18Petitio hereditatis, etsi in rem actio sit, habet tamen praestationes quasdam personales, ut puta eorum quae a debitoribus sunt exacta, item pretiorum.
The petition for inheritance, although it is an action in rem, nevertheless has certain personal performances, such as of those things which were collected from debtors, and likewise of prices.
§5.3.25.19Hoc senatus consultum ad petitionem hereditatis factum etiam in familiae herciscundae iudicio locum habere placet, ne res absurda sit, ut quae peti possint diuidi non possint.
It is agreed that this senatus consultum made concerning the petition for inheritance also has a place in the action for partition of an inheritance, lest it be absurd that things which can be claimed cannot be divided.
§5.3.25.20Augent hereditatem gregum et pecorum partus.
The offspring of herds and flocks increase the inheritance.