[AFRICANUS libro quinto quaestionum. ] §7.1.36.prQui usum fructum areae legauerat, insulam ibi aedificauit: ea uiuo eo decidit uel deusta est: usum fructum deberi existimauit, contra autem non idem iuris esse, si insulae usu fructu legato area, deinde insula facta sit.
He who had bequeathed the usufruct of a vacant plot of land built an apartment building there; this building collapsed or was burned down while he was still alive. He thought that the usufruct was still owed, but on the other hand, that the same rule of law does not apply if, after the usufruct of an apartment building has been bequeathed, it becomes a vacant plot, and then an apartment building is built there again.
idemque esse, et si scyphorum usus fructus legatus sit, deinde massa facta et iterum scyphi: licet enim pristina qualitas scyphorum restituta sit, non tamen illos esse, quorum usus fructus legatus sit.
And the same is true if the usufruct of cups was bequeathed, then they were reduced to a mass of metal, and cups were made again; for although the former quality of the cups was restored, yet they are not those very cups whose usufruct was bequeathed.
§7.1.36.1Stipulatus sum de Titio fundum Cornelianum detracto usu fructu: Titius decessit: quaesitum est, quid mihi heredem eius praestare oportet.
I stipulated with Titius for the Cornelian estate, deducting the usufruct. Titius died; it was asked what his heir ought to perform for me.
respondit referre, qua mente usus fructus exceptus sit: nam si quidem hoc actum est, ut in cuiuslibet persona usus fructus constitueretur, solam proprietatem heredem debiturum: sin autem id actum sit, ut promissori dumtaxat usus fructus reciperetur, plenam proprietatem heredem eius debiturum.
He replied that it makes a difference with what intention the usufruct was excepted; for if indeed the intention was that the usufruct should be established in the person of anyone whosoever, the heir will owe only the bare ownership; but if the intention was that the usufruct should be reserved only to the promisor himself, his heir will owe the full ownership.
hoc ita se habere manifestius in causa legatorum apparere: etenim si heres, a quo detracto usu fructu proprietas legata sit, priusquam ex testamento ageretur, decesserit, minus dubitandum, quin heres eius plenam proprietatem sit debiturus.
That this is so appears more clearly in the case of bequests; for if an heir, from whom ownership has been bequeathed deducting the usufruct, should die before an action is brought on the testament, there is less doubt that his heir will owe the full ownership.
idemque et si sub condicione similiter legatum sit et pendente condicione heres decessit.
And the same is true if a similar bequest has been made under a condition, and the heir died while the condition was pending.
§7.1.36.2Usus fructus serui Titio legatus est: cum per heredem staret, quo minus praestaretur, seruus mortuus est: aliud dici non posse ait, quam in id obligatum esse heredem, quanti legatarii intersit moram factam non esse, ut scilicet ex eo tempore in diem, in quo seruus sit mortuus, usus fructus aestimetur.
The usufruct of a slave was bequeathed to Titius; when it was due to the heir that it was not performed, the slave died. He says that nothing else can be said than that the heir is bound for the amount of the legatee's interest in the delay not having occurred, so that, of course, the usufruct is to be valued from that time to the day on which the slave died.
cui illud quoque consequens esse, ut si ipse Titius moriatur, similiter ex eo tempore, quo mora sit facta, in diem mortis aestimatio usus fructus heredi eius praestaretur.
It follows from this also that if Titius himself should die, the valuation of the usufruct from the time when the delay occurred to the day of his death should likewise be performed to his heir.