[ULPIANUS libro septimo decimo ad Sabinum. ] §7.4.3.prSicut in annos singulos usus fructus legari potest, ita et capitis minutione amissus legari potest, ut adiciatur: 'quotiensque capite minutus erit, ei lego', uel sic 'quotiens amissus erit': et tunc, si capitis minutione amittatur, repetitus uidebitur.
[ULPIANUS from the seventeenth book on Sabinus.] Just as a usufruct can be bequeathed for individual years, so also it can be bequeathed as lost by deminution of status, so that there is added: 'and as often as he undergoes deminution of status, I bequeath it to him', or thus 'as often as it is lost': and then, if it is lost by deminution of status, it will be regarded as repeated.
unde tractatum est, si cui quamdiu uiuat usus fructus legatus sit, an uideatur repetitus, quotiens amissus est? quod et Maecianus temptat: et puto repetitum uideri.
Hence it has been discussed whether, if a usufruct is bequeathed to someone for as long as he lives, it is regarded as repeated as often as it is lost. Which Maecianus also supports: and I think it is to be regarded as repeated.
quare si usque ad tempus sit legatus, ut puta usque ad decennium, idem erit dicendum.
Therefore, if it is bequeathed up to a certain time, as for example up to ten years, the same must be said.
§7.4.3.1Haec autem repetitio, quae fit post amissum capitis minutione usum fructum, quaeritur an et ius adcrescendi secum saluum habeat: ut puta Titio et Maeuio usus fructus legatus est et, si Titius capite minutus esset, eidem usum fructum legauit: quaesitum est, si Titius ex repetitione usum fructum haberet, an inter eos ius adcrescendi saluum esset.
Now it is asked whether this repetition, which occurs after a usufruct is lost by deminution of status, also preserves the right of accrual with it: for instance, a usufruct was bequeathed to Titius and Maevius, and the testator bequeathed the usufruct to the same Titius if he should undergo deminution of status: it was asked whether, if Titius held the usufruct by virtue of the repetition, the right of accrual between them remained intact.
et Papinianus libro septimo decimo quaestionum scribit saluum esse, perinde ac si alius esset Titio in usu fructu substitutus: hos enim tametsi non uerbis, re tamen coniunctos uideri.
And Papinianus writes in the seventeenth book of questions that it remains intact, just as if another person had been substituted for Titius in the usufruct: for they seem to be joined, if not in words, yet in reality.
§7.4.3.2Idem Papinianus quaerit, si Titio et Maeio usu fructu legato in repetitione usus fructus non totum, sed partem Titio relegasset, an uiderentur coniuncti.
The same Papinianus asks whether, if a usufruct had been bequeathed to Titius and Maevius, and in the repetition of the usufruct the testator had bequeathed to Titius not the whole, but a part, they would be regarded as joined.
et ait, si quidem Titius amiserit, totum socio adcrescere: quod si Maeuius amisisset, non totum adcrescere, sed partem ad eum, partem ad proprietatem redire.
And he says that if indeed Titius has lost it, the whole accrues to his partner; but if Maevius had lost it, the whole does not accrue, but a part returns to him, and a part to the ownership.
quae sententia habet rationem: neque enim potest dici eo momento, quo quis amittit usum fructum et resumit, etiam ipsi quicquam ex usu fructu adcrescere: placet enim nobis ei qui amittit usum fructum ex eo quod amittit nihil adcrescere.
This opinion is rational: for it cannot be said that at that moment when one loses the usufruct and resumes it, anything of the usufruct accrues to him too; for it is our accepted rule that to him who loses a usufruct, nothing accrues from what he loses.
§7.4.3.3Morte quoque amitti usum fructum non recipit dubitationem, cum ius fruendi morte extinguatur, sicuti si quid aliud, quod personae cohaeret.
That a usufruct is also lost by death does not admit of doubt, since the right of enjoying is extinguished by death, just as anything else that is inherent in the person.