[PAPINIANUS libro septimo decimo quaestionum. ] §7.5.8.prTribus heredibus institutis usum fructum quindecim milium Titio legauit et duos ex heredibus iussit pro legatario satisdare: placebat utile esse cautionis quoque legatum nec refragari senatus consultum, quia cautio non impediretur, et esse alterum legatum uelut certi, alterum incerti.
[PAPINIANUS in the seventeenth book of Questions.] heirs having been appointed, the testator bequeathed the usufruct of fifteen thousand [sesterces] to Titius, and ordered two of the heirs to provide security on behalf of the legatee. It was agreed that the legacy of security is also valid, and that the Senate's decree does not oppose it, because the security is not prevented, and that one legacy is, as it were, of a certain thing, the other of an uncertain thing.
usus fructus itaque nomine partem pecuniae petendam ab eo, qui satis accepit a coherede, incertique cum eodem agendum, si satis non dedisset.
Therefore, under the name of usufruct, a portion of the money must be claimed from him who has received security from his co-heir, and an action for an uncertain thing must be brought against the same person if he has not given security.
eum uero, qui satis praestitit ac propter moram coheredis satis non accepit, neque fructus nomine interim teneri propter senatus consultum neque actione incerti, quia coheredi satisdedit.
But he who has provided security, and yet, because of the delay of his co-heir, has not received security, is neither liable in the meantime under the name of usufruct because of the Senate's decree, nor by the action for an uncertain thing, because he has given security to his co-heir.
illud etiam nobis placet legatarium cogendum promittere.
It is also our opinion that the legatee must be compelled to make a promise.
finito autem usu fructu si coheredes ex causa fideiussoria convenirentur, eos mandati non acturos: non enim suscepisse mandatum, sed uoluntati paruisse: denique cautionis legato liberatos.
Moreover, when the usufruct has ended, if the co-heirs should be sued on the ground of their suretyship, they will not bring the action of mandate; for they did not undertake a mandate, but complied with the will [of the testator]; in short, they are released from the legacy of security.
de illo nec diu tractandum fuit secundum legatum, id est cautionis, non heredum uideri, sed eius, cui pecuniae usus fructus relictus est cuique testator prospicere uoluit et cuius interesse credidit fideiussores non suo periculo quaerere.
There was no need for a long discussion on this point: that the second legacy—that is, of the security—is considered to belong not to the heirs, but to him to whom the usufruct of the money was left, for whom the testator wished to provide, and in whose interest he believed it to be not to seek sureties at his own risk.