[ULPIANUS libro septimo decimo ad Sabinum. ] §7.8.10.prSi habitatio legetur, an perinde sit atque si usus, quaeritur.
If a habitation is bequeathed, it is asked whether it is the same as if a use were bequeathed.
et effectu quidem idem paene esse legatum usus et habitationis et Papinianus consensit libro octauo decimo quaestionum.
And indeed, that in effect the bequest of use and of habitation is almost the same, Papinian also agreed in the eighteenth book of Questions.
denique donare non poterit, sed eas personas recipiet, quas et usuarius: ad heredem tamen nec ipsa transit nec non utendo amittitur nec capitis deminutione.
Therefore he will not be able to donate, but he will receive those persons whom a user also receives; however, it neither passes to the heir, nor is it lost by non-use, nor by loss of status.
§7.8.10.1Sed si χρηῆισ sit relicta, an usus sit, uidendum: et Papinianus libro septimo responsorum ait usum esse, non etiam fructum relictum.
But if a "chresis" has been left, we must see whether it is a use; and Papinian, in the seventh book of Opinions, says that it is a use, and that a usufruct has not also been left.
§7.8.10.2Sed si sic relictus sit: 'illi domus usus fructus habitandi causa', utrum habitationem solam an uero et usum fructum habeat, uidendum.
But if it has been left thus: "to so-and-so the usufruct of a house for the purpose of inhabiting", we must see whether he has habitation alone or indeed also the usufruct.
et Proculus et Neratius putant solam habitationem legatam, quod est uerum.
And both Proculus and Neratius think that habitation alone was bequeathed, which is true.
plane si dixisset testator 'usum habitandi causa', non dubitaremus, quin ualeret.
Clearly, if the testator had said "use for the purpose of inhabiting", we would not doubt that it would be valid.
§7.8.10.3Utrum autem unius anni sit habitatio an usque ad uitam, apud ueteres quaesitum est: et Rutilius donec uiuat, habitationem competere ait, quam sententiam et Celsus probat libro octauo decimo digestorum.
But whether habitation is for one year or for life was questioned among the ancients; and Rutilius says that habitation belongs as long as he lives, which opinion Celsus also approves in the eighteenth book of the Digests.
§7.8.10.4Si usus fundi sit relictus, minus utique esse quam fructum longeque nemo dubitat.
If the use of land has been left, no one doubts that it is certainly less than the usufruct, and by far.
sed quid in ea causa sit, uidendum.
But we must see what is in that case.
et Labeo ait habitare eum in fundo posse dominumque prohibiturum illo uenire: sed colonum non prohibiturum nec familiam, scilicet eam, quae agri colendi causa illic sit: ceterum si urbanam familiam illo mittat, qua ratione ipse prohibetur, et familiam prohibendam eiusdem rationis est.
And Labeo says that he can dwell on the land and can prohibit the owner from coming there; but he will not prohibit the tenant farmer, nor the household, namely that which is there for the purpose of cultivating the field. But if he sends a city household there, by the same reason that he himself is prohibited, it is of the same reasoning that the household also should be prohibited.
idem Labeo ait et cella uinaria et olearia eum solum usurum, dominum uero inuito eo non usurum.
The same Labeo says that he alone will use both the wine cellar and the oil cellar, and the owner indeed will not use them against his will.