Quaestionum libri
Ex libro II
Dig. 12,1,23Africanus libro secundo quaestionum. Si eum servum, qui tibi legatus sit, quasi mihi legatum possederim et vendiderim, mortuo eo posse te mihi pretium condicere Iulianus ait, quasi ex re tua locupletior factus sim.
Dig. 28,5,47Africanus libro secundo quaestionum. Quidam cum filium familias heredem instituere vellet, ne ad patrem eius ex ea hereditate quicquam perveniret, voluntatem suam exposuit filio: filius cum patris offensam vereretur, petit a testatore, ne sub condicione ‘si a patre emancipatus esset’ heredem eum institueret et impetravit ab eo, ut amicum suum heredem institueret: atque ita testamento amicus filii ignotus testatori heres institutus est nec quicquam ab eo petitum est. quaerebatur, si ille amicus aut adire nollet aut aditam nollet restituere hereditatem, an fideicommissum ab eo peti possit aut aliqua actio adversus eum esset et utrum patri an filio competeret. respondit, etiamsi manifestum sit scriptum heredem fidem suam interposuisse, non tamen aliter ab eo fideicommissum peti posse quam si et ipsum testatorem fidem eius secutum esse probaretur. si tamen, cum a filio familias rogaretur, amicus et aditurum se hereditatem recepisset et restituturum patri familias facto, non absurde dici possit mandati actionem futuram: et eam actionem patri inutilem fore, quia non sit ex bona fide id ei restitui, quod testator ad eum pervenire noluerit: sed nec filio vulgarem competituram, verum utilem, sicuti dare placeret ei, qui, cum filius familias esset, pro aliquo fideiussisset ac pater familias factus solvisset.
Africanus, Questions, Book II. A certain individual desiring to make a son under paternal control his heir, but in such a way that none of the estate would go to his father, stated his wishes to the son. The latter, fearing to offend his father, requested the testator to appoint him his heir under the condition that he should be emancipated by his father, and gained his consent to appoint one of his friends his heir, and in this way, the friend of the son who was unknown to the testator was appointed his testamentary heir, and nothing was required of him. The question arose, if the said friend was unwilling to enter upon the estate, or if, after having entered upon it he should refuse to surrender it, whether it could be demanded of him as trustee, or whether any action could be brought against him, or whether one would lie against the father, or the son. The answer was that, even though it was evident that the appointed heir was merely a trustee, still, the estate could not be demanded of him unless it could be proved that the testator himself regarded him in that light. If, however, the friend, having been requested by the son under paternal control, agreed to enter upon the estate, and to surrender it after he became his own master, it cannot improperly be held that an action on mandate could be brought, and that such an action would not lie in favor of the father, because good faith did not require that he should be given what the testator was unwilling should come into his hands. Nor will the common action on mandate be available to the son, but a prætorian action will be; as it has been settled that one should be granted to a party who while a son under paternal control, has become surety for someone, and after becoming his own master is obliged to make payment.
Dig. 28,6,33Africanus libro secundo quaestionum. Si mater ita testetur, ut filium impuberem, cum erit annorum quattuordecim, heredem instituat eique pupillaribus tabulis, si sibi heres non erit, alium substituat, valet substitutio. 1Si filius et ex eo nepos postumus ita heredes instituantur, ut Gallo Aquilio placuit, et nepoti, si is heres non erit, Titius substituatur, filio herede existente Titium omnimodo, id est etiam si nepos natus non fuerit, excludi respondit.
Africanus, Questions, Book II. If a mother should make a will and appoint her son her heir, as soon as he arrives at the age of fourteen years, and in case he should not be her heir, appoints another for him by pupillary substitution, this will be valid. 1Where a son is appointed an heir, and his own posthumous son another, in compliance with the rule of Gallus Aquilius, and Titius is substituted for the grandson if he should not be the heir, if the son becomes his father’s heir, the opinion was given that Titius should be absolutely excluded; that is to say, even if a grandson should not be born.
Dig. 29,7,15Africanus libro secundo quaestionum. Sed cum ea testatoris voluntas fuerit, ut ex universa hereditate legata erogarentur, dicendum scriptis heredibus profuturam doli exceptionem, si amplius quam hereditaria portio petatur.
Africanus, Questions, Book II. But as it was the will of the testator that the legacy should be paid out of the entire estate, it must be said that an exception on the ground of bad faith will lie for the benefit of the heirs appointed by the will, where a sum greater than they are entitled to is claimed.
Dig. 30,107Africanus libro secundo quaestionum. Si a pluribus heredibus legata sint eaque unus ex his praecipere iubeatur et praestare, in potestate eorum, quibus sit legatum, debere esse ait, utrumne a singulis heredibus petere velint an ab eo, qui praecipere sit iussus: itaque eum qui praecipere iussus est cavere debere coheredibus indemnes eos praestari. 1Si quis servum, cui aliquid sine libertate legaverit, cum morietur ipse servus, leget, minime dubitandum, quin utile legatum futurum sit, propterea scilicet, quod moriente servo id quod ipsi legatum erit ad eum cui ipse legatus fuerit perventurum sit.
Africanus, Questions, Book II. Where several heirs are charged with the payment of a bequest, which one of them is directed to pay as a preferred legacy? It is said that it is in the power of those to whom the legacy was bequeathed to choose whether they will bring suit against the heirs singly, or only against the one who was directed to pay the preferred legacy; hence the latter must give security to his co-heirs for the purpose of indemnifying them. 1Where anyone bequeaths a slave to whom he has left a legacy, without granting him his freedom, “If he should be his slave when he dies,” there is no doubt whatever that the legacy will be valid at some future time, because, on the death of the slave, the legacy which is left to him will belong to the person to whom the slave himself was bequeathed.
Dig. 34,2,2Africanus libro secundo quaestionum. Qui tibi mandaverat, ut ornamenta in usum uxoris suae emeres, eidem uxori uti adsolet legavit quae eius causa parata erunt: tu deinde post mortem mandatoris ignorans eum decessisse emisti. non debebuntur mulieri, quoniam ea verba ad mortis tempus referuntur. at si vivente testatore, muliere autem mortua emeris, non ineleganter dicetur inefficax hoc legatum esse, quando non possit vere dici eius causa paratum videri, quae prius decessit. eadem dicenda erunt et si vivat quidem mulier, sed diverterit et quaeratur, an post empta ei debeantur, quasi non videantur uxoris causa parata.
Africanus, Questions, Book II. Where anyone directed you to purchase certain ornaments for the use of his wife, and he then, as is customary, left his wife everything which he had provided for her use; and you, after the death of the testator and while you were not aware that he was dead, make the purchase, the woman will not be entitled to the ornaments, since the words employed have reference to the time of the testator’s death. If, however, you should make the purchase during the lifetime of the testator, but after the death of his wife, it may not improperly be held that the legacy will be void, since it cannot truly be maintained that the ornaments were provided for the use of one who is already dead. The same must be said in the case of a woman who is still living, but has been divorced, when the question is asked whether she is entitled to what has been purchased after her divorce, as it does not appear to have been provided for her use as a wife.
Dig. 34,2,5Africanus libro secundo quaestionum. Apud Fufidium quaestionum libro secundo ita scriptum est: si mulier mandaverit tibi, ut sibi uniones usus sui causa emeres, si tu post mortem eius, cum putares eam vivere, emeris, Atilicinus negat esse legatos ei, cui mulier ita legaverit: ‘ornamenta, quae mea causa parata sunt eruntve’: non enim eius causa videri parata esse, quae iam mortua ea empta fuerint.
Africanus, Questions, Book II. The following is contained in the Second Book of Questions by Phuphidius: “If a woman should direct you to purchase pearls for her use, and you should do so after her death, but while you thought that she was still living,” Atilicinus denies that the pearls were left to a person to whom the woman made the following bequest: “I bequeath all the jewels which have been or shall be obtained for my use,” for they cannot be considered to have been obtained for her use as she was already dead at the time when the purchase was made.
Dig. 35,1,31Africanus libro secundo quaestionum. In testamento ita erat scriptum: ‘Stichus et Pamphila liberi sunto et si in matrimonium coierint, heres meus his centum dare damnas esto’: Stichus ante apertas tabulas decessit. respondit partem Stichi defectam esse: sed et Pamphilam defectam condicione videri ideoque partem eius apud heredem remansuram. sed et si uterque viveret et Stichus nollet eam uxorem ducere, cum mulier parata esset nubere, illi quidem legatum deberetur, Stichi autem portio inutilis fiebat. nam cum uni ita legatum sit: ‘Titio, si Seiam uxorem duxerit, heres meus centum dato’, si quidem Seia moriatur, defectus condicione intellegitur: at si ipse decedat, nihil ad heredem suum eum transmittere, quia morte eius condicio defecisse intellegitur: utroque autem vivente si quidem ipse nolit uxorem ducere, quia ipsius facto condicio deficit, nihil ex legato consequitur, muliere autem nolente nubere, cum ipse paratus esset, legatum ei debetur.
Africanus, Questions, Book II. The following provision was inserted into a will, “Let Stichus and Pamphila be free, and if they should be united in marriage, let my heir be charged to pay them a hundred aurei.” Stichus died before the will was opened. The answer was that” the right to the share of Stichus was extinguished, and that, as it appeared that Pamphila had failed to comply with the condition, her share would therefore remain in the possession of the heir. If, however, both of them had lived, and Stichus had refused to marry her while the woman was ready to marry him, she would be entitled to her share of the legacy, but the right of Stichus to his share would be extinguished. For where a legacy is bequeathed to anyone as follows, “Let my heir pay a hundred aurei to Titius, if he marries Seia,” and Seia should die, Titius is understood to have failed to comply with the condition. But if he himself should die, he will not transmit the legacy to his heir, because by his death the condition is understood not to have been fulfilled. Where, however, both of them are living, and he refuses to marry her, for the reason that the condition fails through his act, he cannot obtain the legacy; but if the woman is unwilling to marry him, and he is ready to marry her, he will be entitled to it.
Dig. 35,1,42Africanus libro secundo quaestionum. Filio familias legatum est sub hac condicione ‘si in potestate patris mansisset’: magis patri legatum videri ait et patrem suo nomine legatum petere. idem iuris esse et si servo similiter legetur: argumentum rei est, quod et si cibaria servis Titii legentur, procul dubio domini est, non servorum legatum.
Africanus, Questions, Book II. A legacy was bequeathed to a son under paternal control, subject to the condition that he remained in the power of his father. It was held that the legacy seemed to have been bequeathed to the father, and that the latter could claim it in his own name. The same rule of law applies where a bequest is made in this way to a slave. The proof of this contention is, that even though provisions should be bequeathed to the slaves of Titius, there is no doubt that the legacy belongs to the master and not to the slaves.
Dig. 38,2,26Africanus libro secundo quaestionum. Liberto octoginta habenti fundus quadraginta legatus est: is die cedente legati decessit extraneo herede instituto. respondit posse patronum partem debitam vindicare: nam videri defunctum mortis tempore ampliorem habuisse rem centum, cum hereditas eius propter computationem legati pluris venire possit. neque referre, heres institutus repudiet legatum liberto relictum nec ne: nam et si de lege Falcidia quaeratur, tale legatum quamvis repudiatum in quadrantem hereditatis imputatur legatariis.
Africanus, Questions, Book II. A freedman devised land worth forty sesterces out of his estate which was valued at eighty, and after having appointed a stranger his heir, died on the day when the devise became due. I gave it as my opinion that the patron could demand the share of the estate to which he was entitled by law; for the deceased, at the time of his death, appeared to have had an estate of more than a hundred sesterces, as it could have been sold for more than that, including the amount of the legacy. It would make no difference whether the appointed heir rejected the legacy left by the freedman, or not; for if a question should arise under the Falcidian Law, a bequest of this kind, even though it were rejected, would be charged by the legatees to the quarter of the estate due to the heir.
Dig. 39,6,23Idem libro secundo quaestionum. Si filio familias mortis causa donatum sit et vivo donatore moriatur filius, pater vivat, quaesitum est, quid iuris sit. respondit morte filii condictionem competere, si modo ipsi potius filio quam patri donaturus dederit: alioquin, si quasi ministerio eius pater usus sit, ipsius patris mortem spectandam esse. idque iuris fore et si de persona servi quaeratur.
The Same, Questions, Book II. Where a donation mortis causa is made to a son under paternal control, and he dies during the lifetime of the donor, but his father survives, the question arises, what is the rule of law in a case of this kind? The answer was that, by the death of the son, an action to recover the property will lie; provided the donor had the intention of giving it to the son rather than to the father. Otherwise, if the agency of the son was only employed for the benefit of his father, then the death of the father must be taken into consideration. The same rule will apply where a question arises with reference to the person of a slave.