THE ENACTMENTS OF JUSTINIAN.
  
THE DIGEST OR PANDECTS.

 
~  Book XXIX  ~



 
S. P. Scott, The Civil Law, VI-VII, Cincinnati, 1932 ).
 

 
    

Tit. 1. Concerning the will of a soldier.


 
1. Ulpianus, On the Edict, Book XLV.

The Divine Julius Caesar was the first who granted to soldiers free power to make a will, but this concession was only temporary. The first after him to confer this power was the Divine Titus, and then Domitianus. The Divine Nerva subsequently conceded the greatest indulgence to soldiers in this respect, and Trajanus followed his example. From that time forward there was inserted in the Imperial Edicts the following provision: "It has come to my notice that wills executed by our fellow-soldiers have been frequently presented which would be the subject of dispute if the laws were strictly applied and enforced; so, in accordance with the benevolent promptings of my mind with reference to my excellent and most faithful fellow-soldiers, I have thought that indulgence should be extended to their inexperience, so that no matter in what way they may draw up their wills, they shall be confirmed. Let them, therefore, draw them up in whatever form they desire, in the best way that they can, and the mere wish of the testators will be sufficient for the distribution of their estates."

(1) The term "soldier" is understood to have been derived from militia, that is to say duritia, the hardships which soldiers endure for us, or from the word "multitude," or from the term "evil," from which soldiers are accustomed to protect us; or from the one thousand men from the Greek tanma, for the Greeks designate a thousand men assembled together by that term, each one being called the thousandth of the entire number, whence the leader himself is styled ciliarcou. The word exercitus (army) derives its name from exercise.

2. Gaius, On the Provincial Edict, Book XV.

The Praetor issued a separate Edict with reference to the wills of soldiers, for the reason that he was well aware that, according to the Constitutions of the Emperors, peculiar and extraordinary rights have been established with reference to their wills.

3. Ulpianus, On Sabinus, Book II.

If a soldier who intended to make his will in compliance with the ordinary law should die before having it witnessed: Pomponius is in doubt as to its validity. But why should he not approve of a will thus made by a soldier without observing the ordinary formalities? Is it because he thinks that a soldier who intended to execute his will, in accordance with the ordinary law, by doing so renounced his military privilege? Can it be believed that anyone would select a certain way to make his will for the purpose of rendering it void; and is it not more probable that he would prefer to make use of both ways in the execution of his will, on account of the accidents to which he was exposed; just as civilians, when they draw up their wills, are accustomed to add that they desire that they shall be valid at least as codicils; and in this instance would anyone say that if the will is imperfect it should stand as a codicil? The Divine Marcus stated in a Rescript an opinion which coincides with our own.

4. The Same, On Sabinus, Book I.

It is established that a person who is deaf or dumb can make a military will while in the army, and before having been discharged on account of his affliction.

5. The Same, On Sabinus, Book IV.

Soldiers can make a substitution for their heirs, but only with reference to such property as they have acquired by their wills.

6. The Same, On Sabinus, Book V.

Where a soldier appoints a sole heir to a certain tract of land, he is held to have died intestate so far as the remainder of his patrimony is concerned. For a soldier can die partly testate and partly intestate.

7. The Same, On Sabinus, Book IX.

Where a will is executed in accordance with military law, even though the testator may be ignorant that his wife was pregnant, or, being aware of the fact, he does this with the intention that if a child should be born to him, it shall be disinherited, the will is not broken.

8. Marcellus, Digest, Book X.

The same rule applies where a soldier arrogates a son, or his grandson obtains the succession in the place of his son.

9. Ulpianus, On Sabinus, Book IX.

The same rule must be said to apply where a soldier who had a son born to him in his lifetime preferred to die without making any alteration to his will; for, in accordance with military law, he is held to have renewed his will.

(1) This was stated in a Rescript by the Divine Pius with reference to a man who executed a will while he was a civilian, and afterwards became a soldier; for this will was valid by military law, if such was the desire of the soldier.

10. The Same, On Sabinus, Book IV.

Anyone who is in the power of the enemy cannot make a will, even in compliance with military law.

11. The Same, On the Edict, Book XLV.

Those who are condemned to death for some military crime can only make a will disposing of property obtained during their service; but the question arises, can they do so by military, or by civil law? The better opinion is, that they can make a will in accordance with military law; for, as the right of testation is conferred upon a man because of his being a soldier, it must be held that it follows that he can exercise it by reason of his military privilege. This should, however, be understood to apply to cases where he has not violated his oath.

(1) Where a soldier is in doubt whether or not he is his own master, and makes a will, he is in such a position that it will be valid in any event. For if he should execute a will, being uncertain as to whether or not his father is living, it will be valid.

(2) Where a son under paternal control, not knowing that his father is dead, makes a will disposing of his castrense peculium while in the service, the estate of his father will not belong to the heir, but only such property as the son has acquired during the time when he was a soldier.

12. Papinianus, Opinions, Book VI.

Soldiers only leave by will such property as they own.

13. Ulpianus, On the Edict, Book XLV.

The same rule applies where a soldier has determined to change his will, not because he desired to deprive the heir he appointed of his property acquired in the service, but in order to make a will disposing of his father's estate, and to appoint another heir.

(1) If, however, the soldier should die after having been discharged, his entire estate, including that derived from his father, will belong to the heir of the peculium castrense; as Marcellus says in the Eleventh Book of the Digest. For one who is no longer in the army can not dispose of only a portion of his property by will.

(2) Persons who have been deported, and almost all those who have not testamentary capacity, can be appointed heirs by a soldier. If, however, he should appoint as his heir someone who had become a penal slave, the appointment will not be valid. But if, at the time of the death of the testator, the heir should be in the possession of his citizenship, the appointment will begin to take effect, just as if the estate had just been bequeathed. And, in general, it may be said, in every instance in which a soldier appoints his heir, that the appointment will begin to acquire validity, if at the time of the death of the testator, the party was in such a condition that he could be appointed the heir of a soldier.

(3) Where a soldier appoints as his heir his own slave, whom he believed to be free, without granting him his freedom, the appointment will not be valid.

(4) Where a soldier by his will granted freedom to his slave, and left him his estate in trust, charging the first heir and the substitute with its delivery, even though the first heir and the substitute should die before entering upon the estate, the deceased will not die intestate, as our Emperor and the Divine Severus stated in a Rescript; but it should be held that the case resembled one where his freedom and the estate had been directly given to the said slave; and it cannot be denied that it was the intention of the testator that he should obtain both.

14. Marcianus, Trusts, Book IV.

A discussion arose as to whether the same indulgence should be granted with reference to the wills of civilians. It was established that in this instance there was a distinction, for if the parties should die during the lifetime of the testator, and he be aware of the fact, there was no necessity for anything new, but where he was not aware of it, relief must, by all means, be granted after his death.

15. Ulpianus, On the Edict, Book XLV.

A soldier cannot appoint more than one necessary heir, where it is evident that this is done in order to defraud his creditors.

(1) Just as a soldier can dispose of his estate by merely stating his wish, so he can take it away. Hence, if he cancels or tears his will, the latter will be of no force or effect. If, however, he should cancel his will, and afterwards wish it to be valid, it will be valid through this last expression of his desire. Therefore, where a soldier, having erased his will, afterwards sealed it with his ring, the court having jurisdiction of the case must take into consideration the intention of the testator in doing this; for if it should be proved that he repented of changing his mind, the will will be understood to have been renewed. If, however, he has done this with the intention that what was written in the will should not be read, he will be held to have done so for the purpose of cancelling his will.

(2) The Divine Pius stated in a Rescript that a will executed by a soldier before entering the army is valid by military law, provided the testator died in the service, and did not change his mind afterwards.

(3) Where anyone who draws up the will of a soldier inserts his own name as heir therein, he will not be released from the penalty prescribed by the Decree of the Senate.

(4) A soldier can appoint an heir for a certain time, and another after that time, or he can appoint one on the fulfillment of a certain condition, or another after the condition has been complied with.

(5) He can also, by military law, execute a will not only for himself but also for his son, and he can do this for his son alone, even though he does not execute one for himself, and such a will is valid if the father should die in the service, or within a year after his discharge.

(6) Papinianus, in the Fourteenth Book of Questions, states that application for the possession of the property of an estate cannot be made after the time prescribed by the Edict, because this provision is a general one.

16. Paulus, On the Edict, Book XLIII.

If a soldier should bequeath a dotal estate to anyone, the legacy will not be valid, according to the Lex Julia.

17. Gaius, On the Provincial Edict, Book XV.

Where a soldier appoints heirs to certain property, as for instance, one to certain property in a city, another to certain lands in the country, and still another to other property, the appointments will be valid, for it will be considered just as if he had appointed the said heirs without assigning them their shares in the estate, and that he had distributed all his property through making his bequest to each one by preference.

(1) Julian also says that where a testator appoints one heir to his property obtained while a soldier, and another the heir to the remainder of the estate, this is to be understood to be the disposal of two distinct estates belonging, as it were, to two different men, so that that heir alone who was appointed for the property obtained while in the service shall be liable for debts incurred by the soldier while in the army, and he alone who was appointed heir to the remainder of the estate shall be bound to pay any debts contracted outside of the service. In this instance it seems to be proper to hold that where anything is due to the soldier from any source, it will be due by operation of law to either the former or the latter heir. If, however, either of the shares of the property should not be sufficient to pay the debts for which it is liable, and for this reason the party appointed heir to this share does not accept it, the other who did accept must be compelled either to take up the defence of the entire estate, or to pay the creditors in full.

(2) Where, in the same will, a soldier appoints a certain person his heir, and afterwards disinherits him, he will be held to have been deprived of the estate, while by the will of a civilian, an estate cannot be taken away by a mere disinheritance of this kind.

(3) If a father should be appointed heir to the castrense peculium by his son under paternal control, who is serving in the army, and he fails to take advantage of the will, and has some of the property in possession, or fraudulently relinquished it to avoid having possession, an action will be granted to the legatee against him.

(4) If a soldier should make a will while he is in the army, and a codicil after his term of service has expired, and he dies within a year of his discharge, it is held by many authorities that the codicil should be considered to have been made in accordance with the rule of the Civil Law; because it was not executed by a soldier, and it should not be held that it is confirmed by the will. Therefore there is no room for the application of the Falcidian Law in the case of any legacies bequeathed by the will, but this law is applicable to such legacies as are included in the codicil.

18. Tryphoninus, Disputations, Book XVIII.

Where, however, the legacies granted by the will, as well as those granted by the codicil, taken together, amount to more than three-fourths of the estate, the question arises as to what extent should those to which the Falcidian Law applies be diminished. It would be most convenient, however, for it to be decided that the legacies which the soldier bequeathed by his will, having been fully paid out of the assets of the entire estate, the remainder should be divided between the heirs and those to whom legacies were given by the codicil, in the proportion of three-fourths to the former, and one-fourth to the latter.

(1) But what if the legacies bequeathed by the will should absorb the entire amount of the estate, would those to whom property was left by the codicil be entitled to anything, or would they not? Since, if the soldier had made these bequests while still in the service, all would be liable to contribution, and that portion which he bequeathed in excess of his estate must be deducted pro rata from all the legacies, the same must also be done in this instance. Then, the amount of the legacies bequeathed by the codicil having been ascertained from the sum which is found to be due (where the legacies belong to the same class) the heir can then deduct his fourth from those legacies alone which were bequeathed by the codicil.

(2) If, however, all the legacies had been included in the computation, and what remains in the hands of the heir should not be sufficient to make up the fourth of his share of said legacies, whatever is lacking must be taken from those legacies alone which were bequeathed by the codicil.

19. Ulpianus, Disputations, Book IV.

The question arose, where a soldier having already made one will makes a second, and in the latter charges his heir as trustee to carry out the provisions of the first, what would be the rule of law in this case? I said, "A soldier is permitted to make several wills, but whether he makes them all at once or separately, they will be valid only where the testator expressly stated that he desired this to be the case; nor will the first will be annulled by the last, as he can appoint an heir to a portion of his estate, that is to say, he can die partly testate and partly intestate. Again, if he had, in the first place, made a codicil, he can arrange it by providing in the will which follows that the codicil can have the effect of an appointment, and can render a direct appointment effective which was formerly precarious; hence, I will say that, in the case stated, if the soldier had intended that the will first executed should be valid, what he provided must stand, and the consequence is that there will be two wills. However, where the execution of the first will is committed to the heir as trustee, it is evident that he did not intend that it should be valid by operation of law, but rather through the acts of the trustee, that is to say, that he has converted the effect of the first will into that of a trust and a codicil.

(1) The question, however, arises, whether the entire will is converted into a codicil, that is to say, whether the appointment of the heir is included, or in fact only the legacies, the trusts, and the grants of freedom. It seems to me that not only the other matters, with the exception of the appointment of the heir, but also the appointment itself is included in the trust, unless it is proved that the intention of the testator was otherwise.

(2) Where anyone has been appointed by a soldier heir for a certain time, and another person an heir for the ensuing time, the question arises whether the last heir should be responsible for the distribution of the legacies not distributed by the first one. I think that this obligation does not rest upon him, unless it is established that the soldier's intention was different.

20. Julianus, Digest, Book XXVII.

A military tribune made a codicil while in camp, after his successor arrived, and then died. As he ceased to occupy the position of a soldier after his successor had arrived in the camp, his codicil must be considered as having been executed under the common law governing Roman citizens.

(1) Where anyone, after executing a will, enters the military service, this will is also considered that of a soldier, under certain circumstances; as, for instance, if he opened the will and read it, and sealed it a second time with his seal; and still more so, if he erased part of it, defaced it, or made any additions to, or corrections in it. If, however, none of these things took place, his will will not enjoy any of the privileges attaching to the testament of a soldier.

21. Africanus, Questions, Book IV.

The decision that a will executed during military service is also valid for a year after the discharge of the testator from the army seems by its terms to show that this privilege can only be enjoyed by those who are regularly discharged. Hence, neither prefects, tribunes, or other officers who cease to serve when their successors arrive will be entitled to it.

22. Marcianus, Institutes, Book IV.

Where a son under paternal control, who is serving as a soldier, loses his civil rights, or is emancipated, or is given in adoption by his father, his will will be valid, just as if a new one had been executed.

23. Tertullianus, On the Castrense Peculium.

The same rule applies where the head of a household, while a soldier, only disposes of his peculium castrense by will, and subsequently gives himself to be arrogated. If, however, he should do this after having been already discharged, his testament will not be valid.

24. Florentinus, Institutes, Book X.

The Divine Trajanus stated in a Rescript addressed to Statilius Severus that: "The privilege accorded to persons serving in the army which imparts validity to their wills, no matter how they have been executed, must be understood as follows, namely, in the first place, it must be established that the will was executed, which can be done without committing it to writing, which also applies to others who are not soldiers. Therefore, where a soldier, with reference to whose estate application has been made to you, has called together persons to witness his will, and declared in their presence whom he desired to be his heir, and to what slave he wished to grant freedom, it may be held that he, in this way, made a will without reducing it to writing, and his wishes must be carried into effect. If, however (as frequently happens), he should say to someone: "I constitute you my heir, or I leave you my property"; this must not be regarded as a will. Nor does it make any more difference to others than those to whom this privilege is granted, that such a disposition of property should not be allowed; for otherwise, it would not be difficult for witnesses to be found after the death of a soldier, who would assert that they had heard the latter say that he left his property to those whom they desired to benefit, and in this way the wills of soldiers would be overthrown."

25. Marcellus, Opinions.

Titius, before he became a legionary tribune, made a will, and after obtaining the office died, without having altered it. I ask whether such a will should be considered a military one. Marcellus answers, The will which he made before becoming tribune would be subject to the rules of the Common Law, unless after it had been executed, it is proved that the testator declared that he wished it to be valid. For, by the Imperial Constitutions, not the wills of soldiers, but wills made by soldiers while in the army, are confirmed. It is evident, however, that a soldier should be understood to have made a will, who declares in any way whatsoever that he desires that a previous will which he had executed should be valid.

26. Macer, Military Wills, Book II.

The wills of soldiers who have been dishonorably discharged immediately cease to be valid by military law; but the privilege is extended for the term of a year to the wills of those who have obtained an honorable discharge, or one for some good reason.

(1) The right to dispose of castrense peculium by will, which is granted to sons under paternal control, serving in the army, is not conceded to such as are dishonorably discharged, because this privilege is only bestowed by way of recompense upon others who deserve it.

27. Papinianus, Opinions, Book VI.

A centurion, by a second will, appointed his posthumous children his heirs, but did not appoint any substitutes for them; and, as none were mentioned, stated that reference should be had to his first will. It was held that everything included in the second will was void, except the appointment of the posthumous heirs; unless, after having referred to his first will, he expressly confirmed all that was contained in the second.

28. Ulpianus, On Sabinus, Book XXXVI.

Where a son under paternal control died while in the army, after having appointed as his heir his son, who had not yet reached the age of puberty, and also appointed a substitute as well as guardians for him while under the control of his grandfather, the Divine Brothers stated in a Rescript that the substitution was valid, but that the appointment of the guardians was not, for the reason that a soldier in disposing of his estate can make any substitution that he desires, but he cannot do anything injuriously affecting the rights of another.

29. Marcellus, Digest, Book X.

If an heir appointed by a soldier should voluntarily accept an estate, and, having been requested to do so, surrenders the whole of it, the rights of action arising out of the Trebellian Decree of the Senate are transferred.

(1) Where a soldier by his will manumits a slave whose freedom is not allowed to be granted by the Lex Aelia Sentia, or any other law, his act is void.

(2) The Edict of the Praetor, by which appointed heirs as well as legatees are excused from taking an oath, is also applicable to the wills of soldiers, just as in the case of trusts. The same rule applies where a condition is dishonorable.

(3) It is established that praetorian possession of the share of the estate to which he was entitled should be granted to a father who had personally emancipated his son, this being done in opposition to the provisions of the latter's will, except with reference to such property as the son had acquired while in the service, and which he was free to dispose of testamentarily.

30. Paulus, Questions, Book VII.

For the Divine Pius Antoninus stated in a Rescript that praetorian possession of the estate of a son serving as a soldier should not be granted in violation of the will of the latter, so far as property obtained while in the army was concerned.

31. Marcellus, Digest, Book XIII.

Where a soldier bequeathed a slave to Titius and Seius, and while Seius was deliberating as to whether he would accept the bequest or not, Titius manumitted the slave, and Seius afterwards declined the legacy, I say that the slave should be free, for the reason that if an heir manumits a slave bequeathed to anyone, and the legatee afterwards rejects the bequest, the slave will become free.

32. Modestinus, Rules, Book IX.

Where the estate of a soldier is not entered upon in accordance with the evident desire of the testator, the heirs will not be entitled to his property acquired while in the service.

33. Tertyllianus, On the Castrense Peculium.

Where a son under paternal control, while in the army, makes a will according to military custom, and subsequently, after the death of his father, a posthumous child is born to him, his will is broken. If, however, he is still of the same mind, and wishes the said will to continue to be valid, he can render it so, just as if he had made another; provided he was serving as a soldier up to the time when the posthumous child was born.

(1) Where, however, a son under paternal control, who is serving as a soldier, makes a will, and then afterwards, during his lifetime, and during that of his grandfather, a posthumous child is born to him, his will will not be broken, because the said child will not come under his control, and is not held to be born a proper heir. Nor indeed, can this posthumous grandchild, since it was born during the lifetime of the son, become at once a proper heir to its grandfather, and therefore the will of the grandfather is not broken; as, although it at once comes under the control of its grandfather, the son will, nevertheless, be entitled to priority.

(2) It follows that if a son under paternal control makes a will while serving as a soldier, and through mistake, and not because he wished to disinherit him, omits to mention a posthumous child; and if the said posthumous child should be born after the death of his grandfather, but during the lifetime of the son, that is to say his own father, his testament will certainly be broken. If, however, it should be born after its father has become a civilian, the validity of the testament which has been broken will not be restored. But if it should be born while its father is still in the army, then, if the latter should desire the will to be valid, it will become so, just as if it had been executed a second time.

(3) If, however, a posthumous child should be born during the lifetime of its grandfather, this will not at once break the will of the father, but only where it survives its grandfather, while its father is still living, as it now for the first time becomes the heir of the latter. For this is the case because it never can break two wills at once, that is to say, those of its father and its grandfather.

34. Paulus, Questions, Book XIV.

The Divine Hadrian stated in a Rescript that the will of a soldier who preferred to die rather than to suffer pain, or the annoyances of life, was valid, and that his estate could be claimed by those entitled to it by law if he died intestate.

(1) A soldier who had been discharged began a will within the year but was unable to finish it. It can be said that, by this act, the will which he executed while in the army was rendered void, if it was drawn up in accordance with military law; otherwise it would not be legally rescinded if it was valid at Common Law.

(2) This distinction does not apply to the will of a soldier executed while in the service, for in whatever way he may make a will, it is rendered inoperative by a following one, as the wish of a soldier, however expressed, is a testament.

35. The Same, Questions, Book XIX.

Where a soldier leaves an imperfect will, the instrument when offered has the effect of a perfect one, for the testament of a soldier is perfected by the mere statement of his wishes. Where anyone makes several wills on different days, he is considered to make his will frequently.

36. The Same, Opinions, Book VI.

An estate is also held to be legally bequeathed where a codicil to a will is executed; hence, if the testator bequeaths half his estate by a codicil, the heir, appointed to all of it by the will, will be entitled to half, and any legacies left by the will must be divided in common, when they are paid.

(1) A soldier, after having appointed different heirs, some to what he obtained in the service and others to property otherwise acquired, subsequently designated still other heirs for his property obtained in the service. He is held to have taken from the first will whatever he bestowed by the second, but he is not considered to have changed his first will, even though but one heir was appointed thereby.

(2) A soldier, when drawing up his last will, not being aware that his wife was pregnant, made no mention of the unborn child. A daughter having been born after his death, the will appeared to have been broken, and the legacies not to be due. If, however, in the meantime, the appointed heir should have paid the legacies, praetorian actions would be granted the daughter to recover the property, on account of this unexpected event, and the appointed heir, since he was a bona fide possessor, will not be obliged to make good anything which he can not recover from the estate.

(3) A discharged soldier, at the time of his death, wished that a will which he had executed in accordance with the Common Law during his term of service should be void, and preferred to die intestate. It was decided that the appointments of heirs and the substitutions for them would remain unaltered, but that those who claimed legacies under the will would be barred by an exception on the ground of bad faith, in accordance with the Common Law, and that the force of this exception would be regulated according to the standing of the persons who made the demand; otherwise, all other things being equal, the condition of the possessor is preferable.

(4) A soldier having made a will according to the Common Law, subsequently made one in accordance with military law disposing of all his property a year after his discharge from the service. It was held that the force of the first will was destroyed and could not be restored.

37. Paulus, Questions, Book VII.

A soldier, who was a freedman, appointed two heirs by his will, and one of them having refused to accept, the testator was held to have died intestate with reference to that particular share, for the reason that a soldier can die partly testate, and praetorian possession can be acquired by a patron ab intestato; for unless the intention of the deceased was proved to have been that if one of the heirs should reject his portion, the entire estate should go to the other heir.

38. The Same, Questions, Book VIII.

When it is said that if a soldier should die within the year after his discharge, his will, which he executed in accordance with military law, is valid; this is true even if the condition of his appointment is to be fulfilled after the lapse of the year, provided that he dies within twelve months. Therefore, if he should appoint a substitute for his son who was his heir, it will make no difference when the son dies, for it is sufficient if his father should die within the year.

(1) A soldier executed a will, and afterwards, having been discharged for no dishonorable reason, he again enlisted in another corps of soldiers; the question arose whether the will which he had executed while in the service, would be valid. I ask whether he executed it in accordance with military law, or the Common Law. If he executed it according to the Common Law, there is no doubt that it would be valid; but if he made it as a soldier, I thought it proper to inquire when he enlisted the second time, after he was discharged, whether within the year, or afterwards. I ascertained that he enlisted within the year, and, therefore, as his will was still valid in accordance with military law, and he could make another under the same law, would his will be valid after the year had elapsed, if he should die? I have some doubt on this point, for the reason that his other term of service was more recent. It is, however, better to hold that the will is valid, the two terms of service being, so to speak, united. I do not allude to him who, having enlisted a second time, stated that he wished his will to be valid; for in this instance, he made it, as it were, during his second term of service, in the same way as where a civilian makes one and afterwards becomes a soldier.

39. The Same, Questions, Book IX.

Where a son under paternal control, while serving in the army, was captured and died in the hands of the enemy, we say that the Cornelian Law is also applicable to his will. We may ask, however, whether his father died before him at home, and if a grandson was born to him by the said son, whether the will of the father would be broken, in like manner. It must be held that the will will not be broken, for the reason that he is considered to have died at the very time that he was taken prisoner.

40. The Same, Opinions, Book XI.

Lucius Titius, a soldier, dictated his will to his secretary to be made from notes, and before it was fully written out he died. I ask whether this dictation can be valid. I answered, that it is conceded to soldiers to make their wills in whatever way they desire, and in whatever way they can, provided this is done so that it can be established by lawful evidence.

(1) It was also held that where a slave was entitled to a legacy (although under a condition), by a will drawn up in accordance with military law, he could also demand his freedom.

(2) An opinion was likewise given in the following case. Lucius Titius, a soldier, stated in his will: "Let Pamphila be the heir to my entire estate", and then by another clause, left the same bequest to Sepronius, one of his comrades, and charged him to manumit the said slave. I ask whether Pamphila would be his heir, just as if she had received her freedom directly at the hands of the testator? The answer was, that it should be understood that the soldier did not know, at the time when he appointed his female slave his heir, that she would obtain her freedom by virtue of her appointment; and therefore he afterwards had no reason to request his comrade to manumit her, since she had become free and his heir under the first clause, and as the bequest was of no force or effect, the intention of the testator was not interfered with.

41. Tryphoninus, Disputations, Book XVIII.

A soldier can appoint an heir as follows: "As long as Titius lives let him be my heir, and after his death, let Septicius be my heir". If, however, he should say: "Let Titius be my heir for ten years", without appointing any substitute, he will be intestate after the lapse of ten years; and, for the reason we have already stated, as a soldier can appoint an heir from a certain time, and up to a certain time, the result is that before the time arrives when the heir appointed can be admitted to the succession it will become intestate; and since a soldier is permitted to bequeath a portion of his property, so also, by the same privilege, he can remain intestate for a period of considerable extent.

(1) A woman who is suspected of being dissolute cannot take anything under the will of a soldier, as the Divine Hadrian stated in a Rescript.

(2) A soldier cannot appoint a guardian for a minor who is under the control of another.

(3) If a soldier should disinherit his son, or, knowing him to be his son, should pass him over in silence, the question arises whether he can charge a substitute with the payment of a legacy. I held that he could not do so, even though he left an ample legacy to the disinherited son.

(4) A soldier can substitute anyone for an emancipated son; the former, however, can only exercise his right with reference to property which came from the father to the son, and so far as any which he already possessed, or subsequently acquired, is concerned. For if, during the lifetime of his son, or while the grandfather was still living, he made the substitution, no one can say that the estate obtained from the grandfather will belong to the substitute. Where the estate of a soldier was not entered upon, the question arises whether the substitution which he made for a minor will be valid. The result is, that is must be considered valid, because a soldier is allowed to make a will for his son, even though he may not make one for himself.

42. Ulpianus, On the Edict, Book XLV.

Anyone can make a will by military law, from the very day he entered the service, but he cannot do this before; hence those who are not yet actually enrolled in the army, even although they may have been drafted and travel with it at the public expense, are not yet considered soldiers, as to be such they must be included in the ranks.

43. Papinianus, Opinions, Book VI.

A son under paternal control, who belongs to the Equestrian Order and is enrolled in the retinue of the Emperor, as soon as he is ordered to join the army, can make a will disposing of his castrense peculium.

44. Ulpianus, On the Edict, Book XLV.

The Rescripts of the Emperors disclose that if anyone belonging to the class whose members are not allowed to make a will in accordance with military law happens to be in the enemy's country, and dies there, he can make a will in any way that he wishes, and in any way that he can, whether he is the Governor of the province, or some one else who has no right of testation under military law.
 


Tit. 2. Concerning the acquisition or rejection of estates.


 
1. Paulus, On Sabinus, Book II.

Anyone who has the right to acquire an entire estate cannot, by dividing it, accept only a portion of the same.

2. Ulpianus, On Sabinus, Book IV.

If anyone should be appointed an heir to several portions of the same estate, he cannot accept some of them and reject the others.

3. The Same, On Sabinus, Book VI.

As long as the first heir who was appointed can enter upon an estate, the substitute cannot do so.

4. The Same, On Sabinus, Book III.

An heir who has no right to enter upon an estate is not considered to have refused to do so.

5. The Same, On Sabinus, Book I.

It is established that a person who is dumb or deaf, even if he was born so, can act as an heir and obligate himself for an estate.

(1) It is also settled that anyone who is interdicted by law from disposing of his property, if he should be appointed an heir, can enter upon an estate.

6. The Same, On Sabinus, Book VI.

Anyone who is subject to the authority of another cannot bind him under whose control he is for the debts of the estate, without his consent, unless the father is liable for the debts.

(1) It is established with reference to the possession of property, that that shall be considered to have been ratified which a son has acknowledged contrary to the will of his father, while under the control of the latter.

(2) Where, however, the estate of a mother is transferred to her son as heir-at-law, in accordance with the Orphitian Decree of the Senate, the same rule should be adopted.

(3) If the son did not accept the estate, but, nevertheless, remained in possession of the same for a considerable time, he must be held to have accepted it; as the Divine Pius and Our Emperor stated in a Rescript.

(4) Where he who thought he was a son under paternal control enters upon an estate by the order of his father; it is held that the said estate was neither acquired by him, nor by his father who ordered him to accept it, even though the father may have died after doing so, if he enters upon the estate after his father's death, and thereby bound himself for its debts; as Julianus states in the Thirty-first Book of the Digest. For when anyone is in doubt as to whether or not he is a son under paternal control, and by the death of his father becomes his own master, the better opinion is that he can enter upon the estate.

(5) Sometimes a son under paternal control acquires an estate without acceptance from him under whose control he is; for instance, where a grandson is appointed the heir instead of a disinherited son, and his father constitutes him his heir, and even his necessary heir, without his formal acceptance of the estate.

(6) Where anyone is appointed an heir by a disinherited son, he does not make him his necessary heir, but he should order him to enter upon the estate, since he was not under his control at the time of his death; for no one can become a necessary heir by the act of a party who himself cannot acquire the estate.

(7) Celsus stated in the Fifteenth Book of the Digest that where anyone, through fear of corporeal punishment, or impelled through any other kind of duress, pretends to accept an estate;. if he is a freeman, he is not considered an heir, and if he is a slave, he does not make his master an heir.

7. Paulus, On Sabinus, Book I.

If anyone should appoint a son under paternal control his heir, and afterwards says: "If the said Titius, a son under paternal control, shall not be my heir, let Sempronius be my heir"; and the son enters upon the estate by the order of his father, the substitute will be excluded.

(1) If the son, before he knew that he was the necessary heir of his father, should die leaving a son as his necessary heir, the grandson should be permitted to reject the estate of his grandfather for the reason that this privilege would also have been granted to his father.

(2) In every succession, anyone who is the heir to a party who is the heir of Titius, is also held to be himself the heir of Titius, nor can he reject the estate of the latter.

8. Ulpianus, On Sabinus, Book VII.

In accordance with the custom of our country, neither a male nor a female ward can bind themselves without the authority of their guardian. It is, however, perfectly evident that the acceptance of an estate, even if it is not solvent, renders us liable for its debts. In this instance, we refer to an estate to which parties do not succeed as necessary heirs.

(1) A child not arrived at the age of puberty, who is under the control of another and enters upon an estate by order of the latter, acquires it, even though he is not legally capable of deliberation.

9. Paulus, On Sabinus, Book II.

Where a ward is competent to act for himself, even though he may be of such an age as to be unable to understand the meaning of the acceptance of an estate (although a boy of this age is not supposed to know, or to be able to decide anything, any more than an insane person) he can, nevertheless, acquire an estate by the authority of his guardian; for this privilege is granted to wards by way of favoring them.

10. Ulpianus, On Sabinus, Book VII.

Where an heir to an entire estate intends only to accept a portion of the same, he is held to have acted as heir to the entire estate.

11. Pomponius, On Sabinus, Book III.

Power is granted to children under the age of puberty to absolutely reject the estates of their fathers, but those who have arrived at puberty can only do so where they have not meddled with the affairs of the estate.

12. Ulpianus, On the Edict, Book XI.

When a child has not interfered with the affairs of his father's estate, whether he is of age or a minor, it is not necessary for him to make application to the Praetor, but it is sufficient if he has not concerned himself with the business of the estate. It was stated in a rescript in the Semestria to Vivius Soter and Victorinus: "It is not necessary to make complete restitution to wards, on account of a contract made by their grandfather, if their father intended that they should not accept his estate, where nothing has been done, nor any business transacted in behalf of the heir."

13. The Same, On Sabinus, Book VII.

A party who has been appointed an heir, or one to whom the estate has descended by law, loses it by rejecting it. This is true only where the estate is in such a condition that it can be entered upon, but where the heir is appointed under a condition, and rejects the estate before the condition has been fulfilled, his act will be void, no matter what the condition may be, and even if it is dependent upon his will.

(1) Where an heir is in doubt as to whether the testator is living or not, and rejects the estate, his act is void.

(2) In like manner, if a substitute rejects an estate before the appointed heir makes up his mind with reference to it, his rejection will not be valid.

(3) If a son under paternal control, or a father, rejects an estate neither will prejudice the rights of the other, but both of them can reject it together.

14. Paulus, On Sabinus, Book II.

The same rule also applies where an estate descends by law to children.

15. Ulpianus, On Sabinus, Book VII.

He who thinks that he is the necessary heir, when he is a voluntary heir, cannot reject an estate; for, in this instance, more weight is attached to opinion than to the truth.

16. The Same, On the Edict, Book XXIV.

And, on the other hand, anyone who thinks that he is a necessary heir cannot become a voluntary heir.

17. The Same, On Sabinus, Book VII.

Nor can anyone who thinks that a will is void, or forged, reject it. But if it is certain that a will which is said to be forged is not so; since by entering upon the estate, he can acquire it, so also by rejecting it he will lose it.

(1) Where an appointed heir, who is at the same time heir-at-law, rejects the estate by reason of his appointment, he cannot be admitted to the succession on account of his being the heir-at-law; if, however, as the heir-at-law he should reject the estate, knowing at the same time that he has been appointed heir to the same, it should be held that he has rejected it in both capacities. If he was not aware of his appointment, his rejection will not prejudice him in either respect, not with reference to the testamentary succession, as he did not reject this, nor with reference to the legal succession, as it was not yet granted him.

18. Paulus, On Sabinus, Book II.

Anyone who can acquire an estate can also reject it.

19. The Same, On the Edict, Book LIX.

Where anyone desires to enter upon an estate, or to claim praetorian possession of the same, he must be certain that the testator is dead.

20. Ulpianus, On the Edict, Book LXI.

He is held to act as an heir who does anything in the capacity of one. And, in general, Julianus stated that he only acted in the capacity of heir who transacted any business as such; but to act as heir is not so much a matter of fact as of intention, for he must intend to perform the act as an heir. Where, however, he does anything on account of filial affection, or to protect the property of the estate, or where he acts, not as the heir or the owner, but by some other right, it is evident that he should not be held to have acted as heir.

(1) And therefore children who are necessary heirs are accustomed to allege that, where they transact any business for the estate, they do so only on account of natural affection or for the sake of protecting the property, or because it is theirs; as, for instance, where a child buries his father, or does only what is just and is required of him. If, however, he proceeds with the intention of becoming an heir, he acts in the capacity of one, for if, induced by filial reverence, he does anything, he will not be held to have acted as an heir. In instances of this kind, he provides food for slaves belonging to the estate, or for beasts of burden, or sells them. If he does this in the capacity of heir, he acts as heir, and if he does not do so, but merely attempts to preserve the property because he believes it to be his; or, while he is deliberating what course he shall pursue, he merely takes measures that the property of the estate may be preserved; and if he should conclude not to conduct himself as heir, it is evident that he cannot be held to have acted in that capacity. Hence, if he has either leased or repaired any lands or houses belonging to the estate, or has done anything else of this kind, not with the intention of acting as heir, but merely for the benefit of the substitution, or of the heir ab intestato, or sells property which is perishable; he is not in the position of a person who acts in the capacity of an heir, because he had not the intention of doing so.

(2) If, however, he should claim any property as heir which does not pass to the foreign heir, let us see whether he becomes liable for the debts of the estate; for instance, where he claims the services of a freedman of his father, which a foreign heir cannot claim, but he can obtain by demanding them; it is established that he does not act as an heir; for such a demand can be made by the creditors, and especially for future services to be rendered.

(3) A son who buries a corpse in the family tomb of his father, should not, by this act, be held to have rendered himself liable to the creditors of the latter; which opinion is held by Papinianus, and is the more equitable one, although Julianus states the contrary.

(4) Papinianus says that certain authorities hold that where a son has been appointed the heir of his father, and declines to accept the estate, if he receives money from a slave who was to be free on condition of payment, he can be sued by the creditors of the estate, whether the money paid was, or was not, a part of the peculium of the slave; because it was received, as it were, by the wish of the deceased, for the purpose of complying with the condition. Julianus thinks that the same rule will apply even where the son did not accept the estate. Finally, Papinianus says that he acts in the capacity of heir only where he is the sole heir, but if he should have a co-heir, and the latter enters upon the estate, the son who received the money from the slave should not be compelled to defend actions brought by the creditors; for, as he rejected the estate as a son, he should also be entitled under Praetorian Law to the rights enjoyed by an emancipated child who rejects an inheritance. Hence, if the slave had been expressly ordered by the testator to pay the money to his son, he could obtain his freedom even if he did not pay him. He is therefore said to have acted in the capacity of heir, since he received what he could not obtain without assuming the name and rights of an heir.

(5) Where a son brings an action against a person who has violated a tomb, even though it belongs to the estate, he is not considered to have interfered with the affairs of the same, as he takes nothing from the estate of his father; for the object of this action is a penalty and punishment rather than the recovery of property.

21. The Same, On Sabinus, Book VII.

Where a stranger has in his possession property belonging to an estate which he has purloined or stolen, he does not act in the capacity of heir, for his act shows a contrary intention.

(1) Sometimes the mere intention of the heir makes him responsible for the estate; as, for instance, when, in the capacity of heir, he makes use of some property which does not belong to it.

(2) Still, no one can acquire an estate by acting in the capacity of heir, where it has already descended to him. But we say that in those cases where we have held that the rejection of an estate is void, it must be noted that where the party acts as heir, his acceptance will also be void.

(3) Where anyone does not know to what portion of the estate he has been appointed heir, Julianus says that this does not prevent him from acting in that capacity. This opinion is also approved by Cassius, if the party was aware of the condition under which he was appointed; provided that the condition has been complied with. But what if he did not know that the condition had been complied with? I think that he can enter upon the estate in the same way that he could if he was not aware that the portion of his co-heir, for whom he was substituted, had been increased by the rejection of the latter.

22. Paulus, On Sabinus, Book II.

If anyone entitled to the legitimate succession, believing that the deceased was his slave should, in consequence obtain his peculium, it is held that he will not be liable to the estate. We therefore say (as Pomponius holds), that the same rule applies if he should take possession of the estate of one whom he thought to be his freedman, when, in fact, the latter was freeborn. For, as anyone by acting in the capacity of heir, renders himself liable to the estate, he should ascertain under what title the said estate belongs to him; for example, if the next of kin is appointed heir by a valid will, and before the latter is produced, and while he thinks that the testator died intestate, even though he should act in every respect as the owner, he, nevertheless, will not be the heir. The same rule of law will apply where he is appointed heir by a will not properly executed, and the latter having been produced, he thinks that it is legal, still, he will not acquire the estate; even though he should administer all the property belonging to it as the owner thereof.

23. Pomponius, On Sabinus, Book III.

Where anyone rejects an estate or a legacy, he must be certain of his rights.

24. Ulpianus, On Sabinus, Book VII.

The question arose whether a person is held to have acted in the capacity of heir who receives a sum of money as compensation for rejecting an estate. It was decided that he who received the money in consideration of relinquishing the estate did not act as heir; but that he would still be liable to the penalty imposed by the Edict of the Praetor. Therefore whether he received the money from the substitute, or from the heir-at-law, he is held to have received it mortis causa. The same rule will apply if he did not receive the money, but it was merely promised to him, for he obtains it by virtue of the stipulation, mortis causa.

25. The Same, On Sabinus, Book VIII.

When a slave belonging to another, who is serving me in good faith, enters upon an estate by my order, he will commit an act which is void, and he will not acquire the said estate for me, nor will such an act be valid if performed by a slave of whom I am the usufructuary.

(1) A slave belonging to a municipality, corporation, or a decuria, who is appointed an heir, can enter upon the estate after having been manumitted or alienated.

(2) If the said slave belongs to the Treasury, he can enter upon the estate by order of the Imperial Steward, as has been frequently stated in rescripts.

(3) Where it is evident that someone has become a penal slave, by having been condemned to fight with gladiators, or wild beasts, or to work in the mines, and he is appointed an heir, his appointment will be considered as not having been made, as the Divine Pius stated in a Rescript.

(4) The order of a man who has another under his control does not resemble the authority of a guardian which can be interposed after the transaction has been completed, but should precede the acceptance; as Gaius Cassius says in the Second Book of the Civil Law. He also thinks that this order can be communicated by means of a messenger, or by a letter.

(5) Should the order, however, be given generally, as follows: "Whatever estates may pass to you", or specifically? The better opinion is (as Gaius Cassius holds) that it should be given specifically.

(6) The question also arises whether the order can be given expressly with reference to the estate of a man still living. I think that where it is given with reference to the estate of a person who is still living, it should not be obeyed. It is evident that if the report was current that Lucius Titius was dead, or if the will was not yet opened, and it was still uncertain whether the son was designated the heir, the party appointed heir could be ordered to enter upon the estate.

(7) But what if the order should be given to "acquire the estate"? Would it be held that the party had been directed to enter upon it? What if he should be ordered to "apply for praetorian possession of the estate", or "to sell the property belonging to it"? Or what if the son should enter upon the estate, after the father had ratified his demand for praetorian possession of the same? Or what if the son should enter upon the estate, after having been ordered to act in the capacity of heir? Can it be doubted that he would be held to have entered upon it by order of his father? Indeed, the better opinion is, that in all these cases, attention should be called to the entry upon the estate.

(8) A father wrote to his son as follows: "I know, my son, that you will watch with prudence over the estate of Lucius Titius, which has been conferred upon you." I think that the son enters upon the estate by order of his father.

(9) What if he ordered, as follows: "Enter upon the estate, if it is expedient for you to do so"; "If you think it is expedient to enter upon the estate, do so"? The entry upon the estate will be by order of the father.

(10) If a father should order his son to enter upon the estate, "In the presence of Titius", or with the consent of Lucius Titius, I think that the order is given in accordance with law.

(11) Where, however, the order is given to a son as heir to the entire estate, and it should be ascertained that he is heir only to a portion of the same; I do not think that he can enter upon it under such an order. But, if his father orders him to accept only a portion of the estate, he can accept the whole of it. The case is different where he orders him to enter upon it as ab intestato, and he does so by virtue of a will, for I think that then his act is not valid; but if the order was to enter upon the estate by virtue of a will, the son can likewise do so ab intestato; since he does not make the condition of his father any worse. The same rule applies where the father directs the son to enter upon the estate as an appointed heir, and it is ascertained that he is a substitute, or vice versa.

(12) Where, however, a father directs his son to enter upon an estate, he being a substitute of a child under the age of puberty, the order will not be sufficient.

(13) It is clear that if the order was as follows: "If any estate passes to you by the will of Lucius Titius", it can be maintained that he can enter upon it under an order of this kind.

(14) But if after he has given the order, he should change his mind before the son has entered upon the estate, and he does so, his act will be void.

(15) Likewise, if he should give his son to be arrogated before the latter enters upon the estate, the estate will not be acquired by him.

26. Paulus, On Sabinus, Book II.

If I am appointed an heir together with my slave or my son, and I order my son or my slave to enter upon the estate, Pomponius says that I will immediately become the heir through my own appointment. Marcellus and Julianus both concur in his opinion.

27. Pomponius, On Sabinus, Book III.

Labeo says that no one can act as heir during the lifetime of the person, the administration of whose estate is in question.

28. Ulpianus, On Sabinus, Book VIII.

Aristo thinks that the Praetor should give the heir who is deliberating with reference to his acceptance of the estate the right to enter upon the same, in order to demand the papers of the deceased from the party with whom they have been deposited.

29. Pomponius, On Sabinus, Book III.

Where anyone who has been appointed an heir is prevented by another heir, who was appointed along with him and has already entered upon the estate, from examining the papers of the deceased, from which he may ascertain whether he ought to accept it or not, he is not held to have acted in the capacity of heir.

30. Ulpianus, On Sabinus, Book VIII.

Where a man absent on an embassy is not able to order his son who was appointed an heir, and is in a province, to enter upon the estate; the Divine Pius stated in a Rescript addressed to the Consuls that relief should be granted him when his son died, for the reason that he was absent on business for the State.

(1) Where it is said that: "The next of kin to a posthumous child cannot enter upon the estate so long as the woman is pregnant, or is thought to be so, but if he knows that she is not pregnant, he can enter upon it"; it is understood that this is applicable to the next of kin to the unborn child, who, when born, will be the proper heir of the deceased. These words not only have reference to persons dying testate, but also to intestates. And the same must be understood to apply to an unborn child who will be either the proper heir, or a blood relative; since the former at the time of the death is considered as already born, so far as deferring the succession of more remote heirs and making a place for itself therein if it should be brought forth, is concerned. The same rule applies to the possession of property granted by the Praetorian Edict. Finally, the Praetor places the unborn child in possession of the estate.

(2) Therefore, if I think that the woman is pregnant, or if she actually is pregnant, and the child which she is to bring forth will be the proper heir of the deceased, I cannot enter upon the estate, as the will is liable to be broken by the birth of the heir, unless you suppose the case that the unborn child is either appointed an heir, or disinherited.

(3) The statement, "If he thinks that she is pregnant", must be understood to mean if she asserts she is in that condition. But what if she should not say that she is pregnant, but denies it, and others say that she is in that condition? The estate cannot then be entered upon, even though you may suppose midwives to confirm the existence of her pregnancy. What if the heir alone thinks that the woman is pregnant? If he has good reason for thinking so, he cannot enter upon the estate; but if his opinion agrees with that of many others he can do so.

(4) But what if the woman was pregnant, and the heir thought that she was not, and entered upon the estate, and afterwards an abortion was produced? There is no doubt whatever that his act will be void. Hence this opinion will benefit the heir as often as it agrees with the truth.

(5) Where, however, the woman herself is appointed heir, and pretends to be pregnant, she will acquire the estate by entering upon it. On the other hand, she will not acquire it, if she thinks she is pregnant and this is not the case.

(6) It is certain that a proper heir is entitled to the entire estate, even though he thinks that the woman is pregnant, when this is not true. What course must be pursued if she is pregnant of one child? Will it be heir to half of the estate, whether you suppose the case of the appointment of a posthumous child, or that the father died intestate? This opinion which Tertullianus states in the Fourth Book of Questions, was held by Sextus Pomponius; for he thought that when the woman was not pregnant the proper heir was entitled to the whole estate; as when she is only pregnant of one child, a second cannot be formed in accordance with the nature of the human race, for this only happens a certain time after conception, and the heir already born, even though he was not aware of the fact, will be entitled to half, and not to a fourth of the estate, as is held by Julianus.

(7) When a son under paternal control or a slave is appointed an heir, shall the knowledge or opinion of the master or the father as to the pregnancy be adopted? Suppose the father thinks that the woman is pregnant, and the son is certain that she is not, and, in accordance with his belief, he enters upon the estate, will he obtain it? I think that he will, but in the opposite case I hold that he will not do so.

(8) If I am certain that a will is not forged, void, or broken, although it is said to be, I can enter upon the estate.

31. Paulus, On Sabinus, Book II.

Where an heir is appointed along with a posthumous child, the remainder of the estate bequeathed to the latter will accrue to the other heir, if it is certain that the woman is not pregnant, even though the heir may be ignorant of the fact.

32. Ulpianus, On Sabinus, Book VIII.

An appointed heir cannot enter upon the estate if he thinks that the testator is living, even though he may already be dead.

(1) But even if he knows that he has been appointed an heir, but is ignorant as to whether his appointment was absolute or conditional, he cannot enter upon the estate, even though he may have been appointed heir absolutely, or if he was appointed under a condition, even though he may have complied with it.

(2) Where, however, the heir is uncertain as to the condition of the testator, namely, as to whether he was the head of a household or a son under paternal control, he cannot enter upon the estate, even though his condition was in fact such as to enable him to make a will.

33. Paulus, On Plautius, Book XII.

When the heir is in doubt as to whether the deceased died in the hands of the enemy, or as a Roman citizen at home, since in both cases he has the right to enter upon the estate, and is in a condition to do so, it must be said that he can enter upon it.

34. Ulpianus, On Sabinus, Book VIII.

Where anyone is in doubt as to his own condition and whether he is a son under paternal control, it has already been stated that he can acquire an estate. But why can he enter upon an estate if he is ignorant of his own condition, but if he is ignorant of that of the testator he cannot do so? The reason is that he who is ignorant of the condition of the testator does not know whether his will is valid or not; but he who is aware of his own is certain of the validity of the will.

(1) If an heir was appointed absolutely, but thinks that he was appointed under a condition, and, after complying with it, enters upon the estate, can he acquire it? It follows that he can legally enter upon it, especially when the opinion which he entertains places no obstacle in his way, nor causes him any risk. This would be more readily admitted, where someone who was absolutely appointed thought that he was appointed under a condition, and that the condition which depended upon some event had been fulfilled; for this opinion presented no obstacle to his acceptance of the estate.

35. The Same, On Sabinus, Book IX.

Where anyone has been appointed an heir to a portion of an estate, and was afterwards substituted for Titius, his co-heir, and acted in the capacity of heir before the estate vested in him by virtue of the substitution; he will also be heir on account of the substitution; since the share of his co-heir accrued to him without his consent. I hold that the same rule will apply where a son under paternal control or a slave, by order of his father or master, enters upon an estate, and, after having been emancipated or manumitted, acquires it by reason of the substitution, for they become heirs through the effect of the preceding appointment.

(1) Where a father, who was excluded on account of the condition imposed upon him not having been fulfilled, orders his son to enter upon the estate, it must be held that he cannot, by this means, obtain his share.

(2) But when he orders one of two sons to enter upon the estate, he must also order the other to do so.

36. Pomponius, On Sabinus, Book III.

If a father or a master should enter upon his share of an estate, he must order his son or his slave, who is his co-heir, to enter upon it also.

37. The Same, On Sabinus, Book V.

An heir succeeds to every right of the deceased, and not merely to the ownership of certain property, for any liabilities which were contracted also pass to him.

38. Ulpianus, On the Edict, Book XLIII.

Where there are two necessary heirs, one of whom refuses to accept his share of the estate, and the other, after the refusal of the first, busies himself with its affairs; it must be held that he cannot decline to assume all the liabilities of the estate; for he either knew, or could have ascertained, that when the other refused he would be liable for the indebtedness, and he is held to have entered upon the estate under this condition.

39. The Same, On the Edict, Book XLVI.

As long as an estate can be entered upon by virtue of a will, it does not descend as intestate.

40. The Same, Disputations, Book IV.

The question arose, where a son had not obtained any portion of his father's estate, but had still received something, or performed some act in accordance with his father's will, whether he could be compelled to be liable to his father's creditors, just as if he had been substituted for a son under the age of puberty? In a case of this kind, Julianus slated in the Twenty-sixth Book of the Digest that he would come within the scope of the Edict, if he had meddled with the affairs of the minor's estate, for where anyone opposes the will of a parent, he ought not to obtain anything from his estate. Marcellus, however, makes a very nice distinction in this instance, since it makes a great deal of difference whether the son was appointed heir to the entire estate of his father, by the will of the latter, or only to a portion of the same; as if he was only an heir to a portion, he could obtain the estate of the minor after it had been separated from that of the father.

41. Julianus, Digest, Book XXVI.

If a son should reject the estate of his father, and, acting in the capacity of heir, meddles with that of his disinherited brother, he can obtain the said estate by virtue of the substitution.

42. Ulpianus, Disputations, Book IV.

Julianus says in the Twenty-first Book of the Digest that if a minor rejects the estate of his father, and someone appears as his heir, the latter cannot be compelled to be liable to the father's creditors, unless he was substituted for the said minor; for he is inclined to believe that in this case the substitution must be responsible for the father's debts. This opinion is very properly rejected, by Marcellus, as being opposed to the interest of the minor, who himself, at all events, can have a successor; for anyone would enter upon the estate with great reluctance if he was apprehensive of being liable for the debts of the father. Otherwise, he says, if he had a brother who rejected the will in order to obtain the estate as heir-at-law, he could do so with impunity; for he would not be held to have intended to evade the Edict, which provides for this, in order to prevent the estate of the minor from being burdened with the debts of the father. What, however, was stated with reference to the brother, I think should be understood to apply to the brother of the testator, and not to that of the minor. But if another brother was substituted for the minor, he would undoubtedly be his necessary heir.

(1) If a son, after the death of his father, should continue to belong in the same firm of which he was a member during the lifetime of his father, Julianus very properly says, by way of distinction, that it makes a difference whether he merely finishes some business which had been begun by his father, or he himself does something which is entirely new; for where he commences something entirely new which is connected with the partnership to which he belongs, he will not be considered to have interfered with the estate of his father.

(2) If a son should manumit a slave that belongs to his father, he will undoubtedly be held to have interfered with his father's estate.

(3) The following case has been suggested, namely: A son purchased slaves from his father with his castrense peculium, and was appointed heir by his father and charged to manumit said slaves. The question arose, if he should reject his father's estate, and manumit the slaves, would he be considered to have interfered with the estate of his father? He says that unless it was evident that he had manumitted them while acting as heir, he should not be apprehensive of being held responsible for having interfered with the estate.

43. Julianus, Digest, Book XXX.

An heir cannot, by means of a slave belonging to an estate, acquire a share of said estate, or any property forming part of the same.

44. The Same, Digest, Book XLVII.

Whenever a minor is the heir of his father, and refuses to accept his estate, although the property of the deceased passes into the hands of his creditors, still, whatever the minor has done in good faith should be confirmed. Therefore, if anyone should purchase a tract of land from a ward, with the consent of his guardian, relief should be granted him; and it makes no difference whether the ward is solvent or not.

45. The Same, On Urseius Ferox, Book I.

The acceptance of an estate is not included in the service of a slave.

(1) Therefore, if a dotal slave should enter upon an estate, the wife can recover it in an action on dowry, even though the property acquired by the labor of dotal slaves belongs to her husband.

(2) Where a partnership for profit and gain is entered into, each partner must pay into the common fund whatever he earns by his labor, but each one can acquire an estate for himself.

(3) Moreover, a slave in whom someone has an usufruct cannot enter upon an estate by order of him who enjoys said usufruct.

(4) The opinion has been stated by certain authorities that if a freeman who is serving me as a slave in good faith should be appointed an heir on my account, he can enter upon the estate by my order. This is true where it is understood that he does not acquire the estate as the result of his own labor, but on account of his having charge of my property; just as in making a stipulation and by accepting delivery he acquires property for me by virtue of his transacting my business.

46. Africanus, Questions, Book I.

A will is said to be forged even if the heir himself is accused of having fabricated it, since he must be sure that he did not commit the forgery in order to be able to legally enter upon the estate; but where another is accused of having done this without the knowledge of the heir, he cannot enter upon the estate if there is any doubt of the will being genuine.

47. The Same, Questions, Book VI.

A certain man ordered his slave, who had been appointed an heir to accept the estate, and before he did so, the master became insane. It is said that the slave cannot legally enter upon the estate, as an estate cannot be acquired without the consent of his master, and an insane person cannot give his consent.

48. Paulus, Manuals, Book I.

Where one person directs another to demand praetorian possession of an estate for him if he should deem it advisable, and, after the demand is made, he becomes insane, he will, nevertheless, acquire possession of the property. If, however, before the demand is made, he whom he ordered to make it should become insane, it must be said that he will not immediately acquire possession of the estate. Therefore, the demand for praetorian possession should be confirmed by ratification.

49. Africanus, Questions, Book IV.

It is held that a ward, who enters upon an estate even with the consent of his guardian who does not transact his business, is rendered liable.

50. Modestinus, On Inventions.

Where a guardian by a letter orders the slave of his ward to enter upon an estate, and dies after having signed it, before the slave has entered upon the estate in obedience to the letter, no one can say that the ward will subsequently be liable for the debts of the estate.

51. Africanus, Questions, Book IV.

Where an heir is appointed by two wills executed by the same testator, and is in doubt as to whether the last one may not be forged, it is held that he cannot enter upon the estate by virtue of either.

(1) A son under paternal control, having been appointed an heir, notified his father that the estate appeared to him to be solvent. His father replied that he had been informed that there was a question as to its solvency, and therefore that he should examine it more carefully, and accept it if he found that it was solvent. The son having received the letter of his father, entered upon the estate. It was doubted whether he did so according to law. It may be said to be more probable that if he was not thoroughly convinced that the estate was solvent, his father would not be liable.

(2) If anyone should say, "If the estate is solvent, I will accept it", such an acceptance is void.

52. Marcianus, Institutes, Book IV.

A son that was under the control of his father who was insane was appointed an heir; the Divine Pius stated in a Rescript that he would be indulgent, and that if the said son should enter upon the estate, it would be considered just as if his father had done so, and that he would allow him to manumit the slaves belonging to said estate.

(1) When anyone is appointed an heir to one portion of an estate absolutely, and to the remaining portion under a condition, if he enters upon the estate while the condition is still pending, he will become the heir to the whole of it; for the reason that he will be the heir under all circumstances, unless he has a substitute for that part of the estate which depends upon the fulfillment of the condition.

53. Gaius, On the Lex Julia et Papia, Book XIV.

Where an heir has been appointed to two shares of an estate, to one absolutely, and to the other conditionally, and accepts the share left to him absolutely, and then dies, and the condition is subsequently fulfilled, that share of the estate dependent upon it will also belong to his heir.

(1) Where anyone becomes the heir to one share of an estate, he will also even without his consent, acquire the shares of his co-heirs who refuse to accept them; that is to say, their shares will tacitly accrue to him, even contrary to his will.

54. Florentinus, Institutes, Book VIII.

Where an heir enters upon an estate, he is understood to have succeeded the deceased from the date of his death.

55. Marcianus, Rules, Book II.

When a necessary heir rejects the estate of his father, his co-heir whether he be a proper heir, or a stranger, can either accept the entire estate or reject it; and where he cannot reject it himself, he can do so on account of its refusal by his co-heir. If, however, the creditors should say that they will be content with his share because he cannot be discharged from liability unless he be allowed to make his choice, they should relinquish the other's share in order that the rights of action growing out of it may be assigned to the co-heir who is sued.

56. Ulpianus, On the Edict, Book LVII.

Where one of two heirs meddles with an estate and dies, and afterwards the other rejects it, his heir will be entitled to the same choice that the deceased himself would have had; which is the opinion of Marcellus.

57. Gaius, On the Provincial Edict, Book XXIII.

The Proconsul gives necessary heirs not only those who are under the age of puberty but also all over that age the power to reject an estate; so that although they are liable to the creditors of the same under the Civil Law, still, an action is not granted against them if they wish to relinquish the estate. And, indeed, he grants this privilege to those under the age of puberty, even if they have busied themselves with the affairs of the estate, but he also grants it to those over that age, where they have not done so.

(1) Nevertheless, where minors under the age of twenty-five years have rashly interfered with the affairs of the insolvent estate of their father, relief can be granted them by the general terms of the Edict, with reference to minors who are under that age; for if, being strangers, they should enter upon an insolvent estate, complete restitution can be granted them in compliance with the Edict.

(2) This privilege, however, is not conferred upon slaves who are necessary heirs, whether they are over, or under, the age of puberty.

58. Paulus, Rules, Book II.

Where a slave is appointed heir to a portion of an estate, and his co-heir has not yet entered upon the estate, he becomes free and a necessary heir, because he does not receive his freedom from his coheir, but from himself; unless his appointment was made as follows: "When anyone becomes my heir, let Stichus be free and be my heir."

59. Neratius, Parchments, Book II.

Where anyone becomes the heir of his father, and is also appointed the substitute of a child under the age of puberty, he cannot reject the estate of the latter. This must be understood to apply, even if the heir should die during the lifetime of the minor, and then the minor himself should die; for whoever becomes the heir will necessarily also be the heir of the minor. For if the second heir binds himself against his will, it must be held that the estate of the minor is united with that of the father, and, by the right of accrual, it is acquired by whoever becomes the heir of the father.

60. Javolenus, On the Last Works of Labeo, Book I.

A father appointed his emancipated son his sole heir, and ordered that, if he should not become his heir, his slave should be free and be his heir. The son demanded praetorian possession of his father's estate on the ground of intestacy, alleging that he was insane, and in this way obtained possession of it. Labeo says that if his father should be proved to have been of sound mind when he made his will, the son will be his heir by virtue of the will. I think that this opinion is incorrect, for where an emancipated son declines to accept an estate given to him by will, it immediately passes to the substituted heir; nor can he be held to have acted in the capacity of heir who demands praetorian possession under another section of the Edict, in order to avoid taking advantage of his rights under the will. Paulus: "Proculus disapproves of the opinion of Labeo, and adopts that of Javolenus."

61. Macer, On the Duties of Governor, Book I.

Where a minor, after having accepted an estate, obtains complete restitution, the Divine Severus decreed that his co-heir is not bound to assume liability for the debts of his share of the estate, but that praetorian possession of the same should be granted to the creditors.

62. Javolenus, On the Last Works of Labeo, Book I.

Antistius Labeo says that if an heir is appointed as follows: "Let him be my heir, if he will make oath", he will, nevertheless, not become the heir at once, even though he should be sworn before he performs some act in that capacity; because by taking the oath he is held merely to have disclosed his intention. I think, however, that he has acted in the capacity of heir if he has taken the oath as such. Proculus entertains the same opinion, and this is our practice.

(1) Where a slave is appointed an heir, and is alienated after having been ordered by his master to accept the estate, before he does so, a new order by his second master, and not that of his old one, is required.

63. Notes of Marcellus, On the Rules of Pomponius.

An insane person cannot, under a will, acquire for himself the benefit of an estate, unless he is the necessary heir of his father, or the heir of his master; but he can acquire the estate through the agency of another, as for instance, by a slave or someone whom he has under his control.

64. Javolenus, On the Last Works of Labeo, Book II.

The slave of two masters was appointed an heir and ordered to enter upon the estate; if he did so, by the order of one of them, and then was manumitted, he could himself become the heir of half the said estate by entering upon the same.

65. Paulus, On Sabinus, Book II.

Hence, if the same slave was given a substitute in the following terms: "If he should not be my heir, let So-and-So be my heir", the substitute will be excluded from the succession.

66. Ulpianus, On the Edict, Book LXI.

Where a slave owned in common becomes the necessary heir of one, or several, or all of his masters, he cannot refuse to accept the estate of any of them.

67. The Same, Rules, Book I.

Where a slave owned in common is appointed an heir by a stranger, and enters upon the estate by the order of one of his masters; this does not, in the meantime, constitute him the heir of a larger amount than his master is entitled to. If, however, his other masters do not order him to accept the estate, their shares will accrue to him tacitly by operation of law.

68. Paulus, On the Lex Julia et Papia, Book V.

Where a slave is appointed sole heir, just as he is permitted, at the same time, to enter upon the estate by the order of all his masters, so also he can legally enter upon it by the order of each one of them, at different times; for, because he enters upon it frequently, he is considered to do so for the sake of convenience, and on account of the right of his masters, and not by virtue of the will, in order to prevent the right of one from being prejudiced by the undue haste of another.

69. Ulpianus, On the Edict, Book LX.

So long as the appointed heir is entitled to be admitted to the succession there is no place for the substitute, for he cannot succeed until the appointed heir has been excluded; the result therefore will be that the remedy of the Praetor becomes necessary, as well with reference to the refusal of actions to the heir, as to the granting of time to the substitute, because the latter cannot accept the estate, or perform any act as heir within the term granted by law to the one who was appointed. But a substitute appointed in the third degree, if the second heir dies while the first is deliberating, can himself succeed. Hence we wait for each one in order that the estate may pass to them, then, after this has taken place, we wait during the prescribed time, and if within this time the parties do not enter upon the estate, or perform any acts as heirs, we refuse them rights of action.

70. Paulus, On the Edict, Book LIX.

The following rule must be observed with reference to the different degrees of heirs, namely, where a will is produced, the appointed heir shall be given the preference; then we pass to those to whom the estate belongs by law, even if there should be but one heir who is entitled to it under both heads; for this order must be followed so that the heir may first reject the estate left him by will, and afterwards that given him by law. The same rule applies to praetorian possession to enable the testamentary heir to reject the estate, and the one who was entitled to it by law on the ground of intestacy.

(1) If, however, a condition is prescribed for the party to whom the estate will belong by law, he cannot come to any conclusion before the time appointed for the fulfillment of the condition has passed. Therefore it must be said, in this instance, if he answers that he does not desire that the estate shall belong to him by either title, praetorian possession of the estate of the deceased shall be granted his creditors.

71. Ulpianus, On the Edict, Book LXI.

If anyone should ransom a slave belonging to another from the enemy, and appoint him his heir with the gift of freedom, I am inclined to think that he will be free, and the necessary heir of the testator. For the latter, when he granted him his freedom, released him from his bond, and gave him power to enjoy the right of postliminium, so that he would not again become the slave of the party to whom he belonged before he was captured (for this would be extremely wicked), but to enable him to tender to his former master the price of his ransom, or remain obligated to him until he could pay it; which provision was introduced in favor of freedom.

(1) If a slave should be purchased under this law in order to be manumitted within a certain time, and he is appointed heir with the grant of his freedom, let us see if he will be entitled to relief if he declines to accept the estate. The better opinion is, that until the prescribed time has elapsed, he can become the necessary heir of the testator, and cannot reject the estate; but where the time has expired, he then becomes not the necessary, but the voluntary heir, and can reject it in the same way that he, to whom freedom is due under the terms of a trust can do.

(2) If a slave should give money to his master in order that he may be manumitted, I think that, by all means, relief should be granted him.

(3) The Praetor says: "If either a male or a female heir should have committed an act by which any property has been taken from the estate."

(4) If a proper heir should state that he is unwilling to retain the estate, and has removed any property belonging to it, he shall not have the privilege of refusal.

(5) The Praetor did not say: "If the heir should take anything"; but, "If either a male or a female heir should have committed an act by which any property has been taken from the estate." Therefore, if the heir should himself remove any of the property, or cause this to be done, the Edict will apply.

(6) We understand anyone to have taken the property belonging to an estate, to mean that he has concealed, embezzled, or squandered said property.

(7) The Praetor says: "By which any property has been taken from the estate", and the Edict applies whether one article or several have been taken, or whether the property in question forms a portion of the estate, or is connected with the same.

(8) A person is not held to have taken property, where he did not act with fraudulent or malicious intent. Nor will he be held to have done so who was mistaken with reference to the property, and was not aware that it belonged to the estate. Hence, if he took it without the intention of misappropriating it, or causing damage to the estate, but under the impression that it did not belong to it, it must be held that he should not be considered to have appropriated it to his own use.

(9) These words of the Edict apply to him who, in the first place, took some of the property and afterwards rejected the estate; but if he rejected it in the first place, and then misappropriated the property, let us see whether the Edict will apply. I think that it is better in this instance to adopt the opinion of Sabinus, namely, that the heir will be liable to the creditors of the estate in an action of theft; for where the heir has refused the estate, he afterwards becomes liable on account of the crime.

72. Paulus, On Plautius, Book I.

If an heir should be appointed as follows: "Let him enter upon the estate within a certain time, and if he should not do so, let another be substituted for him", and the first heir dies before entering upon the estate, no one can doubt that the substitute will not be obliged to wait until the last day fixed for acceptance.

73. The Same, On Plautius, Book VII.

Where anyone, not acting as heir, but as the son of his patron, being in want, asks for support from the freedman of his patron, there is no doubt that he does not, by so doing, interfere with the management of his father's estate. Labeo also very properly holds this opinion.

74. The Same, On Plautius, Book XII.

If an heir thinks that he was ordered to pay ten aurei, when in fact he was ordered to pay five, and he pays ten, he will become the heir by entering upon the estate.

(1) But if he thinks that he was ordered to pay five, when he was ordered to pay ten, and he pays five, he does not comply with the condition. This, however, will be of some advantage to him, for if he should pay the remainder, the condition will be held to have been complied with by the payment of the other five aurei.

(2) Where a freeman serves as a slave in good faith, and enters upon an estate by the order of his supposed master, he will not become liable.

(3) The position of a slave who is to be liberated upon a certain condition is similar to the one where he is ordered by the heir to enter upon an estate, and does so after the condition upon which his freedom depends has been fulfilled, even if he is not aware of it.

(4) Where a slave has been appointed heir by someone, there is some doubt whether he is entitled to his freedom by virtue of the will of his master, when he does not know whether the condition upon which his freedom depends has been fulfilled or not; or where the estate has been accepted, whether he can become the heir by entering upon the same. Julianus says that he will become the heir.

75. Marcellus, Digest, Book IX.

Titius was appointed heir to half of an estate, and, through mistake, demanded possession of only one-fourth of it. I ask whether such a demand is not void, or whether all his rights are saved just as if the fourth of the estate had not been mentioned by him. The answer was, that the better opinion is that the demand is of no force or effect, just as if in the case where a party has been appointed heir to half of an estate, he erroneously only accepts a quarter of the same.

76. Javolenus, Epistles, Book IV.

If you have been appointed heir to one-sixth of an estate, under a certain condition, and Titius, to whom you were substituted, refuses to take his share, and you accept the estate by virtue of the substitution, and the condition under which you were entitled to a sixth is fulfilled, I ask whether it will be necessary for you to enter upon the estate in order to avoid losing your sixth. The answer was, that it makes no difference whether the estate is entered upon by reason of the substitution, or on account of the first appointment; since in either instance a single acceptance will be sufficient. Hence the sixth part which was granted to me under a condition belongs to me alone.

(1) Moreover, if you fail to accept the sixth of the estate to which you were appointed the heir, do you think that by accepting under the substitution you will be entitled to a part of the share of Titius? I do not doubt that if I can become the heir by accepting under the first appointment, it will be in my power either to reject, or claim any part of the estate which may be desired.

77. Pomponius, On Quintus Mucius, Book VIII.

A doubt may arise whether, after I have been appointed heir by the will of a person whose estate, even if he should die intestate, would belong to me as heir-at-law, I can reject both titles to the estate at the same time, for the reason that the estate did not belong to me by law, before I rejected it as bequeathed by will. It is true that I am understood to have rejected at the same time the estate bequeathed by the will and the one conferred by law, just as if I wished the latter to belong to me, when I knew that it also had been left to me by will; hence I shall be held to have first rejected the testamentary estate, and in this way to have acquired the one conferred by law.

78. The Same, on Quintus Mucius, Book XXXV.

Two brothers held their property in common, one of them who died intestate did not leave any direct heir, and his brother, who survived him, refused to be his heir. The question was asked whether the latter rendered himself liable for the debts of the estate, because he had made use of the common property after he knew that his brother was dead. The answer was, that if he had not used said property because he wished to be the heir, he would not be liable. Therefore he should be careful not to exercise ownership upon any more of the property than he was entitled to as his share.

79. Ulpianus, On the Lex Julia et Papia, Book II.

It is established that whenever an estate, or anything else, is acquired through some person who is under the control of another, it is immediately acquired by the latter, and does not remain for a moment vested in him by whom it is acquired, and hence it is directly obtained by the party entitled to it.

80. Paulus, On the Lex Julia et Papia, Book IV.

If I should be appointed sole heir to several shares in an estate, I cannot reject one share, nor does it make any difference whether or not I have a substitute for said share.

(1) I think that the same rule will apply, even where I have been appointed together with other heirs, or have been appointed heir to several shares, because by the acceptance of one of the shares, I will acquire all of them, if they should be rejected.

(2) Moreover, if one of my slaves has been absolutely appointed an heir to a portion of an estate, and conditionally appointed to another portion, having, for example, a co-heir, and he enters upon the estate by my direction, and after he has been manumitted, the condition upon which the other portion of the estate depends is fulfilled; the better opinion is that the first portion is not acquired by me but follows the slave himself. For everything should remain in the same state at the time when the condition of the second share was fulfilled, in order that it may be acquired by him who was entitled to the first portion.

(3) Therefore, I think that if the slave remains under the control of his original master, he must enter upon the estate a second time, if the condition should be fulfilled; and when we stated that the heir should only enter upon the estate but once, this has reference to the heir himself personally, and does not apply where the estate is acquired through the intervention of another.

81. Ulpianus, On the Lex Julia et Papia, Book XIII.

An appointed heir is held to have signified his acceptance even in case of substitution, whenever he can acquire the property for himself; for if he should die, he will not transfer the substitution to his heir.

82. Terentius Clemens, On the Lex Julia et Papia, Book XVI.

If the slave of a person who is incapable of taking under a will should be appointed an heir, and is manumitted or alienated before entering upon the estate by order of his master, and commits no act for the purpose of evading the law, he himself will be admitted to the succession. If, however, his master can take but a certain share of the estate, the same rule will apply to that portion which he cannot take under the will. For, generally speaking, it makes no difference where the question is raised whether someone cannot take anything under a will, or can only take a part of the estate.

83. Ulpianus, On the Lex Julia et Papia, Book XVIII.

If anyone should be tacitly requested to surrender to another the entire share of an estate to which he has been appointed heir, it is evident that he can receive nothing by accrual, because he is not considered to be entitled to the property.

84. Papinianus, Questions, Book XVI.

Where an unborn child is passed over, and an emancipated son or a stranger is appointed heir, as long as the will can be broken by the birth of the child, the estate cannot be transferred in accordance with the terms of the will. If, however, the woman should not prove to be pregnant, and, while this is uncertain, the son remaining in the family should die, he is understood to have been the heir; and whether he be either an emancipated son or a stranger, he cannot acquire the inheritance unless he knows that the woman was not pregnant. Therefore, if the woman should actually be pregnant, would it not be unjust if, in the meantime, the son who died could leave nothing to his heir? Hence relief should be granted to the son, under the decree, because, whether a brother should be born to him or not, he will still be the heir of his father. The same course of reasoning makes it plain that relief should also be granted to an emancipated son who, in either instance, will certainly be entitled to possession of the estate.

85. The Same, Questions, Book XXX.

If anyone, induced by fear, should enter upon an estate, the result will be that, because he becomes the heir against his will, the power to reject the estate may be granted him.

86. The Same, Opinions, Book VI.

Pannonius Avitus, while acting as the Imperial Steward in Cilicia, was appointed an heir, but died before he learned of his appointment. His heirs, as representatives of the deceased, petitioned for complete restitution, because in that capacity, they could not take possession of the estate now claimed by his Deputy, and which, according to the strict construction of the law, he was not entitled to; because Avitus had died within the time appointed for its acceptance. Marcellus, in the Book of Questions, states that the Divine Pius rendered a contrary decision with reference to a party who was at Rome as the member of an embassy, where his son, being absent, had failed to obtain the possession of property which descended from his mother, and that, without respect to this distinction, there was ground for restitution. This rule should also in the interest of justice be applicable in this case.

(1) The emancipated son of a person accused of treason, who is certain of the innocence of his father, can obtain his estate while the examination of the case is pending.

(2) It is established that a son has acted in the capacity of heir, when, at the time of his death, he knew that his mother had died intestate, and asks his heir in a codicil to manumit a slave belonging to his mother's estate, and to erect a monument for himself and his parents on land forming part of her estate.

87. The Same, Opinions, Book X.

It is held that a son meddles with the estate of his father, if he appears to act in the capacity of heir, where the family ties have been broken. Therefore, a son who accepts the estate of his mother, and obtains land belonging to the estate of his father, of which he takes possession, not being aware that it is part of his mother's estate, is not held to have lost the right to reject the estate.

(1) It has been decided that mixed actions should be granted to minors, who, it has been held, must be released from liability for the debts of an estate.

88. Paulus, Questions, Book I.

A person acts in the capacity of heir, who signifies his intention of accepting an estate, even though he does not touch any of the property forming part of the same. Hence, if he should keep a house as belonging to the estate but which had been given by way of pledge, the possession of which was, in any way, held by the estate, he will be considered to have acted as the heir. The same rule will apply if he should retain possession of any other property as a part of the estate.

89. Scaevola, Questions, Book XIII.

If a minor rejects an estate, relief must be granted to the sureties given by him, if suit should be brought against them on account of some contract relating to the estate.

90. Paulus, Opinions, Book XII.

Paulus holds that an estate cannot be acquired through the intervention of a curator.

(1) He also gives it as his opinion that if a grandson should enter upon the estate of his father who made a will disposing of his castrense peculium by the order of his grandfather, he will acquire for the benefit of his grandfather all that his father was able to dispose of by will; because castrensial property ceases to be such by the change of persons.

91. The Same, Opinions.

Paulus holds that where a son who declines to accept the estate of his father is proved to have purchased the said estate by the intervention of anyone, he can be sued by the creditors of the estate, just as if he had taken upon himself the management of it.

92. The Same, Opinions, Book XVII.

A son under paternal control married; and his wife died leaving children; and the latter entered upon the estate of their mother, by order of their father, and not by that of their grandfather. I ask whether the estate is acquired by the grandfather? Paulus answers that, in accordance with the case stated, the act is void.

93. The Same, Decisions, Book III.

Every time that a father directs his son to enter upon an estate, he must be certain whether his son is an heir to a portion, or to the whole of it; and also whether his right is derived from an appointment as heir, or from substitution, or by virtue of a will, or through intestacy.

(1) Where the father or the master is dumb, the better opinion is, that if a son or a slave has been appointed heir, he can, by a nod, direct him to enter upon the estate; provided he has sufficient intelligence to enable him to legally acquire the estate, which can be the more readily ascertained if he knows how to write.

(2) A slave who is dumb, and acts in the capacity of heir by the direction of his master, renders the latter liable for the debts of the estate.

94. Hermogenianus, Epitomes of Law, Book III.

He who refuses to accept the property of a person who is living is not forbidden to enter upon his estate, or demand praetorian possession of it after his death.

95. Paulus, Decisions, Book IV.

An estate can be rejected not only by words, but also by any act or other indication of the will.

96. Hermogenianus, Epitomes of Law, Book III.

Where anyone, erroneously supposing himself to be a minor, when, in fact, he has arrived at puberty, acts as an heir, his rights will not be prejudiced by a mistake of this kind.

97. Paulus, Decrees, Book III.

Clodius Clodianus, having made a will, afterwards appointed the same heir by another will, which was drawn up in such a way as to be of no force or effect. The appointed heir, thinking that the second will was valid, desired to enter upon the estate by virtue of it, but it was afterwards ascertained to be void. Papinianus held that he had rejected the estate granted by the former will, and could not accept it under the second. I held that he did not reject the first will, as he thought that the second was valid. It was finally decided that Clodianus died intestate.

98. Scaevola, Digest, Book XXVI.

A certain woman promised Sempronius in the name of her granddaughter, whom she had by Seiua, her daughter, a sum of money by way of dowry, and paid him a certain amount as interest for household expenses. She then died, Seia being her heir, together with others, against whom Sempronius brought an action, and the different heirs were held liable for their shares of the estate, among whom was Seia, who, with the rest gave security to Sempronius that they would pay the sum for which each one of them had had judgment rendered against him or her, with the same interest which had been paid by the testatrix for the support of the family. Afterwards, the other heirs, with the exception of Seia, rejected the estate through the indulgence of the Emperor, and it was entirely vested in Seia. I ask whether a praetorian action should be granted against Seia, who was now the sole heir, and as such administered all the affairs of the estate, to recover the amount of the shares of those who, through the indulgence of the Emperor, had been able to reject the estate. The answer is that actions involving the shares of those who decline to accept an estate are usually granted against the party who accepts the same, and prefers to discharge the liabilities of the entire estate.

99. Pomponius, Decrees of the Senate, Book I.

Aristo stated, with reference to the Decrees of Fronto: Two daughters were the necessary heirs of their father; one of them declined to accept his estate, and the other took possession of her father's property and was ready to discharge all its liabilities. The venerable Praetor Cassius, after hearing the case, very properly decided that praetorian actions should be granted to her who had accepted the estate of her father, but should be denied to the other daughter who had refused it.
 


Tit. 3. In what way wills should be opened, examined, and copied.


 
1. Gaius, On the Provincial Edict, Book XVII.

The Praetor promises that he will grant the privilege of examining and copying a will to all who desire to inspect one or copy it. It is plain that he will grant this permission to anyone who desires it either in his own name or in that of another.

(1) The reason for the adoption of this Edict is plain; for one cannot, without judicial authority, carry out the provisions of a will, nor can the truth be ascertained by the court in those controversies which arise out of the interpretations of wills, except by the examination and investigation of the language contained therein.

(2) Where anyone refuses to acknowledge his seal, this does not prevent the opening of a will, but it becomes suspicious for this reason.

2. Ulpianus, On the Edict, Book L.

The instrument containing the provisions of the will does not belong to one person, that is to say, to the heir, but it is the property of all those to whom anything has been bequeathed; and, indeed, it is rather a public document.

(1) That is properly said to be a will which is legally perfect; however, we also improperly call certain papers wills which are forged, illegal, void, or broken, and we are also accustomed to designate as wills such as are defective.

(2) It is held that whatever has been done with reference to a will is subject to the same rules as the will itself, no matter upon what material it has been written; provided that it contains the last wishes of the deceased, and the will itself, as well as the substitution, is embraced in the Edict.

(3) Where anyone desires to produce several wills, authority to produce them all should be granted.

(4) If any doubt should exist whether the person whose will someone desires to have examined or copied is living or dead, it must be held that the Praetor shall decide this after proper investigation, so that if it is proved that the testator is living, he shall not permit the will to be examined; otherwise, he can allow the applicant to examine the writing, the seals, and anything else belonging to the instrument which he may desire to inspect.

(5) The examination of a will also includes the perusal of the same.

(6) The Praetor does not permit the date of the will or the name of the Consul under whose administration it was drawn up to be copied or examined, in order to avoid opportunity for fraud; for even the examination of these may furnish material for the perpetration of forgery.

(7) Can the Praetor order that power to examine or copy a will be accorded without delay, or shall he grant time for its production to the person having possession of the same if he wishes it? The better opinion is that he should grant a certain time, dependent upon the difficulty of communication, and the distance of the place.

(8) If anyone does not deny that he has possession of a will, but will not allow it to be examined and copied, he should, by all means, be compelled to do so. If, however, he denies that the will is in his possession, it must be said that recourse should be had to the interdict which provides for the production of wills.

3. Gaius, On the Provincial Edict, Book XVII.

The heir is, nevertheless, entitled to an action for the recovery of the will, just as for property belonging to the estate, and on this account he can bring an action to compel the production of the will.

4. Ulpianus, On the Edict, Book L.

When the will is about to be opened, it is the duty of the Praetor to require the witnesses to appear and acknowledge their seals,

5. Paulus, On Plautius, Book VIII.

Or deny that they have sealed the will; for it is expedient that the last will of men should be carried into effect.

6. Ulpianus, On the Edict, Book L.

If the majority of the witnesses are found, the will can be opened and read in their presence.

7. Gaius, On the Provincial Edict, Book VII.

If one of the witnesses should be absent, the will must be sent to him wherever he may be, in order that he may acknowledge his seal. For it would be a hardship to compel him to return for this purpose, as frequently it causes great inconvenience for us to be taken from our business under such circumstances; and it would be unjust for anyone to suffer injury for having performed his duty. Nor does it make any difference whether one or all of the witnesses are absent. If all of them should happen to be absent, and, for some cause or other, there is an urgent necessity for opening the will, the Proconsul should take care that it is opened in the presence of men of excellent reputation; and after it has been copied and examined in their presence, it must be sealed by the same parties before whom it was opened, and then sent to the place where the witnesses are, in order that they may acknowledge their seals.

8. Ulpianus, On the Edict, Book L.

The Praetor does not permit the opening of a pupillary will, even if there is no endorsement on it forbidding this to be done; still, if the testator left his will partially sealed, the Praetor can allow it to be opened, if proper cause be shown.

9. Paulus, On the Edict, Book XLV.

Where a woman is placed in praetorian possession of an estate in the name of her unborn child, the pupillary will should be opened, in order that it may be ascertained to whom the curatorship of the child was entrusted.

10. Ulpianus, On the Lex Julia et Papia, Book XIII.

Where there are two copies of a will, and one of them remains unsealed, the will is held to be opened.

(1) Where the will itself is unsealed, there is no doubt that it should be considered as opened; for we do not inquire by whom it is to be opened.

(2) If a will should not be produced, or has been burned, it follows that relief should be granted to the legatees; and the same rule applies where the will has been suppressed, or concealed.

11. Gaius, On the Lex Julia et Papia, Book XI.

Just as a codicil is considered to be part of a will, so a pupillary substitution is also held to constitute a part of the same.

12. Ulpianus, On the Lex Julia et Papia, Book XIII.

Where anyone makes a will and also a copy of it, and the copy is open, the will is not considered to be open; but when the original will is open, everything else is likewise.
 


Tit. 4. Where anyone, through the rejection of his appointment as testamentary heir, obtains possession of the estate through intestacy or in any other way.


 
1. Ulpianus, On the Edict, Book L.

The Praetor attempts to carry out the wishes of deceased persons, and opposes the cunning of those who, by refusing to take under the will, obtain possession of the estate, or a portion of the same, on the ground of intestacy; in order to defraud legatees to whom something may be due under the will of the decedent, if the estate should not be obtained ab intestato; and he promises to grant an action against them.

(1) It makes little difference whether the party in question acquires the estate himself, or through someone else; for in whatever way he may be able to do so, if he does not acquire it under the will, he is in a position to be affected by the Edict of the Praetor.

(2) An heir is held to have omitted to take advantage of the benefits granted him by will, who, when he can order someone to enter upon the estate, declines to do so.

(3) But what if his slave, when ordered to enter upon the estate, after receiving the order should not obey it? The slave, however, can be compelled to do this, and therefore his master comes within the scope of the Edict.

(4) If, however, the master has not been informed by his slave of his appointment as heir, and he himself afterwards obtains possession of the estate on the ground of intestacy; he will not be liable under the Edict, unless he pretends ignorance of the facts.

(5) Where the proposed case is, that the same party was, at the same time, appointed heir and substituted, and neglected to take advantage of his appointment; the question arises whether he comes within the scope of the Edict. I do not think that he does, as the testator who appointed him as substitute for himself granted him the privilege of rejection.

(6) Where anyone rejects an estate, he forfeits any rights to which he may be entitled under the will.

(7) Where children subject to the authority of their father immediately become heirs by his will, there is no reason why they cannot reject his estate. If, however, they subsequently interfere with it, they are considered to be heirs by virtue of the will, unless they refrain from taking under it, and claim possession of the property on the ground of intestacy; for, in this instance, they come within the terms of the Edict.

(8) Where an heir is appointed under a condition, and being able to comply with it, does not do so, when the condition is such that it depends upon the consent of the said heir, and he afterwards obtains possession of the estate on the ground of intestacy, he should be held liable under the Edict; for the reason that a conditional appointment of this kind should be considered as an absolute one.

(9) When parties who have refused to take under the will obtain an estate on the ground of intestacy, we do not inquire whether they have acquired possession of the same as heirs-at-law or not, for by whatever title they may acquire possession of the estate, or a portion of it, they can be sued under the Edict, provided they do not acquire it on some other ground; for instance, where anyone rejects an estate and acquires it by means of a trust, and is placed in possession for the purpose of discharging the trust; or if you should state that be obtained possession in order to preserve a claim; as, in this instance, he cannot be compelled to answer in a suit brought by the legatees. Therefore, the Edict of the Praetor will apply whenever any one holds possession as an heir-at-law, or acquires the estate on the ground of intestacy, or holds it as a depredator, pretending that he has some title to possession on the ground of intestacy; for no matter in what way he may be pecuniarily benefited by obtaining the estate, he must pay the legacies.

(10) Security, however, must be furnished by the legatees, that in case the heir should be deprived of the estate by a better title the legacies shall be repaid to him; and even if the party may not have the estate in his possession, but has acted in bad faith to avoid being in possession, the result is that he will be held liable, just as if he had entered upon the estate.

(11) A person is considered to have acted in bad faith to avoid being in possession, who fraudulently transfers possession to someone else, in order that the legatees and others who have received anything under the will may be deprived of whatever was bequeathed to them.

(12) The question was asked whether anyone should not be held to have acted in bad faith who, in order to avoid being in possession, fraudulently relinquished it after having held it for some time; or whether he is also liable who did this maliciously to avoid obtaining possession in the first place. Labeo says that it seems to him that he who avoided obtaining possession in the first place is not less guilty than he who fraudulently relinquishes it, after having obtained it. This is one prevalent opinion.

(13) Where anyone fraudulently rejects an estate in order that it may descend to the heir-at-law, he will be liable to an action brought by the legatees.

2. The Same, On Sabinus, Book VII.

Although he who relinquishes an estate in consideration of the payment of a sum of money may not be considered to have assumed the part of an heir, an action should, nevertheless, be granted against him, as in the case of a party who, having declined to take an estate under a will, obtains possession of it on the ground of intestacy, as the Divine Hadrian stated in a Rescript. For this reason he will be liable to be sued by the legatees and other beneficiaries of the estate.

(1) But should the action be brought against him in the beginning, and recourse then be had to the heir; or shall we change the order? The more equitable opinion seems to me to be that proceedings should first be instituted against the possessor of the estate, especially if the possession of the same is profitable to him.

3. Pomponius, On Sabinus, Book III.

If you receive money from a substitute in consideration of your relinquishing your claim to an estate, and he enters upon the same, it may be doubted whether an action should be granted to the legatees. I think that if the substitute should also relinquish his claim for the reason that the estate vests in him by law, and he obtains possession of it, both of you will be liable; and an action will be granted in favor of him to whom a legacy has been bequeathed, against whichever one of you he may elect to sue.

4. Ulpianus, On the Edict, Book L.

In case the heir should not receive any money, but refuses to take under the will, because he desires to confer a favor either on the substitute, or the heir-at-law, will there be ground for the application of the Edict? It would be intolerable for him to be able to prevent the execution of the will of the deceased; and therefore if it is clearly established that this was done for the purpose of injuring the legatees even though no money was received but the act was prompted by excessive partiality it must be said that there will be ground for an equitable action against the party who is in possession of the estate.

(1) It is very properly held that whenever anyone wishes to confer a favor upon another who will become the heir by his rejection of the estate, and he would not have rejected it unless he had intended to confer the favor, and especially if he did so for the purpose of preventing the execution of the will, it must, in this instance, be said that an action will lie against the possessor of the estate, with this distinction, however, that where money having been accepted, the heir rejected the estate, we can, under these circumstances, say that suit should be brought against him; but where he acted through partiality and for the purpose of defrauding those to whom something was bequeathed, the possessor of the estate should be sued in a praetorian action.

(2) Although the Praetor seems to refer to appointed heirs, still, this provision also extends to others; for instance, where there is a legatee who has been charged with a trust, and he causes the estate to be rejected through his fraudulent act, suit should be brought against him.

(3) Where anyone sells his right to an estate, he is held to remain in possession of the same, and not to have acted fraudulently in order to avoid being in possession.

5. Marcellus, Digest, Book XII.

A patron is held to be excused who rejects an appointment as heir, when he has been appointed heir by his freedman in a different way than he ought to have been. For if his slave should have been appointed sole heir to an estate, and on account of some accident was not able to enter upon it by order of his master, he can, with impunity, decline to accept the estate given him by the will.

6. Ulpianus, On the Edict, Book L.

For the reason that a party who is in possession of an estate on the ground of intestacy can be sued if he relinquishes his rights under the will, the question arose whether he can be compelled to make payment if he seems to have relinquished them in compliance with the wishes of the testator. For example, a man appointed a brother his heir, and then executed a codicil requesting his brother, if the estate should come to him by law, to discharge a trust in favor of certain individuals; and therefore it should be considered, he having renounced his rights under the will and obtained possession of the estate on the ground of intestacy, whether he will be liable to the legatees. Julianus states, in the Thirty-first Book of the Digest, that he can be compelled in the first place to pay the legacies, and afterwards, they having been settled, should anything be remaining from the three-fourths of the estate, he can be required to discharge the trust. If, however, the legacies exhaust three-fourths of the estate, then nothing shall be paid under the trust, for the heir-at-law must have the fourth undiminished. Hence the order was established by Julianus that the legacies should first be discharged, and the trusts paid out of the remainder, with the understanding that the fourth should remain intact. I think that the opinion of Julianus should be adopted, so that if the estate was rejected under the will, in order that it might be obtained ab intestato, the party ought by all means to be compelled to pay the legacies, for the reason that the testator who left him the trust to be discharged in case the succession was intestate did not authorize him to reject the estate under such circumstances.

(1) If, however, it is evident that the testator expressly authorized him to do this, he will not become liable under the Edict, because he availed himself of the privilege which the testator granted him. But if the testator did not under the will specifically grant him the privilege of rejecting the estate, the order prescribed by Julianus should be followed.

(2) But what shall we say where legacies are left by will, and trusts in case of intestacy, to the same person, and, in addition to this, trusts are left to other parties? Shall we follow the same order established by Julianus, or shall we subject all the trustees to contribution as if they were equal? The better opinion is to ascertain whether it makes much difference if the heir becomes liable under the Edict, or not; for if he does become liable, those are to be preferred to whom something was left by the will; but if he does not, as it was the wish of the testator to grant him the privilege of succeeding ab intestato, or because he was admitted for some other reason, which, in accordance with what we have above stated, is not in violation of the Edict, it must be said that all the trusts ought to contribute as if they had all been placed on the same footing.

(3) The Praetor does not promise to grant the action indiscriminately, but only where proper cause is shown; for if he should ascertain that the testator was the author of this arrangement, and himself had permitted the heir to succeed ab intestato, or if he should find that there was any other good reason for the rejection of the estate, he will not grant the legatees an action against him.

(4) Also if the Praetor should ascertain that the property belongs to another, he will not grant an action, provided no suspicion of collusion influences the decision of the Praetor.

(5) Where, however, the person who can be deprived of the estate has in his possession any portion of the same, and relinquishes possession of it without being guilty of fraud, the better opinion is that he ceases to be liable to be sued.

(6) What time then shall we consider, when investigating as to whether he is in possession or not? The time when issue was joined should be considered.

(7) It is evident that where anyone is in possession of the property of an unclaimed estate, and that the term of four years has elapsed, suit can undoubtedly be brought against him, under this Section of the Edict, both for the reason that he refused to take under the will and because he is in possession on the ground of intestacy, and, indeed, as he is rendered safe by prescription on account of the expiration of four years.

(8) Where a patron is appointed heir to the share of an estate to which he is entitled, and a co-heir is appointed with him, and he rejects the appointment for his share, because what is due to him has been already exhausted, and the co-heir also rejects his portion; and then the patron obtains possession of the entire estate ab intestato, by operation of law; Celsus says in the Sixteenth Book of the Digest that the same action should be granted against him which could have been brought against his co-heir Titius, and that it will be sufficient for the patron to have for himself the entire share to which he was legally entitled. This, however, is correct only where the co-heir is in collusion with the patron, for otherwise, the latter cannot be compelled to pay the legacies, as it is not forbidden for anyone to refuse an estate, if he does so without being guilty of fraud.

(9) The better opinion is, that this Edict also applies to the praetorian possession of an estate contrary to the provisions of the will, so that, where a party, by taking possession of the estate in opposition to the will, must pay the legacies to the children, and the parents, and if he should fail to obtain possession of the estate, and should acquire possession of it on the ground of intestacy, he can be compelled to pay whatever he would have paid if he had obtained possession of the estate in opposition to the will.

(10) Where freedom has been given to a slave on the condition of his paying ten aurei, and his rights under the will are relinquished by the heir, the slave will not be liberated unless the condition is complied with.

7. Marcellus, Digest, Book XII.

A certain man appointed Titius and Maevius his heirs, and bequeathed a hundred aurei to Titius, and both of them relinquished their rights under the will, and entered upon the estate as heirs-at-law. Titius cannot properly bring an action to recover his legacy. The same rule will apply where the testator bequeathed legacies to both the heirs.

8. Ulpianus, On the Edict, Book L.

Where a person becomes an heir under the condition of paying ten aurei, or under any other condition which consists of either giving or doing something, and the heir, having relinquished his rights under the will, obtains possession of the estate on the ground of intestacy, it should be considered whether or not relief should be granted to him for whose benefit the condition was imposed. The better opinion is that he is not entitled to relief, for he is not a legatee.

9. Paulus, On the Edict, Book XLV.

But if the parties still have time to comply with the condition, he will not be liable under this section of the Edict.

10. Ulpianus, On the Edict, Book L.

Where he who has relinquished his rights under the will is not alone, but together with another party has possession of the estate, Julianus very properly says, and his opinion is approved by Marcellus, that an equitable action should also be granted against him in favor of the legatees, for he ought not to object because the act of the appointed heir prejudices him, since he also profited by it. This, however, is correct where the person who relinquishes his rights under the will did not receive any money for doing so, for he will then be liable for the entire amount.

(1) Where legacies have been left to be discharged by appointed heirs in favor of substitutes, and the said appointed heirs as well as the substitutes have obtained possession of the estate on the ground of intestacy, after their rights under the will have been relinquished by them, the Divine Pius stated in a Rescript that the appointed heirs can honorably refuse to pay the legacies bequeathed to the substitutes; for they may very properly refuse to pay any legacy or trust to a substitute who claims it, if he was free to enter upon the estate, and to obtain all the property belonging to it without demanding the discharge of the trust.

(2) Where there are two heirs, one of whom was appointed and the other substituted, and both of them having relinquished their rights under the will obtain possession of the estate ab intestato; the question arises whether both of them can be compelled to pay the legacies, and whether each one of them is obliged to pay those legacies, with which he was charged, or whether both of them should pay the legacies together. I think an action should be granted in favor of the legatees against each one of them, for the payment of all the legacies; but let us consider whether each one is obliged to pay the legacies with which he himself was charged, or also those with which the other heir was charged. Let us also suppose that the appointed heir alone was in possession of the estate: will he be liable to an action for the payment of the legacies with which he was charged, or will he be also responsible for those with which the substitute was charged? It must be held that he will only be liable for the legacies with which the substitute was charged in case the estate should come into the hands of the heirs appointed under the will, on account of the bad faith of the substitute, where no money was paid; for if the substitute received any money, he himself should be sued. Moreover, if the substitute alone is in possession of the estate, and the appointed heir should reject it in consideration of having received a sum of money, we say that he will be liable to his legatees, and the substitute to his own; but where no money has been paid, we will grant an action against the substitute. If, however, both parties are in possession, the better opinion is that each one will be liable to his respective legatees.

11. Javolenus, Epistles, Book VII.

Where the same property has been bequeathed to me to be delivered by both the appointed and the substituted heirs, and they, having relinquished their rights under the will, have possession of the estate by operation of law, the entire legacy is due to me from both of them; still, if I have obtained it from one, I cannot collect it from the other, hence I can proceed against whichever one of them I choose.

12. Ulpianus, On the Edict, Book L.

The question also arose in this case with respect to grants of freedom, whether it was proper that they should be conferred by both of the heirs, when the one appointed as well as the substitute were charged with their execution. The better opinion is that both those which were direct and those which were granted in trust become operative.

(1) It is established that the heir of anyone who relinquished his rights under a will in order to obtain possession of the estate on the ground of intestacy is liable in an action brought by the legatees to recover the entire amount; for the proceeding rather has reference to the recovery of the property than the penalty, and therefore the action is a perpetual one. This, however, will not be the case if the heir is sued on account of the bad faith of the deceased, for then an action can be brought against him for the property which came into his hands.

13. Gaius, On the Provincial Edict, Book XVII.

Even if the heir should not come into possession of the entire estate, or a large portion of the same on the ground of intestacy, but only of a very small part of that for which he was appointed, and also where he only holds a single article belonging to it, he will be liable under this Edict.

14. The Same, Concerning Testaments; On the Edict of the Urban Praetor, Book II.

Even though, properly speaking, a single article is not understood to be part of an estate.

15. The Same, On the Provincial Edict, Book XVII.

For this is not unjust, since the person suffers this inconvenience through his own fault,

16. The Same, Concerning Testaments; On the Edict of the Urban Praetor, Book II.

For since an estate can be claimed on the ground of hereditary right by a party, who is in possession of a single article belonging to it, it cannot be doubted that what we have stated is true.

17. The Same, On the Provincial Edict, Book XVII.

If anyone, having relinquished his rights under the will, should not be in possession of the entire estate, the legatees are excluded; for everyone should be free to reject even a profitable inheritance, even though in this way legacies and grants of freedom may be annulled. It has been provided, however, with reference to estates bequeathed in trust, that if the appointed heir should decline to accept the estate, he can be compelled to do so by order of the Praetor, and to surrender it to the beneficiaries of the trust; but this advantage is not enjoyed by those to whom separate articles have been bequeathed by way of trust, any more than it is by legatees.

18. The Same, Concerning Testaments; On the Edict of the Urban Praetor, Book II.

Where two appointed heirs, both having relinquished their rights under the will, obtain possession of an estate on the ground of intestacy, then, in accordance with the Praetorian Law, both will be considered as having entered upon the estate under the will, and an action will lie against each of them for his respective share.

(1) We should note that the benefit of the Lex Falcidia must be accorded to the heir against whom an action is granted in favor of the legatees by this section of the Edict.

19. The Same; On the Provincial Edict, Book XVII.

Moreover, where a patron has been appointed heir to the whole estate, and by renouncing his rights under the will obtains possession ab intestato, he should always be entitled to the benefit of the share which is due to him, and which he would have obtained if he had entered upon the estate by virtue of the will.

20. Ulpianus, Disputations, Book IV.

Where the same property was left to different persons, and both the appointed heir and the substitute were charged with its delivery, both of said legatees are not entitled to recovery, but only the one who received it from the appointed heir.

21. Julianus, Digest, Book XXVII.

If my son should be appointed heir by his mother, and I, having relinquished my testamentary rights, demand possession of the estate in the name of my said son, an action in favor of the legatees should be granted against me, just as if I myself had been appointed the heir, and, having relinquished my rights under the will, had obtained possession of the property of the estate on the ground of intestacy.

22. The Same, Digest, Book XXXI.

Where the following provision was inserted into a will: "Let Titius be my heir, and if Titius becomes my heir, let Maevius become my heir"; and Titius, having relinquished his testamentary rights, obtains possession of the estate as heir-at-law, the petition to recover the estate should not be granted against him in favor of Maevius for the share of the estate to which he would have been entitled, if Titius had not relinquished his hereditary rights. For, as the heir obtains possession of the estate when testamentary rights are relinquished, the legacies and grants of freedom must be taken into account, since otherwise they cannot be granted except by the heir. The Praetor, however, cannot intervene where an estate is disposed of in this way, for the testator is to blame for having bequeathed a part of it under such a condition, when he could have bequeathed it absolutely.

(1) Wherefore, if the following provision was inserted into a will: "Let Titius be my heir, and if any of the above-mentioned persons whom I have appointed becomes my heir, let Stichus be free and my heir", and Titius having relinquished his rights under the will obtains possession of the estate, the Praetor cannot assure Stichus of his freedom, nor can he grant him an action for the recovery of the estate.

(2) Where anyone draws up a will as follows: "Let Titius be my heir, and if Titius should not become my heir, let Maevius be my heir, and if any of the heirs whom I have previously appointed becomes my heir, I bequeath a hundred aurei to Maevius, if he should not become my heir". Titius relinquished his rights under the will and obtained possession of the estate by operation of law, and the question arises whether an action for the recovery of the estate should be granted to Maevius, in whose power it was to acquire it all by entering upon the same by virtue of the substitution. It was decided that Maevius would be entitled to the action, because nothing prevented him from having a good reason for not involving himself in the affairs of the estate.

23. Ulpianus, On the Edict, Book XLVI.

Where a son, who is under the control of his father, and also a daughter were appointed heir, an emancipated brother, having been passed over, obtained possession of the estate in opposition to the will. By this means the heirs acquired the estate of their father on the ground of intestacy, and paid all the legacies. The daughter, however, did not divide her dowry with her brother, as she was held to be entitled to her share of the estate as an appointed heir.

24. Paulus, On the Edict, Book LX.

Where a ward relinquishes his testamentary rights through the fraudulent representations of his guardian, and obtains the estate as heir-at-law, actions to recover the legacies should be granted against the ward, but only to the extent that the estate had been acquired by him. But what if he had obtained possession of the estate along with another?

(1) Many authorities think that this rule should be observed only with reference to a youth who has arrived at puberty, and that he should only be liable for the share of the estate in his possession; even though the Praetor grants an action against him just as if he had entered upon the estate.

25. Celsus, Digest, Book XVI.

A man for whom his own slave was substituted ordered him to enter upon the estate. If he did this for the purpose of avoiding payment of the legacies, he shall pay them all, both for the reason that he is the heir, and because having relinquished his rights under the will he has possession of the estate by virtue of the substitution, with the exception of the portion reserved by the Falcidian Law.

26. Papinianus, Questions, Book XVI.

Julianus says that where a father ordered his daughter, who had been appointed a substitute for himself, to accept an estate; he will, by the terms of the Edict, be compelled to pay the legacies with which he was charged, since his daughter was substituted instead of her father, and the latter was not given the right of choice. Where, however, the different legacies amount to more than three-quarters of the estate, an account must be taken, in the first place, of those with which the daughter was charged, for fraud will be imputed to the father, if, having rejected the honor conferred upon him, he prefers the appointment of another as heir, on account of the benefit which may accrue to him therefrom.

(1) Julianus thinks that if a father who is substituted for his daughter enters upon an estate, he will not be guilty of bad faith, for no one is considered to have substituted a father for his daughter against the will of the parent, but in order that he might have the power of making his choice.

27. The Same, Opinions, Book VI.

Where a mother is substituted for her son under the age of puberty, there is ground for the application of the Edict, if, having relinquished her testamentary rights, she obtains possession of the estate of her son by operation of law. The same rule applies if she should be appointed the heir and also the substitute of her son.

(1) A brother is not considered to come within the terras of the Edict, so far as the legacies are concerned, who did not emancipate his son who had been substituted for a boy under the age of puberty by the will of his brother; but he will obtain possession of the property of the estate through him on the ground of intestacy.

(2) An action in favor of the legatees will be granted by the decree of the Praetor against a party who was not appointed testamentary heir, if he participated in a fraudulent agreement with the appointed heirs in order to obtain sole possession of the estate by operation of law.

28. Marcianus, Trusts, Book IV.

Where a master sells a slave whom he had appointed his heir, and who himself had been charged with a trust, and he does this before he orders him to enter upon the estate, he should discharge the trust, because by obtaining the price of the slave he also obtained the value of the estate.

(1) Where a party is appointed heir and is requested to deliver the estate, and having relinquished his testamentary rights, obtains possession of the estate by operation of law, there is no doubt that he can be compelled to surrender the estate, and also the legacies and other property left in trust, as well as execute any grants of freedom direct, as well as indirect. Where, however, he is charged to manumit slaves belonging to others, he should redeem them, and he to whom the estate was surrendered, as well as he who surrenders it, must both share the loss.

29. Ulpianus, Trusts, Book V.

Where anyone, having relinquished his rights under the will, obtains possession of an estate on the ground of intestacy, he must bestow freedom on the slaves, nor can this act of him who declines to take under the will injure them, as they become his freedmen.

30. Hermogenianus, Epitomes of Law, Book III.

Where an heir, having relinquished his rights under the will, obtains possession of the estate as a purchaser, or on account of a dowry, or by way of donation, or by any other title except that of heir or possessor, he will not be liable to an action brought by the legatees.
 


Tit. 5. Concerning the Silanian and Claudian Decrees of the Senate by the provisions of which wills cannot be opened.


 
1. Ulpianus, On the Edict, Book XXX.

As no household can be safe unless slaves are compelled, under peril of their lives, to protect their masters, not only from persons belonging to his family, but also from strangers, certain decrees of the Senate were enacted with reference to putting to public torture all the slaves belonging to a household in case of the violent death of their master.

(1) A person is included in the appellation of master who possesses the ownership of the slaves, even though the usufruct of the same may belong to another.

(2) Where anyone is in possession of a slave in good faith, but who is, in fact, free, he is not included in the appellation of master; nor is he, either, who has only the usufruct of a slave.

(3) A slave given by way of pledge is, so far as the death of the debtor is concerned, in every respect considered as if he had not been pledged.

(4) Those also are included in the appellation of slaves, who are bequeathed under a certain condition; for in the meantime they belong to the heir, and as, when the condition is fulfilled they cease to belong to him, it follows that meanwhile they should not be held to constitute part of his property. The same rule must be said to apply to the case of a slave who is to be free under a certain condition.

(5) A Rescript of the Divine Pius to Jubentius Sabinus is extant which has reference to a slave whose unconditional freedom was due under the terms of a trust; from which it is evident that too much haste should not be employed in the torture of a slave who is entitled to his freedom under a trust, and the better opinion is that he should not be punished, for the reason that he lives under the same roof with the testator, unless he participated in the crime.

(6) It must be said that he who has only a share in the ownership of a slave is also included in the appellation of master.

(7) Sons under paternal control, and other children who are in the power of their father, are also included in the appellation of master; for the Silanian Decree of the Senate not only refers to the heads of families, but also to the children.

(8) But what shall we say if the children are not subject to the authority of their father? Marcellus, in the Twelfth Book of the Digest, expresses uncertainty on this point. I think that the most liberal construction should be given to the Decree of the Senate, so that it may also include children who are not under paternal control.

(9) We do not think that the Decree of the Senate is applicable to the case of a son who has been given in adoption, even though it may apply to an adoptive father.

(10) The Decree of the Senate does not apply where a youth who is being reared is killed.

(11) Torture shall not be inflicted upon the slaves of a mother, where a son or a daughter have been killed.

(12) Scaevola very properly says that where a father has been captured by the enemy, and his son is killed, the slaves of the father should be put to the torture and punished. He approves of this also being done, even after the death of the father, if the son was killed before he became the proper heir.

(13) Scaevola also says that it may uniformly be maintained, where a son has been appointed heir and is killed before entering upon the estate, that the slaves can be put to the torture and punished, even if they have been unconditionally bequeathed or manumitted. For although even if he had lived and had become the heir, the slaves would not belong to him, therefore when he died, as both the legacies and the grants of freedom will be extinguished, he holds there is ground for the application of the Decree of the Senate.

(14) If the father is killed, should torture be inflicted upon the slaves of the son, if they form part of the castrense peculium? The better opinion is that the slaves of the son should be put to the torture, and subjected to punishment, even though the son is not under the control of his father.

(15) In the case of murder of a man and his wife, torture should be inflicted upon their slaves, although, properly speaking, the slaves of the husband do not belong to the wife, nor her slaves to him, but, for the reason that the two sets of slaves are commingled, and there is but one household, the Senate decreed that punishment should be inflicted, just as if the slaves belonged equally to both of them.

(16) But where the wife or the husband was killed, the Senate did not decree that the slaves of the father-in-law should be put to the torture. Marcellus, however, very properly says, in the Twelfth Book of the Digest, that what has been determined with reference to the slaves of the husband also applies to those of a father-in-law.

(17) Labeo states that those are understood to be included in the term "killed" who have been put to death by violence, or murdered; for instance, by having their throats cut, by being strangled, or thrown down from some height, or struck with a stone or a club, or deprived of life by the use of any other kind of weapon.

(18) Where a man is killed, for instance, by poison, or by some other agency which it is customary to employ secretly, this Decree of the Senate will not apply to the avenging of his death; for the reason that slaves are punished whenever they do not assist their master against anyone who is guilty of violence towards him, when they are able to do so. But what could they effect against those who insidiously make use of poison or any other method of this kind?

(19) It is evident that the Decree of the Senate will be applicable where poison is forcibly administered.

(20) Therefore, whenever such force is employed as usually causes death, it must be held that there is ground for the application of the Decree of the Senate.

(21) But what if the master was killed by poison, and not by violence, will the deed go unpunished? By no means. For although the Silanian Decree of the Senate may not apply, nor torture and punishment be inflicted upon those who are under the same roof, still, any who knew of the crime or were participants in it must be subjected to punishment, and the estate can be entered upon, and the will opened, even before torture is inflicted.

(22) Where a person lays violent hands upon himself, there is indeed no ground for the application of the Decree of the Senate; still, his death should be avenged. For example, if he committed the act in the presence of his slaves, and they could have prevented it, they should be punished, but if they were unable to prevent it, they will be free from liability.

(23) Where anyone lays violent hands upon himself, not through remorse for some crime which he has committed, but through being weary of life, or unable to suffer pain, the manner of his death does not prevent his will from being opened and read.

(24) It should also be noted that, unless it is established that a man has been killed, his slaves ought not to be tortured. Hence, it must positively be ascertained that the party owed his death to crime, for the Decree of the Senate to be applicable.

(25) We, however, understand the term torture to mean not merely being put to the question, but every inquiry and defence that may be made in the investigation of the death of the master.

(26) Again, this Decree of the Senate punishes, without exception, all those slaves, "Who live under the same roof"; but such as are not under the same roof, but in the same neighborhood, shall not be punished, unless they have knowledge of the crime.

(27) Let us consider what must be understood by the term "under the same roof"; whether it means within the same walls, or outside, within the same enclosure, within the same apartment, or the same house, or the same garden, or the entire residence. Sextus says that it has often been decided that wherever slaves were if they could have heard the voice of their master, they shall be punished just as if they has been under the same roof; although some persons have louder voices than others, and all cannot be heard from the same place.

(28) With reference to this, it appears that the Divine Hadrian also stated the following in a Rescript: "Whenever slaves can afford assistance to their master, they should not prefer their own safety to his. Moreover, a female slave who is in the same room with her mistress can give her assistance, if not with her body, certainly by crying out, so that those who are in the house or the neighbors can hear her; and this is evident even if she should allege that the murderer threatened her with death if she cried out. She ought, therefore, to undergo capital punishment, to prevent other slaves from thinking that they should consult their own safety when their master is in danger."

(29) This Rescript contains many provisions, for it does not spare anyone who is in the same room, and does not excuse a slave who fears death, and requires slaves to summon aid to their masters by crying out.

(30) Where a master is killed while on one of his estates in the country, it would be extremely unjust if all the slaves who are in that neighborhood should be subjected to torture and punishment, if the said estate is very large. It will then be sufficient for those to be put to the torture who were with him when he was said to have been killed, and who appeared to be liable to suspicion of having committed the murder, or of having knowledge of it.

(31) Where a master was murdered while on a journey, the slaves who were with him at the time he lost his life, or those who had been with him and took to flight, should be subjected to punishment. If, however, no one was with him at the time he was killed, these Decrees of the Senate do not apply.

(32) A male or a female slave who has not yet reached the age of puberty is not included in this category, for their age is deserving of excuse.

(33) Shall we grant a slave, who has not yet attained puberty, indulgence merely with reference to punishment, or does this also relate to torture? The better opinion is that torture should not be inflicted upon a slave under the age of puberty; and, besides, it is the custom ordinarily observed that minors shall not be put to the torture, but only be frightened, or be whipped with a rod, or a leather thong.

(34) Slaves are excused who have obtained aid without fraudulent intent; for if one should pretend to be of assistance, or should bring it merely for the sake of appearance, this will be of no advantage to him.

(35) A slave is considered to have rendered assistance to his master not only when he has preserved him from harm, that is to say, when he could have exerted his power to the extent of saving him, but also when, although he did all that he could, he was unable to prevent his master from being killed; for example, where he cried out for the purpose of obtaining aid, or frightened the persons who were attacking his master, or if he assembled a crowd of people, or interposed his body between them and his master, or afforded him protection in any other way by means of his body.

(36) A slave who cries out is not, however, always considered to have aided his master; for what, if when he could have averted the danger from him, he chose to cry out in vain? He should undoubtedly be punished.

(37) But what if the slaves should be wounded while they are protecting their master? It must be said that they should be excused unless they inflicted wounds upon themselves purposely in order to avoid being punished; or if they did not receive wounds sufficiently serious to prevent them from still assisting their master, if they had desired to do so.

(38) Where the master, being mortally wounded, survives for a certain time, without complaining of any of his slaves, even if they should be under the same roof with him, they must be spared.

2. Callistratus, Concerning Judicial Inquiries, Book V.

The Divine Marcus Commodus stated in a Rescript to Piso the following: "Since it has been proved before you, my dear Piso, that Julius Donatus, after having been alarmed by the approach of robbers, took refuge in his country-house, and was wounded, and afterwards, having executed a will, manifested his affection for his slaves, neither his regard for them, nor the solicitude of the heir should allow punishment to be inflicted upon those whom the master himself has absolved".

3. Ulpianus, On the Edict, Book L.

Where a slave who was suffering from serious illness could not render his master assistance, he must be granted relief.

(1) If anyone while dying says that he was killed by his slave, it must be held that the master should not be believed, if he made this statement at the point of death, unless it can otherwise be proved.

(2) If a husband should kill his wife, or a wife should kill her husband at night, while they were together in their bedroom, the slaves will not be liable to punishment under the Decree of the Senate; but if they heard cries, and did not render assistance, they shall be punished, not only if they belong to the wife, but also if they belong to the husband.

(3) Where, however, a husband kills his wife caught in the act of adultery; for the reason that he himself is excused, it must be held that his slaves, as well as those of his wife, are free from liability, if they did not resist their master while seeking just reparation for a grievance.

(4) Where several masters, owning a slave in common, are attacked, and the slave only assists one of them, shall he be excused, or, indeed, shall he be punished for not assisting all of them? The better opinion is, that he should be subjected to punishment, if he could have assisted all of them, but only assisted one. If, however, he could not assist all at the same time, he must be excused, because he only afforded aid to one, for it would be harsh to claim that where a slave could not protect two of his masters, that he was guilty of crime for having chosen to protect but one of them.

(5) Wherefore, if a slave belonging to the wife should assist her husband rather than his mistress, or vice versa, it must be said that he ought to be excused.

(6) Those slaves must be excused who, at the time their master or mistress was killed, were shut up without bad faith on their part, so that they could not break out for the purpose of rendering assistance, or of seizing those who committed the murder. Nor does it make any difference by whom they were shut up, provided this was not done on purpose to prevent them from bringing aid. We understood the term "shut up" also to mean where they are bound, provided they have been bound in such a way that they cannot release themselves, and render assistance.

(7) Those also are excused who are incapacitated on account of age.

(8) A deaf slave also should be included among those who are infirm, or who do not live under the same roof; because as the latter cannot hear anything on account of the distance, so the former can hear nothing on account of his affliction.

(9) A blind slave also deserves to be excused.

(10) We must likewise except a dumb slave, but only where he could render aid by means of his voice.

(11) There is no doubt whatever that slaves who are insane should be excepted.

(12) Where anyone knowingly receives, or conceals through fraud a male or a female slave who belonged to the deceased, and who is liable to punishment on account of not having assisted him when the crime was committed, he is in the same position as if he had been guilty of the crime as prescribed by the law enacted with reference to assassins.

(13) Where a slave is due by reason of a stipulation, and discloses who committed the murder of his master, and on this account is directed to be free by way of reward, an action based on the stipulation shall not be granted to the stipulator, for it would not be granted if the slave had been subjected to punishment. Where, however, the slave did not live under the same roof with his master, an equitable action based on the stipulation will be granted to the creditor to recover the estimated value of the slave.

(14) But does this only apply to a slave who seems to have indicated or proved who committed the crime, if he did this voluntarily; or shall he also be included who, when he was accused, threw the responsibility of the crime upon another? The better opinion is, that he is entitled to the reward who voluntarily came forward with the accusation.

(15) Those slaves also, who otherwise would be unable to obtain their freedom, for instance, where they have been sold on condition that they will never be manumitted, can become free by an act of this kind, because it is conducive to the public welfare.

(16) Punishment must also be inflicted upon slaves who have been manumitted by will, just as upon other slaves.

(17) Torture and punishment must also be inflicted upon any slaves who, before the will of their murdered master or mistress has been opened, take to flight, and who afterwards, when the will is opened are found to have been left their freedom, just as upon other slaves. For it is perfectly just that the kindness of their masters should not stand in the way of their being avenged, and the more the slave has enjoyed their favor, the more serious punishment he deserves for his crime.

(18) It is provided by the Edict that where anything has been bequeathed by will by the person who is said to have been killed, no one who is aware of this shall open, read, or copy the will, before the slaves have been tortured and punishment is inflicted upon the guilty, in compliance with the Decree of the Senate; otherwise he will be guilty of bad faith.

(19) He is considered to have opened a will who opens it in the ordinary way, whether it is sealed, or not fastened with a cord, but merely closed.

(20) We must understand the term "to open", to mean that we are forbidden to open the will in the presence of anyone, or publicly, or secretly; for every kind of opening is prohibited.

(21) Where anyone who did not know of the murder opens a will he should not be held liable under this Edict.

(22) And if he should be aware of the death of the testator, but does not open the will in bad faith, he will also not be liable, or if he does this through inexperience, or through rusticity is not aware of the existence of the Edict of the Praetor, or the Decree of the Senate.

(23) Where anyone does not open a will in the ordinary way, but cuts the cord with which it is tied, he will be excused, because he is not guilty of bad faith who does not open the will itself.

(24) Where, not the entire will, but only a portion of the same, is opened, it must be said that the person who opens it comes within the terms of the Edict, for it makes but little difference whether the entire will, or only a part of it, is opened.

(25) Where anyone opens a codicil, but does not open the will, he becomes liable under the Edict, because the codicil forms a part of the will.

(26) There is ground for the enforcement of the Edict whether the will that is opened is valid, or not.

(27) The same rule applies to those matters which relate to the substitution, where a male or a female minor is alleged to have been killed.

(28) When one person opens a will, and another reads it publicly, and a third copies it, all of those who did these things separately will be liable under the Edict.

(29) This Edict has reference not only to testamentary estates but also to intestate successions, in order to prevent anyone from entering upon the estate, or demanding praetorian possession of property belonging to the same, before torture has been inflicted upon the slaves, lest an heir might conceal the crime of his slaves for his own advantage.

(30) Scaevola very properly says that anyone will transmit to his heir the right to bring praetorian actions if he should happen to die before entering upon the estate, and it should be ascertained that he did not do so because he feared to become liable under the Decree of the Senate and the Edict.

(31) If I should order a condition to be complied with between a certain day and the time of my death, and the heirs do not comply with it through ignorance, and, for the reason that such ignorance existed, the will could not be opened without incurring the penalty of the Decree of the Senate; relief should be granted to the heirs to enable them to fulfill the condition.

(32) Where any other impediment than fear of violating the Decree of the Senate exists to prevent entrance upon the estate or opening of the will, that arising from the Decree of the Senate, if there is any other, will be of no advantage to the heir; as, for instance, if the wife of the murdered man was pregnant, or was even supposed to be in that condition, and for this reason the appointed heir could not enter upon the estate.

4. Papinianus, Opinions, Book VI.

A man appointed his posthumous children his heirs, and, in case none should be born, substituted his wife, and he was said to have been killed by his slaves, and his wife died; the woman's heirs petitioned that the estate should be given to them by virtue of the substitution. I gave it as my opinion that they should only be heard if the wife was proved not to have been pregnant, and declined to enter upon the estate on account of the Decree of the Senate. If, however, she should die while pregnant, no complaint could be made that any injury had been done to them.

5. Ulpianus, On the Edict, Book L.

I think that necessary heirs are included in the Edict, if they interfere in the business of the estate.

(1) The Praetor does not permit the possession of the estate to be demanded under these circumstances; and I think that the Edict applies to all praetorian possession.

(2) Property belonging to an estate shall not be confiscated, unless it is established that the head of the household was killed, and that the heir entered upon the estate before the slaves were put to the question, and punished.

(3) Where anyone dies through neglect, or through the treachery of a physician, his estate can be entered upon; but the duty of avenging his death devolves upon the heir.

6. Paulus, On the Edict, Book XLVI.

Even if the murderer should be well known, torture must still be inflicted, in order that the instigator of the crime may be detected. Moreover, the murderer himself shall, by all means, be put to the question, and the other slaves also punished.

(1) Although slaves shall not be tortured except where their master is accused of a capital crime; still, torture can be properly inflicted even if the heir is accused, whether he be a foreign, or the proper heir.

(2) Where one of two masters does not appear, the slaves held in common shall be put to the question to ascertain what has happened to him; for they are tortured to ascertain something with reference to the fate of the master who does not appear, rather than to avenge his death, or to obtain information which may implicate the master who is present in a capital crime.

(3) Where a master has been attacked, but not killed, nothing is provided by the Decree of the Senate, for he himself can punish his own slave.

7. The Same, On the Silanian Decree of the Senate.

And in this instance, he will enjoy an extraordinary privilege with reference to his freedman.

8. The Same, On the Edict, Book XLIX.

It is provided by the Pisonian Decree of the Senate that: "Where a slave is liable to some penalty and is about to be punished, the vendor shall refund the price paid for him to the purchaser;" which was enacted by the Senate to avoid any injury being done to the purchaser.

(1) Where a son under paternal control, who has made a testamentary disposition of his castrense peculium, is killed, it should undoubtedly be maintained that under these circumstances the estate of the deceased will belong to the Treasury, if his heirs have entered upon his estate, and did not avenge his death; just as in a similar instance, the estate of the head of a household will also be forfeited.

9. Gaius, On the Provincial Edict, Book XVII.

When the property of a deceased person is confiscated by the Treasury because his death was unavenged, an action is granted against it in favor of the legatees, and all grants of freedom to slaves shall be perfected; that is to say, of such as are excepted from the provisions of the Decree of the Senate.

10. Paulus, On the Silanian Decree of the Senate.

Where a disinherited son is killed before the estate of his father has been entered upon, consideration must be paid to what takes place, so that, if the estate is accepted, the slaves will not be held to belong to another; but if the will should become void, measures must be taken just as if the son had been their master, because they would have belonged to him if he had lived.

(1) It was established by a Constitution of the Divine Trajanus that freedmen whom the deceased had manumitted could be put to the question.

11. Tryphoninus, Disputations, Book II.

The same rule will apply to those who have obtained the right to wear rings.

12. Paulus, On the Silanian Decree of the Senate.

Where a slave has been bequeathed by a testator who was murdered, and the Praetor decides that he was entitled to his freedom by way of reward, it must be said that his freedom cannot be prevented.

13. Venuleius Saturninus, On Public Prosecutions, Book II.

During the Consulate of Taurus and Lepidus, the term of five years was established by a Decree of the Senate for the institution of criminal proceedings, where the will of a man who was said to have been killed by his slaves had been opened contrary to the Decree of the Senate, which provision, however, only applies to strangers; for, by the same Decree of the Senate, those who are liable to punishment for parricide can always be accused without reference to lapse of time.

14. Marcianus, On Public Prosecutions, Book XI.

Slaves who have not reached the age of puberty are excepted from the operation of the Silanian Decree of the Senate. The Deputy, Trebius Germanus, however, ordered punishment to be inflicted upon a slave under the age of puberty; and this was not without reason, because the boy was very little under that age, and was sleeping at the feet of his master at the time when he was killed, and did not afterwards disclose that he had been murdered. As it was proved that he was unable to have assisted him, it was also certain that he afterwards kept silent; and it was held that boys under the age of puberty could only be excused from liability under the Decree of the Senate, where they had merely been under the same roof with their master, but where such slaves had been the principals or accomplices in the crime, and were of such an age as to understand what they were doing (even though they may not have reached the age of puberty), they should not be excused from responsibility for the murder of their master any more than for anything else.

15. Marcianus, On Informers.

Where substitutes avenge the death of the testator, shall the estate be transferred to them? Papinianus says that it should not, for the penalty of the first degree ought not to be the reward of the second.

(1) Where a legacy was bequeathed to an heir appointed to a portion of the estate, and he failed to avenge the death of the deceased, the Divine Severus and Antoninus stated in a Rescript that he should be deprived of the share of the estate which had been bequeathed to him.

(2) Estates bequeathed by will, as well as those derived from intestate succession, must be taken away from heirs who have been derelict in avenging the death of the deceased (even if they appear as patrons), although they may be entitled to the succession as direct heirs.

16. Marcellus, Digest, Book XII.

Where a master was killed by one of his slaves, and a slave who was owned in common by the deceased and another party detected the criminal, he should be liberated on account of the favor due to freedom, but the partner should be paid his share of the value of the slave.

17. Modestinus, Rules, Book VIII.

The slaves should first be put to the torture, and if they confess should then be interrogated, in order that it may be ascertained at whose instigation they committed the crime.

18. The Same, Rules, Book IX.

It is not forbidden to complain of an inofficious testament, and to avenge the death of the defunct at the same time. Paulus rendered this opinion.

19. The Same, Pandects, Book VIII.

When a master is attacked, his slaves should attempt to assist him with arms, and with their hands, with cries, and with the interposition of their bodies. If anyone should not offer assistance when he is able to do so, he shall deservedly be subjected to punishment for this reason.

20. Papinianus, Opinions, Book II.

An heir, who is instituting a prosecution for poisoning, is not forbidden to transact urgent business relating to the estate, if he preserves all evidence and proofs of the crime.

21. The Same, Opinions, Book VI.

The time for demanding the possession of the property of an estate shall not be delayed on account of any question arising out of the poisoning; and the claim may properly be made while the proof of the crime is still in abeyance. The Senate determined otherwise where a master was said to have been killed by his slaves, because as it was necessary that the freedom of said slaves should not be granted them at once, in order that they might be put to the torture. A granddaughter, who had demanded possession of the estate of her grandmother, being aware that she had been killed, did not avenge her death. It was held that a trust which the grandmother owed to her granddaughter, by virtue of the will of another, should not be deducted from the estate of the grandmother, when it was confiscated by the Treasury, for the bad faith of the heir must be punished.

(1) If, however, the woman had lost the benefit of the bequest through mere negligence, it is just that the trust should be deducted, the right of the obligation remaining unimpaired.

(2) Where persons guilty of murder have been discharged through the injustice of the Governor, it is held that the heirs should not be deprived of the estate if they have properly discharged their duty, even though they may not have appealed from the decision.

22. Paulus, Opinions, Book XVI.

Gaius Seius, while in a feeble condition, complained that he had been poisoned by his slaves, and then died. His sister, Lucia Titia, became his heir, and after his death neglected to prosecute his murderer. She herself died ten years afterwards, and someone gave notice that the estate of Gaius Titius was liable to forfeiture. I ask whether the criminal prosecution was extinguished by the death of Titia. Paulus answered that, in the case stated, it did not appear to be extinguished by the death of the ungrateful heir, as a pecuniary penalty was involved.

23. Marcianus, Concerning Trusts, Book XIII.

If a will should be opened before it was known that the testator had been killed, and then the crime should be ascertained to have been committed, I think that, where proper cause is shown, the appointed heir should be compelled to enter upon the estate which he declared was insolvent, and make restitution in accordance with the Trebellian Decree of the Senate.

24. Ulpianus, On the Edict, Book L.

Where anyone is compelled to enter upon an estate which he has reason to suspect of being insolvent, he will not be liable under the Edict.

25. Gaius, On the Provincial Edict, Book XVII.

It is provided by the Cornelian Law with reference to the reward to which an accuser is entitled who seeks out and gives information of the whereabouts of slaves who have fled before torture was applied, that he shall receive five aurei out of the estate of the deceased for each slave that he convicts, or if this sum can not be obtained from that source, it shall be paid out of the Public Treasury. This reward shall not be given for the apprehension and conviction of every slave who was under the same roof and in the same place with the deceased, but only for those who are found guilty of the murder.

(1) It is also provided with reference to those slaves who fled before torture was applied, that if, after the will has been opened, it should be found that they were granted their freedom thereby, judgment shall be rendered in accordance with the law relating to assassins: so that they cannot defend themselves after having been imprisoned, and that if they are convicted, they shall be punished just like slaves, and ten aurei shall be taken out of the estate, by way of reward, and given to the party who convicted them.

(2) Proceedings are instituted under this Edict against a person who, contrary to the provisions of the Edict of the Praetor, is said to have opened the will, or to have committed some other act, in violation of them; for (as in evident from what has been previously stated) there are many things on account of which the penalty prescribed by the Edict can be imposed. It is clear that this action is a popular one, and its penalty is a hundred aurei to be taken from the property of the person who is convicted; and the Praetor promises that half of said sum shall be given by way of reward to him by whose efforts the criminal was found guilty, and the other half shall be turned into the Public Treasury.

26. Scaevola, Digest, Book XXXIV.

Gaius Seius owed Titius property under a trust established by the will of his cousin, and Titius received it from the heirs of Seius. The question arose, as the heirs of Gaius Seius did not avenge his death, whether Titius could, nevertheless, accuse these heirs as being unworthy to obtain the estate, because they had not avenged his death; and whether the fact that he had received from them the trust to which he was entitled under the will of his cousin, the deceased, would not stand in his way. The answer was that, in accordance with the facts stated, there was no reason that it should be considered an obstacle.

27. Callistratus, On the Rights of the Treasury, Book I.

Where there are several heirs, and the will is opened against the consent of some of them, or without their knowledge, those who are free from blame will not lose their shares of the estate.
 


Tit. 6. Where anyone prevents another prom making a will, or compels him to make one.


 
1. Ulpianus, On the Edict, Book XLVIII.

The Divine Hadrian decreed that if anyone, while endeavoring to obtain possession of an estate to which he was entitled either by descent or by will, should prevent a person from entering, who had been sent for, either to draw up a will which the testator desired to execute, or to change one already made, he shall be denied the right to bring any action, and when this is done, the Treasury will be entitled to the estate.

(1) Where a master acting in bad faith prevents a will from being changed by which his slave had been appointed heir, even though, having been manumitted, the latter should enter upon the estate, he shall be denied all rights of action, and his children, if anything has been left to them, shall also lose their rights, even though they are not under his control. Where, however, a legacy has been left to the master in trust, and he is requested to pay it, it must be said that he can receive the legacy, since he himself is not entitled to it, but it must be transferred to another.

(2) Where several heirs have been appointed, and all of them are guilty of bad faith in preventing a will from being changed, it must be said that rights of action shall be refused all of them, because all have acted fraudulently.

2. Paulus, On the Edict, Book XLIV.

Where anyone acts in bad faith in order to prevent the appearance of witnesses to a will, and by this means the power of making the will is lost, all rights of action shall be refused to the party responsible for the fraud, whether he is the heir-at-law, or was appointed under a former will.

(1) The act of a brother, however, under these circumstances, does not injure his brother.

(2) Where he who committed the fraudulent act was charged with the transfer of the estate, it will be forfeited with all liabilities, so that the Treasury will obtain the benefit of the Falcidian Law, and the beneficiary of the trust will receive three-fourths of the estate.

3. Papinianus, Opinions, Book XV.

Where a husband does not, by employing either force or fraud, interfere to prevent his wife from changing, by means of a codicil, a will which she had made in his favor but (as often happens), merely attempts to appease the anger of his wife by marital remonstrances; I gave as my opinion that he was not guilty of any offence, and should not be deprived of what had been given him by the will.
 


Tit. 7. Concerning the law of codicils.


 
1. Ulpianus, Disputations, Book IV.

It has very frequently been set forth in Rescripts and Imperial Constitutions, that where a testator was under the impression that he had made a will (but which was void as such), and did not intend it to be valid as a codicil, he is held not to have executed a codicil. Therefore, whatever is included in a will of this kind will not be due, although it would have been if included in a codicil.

2. Julianus, Digest, Book XXXVII.

Where a child is born after a will has been executed, and before a codicil is written, and anything is left to it in trust by the codicil, it will be valid.

(1) If, however, he to whom anything was given should die after the execution of the will, and before the codicil in which the bequest is made is executed, it will be considered as not having been written.

(2) A rule peculiar to a codicil is that whatever is included in it shall be considered to have the same effect as if it had been included in the will. Hence freedom is not legally granted to a slave who, at the time of the execution of the will, was the property of the testator, but, when the codicil was executed, belonged to another. And, on the other hand, if the slave belonged to another at the time that the will was made, and at the time of the execution of the codicil had become the property of the testator, freedom is then understood to have been granted to a slave belonging to another; and therefore, although it cannot be directly bestowed, still recourse can be had to a trust.

(3) An insane person is not understood to have the power to make a codicil, for the reason that he is not considered to be competent to perform any other act; since, in the transaction of every kind of business, he is held to be in the position of one who is absent, or who takes no part in the transaction.

(4) Where an estate is fruitlessly bequeathed by a will, it cannot be confirmed by a codicil, but it can be claimed under a trust, with a reservation of the amount granted by the Lex Falcidia.

3. The Same, Digest, Book XXXIX.

Where anyone who has not made a will establishes a trust, by means of a codicil, as follows: "Whoever shall be my heir, or the praetorian possessor of my estate, I leave to him as trustee," the sums left under the trust must be paid, because the head of the household who had the power to make a will, and made a codicil, is in the same position as if all those were his heirs into whose hands the estate will come either through descent or through possession under Praetorian Law.

(1) Where a child is born after the execution of a codicil, and it is the next of kin, or the direct heir, it will not be obliged to pay any sums left in trust, for it is also understood to be the appointed heir, and therefore it should not be considered as having broken the codicil.

(2) Where a will has been made, even if a codicil should not be confirmed by it, the codicil will, nevertheless, obtain all its force and effect from the will. Again, if the estate is not entered upon by virtue of the will, a trust created by a codicil of this kind will be of no validity whatever.

4. The Same, Digest, Book LXIII.

It has been decided that a testator who was solvent at the time of making a codicil can legally grant freedom to his slaves, although he may not have been solvent at the time when the will was executed.

5. Papinianus, Opinions, Book VII.

A codicil which precedes a will is not valid unless confirmed by the will or by a second codicil subsequently executed, or where its provisions are established by some other expression of the intention of the testator; but any different dispositions that the deceased may subsequently make shall not stand.

6. Marcianus, Institutes, Book VII.

The Divine Severus and Antoninus stated in a Rescript, where a mother appointed her children her heirs absolutely, but, in a codicil, added a condition of emancipation, that her act was void; because she could not impose a condition upon an heir who had been appointed, or directly make a substitution under a codicil.

(1) Anyone can make several codicils, and it is not necessary for him to write or seal them with his own hand.

(2) Although, in the confirmation of a codicil, the head of a household may have added that it was not his intention that it should be valid, unless it was sealed and signed with his own hand; still, the codicil made by him will be valid, even if it had neither been signed nor sealed with his own hand, for subsequent dispositions annul those which precede them.

(3) He only can make a codicil who is competent to make a will.

(4) If anyone, by a codicil, should bequeath a legacy to a person who died after he had made his will, the bequest will be considered as not having been made, even though the codicil may have been confirmed by the will.

7. The Same, Rules, Book II.

There are certain dispositions which do not relate to the confirmation of codicils; as, for instance, where anyone confirms a codicil before being taken prisoner, and writes a codicil while in captivity, for such a codicil will not be valid. The same rule applies where a person in some way or other ceases to possess testamentary capacity.

(1) Moreover, in questions which are rather those of fact than of law, what is included in a codicil is not to be considered as if it had been written at the time when the codicil was confirmed; for example, if it should be stated in the codicil, "That such-and-such a garment which belongs to me is bequeathed", the time that the codicil was written, and not that when it was confirmed, should be considered. Again, if a bequest is made to Seius by a codicil as follows, "If Titius is living", or "If he is so many years old", the date of the codicil, and not that of the will, should be considered.

8. Paulus, On the Law of Codicils.

Codicils are drawn up in four ways: for they are either to be confirmed in the future; or have been confirmed in the past; or they are made by means of a trust, where a will has been executed; or where there is no will.

(1) Those who succeed to an estate ab intestato can be charged with a trust, as it is considered that the deceased has voluntarily left them the estate to which they were entitled by law.

(2) A codicil is valid whenever the party who executed it was competent to make a will. But it must not be understood that we require him to have been competent to make a will at the time when he wrote the codicil. (For what if he was unable to obtain a sufficient number of witnesses?) It is indispensable, however, for him to have had the legal right to make a will.

(3) If anyone, by his will, should confirm a codicil to be made hereafter, and then offer himself to be arrogated, and afterwards make a will, and die emancipated; the question arises whether the legacies bequeathed by the codicil should be paid, as the will is valid ? He, however, executed the codicil at a time when he did not have testamentary capacity; and this case is not similar to that of a dumb person, who can legally confirm a codicil; for, although he is not competent to make a will, still one which he made before he became dumb remains in the same condition; but the will of this party is void, and, he is in a certain way disposing of the property of others by means of it. We hold, however, that the codicil is valid, for even if the birth of a posthumous child should break the will, and it should afterwards die, the codicil will still be valid.

(4) Where a soldier executes a will before entering the army, and executes a codicil after his enlistment, the question arises whether the codicil will be valid under military law, since a will made under such circumstances is valid by the Common Law only where the soldier did not seal it, or make some addition to it during the term of his military service. It is certain that the codicil made during military service should not be referred back to the will in order to establish its validity, but is valid by military law.

(5) Where freedom is granted by a codicil to a slave who had also received a legacy by will, we say that the legacy is valid, just as if it had been so from the beginning.

(6) Where anyone confirms a codicil of a certain kind, for instance, "the one which I shall execute last", the provisions contained in any codicil will not be considered to be valid immediately, so long as others can be made; and therefore if others should be made subsequently, all grants of legacies by former ones will be void.

9. Marcellus, Digest, Book IX.

Aristo denies that a codicil is valid where it is made by a person who was ignorant as to whether or not he was the head of the family. Ulpianus states in a note, "Unless he had served in the army, for then his will will be valid".

10. Papinianus, Questions, Book XV.

The opinion that an estate cannot be bequeathed by a codicil has been handed down from former times, and the reason for this is to prevent the will, which obtains all its force from the appointment of the heirs, from appearing to be confirmed by means of a codicil, which itself is dependent upon the will for its validity.

11. The Same, Questions, Book XIX.

A certain man who was not aware that his wife was pregnant, in a codicil directed to his son, liberated some of his slaves. After the death of the father, a daughter was born to him, and as it was established that her father had not had her in his mind at any time, it was held that the grant of freedom should be made by the son alone:

12. The Same, Questions, Book XXII.

After the sister had been reimbursed for her share of the slaves.

13. The Same, Questions, Book XIX.

For it can undoubtedly be maintained that the daughter could not be compelled to manumit the slaves, since her father requested nothing of her, and she becomes an heir in her own right.

(1) The point is often discussed as to what conclusion should be reached, where a man did not make a will, but stated in a codicil: "I wish Titius to be my heir". It makes a great deal of difference whether he left the estate in trust in charge of his lawful heir, by means of this instrument, which he intended for a codicil, or whether he thought that he was making a will, for, in this case, Titius could claim nothing from the lawful heir. The intention of the party in question is generally ascertained by the examination of the instrument itself. For if he left a legacy to be discharged by Titius, and appointed a substitute for him, if he should not be the heir, there is no doubt that he should be understood to have intended to make a will, and not a codicil.

14. Scaevola, Questions, Book VIII.

Certain authorities hold (as I recollect) that in Vivianus a controversy is explained which arose between Sabinus, Cassius, and Proculus with reference to the question whether legacies given, or taken away by a codicil from persons who died after they were appointed heirs, were due to the substitutes; that is to say, whether the giving or the taking away of the legacies was as valid where they were provided for by a codicil, as they were when provided for by a will. It is said that Sabinus and Cassius answered that this was the case, and that Proculus dissented. The conclusion of Sabinus and Cassius, (as they themselves assert) is that the codicil is considered as part of the will, and that it sustains the observance of the law with reference to the delivery of the property. Still, I venture to say that the opinion of Proculus is the more correct; for a legacy is of no force or effect which is bequeathed to one who, at the time the codicil was made, was not in existence, even though he was living at the time when the will was drawn up; as it should belong to him to whom it is given. Then the question should be asked whether the legacy was properly bequeathed, so that the rule of law shall not be inquired into before the existence of the person is ascertained. In the case stated, therefore, the bequest is of no force or effect, if it was made or taken away by a codicil, after the death of the heir; for the reason that the heir referred to was not in existence, and the deprivation or the grant of the legacy becomes void in consequence. This would not apply where a substitute is given for an heir appointed to the entire estate, as the codicil would be confirmed by the appointment.

(1) Where two heirs have been appointed, and substitutes assigned, and one of them should die, the legacies will still be considered valid; but some discussion arose with reference to the co-heir, and whether he owed the entire legacy, where the bequest was as follows: "Whoever shall be my heir." Or must it be held that all is not due, for the reason that the heir who was substituted should pay a portion of the same, even though he himself does not owe it? The same discussion may arise with reference to specified obligations ; but I think that there is much more ground for the co-heir being liable for the entire legacy, because the party who was joined with him is no longer in existence.

15. 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.

16. Paulus, Questions, Book XXI.

Where a codicil is made without a will having been drawn up, the successor of the deceased, even though he was born after the codicil was executed, will owe whatever legacies were bequeathed by the same; for the codicil is valid, no matter who the heir may be who is entitled to the intestate succession; for only one case was taken into consideration, and it does not make any difference who obtains the estate, provided he succeeds ab intestato. The codicil depends upon the will, if one was made, no matter at what time this was done. And (in order that I may express myself more clearly) where the head of a household dies intestate, the codicil requires no confirmation, but takes the place of a will. Where, however, a will has been made, the codicil is governed by the same law.

17. The Same, Sentences, Book III.

Letters by which an estate is promised, or affection is expressed, have not the force of a codicil.

18. Celsus, Digest, Book XX.

Plotiana to her friend, Celsus, Greeting. Lucius Titius made the following provision in his will: "If I leave anything by will in any document, which in any way relates to this will, I desire it to be valid." I ask whether a codicil made before this will should be confirmed. Juventius Celsus to Plotiana, Greeting. These words: "If I leave anything which relates to this will, I desire it to be valid," also include everything which was bequeathed before the will was made.

19. Marcellus, Digest, Book XIV.

A father, who had an only son, made a codicil directed to him, and died intestate, leaving as his heir a son whom he had begotten after he had made the codicil. No one can say that the codicil was annulled, and therefore if the deceased did not expect to have a posthumous heir, the codicil will not become void through his death; and the son to whom it was directed will be compelled to pay the legacy in proportion to his share of the estate, but the posthumous son will not be compelled to pay anything. But if he, at the time of his death, should have left two surviving sons, but thought that one of them was dead, in like manner, it can be held that the son to whom the codicil was directed may be compelled to pay the entire legacy, just as if he had been the sole heir of his father; but he will only owe a sum in proportion to his share of the estate. Still, no part of a legacy which cannot be divided shall be paid, as the father would not have deprived his son of his share, unless he had thought that he would be his sole heir.

20. Paulus, On the Lex Julia et Papia, Book V.

Where an heir has been orally appointed, and the bequests of the legacies have been reduced to writing; Julianus says that this instrument should not be understood to be a will in which the heir is not mentioned, but it should rather be considered a codicil, and I think this to be the more correct opinion.