De religiosis et sumptibus funerum et ut funus ducere liceat
(Concerning religious places, the expenses of funerals, and the right to conduct the same.)
1 Ulpianus libro decimo ad edictum. Qui propter funus aliquid impendit, cum defuncto contrahere creditur, non cum herede.
1 Ulpianus, On the Edict, Book X. Where anyone expends anything on account of a funeral, he is considered to have made the contract with the deceased and not with his heir.
2 Idem libro vicensimo quinto ad edictum. Locum in quo servus sepultus est religiosum esse Aristo ait. 1Qui mortuum in locum alienum intulit vel inferre curavit, tenebitur in factum actione. ‘in locum alterius’ accipere debemus sive in agro sive in aedificio. sed hic sermo domino dat actionem, non bonae fidei possessori: nam cum dicat ‘in locum alterius’, apparet de domino eum sentire, id est eo cuius locus est. sed et fructuarius inferendo tenebitur domino proprietatis. an et socius teneatur, si ignorante socio intulerit, tractari potest: est tamen verius familiae erciscundae vel communi dividundo conveniri eum posse. 2Praetor ait: ‘Sive homo mortuus ossave hominis mortui in locum purum alterius aut in id sepulchrum, in quo ius non fuerit, illata esse dicentur.’ qui hoc fecit, in factum actione tenetur et poena pecuniaria subicietur. 3De ea autem illatione praetor sensit, quae sepulturae causa fit. 4Purus autem locus dicitur, qui neque sacer neque sanctus est neque religiosus, sed ab omnibus huiusmodi nominibus vacare videtur. 5Sepulchrum est, ubi corpus ossave hominis condita sunt. Celsus autem ait: non totus qui sepulturae destinatus est, locus religiosus fit, sed quatenus corpus humatum est. 6Monumentum est, quod memoriae servandae gratia existat. 7Si usum fructum quis habeat, religiosum locum non facit. sed et si alius proprietatem. alius usum fructum habuit, non faciet locum religiosum nec proprietarius, nisi forte ipsum qui usum fructum legaverit intulerit, cum in alium locum inferri tam oportune non posset: et ita Iulianus scribit. alias autem invito fructuario locus religiosus non fiet: sed si consentiat fructuarius, magis est ut locus religiosus fiat. 8Locum qui servit nemo religiosum facit, nisi consentiat is cui servitus debetur. sed si non minus commode per alium locum servitute uti potest, non videtur servitutis impediendae causa id fieri, et ideo religiosus fit: et sane habet hoc rationem. 9Is qui pignori dedit agrum si in eum suorum mortuum intulerit, religiosum eum facit: sed et si ipse inferatur, idem est: ceterum alii concedere non potest.
2 The Same, On the Edict, Book XXV. Aristo says that a place in which a slave has been buried is religious. 1A party who has placed a dead body in the premises of another or caused this to be done, is liable to an action in factum. We must, however, understand “the premises of another” to mean either a field or a building; but these words grant the action to the owner, not to a possessor in good faith; for when the statement is made “In the premises of another,” it is apparent that the owner is meant, that is the party to whom the ground belongs. Even when an usufructuary makes the interment, he will be liable to the mere owner of the property. It is debatable whether a joint-owner is liable if he acted without the knowledge of his co-owner; but the better opinion is that he can be sued in an action for the partition of an estate, or in one for the division of common property. 2The Prætor says: “Where the body or bones of a dead man are said to have been taken to ordinary ground or to a burial place in which the party had no right, he who does this is liable to an action in factum, and will be subjected to a pecuniary penalty.” 3The “taking” which the Prætor was thinking of is that which occurred for the purpose of burial. 4Ground is styled “ordinary” which is neither sacred, consecrated, nor religious, but is a locality to which none of these adjectives will apply. 5A burial-place is a spot where human bodies or bones are deposited. Celsus, however, says that a place which is destined for burial does not become religious entirely, but only that portion of it where the body is laid. 6A monument is whatever is erected for the purpose of preserving the memory of the deceased. 7When anyone has an usufruct, this does not render the place religious. Where, however, one party has the mere ownership, and another the usufruct, the latter cannot make the place religious, nor can the mere owner do so, unless he should happen to bury there the party who bequeathed the usufruct, since he could not be so conveniently buried elsewhere; and this was the opinion of Julianus. The place, however, cannot be rendered religious if the usufructuary is not willing; but if he consents, the better opinion is that it becomes religious. 8No one can make a place religious which is subject to a servitude, unless the party entitled to the servitude consents. But if the party can make use of the servitude no less conveniently in some other place, it cannot be held that the burial was made for the purpose of interfering with the servitude, and therefore the place becomes religious; and indeed this is reasonable. 9Where a person has given his land in pledge and buries one of his own family therein, he will make it religious; and if he himself should be buried there, the same rule applies; but he cannot assign this right to another.
3 Paulus libro vicensimo septimo ad edictum. Ex consensu tamen omnium utilius est dicere religiosum posse fieri, idque Pomponius scribit.
3 Paulus, On the Edict, Book XXVII. It is more to the public advantage to say that a place can be made religious by the consent of all parties; and this was held by Pomponius.
4 Ulpianus libro vicensimo quinto ad edictum. Scriptus heres prius quam hereditatem adeat patrem familias mortuum inferendo locum facit religiosum, nec quis putet hoc ipso pro herede eum gerere: finge enim adhuc eum deliberare de adeunda hereditate. ego etiam si non heres eum intulerit, sed quivis alius herede cessante vel absente vel verente ne pro herede gerere videatur, tamen locum religiosum facere puto: plerumque enim defuncti ante sepeliuntur, quam quis heres eis existet. sed tunc locus fit religiosus, cum defuncti fuit: naturaliter enim videtur ad mortuum pertinere locus in quem infertur, praesertim si in eum locum inferatur, in quem ipse destinavit: usque adeo, ut etiamsi in legatum locum sit illatus ab herede, inlatione tamen testatoris fit religiosus, si modo in alium locum tam oportune inferri non potuit.
4 Ulpianus, On the Edict, Book XXV. Where a party who was appointed heir buries the body of the head of the family before he enters upon the estate, by doing so he makes the place religious, but no one should think that by this act he is conducting himself as heir; for let us suppose that he is still deliberating as to whether he will enter upon the estate. I, myself, am of the opinion that even though the heir did not bury the body but someone else did, and the heir either took no active part, or was merely absent, or feared that he might be considered as conducting himself as heir, still he makes the ground religious; for very often deceased persons are buried before their heirs appear. In this instance the ground becomes religious only when it was the property of the deceased, for it is but natural to hold that a place where a person is buried belonged to him; especially if he is buried in a spot which he himself had selected. To such an extent does this rule apply that, even where the body is buried by the heir in ground bequeathed by a legacy, still, the burial of the testator renders the place religious, provided that he could not have been buried as conveniently elsewhere.
5 Gaius libro nono decimo ad edictum provinciale. Familiaria sepulchra dicuntur, quae quis sibi familiaeque suae constituit, hereditaria autem, quae quis sibi heredibusque suis constituit
5 Gaius, On the Provincial Edict, Book XIX. “The family burying place” means one set apart by some one for himself and his household; but an “hereditary burial-place” is one which a man provides for himself and his heirs,
6 Ulpianus libro vicensimo quinto ad edictum. vel quod pater familias iure hereditario adquisiit. sed in utroque heredibus quidem ceterisque successoribus qualescumque fuerint licet sepeliri et mortuum inferre, etiamsi ex minima parte heredes ex testamento vel ab intestato sint, licet non consentiant alii. liberis autem cuiuscumque sexus vel gradus etiam filiis familiae et emancipatis idem ius concessum est, sive extiterint heredes sive sese abstineant. exheredatis autem, nisi specialiter testator iusto odio commotus eos vetuerit, humanitatis gratia tantum sepeliri, non etiam alios praeter suam posteritatem inferre licet. liberti autem nec sepeliri nec alios inferre poterunt, nisi heredes extiterint patrono, quamvis quidam inscripserint monumentum sibi libertisque suis fecisse: et ita Papinianus respondit et saepissime idem constitutum est. 1Si adhuc monumentum purum est, poterit quis hoc et vendere et donare. si cenotaphium fit, posse hoc venire dicendum est: nec enim esse hoc religiosum divi fratres rescripserunt.
6 Ulpianus, On the Edict, Book XXV. Or where the head of the household acquired it by hereditary right. In both instances, however, heirs and other successors of every description whatever may legally be buried, and may also bury others, although they may be heirs to a very small amount either by will or on intestacy, even if the other heirs do not consent. The same privilege is granted to children of both sexes, and descendants of other degrees, as well as to emancipated persons, whether they have become heirs or have rejected the estate. With reference to disinherited relatives, however, they may be buried through motives of humanity, unless the testator, influenced by just hatred, has expressly forbidden it; but they cannot bury others except their own descendants. Freedmen can neither be buried, nor bury others under such circumstances, unless they become the heirs to their patron; although certain patrons have indicated by inscriptions that they have erected monuments for themselves and their freedmen. Papinianus also held this opinion, and it has repeatedly been established by decisions. 1So long as there is only a monument, anyone can sell it, or give it away; if, however, it becomes a cenotaph, it must be stated that it can be sold; as the Divine Brothers stated in a Rescript that a structure of this kind is not religious.
7 Gaius libro nono decimo ad edictum provinciale. Is qui intulit mortuum in alienum locum aut tollere id quod intulit aut loci pretium praestare cogitur per in factum actionem, quae tam heredi quam in heredem competit et perpetua est. 1Adversus eum, qui in alterius arcam lapideam, in qua adhuc mortuus non erit conditus, mortuum intulerit, utilem actionem in factum proconsul dat, quia non proprie vel in sepulchrum vel in locum alterius intulisse dici potest.
7 Gaius, On the Provincial Edict, Book XIX. He who buries a dead body on land belonging to another can be compelled by an action in factum to either remove the body which he buried, or to pay the price of the land. This action can be brought by an heir as well as against one, and it is perpetual. 1Where a man placed a dead body in a stone chest which belongs to another, in which, as yet, no corpse has been laid; the Proconsul grants an equitable action in factum against him, since it cannot be properly said that he placed the body in a burial-place, or on land belonging to another.
8 Ulpianus libro vicensimo quinto ad edictum. Ossa quae ab alio illata sunt vel corpus an liceat domino loci effodere vel eruere sine decreto pontificum seu iussu principis, quaestionis est: et ait Labeo exspectandum vel permissum pontificale seu iussionem principis, alioquin iniuriarum fore actionem adversus eum qui eiecit. 1Si locus religiosus pro puro venisse dicetur, praetor in factum actionem in eum dat ei ad quem ea res pertinet: quae actio et in heredem competit, cum quasi ex empto actionem contineat. 2Si in locum publicis usibus destinatum intulerit quis mortuum, praetor in eum iudicium dat, si dolo fecerit et erit extra ordinem plectendus, modica tamen coercitione: sed si sine dolo, absolvendus est. 3In hac autem actione loci puri appellatio et ad aedificium producenda est. 4Nec solum domino haec actio competit, verum ei quoque, qui eiusdem loci habet usum fructum vel aliquam servitutem, quia ius prohibendi etiam hi habent. 5Ei, qui prohibitus est inferre in eum locum, quo ei ius inferendi esset, in factum actio competit et interdictum, etiamsi non ipse prohibitus sit, sed procurator eius, quia intellectu aliquo ipse prohibitus videtur.
8 Ulpianus, On the Edict, Book XXV. Where bones or a body have been buried by another party not a relative, it is a question whether the owner of the land can dig them up, or remove them without a decree of the pontiffs or the order of the Emperor; and Labeo says that the pontifical permission or the order of the Emperor must be obtained, otherwise an action for injury will lie against the person who removed the remains. 1Where a place that is religious is alleged to have been sold as profane, the Prætor grants an action in factum in favor of the party who is interested in the matter against the vendor; and this action can also be brought against the heir of the latter, since it resembles an action on a contract of sale. 2Where a man buried a dead body in a place intended for the use of the public, the Prætor will grant an action against him if he acted maliciously, and he should be punished by the extraordinary authority of the Court, although the penalty is a moderate one; but where he acted without malice he must be discharged. 3In this action the term “profane place” is also applicable to a building. 4This action can not only be brought by an owner but by anyone entitled to the usufruct in the land, or by one who is entitled to a servitude over the same; because these parties also have the right to prevent it being done. 5Where anyone is prevented from burying in a place where he has the right to do so, he is entitled to an action in factum as well as an interdict, even though he himself has not been hindered but his agent has been; since, under such circumstances, he himself is considered to have been prevented.
9 Gaius libro nono decimo ad edictum provinciale. Liberum est ei qui prohibetur mortuum ossave mortui inferre aut statim interdicto uti, quo prohibetur ei vis fieri, aut alio inferre et postea in factum agere: per quam consequetur actor, quanti eius interfuerit prohibitum non esse, in quam computationem cadit loci empti pretium aut conducti merces, item sui loci pretium, quem quis, nisi coactus est, religiosum facturus non esset. unde miror, quare constare videatur neque heredi neque in heredem dandam hanc actionem: nam ut apparet, pecuniariae quantitatis ratio in eam deducitur: certe perpetuo ea inter ipsos competit.
9 Gaius, On the Provincial Edict, Book XIX. Where some one is prevented from burying the body or bones of a deceased person, he can at once make use of an interdict by which it is forbidden to employ force against him, or he can make the interment elsewhere, and afterwards bring an action in factum, by means of which, as plaintiff, he will recover damages to the amount of his interest in not having been prevented from making the interment; and in the calculation shall be included the price of the land which he purchases or the rent of any which he leases, or the value of his own land which no one would render religious unless compelled to do so. Therefore, I wonder why it should appear to be settled that this action cannot be granted either in favor of, or against an heir; as it is evident that it involves the account of a certain sum of money which forms the basis of the claim; at all events the suit can be brought at any time between the parties themselves.
10 Ulpianus libro vicensimo quinto ad edictum. Si venditor fundi exceperit locum sepulchri ad hoc, ut ipse posterique eius illo inferrentur, si via uti prohibeatur, ut mortuum suum inferret, agere potest: videtur enim etiam hoc exceptum inter ementem et vendentem, ut ei per fundum sepulturae causa ire liceret.
10 Ulpianus, On the Edict, Book XXV. Where the vendor of land reserves a burial-place for the interment of himself and his descendants, and he is prevented from using a road for the purpose of burying a member of his household, he can bring suit; for it has been decided that a right of way through the land for the purpose of burial was reserved in the agreement between the purchaser and the vendor.
11 Paulus libro vicensimo septimo ad edictum. Quod si locus monumenti hac lege venierit, ne in eum inferrentur, quos ius est inferri, pactum quidem ad hoc non sufficit, sed stipulatione id caveri oportet.
11 Paulus, On the Edict, Book XXVII. If, however, the site of a monument should be sold under the condition that no one should be buried there whom there was a right to bury; an agreement of this kind will not be sufficient, but it must be made secure by means of a stipulation.
12 Ulpianus libro vicensimo quinto ad edictum. Si quis sepulchrum habeat, viam autem ad sepulchrum non habeat et a vicino ire prohibeatur, imperator Antoninus cum patre rescripsit iter ad sepulchrum peti precario et concedi solere, ut quotiens non debetur, impetretur ab eo, qui fundum adiunctum habeat. non tamen hoc rescriptum, quod impetrandi dat facultatem, etiam actionem civilem inducit, sed extra ordinem interpelletur praeses et iam compellere debet iusto pretio iter ei praestari, ita tamen, ut iudex etiam de opportunitate loci prospiciat, ne vicinus magnum patiatur detrimentum. 1Senatus consulto cavetur, ne usus sepulchrorum permutationibus polluatur, id est ne sepulchrum aliae conversationis usum accipiat. 2Praetor ait: ‘Quod funeris causa sumptus factus erit, eius reciperandi nomine in eum, ad quem ea res pertinet, iudicium dabo.’ 3Hoc edictum iusta ex causa propositum est, ut qui funeravit persequatur id quod impendit: sic enim fieri, ne insepulta corpora iacerent neve quis de alieno funeretur. 4Funus autem eum facere oportet, quem decedens elegit: sed si non ille fecit, nullam esse huius rei poenam, nisi aliquid pro hoc emolumentum ei relictum est: tunc enim, si non paruerit voluntati defuncti, ab hoc repellitur. sin autem de hac re defunctus non cavit, nec ulli delegatum id munus est, scriptos heredes ea res contingit: si nemo scriptus est, legitimos vel cognatos: quosque suo ordine quo succedunt. 5Sumptus funeris arbitrantur pro facultatibus vel dignitate defuncti. 6Praetor vel magistratus municipalis ad funus sumptum decernere debet, si quidem est pecunia in hereditate, ex pecunia: si non est, distrahere debet ea, quae tempore peritura sunt, quorum retentio onerat hereditatem: si minus, si quid auri argentique fuerit, distrahi aut pignerari iubebit, ut pecunia expediatur:
12 Ulpianus, On the Edict, Book XXV. Where anyone has a burial place but has no right of way to it, and is prevented from reaching it by his neighbor, the Emperor Antoninus and his father stated in a Rescript that it is customary to petition for a pathway to a burial place by sufferance, and it is usually granted; and, whenever there is no servitude, the privilege can be obtained from the party who owns the adjoining premises. This rescript, however, which gives the means of obtaining the right of way by petition, does not allow a civil action, but it may be applied for in extraordinary proceedings; for the Governor is required to compel a pathway to be granted to the party where a reasonable price is paid, and the judge must also investigate whether the place is suitable so that the neighbor may not suffer serious injury. 1It is provided by a decree of the Senate that the use of a burial place is not to be contaminated by alterations, that is to say, it must not be used for other purposes. 2The Prætor says: “Where any expense is incurred on account of a funeral I will grant an action for its recovery against the party who is interested in the same.” 3This Edict is issued for a good reason, namely, in order that a party who conducted the funeral may bring suit for what he expended; so that the result would be that bodies will not lie unburied, or that some stranger should conduct the funeral. 4He whom the deceased selected must conduct the funeral, but if he should not do so he will be liable to no penalty, unless something of value was left to him for this purpose; for then, if he does not comply with the will of the deceased, he will be excluded from the bequest. If, however, the deceased did not make any provision for this, and the duty has not been transferred to anyone, it will devolve upon the heirs who were appointed, and, if none were appointed, upon the heirs at law or the cognates who succeed in their regular order. 5The funeral expenses are to be regulated in accordance with the means or dignity and rank of the deceased. 6The Prætor, or the municipal magistrate, is required to order the funeral expenses to be paid out of the money belonging to the estate if there is any, and if there is none, he must order such property to be sold as would perish by lapse of time, and the retention of which would be a burden to the estate; and in case this cannot be done, he shall order any gold or silver which there may be, to be sold or pledged, in order to provide the necessary funds.
13 Gaius libro nono decimo ad edictum provinciale. vel a debitoribus si facile exigi possit.
13 Gaius, On the Provincial Edict, Book XIX. Or he may collect the money from debtors to the estate if he can easily do so:
14 Ulpianus libro vicensimo quinto ad edictum. Et si quis impediat eum qui emit, quo minus ei res tradantur, praetorem intervenire oportere tuerique huiusmodi factum si quid impediat quo minus ei res venditae tradantur. 1Si colonus vel inquilinus sit is qui mortuus est nec sit unde funeretur, ex invectis illatis eum funerandum Pomponius scribit et si quid superfluum remanserit, hoc pro debita pensione teneri. sed et si res legatae sint a testatore de cuius funere agitur nec sit unde funeretur, ad eas quoque manus mittere oportet: satius est enim de suo testatorem funerari, quam aliquos legata consequi. sed si adita fuerit postea hereditas, res emptori auferenda non est, quia bonae fidei possessor est et dominium habet, qui auctore iudice comparavit. legatarium tamen legato carere non oportet, si potest indemnis ab herede praestari: quod si non potest, melius est legatarium non lucrari, quam emptorem damno adfici. 2Si cui funeris sui curam testator mandaverit et ille accepta pecunia funus non duxerit, de dolo actionem in eum dandam Mela scripsit: credo tamen et extra ordinem eum a praetore compellendum funus ducere. 3Funeris causa sumptus factus videtur is demum, qui ideo fuit ut funus ducatur, sine quo funus duci non possit, ut puta si quid impensum est in elationem mortui: sed et si quid in locum fuerit erogatum, in quem mortuus inferretur, funeris causa videri impensum Labeo scribit, quia necessario locus paratur, in quo corpus conditur. 4Impensa peregre mortui quae facta est ut corpus perferretur, funeris est, licet nondum homo funeretur: idemque et si quid ad corpus custodiendum vel etiam commendandum factum sit, vel si quid in marmor vel vestem collocandam. 5Non autem oportet ornamenta cum corporibus condi, nec quid aliud huiusmodi, quod homines simpliciores faciunt. 6Haec actio quae funeraria dicitur ex bono et aequo oritur: continet autem funeris causa tantum impensam, non etiam ceterorum sumptuum. aequum autem accipitur ex dignitate eius qui funeratus est, ex causa, ex tempore et ex bona fide, ut neque plus imputetur sumptus nomine quam factum est neque tantum quantum factum est, si immodice factum est: deberet enim haberi ratio facultatium eius, in quem factum est, et ipsius rei, quae ultra modum sine causa consumitur. quid ergo si ex voluntate testatoris impensum est? sciendum est nec voluntatem sequendam, si res egrediatur iustam sumptus rationem, pro modo autem facultatium sumptum fieri. 7Sed interdum is, qui sumptum in funus fecit, sumptum non recipit, si pietatis gratia fecit, non hoc animo quasi recepturus sumptum quem fecit: et ita imperator noster rescripsit. igitur aestimandum erit arbitro et perpendendum, quo animo sumptus factus sit, utrum negotium quis vel defuncti vel heredis gerit vel ipsius humanitatis, an vero misericordiae vel pietati tribuens vel affectioni. potest tamen distingui et misericordiae modus, ut in hoc fuerit misericors vel pius qui funeravit, ut eum sepeliret, ne insepultus iaceret, non etiam ut suo sumptu fecerit: quod si iudici liqueat, non debet eum qui convenitur absolvere: quis enim sine pietatis intentione alienum cadaver funerat? oportebit igitur testari, quem quo animo funerat, ne postea patiatur quaestionem. 8Plerique filii cum parentes suos funerant, vel alii qui heredes fieri possunt, licet ex hoc ipso neque pro herede gestio neque aditio praesumitur, tamen ne vel miscuisse se necessarii vel ceteri pro herede gessisse videantur. solent testari pietatis gratia facere se sepulturam. quod si supervacuo fuerit factum, ad illud se munire videntur, ne miscuisse se credantur, ad illud non, ut sumptum consequantur: quippe protestantur pietatis gratia id se facere. plenius igitur eos testari oportet, ut et sumptum possint servare. 9Fortassis quis possit dicere interdum partem sumptus facti posse reciperari, ut quis pro parte quasi negotium gerens, pro parte pietatis gratia id faciat: quod est verius: partem igitur sumptus consequetur, quem non donandi animo fecit. 10Iudicem, qui de ea aequitate cognoscit, interdum sumptum omnino non debere admittere modicum factum, si forte in contumeliam defuncti hominis locupletis modicus factus sit: nam non debet huius rationem habere, cum contumeliam defuncto fecisse videatur ita eum funerando. 11Si quis, dum se heredem putat, patrem familias funeraverit, funeraria actione uti non poterit, quia non hoc animo fecit, quasi alienum negotium gerens: et ita Trebatius et Proculus putat. puto tamen et ei ex causa dandam actionem funerariam. 12Labeo ait, quotiens quis aliam actionem habet de funeris impensa consequenda, funeraria eum agere non posse: et ideo si familiae erciscundae agere possit, funeraria non acturum: plane si iam familiae erciscundae iudicio actum sit, posse agi. 13Idem Labeo ait, si prohibente herede funeraveris testatorem, ex causa competere tibi funerariam: quid enim si filium testatoris heres eius prohibuit? huic contradici potest: ‘ergo pietatis gratia funerasti’. sed pone me testatum: habiturum me funerariam actionem: de suo enim expedit mortuos funerari. et quid si testator quidem funus mihi mandavit, heres prohibet, ego tamen nihilo minus funeravi? nonne aequum est mihi funerariam competere? et generaliter puto iudicem iustum non meram negotiorum gestorum actionem imitari, sed solutius aequitatem sequi, cum hoc ei et actionis natura indulget. 14Divus autem Marcus rescripsit eum heredem, qui prohibet funerari ab eo quem testator elegit, non recte facere: poenam tamen in eum statutam non esse. 15Qui mandatu alterius funeravit, non habet funerariam actionem, sed is scilicet, qui mandavit funerandum sive solvit ei cui mandavit sive debet. quod si pupillus mandavit sine tutore auctore, utilem funerariam dandam adversus heredem ei qui impendit: lucrari enim heredem iniquum est. si autem pupillus funus ad se pertinens sine tutoris auctoritate mandavit, dandam in eum actionem arbitror, si et heres extitit ei qui funeratus est solvendoque hereditas est. contra si quis mandatu heredis funeravit, non posse eum funeraria agere Labeo scribit, quia habet mandati actionem. 16Si tamen quasi negotium heredis gerens funeravit, licet ratum non habeat, tamen funeraria eum agere posse Labeo scribit. 17Datur autem haec actio adversus eos ad quos funus pertinet, ut puta adversus heredem bonorumve possessorem ceterosque successores.
14 Ulpianus, On the Edict, Book XXV. And if anyone should interfere with the purchaser in order to prevent said property from being delivered to him, the Prætor must intervene and protect an act of this kind, where any obstacle is interposed. 1Where the deceased was either a tenant or a lodger, and left nothing to pay his funeral expenses; Pomponius says that they must be paid out of the proceeds of articles which have been brought into the lodging, and if there is anything in excess, this will be liable for unpaid rent. Moreover, if any legacies have been bequeathed by the testator whose funeral is the subject of discussion, and there is nothing with which to bury him, the said legacies must also be utilized for this purpose; for it is better that the funeral expenses of a testator should be obtained from his own property than that others should receive their legacies. Where, however, the estate has been entered upon, any property sold must not be taken from the purchaser, because he who has brought anything under an order of court is a bona fide possessor, and has the ownership of the same. Nevertheless, a legatee should not be deprived of his legacy if he can be indemnified by the heir; but if he cannot, it is better for the legatee not to be benefited pecuniarily, than that the purchaser should sustain any loss. 2Mela says that if a testator directs anyone to attend to his funeral and he does not do so after having received money for that purpose, an action on the ground of fraud shall be granted against him; nevertheless, I think, that he can be compelled to conduct the funeral under the extraordinary authority of the Prætor. 3The only expense which can be incurred on account of a funeral is that without which the funeral could not be conducted; as, for instance, what is incurred by the removal of the body, and also where money is expended on the place where the body is to be buried. Labeo says it must be considered to be expended on account of the funeral, because a place must be prepared in which the body may be laid. 4The expenses of anyone who dies away from home and which are incurred for the purpose of bringing back the body, are included in the funeral expenses, although he is not yet buried; and the same rule applies where anything is done for the purpose of guarding the body, or for preparing it for burial, or where anything is expended in providing marble or clothing. 5It is not proper, however, that any ornaments nor other articles of this kind should be buried with the body, as persons of the lower class are accustomed to do. 6This action which is styled a funeral one, is based upon what is proper and reasonable, and includes only what has been expended with reference to the funeral, but no other outlay. The term “reasonable” must be understood to have reference to the rank of the party who was buried, to the circumstances of the case, to the time, and to good faith; so that no charge may be made for more than the actual amount disbursed, nor even for what was actually expended, if this was immoderate. Therefore the means of the party for whom the money was spent must be taken into consideration, as well as the property itself, where it is immoderately expended without good cause. But what must be done where the expense is provided for by the will of the testator? In reply to this it must be held that his will is not to be followed if the expense should be excessive, for it ought to be in proportion to the means of the deceased. 7Sometimes, however, where a man has assumed the payment of funeral expenses he cannot recover them if he was actuated by filial affection, and did not pay with the intention of recovering the amount which he incurred; and this our Emperor stated in a Rescript. Therefore an estimate will have to be made by an arbiter, and the motive with which the expense was incurred carefully considered; that is, whether the party attended to this matter for the deceased or for his heir, or whether he was induced by humanity, or compassion, or filial reverence, or affection? Nevertheless, the degree of compassion may be distinguished so as to conclude that the party who conducted the funeral at his own expense did so in order that the deceased should not remain unburied, and not that he did this gratuitously; and if this should be clear to the judge he ought not to discharge the defendant; for who is there that can bury the dead body of a stranger without being impelled by a sense of duty? Hence it is proper for the party to state whom he buried, and from what motive he did so, to avoid being afterwards interrogated with reference to the same. 8In the case of many sons who conduct the funerals of their parents, or other persons who could have been appointed heirs do so although on this account it is not to be presumed that they are acting as heirs, or entering on the estate, still, in order that necessary heirs may not be held to have interfered, or others to have acted as heirs; it is customary for them to state that they caused the funeral ceremonies to be conducted from motives of duty. If anything superfluous should have been done, it would be held that the parties protected themselves to avoid being thought to have intermeddled, and not for the purpose of recovering their expenses; since they have plainly stated that they acted from motives of duty, but they must go still farther in their allegations in order to be able to recover what they expended. 9Perhaps someone may say that there are instances where a certain share of the expense incurred can be recovered, so that the individual in question did this partly while transacting business for another, and partly because he was impelled by a sense of duty. This is true, and therefore he can recover a portion of the expense which he did not incur with the intention of donating. 10When a judge hears a case of this kind which is based on grounds of equity he should sometimes not allow a moderate expenditure where, for example, the expenses of his funeral had been small, with the intention of casting odium upon the character of the deceased, who had been a wealthy man; as the judge, in this instance, ought not to consider an account of this kind, since it is apparent that by burying him in this manner a premeditated insult was offered to his memory. 11Where anyone buries the head of a household while under the impression that he himself is his heir, he cannot bring an action to recover the funeral expenses; because he did not act with the intention of transacting the business of another; and this is also the opinion of Trebatius and Proculus. I think, however, that an action for the funeral expenses should be granted to him where proper cause is shown. 12Labeo says that whenever anyone has some other action for the purpose of recovering funeral expenses he cannot avail himself of a funeral action; and therefore, if he is entitled to an action for the partition of an estate, he cannot bring a funeral action; but it is clear that if an action for the partition of an estate has been already brought, he can bring one for the recovery of the funeral expenses. 13Labeo also says that if you conduct the funeral of a testator against the wishes of his heir, you can bring the funeral action if proper cause is shown; but what if the person whom the heir forbade to act was the son of the testator? In this instance it can be alleged against the plaintiff, “Therefore you have conducted the funeral through a sense of duty.” But suppose that I have made the statement, I will then be entitled to bring the funeral action, for it is proper that deceased persons should be buried by means of funds obtained from their estates. What if a testator had directed you to make arrangements for the funeral, and the heir prohibits it, and you, nevertheless, conduct it; is it not just that you should have the right to bring an action for the recovery of the funeral expenses?” Generally speaking, I am of the opinion that a just judge will not rigidly adhere to the mere action based on business transacted, but will construe the rules of equity more liberally, since this is something which the character of the proceeding enables him to do. 14The Divine Marcus, however, stated in a Rescript that any heir who prevents a funeral from being conducted by the party whom the testator selected, does not act honorably; although there is no penalty established by which he may be punished. 15If anyone conducts a funeral at the request of another, he is not entitled to a funeral action, but he certainly is who directed the funeral to take place, whether he paid the expense of the same to him whom he requested to conduct it, or whether he still owes it. Where, however, a ward makes such a request without the authority of his guardian, a prætorian action for the recovery of the funeral expenses should be granted against the heir in behalf of the party who incurred them; for it is unjust for the heir to profit in this way. Where, however, a ward orders a funeral which he himself ought to attend to be conducted without the authority of his guardian; I think that the action should be granted against him, if he himself is the actual heir to the party who was buried, and the estate is solvent. On the other hand, where anyone conducts a funeral at the request of the heir, Labeo says he cannot bring the funeral action, because he is entitled to an action on mandate. 16If, however, he conducts the funeral as one transacting business for the heir, although the latter may not have ratified the act, Labeo said that he is, nevertheless, entitled to an action for the recovery of the funeral expenses. 17This action is granted against those who ought to conduct the funeral, for instance, against the heir, the possessor of the property of the estate, or any other successor.
15 Pomponius libro quinto ad Sabinum. Funeris impensam et patronus, qui bonorum possessionem petit contra tabulas, praestat.
15 Pomponius, On Sabinus, Book V. A patron who makes application for the possession of the property of an estate in opposition to the provisions of the will, must pay the expenses of the funeral.
16 Ulpianus libro vicensimo quinto ad edictum. In eum, ad quem dotis nomine quid pervenerit, dat praetor funerariam actionem: aequissimum enim visum est veteribus mulieres quasi de patrimoniis suis ita de dotibus funerari et eum, qui morte mulieris dotem lucratur, in funus conferre debere, sive pater mulieris est sive maritus.
16 Ulpianus, On the Edict, Book XXV. Where any property comes to anyone by way of dowry, the Prætor grants a funeral action against him; for it was held by the ancient authorities to be perfectly just that the funeral expenses of women should be paid out of their dowries, just as out of their private property, and that the man who profits by the dowry on the death of a woman should contribute to her funeral expenses, whether he is the father or the husband of the woman aforesaid.
17 Papinianus libro tertio responsorum. Sed si nondum pater dotem reciperaverit, vir solus convenietur reputaturus patri, quod eo nomine praestiterit:
17 Papinianus, Opinions, Book III. If, however, the father has not yet recovered the dowry, the son alone may be sued, and he can charge the father with whatever he has paid on this account:
18 Iulianus libro decimo digestorum. impensa enim funeris aes alienum dotis est:
18 Julianus, Digest, Book X. For the expenses of a funeral are a debt of the dowry:
19 Ulpianus libro quinto decimo ad Sabinum. ideoque etiam dos sentire hoc aes alienum debet.
19 Ulpianus, On Sabinus, Book XV. And therefore the dowry is liable for this debt.
20 Idem libro vicensimo quinto ad edictum. Neratius quaerit, si is, qui dotem dederat pro muliere, stipulatus est duas partes dotis reddi, tertiam apud maritum remanere, pactus sit, ne quid maritus in funus conferret, an funeraria maritus teneatur. et ait, si quidem ipse stipulator mulierem funeravit, locum esse pacto et inutilem ei funerariam fore: si vero alius funeravit, posse eum maritum convenire, quia pacto hoc publicum ius infringi non possit. quid tamen si quis dotem hac lege dederit pro muliere, ut ad ipsum rediret, si in matrimonio mortua esset, aut quoquo modo soluto matrimonio? numquid hic in funus non conferat? sed cum dos morte mulieris ad eum pervenerit, potest dici conferre eum. 1Si maritus lucratur dotem, convenietur funeraria, pater autem non. sed in hunc casum puto, si dos, quia permodica fuit, in funus non sufficit, in superfluum in patrem debere actionem dari. 2Cum mater familias decedit nec est eius solvendo hereditas, funerari eam ex dote tantum oportet. et ita Celsus scribit.
20 The Same, On the Edict, Book XXV. Neratius asks: Where a man who gave a dowry for a woman stipulated that two-thirds of the same should be returned to him, and that the other third should remain with the husband, and agreed that the husband should not contribute anything to the funeral expenses; will the husband be liable for them? He answers that if the stipulator himself buried the woman, the agreement will be operative, and that a funeral action will be of no effect; but if someone else conducted the funeral, then the husband can be sued, because the public law cannot be infringed by such an agreement. But what if anyone should give a dowry for a woman under the condition that it is to revert to him if she died during marriage, or if the marriage should be terminated in any other manner; would he not then be compelled to contribute to the funeral expenses? Since, however, the dowry reverts to him on the death of the woman, it may be stated that he should contribute. 1If the husband profits by the dowry, he can be sued for the funeral expenses, but the father cannot; however, I think with reference to this case that where the dowry is not sufficient to meet the funeral expenses, because it is very small, an action should be granted against the father for the deficiency. 2Where a woman who is her own mistress dies, and her estate is not solvent, her funeral expenses must be paid out of her dowry alone; and this was stated by Celsus.
21 Paulus libro vicensimo septimo ad edictum. In patrem, cuius in potestate fuerit is cuius funus factum erit, competit funeraria actio pro dignitate et facultatibus.
21 Paulus, On the Edict, Book XXVII. Where the person whose funeral was conducted was under paternal control, a funeral action can be brought against the father in proportion to his rank and means.
22 Ulpianus libro vicensimo quinto ad edictum. Celsus scribit: quotiens mulier decedit, ex dote, quae penes virum remanet, et ceteris mulieris bonis pro portione funeranda est.
22 Ulpianus, On the Edict, Book XXV. Celsus says that where a woman dies, her funeral expenses should be paid out of the dowry remaining in the hands of her husband, and out of the remainder of her property in proportion.
23 Paulus libro vicensimo septimo ad edictum. Veluti si in dotem centum sint, in hereditate ducenta, duas partes heres, unam vir conferet.
23 Paulus, On the Edict, Book XXVII. For instance where the dowry is worth a hundred aurei, and her estate two hundred, the heir must contribute two-thirds, and the husband one-third of the funeral expenses:
24 Ulpianus libro vicensimo quinto ad edictum. Iulianus scribit: non deductis legatis.
24 Ulpianus, On the Edict, Book XXV. Julianus states that, in this instance, the legacies must not be deducted.
25 Paulus libro vicensimo septimo ad edictum. Nec pretiis manumissorum.
25 Paulus, On the Edict, Book XXVII. Or the value of slaves who have been manumitted.
26 Pomponius libro quinto decimo ad Sabinum. Nec aere alieno deducto.
26 Pomponius, On Sabinus, Book XV. Nor debts deducted.
27 Ulpianus libro vicensimo quinto ad edictum. Sic pro rata et maritum et heredem conferre in funus oportet. 1Maritus funeraria non convenietur, si mulieri in matrimonio dotem solverit, ut Marcellus scribit: quae sententia vera est: in his tamen casibus, in quibus hoc ei facere legibus permissum est. 2Praeterea maritum puto funeraria in id demum teneri quod facere potest: id enim lucrari videtur quod praestaret mulieri si conveniretur.
27 Ulpianus, On the Edict, Book XXV. Thus the husband and the heir are compelled to contribute to the funeral proportionally. 1Suit cannot be brought for the recovery of funeral expenses against a husband, if he paid the dowry to his wife during marriage, so Marcellus says; and this opinion is correct in those instances in which he is permitted by law to do this. 2Moreover, I think that a husband is liable to an action for funeral expenses only so far as his means permit; for he is held to be enriched by the sum which he would have been forced to pay to his wife if she had sued him.
28 Pomponius libro quinto decimo ad Sabinum. Quod si nulla dos esset, tunc omnem inpensam patrem praestare debere Atilicinus ait aut heredes eius mulieris, puta emancipatae. quod si neque heredes habeat neque pater solvendo sit, maritum in quantum facere potest pro hoc conveniri, ne iniuria eius videretur quondam uxorem eius insepultam relinqui.
28 Pomponius, On Sabinus, Book XV. Where there is no dowry, then Atilicinus says that the father must pay the entire expense; or else the heir of the woman, if she was emancipated, should do so. If, however, there are no heirs, and the father should not be solvent, suit can be brought against the husband to the extent of his property, in order that it may not appear due to his bad behavior that his wife was left unburied.
29 Gaius libro nono decimo ad edictum provinciale. Si mulier post divortium alii nupta decesserit, non putat Fulcinius priorem maritum, licet lucri dotem faciat, funeris impensam praestare. 1Is qui filiam familias funeravit antequam dos patri reddatur, cum marito recte agit: reddita dote patrem obligatum habet. utique autem, si cum marito actum fuerit, is eo minus patri mulieris restituturus est.
29 Gaius, On the Provincial Edict, Book XIX. Where a woman, after a divorce, marries another man and then dies; Fulcinius does not think that the first husband should pay the expenses of the funeral, even though he may have profited by the dowry. 1Where anyone conducts the funeral of a daughter under paternal control, before her dowry is returned to her father; he can very properly bring suit against her husband, but where the dowry has been returned, he can hold her father liable; but, at all events, where suit is brought against the husband, he should return to the father of the woman that much less.
30 Pomponius libro quinto decimo ad Sabinum. Contra quoque quod pater in funus filiae inpendit aut alio agente secum funeraticia praestitit, ipse actione de dote a marito recipit. 1Sed si emancipata in matrimonio decedat, collaturos heredes bonorumve possessores et patrem pro portione dotis quam recipit et virum pro portione dotis quam lucratus est.
30 Pomponius, On Sabinus, Book XV. On the other hand, whatever the father has expended on the funeral of his daughter, or paid on account of a funeral action having been brought against him by another, he can recover from the husband in an action of dowry. 1But where an emancipated married woman dies during coverture, her heirs, or the possessors of the property of her estate will be compelled to contribute, as well as her father in proportion to the amount of the dowry which he has received, and her husband in proportion to the amount of the dowry by which he has profited.
31 Ulpianus libro vicensimo quinto ad edictum. Si filius familias miles sit et habeat castrense peculium, puto successores eius ante teneri, sic deinde ad patrem venire. 1Qui servum alienum vel ancillam sepelivit, habet adversus dominum funerariam actionem. 2Haec actio non est annua, sed perpetua, et heredi ceterisque successoribus et in successores datur.
31 Ulpianus, On the Edict, Book XXV. Where a son under paternal control is a soldier and has castrense peculium, I think that his successors are primarily liable, and that afterwards recourse must be had to his father. 1Anyone who buries a male or female slave belonging to another, has a right of action against his or her owner for the recovery of the funeral expenses. 2This action is not limited to a year, but is perpetual; and is granted to the heir and other successors, as well as against successors.
32 Paulus libro vicensimo septimo ad edictum. Si possessor hereditatis funus fecerit, deinde victus in restitutione non deduxerit quod impenderit, utilem esse ei funerariam. 1Si eodem momento temporis vir et uxor decesserit, Labeo ait in heredem viri pro portione dotis dandam hanc actionem, quoniam id ipsum dotis nomine ad eum pervenit.
32 Paulus, On the Edict, Book XXVII. Where the possessor of an estate conducts the funeral and afterwards loses his claim to the estate, and, in delivering the same fails to deduct the amount which he expended, he will be entitled to a prætorian action for the recovery of the expenses. 1Where both husband and wife die at the same moment of time, Labeo says that this action should be granted against the heir of the husband in proportion to the amount of the dowry to which he is entitled; since the liability itself passed to him on account of the dowry.
33 Ulpianus libro sexagensimo octavo ad edictum. Si quis fuit heres, deinde hereditas ablata sit ei quasi indigno, magis est, ut penes eum iura sepulchrorum remaneant.
33 Ulpianus, On the Edict, Book LXVIII. Where a man was formerly heir, but the estate was subsequently taken from him as being unworthy; the better opinion is that the right of sepulture still remains with him.
34 Paulus libro sexagensimo quarto ad edictum. Si locus sub condicione legatus sit, interim heres inferendo mortuum non facit locum religiosum.
34 Paulus, On the Edict, Book LXIV. Where a place is bequeathed under a condition, and in the meantime the heir buries the deceased, this does not make the place religious.
35 Marcellus libro quinto digestorum. Minime maiores lugendum putaverunt eum, qui ad patriam delendam et parentes et liberos interficiendos venerit: quem si filius patrem aut pater filium occidisset, sine scelere, etiam praemio adficiendum omnes constituerunt.
35 Marcellus, Digest, Book V. Our ancestors were very far from thinking that anyone who came forward for the destruction of his country and to kill his parents and children should be mourned; so where a son killed his father or a father his son, if either had been guilty of such an offence, they held that the act was without criminality; and that the party should even be rewarded.
36 Pomponius libro vicensimo sexto ad Quintum Mucium. Cum loca capta sunt ab hostibus, omnia desinunt religiosa vel sacra esse, sicut homines liberi in servitutem perveniunt: quod si ab hac calamitate fuerint liberata, quasi quodam postliminio reversa pristino statui restituuntur.
36 Pomponius, On Quintus Mucius, Book XXVI. Where a place is taken by the enemy it ceases to be either religious or sacred, just as freemen pass into slavery. Where, however, such places are freed from this calamity, they are restored to their former condition by a kind of postliminium, as it were.
37 Macer libro primo ad legem vicensimam hereditatium. Funeris sumptus accipitur, quidquid corporis causa veluti unguentorum erogatum est, et pretium loci in quo defunctus humatus est, et si qua vectigalia sunt, vel sarcophagi et vectura: et quidquid corporis causa antequam sepeliatur consumptum est, funeris impensam esse existimo. 1Monumentum autem sepulchri id esse divus Hadrianus rescripsit, quod monumenti, id est causa muniendi eius loci factum sit, in quo corpus impositum sit. itaque si amplum quid aedificari testator iusserit, veluti incircum porticationes, eos sumptus funeris causa non esse.
37 Macer, On the Law of the Twentieth Relating to Successions, Book I. Under the head of “funeral expenses” must be understood whatever is disbursed on account of the body; for instance, in the purchase of ointments, as well as the price of the place where the deceased is buried, and where any rent that is to be paid, together with the cost of the sarcophagus, the hire of vehicles, and anything else which is consumed on account of the body before it is buried; I think should be included in the funeral expenses. 1The Divine Hadrian stated in a Rescript that a sepulchral monument is anything which is erected as a monument, that is to say, for the protection of the place where the body is laid; and therefore, if the testator ordered a large building to be constructed, for example, a number of porticos in a circular form, these expenses are not incurred on account of the funeral.
38 Ulpianus libro nono de omnibus tribunalibus. Ne corpora aut ossa mortuorum detinerentur aut vexarentur neve prohiberentur quo minus via publica transferrentur aut quominus sepelirentur, praesidis provinciae officium est.
38 Ulpianus, On All Tribunals, Book IX. It is the duty of the Governor of a province to see that the bodies or bones of deceased persons are not detained, or maltreated, or prevented from being transported on the public highway, or buried.
39 Marcianus libro tertio institutionum. Divi fratres edicto admonuerunt, ne iustae sepulturae traditum, id est terra conditum corpus inquietetur: videtur autem terra conditum et si in arcula conditum hoc animo sit, ut non alibi transferatur. sed arculam ipsam, si res exigat, in locum commodiorem licere transferre non est denegandum.
39 Marcianus, Institutes, Book III. The Divine Brothers decreed by an Edict that a body should not be disturbed after it had been lawfully interred, that is to say, placed in the ground; for a body is held to be placed in the ground where it is deposited in a chest with the intention that it shall not be removed elsewhere. It must not be denied, that it is lawful to remove the chest itself to a more convenient spot, if circumstances demand it:
40 Paulus libro tertio quaestionum. Si quis enim eo animo corpus intulerit, quod cogitaret inde alio postea transferre magisque temporis gratia deponere, quam quod ibi sepeliret mortuum et quasi aeterna sede dare destinaverit, manebit locus profanus.
40 Paulus, Questions, Book III, For where anyone has interred a body with the intention of subsequently removing it to some other locality, and preferred to deposit it there for a time rather than to bury it permanently, or to provide, as it were, a last resting place for it; the place will remain profane.
41 Callistratus libro secundo institutionum. Si plures sint domini eius loci, ubi mortuus infertur, omnes consentire debent, cum extranei inferantur: nam ex ipsis dominis quemlibet recte ibi sepeliri constat etiam sine ceterorum consensu, maxime cum alius non sit locus in quo sepeliretur.
41 Callistratus, Institutes, Book II. Where several persons own the place where a body is brought for interment, all of them must give their consent if the remains are those of a stranger; for it is established that any one of the joint-owners themselves can properly be buried there, even without the consent of the others, especially when there is no other place in which he could be buried.
42 Florentinus libro septimo institutionum. Monumentum generaliter res est memoriae causa in posterum prodita: in qua si corpus vel reliquiae inferantur, fiet sepulchrum, si vero nihil eorum inferatur, erit monumentum memoriae causa factum, quod Graeci κενοτάφιον appellant.
42 Florentinus, Institutes, Book VII. Generally speaking, a monument is something which is handed down to posterity by way of a memorial; and in case a body or remains should be placed inside of it, it becomes a sepulchre; but if nothing of this kind is deposited therein, it becomes merely a monument erected as a memorial which is termed by the Greeks a cenotaph, that is to say an empty sepulchre.
43 Papinianus libro octavo quaestionum. Sunt personae, quae, quamquam religiosum locum facere non possunt, interdicto tamen de mortuo inferendo utiliter agunt, ut puta dominus proprietatis, si in fundum, cuius fructus alienus est, mortuum inferat aut inferre velit: nam si intulerit, non faciet iustum sepulchrum, sed si prohibeatur, utiliter interdicto, qui de iure dominii quaeritur, aget. eademque sunt in socio, qui in fundum communem invito socio mortuum inferre vult. nam propter publicam utilitatem, ne insepulta cadavera iacerent, strictam rationem insuper habemus, quae nonnumquam in ambiguis religionum quaestionibus omitti solent: nam summam esse rationem, quae pro religione facit.
43 Papinianus, Questions, Book VIII. There are persons who, although they cannot make a place religious, still can very properly make application for an interdict with reference to the burial of a dead body; as, for instance, where the mere owner of property buries or wishes to bury a corpse in land of which the usufruct is held by another, since, if he buries it there he will not make the place a lawful sepulchre, but if he is prevented from doing so, he can very properly make application for an interdict by means of which an inquiry can be instituted as to the right of ownership. The same rules apply to the case of a joint-owner who wishes to bury a dead body in ground held in common against the consent of his co-owner; for, on account of the public welfare, and in order that corpses may not lie unburied, we have ignored the strict rule which sometimes is dispensed with in doubtful questions relating to religious matters; for the highest rule of all is the one which is favorable to religion.
44 Paulus libro tertio quaestionum. Cum in diverisis locis sepultum est, uterque quidem locus religiosus non fit, quia una sepultura plura sepulchra efficere non potest: mihi autem videtur illum religiosum esse, ubi quod est principale conditum est, id est caput, cuius imago fit, inde cognoscimur. cum autem impetratur, ut reliquiae transferantur, desinit locus religiosus esse.
44 Paulus, Questions, Book III. Where interment is made in different places, both of them do not become religious, for the reason that two sepulchres are not created by the burial of one person; but it seems to me that place should be religious where the principal part of the body is laid; that is to say, the head, whereof a likeness is made by means of which we are recognized. When, however, permission is obtained for remains to be removed, the place ceases to be religious.
45 Maecianus libro octavo fideicommissorum. Impensa funeris semper ex hereditate deducitur, quae etiam omne creditum solet praecedere, cum bona solvendo non sint.
45 Marcianus, Trusts, Book VIII. Funeral expenses are always charged to the estate, and it is customary for them to take precedence of all other debts, when the estate is insolvent.
46 Scaevola libro secundo quaestionum. Si plura praedia quis habuit et omnium usum fructum separatim legaverit, poterit in unum inferri et electio erit heredis et gratificationi locus: sed fructuario utilem actionem in heredem dandam ad id recipiendum, quod propter eam electionem minutus est usus fructus. 1Si heres mulieris inferat mortuam in hereditarium fundum, a marito qui debet in funus conferre pro aestimatione loci consequatur. 2Ei, cui vestimenta legantur, si in funus erogata sint, utilem actionem in heredem dandam placuit et privilegium funerarium.
46 Scævola, Questions, Book II. Where a man had several tracts of land and bequeathed the usufruct of all of them separately, he can be buried in any one of them, and the heir shall have the right of selection, and the opportunity to favor the others. A prætorian action will, however, be granted the usufructuary against the heir, to enable him to recover damages to the amount that the value of his usufruct is diminished by the selection. 1Where the heir of a woman buries her body on land belonging to her estate, he can recover from her husband the amount which he should contribute towards the expense of the funeral, which depends upon the value of the land. 2Where clothing is bequeathed to anyone, and he sells it for the purpose of paying the funeral expenses, it is held that a prætorian action based on a prior claim should be granted against the heir.