1Paulus, 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.

2Ulpianus, 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.

3The Same, On Sabinus, Book VI. As long as the first heir who was appointed can enter upon an estate, the substitute cannot do so.

4The 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.

5The 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. 1Ad Dig. 29,2,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 4; Bd. III, § 599, Note 6.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.

6The 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. 1It 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. 2Where, 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. 3If 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. 4Where 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. 5Sometimes 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. 6Where 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. 7Ad Dig. 29,2,6,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 20.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.

7Paulus, 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. 1Ad Dig. 29,2,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 595, Note 14.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. 2In 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.

8Ulpianus, 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. 1A 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.

9Paulus, 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.

10Ulpianus, 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.

11Pomponius, 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.

12Ulpianus, 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 Prætor, 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.”

13The 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. 1Where an heir is in doubt as to whether the testator is living or not, and rejects the estate, his act is void. 2In 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. 3If 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.

14Paulus, On Sabinus, Book II. The same rule also applies where an estate descends by law to children.

15Ulpianus, 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.

16The 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.

17The 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. 1Ad Dig. 29,2,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 599, Note 14.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.

18Paulus, On Sabinus, Book II. Anyone who can acquire an estate can also reject it.

19Ad Dig. 29,2,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 598, Note 2.The Same, On the Edict, Book LIX. Where anyone desires to enter upon an estate, or to claim prætorian possession of the same, he must be certain that the testator is dead.

20Ulpianus, 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. 1And 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. 2If, 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. 3A 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. 4Ad Dig. 29,2,20,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 536, Note 3.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 Prætorian 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. 5Where 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.

21The 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. 1Sometimes 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. 2Still, 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. 3Where 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.

22Paulus, 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.

23Pomponius, On Sabinus, Book III. Where anyone rejects an estate or a legacy, he must be certain of his rights.

24Ad Dig. 29,2,24Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 677, Note 11.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 Prætor. 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.

25The 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. 1A 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. 2If 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. 3Where 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. 4The 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. 5Ad Dig. 29,2,25,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 12.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. 6The 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. 7But 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 prætorian 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 prætorian 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. 8A 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. 9What 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. 10If 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. 11Where, 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. 12Where, 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. 13It 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. 14But 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. 15Likewise, if he should give his son to be arrogated before the latter enters upon the estate, the estate will not be acquired by him.

26Paulus, 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.

27Pomponius, 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.

28Ulpianus, On Sabinus, Book VIII. Aristo thinks that the Prætor 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.

29Pomponius, 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.

30Ulpianus, On Sabinus, Book VIII. Ad Dig. 29,2,30 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 601, Note 3.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. 1Where 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 Prætorian Edict. Finally, the Prætor places the unborn child in possession of the estate. 2Therefore, 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. 3The 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. 4But 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. 5Where, 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. 6Ad Dig. 29,2,30,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.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. 7When 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. 8If I am certain that a will is not forged, void, or broken, although it is said to be, I can enter upon the estate.

31Paulus, 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.

32Ulpianus, 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. 1But 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. 2Where, 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.

33Paulus, 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.

34Ulpianus, 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. 1If 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.

35The 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. 1Where 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. 2But when he orders one of two sons to enter upon the estate, he must also order the other to do so.

36Pomponius, 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.

37The 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.

38Ulpianus, 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.

39The 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.

40The 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.

41Julianus, 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.

42Ulpianus, 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. 1If 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. 2If a son should manumit a slave that belongs to his father, he will undoubtedly be held to have interfered with his father’s estate. 3The 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.

43Julianus, 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.

44The 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.

45The Same, On Urseius Ferox, Book I. The acceptance of an estate is not included in the service of a slave. 1Therefore, 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. 2Where 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. 3Moreover, a slave in whom someone has an usufruct cannot enter upon an estate by order of him who enjoys said usufruct. 4The 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.

46Africanus, 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.

47The 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.

48Paulus, Manuals, Book I. Where one person directs another to demand prætorian 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 prætorian possession should be confirmed by ratification.

49Ad Dig. 29,2,49Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 5.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.

50Modestinus, 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.

51Africanus, 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. 1A 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. 2If anyone should say, “If the estate is solvent, I will accept it”, such an acceptance is void.

52Marcianus, 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. 1When 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.

53Gaius, On the Lex Julia et Papia, Book XIV. Ad Dig. 29,2,53 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 601, Note 5.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. 1Where 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.

54Florentinus, Institutes, Book VIII. Where an heir enters upon an estate, he is understood to have succeeded the deceased from the date of his death.

55Ad Dig. 29,2,55Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 595, Note 10.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.

56Ulpianus, 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.

57Gaius, 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. 1Nevertheless, 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. 2This privilege, however, is not conferred upon slaves who are necessary heirs, whether they are over, or under, the age of puberty.

58Paulus, 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.”

59Neratius, 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.

60Javolenus, 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 prætorian 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 prætorian 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.”

61Macer, 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 prætorian possession of the same should be granted to the creditors.

62Javolenus, 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. 1Where 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.

63Notes 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.

64Javolenus, 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.

65Paulus, 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.

66Ulpianus, 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.

67The 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.

68Paulus, 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.

69Ulpianus, 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 Prætor 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.

70Paulus, 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 prætorian 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. 1If, 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. 2Therefore 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, prætorian possession of the estate of the deceased shall be granted his creditors.

71Ulpianus, 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. 1If 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. 2If 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. 3The Prætor says: “If either a male or a female heir should have committed an act by which any property has been taken from the estate.” 4If 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. 5The Prætor 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. 6We understand anyone to have taken the property belonging to an estate, to mean that he has concealed, embezzled, or squandered said property. 7The Prætor 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. 8A 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. 9These 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.

72Ad Dig. 29,2,72Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 557, Note 7; Bd. III, § 598, Note 3.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.

73The 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.

74The 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. 1But 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. 2Where 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. 3The 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. 4Where 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.

75Marcellus, 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.

76Javolenus, 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. 1Ad Dig. 29,2,76,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 597, Note 11.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.

77Pomponius, 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.

78The 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.

79Ulpianus, 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.

80Paulus, 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. 1I 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. 2Moreover, 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. 3Therefore, 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.

81Ulpianus, 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.

82Terentius 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.

83Ulpianus, 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.

84Ad Dig. 29,2,84Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 597, Note 5.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.

85The 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.

86The 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. 1The 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. 2It 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.

87The 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. 1It 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.

88Paulus, 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.

89Scævola, 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.

90Paulus, Opinions, Book XII. Ad Dig. 29,2,90 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 11.Paulus holds that an estate cannot be acquired through the intervention of a curator. 1He 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.

91The 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.

92The 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.

93The 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. 1Where 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. 2A 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.

94Hermogenianus, 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 prætorian possession of it after his death.

95Paulus, Decisions, Book IV. An estate can be rejected not only by words, but also by any act or other indication of the will.

96Hermogenianus, 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.

97Paulus, 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.

98Scævola, 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 prætorian 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.

99Pomponius, 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 Prætor Cassius, after hearing the case, very properly decided that prætorian 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.