De his quae ut indignis auferuntur
(Concerning Those Who Are Deprived of Their Legacies as Being Unworthy of Them.)
1 Marcianus libro sexto institutionum. Divi Severus et Antoninus rescripserunt quasi indignum carere legato seu fideicommisso libertum, quae ei testamento patroni relicta erant, cum patronum suum post mortem eius quasi illicitae mercis negotiatorem detulerat, quamvis et praemium meruit.
1 Marcianus, Institutes, Book VI. The Divine Severus and Antoninus stated in a Rescript that a freedman to whom property had been bequeathed by the will of his patron should be deprived of his legacy or trust as being unworthy of it, if, after the death of his patron, he accused him of having been engaged in some illegal transaction, even though he may have deserved a reward for doing so.
2 Idem libro undecimo institutionum. Aufertur hereditas ex asse et ad fiscum pertinet, si emancipatus filius contra tabulas bonorum possessionem patris ut praeteritus petierit et ex substitutione impuberis adierit hereditatem. 1Item si quis contra mandata duxerit uxorem ex ea provincia, in qua officium aliquid gerit, quod ei ex testamento uxoris adquisitum est divi Severus et Antoninus rescripserunt retinere eum non posse, tamquam si tutor pupillam contra decretum amplissimi ordinis in domum suam duxisset. utroque ergo casu etsi ex asse heres institutus adierit hereditatem, fisco locus fit: nam quasi indigno ei aufertur hereditas. 2Per contrarium autem ducta tam ab eo, qui officium in provincia gerebat, quam a tutore illicite magis est, ut dicatur capere illam ex testamento nec quasi indignam esse repellendam. 3Idem erit, si quis vivi ignorantis bona vel partem bonorum alicuius cognati donaverit: nam quasi indigno aufertur.
2 The Same, Institutes, Book XI. If an emancipated son, having been passed over, demands the possession of the estate of his father, in opposition to his will, and enters upon the estate as the substitute of a child under the age of puberty, he will be entirely deprived of the estate, which will be forfeited to the Treasury. 1Again, if anyone should, contrary to law, marry a wife in a province in which he exercises any public employment, the Divine Severus and Antoninus stated in a Rescript that he could not retain anything which he might have acquired by the will of his father; just as in the case of a guardian who marries his female ward in violation of the Decree of the Senate. Therefore, in both instances, if the person is appointed an heir to the entire estate, and enters upon the same, there will be ground for confiscation by the Treasury, for he will be deprived of the estate as being unworthy of it. 2On the other hand, however, this rule will not apply where a woman has married a man who is administering a public office in a province, nor to a female ward who has married her guardian unlawfully; but it is better to hold that she can take under the will, and should not be rejected as unworthy of doing so. 3The same rule will apply where anyone gives away the entire estate, or a portion of the same, of some relative whom he has a right to succeed, but who he does not know is still living, for he will be deprived of the property as being unworthy.
3 Idem libro quinto regularum. Indignum esse divus Pius illum decrevit, ut et Marcellus libro duodecimo digestorum refert, qui manifestissime comprobatus est id egisse, ut per neglegentiam et culpam suam mulier, a qua heres institutus erat, moreretur.
3 The Same, Rules, Book V. The Divine Pius decided that a person was unworthy (as Marcellus states in the Twelfth Book of the Digest) who was clearly proved to have permitted the woman by whom he was appointed heir to die through his own negligence and fault.
4 Ulpianus libro quarto decimo ad edictum. Papinianus libro quinto quaestionum ait, si quis unum heredem quasi per falsum adscriptum accusavit, legatum ei non auferri a coherede relictum, quem non inquietavit.
4 Ulpianus, On the Edict, Book XIV. Papinianus, in the Fifth Book of Questions, says that where anyone accuses an heir of forging an appointment in a will, he will not be deprived of a legacy with which his co-heir, whom he did not disturb, has been charged.
5 Paulus libro primo de iure fisci. Post legatum acceptum non tantum licebit falsum arguere testamentum, sed et non iure factum contendere: inofficiosum autem dicere non permittitur. 1Ille, qui non iure factum contendit nec optinuit, non repellitur ab eo quod meruit: ergo qui legatum secutus postea falsum dixit, amittere debebit quod consecutus est. de eo vero qui legatum accepit, si neget iure factum esse testamentum, divus Pius ita rescripsit: ‘cognati sophronis licet ab herede instituto acceperant legata, tamen, si is eius condicionis fuerit visus, ut optinere hereditatem non possit, et iure intestati ad eos cognatos pertinet, petere hereditatem ipso iure poterunt. prohibendi autem sint an non, ex cuiusque persona condicione aetate cognita causa a iudice constituendum erit’. 2Amittere id quod testamento meruit et eum placuit, qui tutor datus excusavit se a tutela: sed si consecutus fuerit, non admittitur ad excusationem. diversum puto in eo, qui legatum tantum meruit et a matre pupilli tutor petitus excusare se maluit: hic enim nihil contra iudicium defuncti fecit. sed hoc legatum, quod tutori denegatur, non ad fiscum transfertur, sed filio relinquitur, cuius utilitates desertae sunt. 3Si pater accusaverit testamentum vel dominus, denegabitur ei actio etiam eius quod filio eius vel servo legatum est, si ad ipsos emolumentum rei perventurum est: quod si personam illorum spectet, diversum dicendum est. 4Si servum suum rogatus sit manumittere qui legatum meruit vel etiam ipsi servo utrumque datum sit, dicendum est non debere obesse servo factum domini, sed a fisco redimendum, ut manumittatur, si tamen velit servum vendere (quia non potest cogi) qui iudicium sprevit defuncti. 5Si filius familias falsum accusaverit testamentum, videndum est, an denegari debeat actio patri: et puto, si invito patre accusavit, non esse denegandam patri actionem. 6Si is, cui rogatus sum legatum restituere, falsum dixerit, restituere id fisco debebo. 7Qui accusavit falsum, heres legatario exstitit vel heredi scripto: nihil huic nocere dicendum est. 8Similis est ei et qui inofficiosum dicit. 9Aetati eius qui accusavit ignoscitur, et maxime si tutor vel curator dicere falsum vel inofficiosum velit: et ita imperatores Severus et Antoninus rescripserunt. 10His vero, qui testimonio suo intentionem accusatoris adiuvaverunt, deneganda est actio: idque divus Severus decrevit. 11Sunt qui putant, et recte, et ei denegandam, qui accusatori adfuit vel fideiussor pro eo exstiterit. 12Quidam et praesidem indignum putant, qui testamentum falsum pronuntiavit, si appellatione intercedente heres scriptus optinuit. 13Advocatum fisci, qui intentionem delatoris exsequitur, in omnibus officii necessitas satis excusat. 14Qui principale testamentum arguit, et a secundis tabulis repellendus est: item a codicillis ad testamentum factis licet non confirmatis. non idem sequendum est, si secundas tabulas vel codicillos coarguit, quia non utrumque hoc casu improbasse videtur. 15An libertas ei servo data, qui testimonio suo infringere voluerit testamentum, auferri debeat, videndum est. fideicommissum utique non est dignus consequi: et de libertate divus Pius iudicavit esse ea privandum. 16Ei, qui tutor datus est, non prodest ad excusationem, quod falsum dixit: sed a legato removetur. 17Qui mortis causa donationem accepit a testatore, non est similis in hac causa legatario. 18Alia causa est eius qui propter testamentum a legatario vel a statulibero accipere iussus est: hic enim ut indignus repelletur. 19Et Falcidiae beneficium heredi scripto auferri debere divus Pius et divus Marcus putaverunt. 20Omnes, qui ut indigni repellentur, summovendi sunt a praemio, quod secundum edictum divi Traiani datur his qui se deferunt.
5 Paulus, On the Rights of the Treasury. After a legacy has once been accepted, it will still be lawful to prove that the will was forged, and it will also be proper to claim that it is void; but no allegation as to its being inofficious will be permitted. 1He who contends that a will is void and loses his case is not excluded from any provision made in his favor. Therefore, anyone who, having obtained a legacy, afterwards alleges that the will was forged, must lose what he received under it. However, with reference to him who received the legacy, and denies that the will is valid, the Divine Pius made the following statement in a Rescript: “Although the relatives of Sophro have received their legacies from the duly appointed heir, still, if they have good reason to suppose that the heir is not entitled to the estate, and that it belongs to them by the law of intestacy, they can claim it under said law. It shall be determined by the court, after proper examination, whether they should be excluded from the estate or not, after due consideration of their persons, their rank, and their ages.” 2It has been well established that where a guardian has been appointed, and excuses himself from administering his trust, he will lose whatever he was entitled to under the terms of the will. If, however, he has already obtained it, he will not be allowed to excuse himself. I think that this rule will not apply to one who has only received a legacy, and having been requested by the mother of the minor to become his guardian, prefers to excuse himself; for, in this instance, he did nothing contrary to the will of the deceased. But the legacy which was refused to the guardian will not pass to the Treasury, but will be left to the son whose interests have been abandoned by the legatee. 3If a father or a master should attack a will, an action will be denied him, where the legacy is left either to his son or his slave, if they would obtain any advantage from the same. A different opinion must be given where the said legatee has received the sole benefit of the bequest. 4Where anyone entitled to a legacy is requested to manumit his slave, and anything is given to the slave by the will, it must be said that the act of the master will not prejudice the slave; and he should be purchased by the Treasury in order to be manumitted, provided the master is willing to sell him; but one who has refused to take under the will cannot be compelled to do this. 5If a son under paternal control alleges that the will is forged, let us consider whether an action should be refused his father. I think that if he made the accusation against the will of his father, an action should not be denied the latter. 6If anyone to whom I am charged to pay a legacy under a trust should say that the will is forged, I will be obliged to pay the legacy to the Treasury. 7Where anyone who alleges that a will is forged becomes the heir of the legatee, or of the heir who is appointed, it must be held that his statements will not prejudice him. 8The case is similar where a person alleges that a will is inofficious. 9Indulgence must be shown to the person who makes the accusation on account of his age, and especially if his guardian or curator desires to prove that the will is either forged, or inofficious. This the Emperors Severus and Antoninus stated in a Rescript. 10An action should be refused to those who have given testimony in favor of a party who alleged that the will was forged. This was decreed by the Divine Severus. 11Some authorities think, and very properly, that those should be refused an action who aided the accuser, or became sureties for him. 12Some authorities think that a Governor who declared a will to be forged is unworthy, if the heir who was appointed under it gains the case on appeal. 13In every instance, the requirements of his office will be sufficient excuse for the Advocate of the Treasury who has given assistance to the designs of the accuser. 14Where anyone attacks the principal will, he ought to be excluded from the benefits of the second, as well as from those granted by a codicil subsequently executed, even though they may not be confirmed by it. The same rule should not be followed where the party attacks the second will or the codicil, because, in this instance, he is not considered to have impugned the validity of both instruments. 15Let us consider whether a slave who attempted to break the will by his testimony should be deprived of the freedom granted him by the said will. He is not worthy to obtain the benefit of the trust, and so far as his liberty is concerned, the Divine Pius decided that he should be deprived of it. 16Where a party is appointed a guardian, he cannot, by alleging that the will was forged, be excused from serving in that capacity, but he can be excluded from the benefit of the legacy. 17Anyone who received from a testator a donation mortis causa does not, in this respect, resemble a legatee. 18The case is different with him who, under the terms of a will, is directed to receive something from a legatee, or a slave who is to be liberated conditionally, for he can be excluded as being unworthy. 19The Divine Pius and Marcus decided that under such circumstances the appointed heir should be excluded from the benefit of the Falcidian Law. 20All those who are rejected as being unworthy shall be excluded from participating in the reward which, according to the Edict of the Divine Trajan, should be given to those who accuse themselves.
6 Marcellus libro vicesimo secundo digestorum. Rescriptum est a principe heredem rei quam amovisset quartam non retinere. et ideo si is qui quadringenta habebat universa quadringenta legavit et heres centum subtraxisset, trecentorum quartam retinebit, septuaginta quinque scilicet, et ducenta viginti quinque dabit legatariis: ex centum quae subripuit, legatariis quidem dabit septuaginta quinque, reliqua, id est viginti quinque, ad fiscum venient.
6 Marcellus, Digest, Book XXII. It was stated by the Emperor in a Rescript that an heir shall not retain the fourth part of an estate if he has appropriated any of the assets of the same; and therefore if the deceased left an estate of four hundred aurei, and the heir should abstract a hundred of them, and retain a quarter of the three hundred, that is to say, seventy-five, and give to the legatees two hundred and fifty, he must also give them seventy-five out of the hundred which he stole, and the remainder, that is to say, twenty-five, will be forfeited to the Treasury.
7 Modestinus libro sexto differentiarum. Qui Titii testamentum falsum dixit nec optinuit, heredi eius heres exsistere prohibendus non est, quia non principaliter in Titii hereditatem succedit.
7 Modestinus, Differences, Book VI. Where anyone alleges that the will of Titius is forged, and does not prove his allegation, he will not be prevented from becoming the heir of the heir of Titius, because he does not succeed directly to the estate of Titius.
8 Idem libro nono regularum. Indigno herede pronuntiato adempta hereditate confusas actiones restitui non oportet.
8 The Same, Rides, Book IX. Where an heir has been declared unworthy, and deprived of an estate, any rights of action which may have been merged cannot be restored to their original condition.
9 Ulpianus libro quarto decimo ad legem Iuliam et Papiam. Si inimicitiae capitales intervenerunt inter legatarium et testatorem et verisimile esse coeperit testatorem noluisse legatum sive fideicommissum praestari ei, cui adscriptum relictum est, magis est, ut legatum ab eo peti non possit. 1Sed et si palam et aperte testatori maledixerit et infaustas voces adversus eum iactaverit, idem erit dicendum. 2Si autem status eius controversiam movit, denegatur eius quod testamento accepit persecutio: ex qua specie statim fisco deferetur.
9 Ulpianus, On the Lex Julia et Papia, Book XIV. If mortal hatred should have arisen between a legatee and the testator, and it should be probable that the latter was unwilling that he to whom a legacy, or the benefit of a trust was bequeathed, should enjoy the benefit of the same, the better opinion is that the legacy cannot be claimed by him. 1Again, where he has openly and publicly abused the testator, and made malicious speeches against him, the same rule will apply. 2Where, however, the civil condition of the testator is the cause of the controversy, raised by the legatee, the latter will not be entitled to what has been left him, which will, in this instance, immediately be forfeited to the Treasury.
10 Gaius libro quinto decimo ad legem Iuliam et Papiam. In fraudem iuris fidem accommodat, qui vel id quod relinquitur vel aliud tacite promittit restituturum se personae quae legibus ex testamento capere prohibetur, sive chirographum eo nomine dederit sive nuda pollicitatione repromiserit. 1Si quis ei qui capere possit rogatus fuerit restituere et is mortis tempore prohibetur legibus hoc capere, non dubito quin, etsi deficit fideicommissum, apud eum tamen, qui rogatus est restituere, manere debet, quia nulla fraus eius intervenisse videtur, nisi si in futurum casum fidem accommodavit, id est ut, licet capere legibus prohiberi coeperit, restituat. 2Recte dictum est, si pater filii, quem in potestate habebat, tacitam fidem interposuerit, non debere id filio nocere, quia parendi necessitatem habuerit.
10 Gaius, On the Lex Julia et Papia, Book XV. He is guilty of a fraud against the law who tacitly agrees to deliver what is left to him, or anything else, to a person who is legally prohibited from taking under the will, whether he gives a written instrument to this effect, or undertakes to do so by a mere promise. 1Where anyone was charged to deliver certain property to someone who can take under a will, and who, at the time of death, has been forbidden to do so, I have no doubt that although the trust is extinguished, it should still remain with him who was asked to deliver the property, because no fraud is held to have been committed by him, unless he bound himself with reference to what he knew would occur; that is to say, that he would deliver the property to the beneficiary even though he might be legally incapacitated from receiving it. 2It has very properly been held that if the father of a son who is under his control makes a tacit agreement, this should not prejudice the son, because he is obliged to obey his father.
11 Papinianus libro quinto decimo quaestionum. Heres, qui tacitam fidem contra leges accommodavit, in ea parte, quae fraudem adhibuit, Falcidia non utitur: et ita senatus censuit. sed si maior modus institutionis quam fraudis fuerit, quod ad Falcidiam attinet, de superfluo quarta retinebitur.
11 Papinianus, Questions, Book XV. Where an heir has entered into an illegal tacit agreement, he cannot avail himself of the Falcidian Law with reference to the portion which was the subject of the fraudulent contract. This rule was established by the Senate. Where, however, the share of the estate to which he was appointed heir is larger than that which he fraudulently agreed to deliver, he can retain the Falcidian fourth from the excess of his share under the will.
12 Idem libro sexto decimo quaestionum. Cum quidam scripsisset heredes quos instituere non potuerat, quamvis institutio non valeret neque superius testamentum ruptum esset, heredibus tamen ut indignis, qui non habuerunt supremam voluntatem, abstulit iam pridem senatus hereditatem. quod divus Marcus in eius persona iudicavit, cuius nomen peracto testamento testator induxerat: causam enim ad praefectos aerarii misit: verum ab eo legata relicta salva manserunt. de praeceptionibus eidem datis voluntatis erit quaestio: et legatum ei non denegabitur, nisi hoc evidenter testatorem voluisse appareat.
12 The Same, Questions, Book XVI. Where a certain man appointed heirs whom he had no right to select, although designation of this kind is not valid, and the first will is not broken in consequence, still, the Senate long since decreed that the heirs who were entitled to the estate under the last will of the deceased should be deprived of the same as unworthy. This the Divine Marcus decided with reference to a person whose name the testator had erased from his will, after it had been executed, for he sent the case to the Prefects of the Public Treasury. The legacies left by the will, however, remained unimpaired. With reference to the preferred legacies bequeathed to the heir, a question as to the intention of the testator may arise, and these legacies will not be refused to him, unless it clearly appears that the intention of the testator was otherwise.
13 Idem libro trigesimo secundo quaestionum. Claudius Seleucus Papiniano suo salutem. Maevius in adulterio Semproniae damnatus eandem Semproniam non damnatam duxit uxorem: qui moriens heredem eam reliquit: quaero, an iustum matrimonium fuerit et an mulier ad hereditatem admittatur. respondi neque tale matrimonium stare neque hereditatis lucrum ad mulierem pertinere, sed quod relictum est ad fiscum pervenire. sed et si talis mulier virum heredem instituerit, et ab eo quasi ab indigno hereditatem auferri dicimus.
13 The Same, Questions, Book XXXII. Claudius Seleucus to his friend, Papinianus, Greeting. Mævius, having been condemned for adultery with Sempronia, married the said Sempronia, who had not been convicted of the offence, and he, at his death, appointed her his heir. I ask whether the marriage was legal, and whether the woman could be admittted to the succession. I answered that a marriage of this kind could not stand, and that the woman was not entitled to the benefit of the estate, but what was left by the will would be forfeited to the Treasury. Even though in a case of this kind the woman should appoint her husband her heir, we hold that he should be deprived of the estate as being unworthy of the same.
14 Idem libro trigesimo tertio quaestionum. Mulierem, quae stupro cognita in contubernio militis fuit, etsi sacramento miles solutus intra annum mortem obierit, non admitti ad testamentum iure militiae factum et id quod relictum est ad fiscum pertinere proxime tibi respondi.
14 The Same, Questions, Book XXXIII. Where a woman has been living with a soldier as his concubine, even if the said soldier should die within a year after his discharge, after having made a will in favor of the woman, I have recently given you as my opinion that she cannot enjoy the benefit of such a will executed in accordance with military law, and whatever is left her will belong to the Treasury.
15 Idem libro sexto responsorum. Heredi, qui falsos codicillos esse dixit neque optinuit, hereditas non aufertur: si tamen aliquid a coherede codicillis acceperit, eius actio denegabitur. itaque si bonorum inter heredes divisionem defunctus codicillis fecerit, partes quidem hereditarias, in quibus legatum consistere non potuit, tenebit, sed Falcidiae beneficio non utetur, si tantum in amissis portionibus erit, quod Falcidiam aequitate compensationis recusaret.
15 The Same, Opinions, Book VI. An heir who alleges that a codicil is false, and does not prove his case, shall not be deprived of the estate. If, however, his co-heir was charged by the same codicil with a trust for his benefit, an action to compel the execution of the trust will be refused him. Therefore, if the deceased made a distribution of his property among his heirs by means of the codicil, the party who asserts that it is forged will retain his hereditary share, except where a legacy has been left to him in trust; but he cannot enjoy the benefit of the Falcidian Law, if, in that part of the estate which he forfeited there should be enough property to make up for the Falcidian portion which he lost under the just principle of set-off.
16 Idem libro octavo responsorum. Cum tabulis secundis pater impuberi filio fratris filios coheredibus datis substituisset ac substituti fratris filii post mortem pueri matrem eius partus subiecti ream postulassent, ut hereditatem patrui legitimam optinerent: victis auferendam esse partem hereditatis ex causa substitutionis respondi, quia ex testamento sententiam secundum se dictam non haberent. 1Quoniam stuprum in ea contrahi non placuit, quae se non patroni concubinam esse patitur, eius, qui concubinam habuit, quod testamento relictum est, actio non denegabitur. idque in testamento Coccei Cassiani clarissimi viri, qui Rufinam ingenuam honore pleno dilexerat, optimi maximique principes nostri iudicaverunt: cuius filiam, quam alumnam testamento Cassianus nepti coheredem datam appellaverat, vulgo quaesitam apparuit. 2Cum heredis nomen mutata voluntate pater familias incisis tabulis induxisset atque ideo fisco portionis emolumentum adiudicatum fuisset, eam rem legatariis non obesse, qui retinuerant voluntatem, divo Marco placuit, et ideo cum suo onere fiscum succedere.
16 The Same, Opinions, Book VIII. Where, by a second will, a father made a pupillary substitution of his nephews for his son, who was under the age of puberty, and who had already been appointed the co-heirs of the latter, and the said nephews, substituted after the death of the minor, accused his mother of having produced a spurious child, in order to obtain the estate on the ground of intestacy, I answered that if they lost their case they should be deprived of the share of the estate to which they were entitled by the substitution, because a decree with reference to the will had not been rendered in their favor. 1As it is not considered a disgrace for a woman to become the concubine of a man who is not her patron, an action to recover what was left him by her will will not be denied to him who kept a woman as a concubine. Our most illustrious Emperors took this view in the case of Cocceius Cassianus, a man of the highest rank, who had greatly favored Rufina, a freeborn woman, to whom he was much attached, and whose daughter he had referred to in his will as his foster-child, and had appointed co-heir with his granddaughter, although it was afterwards ascertained that she was illegitimate. 2It was decided by the Divine Marcus that where a testator, having unsealed his will, erased the name of an heir through having changed his mind, and, in consequence of this, his share was adjudged to be forfeited to the Treasury, this fact would not prejudice the legatees with reference to whom the intention of the testator remained unaltered, and therefore that the share of the aforesaid heir would go to the Treasury with all its burdens.
17 Idem libro tertio decimo responsorum. Heredem, qui sciens defuncti vindictam insuper habuit, fructus omnes restituere cogendum existimavi nec probe desideraturum actionem confusam restitui: deceptum autem ignoratione facti bonae fidei possessoris defensionem habiturum ante motam scilicet controversiam, si ratio fructuum subducatur, nec improbe confusam actionem reddi postulaturum.
17 The Same, Opinions, Book XIII. I held that an heir who, being aware of the murder of the deceased, failed to avenge his death should be compelled to surrender all the profits of the estate, without being able to legally demand that the rights of action which had been merged when he obtained the estate should be restored to their former condition. Where, however, the heir has been misled by his ignorance of the crime, he will be entitled to the same defence, as a bona fide possessor, so far as the profits collected before the controversy arose are concerned; and in this case his demand that the rights of action which have been merged shall be restored to their former condition will not be improperly made.
18 Idem libro quinto decimo responsorum. Eum, qui tacitum fideicommissum in fraudem legis suscepit, eos quoque fructus, quos ante litem motam percepit, restituere cogendum respondi, quod bonae fidei possessor fuisse non videtur exemplo bonorum fisco vindicatorum. post motam de tacito fideicommisso controversiam ante pretia fructuum percepta cum usuris esse restituenda respondi, sed omnium fructuum quorum pretia percepta fuerant: quod si fructus in usu habuit, eorum pretia tantum restitui satis erit. sed divus Severus bonorum tacite relictorum citra distinctionem temporis fructus dumtaxat deberi, non etiam usuras eorum benigne decrevit: quo iure utimur. 1Bonis universis ex causa taciti fideicommissi fisco restitutis heredem onus aeris alieni non spectare convenit: nec aliud servatur morte non defensa. si quid tamen ob aditam hereditatem actionibus aut servitutibus confusis amiserit, auxilio restitutionis non merebitur. 2Pro parte heres institutus praedii legatum acceperat et in hereditate non capienti restituendi tacitum ministerium susceperat. quamquam legatum pro ipsius parte non constitisset ideoque portionem istam pro herede possideret, tamen ei praedium integrum esse relinquendum respondi: neque enim rationem iuris ac possessionis varietatem inducere divisionem voluntatis.
18 The Same, Opinions, Book XV. I gave it as my opinion that a person who fraudulently undertook the execution of a trust could be compelled to also surrender those profits which he had collected before legal proceedings were instituted; for he is not considered to have been a bona fide possessor; just as is the case with those who hold property which is claimed by the Treasury. I held that, after the controversy arose with reference to the execution of a trust of this description the value of the profits previously collected, together with the interest on the same, should be surrendered; and this applies to all the profits for which a price has been paid, but if the party had used the profits himself, only their value without interest should be refunded. The Divine Severus in a case of this kind graciously decreed that only the profits of the property, and not the interest on the same, would be due without any distinction of the time when they had been collected. This is the practice at the present time. 1Where all the property of an estate has been forfeited to the Treasury on account of the execution of a trust fraudulently undertaken, it is not proper that the heir should remain subject to the burden of the debts of the estate. The same rule applies where the death of the testator is not avenged. If, however, the heir has sustained any loss by entering upon the estate through the merger of rights of action or of servitudes, he will not be considered worthy of the relief of restitution. 2An heir, having been appointed to a share of an estate, received the devise of a tract of land, and agreed to deliver what he had received to a person who was legally incapable of receiving the same. Although the devise was not legal, so far as his share was concerned, that is to say, the portion to which he was entitled as heir, still, I gave it as my opinion that his right to the land was unimpaired, for neither the rule of law nor the difference of possession could accomplish the division of the will of the testator.
19 Paulus libro sexto decimo responsorum. Respondit, si scriptis heredibus ideo hereditas ablata est, quod testator aliud testamentum mutata voluntate facere voluit et impeditus ab ipsis est, ab universo iudicio priore recessisse eum videri.
19 Paulus, Opinions, Book XVI. If the appointed heirs are deprived of the estate because the testator, having changed his mind, desired to make another will and was prevented by them from doing so, he will be considered to have entirely revoked his former will.
20 Hermogenianus libro tertio iuris epitomarum. Ei, qui mortem uxoris non defendit, ut indigno dos aufertur.
20 Hermogenianus, Epitomes of Law, Book III. A husband who does not avenge the death of his wife shall be deprived of her dowry as being unworthy.
21 Paulus libro quinto sententiarum. Portiones quoque eorum fisco vindicantur, qui mortem libertorum suspecto decedentium non defenderunt: omnes enim heredes vel eos qui loco heredis sunt officiose agere circa defuncti vindictam convenit.
21 Paulus, Sentences, Book III. The shares of the estates of freedmen that have lost their lives under suspicious circumstances, which are due to patrons who neglect to avenge their death, shall be forfeited to the Treasury. For all heirs, as well as those who occupy the position of heirs, are required, as a matter of duty, to avenge the death of the deceased.
22 Tryphoninus libro quinto disputationum. Tutorem, qui pupilli sui nomine falsum vel inofficiosum testamentum dixit, non perdere sua legata, si non optinuerit, optima ratione defenditur et, si libertum patris pupilli sui nomine capitis accusaverit, non repelli a bonorum possessione contra tabulas, quia officii necessitas et tutoris fides excusata esse debet. nec quisquam iudicum calumnia notabit tutorem, qui non suis simultatibus accusationem sub nomine pupilli instituit, sed cogente forte matre pupilli vel libertis patris instantibus. et si tutor reum aliquem postulaverit pupilli nomine et ideo non sit exsecutus, quod interim ad pubertatem pupillus pervenerit, non oportet dici in Turpillianum eum senatus consultum incidisse. discreta sunt enim iura, quamvis plura in eandem personam devenerint, aliud tutoris, aliud legatarii: et cum non suae personae iure, sed pupilli accusaverit, propriam poenam mereri non debet. denique pupillo relicta in eo testamento, nisi a principe conservata sint, pereunt: adeo ille est accusator, is defensor et quasi patronus. idem et Sabinus libris ad Vitellium scripsit.
22 Tryphoninus, Disputations, Book V. For the best of reasons, it can be maintained that a guardian who alleges in the name of his ward that a will is forged or inofficious, but is unable to prove his contention, does not lose his legacy. And even if he charges a freedman of the father of his ward with a capital crime, in the name of the latter, he shall not be excluded from possession of the estate in opposition to the terms of the will, because the requirements of his duty, and his responsibility as guardian should excuse him; nor can anyone convict a guardian of malicious prosecution who brings an accusation in the name of his ward, and not through any enmity entertained by himself, but, perhaps, induced by the representations of the mother of the ward, or at the instigation of the freedmen of the father. If a guardian accuses anyone of a crime in the name of his ward, and does not prosecute the case, because, in the meantime, the ward has arrived at the age of puberty, it must not be said that he has become liable to the Turpillian Decree of the Senate, as the rights are distinct, even though several are united in the same person, for the rights of a guardian are one thing, and those of a legatee another; and where a guardian brings an accusation, not in his own name, but in that of his ward, he does not deserve punishment. Finally, property left to a ward by a will under such circumstances is lost, unless it is preserved by order of the Emperor; to such an extent is he the defender, and, as it were, the patron of him who makes the accusation. Sabinus says the same thing in his works on Vitellius.
23 Gaius libro singulari de tacitis fideicommissis. Si quilibet heres ex cuiuscumque testamento tacite rogatus fuerit, ut quadrantem, quem legis Falcidiae beneficio retinuit, non capienti restituat, aeque locus erit senatus consulto: neque enim multum intererit inter tale fideicommissum et cum quis id, quod ad se ex hereditate pervenerit, restituere rogatus sit.
23 Gaius, On Implied Trusts. Where any heir whosoever, having been tacitly requested by the will of a testator to deliver to some person not entitled to receive it a fourth part of the estate to which he is entitled under the Falcidian Law, there will also be ground for the application of the Decree of the Senate; for there is not much difference between a trust of this kind and one where an heir is charged to give property which he has received from an estate to a party who is incapable of receiving it.
24 Papinianus libro octavo decimo quaestionum. Si testamentum patris iure factum filius negavit, quoniam de iure disputavit, non iudicium impugnavit aut accusavit, retinet defuncti voluntatem.
24 Papinianus, Questions, Book XVIII. Where a son denies that his father’s will is valid, as the controversy relates to the legality of the instrument, and he does not attack the testamentary provisions made by his father, or accuse him of any offence, he will retain what was left him by the deceased.
25 Idem libro quarto decimo responsorum. Si gener socerum heredem reliquerit, taciti fideicommissi suspicionem sola ratio paternae affectionis non admittit.
25 The Same, Opinions, Book XIV. Where a son-in-law appoints his father-in-law his heir, the sole incentive of paternal affection will not permit any suspicion to attach to the implied execution of the trust.
26 Apud Scaevolam libro trigesimo digestorum Claudius notat:. Si vivo testatore decesserit is, cui illicite legatum relictum erat, non fisco hoc vindicatur, sed apud eum a quo relictum est remanet.
26 Claudius, in the Thirtieth Book of the Digest on Scævola, remarks that if the party to whom an unlawful bequest was made should die during the lifetime of the testator, the bequest will not be forfeited to the Treasury, but will remain in the hands of him who was charged with the execution of the trust.