De Carboniano edicto
(Concerning the Carbonian Edict.)
1 Ulpianus libro quadragensimo primo ad edictum. Si cui controversia fiet, an inter liberos sit, et impubes sit, causa cognita perinde possessio datur ac si nulla de ea re controversia esset et iudicium in tempus pubertatis causa cognita differtur. 1Eum qui controversiam facit, si pro pupillo satis ei non detur, simul in possessionem eorum bonorum esse praetor iubet. 2Non tantum masculi, sed et feminae ex virili sexu descendentes Carboniani commodum habebunt. 3Et generaliter dicimus his demum Carbonianum competere, quibus contra tabulas bonorum possessio competit, his vero non competere, qui repelluntur a contra tabulas bonorum possessione. 4Si quis non ab aliquo hanc controversiam patiatur, quod inter liberos non sit, sed ab ipso patre, ut puta nepos, qui se retentum in potestate avi dicit, ab emancipato patre, cui iungi desiderat, an differri debeat? et magis est, ut differatur: parvi enim refert, quis ei controversiam faciat, cum et si testator eum negaverit ex liberis, non tamen exheredem scripserit, Carboniano possit esse locus. 5Sed et si quis non tantum ex liberis negetur esse, verum servus etiam esse dicatur forte ex ancilla editus, Iulianus scripsit adhuc Carboniano locum esse: quod et divus Pius rescripsit: nam vel magis consulendum est his quibus maius periculum intenditur. nam si aliter observetur, inventa erit ratio, quemadmodum audacissimus quisque maiore iniuria inpuberem adficiat, quod et plura et graviora de eo mentiatur. 6Sed et si ipse defunctus servus esse dicatur, idem erit dicendum. 7Sed et si fiscus facit impuberi controversiam, Carbonianum edictum potest locum habere. 8Pomponius libro septuagensimo nono ad edictum scripsit, cum filius heres vel exheres scriptus est, Carbonianum edictum cessare, quamvis filius esse negetur, quia vel quasi scriptus habet bonorum possessionem, etiamsi filius non est, vel repellitur quasi exheredatus, etsi filius esse videatur: nisi forte postumus, inquit, est heres institutus et natus negetur esse filius, sed subiectus esse dicetur, quo casu eius partis tantum danda est ei bonorum possessio, ex qua institutus est. 9Idem ait, cum quidam exheredem scripsisset filium, quod diceret eum ex adulterio conceptum, quia fieret ei haec controversia, an inter liberos sit, ex hac parte edicti ei bonorum possessionem competere, cum, si sine elogio exheres scriptus esset, non haberet bonorum possessionem. idemque et si ita sit scriptum: ‘quisquis est, qui filium meum se esse dicit, exheres esto’, quia non est filius exheredatus. 10Si quis filium suum heredem instituerit ex minima parte sic ‘ille qui ex illa natus est heres esto’, non quasi filium suum, deinde hic contendat patrem intestatum decessisse seque ei suum heredem esse, interest, coheredes eius utrum negent eum filium an vero contendunt testamentum valere. si testamentum valere contendunt, controversia non est differenda et Carbonianum cessat: quod si filium eum negant et ad ipsos potius quasi ad consanguineos hereditatem pertinere dicunt, data bonorum possessione impuberi controversia in tempus pubertatis differtur. 11Si mater subiecti partus arguatur, an differenda sit quaestio propter statum pueri, quaeritur. et si quidem pupilli status in dubium devocatur, differri quaestio in tempus pubertatis debet, cum metus potest esse, ne minus idonee defendatur: cum vero mater rea postulatur utique integra fide, et maiore constantia causam defensura recenti tempore, dubium non est cognitionem fieri oportere, et post eventum cognitionis, si suppositum apparuerit, actiones hereditariae puero denegandae sunt omniaque perinde habenda, atque si heres scriptus non fuisset.
1 Ulpianus, On the Edict, Book XLI. If a dispute should arise as to whether a child under the age of puberty should be included among the descendants of the deceased, possession will be given it after proper cause is shown, just as if no controversy had arisen with reference to the matter; and, after investigation has taken place, the decision will be postponed until the time that the child arrives at puberty. 1If security for the minor is not given to him who raises the question, the Prætor orders him to be placed in possession of the estate along with the minor. 2Not only males, but also females descendants from males, are entitled to the benefit of the Carbonian Edict. 3In general, we say that those are entitled to the benefit of the Carbonian Edict who can obtain prætorian possession of an estate contrary to the provisions of the will; but those are not entitled to it who are excluded from obtaining such possession. 4If a child is made the subject of a controversy of this kind, namely: where it is denied that he should be included among the descendants of the deceased, and the question was raised not by a stranger, but by his own father; as, for instance, where a grandson alleges that his father was emancipated, and that he was retained under the control of his grandfather, and asks to be joined with his father, should the decision in this case be postponed? The better opinion is that it should be; for it makes very little difference who raises the controversy, as even if the testator should deny that he was included among his descendants, and he, nevertheless, did not disinherit him, there will be ground for the application of the Carbonian Edict. 5If anyone should deny not only that the child has a right to be included among the descendants of the testator, and should even allege that he is a slave, for instance, born of a female slave, Julianus says that there is ground for the application of the Carbonian Edict, which the Divine Pius also stated in a Rescript. For great care should be exercised with reference to those who are threatened with a serious wrong; as, if it were otherwise, any extremely bold man could inflict injury upon a minor under the age of puberty by relating many grave slanders and falsehoods about him. 6The same rule will apply, even where the deceased himself is said to have been a slave. 7There will also be ground for the application of the Carbonian Edict, where the Treasury raises the question as to the status of a minor under the age of puberty. 8Pomponius, in the Seventy-ninth Book of the Edict, says that where a son is appointed an heir, or is disinherited, the Carbonian Edict will not apply, even though it is denied that he is a son; because being, as it were, appointed heir, he has possession of the estate, even if he is not a son, or he will be excluded because of being disinherited, even if it should appear that he is a son; unless a posthumous child is appointed an heir, and, after his birth, it is denied that he is a son, although he is said to be under paternal control; in which case prætorian possession should only be given to him in proportion to the share of the estate to which he was appointed heir. 9He also holds that where anyone has disinherited his son, because he said that he was conceived in adultery, or where it was disputed as to whether he should be included among his children, he will be entitled to possession of the estate under this Section of the Edict; for, since he had been disinherited without giving any reason for it, he would not be entitled to possession of the estate. The same rule will apply where the following clause was inserted into a will, “Let anyone who says that he is my son be disinherited,” because a son is not disinherited in this way. 10If anyone should appoint his son his heir to a very small portion of his estate, as follows, “Let So-and-So, born of such-and-such a woman, be my heir,” and afterwards the said son should not admit that his father died intestate, and that he was his heir at law, it makes a difference whether his co-heirs deny that he is the son of the testator, or whether they say that the will is valid. If they say that the will is valid, the dispute should not be deferred, and the Carbonian Decree will not apply. If, however, they deny that he is the son of the testator, and allege that the estate belongs to them, as being the next of kin; possession of the estate will be given to the minor, and the decision of the controversy will be postponed until he arrives at the age of puberty. 11If the mother is accused of introducing a supposititious child, the question arises whether the controversy with reference to the civil condition of the child should be deferred for decision. Where only the condition of the child is in doubt, the question should be deferred until the age of puberty, because there may be reason to fear that it will not properly be defended. But where the mother herself is accused, as there is no doubt that she will, from the first moment, defend the civil status of the child, with the greatest good faith and constancy, there is no doubt that an investigation should be made, and if after the investigation it appears that the child was supposititious, every action for the recovery of the estate must be refused to it, and everything will remain in the same condition as if the child had not been appointed heir.
2 Marcianus libro quarto decimo institutionum. Licet mulier, quae partum subiecisse dicitur, decesserit, tamen, si participes maleficii sint, in praesenti cognoscendum est. si autem nemo sit qui puniri possit, quia omnes participes facinoris forte decesserint, secundum Carbonianum edictum in tempus pubertatis differenda cognitio est.
2 Marcianus, Institutes, Book XIV. Although the woman who is said to have introduced a supposititious child may be dead, still, if there are any others implicated in the crime, an investigation should take place at once. When, however, there is no one who can be punished, because all those who participated in the offence are dead, the investigation must be deferred until the time of puberty, in accordance with the Carbonian Edict.
3 Ulpianus libro quadragensimo primo ad edictum. Carbonianum edictum aptatum est ad contra tabulas bonorum possessionem et intestati, cum et in secundum tabulas in quibusdam casibus possit videri necessarium edictum, veluti si pater familias ita instituerit: ‘postumus heres esto’ vel ‘postuma heres esto’ et negetur esse verum, quod in testamento scriptum est. 1Et cum de fideicommissis vel de legatis quaeritur, differri potest causa in tempus pubertatis: id enim divus Pius Claudio Hadriano rescripsit. 2Quamvis scripto heredi non promitti bonorum possessionem ex edicto Carboniano certum sit, tamen quaestionem status in tempus pubertatis differri procul dubio est. ergo si quidem de parentis bonis simul et de statu controversia fiat, hoc edictum locum habebit: sin vero tantum status, differetur quaestio in tempus pubertatis, sed non ex Carboniano, sed ex constitutionibus. 3Puberi quamvis minori viginti quinque annis Carbonianum non succurrit. sed et si, cum esset pubes, quasi impubes obrepserit bonorumque possessionem accepit, dicendum erit nihil eum egisse: nam et si impubes esset mox pubes factus, finiretur bonorum possessionis emolumentum. 4Causae cognitio in eo vertitur, ut, si manifesta calumnia appareret eorum, qui infantibus bonorum possessionem peterent, non daretur bonorum possessio. summatim ergo, cum petitur ex Carboniano bonorum possessio, debet praetor cognoscere: et si quidem absolutam causam invenerit evidenterque probatur filium non esse, negare debet ei bonorum possessionem Carbonianam: si vero ambiguam causam, hoc est vel modicum pro puero facientem, ut non videatur evidenter filius non esse, dabit ei Carbonianam bonorum possessionem. 5Duae autem sunt causae cognitiones, una dandae Carbonianae possessionis, quae habet commodum illud, ut, perinde atque si nullam controversiam pateretur impubes, possessionem accipiat, alia causae cognitio illa, utrum differri debeat in tempus pubertatis cognitio an repraesentari. hoc autem diligentissime praetori examinandum est, an expediat pupillo repraesentari cognitionem an potius differri in tempus pubertatis, et maxime inquirere hoc a cognatis matre tutoribusque pupilli debet. finge esse testes quosdam, qui dilata controversia aut mutabunt consilium aut decedent aut propter temporis intervallum non eandem fidem habebunt: vel finge esse anum obstetricem vel ancillas, quae veritatem pro partu possunt insinuare, vel instrumenta satis idonea ad victoriam vel quaedam alia argumenta, ut magis damnum patiatur pupillus, quod differtur cognitio, quam compendium, quod non repraesentatur: finge pupillum satisdare non posse et admissos in possessionem, qui de hereditate controversiam faciunt, multa posse subtrahere novare moliri: aut stulti aut iniqui praetoris erit rem in tempus pubertatis differre cum summo eius incommodo, cui consultum velit. divus etiam Hadrianus ita rescripsit: ‘Quod in tempus pubertatis res differri solet, pupillorum causa fit, ne de statu periclitentur, antequam se tueri possint. ceterum si idoneos habeant, a quibus defendantur, et tam expeditam causam, ut ipsorum intersit mature de ea iudicari, et tutores eorum iudicio experiri volunt: non debet adversus pupillos observari, quod pro ipsis excogitatum est, et pendere status eorum, cum iam possit indubitatus esse’. 6Si mater impuberis subiecti partus rea postulata causam optinuerit, poterit adhuc superesse status quaestio, ut puta si dicatur aut non esse ex ipso defuncto conceptus aut ex ipso quidem, sed non ex matrimonio editus. 7Si is, qui status controversiam filio faciebat et solum se filium dicebat, decesserit et mater ei heres extiterit, si quidem eandem controversiam impuberi mater faciat, qui se ex alia natum adfirmat, quam filius eius faciebat, scilicet ut neget eum filium, idcircoque ad se totam hereditatem ex persona filii sui defuncti pertinere debere: in tempus pubertatis differri Iulianus ait, quia nihil interest, suo an hereditario nomine controversiam faciat. plane si mater concedat hunc quoque defuncti filium esse idcircoque partem dimidiam hereditatis solam sibi vindicet ex bonis paternis, non erit iudicium in tempus pubertatis differendum: non enim de paternis, sed de fraternis bonis impuberi fit controversia. 8Ibidem Iulianus quaerit: si duo impuberes patiantur status controversiam et alter eorum pubuerit, exspectari alterius quoque pubertas debet, scilicet ut sic de utriusque statu agatur, ne aliquod praeiudicium fiat impuberi per puberis personam. 9Parvi refert, utrum petitor sit impubes an possessor, qui status controversiam patitur: nam sive possideat sive petat, in tempus pubertatis differtur. 10Si duo impuberes invicem faciant status controversiam, interest, utrum quisque se solum filium dicat an et se. nam si se solum dicat filium, dicendum est debere controversiam ad utriusque pubertatem differri, sive petitor sive possessor sit. si vero alter se solum, alter et se dicat, si quidem ille adoleverit qui se solum dicat, adhuc differtur controversia propter pueritiam eius qui et se dicit, sed de parte, non de toto: de parte enim utique nec litigatur. quod si ille adoleverit qui et se dicit, ille impubes sit qui se solum dicit, non differtur controversia: nec enim patitur impubes status controversiam, sed facit, cum hic pubes et se dicat, illum non neget filium. 11Si quis liber et heres esse iussus status controversiam impuberi faciat, qui filius esse et testamentum patris rupisse dicitur, Iulianus ait utraque iudicia et hereditatis et libertatis in tempus pubertatis differenda: neutrum enim eorum ita explicari potest, ut non condicioni eius, qui se filium esse contendat, praeiudicetur. ceterae quoque libertatis quaestiones ex testamento pendentes in tempus pubertatis differuntur. 12Cum extaret impubes, qui se filium defuncti diceret, debitoresque negent eum filium esse defuncti et intestati hereditatem ad adgnatum, qui forte trans mare aberit, pertinere: necessarium erit puero Carbonianum edictum. sed et absenti erit prospiciendum, ut cautio praestetur. 13Missum autem ex Carboniano in possessionem student praetores possessorem constituere. quod si coeperit aut hereditatem petere quasi bonorum possessor Carbonianus aut singulas res, rectissime Iulianus libro vicensimo quarto digestorum scribit exceptione eum summovendum: contentus enim esse debet hac praerogativa, quod possessorem eum praetor tantisper constituit. si igitur vult hereditatem aut singulas res petere, petat, inquit, directa actione quasi heres, ut ea petitione iudicari possit, an quasi ex liberis heres sit, ne praesumptio Carbonianae bonorum possessionis iniuriam adversariis afferat: quae sententia habet rationem et aequitatem. 14Haec autem possessio intra annum datur, sicuti ordinariae quoque, quae liberis dantur, intra annum dantur. 15Sed oportebit hunc, qui se filium dicit, non solum Carbonianam bonorum possessionem accipere, verum etiam ordinariam agnoscere. 16Currunt autem tempora ad utramque bonorum possessionem separatim, ordinariae quidem, ex quo patrem suum decessisse scit et facultatem bonorum possessionis petendae habuit, Carbonianae vero ex eo tempore, ex quo controversiam sibi fieri cognovit.
3 Ulpianus, On the Edict, Book XIV. The Carbonian Edict is applicable to the prætorian possession of an estate contrary to the provisions of the will, as well as to the possession ab intestato; since in some instances, the application of the Edict may become necessary when prætorian possession in accordance with the terms of the will has been granted; for example, where the testator appointed an heir as follows, “Let my posthumous child, whether it be a boy or girl, be my heir,” and it is denied that the statement in the will is true. 1Where a question arises with reference to a trust or a legacy, the matter can be deferred until the time of puberty; as the Divine Pius stated in a Rescript addressed to Claudius Hadrian. 2Although it is certain that prætorian possession under the Carbonian Edict is not promised to an appointed heir, still, there is no doubt whatever that any question as to his condition must be postponed until he reaches puberty. Hence, if at the same time a controversy arises with reference to the estate of his father and his own condition, this Edict will be applicable. Where, however, only his civil condition is in dispute, the question will be postponed until the time of puberty, not under the Carbonian Edict, but in accordance with the Imperial Constitutions. 3The Carbonian Edict gives no relief to children who have arrived at puberty, even though they are under twenty-five years of age. If, however, a child, who has arrived at puberty, represents himself as being under that age, and obtains prætorian possession of the estate, it must be said that the decree is void. For even if he was under the age of puberty, as soon as he arrives at that age, the benefit of the possession of the estate will terminate. 4In cases of this kind, an investigation is instituted to prevent possession of an estate from being given, if the deceit of those who demand possession of property in behalf of children should be clearly established; therefore, where possession is demanded under the Carbonian Edict, the Prætor should immediately take cognizance of the case. If he finds that it can be easily decided, and it is positively proved that the child is not a son, he can refuse to grant it Carbonian possession of the estate. But when he finds that the matter is involved in doubt, that is to say, that there is some slight evidence in favor of the child, and it does not clearly appear that he is not the son of the testator, he shall grant him Carbonian possession of the estate. 5Two causes exist for this investigation: one of them is to determine whether Carbonian possession which confers the advantage of enabling the minor to obtain prætorian possession, just as if no controversy had arisen, shall be granted; and the other is, to ascertain whether a decision ought to be rendered at once, or deferred until the age of puberty. The Prætor should carefully examine whether it is advantageous for the minor to have the decision rendered at once; or whether it will be better to postpone it until he reaches the age of puberty; and this he must, by all means, learn from the relatives, the mother, and the guardians of the minor. Suppose, for instance, that there are certain witnesses who, if the decision of the case is postponed, may either change their minds, or die, or whose testimony will not have the same force after a long period of time. Or, suppose there is some old midwife, or certain female slaves who can tell the truth with reference to the child; or that certain documents essential to his success are in existence; or that there are other proofs, and the minor will suffer greater injury if the examination is deferred than he will obtain benefit if the case is not decided at once. Suppose that the minor cannot give security, and that those who have been permitted to obtain possession of the estate are the persons who raised the controversy with reference to it, and who can abstract, change, or destroy much of the property belonging to the same; it would be either foolish or unjust for the Prætor to defer the matter until puberty, to the serious disadvantage of him who desires the matter to be disposed of. The Divine Hadrian stated in a Rescript: “Where the decision is ordinarily deferred until the age of puberty, this is done for the benefit of the minors, in order that this condition may not be imperiled before they are able to protect themselves. Moreover, if they have persons by whom they may be properly defended, and if it is to the interest of the said minors that the case should be quickly brought to trial, and a decision rendered, and the guardians of the minors desire it to be heard, what has been devised for the benefit of the minors should not be employed against them, and their condition remain in suspense when it can be established beyond a doubt.” 6If the mother of the minor, after being accused of having introduced a supposititious child, gains her case, the question as to the condition of the child may still remain unsettled; for example, it may be alleged that it was not begotten by the deceased, or, if it was, that it was not born in wedlock. 7If the person who disputed the condition of the child, and alleged that he himself was the only son, should die, and his mother should become his heir, and raise the same controversy with reference to the minor, that her own son did, stating that he was born of another woman; that is to say, if she should deny that he was the child of the deceased, and therefore that she herself was entitled to the entire estate of the deceased son, as his heir, Julianus says that a decision should not be rendered until the age of puberty, because it makes no difference whether the person who raises the question does so in his own name, or in that of the estate. It is evident that if the mother should admit that the child is the son of the deceased, and therefore claims for herself only half of the estate of the father, the decision of the case should not be deferred until the time of puberty; for she does not dispute the claim of the minor to the estate of his father, but to that of his brother. 8Julianus says, in the same place, that if a dispute arises with reference to the status of two minors under the age of puberty, and one of them reaches that age, they should wait until the other also arrived at puberty, so that the condition of both may be determined in such a way that the rights of the one who had not arrived at puberty, may not be prejudiced through a decision rendered against the one who had reached that age. 9It makes little difference whether the claimant is a minor under the age of puberty, or the possessor of the estate who raises the question as to the condition of the minor, for whether he is in possession, or demands it, the decision must be deferred until the time of puberty. 10Where two minors under the age of puberty raise a question as to the condition of one another, it makes a difference whether one of them alleges that he is the only son, or whether the other alleges that he also is a son. For if one says that he is the only son, it must be held that the decision of the case should be postponed until both of them arrive at puberty, whether the claimant or the possessor is the one who gives rise to the controversy. If, however, one alleges that he is the only son, and the other says that he is also a son, and the former should be the first to reach the age of puberty, the decision must be deferred on account of the youth of the one who asserts that he is a son; but this must be done partially and not entirely, for there is no dispute with reference to half of the estate. Where he who declares that he is also a son is the first one to attain the age of puberty, and he who alleges that he is the only son is under that age, the decision shall not be deferred; for there is no question with reference to the condition of the latter, since he is the one who makes the contest, as the one who has reached puberty, while he says that he is a son, does not deny that the other is also a son. 11Where a slave who is ordered to be free, and is appointed an heir, disputes the status of a minor, who is said to be the son of the testator, and has broken the will of his father, Julianus says that the decision with reference to both the estate and the bequest of freedom should be deferred until the age of puberty; for neither of.these questions can be determined at once without prejudicing the rights of him who says that he is the son of the testator. Other matters with reference to testamentary bequests of freedom, and which are pending, shall also be postponed until the time of puberty. 12Where a minor under the age of puberty appears, and alleges that he is the son of the deceased, and debtors to the estate deny that this is true, but say that the property of the deceased intestate belongs to a relative, who, for instance, is beyond seas, the child must have recourse to the Carbonian Edict; but the interest of the absent person must be consulted by requiring security to be given. 13The Prætors exert themselves to place in actual possession those to whom possession has been given under the Carbonian Edict. If, however, a possessor under the Carbonian Edict should attempt to claim the estate, or any particular property belonging to the same, Julianus, in the Twenty-fourth Book of the Digest, very properly says that he should be barred by an exception, for he ought to remain content with the privilege of possession which the Prætor in the meantime has granted him. Therefore, if he wishes to claim the estate, or any property forming part of the same, he says that he must do so by means of a direct action in the capacity of heir; so that, after his application, it may be determined whether he is an heir, and is included among the children, in order that the presumption of Carbonian possession of the estate may not injure his adversaries. This opinion is both reasonable and just. 14Moreover, this possession is granted within the year, just as ordinary ones which are given to children. 15It is, however, necessary that he who alleges that he is a son should not only obtain Carbonian possession of the estate, but should also demand the ordinary prætorian possession. 16The periods necessary for obtaining both possessions run separately. The one which has for its object ordinary prætorian possession runs from the time when the son knew that his father was dead, and had the power to demand prætorian possession of the estate; and that of Carbonian possession runs from the time when the son knew that his condition was disputed.
4 Iulianus libro vicensimo quarto digestorum. Ideo si ex prima parte edicti bonorum possessionem non petierit, alias poterit ex sequenti parte edicti ad exemplum Carboniani accipere bonorum possessionem, alias non poterit. nam si confestim post patris mortem controversia ei facta fuerit, an inter liberos bonorum possessionem accipere possit, simul ad utriusque edicti causam annus cessisse videbitur: si vero interposito tempore scierit controversiam sibi moveri, poterit etiam finito tempore, intra quod ex prima parte bonorum possessionem acceperat, ex sequenti bonorum possessionem petere, quam cum acceperit, perpetuo possessoriis actionibus utetur: sed si post pubertatem contra eum iudicatum fuerit, denegabuntur ei actiones.
4 Julianus, Digest, Book XX. Therefore, if a child does not demand possession of the estate under the First Section, he can, in some instances, obtain possession under the following Section of the Carbonian Edict, and sometimes he cannot do so; for if a controversy should arise immediately after the death of the father as to whether he could demand possession of the estate with the other children, the year will be considered to have expired at the same time, so far as both periods are concerned. If, however, after a certain term has elapsed, he should ascertain that his rights were disputed, he can, even if the time has expired during which he could have demanded possession of the estate under the First Section of the Edict, demand it under the Second Section; and when he has obtained it, he can always avail himself of the possessory actions. But where judgment has been rendered against him after he has reached puberty, the actions will be refused him.
5 Ulpianus libro quadragensimo primo ad edictum. Sed si is, qui controversiam impuberi facit, ex liberis sit, eveniet, ut, sive caveat hic, cui status fit controversia, sive non caveat, attamen simul sit in possessionem. 1Si impubes non defendatur idcircoque missus sit in possessionem etiam adversarius eius, actiones hereditarias quis exercebit? et ait Iulianus libro vicensimo quarto digestorum curatorem constitui debere, qui omnia curet actiones exerceat. denique scribit etiam eum, qui cum impubere missus est in possessionem, actiones posse adversus curatorem intendere nec esse prohibendum: nullum enim per hoc praeiudicium hereditati fieri: nam et adversus ipsum pupillum, si satis dedisset, recte experiretur. 2Quotiens impubes satis non dat, mittitur in possessionem adversarius eius, sive satis det sive non det. si velit adversarius committi sibi administrationem, satis dare debet pupillo: ceterum si satis non det, debet curator constitui, per quem bona administrentur. adversarius autem si satis dederit, res, quae tempore periturae aut deteriores futurae sint, distrahere debet: item a debitoribus, qui tempore liberabuntur, exigere debet: cetera cum pupillo possidebit. 3An autem vescendi causa deminuere possit is qui ex Carboniano missus est, videamus. et si quidem satis impubes dedit, sive decrevit praeses sive non, deminuet vescendi causa et hoc minus restituet hereditatis petitori. quod si satis dare non potuit et aliter alere se videtur non posse, deminuendi causa usque ad id, quod alimentis eius necessarium est, mittendus est. nec mirum debet videri hereditatem propter alimenta minui eius, quem fortasse iudicabitur filium non esse, cum omnium edictis venter in possessionem mittatur et alimenta mulieri praestentur propter eum, qui potest non nasci, maiorque cura debeat adhiberi, ne fame pereat filius, quam ne minor hereditas ad petitorem perveniat, si apparuit filium non esse. 4Maxime autem puto, si missus fuerit in possessionem adversarius, desiderandum a praetore, ne instrumenta in possessionem suam redigat: ceterum decipietur pupillus, dum vel instruitur adversarius eius vel etiam intercipere ea potest. 5Cum autem in satisdatione et pupillus et adversarius eius cessant, curator constituendus est, qui bona administret et quandoque ei qui iudicio vicerit restituat. quid tamen, si tutores pupilli velint administrare? non erunt audiendi, nisi satis dederint nomine pupilli aut curatores quoque idem ipsi sint constituti.
5 Ulpianus, On the Edict, Book XLI. If he who institutes a contest against the minor is one of the children of the deceased, the result will be, whether he whose condition is in dispute gives security, or whether he does not do so, he will still be placed in possession. 1If the child under the age of puberty is not defended, and therefore his adversary is placed in possession, who will have the right to bring the actions in which the estate is interested? Julianus, in the Twenty-fourth Book of the Digest, says that a curator should be appointed who can take charge of everything, and bring the actions. He, moreover, says that the person who is placed in possession with the minor is not forbidden to institute proceedings against the curator, for in this way no injury is done to the estate, as he can legally bring his actions against the minor himself, if he has furnished security. 2Whenever a minor under the age of puberty does not give security, his adversary is placed in possession, whether he himself gives security or not. If his adversary wishes the administration of the property to be entrusted to him, he should furnish security to the minor; but if he does not do so, a curator should be appointed by whom the property shall be administered. Again, if the adversary should give security, he ought to sell any property which is liable to be either destroyed or depreciated by delay, and he must also collect all debts from the debtors, if they will be released by lapse of time; the remainder of the estate he shall keep possession of along with the minor. 3Moreover, let us see whether he who is placed in possession under the Carbonian Edict can diminish the estate in order to provide for his own support. If the minor has given security, he can use part of the estate for his support, whether a decree authorizing him to do so has been granted, or not; and he must return the remainder of the estate to the person who claims it. If, however, he is unable to give security, and it is evident that he cannot otherwise support himself, he should be placed in possession in order to enable him to obtain what is necessary for his subsistence. It ought not to appear surprising that a person, who may not prove to be the son of the deceased, is allowed to use part of the property for his support, since an unborn child is placed in possession of the entire estate by the Edicts, and support is given to his mother for the benefit of a child that may not be born; and greater care should be exercised to prevent the son from dying from hunger than to prevent a smaller amount of property coming into the hands of the claimant, if it should be decided that the child was not the son of the deceased. 4I think that it should, by all means, be asked of the Prætor that the documents of the estate shall not be placed in the hands of the adversary, if he obtains possession; otherwise, the minor may be defrauded either by his adversary obtaining information through them, or by enabling him to suppress them. 5When neither the minor nor his adversary gives security, a curator should be appointed who shall administer the property and deliver it to whoever gains the case. What, however, must be done if the guardians of the minor demand the administration? They should not be heard unless they give security in the name of the minor, or unless they themselves are appointed curators.
6 Paulus libro quadragensimo primo ad edictum. De bonis matris an decretum interponendum sit, quaeritur. et decretum quidem non est interponendum, dilatio autem longissima danda est, quae in tempus pubertatis extrahet negotium. 1Plane si simul de paternis et de maternis bonis controversia sit vel etiam de fratris, et has controversias in tempus pubertatis differendas esse Iulianus respondit. 2Huic autem edicto locus est etiam si ab intestato ad bonorum possessionem veniant liberi, tametsi ex inferioribus partibus petant, qua legitimi vocantur, quoniam sui sunt, vel ex illa, qua cognatis datur. 3Ita demum autem huic edicto locus est, si status et hereditatis controversia sit: nam si tantum status (quod puta servus dicatur esse) nec ulla bonorum controversia sit, hoc casu liberale iudicium statim explicandum erit. 4Qui pupillo controversiam facit si simul cum eo in possessionem missus est, ali ex bonis defuncti non debebit nec quicquam de bonis deminuere: haec enim possessio pro satisdatione cedit. 5Non solum alimenta pupillo praestari debent, sed et in studia et in ceteras necessarias impensas debet impendi pro modo facultatium. 6Post pubertatem quaeritur, an actoris partes sustinere debeat qui ex Carboniano missus est in possessionem. et responsum est rei partes eum sustinere debere, maxime si cavit. sed et si non caverat, si nunc paratus sit cavere, quasi possessor conveniendus est: quod si nunc non caveat, possessio transfertur adversario satis offerente: perinde atque si nunc primum ab eo peteretur hereditas.
6 Paulus, On the Edict, Book XLI. The question arises, can a decree be rendered with reference to the property of a mother? And, in fact, a decree cannot be rendered in this instance, under the Carbonian Edict; for a long delay should be granted which will defer the decision until the age of puberty. 1Julianus says it is clear that if a controversy arises with reference to the estates of the father and mother, at the same time, or even with reference to that of a brother, the decision of the controversy must be postponed until the time of puberty. 2There will be ground for the application of this Edict, even if the children should obtain prætorian possession ab intestato; even when they demand it under the last Sections of the Edict, where heirs at law are called to the succession as they are proper heirs, or under that Section by which possession is granted to cognates. 3This Edict also applies where a controversy exists both with reference to the status of the minor, and his right to the estate; for if only his status is involved, as, for instance, where he is said to be a slave, and there is no dispute as to the estate, under such circumstances the question of his freedom should be immediately determined. 4If he who raises a controversy concerning the minor is placed in possession with him at the same time, he should not be supported out of the property of the deceased, nor can he take anything from the estate, for this possession is only given him in lieu of security. 5Not only should support be furnished the minor, but also money for his education, and all other necessary expenses should be paid in accordance with the amount of the estate. 6The question arises whether he who has been placed in possession under the Carbonian Edict can, after he arrives at puberty, take the part of plaintiff in court. It has been established that he can take the part of defendant, especially if he gives security. Where he does not give security, and is not prepared to do so, suit can be brought against him as the possessor of the estate. If he does not then furnish security, possession will be transferred to his adversary, provided that he banishes it; just as if the estate had been, from that moment, claimed by him for the first time.
7 Iulianus libro vicensimo quarto digestorum. Si impubes negetur iure adoptatus et ideo paternae hereditatis ei controversia fiat, non erit iniquum simile Carboniano decretum interponi. 1Item si impubes in adoptionem datus esse dicatur et ideo negetur naturalis patris hereditas ad eum pertinere, quia et hoc casu quaeritur, an iure filii hereditatem optinere possit, locus erit Carboniano edicto. 2Cum vero proponitur exheredatus esse, non est necessarium controversiam in tempus pubertatis differri, quia non de ipsius filii, sed de testamenti iure quaeritur. 3Si mater eius, cui et de libertate et de hereditate paterna controversia fit, in quaestionem libertatis vocatur, iudicium de matre non semper in tempus pubertatis differendum erit: nam et ipsi, qui subiectus esse dicitur, ex causa repraesentari solet. 4Quotiens Carbonianum decretum interponitur, eodem loco rem haberi oportet, quo esset, si nulla controversia fieret ei, qui bonorum possessionem acceperit. 5Cum autem ex duobus fratribus ex hoc decreto missis alter pro parte sua paternam hereditatem non defendit, compellitur alter totam defendere aut universa creditoribus cedere. 6Interdum etiam exheredatus filius ex Carboniano decreto bonorum possessionem accipiet, si non contra tabulas petit bonorum possessionem, sed ab intestato unde liberi (quia neget tabulas testamenti patris tales esse, ut secundum eas bonorum possessio dari possit) et dicatur non esse filius. 7Si pupillus liberti paterni bonorum possessionem petet, negaretur autem filius patroni esse, quia de paternis bonis nulla controversia ei fieret, differendum hoc iudicium non est. si vero post interpositum Carbonianum decretum haec quoque controversia moveretur, hoc iudicium in id tempus differri debet. 8Quaesitum est, an simul et pupillus ex Carboniano et scripti heredes secundum tabulas bonorum possessionem haberent. respondi, si filius non esset aut non accepisset contra tabulas vel ab intestato bonorum possessionem, simul et ipsum ex Carboniano et scriptos heredes secundum tabulas habituros bonorum possessionem.
7 Julianus, Digest, Book XXIV. If it is denied that a minor has been legally adopted, and for that reason his right to the estate of his father is disputed, it will not be unjust for a decree similar to those issued under the Carbonian Edict to be rendered. 1Likewise, where a minor, under the age of puberty, is said to have been given in adoption, and hence his right to the estate of his natural father is denied, since in this case the question arises whether he is entitled to the estate as a son, there will be ground for the application of the Carbonian Edict. 2If, however, we suppose that the son is disinherited, it will not be necessary to postpone the decision of the controversy until the age of puberty, because the question does not involve the right of the son himself, but the validity of the will. 3If the mother of the person whose freedom and claim to the estate of his father are in dispute is called into court to testify in a suit brought to establish his freedom, the decision with reference to his mother should not always be deferred to the time of puberty; for there are instances where the cases of those who are said to be supposititious children are determined without delay. 4Whenever a decree is rendered under the Carbonian Edict, the matter is considered to be in the same condition in which it would have been if no controversy had arisen with reference to the person who obtained prætorian possession of the estate. 5Again, where two brothers have been placed in possession under this decree, and one of them refuses to defend his share of his father’s estate, the other will be compelled to defend the whole of it, or abandon it all to the creditors. 6Sometimes, a disinherited son obtains possession of the estate under the Carbonian Edict, where he does not demand prætorian possession contrary to the provisions of the will, but, on the ground of intestacy, which is granted to children; because he denies that his father’s will is such that prætorian possession can be given under it, as it is alleged that he is not his son. 7If a minor demands possession of the estate of a freedman of his father, and it is denied that he is the son of the patron, for the reason that there is no dispute with reference to the estate of his father, the determination of the controversy should not be postponed. If, however, this controversy should arise after a decree under the Carbonian Edict had been rendered, its determination should be deferred until the time of puberty. 8The question arose whether a minor could have possession under the Carbonian Edict at the same time with the appointed heirs, who obtained it in accordance with the terms of the will. I answered that if he should not be the son, or had not obtained prætorian possession of the estate contrary to the provisions of the will, on the ground of intestacy, he could obtain it under the Carbonian Edict, at the same time that the appointed heirs acquired prætorian possession of the estate in accordance with the provisions of the will.
8 Africanus libro quarto quaestionum. Decessit, quem ego filium meum et in mea potestate esse dico: existit impubes, qui eum patrem familias et ad se hereditatem pertinere dicat: decretum necessarium esse respondit. 1Item emancipatus decessit intestato superstite filio impubere, qui se ei suum esse dicit: ego contendo ante emancipationem conceptum atque ideo in mea potestate esse et bona emancipati ad me pertinere. et quidem hunc filium esse constat: sed hactenus de statu eius quaeritur, quod in potestate patris fuerit nec ne: sententia tamen edicti procul dubio ex Carboniano admittitur.
8 Africanus, Questions, Book IV. The person whom I declare to be my son, and under my control, died. A minor, under the age of puberty, appeared, who alleged that the deceased was the father of a family, and that the estate belonged to him. It was held that the decree should be rendered. 1Again, my emancipated son died intestate, leaving a son under the age of puberty, who alleged that he was the direct heir. I maintain the latter was conceived before emancipation took place, and, for this reason, was under my control, and that the estate of the emancipated son belonged to me. It was established that this child was the son of the deceased, but a question arose as to his legal condition, that is to say, whether he was under the control of his father, or not; and there is no doubt whatever that the Carbonian Edict is applicable in this instance.
9 Neratius libro sexto membranarum. Quod Labeo scribit, quotiens suppositus esse dicitur pupillus, cum quo de patris eius hereditate controversia est, curare praetorem debere, ut is in possessione sit: de eo puto eum velle intellegi, qui post mortem patris familiae, qui se sine liberis decedere credidit, filius eius esse dici coepit: nam eius, qui adgnitus est ab eo, de cuius bonis quaeritur, iustior in ea re causa est quam postumi.
9 Neratius, Parchments, Book VI. Labeo stated that whenever a minor is said to be supposititious, and a controversy arises with reference to his right to his father’s estate, the Prætor should be careful to place him in possession of the same. I think that Labeo intended this to be applicable to a child born after the death of his father, who alleges that he was his son, even though the deceased thought that he had no children; for he who has been acknowledged by the person whose estate is in dispute has a more equitable claim to it than a posthumous child.
10 Marcellus libro septimo digestorum. Cum mulier deferente herede iuraverit se praegnatem esse, bonorum possessio ex edicto Carboniano dari debet, vel denegari, si illa heredi detulit iusiurandum, cum causa cognita detur possessio, ne aut heredi bonorum possessio data faciat praeiudicium aut denegata ius ordinarium eripiat pupillo.
10 Marcellus, Digest, Book VII. Where a woman, to whom an oath has been tendered by the heir, swears that she is pregnant, possession of the estate should be granted under the Carbonian Edict, or it should be refused if she tendered the oath to the heir; for possession should be given after proper cause has been shown to prevent the heir from being prejudiced if it should be given; or if it should be denied, to avoid depriving the minor of his legal rights.
11 Papinianus libro tertio decimo quaestionum. Cum sine beneficio praetoris qui patitur controversiam filius heres esse potest, forte quia scriptus est, edicto Carboniano locus non est: ac similiter cum certum est, quamvis filius sit, eum tamen heredem non fore, veluti si Titio herede instituto postumus aut impubes exheredatus negetur filius. nec ad rem pertinet, quod interest illius in quibusdam filium esse, veluti propter fratris ex alia matre nati bona vel iura libertorum et sepulchrorum: istos enim casus ad Carbonianum constat non pertinere.
11 Papinianus, Questions, Book XIII. There is no ground for the application of the Carbonian Edict, where the son, whose civil condition is contested, cannot become the heir without the intervention of the Prætor; for example, if he has been appointed. The same rule applies where it is certain that he still cannot be the heir, even though he may be the son; as, for instance, if Titius was appointed heir, and a posthumous child or a disinherited minor should be denied to be the son of the testator. Nor does it make any difference what interest the minor may have in being proved to be the son, with reference to other matters, for example, in order to obtain the property of his brother by another mother; or to acquire rights over freedmen and burial places; for it is established that these cases do not come under the Carbonian Edict.
12 Idem libro quarto decimo quaestionum. Scriptus heres, contra quem filius impubes, qui subiectus dicitur, ex edicto primo bonorum possessionem petit, exemplo legitimi secundum tabulas interim accipere non potest. quod si medio tempore scriptus vel ille, qui intestati possessionem habere potuerit, moriantur, heredibus eorum succurrendum erit: quid enim, si non potuerunt adire hereditatem iure cessante vel ob litem in dubio constituti?
12 The Same, Questions, Book XIV. An appointed heir, against whom a minor son who is said to be supposititious demands prætorian possession under the First Section of the Edict, as in the case of an heir at law, cannot, in the meantime, obtain possession in accordance with the provisions of the will. If, however, in the interim, either the appointed heir, or he who is entitled to possession as the heir at law, should die, relief must be granted to his heirs. For what if they had not been able to enter upon the estate, because the law prevented them from doing so, or on account of the decision of the controversy being doubtful?
13 Paulus libro undecimo responsorum. Titia post mortem mariti sui postumam enixa est: eidem Titiae crimen adulterii Sempronius apud praesidem provinciae obiecit: quaero, an in tempus pubertatis quaestio adulterii differri debeat, ne praeiudicium postumae fiat. Paulus respondit, si ei pupillae, de qua quaeritur, bonorum paternorum quaestio non moveatur, sine causa tutores desiderare adulterii quoque quaestionem in tempus pubertatis pupillae differri.
13 Paulus, Opinions, Book XI. Titia had a posthumous child after the death of her husband, and Sempronius brought an accusation of adultery against her before the Governor of the province. I ask whether trial of the accusation of adultery should be deferred until the age of puberty, in order that the rights of the posthumous child may not be prejudiced. Paulus answered that if there was no question as to the right of the minor to the estate of her father, her guardians have no reason to defer the trial for adultery until their ward reaches the age of puberty.
14 Scaevola libro secundo responsorum. Quaeritur, an impubes, qui bonorum possessionem ex Carboniano accepit, si, antequam possessio ad eum translata fuerit, pubes factus sit, petitoris partibus fungi debeat. respondit in eo, quod a possessore petet, probationem ei incumbere.
14 Scævola, Opinions, Book II. The question arises whether a minor under puberty has obtained possession of an estate by the Carbonian Edict, and reaches that age before the possession has been transferred to him, can perform the duties of plaintiff. The answer was that he must introduce proof of any claim which he makes against the possessor.
15 Hermogenianus libro tertio iuris epitomarum. Haec bonorum possessio, si satis datum sit, non tantum ad possessionem apiscendam, sed ad res etiam persequendas et debitum exigendum et collationem bonorum et dotis et omnium quae conferri diximus prodest.
15 Hermogenianus, Epitomes of Law, Book III. This possession will benefit the minor if security is furnished not only to obtain actual possession, but also to recover property, to collect debts, to give dowries, and to do everything else which we have already stated is liable to contribution in collation.
16 Paulus libro quadragensimo primo ad edictum. Sed sicuti de bonis paternis emancipato cavetur, ita de istis quae ipsi confert cavendum est.
16 Paulus, On the Edict, Book XLI. Just as security is given to an emancipated son with reference to the estate of his father, so it must also be given to a minor with reference to the property which he himself places in collation.