Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book XLII. This Edict was promulgated by the Prætor with the intention of modifying the deference which freedmen should show to their patron. if or (as Servius says) in former times they were accustomed to require the most onerous services from their freedmen, by way of remuneration for the extraordinary benerit conferred upon the latter, when, after having been liberated from slavery, they were made Roman citizens. 1The Prætor Rutilius was the first who published an Edict providing that an action should not be granted to a patron against his freedman, except with reference to services, or property held in partnership; for instance, where it was agreed that unless the freedman would perform services for his patron, the latter should be permitted to have joint ownership of his property. 2Succeeding prætors were accustomed to promise possession of a certain portion of the estate of a freedman; for as the partnership existing between the parties implied the performance of services by the freedman, what he was required to furnish as his share of the partnership during his lifetime, he was also obliged to furnish after his death.

2 Pomponius, On Sabinus, Book IV. If a patron, who was passed over in the will of his freedman, could demand prætorian possession of his estate contrary to the provisions of the will, and before doing so, died, or the time prescribed for demanding said possession has elapsed, his children, or those of another patron, can demand possession under that Section of the Edict by which when the first parties do not claim possession, or are unwilling to claim it, it is granted to those next in succession, just as if the former were not in existence. 1If a patron, who was appointed heir by his freedman, should die during the lifetime of the latter, leaving children, the question arose whether they could demand prætorian possession of the estate of the freedman, contrary to the provisions of the will. It was decided with reference to this point that the time of death, to which prætorian possession is referred, should be considered in order to ascertain whether there is any patron or not; so that, if there is one, his children cannot demand prætorian possession under the First Section of the Edict. 2If an emancipated son should leave a grandson under the control of his grandfather, prætorian possession of half of the property of the intestate freedman ought to be given to the son, although the estate may, by operation of law, belong to the grandson; for the reason that possession of the part which was due should be granted to the son contrary to the provisions of the will of the freedman.

3 Ulpianus, On the Edict, Book XLI. Even if the right to wear a gold ring may have been obtained from the Emperor by a freedman, his patron will be admitted to prætorian possession contrary to the provisions of the will, as is stated in several rescripts; for this privilege only confers upon him the rights of a freeborn citizen, but he dies as a freedman. 1It is clear that, if he should be restored to his birthright by a judicial decision, prætorian possession of his estate contrary to the provisions of the will cannot be obtained. 2The same rule will apply where he has obtained from the Emperor unrestricted power to make a will. 3If anyone purchases a slave under the condition that he will manumit him, this will come under the above-mentioned Section of the Edict. 4When anyone receives a sum of money on condition that he will manumit his slave, he will not be entitled to prætorian possession of his estate in opposition to the terms of the will. 5In order that the patron may be able to obtain prætorian possession contrary to the provisions of the will, the estate must be entered upon, or prætorian possession of it demanded. It is, however, sufficient for one of the heirs to enter upon the estate, or to claim prætorian possession of the same. 6A patron has not the same right to the property of his freedman which the latter acquired while in the army, which he has to that otherwise acquired. 7Where a patron, after having been banished, is restored to his civil rights, he can obtain prætorian possession of the estate of his freedman contrary to the provisions of the will. The same rule must be held to apply to a freedman who has been banished and afterwards restored to his rights. 8If a son under paternal control manumits a slave who forms part of his castrense peculium, he becomes his patron by a Constitution of the Divine Hadrian, and, in the capacity of patron, he can obtain prætorian possession of the estate of the freedman in opposition to the terms of the will. 9If he to whom a freedman has been assigned should accuse the latter of a capital crime, he cannot demand prætorian possession of his estate in opposition to the terms of the will, but this does not prevent his brothers from doing so, for they must demand prætorian possession just as they would do if they were the grandsons of the other son, as the freedman who was assigned to him does not cease to be the freedman of the remaining sons. It must further be said that even if one brother should refuse to demand prætorian possession, the other to whom the freedman was not assigned can take his place, and claim prætorian possession of the estate contrary to the provisions of the will. 10A patron is entitled to prætorian possession of the estate of his freedman, contrary to the provisions of the will, whenever he is not appointed heir to that portion of said estate to which he is entitled. 11If a patron is appointed under a condition, and the condition is complied with during the lifetime of the testator, he cannot obtain prætorian possession of the estate in opposition to the terms of the will. 12What course should then be pursued if, at the time of death, the condition was in suspense, but was fulfilled before prætorian possession was granted to the patron; that is to say, before the estate of the freedman was entered upon? Would he be called to the prætorian succession under this section of the Edict? The better opinion is that the time when the estate was entered upon should be considered; and this is our practice. 13Still, if the condition has reference to the past or the present time, the patron will not be held to have been appointed heir conditionally; for the condition has either been complied with ana he is held to have been appointed absolutely; or it has not been complied with, and he is not appointed heir. 14Where a freedman appointed his heir as follows, “If my son should die during my lifetime, let my patron be my heir,” the will is not considered to have been improperly drawn; for if the son should die, as the condition has been fulfilled, the patron can obtain prætorian possession of the estate. 15If the portion of the estate to which he is entitled is bequeathed to the patron, enough has been done for him, even if he should not have been appointed heir. 16Where, however, he was appointed to a smaller share than he was entitled to, and the remainder has been made up to him, either by legacies or trusts, he is held to have been satisfied. 17The share to which the patron is entitled by law can also be made up to him by donations mortis causa, for these take the place of legacies. 18The same rule will apply where a freedman did not make a donation to his patron mortis causa, but gave him property in consideration of the amount of the estate to which he was entitled; for then it will either be held to have been given mortis causa, or what the patron has received will exclude him from obtaining prætorian possession of the estate contrary to the provisions of the will. 19Where anything is given to a patron for the purpose of complying with a condition, it should be included in the legal share of the latter, if it was derived from the estate of the freedman. 20We grant the patron his legal share of the property which the freedman had at the time of his death, for we take into consideration the time when he died. If, however, he diminished his property by some fraudulent act, the Prætor will decide that the patron is also entitled to it, just as if it belonged to the estate.

4 Paulus, On the Edict, Book XLII. Where a slave has detected the murderer of his master, the Prætor should decide that he is free, and it is established that he will be the freedman of no one, having obtained his liberty under a decree of the Senate. 1Where a freedman, after having been taken captive, dies in the hands of the enemy, although the name of freedman does not apply to him, still, in accordance with the Cornelian Law which confirms his will just as if he had died at home, possession of his estate should be granted to his patron. 2If a patron should be banished, his son will have a right to prætorian possession of the estate of his freedman, and his father, as patron, will be no impediment to this, as he is considered to be dead. The case, however, is different where a patron is in the hands of the enemy, for he is an impediment to his children, on account of the hope of his return, and the law of postliminium. 3If a stranger has been appointed heir by a freedman, and is charged to transfer the estate to his son, the patron should be excluded; as the estate is delivered under the Trebellian Decree of the Senate, and the son takes the place of the heir.

5 Gaius, On the Provincial Edict, Book XV. Where a freedman has a patron, and the latter has children, and he appoints his patron heir to the share of his estate to which the latter is entitled, he should substitute his children for the same share, in order that, although the patron may die during the lifetime of the freedman, he can be considered to have satisfied the claims of his children. 1If a freedman has the emancipated son of his patron, and grandsons descended from another son, who is under the control of the grandfather, the freedman must only leave what he owes to the son, and not to the grandsons; for, in this instance, it makes no difference whether they are equally called to the succession of their grandfather, or not.

6 Ulpianus, On the Edict, Book XLIII. If the children of a freedman should be appointed heirs to only a small portion of his estate, the patron cannot demand prætorian possession contrary to the provisions of the will; for Marcellus, in the Ninth Book of the Digest, says that no matter to how small a share of the estate of a freedman his son may be appointed heir, the patron will be excluded. 1Where the daughter of a patron was appointed heir by the freedman of her father, and the will by which she was appointed was alleged to be forged, and an appeal was taken, and before it was heard the daughter died, the Divine Marcus came to the relief of the heirs, and decided that they should have whatever the daughter would have been entitled to if she had lived. 2If the son of the freedman, who had been appointed his heir, should reject the estate, although he will retain the name of heir, the patron can acquire prætorian possession. 3If the son should meddle with the estate of his father, or the heir who had entered upon it should obtain complete restitution of his rights, after having rejected the estate, the patron can be admitted to the succession. 4If the patron and his children should enter upon the estate of the freedman in accordance with the will of the deceased, or should prefer to claim a legacy or a trust bequeathed to them, they shall not be permitted to obtain prætorian possession in opposition to the provisions of the will.

7 Gaius, On the Provincial Edict, Book XV. For it would be absurd to allow the same person to partly approve the will of the deceased, and partly reject it.

8 Ulpianus, On the Edict, Book XLIII. If, however, the demand of the patron has had no effect, I think that there is no reason why relief should not be granted him. And, indeed, if he has entered upon the estate, under the impression that he had been appointed heir to the share to which he was legally entitled, and it should afterwards appear that he has obtained a smaller share than he had a right to expect, it is perfectly just that relief should be granted him. If, however, he notified the heir in the presence of witnesses to pay him his legacy, and should afterwards change his mind, I think that he is entitled to relief. 1Where a patron has received the legacy bequeathed to him, and afterwards has been evicted, he will have a right to demand his lawful share of the estate, because he did not receive what he expected to have. If, however, he is not deprived of the entire legacy by eviction, but obtains less than he had a right to expect, he will be entitled to relief. 2If a patron has received a legacy bequeathed to his slave, or to his son, he will be excluded from prætorian possession of the estate contrary to the provisions of the will, just as if he had accepted a legacy bequeathed to himself. 3And if he has received a donation mortis causa, it must be held that he is excluded from prætorian possession in opposition to the provisions of the will, just as if he had received it after the death of the freedman. Moreover, if the freedman, during his lifetime, had given it to him, and he had accepted it, he will not, for this reason, be excluded from prætorian possession in opposition to the provisions of the will, because it may be said that he expected that some additional favor would be shown to him by the will of the freedman, and he should be permitted to reject what he has received, or the share to which he was entitled should be given to him pro rata. 4Therefore, it is said that if, for the purpose of complying with a condition, something has been given to the patron after the death of the freedman, the former will be excluded from prætorian possession of the estate in opposition to the terms of the will, as having, so to speak, accepted it.

9 Paulus, On the Edict, Book XLII. Where anyone has wrongfully attempted to again reduce to slavery a freedman belonging to his father, he cannot either himself, or in the name of his children, obtain prætorian possession of his estate.

10 Ulpianus, On the Edict, Book XLIV. If satisfaction has not been given to one of two patrons, and more than his share of the estate of a freedman has been left to the other, an action will be granted to the one who did not receive that to which he was entitled, in such a way that his portion will be made up out of what was bequeathed to a foreign heir, and left to the other patron in excess of his own share. The same rule shall also be observed where there are several patrons. 1Julianus says that he who has been disinherited by his grandfather is also barred from acquiring the estates of his freedmen, but will not be excluded from acquiring those of the freedmen belonging to his father. If, however, he has been disinherited by his father, but not by his grandfather, he should be excluded not only from the estates of the freedmen of his father, but also from those of his grandfather as well; because it is through his father that he acquires rights over the freedmen of his grandfather. If, however, his father has been disinherited by his grandfather, and he himself has not, a grandson can demand prætorian possession of the estates of the freedmen of his grandfather, in opposition to the provisions of the will. He also says that if my father should disinherit me, and my grandfather should disinherit my father, and my grandfather should die first, I will be excluded from prætorian possession of the estates of the freedmen of both. But if my father should die first, and my grandfather afterwards, it must be said that the disinheritance of my father will not prejudice me, so far as the estates of the freedmen of my grandfather are concerned.

11 Julianus, Digest, Book XXVI. If, however, my father was disinherited by his father, and I have been disinherited neither by my father nor my grandfather, and my grandfather should die, I will be entitled to the rights over the freedmen of both my grandfather and my father. But I cannot, during the lifetime of my father and as long as I remain under his control, demand prætorian possession of the estates of the freedmen of my grandfather; but if I have been emancipated, I will not be prevented from doing so.

12 Ulpianus, On the Edict, Book XLIV. If a patron, having made his will in accordance with military law, should disinherit his son by passing him over in silence in his will, the disinheritance will prejudice him, for he will be actually disinherited. 1If anyone should assign a freedman to his son whom he has disinherited, the son can obtain prætorian possession of the estate of the freedman. 2If a son should be disinherited by his father without any evil intention, but for some other reason, the disinheritance will not prejudice him; as, for instance, suppose that he has been disinherited on account of insanity, or because he was under the age of puberty, and the appointed heir was charged to transfer the estate to him. 3When anyone is disinherited, and it is judicially decided that this was not the case, even should the judgment be wrongful, he will not be excluded; for matters which are decided by a court must stand. 4If the son of a patron is disinherited, and succeeds in obtaining a judicial decision that the will is inofficious, but is defeated with reference to a part of his claim, let us see whether the disinheritance will prejudice his rights. I think that it will prejudice them, because the instrument by which he was disinherited is valid. 5Disinheritance causes no injury to children if the will is such that the estate cannot be entered upon, or prætorian possession obtained by it; for it is absurd that a will should be valid only so far as the disinheritance is concerned, while it is void in other respects. 6Where the son of a patron is appointed heir in the first degree, and is disinherited in the second, the disinheritance does not prejudice him, as he has been, or can be the heir under the will of his father; for his father could not be believed to have thought that his son was unworthy to obtain the property of his freedmen, when he himself had called him to his own succession in the first degree. And it is not credible that a son who has been disinherited in the first degree, and appointed as a substitute for the heir, would be excluded from the estate of a freedman. Therefore, a son appointed heir in the first or second degrees, or, indeed, in any other degree, even though he may have been disinherited by the same will, is not excluded from obtaining the estate of his freedman. 7If an emancipated son refuses to accept the estate, or a son who is under paternal control refuses to keep it, neither of them will be entitled to possession of the estate of the freedman.

13 Julianus, Digest, Book XXVI. The disinherited son of a patron, even though his own son has been appointed heir by the latter, cannot obtain prætorian possession of the estates of his father’s freedmen in opposition to the terms of the will; for although he may be the necessary heir of his father, he is not admitted to the succession by himself, but through another. And it has been positively decided that if an emancipated son is disinherited and his slave is appointed the heir, and he orders his slave to enter upon the estate, and in this way he becomes the heir of his father, he will not be entitled to prætorian possession of the estates of the freedmen of his father, contrary to the provisions of the will.

14 Ulpianus, On the Edict, Book XLV. A patron who is over the age of twenty-five years, and accuses a freedman of a capital crime, or makes application to have him reduced to slavery, shall be excluded from possession contrary to the provisions of the will. 1It must be said, however, if he was a minor when he made the accusation, that he is not excluded, whether he himself, or his guardian or curator brought the accusation. 2If, however, he should bring the accusation while he was a minor, and after he became of age should obtain judgment, he must be said to be entitled to indulgence, and should be pardoned, because he instituted proceedings while he was a minor. Nor ought we to blame him for not having abandoned the accusation, or for not demanding that it be dismissed, for if he had done one of these things, he would be liable to the penalty of the Turpillian Decree of the Senate, and he could not have easily obtained the other. If, however, the case had been publicly dismissed, and the patron, having attained his majority, should repeat his demand, it must be said that he will be excluded from the succession, for, having become of age, he can without any risk abandon an accusation which has been dismissed. 3He only is considered to have brought an accusation of a capital crime who, by means of such a proceeding, seeks to have the accused party suffer the punishment of death or exile, instead of banishment, which causes the forfeiture of civil rights. 4If, however, anyone accuses his freedman of an offence, the penalty of which is not a capital one, and, nevertheless, the judge decides to increase the penalty, this will be of no disadvantage to the son of the patron; for neither the ignorance nor the severity of the judge should prejudice the son of the patron, who has brought a less serious accusation against the freedman. 5Where, however, he does not accuse him, but gives his testimony against his freedman in a capital case, or provides the accuser, I think that he should be excluded from obtaining possession of his estate contrary to the provisions of the will. 6If a freedman accuses the son of his patron of the crime of lese majeste, and the son demands that the freedman be punished for slander, I think that he should not be excluded from the succession under the terms of this Edict; and if he has been accused by him and brings a counter accusation, the same rule will apply, for the patron should be excused, if after having been attacked, he desires to revenge himself. 7If a son is compelled to avenge his father’s death and accuses his father’s freedman, who was his physician, of the crime, or accuses his slave who slept in the same room with him, or any other who was attached to the person of his father, can it be said that relief should be granted him? I think that it should be, if it was necessary for him to bring an accusation against the freedman of his father, and he was influenced by motives of affection, and the risk he ran of losing his father’s estate if he did not do so, even though the accusation should prove to be false. 8Moreover, we say that he has brought an accusation who alleges that another is guilty of crime, and causes the case to be tried until sentence is imposed. If, however, he does not proceed so far, he is not considered to have brought the accusation, and this is our present practice. But if he should desist after an appeal is taken, it has been very equitably decided that he has not prosecuted the case to a conclusion. Hence, if the freedman dies while the appeal is pending, the son of the patron shall be permitted to obtain possession of his estate, because the freedman has been removed by death from the consequences of the sentence. 9If the son of a patron gives his assistance, as an advocate, to the accuser of a freedman of his father, he should not be excluded from the succession on this account, for the advocate does not make the accusation. 10Where a father provides by his will that his freedman shall be accused of having prepared poison for him, or to have committed some other act of this kind to his injury, the better opinion is that his children who did not voluntarily bring the accusation ought to be excused. 11If the son of a patron should accuse the freedman of his father, and should convict him of a crime, and the said freedman should afterwards be restored to his rights, he shall not be excluded, for he prosecuted the accusation which was brought to the end.

15 Tryphonimis, Disputations, Book XVII. The same rule applies where the crime which was proved against the freedman carries with it capital punishment, but the freedman was subjected to a lower penalty; as, for instance, he was only banished, for the Prætor only takes cognizance of a patron who brings a false accusation.

16 Ulpianus, On the Edict, Book XLV. He is not considered to have demanded that a freedman be reduced to slavery, who opposes one who is already a slave, and denies that he be given his freedom; but he who demands that one who is in the enjoyment of freedom shall be reduced to slavery. 1Where anyone alleges that a slave is not entirely his, but that he has a share in him, or the usufruct of him, or some other right to which he would not be entitled unless the man was a slave, shall he be excluded from the succession of the freedman, as demanding that he be returned to slavery? This is the better opinion. 2If a patron should demand that his freedman should be reduced to slavery, and should succeed, and the truth having been afterwards ascertained, he suffers him to remain at liberty, this should not prejudice him, especially if he had good cause for his mistake. 3He is not considered to have made a demand to reduce the freedman to slavery who abandons the case before issue has been joined. If, however, he does so after issue has been joined, it must be said that this will not prejudice him, because he did not continue until a decision had been rendered. 4If the son of a patron, who has either been disinherited, or has demanded that a freedman of his father should be returned to slavery, or has accused the freedman of a capital crime, it will not prejudice his children, if they are not under his control. This the Divine Brothers stated in a Rescript to the Quintilians. 5If anyone should obtain prætorian possession of the estate of his freedman contrary to the provisions of his will, not only if he was appointed heir by the said freedman, but also if he had been substituted for his minor son, he will be excluded from all the benefits under the will of the said freedman. For Julianus says that if a patron, after making a demand for the prætorian possession of the estate of his freedman, should enter upon the estate of the minor son of said freedman, actions must be denied him. 6If, however, anything should be left to the patron by a codicil or a donation mortis causa, in like manner participation in these benefits shall be refused him. 7Sometimes it is evident that the right to claim a legacy should be granted to the patron, after he has demanded possession of the estate of his freedman, if he will receive no benefit therefrom; for the reason that he has been asked to transfer the legacy to another. 8Again, the Prætor says that he will not only refuse an action to the patron to recover what is specifically given to him, but also to recover anything which you may suggest might come into his hands through others; as, for instance, through those who are subjected to his authority, because he can retain such property, and will not be obliged to surrender it. 9We should grant the right to demand a bequest to a patron if the freedman had bequeathed a preferred legacy of the price of a slave to his patron, on condition that the latter should liberate the said slave. 10If the substitute for a patron should be asked by him to deliver possession of the estate of a freedman contrary to the provisions of the will, an action to recover the share of him to whose patron possession was given shall not be granted. 11Where a patron has been substituted for the heir, and dies during the lifetime of the testator, it is settled that if the son of the patron demands prætorian possession of the estate of the freedman contrary to the provisions of the will he can not only acquire the share of the substitute, but can deprive all the heirs of a certain portion of their inheritance, in order to make up the amount to which he is legally entitled.

17 The Same, On the Edict, Book XLVII. When a freedman dies without leaving any children, his patron and his patroness can, at once, demand prætorian possession of his estate, and they can even do so together. Any persons who are next of kin to the patron and patroness can also be admitted to the succession together.

18 Paulus, On the Edict, Book XLIII. The illegitimate children of a patroness can also obtain prætorian possession of the estate of a freedman of their mother, but children cannot be admitted to the succession of the estate of a freedman of their father unless they are legitimate.

19 Ulpianus, Disputations, Book IV. Where a patron is appointed heir to a smaller share of an estate than he is legally entitled to, and alleges that the will is forged, and loses his case, there is no doubt that prætorian possession of the estate contrary to the provisions of the will should not be granted him, for the reason that he lost the estate by his own act when he rashly declared that the will was forged. 1If he has been appointed heir to the share of the estate to which he was entitled, whether he accepts it or not, he will be excluded from prætorian possession of the same contrary to the provisions of the will; for, as he received the share to which he was entitled, he cannot demand prætorian possession contrary to the provisions of the will.

20 Julianus, Digest, Book XXV. A freedman appointed his patron his heir, under the condition of his being sworn (which condition the Prætor is accustomed to remit), and I do not think that there is any doubt that the patron will be excluded from prætorian possession of the estate, as it is true that he has been appointed heir. 1Where a legacy was left to Titius, and he was charged to transfer it to his patron, an action to recover the legacy should be denied to Titius, if the amount to which the patron is legally entitled has been paid to him by the appointed heir. 2A freedman appointed his patron and a stranger joint heirs to half of his estate. The fourth to which the patron was appointed heir should, all of it, be credited to him on his legal share, and the remainder which is due on said share should be deducted pro rata from the shares of all the other heirs. 3The same rule should be observed with reference to a legacy bequeathed to the patron and Titius conjointly; so that a part of the legacy may be credited upon the share due to the patron, and as much should be deducted from the share of Titius, proportionally, as that which ought to be deducted from the portion of the heir. 4Where a freedman appoints his emancipated son his heir under a certain condition, and the condition having failed, his substitute enters upon the estate, I ask whether the Prætor should give the patron possession of the share to which he was entitled against the substitute, or whether he should come to the relief of the emancipated son with reference to the entire estate. The answer was that, as the father had appointed his son his heir in the first degree conditionally, and the condition under which he was appointed had failed to be fulfilled, the estate will belong to the second degree; or if the son should die while the condition is still pending, the patron will acquire possession of the estate to the amount to which he was entitled by law, as against the substitute. The same rule will apply where the son does not obtain possession of the estate through having been excluded by lapse of time, or because of his rejecting it. Therefore, if the condition should fail to be fulfilled, the estate will belong to the son, and the Prætor will, in preference, protect the emancipated son against the substitute. Moreover, I think whenever a son is appointed an heir conditionally, that, in some instances, disinheritance is necessary with reference to the substitution, and in others it is superfluous. For if the condition should be of such a nature that it is in the power of the son to comply with it; for instance, if it was that he should make a will, I hold that if the condition was not fulfilled, the son must give way to the substitute. If, however, the condition was such that it was not in the power of the son to comply with it, for instance, if it was that Titius should become Consul, then the substitute ought not to be admitted to the succession, unless the son had been specifically disinherited. 5If a freedman should appoint his emancipated son his heir, and charge him to deliver the entire estate to Sempronius, and the son should allege that he suspected the estate of being insolvent, but should enter upon the same by order of the Prætor and transfer it to Sempronius, possession of the share of the estate to which he was entitled will, very properly, be granted to the patron, just as if not the son, but he to whom the estate was transferred, had been the heir of the freedman. 6Moreover, if the son should reject the inheritance of his father’s freedman, and his co-heir should assume all the burdens of the estate, prætorian possession must be granted to the patron; for, in either event, the share of the latter is not taken from that of the son, but from that of the stranger.

21 The Same, Digest, Book XXVI. Where one of three patrons fails to demand prætorian possession of the estate, the other two will be entitled to equal shares of the same.

22 Marcianus, Institutes, Book I. If a son under paternal control, who is a soldier, manumits his slave, he makes him the freedman of his father, according to the opinion of Julianus, which he adopts in the Twenty-seventh Book of the Digest; but he says that as long as his son is living, he will have the preference over his father with reference to the estate of the freedman. The Divine Hadrian stated in a Rescript addressed to Flavius Aper, that, in this instance, he made him his own freedman and not that of his father.

23 Julianus, Digest, Book XXVII. If a freedman should pass over his patron in his will and appoint a foreign heir, and his patron should give himself in adoption before demanding prætorian possession in opposition to the terms of the will, and the appointed heir should reject the estate, the patron can, then, as heir at law, demand possession of the entire estate of the freedman. 1If a freedman should die intestate, and his patron should have a son and two grandsons by another son, the grandsons shall not be admitted to the succession of the freedman, as long as there is a son, because it is evident that the person who is in the nearest degree is the one who is called to the succession of the freedman. 2Moreover, if the freedman had two patrons, one of whom left a son and the other left two, I stated that the estate should be equally divided between them.

24 The Same, Digest, Book LXV. Where two patrons had a freedman in common, and one of them required him to swear that he would not marry, and the other to whom this fault could not be imputed either died during the lifetime of the freedman, or survived him, he alone can acquire the shares of the estate to which both were legally entitled.

25 The Same, On Urseius Ferox, Book I. Whenever prætorian possession of the share of the estate due to him can be granted to a patron, an exception may be granted to the debtors against the heir who demands payment, if the patron should not, in opposition to the terms of the will, demand prætorian possession of the share to which he is legally entitled.

26 Africanus, Questions, Book II. A freedman devised land worth forty sesterces out of his estate which was valued at eighty, and after having appointed a stranger his heir, died on the day when the devise became due. I gave it as my opinion that the patron could demand the share of the estate to which he was entitled by law; for the deceased, at the time of his death, appeared to have had an estate of more than a hundred sesterces, as it could have been sold for more than that, including the amount of the legacy. It would make no difference whether the appointed heir rejected the legacy left by the freedman, or not; for if a question should arise under the Falcidian Law, a bequest of this kind, even though it were rejected, would be charged by the legatees to the quarter of the estate due to the heir.

27 The Same, Questions, Book IV. If a grandson should be disinherited by his grandfather, the patron, during the lifetime of his son, the disinheritance will prejudice him, so far as the estate of the freedman of his grandfather is concerned.

28 Florentines, Institutes, Book X. If a freedman has incurred the penalty of death, the claim of his patron to that share of his estate to which he is entitled will not be extinguished, if he who had been sentenced to be executed should die a natural death; but it has been decided that the remainder of the estate which, under the Civil Law, would not belong to the person who emancipated him, may be demanded by the Treasury. 1The same rule should be observed with reference to the estates of those who have killed themselves, or have taken to flight, through fear of being accused, as has been established with respect to the property of those who have been condemned to death.

29 Marcianus, Institutes, Book IX. Where a slave is manumitted under the terms of a trust, he becomes the freedman of the person who manumits him, and the latter can, as his patron, claim his estate, and can obtain prætorian possession of it contrary to the provisions of the will, as well as acquire it ab intestato; but no services can be imposed upon him, nor, if they have been imposed, can they be exacted. 1If, however, a father, at his death, should bequeath a slave to his son, and request the latter to manumit him, with the understanding that he shall have the full right of patronage over him, it may be maintained that he can afterwards legally impose services upon the said slave.

30 Gaius, On the Edict of the Prætor; Title, Concerning the Cause of Freedom, Book II. If a son demands that a freedman of his father shall be reduced to slavery, in order to preserve for himself a case of eviction against a third party, he will not lose the benefit of prætorian possession of the estate.

31 Marcellus, Digest, Book IX. Where a freedman devised to his patron a tract of land which he himself had purchased from him but which belonged to another, and the patron asserted that the legacy belonged to him, he cannot obtain prætorian possession of the estate contrary to the provisions of the will, even though the devise was of no benefit to him; because the freedman bequeathed to him property belonging to someone else, as well as for the reason that the patron himself had sold the land to his freedman.

32 The Same, Digest, Book X. If my freedman, after having been returned to slavery, is afterwards liberated by another, he will become the freedman of the latter, and the person who manumitted him will have preference over me in obtaining prætorian possession of the estate of the freedman in opposition to the terms of the will.

33 Modestinus, On Manumissions. If a patron does not support the freedman, the Lex Ælia Sentia deprives him of all the services to which he was entitled in consideration of the grant of freedom; and this includes not only himself but also those who may have any interest in the property, and it also deprives him and his children of the estate, unless the patron was appointed the heir, and it also deprives him of prætorian possession of the estate, except where this is acquired in accordance with the provisions of the will.

34 Javolenus, On Cassius, Book III. When a freedman, who has two patrons, passes one of them over in his will, and appoints a stranger heir to half of his estate, the patron who is appointed heir can claim the share to which he is entitled without deduction; and out of the other share which was left over and above what was due to him, and out of the remaining half bequeathed to the stranger, an amount shall be taken pro rata to make up the share to which the other patron is entitled by law.

35 The Same, Epistles, Book III. Seius, having appointed his freedman his heir, charged him with a legacy to Mævius of the usufruct of a tract of land. The freedman died, leaving Mævius his heir. I ask if the son of Seius should demand prætorian possession of the estate of the freedman against Mævius, whether the share of the land which was due to him, after deducting the usufruct, shall be transferred to him; or whether all of it ought to be transferred, because he had obtained possession of the property which belonged to the freedman at the time of his death. The answer was, I think that the usufruct should be restored to its original condition; therefore it would be best to demand an arbiter, in order that, by his decision, the usufruct may be transferred in its entirety.

36 The Same, Epistles, Book VIII. A freedman who died insolvent, having passed oyer his patron, left his estate to foreign heirs. I ask whether the patron can demand prætorian possession contrary to the provisions of the will. The answer was that, as the estate had been entered upon by the appointed heirs, the patron can demand prætorian possession, because an estate is considered to be solvent whenever an heir is found to accept it: And, indeed, it is absurd that the right of the patron to demand prætorian possession of an estate should be based on the estimate of others, and not on the wishes of the patron himself; and that the little that the latter can claim in a case of this kind should be taken from him. For many reasons may arise for which it might be expedient for the patron to demand prætorian possession, even if the amount of the indebtedness which the freedman left behind him exceeds the assets of the estate; for instance, if certain lands are included in the estate of the freedman in which are situated the burial places of the ancestors of the patron, and the latter takes advantage of his rights to obtain prætorian possession, in order that the said burial places may be obtained by him as his share, he considering this right to be of great importance to him; or, for example, where a slave whom the patron values, not from the price which he might bring but for the affection which he entertains for him, forms part of the estate. Therefore, the patron should be none the less entitled to claim possession of the estate, who forms an estimate of the value of the property of the freedman, rather by his own opinion, than by the computation of others; for an estate should be considered to be solvent both because an heir is found for it, and for the reason that prætorian possession of the same is demanded.

37 Ulpianus, On the Lex Julia et Papia, Book XI. Julianus says that if a patron should sell to his freedman the obligations which had been imposed upon him in consideration of liberating him from slavery, his son can be barred from obtaining prætorian possession of the estate of the freedman, for the reason that he does not obtain possession of the said estate in opposition to the terms of the will, as his father sold to him the gift, present, or services for which he obtained his freedom. He says that it is evident if the son of the patron should sell to him the services which were imposed upon the latter in consideration of giving him his liberty, that the brother of the patron can, nevertheless, obtain possession of the freedman’s estate contrary to the provisions of the will, because the son, by selling to the latter the services which were the consideration of his freedom, did not bar his uncle from asserting the claim. 1If the freedman should appoint an heir, and the latter should enter upon the estate before having put the slaves of the deceased to torture, Julianus says that the patron will not be permitted to obtain possession of the estate in opposition to the terms of the will, for he also should avenge the death of the freedman. This rule, likewise, is applicable to the patroness.

38 Terentius Clemens, On the Lex Julia et Papia, Book IX. When a son has been disinherited by his father, the question arises whether the grandsons by said son are excluded from prætorian possession of the estate of a freedman of their grandfather. This point must be disposed of by deciding that as long as the son is living, and his children remain under his control, they cannot be admitted to prætorian possession of the freedman’s estate to prevent those who are excluded from obtaining possession in their own names, or from acquiring it through the intervention of others. If, however, they have been emancipated by their father, or have become their own masters in any other way, they can obtain prætorian possession of the estate of the freedman without encountering any obstacle. 1If the son of the freedman rejects the estate of his father, it will be to the advantage of the patron.

39 The Same, On the Lex Julia et Papia, Book X. If the daughter of the patron belongs to an adoptive family, she can obtain prætorian possession of the estate of a freedman of her father.

40 The Same, On the Lex Julia et Papia, Book XII. If a father makes such a provision for his disinherited son that his right over his freedman remains unimpaired, the disinheritance will not prejudice his rights in this respect.

41 Papinianus, Questions, Book XII. Where a freedman has satisfied the claim of his patron so far as the share of his estate to which he is legally entitled is concerned, but at the same time, being unwilling to concede it to him, attempts to deprive him of certain property, the question arises, how should the matter be decided? For what if, having appointed the patron his heir to the share to which he is legally entitled, he should bequeath him ten aurei, in addition, and charge him to manumit his own slave who is worth ten aurei, or less? It would be unjust for the patron to decide to accept the legacy, and not free his slave, but, having accepted his legal share, he cannot be compelled to accept the legacy and liberate the slave. This rule is adopted to prevent him from being forced to manumit a slave who is unworthy of it. But what course must be pursued, if, having appointed his patron his sole heir, the freedman should make the same request of him? If the patron has a substitute, a decision may be rendered in such a way that the patron, having received the share to which he was entitled, the remainder will pass to the substitute; so that if the slave can be purchased, he may obtain his freedom. Where, however, no substitution has been made, the Prætor, who has jurisdiction of the trust, may compel the patron who accepts the estate of the freedman to grant freedom to his slave.

42 The Same, Questions, Book XIII. A son, who was his father’s heir, arrogated his disinherited brother and died, leaving the latter his heir. In this case the disinherited son will not have the right to demand possession of the estate of the freedman of his natural father. For although an adoption of this kind does not affect the rights of a son who is not disinherited, it will prejudice those of one that is; as the penalty imposed both by the Civil Law and the Prætorian Edict is not rendered inoperative by the act of adoption. Paulus says that anyone who obtains an estate by a different title than the one which he lost is not prejudiced by the latter, but is benefited by the one which he has acquired. Hence it has been settled by the Edict, that a patron, who is at the same time the son of a patroness, will not be excluded from, obtaining prætorian possession of the estate of a freedman, where he has committed some offence as patron. 1Papinianus: A freedman appointed Titius heir to his castrensian property, and another heir to his other property. Titius entered upon the estate. The better opinion seemed to us to be that the patron could not yet demand prætorian possession of the estate contrary to the provisions of the will. However, the following question arose, namely, if the person to whom the remainder of the estate had been left should refuse to accept it, would it accrue to Titius, just as if they had accepted two different shares of the same estate? It seems to me more equitable that the remainder of the estate should be considered to be without legal heirs. Therefore, Titius could not require the patron to contribute, as the former had lost nothing, nor had anything been taken from the remaining assets which had not yet been disposed of by the will. 2Where the minor son of a freedman, who is under the age of puberty and is alleged to be supposititious, obtains prætorian possession of the estate of his father, under the First Section of the Edict, the question arises whether the patron also can obtain prætorian possession. There is no doubt that those who are in the second degree cannot, under the Edict, be admitted to the succession, so long as there are others entitled to it under the First Section; for, as long as another possession has precedence, those that follow cannot be permitted to take place. There is no doubt that if a decision should be rendered against the child who is alleged to be supposititious, it is understood that possession will not be granted him; and the same rule will apply with reference to the patron, while the controversy is pending. It is clear that examination of the controversy should be deferred until the age of puberty, so far as the patron also is concerned. 3Where the will of a freedman is alleged to be forged by persons living in a province, and an appeal has been taken from the judgment, and, in the meantime, the daughter of the patron, whom the freedman appointed his heir, dies, the Divine Marcus decided that the share of the estate to which the daughter of the patron would have been entitled if she had lived should be preserved for her son.

43 The Same, Questions, Book XIV. Where a patron, having been appointed a substitute for Titius (who himself had been appointed heir to half of the estate), while the latter was deliberating whether he would accept, or not, obtained prætorian possession of the estate of a freedman contrary to the testamentary provisions, and Titius should afterwards accept the estate, Julianus thinks that he has not been deprived of anything, any more than if he had been appointed under a condition. Therefore, as long as Titius deliberates, it will be uncertain whether half the estate will come into possession of the patron under the substitution, or, whether, if Titius should accept, the heirs will be compelled to contribute from their shares the amount legally due to the patron.

44 Paulus, Questions, Book V. If you appoint a patron heir to the share to which he is entitled by law, and charge him to transfer absolutely a tract of land to someone, and bequeath him a legacy of the same value as said land, under a condition, the trust becomes conditional. There is something here, however, which may cause annoyance, for the patron will be burdened with the execution of the trust. It must be said in this instance that security should be given by the trustee who is charged with the legacy to the patron, so that the latter may not, under any circumstances, suffer a diminution of his rights. 1A patron having been appointed an heir, and a slave having been bequeathed to him in order to make up the share to which he was entitled by law, cannot demand prætorian possession contrary to the terms of the will, even though the slave should die before the will is opened. 2If a freedman, either by appointing him his heir, or by a legacy, leaves his patron the share of his estate to which he is legally entitled at the time of his death, and, after the decease of the freedman, another slave having returned from captivity increases the value of the estate; the patron cannot, on this account, complain that he had a smaller interest in the slave than he would have had if he had been appointed heir to the share in him to which he was entitled by law. The same rule applies with reference to alluvium, provided the patron is satisfied out of the estate which the freedman left at the time of his death. This is also the case when a portion of a legacy or of an estate is left to a freedman at the same time with others, and the latter refuse to accept, and their share accrues to the estate of the freedman.

45 The Same, Questions, Book IX. Where a patron is appointed heir to the sixth of the estate of his freedman, and the slave of the latter is appointed heir to the remainder, the trust with which heirs are charged in favor of the patron will not apply to the share of the slave. If, however, the slave should be appointed sole heir, I do not think that the share due to the patron should contribute to the legacies bequeathed under the trust.

46 The Same, Opinions, Book III. Paulus gave it as his opinion that a patron who was deceived, and who accepted the forged will of his freedman as genuine, is not prevented from obtaining prætorian possession of his estate in opposition to the terms of the will.

47 The Same, Opinions, Book XI. Paulus also held that the disinheritance of a grandson, which was not made by way of reproach, but for some other reason, did not injure him to the extent of preventing him from demanding prætorian possession of the estate of the freedman of his grandfather in opposition to the terms of the will. 1I ask if Titia, the daughter of a patron, should allege that her father Titius had written a letter to her before his death, in which he said that he had been badly treated by his freedman, and if relying upon this letter, she accused the freedman after the death of her father, whether this excuse would be of any advantage to her. Paulus answered that she who accused the freedman in accordance with the wishes of the father should not be excluded from prætorian possession of his estate contrary to the provisions of the will, since she relied, not only on her own judgment, but also on that of another. 2The son of a patron sent the following letter to his freedman: “Sempronius to his freedman Zoilus, Greeting. I grant you full power to make a will because you deserve it on account of the fidelity which you have always displayed towards me.” I ask whether the freedman should not leave something to the son of his patron. Paulus answered that the freedman in question does not appear to have obtained the full right to make a will by the above-mentioned letter. 3Paulus gave it as his opinion that a grandson had a right to demand prætorian possession of the estate of a freedman of his grandfather, contrary to the provisions of the will, even if he had been conceived after the death of his grandfather, who survived the freedman; and that he could be admitted to the succession as the heir at law. For the opinion of Julianus only has reference to a succession on the ground of intestacy, and the demand for prætorian possession of the estate of the grandfather. 4Paulus also gave it as his opinion that although sons who have been passed over by the will of a father who was serving in the army are considered as disinherited, still, the silence of their father should not prejudice their rights in such a way that they can be excluded from the estates of the freedman of their grandfather. The same opinion was given with reference to the estates of the freedmen of the father.

48 Scævola, Opinions, Book II. I ask what should be decided in the case of one who accused his freedman of the crime of burglary. The answer was that if the offence of which he was accused was such that, if it were proved, the freedman would be sentenced to the mines, the patron should be denied prætorian possession of the estate.

49 Paulus, Opinions, Book III. Where a freedman is fraudulently arrogated, his patron does not lose his right to his estate.

50 Tryphoninus, Disputations, Book XVII. It makes no difference whether the patron, having been appointed heir, accepts a smaller share of the estate of his freedman than the one he is entitled to by law, or whether he orders his own slave, who was appointed heir, to enter upon the estate, and he retains the same, as he will, in either instance, be excluded from prætorian possession of the estate of his freedman in opposition to the terms of the will. 1If, however, he should sell the slave before ordering him to enter upon the estate of the freedman, or manumit him, so that the new freedman himself or the purchaser will become the heir, the patron is not prohibited by the terms of the Edict from accepting prætorian possession of the estate of the freedman contrary to the provisions of the will. 2But ought the Prætor to refuse him the action to obtain possession, because he attempted to evade the Edict for the purpose of acquiring prætorian possession contrary to the provisions of the will either by receiving a larger price from the purchaser, or by making a tacit agreement with the slave to gain an undue advantage from his appointment as heir to the estate? The suspicion is still greater where the patron himself acquires the estate of the freedman through the acceptance of his son, who was appointed heir, even though he was emancipated, as everything which we have we wish to go to our children. 3If, however, while the will remains unopened, and the patron is still ignorant of the intentions of his freedman, he commits any of the above-mentioned acts, having reference to the heir who was appointed while under his control, and there is no suspicion of fraud, he can avail himself of his right to obtain prætorian possession of the estate in opposition to the terms of the will. 4Where a patron, who is appointed by his freedman heir to the share of his estate to which he is legally entitled, and is charged to transfer the estate to another, alleges that he considers it to be insolvent, and, having been compelled to accept it, although he could retain the share to which he was entitled, transfers the same, he cannot obtain prætorian possession contrary to the testamentary provisions, both because he accepted the will of the freedman, and despised, and, as it were, rejected his right to the possession of his legal share of the estate. 5The case of the son of a patron, whom a freedman has arrogated and appointed heir to a smaller share of his estate than that to which he was entitled, is very different from this, where there is no one else belonging to the family of the patron. For, although he is, by operation of law, the proper heir of the freedman, if he did not interfere with the estate of the latter as belonging to his father, but abstained from doing so in order to retain his right as patron, the son will, nevertheless, be permitted to obtain prætorian possession of the estate contrary to the testamentary provisions. 6If a freedman should leave to his patron, who owed him a certain sum of money, a release from liability, and he should avail himself of an exception on the ground of bad faith against an heir demanding payment of the debt, or he is released on account of the legacy, it must be said that he cannot obtain prætorian possession of the estate in opposition to the provisions of the will.

51 Labeo, Epitomes of Probabilities, By Paulus. If you have accused the freedman of your father of a capital crime, and your father has manumitted him, prætorian possession of the estate of the freedman cannot be granted to you under the Edict of the Prætor. Paulus: The contrary rule will apply if you should bring such an accusation against a slave who afterwards becomes the property of your father, and the latter subsequently manumits him.