De inofficioso testamento
(Concerning inofficious testaments.)
1 Ulpianus libro quarto decimo ad edictum. Sciendum est frequentes esse inofficiosi querellas: omnibus enim tam parentibus quam liberis de inofficioso licet disputare. cognati enim proprii qui sunt ultra fratrem melius facerent, si se sumptibus inanibus non vexarent, cum optinere spem non haberent.
1 Ulpianus, On the Edict, Book IV. It must be borne in mind that complaints are frequently made with reference to inofficious testaments, as it is lawful for all persons, whether they be parents or children, to attack an inofficious testament. Those relatives who are beyond the degree of brothers will do better, however, not to trouble themselves by incurring useless expense, since they have no hope of success.
2 Marcianus libro quarto institutionum. Hoc colore inofficioso testamento agitur, quasi non sanae mentis fuerunt, ut testamentum ordinarent. et hoc dicitur non quasi vere furiosus vel demens testatus sit, sed recte quidem fecit testamentum, sed non ex officio pietatis: nam si vere furiosus esset vel demens, nullum est testamentum.
2 Marcianus, Institutes, Book IV. Proceedings are instituted in the case of an inofficious testament on the ground that the testator was not of sound mind when he made his will. It is not understood by this that he was actually insane, or demented, when he executed his will, but that he made it according to law, yet not in compliance with the dictates of paternal or filial affection; for if he were actually insane or demented, his will would be void.
3 Marcellus libro tertio digestorum. Inofficiosum testamentum dicere hoc est allegare, quare exheredari vel praeteriri non debuerit: quod plerumque accidit, cum falso parentes instimulati liberos suos vel exheredant vel praetereunt.
3 Marcellus, Digest, Book III. To say that a will is inofficious means to allege that the party should not have been disinherited or passed over; because it generally happens that where parents are improperly influenced to disinherit or pass over their children, this is due to false representations.
4 Gaius libro singulari ad legem Glitiam. Non est enim consentiendum parentibus, qui iniuriam adversus liberos suos testamento inducunt: quod plerumque faciunt, maligne circa sanguinem suum inferentes iudicium, novercalibus delenimentis instigationibusve corrupti.
4 Gaius, On the Lex Glitia. Parents should not be allowed to wrong their children by their wills, since for the most part they do so because they are maliciously prejudiced against their own blood by the flattery and instigation of stepmothers.
5 Marcellus libro tertio digestorum. Nam et his, qui non ex masculis descendunt, facultas est agendi, cum et de matris testamento agant et optinere adsidue soleant. huius autem verbi ‘de inofficioso’ vis illa ut dixi est docere immerentem se et ideo indigne praeteritum vel etiam exheredatione summotum: resque illo colore defenditur apud iudicem, ut videatur ille quasi non sanae mentis fuisse, cum testamentum inique ordinaret.
5 Marcellus, Digest, Book III. Those, also, who are not descended from the testator in the male line, have the right to institute proceedings, as they can do so in case of the testament of a mother; and they very frequently succeed. The force of the term “inofficious” is, (as I have already stated), to show that the party was undeservedly and therefore improperly passed over, or even excluded by disinheritance, and the allegation is made in court that the testator does not appear to have been of sound mind when he executed an unjust will.
6 Ulpianus libro quarto decimo ad edictum. Postumus inofficiosum testamentum potest dicere eorum, quibus suus heres vel legitimus potuisset fieri, si in utero fuerit mortis eorum tempore: sed et cognatorum, quia et horum ab intestato potuit bonorum possessionem accipere. quid ergo? eis imputatur, cur intestati non decesserant? sed hoc nemo apud iudicem potest impetrare: non enim interdicitur testamenti factione. hoc plane ei imputare potest, cur eum heredem non scripserit: potuit enim scriptus heres in possessionem mitti ex clausula de ventre in possessionem mittendo: item natus secundum tabulas haberet. simili modo et eum, qui post testamentum matris factum exsecto ventre extractus est, posse queri dico. 1Si quis ex his personis, quae ad successionem ab intestato non admittuntur, de inofficioso egerit (nemo enim eum repellit) et casu optinuerit, non ei prosit victoria, sed his qui habent ab intestato successionem: nam intestatum patrem familias facit. 2Si quis instituta accusatione inofficiosi decesserit, an ad heredem suum querellam transferat? Papinianus respondit, quod et quibusdam rescriptis significatur, si post adgnitam bonorum possessionem decesserit, esse successionem accusationis. et si non sit petita bonorum possessio, iam tamen coepta controversia vel praeparata, vel si cum venit ad movendam inofficiosi querellam decessit, puto ad heredem transire.
6 Ulpianus, On the Edict, Book XIV. A posthumous son can allege that a will is inofficious where the testator was one to whom he might have been a proper or lawful heir, if he was unborn at the time of the death of the former. He has also a right to attack the wills of cognates, since, in this instance, he would be able to obtain possession of the property in case of intestacy. What then? Should the testator be blamed for not dying intestate? But no one could obtain assent from a judge where such a proposition was advanced; for parties of this kind are not prohibited from making wills. This, however, he can clearly be charged with, namely: not appointing the party his heir, for an heir who has been appointed can be placed in possession in accordance with the clause by which possession can be granted to the mother of an unborn child; and if it was born, it would be entitled to possession in accordance with the provisions of the will. I hold that, in like manner, the complaint can be brought by a party who, after the will of his mother was made, was removed from her womb by the Cæsarean operation. 1Where a person has no right to succession by intestacy institutes proceedings on the ground that the will is inofficious, and no one contests his right to do so, and he happens to succeed, his success will be of no benefit to him, but will only be of advantage to those who are entitled to the succession on intestacy, for he makes the former head of the family intestate. 2Where anyone dies after having instituted proceedings on the ground of inofficiousness, does he transfer his right of complaint to his heir? Papinianus answered (and this is also stated in several rescripts) that if the party should die after he has already obtained possession of the property of the estate, the right of proceeding with the action passes to the heir; and where the possession of the property is not demanded, but the controversy has already begun or is in course of preparation, or if the party should die after having arrived for the purpose of filing a complaint on the ground of inofficiousness; I think that the right passes to his heir.
7 Paulus libro singulari de septemviralibus iudiciis. Quemadmodum praeparasse litem quis videatur, ut possit transmittere actionem, videamus. et ponamus in potestate fuisse eum, ut neque bonorum possessio ei necessaria et aditio hereditatis supervacua sit: is si comminatus tantum accusationem fuerit vel usque ad denuntiationem vel libelli dationem praecesserit, ad heredem suum accusationem transmittet: idque divus Pius de libelli datione et denuntiatione rescripsit. quid ergo si in potestate non fuerit, an ad heredem actionem transmittat? et recte videtur litem praeparasse, si ea fecerit quorum supra mentionem habuimus.
7 Paulus, On the Jurisdiction of the Septemvirs. Let us consider in what way a party may be held to have prepared his case, so that he can transmit the right of action. Let us suppose that he was under the control of the testator, so that the possession of the estate would not be necessary for him, and entrance upon the estate would be superfluous; and if he merely gave notice that he intends to make such a charge, and proceeds to serve notice, or to file the petition, he will transmit the right to prosecute the case to his heir; and this the Divine Pius stated in a Rescript with reference to the service of the papers and the notice. What course should be pursued where the party was not under the control of the deceased? Would the right of action be transmitted to his heir? If he did the things which we have mentioned above, he would seem to have properly prepared his case.
8 Ulpianus libro quarto decimo ad edictum. Papinianus libro quinto quaestionum recte scribit inofficiosi querellam patrem filii sui nomine instituere non posse invito eo: ipsius enim iniuria est. sequenti loco scribit, si filius post adgnitam litis ordinandae gratia bonorum possessionem decesserit, finitam esse inofficiosi querellam, quae non patri, sed nomine dabatur filii. 1Si quis post rem inofficiosi ordinatam litem dereliquerit, postea non audietur. 2Si imperator sit heres institutus, posse inofficiosum dici testamentum saepissime rescriptum est. 3Papinianus libro secundo responsorum ait contra veterani patris familias testamentum esse inofficiosi querellam, etsi ea sola bona habuit quae in castris quaesierat. 4Si quis in militia fecerit testamentum et intra annum post militiam decesserit, dubito an, quia ad hoc usque temporis iure militari testamentum eius valet, querella inofficiosi cesset: et potest dici querellam inofficiosi cessare. 5Sed nec impuberis filii mater inofficiosum testamentum dicit, quia pater ei hoc fecit (et ita Papinianus respondit): nec patris frater, quia filii testamentum est: ergo nec frater impuberis, si patris non dixit. sed si in patris obtentum est, nec hoc valebit: nisi si pro parte patris rescissum est: tunc enim pupillare valet. 6Si quis mortis causa filio donaverit quartam partem eius quod ad eum esset perventurum, si intestatus pater familias decessisset, puto secure eum testari. 7Si quis impuberi filio substituit secundas tabulas faciendo, non ob hoc admittemus ipsum impuberem ad inofficiosi querellam. 8Quoniam autem quarta debitae portionis sufficit ad excludendam querellam, videndum erit an exheredatus partem faciat qui non queritur: ut puta sumus duo filii exheredati. et utique faciet, ut Papinianus respondit, et si dicam inofficiosum, non totam hereditatem debeo, sed dimidiam petere. proinde si sint ex duobus filiis nepotes, ex uno plures, tres puta, ex uno unus: unicum sescuncia, unum ex illis semuncia querella excludit. 9Quarta autem accipietur scilicet deducto aere alieno et funeris impensa: sed an et libertates quartam minuant, videndum est. et numquid minuant? nam si, cum quis ex asse heres institutus est, ideo non potest dicere inofficiosum, quia habet Falcidiam, Falcidia autem libertates non minuit: potest dici deductis libertatibus quartam ineundam. cum igitur placet quartam minui per libertates, eveniet ut, qui servos tantum habet in patrimonio suo, dando eis libertatem inofficiosi querellam excludat: nisi forte hic filius, si non fuit in potestate, a patre heres institutus merito omittit hereditatem et ad substitutum transmittens querellam inofficiosi instituet, vel ab intestato citra edicti poenam habeat hereditatem. 10Si condicioni parere testator heredem iussit in persona filii vel alterius qui eandem querellam movere potest et sciens is accepit, videndum, ne ab inofficiosi querella excludatur: adgnovit enim iudicium. idem est et si legatarius ei vel statuliber dedit. et potest dici excludi eum, maxime si heredem ei iusserat dare: ceterum si legatarium, numquid semel natam inofficiosi querellam non peremat legatarii oblatio? cur ergo in herede absolute diximus? quoniam ante aditam hereditatem nec nascitur querella. ego eventum puto sequendum in hac re, ut, si forte antequam iudicium moveatur oblatio ei fiat eius quod relictum est, quasi ex voluntate testatoris oblato eo satis ei factum videatur. 11Unde si quis fuit institutus forte ex semisse, cum ei sextans ex substantia testatoris deberetur, et rogatus esset post certum temporis restituere hereditatem, merito dicendum est nullum iudicium movere, cum debitam portionem et eius fructus habere possit: fructus enim solere in Falcidiam imputari non est incognitum. ergo et si ab initio ex semisse heres institutus rogetur post decennium restituere hereditatem, nihil habet quod queratur, quoniam facile potest debitam portionem eiusque fructus medio tempore cogere. 12Si quis et irritum dicat testamentum vel ruptum et inofficiosum, condicio ei deferri debet, utrum prius movere volet. 13Si filius exheredatus in possessione sit hereditatis, scriptus quidem heres petet hereditatem, filius vero in modum contradictionis querellam inducat, quemadmodum ageret, si non possideret, sed peteret. 14Meminisse autem oportebit eum, qui testamentum inofficiosum improbe dixit et non optinuit, id quod in testamento accepit perdere et id fisco vindicari quasi indigno ablatum. sed ei demum aufertur quod testamento datum est, qui usque ad sententiam iudicum lite improba perseveraverit: ceterum si ante sententiam destitit vel decessit, non ei aufertur quod datum est: proinde et si absente eo secundum praesentem pronuntietur, potest dici conservandum ei quod accepit. eo autem solo carere quis debet, cuius emolumentum ad eum pertinet: ceterum si id rogatus fuit restituere, non debet iniuria fieri. unde non male Papinianus libro secundo responsorum refert, si heres fuit institutus et rogatus restituere hereditatem, deinde in querella inofficiosi non optinuit, id quod iure Falcidiae potuit habere solum perdere. 15Si quis impubes adrogatus sit ex his personis, quae et citra adoptionem et emancipationem queri de inofficioso possunt, hunc puto removendum a querella, cum habeat quartam ex constitutione divi Pii. quod si egit nec optinuit, an quartam perdat? et puto aut non admittendum ad inofficiosum, aut si admittatur, etsi non optinuerit, quartam ei quasi aes alienum concedendam. 16Si ex causa de inofficiosi cognoverit iudex et pronuntiaverit contra testamentum nec fuerit provocatum, ipso iure rescissum est: et suus heres erit secundum quem iudicatum est et bonorum possessor, si hoc se contendit: et libertates ipso iure non valent: nec legata debentur, sed soluta repetuntur aut ab eo qui solvit, aut ab eo qui optinuit et haec utili actione repetuntur. fere autem si ante controversiam motam soluta sunt, qui optinuit repetit: et ita divus Hadrianus et divus Pius rescripserunt. 17Plane si post quinquennium inofficiosum dici coeptum est ex magna et iusta causa, libertates non esse revocandas, quae competierunt vel praestitae sunt, sed viginti aureos a singulis praestandos victori.
8 Ulpianus, On the Edict, Book XIV. Papinianus very properly says in the Fifth Book of Questions, that a father cannot institute proceedings on the ground of inofficiousness in behalf of his son, if the latter is unwilling; for the wrong was committed against the son. He states immediately afterwards that if his son should die after having obtained possession of the estate, with a view to proceeding regularly with the case, the complaint for inofficiousness is terminated; for it was not granted to the father himself, but on account of his son. 1Where a party abandons the case after having instituted proceedings on the ground of inofficiousness, he shall not afterwards be heard. 2It has very frequently been stated in rescripts that when the Emperor is appointed an heir, the testament can be declared inofficious. 3Papinianus, in the Second Book of Opinions, says that a complaint for an inofficious testament can be brought against the head of a family who is a veteran, even though the only property which he owns is what he obtained in military service. 4Where a soldier makes a will while in the army, and dies a year after he is discharged, I doubt whether a complaint for inofficiousness will be allowed, because his will is valid up to this time, in accordance with military law, and it may be said that a complaint on the ground of inofficiousness is not available. 5A mother cannot claim that the will of her son who is under age is inofficious, because his father made it for him; and Papinianus gave this opinion; nor can his father’s brother do so, because it is the will of the son; therefore, the brother of the minor cannot do so either, if he did not object to his own father’s testament. Where, however, the testament of the father is attacked successfully, that of his son will be void, unless it was broken only with reference to his father, for then the pupillary part will remain valid. 6Where anyone makes a donation mortis causa to his son of the fourth part of what he would have been entitled to if the testator had died intestate, I am of the opinion that his will is secure. 7Where a man provided a substitute for his son, who is a minor, by making a secondary bequest, we cannot, for this reason permit the minor himself to file a complaint for inofficiousness. 8Since the fourth part of the share which is due is sufficient to exclude the complaint, it should be considered whether a disinherited child, who does not object, should be included, as, for example, where there are two sons who are disinherited; and no doubt he should be included, as Papinian states; and if the other should say that the will is inofficious, he cannot claim the entire estate, but only half of the same. Thus, for the same reason, where there are grandchildren, the issue of two sons, for instance, three by one of them, and only one by the other; the son who is alone will be excluded from the complaint by obtaining three-twenty-fourths of the estate, and any one of the others by obtaining one twenty-fourth of the same. 9This fourth part will, of course, be estimated after the debts and funeral expenses have been deducted; but it must be considered whether testamentary grants of freedom will diminish the fourth part, and do they diminish it? For if anyone is appointed sole heir, he cannot claim that the will is inofficious, because he has received the Falcidian portion; but the Lex Falcidia does not apply to testamentary manumissions, and it may be held that the fourth part is to be entered on after deducting what is lost by manumission; therefore, as it is established that the fourth part is reduced by manumission, the result will be that, where a person’s estate consists of slaves, by emancipating them he bars a complaint for an inofficious testament; unless, perhaps, his son, if he was not under his control after being appointed the heir of his father, may properly reject the estate, and having transmitted it to the substitute, may begin proceedings for inofficiousness, so as to obtain the estate on the ground of intestacy without being liable to the penalty prescribed by the Edict. 10Where a testator directed his heir to fulfill some condition having reference to his son, or to some other person who had a right to bring the same complaint, and he knowingly agreed to this, it should be considered whether he is prevented from making a complaint for inofficiousness, since he accepted the will of the deceased. The case is the same where the party who gave him the donation was a legatee, or a statuliber; and it may be said that the son is prevented, and especially where the testator ordered the heir to make the gift; but if it was a legatee, may it not be true that where the right to file a complaint for inofficiousness has once vested, the tender by the legatee will not abrogate it? For why did we absolutely establish this principle in the case of the heir? It was because no right to file a complaint arises before he had entered upon the estate. I think that, in this instance, the event must be followed, so that if what was left was tendered to the son before proceedings were instituted by him, then it appears that he has all that he is entitled to, as the donation was offered in accordance with the wishes of the testator. 11Wherefore, if anyone has been appointed heir, for instance to one half the estate, when a sixth would have been coming to him from the testator’s property if he had died intestate, and he is asked to surrender the estate after a certain time; it can reasonably be held that he cannot bring an action, since he could have the share which was due to him, and the profits of the same, for it is well established that the profits are usually included in the Falcidian portion. Therefore, where, in the beginning, an heir was appointed to half the estate, and afterwards is asked to relinquish his inheritance after the expiration of ten years; there is no ground on which to make complaint, since he could during that time, easily have collected the share that was due to him together with the profits of the same. 12Where a party alleges that a will is void, defective, and inofficious, the choice should be given him as to which claim he wished to make first. 13Where a son who has been disinherited is in possession of the estate, and the party who has been appointed heir brings suit to recover it; the son can file the complaint by way of cross action, just as he would do if he were not in possession but was bringing an action for recovery. 14It must be remembered that where a party improperly alleges that a testament is inofficious, and loses his case, he will also lose what was left him by the testament, and it can be recovered in a suit by the Treasury as property of which he was deprived because he was unworthy of it. He is, however, only deprived of what was bequeathed to him by the will, where he, without any ground, continued to prosecute the case until judgment was rendered. Where, however, he desisted or died before judgment, he will not be deprived of what was left him. Hence, if while he was absent, a decision was pronounced in favor of the other party, who was present, it may be said that he can hold what was left him. A party, however, can only lose anything where the enjoyment of it belongs to him; and if he is asked to surrender it to another, no injury should be done. Wherefore, Papinianus not incorrectly states in the Second Book of Opinions, that where a party is appointed an heir and is asked to surrender the estate, and then, after bringing complaint for inofficiousness, does not succeed, he only loses what he could have obtained under the Lex Falcidia. 15Where a minor has been arrogated, and is one of those persons who can make complaint of an inofficious testament without depending upon adoption or emancipation to do so; I think that he will be barred, since he is entitled to a fourth part of the estate, according to the Constitution of the Divine Pius. If, however, he brings suit, and does not obtain a judgment, will he lose this fourth part? I am of the opinion that he should not be permitted to contest the will on the ground of inofficiousness, or if he should be permitted, even if he does not gain the suit, to have the fourth part granted him as a debt which is due to him. 16Where a judge investigates a case based on an inofficious testament and renders a decree against the testament, and no appeal is taken, the testament is rescinded by operation of law; and the party who succeeds will become the direct heir, or the possessor of the property in accordance with the terms of the decree; testamentary grants of freedom will become void by operation of law; legacies will not be due; and if they have been paid they can be recovered either by him who paid them or by the successful litigant (by means of a prætorian action). Generally, however, where they have been paid before proceedings were instituted, the successful litigant should bring suit for their recovery; as the Divine Hadrian and the Divine Pius stated in a Rescript. 17It is certain that if the claim of inofficiousness is alleged for some very just cause after five years, manumissions which have already taken place, or which could be demanded, cannot be revoked; but twenty aurei should be paid by each liberated slave to the party who gained the suit.
9 Modestinus libro singulari de inofficioso testamento. Si autem intra quinquennium egerit, libertates non competunt. sed Paulus ait praestaturum fidei commissas libertates, scilicet viginti aureis et in hoc casu a singulis praestandis.
9 Modestinus, On Inofficious Testaments. Where anyone institutes proceedings within five years, manumission will not stand. Paulus says, however, that where freedom is granted under a trust it will be allowed; and, of course, in this instance twenty aurei must be paid by each individual.
10 Marcellus libro tertio digestorum. Si pars iudicantium de inofficioso testamento contra testamentum, pars secundum id sententiam dederit, quod interdum fieri solet, humanius erit sequi eius partis sententiam quae secundum testamentum spectavit: nisi si aperte iudices inique secundum scriptum heredem pronuntiasse apparebit. 1Illud notissimum est eum qui legatum perceperit non recte de inofficioso testamento dicturum, nisi id totum alii administravit.
10 Marcellus, Digest, Book III. Where, in the case of an inofficious testament, part of the judges rendered a decision against it, and part in favor of it, which is sometimes done; it will be more humane to adopt the opinion of those who favored the testament, unless where it is clearly apparent that they rendered an unjust decision in favor of the party who was appointed heir. 1It is a well known fact that anyone who accepts a legacy cannot properly allege that the will is inofficious, unless he transferred the entire legacy to another person.
11 Modestinus libro tertio responsorum. Etiamsi querella inofficiosi testamenti optinuerit, non ideo tamen donationes, quas vivus ei perfecisse proponitur, infirmari neque in dotem datorum partem vindicari posse respondi.
11 Modestinus, Opinions, Book III. I stated as my opinion that even where a party succeeds on the ground that a testament is inofficious, any donations which the testator, while living, seems to have made in favor of the appointed heir, are not for that reason annulled; nor will an action lie to recover part of what was given to him by way of dowry.
12 Idem libro singulari de praescriptionibus. Nihil interest sibi relictum legatum filius exheredatus adgnoverit an filio servove relictum consecutus sit: utrubique enim praescriptione submovebitur. quin etiam si idem institutum servum priusquam adire hereditatem iuberet manumiserit, ut ille suo arbitrio adeat hereditatem, idque fraudulento consilio fecerit, summovebitur ab actione. 1Si a statulibero exheredatus pecuniam petere coeperit, videri adgnovisse parentis iudicium. 2Si cum filius ademptum legatum instituerit petere, summotus repetat inofficiosi querellam, praescriptione removendus non est: quamvis enim agendo testamentum comprobaverit, tamen est aliquid, quod testatoris vitio reputetur, ut merito repellendus non sit. 3Filius testatoris, qui cum Titio eiusdem pecuniae reus fuerat, liberatione Titio legata per acceptilationem Titii liberatus ab actione inofficiosi non summovebitur.
12 The Same, On Prescriptions, Book XII. It makes no difference whether a son who is disinherited accepts a legacy bequeathed to him, or obtains it through his son or slave, to whom it was left; in either instance he will be barred by an exception. Again if his slave is appointed heir, and the son manumits him before he directs him to enter upon the estate, so that he may do so of his own free will, and the son does this with a fraudulent design, he will be prevented from proceeding with his action. 1Where a son who has been disinherited makes a demand upon a statuliber for money due him, he is held to have accepted his father’s will. 2Where a son brings suit to obtain a legacy which was revoked, and, having failed, has recourse to a complaint for inofficiousness, he will not be barred by an exception; although by the mere fact of his bringing suit he approved of the will, still, some blame should be attributed to the testator, so that the claim of the son cannot reasonably be rejected. 3Where the son of a testator, along with Titius, was a debtor for a certain sum of money, and Titius was released by the terms of the will, the son will not be discharged from liability on account of the release of Titius; nor will his right to bring an action of inofficious testament be barred.
13 Scaevola libro tertio responsorum. Titia filiam heredem instituit, filio legatum dedit: eodem testamento ita cavit: ‘Ea omnia quae supra dari fieri iussi, ea dari fieri volo ab omni herede bonorumve possessore qui mihi erit etiam iure intestato: item quae dari iussero, ea uti dentur fiantque, fidei eius committo.’ quaesitum est, si soror centumvirali iudicio optinuerit, an fideicommissa ex capite supra scripto debeantur. respondi: si hoc quaeratur, an iure eorum, quos quis sibi ab intestato heredes bonorumve possessores successuros credat, fidei committere possit, respondi posse. Paulus notat: probat autem nec fideicommissa ab intestato data deberi, quasi a demente.
13 Scævola, Opinions, Book III. Titia appointed her daughter heir, left her son a legacy, and provided by the same will that: “All those things which I have above directed to be given or done, I wish to be given and done by any person who will become my heir, or the possessor of my estate, even on intestacy. Also, whatever I may direct hereafter to be given or done, I leave in trust to the said person to see that it is given and done.” The question arose whether, if a sister gained a case in the Centumviral Court, the trust must be executed in compliance with the preceding clause? My answer to the inquiry whether a party can lawfully impose a trust on those whom he thinks will succeed him on intestacy, either as heirs, or as possessors of his estate, was that he could do so. Paulus states in a note that he approves the opinion that trusts imposed by a party who dies intestate need not be executed, as they would seem to have been ordered by a person of unsound mind.
14 Papinianus libro quinto quaestionum. Pater filium emancipavit et nepotem ex eo retinuit: emancipatus suscepto postea filio, duobus exheredatis patre praeterito vita decessit. in quaestione de inofficiosi testamenti praecedente causa filiorum patris intentio adhuc pendet. quod si contra filios iudicetur, pater ad querellam vocatur et suam intentionem implere potest.
14 Papinianus, Questions, Book V. A father emancipated his son, and retained his grandson under his control; the son subsequently had another son, and then died, after having disinherited both sons, and omitted any mention of his own father in his will. In an inquiry as to whether the will was inofficious or not, the interest of the sons must take precedence, and the intentions of the father of the deceased remains for consideration; but if judgment is rendered against the sons, then the complaint of the father can be examined, and he can institute proceedings.
15 Idem libro quarto decimo quaestionum. Nam etsi parentibus non debetur filiorum hereditas propter votum parentium et naturalem erga filios caritatem: turbato tamen ordine mortalitatis non minus parentibus quam liberis pie relinqui debet. 1Heredi eius, qui post litem de inofficioso praeparatam mutata voluntate decessit, non datur de inofficioso querella: non enim sufficit litem instituere, si non in ea perseveret. 2Filius, qui de inofficiosi actione adversus duos heredes expertus diversas sententias iudicum tulit et unum vicit, ab altero superatus est, et debitores convenire et ipse a creditoribus conveniri pro parte potest et corpora vindicare et hereditatem dividere: verum enim est familiae erciscundae iudicium competere, quia credimus eum legitimum heredem pro parte esse factum: et ideo pars hereditatis in testamento remansit, nec absurdum videtur pro parte intestatum videri.
15 The Same, Questions, Book XIV. For although parents have no right to succeed to the estate of their children, still, on account of the wishes of the parents and their natural affection for their children, when the regular order of mortality is disturbed, an estate ought to be left on the ground of affection no less to parents than to children. 1Where a party after having brought suit to declare a will inofficious changes his mind, and then dies, a complaint on the ground of inofficiousness will not be granted his heir, as it is not sufficient for proceedings to be instituted if the plaintiff does not continue to carry them on. 2Where a son brings suit on the ground of an inofficious will against two heirs, and obtains different decisions from the judges defeating one heir and being defeated by the other, he can sue the debtors of the estate, and he himself may be sued by the creditors to the extent of his share in the same, and he can recover property and divide the estate; for it is true that he is entitled to an action for partition, as we think that he becomes an heir at law for a share of the inheritance, and therefore a portion of it remains subject to the terms of the will, and it does not seem absurd that the testator should be considered to have died partly intestate.
16 Idem libro secundo responsorum. Filio, qui de inofficioso matris testamento contra fratrem institutum de parte ante egit et optinuit, filia, quae non egit aut non optinuit, in hereditate legitima fratri non concurrit. 1Contra tabulas filii possessionem iure manumissionis pater accepit et bonorum possessionem adeptus est: postea filia defuncti, quam ipse exheredaverat, quaestionem inofficiosi testamenti recte pertulit: possessio, quam pater accepit, ad irritum reccidit: nam priore iudicio de iure patris, non de iure testamenti quaesitum est: et ideo universam hereditatem filiae cum fructibus restitui necesse est.
16 The Same, Opinions, Book II. Where a son has already instituted proceedings on the ground of inofficiousness of his mother’s will, against his brother who was appointed heir to a portion of the estate, and gains his case; a daughter who did not bring suit, or did not succeed, cannot lawfully share in the inheritance with her brother. 1A father obtained possession of the estate of his son by the right of manumission, in opposition to the provisions of the will, and look possession of the property; and afterwards a daughter of the deceased, whom he had disinherited, very properly prosecuted an action on the ground that the will was inofficious, and then the possession which the father obtained was annulled; for, in the former proceedings, the question to be determined was the legal position of the father, and not the legality of the will; and hence it was necessary for the entire estate to be restored to the daughter together with the profits of the same.
17 Paulus libro secundo quaestionum. Qui repudiantis animo non venit ad accusationem inofficiosi testamenti, partem non facit his qui eandem querellam movere volunt. unde si de inofficioso testamento patris alter ex liberis exheredatis ageret, quia rescisso testamento alter quoque ad successionem ab intestato vocatur, et ideo universam hereditatem non recte vindicasset: hic si optinuerit, uteretur rei iudicatae auctoritate, quasi centumviri hunc solum filium in rebus humanis esse nunc, cum facerent intestatum, crediderint. 1Cum contra testamentum ut inofficiosum iudicatur, testamenti factionem habuisse defunctus non creditur. non idem probandum est, si herede non respondente secundum praesentem iudicatum sit: hoc enim casu non creditur ius ex sententia iudicis fieri: et ideo libertates competunt et legata petuntur.
17 Paulus, Questions, Book II. Where anyone with the intention of rejecting the estate does not attack a will as inofficious, the share to which he is entitled to does not stand in the way of any others who may wish to institute proceedings for that purpose. Wherefore, when one of two children who have been disinherited institutes proceedings to have the will of their father declared inofficious—for if the will is set aside, the other son will have a right to the succession on the ground of intestacy, and therefore cannot legally bring suit to recover the entire estate—if he should gain his case, he can avail himself of the authority of res judicata, since the Centumviri, when they declared the maker of the will intestate would have believed that this is the only son living. 1When judgment is rendered against a testament on the ground of inofficiousness, the deceased is considered not to have been competent to make a will. This opinion is not to be approved where a decision is rendered in favor of the plaintiff and the heir does not defend the case; as, in this instance, it is not understood that the law is established by the decree of the Court, and therefore manumissions are sustained and actions can be brought for legacies.
18 Idem libro singulari de inofficioso testamento. De qua re etiam constitutio exstat divorum fratrum, quae huiusmodi distinctionem admittit.
18 The Same, On Inofficious Testaments. A Constitution of the Divine Brothers on this subject is extant, which recognizes a distinction of this kind.
19 Idem libro secundo quaestionum. Mater decedens extraneum ex dodrante heredem instituit, filiam unam ex quadrante, alteram praeteriit: haec de inofficioso egit et optinuit. quaero, scriptae filiae quomodo succurrendum sit. respondi: filia praeterita id vindicare debet, quod intestata matre habitura esset: itaque dici potest eam quae omissa est etiam, si totam hereditatem ab intestato petat et optineat, solam habituram universam successionem, quemadmodum si altera omisisset legitimam hereditatem. sed non est admittendum, ut adversus sororem audiatur agendo de inofficioso: praeterea dicendum est non esse similem omittenti eam, quae ex testamento adiit: et ideo ab extraneo semissem vindicandum et defendendum totum semissem esse auferendum, quasi semis totus ad hanc pertineat. secundum quod non in totum testamentum infirmatur, sed pro parte intestata efficitur, licet quasi furiosae iudicium ultimum eius damnetur. ceterum si quis putaverit filia optinente totum testamentum infirmari, dicendum est etiam institutam ab intestato posse adire hereditatem: nec enim quae ex testamento adiit, quod putat valere, repudiare legitimam hereditatem videtur, quam quidem nescit sibi deferri: cum et hi qui sciant ius suum, eligentes id quod putant sibi competere, non amittant. quod evenit in patrono, qui iudicium defuncti falsa opinione motus amplexus est: is enim non videtur bonorum possessionem contra tabulas repudiasse. ex quibus apparet non recte totam hereditatem praeteritam vindicare, cum rescisso testamento etiam institutae salvum ius sit adeundae hereditatis.
19 The Same, Questions, Book II. A mother, when about to die, appointed a stranger heir to three-fourths of her estate, and one daughter an heir to one fourth of the same, and passed over another daughter; whereupon the latter brought suit to declare the will inofficious, and gained her case. I ask to what relief the daughter who was appointed heir is entitled? I answered that the daughter who was passed over should bring an action to recover whatever she would have received if her mother had died intestate. Therefore, it may be said that she who was passed over, even if she brings suit for the entire estate on intestacy and succeeds, will be entitled to the exclusive succession, just as if the other daughter had renounced her lawful share. It should not be admitted, however, that the former may be heard against her sister if she institutes proceedings on the ground of inofficiousness. Moreover, it must be said that the sister who entered upon the estate in compliance with the provisions of the will, is not in the same position as the one who was passed over, and therefore the latter must bring suit to recover half of the estate from a stranger; and it may be held that in this way she can recover half, because the entire half belongs to her. According to this, the entire will is not set aside, but the testatrix is rendered intestate to a certain extent, even if the Court declares the will void as having been executed by a person who was insane. But if anyone should think that where a daughter gains her case the entire will be rendered void, it must be held that the sister who was appointed heir on intestacy can enter upon the estate, for since she enters in compliance with the terms of the will, which she thought was valid, she cannot be considered to have rejected her lawful share of the estate, to which, indeed, she did not know that she was entitled; for when persons are aware of their rights they do not lose them, if they select a course which they believe they can pursue. This happens where a patron, induced by an incorrect opinion, accepts the will of a deceased freedman; for he is not held to have rejected the possession of the estate in contravention of the will. From this it is evident that the daughter who was passed over cannot legally bring suit to recover the entire estate, since, if the will were set aside, the right of the one appointed heir to enter upon the estate remains unimpaired.
20 Scaevola libro secundo quaestionum. Qui de inofficioso vult dicere, licet negetur filius, Carbonianam bonorum possessionem non debet accipere (totiens enim ea indulgenda est, quotiens, si vere filius esset, heres esset aut bonorum possessor, ut interim et possideat et alatur et actionibus praeiudicium non patiatur: qui vero de inofficioso dicit, nec actiones movere debet nec aliam ullam quam hereditatis petitionem exercere nec ali), ne umquam melioris sit condicionis, quam si confitetur adversarius.
20 Scævola, Questions, Book II. Where anyone wishes to have a will declared inofficious, although it may be denied that he is the son of the deceased, he is not entitled to the Carbonian possession of property, for this is only permitted where, if the party were actually the son he would be the heir, or the legal possessor of the estate; so that if, in the meantime, he should obtain possession, and be supported, his rights would not be prejudiced by any actions which might be brought by him. Where a party makes a claim of inofficiousness, he cannot bring any actions except one to obtain the estate, and he has no right to support. This is done to prevent him from being in a better position than if his adversary had acknowledged him to be the son of the testator.
21 Paulus libro tertio responsorum. Eum, qui inofficiosi testamenti querellam instituit et fraude heredis scripti, quasi tertiam partem hereditatis tacite rogatus esset ei restituere, reliquit eam actionem, non videri deseruisse querellam et ideo non prohiberi eum repetere inchoatam actionem. 1Item quaesitum est, an heres audiendus est, ante de inofficiosi querellam actam desiderans restitui sibi ea quae solvit. respondit ei, qui sciens indebitum fideicommissum solvit, nullam repetitionem ex ea causa competere. 2Idem respondit, evicta hereditate per inofficiosi querellam ab eo qui heres institutus esset, perinde omnia observari oportere, ac si hereditas adita non fuisset: et ideo et petitionem integram debiti heredi instituto adversus eum qui superavit competere et compensationem debiti.
21 Paulus, Opinions, Book III. Where a party who instituted proceedings on the ground that a will was inofficious, abandons the action, on account of fraudulent assertion of the appointed heir, who alleges that he is tacitly bound to give him a third part of the estate; he is not held to have renounced his right of action, and therefore he cannot be prohibited from resuming the suit which he began. 1Inquiry has also been made whether an heir should be heard, when he asks that what he has paid out before the action to declare the will inofficious was brought, ought to be refunded to him? The answer was that he who, being aware of the facts, paid out money in pursuance of a trust with which he had no concern, will not, on this account, be entitled to an action to recover it. 2The same jurist gave it as his opinion that where the party who was appointed heir is deprived of the estate by a suit to declare a will inofficious, everything should proceed just as if the estate had not been entered on; and therefore the appointed heir would have a complete right of action against the party who gained the case, to collect any debt, as well as a right of set-off against all indebtedness.
22 Tryphoninus libro septimo decimo disputationum. Filius non impeditur, quo minus inofficiosum testamentum matris accusaret, si pater eius legatum ex testamento matris accipiet vel adisset hereditatem, quamquam in eius esset potestate: nec prohiberi patrem dixi iure filii accusare: nam indignatio filii est. 1Et quaerebatur, si non optinuisset in accusando, an quod patri datum est publicaretur? quoniam alii commodum victoriae parat et in hac causa nihil ex officio patris, sed totum de meritis filii agitur. et inclinandum est non perdere patrem sibi datum, si secundum testamentum pronuntiatum fuisset. 2Multo magis si mihi legatum testator dedit, cuius de inofficioso testamento filius agens decessit me herede relicto, egoque hereditariam causam peregi et victus sum: id quod mihi eo testamento relictum est, non perdam: utique si iam defunctus agere coeperat. 3Item si adrogavi eum, qui instituerat litem de inofficioso testamento eius qui mihi legatum dedit, litemque peregero nomine filii nec optinuero: perdere me legatum non oportet, quia non sum indignus, ut auferatur mihi a fisco id quod derelictum est: cum non proprio nomine, sed iure cuiusdam successionis egi.
22 Tryphoninus, Disputations, Book XVII. A son is not prevented from attacking the testament of his mother as inofficious, where his father has received a legacy by the will of the mother, or has entered upon the estate, even though the said son was still under his father’s control; and I have stated that the father is not forbidden to attack the will in behalf of his son, for the indignity is inflicted upon the latter. 1It was also asked if the son failed in his attack on the will, whether what was left to the father would be forfeited to the State? For, as he would not be benefited by his success, and in this instance the duty of the father was not in any way concerned, but everything depended upon the merit of the son, we must incline to the opinion that the father does not lose what was left to him, if a decision is rendered in favor of the will. 2Much more is this the fact where a testator left me a legacy, and his son, after instituting proceedings on the ground that the will was inofficious, died, leaving me his heir, and I still proceed with the action against the estate, and I am defeated, I do not lose what was left me by the will; if, of course, the deceased had already begun suit. 3Moreover, if I adopt a person after he has already brought an action to declare the will inofficious, by which will a legacy had been bequeathed to me, and I conduct the case in behalf of my adopted son, and do not succeed; I should not lose my legacy because I have been guilty of anything for which I ought to be deprived by the Treasury of what was bequeathed to me; for I did not bring the suit in my own name, but on account of a certain kind of legal succession.
23 Paulus libro singulari de inofficioso testamento. Si ponas filium emancipatum praeteritum et ex eo nepotem in potestate retentum heredem institutum esse: filius potest contra filium suum, testatoris nepotem petere bonorum possessionem, queri autem de inofficioso testamento non poterit. quod si exheredatus sit filius emancipatus, poterit queri et ita iungetur filio suo et simul cum eo hereditatem optinebit. 1Si hereditatem ab heredibus institutis exheredati emerunt vel res singulas scientes eos heredes esse: aut conduxerunt praedia aliudve quid simile fecerunt: vel solverunt heredi quod testatori debebant: iudicium defuncti adgnoscere videntur et a querella excluduntur. 2Si duo sint filii exheredati et ambo de inofficioso testamento egerunt et unus postea constituit non agere, pars eius alteri adcrescit. idemque erit, et si tempore exclusus sit.
23 Paulus, On Inofficious Testaments. If you suppose the case of an emancipated son who has been passed over and his grandson who continued under the control of the testator, and is appointed heir; the son can institute proceedings against his own son, who is the grandson of the testator, for the possession of the estate, but he cannot bring an action on the ground that the will is inofficious. If, however, the emancipated son was disinherited, he can bring the action, and can then be joined with his son, and will obtain the estate along with him. 1Where disinherited children have purchased an estate or any property belonging to it from the persons who were appointed heirs, knowing them to be such, or have rented land from them, or done anything else like this, or have paid the heir debts which they owed the testator, they are held to have accepted the will of the deceased, and are excluded from bringing suit. 2Where two sons are disinherited, and both bring suit on the ground that the will is inofficious, and one of them afterwards concludes not to proceed, his share will belong to the other by accretion. The same rule applies where he is barred by lapse of time.
24 Ulpianus libro quadragensimo octavo ad Sabinum. Circa inofficiosi querellam evenire plerumque adsolet, ut in una atque eadem causa diversae sententiae proferantur. quid enim si fratre agente heredes scripti diversi iuris fuerunt? quod si fuerit, pro parte testatus, pro parte intestatus decessisse videbitur.
24 Ulpianus, On Sabinus, Book XLVIII. It frequently occurs with reference to suits for inofficiousness that different decisions are rendered in one and the same case. For what if the brother who institutes proceedings and the appointed heirs are persons occupying different legal positions? If this should be the case, the deceased is held to have died partly testate and partly intestate.
25 Idem libro secundo disputationum. Si non mortis causa fuerit donatum, sed inter vivos, hac tamen contemplatione, ut in quartam habeatur: potest dici inofficiosi querellam cessare, si quartam in donatione habet aut, si minus habeat, quod deest viri boni arbitratu repleatur: aut certe conferri oportere id quod donatum est. 1Si quis, cum non possit de inofficioso queri, ad querellam admissus pro parte rescindere testamentum temptet et unum sibi heredem eligat, contra quem inofficiosi querellam instituat, dicendum est, quia testamentum pro parte valet et praecedentes eum personae exclusae sunt, cum effectu eum querellam instituisse.
25 The Same, Disputations, Book II. Where a donation is made not mortis causa, but intervivos, and at all events with the understanding that it shall be included in the fourth, it may be said that suit cannot be brought on the ground of inofficiousness, if the party receives the fourth in the donation; or, if he receives less, the amount lacking, shall be made up according to the arbitration of some good citizen; or, under any circumstances, what has been donated must be placed in the common fund. 1Where a person who has no right to bring suit on the ground of an inofficious will, is permitted to do so, and attempts to have the will partially set aside, and selects some particular heir against whom to bring the action; it must be said that as the will is partly valid, and the parties who were entitled to preference over the plaintiff are excluded, the latter has properly brought the suit.
26 Idem libro octavo disputationum. Si sub hac condicione fuerit heres institutus ‘si Stichum manumiserit’ et manumisisset, et posteaquam manumisit inofficiosum vel iniustum testamentum pronuntietur: aequum est huic quoque succurri, ut servi pretium a manumisso accipiat, ne frustra servum perdat.
26 The Same, Disputations, Book VIII. Where an heir has been appointed on a condition, for instance if he should manumit Stichus, and he does manumit him, and afterwards the will should be declared inofficious or unjust; it is but right in order that he may obtain relief, that is to say, he should recover the value of the slave from him after his manumission, to avoid his losing him altogether.
27 Idem libro sexto opinionum. Si instituta de inofficioso testamento accusatione de lite pacto transactum est nec fides ab herede transactioni praestatur, inofficiosi causam integram esse placuit. 1Ei, qui se filium eius esse adfirmat, qui testamento id denegavit, tamen eum exheredavit, de inofficioso testamento causa superest. 2De inofficioso testamento militis dicere nec miles potest. 3De inofficioso testamento nepos contra patruum suum vel alium scriptum heredem pro portione egerat et optinuerat, sed scriptus heres appellaverat: placuit interim propter inopiam pupilli alimenta pro modo facultatium, quae per inofficiosi testamenti accusationem pro parte ei vindicabantur, decerni eaque adversarium ei subministrare necesse habere usque ad finem litis. 4De testamento matris, quae existimans perisse filium alium heredem instituit, de inofficioso queri potest.
27 The Same, Opinions, Book VI. If after a testament has been attacked as inofficious an agreement was made by the parties to compromise the case, and the terms of the compromise are not complied with by the heir, it is established that the suit brought on the ground of inofficiousness still remains unaltered. 1Where anyone alleges that he is the son of the testator who denied this to be true in his will, and, nevertheless, disinherited him, ground for an action for an inofficious will still remains. 2A soldier cannot state that the will of another soldier is inofficious. 3Where a grandson instituted proceedings on the ground that a certain part of a will was inofficious, against his paternal uncle or some other person who was appointed heir, and gained the case, but the testamentary heir appealed; it was decided, in the meantime, that on account of the poverty of the minor, he should be granted an allowance for maintenance in proportion to the assets of the estate, (for part of which suit was brought by him in the attack on the will as inofficious) and that his adversary would be required to supply him with necessaries until the case was terminated. 4A complaint can be filed on the ground of inofficiousness in the case of the will of a mother who, thinking that her son was dead, had appointed another heir.
28 Paulus libro singulari de septemviralibus iudiciis. Cum mater militem filium falso audisset decessisse et testamento heredes alios instituisset, divus Hadrianus decrevit hereditatem ad filium pertinere ita, ut libertates et legata praestentur. hic illud adnotatum quod de libertatibus et legatis adicitur: nam cum inofficiosum testamentum arguitur, nihil ex eo testamento valet.
28 Paulus, On the Jurisdiction of the Septemvirs. Where a mother has heard a false report that her son, who was a soldier, was dead, and appointed other heirs by her will, the Divine Hadrian decreed that the estate should belong to the son on the ground that testamentary grants of freedom and bequests should be maintained. What was added with reference to grants of freedom and bequests should carefully be noted, for where a testament is decided to be inofficious, nothing it contains is valid.
29 Ulpianus libro quinto opinionum. Si suspecta collusio sit legatariis inter scriptos heredes et eum qui de inofficioso testamento agit: adesse etiam legatarios et voluntatem defuncti tueri constitutum est, eisdemque permissum est etiam appellare, si contra testamentum pronuntiatum fuerit. 1De inofficioso testamento matris spurii quoque filii dicere possunt. 2Quamvis instituta inofficiosi testamenti accusatione res transactione decisa sit, tamen testamentum in suo iure manet: et ideo datae in eo libertates atque legata, usque quo Falcidia permittit, suam habent potestatem. 3Quoniam femina nullum adoptare filium sine iussu principis potest, nec de inofficioso testamento eius, quam quis sibi matrem adoptivam falso esse existimabat, agere potest. 4In ea provincia de inofficioso testamento agi oportet, in qua scripti heredes domicilium habent.
29 Ulpianus, Opinions, Book V. Where it is suspected by the legatees that collusion exists between the appointed heirs and the person who is bringing suit against the will as inofficious, it has been established that the legatees have a right to appear and defend the will of the deceased, and they are also permitted to appeal, if a judgment is rendered against the will. 1Illegitimate children also can likewise object to the will of their mother on the ground of inofficiousness. 2When an attack on account of inofficiousness is made against a will, although the case may be settled by compromise, the will still remains in full force and effect; and therefore any testamentary grants of freedom and bequests contained therein still continue to be valid to the extent permitted by the Lex Falcidia. 3Since a woman can never adopt a son without the consent of the Emperor, no man can institute proceedings on the ground of inofficiousness against the will of the woman whom he erroneously thought to be his adoptive mother. 4Proceedings on the ground that a will is inofficious must be instituted in the province in which the testamentary heirs have their residence.
30 Marcianus libro quarto institutionum. Adversus testamentum filii in adoptionem dati pater naturalis recte de inofficioso testamento agere potest. 1Tutoribus pupilli nomine sine periculo eius, quod testamento datum est, agere posse de inofficioso vel falso testamento divi Severus et Antoninus rescripserunt.
30 Marcianus, Institutes, Book IV. A natural father can lawfully institute proceedings against the will of his son who has been given in adoption, on the ground that said will is inofficious. 1The Divine Severus and Antoninus stated in a Rescript that guardians were permitted, in behalf of their wards, to institute proceedings on the ground that a will was inofficious or forged, without any risk of losing what was bequeathed to them by the will.
31 Paulus libro singulari de septemviralibus iudiciis. Si is qui admittitur ad accusationem, nolit aut non possit accusare, an sequens admittatur, videndum est. et placuit posse, ut fiat successioni locus. 1Quantum ad inofficiosi liberorum vel parentium querellam pertinet, nihil interest, quis sit heres scriptus ex liberis an extraneis vel municipibus. 2Si heres extiterim ei, qui eo testamento institutus est quod de inofficioso arguere volo, non mihi nocebit, maxime si eam portionem non possideam vel iure suo possideam. 3Diversum dicemus, si legaverit mihi eam rem, quam quis ex eo testamento acceperat: nam si eam adgnoscam, repellar ab accusatione. 4Quid ergo si alias voluntatem testatoris probaverim? puta in testamento adscripserim post mortem patris consentire me? repellendus sum ab accusatione.
31 Paulus, On the Jurisdiction of the Septemvirs. Where a person who has a right to attack a will is unwilling, or cannot do so, it is a matter for consideration whether he who is next in succession shall be allowed to institute proceedings for that purpose; and it has been established that he can, as succession is involved. 1With reference to the action for inofficiousness brought by children or parents, it makes no difference who may be appointed heir, whether one of the children, a stranger, or a resident of the same town. 2If I should become the heir of a party who himself was appointed heir by the will which I wish to prove to be inofficious, this fact will not bar me, especially if I do not have possession of the portion of the estate in dispute, or only hold it in my own right. 3We say that the case is different where a party left me the property which he himself had received under the will; for if I accept it I am excluded from attacking the will. 4What must be said then if I should accept the will of the testator in some other way; for example, if, after the death of my father, I write on the will that I consent to it? In this instance I am prevented from attacking it.
32 Idem libro singulari de inofficioso testamento. Si exheredatus petenti legatum ex testamento advocationem praebuit procurationemve susceperit, removetur ab accusatione: adgnovisse enim videtur, qui qualequale iudicium defuncti comprobavit. 1Si legatario heres extiterit exheredatus petieritque legatum, videbimus an sit summovendus ab hac accusatione: certum est enim iudicium defuncti et rursus nihil ei ex testamento relictum verum est. tutius tamen fecerit, si se abstinuerit a petitione legati.
32 The Same, On Inofficious Testaments. Where a disinherited son acts as advocate, or assumes the duty of agent for a party who brings an action for a legacy under the will, he will not be permitted to attack the will; for he who approves of any bequests of the deceased is held to have accepted his will. 1Where a disinherited son becomes the heir of a legatee, and brings an action for the legacy, let us consider whether he is not barred from attacking the testament for the testament of the deceased is certain, and, on the other hand, it is true that nothing has been left him by the testament. He will be safer, however, if he abstains from bringing an action for the legacy.