1Ulpianus, 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.

2Marcianus, 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.

3Marcellus, 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.

4Gaius, 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.

5Marcellus, 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.

6Ulpianus, 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.

7Paulus, 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.

8Ulpianus, 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. 10Ad Dig. 5,2,8,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 581, Note 7.Where 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. 15Ad Dig. 5,2,8,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 593, Note 5.Where 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.

9Modestinus, 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.

10Marcellus, 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.

11Modestinus, 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.

12The 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.

13Ad Dig. 5,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 631, Note 9.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.

14Papinianus, 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.

15The 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.

16The Same, Opinions, Book II. Ad Dig. 5,2,16 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Noten 24, 27.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.

17Paulus, 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.

18The Same, On Inofficious Testaments. A Constitution of the Divine Brothers on this subject is extant, which recognizes a distinction of this kind.

19Ad Dig. 5,2,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Noten 24, 27.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.

20Scævola, 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.

21Paulus, 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.

22Tryphoninus, 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.

23Paulus, 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. 1Ad Dig. 5,2,23,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 585, Note 3.Where 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.

24Ulpianus, 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.

25The 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. 1Ad Dig. 5,2,25,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Note 26.Where 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.

26The 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.

27The 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.

28Paulus, 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.

29Ulpianus, 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.

30Marcianus, 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.

31Paulus, 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.

32The 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.