Africanus, Questions, Book IV. When an action is brought for the recovery of an estate, all the profits acquired by the possessor must be surrendered, even where the plaintiff himself would not have obtained them.

Africanus, Questions, Book IV. Ad Dig. 16,1,17 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 18.A husband, desiring to make a present to his wife, sold her property at a very low price, and substituted her for that price to one of his creditors. The answer was that the sale was of no force or effect, and if the creditor sued the woman for the money, an exception would be available, even if the creditor has thought that the woman was the debtor of her husband. This does not seem to be contrary to the established principle, in accordance with which if a woman has borrowed money for the purpose of lending it to her husband, an exception cannot be interposed if the creditor was ignorant with what intention she borrowed it; since, indeed, it makes a great deal of difference whether anyone contracts with a woman in the first place, or transfers the obligation of another to her, for then the creditor should be more diligent. 1Ad Dig. 16,1,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 8.If a woman should say that she had received certain property in pledge to secure her dowry as well as the payment of a sum of money, and a creditor who was about to take the same property in pledge, should see that the dowry was paid, and, being in possession, opposes her when she brings the Servian Action on the ground that the pledge had not been given with her consent; a replication, based on the Decree of the Senate, will be of no advantage to the woman, unless the creditor was aware that other money, exclusive of that of the dowry, was also due to her. 2A woman and Titius borrowed money for the purpose of expending it upon property belonging to them in common, and they became joint-debtors for the said money. I said that the woman could not, by any means, be held to have given security for the share of her partner; for if they had borrowed money for a purpose for which the creditor did not lend it, the woman would sustain the greater loss, (as, for instance, where a house jointly owned by them was not propped up, or where a tract of land held in common was confiscated) and it should rather be considered that there was no ground for the application of the Decree of the Senate. But where the borrowed money was obtained for some purchase, then she would be held to have become surety for her share, and therefore the creditor could only collect part of the money from her; because, if he claimed the entire amount, he would be barred by an exception with reference to a portion of the same.

Africanus, Questions, Book IV. The guardian of a ward died after having appointed Titius his heir. The latter hesitated to accept the estate, because the guardianship was supposed to have been badly administered, and the mother of the ward having persuaded Titius to enter upon the estate at her risk, he did so, and made an agreement with her that she would indemnify him against any loss he might sustain. If Titius should be compelled to pay anything to the ward on account of the estate, and should sue the mother, it was denied that an exception based on the Decree of the Senate would be available, for it is scarcely to be supposed that any woman would become surety for a party in his presence. 1A proposition not unlike the one above mentioned was proposed, namely: A certain man of prætorian rank died leaving two sons, one of whom had not arrived at puberty, and the other who was the legal guardian of the first. The former wished to reject his father’s estate, but was prevailed upon to accept it by the wife of the deceased, who was the mother of the ward, the latter having refused it. Julianus says that he would have given a similar opinion if the guardian had had judgment rendered against him in a case brought by the ward on this account; and that he would not have been prevented by the Decree of the Senate from recovering damages from the woman. 2In this connection, the following point should be discussed, that is, if he who had entered upon the estate by the direction of the woman, suffers any loss because the debtors of the estate are insolvent, would the Decree of the Senate be applicable, since the woman had, to a certain extent, assumed their obligations? The better opinion is, however, that the Decree of the Senate would not be available on this ground, since she did not intend to become surety for them, but her intention was to guarantee the guardian against the ward, and perhaps the estate against other creditors. 3Finally, if we suppose that the woman suffered some loss on account of the purchase of the estate, because the debtors of the same were not solvent; I do not think that there can be any doubt that the Decree of the Senate will not apply, even though she was obliged to pay a certain amount to the creditors. 4But what if Titius should hesitate to enter upon the estate, because the obligations of the debtors seem to be of doubtful value; and the woman promised that she, herself, would make good whatever he failed to collect from any of said debtors? It is probable that, in this instance, she has become liable. 5Ad Dig. 16,1,19,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 11; Bd. II, § 487, Note 7.You have Titius for your debtor, and the woman desires to become surety for him, and you did not accept her on account of the Decree of the Senate; whereupon she applied to me for the purpose of borrowing money with which to pay you, and I, being ignorant of the reason for her making the loan, she made a promise to me to pay it, and directed me to pay you the money. Then, for the reason that I did not have the sum on hand, I bound myself to pay it to you. The question arose whether I could collect that money from the woman, or whether an exception based on the Decree of the Senate could be effectually pleaded by her? The answer was, that it should be considered whether it might not reasonably be said that I could be held liable in the place of the party who had become surety for the woman, and that, just as an exception is granted against a creditor, although he may be ignorant that a woman has become security for him, lest an action on mandate may be available against the woman, so a valid exception can be granted against you, and an action against the woman will be refused me, since this obligation would be at her risk. This can the more readily be stated if, before I had paid you the money, I should discover that the woman had become the surety; but if I should have previously paid you, it should be considered whether or not, an exception would, nevertheless, be granted the woman against me, and I can bring a personal action against you to recover the money; or whether, in fact, it should be held that in the beginning I had lent the money to the woman, and afterwards you had made a loan to me. This indeed was held to be the better opinion, so that there was no ground for the Decree of the Senate, just as where a woman substitutes her debtor there is no ground for considering this as security. The authority states that these two examples cannot properly be compared with one another, since, when the substitution of the debt is made, the woman is not bound; but in the case stated she transfers the obligation of another to herself, which it is certain the Senate did not wish to be done.

Africanus, Questions, Book IV. Where a posthumous child has been disinherited in the first degree, and passed over in the second, even though it was born at the time when the estate belonged to heirs appointed in the first degree, it is held that the will is broken with reference to the second degree, so that if the heirs who have been appointed fail to enter upon the estate, it itself will become the heir. Nay more, if the heirs who have been appointed fail to enter upon the estate after its death, the substituted heirs cannot do so. So if the posthumous child who was disinherited in the first degree, passed over in the second, and disinherited in the third, should die while the first heirs are deliberating whether they will accept the estate or not, it may be asked if the first ones should reject the estate, whether it will belong to those who are appointed in the third degree, or to the heirs-at-law. In this instance it is also held to be more equitable that it should belong to the heirs-at-law. For in a case where two heirs have been appointed and substitution has been made for each of them, and the posthumous child has been disinherited in the first degree, and passed over in the second, if either of the appointed heirs should not accept the estate—even though the posthumous child may have been excluded—still the substituted heir cannot be admitted. 1While it is commonly asserted that the rule having reference to a degree in which a child is passed over is not valid, this is not true in every instance; for if a son has been appointed heir in the first degree, he should not be disinherited in the substitution. Therefore, where a son and Titius have been appointed heirs, and Mævius was substituted for Titius, Titius having refused the estate, Mævius can enter upon it, even though the son may not have been disinherited in the second degree. 2If anyone should make the following statement in his will: “I disinherit So-and-So, whom I know is not my son”; a clause of this kind will be of no force or effect, where it is proved that the party referred to is the son of the testator; for a son is not held to have been disinherited merely because his father spoke disparagingly of him at the time, and added that he disinherited him for this reason, and it is proved that the father was mistaken with reference to his motive for disinheriting him.

Africanus, Questions, Book IV. Where a son is appointed heir by his father, who passes over a posthumous child, and his grandson who is the son of the said heir is afterwards substituted for him, and the son, in the meantime, dies, and the posthumous child should not be born, the said grandson will be the heir of both his father and grandfather. Where, however, no one is substituted for the son, and he alone is appointed heir, then, for the reason that, at the time when the son died, it begins to be certain that there will be no heir under the will, the son himself will become the heir of his father if the latter dies intestate; just as frequently happens where a son who is under the control of his father is appointed heir under some condition, and dies before he has complied with it.

The Same, Questions, Book IV. Where it is stated in a will, “Let Titius, not Seius, be my heir”, the opinion was that Seius alone will be the heir. Where, however, the following words are used: “Let Titius be my heir, not let Seius be my heir,” the same rule will apply. 1A certain testator appointed his heirs as follows: “Let Titia, my daughter, be my heir; and if any children are born to me during my lifetime, or after my death, then let one or more of those of the male sex who are born inherit half and a quarter of my estate, and let one or more of those of the female sex who may be born be heirs to the fourth part of my estate”; a posthumous male child was born to the testator, and it was asked what portion of the estate he would inherit. The answer was that the estate should be divided into seven parts, and that the daughter would be entitled to four of them, and the posthumous child to three; for the reason that the entire estate was bequeathed to the daughter, and three-fourths of it to the posthumous child, so that the daughter was entitled to a fourth more than the posthumous child. Therefore, if a posthumous daughter has also been born, the first daughter should be entitled to as much as both the posthumous children together. Hence, in the case stated, as the entire estate was given to the daughter, and three-fourths of it to the posthumous child, it should be divided into twenty-one shares, so that the daughter might have twelve shares and the son nine. 2Where the following provision was made in a will: “Let Lucius Titius be the heir to six shares of my estate, Gaius Attius to one share, Mævius to one share, and Seius to two shares”, the question arose as to what the law would be in this case. The answer was that the will should be interpreted in such a way that Lucius Titius should have one-sixth, and the others, as they had been appointed without definite shares, should be the heirs to the remainder of the estate, which should be divided so that Seius would receive five shares, and Attius and Mævius the remaining five between them.

The Same, Questions, Book IV. A testator who had two sons not yet arrived at puberty, substituted a certain person as heir of the survivor. If both should die at the same time, it was held that the substitute would be the heir of both, because the survivor is understood to mean not only one who comes after another, but also he whom no one succeeds; just as, on the other hand, the first is understood to mean not only one who comes before another, but also him who has no one before him. 1A testator appointed a son, who had not reached puberty, and Titius, his heirs. He substituted Mævius for Titius, and for his son he substituted any of his heirs who had previously been mentioned by him. Titius rejected the estate; Mævius entered upon it. The son having afterwards died, it was decided that the estate of the minor, which was derived from the substitution, would go to Mævius, as the sole heir who had entered upon the estate of the father. 2Even though application may be made for the possession of the estate contrary to the will of the father, the pupillary substitution will still be valid, and all the legacies bequeathed under said substitution should be paid.

Africanus, Questions, Book IV. The decision that a will executed during military service is also valid for a year after the discharge of the testator from the army seems by its terms to show that this privilege can only be enjoyed by those who are regularly discharged. Hence, neither prefects, tribunes, or other officers who cease to serve when their successors arrive will be entitled to it.

The Same, Questions, Book VI. A certain man ordered his slave, who had been appointed an heir to accept the estate, and before he did so, the master became insane. It is said that the slave cannot legally enter upon the estate, as an estate cannot be acquired without the consent of his master, and an insane person cannot give his consent.

Ad Dig. 29,2,49Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 5.Africanus, Questions, Book IV. It is held that a ward, who enters upon an estate even with the consent of his guardian who does not transact his business, is rendered liable.

Africanus, Questions, Book IV. Where an heir is appointed by two wills executed by the same testator, and is in doubt as to whether the last one may not be forged, it is held that he cannot enter upon the estate by virtue of either. 1A son under paternal control, having been appointed an heir, notified his father that the estate appeared to him to be solvent. His father replied that he had been informed that there was a question as to its solvency, and therefore that he should examine it more carefully, and accept it if he found that it was solvent. The son having received the letter of his father, entered upon the estate. It was doubted whether he did so according to law. It may be said to be more probable that if he was not thoroughly convinced that the estate was solvent, his father would not be liable. 2If anyone should say, “If the estate is solvent, I will accept it”, such an acceptance is void.

Africanus, Questions, Book IV. If of two sons who had been emancipated one was appointed an heir, and the other was passed over in the will, and the one appointed should enter upon the estate, it is held that, although a case of this kind is not expressly referred to by the terms of the Edict, still, the son who was appointed heir cannot demand prætorian possession of the estate because he has accepted the will of his father. For the Edict does not permit an emancipated son to obtain prætorian possession if he has received the legacy, whether he received it from the appointed heir, or from those who under the Prætorian Law claim possession contrary to the provisions of the will. It must, however, be observed that the Prætor should protect the appointed heir who accepts the share of the estate left him by the will, provided he does not receive a larger share of the same than he would have been entitled to, if he had obtained prætorian possession; and it is in this respect only that he can prejudice himself. But if he was appointed heir to a small portion of the estate, he can only retain that portion, and he will be compelled to pay any legacies which may be due to foreign heirs. Where the appointed heir is under paternal control, and he becomes a necessary heir, it may be said that he can demand prætorian possession of the estate, provided he has not interfered in its affairs, for if he has, he will be considered to occupy the same position as an emancipated son, because he has approved the will of his father. 1A son, while a member of an adoptive family, married and had a son, and emancipated him after the death of his adoptive father. It was held that his grandson could, by a decree of the Prætor, claim possession of the property of the estate of his natural grandfather, in opposition to the will of the latter. Again, if an emancipated son, after having himself had a son, and emancipated him, should give himself to be arrogated, and die after the death of his adoptive father, there can be no doubt that, under a decree of the Prætor, he would be entitled to prætorian possession contrary to the provisions of the wills of his father and grandfather, in order to prevent him from otherwise being excluded from the estate of both of them.

Africanus, Questions, Book IV. A son and grandson were under the control of their father, were appointed his heirs, and the testator, in addition to this, left a legacy to the grandson. The father of the latter, another son, who had been emancipated, demanded prætorian possession of the estate, and the grandson remained content with the legacy. Certain authorities were of the opinion that an action to recover the legacy should be granted to the grandson against the son alone who remained under his father’s control, because he was deprived of nothing, and the son who was emancipated obtained the share of his son, which could not be burdened with a legacy. The more just decision is that an action would lie only against the emancipated son, and, indeed, for not more than a fourth of the estate,

Africanus, Questions, Book IV. An emancipated son is not obliged to place in collation the dowry which he gave to his daughter, because it is not understood to be included in the property of the father from whom it was derived, as it is in that of the mother.

Africanus, Questions, Book IV. The person whom I declare to be my son, and under my control, died. A minor, under the age of puberty, appeared, who alleged that the deceased was the father of a family, and that the estate belonged to him. It was held that the decree should be rendered. 1Again, my emancipated son died intestate, leaving a son under the age of puberty, who alleged that he was the direct heir. I maintain the latter was conceived before emancipation took place, and, for this reason, was under my control, and that the estate of the emancipated son belonged to me. It was established that this child was the son of the deceased, but a question arose as to his legal condition, that is to say, whether he was under the control of his father, or not; and there is no doubt whatever that the Carbonian Edict is applicable in this instance.

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

The Same, Questions, Book IV. “Let Stichus, or rather Pamphilus, be free.” It was decided that Pamphilus should be free, for the testator appeared to have, as it were, corrected a mistake. The same rule will apply where it was stated in a will, “Let Stichus be free, or rather let Pamphilus be free.”

Africanus, Questions, Book IV. If I say that anyone who alleges that he is the head of a household is my son, and under my control, and that, by my order, he has entered upon an estate, I ought to assert my claim to it, and have recourse to the interdict under which I can take my son away with me.

The Same, Questions, Book IV. The terms “property” and “estate” apply to everything taken together, including the right of succession, but not to individual articles.