Modestinus, Opinions, Book VI. I hold a tract of land in common with a female minor who is also my co-heir, and in said land remains are buried to which reverence is due from both of us; for the parents of the minor are buried there. Her guardians, however, desire to sell the land, but to this I do not consent, as I prefer to retain possession of my own share, since I cannot purchase it all, and I wish to discharge my duty to the dead in accordance with my own judgment. I ask whether I can legally petition for an arbiter in an action for the partition of said tract of land; or whether the arbiter who is appointed for the partition of an estate can discharge the functions of his office and also divide the said property between us according to the rights of each; the remaining assets of the estate being left out of consideration. Herennius Modestinus answered that there was nothing in what was proposed to hinder the party appointed arbiter in the action for the partition of the estate from including in his duties the matter of dividing the said tract of land; but religious places could not be brought into the action, as the rights with respect to them belong to the individual heirs interested in the entire estate.

The Same, Opinions, Book VI. A guardian died without leaving an heir. I ask when a curator was appointed for his ward, and no inventory, nor any other document has been produced by the surety, whether the said surety can be sued on the stipulation, for the amount of the interest of the ward? Modestinus answered that the surety may be sued for the same amount for which an action can be brought against the guardian. 1Modestinus was of the opinion that the guardian would in no way be responsible where he was not guilty of negligence, if the ward should suffer any injury because receipts for taxes paid were not found. 2Modestinus held that a guardian should render an account to his ward for any income which he could have collected in good faith from land belonging to her. 3He also stated that if a guardian collected less from a slave placed in charge of land, than he should have collected in good faith, he could, for this reason, retain as much of the peculium of said slave as he was liable for to the female ward, and that this would be an advantage to the said guardian; provided he had not entrusted the management of the property to a wasteful slave. 4A minor, with the consent of his curator, sold a tract of land to Titius, and afterwards, having ascertained that he had been cheated, obtained complete restitution, and was ordered to be placed in possession of the property. I ask, since he did not profit by the said sale, and it was not proved that any advantage had been obtained by him with reference to his property, whether the price should not be returned to the purchaser? Modestinus answered that as the price of the land sold by the curator did not add to his pecuniary resources, and nothing had been decided with reference to it at the time when restitution was ordered by the court, the purchaser would present his claim in vain. 5He also gave it as his opinion that the minor should not be obliged to account for any expenses incurred by the purchaser for the sake of ornament; but if the improvements could be detached from the building in such a way that it could be left in its former condition (that is, as it was before the sale), the purchaser must be allowed to remove them. 6Lucius Titius was the co-heir and curator of his sister, and as he was a resident of a district in which it was customary for the owners of land, and not the lessees, to sustain the burdens of taxation, as well as temporary contributions, he, having followed this practice and custom, which had always been observed, paid the taxes for the common and undivided estate. I ask whether, when his accounts were rendered by the curator, objection could be taken to them that he did not incur said expenses legally, so far as the share of his sister was concerned. Modestinus answered that the curator had a right to render an account to the minor for what was complained of, because she herself would have been compelled to make the said payment if she had been managing her own affairs. 7Two guardians, after having made a sale of property belonging to their ward, divided the money among themselves; and, after this division, one of them was sent into exile during the existence of the guardianship. The question arose whether, if the exile appointed an agent, his fellow-guardian could make a demand on him for his share of the money belonging to the ward. Modestinus answered that: “If the question was whether, in case a guardian is exiled, his fellow-guardian can bring an action on guardianship; I am of the opinion that he can do so.”

Modestinus, Opinions, Book VI. Magistrates exacted security from the curators of a minor for the preservation of his property, and one of them died without leaving an heir. I ask whether his colleague will be liable to indemnify the ward from the entire amount. Modestinus answered that there is no reason why he should not be required to do so.

Ad Dig. 46,3,76Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 16.The Same, Opinions, Book VI. Modestinus holds that payment having been made of everything that was due on a tutelary account without any agreement, if, after a certain interval, the rights of action are assigned, the assignment is void, because no such right remains. If, however, this was done before payment, or if it was agreed between the parties that the rights of action should be assigned, and payment is made, and the assignment afterwards takes place, the rights of action will remain unimpaired; as, even in the last instance, the price of those which were assigned seems rather to have been paid than that the right which existed at the time has been extinguished.