The Same, Questions, Book XXIX. Ad Dig. 22,1,6 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 259, Note 7.Where a controversy arose with an heir, which had reference to a transaction involving the property of a father or master, and the question of interest was discussed, the Emperor Antoninus decided that interest should be paid, for the reason that the master himself or the father had paid it for a long time. 1Our Emperor Severus also ordered that the sum of ten thousand sesterces should be paid out of the Treasury by way of dowry, to the daughter of Flavius Athenagoras, whose property had been confiscated, because she alleged that her father had paid her interest on her dowry.

Papinianus, Questions, Book XXIX. An heir who had not reached the age of puberty, and who had been arrogated after proper investigation, died. Just as in the case of heirs-at-law, by Imperial authority, a bond must be furnished, so, if a natural father has substituted an heir for his son under the age of puberty, recourse must be had to the substitute; for only prætorian actions can be granted to heirs-at-law.

The Same, Questions, Book XXIX. In estimating the amount due under the Falcidian Law, any property which has been retained by the heir at any time is included in the fourth of the estate to which he is entitled. 1Where a slave is to become free under a certain condition, and the condition is fulfilled at any time whatsoever, the heir will not be held to have sustained any loss, so far as his fourth interest in said slave is concerned. If, however, the condition should fail to be fulfilled, an opposite opinion must be adopted, and the value of the slave should be estimated at what he was worth at the time of his death. 2The Emperor Marcus Antoninus decided that heirs who have been deprived of their shares of an estate shall not be liable for a larger sum for legacies than the remainder amounts to. 3Where a certain individual was sentenced to be banished after the confiscation of half his property, and having taken an appeal made a will and died, and, after his death, his appeal was decided to have been improperly taken, the question arose whether the half of his estate which had been forfeited to the Treasury should be considered as a debt, and the remaining half alone should constitute his estate; or whether it would be necessary to come to the relief of the heir. It appears that relief should be granted the heir, as the intention of the testator who took the appeal, and his evident desire warrant this opinion. 4Where a slave manumitted by a will dies before the estate is entered upon, it is understood that the heir must sustain the loss. But how can his value be estimated, who, if he had lived, could not be appraised? For those who, at the time of the death of their master, are attacked by a disease which renders it certain that they cannot live, and they afterwards die, it has been decided that the loss must be borne by the estate. Nor is the case different with respect to those who are under the same roof when the master was killed by his slaves. 5Ad Dig. 35,2,11,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 652, Note 21a; Bd. III, § 653, Note 11.Let us examine what is the effect of the common rule, namely: “But one Falcidian portion can exist in the will of a father and his minor sons.” For, although the substitute may have been charged with the distribution of property left by the minor, when he becomes the heir he will only be liable for it as an ordinary debt; still, on account of other legacies left by the pupillary substitution, there will be ground for contribution. Hence it may happen that the substitute cannot retain anything from the father’s estate, or that he may obtain much more than the fourth to which he is entitled by the Falcidian Law. But what if the estate of the minor should not be sufficient to pay the legacies, while that of the father would have been sufficient to pay those which he bequeathed? The substitute will certainly be required to employ his fourth for their payment, as the father made the bequests out of his own estate, and it makes no difference that payment cannot be required beyond the assets of the estate by any will; for in this instance, the legacies left under the pupillary substitution are understood to have been bequeathed, as it were, conditionally, by the original will. 6Where a testator makes a substitution of two persons for his son, and charges each one with the payment of a legacy, the question arises: can the substitute personally claim the Falcidian portion which the minor does not possess, or shall there be but one substitute for the minor? Anyone might (in conformity to what has been already laid down with reference to the established rule governing estates), easily say that the Falcidian Law will not apply, and that suit can be brought against the other substitute for an amount over and above his share. The opposite opinion is, however, the better one, as it should be held that he has the right to deduct his fourth, just as if he had become the heir of his father; for as it is from this that the property of the father and the distribution of the legacies derive their form and origin, so where there are several substitutes, and the person of the minor is not to be considered, recourse must be had to the meaning of the appointment. But what shall we say with reference to the other substitute who was not charged, so that, if the minor should die before paying the legacies with which he was burdened, and they amount to more than three-fourths of the estate, will he be authorized to deduct the Falcidian portion from all of them? But he still has the fourth, and the same conclusion cannot be arrived at as in the case of the other appointment. Again, if we deny that this should be done, it must be held that such a course is contrary to the general rule. Therefore, a difference exists, as he who was charged in his own name can retain the fourth just as if he had been appointed an heir, and the other substitute, who was not charged, although his share may be increased, cannot be sued for the entire amount, on account of confusion in the estimate. The result of this is that if security with reference to the Falcidian portion was furnished to the minor, it will enure to the advantage of both parties; that is to say, so far as the amount which each one will be able to retain for himself is concerned. 7Where a testator appointed a co-heir with his minor son, the question arose: in what way should the portion authorized by the Falcidian Law be ascertained, and what was the meaning of the ordinary rule that it should apply separately to different legacies? I said that, with reference to any legacies with which a father charged his son, as well as those with which he charged a substitute, no separation can be made, as they should be subjected to a common estimate and both must contribute in turn; but where legacies with the payment of which a foreign heir is charged are bequeathed, they cannot be mingled with the others, and therefore the substitute will be entitled to a fourth of the share which was given to the minor, although he may be entitled to his own share as the appointed heir. Another rule, however, is applicable where an heir is appointed to different portions of an estate; for in this instance the legacies will be merged not less than if he had been appointed but once to one share which is composed of several; and it does not make any difference whether he was appointed heir to the several shares absolutely, or under different conditions. 8Where anyone substitutes an heir who has been appointed instead of his disinherited son, and charges him with the payment of a legacy by the second will, the legacies are necessarily merged; and therefore Julianus says that those with the payment of which the substitute was charged are valid, because he is the heir of the father.

Papinianus, Questions, Book XXIX. A disinherited son died while the testamentary heir was deliberating whether or not he would accept the estate, and he finally rejected it. The grandson, by the said disinherited son, will be the heir of his grandfather, nor will his father be considered as an obstacle to this, since it was after his death that the estate came to the grandson as heir at law. It cannot be said that the grandson is the heir, but not the direct heir, of his grandfather, because he was never in the first degree; as he himself was under the control of his grandfather, and his father did not precede him in the succession. And, besides, if he was not a direct heir, under what right will he be the heir, as there was no doubt that he was not an agnate? Moreover, even if the grandson should not be disinherited, the estate can be entered upon by the testamentary heir after the death of the son. Therefore, if the father was no obstacle to the son by the right of intestacy, he will be considered to have been an obstacle under the right conferred by the will. 1Parents are not entitled to the estates of their children in the same manner as children are entitled to the estates of their parents. It is only the consideration of compassion which entitles parents to the estates of their children, but children obtain those of their parents on account of the intention of nature, as well as that of their parents.

Papinianus, Questions, Book XXIX. When a father dies in the hands of the enemy, we consider that his son, who has already died in his own country, was the head of the household at the time of his death; although, as long as he lived, he was not completely released from paternal authority. Therefore, this son can have an heir, if his father does not return from captivity. If, however, his father should return after the death of his son, he will, under the law of postliminium, be entitled to whatever property the former acquired in the meantime; and there is nothing extraordinary in the fact that, in this case, the peculium of the deceased son will pass to the father, as the former has always been under his control by the constitution which establishes that the right has only been in abeyance.

Ad Dig. 39,5,27Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 368, Note 11.Papinianus, Questions, Book XXIX. A young man named Aquilius Regulus wrote to Nicostratus, his teacher of rhetoric, as follows: “Because you have always remained with my father, and have benefited me by your eloquence and your care, I give, and permit you to lodge in and make use of, such-and-such an apartment.” Regulus having died, the right of Nicostratus to the apartment was disputed; and when he consulted me, I told him that the act of Regulus could not be maintained to be a mere donation, but that he had remunerated him for his services, and granted him this privilege by way of compensation, and therefore, that the donation should not be held to be void for the time following the death of Regulus. If Nicostratus had been ejected, he could have gone into court and protected himself by an interdict, in the same way in which an usufructuary could have done, as he obtained the use of the apartment through having been given possession of the same.

Papinianus, Questions, Book XXIX. If a donation mortis causa made between husband and wife takes effect, the donation is referred to the time when it was made.

Papinianus, Questions, Book XXIX. A father, having appointed his son, who had not yet arrived at puberty, his heir, and made a substitution for him, was captured by the enemy, and died in their hands; and the minor, having afterwards died, it was held by some authorities that the heir at law should be admitted to the succession, and that the pupillary substitution did not apply to one who had become his own master during the lifetime of his father. The reason of law, however, is opposed to this opinion; for the reason that as the father, who did not return, is understood to have been dead at the very time that he was taken prisoner, the pupillary substitution would necessarily be valid. 1If, after the death of the father, a minor who had been appointed or disinherited should be taken prisoner, it might be said that the Cornelian Law, not having mentioned pupillary substitutions, only had reference to a person who had testamentary capacity. It is clear, however, that the right to the lawful estate of a minor who is a captive does not immediately vest by the terms of the Cornelian Law, because it is true that a minor is not qualified to make a will, and therefore it would not be improper to hold that the Prætor should follow the intention of the father no less than that of the law, and grant the substitute equitable actions against the estate.