The Same, Questions, Book VI. An estate may exist under the law even though it does not include anything corporeal. 1Where a bona fide possessor erects a monument to a deceased person for the purpose of complying with a condition, it may be said because the wish of the deceased is observed in this matter, that if the expense of erecting a monument does not exceed a reasonable amount, or more than that ordered by the testator to be expended for this purpose, the party from whom the estate is recovered will have the right to retain the amount expended, by pleading an exception based on fraud; or he can recover the same by a suit on the ground of business transacted, or, as it were, for attending to matters connected with the estate. Although by the strict rule of law heirs are not liable to any action to force them to erect a monument, still, they may be compelled by Imperial or pontifical authority to comply with the last will of the deceased.

Papinianus, Questions, Book VI. Where the son of a person who was appointed heir to a certain portion of an estate was ignorant of the fact that his father had died during the lifetime of the testator, attended to the share of the estate in behalf of his father, as if he was absent, and, having sold certain property, collected the purchase-money of the same; an action for recovery could not be brought against him because he did not hold the purchase-money, either as heir or as possessor, but as a son who had transacted business for his father; but an action on the ground of business transacted would be granted to the other co-heirs, to whom a share of the estate of the deceased belonged. The following, therefore, should not give rise to apprehension, that is to say, that the son should be held liable to the heirs of his father (by whom perhaps he was disinherited), because he was, as it were, attending to their business which was connected with the estate; since the matter in which he was engaged did not belong to the estate of his father; for it is only just that, where an action based on business transacted is brought in behalf of another, what is collected for someone else ought to be given up to the party entitled to it. But, in the present instance, the business did not belong to the father, as he had ceased to exist, nor did it belong to the paternal succession, since it arose out of the estate of another. When, however, the son becomes the heir of his father and raises the controversy that his father died after he had become the heir; the question arises whether he may be considered to have changed the character of his right of possession? Nevertheless, as a party who has been transacting the business of an estate, and has become indebted on account of it, and afterwards raises a controversy with reference to the succession, can be sued as a possessor of a right; it must be held that, in this instance, the same rule is also applicable to the son.

Papinianus, Questions, Book VI. Where suit is brought for a ship against a possessor in bad faith, an estimate of the profits must be made, just as in the case of shops and ground which is ordinarily leased. This is not contrary to the rule that an heir is not forced to pay interest upon money which has been deposited but which he does not handle; for although it is true that freight, like interest, is not derived from nature but is collectible by law; still, freight can be demanded in this instance, because the possessor of the ship is not required to be liable to the plaintiff for risk, but money is loaned at interest at the risk of the lender. 1Generally speaking, however, where a question arises concerning the estimation of profits, it is established that it must be considered, not whether the possessor in bad faith has enjoyed them, but whether the plaintiff would have been able to enjoy them, if he had been permitted to be in possession of the property. Julianus also adopted this opinion.

The Same, Questions, Book VI. Where a depredator rents urban estates, what he receives as rent cannot be recovered in an action by the party who paid it, but the trespasser will be liable to the owner. The same rule applies to money paid for transportation in ships which a person of this kind leased or controlled, as well as to compensation to slaves whose services were leased by him; for, indeed, where a slave who is not hired out pays the price of his services to a trespasser, as if he were his owner, the money paid does not become the property of the receiver. If such a party receives money for transportation by ships which he hired out as the owner, or the rent of tenants, he will be liable for money paid which was not due to him, and the party who pays is not released by doing so; so that it is usually held that suit can be brought to recover the profits from a trespasser, and this only can take place where the profits belonged to the owner.

The Same, Questions, Book VI. It is generally settled that although a personal action may be brought after issue has been joined, liability attaches to all the accessories to the property. The reason for this opinion is, that the property ought to be delivered in the same condition in which it was when suit was brought for its recovery, and therefore, that all crops that have been obtained, and any offspring born of slaves must be surrendered.

Papinianus, Questions, Book VI. If security is not given for the payment of a legacy, and the estate is transferred, the legatee shall be placed in possession of such property as has ceased to form part of the estate through the fraud of him to whom it was transferred.

Papinians, Questions, Book VI. Where freedom is granted through mistake, under a forged codicil, although it is not due, still it must be granted by the heir, and the Emperor has decided that twenty solidi must be paid to the heir by each slave who is liberated. 1When an appointed heir manumits a slave for the purpose of complying with a condition, and the son, by subsequently bringing an action to declare the will inofficious gains his point, or the will is pronounced forged, the result will be that in this case the same course must be pursued as is prescribed in the one involving a forged codicil.