Ad Dig. 22,6,10BOHGE, Bd. 1 (1871), S. 114: Die Rechte unbevormundeter Pflegebefohlnen können durch ihre Handlungen oder Unterlassungen nicht verwirkt werden.Papinianus, Opinions, Book VI. Youths who have not arrived at puberty and act without the authority of their guardians are not considered to know anything.

The Same, Opinions, Book VI. A son under paternal control, who is a soldier, cannot contract matrimony without the consent of his father.

The Same, Opinions, Book VI. A centurion appointed a curator for his son who was a minor, but his appointment was not confirmed by a decree of the Prætor. If the curator did not transact any business, he cannot be held responsible for either contumacy or negligence; for the privilege of soldiers does not extend to wrongs committed against another, and ignorance with reference to others is not pardonable where the last wills are concerned, except in the case of the property of soldiers. The guardianship of children is, in fact, governed by the right of paternal control, and not by the advantage attaching to military service.

Papinianus, Opinions, Book VII. A testator solemnly indicated his wishes in a will, several copies of which were made at the same time; and he afterwards removed and erased some of these which had been deposited in a public place. Whatever provisions were legally made by said will, and which could be established by the other copies of the same which the testator did not remove, were not held to have been annulled. Paulus states that if the testator defaced the will in order that he might die intestate, and if those who desired to inherit ab intestato were able to prove this, the heirs mentioned in the will would be deprived of the property.

Papinianus, Opinions, Book VI. When the Senate disapproved of testamentary appointments of heirs which were obtained by intrigue, it did not include such as were dictated by mutual affection, but those in which a condition was imposed for the purpose of secretly obtaining an advantage through the will of another.

The Same, Opinions, Book VI. A man who was not in the army appointed his freedman heir to certain property derived from his mother which he possessed in Pannonia, and appointed Titius heir to his paternal estate, which he held in Syria. It is established by law that each of the heirs would be entitled to half of his estate; but the court having jurisdiction of the distribution of the same followed the last will of the testator, and adjudged to each of the heirs what he had left them, after having required them to furnish security against any proceedings which might be instituted under the Falcidian Law; that is to say, that they should reserve the right to retain a fourth of the bequest, so that whatever each of them might have to pay could be set off by means of an exception on the ground of bad faith. 1Lucius Titius and Publius Mævius, having been appointed heirs, the first to two shares of an estate, and the second to three shares of the same, I gave it as my opinion that the intention was that the estate should be divided into nine parts, for the reason that the value of the two shares had been deducted by the testator from the value of the other three. In this same manner, the ancient authorities decided that where a sum of money was bequeathed to Titius, and the kind of coin was not specified, this could be ascertained by an examination of the other legacies bequeathed by the testator. 2Where children were appointed heirs to equal portions of an estate, and afterwards the son of a brother was appointed for two shares, it was decided that the intention was that the ordinary division of the estate should prevail; and accordingly that the children should receive ten shares of the same. A bequest is understood to have been made with a view to doubling the number of shares where the estate having been specifically bequeathed, or the twelve shares distributed, the remaining share can not be found. It makes no difference, however, in what place an heir has been appointed without a share, provided he appears to have received the remainder of the estate. 3Seius appointed Mævius heir to a portion of his estate, which he could take according to law, and appointed Titius heir to the remainder. If Mævius could take the entire estate, Titius, who was added to, or substituted for him, would not be an heir.

The Same, Opinions, Book VI. But if Mævius was not capable of taking under the will the substitute would be entitled to the entire estate.

Papinianus, Opinions, Book VI. In accordance with the terms of the Civil Law, it is not permitted to make a substitution after the fourteenth year. A party who cannot be admitted as a substitute cannot be admitted as an heir, lest, against the will of the testator, the son may in the meantime fail to obtain what his father gave him by his will.

Papinianus, Opinions, Book VI. A centurion directly substituted an heir for his son: “If he should die without issue before reaching the age of twenty-five years.” The substitution for the son would acquire his estate by Common Law if the latter should die before his fourteenth year; after that age, however, he could not, under military privilege, acquire anything more than the estate of the father and the profits derived from the same found among the effects of the son.

Papinianus, Opinions, Book VI. Where a testator appointed several heirs, and said: “I substitute them all reciprocally”, and, after his death, the estate was entered upon by some of them, one of the heirs being dead, if the condition upon which the substitution depended is fulfilled, and another heir rejects his share, all of it will belong to the survivors, because they are held to have been substituted for one another with reference to the entire estate. If, however, the testator should appoint heirs and say: “I substitute them reciprocally”, those will be held to have been substituted who accept the estate.

The Same, Opinions, Book VI. An heir was substituted for his co-heir, but died before he entered upon the estate, or the condition upon which the substitution depended was fulfilled. Both shares of the estate will belong to him who was substituted, either before the substitution of the heir, or afterwards; nor will it make any difference whether the substitute dies after or before the appointed heir. 1By the following words: “I substitute them for one another”, the share refused by one of the heirs will go to those mentioned in the will, in proportion to what they themselves obtain by their appointment, or what has been acquired by the person to whose control they are subject. 2Where a father makes a substitution for his daughter, or for a grandson who occupies the place of his son, or who has held it after the execution of the will, the pupillary substitution becomes void if any of these should not belong to the family of the testator at the time of his death. 3If a father should appoint his son his heir and request him, if he should die before reaching the age of puberty, to give his estate to Titius, it has been established that the lawful heir of the son shall be forced to surrender the estate of his father, with the exception of the right granted by the Lex Falcidia, just as if the estate had been granted in trust to the heir of the said minor after his death. The same rule should be observed when a condition upon which the substitution depends is expressed in ambiguous terms, and extends beyond the age of puberty. This, however, will only apply where the will of the father is valid in law; for if the instrument which he drew up as his will is not valid, it will not be admitted as a codicil unless this is expressly stated, nor will the property belonging to the son be bound by the trust. Therefore, if the father has disinherited the son, and left him nothing, the trust will be void. Otherwise, if the son has received either a legacy or a trust from his father, the trust of the estate with which he is charged will be due in proportion to the property which he has received, without reference to the proportion allowed by the Falcidian Law. 4Where a testator bequeathed different shares separately to several heirs, and after doing so said: “I substitute my heirs for one another”, he is held to have substituted those joined in the first place reciprocally, and if they do not accept their shares, all the other coheirs should be admitted. 5Where a testator appointed a father and his son heirs to a share of his estate, and substituted them one for the other, and then bequeathed the rest of his property to their co-heirs, and afterwards disposed of the entire estate as follows: “I substitute all of these heirs reciprocally”, the question arose as to his intention, and whether by mentioning all of them he included the father and son in the substitution of the co-heir, or whether he only intended the will to apply to all the others. The latter opinion appears to be the more probable, on account of the special substitution which he made with reference to the father and son. 6Where a co-heir is given to a son under the age of puberty, who has also been substituted for him, he will be obliged to pay any legacies bequeathed under the substitution, just as if he had received a part of the estate absolutely, and another part of it conditionally. The same rule will not apply in case of the substitution of another, for he will bring about the application of the Lex Falcidia, just as if the heir had clearly been appointed under a condition in the first place; although the co-heir given to the son would certainly be entitled to the entire fourth of his share, for where a legacy was granted to Titius by the will, and the same property was given to Sempronius by the substitution, Sempronius will share the property with Titius. 7Where a father having two daughters, both under the age of puberty, made a pupillary substitution for the one who should survive, and the daughter who had not reached puberty died, being survived by her sister who had attained that age, it was held that the substitution was void, both with reference to the first daughter above mentioned, because she did not die last, as well as with reference to the second one, because she had reached the age of puberty. 8It was held that a substitution expressed in the following terms is not defective: “If my son should die before reaching the age of puberty, which I trust will not be the case, then let Titius be my heir in his stead and to his portion”; any more than if he had directed him to be substituted as his heir, after prescribing a certain condition; for where anyone is appointed an heir to certain property, and a co-heir has not been appointed, he will be entitled to the entire estate.

Papinianus, Opinions, Book VI. “Let the one of my brothers who marries his cousin Titia be the heir to two-thirds of my estate, and the one who does not marry her be the heir to the remaining third of the same.” If the cousin should die during the lifetime of the testator, both of the brothers will be entitled to equal shares of his estate, because it is true that they were appointed heirs, but were entitled to different shares in case the marriage took place.

Papinianus, Opinions, Book VI. Soldiers only leave by will such property as they own.

Papinianus, Opinions, Book VI. A centurion, by a second will, appointed his posthumous children his heirs, but did not appoint any substitutes for them; and, as none were mentioned, stated that reference should be had to his first will. It was held that everything included in the second will was void, except the appointment of the posthumous heirs; unless, after having referred to his first will, he expressly confirmed all that was contained in the second.

The Same, Opinions, Book VI. An estate is also held to be legally bequeathed where a codicil to a will is executed; hence, if the testator bequeaths half his estate by a codicil, the heir, appointed to all of it by the will, will be entitled to half, and any legacies left by the will must be divided in common, when they are paid. 1A soldier, after having appointed different heirs, some to what he obtained in the service and others to property otherwise acquired, subsequently designated still other heirs for his property obtained in the service. He is held to have taken from the first will whatever he bestowed by the second, but he is not considered to have changed his first will, even though but one heir was appointed thereby. 2A soldier, when drawing up his last will, not being aware that his wife was pregnant, made no mention of the unborn child. A daughter having been born after his death, the will appeared to have been broken, and the legacies not to be due. If, however, in the meantime, the appointed heir should have paid the legacies, prætorian actions would be granted the daughter to recover the property, on account of this unexpected event, and the appointed heir, since he was a bona fide possessor, will not be obliged to make good anything which he can not recover from the estate. 3A discharged soldier, at the time of his death, wished that a will which he had executed in accordance with the Common Law during his term of service should be void, and preferred to die intestate. It was decided that the appointments of heirs and the substitutions for them would remain unaltered, but that those who claimed legacies under the will would be barred by an exception on the ground of bad faith, in accordance with the Common Law, and that the force of this exception would be regulated according to the standing of the persons who made the demand; otherwise, all other things being equal, the condition of the possessor is preferable. 4A soldier having made a will according to the Common Law, subsequently made one in accordance with military law disposing of all his property a year after his discharge from the service. It was held that the force of the first will was destroyed and could not be restored.

Papinianus, Opinions, Book VI. A son under paternal control, who belongs to the Equestrian Order and is enrolled in the retinue of the Emperor, as soon as he is ordered to join the army, can make a will disposing of his castrense peculium.

The Same, Opinions, Book VI. Pannonius Avitus, while acting as the Imperial Steward in Cilicia, was appointed an heir, but died before he learned of his appointment. His heirs, as representatives of the deceased, petitioned for complete restitution, because in that capacity, they could not take possession of the estate now claimed by his Deputy, and which, according to the strict construction of the law, he was not entitled to; because Avitus had died within the time appointed for its acceptance. Marcellus, in the Book of Questions, states that the Divine Pius rendered a contrary decision with reference to a party who was at Rome as the member of an embassy, where his son, being absent, had failed to obtain the possession of property which descended from his mother, and that, without respect to this distinction, there was ground for restitution. This rule should also in the interest of justice be applicable in this case. 1The emancipated son of a person accused of treason, who is certain of the innocence of his father, can obtain his estate while the examination of the case is pending. 2It is established that a son has acted in the capacity of heir, when, at the time of his death, he knew that his mother had died intestate, and asks his heir in a codicil to manumit a slave belonging to his mother’s estate, and to erect a monument for himself and his parents on land forming part of her estate.

The Same, Opinions, Book VI. Where a mother is substituted for her son under the age of puberty, there is ground for the application of the Edict, if, having relinquished her testamentary rights, she obtains possession of the estate of her son by operation of law. The same rule applies if she should be appointed the heir and also the substitute of her son. 1A brother is not considered to come within the terras of the Edict, so far as the legacies are concerned, who did not emancipate his son who had been substituted for a boy under the age of puberty by the will of his brother; but he will obtain possession of the property of the estate through him on the ground of intestacy. 2An action in favor of the legatees will be granted by the decree of the Prætor against a party who was not appointed testamentary heir, if he participated in a fraudulent agreement with the appointed heirs in order to obtain sole possession of the estate by operation of law.

Papinianus, Opinions, Book VI. A man appointed his posthumous children his heirs, and, in case none should be born, substituted his wife, and he was said to have been killed by his slaves, and his wife died; the woman’s heirs petitioned that the estate should be given to them by virtue of the substitution. I gave it as my opinion that they should only be heard if the wife was proved not to have been pregnant, and declined to enter upon the estate on account of the Decree of the Senate. If, however, she should die while pregnant, no complaint could be made that any injury had been done to them.

The Same, Opinions, Book VI. The time for demanding the possession of the property of an estate shall not be delayed on account of any question arising out of the poisoning; and the claim may properly be made while the proof of the crime is still in abeyance. The Senate determined otherwise where a master was said to have been killed by his slaves, because as it was necessary that the freedom of said slaves should not be granted them at once, in order that they might be put to the torture. A granddaughter, who had demanded possession of the estate of her grandmother, being aware that she had been killed, did not avenge her death. It was held that a trust which the grandmother owed to her granddaughter, by virtue of the will of another, should not be deducted from the estate of the grandmother, when it was confiscated by the Treasury, for the bad faith of the heir must be punished. 1If, however, the woman had lost the benefit of the bequest through mere negligence, it is just that the trust should be deducted, the right of the obligation remaining unimpaired. 2Where persons guilty of murder have been discharged through the injustice of the Governor, it is held that the heirs should not be deprived of the estate if they have properly discharged their duty, even though they may not have appealed from the decision.

The Same, Opinions, Book VI. A soldier sent a letter to his sister which he directed her to open after his death, and stated therein, “I wish you to know that I give to you eight hundred aurei,” it was established that a trust was created in favor of the sister, and that better evidence of his last will could not be left by anyone. For it was held that the trust would stand, just as if the deceased had spoken to the party himself, on whom he conferred the benefit indirectly. 1Ad Dig. 31,75,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.A man who was appointed heir to a portion of an estate, and was also left certain preferred legacies, died before entering upon the estate. It was held that his share belonged to his co-heirs who had been appointed substitutes, but that what was included in the preferred legacies with which his co-heirs had been charged would descend to his own heirs.

Papinianus, Opinions, Book VI. An heir appointed to a share of an estate also received a legacy by the will. The testator afterwards regarded him with intense hatred, and intended to make another will which he began, but could not finish, and passed the party over without mentioning him. His rights of action as heir could, indeed, not be denied him, but if he should claim the legacy, he could be barred by an exception on the ground of bad faith.

The Same, Opinions, Book VI. An heir who alleges that a codicil is false, and does not prove his case, shall not be deprived of the estate. If, however, his co-heir was charged by the same codicil with a trust for his benefit, an action to compel the execution of the trust will be refused him. Therefore, if the deceased made a distribution of his property among his heirs by means of the codicil, the party who asserts that it is forged will retain his hereditary share, except where a legacy has been left to him in trust; but he cannot enjoy the benefit of the Falcidian Law, if, in that part of the estate which he forfeited there should be enough property to make up for the Falcidian portion which he lost under the just principle of set-off.

The Same, Opinions, Book VI. Where a trust has been left to be executed by children, “If any of them should die without issue,” it will not be invalidated by the legal fiction of adoption.

The Same, Opinions, Book VI. A father appointed his emancipated son his heir, and disinherited his daughter, who, having brought an action to declare the will inofficious, recovered half of the estate. I gave it as my opinion that her brother should not be compelled to place his own property in the mass of the estate; for it has been established that under such circumstances even bequests of freedom are valid.

The Same, Opinions, Book VI. A son under paternal control, with the consent of his father, took prætorian possession of an estate as the next of kin to the deceased. Although he should be excluded from the estate by the condition stated in the will, if he remained under the control of his father, still he must be considered to have obtained possession legally. He is not liable to the penalty of the Edict, as he did not obtain possession in accordance with the provisions of the will; as in that way he could not hold the property, nor was it in his power to comply with the condition, as a father cannot easily be forced to emancipate his son.

Papinianus, Opinions, Book VI. Prætorian possession can be obtained by an agnate of the eighth degree, as the heir-at-law, even if he would not have been the true heir, but it is not granted to a cognate who is next of kin, although he would have been the true heir. 1A nephew, who had been appointed heir to a part of his paternal uncle’s estate, having alleged that his uncle was deaf, and therefore could not make a will, obtained possession of his estate as being the nearest cognate of the deceased. It was decided that the time should be reckoned from the day of his death, for the reason that it did not seem to be probable that anyone so closely related by blood to the deceased could not have been aware of his illness.

Papinianus, Opinions, Book VI. A cognate of an inferior degree is not entitled to the benefit of the Successory Edict, when one in the first degree has obtained prætorian possession under his own Section of the Edict. Nor will it make any difference whether the cognate, first in degree, obtained the right of rejection on account of his age. Hence it was decided that the property is legally escheated to the Treasury as being without an owner.

The Same, Opinions, Book VI. Where a female slave was manumitted by the will of a soldier, as follows, “I direct that Samia shall obtain her freedom,” it was held that she obtained her freedom directly in accordance with military law.