Paulus, Questions, Book II. Where a judge has been appointed, he remains in office even though he becomes insane, because he was properly appointed judge in the beginning; but a serious illness excuses him from presiding, and therefore some one should be appointed in his stead.

Paulus, Questions, Book II. Where anyone with the intention of rejecting the estate does not attack a will as inofficious, the share to which he is entitled to does not stand in the way of any others who may wish to institute proceedings for that purpose. Wherefore, when one of two children who have been disinherited institutes proceedings to have the will of their father declared inofficious—for if the will is set aside, the other son will have a right to the succession on the ground of intestacy, and therefore cannot legally bring suit to recover the entire estate—if he should gain his case, he can avail himself of the authority of res judicata, since the Centumviri, when they declared the maker of the will intestate would have believed that this is the only son living. 1When judgment is rendered against a testament on the ground of inofficiousness, the deceased is considered not to have been competent to make a will. This opinion is not to be approved where a decision is rendered in favor of the plaintiff and the heir does not defend the case; as, in this instance, it is not understood that the law is established by the decree of the Court, and therefore manumissions are sustained and actions can be brought for legacies.

Ad Dig. 5,2,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 584, Noten 24, 27.The Same, Questions, Book II. A mother, when about to die, appointed a stranger heir to three-fourths of her estate, and one daughter an heir to one fourth of the same, and passed over another daughter; whereupon the latter brought suit to declare the will inofficious, and gained her case. I ask to what relief the daughter who was appointed heir is entitled? I answered that the daughter who was passed over should bring an action to recover whatever she would have received if her mother had died intestate. Therefore, it may be said that she who was passed over, even if she brings suit for the entire estate on intestacy and succeeds, will be entitled to the exclusive succession, just as if the other daughter had renounced her lawful share. It should not be admitted, however, that the former may be heard against her sister if she institutes proceedings on the ground of inofficiousness. Moreover, it must be said that the sister who entered upon the estate in compliance with the provisions of the will, is not in the same position as the one who was passed over, and therefore the latter must bring suit to recover half of the estate from a stranger; and it may be held that in this way she can recover half, because the entire half belongs to her. According to this, the entire will is not set aside, but the testatrix is rendered intestate to a certain extent, even if the Court declares the will void as having been executed by a person who was insane. But if anyone should think that where a daughter gains her case the entire will be rendered void, it must be held that the sister who was appointed heir on intestacy can enter upon the estate, for since she enters in compliance with the terms of the will, which she thought was valid, she cannot be considered to have rejected her lawful share of the estate, to which, indeed, she did not know that she was entitled; for when persons are aware of their rights they do not lose them, if they select a course which they believe they can pursue. This happens where a patron, induced by an incorrect opinion, accepts the will of a deceased freedman; for he is not held to have rejected the possession of the estate in contravention of the will. From this it is evident that the daughter who was passed over cannot legally bring suit to recover the entire estate, since, if the will were set aside, the right of the one appointed heir to enter upon the estate remains unimpaired.

Paulus, Questions, Book II. We have no less right to bring suit to recover something which is our own, because it is expected that we will lose the ownership of the same, if the condition upon which a legacy or a grant of freedom depends should be complied with.

Paulus, Questions, Book II. If my house is so distant from yours that neither can be seen from the other, or a mountain stands between them and cuts off the view, a servitude cannot be imposed upon one for the benefit of the other.

Ad Dig. 10,2,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 4.Paulus, Questions, Book II. I, being under the impression that you were my co-heir, although this was not true, brought an action for partition against you, and adjudications were made and orders issued by the Court, to make payment to both of us. I ask whether, when the truth of the facts is ascertained, a personal action will lie in favor of each of us, or one to recover the property; also whether one rule is to be adopted with reference to a party who is an heir, and another with reference to one which is not. I answered that where a person is heir to an entire estate and, thinking that Titius is his co-heir, joins issue with him in an action in partition, and a decision directing payment is rendered, he makes payment; then, since he did this in compliance with the decision of the judge, he cannot bring an action to recover the money. You, however, seem to hold that no action in partition can exist except between coheirs; but although the action is not legal, still, it is sufficient to prevent the suit to recover what the party believed he was obliged to pay. But, if neither of the parties was an heir, yet joined issue in an action for partition just as if they were heirs, the same rule for recovering the property which we previously stated applies to one of them must be said is applicable to both. It is evident that, if they divided the property without application to the court, it may be stated that the heir who thought the other party was his co-heir has a right of action for the transfer of the property delivered to the latter; for it cannot be held that there was any compromise between them since he believed him to be his co-heir.

Paulus, Questions, Book II. Where anyone holds land in common with Titius, and, believing that he held it in common with Mævius, expends money thereon; it is very properly held that an action for the partition of common property will be sufficient for him; for this is the case if I know that the property is common but do not know who my co-heir is, as I am not transacting the business of my co-heir, but am managing my own property; and the action arises rather with reference to the property on which the money was expended, than on the person of the joint owner. In short, we hold that this action is the one under which a ward would be liable, in an application to the court to compel him to reimburse expenses. The case is different where a man thinks that he is spending money on his own property, while in fact it is held in common; and in this instance he will neither be entitled to an action in partition, nor will an equitable action be granted him; for anyone who knows that property is owned in common or belongs to another transacts his business with a view to render him liable to himself, even though he may be mistaken with reference to the person. 1Pomponius says that anyone of a number of joint-owners can demand a judge; but where anyone of the said joint-owners remains silent, an action for the division of common property may properly be brought against him.

Paulus, Questions, Book II. Where a party answers that a slave who belongs to another is his, and suit is brought against him in a noxal action, the actual owner will be released. It is otherwise, however, where anyone confesses that he killed a slave whom someone else killed, or where anyone answers that he is an heir; for, in these instances, he who committed the act, or he who is the actual heir, is not released. These things do not conflict with one another; for, in the first instance, two parties are liable on account of the person of a slave, just as we say they are liable where a slave is owned in common, and if one is sued the other is discharged; but a party who confesses that he killed or wounded anyone is liable on his own account, nor should the crime of the person who committed it go unpunished on account of him who answered, unless the party making the confession was acting as the defender of him who committed the offence, or of the heir, and appeared in the case for this purpose; for then an exception will be granted and the plaintiff will be barred, because the former can recover what he paid by an action either on the ground of business transacted, or on that of mandate. The same rule applies where a party states that he is the heir by direction of the heir himself, or he, for any other reason, wishes to appear in his defence. 1Where anyone is asked in court whether he is in possession of a certain tract of land; I ask whether he can be compelled to answer as to how much of the said land he is in possession? I replied that Javolenus states that the possessor of land is obliged to answer as to the amount of said land which he holds in his possession; so that if he alleges that he is in possession of the smaller portion, the plaintiff shall be placed in possession of the other portion with reference to which no defence is made. 2The same rule applies where we give security against threatened injury; for in this instance the party should also answer what portion of the land belongs to him, so that he may arrange the stipulation with respect to said portion; and the penalty in this case, where the party does not promise, is that we should take possession; and therefore, on this account it is essential to know whether the party is in possession of said premises or not.

Paulus, Questions, Book II. If the vendor of two tracts of land should make statements with reference to the measurements of each, and then deliver both for a single price, and the full amount should be lacking to one of the tracts, but the other should contain more; for example, if he stated that one of them contained a hundred jugera, and the other two hundred, it would be of no advantage to him if one of them was found to contain two hundred, and the other fell short ten. A decision on this point is given by Labeo. But can it be doubted that an exception on the ground of bad faith will be available by the vendor? For instance, if a very small portion of woodland was lacking, and the tract included a larger extent of vineyard than had been promised, would not he who availed himself of his perpetual right be guilty of fraud? For in the case where the amount of land is found to be greater than had otherwise been stated, this is not for the benefit of the vendor, but for that of the purchaser; and the vendor is liable whenever the measurement is ascertained to be short. Let us see, however, whether the vendor has no cause of complaint with reference to the same land, where the vineyard is found to include more than the meadow, and the measurement of the whole is correct. The same question may arise in the case of two tracts of land, as where anyone sells two slaves conditionally entitled to their freedom, for one price, and says that one was ordered to pay ten aurei when he should have paid fifteen; for he will be liable to an action on sale, even if the purchaser should have received twenty aurei from the two. It is more just, however, in all the above mentioned cases, for the profit to be set off against the loss, and if anything is lacking to the purchaser, either in the measurement or the quality of the land, he should be indemnified for the same.

Paulus, Questions, Book II. The possessor should surrender a child born to a female slave after issue has been joined, but he is not obliged to give it up if it was born before proceedings were instituted for the recovery of the mother, unless the plaintiff expressly brought the suit for said child.

Paulus, Questions, Book II. If anyone should prevent a creditor from obtaining possession of the property of his debtor, an action for the amount of the value of the property shall be granted against him in favor of the creditor. 1Where anyone is placed in possession of property for the purpose of preserving his legacy, he will not be permitted to take possession, if the condition on which the legacy is dependent is in suspense; and although it may fail to be fulfilled, still, the property bequeathed should be appraised, because it is to the interest of the legatee to have security. 2Moreover, a creditor, the payment of whose claim is conditional, is not placed in possession; because he only is given possession who has a right to sell the property under the Edict.

Paulus, Questions, Book II. When we stipulate as follows, “Whatever you must give, or pay, or do,” nothing more is included in such a stipulation than what is due at the present time, for it does not provide for anything else.