Ad Dig. 2,15,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 566, Note 3.Scævola, Opinions, Book II. A controversy arose between an heir-at-law and a testamentary heir, and a compromise having been made, the matter was settled under certain conditions. I desire to know against whom the creditors can bring an action. The answer was that if the creditors were the same who made the compromise, whether others were present or not, on account of the uncertainty of the succession, an action should be brought against each one of the heirs for the share of the estate which each obtained by virtue of the compromise.

Scævola, Opinions, Book II. Having been interrogated with reference to a contract for the sale of land dependent upon payment, I answered that, if anything was done by the purchaser to prevent the execution of the contract, and the vendor wishes to enforce it, the land would remain unsold; and whatever had been paid by way of earnest, or for any other reason, should remain in the hands of the vendor. 1The same opinion was given that, where the land remained unsold on account of non-compliance with the contract, whatever might be classed as accessories should not remain in the possession of the purchaser. 2Ad Dig. 18,3,6,2ROHGE, Bd. 24 (1879), Nr. 16, S. 56: Anspruch auf Konventionalstrafe wegen Verspätung der Hauptleistung ungeachtet vorbehaltloser Annahme der Letzteren.A vendor received the remainder of the purchase-money after the day mentioned in the contract of sale. The opinion was that the vendor should be considered to have renounced the privilege of the contract, if he did not enforce its execution, and receive the balance of the money due after the day fixed for its payment.

Scævola, Opinions, Book II. The vendor of the right of succession to an estate received a portion of the price, but the purchaser did not pay him the remainder. The question arose whether the property belonging to the succession could be held on the ground of pledge? I answered that there was nothing in the facts stated to prevent it from being so held.

Scævola, Opinions, Book II. Titius, the agent of Seius, was appointed the heir of the latter at his death, and Titius, not being aware that he was dead, sold a tract of land through a slave belonging to the estate, and signed his name as agent. The question arose whether the agent could have annulled the sale, if he had known of the death before the purchase was concluded? The answer was that if Titius himself had not sold the property, he would not be liable to a civil action, for the reason that he signed the contract of the slave who made the sale, but that he would be liable to a prætorian action in the name of said slave.

Scævola, Opinions, Book II. Titius, the heir of Sempronius, sold a tract of land to Septicius as follows: “I sell you the field which belonged to Sempronius, together with any rights enjoyed by Sempronius in the same, for so much money.” He delivered the mere possession of said land, but did not point out the boundaries of the same. The question arose, whether he could be compelled in an action on purchase to show by documents belonging to the estate what rights the deceased had in said land, and to point out its boundaries? I answered that everything should be done under this written contract, which the parties understood to have been intended. If this cannot be ascertained, the vendor must produce the documents relating to the land, and point out its boundaries, for this is consistent with the good faith of the contract.

Scævola, Opinions, Book II. A certain individual having been appointed heir to half an estate sold all the land belonging to the same, and his co-heirs accepted the price. The land having been lost by eviction, I ask whether the coheirs will be liable to an action on purchase. I answer that if the coheirs were present, and did not dissent, each one of them was held to have sold his share.

Scævola, Opinions, Book II. A patron must clearly show that his freedman has given something for the purpose of cheating him, in order to be able to revoke a portion of what has been fraudulently bestowed.

Scævola, Opinions, Book II. Where a husband received certain lands which had been appraised, by way of dowry, and, during the existence of the marriage, with the intention of deceiving his wife, agreed that the said lands should not be considered as appraised, so that he could render them less valuable without running any risk; the question arose whether the lands which had been appraised should remain so according to the dotal estimate, and the husband be liable to their deterioration. I answered that the contract would not be affected by what was proposed, because this was done during marriage, provided the dowry was not diminished in value; still, if the land should be deteriorated after the contract was made, the woman would be entitled to a dotal action on this ground against her husband. 1Titius gave a dowry for a woman, and made a stipulation with reference to it in case of death or divorce. A divorce having taken place, Titius died without claiming the dowry, and the woman renewed her marriage with the consent of the heir. The question arose whether the heir could demand the dowry on the ground of the stipulation. I answered that the heir of Titius would be barred by an exception on the ground of contract, if he had given his consent that the amount which he could recover on account of the stipulation should become the dowry of his mother, when the marriage was renewed. 2A woman, who gave property as dowry, agreed that if she died during marriage it should be returned to her brother, and the latter made a stipulation to that effect. The wife, at her death, bequeathed certain dotal property to her husband, as well as to others, and she also manumitted certain slaves who formed a part of the dowry. The question arose whether the husband was liable to the brother for the property which the woman bequeathed, and the slaves which she manumitted. I answered that there was nothing in the facts stated why he should not be, as the heirs of the deceased, as well as the legatees were liable on account of the manumission.

Scævola, Opinions, Book II. Where lands and slaves were given to Seia during concubinage, and were afterwards returned by her at the time of her marriage, and others received in their stead, what is the law? The answer was that, according to the facts stated, a business transaction seems rather to have been concluded than a donation to have been made. 1Also, when a question arises with reference to the food of slaves, the answer was that sustenance given during the time of concubinage cannot be recovered, nor even such as was furnished during the time of marriage, if the slaves were used by the wife as well as the husband. 2Where a son was accustomed to transact the affairs of his mother, and slaves and other property were purchased with her money by her consent, and he drew up the bills of sale in his own name, and died while still under the control of his father; the question arose whether his mother could institute proceedings against her husband, and if she could, what action she could make use of. The answer was that if the mother intended that her son should be liable for said money, she would be entitled to an action De peculio against the father under whose control the son was, within a year after the latter died; and if she donated the property, she could recover it to the extent that the father profited by the said donation.

Ad Dig. 24,3,50Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 503, Note 7.Scævola, Opinions, Book II. Certain property, after having been appraised, was given by way of dowry, and an agreement was drawn up stating that if the dowry was to be returned for any reason whatsoever, the identical property should be given up, and an account taken of its increase or diminution in accordance with the judgment of a good citizen; and so far as any property which was no longer in existence was concerned, its value should be estimated in accordance with its original valuation. The question arose whether, in case certain property which the husband had sold was still in existence, it should belong to the woman in accordance with the agreement. I answered that if such property was in existence, and had been sold without the consent of the woman or her subsequent ratification, it must be returned; just as if no appraisement had taken place.

Scævola, Opinions, Book II. By a decree of the Prætor, a guardian was appointed for Seia, who had passed the age of twelve years, after an investigation had been made, just as in the case of a minor. I ask whether he should be excused? I answered that, according to the facts stated, an excuse was not necessary, and that he could not be held liable for not assuming the guardianship.

Scævola, Opinions, Book II. A certain man appointed Titius and Mævius guardians, and added the following provision: “I wish and I request that everything be done with the advice of my brother Mævius, and that anything which is done without it be void”. Titius alone collected the debts from the debtors; were the latter released from liability? I answered that if the testator committed the entire administration to Mævius, payment was not legally made. 1“Marina and Januaria shall fix an amount which will be sufficient for the daily expenses of my son.” I ask whether the guardians should be satisfied with the judgment of these two women. I answered that the amount of the expense should be established by the judgment of some good citizen. 2Guardians appointed for the administration of an estate in Italy found at Rome certain obligations of debtors resident in the province, for the payment of the money at Rome, or anywhere else that it might be demanded. As the debtors were not in Italy, nor any of their lands situated therein, I ask whether the collection of these claims was a part of the duty of the guardians of the estate in Italy. I answered that if the contract had been made in the province they were not concerned in it; but that it was part of their duty not to permit those entrusted with the administration of the estate in the province to remain in ignorance of the existence of said claims. 3Where a testamentary guardian, appointed by a mother, considering himself to be a genuine guardian, sold both the maternal and the paternal estates of the ward and died insolvent, the question arose whether the ward could bring an action for the recovery of the property. I answered that if the property still belonged to the ward, it could be recovered by him. 4The prefect of a legion inserted the following provision into his will: “I wish it to be left to the discretion of the guardians of my son to determine whether only one per cent interest per annum shall be paid on the money belonging to my estate, in order to prevent it from being dissipated”. I ask, if it should be ascertained that the money was lent at interest by the said guardians, whether they would only be liable in an action on guardianship for the interest at one per cent, or for the rate for which they had stipulated. I answered that if they chose to pay the amount of interest in accordance with the will of the deceased, and had not lent the money at interest in the name of the ward, they would merely be liable for the amount mentioned by the testator. 5Lucius Titius borrowed money from a guardian, and gave him in pledge property to which he was entitled by inheritance, and three years afterwards, the ward, whose guardianship was being administered, having arrived at puberty, the estate of the deceased was confiscated, because his heir did not avenge his death. The question arose whether the ward could refuse to consider the above-mentioned claim. I answered that, according to the facts stated, liability for the said claim did not attach to the guardian. 6One of two brothers, associated in the partnership of property and business, having died, left his son his heir; and the uncle of the latter, who was his guardian, after having sold all the merchandise belonging to the firm, purchased it himself, and conducted the business in his own name. The question arose whether he would be obliged to make good to the ward his share of the profits of the business, or merely the interest on the money. I answered that, in accordance with the facts stated, he must pay the ward interest, and would not be obliged to give him a share of the profits. 7The guardian of an estate in Italy, having been sued by a provincial creditor, paid him in the place where the ward had property. The question arose whether he could include this in an action on guardianship. I answered that there was nothing in the facts stated to prevent him from doing so.

Scævola, Opinions, Book II. A testamentary guardian stated in the presence of the Prætor that he had three children; and added that the minor had an uncle who was his legal guardian, and that he himself had been improperly appointed. The decree of the Prætor was as follows: “If you have been appointed guardian for a minor who has a legal guardian, it is not necessary for you to apply to be excused.” I ask, when there is really no such uncle who can be the guardian of the minor, whether the appointment of the testamentary guardian will nevertheless stand. I answered that, according to the case stated, although the party may have good reasons to be excused, still, he cannot be released on account of the irregularity of his appointment. 1I also ask, if the guardian acquiesces in the decree, whether an equitable action can be granted against him, for the reason that he did not transact the business of the guardianship. I answered that if he failed to administer the guardianship, rather through mistake, because he alleged that he was legally exempt on account of his three children and thought that he ought to be excused, rather than from malice, an equitable action should not be granted.

Ad Dig. 28,5,86Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 546, Note 11.Scævola, Opinions, Book II. Lucius Titius, who had a brother, made the following provision in his will: “Let my brother Titius be the heir to my entire estate. If Titius is unwilling to be my heir, or (which is something that I do not wish to happen) if he should die before entering upon my estate, or should not have a son or daughter born to him, then let Stichus and Pamphilus, my slaves, be free, and heirs to equal portions of my estate.” I ask, if Titius should accept the estate, and should have no children at that time, whether Stichus and Pamphilus can become free and heirs, by virtue of the substitution. I ask also, if they can be neither free nor heirs under the said substitution, whether they can be held to be co-heirs to a portion of the estate. The answer was that it is clear that it was not the intention of the testator to appoint any co-heir with his brother, whom he had evidently designated as heir to his entire estate. Hence if the brother enters upon the estate, Stichus and Pamphilus will not be heirs, for the reason that the testator did not wish them to be, if his brother should die and leave children before accepting it. The wise disposition of the testator must be noted, as he not only gave preference to his brother over the substitutes, but also to his brother’s children.

Scævola, Opinions, Book II. A certain person had a son and a daughter, both under the age of puberty, and having appointed his son his heir, he disinherited his daughter, and substituted her for his son, “If the latter should die under the age of puberty”; and then he appointed his wife and his sister as substitutes for his daughter, if she should die before being married. I ask, if the daughter should die first, after having reached the age of puberty, and her brother afterwards, before reaching that age, whether the estate of the son would by the right of substitution belong to the wife and sister of the testator. I answered that, in accordance with the facts stated, it would not belong to them.

Scævola, Opinions, Book II. The question arises whether a minor under puberty has obtained possession of an estate by the Carbonian Edict, and reaches that age before the possession has been transferred to him, can perform the duties of plaintiff. The answer was that he must introduce proof of any claim which he makes against the possessor.

The Same, Opinions, Book II. Can the freedman of a merchant who deals in clothing conduct the same business in the same town, and in the same place, if his patron is unwilling for him to do so? The answer was that there is no reason, in the case stated, why he cannot do so, if his patron sustains no injury thereby.

Scævola, Opinions, Book II. I ask what should be decided in the case of one who accused his freedman of the crime of burglary. The answer was that if the offence of which he was accused was such that, if it were proved, the freedman would be sentenced to the mines, the patron should be denied prætorian possession of the estate.

Scævola, Opinions, Book II. A woman, dying intestate, left a sister, Septitia, the daughter of another father, and her mother pregnant by a second husband. I ask, if the mother should reject the estate while she is still pregnant, and should afterwards have a daughter named Sempronia, whether the said Sempronia can obtain prætorian possession of the estate of her sister Titia. The answer was that, according to the facts stated, if her mother was excluded from the estate, she who was subsequently born could obtain prætorian possession of the same.