THE DIGEST OR PANDECTS.
CONCERNING TRIALS AND WHERE ANYONE OUGHT TO BRING SUIT, OR BE SUED.
1. Ulpianus, On the Edict, Book II.
Where persons voluntarily agree to submit to the jurisdiction of some
court, then this case can be heard by any judge who presides over said court,
or has jurisdiction therein, so far as the consenting parties are
2. The Same, On the Edict, Book III.
To "agree" is considered to mean that parties who are aware that they
are not subject to the jurisdiction of a certain judge, nevertheless consent
that he shall preside. If, however, they think that he has jurisdiction, he
will not, merely for that reason, have it; for, (as Julianus says in the First
Book of the Digest) the mistake of litigants does not constitute an agreement;
or, where they think that a person is a prætor who is not one, this error
does not also confer jurisdiction, nor does any jurisdiction exist where one of
the litigants refuses to comply with the decision of the prætor and is
forcibly compelled to do so.
(1) Is it sufficient for private parties to agree with one another, or
is the consent of the prætor also necessary? The Lex Julia on
Trials says, "In order to prevent private persons from coming to an agreement".
Hence, if private persons do agree, and the prætor is not aware that they
have done so, and he thinks that he has jurisdiction, should it not be
considered whether the requirements of the law have been complied with, or not?
And I think it may be held that he has jurisdiction.
(2) Where anyone is appointed judge for a certain time, and all the
litigants agree that the time which he ordered to hear the case may be
extended, this may be done; unless an extension of time was especially
prohibited by order of the Emperor.
(3) The right is granted deputies to have a case transferred to the
place of their residence, where some contract was entered into by them before
they were appointed; and similar privileges are conceded to those who were
summoned to give evidence, or have been sent for or appointed to go to some
province to preside as judges. Where a party has himself appealed, he is not
required to answer in proceedings in-
stituted by others during the time of his appeal at Rome, or elsewhere;
for Celsus states that, in this instance, the case may be transferred to the
place of his residence, since he came to Rome for some other purpose. This
opinion of Celsus is a reasonable one. For the Divine Pius stated in a Rescript
to Plotius Celsianus, that a party whom he had summoned to Rome for the purpose
of rendering the account of a guardianship could not be compelled to join issue
in a case involving another guardianship in which he had not been summoned. He
also stated in the Rescript to Claudius Flavianus that a minor under
twenty-five years of age who petitioned for complete restitution against one
Asinianus who had come to Rome on some other business, had no right to be heard
(4) All these persons can have their cases transferred to the places of
their own domicile, if they did not contract where suit was brought against
them. If, however, they made the contract there, they have not the right of
removal; except envoys who, although they may have contracted at Rome, provided
they did so before their mission, are not compelled to defend themselves in
that city, so long as they remain there as envoys. This Julianus also held, and
the Divine Pius stated in a Rescript. It is evident that if they remained at
Rome after their mission was concluded, then, as the Divine Pius stated in a
Rescript, suit can be brought against them there.
(5) Moreover, if they entered into a contract outside of their own
province, but not in Italy, the question arises, can they be sued at Rome?
Marcellus states that they can only use the privilege of having a case
transferred to the place of their residence, when they entered into the
contract in their own city, or, at all events, in their own province; which is
true. But if they themselves bring an action, they must defend themselves
against all others; but not, however, where they bring suit for injury done to
them, or for theft, or for damages which they have sustained during their
absence from home; otherwise, as Julianus very properly says, they would have
to endure insult and loss without being able to obtain redress; or anyone, by
attacking them would have the power to subject them to jurisdiction1
as soon as they claim reparation.
(6) If, however, any doubt should arise whether anyone in a case of this
kind can have it transferred to the place of his residence or not, the
prætor should decide the question after investigation. If he should
determine that the party had a right to have the case transferred to the place
of his residence, the latter must make arrangements to appear in court for
trial, after the prætor has fixed the day of his appearance. Marcellus
doubts whether he should merely execute a mere undertaking to appear, or give
security to do so, and it seems to me that his promise alone would be
sufficient, and this Mela also stated; otherwise, he would be compelled to join
issue instead of finding persons to give security for him.
(7) In all cases in which time is extended, this should be done without
causing any loss to creditors by lapse of time.
1 That is to say the jurisdiction of the tribunals at Rome.
(8) The right of imposing a fine is conferred upon those who hold the
position of public judges, and to no others, unless this is specially granted
3. The Same, On the Edict, Book IV.
A person is not presumed to conceal himself for the purpose of avoiding
a suit, if, even while he was present, he could not be compelled to join
4. Gaius, On the Provincial Edict, Book I.
We have no legal right to bring an action against a person who is under
our control, unless with reference to castrense peculium.
5. Ulpianus, On the Edict, Book V.
Where a party is summoned before the prætor from another
jurisdiction, he must appear, as is stated by Pomponius and Vindius; as it is
the duty of the prætor to decide whether he has jurisdiction, and those
who are summoned should not treat the "authority of the prætor with
contempt; for envoys and other persons who have the right to have their cases
transferred to the places where they reside, are in such a position that they
must appear, after having been summoned, in order to state their
6. The Same, On the Edict, Book VI.
A blind man can perform the duties of a judge.
7. The Same, On the Edict, Book VII.
Where anyone has become a soldier, or subject to some other jurisdiction
after he has been summoned to appear in court, he will not have the right to
have his cause transferred, because he has been, as it were, anticipated.
8. Gaius, On the Provincial Edict, Book II.
Where anyone, during his mission, agrees to make payment of an
obligation which he contracted before becoming an envoy, he cannot be compelled
to defend himself in the place where he made the promise.
9. Ulpianus, On the Edict, Book IX.
The islands belonging to Italy are a part of Italy, and the adjacent
islands are a part of each province.
10. The Same, On the Edict, Book X.
A party is understood to "desist", not when he defers the case, but
where he abandons it altogether; for to desist means to relinquish any
proceeding which he had begun for the purpose of annoyance.
(1) It is evident that if anyone, after he has ascertained the facts in
the case, gives it up, being unwilling to persevere in an action which is
unjust, and which he did not institute for the purpose of causing annoyance, he
is not held to have desisted.
11. The Same, On the Edict, Book XII.
If anyone is arrogated by me who had previously joined issue in a suit
which he had brought against me, or which I had brought against him, Marcellus
says in the Third Book of the Digest that the case is terminated, because no
suit could have existed between us in the beginning.
12. Paulus, On the Edict, Book XVII.
Where the prætor forbids one of several persons to preside as
judge, he is held to have allowed the others to do so.
(1) Those authorities can appoint a judge to whom this right is granted
by a law, or by a constitution, or by a decree of the Senate. By a law; for
example, this right may be conferred upon a proconsul. He also can appoint a
judge to whom jurisdiction has been delegated, as, for instance, the deputies
of proconsuls. Moreover, those can do so to whom it has been permitted by
custom, on account of the Imperial authority which they enjoy, for instance,
the Prefect of the City, and other magistrates at Rome.
(2) Those who have the right to appoint judges cannot appoint them
indiscriminately; for some persons are prevented by law from becoming judges;
others are prevented by nature; and others, still, by custom. By nature; as
persons who are deaf, dumb, and such as are incurably insane, as well as boys
who are minors, because they are deficient in judgment. A party is prevented by
law, who has been expelled from the Senate. Women and slaves are prevented by
custom, not because they are deficient in judgment, but because it has been
established that they cannot perform the duties belonging to civil
(3) When persons are eligible as judges, it makes no difference whether
they are under the control of another, or are their own masters.
13. Gaius, On the Provincial Edict, Book VII.
In the three following actions, namely: those for partition of an
estate, the division of property held in common, and the establishment of
boundaries, the question arises who shall be considered as plaintiff, because
the condition of all the parties seems to be the same? It is the better opinion
that he should be considered the plaintiff who makes application to the
14. Ulpianus, Disputations, Book II.
Where, however, both parties apply to the court, it is customary to
determine the question by lot.
15. The Same, On the Edict, Book XXI.
Where the son of a family is a judge, and makes the case his own, he is
liable for a sum equal in value to his peculium when he rendered his
(1) A judge is understood to make the case his own when he maliciously
renders a decision in violation of law. He is held to do this
maliciously, where it is clearly proved that either favor, enmity, or
even corruption, influenced him; and, under these circumstances, he can be
forced to pay the true amount of the matter in controversy.
16. The Same, On the Edict, Book V.
Julianus thinks that where a judge makes a case his own, an action can
be brought against his heir; but this opinion is not correct, and has been
rejected by many authorities.
17. The Same, On the Edict, Book XXII.
Julianus says: That if one of the parties makes a judge his heir to
either the whole or a portion of his estate, recourse must be had to another
judge; because it is unjust for anyone to be made the judge of his own
18. The Same, On the Edict, Book XXIII.
If a long time must elapse until the judge who has been appointed can
hear the case, the prætor orders him to be changed; and this happens, for
example, where some business occupies the judge and prevents him from giving
his attention to the trial; for instance, where he is attacked by disease, or
is compelled to go on a journey, or where his private property is in
(1) Where the son of a family wishes to institute proceedings for
reparation for an injury on account of which his father has a right of action,
we only permit him to bring suit where there is no one who can do so in behalf
of his father; for it is the opinion of Julianus that if the son of a family is
absent on an embassy, or for the purpose of pursuing his studies, and suffers
theft, or unlawful damage to his property, he is entitled to bring a
prætorian action; since, if he waited for his father to bring suit, the
malicious act would go unpunished, because his father might not come, or the
party who committed the wrong might absent himself before he arrived.
Wherefore, I have always held the opinion that where the cause of action did
not arise from a malicious act, but from a contract, the son ought to bring a
prætorian action; as, for instance, where he wishes to recover a deposit,
or sue on a mandate, or for money which he had loaned; and, in that case, if
his father was in the province, and he happened to be at Rome, for the purpose
of prosecuting his studies or for some other good reason, and we did not grant
him the action, he would, in consequence, be defrauded with impunity, and live
at Rome in want, because he did not obtain the property which his father
intended for his expenses. And suppose that the son of a family in question is
a Senator, and has a father in the province; would not the equity of this be
increased by his rank?
19. The Same, On the Edict, Book LX.
When the heir is absent, he must make his defence in the place where the
deceased contracted the debt, and he must be sued there if he can be found; and
he cannot allege any peculiar privilege by way of exemption.
(1) Where anyone has been managing a guardianship or a curatorship, or
some business, or banking, or anything else from which obligations arise, in
any particular place, he must defend himself there, even if that is not his
residence; and if he does not make a defence and has no home there, he must
permit possession to be taken of his property.
(2) In like manner, if he sold merchandise in any particular place, or
otherwise disposed of it, or purchased it; it is held that he must defend
himself there, unless it had been agreed upon that he should do so elsewhere.
Shall we say then that a party who has made purchases from a merchant who is a
stranger, or sold goods to someone whom he knew was about to depart
immediately, has no right to obtain possession of his property, but must follow
the latter to the place where he resides; while if anyone makes a purchase from
a person who has rented a shop, or a warehouse, in some particular place, is he
in such a position that he can be sued there? This conclusion is the more
reasonable one, for when a party comes to a place with the expectation of soon
leaving it, you can make a purchase from him just as you could from a
traveller, or from one who is making a journey either by land or sea; and it
would be a great hardship that no matter where a man travelled either by sea or
land he could be sued, and be compelled to defend himself. But if he remains
anywhere, I do not mean by way of residence, but because he rented a small
shop, or booth, or granary, or warehouse, or office, and sells merchandise
there, he will then be compelled to defend himself in that place.
(3) The question is raised by Labeo, if a man belonging to a province
has a slave acting as his agent for the purpose of selling merchandise at Rome,
any contract entered into with said slave must be considered as if it was made
with his master; and therefore, the party must defend himself at Rome.
(4) It should be remembered that a person who is bound to make payment
in Italy, if his residence is in a province, can be sued in either place; and
this opinion is adopted also by Julianus and many others.
20. Paulus, On the Edict, Book LVIII.
It must be held that every obligation should be considered as based upon
a contract, so that, wherever anyone binds himself, he is held to have made a
contract, even though the transaction was not one of indebtedness arising out
of a loan.
21. Ulpianus, On the Edict, Book LXX.
Where I wish to institute proceedings against a debtor, the approved
course is that, if he admits that he owes the money and states that he is ready
to pay it, he must be heard, and time must be granted him for making payment
under a sufficient bond; for no great injury can result from delay for a
(1) By a "reasonable time" must be understood that which is granted
defendants for payment, after judgment has been rendered against them.
22. Paulus, On Plautius, Book III.
Where a party is not compelled to defend an action in a certain place;
if he himself brings suit there, he can be compelled to defend suits also, and
to appear before the same judge.
23. The Same, On Plautius, Book VII.
Anything which comes up after issue has been joined cannot be considered
as before the court; and therefore it will be necessary to make a new
24. The Same, On Plautius, Book XVII.
No action will lie at Rome against persons whom the Emperor has summoned
there, except where they make a contract during the time they remain.
(1) Envoys are compelled to answer in suits at Rome on account of
offences committed while there in that capacity, whether they themselves commit
them or their slaves.
(2) Where an action in rem is asked for against an envoy, and the
said action is founded on present possession, shall it be granted? Cassius
stated that the rule to be observed is that, if the action would cause the
envoy to be deprived of all his slaves, it should not be granted; but if it
only related to one slave out of several, it ought not to be refused. Julianus
says, without making any distinction, that the action should be denied, and
this is reasonable, since the action is not granted lest the party be turned
aside from the duties of the office which he has undertaken.
25. Julianus, Digest, Book I.
Where a man, while on a mission, purchases a slave, or any other
property, or, for any other reason comes into possession of the same, he is not
unjustly required to join issue in a suit having reference to said property;
otherwise, power will be given to envoys under this pretext to carry away to
their own homes the property of others.
26. Paulus, On Plautius, Book XVII.
Cassius states with reference to an envoy who entered upon an estate,
that, even where he enters upon it at Rome, an action cannot be brought against
him, lest his mission might be interfered with; and this is true. An action is
not even granted to legatees against him, but they can be put in possession of
property belonging to the estate, unless he gives security, which rule also
applies to creditors of the estate.
27. Julianus, Digest, Book I.
For what will prevent an envoy from performing the duties of his office
while there is an agent in possession of the property of the estate for the
purpose of taking care of it?
28. Paulus, On Plautius, Book XVII.
But where an estate is delivered to him under the Trebellian Decree, an
action against him will not be granted, whether the heir entered
upon the estate voluntarily, or under compulsion; for it is certainly
more convenient for the estate to be delivered to him; hence it should be
considered as if he himself had entered upon the estate.
(1) On the other hand, if an envoy, during the time of his mission,
enters upon an estate and delivers it, an action will be granted against the
beneficiary of the trust; nor will an exception under the Trebellian law be
available, on account of the position of the envoy; as this is for the personal
benefit of the latter.
(2) In those instances where an envoy is not forced to join issue in an
action, he cannot be compelled to make oath that he is not obliged to pay, for
the reason that his oath takes the place of a joinder of issue.
(3) An envoy must promise reparation for threatened injury, or permit
his neighbor to take possession of the building.
(4) Where the time for bringing an action is about to expire, the
prætor shall permit it to be brought against the envoy, if proper cause
is shown, in order that issue may be joined, and the case transferred to the
envoy's place of residence.
(5) Where the head of a family dies and leaves a son, and his widow is
pregnant, the son cannot legally collect from the debtors half the money loaned
to them, although afterwards one son should be born; because several more might
have been born, since, in the nature of things, it was certain that one child
would be born. Sabinus and Cassius, however, are of the opinion that a fourth
part of the debts might be collected, for the reason that it is uncertain
whether three would not be born, and that we need not pay any attention to the
nature of things where all are certain, as whatever is going to occur does
occur; but we should consider our own ignorance.
29. The Same, On Plautius, Book VIII.
The party who first makes application is the plaintiff.
30. Marcellus, Digest, Book I.
Wherever issue is joined, the case should also be terminated there.
31. Celsus, Digest, Book XXVII.
Where a plaintiff dies and leaves several heirs, and one of them
institutes proceedings, it is not true that everything involved in the case up
to that time is in Court; for no one can conduct a suit in court which has
already been begun by another, if his co-heir does not consent.
32. Ulpianus, On the Office of Proconsul, Book I.
Where the judge appointed to render a decision within a certain time
dies, and another is appointed in his stead, we understand that the same time
is fixed with respect to the latter, although the magistrate did not expressly
mention this when making the appointment; provided that the term prescribed by
law is not exceeded.
33. Modestinus, Rules, Book III.
A party is not held to have accepted a certain judge who asks his
adversary to state the nature of his case before that judge.
34. Javolenus, On Cassius, Book XV.
When a party dies after having joined issue at Rome, his heir, even
though he resides beyond sea, must defend the case at Rome, because he succeeds
to the place of him by whom he was appointed heir.
35. The Same, Epistles, Book X.
It is not true that, as the obligation of a surety can be left dependent
upon circumstances or contracted for at some future time, so also a suit may be
contingent, or in such terms that an obligation may be subsequently incurred;
for I do not think that anyone would doubt that a surety can be accepted before
the obligation of the principal debtor is incurred, but issue cannot be joined
before some indebtedness arises.
36. Callistratus, Inquiries, Book I.
Sometimes hearings are postponed for good reasons and on account of
certain parties; as, for instance, where documents relating to a case are said
to be in possession of persons who will be absent on public business. Therefore
the Divine Brothers stated the following in a Rescript: "Humanity demands that
postponement should be granted on account of accidental misfortunes; for
example, where a father who was a party to the case has lost his son, or his
daughter; or a wife her husband; or a son his parent; and in similar cases the
hearing should be postponed for a reasonable time."
(1) Where a senator voluntarily undertakes to attend to the affairs of
another in a province, he can not refuse to defend an action on the ground of
business transacted; and Julianus says that he must defend the action, since he
voluntarily assumed this obligation.
37. The Same, Inquiries, Book V.
Where inquiry is made concerning violence and the existence of
possession, investigation must be made of the violence before the ownership of
the property is considered; in accordance with a Rescript of the Divine Hadrian
in the Greek language directed to the Commonwealth of Thessaly.
38. Licinnius Rufinus, Rules, Book IV.
Where property is bequeathed by a legacy, and suit is brought to recover
it by an action in personam, it must be delivered where it is, unless it
has been maliciously removed by the heir; and then it shall be surrendered
where suit is brought for it. Again, a legacy consisting of articles which may
be weighed, counted, or measured, must be delivered where suit is brought for
it; unless the following words were added, "A hundred measures of corn from
such-and-such a granary", or "so many amphoræ from such-and-such a
cask". Where, however, suit is brought for a legacy by an action in rem,
it must also be brought where the property is. If the latter is movable, an
action for its production will lie against the heir to compel him to produce
it, for then suit can be brought by the legatee for its recovery.
39. Papinianus, Questions, Book III.
Where an insane person is appointed judge, the trial will not be
prevented because he cannot preside at that time; so that, when he renders a
decision after having recovered the use of his faculties, it may stand. In the
appointment of a judge neither his presence nor his knowledge is necessary.
(1) Where a party comes to Rome on a mission, he can become a surety in
any case; since he cannot make use of his privilege when he enters into a
contract in Italy.
40. The Same, Questions, Book IV.
It is not every act which can be performed by the authority of a judge
which is subjected to the restraints of the law.
(1) If a judge, in the performance of his functions, should maliciously
omit something which is contrary to the rules of law, he is guilty of an
offence against the law.
41. The Same, Questions, Book XI.
In all bona-fide actions, when the day of payment of money has
not arrived, and anyone makes application for the execution of a bond, it will
be allowed where proper cause is shown.
42. The Same, Questions, Book XXIV.
Where the wife of an envoy is divorced at Rome, it has been held that
her husband must make his defence at Rome, when the recovery of her dowry is
43. The Same, Questions, Book XXVII.
Where a person stipulates that a house shall be built for him at Capua
within a certain time; it is established that when the time has elapsed, he can
bring an action for damages for the amount of his interest, anywhere.
44. The Same, Opinions, Book II.
The functions of a judge are not interfered with by the fact that, after
a suit has been begun against all the guardians, some of them have been absent
on public business; since the administration of those who are present can be
distinguished and investigated separately from that of those who are not
(1) Where a person in whose behalf an action has been brought by an
agent is afterwards ascertained to be a slave, the debtor should be discharged;
but the principal will not be barred for this reason, if he should subsequently
decide to bring the action himself.
45. The Same, Opinions, Book III.
A banker must be sued where the contract was made with him, and, in such
a case, a postponement will not be granted except for good cause; as, for
instance, to permit his books to be brought from a province. The same rule
applies to an action on guardianship.
(1) Where the guardians of a female ward have a decision rendered
against them in a province, the curators of the ward may be comoelled to comply
with the decree at Rome, where the mother of the ward borrowed the money, and
her daughter was her heir.
46. 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.
47. Callistratus, Questions, Book I.
Care must be exercised that a person be not appointed judge, whom either
side expressly petitions for; as the Divine Hadrian stated in a Rescript that
this would offer a bad precedent unless it should be especially allowed by the
Emperor through respect for him whose appointment was requested.
48. Paulus, Opinions, Book II.
The following is a portion of a letter of the Divine Hadrian,
"Magistrates, during the year of their office, cannot institute any legal
proceedings of their own either as plaintiffs or as defendants; nor can they
act officially in any matter in which they are interested on the ground of
either guardianship or curatorship. But as soon as the term of their magistracy
has expired, it will be just and proper for actions to be brought both for and
49. The Same, Opinions, Book III.
A vendor who was called upon by a purchaser to defend him in a suit
brought by a party who claimed the property as owner, stated that he had the
right to have his own judge. The question arose whether he could remove the
case from the tribunal of the judge before whom proceedings had been begun
between the plaintiff and the purchaser to that of his own judge. Paulus
answered that it is customary for the vendor to appear before the judge of the
50. Ulpianus, Trusts, Book VI.
Where an action for the execution of a trust is brought by anyone, and
the defendant alleges that the greater portion of the estate is situated
elsewhere, he cannot be forced to execute the trust; and it is provided by many
constitutions that where an action is brought to enforce compliance with a
trust, this must be done where the greater portion of the estate is situated;
unless it is proved that the testator wished the trust to be executed where
suit was brought.
(1) The question has been raised with respect to borrowed money; whether
when the greater part of the indebtedness was in the province where suit is
brought to enforce a trust, could the action be transferred to some other
place, because the bulk of the estate was elsewhere? It was, however,
established in this instance that the fact of the indebtedness is of no
importance, as it is not dependent on the
place, but on the entire assets of the estate; for a debt is a
diminution of the entire estate, and not of the assets in any particular
locality. But what if this part of the estate were charged with some burden,
as, for instance, to furnish support which the testator ordered to be done at
Rome, or with taxes; or with any other unavoidable burdens; in these instances
would the party be entitled to have the case transferred? I think that it may
be said with great justice that he would.
(2) It has, however, been stated in a rescript that suit should be
brought to enforce a trust in the place where the heir resides. But whenever
anyone begins to make payment in compliance with the terms of the trust, he
cannot subsequently avail himself of this resource:
51. Marcianus, Institutes, Book VIII.
Even though the estate should have descended to a man who has his
domicile in a province. The Divine Severus and Antoninus, however, stated in a
Rescript that if the party should consent to discharge the trust elsewhere, he
is bound to do so in the place agreed upon.
52. Ulpianus, Trusts, Book VI.
But if the heir appears in an action on the trust and makes use of other
defences, but neglects this one, he cannot afterwards have recourse to it, even
before a decision is rendered.
(1) Where a testator directs in his will that tickets for grain should
be purchased for his freedmen; then, although the greater portion of the estate
is in a province, still, the trust must be carried out at Rome; which is the
proper opinion, since it is evident that it was the intention of the testator
that this should be done, on account of the nature of the purchase.
(2) Moreover, if you should suggest the following case, namely: that a
certain amount of silver or gold was bequeathed to such-and-such illustrious
persons, and there is enough of the estate at Rome to execute the trust, even
though the greater portion of the estate is situated in a province; it should
be held that the trust must be discharged at Rome; for it is not very probable
that a testator who intended to show honor to those to whom he bequeathed such
moderate legacies under the trust, should have desired them to be paid in the
(3) Where the property left under a trust is at hand, it must be held
that anyone who brings suit for it cannot be barred by an exception on the
ground that the greater portion of the estate is elsewhere.
(4) Where, however, the property which is the subject of the trust is
not to be sued for where it is situated, but security for the execution of the
trust is to be given; it must be considered whether an exception can be pleaded
(and I do not think that it can) and, indeed, even if there is no property
there, still the party must be required to furnish security. For what is there
to fear, since, if he does not give security, his adversary will be placed in
possession in order to protect the trust?
53. Hermogenianus, Epitomes of Law, Book I.
There are only a few cases in which slaves are permitted to appear
against their masters; and one of them is where they state that a certain will,
by which they allege they were bequeathed their freedom, has been suppressed.
Slaves are also permitted to give information against their masters where the
latter have withheld deliveries of grain belonging to the Roman people, as well
as returns of property for taxation, and also for counterfeiting. Moreover,
they can institute proceedings to obtain their freedom left to them by a trust,
and also where they allege that they have been purchased with their own money,
and not manumitted, in violation of the good faith of the agreement. Also,
where a slave has been declared to be free by will when he renders his
accounts, he can legally demand an arbiter as against his master, for the
purpose of examining his accounts. Where anyone has relied upon the good faith
of another, with the understanding that he should be purchased with the money
of the former, and be manumitted when he had repaid it, and the party says that
he is unwilling to receive the money when it is tendered, power is granted to
the slave to disclose the terms of the agreement.
54. Paulus, Opinions, Book I.
A matter of greater importance should not be prejudiced by one of
inferior moment; for the more important question attracts that which is of
55. The Same, On the Office of Assessors.
A summons issued by a former judge should be regarded as one of the
three prescribed. It is evident even if the entire number has been completed by
the said judge, that custom requires his successor to issue another.
56. Ulpianus, On Sabinus, Book XXX.
Although it is true that a genuine agent can bring anything before a
court, still, where a party who is not an agent joins issue, and his principal
afterwards confirms what he has done; it is held that by retroactive effect,
the matter has been properly presented to the court.
57. The Same, On Sabinus, Book XLI.
An action can be brought against the son of a family with reference to
both contracts and offences, but where a son dies after joinder of issue, the
right of action will be transferred to his father; only, however, with
reference to his peculium or any advantage which he may have obtained.
It is evident that if the son of a family undertakes a defence as the agent of
another, then, if he dies, the right of action will be transferred to the party
whom he defended.
58. Paulus, On Sabinus, Book XIII.
A suit is terminated where the party who applied for it to be heard
forbids it to proceed; or, indeed, anyone does so who has superior au-
thority in the same jurisdiction; or even where the judge himself is
vested with authority equal to that of him who appointed him.
59. Ulpianus, On Sabinus, Book LI.
If, in the appointment of a judge, the place in which he is to discharge
his duties is not mentioned, he is held to be appointed to act in that place
where he can do so without inconvenience to the litigants.
60. Paulus, On Sabinus, Book XIV.
When a judge dies, he who succeeds him must follow the same course which
was laid down for his predecessor.
61. Ulpianus, On the Edict, Book XXVI.
We are usually accustomed to say that the matter before the court is
that which was agreed upon by the litigants; but Celsus states that it is
dangerous to apply to the defendant for information on this point, because he
will always say that no agreement was made, in order to avoid losing his case.
What then shall be done? It is better to hold that the subject of the trial is
not what the parties agreed upon; but that is not the subject of the trial
which it was expressly agreed that it should not be.
(1) A judge who has jurisdiction in cases of robbery cannot hear and
decide actions in which money is involved.
62. The Same, On the Edict, Book LIX.
An action cannot proceed between two litigants unless where one of them
is the claimant and the other the possessor of the property; for there must be
someone to bear the burden of the plaintiff, and another who enjoys the
advantage of possession.
63. The Same, On the Edict, Book XLIX.
A legitimate defence is one where the party joins issue, either himself
or by another, but always furnishing security; and no one is considered to make
a legal defence who does not pay what he is ordered by the court.
64. The Same, Disputations, Book I.
An estimate of damages for fraud is not made by the judge with reference
to the interest of the party who brings the suit, but is based upon what he
swears to in court; and there is no doubt that even a thief has a right of
action on the ground of deposit or loan for use.
(1) Where anyone is about to bring a suit of one kind and accepts
security that the judgment will be complied with, and then brings another kind
of a suit; an action cannot be brought on the stipulation, because it seems to
have been made with reference to something else.
65. The Same, On the Edict, Book XXXIV.
A woman must bring an action for her dowry where her husband has his
residence, and not where the dotal contract was entered into; for this is not
such a contract that it is necessary to take into consid-
eration the locality where the said instrument was executed, so much as
the place to which the woman herself, in accordance with the condition of
marriage, would always have returned as to her home.
66. The Same, Disputations, Book II.
Where anyone makes use of ambiguous language, or his intention is
doubtful, he must be understood in the sense which is most favorable to
67. The Same, Disputations, Book VI.
Where a slave states that he has been purchased with his own money, and
proves it, he will be free from the time when he was purchased; because the
Imperial Constitution does not direct that he shall be declared free, but
orders that his freedom shall be restored to him, hence his master can be
required to manumit a slave who purchases himself with his own money; but if
the master conceals himself, the precedents derived from decrees of the Senate
relative to grants of freedom under a trust must be followed.
68. The Same, Disputations, Book VIII.
In the case of a peremptory citation the following rule must be
observed; the party bringing the action may apply for one summons if his
adversary is absent, and subsequently for a second:
69. The Same, On All Tribunals, Book IV. After an interval of not
less than ten days;
70. The Same, Disputations, Book VIII.
And then a third; and these having been issued, he can afterwards obtain
a peremptory citation. This term is employed because it puts an end to the
controversy; that is to say, it does not permit the adversary to longer
71. The Same, On All Tribunals, Book IV.
In the peremptory citation the magistrate who issues it gives notice
that he will hear and decide the case even should the other party be
72. The Same, Disputations, Book VIII.
This citation is sometimes granted after the three others have preceded
it, sometimes after only one, or two, have been issued, and sometimes it is
granted at once, and is designated "one for all". The course to be pursued
shall be determined by him who exercises jurisdiction, and he must arrange the
order of the citations, or regulate them according to the circumstances of the
case, or of the person, or of the time.
73. The Same, On All Tribunals, Book IV.
After a peremptory citation has been obtained, and as soon as the day
mentioned therein arrives, the absent party must be called; and
whether he answers, or not, the case must proceed and decision be
rendered, but not always in favor of the party who is present; for sometimes
the absent party may prevail if he has a good case.
(1) But if the party who obtained the peremptory citation is absent on
the day appointed for the hearing, and he against whom it was obtained is
present, the peremptory citation must be annulled, and the cause shall not be
heard, nor shall a decision be rendered in favor of the party who is
(2) If the citation is annulled, let us consider whether the defendant
can be sued again, and whether the right of action still remains, or whether
merely the proceeding relating to this citation is annulled? The better opinion
is, that it only is annulled, and that the parties can litigate again.
(3) It should be borne in mind that where an absent party has a judgment
rendered against him on account of a peremptory citation, and appeals, he shall
not be heard; that is, if he was absent through contumacy; but if he was not,
he should be heard.
74. Julianus, Digest, Book V.
A judge can be compelled to render a decision with reference to any
matter of which he has taken cognizance.
(1) A judge appointed to render a decision for some particular amount
can also decide with reference to a greater one, as this is agreed upon by the
(2) Where I once consented to defend an absent party, and joined issue
when the defendant was already dead, and I was defeated, and paid the damages;
the question arose whether the heir was released, and also what kind of an
action I was entitled to against him? I answered that the decision was not
valid, as the debtor was already dead when issue was joined, and therefore the
heir was not released; but if the party conducting the defence had made payment
in accordance with the judgment, while he could not recover the money, still,
an action would lie in his favor against the heir on the ground of business
transacted; and certainly the heir could protect himself by an exception based
on bad faith, if suit was brought against him by the plaintiff.
75. The Same, Digest, Book XXXVI.
Where the prætor has ordered a party against whom an action is
brought for a debt, to appear; and the number of citations is exhausted; and he
decides that the absent party owes the debt, and suit is brought to enforce the
judgment; the judge who hears the case cannot examine the decree of the
prætor, otherwise citations of this kind and the decrees of the
prætors would be illusory.
Marcellus says in a note: "Where the plaintiff knowingly and falsely
states anything with malicious intent, and it is clearly established that in
this way he obtained a judgment in his favor from the prætor; I think
that the judge should admit the complaint of the defendant." Paulus says in a
note, that if the defendant was unable to be present
because he was prevented by illness, or was employed in some business
for the State, it is his opinion that in this case an action to enforce the
judgment against him should be refused, or the prætor ought not to permit
execution to be issued.
76. Alfenus, Digest, Book VI.
The following case was suggested. Certain judges were appointed to hear
the same action, some of them having been excused after it was tried, others
were appointed in their stead; and the question arose whether the change of
some individual judges left the case in the same condition, or placed it in a
different one? I answered that not only one or two might be changed, but all of
them as well, and that the action would continue to be the same that it was
previously, and in fact this was not the only case in which it happened that
though the parts were changed, still the thing itself was considered to be the
same, but this occurred in many other instances. For a legion is considered to
be the same, even though many of those belonging to it may have been killed,
and others put in their places; and the people are deemed to be the same now as
they were a hundred years ago, although not one of them may at present be
living; and also, where a ship has been so frequently repaired that not even a
single plank remains which is not new, she is still considered to be the same
ship. And if anyone should think that if its parts are changed, an article
would become a different thing, the result would be that, according to this
rule, we ourselves would not be the same persons that we were a year ago,
because, as the philosophers inform us, the very smallest particles of which we
consist are daily detached from our bodies, and others from outside are being
substituted for them. Therefore, where the outward appearance of anything
remains unaltered, the thing itself is considered to be the same.
77. Africanus, Questions, Book III.
In private business, a father may act as judge where his son is
interested, and vice versa:
78. Paulus, On Plautius, Book XVI. Since judging is a public
79. Ulpianus, On the Office of Proconsul, Book V.
Where a party is proved to have summoned his adversary to court without
a good cause, he will be obliged to refund him his traveling expenses, as well
as the costs of the suit.
(1) Where judges are perplexed with reference to the law, it is
customary for the governors to state their opinions, but where the latter are
consulted on a question of fact, they are not compelled to do so, and they must
order the judges to render a decision, as their consciences may dictate; as,
where opinions are given under such circumstances, it sometimes causes scandal,
and furnishes an opportunity for partiality or corrupt solicitation.
80. Pomponius, On Sabinus, Book II.
Where a mistake is made in the name or surname of a judge, it was the
opinion of Servius that if the judge was appointed by an agreement of the
litigants, he must act as judge whom both litigants had in view.
81. Ulpianus, Opinions, Book V.
Anyone who is not invested with jurisdiction, or is not granted
authority by the Emperor, nor appointed by an official who has the right to
appoint judges, or not selected by agreement for arbitration, or not confirmed
by some law, cannot act as judge.
82. The Same, On the Office of Proconsul, Book I.
Sometimes the magistrates of the Roman people are accustomed to
expressly appoint court attendants arbiters, which should be done very rarely,
and only where the case is urgent.
TITLE II. CONCERNING INOFFICIOUS TESTAMENTS.
1. Ulpianus, On the Edict, Book IV.
It must be borne in mind that complaints are frequently made with
reference to inofficious testaments, as it is lawful for all persons, whether
they be parents or children, to attack an inofficious testament. Those
relatives who are beyond the degree of brothers will do better, however, not to
trouble themselves by incurring useless expense, since they have no hope of
2. Marcianus, Institutes, Book IV.
Proceedings are instituted in the case of an inofficious testament on
the ground that the testator was not of sound mind when he made his will. It is
not understood by this that he was actually insane, or demented, when he
executed his will, but that he made it according to law, yet not in compliance
with the dictates of paternal or filial affection; for if he were actually
insane or demented, his will would be void.
3. Marcellus, Digest, Book HI.
To say that a will is inofficious means to allege that the party should
not have been disinherited or passed over; because it generally happens that
where parents are improperly influenced to disinherit or pass over their
children, this is due to false representations.
4. Gaius, On the Lex Glitia.
Parents should not be allowed to wrong their children by their wills,
since for the most part they do so because they are maliciously prejudiced
against their own blood by the flattery and instigation of stepmothers.
5. Marcellus, Digest, Book III.
Those, also, who are not descended from the testator in the male line,
have the right to institute proceedings, as they can do so in case of the
testament of a mother; and they very frequently succeed. The force of the term
"inofficious" is, (as I have already stated), to show that the party was
undeservedly and therefore improperly passed over, or even excluded by
disinheritance, and the allegation is made in court that the testator does not
appear to have been of sound mind when he executed an unjust will.
6. Ulpianus, On the Edict, Book XIV.
A posthumous son can allege that a will is inofficious where the
testator was one to whom he might have been a proper or lawful heir, if he was
unborn at the time of the death of the former. He has also a right to attack
the wills of cognates, since, in this instance, he would be able to obtain
possession of the property in case of intestacy. What then? Should the testator
be blamed for not dying intestate? But no one could obtain assent from a judge
where such a proposition was advanced; for parties of this kind are not
prohibited from making wills. This, however, he can clearly be charged with,
namely: not appointing the party his heir, for an heir who has been appointed
can be placed in possession in accordance with the clause by which possession
can be granted to the mother of an unborn child; and if it was born, it would
be entitled to possession in accordance with the provisions of the will. I hold
that, in like manner, the complaint can be brought by a party who, after the
will of his mother was made, was removed from her womb by the Cæsarean
(1) Where a person has no right to succession by intestacy institutes
proceedings on the ground that the will is inofficious, and no one contests his
right to do so, and he happens to succeed, his success will be of no benefit to
him, but will only be of advantage to those who are entitled to the succession
on intestacy, for he makes the former head of the family intestate.
(2) Where anyone dies after having instituted proceedings on the ground
of inofficiousness, does he transfer his right of complaint to his heir?
Papinianus answered (and this is also stated in several rescripts) , that if
the party should die after he has already obtained possession of the property
of the estate, the right of proceeding with the action passes to the heir; and
where the possession of the property is not demanded, but the controversy has
already begun or is in course of preparation, or if the party should die after
having arrived for the purpose of filing a complaint on the ground of
inofficiousness; I think that the right passes to his heir.
7. Paulus, On the Jurisdiction of the Septemvirs.
Let us consider in what way a party may be held to have prepared his
case, so that he can transmit the right of action. Let us suppose that he was
under the control of the testator, so that the possession of the estate would
not be necessary for him, and entrance upon the es-
tate would be superfluous; and if he merely gave notice that he intends
to make such a charge, and proceeds to serve notice, or to file the petition,
he will transmit the right to prosecute the case to his heir; and this the
Divine Pius stated in a Rescript with reference to the service of the papers
and the notice. What course should be pursued where the party was not under the
control of the deceased? Would the right of action be transmitted to his heir?
If he did the things which we have mentioned above, he would seem to have
properly prepared his case.
8. Ulpianus, On the Edict, Book XIV.
Papinianus very properly says in the Fifth Book of Questions, that a
father cannot institute proceedings on the ground of inofficiousness in behalf
of his son, if the latter is unwilling; for the wrong was committed against the
son. He states immediately afterwards that if his son should die after having
obtained possession of the estate, with a view to proceeding regularly with the
case, the complaint for inofficiousness is terminated; for it was not granted
to the father himself, but on account of his son.
(1) Where a party abandons the case after having instituted proceedings
on the ground of inofficiousness, he shall not afterwards be heard.
(2) It has very frequently been stated in rescripts that when the
Emperor is appointed an heir, the testament can be declared inofficious.
(3) Papinianus, in the Second Book of Opinions, says that a complaint
for an inofficious testament can be brought against the head of a family who is
a veteran, even though the only property which he owns is what he obtained in
(4) Where a soldier makes a will while in the army, and dies a year
after he is discharged, I doubt whether a complaint for inofficiousness will be
allowed, because his will is valid up to this time, in accordance with military
law, and it may be said that a complaint on the ground of inofficiousness is
(5) A mother cannot claim that the will of her son who is under age is
inofficious, because his father made it for him; and Papinianus gave this
opinion; nor can his father's brother do so, because it is the will of the son;
therefore, the brother of the minor cannot do so either, if he did not object
to his own father's testament. Where, however, the testament of the father is
attacked successfully, that of his son will be void, unless it was broken only
with reference to his father, for then the pupillary part will remain
(6) Where anyone makes a donation mortis causa to his son of the
fourth part of what he would have been entitled to if the testator had died
intestate, I am of the opinion that his will is secure.
(7) Where a man provided a substitute for his son, who is a minor, by
making a secondary bequest, we cannot, for this reason permit the minor himself
to file a complaint for inofficiousness.
(8) Since the fourth part of the share which is due is sufficient to
exclude the complaint, it should be considered whether a disinherited
child, who does not object, should be included, as, for example, where
there are two sons who are disinherited; and no doubt he should be included, as
Papinian states; and if the other should say that the will is inofficious, he
cannot claim the entire estate, but only half of the same. Thus, for the same
reason, where there are grandchildren, the issue of two sons, for instance,
three by one of them, and only one by the other; the son who is alone will be
excluded from the complaint by obtaining three-twenty-fourths of the estate,
and any one of the others by obtaining one twenty-fourth of the same.
(9) This fourth part will, of course, be estimated after the debts and
funeral expenses have been deducted; but it must be considered whether
testamentary grants of freedom will diminish the fourth part, and do they
diminish it? For if anyone is appointed sole heir, he cannot claim that the
will is inofficious, because he has received the Falcidian portion; but the
Lex Falcidia does not apply to testamentary manumissions, and it may be
held that the fourth part is to be entered on after deducting what is lost by
manumission; therefore, as it is established that the fourth part is reduced by
manumission, the result will be that, where a person's estate consists of
slaves, by emancipating them he bars a complaint for an inofficious testament;
unless, perhaps, his son, if he was not under his control after being appointed
the heir of his father, may properly reject the estate, and having transmitted
it to the substitute, may begin proceedings for inofficiousness, so as to
obtain the estate on the ground of intestacy without being liable to the
penalty prescribed by the Edict.
(10) Where a testator directed his heir to fulfill some condition having
reference to his son, or to some other person who had a right to bring the same
complaint, and he knowingly agreed to this, it should be considered whether he
is prevented from making a complaint for inofficiousness, since he accepted the
will of the deceased.
The case is the same where the party who gave him the donation was a
legatee, or a statuliber; and it may be said that the son is prevented,
and especially where the testator ordered the heir to make the gift; but if it
was a legatee, may it not be true that where the right to file a complaint for
inofficiousness has once vested, the tender by the legatee will not abrogate
it? For why did we absolutely establish this principle in the case of the heir?
It was because no right to file a complaint arises before he had entered upon
the estate. I think that, in this instance, the event must be followed, so that
if what was left was tendered to the son before proceedings were instituted by
him, then it appears that he has all that he is entitled to, as the donation
was offered in accordance with the wishes of the testator.
(11) Wherefore, if anyone has been appointed heir, for instance to one
half the estate, when a sixth would have been coming to him from the testator's
property if he had died intestate, and he is asked to surrender the estate
after a certain time; it can reasonably be held that he cannot bring an action,
since he could have the share which was due to him, and the profits of the
same, for it is well established that the profits are usually included in the
Falcidian portion. There-
fore, where, in the beginning, an heir was appointed to half the estate,
and afterwards is asked to relinquish his inheritance after the expiration of
ten years; there is no ground on which to make complaint, since he could during
that time, easily have collected the share that was due to him together with
the profits of the same.
(12) Where a party alleges that a will is void, defective, and
inofficious, the choice should be given him as to which claim he wished to make
(13) Where a son who has been disinherited is in possession of the
estate, and the party who has been appointed heir brings suit to recover it;
the son can file the complaint by way of cross action, just as he would do if
he were not in possession but was bringing an action for recovery.
(14) It must be remembered that where a party improperly alleges that a
testament is inofficious, and loses his case, he will also lose what was left
him by the testament, and it can be recovered in a suit by the Treasury as
property of which he was deprived because he was unworthy of it. He is,
however, only deprived of what was bequeathed to him by the will, where he,
without any ground, continued to prosecute the case until judgment was
rendered. Where, however, he desisted or died before judgment, he will not be
deprived of what was left him. Hence, if while he was absent, a decision was
pronounced in favor of the other party, who was present, it may be said that he
can hold what was left him. A party, however, can only lose anything where the
enjoyment of it belongs to him; and if he is asked to surrender it to another,
no injury should be done. Wherefore, Papinianus not incorrectly states in the
Second Book of Opinions, that where a party is appointed an heir and is asked
to surrender the estate, and then, after bringing complaint for
inofficiousness, does not succeed, he only loses what he could have obtained
under the Lex Falcidia.
(15) Where a minor has been arrogated, and is one of those persons who
can make complaint of an inofficious testament without depending upon adoption
or emancipation to do so; I think that he will be barred, since he is entitled
to a fourth part of the estate, according to the Constitution of the Divine
Pius. If, however, he brings suit, and does not obtain a judgment, will he lose
this fourth part? I am of the opinion that he should not be permitted to
contest the will on the ground of inofficiousness, or if he should be
permitted, even if he does not gain the suit, to have the fourth part granted
him as a debt which is due to him.
(16) Where a judge investigates a case based on an inofficious testament
and renders a decree against the testament, and no appeal is taken, the
testament is rescinded by operation of law; and the party who succeeds will
become the direct heir, or the possessor of the property in accordance with the
terms of the decree; testamentary grants of freedom will become void by
operation of law; legacies will not be due; and if they have been paid they can
be recovered either by him who paid them or by the successful litigant (by
means of a prætorian action). Generally, however, where they have been
paid before pro-
ceedings were instituted, the successful litigant should bring suit for
their recovery; as the Divine Hadrian and the Divine Pius stated in a
(17) It is certain that if the claim of inofficiousness is alleged for
some very just cause after five years, manumissions which have already taken
place, or which could be demanded, cannot be revoked; but twenty aurei
should be paid by each liberated slave to the party who gained the
9. Modestinus, On Inofficious Testaments.
Where anyone institutes proceedings within five years, manumission will
not stand. Paulus says, however, that where freedom is granted under a trust it
will be allowed; and, of course, in this instance twenty aurei must be
paid by each individual.
10. Marcellus, Digest, Book III.
Where, in the case of an inofficious testament, part of the judges
rendered a decision against it, and part in favor of it, which is sometimes
done; it will be more humane to adopt the opinion of those who favored the
testament, unless where it is clearly apparent that they rendered an unjust
decision in favor of the party who was appointed heir.
(1) It is a well known fact that anyone who accepts a legacy cannot
properly allege that the will is inofficious, unless he transferred the entire
legacy to another person.
11. Modestinus, Opinions, Book HI.
I stated as my opinion that even where a party succeeds on the ground
that a testament is inofficious, any donations which the testator, while
living, seems to have made in favor of the appointed heir, are not for that
reason annulled; nor will an action lie to recover part of what was given to
him by way of dowry.
12. The Same, On Prescriptions, Book XII.
It makes no difference whether a son who is disinherited accepts a
legacy bequeathed to him, or obtains it through his son or slave, to whom it
was left; in either instance he will be barred by an exception. Again if his
slave is appointed heir, and the son manumits him before he directs him to
enter upon the estate, so that he may do so of his own free will, and the son
does this with a fraudulent design, he will be prevented from proceeding with
(1) Where a son who has been disinherited makes a demand upon a
statuliber for money due him, he is held to have accepted his father's
1 A statuliber was a slave whose freedom was in
suspense and generally dependent upon the fulfillment of some condition. In
consideration of the fact that he had the prospect of being liberated from
servitude, his condition was regarded as, to a certain extent, superior to that
of an ordinary bondman. To this class belonged captives ransomed from the
enemy, who were required to serve as slaves
(2) Where a son brings suit to obtain a legacy which was revoked, and,
having failed, has recourse to a complaint for inofficiousness, he will not be
barred by an exception; although by the mere fact of his bringing suit he
approved of the will, still, some blame should be attributed to the testator,
so that the claim of the son cannot reasonably be rejected.
(3) Where the son of a testator, along with Titius, was a debtor for a
certain sum of money, and Titius was released by the terms of the will, the son
will not be discharged from liability on account of the release of Titius; nor
will his right to bring an action of inofficious testament be barred.
13. Scævola, Opinions, Book HI.
Titia appointed her daughter heir, left her son a legacy, and provided
by the same will that: "All those things which I have above directed to be
given or done, I wish to be given and done by any person who will become my
heir, or the possessor of my estate, even on intestacy. Also, whatever I may
direct hereafter to be given or done, I leave in trust to the said person to
see that it is given and done." The question arose whether, if a sister gained
a case in the Centumviral Court, the trust must be executed in compliance with
the preceding clause? My answer to the inquiry whether a party can lawfully
impose a trust on those whom he thinks will succeed him on intestacy, either as
heirs, or as possessors of his estate, was that he could do so. Paulus states
in a note that he approves the opinion that trusts imposed by a party who dies
intestate need not be executed, as they would seem to have been ordered by a
person of unsound mind.
14. Papinianus, Questions, Book V.
A father emancipated his son, and retained his grandson under his
control; the son subsequently had another son, and then died, after having
disinherited both sons, and omitted any mention of his own father in his will.
In an inquiry as to whether the will was inofficious or not, the interest of
the sons must take precedence, and the intentions of the father of the deceased
remains for consideration; but if judgment is rendered against the sons, then
the complaint of the father can be examined, and he can institute
15. The Same, Questions, Book XIV.
For although parents have no right to succeed to the estate of their
children, still, on account of the wishes of the parents and their natural
until the money paid for their release from captivity had been refunded
to those who had advanced it. Under the first Emperors, they could be punished
as slaves, but afterwards only the penalties to which freemen were liable could
be inflicted upon them. It has been suggested, with considerable probability,
that the statuliber was never actually treated by the Romans as a
This condition was recognized by the law of Louisiana. A slave of this
kind, from the time when he acquired the right of future freedom, could take
under a will, or by donation, but a curator was appointed to manage his
property. He could not be removed from the State. (Civil Code of Louisiana,
Arts. 37, 193, 194, 195.) — ED.
affection for their children, when the regular order of mortality is
disturbed, an estate ought to be left on the ground of affection no less to
parents than to children.
(1) Where a party after having brought suit to declare a will
inofficious changes his mind, and then dies, a complaint on the ground of
inofficiousness will not be granted his heir, as it is not sufficient for
proceedings to be instituted if the plaintiff does not continue to carry them
(2) Where a son brings suit on the ground of an inofficious will against
two heirs, and obtains different decisions from the judges defeating one heir
and being defeated by the other, he can sue the debtors of the estate, and he
himself may be sued by the creditors to the extent of his share in the same,
and he can recover property and divide the estate; for it is true that he is
entitled to an action for partition, as we think that he becomes an heir at law
for a share of the inheritance, and therefore a portion of it remains subject
to the terms of the will, and it does not seem absurd that the testator should
be considered to have died partly intestate.
16. The Same, Opinions, Book II.
Where a son has already instituted proceedings on the ground of
inofficiousness of his mother's will, against his brother who was appointed
heir to a portion of the estate, and gains his case; a daughter who did not
bring suit, or did not succeed, cannot lawfully share in the inheritance with
(1) A father obtained possession of the estate of his son by the right
of manumission, in opposition to the provisions of the will, and look
possession of the property; and afterwards a daughter of the deceased, whom he
had disinherited, very properly prosecuted an action on the ground that the
will was inofficious, and then the possession which the father obtained was
annulled; for, in the former proceedings, the question to be determined was the
legal position of the father, and not the legality of the will; and hence it
was necessary for the entire estate to be restored to the daughter together
with the profits of the same.
17. 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.
(1) When judgment is rendered against a testament on the ground of
inofficiousness, the deceased is considered not to have been compe-
tent 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.
18. The Same, On Inofficious Testaments.
A Constitution of the Divine Brothers on this subject is extant, which
recognizes a distinction of this kind.
19. 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
(1) 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.
(2) 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.
20. Scævola, Questions, Book II.
Where anyone wishes to have a will declared inofficious, although it may
be denied that he is the son of the deceased, he is not entitled to the
Carbonian possession of property, for this is only permitted where, if the
party were actually the son he would be the heir, or the legal possessor of the
estate; so that if, in the meantime, he should obtain possession, and be
supported, his rights would not be prejudiced by any actions which might be
brought by him. Where a party makes a claim of inofficiousness, he cannot bring
any actions except one to obtain the estate, and he has no right to support.
This is done to prevent him from being in a better position than if his
adversary had acknowledged him to be the son of the testator.
21. Paulus, Opinions, Book HI.
Where a party who instituted proceedings on the ground that a will was
inofficious, abandons the action, on account of fraudulent assertion of the
appointed heir, who alleges that he is tacitly bound to give him a third part
of the estate; he is not held to have renounced his right of action, and
therefore he cannot be prohibited from resuming the suit which he began.
(1) Inquiry has also been made whether an heir should be heard, when he
asks that what he has paid out before the action to declare the will
inofficious was brought, ought to be refunded to him? The answer was that he
who, being aware of the facts, paid out money in pursuance of a trust with
which he had no concern, will not, on this account, be entitled to an action to
(2) The same jurist gave it as his opinion that where the party who was
appointed heir is deprived of the estate by a suit to declare a will
inofficious, everything should proceed just as if the estate had not been
entered on; and therefore the appointed heir would have a complete right of
action against the party who gained the case, to collect any debt, as well as a
right of set-off against all indebtedness.
22. Tryphoninus, Disputations, Book XVII.
A son is not prevented from attacking the testament of his mother as
inofficious, where his father has received a legacy by the will of the mother,
or has entered upon the estate, even though the said son was still under his
father's control; and I have stated that the father is not forbidden to attack
the will in behalf of his son, for the indignity is inflicted upon the
(1) It was also asked if the son failed in his attack on the will,
whether what was left to the father would be forfeited to the State? For, as he
would not be benefited by his success, and in this instance the duty of the
father was not in any way concerned, but everything depended upon the merit of
the son, we must incline to the opinion that the father does not lose what was
left to him, if a decision is rendered in favor of the will.
(2) Much more is this the fact where a testator left me a legacy, and
his son, after instituting proceedings on the ground that the will
was inofficious, died, leaving me his heir, and I still proceed with the
action against the estate, and I am defeated, I do not lose what was left me by
the will; if, of course, the deceased had already begun suit. (3) Moreover, if
I adopt a person after he has already brought an action to declare the will
inofficious, by which will a legacy had been bequeathed to me, and I conduct
the case in behalf of my adopted son, and do not succeed; I should not lose my
legacy because I have been guilty of anything for which I ought to be deprived
by the Treasury of what was bequeathed to me; for I did not bring the suit in
my own name, but on account of a certain kind of legal succession.
23. Paulus, On Inofficious Testaments.
If you suppose the case of an emancipated son who has been passed over
and his grandson who continued under the control of the testator, and is
appointed heir; the son can institute proceedings against his own son, who is
the grandson of the testator, for the possession of the estate, but he cannot
bring an action on the ground that the will is inofficious. If, however, the
emancipated son was disinherited, he can bring the action, and can then be
joined with his son, and will obtain the estate along with him.
(1) Where disinherited children have purchased an estate or any property
belonging to it from the persons who were appointed heirs, knowing them to be
such, or have rented land from them, or done anything else like this, or have
paid the heir debts which they owed the testator, they are held to have
accepted the will of the deceased, and are excluded from bringing suit.
(2) Where two sons are disinherited, and both bring suit on the ground
that the will is inofficious, and one of them afterwards concludes not to
proceed, his share will belong to the other by accretion. The same rule applies
where he is barred by lapse of time.
24. Ulpianus, On Sabinus, Book XLVIII.
It frequently occurs with reference to suits for inofficiousness that
different decisions are rendered in one and the same case. For what if the
brother who institutes proceedings and the appointed heirs are persons
occupying different legal positions? If this should be the case, the deceased
is held to have died partly testate and partly intestate.
25. The Same, Disputations, Book II.
Where a donation is made not mortis causa, but intervivos,
and at all events with the understanding that it shall be included in the
fourth, it may be said that suit cannot be brought on the ground of
inofficiousness, if the party receives the fourth in the donation; or, if he
receives less, the amount lacking, shall be made up according to the
arbitration of some good citizen; or, under any circumstances, what has been
donated must be placed in the common fund.
(1) Where a person who has no right to bring suit on the ground of an
inofficious will, is permitted to do so, and attempts to have the will
partially set aside, and selects some particular heir against whom
to bring the action; it must be said that as the will is partly valid,
and the parties who were entitled to preference over the plaintiff are
excluded, the latter has properly brought the suit.
26. The Same, Disputations, Book VIII.
Where an heir has been appointed on a condition, for instance if he
should manumit Stichus, and he does manumit him, and afterwards the will should
be declared inofficious or unjust; it is but right in order that he may obtain
relief, that is to say, he should recover the value of the slave from him after
his manumission, to avoid his losing him altogether.
27. The Same, Opinions, Book VI.
If after a testament has been attacked as inofficious an agreement was
made by the parties to compromise the case, and the terms of the compromise are
not complied with by the heir, it is established that the suit brought on the
ground of inofficiousness still remains unaltered.
(1) Where anyone alleges that he is the son of the testator who denied
this to be true in his will, and, nevertheless, disinherited him, ground for an
action for an inofficious will still remains.
(2) A soldier cannot state that the will of another soldier is
(3) Where a grandson instituted proceedings on the ground that a certain
part of a will was inofficious, against his paternal uncle or some other person
who was appointed heir, and gained the case, but the testamentary heir
appealed; it was decided, in the meantime, that on account of the poverty of
the minor, he should be granted an allowance for maintenance in proportion to
the assets of the estate, (for part of which suit was brought by him in the
attack on the will as inofficious) and that his adversary would be required to
supply him with necessaries until the case was terminated.
(4) A complaint can be filed on the ground of inofficiousness in the
case of the will of a mother who, thinking that her son was dead, had appointed
28. Paulus, On the Jurisdiction of the Septemvirs.
Where a mother has heard a false report that her son, who was a soldier,
was dead, and appointed other heirs by her will, the Divine Hadrian decreed
that the estate should belong to the son on the ground that testamentary grants
of freedom and bequests should be maintained. What was added with reference to
grants of freedom and bequests should carefully be noted, for where a testament
is decided to be inofficious, nothing it contains is valid.
29. Ulpianus, Opinions, Book V.
Where it is suspected by the legatees that collusion exists between the
appointed heirs and the person who is bringing suit against the will as
inofficious, it has been established that the legatees have a right
to appear and defend the will of the deceased, and they are also
permitted to appeal, if a judgment is rendered against the will.
(1) Illegitimate children also can likewise object to the will of their
mother on the ground of inofficiousness.
(2) When an attack on account of inofficiousness is made against a will,
although the case may be settled by compromise, the will still remains in full
force and effect; and therefore any testamentary grants of freedom and bequests
contained therein still continue to be valid to the extent permitted by the
(3) Since a woman can never adopt a son without the consent of the
Emperor, no man can institute proceedings on the ground of inofficiousness
against the will of the woman whom he erroneously thought to be his adoptive
(4) Proceedings on the ground that a will is inofficious must be
instituted in the province in which the testamentary heirs have their
30. Marcianus, Institutes, Book IV.
A natural father can lawfully institute proceedings against the will of
his son who has been given in adoption, on the ground that said will is
(1) The Divine Severus and Antoninus stated in a Rescript that guardians
were permitted, in behalf of their wards, to institute proceedings on the
ground that a will was inofficious or forged, without any risk of losing what
was bequeathed to them by the will.
31. Paulus, On the Jurisdiction of the Septemvirs.
Where a person who has a right to attack a will is unwilling, or cannot
do so, it is a matter for consideration whether he who is next in succession
shall be allowed to institute proceedings for that purpose; and it has been
established that he can, as succession is involved.
(1) With reference to the action for inofficiousness brought by children
or parents, it makes no difference who may be appointed heir, whether one of
the children, a stranger, or a resident of the same town.
(2) If I should become the heir of a party who himself was appointed
heir by the will which I wish to prove to be inofficious, this fact will not
bar me, especially if I do not have possession of the portion of the estate in
dispute, or only hold it in my own right.
(3) We say that the case is different where a party left me the property
which he himself had received under the will; for if I accept it I am excluded
from attacking the will.
(4) What must be said then if I should accept the will of the testator
in some other way; for example, if, after the death of my father, I write on
the will that I consent to it? In this instance I am prevented from attacking
32. The Same, On Inofficious Testaments.
Where a disinherited son acts as advocate, or assumes the duty of agent
for a party who brings an action for a legacy under the will, he
will not be permitted to attack the will; for he who approves of any
bequests of the deceased is held to have accepted his will.
(1) Where a disinherited son becomes the heir of a legatee, and brings
an action for the legacy, let us consider whether he is not barred from
attacking the testament for the testament of the deceased is certain, and, on
the other hand, it is true that nothing has been left him by the testament. He
will be safer, however, if he abstains from bringing an action for the
TITLE III. CONCERNING THE ACTION FOR THE RECOVERY OF AN ESTATE.
1. Gaius, On the Provincial Edict, Book VI.
An estate may belong to us either by the ancient or by the recent law;
by the ancient law in accordance with the provisions of the Twelve Tables, or
by a testament legally executed:
2. Ulpianus, On the Edict, Book XV.
Whether we become heirs directly by our own acts, or by those of
3. Gaius, On the Provincial Edict, Book VI.
For instance, if we order some person who is under our control to accept
an estate to which he has been appointed heir. Where a person becomes the heir
of Titius, and he himself is the heir of Seius, it may be said that, as he is
the heir of Seius, so also he can claim the estate of Titius. A party can
become an heir on intestacy, as, for instance, where he is the direct heir of
the deceased, or an agnate, or where he manumitted the deceased, or his father
Persons become heirs under the new law when they have a right to an
inheritance derived from decrees of the Senate, or from the Constitutions of
4. Paulus, On the Edict, Book I.
If I bring an action for the recovery of an estate against a party who
has possession of only that part of the same which is the subject
1 Inofficious testaments were unknown to the Common Law. A
slight analogy, however, exists between proceedings to set them aside and the
ancient English writ "De rationabili parte bonorum"; by means of which a
widow could compel the executors of her husband to transfer to her the third of
his goods and chattels to which she and her children were entitled, and which
he was not permitted by law to alienate.
In this country, while a testator, generally speaking, has a right to
freely dispose of his property by will, this is, however, not the case in
Louisiana, where the inofficious testament is practically, if not specifically
forbidden by statutory provision. The Code gives the following definition:
"Those dispositions which fathers and mothers and other ascendants make of
their property to the prejudice of their descendants, beyond the proportion
reserved to them by law, are called inofficious". (Civil Code of Louisiana,
Arts. 1480, 1481, 1484, 1609, 1614, 3522.) — ED.
of controversy, he will be required to surrender everything of which he
subsequently obtains possession.
5. Ulpianus, On the Edict, Book XIV.
The Divine Pius stated in a Rescript that the possessor of an estate
which was in dispute should be forbidden to dispose of any portion of it before
proceedings are instituted; unless he prefers to furnish security for the
entire amount of the estate, or for the restitution of the property belonging
thereto. The prætor, however, stated in an edict that: "Where proper
cause was shown he would permit a part of the property to be alienated, even
where such security was not given, but only the customary undertaking after
proceedings had been instituted; lest, if the disposal of any of the property
of an estate were prevented, it might hinder, in some way or other, other
advantageous measures from being taken; as, for instance, if something was
needed for funeral expenses; (for he allows a diminution of the estate on
account of funeral expenses), and he will also do this when a pledge is to be
sold if a sum of money is not paid within a certain time.
A diminution of property belonging to an estate likewise becomes
necessary to provide food for the family, and the prætor must also permit
the sale of perishable articles which in a short time would be destroyed.
(1) The Divine Hadrian stated in a Rescript to Trebius Sergianus that
Ælius Asiaticus ought to give security for an estate, to recover; which
suit had been brought against him, and then he can allege that the will is
forged. This is done for the reason that the proceedings for recovery may
remain in abeyance while investigation of the allegation of forgery is being
(2) The authority of the action brought for the recovery of estates is
such that no other legal proceedings shall be permitted to prejudice it.
6. The Same, On the Edict, Book LXXV.
Where a testament is alleged to be forged, and suit is brought for a
legacy under it, it must be paid after a bond has been filed, or an inquiry
must be instituted to determine whether it is due. Where the testament is
alleged to be forged, no legacy should be paid to the party who attacks it on
this ground, if the matter has been brought into court.
7. The Same, On the Edict, Book XIV.
Where anyone states that he is entitled to his freedom under the terms
of a will, the judge should not decide the question of his freedom, lest he may
prejudice some decree rendered with reference to the will; and this law was
passed by the Senate. The Divine Trajan stated in a Rescript that the trial to
determine his freedom must be postponed until the suit on the ground of
inofficiousness was either dismissed or concluded.
(1) Trials relating to freedom are, however, only stayed where joinder
of issue has taken place in a suit for inofficious testament, but
if this has not been done, the trial of the question of freedom shall
not be postponed. This the Divine Pius stated in a Rescript, for when a certain
Licinnianus had been brought into court to ascertain his status, and, to
prevent a too early decision as to what it was, he refused to appear at the
trial where the question of his freedom was to be heard, saying that he would
join issue on the inofficiousness of the testament, and then bring an action to
recover the estate; because he alleged that both freedom and the estate were
conferred upon him by the testament.
The Divine Pius said that if Licinnianus had been in possession of the
estate, he would have a better right to be heard, since he could then have
joined issue in behalf of the estate, and it was in the discretion of the party
claiming to be his master to proceed on the ground that the testament was
inofficious; but Licinnianus should not remain in slavery for five years under
the pretext of the inofficiousness of the will on which point he himself had
not joined issue.
In the end, the Emperor permitted the judge to determine generally
whether the trial with reference to the will was demanded in good faith, and if
he ascertained that it was, that a reasonable time should be granted; and if
issue had not been joined before it elapsed, the judge should be ordered to
perform his duties in the trial involving the question of freedom.
(2) The Divine Pius stated in a Rescript that whenever anyone is
compelled to defend a case which involves his own freedom, and the inheritance
of an estate, but where he does not allege that he was made free under the
will, but in some other manner — as for instance, that he had been
manumitted by the testator in his lifetime — then the case involving the
question of freedom should not be delayed, even though it was anticipated that
an action would be brought with reference to the will. He added plainly in the
Rescript: "Provided the judge who was to decide the question of freedom had
been notified not to hear any statements in favor of freedom which were based
upon the testament".
8. Paulus, On the Edict, Book XVI.
A person is not prohibited from bringing suit for the recovery of
a legal estate, because he carried out the intention of the deceased at a time
when he was ignorant whether the will was valid or not.
9. Ulpianus, On the Edict, Book XV.
It should be laid down as a regular rule that, "The only person liable
to an action for the recovery of an estate is he who has a right either as heir
or as possessor to a portion of the same."
10. Gaius, On the Provincial Edict, Book VI. No matter how small
it may be.
(1) Therefore, where a party is the heir to an entire estate or to a
portion of the same, he alleges that the estate is his either wholly or in
part, but that only is delivered to him by order of court which his adversary
had possession of; that is the whole of it, if he is the heir at all, or the
share of the same to which he is entitled as heir.
11. Ulpianus, On the Edict, Book XV.
A person is in possession "as an heir" when he thinks himself to
be the heir. But, it may be asked, how is it with him who knows that he is not
the heir, and yet holds possession in that capacity? Arrianus, in the Second
Book On Interdicts, is of the opinion that he is liable; and Proculus states
that this is our practice, for it is held that a possessor of the property of
an estate is held to possess the same in the capacity of heir.
(1) A depredator, in fact, holds the estate "as possessor",
12. The Same, On the Edict, Book LXVII.
Who, when he is asked why he is entitled to possession will answer,
"Because I am"; and will not contend that he is an heir, even by way of false
13. The Same, On the Edict, Book XV.
Or anyone who cannot allege any right to possession; and therefore
thieves and robbers are liable to an action for the recovery of an estate.
(1) Again, this title "as possessor" is attached and, as it were, joined
to all other Titles. Hence it may be attached to the title of "as purchaser";
for if I purchase from an insane person, knowing him to be such, I hold the
property "as possessor". Also with reference to the title "as donee", the
question arises whether the party holds as possessor, for example, a wife or a
husband; and we adopt the opinion of Julianus that either of them holds the
property in the capacity of possessor, therefore he or she would be liable in a
suit for the recovery of the estate. Again, title "by right of dower" takes the
form of possession; as for instance, where I marry a girl under twenty years of
age and accept property as dowry, being aware of her age. Moreover, if a legacy
is paid to me on grounds which I know to be false, it is certain that I hold
the property "as possessor".
(2) But he who delivers an estate under a trust cannot be held liable in
a suit for the recovery of the same, unless he acted fraudulently; that is to
say, if he knew that it ought not to be delivered, and, nevertheless,
surrendered it; for even fraud previously committed is to be considered in a
suit for the recovery of an estate, since the party fraudulently relinquished
(3) Neratius, in the Sixth Book of Parchments, says that a suit for the
recovery of an estate can be brought against an heir, even where he did not
know that the deceased held the estate in the capacity of either heir or
possessor. He states in the Seventh Book that the same rule applies even where
the heir thought that the property claimed belonged to some estate to which he
(4) How would it be if a person had purchased an estate? Should a
prætorian action for the recovery of the estate be granted against him to
prevent him being annoyed by separate suits? It is certain that the vendor is
liable. But suppose no vendor appears, or he disposes of the property for a
small amount of money, and was a bona-fide posses-
sor; can recourse be had to the purchaser? Gaius Cassius thinks that a
prætorian action should be granted.
(5) The same rule must be considered to apply where an heir, having been
directed to sell the estate for a small sum, disposed of it to Titius.
Papinianus thinks that it should be held that an action could be granted
against the beneficiary of the trust, as it is not expedient for suit to be
brought against the heir where he has received an insignificant sum.
(6) The same rule will apply where the heir was asked to surrender the
estate after retaining a certain amount. It is evident that if, after having
received a certain amount, he was asked to surrender the remainder, that suit
for recovery cannot be brought against him; (and this is the opinion held by
Papinianus) since what the heir received in order to fulfill a condition is not
possessed by him. Sabinus, however, holds differently in the case of a slave
who is to be free conditionally, and this is the better opinion, because the
money belongs to the estate.
(7) This rule is applicable where a party only retains the profits of
the estate, and he also is liable to an action for recovery of the estate.
(8) Where anyone knowingly purchases an estate which belongs to another,
he holds the same as possessor, some authorities think that an action for
recovery may be brought against him; but I do not believe that this opinion is
correct, for no one is a depredator who pays a price, still, being a purchaser
of the entire estate, he is liable to a prætorian action.
(9) Moreover, where anyone purchases an estate from the Treasury with
the understanding that it has no owner; it is perfectly right that a
prætorian action should be granted against him.
(10) It is stated by Marcellus in the Fourth Book of the Digest, that
where a woman gives an estate by way of dowry, the husband is in possession of
the same by right of dowry, but is liable to a prætorian action for its
recovery. Marcellus, however, says that the woman herself is liable to a direct
action, especially if a divorce has already taken place.
(11) It is also established that the heir to property which the deceased
possessed as purchaser is liable to an action for the recovery of the same, for
the reason that the heir holds possession "as heir", although he is also liable
to a suit for property which the deceased possessed, either in the capacity of
heir or in that of possessor.
(12) Where anyone is in possession of an estate in behalf of a person
who is absent, and it is uncertain whether the latter will ratify his acts or
not; I think that suit for recovery can be brought in behalf of the party who
is absent, but certainly not on his own account; because a man is not deemed to
be in possession "as heir", or merely "as possessor", who holds property as the
representative of another; unless someone should say that, as the principal did
not ratify his acts, the agent is, to a certain extent, a depredator, for then
he can be held liable on his own account.
(13) The action for the recovery of an estate can be brought not only
against the person who possesses property which belongs to the estate, but even
if he possesses nothing; and it should be considered if where he possesses
nothing, and offers to defend the suit himself, whether he does not render
himself liable. Celsus states in the Fourth Book of the Digest, that he is
liable on the ground of fraud; for anyone who, himself, offers to defend a suit
of this kind acts fraudulently. This opinion is generally approved by Marcellus
in his comments on Julianus, for he says that every one who volunteers to
defend a suit for the recovery of an estate is liable just as if he were in
possession of the same.
(14) Moreover, when anyone is guilty of fraud to avoid being in
possession, he will be liable to an action for the recovery of an estate.
Where, however, I lose possession through fraud, and another obtains it and is
ready to defend an action, Marcellus in the Fourth Book of the Digest discusses
the point as to whether the right to damages is not extinguished as against a
party who has ceased to be in possession; and he also says that it is
extinguished unless the plaintiff has an interest in a contrary decision. He
states positively that if the party is prepared to surrender the property, the
right of action for damages is undoubtedly extinguished; but if he who
relinquishes possession fraudulently is sued before the other, the possessor
will not be released from liability.
(15) The action for the recovery of an estate can also be brought
against a debtor to the same, on the principle that he is the possessor of a
right; and it is established that suit can be brought for the recovery of an
estate against the possessor of a right.
14. Paulus, On the Edict, Book XX.
It makes no difference whether the person is a debtor on account of some
offence which he has committed, or by reason of a contract. The term "debtor to
an estate" is understood to include a person who incurred some liability to a
slave belonging to the estate, or one who did some damage to it before it was
15. Gaius, On the Provincial Edict, Book VI. Or someone who stole
something from the estate.
16. Ulpianus, On the Edict, Book XV.
Where, however, the person against whom suit is brought for recovery of
the estate is a debtor for a sum to be paid within a certain time, and under
some condition, judgment should not be rendered against him. It is clear that
the time when judgment is rendered should be considered by the court in
determining whether the day for payment has arrived, according to the opinion
of Octavenus as stated by Pomponius; which would also be the case in a
conditional stipulation. If, however, the day of payment has not arrived, the
defendant should by order of the judge make provision for the payment of the
debt at the proper time, or when the condition is fulfilled.
(1) He also who is in possession of the price of property belonging to
the estate, or who has collected a claim from a debtor to the estate, is liable
in an action for the recovery of the estate.
(2) Wherefore, Julianus states in the Sixth Book of the Digest, an
action for the recovery of an estate can be brought against a party who also
claims it, and who has collected damages in a suit.
(3) An action for the recovery of an estate can be brought not only
against a debtor of the deceased, but also against a debtor to the estate. It
is held by both Celsus and Julianus that it can be brought by anyone who
transacted the business of the estate; but where the party transacted business
for the heir, this cannot be done, for no action for the recovery of an estate
can be brought by anyone indebted to the heir.
(4) Julianus states that if a person who is in possession as heir is
forcibly ejected, suit can be brought by him as the possessor of a right
against the estate; for the reason that he is entitled to the interdict Unde
vi, which he must assign if he is defeated; but the party who ejected him
is also liable to a suit for recovery, because he is in possession "as
possessor" of the property belonging to the estate.
(5) Julianus further says that where anyone sells property belonging to
an estate, whether he is in possession, or whether he has received the purchase
money or not, or has a right to bring suit for the same, he is, in this case
also, required to assign his rights of action.
(6) He also says that a patron cannot bring suit for an estate against a
party to whom his freedman fraudulently made a transfer, because he is liable
to the Calvisian Action, at the instance of the said patron, as he is the
debtor of the latter, and not the debtor of the estate. Therefore, no suit for
the recovery of an estate will lie against one to whom a donation was made
(7) Julianus always says that where anyone transfers an estate, or
delivers certain articles belonging to the same, in compliance with a trust,
suit can be brought against him for recovery; because he has a right to bring a
personal action to recover property transferred for that reason, and he is, as
it were, the possessor of a right. He also states that where he has paid out
the purchase-money of articles which he sold in pursuance of the trust, suit
for recovery of the estate can be brought against him, because he himself can
recover the money. In such instances, however, the heir must only assign his
rights of action; since the property is in existence, and the claimant can also
recover it by an action in rem.
17. Gaius, On the Provincial Edict, Book VI.
If the possessor of an estate should pay legacies with his own money,
for the reason that he thought that he was the heir under the will, and anyone
deprives him of the estate on the ground of intestacy — although it may be
held that the possessor is damaged, because he did not provide for himself by
making a stipulation that if the estate was acquired by some other person, the
legacies should be returned to him — still, as it might happen that he
paid the legacies at a time when there was no controversy as to the ownership
of the estate, and for
that reason he failed to obtain security, it is established in a case of
this kind that if he loses the estate, an action for the recovery of what he
paid should be granted him.
But where no security was given, and such an action is granted, there is
danger that he cannot recover anything on account of the poverty of the party
to whom the legacy was paid; and, therefore, according to a decree of the
Senate, he is entitled to relief, and can pay himself by retaining property
belonging to the estate; but he must assign his rights of action to the
plaintiff so that he may institute proceedings at his own risk.
18. Ulpianus, On the Edict, Book XV.
It should also be considered, when the possessor of an estate makes a
sale through a broker, and the latter loses the money, whether he is liable to
a suit for recovery, since he has nothing and can obtain nothing? Labeo thinks
that he is liable, becauses he injudiciously trusted the broker at his own
risk. Octavenus, however, says that he must assign nothing but his rights of
action, for he is liable to a suit to recover these rights. It seems to me that
the opinion of Labeo is correct in the case of a party who holds possession in
bad faith, but that that of Octavenus is the one to be adopted where the
possessor is a bona-fide one.
(1) Where an action is brought against a party for the recovery of an
estate, who is not at the time the possessor of either the property, or of any
right, but who subsequently obtained possession of either, can he be held
liable to such an action? Celsus, in the Fourth Book of the Digest, states very
properly that a decision should be rendered against him, even though in the
beginning he had nothing in his possession.
(2) Now let us consider what things are included in the suit for the
recovery of an estate. It is held that a suit of this kind includes all the
assets belonging to an estate, whether they consist of rights or tangible
19. Paulus, On the Edict, Book XX.
And, indeed, it embraces not only tangible property belonging to the
estate, but also such as does not form part of it, but which is nevertheless at
the risk of the heir; as for instance, articles given in pledge to the
deceased, or loaned to him, or deposited with him. In fact, as to articles left
in pledge, there is a special action for their recovery, even though they are
included in the suit for the estate, like those articles which are the object
of the Publician Action.1 But although an action cannot readily be
brought with reference to articles which have been
1 This action was one in rem, and lay where the legal
possession had been lost before the right of ownership had been perfected by
lapse of time, and applied not only to tangible property but also to services,
usufructs, and even to things not subject to usucaption. The Court protected
the possessor against all other persons until the alleged owner had proved his
superior title to the article or right in dispute. — ED.
loaned or deposited, it is still just that they should be restored,
because parties are subject to risk on their account.
(1) But where the term requisite to acquire ownership by usucaption, as
purchaser, has been completed by the heir, that is to say, the plaintiff, the
property will not be included in the suit for recovery of the estate, nor will
any exception be granted the possessor.
(2) Those articles also are included in the suit for recovery of an
estate which the possessor has a right to retain, though not the right of
action to recover them; for example, where the deceased had sworn that the
property did not belong to the plaintiff, and then died, this must also be
restored. Nay more, where the possessor of property lost it through his own
fault, he will be liable on this account. The same rule will apply to the case
of a depredator, although he is not liable on the ground of negligence, because
he ought not to retain the property.
(3) I have stated that servitudes are not included in the restitution of
property belonging to an estate, since there is nothing to be restored under
that head, as in the case of material things and their profits; but if the
owner of the land does not permit the other party to pass through without
hindrance, a suitable action can be brought against him.
20. Ulpianus, On the Edict, Book XV.
Those things also which were acquired on account of the estate are also
embraced in a suit for its recovery; as for instance, slaves, cattle, and
anything else which was necessarily obtained for the benefit of the estate.
Where, indeed, these were purchased with money belonging to the estate, they
are undoubtedly included therein. But if the money was not a part of the
estate, it should be considered whether this is the case; and I think that they
ought to be included if they were of great advantage to the estate, and the
heir must by all means return the price paid for them.
(1) Everything purchased with money belonging to an estate is not,
however, to be included in an action for its recovery. For Julianus says in the
Sixth Book of the Digest, that if the possessor purchased a slave with money
belonging to the estate, and suit is brought against him for its recovery, the
slave will only be included in the assets of the estate if it was to the
interest of the same that he should be purchased; but if the possessor bought
him for his own use, then the price paid for him must be included.
(2) In like manner, if the possessor sold land belonging to the estate
without any good reason, not only the land, but its crops as well, shall be
included in a suit to recover the estate; but if he did this for the purpose of
paying a debt due from the estate, nothing else shall be included but the price
which was paid.
(3) Again, not only the property which was in existence at the time of
death, but also that which was afterwards added to the estate, are to be
included in the action for its recovery; for an estate admits of both the
increase and diminution of its assets. I am of the opinion that whatever is
added to an estate after it has been entered upon, — if, in fact, it is
derived from the estate itself — should form part of the same;
but if it is derived from some other source it does not, because such
property belonged to the possessor in person. All crops also constitute an
increase of the estate, whether they have been obtained before, or after entry
upon the same, and the offspring of female slaves unquestionably increases the
amount of an estate.
(4) As we have previously mentioned that all rights of action belonging
to an estate can be included in a suit brought for its recovery, the question
arises whether they bring their proper character with them or not; for example,
where the amount of damages in an action is increased by the denial of the
defendant, does such an action include the said increase, or is it only brought
for simple damages, as under the Lex Aquilia? Julianus says in the Sixth
Book of the Digest, that liability exists only for simple damages.
(5) The same authority very properly holds that where the possessor has
had judgment rendered against him in a noxal action in favor of the deceased,
he cannot be released by a surrender of whatever caused the damage; because a
defendant only has the right of surrendering the property for that purpose,
until suit has been brought against him to enforce the judgment; but after it
has been brought, he cannot liberate himself by a surrender of this kind; and,
indeed, such a proceeding has been brought against him in this instance by
filing a petition for the recovery of the estate.
(6) In addition to these points, we find many others discussed with
reference to suits for the recovery of estates; to the sale of property
belonging to deceased persons; to fraud which has been committed; and to
profits. As, however, a rule was established by a decree of the Senate, the
best course will be to give the contents of the decree itself in its own words
and then interpret it: "On the day before the Ides of March Quintus
Julius Balbus and Publius Juventius Celsus, Titius Aufidius and Oenus
Severianus, being Consuls, made statements with reference to those questions
which the Emperor Cæsar, the son of Trajanus Parthicus, grandson of the
Divine Nerva, Hadrianus Augustus, the greatest of sovereigns, proposed and
included in a written communication on the fifth day of the Nones of March what
he wished to be done, and thereupon they passed the following resolutions:
Whereas, before suit was brought by the Treasury for a certain part of the
property of Rusticus forfeited to the State, those who thinking that they were
heirs of said estate sold the same; We decree that interest ought not to be
charged on the price of the property sold, and the same rule must be observed
in similar cases. Moreover, We decree that where judgment is rendered against
parties who have been sued for the recovery of an estate, the price of any
property belonging to said estate must be refunded by them, even if such
property was destroyed or depreciated in value before the action for recovery
was brought. Moreover, if any parties have taken possession of the property of
an estate when they knew that it did not belong to them, even though this was
done before issue was joined, in order to avoid being in possession of the
same, judgment shall be rendered against them just as if they had been in
possession of said property; but where they had
good reason to believe that they were entitled to the said property,
they shall only be liable to the extent to which they profited by their
"It was the opinion of the Senate that the action for recovery of the
estate must be considered to have been brought by the Treasury as soon as the
party knew that he had been sued; that is to say, as soon as he was notified or
summoned either by a letter or by a citation."
We must now give the proper interpretation of the separate terms of the
decree of the Senate.
(7) The Senate says, "Before suit was brought by the Treasury for a
certain part of the property forfeited to the State". What occurred was that
the Treasury brought suit for a certain forfeited portion of an estate, but if
the whole of it had been claimed, the Decree of the Senate would likewise be
applicable; and where an action was brought by the Treasury for unclaimed
property or goods to which it was entitled for any other good reason, the same
rule would apply.
(8) The same decree of the Senate will apply where an action is brought
by a municipality.
(9) Where a private party brings an action, no one doubts that the
decree of the Senate will also apply, although it is made on account of a
(10) Not only do we make use of this decree of the Senate in questions
relating to estates, but also in those having reference to the peculium
castrense, or any other aggregate of property.
(11) With reference to the clause, "The action for the recovery of the
estate must be considered to have been brought as soon as," etc., this
signifies as soon as the party knows that the estate is demanded of him,
because as soon as he learns of this he immediately becomes a possessor in bad
faith, that is "As soon as he was notified". What would be the case, however,
if he was aware of the fact, and still nobody notified him? Will he become
liable to refund the interest on money received for the sale of property? I
think that he will, for he then becomes a possessor in bad faith. But let us
suppose that he has been notified, but was not aware of it, because the notice
was served, not on himself but on his agent? The Senate requires that he
himself should be notified; and therefore he will not be affected unless the
party to whom notice was given informs him; but where the agent was able to do
so, and did not, he will not be liable. The Senate did not state by whom the
party must be notified, and therefore whoever does it will render him whom he
(12) These things have reference to bona-fide possessors, for the
Senate mentioned those, "Who, thinking that they were heirs"; but where a party
sells an estate which he knows does not belong to him, then, beyond question,
not only the purchase-money of the property but also the property itself and
the profits of the same, are included in the suit for recovery. However, the
Emperor Severus in an Epistle to Celer seems to have applied this rule to
possessors in bad faith also; although the Senate only mentioned those who
thought themselves to be heirs; unless we refer the words to such articles as
it was expedient to sell because they were a burden, rather than a benefit to
the estate, so
that it might be in the discretion of the plaintiff to select what
account he could render against the possessor in bad faith; whether he would
demand of him the property and the profits thereof, or the purchase-money and
interest, after proceedings had been instituted.
(13) Although the Senate mentions those who think that they are heirs,
still, if they consider themselves to be the possessors of the property or any
other lawful possessors, or the estate has been delivered to them, they will
occupy the same position.
(14) Papinianus states in the Third Book of Questions, that if the
possessor of an estate does not handle money found among the assets of the
same, a suit for interest can, under no circumstances, be brought against
(15) The decree of the Senate says, "On the purchase money received for
the property sold". We must understand by "purchase-money received", not only
that which was already obtained, but also that which might have been obtained,
but was not.
(16) What must be done if the possessor sold property after a suit for
recovery of the estate had been brought? Then the property itself and the
profits of the same will be included. If, however, the property should be of
such a nature as to be unproductive, or liable to be destroyed by lapse of
time, and it was sold at its true value, perhaps the plaintiff may choose to
have the purchase-money and the interest of the same.
(17) The Senate says it is decreed that, "Where suit is brought against
any persons for the recovery of an estate, and judgment is rendered against
them, the purchase-money which they received for the sale of property belonging
to said estate must be surrendered by them; even though such property may have
been destroyed, or diminished in value before the suit was brought". Where a
bona-fide possessor sells the property of an estate, whether he received
the purchase-money or not, he must return the price, because he has a right of
action; but where he has a right of action, it will be sufficient if he assigns
(18) But where he sold property, and paid over what he received for it
to the true owner on a judgment for the same, it is not held to have come into
his hands; even if it might be said that, in the beginning, the purchase-money
was not included in the suit, because what was sold did not form part of the
estate. But although the Senate made mention not of property which belonged to
the estate but of articles included in it, he will not be compelled to make
restitution, since nothing remains in his hands. Julianus states in the Sixth
Book of the Digest, that a party will not be required to make restitution of
what he collected which he actually does not owe; nor will he be entitled to
credit for money which he paid which was not due.
(19) But where property has been returned, then it is certainly a part
of the estate, and the price of the same which was refunded will not be
included in a suit for recovery of the estate.
(20) Where the possessor of an estate is liable to the purchaser by
reason of the sale, it must be held that he is protected by the security.
(21) The possessor must pay over the purchase-money, whether the
property is destroyed, or diminished in value. But, is he bound to refund it
without distinction, if he is the possessor in good faith, or even in bad
faith? If the property is still in existence and in the possession of the
purchaser, and is not destroyed or deteriorated; then, undoubtedly a possessor
in bad faith must deliver the actual property, or, if he is absolutely unable
to recover it from the purchaser, he must pay as much as the property is sworn
to be worth in court. Where, however, the property is lost or deteriorated, the
real value must be paid, because if the plaintiff had secured the property, he
might have sold it, and could not have lost its real value.
21. Gaius, On the Provincial Edict, Book VI.
Property is understood to be destroyed, when it has ceased to exist; and
lost, when the title to it has been acquired by usucaption, and, on this
account, it has been removed from the assets of the estate.
22. Paulus, On the Edict, Book XX.
Where a bona-fide possessor has obtained both the property and
the purchase-money for the same; for example, because he purchased the
identical thing, should he be heard if he prefers to surrender the property and
not the purchase-money? We hold that in the case of a depredator, the plaintiff
should have his choice; but, in this instance, the possessor has a better right
to be heard, if he wishes to deliver the property itself, even though it may be
deteriorated; but if the plaintiff wishes to have the purchase-money, he should
not be heard, because a desire of this kind is an impudent one; or shall we
consider that, since the purchaser has been enriched by property included in
the estate, he should surrender it with the excess of the purchase-money over
and above its present value? In an Address of the Divine Hadrian the following
appears: "Conscript Fathers examine whether it is more equitable that the
possessor should not obtain a profit, but should surrender the purchase money
which he received for the sale of property belonging to another, as it may be
decided that the purchase-money takes the place of the property of the estate
which was sold, and, to a certain extent, becomes a portion of the assets of
Therefore the possessor is required to surrender to the plaintiff not
only the property itself but also the profit which he obtained by the sale of
23. Ulpianus, On the Edict, Book XV.
It should be considered whether a bona-fide possessor is required
to surrender all the purchase-money, or whether he must do so only in cases
where he was enriched by it; suppose, for example, that after having received
it he either lost it, expended it, or gave it away. The clause, "Came into his
hands", is one of doubtful significance, whether it only applies to what there
was in the beginning, or to what remains; and I think that the next clause in
the decree of the Senate is also ambiguous, and that no claim can be made
except where the party is pecuniarily benefited.
(1) Hence, if what comes into his hands is not only the purchase-money,
but also a penalty incurred on account of delayed payment; it may be held that
this also was included, because the party was enriched to that entire amount,
although the Senate only mentioned the purchase-money.
24. Paulus, On the Edict, Book XX.
Where the possessor is forcibly ejected, he is not obliged to give up a
penalty incurred, because the plaintiff has no right to the same. Neither is he
required to surrender a penalty which his adversary promised him if he should
not be present at the trial.
25. Ulpianus, On the Edict, Book XV.
Moreover, if he sold part of the estate under a conditional agreement it
must be stated that the same rule applies, and he must surrender the profit
which he obtained under such conditions.
(1) Again, if he sold property and bought other property with the
purchase-money, the latter will be included in a suit for the recovery of the
estate; but not the property which he added to his own possessions. But, where
the property purchased was of less value than what is paid for it, he will be
considered to have become enriched to the amount only of the value of said
property, just as, if he had used it up, he would not be considered to have
been enriched to its full value.
(2) When the Senate says: "Where parties have taken possession of
property which they know does not belong to them, even though they did this
before issue was joined, in order to avoid being in possession of the same;
judgment shall be rendered against them, just as if they were in possession";
this is to be understood to mean that fraud which has been committed, as well
as negligence, may be alleged in the action for the recovery of the estate; and
therefore suit can be brought against a party who did not collect a debt of the
estate from another, or even from himself, if he was released by lapse of time,
that is, if he was able to collect the debt.
(3) As to what the Senate says, namely, "Where they have taken
possession of property", reference is here made to plunderers, that is to say,
those who know that the estate does not belong to them and appropriate its
assets; at all events, where they have no good reason for taking possession of
(4) So far as profits are concerned, however, the Decree states that
they will have to surrender not only what they obtained, but also what they
ought to have obtained.
(5) In this instance the Senate refers to a party who has appropriated
property belonging to an estate for the purpose of plundering it. Where,
however, in the beginning, he had good cause for taking possession, and
afterwards having become aware that none of the estate belonged to him, acted
in a predatory manner, the Senate does not seem to refer to him; still, I am of
the opinion that the intention of the Decree also has reference to him; for it
makes little difference whether a man conducted himself fraudulently in
connection with an estate in the beginning, or began to do so subsequently.
(6) With regard to the clause, "Who knows that the property does not
belong to them"; shall this be considered to apply to one who is aware of the
facts, or to one who made a mistake with reference to the law? For he may have
thought that a will was properly executed, when it was void; or that he was
entitled to the estate rather than some other agnate who had preceded him. I do
not think that anyone should be classed as a plunderer who lacks fraudulent
intent, even though he may be mistaken with reference to the law.
(7) The Decree says, "Even though they should do this before issue was
joined"; and this has been added for the reason that, after issue has been
joined, all possessors are held to be liable for bad faith; and, indeed, this
is the case after proceedings have been instituted. Although mention is made of
joinder of issue in the Decree of the Senate, still, as soon as proceedings
have been begun, all possessors are on the same footing, and are liable as
plunderers, and we make use of this rule at the present time. Hence, as soon as
the party is called to account, he becomes aware that the property of which he
is in possession does not belong to him; and, indeed, where a man is a
plunderer, he will be held liable on the ground of fraud before issue is
joined, for this would be a species of fraud which has already been
(8) "Therefore", it is further stated in the Decree, "judgment should be
rendered against them just as if they were in possession". This is reasonable,
for a party who acts fraudulently in order to avoid being in possession should
have judgment rendered against him, just as if he were the actual possessor;
which is to be understood to mean whether he fraudulently relinquishes
possession, or with fraudulent intent refuses to take possession. This clause
will apply whether the property is in possession of another or has absolutely
ceased to exist; wherefore, if some one else is the possessor, suit for the
recovery of the estate can be brought against either party, and where
possession has passed through several persons all of them will be liable.
(9) Shall he alone who is in possession be liable for the profits, or
will he also be liable who acted fraudulently to avoid being in possession? It
must be said, after the Decree of the Senate, that both are liable.
(10) These words of the Decree permit an oath to be administered, even
against the party who is not in possession; as he who acted fraudulently to
avoid being in possession may swear to the amount in court, just as the
defendant can do who is in possession.
(11) The Senate attempted to favor bona-fide possessors, in order
to prevent them from being subjected to loss of the full amount, and only to be
held liable to the extent to which they became enriched; therefore, whatever
expense they caused the estate, either by wasting or losing any of the
property, if they thought that they were squandering what belonged to
themselves, they will not be compelled to make restitution; nor where they have
given anything away, will they be considered to have become more wealthy,
although they may have placed some one under a natural obligation to remunerate
them. It is clear that if they have accepted any recompense in return, it must
held that they are enriched to the amount of what they received; as this
would be a certain kind of exchange.
(12) Where anyone makes use of his property in a more lavish manner on
account of his being entitled to an estate, Marcellus thinks, in the Fifth Book
of the Digest, that he will not be entitled to any deduction from the estate if
he has not used any of it.
(13) In like manner, if he borrowed money as though he were rich and
deceived himself, the same principle will apply.
(14) Where, however, he pledged some of the assets of the estate, should
it be considered whether he has used any of said assets? This is a difficult
question to answer, as he himself is liable.
(15) To such an extent is it true that a person is not held liable who
is not enriched, that if anyone, being under the impression that he is the sole
heir, wastes half of an estate without fraudulent intent, Marcellus, in
treating this point in the Fourth Book of the Digest, asks whether he is
liable; since what he appropriated was derived from property that did not
belong to him, but to his co-heirs; for if a man who is not an heir wastes
everything under his control, he will undoubtedly not be liable, since he was
In the question proposed, however, there are three opinions involved;
one the first mentioned; next, the second, namely, that it might be said that
he is obliged to surrender all the assets that remain, since he had squandered
his own share; and third, that what was wasted should be charged to both; and
he says that something should certainly be given up, but he doubts whether
restitution for all or only a part should be made. It is my opinion, however,
that the entire balance should not be given up, but only half of the same.
(16) Where anyone has expended part of an estate must it lose all, or
will a proportion of the loss be taken out of his patrimony? As, for example,
where he drank up the entire supply of wine belonging to the estate; must the
estate bear all the expense, or will some of it be charged to his patrimony?
This would be on the supposition that he Was deemed to be more wealthy to the
amount that he was in the habit of expending for wine before he received the
inheritance; so that, if he was more lavish in his expenditure on account of
the inheritance, he would not be considered to become more wealthy to the
amount of the excess, but he would be held to have become enriched so far as
his regular outlay was concerned; since, if that were true, he would not have
incurred such great expense; nevertheless, he would have spent something for
his daily subsistence.
The Divine Marcus, in the case of a certain Pythodorus, who had been
asked to give up as much of the estate as remained under his control, decreed
that what had been alienated without the intention of diminishing the trust,
and the price of which had not increased the private property of Pythodorus,
should be returned, and should be charged to the private property of Pythodorus
and the estate, and not the estate alone. Therefore, it must be considered
whether, in accordance with the Rescript of the Divine Marcus, the ordinary
expenses should be taken out of the estate, or out of the private property of
aforesaid party; and the better opinion is that the expenses which he
would have incurred, if he had not been the heir, must be paid out of his own
(17) Moreover, if the bona-fide possessor sold property of the
estate and did not become more wealthy by the purchase-money, has the plaintiff
a right to recover certain articles from the purchaser, if he has not yet
acquired the title to them through usucaption? And, if he brings suit for their
recovery, may he not be barred by this exception; ("As the estate should not be
prejudiced by any question arising between the plaintiff and the party who made
the sale, on the ground that the price of said property is not held to be
included in the action brought for the recovery of an estate"), and even if the
purchaser loses his case, has he a right for reimbursement from the party who
made the sale? I am of the opinion that the property can be recovered, unless
the purchaser can have recourse to the bona-fide possessor. But what if
the party who made the sale is prepared to set up a defence, in order to permit
himself to be sued, just as if he were in possession? In this instance an
exception would apply on the part of the purchaser. It is certain that if the
property was sold for a low price and the plaintiff recovers it, no matter what
the amount was, then much more may it be said that he will be barred by an
exception. For if the possessor collects anything from the debtors of the
estate, and pays the money to the plaintiff, Julianus says in the Fourth Book
of the Digest, that the said debtors are released from liability, whether the
party who collected the debts from them was a bona-fide possessor or a
plunderer, and that they are discharged by operation of law.
(18) A suit for the recovery of an estate, although it is in an action
in rem, still includes some personal obligations; as, for example, the
payment of funds received from debtors, as well as the purchase money of
property which has been sold.
(19) This Decree of the Senate though it was passed to facilitate
proceedings for the recovery of an estate, it is well settled also applies to a
suit in partition; otherwise, the absurd principle would be established that an
action might be brought for the recovery of property, but not for the purpose
of its division.
(20) The young of flocks and cattle form part of the increase of an
26. Paulus, On the Edict, Book XX.
And if lambs are born, and afterwards others are born of these, the
latter must also be given up as an increase of the estate.
27. Ulpianus, On the Edict, Book XV.
The issue of female slaves and the offspring of their female children
are not considered to be profits, because it is not customary for female slaves
to be acquired for breeding purposes; their offspring are, nevertheless, an
increase of the estate; and since all these form part of the estate, there is
no doubt that the possessor should surrender them, whether he is the actual
possessor, or, after suit was brought, he acted fraudulently to avoid being in
(1) Moreover, rents which have been collected from persons who leased
buildings, are included in the action; even though they may have been collected
from a brothel, for brothels are kept on the premises of many reputable
28. Paulus, On the Edict, Book XX.
For, according to the Decree of the Senate, it must be held that every
species of profit should be included, whether it is obtained from a
bona-fide possessor or from a depredator.
29. Ulpianus, On the Edict, Book XV.
It is evident that any payments received from testaments are to be
considered as profits. Compensation for the labor of slaves is in the same
class as rents, as well as payment made for transportation by ships and beasts
30. Paulus, On the Edict, Book XX.
Julianus states that a plaintiff ought to elect whether he will demand
merely the principal or the interest as well, taking an assignment of the
rights of action at his own risk. But, according to this, we shall not observe
what the Senate intended should occur, which was that a bona-fide
possessor should be liable to the amount by which he was enriched; and what
would be the case if the plaintiff should elect to take money which the
defendant had been unable to retain? It must be said therefore with reference
to a bona-fide possessor, that he is only obliged to pay either the
principal and interest on the same, if he received any, or assign his right of
action for whatever is still due to him under it; but of course, at the risk of
31. Ulpianus, On the Edict, Book XV.
If the possessor has paid any creditors, he will have a right to include
these payments, even though he did not actually release the party who brought
the action for recovery; for where anyone makes a payment in his own name, and
not in behalf of the debtor, he does not release the debtor. Hence, Julianus
says in the Sixth Book of the Digest, that the possessor can, under such
circumstances, only be credited where he gives security that he will defend the
plaintiff against the creditors. But whether a bona-fide possessor is
obliged to give security that the plaintiff shall be defended, should be
considered, because he does not seem to have been enriched by the payments
which he made; unless he may have had a right of action to recover them, and in
this respect he appears to be enriched, because he can bring suit to recover
the money; for example, where he thinks that he is the heir, and paid what was
due on his own account. Julianus appears to me to have been thinking only of a
plunderer who ought to give security, and not of a bona-fide possessor;
the latter, however, must assign his right of action. Where the plaintiff is
sued by the creditors, he should make use of an exception.
(1) Where anything was owing to the plunderer himself, he should not
deduct it; especially if it was a debt due through a natural obliga-
tion. But what if the plaintiff was benefited by the debt being paid,
because it was incurred with a penalty, or for some other reason? In this
instance it may be stated that he has paid himself, or should have done so.
(2) A lawful possessor undoubtedly ought to deduct what is due to
(3) Just as he can deduct expenses which he has incurred, so, if he
ought to have incurred expenses and did not do so, he must answer for his
negligence, unless he is a bona-fide possessor; and then as he neglected
his own business, as it were, no suit can be brought against him before that
for the recovery of the estate; but after that time he himself is a
(4) It is evident that a plunderer cannot be called to account for
permitting debtors to be released from liability, or to become poor, instead of
suing them immediately, since he had no right of action.
(5) Let us see whether a possessor is required to refund what has been
paid him. Whether he was a bona-fide possessor or not, it is established
that he must make restitution, and if he does do so, (as Cassius states, and
Julianus also in the Sixth Book) the debtors are released by operation of
32. Paulus, On the Edict, Book XX.
Property which is acquired through a slave must be delivered to the
heir. This rule applies also to the estate of a freeman, and where proceedings
are instituted on the ground of an inofficious testament, when, for the time
being, the slave is included in the property of the heir:
33. Ulpianus, On the Edict, Book XV.
Unless the slave entered into a stipulation based on the property of
(1) Julianus says that where a possessor sold a slave, if the latter was
not required by the estate, he can be asked in the action for recovery to pay
over the purchase-money, as he would have been charged with it if he had not
sold him; but where the slave was required by the estate, he himself must be
delivered, if he is living, but if he is dead, perhaps not even the price paid
for him should be surrendered; but he says that the judge who has jurisdiction
of the case will not permit the possessor to appropriate the purchase-money,
and this is the better opinion.
34. Paulus, On the Edict, Book XX.
I am of the opinion that where the estate of the son of a family, who is
a soldier, is left to anyone by will, an action to recover the same can be
(1) Where a slave, or the son of a family has possession of property
belonging to an estate, suit can be brought for the estate by either the father
or the master, if the party has the power to give up the property. It is
evident, if the master has obtained the purchase-money of property belonging to
the estate, as a portion of the slave's peculium,
that then, as Julianus holds, the suit for recovery can be brought
against the master as the possessor of a right.
35. Gaius, On the Provincial Edict, Book VI.
Julianus likewise says that "A suit for the recovery of an estate can be
brought against the master, as the possessor of a right, even where the slave
has not yet received the purchase-money of the property, for the reason that he
has a right of action by which he can recover the money; which right of action
may be acquired by any one even if he is not aware of the fact".
36. Paulus, On the Edict, Book XX.
Where suit for the recovery of an estate is brought against the owner of
a slave or a father, who has the purchase money, should proceedings be
instituted within a year after the death of the son or the slave, or after the
slave has been manumitted, or the son emancipated? Julianus states that the
better opinion is (and in this Proculus also concurs), that a perpetual action
should be granted and that it is not necessary for the party's own debt to be
deducted, because the proceedings do not relate to peculium, but suit is
brought for the recovery of an estate. This is correct where the slave or the
son has the purchase-money; but if the suit is brought against the owner of the
slave, because the debtor himself is a slave, action should be taken as if the
peculium was involved in the case. Mauricianus says that the same rule
applies, even if the slave or the son squanders the money obtained as the
price, but it can be made good in some other way out of his
(1) There is, however, no doubt that a suit for the recovery of an
estate can be brought against the son of a family, because he has the power to
deliver it; just as he has to produce it in court. With much more reason can we
say that an action for recovery can be brought against the son of a family who,
when he was the head of a household and in possession of the estate, permitted
himself to be arrogated.
(2) If the possessor should kill a slave belonging to the estate, this
also can be included in the action for its recovery; but Pomponius says that
the plaintiff must elect whether he desires judgment to be rendered in his
favor against the possessor; provided he gives security that he will not
proceed under the Lex Aquilia, or whether he prefers that his right of
action under the Lex Aquilia should remain unimpaired, and not have an
appraisement of the property made by the court. This right of election applies
where the slave was killed before the estate was entered upon; for, if this
were done subsequently, then the right of action becomes his own, and cannot be
included in the suit to recover the estate.
(3) Where a plunderer fraudulently relinquishes possession, and the
property is destroyed in the same way that it would have been destroyed if he
had remained in possession under the same circumstances; then, considering the
words of the Decree of the Senate, the position of the plunderer is preferable
to that of the bona-fide posses-
sor; because the former, if he fraudulently relinquished possession, can
have judgment rendered against him just as if he was still in possession, and
it is not added in the decree: "If the property should be destroyed". There is
no question, however, that the position of the plunderer ought not to be better
than that of the bona-fide possessor. Therefore, if the property brought
more than it was worth, the plaintiff should have the right to choose whether
or not he will take the purchase-money; otherwise, the plunderer will profit to
a certain extent.
(4) Some doubt is expressed as to the time when a bona-fide
possessor became enriched; but the better opinion is that the time when the
case was decided should be considered in this instance.
(5) With reference to profits, it is understood that the expenses
incurred in the production, collection, and preservation of the profits
themselves should be deducted, and this is not only positively demanded on the
ground of natural justice in the case of bona-fide possessors, but also
in that of plunderers, as was also held by Sabinus.
37. Ulpianus, On the Edict, Book XV.
Where a person has incurred expense and realized no profit, it is
perfectly just that the expense should be taken into account in the case of
38. Paulus, On the Edict, Book XX.
In the case of other necessary and useful expenses, it is evident that
these can be separated, so that bona-fide possessors may receive credit
for the same, but the plunderer can only blame himself if he knowingly expended
money on the property of another. It is more indulgent, however, to hold that,
in this instance, the account of his expenses should be allowed, for the
plaintiff ought not to profit by the loss of another, and it is a part of the
duty of the judge to attend to this; for no exception on the ground of fraud is
It is clear that the following difference may exist between the parties
for the bona-fide possessor may, under all circumstances, deduct his
expenses, although the matter in which they were incurred no longer exists,
just as a guardian or a curator may obtain allowance for his; but a plunderer
cannot do so, except where the property is rendered better through the
39. Gaius, On the Provincial Edict, Book VI.
Expenses are considered useful and necessary where they are incurred for
the purpose of repairing buildings, or in nurseries of trees, or where damages
are paid on account of slaves, since it is more advantageous to make payment
than to surrender the slave; and it is clear that there must be many other
causes for expenses of this kind.
(1) Let us examine, however, whether we cannot also have the benefit of
an exception on the ground of fraud with reference to expenditures for
pictures, statues, and other things purchased for pleasure, so long as we are
possessors in good faith; for while it may very
properly be said to a plunderer that he should not have incurred
unnecessary expenses on the property of another, still, he should always have
the power to remove whatever can be taken away without injury to the property
40. Paulus, On the Edict, Book XX.
The statement also which is contained in the Address of the Divine
Hadrian, namely: "That after issue has been joined, that must be delivered to
the plaintiff which he would have had if the estate had been surrendered to him
at the time when he brought the suit," sometimes entails hardship. For what if,
after issue had been joined, slaves, beasts of burden, or cattle, should die?
In this instance, the party in compliance with the terms of the Address, must
indemnify the plaintiff, because the latter could have sold them if the estate
had been surrendered. It is held by Proculus that this would be proper where
suit is brought to recover specific articles, but Cassius thinks otherwise. The
opinion of Proculus is correct where a plunderer is concerned, and that of
Cassius is correct in the case of bona-fide possessors; for a possessor
is not obliged to furnish security against death, or, through fear of such an
accident, injudiciously to leave his own right undefended.
(1) The plunderer is not entitled to any profit which he makes, but it
increases the estate; and therefore he must deliver whatever is gained by the
profits themselves. In the case of a bona-fide possessor, those profits
only by means of which the possessor has become enriched will be included in
the restitution as an increase of the estate.
(2) Where the possessor has obtained any rights of action, he must
surrender them if he is evicted from the estate; for example, where an
interdict Unde vi, or Quod precario, has been granted him.
(3) On the other hand, also, where the possessor has given security for
the prevention of the threatened injury, he must be indemnified.
(4) Noxal actions are likewise included in the jurisdiction of the
judge, so that if the possessor is prepared to surrender a slave on account of
some damage which he has committed against the estate, or because he has been
guilty of theft, he shall be released from liability, just as is done in the
interdict Quod vi aut clam.
41. Gaius, On the Provincial Edict, Book VI.
If at the time when suit was brought against the possessor of the
estate, he held but little property belonging to it and afterwards also
obtained possession of more, he will be compelled to surrender this as well, if
he loses his case, whether he obtained possession of the same before or after
issue was joined. If the sureties whom he furnished are not sufficient for the
amount involved, the proconsul shall require him to furnish such as are
suitable. On the other hand, if he acquires possession of less property than he
had in the beginning, provided this happens without any fraud on his part, he
should be discharged from liability so far as the property which he had ceased
to hold is concerned.
(1) Julianus says that the profits obtained from property which the
deceased held as pledges must also be included.
42. Ulpianus, On the Edict, Book LXVII.
Where a debtor to the estate refuses to pay, not because he says that he
is an heir, but for the reason that he denies, or doubts that the estate
belongs to the party who is bringing suit for the recovery of the same, he will
not be liable under the action for recovery.
43. Paulus, On Plautius, Book II.
After I accepted a legacy from you, I brought an action to recover the
estate. Atilicinus says that it has been held by certain authorities that I am
not entitled to an action for recovery against you, unless I refund the legacy.
Still, let us consider whether the plaintiff who brings an action to recover
the estate is only obliged to return the legacy where security is given him
that, if judgment is rendered against him in the case, the legacy will be
repaid to him; since it is unjust that in this instance the possessor should
retain a legacy which he had paid, and especially where his adversary did not
bring the action for the purpose of annoyance, but on account of a mistake; and
Lælius approves this opinion. The Emperor Antoninus, however, stated in a
Rescript that where a man retained a legacy under a will, an action for the
recovery of the estate should be refused him, where proper cause was shown;
that is, where the intention to cause annoyance was manifest.
44. Javolenus, On Plautius, Book I.
Where a party who has received a legacy under a will brings an action
for the recovery of the estate, and, for some reason or other, the legacy is
not returned, it is the duty of the judge to cause the estate to be surrendered
to the plaintiff, after deducting the amount which he received.
45. Celsus, Digest, Book IV.
Where anyone volunteers in the defence of a case without having the
property in his possession, judgment shall be rendered against him; unless he
can show by the clearest evidence that the plaintiff, from the beginning of the
suit, was aware that he was not in possession of the property; because, under
these circumstances, he was not deceived, and he who volunteered in defence of
the action for recovery will be liable on the ground of fraud; and of course
the damages must be estimated according to the interest the plaintiff had in
not being deceived.
46. Modestinus, Differences, Book VI.
He should be understood to be, to all intents and purposes, a plunderer,
who tacitly agrees to deliver the estate to someone who has no right to it.
47. The Same, Opinions, Book VIII.
A certain Lucius Titius having failed to have the testament of a
relative set aside as forged; I ask whether he would not be able to file
a complaint against the testament as being improperly executed, and not
sealed? The answer was that he would not be prevented from instituting
proceedings to show that the testament was not executed according to law, just
because he did not succeed in having it set aside as forged.
48. Javolenus, On Cassius, Book IV.
In appraising the value of an estate, the purchase-money obtained for
its sale must be included, as well as the addition of whatever else it was
worth, if this was done on account of business; but where it is disposed of in
compliance with the terms of a trust, nothing more will be included than what
the party acquired in good faith.
49. Papinianus, Questions, Book HI.
Where a bona-fide possessor wishes to institute proceedings
against debtors of an estate, or parties who hold property belonging to the
same, he should, by all means, be heard, if there is danger of any rights of
action being lost by delay. The plaintiff, however, can bring an action in
rem for the recovery of the estate without fear of being met by an
exception. But what, for example, if the possessor of the estate is negligent,
or knows that he has no legal right?
50. The Same, Questions, Book VI.
An estate may exist under the law even though it does not include
(1) Where 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
51. The Same, Opinions, Book II.
The heir of an insane person will be compelled to indemnify the
substitute or a relative in the next degree for the profits of the intermediate
time by means of which the said insane person seems to have become enriched
through his curator; with the exception of such expenses as have been incurred
either necessarily or beneficially with reference to the estate. Where,
however, any necessary expense has been incurred in behalf of the said insane
person, it must also be excepted; unless the said insane person had other
sufficient property by means of which he could be supported.
(1) Interest on profits received after the action to recover an estate
has been brought is not to be paid. A different rule is applicable where they
were received before the action for recovery of the estate was brought, and for
that reason increased the assets.
52. Hermogenianus, Epitomes of Law, Book II.
Where a possessor has obtained dishonorable profits from an estate, he
will be compelled to surrender them also, lest a strict construction may give
him the benefit of profits not honorably acquired.
53. Paulus, On Sabinus, Book X.
The alienation of property by the possessor is necessary, not only for
the payment of debts by the estate, but where expenses have been incurred by
the possessor on account of the estate, or where property is liable to be
destroyed or deteriorated by delay.
54. Julianus, Digest, Book VI.
Where a party purchases from the Treasury certain shares in an estate,
or the whole of it, it is not unjust that a right of action should be granted
him by which he may bring suit for the entire property; just as a right of
action for recovery is granted to anyone to whom an estate has been delivered
under the Trebellian Decree of the Senate.
(1) There is no doubt that the heir of a debtor can, by an action for
the recovery of the estate, obtain possession of articles pledged by the
(2) Where buildings and lands have become deteriorated through the
negligence of the possessor; for instance, where vineyards, orchards, or
gardens have been cultivated in a manner which was not like that employed by
the deceased owner; the possessor must permit an assessment of damages in court
to the extent to which the property has been diminished in value.
55. The Same, Digest, Book LX.
When an estate has been recovered by suit, the bona-fide
possessor will be compelled to surrender whatever he has collected under
the Lex Aquilia, not only to the extent of the simple value, but to
double the amount; for he should not make a profit out of what he collected on
account of the estate.
56. Africanus, Questions, Book IV.
When an action is brought for the recovery of an estate, all the profits
acquired by the possessor must be surrendered, even where the plaintiff himself
would not have obtained them.
57. Neratius, Parchments, Book VII.
Where the same party defends two actions against the same estate, and
judgment is rendered in favor of one of them, the question sometimes arises
whether the estate should then be surrendered to him who gained the suit, just
as would have been done if no defence had been
made against the other; so that, in fact, if judgment should afterwards
be rendered in favor of the other party, the defendant would be released from
liability; since he was neither in possession, nor had acted fraudulently to
avoid being in possession, as he had surrendered the property when he lost the
case; or because it was possible that the other plaintiff might be able to
obtain a decision in his favor, the defendant should not be obliged to
surrender the estate unless security is given him, for the reason that he was
compelled to defend the action for recovery of the estate against the other
party. The better opinion is that it should be the judge's duty to come to the
relief of the defeated party by security or a bond, since in that way the
property remains for the benefit of him who is slow in asserting his rights
against the successful plaintiff who preceded him.
58. Scævola, Digest, Book III.
A son who was emancipated by his father in compliance with a condition
of his mother's will, entered upon the estate which his father had possession
of before he emancipated his son, and of which he had also obtained the
profits, and expended some of them in honor of his son, who was a senator. The
question arose, as the father was prepared to surrender the estate, after
having reserved the sum which he had expended for his son, whether the latter,
if he still persisted in prosecuting his action for the recovery of the estate,
could be barred by an exception on the ground of fraud? I answered that even if
the father did not avail himself of the exception, the duty required of the
judge could sufficiently dispose of the matter.
CONCERNING ACTIONS FOR THE RECOVERY OP A PORTION
OF AN ESTATE.
1. Ulpianus, On the Edict, Book V.
After the action which the prætor promises to grant to a party who
alleges that the entire estate belongs to him, it follows that he should grant
an action to him who demands a share of the estate.
(1) Where anyone brings suit for an estate, or for a portion of the
same, he does not base his claim upon the amount which the possessor holds, but
upon his own right; and therefore, if he is the sole heir, he will claim the
entire estate, although the other party may be in possession of only one thing;
and if he is an heir to one share of it he will demand a share, even though the
other party may be in possession of the entire estate.
(2) Nay, more, where two parties are in possession of an estate, and two
others allege that certain shares belong to them, the latter are not required
to be content with making their claims against the two in possession; as, for
instance, the first claimant against the first possessor, or the second against
the second possessor, but both should bring suit against the first, and both
against the second; for one has
not the possession of the share claimed by the first, and the other
possession of that claimed by the second, but both are in possession of the
shares of each of the others, in the character of heirs.
Where the possessor and plaintiff both have possession of the estate,
each of them alleging that he is entitled to half of it, they must bring suit
against one another, in order to obtain their shares of the property; or, if
they do not raise any controversy on the ground of inheritance, they must bring
suit for partition of the estate.
(3) Where I claim to be the heir to a share of an estate, and my
co-heir, together with a stranger, is in possession, since my co-heir has no
more than his share, the question arises, whether I must bring suit for the
recovery of the estate against the stranger alone or against my co-heir also?
Pegasus is said to have held the opinion that I should bring suit against the
stranger alone, and that he must surrender whatever he has in his possession;
and perhaps this should be ordered by the court upon application. Reason,
however, suggests that I ought to bring suit for recovery of the estate against
both of them; that is to say, against my co-heir also, and the latter ought to
bring suit against the possessor who is a stranger. The opinion of Pegasus is,
however, the more equitable one.
(4) Moreover, if I claim to be heir to half of the estate, and I am in
possession of a third of the same, and I desire to obtain the remaining sixth
let us consider what plan I should adopt. Labeo states that I should bring suit
against each one for half, so that the result will be that I should obtain a
sixth part from each of them, and shall then have two thirds. This I think to
be correct, but I myself will be required to surrender one sixth of the third
which I formerly possessed; and therefore the judge in the discharge of his
duty must direct me to set off what I possess, if my co-heirs are the parties
from whom I am claiming the estate.
(5) The prætor sometimes grants permission to bring suit for a
portion of an estate which is not certainly ascertained, where proper cause
exists; for instance, where there is a son of a deceased brother, and the
surviving wives of other deceased brothers are pregnant. In this case it is
uncertain what portion of the estate the son of the deceased brother can claim,
because it is not known how many children of the other deceased brothers will
be born. Therefore, it is perfectly just that the claim of a share which is not
known should be granted to the son; so that it may not be too much to say that
where anyone is reasonably doubtful as to what share he should bring suit to
recover, he ought to be permitted to claim a share which is as yet
2. Gaius, On the Provincial Edict, Book VI.
Where the same estate belongs to several persons some of whom enter upon
the same, and others deliberate as to its acceptance, it is held that if those
who enter bring an action to recover the estate, they should not sue for a
larger share than they would have had if the others had entered upon it; nor
will it be of any advantage to them if the others do not enter. But if the
others do not enter, they can then
bring suit for the shares of the latter, provided they are entitled to
3. Paulus, On Plautius, Book XVII.
The ancient authorities were so solicitous to maintain the interest of
an unborn child who would be free at birth, that they reserved all its rights
unimpaired until the time it was to be born. This is apparent in the law of
succession concerning those who are in a more remote degree of relationship
than the unborn child, and who are not admitted to the succession, as long as
it is uncertain whether or not a child will be born. Where, however, there are
others in the same degree of relationship as the one that is unborn, then the
question has arisen what share of the estate should remain in suspense, since
it is impossible to ascertain how many may be born; hence, there are so many
various and incredible accounts given with reference to this matter that they
are usually classed with fables. It is said that four daughters were born of a
married woman at a single birth; and, also, certain writers, who are not
unreliable, have stated that five children were born of a Peloponnesian woman
on four different occasions, and that many Egyptian women have had several
children at once. We have seen three brothers, the Horatii, senators, of one
birth, girded for battle; and Lælius states that he had seen a free woman
on the Palatine Hill who had been brought from Alexandria in order to be shown
to Hadrian with her five children, four of whom he alleges she was said to have
brought forth at one time, and the fifth four days afterwards.
What conclusion must then be arrived at? Authors learned in the law have
taken a middle course, namely, they have considered what might not very rarely
occur; and as three might happen to be born on one occasion, they assigned a
fourth share to the son already born; for (as Theophrastus says) what happens
once or twice, legislators pay no attention to, and therefore if a woman is
actually about to bring forth only one child, the heir that is living will be
entitled, not to half of the estate, but only to a fourth of the same:
4. Ulpianus, On the Edict, Book XV.
And where a less number are born, his share will increase in proportion;
and if more than three are born, there will be a decrease in the share to which
he became the heir.
5. Paulus, On Plautius, Book XVII.
The following should be borne in mind, namely, that if a woman is not
pregnant, but it is thought that she is, her son in the meantime is sole heir
to the estate, although he is not aware that he is such.
(1) The same rule applies in the case of a stranger, where he is
appointed heir to a certain portion of an estate, and posthumous children to
the remainder. But if the appointment of heirs should happen to be made in the
following terms: "All children born to me, together with Lucius Titius, shall
be heirs to equal shares"; doubt may arise whether he cannot enter upon the
estate, just as one who did not know
to what share he was entitled under the will. It is more advantageous,
however, that he should be enabled to enter upon the estate if he does not know
to what share of the same he is entitled, provided he is not ignorant of other
matters which he should know.
6. Ulpianus, Opinions, Book VI.
Where it has been decided that a sister is co-heir together with her
four brothers to the estate of their mother, a fifth part of each of the shares
which they possessed must be granted to her, so that they will give her no more
than the fifth part of each one of the separate four shares to which they had
previously believed themselves to be entitled.
(1) Where expenses are justly incurred on account of liabilities of an
estate, they must be calculated proportionally against the party who has
obtained a share of the estate by the right of a patron.
7. Julianus, Digest, Book VIII.
A party cannot obtain what he has secured by a judgment in an action for
partition by means of an action for the recovery of an estate, the community of
a joint ownership having been dissolved; for the jurisdiction of the judge only
extends to his being able to order that an undivided share of the estate shall
be delivered to the party applying for it.
8. The Same, Digest, Book XLVIII.
The possessor of an estate should be permitted to defend the action so
far as surrendering a share of the same is concerned; for he is not prohibited
from holding the entire estate, as he is aware that half of it belongs to him,
and does not raise any controversy with reference to the other half.
9. Paulus, Epitomes of the Digest of Alfenus, Book HI.
Where several heirs were appointed, and one of them at the time was in
Asia, his agent made a sale and kept the money as the share of his principal.
It was subsequently ascertained that the heir who was in Asia had previously
died, after having appointed his agent heir to half his share and another party
to the other half; and the question arose in what way an action to recover the
money derived from the estate could be brought? The answer was that it ought to
be brought for the entire estate against the party who had been the agent,
because the money belonging to the estate had come into the possession of the
said agent through the sale; nevertheless, they must bring an action against
this co-heir for half the estate. The result would then be that if all the
money was in the possession of the party who had been the agent, they might
recover the entire amount from him, with the assistance of the court; or if he
had returned half of it to his co-heir, they could take judgment against him
for half, and against his co-heir for the other half.
10. 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.
CONCERNING POSSESSORY ACTIONS FOR THE RECOVERY OF ESTATES.
1. Ulpiamis, On the Edict, Book XV.
It is customary for the prætor to consider those parties whom he
constitutes actual heirs; that is to say, to whom the possession of the estate
is granted, after civil actions have been proposed to the heirs:
2. Gaius, On the Provincial Edict, Book VI.
And, by means of this action for the recovery of an estate, the
possessor of the property obtains just as much as an heir can obtain and secure
by means of the civil actions above mentioned.
CONCERNING SUITS FOR THE RECOVERY OF TRUST ESTATES.
1. Ulpianus, On the Edict, Book XVI.
Next in order comes the action open to parties to whom an estate is
delivered. Anyone who receives an estate which has been delivered
in compliance with a decree of the Senate in pursuance of which rights
of action pass, can make use of the action for the recovery of an estate
founded upon a trust:
2. Paulus, On the Edict, Book XX.
And this action has the same effect as a civil suit for the recovery of
3. Ulpianus, On the Edict, Book XVI.
Nor does it make any difference whether a person was requested to
deliver the property to me or to him to whom I am the heir; and if I am the
possessor of the estate of some other successor of the party to whom it was
left in trust, I can proceed by means of this action.
(1) It must be remembered that this action will not lie against anyone
who surrenders the estate.
(2) These actions which are granted to me can be brought in favor of my
heir, as well as against him.