Ad Dig. 2,14,35Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 2.The Same, Opinions, Book II. Two brothers, Titius and Mævius, and a sister Seia, divided an estate between them, which they held in common, and executed an instrument in which they stated that they divided the estate of their mother, and alleged that no property held in common by them remained. Afterwards, however, two of them, namely, Mævius and Seia, who were absent at the time of their mother’s death, learned that a sum of money in gold had been abstracted by their brother, of which sum no mention was made in the instrument of partition. I desire to know whether, after the agreement for partition was made, an action for the recovery of the money which had been abstracted would lie in favor of the brother and sister against the other brother? Modestinus answered that if, when they brought suit for a portion of the money which was said to have been abstracted by Titius, an exception was pleaded against them under a general contract, when they ignorantly agreed to the fraud which had been committed by Titius, they could avail themselves of a replication on the ground of fraud.

The Same, Opinions, Book II. Two brothers, one of age, and the other a minor, owned an unproductive tract of land in common. The older brother erected large buildings on the tract where the residence of his father stood, and when he divided the land with his brother, he claimed that he should be paid for what he had expended, since the property had been improved by what he had done; his younger brother having at that time become of age. Herennius Modestinus answered that he for whom the inquiry was made had no right of action on account of expenses incurred, when there was no necessity for them, and where they had been made only for the sake of pleasure. 1I gave it as my opinion that if Titius brought up his niece through affection for his sister, no action would lie against her on this ground.

Modestinus, Opinions, Book II. Even where it can be established that a minor has been imposed upon by his father, who was also his guardian, and a curator is afterwards appointed for him, the latter cannot be prevented from applying for complete restitution in behalf of the minor. 1Where a female ward who had judgment rendered against her in a case based on curatorship, wished to obtain restitution with reference to one part of the decision; and as it appeared that she had succeeded with reference to the other matter in the case, the plaintiff, who was of age, and had at first acquiesced in the decision, claimed that a new trial should be granted. Herennius Modestinus answered to this, that if the point with reference to which the female ward requested complete restitution had no connection with the others, no reason was alleged for which the plaintiff could demand that the entire judgment should be set aside. 2Where a minor obtains complete restitution on account of his youth, and by reason of this rejects his father’s estate, none of the creditors of the latter being present, or having been summoned by the Governor for the purpose of instituting proceedings; the question arises whether restitution should be considered to have been properly granted? Herennius Modestinus gave it as his opinion that since the creditors were not summoned, and the judgment of restitution had been rendered without this, the rights of the creditors were not in the least impaired.

The Same, Opinions, Book II. Gaius, by his will, appointed Nigidius guardian of his son, and also appointed him curator until his son had reached his twenty-fifth year. I ask, since it is lawful for Nigidius to be excused from the curatorship without an appeal, from what day the time fixed by the Divine Marcus to be observed in the application for discharge shall be reckoned; whether this shall be done from the day when the will is opened, or from that when the guardian is called upon to transact business; that is to say, after the ward has completed his fourteenth year? Modestinus answered that the application to be excused from the curatorship must be made at the time when the curator was confirmed by the decree of the Prætor or Governor.