Paulus, Decrees, Book II. Romanius Appulus took an appeal from a judge, alleging that his colleague should not have been appointed with him in the guardianship, for the reason that the latter had been appointed by him while he was acting magistrate, on his own responsibility, to avoid his being subjected to a double liability, growing out of a single guardianship. The Emperor decreed that the same party could be surety for a guardian, and, nevertheless, be appointed a guardian. Therefore, he was retained in the guardianship.

Paulus, Decrees, Book II. Æmilius Dexter neglected to require security from guardians appointed during the time of his magistracy, and some of them having been excused, Dexter himself was appointed guardian by other magistrates who succeeded him. After his appointment, an action was brought against him for the entire amount, for two reasons; first, because he had appointed guardians at the time when he was a magistrate; and second, because he did not require security from them. On the other hand, it was said that although security was not required, still, the guardians were solvent at the time when the guardianship was terminated, and that the negligence of the curators should not be a source of injury to guardians. It was held that if the guardians were solvent at the time when the guardianship came to an end, even if security was not required, the responsibility will attach to the curators, otherwise, it will attach to the guardians and magistrates; that is to say, that he will be responsible who did not denounce his colleague as suspected, or did not require security when, on the expiration of the trust the guardian was found to be insolvent.

The Same, Decrees, Book II. Paula, having appointed Callinicus heir to a part of her estate, bequeathed by her will ten aurei to her daughter Jubentiana, and then, after some time, having executed a codicil, she left the hundred aurei to the same Callinicus, but did not add: “In addition to his share.” It was decided that both sums should be paid to him, especially as nothing had been left to the daughter of Callinicus by the codicil. 1Pompeius Hermippus appointed his son Hermippus heir to three-fourths of his estate, and his daughter Titiana heir to the remaining fourth, and left to each of them certain lands as preferred legacies; and he also directed that if Hermippus should die without issue, another tract of land should be given to his daughter. After having made his will, he made a codicil by which he left his daughter certain lands, and desired her to be content with them, together with what he had left her by his will. The property of Hermippus was forfeited to the Treasury, and his sister Titiana demanded the execution of the trust. The question arose, as her brother was requested to pay her so much instead of her share of the estate, whether her father intended that she should only receive what he had left her by the codicil. It seems to me that he had absolutely revoked his first will. The more equitable interpretation seemed to be that her father did not intend to deprive her of her share of the estate to which she would have been entitled during the lifetime of her brother, nor of that which the latter was to leave her at his death, if he should die without issue; and it was so decided. 2Julianus Severus, having appointed several heirs at the time of his death, left to his foster brother fifty aurei which he desired to be paid to him by Julius Maurus, his tenant, out of the rent of land that he owed him; and he also bequeathed certain property to the said Maurus. The Treasury raised a question as to the disposal of the estate, and Maurus paid the money to the Treasury, by order of the Imperial Steward, and the appointed heir afterwards gained the case against the Treasury. The foster-brother having died, his heir demanded the execution of the trust by the heir of Maurus; but the Emperor decided that he was not charged with the trust, but that he had only been mentioned to point out the source from which the trust could be obtained, and therefore that the heir of Severus should execute it.

Paulus, Decrees, Book II. A certain Osidius, having appointed his daughter Valeriana his heir, and granted freedom to his steward, Antiochus, and having devised to the latter certain tracts of land together with his peculium and whatever was due, not only from him but from the tenants, the legatee produced a statement written by the hand of the testator, showing what was owing from him and the tenants. The following was also inserted in this instrument: “Moreover, my steward must render an account of other property, that is to say, such as I have set aside for my use, namely grain, wine, and other articles.” The freedmen demanded these things from the heir, alleging that they were included in what remained due, and obtained a judgment in his favor from the Governor. When, on the other hand, it was stated by other interested parties that what remained due from the tenants, or even what was due from himself had not been demanded of him, and they claimed that the articles which had been set aside for the use of the deceased should not be included in the balance which was due, the Emperor interrogated the representative of the legatee, and, by way of example, asked: “Suppose there had been set aside a hundred thousand aurei, which were to be employed for the use of the testator, would you say that all that was left in the chest would be due to you?” He held that the appeal had been properly taken. It was alleged by the representative of the legatee, that certain sums of money had been collected from the tenants, after the death of the testator. The decision was that whatever was collected after his death should be delivered to the legatee.

Paulus, Decrees, Book II. Ad Dig. 36,1,76 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 568, Note 7.A man who had a son and a daughter made a will, and provided as follows for his daughter, “I charge you not to make a will until you have children,” the Emperor decided that a trust was created by this clause, and in this way the testator, by forbidding his daughter to make a will, manifested his desire that she should render her brother her heir, and that the said clause should be understood just as if the testator had charged her to transfer the estate to her brother. 1Fabius Antoninus left a son Antoninus, who had not reached puberty, and a daughter Onorata, and, after having disinherited them, appointed their mother Junia Valeriana, his heir, charging her with a legacy of three hundred aurei and other property for the benefit of his daughter, and then desired all the remainder of his estate to be delivered to his son Antoninus, when he attained the twentieth year of his age. He also directed that the said estate should be transferred to Onorata, if his son should die before reaching his twentieth year. The mother died intestate, leaving her two children her heirs-at-law. Afterwards, the son, having passed his nineteenth year and entered his twentieth, which he had not yet completed, died, leaving his daughter Favia Valeriana his heir. Her paternal aunt brought suit under the trust, as well as for a share of the estate under the will of the father, and gained her case before the Governor of the province. The guardians of Valeriana, the daughter of Antoninus, alleging her poverty, cited a Constitution of the Divine Hadrian by which he had ordered that where a certain age was required for the discharge of municipal duties, the year in which the person had entered should be considered to have expired. Our Emperor also, being influenced by the justice of the case, as well as by the words of the will, “When he reaches the twentieth year of his age,” although he said that he knew that a man who had entered his seventieth year was not excused from guardianship by the Divine Marcus, and although we cited the arguments of the law of Ælia Sentia, decided against the aunt who made the claim.

The Same, Decrees, Book II. Statius Florus, in his written will, had secretly charged his heir Pompey to give a tract of land and a certain sum of money to someone who had no right to receive it, and took the precaution of exacting a bond from Pompey obligating him to surrender what he had left to him as a preferred legacy. Afterwards the said Florus, having appointed the same Pompey and one Faustinus his heirs by a second will, did not bequeath any preferred legacies to Pompey. The person who had no right to receive the bequest informed against himself. The Emperors, having been consulted by the Managers of the Imperial Revenues, stated in a Rescript that if it could not be proved that the testator had changed his mind, the trust must be executed. And Pompey, having had judgment rendered against him in consequence, requested that the burden be borne by the entire estate, for the reason that he did not receive the preferred legacies, and it could not be held that the testator had only persevered in a part of his original intention. It was decided, in general, that the first will no longer existed, and if a preferred legacy had been left by the testator in his first will, it could not be demanded under the second, unless the second directed that this should be done. It was also decided that, because the heir could not prove that preferred legacies had been left to him, that he was obliged only to carry out the trust under the bond which he had executed. 1A mother, who had been appointed an heir, was requested to transfer the estate to Cornelius Felix, after her death. The appointed heir, having been condemned by the Treasury, and all her property seized, Felix alleged that he was not liable to the penalty, for this had been already decided. But as the day of the trust had not yet arrived, for the reason that he himself might die first, or that the mother might acquire other property, his application was in the meantime rejected.