Paulus, Questions, Book VII. A guardian is released from liability where a claim becomes uncollected after the death of the ward. 1A man who was the curator of his brother’s daughter promised to give forty aurei by way of dowry to her husband. I ask whether he would be entitled to relief, if afterwards debts of the ward should be discovered, and the promised dowry found to be in excess of the amount of her estate; as it was set forth in the document that So-and-So, uncle and curator, promised a certain amount to the stipulator? The difficulty results from the fact that the curator did not expect to give the dowry out of his own property, but made the promise at a time when he believed the means of the ward to be sufficient for it to be dispensed with. Moreover, it can be considered whether, if the curator made the promise while aware that her property was not sufficient, he should be held to have donated the amount; or, as he acted fraudulently, whether he is entitled to relief. I answered that I do not think that, since the curator, going outside of his duty, voluntarily rendered himself liable, relief should be granted him by the Prætor, any more than if he had promised to pay money to the creditor of the girl. But if the party who is the subject of the discussion promised the dowry, not with the intention of making a gift of it, but merely as a matter of business, he could hold the woman liable; and it might be said that she would be bound during the continuance of the marriage, while she has the dowry, as is the case in the contribution of property; and she would certainly be liable after divorce, whether the dowry had been paid, or whether the claim for it still existed; because, in this instance, the result would be his release from liability for the same. But if the woman is unable to reimburse her curator for what he promised to give, by way of dowry, in excess of the assets of her estate, the curator can be released from liability for the amount in excess, by means of an exception; and the woman should give a bond to her husband for this amount, so that if she becomes wealthier during marriage, she can pay the remainder of the dowry to her husband.

The Same, Questions, Book VII. Nesennius Apollinaris to Julius Paulus. A mother appointed her minor son her heir, or some stranger appointed a minor who was also a stranger, his heir, by will, and left a legacy to Titius, appointing him a guardian of the said ward. Titius, after having been confirmed, was excused from the guardianship. I ask whether he will lose his legacy. And what would be the case where a guardian was not appointed by will, but accepted a legacy, and having been appointed guardian by the Prætor, is excused; can he justly be deprived of the legacy; or does it make any difference where a guardian is appointed for a minor who has been emancipated, or a curator for a child arrived at puberty, by his father? I answered that where a guardian or a curator was illegally appointed by the father, and has been confirmed by the Prætor, he shall be deprived of the legacy, if he prefers to avail himself of the privilege of being excused, and this was also held by Scævola; for, in fact, the Prætor who confirmed the guardian only carried out the wishes of the deceased. The same rule must be held to apply to the will of the mother. The following instance is similar to that of the mother, namely, where a stranger appoints a minor his heir, and wishes to provide for the appointment of a guardian for him, as is the case with children whom we have brought up. Therefore, it was very properly held that he who refuses to do what the testator required should be deprived of what the latter gave him. I do not think, however, that one who has renounced the responsibilities of guardianship can always be deprived of his legacy, but only where it is apparent that the legacy was bequeathed to him because the party charged him with the guardianship of his children, and not where he would have given it to him in any event, even without the guardianship. This can be established if you insert the legacy in the will, and afterwards appoint a guardian by a codicil; for, in this instance, it cannot be said that the legacy was bequeathed to him because the testator desired him to act as guardian.

The Same, Questions, Book VII. From this it is apparent that he whom the Prætor appoints as guardian should not be included in the same class with such legatees; since he can make use of his right to be excused, as he does nothing in contravention of the will of the testator, for, since the latter did not appoint him guardian, we cannot say that he wished him to administer the guardianship of his son.

Paulus, Questions, Book VII. For the Divine Pius Antoninus stated in a Rescript that prætorian possession of the estate of a son serving as a soldier should not be granted in violation of the will of the latter, so far as property obtained while in the army was concerned.

Paulus, Questions, Book VII. A soldier, who was a freedman, appointed two heirs by his will, and one of them having refused to accept, the testator was held to have died intestate with reference to that particular share, for the reason that a soldier can die partly testate, and prætorian possession can be acquired by a patron ab intestato; for unless the intention of the deceased was proved to have been that if one of the heirs should reject his portion, the entire estate should go to the other heir.

The Same, Questions, Book VII. Where two legacies are bequeathed, it is established that one can be rejected, and the other accepted. 1If, however, one of such legacies is subject to some liability, and should be rejected, the same cannot be said. Suppose, for instance, that Stichus and ten aurei were bequeathed to someone, and he was charged to manumit the slave. If there was ground for the application of the Falcidian Law, a fourth would be deducted from each legacy, and therefore, if the slave should be rejected, the burden of the deduction would not be avoided, but the legatee would be compelled to relinquish half of the sum of money.

Paulus, Questions, Book VII. A posthumous child, no matter when it may be born, provided it was conceived at the time of the death of the testator, can obtain prætorian possession of the estate, for the Prætor places it in possession under all the Sections of the Edict by which it may obtain it, but it will not be placed in possession, if, after its birth, it is not entitled to it.

Paulus, Questions, Book VII. In order that the appointed heir may obtain prætorian possession of the estate I think it should be required that his identity be established by a suitable designation, so that the share to which he is entitled can be found, even if he was appointed without any share; for when an heir is appointed without a share he can take one which is undisposed of, or some other portion of the estate. If, however, the heir was designated in such a way as to seem to be excluded by the will, because the share of the estate to which he was appointed cannot be found, he shall not obtain prætorian possession. This occurs where anyone appoints an heir as follows, “Let Titius be my heir to the same portion of my estate to which I have appointed him by my first will,” or “Let him be my heir to the same share to which I have appointed him by my codicil,” and it should be ascertained that he was not appointed. If, however, I should say, “Let Titius be my heir if I have appointed him heir to half of my estate in my first will,” or “Let him be my heir if I have appointed him heir to half of my estate in my codicil,” he can then obtain possession of my estate, as he was appointed heir conditionally.

The Same, Questions, Book VII. The “next of kin” is one whom no one precedes, and the most remote relative is one whom no one follows.

Ad Dig. 50,17,86ROHGE, Bd. 11 (1874), Nr. 27, S. 69: Natur der Judicatsklage.The Same, Questions, Book VII. The condition of those who engage in litigation is not usually made worse than if they had not undertaken it, but for the most part it is improved.