Ulpianus, On the Edict, Book XXV. Nevertheless, the Divine Brothers published a Rescript to the contrary.

The Same, On the Edict, Book XXV. Aristo says that a place in which a slave has been buried is religious. 1A party who has placed a dead body in the premises of another or caused this to be done, is liable to an action in factum. We must, however, understand “the premises of another” to mean either a field or a building; but these words grant the action to the owner, not to a possessor in good faith; for when the statement is made “In the premises of another,” it is apparent that the owner is meant, that is the party to whom the ground belongs. Even when an usufructuary makes the interment, he will be liable to the mere owner of the property. It is debatable whether a joint-owner is liable if he acted without the knowledge of his co-owner; but the better opinion is that he can be sued in an action for the partition of an estate, or in one for the division of common property. 2The Prætor says: “Where the body or bones of a dead man are said to have been taken to ordinary ground or to a burial place in which the party had no right, he who does this is liable to an action in factum, and will be subjected to a pecuniary penalty.” 3The “taking” which the Prætor was thinking of is that which occurred for the purpose of burial. 4Ground is styled “ordinary” which is neither sacred, consecrated, nor religious, but is a locality to which none of these adjectives will apply. 5A burial-place is a spot where human bodies or bones are deposited. Celsus, however, says that a place which is destined for burial does not become religious entirely, but only that portion of it where the body is laid. 6A monument is whatever is erected for the purpose of preserving the memory of the deceased. 7When anyone has an usufruct, this does not render the place religious. Where, however, one party has the mere ownership, and another the usufruct, the latter cannot make the place religious, nor can the mere owner do so, unless he should happen to bury there the party who bequeathed the usufruct, since he could not be so conveniently buried elsewhere; and this was the opinion of Julianus. The place, however, cannot be rendered religious if the usufructuary is not willing; but if he consents, the better opinion is that it becomes religious. 8No one can make a place religious which is subject to a servitude, unless the party entitled to the servitude consents. But if the party can make use of the servitude no less conveniently in some other place, it cannot be held that the burial was made for the purpose of interfering with the servitude, and therefore the place becomes religious; and indeed this is reasonable. 9Where a person has given his land in pledge and buries one of his own family therein, he will make it religious; and if he himself should be buried there, the same rule applies; but he cannot assign this right to another.

Ulpianus, On the Edict, Book XXV. Where a party who was appointed heir buries the body of the head of the family before he enters upon the estate, by doing so he makes the place religious, but no one should think that by this act he is conducting himself as heir; for let us suppose that he is still deliberating as to whether he will enter upon the estate. I, myself, am of the opinion that even though the heir did not bury the body but someone else did, and the heir either took no active part, or was merely absent, or feared that he might be considered as conducting himself as heir, still he makes the ground religious; for very often deceased persons are buried before their heirs appear. In this instance the ground becomes religious only when it was the property of the deceased, for it is but natural to hold that a place where a person is buried belonged to him; especially if he is buried in a spot which he himself had selected. To such an extent does this rule apply that, even where the body is buried by the heir in ground bequeathed by a legacy, still, the burial of the testator renders the place religious, provided that he could not have been buried as conveniently elsewhere.

Ulpianus, On the Edict, Book XXV. Or where the head of the household acquired it by hereditary right. In both instances, however, heirs and other successors of every description whatever may legally be buried, and may also bury others, although they may be heirs to a very small amount either by will or on intestacy, even if the other heirs do not consent. The same privilege is granted to children of both sexes, and descendants of other degrees, as well as to emancipated persons, whether they have become heirs or have rejected the estate. With reference to disinherited relatives, however, they may be buried through motives of humanity, unless the testator, influenced by just hatred, has expressly forbidden it; but they cannot bury others except their own descendants. Freedmen can neither be buried, nor bury others under such circumstances, unless they become the heirs to their patron; although certain patrons have indicated by inscriptions that they have erected monuments for themselves and their freedmen. Papinianus also held this opinion, and it has repeatedly been established by decisions. 1So long as there is only a monument, anyone can sell it, or give it away; if, however, it becomes a cenotaph, it must be stated that it can be sold; as the Divine Brothers stated in a Rescript that a structure of this kind is not religious.

Ulpianus, On the Edict, Book XXV. Where bones or a body have been buried by another party not a relative, it is a question whether the owner of the land can dig them up, or remove them without a decree of the pontiffs or the order of the Emperor; and Labeo says that the pontifical permission or the order of the Emperor must be obtained, otherwise an action for injury will lie against the person who removed the remains. 1Ad Dig. 11,7,8,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 307, Note 5; Bd. II, § 315, Note 7.Where a place that is religious is alleged to have been sold as profane, the Prætor grants an action in factum in favor of the party who is interested in the matter against the vendor; and this action can also be brought against the heir of the latter, since it resembles an action on a contract of sale. 2Where a man buried a dead body in a place intended for the use of the public, the Prætor will grant an action against him if he acted maliciously, and he should be punished by the extraordinary authority of the Court, although the penalty is a moderate one; but where he acted without malice he must be discharged. 3In this action the term “profane place” is also applicable to a building. 4This action can not only be brought by an owner but by anyone entitled to the usufruct in the land, or by one who is entitled to a servitude over the same; because these parties also have the right to prevent it being done. 5Where anyone is prevented from burying in a place where he has the right to do so, he is entitled to an action in factum as well as an interdict, even though he himself has not been hindered but his agent has been; since, under such circumstances, he himself is considered to have been prevented.

Ulpianus, On the Edict, Book XXV. Where the vendor of land reserves a burial-place for the interment of himself and his descendants, and he is prevented from using a road for the purpose of burying a member of his household, he can bring suit; for it has been decided that a right of way through the land for the purpose of burial was reserved in the agreement between the purchaser and the vendor.

Ulpianus, On the Edict, Book XXV. Ad Dig. 11,7,12 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 4.Where anyone has a burial place but has no right of way to it, and is prevented from reaching it by his neighbor, the Emperor Antoninus and his father stated in a Rescript that it is customary to petition for a pathway to a burial place by sufferance, and it is usually granted; and, whenever there is no servitude, the privilege can be obtained from the party who owns the adjoining premises. This rescript, however, which gives the means of obtaining the right of way by petition, does not allow a civil action, but it may be applied for in extraordinary proceedings; for the Governor is required to compel a pathway to be granted to the party where a reasonable price is paid, and the judge must also investigate whether the place is suitable so that the neighbor may not suffer serious injury. 1It is provided by a decree of the Senate that the use of a burial place is not to be contaminated by alterations, that is to say, it must not be used for other purposes. 2The Prætor says: “Where any expense is incurred on account of a funeral I will grant an action for its recovery against the party who is interested in the same.” 3This Edict is issued for a good reason, namely, in order that a party who conducted the funeral may bring suit for what he expended; so that the result would be that bodies will not lie unburied, or that some stranger should conduct the funeral. 4He whom the deceased selected must conduct the funeral, but if he should not do so he will be liable to no penalty, unless something of value was left to him for this purpose; for then, if he does not comply with the will of the deceased, he will be excluded from the bequest. If, however, the deceased did not make any provision for this, and the duty has not been transferred to anyone, it will devolve upon the heirs who were appointed, and, if none were appointed, upon the heirs at law or the cognates who succeed in their regular order. 5The funeral expenses are to be regulated in accordance with the means or dignity and rank of the deceased. 6The Prætor, or the municipal magistrate, is required to order the funeral expenses to be paid out of the money belonging to the estate if there is any, and if there is none, he must order such property to be sold as would perish by lapse of time, and the retention of which would be a burden to the estate; and in case this cannot be done, he shall order any gold or silver which there may be, to be sold or pledged, in order to provide the necessary funds.

Ulpianus, On the Edict, Book XXV. And if anyone should interfere with the purchaser in order to prevent said property from being delivered to him, the Prætor must intervene and protect an act of this kind, where any obstacle is interposed. 1Ad Dig. 11,7,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 431, Note 18.Where the deceased was either a tenant or a lodger, and left nothing to pay his funeral expenses; Pomponius says that they must be paid out of the proceeds of articles which have been brought into the lodging, and if there is anything in excess, this will be liable for unpaid rent. Moreover, if any legacies have been bequeathed by the testator whose funeral is the subject of discussion, and there is nothing with which to bury him, the said legacies must also be utilized for this purpose; for it is better that the funeral expenses of a testator should be obtained from his own property than that others should receive their legacies. Where, however, the estate has been entered upon, any property sold must not be taken from the purchaser, because he who has brought anything under an order of court is a bona fide possessor, and has the ownership of the same. Nevertheless, a legatee should not be deprived of his legacy if he can be indemnified by the heir; but if he cannot, it is better for the legatee not to be benefited pecuniarily, than that the purchaser should sustain any loss. 2Mela says that if a testator directs anyone to attend to his funeral and he does not do so after having received money for that purpose, an action on the ground of fraud shall be granted against him; nevertheless, I think, that he can be compelled to conduct the funeral under the extraordinary authority of the Prætor. 3The only expense which can be incurred on account of a funeral is that without which the funeral could not be conducted; as, for instance, what is incurred by the removal of the body, and also where money is expended on the place where the body is to be buried. Labeo says it must be considered to be expended on account of the funeral, because a place must be prepared in which the body may be laid. 4The expenses of anyone who dies away from home and which are incurred for the purpose of bringing back the body, are included in the funeral expenses, although he is not yet buried; and the same rule applies where anything is done for the purpose of guarding the body, or for preparing it for burial, or where anything is expended in providing marble or clothing. 5It is not proper, however, that any ornaments nor other articles of this kind should be buried with the body, as persons of the lower class are accustomed to do. 6This action which is styled a funeral one, is based upon what is proper and reasonable, and includes only what has been expended with reference to the funeral, but no other outlay. The term “reasonable” must be understood to have reference to the rank of the party who was buried, to the circumstances of the case, to the time, and to good faith; so that no charge may be made for more than the actual amount disbursed, nor even for what was actually expended, if this was immoderate. Therefore the means of the party for whom the money was spent must be taken into consideration, as well as the property itself, where it is immoderately expended without good cause. But what must be done where the expense is provided for by the will of the testator? In reply to this it must be held that his will is not to be followed if the expense should be excessive, for it ought to be in proportion to the means of the deceased. 7Sometimes, however, where a man has assumed the payment of funeral expenses he cannot recover them if he was actuated by filial affection, and did not pay with the intention of recovering the amount which he incurred; and this our Emperor stated in a Rescript. Therefore an estimate will have to be made by an arbiter, and the motive with which the expense was incurred carefully considered; that is, whether the party attended to this matter for the deceased or for his heir, or whether he was induced by humanity, or compassion, or filial reverence, or affection? Nevertheless, the degree of compassion may be distinguished so as to conclude that the party who conducted the funeral at his own expense did so in order that the deceased should not remain unburied, and not that he did this gratuitously; and if this should be clear to the judge he ought not to discharge the defendant; for who is there that can bury the dead body of a stranger without being impelled by a sense of duty? Hence it is proper for the party to state whom he buried, and from what motive he did so, to avoid being afterwards interrogated with reference to the same. 8In the case of many sons who conduct the funerals of their parents, or other persons who could have been appointed heirs do so although on this account it is not to be presumed that they are acting as heirs, or entering on the estate, still, in order that necessary heirs may not be held to have interfered, or others to have acted as heirs; it is customary for them to state that they caused the funeral ceremonies to be conducted from motives of duty. If anything superfluous should have been done, it would be held that the parties protected themselves to avoid being thought to have intermeddled, and not for the purpose of recovering their expenses; since they have plainly stated that they acted from motives of duty, but they must go still farther in their allegations in order to be able to recover what they expended. 9Perhaps someone may say that there are instances where a certain share of the expense incurred can be recovered, so that the individual in question did this partly while transacting business for another, and partly because he was impelled by a sense of duty. This is true, and therefore he can recover a portion of the expense which he did not incur with the intention of donating. 10When a judge hears a case of this kind which is based on grounds of equity he should sometimes not allow a moderate expenditure where, for example, the expenses of his funeral had been small, with the intention of casting odium upon the character of the deceased, who had been a wealthy man; as the judge, in this instance, ought not to consider an account of this kind, since it is apparent that by burying him in this manner a premeditated insult was offered to his memory. 11Where anyone buries the head of a household while under the impression that he himself is his heir, he cannot bring an action to recover the funeral expenses; because he did not act with the intention of transacting the business of another; and this is also the opinion of Trebatius and Proculus. I think, however, that an action for the funeral expenses should be granted to him where proper cause is shown. 12Labeo says that whenever anyone has some other action for the purpose of recovering funeral expenses he cannot avail himself of a funeral action; and therefore, if he is entitled to an action for the partition of an estate, he cannot bring a funeral action; but it is clear that if an action for the partition of an estate has been already brought, he can bring one for the recovery of the funeral expenses. 13Labeo also says that if you conduct the funeral of a testator against the wishes of his heir, you can bring the funeral action if proper cause is shown; but what if the person whom the heir forbade to act was the son of the testator? In this instance it can be alleged against the plaintiff, “Therefore you have conducted the funeral through a sense of duty.” But suppose that I have made the statement, I will then be entitled to bring the funeral action, for it is proper that deceased persons should be buried by means of funds obtained from their estates. What if a testator had directed you to make arrangements for the funeral, and the heir prohibits it, and you, nevertheless, conduct it; is it not just that you should have the right to bring an action for the recovery of the funeral expenses?” Generally speaking, I am of the opinion that a just judge will not rigidly adhere to the mere action based on business transacted, but will construe the rules of equity more liberally, since this is something which the character of the proceeding enables him to do. 14The Divine Marcus, however, stated in a Rescript that any heir who prevents a funeral from being conducted by the party whom the testator selected, does not act honorably; although there is no penalty established by which he may be punished. 15Ad Dig. 11,7,14,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 431, Note 6.If anyone conducts a funeral at the request of another, he is not entitled to a funeral action, but he certainly is who directed the funeral to take place, whether he paid the expense of the same to him whom he requested to conduct it, or whether he still owes it. Where, however, a ward makes such a request without the authority of his guardian, a prætorian action for the recovery of the funeral expenses should be granted against the heir in behalf of the party who incurred them; for it is unjust for the heir to profit in this way. Where, however, a ward orders a funeral which he himself ought to attend to be conducted without the authority of his guardian; I think that the action should be granted against him, if he himself is the actual heir to the party who was buried, and the estate is solvent. On the other hand, where anyone conducts a funeral at the request of the heir, Labeo says he cannot bring the funeral action, because he is entitled to an action on mandate. 16If, however, he conducts the funeral as one transacting business for the heir, although the latter may not have ratified the act, Labeo said that he is, nevertheless, entitled to an action for the recovery of the funeral expenses. 17This action is granted against those who ought to conduct the funeral, for instance, against the heir, the possessor of the property of the estate, or any other successor.

Ulpianus, On the Edict, Book XXV. Where any property comes to anyone by way of dowry, the Prætor grants a funeral action against him; for it was held by the ancient authorities to be perfectly just that the funeral expenses of women should be paid out of their dowries, just as out of their private property, and that the man who profits by the dowry on the death of a woman should contribute to her funeral expenses, whether he is the father or the husband of the woman aforesaid.

The Same, On the Edict, Book XXV. Neratius asks: Where a man who gave a dowry for a woman stipulated that two-thirds of the same should be returned to him, and that the other third should remain with the husband, and agreed that the husband should not contribute anything to the funeral expenses; will the husband be liable for them? He answers that if the stipulator himself buried the woman, the agreement will be operative, and that a funeral action will be of no effect; but if someone else conducted the funeral, then the husband can be sued, because the public law cannot be infringed by such an agreement. But what if anyone should give a dowry for a woman under the condition that it is to revert to him if she died during marriage, or if the marriage should be terminated in any other manner; would he not then be compelled to contribute to the funeral expenses? Since, however, the dowry reverts to him on the death of the woman, it may be stated that he should contribute. 1If the husband profits by the dowry, he can be sued for the funeral expenses, but the father cannot; however, I think with reference to this case that where the dowry is not sufficient to meet the funeral expenses, because it is very small, an action should be granted against the father for the deficiency. 2Where a woman who is her own mistress dies, and her estate is not solvent, her funeral expenses must be paid out of her dowry alone; and this was stated by Celsus.

Ulpianus, On the Edict, Book XXV. Celsus says that where a woman dies, her funeral expenses should be paid out of the dowry remaining in the hands of her husband, and out of the remainder of her property in proportion.

Ulpianus, On the Edict, Book XXV. Julianus states that, in this instance, the legacies must not be deducted.

Ulpianus, On the Edict, Book XXV. Thus the husband and the heir are compelled to contribute to the funeral proportionally. 1Suit cannot be brought for the recovery of funeral expenses against a husband, if he paid the dowry to his wife during marriage, so Marcellus says; and this opinion is correct in those instances in which he is permitted by law to do this. 2Moreover, I think that a husband is liable to an action for funeral expenses only so far as his means permit; for he is held to be enriched by the sum which he would have been forced to pay to his wife if she had sued him.

Ulpianus, On the Edict, Book XXV. Where a son under paternal control is a soldier and has castrense peculium, I think that his successors are primarily liable, and that afterwards recourse must be had to his father. 1Anyone who buries a male or female slave belonging to another, has a right of action against his or her owner for the recovery of the funeral expenses. 2This action is not limited to a year, but is perpetual; and is granted to the heir and other successors, as well as against successors.

Ulpianus, On the Edict, Book XXV. Where pledges are sold by officers of the Prætor, in consequence of extraordinary judgments, no one has ever said that an action should be granted against them on the ground of eviction. If, however, they fraudulently permitted the property to be sold for an insignificant sum, then an action will be granted against them in favor of the owner of the property, on the ground of fraud.

Ulpianus, On the Edict, Book XXV. Where a guardian is away in the service of the State, and on this account has been excused during his absence, there is ground for an action on guardianship. Where, however, he ceases to be in the service of the government, and is discharged in consequence, anyone who is appointed in his stead can be sued in an action on guardianship. 1Where a guardian has been appointed for two brothers who have not reached puberty, and one of them comes under the legal guardianship of a brother who has attained his majority, Neratius says that the guardian who was appointed ceases to hold office. Therefore, for the reason that he is no longer guardian, the action on guardianship will lie against him in the name of the ward, although if he was appointed by will, he would not cease to be the guardian of the minor who is still under puberty, because testamentary guardianship always enjoys the preference over guardianship-at-law. 2Where a guardian is appointed by will, under a certain condition, and, in the meantime, another is appointed after an investigation, it must be held that there is ground for an action on guardianship, when the condition has been fulfilled, for the reason that the guardian ceases to be such. 3The same rule must be held to apply where a testamentary guardian has been appointed for a certain time. 4And, generally speaking, what has been handed down, namely, that a ward cannot bring a tutelary action against his guardian, is only true where the same guardianship is in existence; for it would be absurd for an account to be demanded for the administration of the business of a ward, where the guardian was still transacting it; still, where the guardian has ceased to do so, but a second time assumes the administration of the trust, he will be responsible to the ward for his former conduct during the guardianship, in the same way as if he had borrowed money from his father. Let us consider what would be the result of this opinion. It is evident that if there is but one guardian, he cannot proceed against himself, and he must be sued by a curator appointed for that purpose; but, suppose that he already had another guardian, who could bring an action on guardianship against his colleague, and conduct it? Not only is this the case, but if in the meantime he should cease to be solvent, his fellow-guardian can be held liable, because he did not bring an action against him in the first place. 5Where a curator is added to a guardian, even though the latter may have been denounced as suspicious, he will not be compelled to defend an action on guardianship, because the guardian is still in office. 6Where, however, the property of a guardian has been confiscated, it is established that an action should be granted against the Treasury to him who has been appointed curator in his stead, or to his fellow-guardians. 7The other actions, with the exception of that of guardianship, will lie against the guardian, even though he is still administering the trust; as, for instance, those of theft, damage, injury, and for the recovery of specific property.

Ulpianus, On the Edict of the Prætor, Book V. The Prætor says: “If a sepulchre is said to have been violated by anyone maliciously, I will grant an action in factum against him, in order that he may be condemned for an amount which may appear to be just, in favor of the party interested. If there is no one who is interested, or if there is and he declines to bring suit, and anyone else is willing to do so, I will grant him an action for a hundred aurei. If several persons should desire to institute proceedings, I will grant power to do so to him whose cause appears to be the most just. Where anyone, with malicious intent, inhabits a sepulchre, or constructs any other edifice than that which is intended for a tomb, I will grant an action for two hundred aurei to anyone who is willing to bring it in his own name.” 1The first words of this Edict show that he who violates a sepulchre with malicious intent is punished by it. Therefore, if there is no malicious intent, the penalty will not apply. Hence, those who are not capable of criminality, as, for instance, children under the age of puberty, as well as persons who did not approach the sepulchre with the intention of violating it, are excused. 2Every place of sepulture is understood to be included in the term sepulchre. 3If anyone should place a body in an hereditary tomb, even though it be the heir, he will still be liable to the action for violation of a sepulchre, if he did so against the wish of the testator; for a testator is permitted to provide that no one shall be buried in his tomb, as is stated in the Rescript of the Emperor Antoninus, for his wish must be complied with. Therefore, if he says that only one of the heirs can inter persons therein, this must be observed, so that the designated heir alone may do so. 4It is provided by an Edict of the Divine Severus that bodies may be transferred, which have not been buried in one place for all time; and by this Edict it is directed that the transportation of bodies shall not be delayed, or meddled with, or they shall not be prevented from being conveyed through territory belonging to cities. The Divine Marcus, however, stated in a Rescript that those who transported bodies on the highways through villages or towns were not liable to any penalty, although this should not be done without the permission of those who have the right to grant it. 5The Divine Hadrian, by a Rescript, fixed a penalty of forty aurei against those who buried dead bodies in cities, and he ordered the penalty to be paid to the Treasury. He also directed the same penalty to be inflicted against magistrates who suffered this to be done; and ordered the place to be sold by auction, and the body to be removed. But what if the municipal law permits burial in a city? Let us see whether this right has been annulled by the Imperial Rescripts, for the reason that Rescripts are of general application. The Imperial Rescripts must be enforced and are valid everywhere. 6Where anyone lives in a sepulchre or has a building on the ground, whoever desires to do so can bring the action. 7Governors are accustomed to proceed more severely against those who despoil dead bodies, especially if they go armed; for if they commit the offence armed like robbers, they are punished capitally, as the Divine Severus provided in a Rescript; but if they commit it unarmed, any penalty can be inflicted up to sentence to the mines. 8Those who have jurisdiction of the action for violating a sepulchre must estimate the amount of the interest in proportion to the injury which has been inflicted, as well as in proportion to the advantage obtained by the person guilty of the violation; or to the damage which resulted; or to the audacity of him who committed the offence. Still, judgment should be rendered for a smaller sum where the parties interested are the accusers than where a stranger brought the suit. 9If the right of sepulture belongs to several persons, shall we grant an action to all of them, or to the one who manifested the most diligence? Labeo very properly says that the action ought to be granted to all, because it is brought for the individual interest of each one. 10If the party in interest does not wish to bring suit for violation of the sepulchre, but, having changed his mind before issue was joined, says that he desires to proceed, he shall be heard. 11If a slave lives in a sepulchre, or builds a house there, a noxal action will not lie, and the Prætor promises this action against him. If, however, he does not live there, but uses the place as a resort, a noxal action will be granted, provided he appears to retain possession of the ground. 12This action is a popular one.

Ulpianus, On the Edict, Book XXV. Popular actions are not granted to women and minors, unless they are interested in the matter.

Ulpianus, On the Edict, Book XXV. Labeo defines the term “prodigy” to mean everything which is born or produced contrary to nature. There are, however, two kinds of prodigies; one where something is born contrary to nature, for instance with three hands or feet, or with some other part of the body deformed; another, where something is considered to be unusual, and which the Greeks designate fantasmata, that is to say, apparitions.

Ulpianus, On the Edict, Book XXV. He who obtains anything by the authority of a court is a bona fide possessor.