Ulpianus, On the Edict, Book XLIV. If satisfaction has not been given to one of two patrons, and more than his share of the estate of a freedman has been left to the other, an action will be granted to the one who did not receive that to which he was entitled, in such a way that his portion will be made up out of what was bequeathed to a foreign heir, and left to the other patron in excess of his own share. The same rule shall also be observed where there are several patrons. 1Julianus says that he who has been disinherited by his grandfather is also barred from acquiring the estates of his freedmen, but will not be excluded from acquiring those of the freedmen belonging to his father. If, however, he has been disinherited by his father, but not by his grandfather, he should be excluded not only from the estates of the freedmen of his father, but also from those of his grandfather as well; because it is through his father that he acquires rights over the freedmen of his grandfather. If, however, his father has been disinherited by his grandfather, and he himself has not, a grandson can demand prætorian possession of the estates of the freedmen of his grandfather, in opposition to the provisions of the will. He also says that if my father should disinherit me, and my grandfather should disinherit my father, and my grandfather should die first, I will be excluded from prætorian possession of the estates of the freedmen of both. But if my father should die first, and my grandfather afterwards, it must be said that the disinheritance of my father will not prejudice me, so far as the estates of the freedmen of my grandfather are concerned.

Ulpianus, On the Edict, Book XLIV. If a patron, having made his will in accordance with military law, should disinherit his son by passing him over in silence in his will, the disinheritance will prejudice him, for he will be actually disinherited. 1If anyone should assign a freedman to his son whom he has disinherited, the son can obtain prætorian possession of the estate of the freedman. 2If a son should be disinherited by his father without any evil intention, but for some other reason, the disinheritance will not prejudice him; as, for instance, suppose that he has been disinherited on account of insanity, or because he was under the age of puberty, and the appointed heir was charged to transfer the estate to him. 3When anyone is disinherited, and it is judicially decided that this was not the case, even should the judgment be wrongful, he will not be excluded; for matters which are decided by a court must stand. 4If the son of a patron is disinherited, and succeeds in obtaining a judicial decision that the will is inofficious, but is defeated with reference to a part of his claim, let us see whether the disinheritance will prejudice his rights. I think that it will prejudice them, because the instrument by which he was disinherited is valid. 5Disinheritance causes no injury to children if the will is such that the estate cannot be entered upon, or prætorian possession obtained by it; for it is absurd that a will should be valid only so far as the disinheritance is concerned, while it is void in other respects. 6Where the son of a patron is appointed heir in the first degree, and is disinherited in the second, the disinheritance does not prejudice him, as he has been, or can be the heir under the will of his father; for his father could not be believed to have thought that his son was unworthy to obtain the property of his freedmen, when he himself had called him to his own succession in the first degree. And it is not credible that a son who has been disinherited in the first degree, and appointed as a substitute for the heir, would be excluded from the estate of a freedman. Therefore, a son appointed heir in the first or second degrees, or, indeed, in any other degree, even though he may have been disinherited by the same will, is not excluded from obtaining the estate of his freedman. 7If an emancipated son refuses to accept the estate, or a son who is under paternal control refuses to keep it, neither of them will be entitled to possession of the estate of the freedman.

Ulpianus, On the Edict, Book XLIV. Where a fraudulent act is said to have been committed by a freedman in order to prevent a part of his estate from coming into the hands of those who have the right to obtain possession contrary to the testamentary provisions, the Prætor takes cognizance of the case, and sees whether he made a will or died intestate, and that the patron is not defrauded. 1Where an alienation is fraudulently made, we do not inquire whether it was made mortis causa, or not, for it is revoked, no matter how it was done. If, however, it was not made with fraudulent intent, but for some other reason, the plaintiff must then prove that the alienation was made mortis causa. For if you suppose an alienation to have been made mortis causa, we do not inquire whether or not this was done with fraudulent intent; for it is sufficient to show that it was made mortis causa. This rule is not unreasonable, for donations mortis causa are compared to legacies, and, as in the case of legacies, we do not ask whether they were made with fraudulent intent or not, so we should not institute such an inquiry with reference to donations mortis causa. 2Again, whatever has been given to a son mortis causa is not revoked, for, as anyone is at liberty to bequeath to his son as much as he chooses, he is not considered to have defrauded his patron by making the donation. 3Everything, however, no matter what it is, that is done in order to defraud a patron, is revoked. 4We must understand the term “fraud” to apply to the person who alienates the property, and not to him to whom it is transferred; hence, it happens that where the recipient is not conscious of the fraud or bad faith which has been committed, he must still be deprived of the property which has been alienated, for the purpose of defrauding the patron, even if he thought the freedman was freeborn, and not one who had been manumitted. 5The Favian Action will not lie against a fellow-patron who was refused prætorian possession of the estate in opposition to the terms of the will, on account of the donation, where the latter is not more valuable than the share to which the patron was legally entitled. Therefore, if the donation was made mortis causa, his fellow-patron will be entitled to his share of the same, just as if one of the patrons had been a legatee. 6Moreover, let us consider whether the Favian Action only has reference to the revocation of such alienations as those by which the freedman diminishes his estate, or does it also have reference to other property which he did not obtain? Julianus, in the Twenty-sixth Book of the Digest, says that the Favian Action will not apply where a freedman, with the intention of defrauding his patron, does not accept an estate, or rejects a legacy which has been bequeathed to him. This appears to me to be true. For, although a legacy is said to belong to us from the time of the death of the testator, unless it should be rer jected, still, when it is rejected, it is clear that it never did belong to us; and the same rule should be adopted with reference to other acts of generosity, where anyone wishes to make a donation to a freedman, and he declines to accept it; as it is sufficient for the patron if his freedman did not alienate any property to his prejudice, and not if he did not acquire the same. Hence, if the legacy was bequeathed to him under a condition, and the freedman should prevent the condition from being fulfilled; or if he should make a stipulation under a condition, and preferred to permit the condition to fail, it must be said that the Favian Law does not apply. 7But what if the freedman should voluntarily lose a lawsuit? If he lost it intentionally, or confessed judgment, it must be said that the Favian Law will be applicable; but if he refused to present his claim in such a way as to collect it, in this instance, the matter deserves consideration. I think that, under such circumstances, the freedman has diminished his estate, for he has taken away a right of action from his property, just as if he had permitted the time for bringing the action to elapse. 8The patron, however, cannot make use of the Favian Action, where, for instance, the freedman refuses to bring suit to declare the will inofficious, or to bring another action, for example, one for injury, or to institute any legal proceeding of this kind. 9But if the freedman has committed some act in order to defraud his patron, the latter can avail himself of the Favian Action. 10If, however, the freedman endowed his daughter, he is not considered to have defrauded his patron of the amount which he gave to her by way of dowry, because paternal affection should not be blamed. 11If a freedman should make donations to several persons for the purpose of defrauding his patron, either during his lifetime, or mortis causa, the patron can bring either the Favian or Calvisian Action against all the parties equally, to recover the share to which he is entitled. 12If anyone should either sell, hire, or exchange property, for the purpose of defrauding his patrons, let us see what the decision of the judge should be. Where the property has been sold, the choice should be given to the buyer either to retain the article which has been purchased, at its proper value, or to surrender it, after having received the price which he paid. We should not absolutely rescind the sale, as if the freedman had no right whatever to sell the property, to avoid causing the purchaser to lose the price which he paid, especially where no fraud is alleged on his part, but only where the fraud of the freedman is to be taken into consideration. 13If, however, a freedman should purchase property for the purpose of defrauding a patron, it must also be said that if he purchased it at too high a price, relief should be granted the patron on this account, and he should not be given the choice of annuling the sale, or not; but the vendor should be permitted either to surrender as much of the price as exceeded the true value of the property, or to recover what he sold, and return the price which he received. We observe the same rule in the exchange, the hiring, and the leasing of property. 14If, however, the freedman sold the property in good faith, and without showing any partiality, but donated the price which he received to another, it must be considered whether he who purchased the property, or he who received the price as a gift, will be liable to the Favian Action. Pomponius, in the Eighty-third Book of the Digest, very properly says that the purchaser should not be molested, for the fraud was committed against the patron with reference to the price, and therefore that he who received the price as a gift would be liable under the Favian Law. 15Let us, however, see if the patron should allege that, although the property was sold at a just price, it was to his interest, nevertheless, that it should not have been sold at all; and that the fraud consists in the fact that possession was alienated of something to which the patron was attached, either on account of its convenience, or its neighborhood, or the purity of the air, or because he was educated there, or his parents were buried therein, if he desires to have the sale revoked, whether he should be heard. He should not be heard in any case of this kind, for the fraud is understood to involve pecuniary loss. 16But if the property was sold for too low a price, and the purchase money should be donated to another, the Favian Action can be brought against both parties, that is to say, against the one who bought the property for less than its true value, and the one who received! the Jprice as a gift. If he who purchased it is willing to surrender it, he will not be compelled to do so, unless he receives the price which he paid. Then what must be done if the purchaser, having been delegated, should pay him to whom the freedman made the gift, would he still be entitled to recover the price? The better opinion is that he would be entitled to recover it, even though it may have come into the hands of a person who is insolvent. For if the freedman squandered the purchase money which he received, we should, nevertheless, hold that he who paid it can recover it, if he is willing to rescind the sale. 17Let us see whether the Favian Action will lie, in case a freedman should borrow a sum of money for the purpose of defrauding his patron, and what the remedy would be in this instance. If the freedman gave away the money which he received, the patron can sue the person to whom the freedman gave it, but if he received it and squandered it, he who lent it should not lose it, nor can he be blamed for having lent it. 18It is evident that there will be ground for the Favian Action, if the freedman did not receive the money, but entered into a stipulation with the person who was to lend it to him. 19Let us see whether the Favian Action will lie where a freedman becomes surety for me, or pledges his property to another in order to defraud his patron, and whether relief should not be granted to the patron at my expense. For the freedman did not give anything to me, if he became security for someone who was not solvent; and this is our practice. Therefore, the creditor cannot be sued by the Favian Action, but the debtor can be, as well as by the action on mandate. It is clear that if the action on mandate should fail for the reason that a donation had been made, there will be ground for the Favian Action. 20The same rule should be adopted where the freedman directs something to be done for the benefit of another. 21Although the Favian Action will only lie with reference to the share of the patron, still, where property cannot be divided, it will lie for the entire amount; as for instance, in the case of a servitude. 22If a freedman should give anything to my slave, or a son under my control, for the purpose of defrauding his patron, let us see whether the Favian Action can be brought against me. And it seems to me that it will be sufficient if the action is brought against me as a master or a father, and that when the judge renders his decision, not only that has been done for the benefit of my property, but also anything relating to the peculium should be taken into consideration. 23If, however, an agreement has been made with a son, by order of his father, the latter will certainly be liable. 24If a freedman should contract with a slave for the purpose of defrauding his patron, and the slave should be manumitted, the question arises whether he will be liable to the Favian Action. As we have already stated, it is only the fraud of the freedman which should be considered, and not that of him with whom he made the agreement; hence the said manumitted slave will not be liable to the Favian Action. 25It may also be asked if the manumitted slave should die, or be alienated, must the action be brought within a year? Pomponius says that it must be. 26This action is a personal and not a real one, and will lie against the heir and other successors, as well as in favor of the heir and other successors of the patron; and it does not form part of the estate, that is to say, of the property of the freedman; but belongs to the patron personally. 27If a freedman should give anything away for the purpose of defrauding his patron, and then the latter should die during the lifetime of the freedman, and the son of the patron should obtain prætorian possession of the estate of the freedman contrary to the provisions of the will, can the Favian Action be employed for the purpose of recovering the property which has been alienated? It is true, as Pomponius says in the Eighty-third Book, and Papinianus also, in the Fourteenth Book of Questions, that the Favian Action will lie in favor of the son, as it is sufficient if the act was committed for the purpose of evading the right of patronage; for we understand this to be done rather as a fraud against the property than against the person. 28The profits obtained after issue has been joined are also included in this action.

Ulpianus, On the Edict, Book XLIV. If a patron who has been appointed heir to the share of an estate to which he is entitled by law should accept the estate without being aware that the freedman had alienated any property with the intention of defrauding him, let us see whether he can be relieved on account of his ignorance, in order to prevent him from being deceived by the fraudulent conduct of his freedman. Papinianus, in the Fourteenth Book of Questions, gives it as his opinion that the property which was alienated remains in the same condition as before; and therefore the patron should blame himself for not having obtained prætorian possession contrary to the provisions of the will with reference to what was either alienated or donated mortis causa, when he could have done so. 1This action is granted perpetually, because its object is the recovery of property. 2The Prætor permits a patron who has been appointed heir to an entire estate to avail himself of the Favian Action, because it would be unjust for him to be excluded from the benefit of the action, when he did not voluntarily enter upon the estate, and did so only because he was unable to demand prætorian possession contrary to the provisions of the will. 3If a freedman should die intestate, the patron, by entering upon the estate can, by means of the Calvisian Action, revoke all alienations fraudulently made, by which, in accordance with the terms of the will, a smaller share of the estate of the freedman will come into the hands of the patron or his children. This occurs whether prætorian possession of the estate is demanded by the patron on the ground of intestacy, or not. 4Where there are several patronesses and patrons, each of them can recover the share to which he or she is legally entitled, or they can bring the Calvisian Action for this purpose. 5When a freedman dies intestate, after leaving to his patron the share to which the latter is legally entitled, or something more, and also alienates some of his property, Papinianus, in the Fourteenth Book of Questions, states that none of his dispositions should be revoked. For he can leave something to anyone by his will, provided he bequeaths to the patron the share to which the latter is entitled, and by making any other donation he is not considered to have committed a fraud.

Ulpianus, On the Edict, Book XLIV. The Prætor, after speaking of the possession of the property of those who execute wills, passes to intestate estates, following the same order adopted by the Law of the Twelve Tables; for it is usual to first treat of the wills of testators, and afterwards of intestate succession. 1The Prætor, however, divided intestate succession into four classes. Of the various degrees, the first he establishes is that of children, the second that of heirs at law, the third of cognates, and the fourth of husband and wife. 2Prætorian possession of an estate ab intestato can only be acquired where no one appears to demand possession in accordance with the provisions of the will, or in opposition thereto. 3It is clear that if the prescribed time for demanding prætorian possession of an estate in accordance with the terms of the will has not expired, but possession of the estate has been rejected, it must be said that prætorian possession of the same ab intestato may be demanded at once. For he who rejected the estate cannot demand prætorian possession after having done so, and the result will be that he can immediately make the claim for possession on the ground of intestacy. 4If, however, possession of an estate is granted under the Carbonian Edict, the better opinion is for us to hold that prætorian possession on the ground of intestacy can still be demanded, for, as we shall show in its proper place, prætorian possession under the Carbonian Edict does not interfere with that obtained by the Prætorian Edict. 5In the case of succession ab intestato, the Prætor very properly begins with the descendants; for, just as he grants them (before all others), possession contrary to the provisions of the will, so he calls them first to the succession in case of intestacy. 6Moreover, we must understand the term “descendants” to mean those whom we have stated to be entitled to prætorian possession contrary to the provisions of the will; that is to say, natural, as well as adopted children. We admit adopted children, however, only where they were under paternal control, at the time of their father’s death. If, however, they were their own masters at that time, we do not permit them to obtain prætorian possession of the estate, because the rights of adoption are extinguished by emancipation. 7If anyone adopts his emancipated son, instead of his grandson, and then again emancipates him while he has a grandson by him, the question was raised by Marcellus whether, after the adoption was rescinded, this would be an obstacle to the grandson desiring to obtain prætorian possession on the ground of intestacy. But as the grandson is ordinarily joined with the emancipated father, cannot it be said that, though the latter was adopted and occupied the place of a son, still, he should not stand in the way of his own child? For the reason that he was under paternal control as an adopted, and not as a natural son. 8Ad Dig. 38,6,1,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 564, Note 7.If an appointed heir cannot take advantage of the will, either because it has been erased or cancelled, or because the testator is shown to have changed his mind in some other way, and that he intended to die intestate, it must be said that those who obtain prætorian possession of the estate will be entitled to it on the ground of intestacy. 9Where an emancipated son is disinherited, and a son who was under paternal control is passed over in the will, the Prætor should protect the emancipated son who claims possession of the estate on the ground of intestacy under the provision unde liberi, so far as half of the estate is concerned, just as if the father had left no will.

Ulpianus, On the Edict, Book XLIV. Not only he who conceals himself is considered not to defend a case, but also he who, being present, refuses to defend himself or is unwilling to proceed.