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Part 11.

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BOOK III. tered, and compensation for loss incurred; whilst he himself by the actio tutelae contraria' can proceed against the pupil for his own indemnity.

a Sc. contrariam tutelac.

§ 64, ad fin.

Paul. Nisi finita tutela sit, tutelae agi non potest.-(1. 4 pr., D. de tutelae 27, 3.) Ulp. : Finito autem officio hanca actionem competere dicemus tutori; ceterum quamdiu durat, nondum competit. (D. 27, 4, 1, 3.)1

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The tutor is liable in respect of embezzlements for double the amount, by the actio de rationibus distrahendis,' which was derived from the Twelve Tables.

Paul. Actione de rationibus distrahendis nemo tenetur, nisi qui in tutela gerenda rem ex bonis pupilli abstulerit.-Haec actio licet in duplum sit, in simplo rei persecutionem continet, non tota dupli poena est.-1. 2 pr., § 2, D. de tutelae.* A utilis actio negotiorum gestorum directa and contraria obtains between the curator and the ward.

Cum furiosi curatore negotiorum gestorum actio est, quae competit etiam dum negotia gerit.—1. 4, § 3 eod.3

Under secondary liability to the pupil are-
(1) the guardian's sureties.

Cum 'rem salvam fore' pupillo cavetur, committitur stipulatio, si, quod ex tutela dari fieri oportet, non praestetur-agi ex ea (stipulatione)

1 Only when the guardianship has come to an end can proceedings be taken in respect of the guardianship. But we shall say that this action lies for the guardian at the end of his office. 2 No one is liable to the action de rationibus distrahendis save him that during the conduct of the guardianship shall have made away with some of the ward's goods. Although this action lies for double the amount, yet it embraces recovery of the simple amount of the thing; the penalty does not consist entirely of the double.

3 Against the curator of a madman there is the action of management of business, which also lies whilst he is conducting the business.

tunc potest, cum et tutelae potest.-D. 46, 6,
1. II (Ner.), l. 1 (Paul.).'

(2) His adfirmatores' and 'nominatores.'

Ulp. Fideiussores a tutoribus nominati si praesentes fuerunt et non contradixerunt et nomina sua referri in acta publica passi sunt, aequum est perinde teneri, ac si iure legitimo stipulatio interposita fuisset; eadem causa videtur adfirmatorum, qui scilicet, cum idoneos esse tutores adfirmaverint, fideiussorum vicem sustinent.-D. 27, 7, 4, 3.2

(3) The magistratus acting as official superintendent guardian.

Inst. 1, 24, 2: Sciendum autem est non solum tutores vel curatores pupillis et adultis ceterisque personis ex administratione teneri, sed etiam. in eos, qui satisdationes accipiunt, subsidiariam actionem esse, quae ultimum eis praesidium possit adferre. Subsidiaria autem actio datur in eos, qui vel omnino a tutoribus vel curatoribus satisdari non curaverint, aut non idonee passi essent caveri.3

1 If security be given to the ward that his property shall remain intact, the stipulation takes effect if there is no performance of what ought to be given or done by virtue of the guardianship-proceedings can be taken upon that (stipulation) when they can be taken in respect of the guardianship also.

The

2 It is fair that sureties nominated by guardians, if they have been present, and have not declined, and have allowed their names to be inserted on the public records, should be liable just as if a stipulation had intervened according to legal rule. same relation obtains in respect of adfirmatores, who of course, when they have given assurance of the fitness of guardians, represent sureties.

3 We must, however, note that not only are the tutors or curators liable to wards and youths and other persons for their administration, but an auxiliary action, which can serve as a final means of protection to them, lies also against those who accept the security. Now the auxiliary action is granted against such as either have wholly neglected to take security from the tutors or curators, or have allowed insufficient security to be given.

BOOK III.

Part II.

aAnct. Law,' ch. vi.; Markby, ch. xviii.

PART III.—LAW OF INHERITANCE.a

BOOK III.

l'art III.

CHAPTER I.

GENERAL DOCTRINES.

§ 153. NATURE AND SUBJECT-MATTER OF THE LAW OF INHERITANCE.

THE Law of INHERITANCE in the wider sense is the sum of legal rules as to the succession of living persons to the property, or heritage, left by a deceased person. If there be only single portions of property upon which the survivor enters, Singular Succession occurs. Such a singular succession can also come into account in the Law of Inheritance in respect of the doctrine of legacies; but in it lies not the essence of inheritance, which is the rather presupposed by it, and in relation to it is seen as something subordinate and immaterial. According to Roman Law, Inheritance D. 37, 1, 3 pr., or Succession is always UNIVERSAL Succession, that § 17. is, the succession of one or several survivors to the property of the deceased as a whole, by which the successor takes the place of the previous subject of ownership, and becomes the one who sustains the control of the property (familia defuncti); in other words, assumes the personality of the deceased under Property Law, and by representation continues it. The totality of the legal precepts that avail as to this succession, as well as the subjective 'ius succedendi,' is the Law of Inheritance in the wider sense, HEREDITAS, which word likewise designates the heritage, whilst the successor is called 'heres' (heir).

Iul. Hereditas nihil aliud est, quam successio

in universum ius quod defunctus habuerit.-
1. 62, D. de R. J. 50, 17.'

:

Ulp. Heredem eiusdem potestatis iurisque esse, cuius fuit defunctus, constat.-1. 59 eod.2 Pap. Hereditas etiam sine ullo corpore iuris intellectum habet.-D. 5, 3, 50 pr.3

Cic. de legib. ii. 48: Nulla est persona, quae ad vicem eius, qui e vita migravit, propius accedat."

The succession is as a rule perfected first by the acquisition of the inheritance (adquisitio hereditatis); but the acquisition always supposes the calling to, or devolution of, the inheritance (delatio hereditatis), that is, a legal right to assume it.

Ter. Clem.: Delata hereditas intelligitur, quam quis possit adeundo consequi.-1. 151, D. de V. S. 50, 16.'

'Delatio' and acquisition of the inheritance are exceptionally concurrent in the case of heredes necessarii.'b

BOOK III.

Part III.

a Sc. quam

heres.

See § 171, ad

init.

tract: cf. D.

45, 1, 61.

In Roman Law there are only two grounds of delatio, viz., Testament and Law; and accordingly, a dis- Not Continction is made between TESTAMENTARY Succession (successio heres ex testamento s. secundum tabulas sc. testamenti) and INTESTATE or Legal succession (successio intestati s. ab intestato, legitima hereditas, legitimus heres).

Gai. ii. § 99: (Hereditatum) duplex condicio

1 Inheritance is nothing else than the succession to the whole of the rights which a deceased person shall have possessed.

It is well known that the heir has the same power and the same rights which the deceased possessed.

3 Hereditas constitutes a legal conception even without any material thing.

There is no person that more nearly (that is, than the heir) approaches representation of him that has departed this life. An inheritance is regarded as offered which a man can acquire by entry.

BOOK III.
Part III.

est: nam vel ex testamento, vel ab intestato ad nos pertinent.'

The latter, that is, the appointment to the inheritance of certain persons closely related to the deceased, in a certain order of succession, by the law itself, only obtains in the absence of a testament.

Ulp. Quamdiu potest ex testamento adiri hereditas, ab intestato non defertur.-D. 29, 2, 39.* Both grounds of delatio simply exclude each other according to Roman civil Law, so that, if the testator has nominated an heir only for the one part of his heritage, the legal heirs are nevertheless not collateral to the latter, or called to the other part, but the former remains sole heir. The ground for this lies, on the one hand, in the principle of the Totality of the inheritance, because he that nominates his heir by a testament simply makes a disposition of his property as a WHOLE and of the continuance of his absolute control under Property Law-; on the other hand, in the subsidiary character of the Legal succession, which cannot In t. 2, 18, 6. obtain so long as the testament is effectual."

Pomp.: Ius nostrum non patitur eundem in paganis et testato et intestato decessisse, earumque rerum naturaliter inter se pugna est: 'testatus' et 'intestatus.'-1. 7, D. de R. J.3

Cic. de inv. ii. 21, 63: Unius pecuniae plures dissimilibus de causis heredes esse non possunt, nec umquam factum est, ut eiusdem pecuniae alius testamento alius lege heres esset.*

Inheritances have a twofold character; for they belong to us either upon the ground of a testament, or by an intestacy. 2 As long as entry can be made upon an inheritance, there is no devolution of it by intestacy.

3 Our law does not admit amongst civilians of the same person having died both with a testament and intestate, and there is a natural repugnancy between those two relations: 'testate' and 'intestate.'

4 Several cannot be heirs to one sum of money for different reasons; nor has it ever been effected that one person was heir by a testament, another heir by law to the same sum of money.

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