[IDEM libro uicesimo epistularum. ] §26.7.61.prApud Aristonem ita scriptum est: quod culpa tutoris pupillus ex hereditate desiit possidere, eius aestimatio in petitione hereditatis sine ulla dubitatione fieri debebit ita, si pupillo de hereditate cautum sit: cautum autem esse uidetur etiam si tutor erit idoneus, a quo seruari possit id, quod pupillus ex litis aestimatione subierit.
[THE SAME, in the twentieth book of his Epistles.] In the works of Aristo it is written as follows: that which the pupillus, through the fault of his guardian, ceased to possess from the inheritance, its valuation must without any doubt be made in the petition for the inheritance, provided that security has been given to the pupillus regarding the inheritance. But security is deemed to have been given even if the guardian is solvent, from whom that which the pupillus has incurred from the valuation of the suit can be recovered.
sed si tutor soluendo non est, uidendum erit, utrum calamitas pupilli an detrimentum petitoris esse debeat perindeque haberi debet, ac si res fortuito casu interisset, similiter atque ipse pupillus expers culpae quid ex hereditate deminuisset corrupisset perdidisset.
But if the guardian is insolvent, we must see whether it ought to be the misfortune of the pupillus or the loss of the plaintiff, and it must be treated in the same way as if the thing had perished by an accidental casualty, just as if the pupillus himself, being free from fault, had diminished, damaged, or lost something from the inheritance.
de possessore quoque furioso quaeri potest, si quid ne in rerum natura esset, per furorem eius accidisset.
Concerning a possessor who is insane, a question can also be raised if, through his madness, it should happen that something ceased to exist in the nature of things.
tu quid putas? Pomponius: puto eum uere dicere.
What do you think? Pomponius: I think he speaks the truth.
sed quare cunctatus es, si soluendo non sit tutor, cuius damnum esse debeat? cum alioquin elegantius dicere poterit actiones dumtaxat, quas haberet cum tutore pupillus, uenditori hereditatis praestandas esse, sicuti heres uel bonorum possessor si nihil culpa eius factum sit (ueluti si fundo hereditario ui deiectus sit aut seruus hereditarius uulneratus ab aliquo sit sine culpa possessoris), nihil plus quam actiones, quas eo nomine habet, praestare debeat.
But why did you hesitate, if the guardian is insolvent, as to whose loss it ought to be? Since otherwise it can be said more elegantly that only the actions which the pupillus would have against his guardian must be made available to the seller of the inheritance, just as an heir or possessor of goods, if nothing has been done by his fault (as for example, if he has been forcefully ejected from an inherited estate, or an inherited slave has been wounded by someone without the fault of the possessor), is bound to make available nothing more than the actions which he has on that account.
idem dicendum est et si per curatorem furiosi culpa uel dolo quid amissum fuerit, quemadmodum si quid stipulatus tutor uel curator fuisset aut uendidisset rem hereditariam.
The same must be said also if anything has been lost through the fault or fraud of the curator of an insane person, just as if a guardian or curator had made a stipulation or had sold an inherited thing.
impune autem puto admittendum, quod per furorem alicuius accidit, quo modo si casu aliquo sine facto personae id accidisset.
Moreover, I think that what happens through the madness of someone should be allowed to pass with impunity, in the same way as if it had happened by some accident without the act of a person.