[IDEM libro septimo quaestionum. ] §27.1.32.prNesennius Apollinaris Iulio Paulo.
[THE SAME, from the seventh book of Questions.] Nesennius Apollinaris to Julius Paulus.
Mater filium suum pupillum uel quiuis alius extraneus extraneum aeque pupillum scripsit heredem et Titio legatum dedit eumque eidem pupillo tutorem adscripsit: Titius confirmatus excusauit se a tutela: quaero, an legatum amittat.
A mother appointed her ward son as heir (or any other outsider appointed an outsider ward likewise as heir) and gave a legacy to Titius, and assigned him as tutor to the same ward. Titius was confirmed but excused himself from the guardianship: I ask whether he loses the legacy.
et quid, si testamento quidem tutor non sit scriptus, legatum tamen acceperit datusque a praetore tutor excuset se, an aeque repellendus sit a legato? et an aliquid intersit, si a patre uel emancipato pupillo tutor datus sit uel puberi curator? respondi: qui non iure datus tutor uel curator a patre, confirmatus a praetore excusationis beneficio uti maluit, repellendus est a legato: idque et Scaeuolae nostro placuit: nam praetor, qui eum confirmat tutorem, defuncti sequitur iudicium.
And what if he was not indeed appointed tutor by the will, but nevertheless received a legacy, and having been appointed tutor by the praetor, excused himself; should he likewise be excluded from the legacy? And does it make any difference if a tutor was appointed by a father, or for an emancipated ward, or a curator for an adult under age? I answered: a tutor or curator appointed by a father not in accordance with law, who, having been confirmed by the praetor, preferred to use the benefit of excuse, must be excluded from the legacy; and this was also approved by our Scaeuola, for the praetor who confirms him as tutor follows the judgment of the deceased.
idem in matris testamento dicendum est.
The same must be said in the case of a mother's will.
similis est matri quiuis extraneus, qui pupillum heredem instituit eique et in tutore dando prospicere uoluit, quales sunt alumni nostri.
Similar to a mother is any outsider who has instituted a ward as heir and wished to provide for him by appointing a tutor, such as our foster-children.
recte ergo placuit eum, qui recusat id quod testator relinquit ab eo quod petit quod idem dedit repelli debere.
Therefore, it was rightly approved that he who refuses that which the testator left him should be excluded from seeking that which the same testator gave.
non semper tamen existimo eum, qui onus tutelae recusauit, repellendum a legato, sed ita demum, si legatum ei ideo adscriptum appareat, quod eidem tutelam filiorum iniunxit, non quod alioquin daturus esset etiam sine tutela.
However, I do not think that he who has refused the burden of guardianship should always be excluded from a legacy, but only if it appears that the legacy was assigned to him for the reason that the testator enjoined on him the guardianship of his sons, and not that he would have given it anyway even without the guardianship.
id apparere potuit, si posueris testamento legatum adscriptum, codicillis uero postea factis tutorem datum: in hoc enim legato potest dici non ideo ei relictum, quia et tutorem esse uoluerit testator.
This could appear if you suppose that the legacy was assigned in the will, but the tutor was appointed afterwards by a codicil; for in the case of this legacy, it cannot be said that it was left to him because the testator also wished him to be tutor.