[ULPIANUS libro sexagesimo primo ad edictum. ] §29.2.20.prPro herede gerere uidetur is, qui aliquid facit quasi heres.
[ULPIANUS in the sixty-first book on the Edict.] A person is considered to act as heir who does something as if he were the heir.
et generaliter Iulianus scribit eum demum pro herede gerere, qui aliquid quasi heres gerit: pro herede autem gerere non esse facti quam animi: nam hoc animo esse debet, ut uelit esse heres.
And Julian writes generally that he alone acts as heir who performs some action as if he were the heir; but acting as heir is a matter of intention rather than of fact, for he must have this intention, that he wishes to be the heir.
ceterum si quid pietatis causa fecit, si quid custodiae causa fecit, si quid quasi non heres egit, sed quasi alio iure dominus, apparet non uideri pro herede gessisse.
However, if he did something for the sake of filial piety, or for the sake of custody, or if he acted not as heir but as owner by some other right, it is clear that he is not considered to have acted as heir.
§29.2.20.1Et ideo solent testari liberi, qui necessarii existunt, non animo heredis se gerere quae gerunt, sed aut pietatis aut custodiae causa aut pro suo.
And therefore children who are necessary heirs are accustomed to declare that they do what they do, not with the intention of an heir, but either for the sake of filial piety, or custody, or as for their own.
ut puta patrem sepeliuit uel iusta ei fecit: si animo heredis, pro herede gessit: enimuero si pietatis causa hoc fecit, non uidetur pro herede gessisse.
As for instance, if one buried his father or performed his funeral rites: if with the intention of an heir, he acted as heir; but if he did this for the sake of filial piety, he is not considered to have acted as heir.
seruos hereditarios pauit iumenta aut pauit aut distraxit: si hoc ut heres, gessit pro herede: aut si non ut heres, sed ut custodiat, aut putauit sua, aut dum deliberat, quid fecit, consulens ut saluae sint res hereditariae, si forte ei non placuerit pro herede gerere, apparet non uideri pro herede gessisse.
If he fed the slaves belonging to the inheritance, or fed or sold the draft animals: if he did this as heir, he acted as heir; but if not as heir, but to keep them safe, or because he thought they were his, or while he was deliberating, whatever he did, caring for the preservation of the inherited property in case it should not please him to act as heir, it is clear that he is not considered to have acted as heir.
proinde et si fundos aut aedes locauit uel fulsit uel si quid aliud fecit non hoc animo, quasi pro herede gereret, sed dum ei, qui substitutus est uel ab intestato heres exstaturus, prospicit, aut res tempore perituras distraxit: in ea causa est, ut pro herede non gesserit, quia non hoc animo fuerit.
Consequently, even if he leased or repaired lands or houses, or did anything else, not with this intention as if he were acting as heir, but while he was looking out for the person who is substituted or who would become the heir on intestacy, or if he sold things that would perish over time, he is in such a position that he did not act as heir, because he did not have this intention.
§29.2.20.2Si quid tamen quasi heres petit, sed ex his, quae ad heredem extraneum non transeunt, uideamus, an oneribus se immerserit hereditariis.
If, however, he claims something as if he were the heir, but from among those things which do not pass to an external heir, let us see whether he has submerged himself in the inherited liabilities.
ut puta a liberto parentis operas petit: has heres extraneus petere non potuit, hic tamen petendo consequi potest.
As for instance, if he claims services from a freedman of his parent: an external heir could not claim these, yet this person can obtain them by claiming.
et constat pro herede eum non gessisse, cum petitio earum etiam creditoribus competat et maxime futurarum.
And it is established that he has not acted as heir, since the claim for them belongs also to the creditors, and especially for those to be performed in the future.
§29.2.20.3Sed et qui in sepulchrum hereditarium mortuum intulit, obligari paternis creditoribus non est existimandus, ut Papinianus ait: quae sententia humanior est, licet Iulianus contra scripserit.
But also he who has carried a dead person into an inherited tomb is not to be thought to be bound to his father's creditors, as Papinian says; which opinion is more humane, although Julian wrote to the contrary.
§29.2.20.4Papinianus scribit filium heredem institutum qui se bonis paternis abstinuit uolgo putare quosdam, si a statulibero pecuniam accepit, a creditoribus conueniendum, siue nummi peculiares fuerint siue non fuerint, quia ex defuncti uoluntate accipitur, quod condicionis implendae causa datur.
Papinian writes that if a son appointed as heir, who has abstained from his father's property, accepted money from a conditionally free slave, some commonly think that he is to be sued by the creditors, whether the coins belonged to his peculium or not, because what is given for the purpose of fulfilling a condition is received in accordance with the will of the deceased.
Iulianus autem et si non abstinuit, idem existimauit.
But Julian thought the same even if he did not abstain.
ita demum autem pro herede gessisse ait Papinianus, si solus heres sit: ceterum si coheredem habeat et coheres adiit, non est cogendus, inquit, is qui accepit a statulibero actiones creditorum suscipere: nam cum se filius abstinet, idem debebit consequi iure praetorio, quod emancipatus consequitur qui hereditatem repudiauit, quo facto statuliber filio nominatim pecuniam dare iussus potuisset non heredi dando ad libertatem peruenire.
Papinian says, however, that he has acted as heir only if he is the sole heir; but if he has a co-heir and the co-heir has entered upon the inheritance, he says that the one who received from the conditionally free slave is not to be forced to undergo the actions of the creditors. For when the son abstains, he ought to obtain the same by praetorian law as an emancipated son obtains who has repudiated the inheritance, by which fact a conditionally free slave ordered to give money specifically to the son could have attained freedom by giving it to someone who was not the heir.
itaque tunc pro herede geri dicendum esse ait, quotiens accipit quod citra nomen et ius heredis accipere non poterat.
Therefore, he says it must be said that he acts as heir on those occasions when he receives what he could not have received without the name and right of an heir.
§29.2.20.5Si sepulchri uiolati filius aget quamuis hereditarii, quia nihil ex bonis patris capit, non uidetur bonis inmiscere: haec enim actio poenam et uindictam quam rei persecutionem continet.
If the son brings an action for violation of a sepulchre, even if it belongs to the inheritance, since he takes nothing from his father's property, he is not considered to meddle with the property; for this action contains a penalty and vengeance rather than the pursuit of property.