[ULPIANUS libro quinquagesimo ad edictum. ] §29.4.4.prSi quis pecuniam non accepit, simpliciter autem omisit causam testamenti, dum uult praestitum ei qui substitutus est uel legitimo, numquid locus non sit edicto? plane indignandum est circumuentam uoluntatem defuncti: et ideo si liquido constiterit in necem legatariorum hoc factum, quamuis non pecunia accepta, sed nimia gratia collata, dicendum erit locum esse utili actioni aduersus eum qui possidet hereditatem.
[ULPIANUS, book fifty on the edict] If someone did not accept money, but simply abandoned the succession under a will, in so far as he wishes a favor to be conferred on the substitute or the intestate heir, is there no room for the edict? Indeed, it is completely outrageous that the will of the deceased has been circumvented; and therefore, if it is clearly established that this was done to the detriment of the legatees, although not because money was accepted but because excessive favor was bestowed, it must be said that there is room for a beneficial action against the one who possesses the inheritance.
§29.4.4.1Et recte dicetur, ubicumque quis, dum uult praestitum ei, qui se repudiante uenturus est, non repudiaturus, nisi praestitum uellet, et maxime si ob euertenda iudicia id fecit, ibi dicendum est aduersus possessorem competere actionem, sic tamen, ut, ubi quidem pecunia accepta repudiauit, ibi dicamus eum qui omisit conueniendum, ubi uero gratis, in fraudem tamen eorum quibus quid relictum est, possessorem debere conueniri utili actione.
And it will be rightly said that, wherever someone, because he wishes a favor to be conferred on the person who is to succeed upon his repudiation (and he would not have repudiated unless he wished the favor to be conferred), and especially if he did this in order to overthrow the testamentary dispositions, there it must be said that the action lies against the possessor; provided, however, that where he repudiated after accepting money, there we say that the one who abandoned is to be sued, but where he did so gratuitously, yet in fraud of those to whom something was left, the possessor ought to be sued by a beneficial action.
§29.4.4.2Quamquam de heredibus institutis uideatur praetor loqui, attamen etiam ad alios haec res serpit: ut, si sit legatarius, a quo fideicommissum relictum est, et hic id egisset, ut omittatur hereditas, doloque id fecit, conueniri debet.
Although the praetor may seem to speak of instituted heirs, nevertheless this matter also extends to others: as, for example, if there is a legatee from whom a fideicommissum was left, and he had managed to bring about the abandonment of the inheritance, and did so with malicious intent, he ought to be sued.
§29.4.4.3Si quis uendiderit hereditatem, utique possidere uidetur, non dolo fecisse, quo minus possideat.
If someone has sold an inheritance, he is certainly deemed to possess it, and not to have acted with malicious intent to avoid possessing it.