[SCAEUOLA libro quarto responsorum. ] §34.3.26.prTutor decedens aliis heredibus scriptis pupillo suo, cuius tutelam gessit, tertiam partem bonorum dari uoluit, si heredibus suis tutelae causa controuersiam non fecerit, sed eo nomine omnes liberauerit: pupillus legatum praetulit et postea nihilo minus petit quidquid ex distractione aliaue causa ad tutorem suum ex tutela peruenerit: quaero, an uerbis testamenti ab his exactionibus excludatur.
[SCAEUOLA in the fourth book of Responses.] A tutor, on dying, having appointed other heirs, wished a third part of his property to be given to his ward, whose guardianship he had administered, if the ward should not raise any dispute against his heirs on account of the guardianship, but should release them all on that score. The ward preferred the legacy and afterwards nevertheless claims whatever came to his tutor from the guardianship through sale of property or other cause. I ask whether he is excluded from these claims by the words of the testament.
respondit, si prius, quam condicioni pareret, fideicommissum percepisset et pergeret petere id, in quo contra condicionem faceret, doli mali exceptionem obstaturam: nisi paratus esset, quod ex causa fideicommissi percepisset, reddere: quod ei aetatis beneficio indulgendum est.
He answered that if, before complying with the condition, he had received the fideicommissum and should proceed to claim that in which he would act contrary to the condition, the defense of fraud would stand in his way, unless he were prepared to restore what he had received by reason of the fideicommissum; which option must be allowed to him by the benefit of his age.