[TRYPHONINUS libro quinto disputationum. ] §34.9.22.prTutorem, qui pupilli sui nomine falsum uel inofficiosum testamentum dixit, non perdere sua legata, si non optinuerit, optima ratione defenditur et, si libertum patris pupilli sui nomine capitis accusauerit, non repelli a bonorum possessione contra tabulas, quia officii necessitas et tutoris fides excusata esse debet.
It is maintained with excellent reason that a guardian who, in the name of his ward, has alleged a will to be forged or undutiful, does not lose his own legacies if he does not succeed; and, if he has accused his ward’s father’s freedman of a capital crime in the name of his ward, he is not barred from possession of goods contrary to the will, because the necessity of duty and the good faith of the guardian ought to be excused.
nec quisquam iudicum calumnia notabit tutorem, qui non suis simultatibus accusationem sub nomine pupilli instituit, sed cogente forte matre pupilli uel libertis patris instantibus.
Nor will any of the judges brand the guardian for malicious prosecution who initiated the accusation under the name of the ward, not out of his own animosities, but perhaps under compulsion by the ward’s mother or at the insistence of the father’s freedmen.
et si tutor reum aliquem postulauerit pupilli nomine et ideo non sit exsecutus, quod interim ad pubertatem pupillus peruenerit, non oportet dici in Turpillianum cum senatus consultum incidisse.
And if a guardian has prosecuted some defendant in the name of his ward, and did not follow it up because the ward in the meantime reached the age of puberty, it ought not to be said that he has fallen under the Turpillian Senate-consult.
discreta sunt enim iura, quamuis plura in eandem personam deuenerint, aliud tutoris, aliud legatarii: et cum non suae personae iure, sed pilli accusauerit, propriam poenam mereri non debet.
For their rights are distinct, although several have come together in the same person—one being that of a guardian, the other of a legatee; and since he prosecuted not by the right of his own person, but of the ward, he ought not to deserve personal punishment.
denique pupillo relicta in eo testamento, nisi a principe conseruata sint, pereunt: adeo ille est accusator, is defensor et quasi patronus.
Finally, the things left to the ward in that will, unless preserved by the emperor, are lost; to such an extent is the former the accuser, and the latter the defender and as it were advocate.
idem et Sabinus libris ad Uitellium scripsit.
Sabinus also wrote the same in his books to Vitellius.