[ULPIANUS libro quadragensimo primo ad edictum. ] §37.10.5.prSed si is, qui controuersiam impuberi facit, ex liberis sit, eueniet, ut, siue caueat hic, cui status fit controuersia, siue non caueat, attamen simul sit in possessionem.
[ULPIANUS libro quadragensimo primo ad edictum.] But if the person who brings a controversy against the impuberic child is one of the children, it will happen that, whether this person whose status is disputed gives security or does not give security, he will nevertheless be put into possession at the same time.
§37.10.5.1Si impubes non defendatur idcircoque missus sit in possessionem etiam aduersarius eius, actiones hereditarias quis exercebit? et ait Iulianus libro uicensimo quarto digestorum curatorem constitui debere, qui omnia curet actiones exerceat.
If the impuberic child is not defended, and for that reason his adversary also is put into possession, who will exercise the hereditary actions? And Julian says in the twenty-fourth book of his Digests that a curator ought to be appointed, who is to manage everything and exercise the actions.
denique scribit etiam eum, qui cum impubere missus est in possessionem, actiones posse aduersus curatorem intendere nec esse prohibendum: nullum enim per hoc praeiudicium hereditati fieri: nam et aduersus ipsum pupillum, si satis dedisset, recte experiretur.
Finally, he writes that even he who has been put into possession along with the impuberic child can bring actions against the curator and should not be prohibited from doing so; for no prejudice is done to the inheritance by this. For even against the pupil himself, if he had given security, he would have rightly proceeded.
§37.10.5.2Quotiens impubes satis non dat, mittitur in possessionem aduersarius eius, siue satis det siue non det.
Whenever the impuberic child does not give security, his adversary is put into possession, whether he himself gives security or does not.
si uelit aduersarius committi sibi administrationem, satis dare debet pupillo: ceterum si satis non det, debet curator constitui, per quem bona administrentur.
If the adversary wishes the administration to be committed to him, he must give security to the pupil; but if he does not give security, a curator must be appointed through whom the goods are to be administered.
aduersarius autem si satis dederit, res, quae tempore periturae aut deteriores futurae sint, distrahere debet: item a debitoribus, qui tempore liberabuntur, exigere debet: cetera cum pupillo possidebit.
If, however, the adversary has given security, he ought to sell those things which are likely to perish or deteriorate by time; likewise, he ought to demand payment from those debtors who will be released by time; other things he will possess along with the pupil.
§37.10.5.3An autem uescendi causa deminuere possit is qui ex Carboniano missus est, uideamus.
But let us see whether he who has been put into possession on the basis of the Carbonian edict can alienate for the sake of sustenance.
et si quidem satis impubes dedit, siue decreuit praeses siue non, deminuet uescendi causa et hoc minus restituet hereditatis petitori.
And indeed, if the impuberic child has given security, whether the governor has decreed so or not, he will alienate for the sake of sustenance and will restore that much less to the petitioner of the inheritance.
quod si satis dare non potuit et aliter alere se uidetur non posse, deminuendi causa usque ad id, quod alimentis eius necessarium est, mittendus est.
But if he could not give security, and it appears that he cannot support himself otherwise, he must be put into possession for the purpose of alienating up to that which is necessary for his maintenance.
nec mirum debet uideri hereditatem propter alimenta minui eius, quem fortasse iudicabitur filium non esse, cum omnium edictis uenter in possessionem mittatur et alimenta mulieri praestentur propter eum, qui potest non nasci, maiorque cura debeat adhiberi, ne fame pereat filius, quam ne minor hereditas ad petitoren perueniat, si apparuit filium non esse.
Nor should it seem strange that an inheritance is diminished for the maintenance of one who perhaps will be judged not to be a son, since by the edict of all magistrates the unborn child is put into possession and maintenance is provided to the woman on account of him who may not be born, and greater care ought to be applied lest a son perish of hunger than lest a smaller inheritance reach the petitioner if it has appeared that he is not a son.
§37.10.5.4Maxime autem puto, si missus fuerit in possessionem aduersarius, desiderandum a praetore, ne instrumenta in possessionem suam redigat: ceterum decipietur pupillus, dum uel instruitur aduersarius eius uel etiam intercipere ea potest.
But I think it is especially to be requested of the praetor, if the adversary has been put into possession, that he should not get the documents into his own possession; otherwise the pupil will be deceived while his adversary is either prepared by them or is even able to intercept them.
§37.10.5.5Cum autem in satisdatione et pupillus et aduersarius eius cessant, curator constituendus est, qui bona administret et quandoque ei qui iudicio uicerit restituat.
But when both the pupil and his adversary fail in the giving of security, a curator must be appointed to administer the goods and restore them in due time to the one who has won the lawsuit.
quid tamen, si tutores pupilli uelint administrare? non erunt audiendi, nisi satis dederint nomine pupilli aut curatores quoque idem ipsi sint constituti.
But what if the tutors of the pupil wish to administer? They will not be heard unless they have given security in the name of the pupil or they themselves have been appointed as curators as well.