[IDEM libro tertio decimo ad Sabinum. ] §38.17.2.21Sed si mater repudiauerit bonorum possessionem, de adeunda autem hereditate deliberet, dicendum erit adgnatum non succedere, quoniam nondum uerum est non adisse matrem.
But if the mother has rejected the possession of goods, but is deliberating about entering upon the inheritance, it must be said that the agnate does not succeed, because it is not yet true that the mother has not entered. But as to what we said, that the ancient law is preserved when the mother does not enter upon the inheritance, it must be considered to which person the inheritance is offered: whether to the one who is found to be nearest now, when the mother rejects, or to the one who was nearest when it became certain that the deceased died intestate?
§38.17.2.22Quod autem diximus ius antiquum seruari matre non adeunte, cui personae deferatur hereditas, uidendum, utrum ei, quae nunc proxima inuenitur, cum mater repudiat, an ei quae fuit, cum intestato decessisse certum est? ut puta fuit patruus, cum intestato decederet, et patrui filius: cum mater repudiasset, patruo nondum delatam hereditatem atque ideo defuncto eo matre deliberante patrui filium uocari. §38.17.2.23Si mater non petierit tutores idoneos filiis suis uel prioribus excusatis reiectisue non confestim aliorum nomina ediderit, ius non habet uindicandorum sibi bonorum intestatorum filiorum.
As for example, there was a paternal uncle when the deceased died intestate, and a paternal uncle's son: when the mother had rejected, the inheritance had not yet been offered to the paternal uncle, and therefore, upon his death while the mother was deliberating, the paternal uncle's son is called. If a mother has not petitioned for suitable guardians for her sons, or, when the first ones have been excused or rejected, has not immediately put forward the names of others, she has no right to claim for herself the goods of her intestate children.
et quidem si non petit, incidit: ait enim 'uel non petere'.
And indeed, if she does not petition, she falls under the penalty; for the text says 'or not to petition'.
sed a quo non petere? loquitur quidem de praetore constitutio: sed puto et in prouinciis locum habere, etiamsi a magistratibus municipalibus non petat, quoniam et magistratibus municipalibus dandi necessitas iniungitur.
But from whom is she not to petition? The constitution indeed speaks of the praetor; but I think it also has place in the provinces, even if she does not petition from municipal magistrates, since the necessity of appointing them is also imposed upon municipal magistrates. What then, if she petitioned, but having been admonished either by freedmen or by cognates, does she fall under the senatus consultum?
§38.17.2.24Quid ergo, si petiit, sed admonita uel a libertis uel a cognatis, an incidat in senatus consultum? et puto eam incidere, si compulsa fecit, non si, cum petere non cunctaretur, admonita est.
And I think she falls under it if she did so under compulsion, but not if she was admonished when she was not hesitating to petition. What if the father had forbidden a guardian to be petitioned for them, because he wished their property to be administered by the mother?
§38.17.2.25Quid si pater eis peti prohibuerat tutorem, quoniam per matrem rem eorum administrari uoluit? incidet, si nec petat nec legitime tutelam administrat. §38.17.2.26Quod si penitus egenis filiis non petit, ignoscendum est ei. §38.17.2.27Sed si forte absens a libertis praeuenta est uel ab aliis, dicendum est eam non excludi, nisi forte cum frustraretur, id contigit. §38.17.2.28Filiis autem non petendo punitur, utique et filiabus.
She will fall under it if she neither petitions nor legitimately administers the guardianship. But if she does not petition for sons who are utterly destitute, she is to be excused. But if by chance, being absent, she was forestalled by freedmen or by others, it must be said that she is not excluded, unless by chance this happened while she was prevaricating. But she is punished for not petitioning for her sons, and certainly also for her daughters.
quid si nepotibus? similiter non petendo punitur.
What if for her grandsons? She is similarly punished for not petitioning. What if she did not petition for curators?
§38.17.2.29Quid si curatores non petiit? uerba rescripti deficiunt, sed dicendum est, si quidem impuberibus curatores non petiit, eandem esse rationem, si iam puberibus, cessare debere.
The words of the rescript are lacking, but it must be said that, if indeed she did not petition for curators for those below puberty, the reasoning is the same; but if for those who have already reached puberty, it ought to cease. What if, when she was pregnant, she did not petition for a curator for the goods?
§38.17.2.30Quid si cum praegnas esset, bonis non petiit curatorem? dico in sententiam incidere: nam et si apud hostes habuit impuberem, idem erit dicendum.
I say she falls under the ruling; for even if she had a child below puberty among the enemy, the same must be said. What if she did not petition for a guardian or curator for an insane person?
§38.17.2.31Quid si furioso tutorem uel curatorem non petiit? magis est, ut incidat. §38.17.2.32Non solum autem quae non petiit coercetur, sed et quae defunctorie petiit, ut rescripto declaratur, uel priuilegio munitum uel oneratum tribus puta tutelis, sed ita demum, si data opera hoc fecit.
It is more likely that she falls under it. But not only is she who did not petition coerced, but also she who petitioned perfunctorily, as is declared in the rescript: for example, one protected by a privilege or burdened with three guardianships; but only if she did this deliberately. What then, if she petitioned for such persons, and they nevertheless undertook it or were retained?
§38.17.2.33Quid ergo, si tales petiit et susceperunt nihilo minus uel detenti sunt? excusata erit mater.
The mother will be excused. What if she petitioned for unworthy persons, that is, less suitable for guardianship, because she knew that the praetor would not grant them?
§38.17.2.34Quid si indignos, id est minus habiles ad tutelam petierit, quoniam sciebat praetorem eos non daturum? quid tamen si dedit eos praetor matris petitionem secutus? iam quidem praetoris delictum est, sed et matris punimus consilium. §38.17.2.35Igitur si forte excusati sint illi uel improbati, debet mater alios sine mora petere. §38.17.2.36Ergo siue non petierit siue idoneos non petierit, punietur, etiamsi dati fuerint minus idonei praetore errante. §38.17.2.37Idoneos autem utrum facultatibus an et moribus petere debeat, dubitationis esse potest.
But what if the praetor, following the mother's petition, did grant them? Now indeed it is the praetor's fault, but we also punish the mother's design. Therefore, if by chance those persons are excused or rejected, the mother ought to petition for others without delay. Therefore, whether she did not petition or did not petition for suitable ones, she will be punished, even if unsuitable ones were granted through the praetor's error. But whether she ought to petition for those suitable in respect of means, or also in respect of character, can be a matter of doubt.
puto autem facile ei ignosci, si locupletes sint hi, quos petiit. §38.17.2.38Sed et si prioribus excusatis reiectisue non confestim aliorum nomina ediderit, punitur.
But I think she is easily excused if those whom she petitioned for are wealthy. But also, if when the first ones have been excused or rejected, she has not immediately put forward the names of others, she is punished.