[IDEM libro tertio decimo ad Sabinum. ] §38.17.2.39Quid ergo, si non fuerint omnes excusati uel non omnes reiecti? uidendum, an ei imputetur, cur in locum excusati non petiit: et puto imputandum.
[IDEM libro tertio decimo ad Sabinum.] What then, if not all have been excused or not all rejected? It must be considered whether it is imputed to her why she did not petition in place of the excused one: and I think it is to be imputed.
§38.17.2.40Quid si decesserint quidam? puto, licet uerba deficiant, sententiam constitutionis locum habere.
What if some have died? I think, although the words are lacking, that the intention of the constitution has place.
§38.17.2.41Sed quod diximus 'reiecti' utrum sic accipimus 'a praetore non dati' an et si suspecti fuerint remoti uel ob neglegentiam uel ignauiam repulsi? etiam hos quis reiectos recte dicet.
But as to what we said "rejected", do we accept it thus, "not given by the praetor", or also if, having been suspected, they were removed, or repulsed on account of negligence or sloth? Anyone will correctly call these persons also "rejected".
ergo et si latitent? sed longum est: nam nec hoc ei imputetur, cur suspectos non fecit: alioquin et si latitarent, potuit edicto desiderare ut eos praetor adesse iuberet et suspectos eos remouet, si deessent.
What then if they are in hiding? But that is too long: for neither should this be imputed to her, why she did not accuse them as suspect; otherwise, even if they were in hiding, she could have requested by an edict that the praetor command them to be present and remove them as suspect if they were absent.
§38.17.2.42Quid si non compulit eos miscere se tutelae? et cum plenum officium a matre desideremus, et haec ei curanda sunt, ne in hereditate ei obstent.
What if she did not compel them to involve themselves in the guardianship? Since we require full performance of duty from the mother, these things also must be cared for by her, lest they stand in her way regarding the inheritance.
§38.17.2.43'Confestim autem sic erit accipiendum ubi primum potuit', id est praetoris copiam habuit huic rei sedentis, nisi forte infirmitate impedita est uel alia magna causa, quae etiam mandare eam ad petendos tutores impediret: ita tamen, ut nullo modo annale tempus excederet.
But "immediately" is to be understood thus: "as soon as she was able", that is, she had access to the praetor sitting for this matter, unless by chance she was prevented by illness or another great cause, which would prevent her even from mandating someone to petition for guardians: yet in such a way that it by no means exceeded the period of a year.
si enim mortalitate filii praeuenta est, nihil matri imputetur.
For if she was forestalled by the death of her son, nothing is to be imputed to the mother.
§38.17.2.44Tractari belle potest, si pupillo amplum legatum sub condicione sit relictum 'si tutores non habuerit' et propterea ei mater non petierit, ne condicione deficeretur, an constitutio cesset.
It can be neatly discussed, if a large legacy has been left to a ward under the condition "if he does not have guardians" and therefore the mother did not petition for him, lest he be deprived of the condition, whether the constitution ceases to apply.
et puto cessare, si damnum minus sit cumulo legati.
And I think it ceases, if the loss is less than the sum of the legacy.
quod et in magistratibus municipalibus tractatur apud Tertullianum: et putat dandam in eos actionem, quatenus plus esset in damno quam in legato.
This is also discussed in the case of municipal magistrates in Tertullian; and he thinks that an action ought to be given against them to the extent that there was more in loss than in the legacy.
nisi forte quis putet condicionem hanc quasi utilitati publicae obpugnantem remittendam ut alias plerasque: aut uerba cauillatus imputauerit matri, cur curatores non petierit.
Unless by chance someone thinks that this condition, as if opposing the public utility, ought to be remitted like most others; or, having caviled at the words, has imputed to the mother why she did not petition for curators.
finge autem plenius condicionem conscriptam: nonne erit matri ignoscendum? aut hoc imputatur matri, cur non desiderauit a principe condicionem remitti? et puto non esse imputandum.
But imagine the condition was written more fully: ought not the mother to be excused? Or is this imputed to the mother, why she did not request from the emperor that the condition be remitted? And I think it is not to be imputed.
§38.17.2.45Ego etiam si mater ei, qui soluendo non erit, non petiit tutorem, puto ignoscendum: consuluit enim ei, ut minus inquietetur quasi indefensus.
Even if the mother did not petition for a guardian for one who will not be solvent, I think she is to be excused: for she consulted his interest, so that he might be less harassed as if undefended.
§38.17.2.46Et si forte quis uxorem communis filii matrem heredem scripsit rogauitque remissa etiam satisdatione, ut filio puberi facto restitueret hereditatem, nec mater ei petiit tutores, debet dici cessare constitutionem, cum patris uoluntatem secuta sit et nihil habenti filio tutores non petierit.
And if by chance someone appointed his wife, the mother of their common son, as heir, and requested, even with the release of security, that she restore the inheritance to the son when he reached puberty, and the mother did not petition for guardians for him, it ought to be said that the constitution ceases, since she followed the father's will and did not petition for guardians for the son who had nothing.
quod si ei remissa satisdatio non fuerit, contra erit, quoniam uel propter hoc debuit tutores habere.
But if the security was not released to her, it will be the contrary, since even on account of this he ought to have had guardians.
sed si forte impubes post matris cessationem fuerit adrogatus et impubes obierit, dicendum erit matri aduersus adrogatorem non competere ex stipulatu actionem.
But if by chance the impuber, after the mother's cessation, was arrogated and died impuber, it must be said that the action on the stipulation does not lie for the mother against the arrogator.
§38.17.2.47Uidendum est, matre prohibita ius suum uindicare utrum ceteros admittamus, atque si mater non esset, an ipsam heredem dicimus fieri uel aliud nomen successionis induere, sed denegamus ei actiones? et inuenimus rescriptum ab imperatore nostro Antonino Augusto et diuo patre eius Mammiae Maximinae pridie idus Apriles Plautiano iterum consule matre remota eos admitti, qui uenirent, si mater non fuisset: ergo et adgnati ceterique succedent aut, si nemo sit, bona uacabunt.
It must be considered, when the mother is prohibited from claiming her right, whether we admit the others just as if the mother did not exist, or whether we say that she herself becomes heir or assumes another title of succession, but we deny her actions? And we find a rescript by our Emperor Antoninus Augustus and his deified father to Mammia Maximina, on the day before the Ides of April, in the second consulship of Plautianus, that when the mother is removed, those are admitted who would come if there had been no mother: therefore, the agnates and the others will succeed, or, if there is no one, the goods will lapse.