[IAUOLENUS libro primo epistularum. ] §42.5.28.prPater familias impuberi filio, si ante pubertatem decessisset, substituit heredem: is filius paterna hereditate se abstinuit ideoque bona patris uenierunt: postea filio hereditas obuenit, qua adita decessit.
[IAUOLENUS on the Letters, book 1.] A father of a family appointed a substitute heir for his under-age son, in case he should die before puberty: this son abstained from his father's inheritance, and therefore the father's goods were sold: later, an inheritance fell to the son, which he entered upon and then died.
quaero, cum praetor in ipsum pupillum, quamuis postea hereditas obuenisset, creditoribus tamen patris actionem non daret, an in substitutum creditoribus patris danda sit actio, cum ex bonis paternis, quae scilicet ad creditores missos in bona pertinent, nihil adquirat et cum creditores nihil iuris in bonis pupilli habuerint eorumque nihil interfuerit, adiretur necne pupilli hereditas, cum ea bona omissa a substituto hereditate ad creditores non pertinebant.
I ask, since the praetor would not grant an action to the father's creditors against the pupillus himself, even though an inheritance had subsequently fallen to him, whether an action should be granted to the father's creditors against the substitute, since he acquires nothing from the father's goods, which of course belong to the creditors put in possession of the goods, and since the creditors had no right in the goods of the pupillus and it made no difference to them whether or not the inheritance of the pupillus was entered upon, since those goods, if the inheritance were declined by the substitute, did not belong to the creditors.
me illud maxime mouet, quod praeceptoribus tuis placet unum esse testamentum.
What moves me most is that your teachers hold that there is but one will.
respondit: quod praetor filio, qui a paterna hereditate se abstinet, praestat, ne bonis patris eius uenditis in eum actio detur, tametsi postea ei hereditas obuenit, creditoribus non reddat, idem in substituto filio herede seruandum non est, quoniam filii pudori parcitur, ut potius patris quam eius bona ueneant, itaque in id, quod postea ei obuenit, actio creditoribus denegatur, quia id ex aduenticio adquisitum est, non per patrem ad eum peruenit.
He answered: The benefit which the praetor grants to a son who abstains from his father's inheritance—namely, that after his father's goods have been sold, no action is granted against him, even if an inheritance subsequently falls to him, and that the praetor does not deliver him to the creditors—the same is not to be observed in the case of the substitute heir to the son, since the son's reputation is spared, so that the father's goods rather than his own are sold, and therefore, an action is denied to the creditors regarding what subsequently fell to him, because that was acquired from an external source and did not come to him through his father.
at cum substitutus filio hereditatem adiit, postquam pupillus se paternae miscuerit hereditati, tunc hereditas et patris et filii una est et in omni aere alieno, quod aut patris aut filii fuerit, etiam inuitus heres obligatur: et quemadmodum liberum ei non est obligationem, ut non omnimodo, si non defenditur, ipsius bona ueneant, ita ne separare quidem aes alienum patris et filii poterit: quo casu efficietur, ut creditoribus in eum actio dari debeat.
But when the substitute has entered upon the inheritance of the son, after the pupillus has intermeddled with the paternal inheritance, then the inheritance of both the father and the son is one, and for all debts which belonged to either the father or the son, the heir is bound, even against his will: and just as he is not free to avoid the obligation so that his own goods are not sold in any event if he does not defend himself, so he cannot even separate the debts of the father and the son; in which case the result is that an action ought to be granted to the creditors against him.
quod si substitutus heres hereditatem non adierit, creditoribus patris in id, quod pupillus reliquit, actio dari non debet, quoniam neque pupilli bona uenire debent propter aes alienum patris neque in bonis patris est quod pupillus adquisiit.
But if the substitute heir does not enter upon the inheritance, an action ought not to be granted to the father's creditors against what the pupillus left, since neither the goods of the pupillus ought to be sold on account of the father's debt, nor is what the pupillus acquired contained among the goods of the father.