CASE 205: Release from Liability

D. 34.3.28.3 (Scaevola libro sexto decimo Digestorum)

Titius testamento facto et filiis heredibus institutis de patre tutore suo quondam facto ita locutus est: “Seium patrem meum liberatum esse volo ab actione tutelae.” quaero, haec verba quatenus accipi debent, id est an pecunias, quas vel ex vendi­tionibus rerum factis aut ex nominibus exactis in suos usus convertit vel nomine suo faeneravit, filiis et heredibus testatoris nepotibus suis debeat reddere.

(Scaevola in the sixteenth book of his Digests)

Titius, after making his will and instituting his children as heirs, said (in his will) the following about his father, who had formerly been his guardian (tutor): “I want my father Seius to be released from an action on guardianship.”

I ask how widely these words should be applied? That is, would he (the fa­ther) be obligated to return to the children and heirs of the testator (his own grandchildren) the proceeds that he collected from sales of property or foreclo­sure of loans and has converted to his own use or lent out under his own name?

He (Scaevola) responded that the finder of fact will have to weigh (both sides of the case). A presumption based on natural affection makes it appear that the father was granted everything, unless the heirs show that the testator in­tended another result.

1.      Release by Will. The legatum liberationis was a means of releasing someone from an obligation owed to the estate: a debt or some form of liability, in this Case the action on guardianship, which otherwise could be raised by the tes­tator's heirs (see Discussion 5 on Case 218).

2.      Natural Affection and Fraud. Why does Scaevola invoke “natural affection”? In what respect are the testators words insufficiently clear? Usually a testa­mentary release from liability is ineffective if the beneficiary had engaged in fraud that was unknown to the testator (see, e.g., Pomponius, D. 34.3.8.6). Are the fathers actions likely to have been fraudulent? If so, is this Case an ex­ception to the general rule? Why might an exception be appropriate?

size=1 color=black face="Book Antiqua">3.      Whose Children? In his will, a man legates a farm to his wife “whenever she has children.” They divorce, she remarries, has children by her second hus­band, divorces him, and returns to her first. After his death, can she claim the legacy? Julian (D. 35.1.25) says no, since it is unlikely that the testator con­templated his wife's giving birth to children by another man during his life­time. Does Julian presume that “natural affection” is wanting?