7. THE APPOINTMENT OF A CURATOR FOR AN ESTATE
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72 BOOK FORTY-TWOITHE APPOINTMENT OF A CURATOR separation, it is rather to be said that if he cannot recover in full from the inheritance, he will get at least something therefrom, once the creditors of the heir himself have been dealt with. This is certainly the case with creditors of the heir, once the creditors of the inheritance have been dealt with. 4 PAPINIAN, Replies, book 12: Creditors whose debt is due at a future time or under a condition, so that they cannot presently claim the money, can also be granted separation ; for their interests are looked to by this general security. 1. It is further accepted that legatees have a right of pledge, but only over what may be preserved from the assets. 5 PAUL,Questions, book 13: Put the case that creditors of an inheritance seek separation of assets and it be found that there is not enough in the inheritance but that the heir has adequate resources. They cannot now come back against the heir but must stand by what they first claimed. If, though, after separation has been sought, the heir acquire something, of course by way of the inheritance, the petitioners for separation have a claim also in respect of this acquisition; but if the heir gives them their due, what may be left over is to go to the heir's own creditors. If, however, the heir's acquisition be from an extraneous source, the creditors of the inheritance as such have no claim. There are, though, those who think that, in such a case, if the heir's own creditors receive payment in full, anything over should go to the creditors of the inheritance ; personally, I am not of that view; for in petitioning for separation, these creditors turned away from the heir personally and took and sold the assets as those of the deceased and those assets cannot be subsequently augmented. I think that the same holds good even if, having misled themselves in the matter of separation of assets , they finish up with less than the heir's own creditors. For the heir's personal creditors have both his present personal assets and what he may acquire during his life. 6 JULIAN,Digest, book 46: Whenever an heir's estate is insolvent, it is perfectly proper that not only creditors of the testator but also legatees may petition for separation so that, once the creditors have been satisfied in full, the legatees may acquire all or part of what is left to them. 1. If a freedwoman, named heir, seek bonomm possessio in accordance with the will of a testator who dies insolvent, the question arises whether her estate can be separated from that of the inheritance. The answer is that it is not unfair that her patron should be relieved from being saddled with debts, which, by seeking bonomm possessio secundum tabulas, the freedwoman incurred. 7 MARCIAN, Rules, book 2: Those who institute proceedings against an heir can seek separation as though they were creditors of the inheritance; for they are under the necessity so to act. THE APPOINTMENT OF A CURATOR FOR AN ESTATE 1 PAUL,Edict, book 57: If someone be instituted heir under a condition, he has to comply with it, if he can, or if he says that he will not accept the inheritance even if the condition be realized, the deceased's estate will be sold. 1 . But if this be difficult to effect, a curator is to be appointed and the estate not sold. 2. Should there be a heavy debt which is being increased by penalties, the curator is to be directed to discharge it as in the case of an estate held for an unborn child or of a pupillus who does not have a tutor. 2 ULPIAN,Edict, book 65: In the matter of appointing a curator, the rule which we observe is that the praetor is approached and he appoints a curator or curators with the agreement of the majority of the creditors; if the property to be sold is in a province , it is the governor who makes the appointment. 1. The acts and so forth of 72 BOOK FORTY-TWO/THE APPOINTMENT OF A CURATOR separation, it is rather to be said that if he cannot recover in full from the inheritance, he will get at least something therefrom, once the creditors of the heir himself have been dealt with. This is certainly the case with...