June 44 BCE: To Gaius Trebatius Testa (at Rome) from Cicero (at Tusculum)
Epistolary Alert: The Lawyers Are Fightingggg
I have told you about Silius’ case. He later came to see me. When I told him that you felt we could safely make the stipulation ‘If the praetor Quintus Caepio, in accordance with his edict, has granted me possession of Turpilia’s estate…’, he said that Servius said that a will made by someone who did not have the legal right to make a will does not count as a will; Offilius said the same thing.1 He said that he had not spoken to you, and he asked me to commend him and his case to you.
My Testa, there is no better man, nor is anyone more dear to me than Publius Silius—besides yourself! Therefore I would be very grateful if you would go to him and promise to help him; and if you love me, as soon as is possible. I ask this as an important and pressing favour.
Read Ad Familiares 7.21 in Latin here | Check the glossary here
Footnote borrowed from Shackleton Bailey: ‘On this see A. Watson, Law of Succession in the later Roman Republic (1971), 73ff. It seems to have been as follows: a certain Turpilia made a will leaving her estate to P. Silius; but as she had not undergone capitis deminutio by the process of coemptio, thus passing out of the potestas of her guardian, the will was legally void (cf. Watson, op. cit. 22f.). None the less the Praetor Urbanus (M. Brutus) granted Silius bonorum possessio secundum tabulas. The will was contested by the intestate heir, who seems to have taken possession of the property, or some of it, and at Silius’ request the Praetor issued an interdict ordering him to restore it. To give this effect Silius proposed a sponsio in the form si bonorum Turpiliae possessionem Q. Caepio praetor ex edicto suo mihi dedit [‘If the praetor Quintus Caepio, in accordance with his edict, has granted me possession of Turpilia’s estate…’]. Trebatius, consulted by Cicero, had earlier given an opinion that Silius would win the sponsio and that he would regain possession. But two eminent jurists, Sulpicius Rufus and Offilius, disagreed. In their view (endorsed by Cicero in Top. 18, perhaps with this case in mind) bonorum possessio secundum tabulas could only be given ex edicto where the will was legally valid. Trebatius’ previous opinion may have been based on some special circumstances which in his view made Turpilia’s will valid, or, more probably, he held that a grant of possessio bonorum, even if made in error, was none the less ex edicto. Such a grant was provisional, and the legal heir could assert his claim by petitio hereditatis.’ If that wasn’t confusing enough, ‘the praetor Quintus Caepio’ is Marcus Brutus the tyrannicide, whose name was legally Quintus Servilius Caepio Brutus after an adoption.
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