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10 On The Estate Of Aristarchus

10.hypothesisA certain Aristarchus was the father of four children, Cyronides, Demochares, the mother of the speaker of this oration, and another daughter. During his lifetime he gave Cyronides in adoption to be heir of the estate of his maternal grandfather Xenaenetus, and left his other children as his own heirs. Subsequently Demochares died without issue, as also did one of the daughters, and the whole estate passed by law to the mother of the speaker. Such was the position of affairs; but, after the death of Aristarchus, Aristomenes, his brother and now the legal representative of his brother's children, gave his own daughter in marriage to Cyronides, the son of Aristarchus, who had been adopted out of the family, having promised to obtain for him the estate of Aristarchus. This he succeeded in doing; for, when a son was born to Cyronides, they first gave him his grandfather's name, calling him Aristarchus (II.), and then had him adopted into his grandfather's family, on the ground that the latter had given instructions to this effect, and Aristomenes handed over to him all his grandfather's estate. Aristarchus (II.), dying without issue, constituted his own brother Xenaenetus (II.) by will as his heir. This being so and Xenaenetus being in possession of the property of Aristarchus the elder, the son of the latter's daughter claims the estate from him, asserting that he is himself by law the sole heir to the fortune of Aristarchus the elder. For, he declares, Cyronides passed out of the family by adoption, and his father, having a legitimate son, namely, Demochares, could not adopt a child; nor were Demochares, being under age, and the other sister who predeceased him in a position to adopt a son into their father's family. Therefore, he argues, since the adoption of Aristarchus the younger was not good in law, his will could not stand either; for how could he pass on to another property which he acquired without right? The will being thus annulled, the estate ought naturally to pass to the speaker as son of the legitimate daughter of Aristarchus the elder. Such is the subject; the discussion is concerned with validity, namely, that of a written document; for the questions are whether such a will ought to stand and which party has the better claim.

10.1I could wish, gentlemen, that, as Xenaenetus here finds it easy to lie with boldness, so I with like confidence could speak the truth to you in presenting my claim; for then, I think, it would immediately become clear to you whether we have unjustly come forward to claim the inheritance and whether our opponents have been for a long time in wrongful possession of this fortune. But, as it is, we are not on equal terms; for they are both able speakers and clever plotters, so that they have often pleaded before you on behalf of others, whereas I, so far from speaking on behalf of another, have never before pleaded on my own behalf in a private suit, and therefore deserve great indulgence at your hands.

10.2I was obliged, it is true, owing to the impossibility of obtaining justice against my opponents, to add to my petition at the preliminary inquiry that my mother was sister of Aristarchus (II.). note This will not, however, make your decision any the less easy, if you ask yourselves the question in the light of the laws whether the estate which Aristarchus (II.) has bequeathed to my opponent was his own or whether it was property to which he had no right. This question is a perfectly legal one; for the law ordains that a man can dispose of what is his own to anyone he likes, but it has never given anyone power over the possessions of another. 10.3This, then, is the first point which I shall try to make clear to you, if you will give me your kind attention; for you will recognize that this estate belonged from the first, not to my opponents but to my mother, who inherited it from her father, and, secondly, that Aristarchus (II.) seized it without the sanction of any law, and that he and the members of his family are wronging my mother in violation of every law. I will try to put the matter before you, going back to a point which will enable you to form the clearest conception of the facts.

10.4Aristarchus (I.), gentlemen, belonged to the deme of Sypalettus. He married the daughter of Xenaenetus (I.) of Acharnae, by whom he had two sons, Cyronides and Demochares, and two daughters, one of whom was my mother. Cyronides, the father of my opponent and of the other party note who illegally kept possession of this estate, was adopted into another family, so that he had no further claim to the property. On the death of Aristarchus (I.), the father of these two sons, Demochares his son became his heir; but, when he died in his minority and the other sister also died, my mother became heiress to the whole of the family estate. 10.5Thus from the beginning all this fortune really belonged to my mother; but, although she ought to have passed by marriage, together with her fortune, into the hands of her nearest relative, she is being abominably treated. For Aristomenes, the brother of Aristarchus the elder, having a son and a daughter of his own, neglected to make her his own wife or to have her married to his own son by an adjudication of the court; refusing both these alternatives, he gave his own daughter in marriage to Cyronides, endowing her with the fortune which belonged to my mother. Xenaenetus here and Aristarchus (II.), now deceased, were the issue of this marriage. 10.6This is the injury, this the manner, gentlemen, in which my mother was deprived of her fortune. Subsequently Aristomenes gave my mother in marriage to my father. On the death of Cyronides, they introduced Xenaenetus's brother note as the adopted son of Aristarchus (I.), a proceeding which cannot be justified by any law, as I will demonstrate to you by many proofs. 10.7I will produce witnesses to testify, in the first place, that Cyronides entered by adoption into the family of Xenaenetus (I.) and belonged to that family at the time of his death; secondly, that Aristarchus (I.), to whom this estate belonged, predeceased his son Demochares, and that Demochares died while yet a minor, as did also the other sister, with the result that the estate devolved on to my mother. Please summon the witnesses to these facts.Witnesses
10.8Thus, gentlemen, the estate now in question belonged to my mother from the beginning, since Cyronides was adopted out of the family into that of Xenaenetus (I.), and his father, Aristarchus (I.), left his property to his son Demochares, who left it to his own sister, my mother. But since they are so exceedingly impudent and claim this fortune against all right, you must see, gentlemen, that no law whatever authorized the introduction of Aristarchus (the younger) into the ward of Aristarchus (the elder); if you see this, you will clearly apprehend that the illegal detainer of the property had no right to dispose of it either. 10.9I think that you are all aware, gentlemen, that the introduction of adopted children is always carried out by a will, the testator simultaneously devising his estate and adopting the son, and that this is the only legal method. If, therefore, anyone shall assert that Aristarchus (I.) himself made a will, he will be saying what is not true; for, while he possessed a legitimate son, Demochares, he could not have wished to do so and he was not permitted to devise his property to anyone else. Again, if they declare that Demochares adopted Aristarchus (II.) after the death of Aristarchus (I.), they will likewise be lying. 10.10For a minor is not allowed to make a will; for the law expressly forbids any child—or woman—to contract for the disposal of more than a bushel of barley. Now evidence has been given you that Aristarchus (I.) predeceased his son Demochares and that the latter died after his father; and so, even supposing they had made wills, Aristarchus (II.) could never have inherited this property under their wills. note Now read the laws which show that neither of them had the right to make a will.Laws
10.11Nor again, gentlemen, could Cyronides give Aristarchus (I.) a son by adoption; he could, it is true, have returned to his father's family, if he had left a son in the family of Xenaenetus (I.), but there is no law which permits him to introduce a son of his own to take his place. If they assert the existence of such a law they will be lying. So, not even if they assert that the adoption was carried out by Cyronides, will they be able to point to any law which authorized him to do so; but from their own assertions it will become still more evident to you that they are illegally and impudently detaining my mother's property. 10.12Furthermore, gentlemen, though Aristomenes or Apollodorus might have had my mother adjudicated to them in marriage, yet they had no right to her estate. Seeing that neither Apollodorus nor Aristomenes, if either of them had married my mother, could possibly have had the disposal of her property—in accordance with the law which does not allow anyone to have the disposal of the property of an heiress except her sons, who obtain possession of it on reaching the second year after puberty—it would be strange if Aristarchus is going to be allowed, after giving her in marriage to another, to introduce a son to inherit her fortune. 10.13It would indeed be an extraordinary state of affairs. Again, her own father, in default of male heirs, could not have disposed of his estate without disposing of her with it; for the law ordains that he may dispose of his property to whomsoever he wishes, if he disposes of his daughters with it. But when one who has refused to take the heiress in marriage and is not her father but her cousin, introduces an heir to her fortune in violation of every law, is this to be recognized as a valid act? Who of you can possibly believe it to be so? 10.14For myself, gentlemen, I am perfectly certain that neither Xenaenetus nor anyone else can prove that this estate does not belong to my mother, having come to her through her brother Demochares. But, if, after all, they venture to deal with the question, order them to indicate the law under which the adoption has been carried out in favor of Aristarchus (II.) and to declare who carried it out. This is a perfectly just demand. But I know that they will not be able to indicate any such law.

10.15That the estate, then, belonged to my mother from the beginning and that she has been unjustly deprived of it by my opponents, has, I think, been sufficiently demonstrated by my arguments, by the evidence which has been produced, and by the citation of the actual laws. Indeed, these men are so perfectly well aware that they are wrongfully in possession of this fortune that they do not rest their argument solely upon the legality of the introduction of Aristarchus (II.) to the members of the ward, but also allege that Xenaenetus's father has paid a judgement-debt on behalf of the estate note in order that, if their claim on the former ground should not seem just, it may appear that they have a good claim to the estate on the second ground. 10.16I shall show you, gentlemen, by convincing proofs that there is no truth in what they say. For if, as they allege, this estate had been insolvent, they would never have expended any money upon it—for it was not their business to do so, but those who had the right to claim my mother's hand ought to have concerned themselves with the matter—nor would they have introduced a son as the adopted child of Aristarchus (I.) to inherit his estate, if they were not going to get any advantage but only suffer considerable loss. 10.17Other people indeed, when they have had monetary losses, introduce their children into other families in order that they may not share in their parents' loss of civic rights; and did my opponents adopt themselves into a succession and family which was insolvent, in order that they might lose in addition what they already possessed? Nay, it is impossible the estate was unencumbered and descended to my mother, and these men, in their greed for money and their anxiety to rob her, devised all this story.

10.18Some among you, gentlemen, may be surprised at the delay, and ask how it is that we allowed so long an interval to elapse, and, being defrauded, took no steps in the matter, and are only now putting in our claim. Now, although I think it unjust that anyone should have less than his due rights through inability or neglect to assert them—for such a consideration should not be taken into account, but only the justice or injustice of his plea—yet even for this delay, gentlemen, we can furnish an explanation. 10.19My father received a dowry when he engaged himself to my mother and married her, but, while these men were enjoying the estate, he had no means of obtaining its restitution; for when, at my mother's instance, he raised the question, they threatened that they themselves would obtain the adjudication of her hand and marry her, if he were not satisfied to keep her with only a dowry. Now my father would have allowed them to enjoy an estate of even double the value so as not to be deprived of her. 10.20That is why my father never brought a suit for the estate. Then came the Corinthian war, note in which my father and I were obliged to serve, so that neither of us could have obtained justice. When peace was restored, I had unfortunate difficulties with the public treasury, note so that it was not easy for me to contend with my opponents. Thus we have good reasons for our conduct in the matter. 10.21But the time has now come when it is only right that my opponent should declare who it was that gave him the estate, and what laws justify his introduction in the ward, and why it is that my mother was not heiress to this fortune. These are the points on which you must give your verdict, not as to whether we are late in demanding what is our own. If they cannot explain these points, you would be justified in deciding that the estate is mine.

10.22I am sure they will not be able to do so; for it is difficult to argue against law and justice. But they will talk about the deceased, saying how sad it is that so brave a man has fallen in battle and declaring that it is unjust to set aside his will. I myself, gentlemen, am of opinion that any will which a man may make about his own property ought to be valid, but that wills which concern other people's property ought not to have the same validity as those in which a man disposes of what is his own. Now this property is clearly not theirs but ours; 10.23and so, if he takes refuge in this argument and produces witnesses to testify that Aristarchus (I.) made a will, you must order him to prove also that what he devised was his own. This is only just, for it would be a most terrible state of affairs if Cyronides and my opponents, his children, are not only to possess the fortune of Xenaenetus (I.) of the value of more than four talents, but are also to receive this estate, while I, though my mother was the rightful owner and I am descended from the same ancestors as Cyronides, am not to receive even my mother's estate, especially as these men cannot indicate the person through whom it has been transmitted to them. 10.24Yet in all justice, just as the holder of a disputed piece of land must produce the mortgagee or vendor, or else prove that he has had it adjudicated to him by the court, so ought these men to set forth their titles in detail and claim to have the estate adjudicated to them, instead of ejecting my mother, the daughter of Aristarchus (I.), from her paternal inheritance before any suit has been heard. 10.25But no doubt, gentlemen, it is not enough for Xenaenetus (II.) to have dissipated the fortune of Aristomenes in unnatural debauchery; he thinks that he ought to dispose of this estate also in like manner. I, on the other hand, gentlemen, though my means are slender, bestowed my sisters in marriage, giving them what dowry I could; and as one who leads an orderly life and performs the duties assigned to him and serves in the army, I demand not to be deprived of my mother's paternal estate. 10.26I have proved to you that Cyronides, the father of my opponents, was adopted into another family and did not return to his father's house; that the father of Cyronides and of my mother left this estate to Demochares; that Demochares died in his minority, and that it was upon my mother that this estate then devolved.

Isaeus, Speeches (English) (XML Header) [genre: prose; rhetoric] [word count] [lemma count] [Isae.].
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