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9 On the Estate of Astyphilus

9.hypothesisAstyphilus and the speaker of this oration were half-brothers, children of the same mother. On the death of Astyphilus a certain Cleon, his first cousin, produced a will, alleging that it had been made in favor of his own son. The brother of Astyphilius attacks the will as being a forgery. The discussion turns on a question of fact.

9.1Astyphilus, the owner of the estate, was my half-brother, gentlemen, the son of my mother. He went abroad with the force which sailed to Mytilene, and died there. I shall try and prove to you what I stated in my affidavit, namely, that the deceased did not adopt a son, that he did not bequeath his property, that he left no will, and that no one except myself has a right to the estate of Astyphilus. 9.2Cleon, my adversary, is first cousin to Astyphilus on his father's side, and his son, whom he pretends that Astyphilus adopted, is his first cousin once removed. Cleon's father, however, passed by adoption into another family, and they still belong to that family, so that in law they have no sort of relationship with Astyphilus. Seeing that they had no claim on these grounds, gentlemen, they concocted a will, which, as I think I shall be able to prove, is a forgery, and are trying to deprive me of my brother's estate. 9.3So confident, indeed, has Cleon here always been, and still is, that no one but himself is to have the estate, that, as soon as the news of Astyphilus's death was reported—my father being ill at the time and I abroad on military service—he entered into possession of the landed estate and declared that anything else which Astyphilus left belonged to his own son, without ever giving you the opportunity to decide the matter. 9.4When, however, my brother's remains were brought home, the person who claims to have been long ago adopted as his son did not lay them out or bury them, but Astyphilus's friends and companions-in-arms, seeing that my father was ill and I was abroad, themselves laid out the remains and carried out all the other customary rites, and conducted my father, ill though he was, to the tomb, well knowing the affection in which Astyphilus held him. I will produce before you the friends of the deceased, who were amongst those who were present, as witnesses of this.Witnesses

9.5That Cleon did not bury Astyphilus, even he himself would not deny, and evidence of the fact has been given you. On my return home I found my opponents in enjoyment of the property of the deceased; [I, therefore, sought out Cleon, who informed me that] note his son had been adopted by Astyphilus, and that the latter had left a will to this effect in the keeping of Hierocles of Iphistiadae. note On hearing this from him I proceeded to the house of Hierocles, knowing full well that he was on terms of the closest possible intimacy with Cleon, 9.6though I never thought that he would dare to lie against the wishes of Astyphilus now that he was dead, especially as he was his uncle as well as mine. note Nevertheless, gentlemen, regardless of these considerations, Hierocles in reply to my questions stated that the will was in his possession and said that he had received it from Astyphilus when he was on the point of sailing to Mytilene. And to prove that he made these statements, please read this deposition.Deposition

9.7Since, then, gentlemen, no one of my brother's relatives was present when he died and I was abroad when his remains were brought hither, I am obliged to use the actual statements of my adversaries to prove that the will is a forgery. It is only reasonable to suppose that Astyphilus did not merely feel a desire to adopt a son, but also provided that whatever dispositions he made should be as effectual as possible, and that, whomsoever he adopted, that person should both possess his estate and have access to his ancestral altars and perform all the customary rites for himself after his death and for his forefathers. 9.8He would be assured that all these intentions would be best effected, not if he made his will without the attestation of any of his friends, but if he summoned first his kinsmen, then the members of his ward and deme, and finally as many as possible of his other acquaintances; for then anyone who might claim the estate either as next-of-kin or as legatee could be easily convicted of false pretences. 9.9Astyphilus is shown to have taken none of these precautions, and not to have summoned any of the persons whom I have mentioned when he made the will which my opponents allege that he made—unless, indeed, anyone has been suborned by them to state that he was present. I will myself produce all these persons before you as witnesses.Witnesses

9.10Cleon will perhaps contend that you ought not to draw any conclusions from the evidence of these witnesses, because they merely depose that they have no knowledge of the making of this will by Astyphilus. But in my opinion, since the controversy is about a will and about the adoption of a son by Astyphilus, more weight should be attached by you to the evidence of the intimate friends of the deceased, when they declare that they were not present on so important an occasion, than to the evidence of those who have no connection with him, to the effect that they were present. 9.11Moreover, Cleon himself, being apparently no fool, when Astyphilus was adopting his son and making the will, ought to have summoned any relatives whom he knew to be in the city and practically any other person with whom he knew Astyphilus to be intimate. For no one could have prevented Astyphilus from devising his property to whomsoever he wished; but the fact that the will was not made in secret, would have been strong evidence in Cleon's favor. 9.12Furthermore, gentlemen, if Astyphilus wished that no one should know that he was adopting Cleon's son or that he had left a will, no one else's name ought to have been inscribed in the document as witness; but if it appears that he made a will in the presence of witnesses, and those witnesses were not taken from among those who were most intimate with him but were chance persons, is there any probability that the will is genuine? 9.13For my part I cannot believe that anyone, when he was adopting a son, would have ventured to summon as witnesses any other persons except those with whom he was about to leave that son, to take his own place as an associate for the future in their religious and civic acts. Moreover, no one ought to be ashamed of summoning the largest possible number of witnesses to the execution of such a will, when there is a law which permits a man to bequeath his property to whomsoever he wishes.

9.14Now consider the matter, gentlemen, from the point of view of the date which my opponents assign to the will. They say that he made these dispositions when he was sailing for Mytilene on military service; it is clear then from their account that he knew beforehand all that fate had in store for him! For he served first at Corinth, then in Thessaly and again throughout the Theban war, note and wherever else he heard of an army being collected, he went abroad holding a command; yet never on his departure for any one of these campaigns did he leave a will behind him. The expedition to Mytilene was his last, for in it he perished. 9.15Who among you can believe it possible that the decrees of fate should correspond so exactly with Astyphilus's conduct, that when he was preparing for other campaigns and was well aware that he was going to run risks on all of them, on no previous occasion did he make any disposition of his property, yet when he was about to set out on his last expedition, going out as a volunteer with every prospect of returning safe and sound from this campaign, on this occasion only did he make a will and then sail away and lose his life? How can you credit such a coincidence?

9.16But besides this, judges, I will produce still stronger indications that there is no truth in what my opponents say. I will prove to you that Astyphilus had no such bitter enemy as Cleon, and hated him so much and with such good cause, that he would have been much more likely to have arranged that no one of his family should ever speak to Cleon than to have adopted his son. 9.17For the death of Euthycrates, the father of Astyphilus, is said to have been caused by an assault made upon him by Thudippus, the father of Cleon here, in the course of a quarrel which arose between them over the division of their land, and he is said to have received such treatment that he fell ill as a result of the blows and died not many days later. 9.18That this story is true, many of the Araphenians, note who were tilling their land at the time, would probably testify for me, but I could not find anyone to give positive evidence in so grave a matter. Hierocles, the man who alleges that the will was deposited in his custody, saw Euthycrates struck, but I am sure that he would not be willing to give evidence to the detriment of the will which he is himself producing. But for all that, summon Hierocles that he may give his evidence before the court or else swear to his ignorance of the fact.Oath of Ignorance

9.19I was quite sure he would say this; for it is quite in the same character for a man to swear that he is ignorant of facts which he really knows and to be willing to pledge his oath to the truth of what has never really happened. However, to prove that Euthycrates, the father of Astyphilus, on his death-bed charged his friends never to allow any of Thudippus's family to come near his tomb, I will produce as witness before you the husband of Astyphilus's aunt.Evidence

9.20Astyphilus, then, hearing of this in childhood from his uncle and his other relatives, as soon as he reached the age of reason, would never speak to Cleon, and maintained this attitude up to his death, holding the opinion that it was impious to speak to the son of Thudippus, when the latter was charged with so grave a crime against his father. To prove that he remained throughout his life at variance with Cleon, I will produce as witnesses before you those who know the facts.Witnesses

9.21It would have been only natural, I suppose, for Astyphilus, whenever he was at home, to attend the sacrifices, at which all the Athenians entertain one another, accompanied by Cleon rather than by anyone else, since he was of the same deme and his cousin and, moreover, intended to adopt his son. The clerk shall, therefore, read you the deposition of the demesmen to prove that on no occasion was he accompanied by him.Deposition

9.22Such then being the relations between Cleon and the deceased, he now demands that his son should inherit his property. Yet why should I speak of Cleon? It is rather Hierocles, the uncle of the deceased and of me, who has had the audacity to come here with a forged will and declare that Astyphilus left it in his keeping. 9.23And yet, Hierocles, though you received many kindnesses from my father Theophrastus, when you were less prosperous than you are now, and from Astyphilus, you are paying to neither of them the return which is their due; for you are robbing me, the son of Theophrastus and your own nephew, of property which the laws awarded to me, and you are slandering the memory of the dead Astyphilus and doing your best to put his bitterest enemies in possession of his property. 9.24Nay, before any formal claim was laid to the estate, Hierocles, well aware that the estate was coming by rights to me and to no one else, went round in turn to all the friends of the deceased, hawking his scheme and trying to persuade men who had no title to it to claim the estate, saying that he was Astyphilus's uncle and would show that he had left a will, if anyone would go shares with him; and now that he has made a bargain with Cleon and divided up my brother's property, he will demand to be believed on the ground that he is speaking the truth. He would, I believe, be delighted even to take an oath, if anyone were to propose it to him. 9.25For me, though he is my kinsman, he refuses to testify even to events which have actually happened, but with my opponent, who is no relative of his, he co-operates in telling lies and has brought a document in his favor to prove events which have never occurred; for he considers that to make money is much more important than his kinship with me. To prove that he went round and promised to produce a will in favor of anyone who would share the estate with him, I will produce as witnesses the actual persons to whom he addressed himself.Witnesses

9.26What name ought to be given, gentlemen, to this man, who is willing so lightly for his own profit to slander one who is dead? This evidence will furnish you with a strong presumption that he is not producing this will in favor of Cleon for nothing, but has received a recompense. Such, however, are the artifices which they are concerting against me; for each regards as clear gain anything that he can filch from the property of Astyphilus.

9.27I have proved to you to the best of my ability that the will is not genuine, and that Cleon and Hierocles are seeking to mislead you; I will now proceed to show that, even if I had borne no relationship to Astyphilus, I have a better right to his property than my opponents. For when my father Theophrastus received my mother—who was also the mother of Astyphilus—in marriage from Hierocles, she brought with her Astyphilus, then a young child, and he lived continuously in our house, and was brought up by my father. 9.28When I was born and was of an age to be instructed, I was educated with him. Please take this deposition, and after it that of the masters whose classes we attended.Depositions

My father, gentlemen, planted the paternal estate of Astyphilus and continued to cultivate it and doubled its value. Let the witnesses of this also, please, come up.Witnesses

9.29When my brother came of age, he received all his possessions in so correct and regular a manner that he never had any complaint to make against my father. After this my father gave Astyphilus's sister in marriage note to a man of his choice and managed everything else to Astyphilus's complete satisfaction; for the latter thought that he had received an ample proof from my father of his goodwill towards him, in the fact that he had been brought up by him from early childhood. Those who know the facts are my witnesses before you about his sister's betrothal.Witnesses

9.30My father took Astyphilus with him when he was a child, as also he took me, to the religious ceremonies on every occasion; he also introduced him to the confraternity of Heracles in order that he might become a member of this association. The other members will themselves bear witness to this.Witnesses

Next consider, gentlemen, my own relations with my brother. In the first place, I was brought up with him from infancy; secondly, I never had a quarrel with him, but he had a great affection for me, as all the members of our family and our friends know. I should like them to come forward and testify to you.Witnesses

9.31Can you imagine, gentlemen, that Astyphilus, detesting Cleon so heartily and having experienced so many kindnesses at the hands of my father, would himself have adopted a son of one of his enemies or bequeathed his property to him, to the detriment of his benefactors and relatives? Personally, I regard it as impossible, even though Hierocles produces forged wills ten times over: no, I am convinced that, because I am his brother and we were bound together by every other tie, I have a much stronger claim than the son of Cleon; 9.32for it was positively indecent in them to put forward pretensions to the estate of Astyphilus, when they were on the terms with him that I have described and never buried his remains, but entered into possession before performing the customary rites over him. Further, they intend now to demand the succession to Astyphilus's property not only because of the will which they allege to exist, but also by a comparison of their relationship and mine, on the ground that Cleon was a first cousin of the deceased on his father's side. 9.33There is little likelihood, however, gentlemen, of your paying any attention to his claim of kinship; for no one, after passing by adoption into another family, has ever inherited from the family out of which he was adopted, unless he re-entered it in the proper legal manner. noteThese men, note however, well knowing that Astyphilus never adopted Cleon's son, though he has often presented himself, have never given him any share in the victims. Please take this deposition also.Deposition

9.34I call upon you, therefore, to decide between us after considering our declarations under oath. Cleon declares that his son was adopted by Astyphilus and that the latter made dispositions to this effect; this I deny and declare that all Astyphilus's possessions belong to me, because I am his brother, as my opponents are themselves well aware. Do not, therefore, gentlemen, give Astyphilus an adopted son whom he himself never in his life adopted, but confirm in my favor the laws which you yourselves enacted; for it is in conformity with them that I make my claim, addressing to you a most pious prayer, that you should establish me as heir of my brother's property. 9.35I have shown that he never devised his estate to anyone, and I have produced witnesses in support of all my statements. Assist me, therefore, and, if Cleon is a more clever speaker than I am, let not his talent avail him unsupported by law and justice, but constitute yourselves arbitrators on the whole case. You are gathered here that the impudent may gain no advantage and the weaker may venture to assert their righteous claims, knowing full well that you are intent upon justice and upon nothing else. Take, therefore, my part, all of you, gentlemen; 9.36for if you allow yourselves, under the persuasion of Cleon, to give any other verdict, consider the responsibility which you will assume. First, you will send the bitterest enemies of Astyphilus to his tomb to celebrate the rites over him; secondly, you will make of none effect the injunctions of Euthycrates, the father of Astyphilus, which he himself never transgressed up to the end of his life; lastly, you will convict Astyphilus after his death of consummate folly. 9.37For if he adopted this man as his son with whose father he was on terms of the bitterest enmity, will not those who hear of it imagine that he was mad or that his senses had been impaired by drugs? Further, judges, you will be allowing me, after having been brought up under the same roof and educated with Astyphilus, to be deprived of his estate by Cleon. I beg and beseech you by every means in my power to give your verdict in my favor; for then you would best gratify the wishes of Astyphilus and save me from injustice.

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